Black Lives Matter defendants discuss their position after Judge Paul Fritzsche ordered them and a group of state attorneys to try to reach a new agreement for restorative justice before entering a hearing on Monday. Staff photo by Derek Davis

A court hearing for 17 Black Lives Matter protesters arrested last summer was cut short Monday when the presiding judge unexpectedly recused himself at the request of a defense attorney.

Justice Paul Fritzsche offered no explanation for his abrupt departure from the court hearing, which was disrupted by vocal supporters of the defendants, prompting a warning from bailiffs that some supporters may be ejected from the courtroom.

The surprising development came during defense attorney Thomas Hallett’s aggressive cross-examination of Deputy District Attorney Jennifer Ackerman. Hallett’s line of questioning suggested that Ackerman committed an ethical violation for insisting on meeting with the protesters during a restorative justice proceeding without formally notifying all of the defense attorneys.

TESTY EXCHANGE, THEN RECUSAL

Fritzsche sustained an objection from Assistant District Attorney Amanda Doherty about the relevance of Hallett’s questions during Monday’s hearing, which was supposed to determine whether the 17 protesters who were arrested July 15 for blocking a portion of Commercial Street fulfilled their contractual obligations set out in the restorative justice agreement.

That prompted a testy exchange with Hallett, who said he was “deeply disturbed” by the judge’s point of view. Fritzsche responded in kind, saying he also was “deeply disturbed” at Hallett’s “marketing and posturing and being such a difficult attorney.”

Hallett then asked the judge to recuse himself from the proceedings. Fritzsche, an active retired judge, granted the request immediately. “We’re done,” he said, leaving the attorneys stunned and the Black Lives Matters protesters and nearly two dozen supporters ecstatic.

Defense attorney Thomas Hallett speaks at Monday’s hearing for 17 protesters arrested during a Black Lives Matter rally last July 15. Staff photo by Derek Davis

The court is expected to reschedule the hearing before a different judge.

“I have never seen anything like that,” said Cumberland County District Attorney Stephanie Anderson. “I think it was very disrespectful conduct by the (defense) attorney and very disrespectful conduct of the people in the courtroom.”

Outside the courtroom, Hallett said Fritzsche was a “friend and good judge.” He said Fritzsche’s quick decision to recuse himself was “pretty unusual.”

“(Fritzsche) was upset with me, and I guess I understand that to a certain extent,” Hallett said. “I was not entirely following his directions. In the long run, I had just felt that things had gotten out of hand.”

After the hearing, the protesters issued a statement saying the “generalizations” that Fritzsche made about the movement were “infantile and violent” and “revealed his obvious bias.”

“Just like the restorative justice session, we came ready to participate,” the group said. “But representatives of the state continuously show that they are incompetent and incapable of fulfilling their duties. The only skill they have been able to show is the ability to use any and every measure possible to silence black voices.”

Mary Ann Lynch, a spokeswoman for the Maine Judicial Branch, told the Portland Press Herald that Fritzsche would not comment on his recusal.

“As a general matter, sometimes judges will state on the record why they have recused themselves, (and) at other times they just recuse themselves,” Lynch said in an email. “They do not need to state a reason. A judge will not make a statement outside of court as to why they recuse.”

When defense attorney Thomas Hallett said he was “deeply disturbed” by the point of view of Judge Paul Fritzsche in upholding a prosecutor’s objection, then asked the judge to recuse himself, Fritzsche said, “Granted. We’re done,” and left the courtroom. Staff photo by Derek Davis

PURPOSE OF RESTORATIVE JUSTICE

Fritzsche served as a York County Superior Court justice for almost 30 years, retiring from that position in 2015. He was a public advocate from 1983 to 1986, representing consumers before the state Public Utilities Commission, in court and before the Legislature. He also served from 1975 to 1981 as staff attorney and directing attorney for Pine Tree Legal Assistance in Lewiston and Portland. He graduated from Worcester Polytechnic Institute and earned a law degree at the University of Maine School of Law.

During the hearing, Fritzsche had expressed the view that the protesters waived their right to an attorney by agreeing to the restorative justice proceeding, knowing their attorneys would not be present and that state prosecutors would be there with Portland Police Chief Michael Sauschuck.

Restorative justice is a movement to offer an alternative to retributive justice and its emphasis on punishment and separating offenders from society. Key tenets of restorative justice include giving voice to victims, having offenders accept accountability and giving communities affected by crimes ways to heal.

Fritzsche said his previous experience with civil rights groups indicated that they like to feel empowered during negotiations and often give their attorneys a secondary role. He also said that the restorative justice hearing was not supposed to focus on whether protesters blocked the street, but “to improve the relationship between minority people and the police.”

Hallett said he was upset that the judge was using information gleaned beyond the court hearing to justify his position, rather than relying on the record being built by attorneys. He also argued that the defendants could not waive Ackerman’s ethical obligations to receive permission from defense attorneys to speak to their clients without them present.

Salma Hassan, 23, of Portland reads a statement on behalf of herself and 16 other Black Lives Matter protesters Monday outside the courthouse. Staff photo by Derek Davis

Before the hearing got underway Monday, Fritzsche asked both sides to come up with an agreement that would allow the restorative justice process to resume. He implored both sides to discuss their concerns with each other in an effort to reach a common understanding and move forward in a more productive way, saying he feared a court hearing would only exacerbate tensions between the group and the police.

DISRUPTION DURING PROCEEDING

A restorative justice meeting that had been planned in February between Portland police and the protesters was called off at the last minute after the two sides could not agree on how the meeting should proceed – in two groups held separately, or as one – and who should be allowed to observe the process. The District Attorney’s Office tried to enforce part of the agreement to divide the protesters into two sessions; the protesters wanted to remain together.

The protesters also objected to the presence of an observer from the American Civil Liberties Union of Maine, and to the presence of Rachel Talbot Ross, a state legislator and head of the local chapter of the NAACP. The protesters asked her to leave, Deputy District Attorney Jennifer Ackerman said.

After that session failed, the state refiled the charges, leading to Monday’s hearing.

On Monday, the protesters insisted on moving forward with the court hearing. Hallett, who had previously cautioned Fritzsche against prejudging the case, said the hearing was important to the protesters because they feel the justice system does not listen to people of color.

During the hearing, the Black Lives Matter protesters voiced audible disapproval at the state’s description of the events leading up to the restorative justice session in February. They could be heard snickering at several of Hallett’s objections, including one in which he suggested the state’s testimony was “a tad self-serving.”

A bailiff had to restore order to the courtroom when Hallett asked why state prosecutors invited the NAACP to the restorative justice hearing.

“Did you make the decision that it was appropriate to invite someone from one black organization to sit in on a restorative justice meeting simply because they were the same skin color as some of the people who were going to be at the restorative justice meeting?” Hallett asked, prompting an objection from the state.

The judge allowed Ackerman to respond. She said that she didn’t know whether the local groups were mutually supportive, but assumed they were, based on their relationship elsewhere in the country.

Shortly after, Hallett began questioning Ackerman about whether she violated ethics rules by insisting on accompanying Police Chief Sauschuck at the restorative justice meeting without informing all 16 defense attorneys.

Fritzsche called a short recess after clashing with Hallett about whether that had violated the defendants’ constitutional rights to due process and the right to an attorney. The judge had opined that those rights had not been violated because the discussion was not about whether protesters blocked Commercial Street, but was about improving relationships.

ATTORNEY, JUDGE DISAGREEMENT

After the short recess, bailiffs warned the defense attorneys that anyone who interrupted the proceedings again would be ejected.

Once in session, Fritzsche further explained his position.

“The understanding I have is the (restorative justice) discussion that was going to take place was not about what took place the day they were charged. That had nothing to do with it,” he said. “The point was to improve the relationship between minority people and the police.”

Hallett shot back, “Your honor, I am deeply disturbed that you are drawing on outside information … to make conclusions.”

Fritzsche replied, “I’m deeply disturbed at your marketing and posturing and being such a difficult attorney, so get on with your next question.”

That prompted Hallet’s motion for recusal.

“Granted. We’re done,” Fritzsche said before walking briskly out of the courtroom.

Randy Billings can be contacted at 791-6346 or at:

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