The Supreme Judicial Court has granted emergency relief to trial and district courts, allowing more judges to hold hearings in criminal cases.
The motion filed by the Boston Municipal Court and the District Court notes that currently, only one judge in each court is hearing cases throughout the commonwealth. By allowing more judges to hold hearings, cases can continue to be adjudicated to keep the court system from falling further into backlog.
The motion to seek additional judges to hold hearings comes amid a work stoppage by bar advocates over demand for higher pay. These court-appointed attorneys provide legal representation in the majority of criminal cases against low-income defendants. Their work stoppage has resulted in case backlogs as well as some dismissed charges due to lack of timely representation.
According to the state’s Lavallee protocol, defendants cannot be held for longer than seven days without legal representation, and anyone who is released in a pending case is entitled to a legal representation by a lawyer within 45 days, or criminal charges against them may be dismissed.
The state’s Committee for Public Counseling Services provides public defenders to some indigent defendants. But CPCS attorneys cannot handle the full load of cases before the courts, so counties’ bar advocate programs, which contract with independent attorneys, help meet the demand. Shira Diner, a Boston University professor and past president of the Massachusetts Association of Criminal Defense Lawyers, said bar advocates typically make up about 80% of legal representation in criminal cases against low-income defendants.
“The numbers are just going pile up, and add up, and it has to stop,” she said. “The Legislature needs to make sure that we can get the courts back to functioning.”
On May 27, bar advocates stopped taking new cases over complaints of low pay by the commonwealth.
Diner said assigning more judges to hear cases is a Band-Aid approach. She believes the crisis can only be solved by addressing the issue of pay.
She said dismissing cases because the court doesn’t have a lawyer to represent defendants at a hearing isn’t right and it’s not the way the justice system is set up to serve the community or alleged victims.
“We have a system that we all have agreed to be in when it comes to our criminal legal system and it’s just not functioning,” she said.
“And I don’t think anyone wants dismissals solely for this reason. We want dismissals because we’ve done a good job as advocates. We want the system to work. We want lawyers back in court.”
Bar advocates are seeking to increase their pay from $65 to $100 an hour, which is still below what the position pays in nearby states. Maine bar advocates receive $150 an hour. In New Hampshire, they earn $125 an hour. In Rhode Island, their pay is $112 an hour.
Jennifer O’Brien, a private practice attorney and bar advocate, said younger attorneys who depend on bar advocate work find it’s financially difficult to exist on the current wage.
“It’s not just the hourly rate,” she explained, “it’s overhead in offices, supplies and malpractice insurance, legal research that they have to pay for.”
O’Brien said frustration over the wage discrepancy has pushed many attorneys across state lines where the pay is higher.
“We’re just asking to get us in the ballpark of those other neighboring states — and then, obviously, we’re looking in the next couple of years to get us equal to some of those states,” O’Brien said.
The governor’s budget that passed earlier this month did not include a wage increase for bar advocates.
There are 130 cases set to be heard in court Tuesday on the 45-day limit cases, and 225 more cases scheduled for Aug. 5. On Monday, the Supreme Judicial Court went ahead and allowed more judges to preside over the hearings without holding a hearing.
