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Stan Moody

54 Leavitt Ln. Glenburn, ME 04401 207/607-3055

"North Pond Hermit" Guilty before Trial April 17, 2013 The headlines screamed, "North Pond Hermit Faces Two New Charges, Higher Bail"1; "North Pond Hermit's Bail Upped to $250K; Police Worry about Exploitation".2 Thus, Christopher Knight was stripped of his right to a presumption of innocence by a district attorney and a judge who bowed to the preponderance of the evidence of guilt. "Bail Lowered to $25,000 for North Pond Hermit", the headlines screamed a day later.3 To the rescue of Maine's fractured criminal justice system rode celebrated attorney, Walt McKee, with a face-saving deal brokered with recently elected Kennebec County DA Meaghan Maloney to avert what has to be one of the highest bail rulings in the history of petty crime. Fear of Exploitation no Grounds: The original bail ruling of $5,000, effective under conditions of the indigence of the defendant and his likelihood of unavailability for trial if released, was escalated on the grounds that outsiders were taking an interest in his case, one of whom apparently offered to post the bail. Another proposed marriage. This triggered a reaction from investigating officer, Maine State Trooper Diane Perkins-Vance, extensively quoted in the articles. Trooper Perkins-Vance feared the exploitation of Knight and, apparently, convinced DA Maloney of pretrial incarceration under prohibitive and potentially unconstitutional bail provisions in a petty crime case. Consequently, esteemed

Abigail Curtis, Bangor Daily News, 4/15/2013. 2 Susan Cover, Kennebec Journal, 4/15/2013. 3 Betty Adams, Kennebec Journal, 4/16/2013.

jurist, Justice Nancy Mills, deferred to law enforcement rather than to the Constitution in an undoubtedly chaotic day at the Kennebec County Superior Court. The notion that pretrial incarceration at the Kennebec County Correctional Facility is the proper venue for protecting a petty thief from marriage proposals and Dave Letterman et al ought to elicit an amused response from those having experience with its hospitality. Letterman et al would ask Knight what we all want to know, "With one police officer for every 550 Maine residents, how did you manage to live for twenty-seven years under their noses and commit a thousand burglaries without detection?" Tried, Convicted and Sentenced Pretrial: We can speculate, if the news articles are correct, that after this miscarriage of justice, someone awoke to the fact that Knight had been tried, convicted and sentenced pretrial without benefit of counsel. Nor had a forensic mental health exam been ordered. A likely quick call to Atty. McKee undoubtedly resolved both issues, and the dysfunction was hastily backtracked to the new bail ruling, but not before McKee was summoned to the courtroom, perhaps by a rather flustered Justice Mills. Knight's latest capital-style crime, of course, was that he had been caught wearing stolen trousers, perhaps one of the few in the courtroom on our national tax day with his pants still up, to stretch a metaphor. This kind of justice tends to be meted out daily for the poor. At issue is the abuse of bail for those unable to post. Bail as an Absolute Right: Over the years, the US Supreme Court has affirmed the presumption of innocence as a Constitutional right but without specifics concerning its roots.4 Because of this failure of specificity, lower courts over time have separated due process from pretrial incarceration.5 In Maine, two cases stand out. In the 1981 case, Fredette v. State, defendant Nancy Fredette, later convicted by a jury of murder, was granted bail and released while awaiting trial. While appealing her conviction, she was denied bail. The Maine Supreme Judicial Court affirmed the denial of her writ of habeas corpus but only as regarded the matter of post-conviction bail. They went beyond the scope of the appeal by declaring the absolute right of a defendant, under Article 1, Section 10 of the Maine Constitution, to non-excessive pretrial bail in all offenses not considered to be of a capital nature, thus affirming the doctrine of innocence until proven guilty.
4 5

Shima Baradaran, "Restoring the Presumption of Innocence", Ohio State Law Journal, Jan. 2012, p. 754. Ibid., p, 755.

In the 1999 case, State v. Ullring, however, David Ullring appealed the rejection of his motion to suppress evidence obtained during a warrantless search while awaiting trial on charges of trafficking in marijuana. A condition under which he agreed to pretrial bail was that he would not be in possession of drugs. His contention was that a defendant who signs conditions to a bail for which he is absolutely entitled is signing under coercion. The Court established the right of pretrial bail on two conditions. One condition was to assure the appearance in court, which the Court saw as problematic with a drug-addicted defendant. The other condition was a more subjective one, and that was to ensure the integrity of the judicial process. Thus, a bail commissioner or a judge is required to make a negative finding as to probable guilt before imposing or denying bail in a non-capital case. Later changes to the Maine Bail Code in 2007 added potential danger to the safety of the public and propensity to commit new crimes to the growing list of considerations. Downward Spiral: An indigent person is arrested for a non-capital crime. He spends the night in jail and is visited by a bail bondsman of dubious authority who offers to get him released if he will sign a couple of papers, to which he eagerly secures his signature or mark. He goes home and is visited a few days later by a police officer who finds beer in his fridge. Now he is back in jail on an additional bail violation charge and is visited by his court-appointed attorney, who has been offered a plea bargain by the DA. If he goes to trial, the bail violation will work against him toward presumption of guilt, in which case he is told that he may be facing a sentence of X number of years. If, on the other hand, he pleads guilty to the original charge, the bail violation charge will be dropped, he can serve a year in jail and Y numbers of years on probation. Our indigent defendant, then, has been put in the position of having little recourse to a fair trial by virtue of the imposition of conditions to his bail tainted with the presumption of guilt. A Lose/Lose Proposition: Christopher Knight, the so-called "North Pond Hermit", is likely mentally ill, has committed a series of petty crimes to survive and is now being held for his own protection in a facility inhabited by the poor, the mentally ill, the addicted and those who prey on people unable to protect themselves. Even a $25,000 bail ruling is prohibitively high if a condition is attached assuring that it cannot be posted by anyone but him. It doesn't matter if it is $100 or $1M; the presumption of innocence has been lost due to pretrial incarceration.

Simply put, Knight is being punished for crimes for which he has not yet been convicted. Whatever the reasons for his continued incarceration, and despite the good intentions of the officers of the court, the court is now dealing with a defendant demoralized and defeated with limited access to social and legal resources. We may insist that Knight otherwise would be totally incapable of assimilating into society on any social level, and that is very true in this case. However, his treatment leaves us with the uncomfortable sense that the system is incapable of accommodating the broken and mentally incapacitated. Is treatment the alternative? You be the judge, because you are!

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