AUGUSTA — With some jurors claiming their counterparts were biased against the government, a mistrial was declared Thursday in the case of five people charged with criminal trespassing last November as part of an Occupy Augusta protest at the governor’s mansion.
On trial in Kennebec County Superior Court on the misdemeanor charge were Elizabeth A. Burke, 48, of Union; Kimberly G. Cormier, 47, of Benton; Patricia L. Messier, 63, of Wiscasset; Jenny Gray, 54, of Wiscasset; and David J. Page, 44, of Surry.
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After the mistrial was declared shortly after 2 p.m. Thursday, defense attorney Philip Worden said he would have preferred a verdict of not guilty; but the defendants smiled and congratulated themselves and about a dozen supporters, seeming to take the outcome as a victory.
“Obviously, there were a number of people on the jury who understood the defendants’ First Amendment rights and understood our argument that the Blaine House is part of the capital complex and, therefore, a public forum,” said Lynne Williams, the other defense attorney.
Before discharging the deadlocked jury, Justice Nancy Mills said, “You’ve told me three times you’ve failed to reach a decision.”
The jury of seven women and five men had sent a series of notes to the judge during more than six hours of deliberations, which began Wednesday afternoon and lasted until shortly after 2 p.m. Thursday. One note signed by eight jurors and read aloud said they believed some members of the jury were biased against government and that was why they could not reach a decision.
The jury made a number of requests during their deliberations, most of which were denied. They asked to go to the Blaine House, and they asked for a copy of the Constitution — it was unclear whether federal or state — and evidence exhibits, of which there were none.
Instead, the judge told them to follow the written instructions she had given to them about the offense of criminal trespass and about the First Amendment.
The jury asked for the Bill of Rights, but the judge declined to give it to them because it had not been entered as evidence. The jury also wanted to rehear testimony given by three officers who either warned or arrested the five defendants charged with criminal trespass at the Blaine House. The jurors received transcripts of that testimony.
Mills, speaking to all the jurors, reminded them that they indicated they could render a fair and impartial verdict when they were selected several weeks ago and as recently as Wednesday, when she had inquired again. She also told them they could decide on verdicts for some defendants while not reaching verdicts on all five.
Prior to declaring a mistrial, Mills polled the jurors, and each said there was no hope of reaching a unanimous verdict in any of the five defendants’ cases.
The Nov. 27, 2011, protest resulted after Occupy Augusta participants who had been camping in Capitol Park since mid-October were told they would have to get a permit to continue to using the park starting Nov. 28 and that they would have to leave by dusk each day. A federal judge later ruled the occupiers needed a permit, so the protesters left the park after a two-month run.
“They took their protest directly to the governor’s door to let him know how angry they were,” said Worden, one of the two defense attorneys. Gov. Paul LePage wasn’t at the residence during the protest.
Worden said the defendants exercised their rights to free speech and to redress grievances and believed they had a right to be there.
Assistant District Attorney James Mitchell Jr., who prosecuted the case, said the protesters defied police orders to leave the Blaine House grounds and lined up to be arrested. They were all released on bail almost immediately after being processed at the jail.
Mitchell said the decision of whether to prosecute the defendants again will be up to Acting District Attorney Alan Kelley, but Mitchell predicted it would go to trial again. Justice Mills said the case would go back on the June trial list.
A jury trial for a sixth defendant facing a criminal trespass charge in connection with the same protest, Gregory Fahy, of Hallowell, begins today, also in Kennebec County Superior Court.
Two other protesters previously were found guilty of the same offenses. Diane Messer, 59, of Liberty, was convicted by a jury on March 23 in the same courtroom. She was fined $400. She also testified at the trial of the five codefendants.
Michael J. Reynolds, 38, of Lewiston, was convicted April 3 after pleading no contest to criminal trespass, and was fined $250.
A ninth person charged with criminal trespass that day, James Freeman, 62, of Verona Island, has a June court date.
Betty Adams — 621-5631
badams@centralmaine.com
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