He sat in a Maine jail cell for 85 days without an attorney

For 85 days, Wayne Boulier II of Bangor sat in a series of county jails, waiting for an attorney.

Boulier was arrested in Penobscot County on April 4 for allegedly trafficking fentanyl. He was sent to the Franklin County Jail, a common occurrence because of overcrowding at the Penobscot County Jail.

He had hearings scheduled every seven days. Some were canceled, while others ended with him being told there was still no lawyer available to take his case.

On June 24, Boulier filed a federal lawsuit against Maine Commission on Public Defense Services alleging his lack of an attorney violated his constitutional rights. In the lawsuit, he asked for an attorney to be assigned to his case immediately, as well as punitive damages to compensate for his time incarcerated without legal representation.

Boulier finally received a lawyer from the Rural Defender Unit on June 27. He received notification of the assignment by mail on July 1, according to court records.

Boulier is just one of hundreds of people sitting in Maine jail cells waiting for an attorney. His case highlights the two tiers of the state’s criminal justice system, in which one tier can afford to hire representation and the other relies on state-funded lawyers through the indigent defense system.

Maine has about 950 adult and juvenile cases waiting for state-appointed lawyers.

Maine’s indigent defense system provides state-appointed attorneys for low-income people who cannot afford to hire a private lawyer. If someone can afford to hire an attorney, their case can move forward, such as getting in front of a judge to argue for a lower bail. People who can’t afford to hire one may also not be able to afford bail, leaving them in jail while they await representation.

“It’s almost like you can buy your freedom nowadays, but if you can’t afford bail, or you can’t afford an attorney, you’re put on the back burner until a second attorney will take the scraps,” Boulier said. “I feel like table scraps for attorneys. It’s not a good feeling.”

Kimberly Boulier lost count of how many times her husband’s court date was delayed because he didn’t have an attorney.

“He’s just sitting there rotting because we don’t have the money,” Kimberly Boulier said. “It’s just not fair that people who don’t have the money for the lawyers aren’t getting public defenders at all.”

There are three different cases pending against Boulier. The April arrest was for drug trafficking,  misdemeanor theft and allegedly bringing contraband into the Penobscot County Jail. The two other cases are a probation violation from a previously adjudicated case and a misdemeanor operating after revocation of a license.

After Boulier’s April 4 arrest, he was originally assigned the same attorney he had for the probation violation case. However, that attorney quickly resigned from both cases because of a conflict of interest, according to court records.

The day after his arrest for allegedly trafficking drugs, Boulier was granted a $50,000 cash bail, which he said he cannot afford to post. Because he did not have an attorney, he did not have any hearings to request a reduced bail amount.

“If we had finances, if we had money, I wouldn’t be sitting here right now,” Boulier said. “That’s frustrating.”

He argued he’s not a public safety risk, instead he’s only a risk to himself because of his chance of relapsing into substance use.

Boulier’s next court appearance is scheduled for Aug. 22 for a probation revocation hearing.

Gov. Janet Mills signed legislation in March that increased the hourly rate for lawyers on the roster for the Maine Commission on Public Defense Services from $80 to $150. It’s resulted in more lawyers taking on cases, but it isn’t keeping up with the “flood of cases pouring into the system,” the commission’s Executive Director Jim Billings said.

In recent weeks, seven people filled out applications to be part of the commission, while 11 lawyers asked to be put on panels that take specific types of cases, Billings said.

The bill from Mills also created two new public defenders offices, one for Penobscot and Piscataquis counties and another in Aroostook County . Those offices should start taking cases in roughly the next month. Once they’re fully up and running, the offices should take about 30 percent of indigent defense cases, starting with misdemeanors and low level felonies.

Adding lawyers to indigent defense is not going to solve Maine’s criminal justice crisis by itself, Billings said. District attorney offices — which are also state-funded — decide which cases to prosecute, which to dismiss and what, if any, plea agreements to offer.

“I think it’s important for prosecutors — who also have a limited amount of resources — to better exercise their discretion and decide which cases are really important to use judicial resources on and defense budget resources on,” Billings said.

Another way to help mitigate the crisis could come from the state Legislature, Billings said. Some criminal charges could be changed to civil infractions. There could also be diversion programs before someone is criminally charged for minor offenses that are not a threat to public safety, which would avoid clogging the courts, he said.

“Is there some way to handle the cases on the front end, rather than putting them in the queue with all the other cases?” Billings said.