LEWISTON — Prosecutors have dismissed all charges against a local man whose videotaped encounter with police in April had gone viral on social media, sparking concerns within the community.
District Attorney Neil McLean Jr. filed a motion in 8th District Court on Tuesday dismissing three misdemeanor counts — disorderly conduct, obstructing government administration and refusing to submit to arrest or detention — against 30-year-old Kon Maiwan.
In his motion, McLean cited the reasons for his action.
He wrote that the judge had allowed Maiwan, through his attorney, to verbally challenge during a June arraignment the probable cause supporting the charges even though Maiwan was not being held in jail at that time.
Maine District Court Judge Sarah Churchill had postponed the arraignment in order to review evidence in the case, including a video recording by Maiwan, who is black, of his encounter with a white police officer.
In his dismissal motion Tuesday, McLean wrote that he had “pointed out the lack of any clear statutory authority or rule for such a challenge and noted the danger of creating a precedent” for such challenges.
Churchill had given Maiwan’s attorney, Jesse James Ian Archer and McLean until the end of June to submit evidence and arguments against or in favor of probable cause for the charges.
McLean had requested a hearing, which Churchill had denied as untimely.
Churchill later issued a written order in which she found “there is no probable cause” supporting the charges of disorderly conduct and obstructing government administration. She ordered that any bail in connection with those charges “is hereby exonerated and discharged.”
She wrote that she found there was probable cause to support the charge of refusing to submit to arrest or detention, a misdemeanor punishable by up to 364 days in jail and that Maiwan’s bail would continue to be in effect for that charge.
McLean filed a motion to have Churchill reconsider her probable cause findings, but she denied that request, he wrote on Tuesday.
In her denial, Churchill had written that “the state is not alleging that the court misapprehended the facts, the state’s position or the law. Instead, the state seeks to reargue its request for a hearing and the probable cause determination.”
“Given the court’s findings that counts 1 and 2 were not supported by probable cause, the state is exercising its discretion to dismiss all three counts of the complaint,” McLean wrote. “Dismissal does not reflect any concession by the state that defendants can challenge probable cause at noncustodial arraignment.”
In her June order, Churchill had noted six “contradictions” between written reports from prosecutors and Maiwan’s video recording, including language Maiwan allegedly used in addressing the people in the police cruiser and Maiwan’s alleged refusal to follow multiple commands as officers arrested him and took him into custody.
At one point during Maiwan’s encounter with police, the arresting officer ordered Maiwan’s identification sometime between when that officer told Maiwan to leave the area and when he began following Maiwan, telling him to stop, Churchill wrote.
The officer “maintains he made a lawful demand for Mr. Maiwan’s identification so that he could give him a disorderly conduct warning,” Churchill wrote in her order. “This is not credible,” she wrote, considering the officer “had already given Mr. Maiwan a verbal disorderly conduct warning a full 16 seconds into their interaction.”
Churchill wrote that she had based her findings largely on the “reasonably trustworthy information” gleaned from Maiwan’s video recording as well as a video (without sound) submitted by prosecutors showing Maiwan encountering the police cruiser and up to the time the officer is seen putting on gloves while following Maiwan.
The judge wrote that the remedy for finding no probable cause to support the two charges is not for her to dismiss them.
Had Maiwan not posted bail and, instead, been held in custody, he could have been released from jail within two days of his arrest if probable cause hadn’t been established for those charges, the judge wrote.
Archer has questioned why Maine law doesn’t allow a judge to simply dismiss charges after determining there was no probable cause to support them.
A spokesman for the Lewiston Police Department on Friday declined to comment on McLean’s dismissal of the charges against Maiwan.
Police Chief David St. Pierre, who released a statement in April after Maiwan’s arrest, had urged patience as the department continued its investigation into the matter.
St. Pierre said the arresting officer had been accompanied on that day in his cruiser by a Project Support You counselor who had been actively engaging with clients expecting to maintain confidentiality when Maiwan had approached them.
In his video recording, Maiwan can be heard asking why he was being followed and that the officer should “learn this community.”
The officer had followed Maiwan on foot and arrested him after a brief chase.
Maiwan, a lifelong Lewiston resident, is a former economic development specialist for the city and a former educator.
Archer said Friday “the state did the right thing by dismissing these unconstitutional charges.”
He said his client “never should have been charged in the first place.”
Archer said Maiwan had been exercising his First Amendment right when he questioned the officer and that all of the charges should have been dismissed months ago after the judge found no probable cause to support two of the charges.
Archer disputed McLean’s assertion that there is no legal authority or rule that allows a defendant who is not in custody to challenge the probable cause underlying criminal charges at arraignment.
Maine Rules of Criminal Procedure specifically states this is when probable cause should be determined, Archer said.
He said Maiwan’s case “illustrates why every police officer in this state should be statutorily (required) to wear a body-worn camera. For some reason, the officer in this case did not record on his body-worn camera. Kon (Maiwan) did record the encounter on his phone. Had Kon not recorded this himself, Kon, the public, and the judges looking at Kon’s case, would have had to rely on the arresting officer’s report, which Judge Churchill found ‘not credible.’ This is the Orwellian reality for thousands of people accused of crimes in this state.”
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