LEWISTON — As state and federal courts in Maine narrow the scope of judicial proceedings due to the coronavirus, some defense attorneys have voiced concern about the impact that may have on their clients’ constitutional rights.

“The courts closures are going to have a significant impact that will be long lasting,” Lewiston criminal defense and civil attorney Verne Paradie said.

“When the courts open again, the dockets will be overwhelmed. People in jail now that might only get a minimum sentence may end up staying in jail longer than they normally would,” he said.

“Obviously, it mostly impacts people who are presently incarcerated,” Lewiston criminal defense attorney James Howaniec said.

For those defendants who are free on bail, there’s a greater concern about trial dates being continued at least a month, he said.

Chief U.S. District Judge Jon Levy issued an order for Maine’s federal courts last week stating: “The court finds that the ends of justice served by ordering the continuance of all criminal jury trials outweighs each defendant’s right to and the public’s interest in speedy indictment or trial.”

“As I interpret that, that’s essentially a suspension of constitutional rights,” Howaniec said.

If the delay were to last a month or six weeks before trials resume, he said, “I think we’ll likely be able to get through it without too much disruption.”

But if trials are pushed back further by two months or more, Howaniec said, “I think we’re going to have some pretty significant issues,” with the constitutional right to a speedy trial.

When a federal court declares that the right of a prisoner to be heard in court or a defendant’s right to due process are suspended, “that’s obviously a pretty unique situation,” Howaniec said, referencing the Japanese internment camps during World War II.

Both federal and state courts have pushed back jury trials until May 1 at the soonest.

“The backlog of criminal cases will also lead to a significant delay in civil litigants getting resolution of their cases, since criminal cases will get priority,” Paradie said.

On the county level, Howaniec said the Androscoggin County District Attorney’s Office has been working with local defense attorneys to address bail issues for defendants not charged with crimes of violence who remain behind bars.

“So far, the (DA’s office) has been doing a good job to identify those cases,” he said, citing a case Tuesday of man charged with violating the terms of his bail from a charge of operating under the influence who has been in jail for nearly a week awaiting a contract for his supervised release, Howaniec said.

District Attorney Andrew Robinson decided Tuesday to allow the man to be freed from Andrsocoggin County Jail in Auburn on his own recognizance without going back to court for a hearing.

“That’s a commonsense approach to this issue,” in cases not involving violence or more serious crimes, Howaniec said. “The key is to get him out.”

Robinson said Tuesday he’s working hard to stay on top of those cases for several reasons.

The impact on the jail community, as well as the public purse, will be significant if an outbreak were to occur at the jail where the inmates’ health care is contracted out with a third party, he said.

“The taxpayers end up paying for that,” he said, “so there’s a good reason to try to lower the (jail) population, not just because it’s good to make sure people aren’t inadvertently exposed, but also because ultimately the community is going to have to respond and react to it if there’s an outbreak in the jail.”

Robinson said that any decision made by his office regarding bailing defendants has “public safety” as its key concern.

Lewiston attorney Allan Lobozzo said postponing routine court dates until after May 1 “will delay closure for hundreds, if not thousands, of defendants in criminal cases. Closure in a case can be a comfort, sometimes cold comfort, for both the state and the defense,” he said. “This delay weighs on both sides, although, obviously, the state isn’t behind bars, or subject to bail conditions.”

Starting Tuesday, newly charged defendants began appearing in court five days a week in 8th District Court instead of three, a clerk said, in an effort to reduce their numbers for each appearance. The courtrooms where they appear have been closed to the public to minimize exposure, the clerk said.

Videoconference equipment was ordered recently by the Androscoggin County Sheriff’’s Office aimed at keeping those in custody behind bars instead of transporting them to Lewiston for a court appearance.

This practice is already in place in some other counties.

While “not an ideal situation,” preferring defendants appear physically in the courtroom, Howaniec said, “under these circumstances, that’s certainly a rational approach.”

Videoconferencing would be necessary if an inmate were to test positive for the coronavirus and couldn’t be brought to court.

Limiting courtroom activities for at least the next six weeks “will create an enormous hardship” for self-employed attorneys or those in small offices who rely on courtroom work for their livelihood, Howaniec said.

At the same time, the state agency that oversees payment of attorneys for court-appointed defendants is running a shortfall and is seeking additional money during this legislative session to cover anticipated costs, Howaniec said.

If that fund should run out of money before May 1, it would be a “double whammy” for those self-employed lawyers who represent indigent defendants, Howaniec said.

Paradie echoed those sentiments.

“Not only will litigants be affected,” he said, “but many small firms are letting people go or closing altogether. The impact on those employees and their families will be devastating.”


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