Criminal Defense Lawyer Portland Maine - OUI Attorney | Law Office of Robert C. LeBrasseur

To Testify or Not Testify: That is the Question

admin — Thu, 23 May 2013 18:49:49 +0000

The high profile murder trial of Jodi Arias captured the attention of the nation. It had everything- sex, gore, and plenty of drama. It also highlights a legal issue- whether or not a defendant should testify in their own defense at trial, thus waiving their Fifth Amendment right against self-incrimination. This is a dilemma that faces criminal defense attorneys every day. It can be one of the most important trial strategy decisions a defense team can make, and cases are won and lost by this factor.

The general rule of thumb that most criminal defense attorneys abide by is to not have their client testify, if possible. The primary reason for this is that if they do testify, they face cross-examination by the prosecutor. In cross examination, the prosecutor can ask leading questions forcing the defendant to make admissions that could connect them with their charged crime. Even for innocent defendants who don’t have anything to hide, cross examination can flush out damning information. This can also be an issue for defendants who simply don’t present well. If they get flustered under pressure or are quick tempered, this will not play well in front of a jury.

Another reason a defendant may not testify is because they have no burden of proof- they don’t have to prove their innocence- rather, the prosecution has to prove them guilty beyond a reasonable doubt. If the prosecutor doesn’t have the evidence to make their case, the best course of action may be to present no evidence.

Unfortunately, this rule of thumb is not so simple. The defendant may have a defense they can raise that only the defendant can advance through their testimony. This was the case in Jodi Arias’ trial. She made a claim of self defense, and that can only come from her testimony because no other witnesses were present during the killing of her boyfriend. The evidence in her case did not allow her to refrain from testifying- she admitted killing him, and so she had to explain why her actions were justified. Yet, it exposed her to hours and hours of cross-examination by the prosecutor, and she was forced to walk through how she killed him in detail, many times.

Defendants may also want to testify to avoid the idea that they are hiding something from the jury by not taking the stand. Even though judges are required to instruct jurors that a defendant’s decision to remain silent cannot be used against him or her, juries can sometimes draw their own conclusions in the deliberation room.

Ultimately, the defendant is the person who has the final say over whether to testify or not. Even if their lawyer advises against it, the defendant has a constitutional right to testify if they want to. Sometimes it pays off, other times it doesn’t- just ask Jodi Arias.

About the Author: Colin McCallin is an experienced Colorado criminal trial lawyer practicing in Denver, CO. He has pursued criminal trials as both a prosecutor and criminal defense attorney.

Witnesses and the Fifth

Bob — Tue, 21 May 2013 11:34:35 +0000

This is an interesting report. Most individuals indicate ahead of trial that they will be taking the Fifth. That did not happen here. The court had to determine if the victim’s statements would incriminate him in criminal conduct to allow him to assert the Fifth.

Maine law was changed a year or two ago to allow district attorney’s to give immunity to a witness. It use to be that only the AG could give immunity. I wonder why that did not happen here. If it did the victim would have had to testify because he could not claim the Fifth since he is immune from prosecution based on his answers.

http://m.sunjournal.com/news/lewiston-auburn/2013/05/21/suspect-freed-when-stabbing-victim-wont-testify-tr/1365687

Companies that hire individuals with convictions

Bob — Tue, 21 May 2013 10:51:11 +0000

The following employer’s will hire applicants with criminal records (including felonies) as
part of a tax credit initiative:

7 -Eleven stores
Berlin City Auto
Flemish Master Weavers (Sanford)
Troiano Waste (So Portland)
New England Truck Tire (Sanford)
Glidden Roofing Co. (Scarborough)
Pilots’ Choice Pizza (Sanford)
RC Moore
Genest Concrete (Sanford)
Dunkin Donuts
North Country Tractor Normand’s Motel (Old Orchard Beach)
Fi Wood Restaurant (Sanford)
Wagon Wheel Restaurant (OOB)
G & G Machining (Kennebunk)
CID Performance Tooling (Saco)
Borealis Bread (Wells)
Curran’s Warehouses (Saco)
Southern Maine Community College Heartwood Distributors (Sa co)
Village Food Market (Ogunquit)
Prescott Metal (Biddeford)
Blue Water Lobster (Eliot)
Cozy Harbor
D’s Concrete Pumping (Kittery)
Brooklyn Bakery
Seacoast Crane and Building (Kittery)
Branch Brook Fuels (Arundel)
Pratt & Whitney
CEI Transport
Brown Group (Berwick)
BH Marcotte Electric (Waterboro)
Pro-Fit Tools (Lee, NH)
TEM Inc. (Buxton)
Albany Engineered Comp (Rochester, NH)
Portland Press Herald (route drivers)
Patten’s Lawn Care
Gordon P. Dobson Inc. (Gorham)
US Lobster Co (Portland)
Maplewood Property Maint. (Portland)
Print Mail of Maine

GSA with Complusion

Bob — Tue, 14 May 2013 13:10:08 +0000

A person is guilty of gross sexual assault if that person engages in a sexual act with another person and the other person submits as a result of compulsion.

This is what most people think of when referring to the word “rape”. It requires the prosecution to prove beyond all reasonable doubt the defendant engaged in a sexual act, as defined above, with another person and the person submits as a result of compulsion. Compulsion means the use of physical force, a threat to use physical force or a combination thereof that makes a person unable to physically repel the actor or produces in that person a reasonable fear that death, serious bodily injury or kidnapping might be imminently inflicted upon that person or another human being.

GSA with compulsion is a Class A felony. The sentencing range for a Class A crimes is 0 to 30 years imprisonment, 4 years of probation, and/or a $50,000 fine. Of course, every rule has an exception. The sentencing range for someone convicted of GSA with Compulsion increases as follows:

If the prosecution pleads and proves that GSA with Compulsion was committed against a person who had not yet attained 12 years of age at the time of the crime the court shall impose a definite term of imprisonment of any term of years (0 to any number of years). In determining the basic term of imprisonment as the first step of the sentencing process, the court shall select a term of at least 20 years. The maximum period of probation increases to 18 years.

If the State pleads and proves that GSA with Compulsion was committed against a family or household member the maximum period of probation is six years.

If the prosecution pleads and proves the Defendant is a repeat sexual offender the court may impose a period of imprisonment and a period of probation for any term of years (0 to any number of years). For purposes of this section a repeat sexual offender means:

A person who commits a new gross sexual assault after having been convicted previously and sentenced for any of the following

Gross sexual assault, formerly denominated as gross sexual misconduct

Rape;

Attempted murder accompanied by sexual assault;

Murder accompanied by sexual assault; or

Conduct substantially similar to a crime listed in subparagraph (1), (2), (3) or (4) that is a crime under the laws of another jurisdiction

If the prosecution pleads and proves the Defendant commits GSA with Compulsion with the use of a gun the minimum sentence that can be imposed is 4 years.

Zumba/Prostitution Case Update

Bob — Thu, 21 Feb 2013 02:48:40 +0000

On Monday the Maine Law Court upheld Judge Nancy Mills’ order dismissing 45 counts of violation of privacy and one count of conspiracy to commit a violation of privacy pending against Mark Strong in the Zumba/Prostitution case. Mark Strong still faces twelve counts of promotion of prostitution and one count of conspiracy to commit promotion of prostitution.

Mark Strong argued on appeal that the crime of violation of privacy does not occur if the alleged victim is engaged in criminal activity at the time of the violation of privacy. The prosecution argued the law protects the privacy rights of victims, whether or not they are engaged in illegal activity.

The appealed on turned on whether a “John” while having sex with a prostitute at her house or in two different location in her Zumba dance studio was in a private place, as defined by statute. The statute defines a “private place” as “a place where one may reasonably expect to be safe from surveillance, including, but not limited to, changing or dressing rooms, bathrooms and similar places.” The prosecution argued a private place extends to any place in which a person disrobes in private, regardless of whether that person is engaging in criminal conduct at the time. Strong argued that a person engaged in criminal activity has no reasonable expectation to be safe from surveillance, and therefore the definition of a private place does not encompass a person engaged in prostitution. The Court examined the legislative history of the law and determined our legislators wanted a private place to be a place where one may reasonably expect to be safe from surveillance and the person’s desire to keep private what transpires within that place must be a justifiable expectation, and therefore, objectively reasonable. The Court found the “Johns” might have had a subjective expectation of privacy but it is objectively unreasonable for a person who knowingly enters a place of prostitution to have an expectation of privacy since engaging a prostitute is not sanctioned by society.

Again, should a “John” have an expectation of privacy when the sexual act occurs in a private place? Does society really not sanction prostitution or should it be legalized?

Do you have a reasonable expectation of privacy in a brothel or illegal massage parlor?

Bob — Sat, 26 Jan 2013 11:54:05 +0000

Yesterday Justice Nancy Mills dismissed 46 of 59 counts in the Mark Strong trial. The counts dismissed were all misdemeanor violation of privacy counts. In the Strong case “Mark Strong is guilty of violation of privacy if, except in the execution of a public duty or as authorized by law, Mark Strong intentionally installs or uses in a private place without the consent of the person or persons entitled to privacy in that place, any device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place. As used in this section, ‘private place’ means a place where one may reasonably expect to be safe from surveillance, including, but not limited to, changing or dressing rooms, bathrooms and similar places.” I have not been privy to Justice Mills’ order but I suspect she ruled the a person visiting an illegal brothel or illegal massage parlor does not have a reasonable expectation of privacy.

The prosecution is unhappy with this order. They requested and received permission from the State’s Attorney General, as is required by law, to file an interlocutory appeal. This brings Mark Strong’s trial to an immediate stop until the appeal can be decided.

What are your thoughts – Should a person visiting an illegal brothel or illegal massage parlor have an expectation that their illegal activities would not be recorded?

———————

David Sharp, Associated Press

Maine | Friday, January 25, 2013 at 11:30 am

ALFRED — A judge on Friday dropped most of the charges against a figure in a prostitution scandal centered on a Zumba studio, prompting another appeal, more jury selection delays and defense accusations of prosecution “shenanigans.”

Justice Nancy Mills dismissed 46 of 59 misdemeanor counts against Mark Strong Sr., a day after the state’s highest court ruled the closed jury selection process had to be opened to the public.

Prosecutors appealed the dismissal, bringing the proceeding to an abrupt halt. Remaining members of the jury pool were sent home Friday, just as they had been the day before.

Strong had pleaded not guilty to all the counts, including conspiring with dance instructor Alexis Wright, who stands accused of using her Kennebunk studio as a prostitution front.

Prosecutors say prostitution clients were videotaped without their knowledge, and all the dismissed charges relate to invasion of privacy.

Strong’s attorneys had argued that people engaged in committing a crime — in this case paying for sex — have no right to privacy under a state law aimed at protecting innocent people in dressing rooms and locker rooms. Mills agreed to dismiss the counts, leaving 13 counts related to promotion of prostitution.

Lawyers for the state said they would appeal the mass dismissal to the state supreme court. That drew the ire of Strong’s attorneys, who have pressed for a speedy trial.

Tina Nadeau, one of Strong’s lawyers, said the appeal will result in a delay that would be prejudicial to Strong. Potential jurors spent much of Friday waiting for a fourth day in the courtroom basement and she said they might blame the defendant for delays.

“There’s no doubt they could take it out on him,” she told the judge. “Every minute that we’re sitting here, his rights are being violated.”

Dan Lilley, Strong’s other lawyer, said there was little chance that the supreme court would reinstate the dismissed charges, and he asked that trial on the remaining counts proceed.

He accused prosecutors of “shenanigans” and didn’t hold back on his opinion of the appeal: “We think it’s frivolous.”

Strong, who’s married, has acknowledged having a physical relationship with Wright after helping her launch her Pure Vida fitness studio by co-signing for her lease and loaning money that was repaid with interest. He said he was unaware of any prostitution and did nothing wrong.

Police said Wright videotaped many of the encounters without clients’ knowledge and kept records suggesting the sex acts generated $150,000 over 18 months.

Wright, who also has pleaded not guilty, faces 106 counts including prostitution and invasion of privacy for acts performed in her dance studio and in a rented office. She’ll be tried later.

Strong’s trial has been moving in fits and starts.

On Thursday, members of the jury pool were sent home after the Maine Supreme Judicial Court stopped the closed-door selection process in response to a constitutional challenge by the Portland Press Herald. In a 6-1 ruling, the court ordered the remainder of the process in York County Superior Court to be opened.

No jurors have been seated out of the original pool of more than 140.

Mills had been conducting questioning of potential jurors behind closed doors because of potentially embarrassing questions focusing on views on sex, adultery, pornography and prostitution. But the high court said that wasn’t reason enough to close the proceedings.

Jury Selection: Public or Private (part 2)?

Bob — Thu, 24 Jan 2013 20:32:00 +0000

Yesterday, Justice Mills excluded the press from jury selection in the Mark Strong Prostitution Case. Maine Today Media, Inc., appealed Justice Mills’ order excluding them to the Maine Law Court. The Law Court, relying on the United States Supreme Court decision in Press-Enterprise Co. v. Super. Ct. of Cal., Riverside Cnty., held the remaining jury voir dire is be conducted in a presumptively public manner. The trial court, however, is to still use its discretion to prevent the dissemination of sensitive juror information. However, the Law Court fails to define what is “sensitive juror information.” I suspect jury selection will continue in the manner I referenced yesterday. Jurors will answer general question in open court but will then be called to side bar or in chambers (in private) to answer more detailed question that might reveal sensitive information. What are your thoughts?

MAINE SUPREME JUDICIAL COURT

2013 ME 12
Yor-13-53; Yor-13-54; SJC-13-1

January 24, 2013

SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
SAUFLEY, C.J., and LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ. ALEXANDER, J.

IN RE MAINE TODAY MEDIA, INC. **********
STATE OF MAINE
v.
MARK W. STRONG, SR.

SAUFLEY, C.J.
[¶1] Before us are (1) Maine Today Media, Inc.’s expedited appeal from the

Superior Court’s (York County, Mills, J.) denial of its motions for a stay and to intervene in the matter of State v. Strong and (2) its motion for a temporary restraining order,1 seeking relief in the nature of mandamus or prohibition, or, in the alternative, for an emergency stay of the court’s order, seeking access for the public and the press to observe the process of jury voir dire in a criminal proceeding brought by the State against Mark Strong. See 14 M.R.S. § 5301 (2012); M.R. Civ. P. 81(c); M.R. App. P. 10.

1 See Ingraham v. Univ. of Me. at Orono, 441 A.2d 691, 693 (Me. 1982).
[¶2] We address only the pending appeal and we deny the motion for a temporary restraining order and petitions seeking relief in the nature of mandamus or prohibition. We accept the interlocutory appeal according to the death knell exception to the final judgment rule. See Liberty v. Bennett, 2012 ME 81, ¶ 18, 46 A.3d 1141. In so doing, recognizing the press of time, we do not further address the right of intervention, and we reserve further analysis of the public’s right to intervene in criminal matters to future proceedings.

[¶3] The appeal presented by Maine Today requires attention to, and the balancing of, rights protected by the United States and Maine Constitutions:

At the jury voir dire stage of a criminal trial, the public, including the press, has rights protected by the First Amendment to the United States Constitution. See Press-Enterprise Co. v. Super. Ct. of Cal., Riverside Cnty., 464 U.S. 501 (1984).
At the same time, Mark Strong has the right to a public trial pursuant to the Sixth Amendment of the United States Constitution. See Presley v. Georgia, 558 U.S. 209, 175 L. Ed. 2d 675 (2010).
Both Strong and the State have the right to an impartial jury and a fair trial.

[¶4] The matter challenged here relates only to the jury selection process. The court initiated jury selection through a process regularly used in Maine courts that provided for extensive individual voir dire, with the practical effect that the public was excluded from the voir dire process. After jury selection had begun, the trial court received a letter from counsel for Maine Today asserting a greater right to public access. The court initially agreed to open the process to the public upon Strong’s agreement.

[¶5] After considering the options, however, Strong, in consultation with counsel, expressed concerns about the ability to draw an impartial jury if the process used by the court were changed. The court then agreed to continue with the individual voir dire process. Maine Today’s motion to intervene followed, at the end of the day of jury selection. Given the lateness of the request, the trial court denied the motion, and Maine Today filed the pending interlocutory appeal.

[¶6] We have determined that, in granting the defendant’s request for the continuation of non-public voir dire, the court did not have an opportunity to consider all reasonable alternatives to closure in order to accommodate the right of the public to attend criminal trials, as required by Press Enterprises, 464 U.S. at 508, 510-13.

[¶7] The findings of the trial court reflect that the process barred the public, which includes the media, from voir dire based on the concern that juror candor would be reduced. Although the trial court exercises substantial discretion over the mode and conduct of voir dire, a generalized concern that juror candor might be reduced if voir dire is conducted in public is insufficient pursuant to Press-Enterprise to bar the public or media from the entirety of the process.

[¶8] Accordingly, we vacate the denial of the motion to intervene and allow intervention for the limited purpose of the matters addressed in this appeal.

[¶9] We vacate the court’s order barring the public from the entirety of the voir dire process. The matter is remanded for the trial court to conduct the remaining voir dire in a presumptively public manner, exercising its considerable discretion to prevent the dissemination of sensitive juror information. The public’s access to the jury selection that has already occurred can be addressed, again at the court’s discretion, by the release of appropriately redacted transcripts.

[¶10] Recognizing that the urgency of this matter has resulted in an order entered without direct input to this Court from the State and the defendant, we note that the parties have presented their positions regarding the public’s access to the jury selection in the record that is before us and that the parties will have an opportunity to address the future process of jury selection with the trial justice. Finally, in order to assure that we have not overlooked any aspect of the parties’ positions, we provide the following process: if the State, the defendant, or Maine Today wishes to file a motion for reconsideration, that party shall notify the trial justice and the Clerk of the Law Court of the party’s intent to do so by 2:00 p.m. today. In the absence of such notice, the mandate shall issue immediately to avoid any further delay of the proceedings. Any such motion shall be filed with the Clerk of the Law Court before 4:00 p.m. today, January 24, 2013.

The entry is:

Denial of the motion to intervene vacated. Intervention is allowed for the limited purpose of the matters addressed in this appeal. Order barring the public from the entirety of the voir dire process vacated. The matter is remanded for the trial court to conduct the remaining voir dire in a presumptively public manner, exercising its considerable discretion to prevent the dissemination of sensitive juror information.

If the State, the defendant, or Maine Today intends to file a motion for reconsideration, that party shall notify the trial justice and the Clerk of the Law Court of the party’s intent to do so by 2:00 p.m. today. Any such motion shall be filed with the Clerk of the Law Court before 4:00 p.m. today, January 24, 2013.

_______________________

ALEXANDER, J., dissenting
[¶11] I respectfully dissent from the Court’s decision to involve itself in the trial process to direct how the trial court should conduct voir dire and jury selection. I would not grant such extraordinary relief based on the one-sided request of a newspaper publisher, without full understanding of the reasons for the trial judge’s action, and without even hearing the positions of the State and the defense in this difficult proceeding.

[¶12] We should not grant requests for injunctive relief lightly, particularly when that request comes to us ex parte. See Bangor Historic Track, Inc. v. Dep’t of Agric., Food & Rural Res., 2003 ME 140, ¶¶ 9-10, 837 A.2d 129. In Bangor Historic Track, we observed that the moving party seeking injunctive relief must demonstrate that: (1) it will suffer irreparable injury if the injunction is not granted; (2) such injury outweighs any harm which granting the injunctive relief would inflict on the other party; (3) it has a likelihood of success on the merits (at most, a probability; at least, a substantial possibility); and (4) the public interest will not be adversely affected by granting the injunction. Id. ¶ 9 (citing Ingraham v. Univ. of Maine at Orono, 441 A.2d 691, 693 (Me. 1982)). Not one of those criteria, let alone all four, is demonstrated here.

[¶13] The First Circuit’s opinion in Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010), is instructive on the issue of stays or injunctive action by appellate courts, stating, “A party requesting injunctive relief pending appeal bears the burden of showing that the circumstances of the case justify the exercise of the court’s discretion.” Id. (citing Nken v. Holder, 556 U.S. 418, 433-34, 129 S. Ct. 1749, 1760-61 (2009)). The First Circuit emphasized that in considering motions for stays or injunctions pending appeal, appellate courts are guided by consideration of four factors: (1) whether the applicant has made a “strong showing” that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent relief; (3) whether issuance of relief will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id. (citing Nken, 556 U.S. at 434, 129 S. Ct. at 1761 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987))). The First Circuit observed that “[t]he first two factors are the most critical. Both require a showing of more than mere possibility. Plaintiffs must show a strong likelihood of success, and they must demonstrate that irreparable injury will be likely absent an injunction.” Id. (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 375-376 (2008)).
[¶14] The opinion primarily relied on by the Court, Presley v. Georgia, 558 U.S. 209, 175 L. Ed. 2d 675 (2010), does not hold that all voir dire, and particularly individual voir dire, must be seen and heard by the press and the public. Here the record is inadequate to even tell us whether the voir dire at issue is general voir dire or individual voir dire. Presley recognizes that there may be circumstances when voir dire must be conducted out of the public view and away from the public ear. See id. at —, 175 L. Ed. 2d at 679-81. It instructs only that, when a trial court decides to conduct individual voir dire in private, as appears to have occurred here, the court consider alternatives to closure and make explicit findings supporting the decision. See id. at —, 175 L. Ed. 2d at 680-81.

[¶15] The trial court in this case considered Presley and has made findings consistent with those described in Presley. Those findings, in part, are that: [A]s the Presley case allows, . . . there may be exceptions for allowing open voir dire covered by the media and attended by the public. Because of the very media attention that this case has gathered and the questions that are asked during voir dire, the responses that we have received from these jurors, who, by the way, were told that their answers to the questionnaires will be confidential, the answers that we have received are candid. And I think that inquiry is necessary. Probing questions, candid answers, is necessary to ensure that we have a fair and impartial jury for Mr. Strong and for the State of Maine in this case based on the extraordinary and unprecedented media coverage that this case has received.

So that is my reason. I expect that if the voir dire were conducted in an open manner, based on the representations we have [made] to the jury, the jurors, who have filled out these questionnaires, I am concerned that the candor would be reduced. I am concerned that the questions, that I asked and that the attorneys have requested to ask and have been allowed to ask, would be different and I think that that could affect in a very substantial way Mr. Strong’s rights in particular and the State of Maine’s rights to a fair and impartial jury.

So, certainly the press is more than welcome to cover the aspects of the trial that have been allowed . . . – in the camera-in-the-courtroom administrative order. You’re welcome to cover the motion hearings that we are going to do in open court either now or after jury selection is concluded. But based on my discussions with counsel this morning, and based on the research I was able to do last night and this morning, and based on my considerations of everyone’s rights in this case, the voir dire will continue to be not covered by the media and not open to the public.

[¶16] These findings appear to be precisely the type contemplated by Presley to justify keeping individual voir dire private, privacy for individual voir dire that is consistent with long-standing Maine practice. See generally State v. DeMotte, 669 A.2d 1331, 1335 (Me. 1996).

[¶17] With the trial court’s findings, the appellant has failed to demonstrate that (1) staying or changing the trial proceedings outweighs any harm which granting the injunctive relief will inflict on the State and the defense who have not been heard; (2) the appellant has a substantial likelihood of success on the merits; or (3) the public interest will not be adversely affected by granting the injunction. See Bangor Historic Track, 2003 ME 140, ¶ 9, 837 A.2d 129. Additionally, the appellant has failed to demonstrate the irreparable injury necessary for ex parte injunctive relief, as, if it should prevail on the merits after our deliberate consideration, the voir dire transcripts, redacted as appropriate, could be made available to it. Accordingly, I would not grant any stay or otherwise give supervisory direction to the trial court.

Appearances for the parties:

Sigmund D. Schutz, Esq., and Benjamin S. Piper, Esq., Preti Flaherty Beliveau & Pachios, LLP, Portland, for Maine Today Media, Inc.

Kathryn M. Slattery, District Attorney, and Justine McGettigan, Asst. Dist. Atty., appearing for the State of Maine in the trial court

Daniel G. Lilley, Esq., and Tina Nadeau, Esq., appearing for Mark W. Strong Sr. in the trial court

York County Superior Court docket number CR-2012-2049 FOR CLERK REFERENCE ONLY

Jury Selection: Private or Public

Bob — Wed, 23 Jan 2013 22:01:33 +0000

Should jury selection in the Mark Strong prostitution case or any criminal case be open to the public and press? Justice Nancy Mills answered that question in the negative this morning when she ruled that jury selection would remain behind closed doors. I completely agree with her. The object of jury selection is to obtain a jury who can be fair and impartial. This means the potential jury members must be able to answer voir dire questions candidly and honestly. Voir dire question go the heart of who you are. That simply is not possible when you are required to do that in front of a news camera or a large group of other people. I am reminded of what another attorney told me about his experience in jury selection. The judge asked the jury pool, about 90 people, if they or anyone they knew were involved in an assault case and if they answered yes would that affect their ability to be fair and impartial. About 6 members of the jury pool answered yes to the first part of the question and that they could still be fair and impartial in front the jury pool and public. The judge then called these 6 jury pool members up to sidebar at the defense attorney’s request and questioned them privately. In private it was learned 4 of these individuals could not be fair and impartial. The moral is that people will be more candid with a small of group of individuals when they feel their answers are private versus answering in a large group setting. Justice Mills, by keeping jury selection private, is ensuring the Mark Strong will be judge by a fair and impartial jury of his peers.

Judge to continue Zumba jury selection behind closed doors

By Scott Dolan
Staff Writer

ALFRED — The judge presiding over the trial of one of the major defendants in the high-profile Kennebunk prostitution case said Wednesday that she will continue to conduct jury selection behind closed doors, over an objection by the Portland Press Herald.

Mark Strong and his attorney Daniel Lilley arrive in the courtroom at York County Superior Court in Alfred on Wednesday.

Gregory Rec / Staff Photographer

“The voir dire will continue to be not open to the media and not open to the public,” Justice Nancy Mills said in the hearing.

Mills made the ruling at a hearing at the start of the second day of jury selection in the trial of Mark Strong Sr. of Thomaston, who is accused of conspiring with former fitness instructor Alexis Wright to run a one-woman prostitution business from her Zumba studio in Kennebunk.

The press and the public have been barred from jury selection, including questioning sessions, called voir dire. The judge has held private sessions with individual prospective jurors in an undisclosed room in York County Superior Court in Alfred with Strong, his attorneys and prosecutors.

Both Strong’s attorneys and prosecutors declined to make any statements on Mills’ ruling.

“This case has been defined from the very beginning by the interests the media has shown,” Mills said. “As concerned as I am about the public, the media and the jurors, my paramount concern in this case is that the state receives a fair trial and that Mr. Strong receives a fair trial in this case, and part of receiving a fair trial is that both parties are able to select a fair and impartial jury.”

Mills said the 145 people in the pool of potential jurors had been told the questioning process would be confidential and that questioning them in the presence of the media might influence their openness.

“I am concerned that the candor would be reduced and that the answers to the questions I asked and that the attorneys have requested to ask and been allowed to ask would be different,” Mills said.
Mills said in the hearing that the media attention in this case has been “unprecedented.”

“The court in this case and in the case of Alexis Wright has been diligent in my view to accommodate the media in an unprecedented way,” she said and cited a page on the courts’ website devoted to filings in Strong’s and Wright’s cases.

“I will say that also in those 19 years, I have presided over cases of very, very significant ramifications for the people of the state of Maine and there have been no media interest in those cases,” Mills said.
Immediately after the judge’s ruling, an attorney for the Portland Press Herald, Sigmund Schutz, filed a hand-delivered appeal of Mills’ ruling and forwarded a filing of the appeal to the Maine Supreme Court.

The Sixth Amendment establishes the right to a public trial except in some narrowly defined cases, such as juvenile cases, rape cases or those involving sensitive or classified information. A judge can close a courtroom only after considering all potential alternatives and then only in extreme circumstances.

The Supreme Court has held that “trial courts are required to consider alternatives to closure even when they are not offered by the parties,” or by anyone else, on the principle that court proceedings should be open to the public to both protect the innocent and serve the public’s interest in maintaining confidence in the criminal justice system.

Strong, 57, has pleaded not guilty to 59 misdemeanors, including promotion of prostitution, violation of privacy and conspiracy to commit those misdemeanors.

Wright, 30, of Wells, is scheduled to stand trial on 106 counts in May. She has pleaded not guilty to all charges, including promotion of prostitution, engaging in prostitution, invasion of privacy, conspiracy, tax offenses and receiving welfare benefits when ineligible.

Authorities allege that Wright kept meticulous customer records, with about 150 names, including some well-known people.

So far, 66 people have been charged with engaging a prostitute in connection with Wright. Prosecutors have put 18 of them on their list of witnesses for the trial, all of whom have pleaded guilty or been found guilty of the misdemeanor.

The judge, lawyers and Strong convened in a closed room after the hearing and a judicial marshal led nine jurors up a back stairway.

After Tuesday’s all-day process, the judge dismissed 50 of the potential jurors from the pool and ordered the remaining 95 to return Wednesday.

It is unclear how many potential jurors the judge and attorneys intend to call into the closed-door question and answer session, though Mills said she expected the next phase of jury selection to last “several hours” to be followed by another hearing on unspecified motions.

Strong’s trial is expected to last up to three weeks.

Miranda Rights – key evidence in vehicular manslaughter suppressed.

Bob — Fri, 14 Dec 2012 21:49:16 +0000

I wish we could get a copy of Justice Clifford’s order. A person must be advised of their Miranda Rights if they are in custody and subject to interrogation. The articles fails to explain how Justice Clifford determine Lowe was in custody at one point of the interrogation but not prior to that point. I suspect her inability to leave might have something to do with it but I would like to actually read the decision.

Judge agrees to throw out teen driver’s texting and driving statements

Tony Reaves, Staff Writer

Oxford Hills |

Friday, December 14, 2012 at 4:21 pm

PARIS — A key piece of state’s evidence against a teen driver charged with manslaughter won’t be admissible in court.

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OXFORD COUNTY SHERIFF’S DEPARTMENT

Kristina Lowe

In a decision filed this week, active retired Justice Robert W. Clifford partially granted a motion to suppress evidence that Kristina Lowe, 19, of West Paris, made to Maine State Police while she was in the hospital.

Lowe, who is charged with manslaughter in the deaths of Rebecca Mason, 16, of West Paris and Logan Dam, 19, of Norway, also faces two charges of operating under the influence, causing death, and one count of aggravated leaving the scene of an accident. In June, she pleaded not guilty to the charges.

According to police, Lowe and her friends were returning to an underage drinking party in West Paris when the crash occurred. Another passenger, Jacob Skaff of Paris, was also injured.

Early in the morning after the crash, Lowe was at Maine Medical Center in Portland for injuries sustained in that night when she spoke with a Maine State Police trooper. Lowe’s attorney, James Howaniec, said that Lowe had been administered opiate medications including morphine and Fentanyl and was in no question to speak with a state trooper.

Howaniec also argued that Lowe wasn’t read her Miranda rights, although she was told she could stop testifying at any time.

In Clifford’s decision, he marked a point in the interview where her testimony becomes inadmissible. Maine State Trooper Lauren Edstrom, who interviewed Lowe, did not read her Miranda rights, Clifford wrote, even when it became clear Lowe may have been the driver. Clifford disagreed that the medication made her unable to answer the questions.

Assistant District Attorney Joseph O’Connor confirmed Friday that the inadmissible portion includes Lowe’s statements that she was texting at the time of the accident. He said he has contacted the Attorney General’s office about the possibility of appealing Clifford’s decision.

Howaniec said Clifford made the right decision. “We’re pleased with the decision,” he said Friday.

“It really eliminates any evidence about texting,” Howaniec said. He said the Maine crime lab found no forensic evidence that Lowe was texting at the time of the crash, and attributes the crash to ice on the road.

The crash has inspired efforts against texting and driving in recent months, as awareness groups have been formed and Oxford Hills Comprehensive High School dedicated a day to drunk and distracted driving awareness.

treaves@sunjournal.com

Why?

Bob — Fri, 14 Dec 2012 20:40:37 +0000

Tonight we will have a big family hug. Then the necessity of explaining this to my 7 and 4 year olds.

You may want to die – go ahead and kill yourself. I will not understand it but there is no need to kill others in taking your own life. Today, the innocence of kindergarten has been lost for so many. To the kids who survived – I am not sure how you will be able to return to school but know you, your family, the deceased and their families will be my heart and prayers. To the teachers and others who helped out you are true heroes! You are in my prayers as well.

Take the time this weekend and holiday season to appreciate all you have and the preciousness of life.