Charges dismissed against dozens of defendants due to public defender work stoppage

About 100 criminal cases are being dismissed in Boston Municipal Court Tuesday because the defendants did not have legal representation. The dropped cases come as public defenders continue to refuse cases until the state raises their wages.

The charges, which included trespassing, drug trafficking, domestic violence and assault and battery with a dangerous weapon, were dismissed without prejudice, meaning that prosecutors can re-file the cases later. Any conditions involving the new cases were also dropped and fees and fines against the defendants were waived.

Tuesday marked 45 days since these defendants were charged — the maximum amount of time allowed before someone must have an attorney or the case must be dismissed. It was the first dismissal hearing since the work stoppage by many public defenders — sometimes called bar advocates — who are assigned by the state public defender agency, the Committee for Public Counsel Services.

CPCS said currently almost 2,700 people have not been appointed counsel and 148 people are in custody without legal representation.

During the almost four-hour hearing in Boston Municipal Court, Suffolk County prosecutors objected to some of the dismissals and asked for more time to find attorneys for some of the more serious charges.

"This is clearly a frustrating and sad day for the commonwealth," said Suffolk County assistant district attorney Marc Tohme.

During a recess, prosecutors and CPCS looked for attorneys to represent some of those whose charges were about to be dismissed. One bar advocate, attorney Robert Glotzer, agreed to take a handful of cases Tuesday after prosecutors asked him to represent some people so the charges against them could be preserved.

"These people are charged with serious offenses and in my view they should have counsel," Glotzer said. "I do understand and I absolutely support the need for higher pay for bar advocates but we have to balance that with the rights of a defendant."

Boston Municipal Court Chief Justice Tracy Lee Lyons said the hearing was following what are called the Lavallee Protocol, which the state Supreme Judicial Court outlined to deal with the cases affected by the work stoppage. The protocol requires that the state appoint an attorney to a defendant who can not afford one within 45 days or the charges are dismissed.  If legal representation is not provided to those in custody within seven days, they are to be released. Dozens of defendants have been released because the courts could not appoint lawyers to represent them.

"There is no protocol beyond the Lavallee protocols,"  said attorney Shira Diner, past president of the Massachusetts Association of Criminal Defense Attorneys. "The extent of this problem, this crisis, is so far beyond what the commonwealth has ever experienced, it is very much unchartered territory now."

At the conclusion of Tuesday's hearing, another prosecutor argued that district attorneys should not be scrambling to find attorneys and determining which cases should be preserved.

"Our position is that all indigent defendants are entitled to counsel," said  Suffolk County assistant district attorney Elisabeth Martino. "While it is globally the commonwealth that is responsible for finding counsel for defendants, it cannot be on the District Attorney's office to either; one, find counsel; or two, prioritize which cases are important for counsel to be appointed."

CPCS said the public defender system is "stretched beyond its limits" and staff members are working to protect clients constitutional rights to counsel.

"We commend the Court for standing by its constitutional obligation to ensure that no person is prosecuted without a fair opportunity to defend themselves,"  agency Chief Counsel Anthony Benedetti said in a statement.

The work stoppage began May 27, when many bar advocates refused to take new cases unless their wages are increased. The bar advocates represent close to 80%  of indigent defendants and have been seeking to increase their $65 hourly wage, which they say is lower than the rates paid in neighboring states.

The bar advocates are independent contractors and not unionized, but some said they've met with state lawmakers about a pay increase. No additional funding has been included in the state budget to raise their hourly rates and it doesn't appear that funding is forthcoming.

"The right to legal representation is a crucial element of the constitutional guarantee to a fair trial, said a spokesperson for House Speaker Ron Mariano." At the same time, the House has a responsibility to Massachusetts taxpayers to ensure that we budget in a fiscally responsible manner, especially during this period of significant economic uncertainty."

Gov. Maura Healey urged both sides to reach an "immediate resolution" and said she will work with them to try to make it happen.

"We need lawyers in court," Healey said at an event in Fall River Tuesday. "We need people back at work and certainly they need to be paid fairly. But this is a matter of public safety and they've got to sort this out and resolve this."

As more cases approach the 45-day limit, a spokesman for Suffolk County District Attorney Kevin Hayden said prosecutors will work to prevent more dismissals, calling them a threat to public safety. Suffolk DA spokesman James Borghesani said victim witness advocates from the DA's office are meeting with victims so they know what is happening.

"These are difficult conversations," Borghesani said. "We remain hopeful that a structural solution will be found to address the causal issues here and prevent any repeat."

With additional reporting from WBUR's Walter Wuthmann.