Maine's public defender crisis devolves into a blame game

Jul. 7—When Leein Hinkley was released from jail, he had been waiting three weeks for a court-appointed lawyer.

He got out after District Judge Sarah Churchill lowered his bail because she said his constitutional rights had clearly been violated.

It's a remedy that overwhelmed defense attorneys have been advocating for as hundreds of people, both in and out of jail, wait to be appointed lawyers because the state cannot find enough people to take on the work.

But then Hinkley — who was facing felony-level domestic violence charges and a probation violation for a previous domestic violence conviction — broke the conditions of his release and tried to enter his ex-girlfriend's home in Auburn with a gun.

He later died in a shootout with state police, but not before authorities say he set two homes on fire. The body of another man who answered the door when Hinkley arrived was later recovered from the debris. The Office of the Maine Attorney General is still investigating what happened.

The debate about how to solve the root causes of Maine's defense crisis, which has been playing out for years, is now latching on to Hinkley's case and raising questions about judges' obligations to these unrepresented defendants.

If they drop the charges (which Churchill has only ordered once) because there are no attorneys available to represent them, or lower bail as she did for Hinkley, they risk inciting criticism from the public, law enforcement officials and Gov. Janet Mills, all of whom lashed out at Churchill after Hinkley's death.

Since November, the Maine judicial system has been holding weekly hearings for anyone who has been in custody without an attorney for more than seven days to see if any lawyers are available or to consider whether lowering bail is reasonable.

At one hearing in Aroostook County on Tuesday, Assistant District Attorney John Inglis urged District Judge Carrie Linthicum not to lower a New Hampshire man's bail on drug trafficking and possession charges. Police had said the man, Timothy Pinkham, had tried to dispose of fentanyl during a traffic stop.

"What we're really asking is: 'Is the risk to the system, the risk to public justice, outweighed by the condition that the defendant is in?' " Inglis said.

But Pinkham's temporary lawyer, Neil Prendergast — who frequently represents defendants on a one-day basis — said there's no comparison to Hinkley's record.

"There is no indication that Mr. Pinkham — or that matter, anyone — would act or react like Mr. Hinkley," Prendergast said.

'A SITTING DUCK'

There are roughly 650 people facing criminal charges in Maine who need lawyers but haven't been given one. A quarter of those defendants are in jail.

At the same time, the number of attorneys willing to take on their cases has dwindled drastically over the last few years. As of June 6, there were 163 lawyers available to represent indigent clients throughout the state. Only about 110 were accepting trial-level work.

The weekly review hearings are becoming de facto debate stages where judges, prosecutors and lawyers of the day spar not just over whether a person should be released, but also who is responsible for the crisis.

The hearings are one solution that has been brought forth since the defense crisis worsened and more defense attorneys have started filing petitions alleging Mainers' Sixth Amendment right to representation are being violated.

This right to counsel is "not a matter of convenience," Chief Justice Valerie Stanfill said in June in response to the criticism against Churchill, and Maine courts "cannot hold an unrepresented defendant in jail for an indeterminate period of time while waiting for counsel to be appointed."

But many of these defendants face serious charges and have multiple, complicated cases pending.

"Therein lies a really big part of the problem," said Neil McLean, the district attorney in Androscoggin County. "We're not talking about the disorderly conduct or the criminal trespass. They're gross sexual assaults. They're trafficking and drugs. There's an abundance of domestic violence charges — and they're violent crimes, generally."

At Tuesday's hearing in Aroostook, one defendant, Daniel Bernaiche, wanted to say something.

Linthicum, the judge, had recommended he keep silent. Then he began to cry.

Bernaiche was arrested in June on four Class A counts of aggravated drug trafficking. He had been out on bail after an arrest in May on six counts of Class C aggravated cruelty to animals. This was his third time appearing before Linthicum over Zoom to try to get a lawyer because he cannot afford his own.

No one was available.

"I'm a sitting duck," Bernaiche said. "I can't even look for counsel in here. ... I give up. I can't do it any more."

Robert Ruffner, who was Bernaiche's lawyer of the day and has been one of the attorneys advocating the loudest for release when defendants' rights are violated, blamed the state for his client's situation.

Lawmakers waited years before authorizing the state to hire its first group of public defenders and increase attorney pay. Ruffner has also said prosecutors and their charging decisions have contributed to the situation.

"All those decisions fall on the state of Maine. And not Daniel," he said. "It has been an unreasonable amount of time to hold somebody in custody without counsel. And I don't think that's a controversial statement, given the amount of time that has passed in the chronic situation we are in."

Inglis, the assistant district attorney, said the blame more squarely rests with the Maine Commission on Public Defense Services, the quasi-state agency tasked with finding and overseeing private and public lawyers who represent defendants who can't afford their own counsel.

Inglis questioned why the commission can't assign attorneys to these cases or prioritize those waiting longer and facing more serious charges.

"It's not any detriment to them to not find anybody," Inglis said. "The person who suffers is the defendant, and by not finding the representation, there's no prejudice to the body. The body needs to find somebody."

Linthicum appeared to agree.

When she considered the case of Earl Cassity, who was arrested on June 26 after removing his ankle monitor and fleeing the state, she questioned why the commission wasn't prioritizing assigning attorneys to high-stakes cases like Cassity's. His original charges were for domestic violence, assault and violating protection orders.

"I'm just amazed at all of the attorneys in the state of Maine, and not one of them can represent Mr. Cassity," Linthicum said.

'INEVITABLE COLLAPSE'

In Mills' criticisms last month of Churchill, whom the governor nominated to the bench in 2021, she raised the same question. The governor said Churchill should have found Hinkley a lawyer herself.

"I recognize and appreciate that judges make difficult decisions every day, balancing constitutional rights, including the right to counsel, with many other considerations — chief among them being the safety of the public," Mills wrote in her statement. "In my view, given the severity of the charges, the defendant's criminal history and the serious danger he posed, these important, competing interests were not properly balanced in this case."

Others question if that would violate state law.

After Mills' statement, the commission's director, Jim Billings, asked for an advisory opinion from the attorney general out of concern that attorneys might be involuntarily appointed to cases they can't handle.

"Needless to say, the Governor's comments have caused some concern amongst the indigent defense bar, and I'm worried we'll see further erosion of the numbers of attorneys willing to participate — including some (lawyers of the day) who may fear being appointed on cases for just showing up to do LOD work," Billings wrote in his request.

He declined to discuss his hopes and expectations for the advisory opinion.

But at a hearing in June in front of Churchill, during which she agreed to dismiss misdemeanor domestic violence charges against a man who had waited more than 100 days for a lawyer, Billings spoke about why it's not so easy to simply assign any lawyer to a case.

He said the commission surveyed defense attorneys in September and found that a majority struggle with burnout and feel overwhelmed. The standards they have to meet are intense and there are special qualifications attorneys must meet for specific case types, including domestic violence.

"Simply put, appointing an attorney who does not have the time, skill, or experience is not a substitute for effective representation," Churchill wrote in her order dismissing the charges.

Many prosecutors and Mills have questioned whether these qualifications are stopping more lawyers from taking court-appointed work. McLean said that in Androscoggin County there are many "talented, compassionate attorneys who deeply care about the criminal justice system" who have been discouraged by the rules.

In an email Friday, McLean said the commission's own data indicated there should have been capacity to represent Hinkley, or the man accused of misdemeanor domestic violence charges.

"We need to know why (there is) apparent availability of counsel on the MCPDS rosters, but the inability of the court to identify attorneys on the provided rosters for appointment," he said.

Mills, who previously served as attorney general and before then as an attorney representing indigent clients, rarely weighs in on judges' bail decisions.

"The Governor has commented on both Federal and State level court decisions in the past. She does not take lightly her decision to do so in this case, but she had been asked to comment and believed the tragedy was of such a magnitude that she should," Mills' spokesman Ben Goodman said in an email Friday.

The governor has since met with the chair of the commission and asked for an update on its progress in setting up new public defender offices and "urged the Commission to more deeply consider what additional actions it could take to enhance its roster of private attorneys," Goodman said.

Jeffrey Evangelos, a former independent lawmaker from Friendship who has served on the Legislature's Judiciary Committee, said he believes Mills overstepped.

"This represents a serious breach of Separation of Powers," Evangelos said. "Mills' efforts to influence the rulings of Judges violates this principle."

Evangelos said he and other lawmakers advocated for increased funding for public defense, but he said Mills and the majority of the State House were slow to offer their support for increased attorney pay and public defense offices. Mills had been reluctant to increase the minimum reimbursement rates for lawyers representing indigent clients, saying there were "systematic changes" she wanted the commission to implement first to recruit more attorneys.

It wasn't until 2022 when she signed a bill to open the state's first public defense office and agreed with lawmakers' requests to reimburse lawyers $150 an hour for doing indigent work, up from $80 an hour.

Evangelos said that help came too late.

"Now that the inevitable collapse that followed has occurred, the consequences of the governor's actions have come home to roost," he said.

DOMESTIC VIOLENCE CONCERNS

Hinkley's case is also coming up within advocacy groups for victims of domestic violence, who have been watching as the number of criminal defendants without lawyers snowballs.

Androscoggin County, where Hinkley was released, has one of the highest numbers of unrepresented defendants facing charges related to domestic violence, gross sexual assault and violating protective orders, according to a regularly updated list of unrepresented people put out by the judiciary. As of June 26, there were 36 defendants without an attorney, and 14 were still in jail.

Those numbers were even higher in York County, which had 62 defendants facing domestic violence charges, about 40 of whom were in jail.

Androscoggin had no lawyers available to accept new DV cases on June 24, according to a roster maintained by the Maine Commission on Public Defense Services, which lists lawyers who are available for different kinds of criminal cases in each county.

"There's some questions to be asked around why some defense attorneys aren't taking domestic violence cases in particular in certain counties in the state," said Andrea Mancuso, public policy director with the Maine Coalition to End Domestic Violence. "And how does this buildup impact those counties' abilities to actually get through these cases, understanding that those are high risk offenders, by and large, sitting in county jail?"

The group's executive director, Francine Garland Stark, said victims also are at a disadvantage because the longer a case takes to process, the weaker it might get. Attorneys can sometimes help connect defendants to resources that might reduce their likelihood to reoffend, she said, like domestic violence treatment programs.

"It's really important for the system to function as it was intended, so that there's a certain predictability of the steps along the way," Stark said. "So when you don't have important components of that system in place, then it's going to fail. And that's no good. Because the consequences for everybody involved are bad."

HIGH PROSECUTION RATES

Some defense attorneys say they are overwhelmed with criminal prosecutions that have increased in recent years and are taking longer to process because of yearslong backlogs in the courts.

The American Civil Liberties Union of Maine, which is suing the state over its indigent defense crisis, has pointed to data showing that the counties with the highest prosecution rates are also the counties with the highest number of people who need attorneys.

Aroostook, Penobscot and Androscoggin counties had unusually high rates of criminal charges for their population, the ACLU reported, and they were three of the counties with the highest numbers of unrepresented defendants for their population.

Prosecutors have objected to this characterization. In the latest motion asking to be dismissed from the ACLU's lawsuit, counsel for the attorney general — Maine's lead prosecutor — said prosecutors have no role in the indigent defense crisis, because they don't choose who does and doesn't get lawyers.

"Although plaintiffs suggest that the Court could remedy the alleged constitutional violations, in part, by ordering the Attorney General to dismiss pending charges against class members, such an order would breach the constitutional separation of powers between the branches of state government," assistant attorneys general Valerie Wright and Jack Dafoe wrote in their motion to dismiss.

McLean disagreed. He said his office and others around the state have actually decided against prosecuting many cases that don't involve violence because of the ongoing crisis. It's been unpopular with law enforcement and the public, he said.

"I don't think I've ever seen public confidence in the criminal justice system lower than it is right now, especially in the Androscoggin area," he said.

But the cases involving violence and people who have violated previous protection orders and probation are ones McLean said they can't ignore.

"Our priority is the public safety," he said. "We can't just dismiss cases because we don't feel like they're important or we don't feel like they should be prosecuted."

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