June 21, 2018
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Nokomis student asks what prosecutor is trying to hide when high court visits school

By Judy Harrison, BDN Staff

NEWPORT, Maine — Nokomis High School sophomore Brandon Smith wanted to know what the prosecution was trying to hide from the defense when it used a search warrant instead of a subpoena to obtain the medical records of a man charged with attempted murder.

The answer Tuesday took Smith and his fellow students deep into the thicket of legal rules and procedure when the Maine Supreme Judicial Court convened in the Nokomis gymnasium during its annual school tour. Justices convened Monday at Orono High School and Wednesday will hear oral arguments at Cape Elizabeth High School.

“It’s very valuable to me to witness the supreme court in action,” Smith, 15, of Palmyra said after the justices considered the first of three cases. “It’s given me a better understanding of how the system works.”

That is one of the reasons the court goes on the road every fall, Chief Justice Leigh I. Saufley said shortly before the seven justices walked single file into the gym and took their seats on a raised podium.

“These are real cases with real lawyers and real people’s lives are at stake,” she said.

Nokomis was the 25th school the court has visited since the program began nine years ago, Saufley said. The visits are arranged with schools through local legislators. State Sen. Andre Cushing, R-Hampden, and Rep. Ken Fredette, R-Newport, who is a lawyer, helped set up the Nokomis visit.

The prosecution of Charles, Black, 70, of Rockland is the case that led Smith to wonder “if somebody was trying to keep something out of the eyes of the public.” Black is charged with attempted murder, two counts of elevated aggravated assault, three counts of aggravated assault and two counts of domestic violence assault in connection with an April 7, 2011, incident in which his then-wife, Lisa Black, was injured on Mount Megunticook in Camden.

Black has pleaded not guilty to the charges, according to court documents. He is accused of striking his then-wife one or more times in the head with a rock, dragging her body to the edge of Maiden Cliff and pushing her over. She fell a short distance but got up and managed to make it down to the bottom of the mountain, where she was spotted by a passing motorist, according to a previously published report.

Charles Black was found injured after a subsequent search. He was arrested at Eastern Maine Medical Center a few days after his release but has claimed he now has no memory of what happened the day he went hiking with his then-wife in Camden Hills State Park.

The 540 pages of medical records produced during Charles Black’s hospitalization are central to the appeal. Knox County District Attorney Geoffrey Rushlau obtained them with a search warrant instead of seeking to obtain them through the discovery process, which would have required a hearing before a judge and the issuance of a subpoena.

Because the defense does not have the option of seeking a search warrant, which must be signed by a judge, prosecutors should not be allowed to obtain medical records, defense attorney Walter McKee argued Tuesday. Under state law, medical records are private and can be obtained under specific circumstances.

Rushlau said he sought the records in February 2012, a couple of months before Black’s trial was to begin, because he felt a discovery hearing would delay the trial. He also told the justices Tuesday that because Superior Court Justice Jeffrey Hjelm has ordered his office not to look at the records, Black’s case has not been harmed.

The prosecutor said that his office sought the records because of Black’s alleged memory lapse. There might be information in the records about statements he made to hospital personnel that could be used to impeach that contention at trial, Rushlau argued.

Justices’ questions Tuesday focused on how broad or narrow their opinion should be. Justice Jon Levy expressed concern about balancing the protection of private information such as medical records without tying the hands of prosecutors who might seek evidentiary information that is private.

The is no timetable under which the justices must issue their decision.

McKee said after appearing before the justices that he expected the court would issue its opinion within a month or two so that Black’s trial, which has been on hold, could be scheduled in Knox County Superior Court.

BDN reporter Stephen Betts contributed to this report.

Correction: A previous version of this story referred to nine justices. There are seven justices.

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