Wednesday, February 27, 2008

Follow up news for the State of the Union

For those folks who are interested, check out the front page article from the Portland Press Herald. If you think the impact is limited to a couple of defense attorneys, think again. The impact is expected to be widespread and will effect court clerks, DA Offices and the personnel that populate those offices, court security, and last but not least, Joe Q Citizen. Joe Q. Citizen will be affected because if these proposed radical solutions are implemented, seasoned, qualified defense attorneys will refuse to accept court appointments. Defense attorneys will close up shop or move into more lucrative and secure fields of law in which to practice and Joe Q. Citizen will sit in jail for an additional 6 weeks because of the proposed criminal law moratorium. Is this constitutional? That's a good question and one that could be answered by someone far smarter than me. Is it fair? No. Not by a long shot. Read the article and decide for yourself.

State strains to pay lawyers
To cover the court-appointed lawyer program's $1.2 million deficit, Maine may limit courts' hours or close courthouses.

By TREVOR MAXWELL, Staff Writer February 27, 2008

BIDDEFORD — He doesn't want to be here, in this small office in District Court, clutching the paperwork that will determine whether that old American promise -- justice for all -- applies to a guy with only $14 in his checking account.

David Hersh needs a lawyer.

The Biddeford man has been charged with assault, and he could go to jail if he is convicted. Hersh says he's innocent, but he and his wife scrape by to support three children, and they can't afford a lawyer.

Behind the desk, Christina Tripp-Maynard crunches the numbers: It looks like Hersh qualifies for a court-appointed lawyer, a right guaranteed to poor people by the Constitution.

For those who qualify, it's a right that can help keep a family together, keep a roof over their heads and keep the wrongfully accused out of jail.

This year, about 17,000 defendants in criminal cases in Maine -- roughly one out of every four -- will have part or all of the cost of their attorneys paid by the state. Another 10,000 parties -- including children, parents and guardians -- will receive appointed lawyers in child protection cases.

While leaders of the judicial branch agree that Maine cannot scale back on its constitutional obligation, they are struggling to pay for the court appointments, which cost the state twice as much as they did a decade ago. Those struggles are part of a much larger budget crisis facing state government.

"The shortfall affects all three branches of government," said Sen. Barry Hobbins, D-Saco, the Senate chairman of the Legislature's Judiciary Committee.

The courts expect to spend $12.3 million for appointed lawyers by the end of this fiscal year in June, plus $1.4 million for related costs, such as psychological exams and expert witnesses. That puts the program about $1.2 million over budget.

More arrests, more criminal charges by prosecutors and higher expenses for each case have contributed to the budget gap. The $50 hourly rate paid to lawyers, who volunteer for the program, has not changed since 2000, when it was raised from $40 an hour.

To make up for the shortfall in the court-appointed program, court leaders and legislators must find other areas in the judicial budget to cut.

They're considering a six-week moratorium on criminal trials, beginning in April. That would save money in this year's budget because court-appointed lawyers would not be paid and juries would not be in court. But those costs would simply be deferred, Hobbins said.

Other options discussed in Augusta this week included limiting hours at some courthouses, closing others permanently and even cutting the financial screening program -- returning to the system in which a judge discusses ability to pay with the defendant inside the courtroom.

The state budgeted $300,000 this year for the screening program, most of which pays salaries for seven employees, including Tripp-Maynard in Biddeford.

"None of the alternatives are very good," Hobbins said. "That is how drastic the measures are that we might have to take. Everything is on the table. We're kind of pressed to get some recommendations to the Appropriations Committee."

Hobbins said the Judiciary Committee will meet again to discuss the budget Thursday.

"If meetings were solutions, we'd have this thing nailed," said Maine's chief justice, Leigh Saufley, in her address to the Legislature this month. "But more meetings will not help. The increase in filings is not going away."

The number of criminal cases filed in Maine has risen from about 72,000 in 2002-03 to what's projected to be more than 75,000 in this fiscal year.

"If the attorneys can't be paid, criminal charges cannot be prosecuted, trials can't be held, alleged victims will wait. It's as simple as that," Saufley said. "We must find a way to pay these bills."

Saufley and other court officials identified the projected gap in the fall. In response, the judicial branch suspended parts of the Lawyer of the Day program, which provides legal advice to defendants who don't have lawyers and don't qualify for court-appointed counsel.

The courts also cut back on overtime, reduced travel costs by changing assignments for judges and capped the number of jury pools that can be brought into the courts. But those changes are expected to save only about $200,000 this year.

In January, Saufley appealed to Gov. John Baldacci, seeking funding to cover the rest of the shortfall.

Baldacci, who had recently ordered state agencies to curtail spending, denied the request. The court system was exempt from the curtailment order, but the Legislature's Appropriations Committee has still asked court leaders to find ways to save money.

"The problem is, if you look at the judicial budget, there is not a lot that is not constitutionally protected," Hobbins said. The total budget for the judicial branch this fiscal year is $57.8 million. Hobbins stressed the importance of the court-appointed lawyer program, which accounts for about a quarter of court spending.

"No matter who you are, you have the right to counsel. That goes to the heart and soul of the whole judicial process, of blind justice," Hobbins said.

The court-appointed lawyer program was instituted in the early 1990s as a cost-saving measure. Before that, judges talked directly to defendants and determined whether they qualified for help. That remains the case in many rural counties, because the state has only seven screeners.

Officials thought that without thorough checks, too many people were claiming that they were poor and were receiving state aid. Now, screeners can spend more time than a judge can to speak with people and review their financial situations. Meetings of 15 minutes or more are routine, and screeners often have long lines at their doors.

Tripp-Maynard recalled a recent case in which a man claimed to be indigent, but she found that he hadn't disclosed that he owned two properties.

Tripp-Maynard relies on a set of financial guidelines, some detective work and common sense to make her recommendation on a person's ability to pay. If she suspects that a person is lying, or the numbers are not adding up, she uses the Internet to check defendants' backgrounds.

She said most people who qualify are determined to be fully indigent. "They're struggling to pay for housing, heat, food and child support," Tripp-Maynard said. Because they are already living on the edge, she said, they are the most vulnerable people in the court system.

"You have people that literally are just shaking when they come in here," said Tripp-Maynard, who keeps a box of tissues on her desk. "They're confused and they're looking for direction. The knowledge that they have a lawyer to help guide them through the system -- you can sometimes see the relief when they realize that is available."

Hersh, the Biddeford man accused of assault, expressed relief when he walked out of Tripp-Maynard's office last week.

"Just to have someone on your side helps a lot," he said. "Any cutback in getting people an attorney is going to hurt."

Staff Writer Trevor Maxwell can be contacted at 791-6451 or at:

William T. Bly, Esq.

Maine OUI Lawyer