MACHIAS — Voters may get a chance to decide whether Washington and Hancock counties should establish separate prosecutorial districts or continue to share a district attorney.
At the request of Washington County Sheriff Barry Curtis, state Rep. Will Tuell (R-East Machias) is proposing a bill that would put the question on the ballot in both counties in the November general election.
“Resources are spread out and that’s not really good for speedy justice or service,” Tuell said. “It makes sense that we do this.”
Washington and Hancock counties make up prosecutorial District 7, currently served by District Attorney Matt Foster. Only Aroostook, Cumberland and York counties have their own district attorneys. The other 11 counties share with one or more other counties.
If the Legislature passes the bill, the question will appear on the November 2020 ballot. If voters in Washington and Hancock counties approve Tuell’s measure, District 7 would be dissolved. Two new districts would be established following the November 2022 election, at which time district attorneys for each county would be chosen. Officials in either county could opt to join a prosecutorial district with another county if the decision is made by Jan. 1, 2022.
“If people don’t want to do it, we can at least say we gave [the choice] to the voters,” said Tuell, adding the next step in the process would be a public hearing in Augusta, to be scheduled most likely in January.
Curtis said he thinks it’s “ridiculous” to have a single district attorney cover a geographic area of more than 5,603 square miles. Washington County encompasses 3,258 square miles and Hancock County is 2,345 square miles, according to figures from the U.S. Census Bureau.
“The state can’t say there’s not enough work down here,” said Curtis. “We don’t have enough quality time with the cases we’re representing.”
Foster disagrees that Washington County needs its own district. What is needed, he said, is for the state to come up with more incentives such as increased salaries or loan repayment options to attract young, qualified attorneys to rural areas and give them a reason to stay.
As it is, he said, there aren’t enough qualified people to keep Washington County’s assistant district attorney positions filled.
“Splitting the district and making Washington County its own district will very likely compound the problem, not fix it, in my opinion,” Foster said.
Since Foster took office in January 2015, numerous Washington County assistant district attorneys have come and gone, most leaving to accept higher-paying positions elsewhere. Efforts to find qualified replacements have not been successful.
“I did receive inquiries from a few potential applicants from other states looking to move to Maine, but when they saw the salary, the location and the caseload, they withdrew their interest,” he said.
Ideally, Foster said, he would spend one day a week at the district’s Machias office and one day per month in Calais. However, because of the staffing situation in Washington County, he has been spending three days a week in Machias and one day a week in Calais.
The travel time from Ellsworth to Machias is about an hour and 15 minutes. Another hour is required to get from Machias to Calais. Although Foster described the travel time as “troublesome,” he said he is on call 24 hours a day, seven days a week, so travel does not interfere with the time needed to get the job done.
“That simply means I wind up working late or on weekends,” he said.
Foster’s current staff of assistant direct attorneys includes three working full time in Ellsworth, one working part time in Calais, and one working full time in Machias.
Another 2.5 assistant district attorney positions remain unfilled, including a half-time position in Calais, a full-time position in Machias and a full-time district-wide impaired driving special prosecutor position.
“Right now, I am able to draw on the resources of Hancock County to help alleviate the staffing issues in Washington County,” Foster said, adding Ellsworth assistant prosecutors help screen cases, handle conflicts and cover court matters in Washington County. “If Washington County were its own district it would lose that resource and be on its own.”
Several other issues compound the problem of creating a new district, according to Foster. For example, only four attorneys currently practice criminal law in Washington County. The most likely candidates for district attorney would be among them.
“If a defense attorney is elected as the DA in Washington County, it will further erode the pool of defense attorneys in the area and, if the new DA hires any of the other defense attorneys to become [assistant district attorneys], it will leave Washington County in a dire situation,” Foster said.
The costs of bringing in lawyers from other areas to handle cases as public defenders would be significant, he said.
Another financial consideration is the cost of case management software and technical support, which the state’s eight prosecutorial districts share equally. Currently, District 7 pays one-eighth of the total cost, with its two counties each chipping in half of that. If Washington County becomes a ninth prosecutorial district, both Washington and Hancock counties will see a significant increase in their share of those costs.
“What is really shocking to me is that nobody thought to ask me about these issues prior to pushing forward with this proposed legislation,” Foster said. “I suppose that if the real issue is wanting local control then those financial issues are secondary, but if the issue is access and perceived caseload, then those issues should be very relevant.”
Curtis said his request is “not a political thing,” adding that he has no criticism of Foster. However, he believes a separate prosecutorial district for Washington County is a “necessity that was taken away” in the 1970s, when the two counties were combined into one district as a cost savings measure.
“That works for awhile but you got to look at it every once in awhile to see if it’s still working,” he said.
Curtis said he sees caseloads increasing, adding that a single drug bust in Washington County in May yielded 25 arrests. In addition, he said, each individual case is becoming more time consuming with multiple court appearances required before trial.
While Foster disagreed that caseloads are increasing, he agreed that the complexity of cases and the workload required to prosecute them are.
“Even cases that seem simple can be enormously time-consuming in today’s judicial system,” Foster said.
District 7 handles about 3,500 new cases each year, with 75 percent originating in Hancock County. That means that if the district is fully staffed, each of its six assistant prosecutors handle about 583 cases per year. That number, Foster said, is among the lowest in the state of Maine, but more than double what is recommended by the American Bar Association.
“If the state wants to see the judicial system improve, it needs to allocate appropriate resources,” Foster said. “I can tell you that an overworked [assistant district attorney] is much less likely to think outside the box to come up with a creative solution in a case than an [assistant district attorney] who has the time to make a careful analysis of what a defendant truly needs to help them, rather than a fine or jail.”
Correction: An earlier version of this article contained an error. District 7’s case load is among the lowest in the state, not the highest.