Romney eyes reins on public defenders

Governor Mitt Romney, furious that a pay dispute involving court-appointed defense lawyers led to the release of three alleged drug dealers in Hampden County on Monday, filed a bill yesterday to wrest control of the state public defender agency from the judicial branch to end the burgeoning legal crisis.

If given oversight of the Committee for Public Counsel Services by the Democrat-controlled Legislature, Romney said, he would force lawyers to choose between accepting new cases at current rates or be banned from doing such work in Massachusetts.

Paraphrasing Governor Calvin Coolidge's famous denunciation of the Boston police strike of 1919, Romney called the decision by hundreds of private lawyers to refuse new cases unless their pay is drastically increased a "strike action against public safety."

He blamed mismanagement in the committee, the state agency that represents poor defendants, for the pretrial release of potentially dangerous defendants without bail.

"The public can't allow criminal defendants to be set free when private attorneys decide to join in a strike action," Romney told reporters. "When public safety and the release of criminal defendants is in the balance, there is no opportunity for meaningful negotiation. It's time to get back to work and protect the public. Then we can continue the discussion of reforming our bar advocacy system."

William J. Leahy, chief counsel for the committee, dismissed Romney's vow to blackball court-appointed lawyers who refuse cases.

"The threat to bar lawyers who are already leaving the program in droves is not likely to be the solution," he said. "That would have the effect of making a bad situation worse."

Eric Fehrnstrom, Romney's communications director, said that the governor met last night for one hour with Leahy, former attorney general Robert Quinn, and criminal defense attorney Willie Davis, who sits on the committee board, to discuss the indigent defense crisis. Fehrnstrom said the meeting was constructive, probably the first time a sitting governor had met with committee leaders, and said the group agreed to resume negotiations next week at a meeting to which they will invite legislative leaders.

The legislation Romney filed yesterday would allow his office to oversee the committee, which manages the roughly 2,500 private lawyers statewide who handle about 80 percent of the cases involving indigent defendants; committee staff lawyers, who are state employees, handle the rest.

Romney said that 21 other states allow the executive branch to oversee public defenders.

He will also consider simply enlarging the pool of state-employed public defenders and dispensing with the use of private lawyers, a striking departure for a governor who was elected in part on promises to trim state payrolls.

House Speaker Thomas M. Finneran said that several lawmakers are upset that a recent pay raise for bar advocates was criticized by lawyers as too paltry and said that legislators may be receptive to new ideas, including Romney's.

"We are still in the midst of an economic recession and a fiscal crisis, and we don't have money to throw around, notwithstanding the arguments of the bar advocates," Finneran said.

The Spangenberg Group, a West Newton consulting firm that has studied public defender systems throughout the United States, surveyed court-appointed lawyers in Massachusetts in May. Of the 288 who responded, 41 percent said they were considering no longer accepting such cases, and 52 percent planned to cut back on the number they take.

The firm assisted in the preparation of a sweeping lawsuit against the state in June that said that Massachusetts, a pioneer in guaranteeing legal counsel to poor criminal defendants, was reneging on that promise because of the low pay offered to private lawyers.

Nancy McLean, a lawyer who serves as spokeswoman for the Massachusetts Association of Court Appointed Attorneys, accused Romney of mischaracterizing the controversy.

"This is not a strike," she said. "If you can't afford to work for [the pay], you can't afford to work for it. That's just the bottom line."

The Legislature recently approved a $7.50 hourly increase but has yet to pass a supplemental spending bill to fund it, at a cost of about $20 million a year.

Before the Legislature approved the pay raise, the hourly rates for court-appointed lawyers were $30 for district court cases, $39 for superior court cases, and $54 for murder cases. The $30 rate was the lowest set by statute of any state in the nation, according to a lawyer for Holland & Knight, which filed the lawsuit calling for a full-blown study of the public defender system.

Even with the increase, pay to bar advocates in Massachusetts would still rank among the lowest in the country, according to Marea Beeman, vice president of the Spangenberg Group.

The controversy over pay for court-appointed lawyers has been brewing for almost two years. But it came to a crisis after the committee and the American Civil Liberties Union filed suit with the SJC over the situation in Hampden County, where the shortage of lawyers has been particularly acute. Last month, the high court ruled that defendants could not be jailed for more than seven days without a lawyer and that charges would be dismissed if they still had no lawyer after 45 days.

The courts on Monday ordered the pretrial release of three defendants accused of drug crimes in Springfield.

The next day, Attorney General Thomas F. Reilly issued a stinging criticism of the releases. But Reilly said yesterday that Romney's proposal was premature. The Legislature, he said, should take its time to gather and consider all the facts surrounding the public defender crisis before passing any new laws.

"I think we have to keep our eye on the ball here," said Reilly, widely believed to be a potential gubernatorial candidate in 2006. "There does have to be a discussion in the long term about CPCS and its supervision, but we have to focus on what's happening right now, and that's that dangerous people are being released onto the streets."

Reilly said he was concerned that more defendants would be released across the state, based on the SJC ruling, and said he was prepared to ask the court to reconsider.

The legislation that provides the $7.50 wage increase established a nine-member commission to study the situation.