More Massachusetts criminal defendants could be released amid attorney strike

BOSTON — As the bar advocate work stoppage continues, more unrepresented criminal defendants could be released from jail.

Hearings began in Boston Municipal Court on Monday and continued on Tuesday, with at least four unrepresented indigent defendants, or those who cannot afford a private attorney, being released.

“The shortage of available attorneys willing and able to take cases on behalf of indigent defendants has placed an unprecedented strain on our system leaving hundreds of individuals without representation, including many who are being held in custody,” Committee for Public Counsel Services spokesman Robert McGovern said Tuesday.

A new crop of cases will be heard in Lowell District Court on Wednesday. Eleven of the 18 cases slated to be heard will include those from Chelsea and Somerville district courts, according to the CPCS. Chelsea cases are being heard in Lowell because it is the only district court in Suffolk County not within the BMC system, which is having its own hearings.

Under an emergency protocol to deal with the issue, criminal defendants in the district court level could be released if they’ve been detained for more than seven days without legal representation.

Those held more than 45 days could see the charges dismissed.

Among the cases set to be heard in Lowell Wednesday involve defendants who face charges including assault and battery with a dangerous weapon, carrying a firearm without a license, drug distribution, resisting arrest, and assault and battery on a family/household member, among others.

Work stoppage

Bar advocates — court-appointed private attorneys who defend 80% of indigent criminal defendants in Massachusetts — in Suffolk and Middlesex counties stopped working in late May due to a disagreement over hourly rates.

The stoppage led to such a backlog that the CPCS filed for relief with the Massachusetts Supreme Judicial Court. Justice Dalila Argaez Wendlandt last week ordered the courts to follow something known as the Lavallee Protocol in response to the issue.

The protocol, as Wendlandt describes it, allows for a defendant to be held in lieu of bail or under preventative detention for no more than seven days without a lawyer. Any defendant entitled to appointed counsel must not be forced to wait for more than 45 days for an attorney.

Bar advocates receive $65 per hour for district court-level criminal cases, according to data provided by CPCS. These are the attorneys who are on strike.

Attorneys working in the superior and appeals courts make $85 per hour and those who handle murder defendants make $120 per hour. These higher-paid attorneys are not part of the strike.

As Wendlandt noted in her order, the legislature has not raised rates for bar advocates for years.

The pay for bar advocates in Massachusetts, the most populous state in New England, pale in comparison to their regional neighbors: their counterparts in Rhode Island make $112 per hour, in New Hampshire make $125 per hour and in Maine make $150 per hour, according to Defender Services Office Training Division in Washington D.C.

CPCS proposed that the rates go up to $73 per hour over two fiscal years. The organization says that each dollar of wage increase could cost $1.2 million in projected expenditures.

McGovern, the CPCS spokesman, said that staff attorneys with his organization are salaried criminal defense attorneys who usually represent 20% of criminal defendants. That group, which is also not on strike, is at capacity and will struggle to handle more criminal cases if this continues.

“We are fully committed to ensuring that every client we serve receives their constitutional right to counsel, even in these extraordinarily challenging circumstances,” McGovern said.

“CPCS is actively working to fulfill our constitutional mandate by triaging cases, prioritizing clients in custody, deploying staff attorneys where capacity allows, and engaging daily with private counsel and bar advocate organizations to identify available resources,” he added. “We are also maintaining open lines of communication with court leadership and policymakers to support long-term solutions.”

Cases affected

Wendlandt in her order identified 587 unrepresented indigent defendants in the district courts of Middlesex County, at least 25 of whom were detained without representation, six of whom have been held longer than seven days.

The justice also identified 557 such defendants with cases in the Boston Municipal courts, with 36 in custody and a total of 21 Suffolk County detainees in custody for more than seven days.

BMC Chief Justice Tracy-Lee Lyons on Monday released four indigent defendants, including two Boston men facing drug possession and distribution charges, and another accused of strangling his pregnant girlfriend. One was previously convicted of assault and battery with a dangerous weapon and other drug offenses

Lyons held one defendant charged with motor vehicle offenses on a separate warrant.

An ongoing issue

There is no fix for the work stoppage on the immediate horizon.

Shira Diner, a board member and past president of the Massachusetts Association of Criminal Defense Lawyers who is leading the organization’s efforts on the issue, told the Herald on Tuesday that the state has “ignored the issue of insufficient number of bar advocates for years.”

“The criminal legal system is based on constitutional principles of due process. Everyone in the system has a role to play. When one group, in this case defense lawyers, are unable to play their part, the entire system is unable to function,” Diner continued.

“The legislature needs to act quickly to raise the rates for the bar advocates so they will be able to go back to the critical work of representing 80% of the indigent defendants in Massachusetts,” Diner continued.

A spokesperson for Gov. Maura Healey said the governor “is concerned about the negative public safety impacts of this work stoppage” and “urges all those impacted to work together to reach a resolution and ensure that all defendants receive the representation to which they are entitled.”

“Bar advocates do incredibly important work to make sure that everyone has their due process rights protected, and they deserve to be paid a fair wage,” Healey Press Secretary Karissa Hand told the Herald Tuesday.

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