February 11

Former Vassalboro man wins new trial on OUI charge

The Maine Supreme Judicial Court ruled that there were not enough warnings about the risks of proceeding to trial without a defense attorney.

By Betty Adams badams@centralmaine.com
Staff Writer

A former Vassalboro man who represented himself at trial and was convicted of operating under the influence will get a new trial.

The Maine Supreme Judicial Court overturned on Tuesday the conviction of Seth J. Hill, 37, now of Portland, ruling in a split opinion that there was not enough evidence to show he was completely informed of his right to have an attorney represent him.

Hill was convicted by a jury in Kennebec County Superior Court on March 28, 2012, of operating under the influence and refusing to sign a uniform summons complaint. He had beenstopped and charged with those offenses July 9, 2011, on Bay Street in Winslow. He represented himself at the one-day jury trial.

Six judges agreed on the opinion, with one of those, Chief Justice Leigh Saufley, authoring a concurring opinion. Associate Justice Donald Alexander dissented in a separate opinion.

Associate Justice Warren Silver, writing for the six-justice majority, said, “At the trial stage, specific warnings are required because ‘counsel is required to help even the most gifted layman follow the procedural and technical requirements of the trial process.’”

“The Sixth Amendment guarantees defendants the right to the assistance of counsel,” said Zachary Heiden, legal director for the American Civil Liberties Union of Maine. “The U.S. Supreme Court and the law courts have said people can waive that right, but it ought not to be a routine thing. It needs to be knowing, voluntary and intelligent, and courts have an obligation to really make sure that’s the case. In this decision, the law court is reiterating that. It should not be a routine matter to give up your right to counsel. It needs to be very clear, not just clear to the judge, but clear on the record.”

In 2010, Heiden wrote an article in the Maine Law Review, “Too Low a Price: Waiver and the Right to Counsel,” citing problems with making it too easy to allow defendants to waive their rights to have attorneys.

“It’s really never intelligent to waive your right to counsel,” Heiden added on Tuesday. “Even the most knowledgeable, experienced criminal lawyer is not being intelligent if they waive their right to counsel, let alone a person with no legal training.”

District Attorney Maeghan Maloney, whose office prosecuted the case and sought to have the convictions upheld on appeal, said, “It’s likely the next step would be we would have a new trial and make sure (Hill) is properly advised of his rights.”

Hill’s attorney in the appeal case, Jeremy Pratt, said, “We are pleased by the law court’s decision today and looking forward to a retrial.”

At the conclusion of Hill’s trial, he was sentenced to 96 hours in jail and fined $700, and his driver’s license was suspended for 90 days; however, the sentence was put on hold pending the appeal’s outcome.

Silver outlined the Hill case, which showed that the attorney representing Hill in December 2011 — identified as Bryan Ward in other court documents — told Superior Court Justice Michaela Murphy that Hill had asked him to withdraw because Hill intended to represent himself.

Murphy then asked Hill a series of questions about whether he understood his rights to have an attorney represent him. She also allowed Ward to withdraw.

Silver said that procedure was correct, but the problem came later.

“No evidence in the record demonstrates, however, that Hill was informed prior to the commencement of trial ... that he would be held to the same standards as a lawyer and that the trial court would not aid him in his defense ... or that it would be unwise for him to represent himself because he would be expected to follow the same procedural and evidentiary rules as a trained attorney.”

Silver’s order notes that in the earlier instance when Hill’s attorney withdrew at his client’s request, “Hill’s response to the court’s question of whether Hill understood ‘how a trial works’ was ‘Well, yeah, but not — not exactly, you know.’”

Silver concludes, “Because the record does not reflect — and we cannot infer — that Hill knew of the pitfalls of proceeding to trial without counsel, we must vacate Hill’s conviction and remand for a new trial.”

Saufley’s opinion says this decision does not change the current practices in cases in which defendants proceed to trial without attorneys.

“The difficulty in this case arose, I believe, as a result of what may have been a gap in the record or a simple misunderstanding among judges. ... (T)here never came a point at which a judge made the explicit determination that Hill understood what was necessary to represent himself in a trial.”

She said a trial judge should question a defendant and make a record of the findings when a defendant opts to proceed without an attorney. “In the future, that should eliminate the problem identified in this case,” Saufley said.

Alexander disagreed, saying that Hill had been advised of his right to counsel, opted against it “and now seeks to reverse his course, the result not being to his liking.”

He cited a possible “unintended consequence” of this ruling could be an increased number of appeals from defendants who represented themselves and now say they were wrongly convicted because of insufficient evidence they were properly advised of their rights.

Alexander said he would have preferred that the Maine Supreme Judicial Court “follow our past precedent and remand for findings to learn the totality of circumstances of what Hill knew and what he was advised by counsel and others regarding the risks and consequences of self-representation.

He said he would have affirmed the convictions “or, in the alternative, I would remand for findings so that the totality of the circumstances of Hill’s choice to proceed without counsel could be deferentially reviewed on appeal.”

Betty Adams — 621-5631 badams@centralmaine.com Twitter: @betadams
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