Court system plans a ‘trial blitz’ to start clearing backlog but lawyers aren’t sure it will be enough

By Judy Harrison, Bangor Daily News Staff

A “trial blitz” planned this fall in Washington County may serve as a blueprint for how Maine can resolve a huge backlog of criminal cases after the pandemic forced long delays in the dispensing of justice.

Defense attorneys and prosecutors, however, are skeptical that it will be enough to get Maine’s stalled criminal justice system moving again and accelerate the resolution of enough cases.

Maine has seen a surge in the number of pending criminal cases across the state since the pandemic forced courts to largely shut down in the early months, then slowly resume normal operations. At the same time, fewer defense lawyers are accepting court-appointed cases to defend indigent clients, and a shortage of judicial marshals means Maine courts can’t physically accommodate the numbers of trials they need to to work through the backlog.

Justice Robert Mullen, chief judge of the state’s superior courts, and another justice will spend the month of October in Machias presiding at jury and jury-waived trials in a concerted effort to resolve criminal cases. 

“If it is successful, we can try it in other courthouses,” Mullen said. “The thing that gets cases resolved is a trial date.”

Which cases will go to trial or be resolved with plea offers or dismissals will be decided next month, on Aug. 18 and 19, but it is unlikely that any of the seven homicides pending in Washington County will be tried in October. 

Matthew Foster, the district attorney for Washington and Hancock counties, was skeptical that the blitz would help the courts work through a significant number of cases. There are just 14 days in October when courts can conduct trials due to holidays and a fall administrative week when courts are closed to the public each morning, he said.

“At best the court may be able to schedule 10 or so cases for trial,” Foster said. “I think having more trial terms and jury trial days is a great idea. Unfortunately, since Washington County does not have a resident superior court justice, it gets pushed to the back of the line most often.”

It will take 300 days for criminal trials to deal with the case backlog in Machias, which includes 15 defendants in the seven homicide cases, Jeffrey Davidson, who has practiced criminal law in Machias for nearly two decades, recently estimated in a six-page memo to the court.

That means it would take 15 years to clear the backlog in Washington County if the county continues, as it has recently, to set aside five days a quarter for jury trials, unless district attorneys and police agree to dismiss non-violent misdemeanor and civil violations, Davidson estimated. 

“If they follow some of my suggestions and really put in the time and effort to try to work with both sides to get bargain basement deals done so that the less serious cases can be resolved, they could move 50 cases” on Aug. 18-19, when the courts are preparing for the trial blitz, Davidson said July 28.

The lawyer’s other suggestions include setting aside a week for judicial settlement conferences, and requiring all parties — including defendants, investigating officers and victims — to attend in person to resolve cases. Those conferences often take place over Zoom with just lawyers, judges and clerks present.

“Tough choices will have to be made,” he said in his memo. “All parties should be present and should hear directly about what is reasonable in a case given the possible defenses and the significance of the case in the scheme of the hundreds of cases which are pending. If resolution can be reached, victims and officers should be present to conclude the case that day.”

A dwindling number of attorneys taking court-appointed cases throughout the state has made it difficult to address the backlog, but the biggest obstacle to holding trials is a lack of judicial marshals, according to Mullen. 

The COVID-19 pandemic, during which judicial marshals were needed at every courthouse to screen people for virus symptoms, stressed the court system’s ability to staff courtrooms where trials were held. In addition, a lack of available part-time marshals through the temporary employment agency Manpower has stressed the system, the judge said.

“There are 98 marshal positions in the state with seven vacancies, all south of Augusta,” Mullen said. “We used to have 30 people available through Manpower. Now we have just 12.”

A marshal must be in a courtroom every time a judge is on the bench, according to Mullen. At least three are needed for jury trials, and more when cases are high-profile and members of the media and public are in the galleries. 

Holding multiple trials at a time, then, can be challenging due to the number of marshals needed.

“We are doing our best to deal with the backlog of criminal cases while trying to address civil cases as well, but it is very frustrating to be told that we can’t have a civil and criminal trial going at once in the same courthouse due to a shortage of marshals,” Mullen said.

The number of pending cases on the state’s criminal docket on May 20 was 64.4 percent higher than at the same point in 2019, according to the court system. Piscataquis and Penobscot counties saw the largest percentage jumps in the number of pending cases — 132 and 112 percent respectively — in that three-year period.

In Bangor, there were 333 felony criminal cases pending in 2019, with 986 pending in 2022 — an increase of nearly 200 percent.

Maine is the only state without public defenders for low-income clients. It instead relies on a roster of lawyers in private practice to take court-appointed cases.

But the number of lawyers willing to take those cases has declined dramatically over the past three years, with caseload numbers rising for those willing to represent indigent clients. 

As of July 26, there were 206 attorneys accepting court-appointed cases, according to the Maine Commission on Indigent Legal Services. That is about half of the 410 on its roster in May 2019, according to the commission’s executive director, Jason Andrus. 

Attorneys go on and off the roster depending on their caseloads, according to Andrus. 

The ACLU of Maine has filed a class-action lawsuit alleging that the state has failed to supervise and adequately fund a system to ensure defendants’ constitutional right to effective counsel.

The case is pending in Kennebec County.