This story was originally published by ProPublica. It was produced in partnership with Samantha Hogan’s Report for America host newsroom, The Maine Monitor, which is also a member of the ProPublica Local Reporting Network. ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive its biggest stories as soon as they’re published.
This story contains graphic descriptions of sexual assault and child abuse.
The temperature hovered just above freezing as Officer Zachary Harmon drove his patrol car down the Route 1 bypass close to Maine’s border with New Hampshire. It was right after midnight on Feb. 25, 2012. A mix of snow and rain had fallen throughout the night, leaving the blacktop slick. Out of the dark ahead, Harmon saw a pair of headlights headed directly at him.
Harmon cranked up his siren and flashed the cruiser’s red and blue lights. The oncoming car was driving in the wrong lane, forcing him to veer off the road. Swinging his patrol car around, he pulled in front of the vehicle, bringing it to a stop. After a flustered search the driver handed a passport to Harmon. Dispatch confirmed she was out on bail for drunken driving, police records show, so Harmon asked her to step out of the car. In fast and slurred words, Suzanne Dwyer-Jones made one thing clear: She was a lawyer.
A death and divorce had rattled the defense attorney. A year of rambling voice messages, missed work and an arrest for allegedly attempting to sell prescription drugs had left the people around Dwyer-Jones worried, according to disciplinary records from the state agency charged with overseeing attorney conduct. Now, Harmon watched her irises shaking involuntarily, a sign of intoxication. For the fourth time in 14 months, Dwyer-Jones was arrested for driving under the influence. She would plead guilty to misdemeanor “reckless conduct.” At a disciplinary hearing a year later, a judge ruled that her alcoholism and mental health posed a “substantial threat of irreparable harm to the public” and suspended Dwyer-Jones from practicing law for a year.
Dwyer-Jones appeared again in Maine’s courts two years later. But this time, it was not for any alleged crime. She had secured a job as an attorney for Maine’s Commission on Indigent Legal Services, or MCILS, the agency responsible for defending the state’s most impoverished people.
Dwyer-Jones had been given another chance. But her erratic behavior would lead to trouble again, this time for one of her clients, according to commission records and interviews.
“When we asked for her to be our lawyer, we did really feel like she was going to do an awesome job. She had us convinced,” said Carrolyn Lane, who blames Dwyer-Jones for letting her father spend time in jail unnecessarily. Dwyer-Jones skipped court hearings and sent bizarre, confusing texts to excuse her absence, according to Lane’s family and court records.
Dwyer-Jones’ role as criminal and counsel was not unique in Maine’s system for defending the poor, a joint investigation by The Maine Monitor and ProPublica found.
In the past 10 years, the commission has repeatedly hired attorneys and staff members with criminal backgrounds to represent the state’s poorest defendants, according to interviews and records from the police, courts, MCILS and the state’s disciplinary agency for attorneys. One lawyer is a registered sex offender, convicted of possessing child pornography. Another was found to have exposed himself to a client. A staffer convicted of felony theft now reviews defendants’ finances to determine whether they will receive a state-funded attorney.
Attorneys hired by the commission have been disproportionately disciplined for professional misconduct. Commission lawyers made up about 15% of the practicing attorneys in Maine, but they were 26% of the lawyers disbarred, suspended or reprimanded in the past decade, according to an analysis of data by ProPublica and The Maine Monitor.
Maine is the only state in the country with no public defender system. Instead, legal services for the poor are left to hundreds of private attorneys contracted by a state office that has too little staff or money to supervise them, the investigation found.
Responsibility for the hires rests with one man: John Pelletier, the Harvard-educated lawyer who helped to design the commission and has served as its executive director since its inception in 2010.
Under Pelletier’s leadership, the commission has repeatedly come under fire in recent years. A report by a national criminal justice reform organization found that the commission had failed to live up to its responsibilities to provide effective legal assistance. The local branch of the American Civil Liberties Union has threatened to sue over the treatment of defendants. A Maine Monitor investigation last year showed that attorneys were overbilling the commission, including some whose earnings would have required them to work more than 80 hours every week. The findings prompted the state’s watchdog agency to open a formal investigation into the commission’s finances in December 2019. Results of the investigation were not ready for lawmakers before the Legislature adjourned in March due to the coronavirus.
New evidence shows that the commission’s troubles run even deeper. A review of thousands of pages of court records, over a hundred professional disciplinary decisions, a data analysis and three dozen interviews indicate that Pelletier frequently failed to oversee the conduct of his attorneys. In the past decade, he has taken only five lawyers off his rolls, even as the state sanctioned dozens of lawyers who work for him.
This year, during legislative hearings and meetings to reform the system, Pelletier overstated his efforts to rein in high-billing attorneys and failed to inform commission members or lawmakers of a crucial deadline necessary to pass legislation.
Pelletier declined multiple requests to be interviewed for this article and did not respond to a detailed list of questions on his hiring decisions and management of MCILS.
Josh Tardy, a former Republican lawmaker, was appointed chairman of the commission in 2019 with the mission of improving its performance and addressing the newly uncovered problems.
He acknowledged that the present methods of monitoring and evaluating the private attorneys contracted by the commission are “inadequate.” He said the commission’s board, which is appointed by the governor, is exploring ways to be more active in discipline. He declined to comment on Pelletier’s hiring decisions or performance as executive director.
“Many of the attorneys on the roster are some of the best attorneys in Maine,” said Tardy, a lobbyist and attorney. “Overall, there could be improvements made.”
After being informed of the findings by The Maine Monitor and ProPublica three weeks ago, the commission on Friday introduced a long-delayed proposal to change the hiring and firing of attorneys who appear on the state’s roster to defend indigent clients.
The proposed reforms, drafted in February, included: a ban on hiring attorneys convicted of serious felonies, such as sexual assault and murder, except in cases where a waiver is issued. The proposal would also restrict the hiring of attorneys with drug or alcohol convictions.
“The executive director must be very mindful of who is rostered as an attorney. Taxpayer funds are being used to pay rostered attorneys,” the proposed rules state. “Rostered attorney should have the same great moral character, ethics, and background as attorneys who are hired to represent the State of Maine or work for reputable firms. If the attorney would not be hired in private practice, they should not be a rostered attorney.”
Public defender systems in other states are no panacea. The lawyers who work for them are often burdened by high caseloads, a lack of resources and low salaries. But Maine’s alternative has fallen short of its lofty goals to provide robust defense for indigent clients, experts say.
Zach Heiden is chief counsel for the ACLU of Maine. In his decade and a half representing Maine prisoners, nearly all first had a court-appointed attorney. It has startled Heiden how many received substandard representation.
“It’s unconscionable that MCILS has not done more to ensure that the lawyers being appointed in criminal defense cases are competent, are following the rules and are of good character,” Heiden said.
Maine’s poorest have paid the price for Pelletier’s lax leadership. Commission attorneys such as Dwyer-Jones are the last line of defense for juveniles who face indefinite lockups in the youth detention center, parents at risk of losing custody of their children and adults charged with everything from petty misdemeanors to murder.
When she was reinstated in 2015, Dwyer-Jones was allowed to practice law so long as she refrained from drinking alcohol and using mood-altering drugs that were not prescribed to her, disciplinary records show. Less than a week after her license was restored, she applied to the commission for court appointments and Pelletier hired her.
Two years later, Carrolyn Lane met Dwyer-Jones at a hearing in a Springvale court house. Her father, Carrol Lane, had been arrested on charges that he assaulted his live-in girlfriend. Her father had no lawyer and little money to hire one. He was suffering from signs of early dementia, she recalled, his memory impaired by a stroke.
When Dwyer-Jones handed over her cellphone number and said she was the right lawyer for the case, Lane’s family believed her. But during the next two months, Dwyer-Jones canceled all three meetings she scheduled with the family, Carrolyn Lane said. Each time she gave an excuse for why she couldn’t make it.
Then she stopped coming to hearings.
Meanwhile, his family kept trying to explain to Lane the conditions of his bail. If he returned to his home, where his girlfriend continued to live, he’d be sent back to jail.
He didn’t heed their warnings. Living in his ex-wife’s guest bedroom less than 2 miles from his house, Lane would sneak out and make his way home. The police kept arresting him until the bail was set so high that his ex-wife and daughter could no longer afford to have him released.
Carrolyn Lane said the family pleaded with Dwyer-Jones for help. One night Dwyer-Jones responded with a string of “incomprehensible” text messages to Carrolyn’s mother, Anna Bean, claiming she was in the hospital. On another occasion she told them she “did not have $20 to put in her gas tank” to get to court.
It was the final straw. They wrote a letter to the court asking for a new lawyer.
A judge assigned Angela Thibodeau, another commission attorney, who asked the court to change Lane’s bail and requested a mental evaluation. It revealed that Lane had dementia and was likely not competent to stand trial.
Thibodeau said she got all his charges dismissed.
“I think it had its complexities, certainly. But I didn’t think that it was something that was difficult to manage, procedurally,” said Thibodeau, who took over a handful of Dwyer-Jones’ cases.
Bean didn’t think Dwyer-Jones should be anyone’s lawyer. She sent copies of Dwyer-Jones’ text messages to the Board of Overseers of the Bar, an independent judicial agency under the state Supreme Court that investigates and prosecutes attorney misconduct in Maine. It relies on judges to render disciplinary decisions. The board of overseers told her it would give Dwyer-Jones a verbal warning. There would be no public acknowledgement of the family’s concerns.
Exhausted, Bean packed her ex-husband’s legal documents away in a box. Adult Protective Services took over his care in April 2019. Carrol Lane died alone in a hospital on Sept. 5, 2019.
Dwyer-Jones, 56, called in September and agreed to an interview with a reporter. During the call, she claimed that she was coerced into pleading guilty to two other drunken driving charges after being released from a hospital and that her discipline case in 2013 had no merit. Her mother called the following day to cancel the interview. She is still eligible for criminal and child protective cases and has worked on more than 120 cases. Public disciplinary records show the board of overseers reprimanded her for misconduct again in 2019.
“I find it shocking that they consider her competent to defend the poor people of Maine, Bean said. “She was totally absent when we needed her.”
A Unique System
Nearly 60 years ago, the U.S. Supreme Court unanimously decided in the case Gideon v. Wainwright that every person accused of a crime had a constitutional right under the Sixth Amendment to the assistance of a lawyer. States are required to provide one to defendants too poor to hire their own. Attorneys in such cases, the court ruled, are “necessities, not luxuries.”
In response, nearly every state in the union adopted a system of public defenders, seeing these new government agencies as a way to professionalize the defense of the poor. Attorneys were paid a salary by the government to exclusively do public cases. Perhaps most importantly, chief public defenders often played a role in setting policy and advocating for reforms for defendants.
Maine took a different path. For decades after Gideon, the state allowed judges to assign and pay private attorneys to represent impoverished defendants. But the system was showing signs of strain by the early 2000s. Tough-on-crime lawmakers rewrote the state’s criminal code to turn some misdemeanors into felonies. The rising number of criminal cases squeezed the judicial branch’s budget to the point it considered closing courthouses and laying off staff.
The budget crunch threatened the independence of the courts and of court-appointed counsel. It created a potential conflict of interest as judges controlled the money spent on defense but not prosecution, according to former Chief Justice Leigh Saufley, who was appointed in 2001.
“It was not acceptable to me or to the executive or legislative branches, as it turned out, for the neutral decision-makers to be the people who were deciding how much time a lawyer would spend on a case. That was just not acceptable,” Saufley said.
In 2008, she appointed Robert W. Clifford, an associate justice of the state Supreme Court, to lead an examination of the state’s indigent defense system. After just four meetings, his panel proposed the biggest defense reforms in the state’s history.
The Maine Commission on Indigent Legal Services would be tasked with selecting, training and overseeing defense attorneys for the state’s poor. At least 42 states had already established similar commissions. What made Maine’s model unique — and keeps it unique to this day — was the absence of a public defender’s office to support it. Maine would rely entirely on private lawyers rather than establish an institution specialized in the defense of the poor.
Pelletier, then working as an administrator for the state’s judicial branch, helped author the proposal. He coordinated its drafting and revisions before it was sent to lawmakers for adoption.
Pelletier didn’t have much faith in public defender systems. The beauty of Maine’s new commission, he said, was that anyone too poor to hire an attorney could have the exact lawyer hired by someone who could afford to pay.
Pelletier wrote in the report that the new commission would standardize attorney training, control caseloads and systematically appoint counsel to “ensure quality and efficiency.” It would also be economical. The new system would cost no more than the previous court appointment system.
Once the commission approved their applications, the lawyers would be paid an hourly fee to defend clients, from alleged repeat shoplifters to accused killers. The commission also provided lawyers for cases involving juveniles, probate and other legal issues.
The proposal achieved Saufley’s goal at the time, which was to create an entity separate from the judicial branch where court-appointed counsel would have independence from judges and prosecutors. But she expected it to be refined over time.
“Whenever you try a new thing, some parts of it will work really well, some parts not so much, and you try to do pretty constant improvement along the way. That was my expectation,” said Saufley, who retired from the state Supreme Court in April and is now dean of the University of Maine School of Law.
Instead the reform effort froze in place. The commission has only four employees, including Pelletier. They have hired hundreds of private attorneys to do the government’s defense work. It defied what some members on Clifford’s panel recall being told to expect — that the commission would grow into something resembling a full-fledged public defender’s agency. It never happened.
Robert Ruffner, a panel member, said Maine’s system has ultimately been a disappointment.
“We don’t actually have a system of indigent defense. We have a system of sort of providing lawyers, but it’s not a defense system. It just puts an attorney there,” Ruffner said. “Some of them are great, some of them not.”
Warning Signs Dismissed
In October 2007, a woman at a gas station in Winterport was filling up her red Pontiac when a car pulled up beside her.
A man stepped out and popped open the hatchback as she went inside the convenience store to pay. When she returned, he was naked from the waist down with just his dress shoes, socks and genitals visible. His face was hidden. She hurried into her car.
The man followed her as she drove out of the parking lot. She called her husband, then hung up and dialed 911. Police told her not to drive home. His car got closer, as though he were chasing her at 25 miles per hour. She began to hyperventilate. The windows fogged.
She gripped the steering wheel so hard that she couldn’t take a hand off to hit the defrost button.
It wasn’t until police identified him that evening and called the woman that she realized who had been in the car: Peter Mason, an attorney who represented her husband for nearly a decade in land transactions.
It was not Mason’s first time revealing himself, disciplinary records show. Between 2004 and 2007, another former client also alleged Mason repeatedly exposed himself to her in parking lots, at her job and at a convenience store.
The board of overseers sanctioned Mason for unprofessional conduct in 2009 for exposing himself to both women, giving him one of its lowest public sanctions — a reprimand. In January 2009, at the end of a drawn-out criminal case stemming from the October 2007 encounter, a judge found Mason guilty of indecent conduct. As part of a plea deal, prosecutors agreed to drop charges from his other alleged victim.
Mason began working for the commission in 2010, eventually representing clients in 280 cases. By 2011, Pelletier had approved Mason for a special panel of lawyers eligible to work on sex offense cases, commission records indicate. Board of overseers records do not indicate Mason faced additional cases of professional misconduct.
When reached for comment in August, Mason denied that he purposefully revealed parts of himself to either woman. He claimed the woman with the red Pontiac may have seen up his shorts while he was moving items in his car at a gas station.
“I did not plead guilty to it. We went to trial with it — it was a jury-waived trial — and I was convicted of it. And I still deny that I intentionally or knowingly did that,” said Mason, who has since retired.
The woman — who, as a sex crime victim, did not want to be identified — was outraged to find out that Mason was hired by the state after exposing himself to her.
“Isn’t that sickening,” the woman said. “He should not have anything to do with women in general, anyone that is in a compromised position that he would think he had control over them to some degree.”
Mason was one of more than 40 attorneys hired by MCILS with troubling disciplinary histories. All told, one-fourth of the 161 lawyers disbarred, suspended or reprimanded for misconduct in Maine in the past decade were contracted by the commission, according to disciplinary records and a data analysis of state records. The rules they broke ran the gamut from missing deadlines to helping clients commit crimes.
All of the discipline decisions are public. In addition, attorneys are required to disclose previous discipline when applying to the commission. Despite such warning signals, Pelletier hired or continued contracting all but a few attorneys after the board of overseers disciplined them at least once, a review of disciplinary decisions by The Maine Monitor and ProPublica found.
Bob Cummins, a law professor and trial lawyer in Portland who helped write the American Bar Association’s uniform rules for professional conduct, said the overlap between serious sanctions and Maine’s court-appointed attorneys warranted more study. But it didn’t surprise him.
Cummins noted that a significant number of disciplined lawyers are sole practitioners. In Maine, almost half of all attorneys practice at a firm with five or fewer people and 26% work alone. Of the complaints submitted to the board of overseers, 43% were against solo attorneys in 2018, which is the last year data is available.
Sole practitioners and those at smaller firms can have trouble achieving the volume of cases they need to keep their practices afloat, Cummins said. State-appointed cases provide a steady, reliable source of work, although the pay is low: $60 an hour. The low fee, however, can be a deterrent for larger firms and established defense lawyers who can make several hundred dollars an hour on retained cases.
“We’re allocating the indigent criminal work to individuals who are already in that class of lawyers who too often get in trouble,” Cummins said.
Despite that risk, Pelletier has rarely policed the lawyers he hires, according to interviews and a review of his disciplinary actions. Under commission rules, Pelletier is charged with overseeing their conduct and has the authority to open investigations and suspend or remove attorneys.
For the first 10 years of the agency’s existence, Pelletier did not set up a formal oversight program. He employed no staff to go to the courthouse to check case files or talk to prosecutors or clients about the performance of defense attorneys, according to interviews with longtime observers of the commission.
During that time, he reported only one of his hires to the board of overseers for falsifying invoices, commission records show. Under heightened scrutiny by lawmakers in 2019, he removed three more attorneys from the commission’s list of eligible lawyers. One is already being appointed to cases again.
Seth Carey, best known for an unsuccessful run for district attorney in southwest Maine while under investigation for sexual assault, was also purged from the rolls in 2016, commission records show. Less known are judges’ early warnings that Carey shouldn’t be defending anyone.
Two judges reported Carey to the board of overseers for lacking “core competence,” in criminal defense and courtroom procedures, disciplinary records from the board of overseers show. The judge assigned to the disciplinary case labeled Carey “blatantly disingenuous” and suspended him from practicing law twice in 2009. Pelletier hired him in 2013 and allowed Carey to accept cases until March 2016, when a court imposed a two-year probation period where Carey was not allowed to represent anyone other than himself for at least 18 months.
A district court justice said at the time that Carey was “close to the bottom of the barrel” of lawyers in Maine.
But Carey’s misconduct soon became more serious, according to disciplinary hearing records. He allowed a former client to stay in his home and allegedly grabbed her head and thrusted it toward his crotch while demanding oral sex. In March 2018, she asked a judge for a protection order against Carey. The board of overseers found out that Carey offered her a nondisclosure agreement to recant the testimony in exchange for the title to his car and $1,000. The judge overseeing the disciplinary case said that Carey allegedly violated multiple laws and rules of conduct by attempting to tamper with a witness. Carey’s license is currently suspended for three years.
In a brief exchange of emails, Carey called the allegations “baseless.”
Pelletier said during public hearings that he and his staff monitor attorneys’ performance by reviewing their invoices at the end of a case. They review thousands of invoices a month for one to two minutes a piece.
Neither Pelletier nor the executive director of the board of overseers, Aria Eee, communicate directly with each other to review hires. Eee said the board of overseers posts disciplinary decisions on the board’s website and circulates them by email. She did not know whether Pelletier used the board’s information. She said her agency receives no list of state defense attorneys from the commission.
Eee provided limited written responses to questions and declined numerous requests for a more detailed interview.
Pelletier is a stolid native son devoted to his state. After four years studying government and international relations at Harvard, he returned to Maine to follow his brother and uncle into law.
At the University of Maine School of Law, he enrolled in a single criminal defense class and accepted an internship with the law school’s legal aid clinic in his third year, Pelletier said in an interview last year. After passing the bar exam in 1985, Pelletier opened a solo legal practice.
By 2008, he’d served as chair of the influential Criminal Law Advisory Commission for a decade, which advises the Legislature on changes to the state’s criminal code. He was working in the judicial branch. After he helped draft the Clifford panel report and legislation to open MCILS, he submitted an application for the top job and was selected.
His career as head of MCILS began in 2010, eventually landing him in an office across the Kennebec River from the state Capitol. In winters, when the Legislature was in session, he would often find himself driving across its ice-choked waters to attend hearings. He was easily recognizable in a self-imposed uniform of navy blue blazer, white button down shirt, red tie and — in foul weather — loosely tied duck boots from L.L. Bean, a flagship Maine business.
At the Statehouse, he immersed himself in the intricacies of the state’s legal affairs. He dutifully reported on the spending and achievements of Maine’s new commission.
Over the years, he listed the commission’s achievements in annual reports to legislators. The commission was taking on roughly 26,000 new cases a year while keeping costs down and collecting fees from defendants. Its annual spending peaked at $21.4 million in fiscal year 2018, consuming less than 0.3% of the state’s budget.
But the commission also attracted its share of critics. In 2017, a bipartisan task force found that the commission had no structure to evaluate the quality of the legal services provided or the capacity to manage rising costs. The Legislature commissioned a report by the Sixth Amendment Center, a nonprofit devoted to criminal defense.
In April 2019, the center delivered a blistering verdict. Among the conclusions: The state’s criminal docket was advancing at the expense of defendants’ constitutional rights. Commission attorneys appeared to be filing too few motions and spending too little money on experts for cases.
One of the chief complaints was that the commission was chronically understaffed. The center estimated that at least 12 people were needed in a central office to oversee training, provide legal resources and track finances.
Instead, Pelletier relied upon a skeleton crew of four people, overseeing more than 600 attorneys at 47 courthouses, according to the report. They operated out of the third floor of the Marquardt state office building, its rows of government-issued cubicles empty.
Under pressure, Pelletier asked the Legislature for two additional staffers. Lawmakers rejected his request — they wanted him to ask for eight. COVID-19 ended the session before any decision was made.
In legislative hearings, Pelletier said the commission staff was working at capacity.
It does not take much to be an attorney for the poor in Maine. Commission attorneys must be licensed by the state and complete a one-day training course to accept most case types. Anyone having practiced for three years can be exempted from the training. Eight hours of continuing legal education a year is all it takes to remain eligible.
Critics have long argued that the low standards might attract candidates with questionable backgrounds. Take, for instance, Lawrence Winger.
At age 64, Winger was a respected labor and employment lawyer, a graduate of Yale University and Harvard Law School.
But Winger had a “secret double life,” according to court records and interviews: an obsession with pornography that led him to amass a collection of more than 12,000 videos, sorted by genre, performer and content.
In July 2014, state police discovered Winger downloading child pornography. After they raided his house, Winger told police he had used a laptop and two external hard drives to download and store sexual videos of children. The Maine State Police Computer Crimes Unit found a dozen pornographic videos of children on a 3 terabyte external hard drive at his home in Falmouth, records show. The files labeled “babyj” included men raping young girls.
“What was depicted in the videos themselves is horrific content,” Assistant District Attorney Hannah May told the court during sentencing. “They are in fact full-length videos, up to 48 minutes long in one case.”
Winger pleaded guilty in January 2015. A judge sentenced him to serve 90 days of a five-year jail sentence for felony possession of sexually explicit material of a minor under the age of 12. The state bar issued him an identical sentence — suspending his right to practice law for 90 days. He was ordered to register as a sex offender for 25 years.
Winger’s arrest destroyed his civil law practice. But in jail, surrounded by inmates in desperate need of legal advice, Winger said in an interview that he saw an opportunity: He would go into criminal law.
When he applied to the commission, Winger had little prior experience in criminal defense work, according to his application submitted to MCILS.
Pelletier hired him in 2016. Winger said he was directed to attend the commission’s minimum standards training just like any new law school graduate looking to do criminal defense.
Winger has been assigned more than 60 post-conviction reviews, criminal cases and appellate matters for the state’s poor, and he is eligible to defend all criminal defendants except those facing serious felony charges such as homicide, sex offenses and violent crimes. Board of overseers records do not indicate that Winger faced additional cases of professional misconduct.
In an interview, Winger said he understands now that children were being abused to make the videos he was watching. But he still contends there’s a difference between him watching the videos on the internet and men who abuse children. He denied that his arrest and conviction had interfered with his work.
“It was not an alcohol addiction. This wasn’t like I was impaired at work — to use that phraseology — so I never thought it really affected my practice in any way, shape or form,” Winger said.
Winger said in the interview that he watched pornography during work hours on the computer that he stored client files.
Large national organizations that once employed him will not retain him anymore, and he struggles to find private work. The bulk of his clients are assigned by the courts. Winger tells appointed clients on a case-by-case basis of his felony conviction. Winger said he was not ready to retire in 2015, and the commission has allowed him to continue to be a lawyer.
Winger’s conviction has caused problems, however. In September 2017, the Cumberland County Jail refused him entry because he was on probation. Winger could not meet with clients at the jail. In a letter to a judge, he said that his solution was to stop accepting criminal cases of incarcerated clients and that he and the commission leadership were “simply hoping” that none of his current clients were rearrested.
Winger maintained years later that his probation did not negatively affect his representation.
“I never felt subjectively, and no one ever told me objectively, that my probation was limiting the cases to which I was being appointed,” Winger said.
One of the reasons that states have moved away from exclusively using assigned counsel systems is because it is difficult to supervise private attorneys.
The Committee for Public Counsel Services in neighboring Massachusetts maintains a 361-page manual on the rules and procedures private attorneys who accept cases on behalf of the state must follow. It outlines over numerous pages the standards and disciplinary processes for such lawyers.
In Maine, the equivalent manual is one-fourth the size, just 91 pages. It devotes seven paragraphs to the executive director’s rights to remove and suspend attorneys.
There are multiple layers of supervision built into Massachusetts’s criminal public defender system, said Chief Counsel Anthony Benedetti. The office contracts with bar advocate programs in each county to review attorneys’ performance and hires supervising attorneys specifically to monitor and support private lawyers in court.
Massachusetts employs approximately 225 public defenders and contracts an additional 2,200 private attorneys for criminal cases in courts where there is no public defender presence or to handle a conflict of interest.
Attorneys are regularly reviewed and removed from panels. Applications are vetted. At least every three years private lawyers must also open their case files to the county bar advocates program to be recertified to accept cases.
“We feel like it’s our responsibility to do these kinds of oversight, not just because we want to catch people doing things wrong but we want to support private attorneys and help them to become better,” Benedetti said.
Maine’s commission should be exercising more discretion over which lawyers it accepts, said Sarah Churchill, who was appointed in 2019 to the commission’s board. She was recently nominated to become a district court judge.
For years, Churchill has served on a selection committee that reviews lawyers’ applications for case appointments in the federal court system. Attorneys are selected based on experience and a fixed number of spots. The smaller the court appointment list the more concentrated the talent, Churchill said.
“We cannot rely on the board of overseers to do MCILS’ job. The board of overseers is charged with enforcing ethical rules for lawyers, not determining the quality of the work administered by court appointed counsel,” Churchill said. It isn’t the board of overseers’ job to make sure that the state is complying with the Sixth Amendment.
Lack of Supervision
Pelletier’s questionable hiring decisions don’t stop with lawyers. He also hired a convicted felon to review and collect attorney fees of hundreds of poor defendants in Cumberland County.
Nicholas R. Moffo was convicted in 2010 of third-degree larceny, a felony, for stealing and attempting to resell an estimated $25,000 worth of computer equipment, copper piping and cleaning supplies from a Connecticut hospital, police and court records show.
As the supervisor for the 3 to 11:30 p.m. shift at New Milford Hospital, Moffo once told employees he was “going shopping tonite,” according to arrest records. He gathered laptops, projectors, toilet paper and hand sanitizer on different nights in black trash bags and loaded them into his car. The employees who saw him steal from the hospital stayed silent even as police began investigating. In interviews, the police learned, Moffo threatened to burn down the home and kill the family of one employee and implied he’d kill anyone who “ratted” while showing a gun collection to another.
Moffo surrendered more than a dozen guns to the Waterbury Police Department in February 2009 under court order following a domestic incident with his ex-wife, who reported that she was “deathly afraid” of Moffo. In September 2010, he was convicted of disorderly conduct.
Moffo now collects detailed financial information from hundreds of Cumberland County’s poorest defendants to see if they qualify for a defense attorney, according to interviews and commission records. Behind closed doors in a private office at the Cumberland County courthouse, Moffo has unrestricted access to Social Security numbers, bank balances, whether defendants live alone and their phone numbers.
Public records do not indicate complaints against Moffo for conduct in his current position.
If defendants do not answer his questions truthfully, they risk additional criminal charges.
Yet, Moffo has often lied when applying for jobs. The Maine Monitor and ProPublica obtained multiple versions of Moffo’s resume, including the one he submitted to the state when he applied for his position as a financial screener.
Moffo wrote that he had worked for 22 years at a nursing home in Waterbury, Connecticut, including stints as an environmental services supervisor and a facilities manager, the resume showed.
But in a disability discrimination complaint he brought against a former employer, Moffo admitted that he “volunteered” and was only occasionally on the payroll at the nursing home, which was owned by his father. A Maine company fired Moffo after less than a month as a welder when administrators discovered that he had misrepresented his work experience and not fully disclosed his criminal record, according to the company’s responses to the complaint.
Pamela Slye, a former commission employee who once held Moffo’s job, emailed Pelletier in February asking if he was aware of Moffo’s criminal convictions and whether that disqualified him to work in the court and jails. She received no reply. Slye resigned from her position over a dispute about her time cards.
Moffo did not return multiple phone and written requests for comment on his criminal convictions and the inconsistencies in his work history.
Lawmakers were split whether 2020 was the moment to kill the commission or invest heavily in a public defender office to bolster it.
It was a moment of reckoning nearly 10 years after Maine embarked on its public defense experiment.
“If you’re one of the 50 doing something radically different than the rest of the states, it’s an interesting moment. Either you’re doing it right, or you really should be looking to another model,” said Rep. Teresa Pierce, a Democrat from Falmouth.
To decide, Gov. Janet Mills, a Democrat, and Saufley, then chief justice, appointed a new bipartisan group of legal experts who began meeting in August 2019 to manage the commission. The Legislature agreed to delay writing any reform bill until its members reached a consensus.
Pelletier repeatedly provided inaccurate or incomplete information to the commissioners, according to a review by The Maine Monitor and ProPublica.
Early in the process, Commissioner Mike Carey, a tax and information technology lawyer who served four terms as a Democrat in the state House of Representatives before reaching his term limit, quizzed Pelletier about reports by The Maine Monitor and the Sixth Amendment Center that multiple lawyers working for the commission were excessively billing for their time.
Pelletier brushed off the allegations. There existed an “appearance” of overbilling, he said.
He pointed to a new system that generated an email alert each time an attorney tried to bill for more than 12 hours in a single day as a sign the situation was under control. Pelletier and staff followed up on the alerts to query attorneys for an explanation. Some 2,000 had been issued in a seven-month period.
Pelletier assured commissioners that at least half the lawyers had responded “promptly” with an explanation for their high hours.
“All of the lawyers responded at some point,” he told the commissioners in January.
But commission records do not match Pelletier’s recollections, according to a review of the alert data by ProPublica and The Maine Monitor. At the time he spoke in late January, less than one in four attorneys had fully answered Pelletier’s inquiries. The remainder — attorneys who had collectively billed the state more than 12,000 hours representing nearly three-quarters of a million dollars — had not.
Mike Carey said the commission was relying on “technological duct tape.” He submitted a detailed plan for Pelletier to identify system upgrades and improve the billing and auditing process. There has not been a vote on his proposals.
Commission board members also relied on Pelletier to keep them on track to make reforms. But Pelletier, who had followed the proceedings of the Legislature for more than two decades, never informed the commissioners that legislative rules required public hearings and the approval of rule changes before mid-January in order for major reforms to take effect that year.
Lawmakers were outraged when they learned from an article in The Maine Monitor that commissioners had missed crucial legislative deadlines. Just as they began to seek a new way to approve reforms, the pandemic abruptly ended the session.
The bill to fix the state’s broken public defense system was never written. The failure to follow procedure meant there could be no major overhaul of the system in 2020.
One of Pelletier’s final public appearances before the coronavirus shutdown was a budget hearing at the state capital.
Rep. John DeVeau, a Republican from Caribou, posed a question Pelletier’s commission had not yet asked, “Are you staying on?”
Pelletier didn’t answer.
Maine is the only state in the country with no public defenders. Instead, private attorneys on contract with the Maine Commission on Indigent Legal Services, or MCILS, provide criminal defense and other legal work for those too poor to afford it.
The Maine Monitor and ProPublica reviewed thousands of pages of police reports and court records, disciplinary decisions from the Maine Board of Overseers of the Bar, and dozens of invoices, documents and emails from MCILS that went into the hiring of 800 defense lawyers in the past decade. We talked to more than 30 families, attorneys and experts about their experiences. And we attended numerous court and legislative hearings to observe the system at work.
We also examined public sanctions data to show that MCILS attorneys were disproportionately represented in Maine’s disciplinary system. The Maine Monitor and ProPublica analyzed the most serious sanctions — disbarments, suspensions and reprimands — given to Maine attorneys by the board of overseers in the 10 years since MCILS opened in 2010. To avoid double counting disciplinary actions, we only looked at the number of attorneys who were disciplined rather than the total actions taken against them.
From that group, we identified the attorneys who worked with MCILS and matched them up to the discipline database. From this group, we then manually reviewed disciplinary histories of more than 60 attorneys and their tenure working for MCILS to remove attorneys who were disciplined after they were no longer on the agency’s court-appointment rosters. We conservatively show that MCILS attorneys made up 26% (42 out of 161 attorneys) of the lawyers disciplined for serious misconduct in Maine in the past decade.
We then compared the percentage of MCILS attorneys disciplined with their percentage of the state bar during that time period (15% or 800 out of 5,300 attorneys). We averaged active bar membership between 2010 and 2018, the most recent data available, because the board of overseers didn’t provide data showing when each attorney joined or left the bar. As a result, the total number of attorneys who practiced law during the past 10 years is likely higher than the 5,300 figure used in our analysis.