Criminal jury trials will resume as pilot projects in Bangor and Augusta next month after being put on hold in mid-March when courts drastically reduced their operations to curb the spread of the coronavirus.
Prosecutors and judges believe those efforts properly balance the need to protect court staff and the public from COVID-19, but defense lawyers are worried the measures will prevent their clients from getting fair trials.
The murder trial of Carine Reeves, 40, of New York City is set for jury selection on Sept. 21 at the Penobscot Judicial Center. At the Capital Judicial Center in Augusta, cases will be selected for trial Sept. 1 from 31 possible cases with defendants who are being held at the Kennebec County Jail.
Reeves is accused of shooting to death Sally Shaw, 55, of New Gloucester three years ago in Cherryfield.
The trial, expected to take two weeks, will require the use of two courtrooms — rather than one — to ensure social distancing; plexiglass will be installed around at least one witness box; and jurors, lawyers, witnesses, defendants and court personnel will have to wear masks. Decisions about whether prosecutors and defense attorneys must wear them during opening and closing arguments and whether witnesses may take masks off while testifying have not been made.
Maeghan Maloney, district attorney for Kennebec and Somerset counties, said the court system is doing a good job of balancing the rights of defendants with protecting the public, lawyers and court staff.
But Timothy Zerillo, a criminal defense lawyer in Portland, believes the procedures being put in place violate defendants’ constitutional rights to fair trials.
“You cannot untangle the constitutional rights of the accused with the dual concerns of public health,” he said. “As a result, jury trials need to be held in a fully constitutional fashion, or the prosecution should dismiss the case. There cannot be any in between.”
Darrick X. Banda, a criminal defense lawyer in Augusta, said that if everyone in the courtroom wears a mask, the need for social distancing won’t be as great.
“We do not need a belt and suspenders approach to this problem,” he said. “I’ve seen what they’ve installed for plexiglass so far [in Augusta] — small squares of glass,” he said. “It just looks foolish. It doesn’t feel like a courtroom, and doesn’t seem very effective [since] air flows around the small squares and over the top. If they completely box in the jury box with glass, it will look like a hockey penalty box.”
He also said that witnesses should not testify wearing masks, as the coverings would interfere with jurors’ responsibility to assess witnesses’ credibility.
“Whether there is any scientific basis for it or not, people make judgments about a witness not just based on what they say, but how they say it,” Banda said. “Face coverings, I believe, would interfere with this time-honored process.”
So far, few jury trials have happened anywhere in the country since mid-March. Courts are grappling with balancing public safety and defendants’ rights.
Reeves’ trial, moved by agreement last year from Machias to Bangor, will take up two of the three trial courtrooms and the large conference room on the second floor of the Penobscot Judicial Center. The largest courtroom will be reserved for the trial, a second courtroom will be set aside as a jury room, and the conference room will host members of the public, including the victim’s family members and reporters, who will be able to watch a live feed of the trial.
Stephen Smith, the Augusta attorney representing Reeves, is expected to file a motion objecting to the trial plan.
The Attorney General’s office, which is prosecuting the case, did not return a request for comment.
Members of the defense bar also have expressed concerns about how long social distancing requirements will delay the large backlog of cases awaiting trials or other types of resolution.
If every jury trial requires three rooms in Maine’s courthouses, it could take years to clear out the backlog even though few criminal cases go to trial.
In the fiscal year that ended on June 30, 2019, the most recent for which statistics are available, 47,991 criminal cases were filed in courts throughout the state. If just 5 percent of them go to trial, that’s 2,400 juries for which socially distant logistics would have to be figured out.
The court system’s administrative office did not answer a request for information on the backlog of pending criminal cases.
Lawyer Robert Ruffner, who has a criminal defense practice in Portland, said earlier this year that the COVID-19 outbreak and associated delay in court cases have exacerbated existing problems, including the inability of poor defendants to post bail and the number of people prosecuted for petty crimes.
“The burden of this delay almost entirely falls on the defense,” Ruffner said. “The state does not have to sit in jail, or live with bail restrictions, or live under the cloud of accusations until they have their day in court. It dangerously tips the balance in favor of the prosecutors.”
Jury trials in other counties won’t be held until at least Oct. 19, once the success of the trials in Bangor and Augusta can be measured, according to the Maine Supreme Judicial Court.
Andrew Mead, acting chief justice, said remote jury trials also are being considered for later in the year.
“We are in the process of moving to the Zoom platform which will be the presumptive mode for most types of hearings,” Mead said. “Training and planning for those matters has started and is ongoing. At some point in the future, we will likely undertake a pilot study of remote video jury trials.”
Zerillo said that video trials especially would violate defendants’ constitutional rights, as they would not be able to see jurors or witnesses in person.
Whether efforts to balance the safety of court staff, lawyers and the public with criminal defendants’ rights of confrontation, due process and zealous representation are successful may not be known for months or years, according to Marianne Lynch, district attorney for Penobscot and Piscataqus counties.
“I trust the courts, the defense bar and prosecutors are trying their best, under challenging circumstances, to make sure constitutional rights of the accused are protected,” she said. “It will only be in the future, as we look back, that we will know if all our efforts were sufficient.”