This is the fifth in an occasional series about the Hancock County judicial system.
ELLSWORTH — Robert Van Horn, a Castine native, came back to Maine after attending law school in Virginia because he wanted to start his own private practice. Criminal defense cases were part of his caseload mix. It was a focus he wasn’t necessarily expecting to like. Criminal defense is now his favorite part of the job.
Van Horn recently took up the role of scheduling in-court days for attorneys who defend clients too poor to hire private legal representation.
About a month ago, Van Horn issued his first schedule. Between 12 and 15 lawyers rotate through Hancock County’s criminal court, providing counsel in cases the judges assign them. The defendants are people the court decides are unable to pay for a lawyer themselves.
“You’re just trying to help these people,” Van Horn said, referring to clients who are a mix of repeat offenders and people who find themselves in the criminal justice system as a result of a bad choice. “It’s very rewarding and challenging.”
The right to counsel, even for people who cannot pay, was established in the United States Constitution. But until 1963, that right applied only to federal trials. That year, the Supreme Court ruled in Gideon v. Wainwright that the standard must be applied at all levels for criminal defendants.
In Maine, as in other states, people who can’t afford a lawyer are appointed one by the court. These defendants, called “indigent” in courtrooms, are provided lawyers approved by Maine’s Commission on Indigent Legal Services, a state agency.
Lawyers must apply and be approved by the commission in order to get court-appointed cases. They receive an initial training from the commission, and then must attend annual seminars.
That agency began operations in 1976, implementing a system where private attorneys could be approved for indigent defense in county courts. In Maine, like in other rural areas around the country, lawyers with private practices agree to represent indigent clients as a way to fill out their caseloads.
Other states and cities in the United States employ public defenders, installing brick and mortar offices staffed by attorneys to deal with indigent defendants. For some observers of that system, having full-time counsel to focus on these cases is important. But others are concerned that public defenders get overwhelmed.
According to John Pelletier, the Maine indigent commission’s executive director, 414 lawyers are approved to work across the state. They handle 25,000 cases each year.
Not all of those lawyers cover criminal defense. Some also assist in child protective cases or involuntary psychiatric commitment. Criminal defendants are the only group guaranteed counsel no matter what.
“My personal view is we have very little problem with caseloads because we have a lot of lawyers,” said Pelletier, referencing Maine’s system.
Van Horn said he likes the structure the way it is in Maine. Lawyers here have enough incentives to run the cases well.
“They’re never taking on more cases than they can handle,” he said. “In a lot of ways, I see it as a superior system to public defenders offices.”
Pelletier said generally speaking, court-appointed lawyers make significantly less on each case than they would for a private practice case. His office pays every attorney $60 per hour. He said he hadn’t been in private practice for a long time, but doubts any lawyers charge less than $150 per hour for a private case — and that figure can go up to about $800 per hour.
These court-appointed “lawyers are dedicated to the work,” he said. “They do yeoman’s work for very little pay.”
Van Horn said the clients can be people struggling with drugs and addiction, or sometimes people facing family and childcare issues. People struggling to make ends meet, he said. Other times, they can be people who never thought they’d be a defendant in a criminal case. People who maybe had too much to drink one night, for example.
According to U.S. Census figures, 54,419 people were living in Hancock County as of July 2016. The median household income was $50,037 — only slightly lower than the statewide figure — and the poverty level was 11 percent.
The Census also shows that less than one-third of Hancock County residents had education levels at or above a bachelor’s degree.
For Barbara Royal, an indigent defendant is someone who has no negotiating power. Royal is the executive director of Open Door Recovery Center in Ellsworth, and she runs Hills House, which provides living arrangements and treatment for mothers facing addiction.
She said for people living in poverty, challenges can stack up.
“That feeling of desperation and powerlessness is unimaginable,” Royal said. “It’s just agonizing for them … It makes them feel separated, different, isolated. It makes them feel like they don’t have rights, they’re not worthy.”
Royal questioned whether a right to counsel was really a right when a criminal defendant has no choice over their legal representation.
“It feeds into that sense of powerlessness,” she said. “Supposedly everyone has rights, but when you have no means to make a choice, then technically, on paper, you have no rights… Hopelessness is dangerous.”
One of the more painful experiences Royal has had in court, she said, was sitting beside her client during a hearing, a mother fighting to maintain custody of her young son.
The young woman had fought a drug addiction and had made extensive strides in her recovery through Open Door. The woman couldn’t afford a lawyer. Royal and her staff had tried to set up legal aid through local nonprofit programs, but none was able to provide assistance for her child custody case.
The woman was acting as her own lawyer, because it wasn’t a criminal defense case.
“That stands out in my mind because this girl tried so hard to prepare. She reached out and asked questions,” Royal said. “She ended up losing because she just didn’t have the resources available to her … it was heartbreaking.”
Last year, funding to the Maine Commission on Indigent Legal Services ran dry for a month because the Legislature failed to appropriate the $2.8 million needed by that agency. That gap had been created the year before, when legislators under-funded the agency, planning to send additional funds but not actually doing it in time.
Van Horn said criminal defendants and lawyers were not a very sympathetic group in lawmakers’ eyes.
Meanwhile, Governor Paul LePage’s office has repeatedly attempted to change the indigent legal services setup in Maine. Originally, officials from his office discussed implementing a full-on public defenders’ office. More recently, he attempted to create a structure where lawyers contracted with courts for long terms, replacing the case-by-case setup currently in place.
But unless any of those changes happen, Van Horn will keep making his list each year. On Mondays, Wednesdays and Fridays, the lawyer of the day will head to the court to meet his or her clients, and take on the case.
“I see my job as giving everybody roughly equal time in the court to get court-appointed clients,” Van Horn said.
For Royal, the main concern is that indigent defendants just have someone who gives them the attention their cases need. She thought that might make a public defenders’ office effective, she said.
“The cases are not easy cases; they require more time, resources,” she said.