LEWISTON — Several lawyers have objected to what they say was the improper clearing of a courtroom by a local judge during a criminal proceeding last week.
Defense attorneys said they were dismayed when Judge Charles Dow directed court officers to order out of the courtroom all members of the public, including defense attorneys and prosecutors, as well as defendants, some of whom were in custody.
Four attorneys who witnessed the event told the Sun Journal they had never seen a judge take such drastic measures under similar circumstances. Two defense attorneys attempted to re-enter the courtroom, but said they were ordered by the judge to leave.
They lodged their protests before leaving the courtroom, witnesses said.
No reporter from the Sun Journal was present in the courtroom at the time of the events recounted there.
Defense attorney George Hess was in courtroom No. 1 at 8th District Court on the morning of Feb. 29 for a hearing on his motion to amend the conditions of bail for a client who was seeking to have his bail reduced and to be able to have contact with the victim in a domestic violence case.
Dow abruptly halted the proceeding when the prosecutor began reading a sworn statement by the victim who had earlier applied for a protection-from-abuse order. The statement included accusations of sexual coercion against the defendant.
Referring to intimate details in the case that the prosecutor had started to read in public, Dow said he would resume the hearing at a later time. The judge went on to hear a different case, witnesses said.
During a recess later, a court officer entered the courtroom and said Dow had ordered everyone out except for Hess, Deputy District Attorney James Andrews and the alleged victim in the domestic violence case.
The victim had written a recent letter to the court seeking to have her husband’s bail reduced and allow contact with her because the couple own two businesses that she has been struggling to run since he was jailed last month on charges of domestic violence assault, assault on an officer and refusing to submit to arrest.
Before Dow ordered the courtroom cleared, Hess had argued for a change in the amount of bail and conditions of release for his client. Andrews, in turn, had produced the woman’s affidavit that she had written in January accusing her husband of forcing her to commit a sex act. A protection from abuse order stemming from the affidavit had been granted, but was later dismissed, Hess said later.
He told the Sun Journal that “it was clear to me that (Dow) was concerned about the sensitive nature of the information that the district attorney had raised” and other people in the courtroom hearing that information. He apparently used that as his justification to clear the courtroom before resuming the hearing on the case.
Also cleared from the courtroom was Hess’ client, who had been in the custody of sheriff’s deputies, but was taken to a holding room in the basement of the courthouse when the courtroom was cleared. At the resumption of the hearing, Hess said he made Dow aware of his client’s absence and put on the record that his client had a right to attend his hearing. But Hess said he agreed to go ahead with the hearing despite the fact that his client wasn’t present.
In the span of his 40-year law practice, half of that time in the courtroom, Hess said he had never seen a judge clear the courtroom in criminal court during a public hearing on a similar motion.
“I was surprised and thought it was unusual,” Hess said. “I can’t speak to the judge’s motives, but my impression was he was trying to be respectful to the alleged victim and courteous in the way he was going about it.”
Defense attorney Nicholas Worden, who was in the courtroom awaiting a hearing on his unrelated case, said he, too, was surprised by the court’s order.
“I can think of no legal reason whatsoever for the court’s actions, nor have I heard a legal reason for the court’s actions,” he told the Sun Journal.
Worden, who has practiced law since 1997, including 13 years as an assistant district attorney in the Androscoggin County District Attorney’s Office, said he has seen judges suspend hearings in criminal court to allow the gallery to thin before resuming the matter to accommodate a party or parties in the case.
“I’ve never seen the court order a courtroom closed, absent statutory authority to do so,” such as in juvenile cases and other matters that restrict public participation, he said.
Neither the alleged victim nor the attorneys had asked for the hearing to be closed, Worden said.
The media raised concerns in 2013, when a Maine judge restricted the public’s access to the questioning of prospective jurors for a high-profile trial. The Maine Supreme Judicial Court ruled that the trial judge’s efforts to pick an impartial jury by excluding the public in a criminal proceeding had gone too far.
A local defense attorney who had been waiting in Dow’s courtroom, but asked that his name not be published said, “It was a really bizarre situation.”
All of the attorneys in the courtroom appeared confused by the order, he said.
Defense attorney Daniel Dube, who also had an unrelated case before Dow that day, said he was amazed that the court had been closed to the public.
Dube said he had only seen that happen in family court, but never in a criminal procedure.
Dube said he applauded the efforts of Worden and law firm partner Adam Sherman, who stepped back into the courtroom after it had been cleared and were ordered to leave.
“I greatly admired (their) actions in trying to re-enter the courtroom in the judge’s presence to confirm that they were not allowed in the courtroom,” Dube said, “and to implicitly make the statement that they felt this was not in accordance with constitutionally required procedure.”
Maine Law School Clinical Law Prof. E. James Burke, who practiced law for four decades, including in Lewiston, said the only justification for closing what would ordinarily be an open hearing would be to protect constitutional implications important enough to outweigh the public’s constitutional right to know. The usual constitutional issues to consider in a case where the public was removed from the courtroom before the hearing resumed would be the defendant’s right to a fair trial, an impartial jury and due process.
Referring to Dow’s actions, Burke said, “This is not usual. This is not normal. This is not common.”
While he hasn’t seen this happen before under these circumstances, Burke said, that doesn’t mean it hasn’t happened in a Maine court. He said he has seen courtrooms closed for specific reasons that allow them to bar the public.
However, he told the Sun Journal, “I don’t hear in what you’re telling me a reason why this was closed.”
In the court file of the underlying case, a clerk hand wrote on a document summarizing the hearing: “courtroom cleared except for court staff … to allow (the victim) to address the court regarding personal topics.”
Burke said, “As far as I know, addressing personal topics is not a basis for privacy. By definition, you are usually addressing personal topics in court.”
Burke stopped short of passing judgment, though.
“I’m not saying he did wrong,” he said. “I’m not saying he did right. It’s not clear what is the basis. Simply addressing personal topics is not the basis for closing hearings.”
Burke wondered aloud why a judge chose to close a hearing that would discuss details contained in an affidavit that is a public document, as well as details contained in a letter submitted to the court that also is already a public document.
In response to a request for comment from the Sun Journal, Mary Ann Lynch, liaison for the Maine Judicial Branch, wrote in a statement that neither she nor Dow can respond since the case is pending.
Dow was nominated to the bench by then-Gov. John Baldacci in 2006 and confirmed by the Maine Senate in 2007 after three Republican lawmakers on the Legislature’s Judiciary Committee voted against the appointment over concerns about Dow’s relative youth and lack of courtroom experience.
He was reappointed to the bench in 2014 by Gov. Paul LePage to an additional seven-year term and unanimously confirmed by the Legislature’s Judiciary Committee.
Dow had served as special assistant to former Attorney General Steven Rowe and, before that, worked in the office of Speaker of the House.
Send questions/comments to the editors.
