On May 6, 2004, nineteen indigent criminal defendants with cases pending in Hampden County, Massachusetts, filed a lawsuit in the Massachusetts Supreme Judicial Court, pursuant to state law, claiming that they didn't have attorneys due to a shortage of lawyers in the Hampden County bar advocates program. The shortage was caused by the low rate of attorney compensation authorized by the state budget. The petitioners alleged that due to the underfunding, there were no longer a sufficient number of private attorneys willing to accept assignment of petitioner's cases. Petitioners asked the state supreme court to exercise its statutory or inherent powers of superintendence, as well as seeking a declaration that the trial judges could order that assigned counsel be compensated at a higher rate. Petitioners were represented by lawyers from the ACLU of Massachusetts, the Committee for Public Counsel Services, and private firms.

On July 28, 2004 the court (Spina, J.) concluded that inadequate compensation of counsel amounts to a deprivation of the constitutional right to counsel. The court ruled that no criminal entitled to a court-appointed attorney should be required to wait longer than forty-five days for an attorney to file an appearance. If such appearance was not made within forty-five days, the court held, the case against the defendant should be dismissed without prejudice. An indigent defendant held in lieu of bail or under an order of preventive detention may not be held more than seven days without counsel before the case is to be dismissed without prejudice. However, the court held that it was inappropriate for the Supreme Judicial Court to order judges to authorized compensation rates above what the legislature had determined is appropriate. behalf

Lavallee v. Justices In Hampden Superior Court, 442 Mass. 228, 812 N.E.2d 895 (2004).

Next, the case was sent to a single justice of the Supreme Judicial Court--Justice Spina--who was assigned to determine the appropriate mechanism for putting into place the forty-five and seven day deadlines. Justice Spina apparently held a hearing on the matter on August 6, 2004 vacating the matter of one of the indigent defendants and remanding the matters of the others to determine whether to impose probationary conditions or to simply release the defendant. On August 17, 2004 Justice Spina made an interim order allowing judges in arraignment sessions to assign counsel from lists created with the Regional Administrative Justice for the Superior Court for the western region and to compensate them as per the rates approved by the legislature.

The case is apparently closed.

Dayna Frenkel - 02/18/2009


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