June 19, 2018
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Justices propose increasing time defendants held before seeing judge from 48 to 72 hours

By Judy Harrison, BDN Staff

PORTLAND, Maine — The Maine Supreme Judicial Court will hold a public hearing in September on a proposed rule change that would increase from 48 to 72 hours the time a defendant may be held in jail before appearing before a judge.

The 72-hour time period would not include weekends or holidays.

The change was proposed in response to complaints from at least one sheriff that he was having to release defendants after 48 hours because a judge was not available, Special Assistant Attorney General Charles Leadbetter, who headed the committee that proposed that change and others to the Maine Rules of Criminal Procedure, said earlier this month.

Washington County Sheriff Donnie Smith in April threatened to sue the court system if it did not start bringing prisoners at his jail before a judge in a timely manner. Smith does not appear to have followed through on that threat.

Some prosecutorial districts in Maine, including District V, which includes Penobscot and Piscataquis counties, and District II, which is Cumberland County, have adopted the Unified Criminal Docket calendar and hold the first appearances of defendants in custody at 1 p.m. Mondays, Wednesdays and Fridays, Leadbetter said.

Initial appearances in Washington County are held on the same days, according to Smith.

Leadbetter said that there have not been problems getting defendants before judges within 48 hours in Portland, Bangor, Lewiston, Augusta or courts located in the state’s more populous counties.

The advisory note on the proposed change states: “Experience has demonstrated, however, that occasions do arise, although not frequently, in which the 48-hour deadline is not realistic. The 24-hour enlargement ensures timeliness for these occasions, and the resulting 72 hours is easier for users to remember and apply than an alternative deadline of more than two days but less than three.”

The proposed changes were posted on the court system’s website on June 24. The period for public comment ended July 8.

The Maine Association of Criminal Defense Lawyers has opposed the change.

“We believe this is too long a period to hold a person — who has the benefit of the presumption of innocence — before they are advised of the substance of the charges against them, their right to retain counsel and their right to remain silent,” George “Toby” Dilworth, president of MACDL, wrote in a letter to the court dated July 8.

The Portland attorney also said in the letter that defendants charged with misdemeanor crimes could spend more time in jail over a long holiday weekend waiting to see a judge than they could be sentenced to serve if they were convicted of the crime.

Dilworth concluded that there is no reason for a person to be held for more than 48 hours because the rules allow for defendants to appear before a judge via video conference from county jails.

The state’s eight district attorneys took no stand on the proposed change in a letter dated July 8 and signed by Aroostook County District Attorney Todd Collins.

Mary Ann Lynch said in an email Friday that it was not unusual for the state supreme court to hold a public hearing on proposed rules changes.

“This is the ordinary route of rules,” Lynch said. “First the court publishes them and seeks written comment. Then, if there are comments that indicate the court should receive more comments, the court will set this for public hearing. This is pretty typical practice.”

The proposed increase in how long a defendant may be held in jail before appearing before a judge is the one of several changes in the procedural rules recommended by Leadbetter’s committee. It is the only one that has generated opposition.

The public hearing will be held at 1:30 p.m. Thursday, Sept. 12, at the Cumberland County Courthouse in Portland.

“Any person may make oral comments to the court at the public hearing; commenters need not be attorneys,” the court said in announcing the public hearing.

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