All Maine’s public institutions have been hard-hit by the coronavirus pandemic, but the state court system has endured setbacks and challenges unique to our system of justice.
Last March, all proceedings suddenly stopped with the statewide shutdown; attempts to restart things have been fitful and only partially successful.
The state court system, with limited resources, has been especially hamstrung, but the better-endowed federal courts in Portland and Bangor, with fewer cases and more personnel, have also been affected. A planned reopening in January that would have included jury trials was abruptly canceled in December, once the size of the current surge in COVID-19 cases became apparent.
The most visible sign of the state’s system-wide distress is the breathtaking increase in the number of pending criminal cases: More than 9,000 at year’s end, up from about 2,500 last March – a more than three-fold increase.
Acting Chief Justice Andrew Mead has been calling attention to these dire numbers, in an online appearance before the Maine Bar Association, and an interview with Maine Public. Despite some success at moving court proceedings online, unresolved cases have continued to grow.
“We have reached the reality check,” Mead said. “We realize that we can barely hold on as opposed to digging into the backlogs.”
For a time, the chief justice said, police and sheriff’s deputies were making far fewer arrests, mitigating the number of cases, but in recent months arrest numbers have returned to pre-pandemic levels.
At the heart of the problem is the inability to hold jury trials – the bedrock guarantee not only of the federal and state constitutions but of English common law stretching back to Magna Carta in 1215, which prohibited legal penalties for any “free man” without “lawful judgment of his peers.”
Superior Court Justice William Stokes said there’s nothing in the legal system more important than this tradition.
“We have to remember who makes the decision when the government accuses you of a crime, and you say ‘I’m not guilty,'” Stokes said. “It’s not the judge, the legislator, the king, or a dictator, it’s the jury. We involve people who have no ax to grind, who listen objectively and make a decision. That’s the essence of freedom.”
And he noted, “We’ve denied those rights here in our own country,” especially to slaves, who had no presumption of innocence, while slave owners had complete autonomy over their “property.”
‘Judges lose sleep, too’
Stokes, a former state deputy attorney general, and Augusta mayor – and a Democrat appointed to the bench by Gov. Paul LePage in 2013 – admits to moments of discouragement in the current crisis.
“We’ve lost so much during the pandemic, and judges lose sleep at night, too,” he said.
When it appeared effective vaccinations might be years, rather than months away, several of his colleagues considered retirement. The early months were chaotic, with video links often failing and lawyers and prosecutors struggling to operate remotely.
Although the kinks have been worked out of online proceedings – open-access sites have now been replaced with password-protected ones – working in the courts can still be disorienting.
Stokes is stationed primarily in the Capital Judicial Center in Augusta, one of the state’s newest and largest court complexes, yet the distancing and sense of isolation is constant.
“We’re bending our procedures, and none of us enjoy it,” he said. “We’re all masked up. When we’re on the bench for hours at a time it gets very uncomfortable.”
On other days, Stokes said, “I don’t leave my chambers, even to go for coffee. … It hasn’t been much fun.”
The bottom line is that “If we can’t have a jury trial, we can’t really administer justice,” he said. “We can move the paper, but we often can’t make final decisions.”
The numbers confirm these concerns.
In all of Maine, there have been only five juries empaneled to hear criminal charges since the pandemic began – three in Bangor and two in Augusta – and those proceedings required Herculean efforts on the part of judges and other court officials. No more are expected until cases wane and vaccination is widespread.
One reason a Washington County murder case was heard in Bangor last summer was that the charges might have otherwise been dismissed because both the federal and state appellate courts have ruled that criminal defendants have a right to a speedy trial.
Nor is it only criminal cases that are affected.
Chris Lewis, president of the Maine Trial Lawyers Association and a partner at Hardy, Wolf & Downing, said that, until the criminal case backloads are cleared up, there won’t be jury trials available for civil cases, either. There is no comparable right to a speedy civil trial, so cases can remain on hold indefinitely.
In the early days of the pandemic, “People muddled through (and cases were) stagnating, languishing, though through no fault of the court system,” Lewis said.
As a practical matter, the lack of a trial option has brought many proceedings to a halt. “Once you’re looking at a trial date, people start scratching their heads, and start coming to solutions,” he said.
Without it, “There’s no momentum” toward settlements – something judges say is just as true for the criminal docket. Few of the 9,000 pending cases will ever go to trial, but clearing them up will at least require that possibility.
Interviews with active and retired judges, prosecutors, attorneys, and organizations representing indigent clients demonstrate that, while relatively brief in the making – like the pandemic itself – it will take months, if not years, to return the court system to anything like normal operations.
Yet the very scale of the problem is prompting creative responses and rethinking of previously sacrosanct procedures – potential reforms that will involve all three branches of state government: the executive, legislative, and judicial.
Asked what would help most, Justice Michaela Murphy said “It’s not more judges.” The 1980s saw the last expansion of the trial court judiciary; there are currently 16 judges, assisted by six who have taken “active retired” status and still hear cases.
Rather, other court personnel will be needed to handle the huge caseload. The judiciary has already made an emergency request to the Legislature for more court marshals, who will be needed to monitor the decentralized jury rooms necessary once trials resume.
Murphy, appointed in 2007 by Gov. John Baldacci, said the Legislature should consider other changes, including what offenses are classified as crimes. Societal expectations continue to shift, but the law sometimes doesn’t.
“Every offense classified as a crime carries with it the right to a trial by jury,” Murphy said. “We have to take a hard look and ask whether there are real public safety concerns, or not.”
In Maine, it’s possible to face jail for traffic offenses such as driving with an expired registration or license. “Is that the best use of public resources?” Murphy said.
On the other hand, offenses that were once treated lightly are now viewed differently. From his days as a state prosecutor, Stokes recalled that “domestic violence cases once brought a $100 fine. Those days are past, fortunately.”
Maeghan Maloney, reelected in 2018 to a second term as district attorney for Kennebec and Somerset counties, considers herself a criminal justice reformer. She said the state’s eight DAs have jointly requested a bill that would reclassify many Class E criminal charges – the lowest level – as violations that would be handled administratively, including various traffic and drug offenses. (This will not include OUI charges, however, because of “the tremendous harm” impaired driving can do to others, Maloney said.)
Maloney agrees with Stokes about domestic violence; the only person currently incarcerated on an offense requiring less than $1,000 cash bail in her district is facing such a charge. She’s doing what she can to keep defendants accused of non-violent offenses out of jail, she said, because “it’s just not safe or healthy to confine more people during the pandemic.”
Beyond that, however, she believes prosecutors have their own responsibility to find alternatives to criminal charges and trials.
Coincidentally, two new diversion programs, funded by grants, began just as the coronavirus began spreading.
One is a restorative justice effort that allows offenders and those affected by criminal offenses to meet and, through mediation, agree on alternative sanctions. The other, under the supervision of the Crisis & Counseling Centers mental health agency, allows those with substance use disorders or other diagnoses to enter treatment rather than the criminal justice system. If successful, the original charges are then dismissed by the DA’s office.
The two programs “help people get their lives back together” – something far less likely with a jail sentence, Maloney said. When the grants expire, she hopes the state and counties find a way to keep these programs going; the restorative justice option is also available in Cumberland and Androscoggin counties.
Necessity has also led to innovation in the use of technology.
Stokes, like most judges, used to gather prosecutors and defense attorneys for a whole day of pretrial disposition conferences. Now, the conferences take place exclusively online, which has increased efficiency.
Stokes thinks this is one change that may be worth preserving after the pandemic is over. But for any proceedings requiring public access – essentially, all trials and settlements – online won’t work, he said.
Lewis, of the Maine Trial Lawyers Association, said civil cases have benefitted from the use of online depositions where attorneys and a single witness record statements and response in the presence of a court recorder. “I had two in a row, just the other day,” he said.
As with the private judicial conferences, there are no cross-questioning or exchanges a jury might need to witness and, with less travel and court time, this could continue as a permanent feature of the system, Lewis said.
He also said attorneys have adapted better than he thought they would.
“We have some older practitioners, who began long before there were computers, who have become Zoom experts in a very short space of time,” Lewis said.
DA Maloney convened an ad hoc task force, along with Androscoggin County District Attorney Andrew Robinson, to consider pandemic measures to recommend to the judiciary. Included on the panel were police chiefs, corrections officials, legal services representatives, and a representative of the governor’s office.
They reached five areas of agreement, backed the judiciary’s request for more court marshals, and suggested using local law enforcement officers on assignment to fill gaps. Virtual hearings were favored in all cases where all parties agree to them, and the group agreed to find alternatives for 12,000 unpaid fine warrants that are currently suspended.
For traffic enforcement, the priority should be “life-safety issues such as high-speed, impaired and reckless or distracted driving,” the panel said. And the group called attention to other diversion programs, including a Penobscot County effort providing a full day of nonprofit group support services to those arrested by police.
Maloney said there was disagreement concerning one dilemma the pandemic has created: Is it better to have in-person proceedings, where witnesses wear masks, or online court sessions where they can remain maskless?
“Each side had good arguments, and good arguments for why each approach works,” she said. Fortunately, she added, this is one argument that won’t have to continue once vaccination takes hold.
Protecting civil liberties
Whether the courts have adapted appropriately, however, with civil liberties at risk amid the pandemic is a question asked repeatedly by the ACLU of Maine.
Early on, ACLU brought habeas corpus lawsuits in state and federal courts on behalf of plaintiffs whose trial rights were in jeopardy. The charges, which faced significant procedural challenges, were dismissed.
Zach Heiden, ACLU chief counsel, said it’s just not clear what can be expected of the judicial system in crisis, because there wasn’t a decision on the merits.
Justice Murphy had a similar observation: “At some point, we know there are going to be petitions to dismiss for lack of a speedy trial. We just hope there’s not a point where we have to grant them.”
Justice Stokes recently granted a speedy trial motion in Kennebec County for a defendant incarcerated for seven months who couldn’t raise $5,000 cash bail, while observing that the ruling would have no immediate effect.
“The risk of bringing in 150 people (to select a jury),” he said, “is just too great.”
Other aspects of the system are perhaps even more important, Heiden said.
“The pandemic, which has been so devastating to minority communities, has laid bare our failures,” he said. “Whether it’s substance use disorders, homelessness, underemployment, lack of education or opportunity, safe and secure housing, the system isn’t working. We have to change direction.”
Heiden said “We’ve tried to arrest our way out of the problem,” called the return to previous arrest levels in Maine “very troubling,” and said inmate numbers at state prisons and county jails “are nearing their pre-COVID levels.”
Heiden is more optimistic than before that lawmakers are ready to take action, especially concerning drug-related offenses. “People should not be arrested in the first place for having a medical problem,” he said, and although the administration of Gov. Janet Mills has made a commitment to expanding treatment, “progress hasn’t been nearly as fast as we’d like.”
A key reason substantial reforms are possible is that “on the whole, criminal justice is not a partisan issue,” Heiden said. Reformers “don’t divide neatly into camps. Some see it as a moral issue, others as an economic issue – the system is expensive – and others want good government. They’d like to see better use of the limited resources we have.”
If the pandemic has shown anything, he said, it’s that “we should be very careful before we lock up people and take them away from their families. (It’s often) the fastest way to make a bad situation worse.”
Douglas Rooks has covered Maine issues since 1984 as a reporter, editorial writer, columnist, and former editor of Maine Times.
Jury trials by fire
How do you pick a jury in the middle of a pandemic?
Very, very carefully.
That was the approach taken by Justice Michaela Murphy and the rest of the Maine judiciary in what turned out to be a short-lived effort to restart jury trials.
Yet the experience – which produced five trial juries in Bangor and Augusta by late last summer – was a valuable test run for many of the procedures and protocols that will be necessary for a partial reopening of courtrooms, perhaps by late spring.
Normally, 150 potential jurors are summoned for service, from which two or three juries are selected. Amid the pandemic, 450 summonses went out “because we just didn’t know how many would be willing,” Murphy said. “We weren’t going to insist for anyone who didn’t want to come to Augusta.”
Judges had already decided that, of the 16 county courthouses, only Augusta and Bangor – the newest facilities – would be suitable, where “it was relatively safe to bring in large numbers of people,” she said. The new buildings had adequate ventilation and filtration, numerous meeting rooms, and the ability to open windows.
The Cumberland County Courthouse in Portland – which houses the Maine Supreme Judicial Court and state Superior Court – was definitely out because of its age and crowding.
“Almost everyone responded” to the initial summons. “Very few didn’t,” Murphy said. Questionnaires usually filled out in the courtroom were mailed, and 200 proved to be “viable jurors.” Those who agreed to come did, she said: “We had very few no shows.”
In that sense, it was a familiar experience.
“People really step up,” Murphy said. “You can tell many of them don’t want to be there, but by the time they take the oath, they’re committed.”
For Murphy, the best cure for cynicism about government “is coming into court and see a jury at work,” she said. “They come together to make really difficult decisions.”
At the Capital Judicial Center jurors occupied four rooms, visited in turn by the prosecution and defense attorneys and court staff. Veteran epidemiologist Stephen Sears, now at the Maine Center for Disease Control, did a walk-through the evening before “and told us we had a good plan,” Murphy said. “We did not want to jeopardize anyone’s health.” Sears also suggested minor improvements, which were adopted.
Yet the biggest surprise for Murphy was when the jury retired to deliberate. From court staff, she heard that “they already had set up their chairs in a big circle, with sufficient distance, with the windows open.”
Follow-up questionnaires also showed jurors felt safe.
“They appreciated that everyone – attorneys, court personnel, judges – were wearing masks and that it was non-negotiable,” Murphy said. “Everyone was treated the same, and everyone was looking out for each other’s safety.”
In the end, most cases on the docket were settled before trial, and the one Murphy presided over involved an OUI charge.
Another jury was prepared for a trial before Justice William Stokes, but it was continued when a witness tested positive for COVID-19 and was unable to appear.
Then, as cases surged in October, plans for any further trials were put on hold.
Murphy and Stokes demurred when asked how courts will deal with a 9,000-case backlog. “That’s above my pay grade,” Stokes said.
Retired Supreme Judicial Court Justice Donald Alexander, who was a Superior Court judge from 1980-1998, said jury pools once numbered 70-80, not the 150 that’s standard today. “And we used to pick five or six juries,” he said, “not just two or three.”
Recent procedural changes involve more questions, including several intended to determine potential biases. While these concerns are important, Alexander said, the pandemic may prompt the judiciary to reexamine the changes, or perhaps screen out jurors before they’re asked to appear.
Murphy said current discussions involve using Augusta and Bangor as “hub courtrooms” to select juries for contiguous counties – six that border Kennebec, and another four around Penobscot.
The big problem is southern Maine, where a prospective new courthouse in Biddeford for York County is still on the drawing board.
As for Portland, the state’s busiest, “It’s not a safe courthouse for a lot of reasons,” Murphy said, calling it “a security sieve.” Even in normal times, “There are a lot of court marshals working there.”
Still, Murphy said she looks forward to resuming trials.
“I love being in the courtroom,” she said. “We really can’t do our jobs without it.”
— Douglas Rooks
Legal aid adapts to crisis
Pine Tree Legal Assistance was founded in 1967 as part of President Lyndon Johnson’s “War on Poverty.” Half a century later, it’s still the primary resource for those who can’t find or afford a lawyer – or may not even realize they have a legal problem.
Nan Heald, Pine Tree Legal’s executive director since 1990, said that one of the biggest problems of the pandemic is reaching people in trouble who need assistance but don’t know where to turn.
Pine Tree handles only civil, not criminal cases.
“We used to have an attorney, sometimes several, show up for each (district) court session to find people who need help,” Heald said. Those opportunities have mostly disappeared, although Pine Tree and agencies that assist the poor have found ways to compensate.
Heald often cites a 2014 study finding that “the majority of human beings who have a legal problem just assume it’s bad luck.” Debt is among the most common: “Bad guys are exploiting them,” she said, “and they don’t understand that they have rights.”
Divorce and domestic violence are nearly universally understood as legal problems, but they’re the exceptions, she said. A big dilemma of this moment is eviction – a legal process, but one for which many tenants are unprepared.
“Tenants have rights, but they often don’t know that,” Heald said. Extensive news coverage of eviction issues, and moratoriums, have helped tenants, she said, but at some point, the process will resume.
Pine Tree did convince some judges to include information about Pine Tree in eviction summonses, “but we’re not sure how much it’s helping,” she said. An online video course is available, but many potential clients don’t have internet access.
Pine Tree handles cases for anyone in households earning less than 200 percent of federal poverty levels – one-third of Maine’s population.
Last spring, the agency ran newspaper ads, especially in rural areas, to replace other forms of outreach. Connections through Community Action Program agencies, social service providers, and United Way agencies have also helped.
A program at the Togus Veterans Administration hospital in Augusta has steered many clients to Pine Tree “because people are willing to tell their doctors things they wouldn’t tell anyone else,” Heald said.
Since the pandemic, however, no outside visits have been allowed.
Overall, cases are down about 5 percent, and there have been many more eviction cases and benefits cases chiefly involving unemployment and disability claims.
Another strong point is Pine Tree’s website, which went up in 1996 and is one of the most comprehensive of any state legal aid program. Site traffic is up, Heald said, and most inquiries get a quick response.
Staffing challenges are significant, however. “We’re incredibly lucky to have people drawn to the mission,” she said, willing to juggle the demands of small children at home with legal work.
Pine Tree has also benefited from recent arrivals of attorneys from Washington and New York, who can help immediately because Maine’s judiciary recently decided that, for two years, it will recognize bar certificates from other states while attorneys settle in.
“We’ve operated in basically the same environment for years, and suddenly that has to change,” Heald said. “It forces us to ask ‘Why do we do that?’ which isn’t a bad thing. We’re forced to adapt and be creative.”
— Douglas Rooks