Probable right to counsel absent trial bifurcation

In 2021, Maine enacted a bill entitled “An Act To Strengthen Protections against Civil Asset Forfeiture.” See H.P. 1125 – L.D. 1521 (2021). Many consider this change to have largely abolished civil forfeiture, since a conviction is generally required before property can be forfeited in the state of Maine, except in instances where (i) the property is forfeited as part of a plea agreement or grant of immunity or reduced punishment [Sec. 13.15 MRSA § 5826, sub- §9(A)]; or where (ii) the court grants the state’s motion to waive the conviction requirement upon the basis of a showing made by a preponderance of the evidence that, prior to conviction, the defendant (a) Died; (b) Was deported by the United States Government; (c) Abandoned the property; or (d) Fled the jurisdiction. [Sec. 13.15 MRSA § 5826, sub- §9(B)].

Criminal defendants whose property is subject to forfeiture are most likely are entitled to an attorney, as the criminal forfeiture must generally be held in a single proceeding together with the trial of the related criminal violation.  However, the court may, upon motion of the defendant or the state, bifurcate the trial, pursuant to ME ST T. 15 § 5826.  Scholars note the public policy reason behind trial bifurcation:

Eventually, the courts formed a consensus that bifurcation of the criminal trial is preferred because it prevents the jury from hearing the forfeiture issues until after the defendant has been convicted on a predicate forfeiture charge. To avoid forfeiture as a consideration in the jury’s determination of guilt or innocence, the forfeiture is reserved until after the jury has returned a general verdict.

Heather J. Garretson, Federal Criminal Forfeiture: A Royal Pain in the Assets, Review of Law and Social Justice, Vol. 18:1 (2008) (internal citations omitted).  Bifurcation of the trial might impact the criminal defendant’s right to an attorney in the forfeiture proceeding, as there is precedent such as Scott v. Illinois, 440 U.S. 367 (1979), that suggests the right to counsel only attaches where incarceration is actually imposed (modifying Argersinger v. Hamlin, 407 U.S. 25 [1972], which had held counsel required if imprisonment were possible).

Intervening Claimant

Pursuant to Sec. 14. 15 MRSA § 5828, a person with an interest in the property can petition the court for a post-seizure hearing.  The hearing may be held either as “[a] separate hearing; or [a]t the same time as a probable-cause determination, a post-arraignment hearing or other pretrial hearing.”  There is nothing to indicate that the intervening claimant is entitled to counsel.