PORTLAND — Ernest Weidul’s legal team hopes to convince a jury that Roger Downs Jr. didn’t die from being punched in the head dozens of times by Weidul, but from a virulent strain of pneumonia.
Weidul was in Cumberland County Superior Court on Monday, facing a manslaughter charge. He is accused of recklessly or with criminal negligence causing Downs’ death in May 2010, after the two downed a half-gallon of coffee brandy, then got another bottle and drank that.
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Weidul’s trial could start with opening arguments as soon as Wednesday, or as late as May, depending on the availability of an analysis of the pneumonia that Downs had when he died.
“There are different strains of pneumonia. Some are more lethal than others,” said Amy Fairfield, the head of Weidul’s defense team, after Monday’s hearing.
The case is unusual for several reasons.
Downs didn’t die immediately after the beating. He woke up the next day, his eyes swollen shut, then fell back asleep. He eventually was taken to a hospital and died, two days after the attack.
Weidul initially was charged with aggravated assault and was close to pleading guilty. But six months later, when the state medical examiner determined the cause of Downs’ death, the charge was raised to manslaughter, which carries a maximum prison sentence of 40 years.
The medical examiner determined that Downs’ breathing was interrupted by swelling in his throat caused by blows.
Even after he was indicted on the manslaughter charge in December 2010, Weidul’s bail remained unchanged from the assault charge. He was released on $1,500 bail and remained free until he was arrested on a charge of criminal threatening at the Occupy Maine encampment in Lincoln Park in November.
Weidul is now being held without bail in the Cumberland County Jail.
Monday’s hearing before Justice Joyce Wheeler was held to determine whether statements Weidul made to a state caseworker can be admitted in his trial.
Deputy Attorney General William Stokes argued that the statements are not privileged because the caseworker, Todd Prevatt, is not a health care provider. Wheeler agreed.
Prevatt then recounted what Weidul told him the day after Downs was beaten, as Weidul changed out of his bloody T-shirt in Prevatt’s car.
Weidul told Prevatt that Downs kept flicking his fingers in Weidul’s face, flicking his hair and his hat.
“The guy was just messing with him,” Prevatt said. “Ernie told him several times to stop it and when he didn’t, Ernie beat the guy. I asked how many times. He said 40 or 50, or 30 or 40. He said he struck him in the face.”
During the proceeding, Weidul sat stoically next to one of his attorneys, Thomas Connolly, dressed in a suit and tie and wearing his hair in a ponytail.
Weidul had a caseworker because he is covered under the terms of the class-action lawsuit against the state and the Augusta Mental Health Institute over inadequate care. He suffers from disorders including delusions, anxiety and post-traumatic stress, Connolly said.
Connolly asked Prevatt whether Weidul told him he had been in a fight, which would suggest that Downs also was punching. Weidul did not elaborate, Prevatt said.
Prevatt gave his account while the jury remained outside the courtroom. His statements may be presented as evidence in the trial.
Whether the trial starts this week will depend on whether an analysis of Downs’ tissue, which should identify the strain of pneumonia he had, arrives from the federal Centers for Disease Control and Prevention in Atlanta.
If the analysis is not available for inspection by the defense’s experts this week, the trial will be postponed because of scheduling conflicts.
Weidul’s lawyers say that laryngeal edema, the cause of death cited by the medical examiner, is not likely to be caused by a beating, but can be caused by pneumonia.
During a hearing last week, the defense sought to exclude Medical Examiner Margaret Greenwald’s opinion on the cause of death as unreliable, but Wheeler rejected the request.
Staff Writer David Hench can be contacted at 791-6327 or at: dhench@pressherald.com
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