SJC rules against district court judge in indigent defense case

Justices agree attorney pay is key, but leave remedy to Legislature 

THE SUPREME JUDICIAL COURT ruled that a Springfield judge overstepped his authority in ordering the overburdened local public defenders’ office to take on more cases than the office said it could handle, but the justices deferred to the Legislature when it came to solving the problem of a chronic shortage of lawyers for poor defendants.

The closely watched case centered on criminal defendants’ constitutional right to counsel, and raised thorny questions about the separation of powers between the judicial and legislative branches of government. In the end, Monday’s unanimous ruling offered a plea from the SJC, rather than a judicial decree, for the parties involved to craft a long-term solution to the problem.  

The case started last year when the office overseeing indigent defense counsel services in Springfield said it had reached the breaking point in being able to provide lawyers for poor defendants.  

In Massachusetts, indigent defendants are provided a lawyer through a state agency, the Committee for Public Counsel Services. CPCS has staff attorneys who handle some cases, but the majority are assigned by the office to private attorneys, called bar advocates, who sign up to take indigent defense cases. 

The Springfield office faced a growing shortage of bar advocates, the result, nearly all parties agree, of low state-set payment rates for indigent defense counsel. In June 2019, the local office told Judge John Payne, the first justice of the Springfield District Court, that there were not enough bar advocates available for new cases coming through the court, and that the CPCS staff attorney caseloads made it impossible for them to provide adequate representation for new clients. 

Payne nevertheless ordered the office to have its attorneys appear in court to handle new cases. 

CPCS sought an emergency injunction from a single justice of the Supreme Judicial Court, and Justice Kimberly Budd voided Payne’s directive. She ordered the Springfield court to operate instead under a rule imposed by the SJC in a very similar case from 2004, which also involved a claim of a dire shortage of lawyers to handle indigent defense cases in Hampden County.

Under the “Lavallee protocol,” named after the indigent client in that case, any defendant who has been held following arrest for more than seven days without a lawyer is entitled to be released, and defendants with cases pending without counsel for more than 45 days are entitled to have their case dismissed.

The new case was then argued before the full SJC in November, and in today’s ruling the court said Payne’s order “overstepped the bounds of his inherent powers because it infringed upon CPCS’s statutory authority to control assignments and to limit caseloads for its staff attorneys.”  

The court expressed some sympathy, however, for Payne’s predicament. 

“We also appreciate the challenging circumstances that the First Justice faced when he issued the June 12 order,” said Justice David Lowy, writing for the court. “He properly recognized that indigent defendants were entitled to representation for bail and detention hearings and that their criminal cases could not proceed without timely appointment of defense counsel.” 

Bar advocates are paid $53 per hour for District Court cases and $68 per hour for non-homicide Superior Court cases. Those are lower than the rates proposed by a legislative commission 15 years ago. 

While CPCS has focused on winning support from the Legislature for an increase in bar advocate pay, a lawyer representing the Hampden County bar advocates argued to the SJC at November’s hearing that the constitutional right to defense was urgent enough for the court to order the Legislature to increase bar advocate rates. 

Given its track record in failing to approve increases in the bar advocate compensation rates, “the Legislature cannot reasonably be expected to solve this problem of constitutional dimension unless it is told not only that it should, but that it must,” Matthew Segal argued to the court.

But the justices were not inclined to cross that boundary and insert themselves into the legislative business of budgeting for the Commonwealth. “We defer to the Legislature’s authority, as the governmental branch vested with the power to make laws and appropriate funds, to devise an appropriate solution,” the ruling said.

 The court did set forth a clearer process for obtaining a court order invoking the Lavallee protocol. It called the process “strong medicine,” with its provisions for releasing defendants and dismissing cases without a hearing. But it reiterated that the stopgap protocol for handling cases in face of a defense attorney shortage “is only a temporary remedy, and it is not a panacea for solving the underlying shortage of defense counsel. To do that requires more systemic change.

Anthony Benedetti, the chief counsel at CPCS, praised the ruling and said the agency will press for that change with lawmakers.

Meet the Author

Michael Jonas

Executive Editor, CommonWealth

About Michael Jonas

Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency.

Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section.

Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston.

Michael lives in Dorchester with his wife and their two daughters.

About Michael Jonas

Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency.

Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section.

Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston.

Michael lives in Dorchester with his wife and their two daughters.

The ruling “highlights the importance of the right to counsel,” Benedetti said in a statement. “We will continue to work with the Legislature to fund rate increases for the private attorneys who do this vital work across the state.”

With state revenue poised to drop significantly due to the sweeping effects of the coronavirus crisis on the economy, however, bar advocate pay rates are likely to be one of many funding priorities lawmakers will be facing with suddenly very restrained resources.