Federal and state courts in Maine are convening grand juries – a secretive part of the judicial system but a necessary hurdle for many criminal cases – for the first time since the pandemic hit in March.

Grand juries decide whether a prosecutor has probable cause to file felony charges against a defendant. They hand up indictments, which are usually required for those charges to move forward. The coronavirus put grand juries on hiatus, stalling hundreds of cases across the state. Some defendants who are waiting for indictments have been out on bail, but others have been in jail for months without any new court dates. While some courts in other states have convened grand juries on video conference, that method has been controversial.

The return of grand juries in Maine is a step toward routine court operations, but attorneys warned that the system will still be plagued with delays and uncertainty.

“One of the hardest things across the board for my clients is not knowing,” defense attorney Devens Hamlen said. “I’ve had a lot of conversations with clients saying, I don’t know, I’m not sure, things are really up in the air. It makes it very difficult for them to wrap their heads around how they’re going to proceed with the next six months of their lives.”

The process could also be delayed even further if courts cannot sit the minimum number of grand jurors. In state courts, a quorum is 13 people. In federal courts, it is 16.

Some courts have already been successful. Cumberland County selected 20 people and four alternates Monday. Others are still waiting to find out. York County has summoned 60 potential grand jurors for the first week of August. The federal courts wanted to convene two grand juries in July – one in Bangor and one in Portland – but only got a quorum in one.

“We do know that we can’t stay closed forever,” said Christa Berry, the clerk for the U.S. District Court of Maine.

BAIL HEARINGS PRIORITZED

In the early weeks of the pandemic, the courts prioritized bail hearings. Defense attorneys and prosecutors reached agreements so defendants could wait at home for trials that were suddenly postponed indefinitely. Jails released hundreds of people in hopes of reducing the potential for deadly outbreaks.

But some people were not released, and they still have not been indicted. For example, in York County, the top prosecutor said at least 50 defendants were still in custody last week without an indictment. She estimated that number represented 40 percent of the jail population at the time.

“It’s not the majority,” District Attorney Kathy Slattery said. “It’s a big slice.”

Defense attorneys said people who were released on bail still have to abide by strict conditions and, for some, random searches by police.

“They might not feel it every day, but they’re still in the system,” Hamlen said.

Meanwhile, the cases that needed to go to a grand jury piled up. In Cumberland County, District Attorney Jonathan Sahrbeck said his office usually receives 100 indictments each month, although he declined to say exactly how many cases are in limbo. At that rate and with no grand jury for three months, that backlog adds up to more than 300 cases. In York County, Slattery said she has more than 200 cases that are waiting for indictments.

Prosecutors said they would prioritize cases in which the defendant is in custody. Sahrbeck said his office is required to present a case within three sittings of the grand jury from the time of the arrest, so the amount of time passed is also a factor.

“Right now, we are trying to go forward with the presentation of as many cases as we can, but at the same time, we’re not pushing or rushing anything through,” Sahrbeck sad. “This is a system that’s very important. We’re not going to be able to catch up on three months of missed grand jury in one week.”

Grand jury proceedings are one-sided. A prosecutor presents a case unchecked by a defense attorney. The legal threshold for an indictment – probable cause – is much lower than what is required for a conviction – beyond a reasonable doubt. The presentations are secret.

Sahrbeck said he could not answer a question about how many cases are rejected by the grand jury. But in Maine and elsewhere, research shows and defense attorneys agreed that the number is low. Their clients have the option to waive indictment, which could have moved their cases past that step more quickly, but that decision has pros and cons.

“They’ve been forced into a situation where in some instances, if they want to resolve the case, they’re going to waive that right to have the case presented to a grand jury,” Hamlen said. “You can argue whether that added layer of protection means anything, but they’re forced to give up that right if they want to resolve the case earlier than the first grand jury will meet.”

Defense attorneys worried about other delays as well.

While grand juries are returning to courthouses across the state, trial juries are not. The Maine Judicial Branch has said those jury trials will not be scheduled or held until at least September. The criminal justice system creates stress in the lives of defendants that is exacerbated as their cases drag on. Defendants, especially those in jail, could feel pressure to plead guilty to crimes they didn’t commit because their trial dates are so far out on the calendar. While jails reduced their populations in the early weeks of the pandemic to mitigate the risk of an outbreak, their numbers are ticking back up again.

“It’s good to see that grand juries are convening, and we’re going to get cases to move forward in some way,” defense attorney Luke Rioux said. “The rubber meets the road when the court says we don’t have a way to pick a jury in your case until next spring.”

LOGISTICAL CHALLENGE

Bringing two dozen people back to a courtroom is also a logistical challenge in a pandemic.

The process for convening a grand jury is slightly different between federal and state courts, and it can even vary by county. Grand juries usually serve multiple months or up to a year, and some courts didn’t need to go through a new selection process to bring them back this month. Cumberland County needed to pick a new group, for example, but the neighboring federal courthouse just reached out to its existing grand jurors to talk about their availability.

Heidi Bauer, the manager of court operations for Cumberland County, said she had no idea how many people would actually show up Monday.

The court summonsed about 60 people, she said. People who receive those summonses can be excused for certain conflicts, and the court did consider requests related to health risks during the pandemic. Bauer said she did not know how many people asked to be excused for that reason, but once the court approved all those requests, her list for Monday morning was down to 46. Between people who didn’t show up and those who didn’t pass the COVID-19 screening at the front door, she still had more than 30 candidates.

“We had no idea,” Bauer said Monday, after the group was finalized. “Everything was up in the air today.”

Berry, the clerk for Maine’s federal courts, said she couldn’t get a quorum in one court for a variety of reasons. Some people had risks or concerns associated with the pandemic, but others had conflicts because of work or family.

For the grand juries that are meeting, the courts outlined stringent precautions. Berry said the federal grand jury sometimes meets for two days, but this month, it will only meet for one to reduce travel. She is compiling individual kits with masks and hand sanitizer, as well as supplies like pens so the jurors won’t trade or share those. Bauer said the Cumberland County grand jury moved to the largest courtroom in the building, where their seats are marked to allow for social distancing.

“If we wind up having to do jury selection on a smaller level, this is a good dry run,” Bauer said. “We can’t be shepherding people through the building like we usually do.”

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