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Investigating the Only State Without Public Defenders
Soon after receiving his license to practice law in Maine in May 2015, Jeremiah McIntosh, 36, began a new career as a small-town lawyer in the northeast corner of the state’s rural Aroostook County.
McIntosh advertised online that he had spent almost a dozen years working as a civilian employee for the Defense Department. Now, he quickly fell back into life in his hometown. He volunteered for the town planning board, helped the library register as a nonprofit and opened a rural law office in the small, close-knit community of Washburn, where fewer than 2,000 people live.
Among McIntosh’s clients were poor residents of the county who had been accused of crimes. Unique among states, Maine has no public defenders. Instead, private lawyers like McIntosh contract with the Maine Commission on Indigent Legal Services, or MCILS, to represent impoverished defendants in criminal cases and other legal matters.
The agency is supposed to screen attorneys to make sure they have enough legal and trial experience to represent their clients, especially those charged with violent felonies or complex criminal matters. Under the agency’s rules, McIntosh, as a new lawyer, lacked the required years of experience to handle dozens of cases in which he served as counsel.
In an interview, McIntosh said he felt qualified to work on the cases even though state rules said he wasn’t eligible to take them. At a certain point, McIntosh gained the appropriate amount of experience to apply to MCILS to work on more complex criminal cases, but he never did.
“If you look at the amount of trials and other experience I’ve had, then am I the most experienced up here? No. Am I brand new? No,” said McIntosh, now six years into his career. “Do I have the experience to handle these cases? Sure.”
McIntosh was one of scores of attorneys in Maine who represented clients when they did not have the training or experience required by state rules, according to an investigation by The Maine Monitor and ProPublica based on state records, court files and interviews. The news organizations identified at least 2,000 case assignments — ranging from murder cases to children charged with felonies — that had been handed off to ineligible lawyers over a period of five years.
This means more than 1 of every 8 case assignments that required specialized representation was given to an attorney who was supposed to be ineligible to serve, the analysis found. In some cases, the attorney lacked experience and could not have qualified to represent clients under state rules. In other cases, they had the necessary expertise, but they failed to apply to MCILS to represent defendants facing serious charges.
Maine’s top judges and court clerks claim they were unaware of the problem until contacted by the news organizations.
“That shouldn’t have happened. Period,” said Superior Court Chief Justice Robert Mullen, who oversees Maine’s trial courts.
No single person or agency is responsible for enforcing Maine’s court appointment rules. MCILS, judges, clerks and individual lawyers all play a role in making sure that a private attorney has met the requirements before representing a defendant.
To work on serious cases, such as drunk driving or domestic violence, an attorney must have at least a year of legal experience and have represented people in two trials and hearings. As the severity of the crime climbs, lawyers need additional trials and experience. The executive director can grant waivers for either requirement.
MCILS’s standards for attorney qualifications are “too lenient” and lack “appropriate supervision,” according to a 2019 report by public defense experts commissioned by the state legislature. Any lawyer with two years of experience and a handful of trials is eligible to try every case type except sex offenses and murders. Yet lawyers are falling short of even these minimal standards.
Court clerks are often the ones tasked with assigning an attorney to a case, but they must rely on MCILS’s lists of qualified attorneys, which do not always offer enough information to determine whether an attorney is eligible to represent a specific case or charge, state officials said.
Over five years, clerks made 15,700 assignments for cases where the charges were serious enough to merit a lawyer with elevated experience and training under MCILS rules, The Maine Monitor and ProPublica found. Elizabeth Maddaus, the statewide director of clerks of courts, had clerks review some of the 2,000 assignments to ineligible lawyers, which were provided to her by the news organizations. Many of the appointed attorneys fell short of the agency’s standards.
After the review, Maddaus said that her office would implement reforms to require eligibility verification, add more training and instruct judges to note any special arrangements when assigning attorneys to cases. But, she said, she didn’t see widespread problems in the system.
“As always, we could do better,” Maddaus said.
The effect of assigning ineligible lawyers to cases is unclear. A review of Maine’s Supreme Court decisions did not find any cases that were overturned as a result of ineffective representation by an attorney who didn’t have the proper MCILS credentials. There were also no public disciplinary sanctions of attorneys who accepted court appointments that they were unqualified for.
MCILS officials intervened in few of the incorrect assignments in the past 10 years, even though they received automatic alerts whenever an ineligible attorney received a case, according to one agency employee.
Lynne Nash, one of four employees in the small agency, repeatedly tried to alert her bosses to the problem, according to interviews and emails reviewed by The Maine Monitor and ProPublica. Nash said that she questioned John Pelletier, who was then the head of the agency, and his deputy, Eleanor Maciag, about better enforcement of attorney assignments. The three employees argued about whether Pelletier or the lawyers were to blame for letting the incorrect assignments go forward, she said.
Pelletier resigned last year after an investigation by The Maine Monitor and ProPublica found that he had hired attorneys with criminal convictions and histories of professional misconduct to represent the state’s poorest clients. Neither he nor Maciag, who remains in her role as deputy director, responded to requests for comment.
“If we have an attorney out there that’s taking a serious violent felony case and they’re not eligible — that’s poor representation, in my world,” Nash said. “That’s just wrong. We have very few rules or policies that exist within this agency. If there’s one that should really be abided by, I would think that would be one at the top.”
Maine lawyers risk having clients sentenced to more jail time and causing a loss of public trust in the criminal justice system when the state does not enforce standards for attorney qualifications, said Ernie Lewis, the former Kentucky public advocate who oversaw that state’s public defender system and past director of the National Association for Public Defense.
“Simply adopting standards or adopting qualifications without some enforcement mechanism is pretty worthless, really,” Lewis said.
Josh Tardy, who chairs the commission that oversees MCILS, said that attorneys could be qualified to handle a case even if they didn’t appear on MCILS’s list of eligible attorneys. Some of the 2,000 case assignments may have gone to attorneys with sufficient experience and knowledge, but who were ineligible simply because they had not submitted the correct paperwork. Some lawyers identified by the news organizations were “more than qualified,” while others could be “very problematic,” Tardy said.
Still, said Tardy, the public defense agency needed to do a better job.
“I find it unacceptable that we have these rules and that we haven’t as a commission addressed that they haven’t been enforced,” Tardy said. “We just can’t accept that if we don’t like a rule on the book, we’re just going to look the other way and not enforce it. We have to figure out a way that our rules are enforceable and that they mean something.”
Several defendants represented by such attorneys said they felt the state was wrong to have assigned them a lawyer who may not have been equipped to handle their case.
David Crandall was arrested in 2015 on felony drug trafficking charges. McIntosh represented him in the case, which resulted in a three-year prison sentence. Before Crandall could begin serving the sentence, he was arrested again in February 2016 for allegedly operating a methamphetamine lab in Ludlow, Maine. Three people told agents with the Maine Drug Enforcement Agency that he had visited a home and shaken a bottle they had used to make meth. They were all arrested.
A court clerk in Aroostook County again assigned McIntosh to defend Crandall. Now, however, prosecutors were seeking a 12-year prison sentence, Crandall said.
The two men met a few times in a small conference room in the Houlton courthouse. “I want to take this to jury trial,” Crandall said he told McIntosh. But McIntosh, he recalled, told him he didn’t stand much chance of winning, assuming any of the three witnesses testified against him.
McIntosh declined to comment on the specifics of the conversation, citing attorney-client privilege. A review of state records showed no disciplinary actions against McIntosh.
Deflated, Crandall decided that fighting the charges would be futile. In October 2016, the father of two pleaded guilty in exchange for a half sentence, six years, of which he would serve three years in prison for his prior conviction. Crandall believes the state failed in its duties by providing him a lawyer with too little experience.
In August, police reported finding meth on Crandall and charged him with violating his probation. His case is pending.
“A judge will tell you: A client who represents himself has a fool for a lawyer,” Crandall said. “They pick their fool, and put your life in their hands.”
McIntosh began accepting court appointments in July 2015. By early 2016, he was being assigned one or more violent felony cases almost every month by the courts in northern Maine, records show. These cases should have been restricted to attorneys with much more experience than he had, and McIntosh never applied to be allowed to represent clients facing such charges.
At least 23% of the attorneys flagged by the news organizations’ analysis did not have the minimum years of legal experience necessary to defend against the charges in at least one of the cases they were assigned.
McIntosh explained that the reason he hadn’t applied to be able to accept such cases was that he saw himself as a backup option. If no other attorney was available to defend a client, McIntosh was willing to do the job.
McIntosh said he was never afraid to pick up a phone to seek advice from a more experienced lawyer or request co-counsel from MCILS.
“I personally didn’t want to be priority for those cases,” McIntosh said. “That was my thought: ‘Hey, if someone else wants them, let them have it.’ If you can’t find any help, then you can let me know.”
McIntosh said he assumed the clerks had run through the list of eligible attorneys before turning to him. In five years, McIntosh was assigned at least 900 cases, including dozens that he was ineligible to work on.
With more cases came more money. McIntosh soon became one of the highest paid public defense attorneys in Maine, records show.
McIntosh’s law office billed over $200,000 in fiscal year 2018, according to records obtained as a result of a lawsuit against the state filed by The Maine Monitor and ProPublica.
The money raised red flags. In 2018, former executive director Pelletier opened an investigation into the state’s highest paid defense attorneys. One of the attorneys self-reported overbilling $35,000 in response to Pelletier’s inquiry, according to a government investigation into MCILS’s finances published in November. The attorney was not identified, but interviews with sources and records reviewed by a reporter indicate McIntosh was the attorney in question.
McIntosh partially responded to questions about his representation, but he declined to answer questions about his billing and did not respond to follow-up emails from a reporter.
“That’s Not Up to Us”
A decade ago, when Maine overhauled its public defense system and opened MCILS, attorney Ron Schneider helped write the rules for vetting lawyers and helped create a set of specialized panels from which experienced lawyers would be appointed to difficult cases.
The goal was to make sure that only qualified and capable lawyers were assigned to complex cases where the risk of jail time was high, said Schneider, who served as the first chairman of the commission that oversees MCILS.
Under the rules, attorneys must have a license to practice law and attend a one-day commission-approved training course before they can accept misdemeanor and some felony cases. To serve as counsel on more serious cases, lawyers need additional classes and to show additional experience. Once approved by MCILS, attorneys are placed on the specialized panel. Each month, the agency sends lists of the eligible attorneys on each panel to the courthouses so clerks can base assignments for indigent defendants on them.
That’s how the system is supposed to work. But MCILS’s four employees were unable to keep pace with the assignments to verify whether all attorneys had applied or were qualified for the appointments the courts assigned them, Schneider said.
“We don’t have the resources to make sure that the lawyers assigned are the most qualified lawyers,” said Schneider, who was appointed again as a commissioner in 2019.
Delays implementing the panels and unclear instructions created a patchwork system in each courthouse.
In Aroostook County, clerks and judges appoint attorneys that defendants have worked with in the past or request by name, said Diane Glidden, a clerk in the superior court. The clerks will check the commission’s list, but the instructions were often unclear. For instance, MCILS lists attorneys cleared to represent “serious violent felonies” but does not spell out which crimes fall within that category.
As a result, clerks leave it up to attorneys to decide whether they are qualified enough to handle a case.
“We wouldn’t make a determination of what is a serious and violent felony compared to what’s not. That’s not up to us to do that,” Glidden said. “When we ask an attorney to take a case, we explain to that attorney what the charges are, and then they are the ones to let us know whether or not they can take the case.”
Maddaus, the statewide director of the clerks of courts, acknowledged that clerks had made mistakes when assigning attorneys to cases in the past. But she also found cases that were exceptions to the rules, where attorneys were allowed to practice without being listed as members of the specialized panels.
For instance, some attorneys worked under the mentorship of more experienced attorneys, which allowed them to work on complex cases that were beyond their level of experience. In other cases, judges asked attorneys who had not applied to MCILS to represent an indigent defendant. Sometimes, attorneys were appointed to represent a defendant despite a lack of training or experience in order to preserve an existing legal relationship.
Private attorneys who were not on the specialized panels said they were sometimes unaware that they were violating eligibility rules.
Christopher Berryment runs a small law firm in Mexico, Maine. For years, courts assigned him to represent children facing felony charges in juvenile court or adults in violent felony and sex offense cases, despite his lack of eligibility for such cases. Sometimes he sought permission from the MCILS director to work on cases he should have been ineligible for. Other times he did not.
Berryment, who is now eligible to represent those facing serious violent felony charges, said he knew lawyers needed to apply to be on the specialty panels. He believed he was qualified for the cases even though he hadn’t applied. When asked if he wanted the cases, he claimed he hadn’t thought it through.
“I hate to lawyer the question, but define the word ‘want,'” Berryment said. “I’m willing to do them. I’m also not necessarily wanting to be first priority on it, or whatever.”
Brian Lamper was arrested for felony aggravated assault and domestic violence in November 2018. The courts assigned Berryment as his attorney even though, at that point, he wasn’t on MCILS’s serious violent felony panel.
On the day Lamper appeared in court, he watched other attorneys go back and forth between the judge’s chamber and their clients to negotiate lesser sentences and reach deals, he said. But Berryment refused to go back for another offer, Lamper said.
“My lawyer wouldn’t do that. He came out and was like, ‘This is it. This is what we’re doing. We’re moving forward,'” Lamper said. “I said, ‘Chris, I have a sick mother, I have a lot of problems outside of here and I need to get out of here as soon as possible.’ And he told me straight up, ‘The fastest way out of here, Brian: Cop a deal.'”
The men barely spoke, and by the end of the day, Lamper had pleaded guilty to the three domestic violence charges in exchange for prosecutors dropping the violent felony. He was sentenced to three years and ordered to serve six months in jail.
But Lamper said he felt that Berryment could have negotiated a better plea deal with prosecutors. Berryment billed MCILS for less than 13 hours of work on Lamper’s case, records show.
Maine attorney Stephen Schwartz responded to a written list of questions on Berryment’s behalf about his representation of Lamper. Schwartz said Berryment met the criteria set by MCILS when he represented Lamper “whether or not he was rostered for the particular matter,” and that Berryment achieved a “good disposition in a serious, difficult case.” Schwartz referenced two cases where Berryment had achieved an acquittal at trial for one client and had a guilty verdict vacated by the state supreme court for another.
A review of state records showed no disciplinary actions against Berryment.
“He has stepped up to help the bench and bar in accepting matters helping indigent people in a system that due to lack of funding has difficulty delivering constitutionally mandated criminal defense to indigent accused,” Schwartz wrote on Berryment’s behalf.
It is the responsibility of the state to ensure the poor are being appointed qualified lawyers, said Jonathan Rapping, president of the criminal justice reform nonprofit Gideon’s Promise, which was named after the landmark U.S. Supreme Court case, Gideon v. Wainwright, that guaranteed the poor the right to be appointed counsel by the states nearly 60 years ago.
States often fall short of holding lawyers and themselves responsible for that goal, Rapping said.
“They do a terrible job and no one holds them accountable. I absolutely think there has to be accountability, but the accountability isn’t just for the lawyer doing the representation, it’s got to be for the very government that is approving the people who do it,” Rapping said.
Some states that use private attorneys have far more rigorous systems in place to check attorney qualifications.
In Massachusetts, considered by many experts to be a gold standard for the training of court-appointed counsel, a lawyer needs to be approved by the local bar advocate program and pass a seven-day training course to work on similar cases in district court. Their qualifications are then reviewed again during a performance evaluation within 12 to 24 months. Applicants must have worked on at least six jury trials to represent clients in superior court and have handled at least 10 serious and complex cases to join the state’s list of attorneys eligible to defend murder cases. Applicants are vetted by a panel of experienced criminal lawyers before the state certifies them, according to the state’s defense agency, the Committee for Public Counsel Services.
Massachusetts’ billing system also automatically rejects assignments made to ineligible attorneys, and rejected assignments are reviewed by the director of the criminal trial support unit to verify if the case needs to be reassigned.
In September, MCILS agreed to pay more than $92,000 to develop a new five-day minimum standards training course for Maine lawyers to cover “the basics of ethical, constitutionally-competent lawyering.”
There is currently no time frame for implementing it.
A Problem in Plain Sight
At a meeting in April 2020, commissioners wanted to know whether ineligible attorneys were routinely defending clients. Pelletier assured them it was not the norm. The former director estimated he was finding one to two cases a month.
In reality, the figure was closer to 30 to 35 case assignments per month, according to the analysis by The Maine Monitor and ProPublica.
But the full extent of Pelletier’s misleading remarks was not revealed until after his resignation in December. Later that month, his deputy, Maciag, announced at a public hearing that some of the eligibility rules were not being enforced at all. By then, The Maine Monitor and ProPublica had been asking about the thousands of cases where attorneys lacked the experience and training needed to represent clients.
Maciag blamed Pelletier, who had spent a decade in charge.
“Over the years, the previous executive director didn’t always make folks withdraw from cases that they weren’t eligible for,” Maciag said. “Roster eligibility has not routinely been strictly enforced.”
In mid-January, Justin Andrus took charge as interim director of MCILS. Andrus has vowed to improve the system. He is creating a qualified roster of attorneys for child abuse cases, which Pelletier had never implemented.
Yet problems persist. A backlog of nearly 50 cases assigned to ineligible attorneys before Andrus joined the agency is awaiting his approval. He has already identified another four cases where he intends to ask lawyers to withdraw because they lack the required qualifications.
In his first weeks on the job, Andrus also approved an application by Pelletier, who opened a law practice after resigning. Pelletier will be allowed to work on all adult and juvenile criminal cases, even though he has not completed the required number of jury trials during the past decade he spent as the head of MCILS.
“I would not approve an application for a person that I didn’t think was competent and qualified,” Andrus said of Pelletier.
At the time of publication, commissioners and clerks had taken no steps to contact past defendants who were assigned attorneys that may not have been qualified.
The lack of action has worried defenders of civil rights.
The local chapter of the ACLU has considered for more than a year taking legal action to secure court-ordered changes to Maine’s public defense system. The news that defendants were improperly assigned lawyers was both “tremendously concerning and yet not at all surprising,” said Zach Heiden, legal counsel of the state chapter.
There exists a “severe and unacceptable risk of denial of the right to counsel” in Maine, Heiden said.
“This isn’t some outsider saying this lawyer wasn’t good, or this lawyer wasn’t qualified. This is the state’s own standards that the state is going on to ignore,” Heiden said. “But on the other hand, given the structure — structure seems like an overstatement — how could the state expect anything else?”
To analyze the eligibility of attorneys handling serious cases, The Maine Monitor and ProPublica obtained billing and case data from the Maine Commission on Indigent Legal Services, or MCILS. The news organizations initially submitted a public records request for the data in January 2020, but the agency denied the request. The news organizations then filed an appeal in February and entered into mediation with the state.
After six months of negotiations, the state agreed to release a portion of the data for $5,333. We then used this data to find individual case assignments based on the assigned attorney, case assignment date and docket number.
The agency has special eligibility requirements for its most serious cases, including homicides, sex offenses, serious violent felonies, domestic violence, drunk driving and juvenile felonies. Once an attorney is approved for these cases, MCILS places them on a “specialized panel” and distributes lists of qualified attorneys to each court. We compiled thousands of these lists dating back to 2011. The lawyers on each list vary each month, so we combined the information into a single database for analysis.
We matched this database with about 15,700 case assignments, derived from the billing data, that required a specialized panel attorney between 2015 and 2019. The state redacted the assignment date for some specialized panel cases such as those involving protective custody because it deemed them as confidential. These cases weren’t included in the analysis. To find the case assignments that went to ineligible attorneys, we compared the assignment date to the earliest date that an attorney appeared on a list in any court in the state. This controlled for instances in which an attorney was properly rostered in a different court than the one where he or she was assigned the case, and for circumstances in which an attorney was taken off a list for a period of time. Furthermore, we counted an attorney as being eligible if the person was added to a MCILS list for that case type up to 30 days after the assignment date, and we excluded cases in which two attorneys were assigned the case on the same day and at least one of them was eligible. In some instances, ineligible attorneys had a “mentor” or eligible attorney working alongside them. However, this was not consistently tracked by the courts or MCILS, and the agency’s database didn’t allow us to track these types of arrangements.
This gave us our list of 2,000 assignments in which attorneys were ineligible for their cases, which translates to more than 1 in every 8 assignments with specialized panel requirements. We then reviewed the bar admittance dates listed on the Maine Board of Overseers of the Bar website for these attorneys and compared that to the case assignment date to determine how many attorneys did not have enough years of professional experience to qualify for those case types. This analysis showed that at least 23% of the 300 attorneys who handled cases they were ineligible for didn’t have the required years of experience for at least one of their case assignments.