A Mass. judge just did something unprecedented to address state’s massive court crisis
An unprecedented work stoppage by private defense attorneys that has plunged Massachusetts' court system into chaos entered deeper uncharted territory on Wednesday when a judge ordered three attorneys to be paid an hourly rate of $100 .
Bar advocates stopped taking new cases in late May. Since then, thousands of criminal defendants in Massachusetts have gone without counsel as the lawyers pushed legislators for a raise to bring their hourly rate up to $100 an hour.
As a result, the state's high court triggered a protocol aimed at protecting defendants' rights in the unprecedented situation. The protocol allows judges to release defendants held in custody after seven days if they don't have a lawyer, and to dismiss cases after 45 days.
Wednesday marked an inflection point in the work stoppage — legislators unveiled a spending package that gives the bar advocates a $10 raise each of the next two years. At almost the same time, Lowell District Court Judge John Coffey went much further, ordering the Committee for Public Counsel Services to pay three bar advocates $100 an hour.
CPCS is the state's public defender agency and is responsible for paying bar advocates with money provided by the legislature, which sets the rates those lawyers make. Coffey's order appears to be the first time a District Judge has intervened in such a dramatic way — essentially cutting the legislature out of the process.
Mixed opinion from experts
Legal experts were split on whether Coffey actually had the authority to order CPCS to pay the lawyers a certain amount.
Attorney Arnie Rosenfeld, CPCS' first-ever chief counsel, said in a Thursday morning interview that Coffey overstepped.
"The rates are set by the legislature, not by judges," Rosenfeld said.
When the bar advocates appointed Wednesday submit a bill to CPCS at $100 an hour, the agency is unlikely to pay it, Rosenfeld explained.
Still, he supported the spirit of the order.
"I think the judge is trying to do the right thing," he said. "He doesn't have the authority to do it, but he probably knows that."
Aliza Hochman Bloom, a professor at Northeastern University, said Coffey's order appeared to conflict with Article 30 of the Massachusetts Declaration of Rights, which sets out the separation of powers.
Essentially, judges can't do the work of the legislature, and by law, it is the legislature's responsibility to set rates for private defense attorneys.
"But this is a weird time and I bet it passes muster in a crisis-type scenario," Hochman Bloom said in an email.
Theoretically, there is nothing stopping other judges from following in Coffey's footsteps. While it's not clear if his order will ultimately be upheld, other judges could try and follow suit in an effort to stem the tide of the crisis.
For its part, CPCS did not answer when asked whether it intended to pay the lawyers $100 an hour. But it was the agency itself that suggested to Coffey he order the bar advocates be paid at that rate.
Robert McGoven, a spokesperson for the agency, said it was doing everything it could to make sure that its clients were represented by a lawyer.
"These are difficult times," McGovern said, adding the agency was hopeful things would move forward when Gov. Maura Healey signed the pay increases into law. "If this crisis continues, we will do everything we can to address it with the resources we have."
But multiple bar advocates told MassLive on Wednesday they had no plans to return to work for the extra $10.
Jennifer O'Brien, a bar advocate who works in Middlesex County, called the legislature's proposal a "slap in the face." Another, Sean Delaney, said legislators needed to stop "acting like children."
A public safety crisis
It's clear, though, that the bar advocates, the legislature, CPCS and the state's court system can agree: the current stoppage represents an enormous public safety concern.
Two of the men for whom lawyers were appointed for on Wednesday are facing serious felony charges.
Solomon Adomako is charged with assault and battery with a dangerous weapon, and carrying a loaded gun without a license, among other charges, in connection with an incident a cookout on Common Avenue in Lowell the evening of June 20, according to the Lowell Sun. Another, Cisco Rivera faces four counts of assault and battery with a dangerous weapon in connection with the same altercation.
Prosecutors moved to have both men held without bail under the state's dangerousness statute, essentially arguing they were too dangerous to even get a chance to be freed from jail. As a result, even though the men went seven days without a lawyer, Coffey refused to release them.
Coffey repeatedly found CPCS had not made a "good faith" effort to find Adomako a lawyer, allowing him to be held beyond the seven days laid out in the protocol.
Could history be a guide?
As those involved scramble to find a solution, a defense attorney shortage in 2019 could be instructive.
At the time, facing a shortage of bar advocates in Hampden County, CPCS instituted an "emergency rate" to get private lawyers to work duty days, where they represented multiple clients over the course of a day. The rate brought pay for bar advocates from $50 an hour for district court cases to $53 an hour, which amounted to a $24 increase over an 8-hour day.
Weeks later, hundreds of duty day slots had been filled.
But in 2004, when the Lavallee protocol was instituted the first time, the chief counsel for CPCS filed a motion seeking higher pay for bar advocates than had been allocated by the legislature. A Hampden County judge denied the motion.
The question posed by Coffey's orders may well require the Supreme Judicial Court to step in. Thus far, Justice Dalila Argaez Wendlandt, who is overseeing the Lavallee protocol's implementation, has declined to force the legislature's hand and institute a higher pay rate for bar advocates, despite requests from CPCS she do so.
Lavallee Protocol
Read the original article on MassLive .
