Ernest Weidul addresses the family of Roger Downs Jr. during his sentencing in June 2012. Gordon Chibroski/Staff Photographer

Maine’s highest court has vacated a judge’s decision to deny a man’s long-running request for a new trial in the 2010 death of a Portland man.

The latest ruling means Ernest Weidul, 64, could again argue for a trial, something he has spent a decade pursuing.

Roger Downs Jr.

Weidul is nearing the end of a 16-year sentence at Maine State Prison for the death of Roger Downs Jr., who died days after he and Weidul fought at Downs’ home. His earliest release date is March 14, 2025, according to the Maine Department of Corrections.

He first met Downs on May 5, 2010, when Weidul scraped his car against a guardrail outside Downs’ home on Forest Avenue. Downs invited Weidul inside to use the phone and the two men started drinking. They later got into a fight and Downs woke up the next day with several injuries. He called an ambulance and was taken to Mercy Hospital, where he died May 7, 2010.

Weidul was arrested the next day for driving with a suspended license. He admitted that he had been in a fight with Downs and was later charged with aggravated assault. Prosecutors added the manslaughter charge when he was indicted after Downs’ death was ruled a homicide.

Weidul challenged his conviction in a petition for post-conviction review in 2014, which he amended in 2016 to alleged his three court-appointed trial attorneys had been ineffective.

The post-conviction process took several years and was often delayed before Superior Justice William Anderson denied the petition in a lengthy 2022 order.

But Anderson had been assigned to the case in between the three days of an evidentiary hearing, which were scattered between 2017 and 2022 because of competency issues, the judge’s availability and the COVID-19 pandemic. During that time, the original judge considering the petition – Superior Justice Joyce Wheeler – retired. Wheeler observed the first two days of the hearing in 2017 and 2018, during which Weidul’s lawyers testified about their work during trial.

At Weidul’s last day of the hearing in 2022, Anderson denied Weidul’s requests to have his lawyers testify again. He instead opted to use transcripts of the testimony and later found that Weidul hadn’t proved his lawyers were ineffective.

That’s where the Maine Supreme Judicial Court said the judicial process failed Weidul.

The justices agreed in a ruling issued Tuesday that Anderson could not have reached a credible decision on the effectiveness of Weidul’s attorneys without assessing their “demeanor, tone of voice, body language” and other elements that “go to the heart of Weidul’s claims of ineffective assistance.”

“Because Weidul did not consent and was not permitted to recall the three attorney witnesses except for examination on topics not addressed previously, we conclude that the court erred,” the justices wrote.

SUBSTITUTING JUDGES

It’s unclear what happens now that Anderson’s order denying Weidul’s petition for post-conviction review has been vacated and sent back to the lower courts.

His convictions still stand, according to a spokesperson for the Office of the Maine Attorney General, which argued against Weidul’s appeal in April. But a new judge who will consider Weidul’s petition hasn’t yet been assigned.

Weidul’s current lawyer, Donald Hornblower, was still reviewing the supreme court ruling on Tuesday afternoon, but said what he had read so far speaks to the importance of live testimony.

“It looks like they’re really indicating they can’t go further without dependable, reliable testimony that a judge listens to in person,” Hornblower said. “I’m really glad that the Law Court did something here.”

In their ruling, the justices wrote that it’s already been deemed unconstitutional to substitute judges in the middle of criminal bench trials in which “the new judge would not have had the opportunity to judge the credibility of the witnesses, nor to have heard the testimony in detail.”

“Even if we were to look to the civil rules or to common law, we would find that they, too, incorporate the principle that a successor judge who has not presided during all of the witness testimony at a bench trial must either grant a new trial or at least allow the parties to recall witnesses whose testimony is material and disputed,” they wrote.

Assistant Attorney General Donald Macomber argued in April that even though changing judges may not be ideal, Weidul’s case was unusual. During trial and afterward, Macomber said, Weidul fired his lawyers “at the drop of a hat.”

“This is the oldest post-conviction that I’ve worked on,” Macomber told the justices. “Because of the pandemic and his client’s mental condition, it took forever to get through this. We couldn’t finish the first two hearings because of his client’s mental condition, and couldn’t do the third day because of his mental condition. And then the pandemic happened.”

“But you’re saying because of the length of time it took, this case should get kind of special treatment?” Associate Justice Andrew Mead asked.

“I think so,” Macomber said. “In the unique circumstances of this case, I don’t think there’s a problem.”

LONG, COMPLICATED CASE

Between his arrest and his verdict, Weidul had been assigned five defense attorneys.

His first two lawyers withdrew. His second pair of lawyers – Amy Fairfield and Luke Rioux – tried withdrawing but were denied. The judge thought it was too close to trial and said Weidul had already “gone through a number of counsel, burning bridges.”

They were allowed to bring on a third attorney, Tom Connolly, around the same time. Connolly fought to obtain Downs’ medical records from Mercy Hospital, Hornblower said, which the hospital provided two days before the jury trial began.

The evidence could have been key to Weidul’s defense, the justices said in their ruling, because Mercy acknowledged its treatment of Downs “fell below the standard of care” and hospital staff failed to recognize the extent of his injuries and admit him to a critical care unit.

At the hearing in April, Associate Justice Rick Lawrence noted this detail “potentially could have turned the circumstances of this case.”

However, the justices wrote in their ruling, Weidul’s lawyers chose not to use that assessment at trial. They argued instead that Downs died of undiagnosed pneumonia, which the jury was not convinced by.