by Douglas Ankney

In a class-action suit, the Kennebec Superior Court of Maine ordered commissioners of the Maine Commission on Public Defense Services (“MCPDS Defendants”) to create a plan to remedy the systemic failure to timely appoint counsel to indigent defendants. The Court also outlined its paradigm for determining habeas relief—including dismissal of charges—for qualified unrepresented indigent defendants.

After a bench trial, the Court found that “[a]s of January 9, 2025, there were approximately 739 criminal cases in Maine where no counsel had ever been provided by the MCPDS Defendants.” Further, “Of those cases, about one half of them remained without assigned counsel for more than 66 days.” Analysis of data by experts revealed that “the median time that the cases are going without counsel has increased from September 2024 to January 2025.” Another group of 252 cases were identified wherein “counsel had been assigned but later withdrew, and no new attorney had been assigned.” The median time of these cases going without counsel was also increasing over time.

Adding the two groups together, there were 991 cases without counsel as of January 9, 2025. Of the first group, there were 51 cases in which the defendant had not been assigned counsel for more than a year. Of the second group, 79 defendants had not been reassigned counsel for more than a year.

In Maine, there is an “emerging public defender system” with a goal of public defenders representing 30% of adult indigent defendants while the remaining 70% of indigent defendants are to be represented by private attorneys. The MCPDS had plans to make the ratio 50% represented by public defenders and 50% by private attorneys.

But the Court found that in these MCPDS offices, consisting of District Defenders (“DD”) supervising Assistant Defenders, the DDs handled few—and in two offices, none—of the adult indigent cases. The Court observed that if each of these DDs would take just ten cases, the number of indigent defendants currently held in custody without counsel would be cut in half.

The Court had earlier found that a Subclass of unrepresented Plaintiffs “had prevailed on the issue of liability under Count I of their the Section 1983 claim. The Court found that the Sixth Amendment requires MCPDS Defendants to provided Plaintiffs with continuous representation “from the time the right [to counsel] attaches at a defendant’s first appearance or arraignment, throughout pretrial events and proceedings, and throughout the plea-bargaining and trial processes.” In the instant order, the Court addressed the Plaintiffs’ request for a permanent injunction based on that finding.

The Court observed: “[i]n order to obtain permanent injunctive relief, Plaintiffs must succeed on the merits; and they must establish that (1) they would suffer irreparable harm if the injunction is not issued; (2) the harm to the Plaintiffs outweighs any potential harm to the Defendants; and (3) there are public interests beyond the private interests of the Plaintiffs that would be served by issuance of the injunction…Failure to demonstrate that any one of the three criteria are met requires that injunctive relief be denied.” Of the three, the most critical factor is the demonstration of harm: “[W]hen the respondent is a state government or the federal government, the balancing of equities and the public interest merge.”

The Court observed that experts for both Plaintiffs and Defendants testified that the harms suffered by Plaintiffs who must wait an indeterminate amount of time before counsel is appointed included: Inability to conduct initial investigations, participate in timely bail hearings or plea negotiations, or form a productive attorney-client relationship; lost or destroyed evidence; untimely or ill-prepared discovery motions; faded witness memories; and lost defense opportunities due to inability to comply with court-imposed timelines.

The Court found “that Plaintiffs have produced credible and compelling evidence of irreparable harm caused by the MCDPS Defendants’ failure to provide continuous representation at all critical stages of the criminal process.”

The Court also found that no harm would come upon the Defendants because, per Burr v. Department of Corrections, 240 A.3d 371 (Me. 2020), the Court would limit its injunction to only ordering the MCDPS Defendants to do that which the law required them to do. And the public interest would be served by making Maine’s criminal justice system more efficient, less burdensome, and without needless delays—thereby protecting the liberty interests of all citizens of Maine who are charged with crimes and preserving the presumption of innocence against the power of the State.

Therefore, the Court issued the following order:

“(1) The Court declares that the MCPDS Defendants are required to provide continuous representation for all Subclass Members as previously defined by the Court, and further declares that they have failed to do so in violation of the Sixth Amendment to the United States Constitution; (2) The MCPDS Defendants are ordered to create and file with the Court a written plan to remedy the ongoing violations of the Sixth Amendment for all Subclass members, whether they are in custody or in the community subject to bail conditions, and to do so by April 3, 2025; (3) The MCPDS Defendants are further ordered to prioritize and to make good faith efforts to actually provide counsel for the unrepresented, incarcerated defendants who, as of this same date, are listed on the so-called ‘without counsel’ spreadsheet, and to do so by April 3, 2025. They must also by that date advise the Court as to how successful they have been in these efforts.”

The Court further found that the Plaintiffs were “entitled to habeas relief under both the Sixth Amendment and Article I, Section 6 of the Maine Constitution for failing to provide continuous representation to indigent defendants at all stages of the criminal process.” With a “conditional writ” of habeas corpus “the state is given a window of time to cure the infirmity within which it might cure the error … If the state fails to comply with the stated conditions, the writ of habeas corpus ‘requires’ release.”

In short, the Court found that the most appropriate remedy to be provided Plaintiffs was representation. But in May of this year, the Court began hearings to determine whether to release detainees who have denied counsel for more than 14 days or charged and denied counsel for over 60 days. Maine appealed the Court’s ruling and, in June 2025, the Maine Supreme Judicial Court paused the habeas readings; the Kennebec County Superior Court heard oral arguments on the case in October 2025. The lawsuit was filed by the ACLU of Maine in March 2022.

PLN will continue to monitor this case and report any future updates. See: Robbins v. Billings, No. CV-22-054 (Me. Sup. Ct. 2025)

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