AUBURN — The trial on Monday of two oil train protesters charged last year with trespassing on railroad tracks will have two juries in a rare judicial proceeding.

The defendants will be tried at the same time in the same courtroom, but with different juries.

Court personnel said Friday they couldn’t remember a trial with double juries in Androscoggin County Superior Court in more than a decade.

“This is my first,” said attorney John Branson, who has been a trial lawyer for 22 years and is representing one of the defendants.

“It is very unusual, for sure,” he said, “but it’s not without precedent.”

Two juries have been empaneled and will be seated on opposite sides of the courtroom throughout much of the trial.

Only one jury will be present in the courtroom for opening statements at one time; the same for closing arguments.

Although most witnesses are expected to testify before both juries, there likely will be times when only one of the juries will be in the courtroom to hear testimony specific to a single defendant. The same will hold true for evidence exhibits, Assistant District Attorney Andrew Matulis said.

Having two juries will ensure that neither defendant is “unduly prejudiced” by evidence that may be admissible as to one but not the other, Branson said. The alternative, separate trials, would have required witnesses testifying twice and the proceedings taking up additional court time.

Logan Perkins, attorney for the other defendant, said the judge made an “excellent” decision to allow two juries in an effort to ensure each of the defendants a fair trial.

“I’m really appreciative of that decision,” Perkins said. Although the request came from the defense, the judge and prosecutors were in agreement.

“I know it’s going to present logistical challenges, and it will be a learning experience for all of us,” Perkins said. “But I think this is a good case for this kind of procedural accommodation because it would be very easy to lump the two defendants together and say, ‘Ah, if one’s guilty, the other one’s guilty,’ or, ‘They’re exactly the same. They’re part of the same group. They did the same thing.’ When, in fact, there are different facts and different circumstances for each defendant.” 

Courtroom furniture has been rearranged to accommodate the two juries, including the witness box, which has been moved to center stage from its usual spot next to the judge at the end of the bench.

Attorneys for the state and defendants will face the witnesses, turning their backs to the judge in what normally would constitute a breach of courtroom etiquette.

Outside the courtroom, there also will be changes.

A piece of furniture seldom employed by security will be put into action at the front entrance of the courthouse. An electronic screener will be used to scan the contents of pocketbooks and brief cases. Other entrances to the courthouse will be locked or guarded, court officers said.

As many as 100 supporters could converge on the courthouse for the trial, courtroom officials have said. Security will be tight, and courtroom spectators will be expected to refrain from wearing clothing that might influence the juries and to remain quiet throughout the joint trial, which is expected to last at least one day.

Douglas Bowen Jr. of Porter and Jessie Dowling of Unity last appeared in Androscoggin County Superior Court in May seeking permission to present a so-called “competing harms” defense aimed at justifying their actions. They said they had sat on railroad tracks in downtown Auburn in an effort to stop an approaching train carrying dangerous Bakken crude oil similar to the one that crashed in Lac-Megantic, Quebec, in July 2013 and killed nearly 50 people about seven weeks earlier.

Their attorneys argued that the danger they presented by their actions posed a lesser risk of harm than that presented by a train hauling dangerous cargo that would be traveling through an urban area.

Justice Joyce Wheeler rejected that argument, finding in June that the defendants failed to show the four elements needed to successfully argue that defense at trial.

The defendants had testified that they didn’t have time to pursue legal avenues to stop the train from passing through Auburn.

Although they believed that would create a risk of harm to people in the city, the defendants were required to show “as fact that such physical harm is imminently threatened,” Wheeler wrote in her court order.

They were unable to show that because “their action was weeks in planning, and they had no idea whether the train was even in Maine at the time of their action,” Wheeler wrote.

Bowen had testified that had he “actually believed there was an imminent threat, he would have gone to police and rescue, which he did not do, thereby undermining his claim of an imminent threat,” Wheeler wrote.

Dowling had said in court that she believed there was a high probability that the train would explode that day, but she didn’t call police or rescue, “undermining her concern of catastrophic danger,” Wheeler wrote.

The two defendants “failed to demonstrate that there were no other alternatives” to sitting on the railroad tracks, Wheeler wrote.

Roughly 70 protesters demonstrated in support of the defendants and their cause outside the courthouse before and during the pretrial hearing in May.

Perkins said she wouldn’t be surprised to see a similar show of support on Monday.

cwilliams@sunjournal.com

Copy the Story Link