What was supposed to be the state’s first jury trial since March has been postponed because the child of a key witness had a symptom of COVID-19.

Maine has not held criminal jury trials for six months during the pandemic. But courts across the country are making plans to resume trials this fall. The Judicial Branch decided to schedule three – one in Bangor, two in Augusta – this month as pilots.

The first trial was scheduled to start Tuesday. The defendant is charged with misdemeanor OUI. Jury selection happened last week.

But the police officer who was the key witness in the trial contacted the prosecutor Sunday night to say that his toddler got sick at daycare and needed to be tested for the virus. As a result, the officer would not be able to pass the COVID-19 screening at the courthouse, which includes a question about whether any household members have symptoms.

The prosecutor filed a motion for the officer to testify through a video feed, and the defense attorney objected. The judge held a hearing Monday and decided to postpone the trial until spring instead.

Defense attorney Darrick Banda said allowing the officer to testify over video would have violated his client’s constitutional right to confront a witness at trial.

“I don’t think there’s any other decision that (the judge) could have made without risking a real legal battle,” Banda said. “If we lost and the client was convicted, that inevitably would have gone up on appeal.”

District Attorney Maeghan Maloney, who is the head prosecutor in Kennebec and Somerset counties, said the witness would still have been subject to cross examination on video testimony, so the defendant’s rights would have been intact.

“We have to do video testimony in a way that gives everyone the assurance that the individual is by themselves, is not being coached, is following all the safety protocols,” Maloney said. “And if we can do that, perhaps in a remote location, than I think we can go forward.”

The judge’s bench, left, and the jury box, center, in courtroom 3 of the Capital Judicial Center in Augusta. The courtroom was rearranged for safety in preparation for the first jury trials since the start of the pandemic. Joe Phelan/Kennebec Journal Buy this Photo

A spokeswoman for the Judicial Branch said the courts “will be looking for ways to improve” as trials go forward. She also said the screening process and other protocols are based on guidance from federal and state public health officials.

“We are developing plans on how to handle jury trials and other cases with lots of input from our system partners,” Amy Quinlan wrote in an email. “We are doing all we can to keep folks safe while providing justice. None of us has done this before and we will be looking for ways to improve as we go along. But we all must understand that there may be delay because of issues related to the virus.”

It was not clear what symptoms the child experienced. The results of a COVID-19 test were expected back later this week, Banda said.

The courts have the other two jury trials scheduled for next week. The first will be a murder trial at the Penobscot County Superior Court. Carine Reeves is charged with murder in the 2017 killing of Sally Shaw, who was shot in the head and left on the side of a road in Cherryfield, in eastern Maine. The final round of jury selection is scheduled for Monday, and the trial will begin once that process is complete.

The second trial will be another OUI case at the Capital Judicial Center in Augusta, and it is scheduled to begin Thursday.

Banda is also representing that defendant. He said he volunteered these two cases for trial this month because he wanted to help both the court and his clients. Neither defendant is in custody.

“I had a bunch of clients who have been waiting forever to get their cases tried,” Banda said when asked why he volunteered.

The defendant who was supposed to go on trial this week is Taylor Boutin, and the charge dates back to March 2019. Banda said the delay prompted the prosecutor to offer a better plea deal, which his client is still considering. He declined an interview request for Boutin because the case is still open.

Neither Banda nor Maloney disclosed the details of the new plea offer.

“I can confirm that a better plea offer was made due to the defendant having to go through this experience,” Maloney said. “There is a recognition that preparing for trial takes a toll on a person.”

Witnesses do sometimes testify remotely or give video depositions in Maine courts, but Banda said that only happens when both sides agree to it. He wasn’t aware of any other case in Maine in which a judge allowed a witness to testify that way over the objection of the defense.

“I don’t think (the judge) wanted to be the guinea pig,” Banda said.

Banda said he feels the judge made the right call under the circumstances, and he does think the courts were right to resume trials. But the defense attorney said he hopes this experience prompts the courts to reconsider the COVID-19 screening at the courthouses. He said some questions seem like an appropriate safeguard – like the question about out-of-state travel. Others seem too broad – like the question about common symptoms like a headache or fever.

“It’s unfortunate that we have all these resources that are being expended to try to do jury trials, and we get derailed because a 16-month-old child has a fever from daycare,” he said.

Asked about the screening process, Maloney said she would defer to public health officials.

“I would like the court to have a method for going forward with witnesses who are not allowed to enter the courthouse due to the COVID-19 questions,” Maloney said. “I think it’s time for us to brainstorm another way of proceeding. It looks very likely that we are going to have the pandemic with us unfortunately for many more months, and we can’t wait that long to give people their day in court.”

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