Ellsworth Attorney Christopher Whalley represents Penobscot County criminal defendants Monday from his Pine Street office via video link. Since courts closed in March due to COVID-19 and have slowly re-opened, Whalley and other attorneys are adjusting to court proceedings via Zoom and other video technology. ELLSWORTH AMERICAN PHOTO BY JENNIFER OSBORN

Jury trials still on hold

ELLSWORTH — As COVID-19 rages on, jury trials for both criminal and civil defendants have come to a halt in Hancock County. Defendants are being denied their rights set forth in the U.S. Constitution to a speedy trial and to be tried by a jury of one’s peers. 

The courthouse is not large enough to hold trials while maintaining social distancing requirements to help prevent the spread of the disease.

Maine had 2,600 criminal cases waiting for trial on Dec. 31, 2019. Thanks to the total closure of the courts in mid-March due to the pandemic, that number has more than tripled to nearly 9,000 criminal cases as of Oct. 25. 

“It’s absolutely crowded on the best of days,” said Ellsworth Attorney Eric Columber, who primarily handles civil cases. “The sheer number has created the inevitability that something’s got to give. What’s giving is the civil system. Not because they’re less important, but the criminal ones just get heard first.”

So, what are the options at this point for someone sitting in jail waiting for resolution of his or her case?

“Really the only option available for somebody who wants a trial at this time is to waive their right to a jury trial and agree to have what is called a ‘bench trial,’ which is a trial before a single judge or justice,” said District Attorney Matt Foster. “The only other way to resolve a matter at this time would be to enter a plea pursuant to a plea agreement.”

There are numerous cases awaiting trial in Hancock County, including that of Nathan Burke of Hancock, a co-defendant in the alleged killing of Franky, a Winter Harbor terrier-pug in August 2018. Burke’s co-defendant, Justin Chipman of Steuben, was tried and convicted last December and began his prison sentence Sunday.  

William Ashe, a criminal defense attorney in Ellsworth, said the lack of jury trials is “a massive problem.”

“Fundamentally, the ability to be judged not by the state, not by the king so to speak, but by one’s own community and peers is a foundational principle of a true, functioning justice system,” Ashe said. “It may sound abstract and philosophical, but it was a massive leap forward when implemented and has become basic to our due process. The right to a jury trial is so important that the framers put it in the Constitution twice. It can be found in Article III and again in the Sixth Amendment. A defendant should never be put in a position where the right to a jury trial is waived because it is being functionally deprived by circumstance. But COVID is something we have never encountered.” 

“Criminal cases were not meant to last a year or longer,” Ashe said. “For people with bail restrictions, these long-suffering cases are a real problem. For people who just want their case to be done, the delays are a real problem. And the biggest problem is for people in custody. Previously, people may have been held three to six months while their cases were pending, now it is indefinite.”

“The criminal justice system relies, for a variety of systemic reasons, on the ability to hold jury trials,” said Ashe. “The inability to hold jury trials has caused the entire system to cease working. This is easily the most difficult time that I have ever experienced in my 12 years of criminal law practice.”

What about a change of venue to a larger courthouse elsewhere in Maine or an auditorium? 

“We did discuss the possibility of transferring Hancock County cases to Washington County for trial, but Washington County has at least 35 cases waiting for trial on its own,” Foster said. “That discussion also occurred prior to the recent reduction in allowed gatherings from 100 to 50.”

“The current restrictions limiting occupancy to 50 people in a building at any one time effectively prohibits the courts from scheduling a jury pool to gather for selection,” Foster said. “Typically, a jury pool consists of between 75 to 125 (or more) people, called in to select traverse juries for trials. That number does not count court staff, attorneys or support staff necessary for the process either.”

When asked for comment, a spokesman for the Maine Judiciary said, “alternative venues are being considered.”

Ellsworth Attorney Christopher Whalley has been practicing law for over 30 years. 

“No real solutions have been offered as of yet except for casual comments about weekend/night courts, etcetera,” said Whalley. “It will require a fundamental change to how prosecutors approach criminal cases if we are ever to return to normal in the next decade.” 

Whalley said minor charges for first-time offenders need informal, creative resolutions.

“Focus on the real bad guys/gals, career criminals, violent offenders, drug traffickers, etcetera and accept that the diversion of minor offenses is necessary to preserve fundamental due process,” said Whalley.

Whalley said some new practices that have arisen from the pandemic are working. Those include in-custody arraignments and initial appearances via video. 

On Monday, Whalley represented a handful of Penobscot County defendants arrested over the weekend during their initial court appearances from his office on Pine Street in Ellsworth. He meets with each defendant via video before each goes before the judge and prosecutor—also by video.

So, if initial appearances, in which a judge sets bail, are working, what about trials via video?

All of the attorneys interviewed by The American said that wouldn’t work. 

“It would be difficult if not impossible to have a jury trial by Zoom,” Columber said. Being able to see a witness physically in a courtroom, “you can tell in their demeanor, in their inflection, in their voices, whether the answer they’re giving is truthful or untruthful. That’s a nuance that’s much more difficult to see on video.” 

Whalley said, “for the actual trial, the jurors simply must be close enough to the witnesses and all parties to make those same in-person credibility evaluations that a judge must make.”

Foster said he thinks there would be constitutional challenges if the courts allowed remote juror or witness participation.

“Unfortunately, our current system in its current form cannot cope with the demands and requirements of our ‘new normal,’” Foster said. “Our facilities are inadequate to conform to the rules of social distancing, our courts are under-staffed to be able to handle the added chaos that all of this causes and the entire system is likely to be crippled for years to come unless changes are made to adapt to these new challenges. Of course, the types of changes that need to be made are expensive in both infrastructure and personnel, and with the financial challenges facing the state in the wake of the pandemic, the criminal justice system is between a rock and a hard place.”

Jennifer Osborn

Jennifer Osborn

Reporter and columnist at The Ellsworth American
News Reporter Jennifer Osborn covers news and features on the Blue Hill Peninsula and Deer Isle-Stonington. She welcomes tips and story ideas. She also writes the Gone Shopping column. Email Jennifer with your suggestions at [email protected] or call 667-2576.
Jennifer Osborn

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