PARIS — Six motions aimed at excluding the state’s remaining evidence against Kristina Lowe, charged in a double fatality on Route 219 in West Paris in 2012, have been filed in Oxford County Superior Court.

One requests that the case be moved to a jurisdiction outside Oxford County and another asks that the father of one of the victims be barred from the courtroom.

In two of the motions, filed Dec. 24, defense attorney James Howaniec asks the court to prevent evidence from being presented and testimony heard that would support the two most serious accusations in the case — that Lowe was drunk and texting on her cellphone at the time of the crash, which killed passengers Rebecca Mason, 16, and Logan Dam, 19, both of West Paris.

A third passenger, Jacob Skaff, 22, of Paris suffered minor injuries. Lowe, who was 18 at the time, was seriously injured.

In one of his motions, Howaniec contends that prosecutors are “battling their own evidence in this case.”

Lowe is charged with two counts of manslaughter, two counts of operating under the influence causing death and one count of aggravated leaving the scene of an accident. 

“There are basically three elements to the state’s case,” Howaniec said Friday, “that she was driving distracted, she was under the influence of alcohol, and she was speeding and the combination of those three things rose to the level of gross recklessness that is required to prove a gross manslaughter charge. We believe the evidence is very weak in those regards.”

He has requested a management conference with prosecutors in the case, but said he did not know if or when a hearing will be held on the motions.

In October 2013, the Maine Supreme Court upheld a lower court decision to suppress statements made to police the night of the accident, Jan. 7, 2012, in which she admitted to being the driver and texting at the time of the crash.

In his motion to exclude the evidence of alcohol, Howaniec said Lowe was tested with a 0.04 percent blood alcohol level about two hours after the accident, was never given a field sobriety test by police, was not witnessed to have any evidence of impairment by more than 15 medical personnel who attended to her, and the state has no evidence of her drinking history on the night of the crash.

In an accident reconstruction report completed in March 2012, Maine State Police Trooper Dan Hanson said he “cannot conclude that alcohol was a primary factor in the crash,” Howaniec said.

The fact that Lowe was under the legal drinking age at the time of the crash has no bearing on the case and without excluding the evidence of alcohol, a potential jury could be biased against her, Howaniec argued.

“Alcohol consumption in the absence of impairment at the time of operation is entirely irrelevant and simply invites speculation and misguided amateur expert conclusions by non-expert jurors,” he argued.

In his motion to exclude cellphone texting records and other data, Howaniec said that early statements by state public safety officials and then spread through the media made “texting and driving” the dominant narrative for the case, even though cellphone records show Lowe was not texting at the time.

Howaniec said a forensic report by the Maine State Police shows the last outgoing message on Lowe’s phone was recorded at 7:43 p.m. Jan. 6, 2012, while investigators believe the crash occurred sometime after 12:05 a.m. Jan. 7, 2012.

An incoming text message was received on the phone at 12:11 a.m., but police cannot prove Lowe read the text, or even if she did that it was at the time of the accident. Including the evidence could prejudice a jury against Lowe, he argued.

“Even the state’s prosecutors have acknowledged publicly that their initial theories about texting have changed since the beginning of this case,” Howaniec said.

Another motion seeks to exclude or redact Hanson’s report and any expert testimony based on it, since the report concludes distracted driving was a primary factor in the crash, a conclusion not supported by the evidence, Howaniec argued.

He also motioned to exclude all photographic evidence of the victims that would be “inflammatory and unfairly prejudicial to the defendant if introduced at trial.”

In a motion to move the case to another jurisdiction, such as Androscoggin or Cumberland counties, Howaniec argued that it will be extremely difficult for Lowe to receive a fair trial with a jury drawn from tight-knit communities in Oxford County.

He is also requesting that Jarrold Mason, the father of Rebecca Mason, be excluded from the courtroom, saying Mason has made disturbances in court on two separate occasions and Lowe feels threatened by him.

Evidence presented at trial may be more sensitive and difficult and the defense is concerned that a similar or worse outburst will impair Lowe’s ability to receive a fair trial, according to the motion.

The motion also requests a gag order to prevent anyone directly associated with the case, lawyers, family members and law enforcement, from speaking to the media until the resolution of the case, citing the “large amount of misinformation and inaccuracies reported in the media.”

pmcguire@sunjournal.com

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