The Capital Judicial Center in Augusta, like all Maine courts, suspended trials in March because of the coronavirus pandemic. Recently the courts have resumed trials, but a shortage of justices and new pandemic-driven guidelines have meant the wheels of justice are turning slower than in the past. Joe Phelan/Kennebec Journal file

AUGUSTA — As the Capital Judicial Center, and other courthouses statewide, ramp up to address a backlog of cases that built up over the last several months due to the coronavirus pandemic, a shortage of judges, combined with social distancing requirements that limit the number of people who can be in a courtroom together, have compounded the problem.

To the extent some fear if the pace doesn’t pick up some defendants may not get their constitutionally guaranteed speedy trial.

Jury trials are scheduled to resume this week, in Augusta and Bangor, but the state’s first jury trial since the pandemic struck, scheduled to take place last week, was scuttled and rescheduled to April after a witness in the case had a child show potential COVID-19 symptoms, which meant he couldn’t enter the Judicial Center to testify in the case due to restrictions meant to prevent the spread of the virus in the courthouse.

But even without jury trials to oversee, judges at the Capital Judicial Center already had a heavy workload as the courts have been hearing cases that were delayed due to the pandemic. In doing so, they are having to hold more, smaller courtroom sessions, and more sessions by video conferencing, to better allow for social distancing.

Superior Court Justice Michaela Murphy wears a cloth face covering while she looks a monitor and talks to an attorney participating remotely during a court session April 24 at the Capital Judicial Center in Augusta. Now that trials have resumed, a shortage of justices in Augusta means there may still be a backlog of cases for a while. Joe Phelan/Kennebec Journal file Buy this Photo

At the same time, the number of judges at the courthouse is down, due primarily to retirements of judges, leaving only Superior Court Justices Michaela Murphy and Williams Stokes as full-time judges in Augusta. They are supplemented by district court judges who work part time.

Murphy said normally there’d be five or six full-time judges at the judicial center.

She said jury trials resuming should allow the courts to pick up the pace and make progress thinning the backlog of cases. But she’s concerned if something were to go wrong, such as the winter season potentially bringing an increase in COVID-19 prevalence. If the backlog isn’t addressed and further delays take place, some defense attorneys may claim their clients are not getting their Sixth Amendment-protected right to a speedy and public trial before an impartial jury.

“We’re going to be facing the issue of a speedy trial for a lot of people charged with crimes,” if the pace doesn’t pick up, Murphy said. “We’re trying our best to come up to speed. There’s still a significant backlog but we’ll be digging our way out over time.”

She said having jury trials increases the pace of dealing with cases not just by cases being resolved at trial, but because, without a trial looming on the horizon, defendants have less motivation to take plea deals to resolve their cases. She anticipates jury trials resuming will thus increase the number of defendants willing to consider pleading guilty to crimes rather than go to trial.

There are currently four vacant district court judge and one vacant superior court justice positions in Augusta, according to Amy Quinlan, director of court communications for the state judicial system. All are the result of recent retirements. That has left two to three district court judges, one family law magistrate, and Superior Court Justices Stokes and Murphy attending to dockets in Augusta.

Judges are nominated by the governor and confirmed by the state Legislature.

Lindsay Crete, spokeswoman for Gov. Janet Mills, said a district court judge was sworn-in in Washington County last week, but three other judicial nominations lapsed when the Legislature adjourned earlier this year, including one superior and two district court positions. She said the plan is to renominate those candidates when the Legislature is seated. And she said the Governor’s Judicial Nominations Advisory Committee meets again in a few weeks to review applications for existing vacancies, after which Mills may nominate additional candidates.

Walter McKee, an Augusta-based defense attorney, said the judges working in Augusta seem to be keeping up and he hasn’t noticed a significant shortage of judges there. However he said the courts are “definitely moving more slowly.”

He said the court now can only process 60% of the criminal cases it would normally process in a month. He said cases are sitting for months on end.

McKee speculated that jury trials may not be likely to recommence full steam until spring and, if so, “there will be motions demanding speedy trials — and potential dismissals — the longer this lag goes on.”

Maeghan Maloney, district attorney for Kennebec and Somerset counties, said as soon as the state allowed jury trials to resume, jury trials were offered to all defendants currently being held in jail, either because they could not afford bail or were not allowed bail.  She said they’ve been the justice system’s priority, over defendants who are out on bail.

However none of them, for various reasons, took the offer to have the first jury trials since the pandemic put a stop to them back in March.

Maloney said no defense attorneys have raised the issue of whether their clients were getting a speedy trial or not, yet, likely at least in part because anyone in custody was offered a jury trial. But “I expect that could happen, if we’re not able to continue offering trials. My hope is we’ll be able to continue to have trials, and find a way to do it so everyone feels safe and is able to have access to justice.”

She and Quinlan said Maine, even before any pandemic issues arose, already had fewer judges per capita than almost all other states. Quinlan said the situation with judges in Augusta is typical of other courthouses in Maine. She said the court system has attempted to spread the burden of the recent vacancies equally across the state.

Maloney said the shortage of judges is most apparent in scheduling arraignments for suspects. She said previously around 80 people could be summoned to appear in a single courtroom on an arraignment day, but the need to socially distance inside courtrooms has limited the maximum number of people allowed in a courtroom, depending on its size, to less than half that.

That means there needs to be more arraignment hearings, each of which must be presided over by a judge, placing further demands on judges’ time.

Murphy said court staff are working harder than they ever have. She said judges have talked about the importance of minimizing risk of the coronavirus but they took an oath and feel a heavy responsibility to help the courts remain open to the public.

Maloney said with arraignment hearings restricted to about half their size, the arraignments for numerous defendants are being rescheduled. But with other arraignments already scheduled, more alleged crimes being committed and additional suspects entering the justice system, its a problem, she said, that snowballs and grows.

To try to slow that growth in the mounting number of defendants needing arraignment dates, Maloney said she’s asked area police leaders to ask their officers to, when they can, write civil violations instead of criminal summons, for lesser, nonviolent offenses. She said all have agreed to do so.

Augusta police Chief Jared Mills said that department’s officers, when handling lower-level traffic violations, like criminal speeding or expired registrations that have been expired for so long they would normally be criminal offenses, write the alleged offender up for a lower-level offense, such as speeding or having a registration expired for a shorter period of time. This means the violation can be handled at the state violations bureau where the suspect can pay a fine without going to court.

Chief Mills said Maloney advised the DA’s office was being forced to dismiss some lower-level traffic cases at arraignment due to the overload of cases.

“It is up to me to make sure we are striking a balance between holding people accountable for their actions and not overloading the court system with violations that could be addressed in another arena or fashion,” Mills said. “This is yet another example of the balancing act that everyone within the criminal justice system has had to participate in since this pandemic started.”

Maloney said more serious crimes, like assaults, will of course still draw criminal, not civil, charges and be prosecuted.

While the state’s first jury trial since March didn’t take place due to a witness not being able to enter the courtroom to testify, another trial did happen. A bench trial in which the judge, not a jury, decides the verdict, was held Friday.

Stokes found Shalay Davis, 29, of Troy, New York, guilty of aggravated trafficking in scheduled drugs, violation of condition of release, and criminal forfeiture of $290 she had on her, for her Jan. 9 arrest in Augusta.

Murphy and Maloney both expressed relief that 147 jurors showed up for jury duty when the courts put out a call for jury selection recently. Murphy said they weren’t sure how many would show up with the pandemic still around. A total of 400 jurors were initially summoned, but were weeded out initially through a written process that excused any who had a condition that might make them more vulnerable to the virus. The jurors, when trials get underway, will be spaced out in a courtroom set up specifically for socially distanced jury trials.