SJC orders poor suspects freed
Requires counsel within seven days
The state's highest court yesterday ordered that poor criminal defendants in Hampden County be freed from jail if they are not assigned a lawyer after seven days, which could force the Legislature and Governor Mitt Romney to raise hourly pay rates for court-appointed lawyers.
Declaring that ''chronic underfunding" of legal services for the poor is making it impossible to find lawyers to take cases, the Supreme Judicial Court also ordered that charges be dismissed if defendants go 45 days without a lawyer. Charges could be reinstated once defendants get lawyers.
The release of defendants, some of whom face serious charges such as rape and home invasion, could threaten public safety, the court acknowledged.
''Public safety, however, comes at a cost," said the unanimous ruling. ''As previously noted, the level of compensation paid to private counsel has barely changed over the last two decades and is among the lowest in the nation.
''It is driving lawyers away from enrollment in the private counsel division" of the Committee for Public Counsel Services, the public defender agency, the SJC said.
William J. Leahy, chief counsel for the committee, praised the ruling as the most important affirmation of the right to counsel in Massachusetts history. In 1958, five years before the US Supreme Court issued its landmark Gideon v. Wainwright decision, Massachusetts helped pioneer protection for the right to counsel, guaranteeing lawyers for all indigent defendants charged with felonies.
''The court has identified that there is a constitutional violation [in Hampden County], and it cannot be tolerated," Leahy said yesterday.
By Tuesday night, he said, 46 individuals facing Superior Court charges and nine individuals facing district court charges in the county could not find lawyers willing to take their cases. About 20 of the Superior Court defendants could be freed soon as a result of the decision, he said.
Leahy and other lawyers for the poor had asked the court to simply raise pay rates, but the justices declined to take that step; it would have almost certainly led to a confrontation with the Legislature, only months after both branches had clashed over same-sex marriage. Still, Leahy said he hopes the ruling will prod lawmakers to quickly raise rates before they adjourn.
Robert Kidd, vice president of the 400-member Massachusetts Association of Court-Appointed Attorneys, agreed with Leahy, saying that the decision is ''intended to shame and embarrass the Legislature, which it should, into taking action."
Hampden District Attorney William M. Bennett, who argued to the court recently that Leahy was exaggerating the problem, said yesterday that he hopes the Legislature and Romney step in. If they don't, he said, the SJC decision could put dangerous defendants back on the streets.
''We're dealing with a very serious public safety problem already in Hampden County," said Bennett. ''We've had a number of homicides, shootings, and matters of grave concern, and this can only exacerbate the situation." The county includes Springfield and Holyoke.
Both House Speaker Thomas M. Finneran and Senate President Robert E. Travaglini said they had not had time to review the ruling. Finneran said that the House ''will try to respond," but that the issue is unlikely to come up this week.
One idea being considered in the House, Finneran said, is for the state to increase the number of full-time staff lawyers at the Committee for Public Counsel Services and deemphasize the use of court-appointed private attorneys.
Still, Finneran said, ''the points that have been made by the private bar were well taken and their compensation should probably be adjusted."
Travaglini said he has discussed the issue with Senate leaders, ''If we can do something, we're committed to doing it," he said, but he said he couldn't promise that lawmakers will take it up before the end of the session.
Romney spokeswoman Shawn Feddeman said the governor has been trying for two years to reform the way the state finances legal services for the poor. Instead of raising the hourly rates, the governor has proposed more aggressive fee collection and other court changes designed to generate extra money, some of which would be used for lawyers for the poor.
''Now that the court has focused attention on this issue, our hope is that the Legislature will act," she said. ''The last thing anyone wants is for criminal defendants to get off scot-free because of a lack of counsel."
The public defender agency has been locked in a battle with the Legislature and the Romney administration for months over pay rates to private lawyers who take court-appointed cases. The current hourly rates are $30 for district court cases, $39 for superior court cases, and $54 for murder cases.
The $30 rate is the lowest set by statute of any state in the nation, according to Joshua C. Krumholz, a lawyer with Holland & Knight. His firm filed a sweeping lawsuit last month against the state that asked the SJC to appoint a special master to study the public defender system statewide. The suit sought certification as a class-action on behalf of children and poor litigants.
Lawyers for the poor contend that about 50 attorneys have stopped taking court appointments in Hampden County because of the low pay. More than 18 months ago, CPCS recommended that court-appointed lawyers be paid $60 an hour for district court cases, $90 an hour for superior court cases, and $120 an hour for murder cases.
Although the SJC pointed out that courts in other states have occasionally taken it upon themselves to raise pay rates for such lawyers, it said that is chiefly a legislative responsibility.
The SJC urged lawmakers and the Romney administration to fix ''what can now fairly be seen as a systemic problem of constitutional dimension."
The decision says that one of the high court's justices will devise a system for keeping track of defendants without lawyers, in consultation with the courts, prosecutors, the Hampden County sheriff, and the public defender agency.
Scott Greenberger of the Globe staff contributed to this report. 