The Capital Judicial Center in Augusta on Nov. 24. Joe Phelan/Kennebec Journal file Buy this Photo

AUGUSTA — The effects of the coronavirus continue to be felt in the state’s criminal justice system, which continues to grapple with using technology to move cases along while still giving the accused their day in court.

There has been an increase in virtual hearings and nearly all in-person court sessions — including jury trials — have been postponed. Additionally, extra effort is being made to prevent people from having to go to court through an increase in diversion programs and discouraging police departments’ proactive traffic enforcement.

Jury trials are unlikely to join the virtual offerings, with defense attorneys and at least one superior court justice opposed to that idea, with the hope widespread COVID-19 vaccinations will allow those to proceed in the future.

“In our system of justice, without jury trials, we’re really not administering justice the way we should be,” said Superior Court Justice William Stokes. “Zoom will never take the place of in-person jury trials. I don’t see that is ever going to happen in Maine. I don’t think there is any replacement for an in-person jury trial.”

At the Capital Judicial Center in Augusta jury trials have been postponed indefinitely. While the courts are not closed, all but a few hearings are taking place virtually. That means lawyers, defendants, judges and sometimes witnesses are appearing by Zoom video conferencing.

While the virtual hearings have allowed some cases to be resolved and reduce the growing backlog, they also bring concerns about whether justice is being served. That is particularly the case for defendants who may be facing a life-changing stint in prison, trying to navigate the justice system and a new technology that is not always reliable.

Defense attorneys said virtual hearings can be more efficient, and save them and their clients money, but cautioned that witness testimony should take place in person in a courtroom.

“There would be real Constitutional issues with having to do any sort of real trial work via video,” said Augusta-based attorney Darrick Banda. “The line should be drawn at the point where testimony needs to be taken of any witness. The subtle art of cross-examination does not lend itself well to video teleconferences.”

Walter McKee is another Augusta-based attorney, and chairperson of the legislative committee and treasurer for the Maine Association of Criminal Defense Lawyers. While most video appearances work fine, he said, there are concerns that probation violation cases and other criminal hearings are taking place virtually.

“Probation violation hearings often involve very significant potential consequences,” McKee said, “and the fact that a person could be sent to prison for years based on a hearing where the defendant only sees what is happening through a small video screen is disturbing.”

As the pandemic drags on, he said, clients have expressed concern about when they will get to go to trial as they are “supposed to be guaranteed under the Constitution.”

“There has been some suggestion that these trials could be done by video, but that is a complete nonstarter and unrealistic,” McKee said. “Thinking someone is going to trade in their right to an in-person trial for the expediency of a video trial is naive.

“Trials by video lack the core component of a trial: actually seeing and directly communicating with witnesses about what happened,” he added. “There is no substitute for this when it comes to getting at the truth.”

Maeghan Maloney is district attorney for Kennebec and Somerset counties, and president of the Maine Prosecutors’ Association. She said courts in Kennebec and Somerset counties have only handled nontestimony hearings virtually thus far. Numerous cases that require in-person court action at the Capital Judicial Center, including arraignments, are being continued and delayed indefinitely while the coronavirus pandemic lingers.

But, Maloney said, she would consider having hearings that include testimony take place virtually — including jury trials. There is no current proposal in Maine to have virtual jury trials.

“Any hearing that defense counsel is in agreement to do virtually, I’ll do virtually. I will never object to any form of going forward,” Maloney said. “I think access to justice is that important, I’m willing to do it in any form.”

Testifying virtually without wearing a mask, she said, as opposed to with a face covering that would be required in a courtroom, might make their testimony more accurately judged because their facial expressions would be visible.

Maloney said the Criminal Justice Commission on Mitigation of Pandemic Impact recently reached agreement on five recommendations aimed at helping courts continue to function and not add as much to the case backlog. Members of that commission include Superior Court Chief Justice Robert Mullen, state Commissioner of Public Safety Michael Sauschuck, McKee, multiple district attorneys, and several representatives of state and municipal law enforcement, including Augusta Police Chief Jared Mills.

Among the recommendations are encouraging police statewide “that proactive traffic enforcement is curtailed with a focus toward life-safety issues” — such as operating under the influence — and increasing the use of diversion programs for low level, nonviolent crimes.

In diversion programs, participants attend classes and receive information that addresses their actions that led to their charges. If they successfully complete the program, their charges could be dismissed or dropped. With arraignments already delayed, Maloney said a potential defendant could go through a diversion program before that takes place and never be charged in court.

With a recent spike in COVID-19 cases, Maine courthouses are requiring all who enter to have their temperature checked. Another precautionary measure that was already in place was a series of health questions people were asked before they were allowed entry.

Many courthouses across the state have reduced hours and are closed when no in-person hearings are scheduled, though officials noted they remain open for telephone calls. The Capital Judicial Center, however, does seem to be open for its regular hours — 8 a.m. to 4 p.m. Monday through Friday — and has no closures listed on its schedule for January.

“Balancing the health and safety of the public and the branch’s employees with the need to provide access to justice has been the Judicial Branch’s focus since the beginning of this public health crisis,” the state Judicial Branch announced in a Dec. 21 statement. “The Judicial Branch has had to rethink almost everything we do in order to ensure public safety. … Through determination, creativity and grit, we have provided access to justice to Maine citizens by inventing new processes and initiating technology solutions in a few short months.”

McKee and Banda both praised one measure taken by state court officials, increasing the types of court documents that can be filed electronically. Banda said he hopes that continues after the pandemic.

Virtual sessions for some court sessions, such as dispositional conferences in which attorneys and judges meet to discuss potential case resolutions, Stokes said, might be beneficial to consider continuing in a virtual format once the pandemic subsides.

He is hopeful that when in-person jury trials finally resume, the backlog of cases will be cleared up.

“In a sense we sort of feel helpless, this is something we can’t control,” Stokes said. “One of the most frustrating parts of this is all the uncertainty of when this is going to be done. But I feel comfortable that when this is over — and it will be over — we’ll be able to deal with the backlog and provide justice through jury trials.”

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