ELLSWORTH, Maine — Matt Foster won’t take over as the new district attorney for Hancock and Washington counties until Jan. 2, but he already is learning about the challenges of the job.
Foster does not have any prior experience as a prosecutor, and he is scrambling to find replacements with the four most experienced prosecutors in the two counties leaving. The low amount of money available to pay prospective assistant district attorneys is complicating his efforts to hire experienced help, he said.
Three relatively recent hires in the district, none of whom has substantial prosecutorial experience, will stay and work under Foster after the end of the year. But assistant district attorneys Paul Cavanaugh, Bill Entwisle and Mary Kellett, each of whom has more than a decade prosecuting defendants in the two counties, are leaving.
Also leaving is District Attorney Carletta “Dee” Bassano, who decided not to seek re-election.
Cavanaugh ran against Foster in the Republican primary for the position while Entwisle ran against Foster during last month’s general election. Foster has been critical of Mary Kellett, who was sanctioned last year after the Maine Board of Overseers of the Bar determined she violated rules of the bar in prosecuting an alleged sexual assault case five years ago. While campaigning, Foster said Kellett’s sanction was an example of how the district attorney’s office has been poorly run.
Foster, who was elected Nov. 4 with just over 56 percent of the vote, said Friday that the Maine attorney general’s office has placed restrictive financial limits on pay for new hires. All prosecutors in Maine are funded through the Attorney General’s office, while clerical positions in each district attorney’s office are funded by their respective county governments. Funding for prosecutors is not designated by county or district but is allocated on a statewide basis, usually in group negotiations between the attorney general’s office and the elected district attorneys.
Cavanaugh is leaving to take a position as an assistant district attorney in Kennebec County. Entwisle accepted a job as an assistant district attorney in Waldo County. Both will be paid the same amount they were paid while working under Bassano, according to Foster.
Foster said he would like to hire attorneys who have commensurate experience as prosecutors, but the attorney general’s office is only willing to pay new prosecutors low-level salaries. As a result, he is having difficulty finding an attorney with significant prosecutorial experience who can help him and his assistants learn the ropes as they take on the district’s criminal caseload.
“There’s no one with any experience who’s willing to do it,” Foster said. “The position that [the attorney general’s office is] taking, to me, is very unreasonable.”
Attorney General Janet Mills, however, strongly disputes Foster’s description of her office’s position on his situation. She said Friday evening she discussed the situation with Foster and, over the objection of some other district attorneys who also want additional personnel funding for their offices, has come up with extra money so Foster can hire more experienced help.
“I’ve bent over backward to let him pay two people significantly higher than starting-level compensation,” Mills said, without referring to specific dollar amounts. “None of us wants to see victims of crime suffer because [a rookie prosecutor] comes in and doesn’t understand the [criminal court] docket.”
Elected district attorneys usually serve for long periods of time and leave office voluntarily, handing the reins over to an experienced prosecutor already working in their office. As a result, large-scale defections are rare but not unheard of, according to attorneys who work in the state criminal justice system.
In 2012, after longtime Kennebec and Somerset counties district attorney Evert Fowle was appointed as a district court judge, most of the assistant prosecutors left that office prior to Maeghan Maloney taking over as the top prosecutor in January 2013. Two months after she took over as district attorney, Maloney held a press conference to announce her new hires and to assure the public the prosecutors in her office were “experienced and ready to work.”
Maloney said Monday that when she was faced with making a lot of new hires prior to taking office, she worked out a transition plan with acting District Attorney Alan Kelley, whom she defeated in the Democratic primary. She said reaching out to Kelley and other district attorneys for guidance was “critical” to finding new prosecutors.
She said she advertised heavily for the openings and, with the active participation of a former district attorney, interviewed more than 30 people. She said she was “very lucky” that Fernand LaRochelle, who had worked as a homicide prosecutor for the state for more than 30 years and had led the criminal division at the attorney general’s office, was willing to come out of retirement to be her deputy.
But Maloney acknowledged the lack of funding for hiring experienced prosecutors is a problem.
“It’s incredibly difficult to find people at low salaries,” she said.
Bassano, who said she plans to retire from practicing law after leaving office, said Tuesday she has not had much discussion with Foster about handing over the reins to him. She said they met once briefly after the election but did not have a substantive conversation about what responsibilities and cases he would take on when he assumes office. Since that conversation, she has forwarded information to him via email, she added, but has heard little in return.
“I’m really concerned that the [prosecutorial] district transitions into responsible management,” Bassano said. “I would hope in the next two weeks he can find the time [to meet and talk].”
Foster said Friday he would like to hire Steve Juskewitch, an Ellsworth-based defense attorney who previously worked for 14 years as a prosecutor in Hancock and Cumberland counties. He said the attorney general’s office was willing to let him pay Juskewitch $57,000 a year, which is $10,000 more than an entry-level salary.
But $57,000 is less than what other prosecutors with the same level of experience are getting, Foster said, and is not enough money to get Juskewitch to take the job. He added Juskewitch is considering a short-term arrangement in which he would work part-time for Foster for no pay, temporarily relying on civil cases for income, while Foster and his full-time prosecutors get up to speed.
“That could be a solution, but it’s not one that sits well with me or that I think is fair or right,” Foster said of Juskewitch possibly working for a few months without pay.
Foster said Geoff Rushlau, the district attorney for Knox, Lincoln and Waldo counties, offered to let Entwisle work for Foster for the month of January before Entwisle transfers to Belfast. Entwisle said last week that although he has decided not to work for Foster for the long term, he would be willing to stay on for a few extra weeks to help in the transition.
Foster said he is hiring Norman “Toff” Toffolon, a longtime criminal defense attorney in Washington County, to be his top deputy district attorney even though Toffolon has no experience as a prosecutor. Chris Ka Sin Chu, Ethan Plaut and Delwyn Webster are the three relatively inexperienced assistant district attorneys in the two-county district who will stay on and help fill out Foster’s staff.
There still are two more prosecutor positions in Hancock and Washington counties that will be vacant, Foster said. He added he might be able to offer more money to prospective assistant prosecutors next summer, assuming there is more money available in the 2015-16 state budget. In the meantime, he probably would need to hire an existing prosecutor away from another district attorney’s office to get someone with the degree of experience his office needs, he said.
Foster said if he hires another attorney who has his or her own practice, it likely will take several weeks or even months for that attorney to wrap up ongoing projects or to hand off clients to another attorney. He said he has been winding his own practice down since the election in early November and still has more to do.
“We will work through it,” Foster said of making the adjustment. “I think we’ll get by.”
