On June 25 in Caribou, Judge Stephen Nelson faced a constitutional dilemma. Prosecutors had charged a defendant with aggravated drug trafficking, furnishing and possession nearly three weeks prior, but he still didn’t have an attorney.

“The court finds that there has been a violation of his constitutional rights to counsel,” Nelson said. “It’s been an unreasonable period of time. This is a very serious case.”

Noting the defendant did not have a significant criminal history, the judge lowered his bail to $5,000 with a series of conditions. As of July 3, the defendant was still in custody.

The proceedings unfolded shortly after a similar dilemma in Lewiston led to a tragedy.

On June 15, days after Lewiston District Court Judge Sarah Churchill lowered Leein Hinkley’s bail and allowed his release from jail because he didn’t have a lawyer, Hinkley went to the Auburn home of a former girlfriend, violating his conditions of release, and started a fire that took a man’s life and destroyed several houses. Hinkley was ultimately killed in a police shootout.

The response was impassioned and swift, with police and the governor issuing harsh criticism of the judge’s decision, and colleagues in the judicial system coming to her defense, pointing to the state’s ongoing shortage of defense lawyers as the root of the issue.

As of July 3, more than 650 people charged with crimes in Maine were unable to afford a lawyer and waiting for the state to provide one, according to a Monitor analysis of court data. At least 150 were in custody, languishing in jail while presumed innocent and waiting for the legal counsel guaranteed by the Sixth Amendment of the U.S. Constitution.

Once a week, the defendants in custody without an attorney are brought before a judge, often by Zoom from a county jail, for a check-in called a seven-day review, which the chiefs of the trial courts instituted in November. Some have appeared at these hearings week after week, and a few have attended for months, only to be told that no attorney is available.

At these hearings, judges decide when a delay in the assignment of counsel becomes a denial — and a constitutional violation. Case law provides some guidance but no clear rules, forcing judges to interpret when Maine is violating the constitutional rights of defendants, and if so, whether to do anything about it.

“(The Supreme Court) has not set a bright-line rule in terms of the amount of time that can elapse beyond which charges must be dismissed. If they had, then Maine courts would have a fairly straightforward benchmark to apply,” Jonathan Chapman, a former federal prosecutor and professor at the University of Maine School of Law, wrote in an email. “As it is, the courts are left to struggle with this issue in individual cases.”

Judges have a few options: They can decide that the defendant’s Sixth Amendment right to counsel has not been violated. They can rule that a defendant’s right to counsel has been violated and they are owed a remedy, typically a reduction in bail that allows them to leave jail with conditions. Or they can rule that although a defendant’s rights were violated, it’s more important for public safety to keep them locked up. In those instances, the violation goes unremedied.

The state is not tracking Sixth Amendment violations, and courts have different policies for how proceedings can be observed, making it difficult to track cases. (Some courts broadcast proceedings on Zoom while others, like Bangor District Court, only allow in-person viewing. One court asked that a reporter send a fax to request the Zoom link.) A spokesperson for the state courts said judges were not able to discuss legal opinions with the press.

The Monitor has identified 10 cases in Androscoggin and Aroostook counties where judges found Sixth Amendment violations, and there are likely more. Some are memorialized in written opinions, while others are denoted only by a check mark on a paper form.

For judges, prosecutors and defendants, it’s all uncharted legal territory.

Jurisprudence evolving daily

The state’s indigent legal defense system, in crisis for some time, has worsened considerably this year, with the number of cases without an attorney jumping from 250 in early January to nearly 850 this month.

A lawsuit filed on behalf of defendants by the Maine ACLU in 2022 is set to go to trial in the fall.

In an effort to stop the bleeding, the state has begun building public defender’s offices, opening the first late last year in Augusta — making it the last state to introduce such a system.

As other states face similar constitutional questions amid attorney shortages, courts have produced legal decisions that could impact Maine. In May, a Ninth Circuit Court decision upheld an Oregon judge’s ruling that most defendants not given an attorney within seven days of being taken into custody must be released while their case is handled, subject to conditions from the court.

In the majority opinion, Obama-appointed Circuit Judge John Owens compared Oregon’s indigent defense crisis to “some autocratic regime in the Soviet bloc” for its violation of defendant rights. In a dissent, Trump appointee Judge Patrick Bumatay called the majority opinion a “jailbreak solution” that sets precedent “ablaze.”

Maine has a long-running “lawyer of the day” system that assigns one or two attorneys to represent all the defendants at the initial 48-hour hearing for in-custody defendants at a specific court. The seven-day reviews are typically folded into these hearings. Lawyers of the day often get just a few minutes with each defendant that day, and once they leave the court the relationship is severed.

A state-commissioned 2019 report by the nonprofit Sixth Amendment Center on Maine’s indigent defense system found the “lawyer of the day” system “primarily serves the need to move court dockets, while resulting in a lack of continuous representation to the detriment of defendants.”

Lawyers of the day, who frequently argue for Sixth Amendment violations when a client is in custody without an attorney, have started to cite the Ninth Circuit’s decision, arguing that the “lawyer of the day” is not the same as having a dedicated attorney.

“The Oregon decision basically said that the Sixth Amendment rights are not a ‘Jack in the Box’ style right that appear periodically in certain types of hearings,” Neil Prendergrast argued in Caribou Superior Court on June 24, when he was serving as lawyer of the day.

But Maine isn’t in the Ninth Circuit, and the state has little precedent, so individual judges must define constitutional violations and remedies.

“Jurisprudence in this area is evolving sort of daily as cases are coming before the court,” Lewiston District Court Judge Susan Oram said June 21 during a seven-day review.

Oram ruled that a defendant who had been in custody since June 5, charged with domestic violence assault and violating conditions of release, had not yet had his right to counsel violated. His bail remained at $1,000, which he could not pay.

Attorney Mitchel Roberge often serves as the lawyer of the day at the Lewiston District Court. He told The Monitor that some judges seem to see a remedy for constitutional violations as providing “something for nothing,” noting there are cases in which the defendant would likely never get their bail reduced if they had an attorney argue for them.

Many cases without attorneys involve domestic violence, making the calculations complicated, Roberge said.

“There’s a real risk to this alleged victim if we let him out, but (the defendant’s) rights are being violated. So what do we do with that? Nobody has an answer.”

One judge’s decision

On June 12, Churchill ruled that Hinkley, who was charged with felony domestic violence aggravated assault and had gone without a lawyer since May 24, had his right to counsel violated.

As a remedy, Churchill lowered his bail to $1,500 with a series of conditions, over the objections of prosecutors. Hinkley had an extensive criminal record, including prison time for stabbing the mother of his child with a knife in a car while the child was in the backseat, then stabbing a man who rushed to the woman’s aid.

After the Auburn shootout that followed his release, criticism of Churchill’s decision quickly followed. The Maine Fraternal Order of Police issued a statement pinning responsibility for the two lives lost “squarely on Judge Sarah Churchill.”

Gov. Janet Mills said she “strongly disagreed” with Churchill’s decision, but acknowledged “there are simply not enough rostered attorneys with the Maine Commission on Public Defense Services — a larger systemic issue that also contributed to this tragic situation.”

Even the National Fraternal Order of Police shared criticism of Churchill, calling for voters to “remember Judge Churchill at the ballot box,” seemingly unaware that Maine district court judges are appointed, not elected.

The court and the indigent defense world responded as well, supporting Churchill and arguing for more concern for constitutional rights.

“Our courts cannot hold an unrepresented defendant in jail for an indeterminate period of time,” Maine Supreme Judicial Court Justice Valerie Stanfill said in a statement. “Unless and until we have enough defense attorneys available to represent accused people, our system will continue to malfunction.”

Jim Billings, executive director of the Maine Commission on Public Defense Services (previously the Maine Commission on Indigent Legal Services, or MCILS), responded in a letter to Mike Edes, the Fraternal Order of Police executive director, noting that the order’s mission statement includes a pledge to “support and defend the constitution of the United States.”

“In times of tragedy, it is tempting to sacrifice these protections as luxuries we can ill afford instead of understanding that they are protections that safeguard us all,” Billings wrote.

Some, like former MCILS member Robert Cummins, who resigned his position in protest in 2022, were more blunt in their criticism.

“We have a right to provide competent counsel. Is that happening in Maine? It isn’t and it’s shocking,” said Cummins. If a case results in a Sixth Amendment violation, he said, then the judge should dismiss it.

Fair procedures

Churchill, a former criminal defense attorney and MCILS member, didn’t write a decision explaining her reasoning in the Hinkley case. But the day after she lowered his bail, she wrote a 28-page order dismissing charges against a different defendant that offers some insight into her thinking, outlining the tension between defendants’ rights and public safety.

The order dismissed charges against a defendant who spent 105 days in jail without an attorney. The charges — including assault and violating conditions of release — stemmed from an incident in which he “smashed” his girlfriend’s foot with a dog bowl, according to court records.

After concluding the defendant’s right to counsel had been violated, Churchill considered what the proper remedy should be, acknowledging she had to weigh two competing interests: public safety and “seeing that justice is done through fundamentally fair procedures.”

The prosecution suggested a fair remedy would be to lower bail. Churchill acknowledged that’s appropriate in many cases, but wouldn’t mitigate the harm caused by 105 days in custody.

“The prolonged absence of counsel compromises his ability to prepare a defense, gather evidence and develop legal strategies,” she wrote. “There is no reduction of cash bail or lifting of bail conditions the Court could do that would compensate for the lost time.”

She concluded the only appropriate remedy was to dismiss the charges without prejudice, meaning prosecutors could bring them again.

“The remedy chosen by the Court is a serious one and not chosen lightly, but any less significant of a remedy would trivialize the very right the Court seeks to protect,” Churchill wrote. “The right to counsel is not trivial and a serious remedy is necessary so that the Sixth Amendment does not become a platitude to be theoretically applied in the halls of academia but never to darken the doorstep of a courtroom.”

Separation of powers

In her statement, Mills said Churchill should have assigned an attorney to Hinkley’s case, regardless of whether they were on the Maine Commission on Public Defense Services roster.

“There is nothing to prohibit the court from appointing counsel for defendants themselves when the commission appears unable to provide a lawyer,” Mills said. “I strongly believe that the courts have the inherent right, and, in fact, the responsibility — backed by decades of precedent — to appoint counsel in such circumstances.”

But the current system isn’t decades old. It dates to 2009, when the legislature created the commission, which contracts private attorneys to represent criminal defendants who cannot afford counsel. Prior to that, the courts administered the system.

In the June 13 order, written before Mills made her comments, Churchill concluded she could not legally assign counsel: “The court finds that it does not have the authority to appoint an attorney who is not on the MCPDS roster in this court and for this case type.”

The law states that MCPDS must designate counsel as “eligible to receive assignments,” Churchill wrote. She explained that because MCPDS was created by the legislature, a judge taking over its function would violate the separation of powers enshrined in state law.

“The court would not deign to direct the district attorney as to which member of their office should handle any given matter due to the obvious conflict and usurpation of the authority of a separate branch of government,” Churchill wrote. “Therefore, the Court will not, in this matter or any other, deign to do the same to the defense function.”

On June 21, Billings of MCPDS wrote Attorney General Aaron Frey, seeking an advisory opinion.

“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 (Lawyer of the Day) lawyers who may fear being appointed on cases for just showing up to do (Lawyer of the Day) work,” Billings wrote.

Billings said Frey had not responded, and the attorney general’s office did not respond to questions from The Monitor by press time.

‘It was an insane day’

Hinkley was just one of the 11 defendants without an attorney Churchill saw during the seven-day review hearing on June 12, according to a Monitor analysis of court records.

Churchill used all three options available to her that day when considering Sixth Amendment violations and their consequences. There were cases where she found no violation; cases where she found one and offered a remedy; and cases where she found one but determined the public safety risk to be too high.

“It was an insane day,” said Roberge, who was one of the lawyers of the day.

One defendant had been indicted on April 9 on possession of child pornography and was taken into custody on April 26. On May 28, after more than a month in Androscoggin County Jail, Judge Katherine Tierney ruled the defendant’s right to counsel had been violated but declined to lower his bail conditions.

Then, on June 12, the defendant appeared before Churchill. Court records show she reduced his $10,000 bail to personal recognizance, allowing him to leave jail while his case progressed on the condition he not make contact with anyone under age 18, have no access to the internet or online devices, and submit to random searches.

Another case she saw that day involved a man with a history of domestic violence who was arrested June 3 on an assault charge but did not have an attorney as of June 12. Churchill ruled his right to counsel had not yet been violated. Bail was set at $5,000.

In another case, a defendant faced four domestic violence aggravated assault charges. Police said the man used a knife to stab the bottom of the bed his girlfriend was sitting in, believing another man was under the covers with her, and stabbed her in the leg. The man had been in custody since June 5 without an attorney and had a history of domestic violence.

Churchill found his right to counsel had been violated, yet did not reduce his bail from $20,000, finding the “defendant’s right to counsel does not outweigh competing state interests, including society’s interest in the administration of criminal justice,” according to a box checked in his case file.

High hopes

While many defendants wait in jail for lawyers, more are out on bail while waiting. Meanwhile, months pass and no lawyer is conducting an investigation on their behalf, or talking with prosecutors to reach a plea deal.

In Bangor on July 3, Superior Court Justice Ann Murray told a defendant out on bail on assault charges she did not have a lawyer for him.

“I don’t have an attorney to appoint to you,” Murray said, before telling him the situation was unlikely to change before his next court appearance, on September 10.

Murray told the man she hoped the new public defender’s office scheduled to open soon in Bangor could help resolve the crisis.

“I am holding out high hopes for it,” she said. “I hope they’re not dashed.”

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This story was originally published by The Maine Monitor and distributed through a partnership with The Associated Press.