Henry Grenier, center, one of the Superior Court marshals, steps through the lawyers’ room last Monday on his way to the courtroom at the Androscoggin County Courthouse. Defense attorney Jeffrey Dolley and Assistant District Attorney Katherine Hudson-MacRae wait to be called into the judge’s chambers to talk about upcoming in-person trials. Andree Kehn/Sun Journal Buy this Photo

Even as COVID-19 case rates in Androscoggin County continue to lead the state and rank among the highest per capita nationally, that county’s courthouse is poised to launch its first jury trials in more than a year.

From judges, prosecutors and defense attorneys, that news has been met with a mix of relief, skepticism and disbelief.

A growing backlog of criminal cases has forced defendants unable to post bail to languish in jail, awaiting their long-overdue constitutionally guaranteed speedy trials.

Maine Superior Court Chief Justice Robert Mullen said the state courts have roughly 10,000 more criminal cases pending than in March 2020, when the pandemic struck the state, paralyzing Maine’s judicial system.

Since that time 14 months ago, when the first State of Maine Judicial Branch Pandemic Management Order was issued, all state courts have suspended civil jury trials.

And most Maine courts suspended criminal jury trials as well, Mullen said, with few exceptions. Only a handful of jury trials have been held in state courts since this time last year. And those trials have only been allowed in a few modern courthouses, equipped with the space and technology necessary to accommodate large numbers of prospective jurors safely, in accordance with Gov. Janet Mills’ emergency executive orders.

While many defense attorneys applaud the resumption of criminal jury trials in Maine, most are quick to note their misgivings.

TOO EARLY TO RESTART?

Lewiston attorney Jeffrey Dolley, who had a client scheduled for trial in Androscoggin County Superior Court this month, filed a motion last week to continue the case.

His client, who is not in jail, agreed to wait.

Although Dolley has been fully vaccinated for more than two weeks, he said he worries about his young children, who have not been inoculated against the virus.

He points to the continuing high numbers of COVID-19 cases in Maine — especially in Androscoggin County — and shakes his head.

“When you think about it, it’s illogical,” he said. “When you just look at it on paper, the numbers have skyrocketed. And yet, now we’re opening up. It makes no sense.”

Maine Center for Disease Control and Prevention

At the same time, Dolley acknowledges there are other considerations, such as the logjam of pending criminal cases and the many accused defendants sitting behind bars, presumed innocent.

“Those are probably some of the things that the court is balancing,” he said.

Had his client been incarcerated, Dolley said, “That would have been dicey for me,” conceding, “I probably would have gone to trial.”

Although he tries to avoid the physical courtroom for minor legal matters if there’s a possibility of appearing instead by videoconference, Dolley said he’s well aware the virus may be lurking outside the courtroom as well.

He said he met in his office with a private investigator last fall for nearly an hour. The two of them wore masks, seated about 8 feet apart. Four days later, the investigator called him to say he tested positive for COVID-19.

Dolley said he packed a bag and lived at his office for nearly two weeks, not wanting to possibly expose his family.

“I think people are still jumping ahead,” he said of the decision to open up the courts to trials. “My feeling is, ‘play it safe.’”

BEHIND THE MASK: ARE FAIR TRIALS POSSIBLE?

Several defense attorneys have expressed concerns over newly adopted courtroom protocols due to the pandemic that cast doubt in their minds on the ability of defendants to get a fair trial.

Lewiston defense attorney Verne Paradie, who has a trial scheduled next week in Androscoggin County Superior Court, said he was allowed to submit to the trial judge general questions for prospective jurors.

Chief among them was whether jurors believed they could be fair and impartial in assessing the credibility of witnesses who are wearing masks as well as the guilt or innocence of a masked defendant.

Jurors don’t just listen to the words uttered by witnesses, but also read their facial expressions in an effort to gauge their truthfulness, Paradie said.

“I continue to think it’s unfair to criminal defendants, particularly those facing significant prison time, to have to have a trial in a mask,” he said. He has raised that objection to the judge, an objection he’s certain will be eventually appealed to a higher court. And Paradie said he expects a higher court will overrule his objection, reasoning: “That’s what these times (require) … right now, and we have to do it.”

He also worries that jurors may miss crucial testimony if witnesses will be speaking through masks, despite the court’s plans to equip jurors with electronic listening devices to enhance their hearing abilities.

Paradie is not alone, he said, having discussed these issues with local bar association members.

James Howaniec, a Lewiston criminal defense attorney, agrees these restrictions will handicap the defendant.

One of his clients, who faces a mandatory minimum four years in prison, has been in jail for nine months awaiting trial in Androscoggin County Jail for a nonviolent crime.

That defendant has two options, Howaniec said: Go to trial where everyone in the courtroom will be wearing a mask or remain locked up indefinitely.

Howaniec will be tasked next week with arguing at trial, while “muffled” by a mask, the definition of reasonable doubt, the high standard of proof that prosecutors must reach in convicting the defendant, he said.

“I really think we are talking about a serious compromise of constitutional rights,” he said. “The state courts should be doing what they are doing in federal courts, letting lawyers and witnesses proceed without masks,” as demonstrated in the recent case against a former police officer tried in Minneapolis for the killing of George Floyd. In that case, clear shields were used to separate people in the courtroom.

“I don’t know how we can expect jurors to decide the fate of defendants facing years in prison, being separated from their families and children, and we can’t even see the faces of their accusers. That seems crazy to me.”

A ‘SENSE OF RELIEF’ TRIALS ARE STARTING

Andrew Robinson, district attorney for Androscoggin, Franklin and Oxford counties, is eager to see pending cases resolved. Each of the prosecutors who work in his office have roughly 50% more cases on their plates than at the start of 2020, he said.

“There’s definitely a sense of relief that we can finally provide closure for our victims, and defendants will be given their right to a trial under due process,” Robinson said.

Over the past 14 months, his staff of assistant district attorneys has worked with defense attorneys in seeking to close cases without going to trial, where possible, through the plea agreement process.

“Our negotiations have definitely factored in the pandemic backlog, and the impact it’s having on the system,” he said, except for the most serious cases, such as violent crimes. In those cases, “nothing’s changed,” he said.

Responding to concerns raised by some defense attorneys about the new protocols introduced for conducting trials amid high COVID-19 rates, Robinson said: “I think the court system is doing everything it can to balance the safety and health of the public with the need to provide due process and to keep the criminal justice system functioning.”

For the most part, he said his team of prosecutors has been appearing remotely via videoconference from their offices or homes for court hearings that don’t require physical exhibits or multiple witnesses, such as initial appearances and arraignments.

STARTUP WILL BEGIN SLOWLY AND NOT WITHOUT CHALLENGES

Court dockets indicate trials are resuming slowly as court officials feel their way forward.

— A murder trial is expected to be held next month at the Oxford County Superior Court in South Paris, where no trials have been held since February 2020 because of the pandemic.

—  In Franklin County, no jury trials have been held in more than a year and none are scheduled.

— Only a couple of jury trials have been held in Kennebec County over the past year with regular trials expected to resume this month.

— Several county courts started holding trials last month, including in Portland’s Cumberland County Superior Court.

— A half-dozen juries have been picked for trials this month in Knox County.

Chief Justice Mullen said he hopes to resume jury trials next month in Somerset County Superior Court, which can only fit 25 jurors at a time. Typically, before the pandemic, jury pools consisted of 100 people or more in a single courtroom.

“It makes it a challenge,” he said. With social distancing requirements of 6 feet between people, “I don’t think there were any courtrooms in the state that could accommodate much more than maybe a maximum of 35 people at a time,” Mullen said.

He said judicial officials investigated the possibility of using off-site, noncourthouse venues, such as schools, civic centers, even an old opera house to hold jury trials. They pondered using an outdoor circus tent erected in a parking lot. But that soon raised issues of parking, security and cost, among other considerations such as insurance and liability.

But they haven’t dismissed that possibility altogether, Mullens said.

“If this (pandemic) continues, if it gets worse, then we’re going to have to start thinking more out of the box than we already have,” he said. “But right now, I’m not aware that there’s any plans to try to do it off site.”

Compounding the problem has been a shortage of judicial marshals — who provide security in the courtroom during judicial proceedings as well as courthouse entry screening — made more necessary by the pandemic to keep sick people out.

In some cases, Mullen said, jury trials at courthouses in the same region might be postponed to allow for the limited number of marshals to finish up security in one location before moving to the other.

“You know, I have my fingers crossed a lot these days, (and) that’s another reason why I’ve got my fingers crossed. … I hope that we can get enough marshals so that we can have every courthouse open that is otherwise ready to proceed with jury trials,” he said.

“So we are slowly, gradually, trying to reopen,” Mullen said. “It’s much more complicated with social distancing and so forth, but we are trying to come out from under this pile of cases that we’ve not been able to address in over a year. And I’m optimistic, but also realistic.”

Maine Center for Disease Control and Prevention

HOW COURTS ARE TRYING TO STAY SAFE

Superior Court Justice Robert Murray, who presided over a criminal jury trial last month in the 4-year-old Waldo Judicial Center, described the current approach aimed at accommodating COVID-19 restrictions.

Before the pandemic, a jury pool of more than 100 people would be summoned to the courthouse, gather in a single room and undergo general questioning by a judge.

Now, Murray said, the process starts with written questionnaires that jury pool members answer at home before ever stepping foot in a courthouse.

Early on, they’re asked whether they are at high risk for possible exposure to COVID-19. Those general questions help winnow the pool of prospective jurors. That’s followed by questionnaires that focus more on specific cases for which the attorneys will be picking juries.

At that point, the remaining pool of jurors come into the courthouse, staggered in smaller groups, and herded into separate courtrooms that are connected by TV monitors.

What normally would have taken a day, took three days to complete,” Murray said about that April trial.

After the jury was selected, jurors were spaced apart in the courtroom, requiring more than half of them to sit outside the jury box in the gallery seating that is otherwise reserved for the public.

The attorneys’ lectern and tables were turned 90 degrees and angled to face the L-shaped jury seated at the side and back of the courtroom, Murray said.

The witness box was shielded on three sides by plexiglass and a plexiglass panel separated the judge from anyone in front of the bench.

Everyone in the courtroom wore a mask, even when speaking.

Because members of the jury seated at the back of the courtroom were far from the witness, Murray installed a camera trained on the witness that fed a picture and sound to a monitor in the gallery, Murray said.

When not in the courtroom, the jurors were shepherded to a different courtroom instead of the jury room, which was too small to allow for social distancing, he said.

A third courtroom would have been used to house the public, where the trial would have been simulcast, had that been necessary, Murray said.

He said everybody in the court system recognizes the importance of exercising necessary health precautions as well as recognizing the importance of conducting jury trials as soon as possible. “So, those two realizations I think have led to the extraordinary efforts to make sure that we can accomplish both things,” Murray said.

After the trial, Murray said he spoke with members of the jury.

“Most were very pleased with the approach that had been adopted,” he said. “They indicated they felt safe and satisfied with the experience.”

CRIMINAL CASES PRIORITIZED OVER CIVIL CASES

Still to get their day in court are civil trials. Mullen said civil trials should resume once criminal cases involving defendants in custody have been addressed.

“There’s no way that a civil trial is going to take the place of someone who’s in custody and who’s ready to go to trial,” he said.

The backlog of civil cases is far less than those pending in criminal court, he said.

While he understands the need for incarcerated defendants to have their day in court, prioritizing criminal trials over civil trials frustrates longtime Lewiston civil attorney Benjamin Gideon, who recently launched his own firm. Civil plaintiffs also deserve to have their cases heard, he said.

“Criminal cases are important, but Mainers also deserve a functioning civil justice system with access to civil juries,” he said. “Maine’s Constitution guarantees jury trials in both criminal and civil cases. To date, our judiciary has been slow adapting to the pandemic. We need judicial leadership to restore a functioning court system for all who rely upon it.”

Court officials acknowledge the pressure to also address civil cases, but more immediate concerns are the pandemic itself, and the unexpected rise in case numbers.

Mullen said COVID-19 numbers are too high in Maine — where they currently measure daily in the hundreds. But he said doing nothing about the court’s growing backlog is not an option.

“Last summer, and it seems like a zillion years ago, but it was a big deal if we had high double digits,” he said. “I’m hoping that’s going to happen again. The numbers have kind of leveled off now — a number that’s not acceptable to many people — but I’m hoping that’s going to change. In the meantime, I don’t think we can just sit back and stay closed.”


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