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The case of Arnold Gross v. State of Maine challenges the fundamental structure of Maine's drug court system. In the February 25, 2012 decision, Justice William Anderson of the Penobscot County Superior Court found that, allowing a judge who participates in the drug court team, to preside of revocation proceedings, violates a defendant's constitutional rights.Maine's drug court program allows some people facing drug charges to participate in a special treatment oriented court. Defendants plead guilty, are put on probation and given a "good sentence" and a "bad sentence." If they successfully complete the problem program they receive the good sentence, if they are unsuccessful, you get the idea. The drug court team consists of a probation officer prosecutor, treatment providers and the judge. The team does not include the defendant's attorney or the defendant themselves. The team meets frequently to consider an individual's progress through the program, occasionally imposing lesser sanctions including short jail sentences. Ultimately, the team may consider whether an individual should be terminated from the program and given the "bad sentence."A recent case, Arnold Gross v. State of Maine challenges this fundamental structure. Arnold Gross plead guilty to unlawful trafficking in scheduled drugs, a class B felony. He was admitted to drug court with a "good sentence" of fully suspended prison time and probation, his bad sentence was four years in prison. After several months in the program he violated his conditions by having contact with a prohibited person. At the termination hearing Mr. Gross and his attorney were heard on the record amd argued against termination. The drug court team then consulted in private with probation, treatment, the prosecutor and the judge discussing the case off the record. Defense counsel was excluded from these conversations. Proceedings on the record resumed and the court announced the decision to terminate Mr. Gross and sentence him to four years in prison.Gross filed a petition for post conviction review and the reviewing judge found that this procedure violates due process. The judge reasoned that, at the most basic level, due process requieres:Written notice of the alleged conduct the triggers terminationThis closer to the defendant of the evidence against himThe opportunity to be heard in person and to present evidenceThe right to confront and cross-examine adverse witnessesA neutral and detached hearing bodyA statement by the court indicating the reasons for its rulingRepresentation by counselConstitutional requirements not satisfied by Maine's ProcessThe drug court structure creates several problems. First the process creates a risk of judicial impartiality since:the drug court judge becomes extremely familiar with the lives of each participant, and in some circumstances, the judge could have a personal knowledge of facts that would be relevant to a later termination hearing. At the termination hearing, the judge could also be called upon to evaluate the wisdom of validity of prior collaborative decision in which that judge participated.Second, the defendant's confrontation rights and judicial partiality are further compromised since, as a team member, the Judge is constantly made aware of ex parte information about the defendant's progress, by communication with other team members. These communications are not disclosed to the defense, their validity can't be challenged and there's no opportunity to cross-examine witnesses on these specific issues.Third, the drug court judge becomes aware of the team's general attitude about the defendant and also about the other team member's ultimate opinion as to whether a participant should be terminated. This awareness comes not from the termination proceedings but from the judge's participation in team meetings. This further compromises the defendants opportunity to confront and cross-examine witnesses against him.Justice Anderson found that the process creates a legitimate risk of due process violation. The court opined that termination proceeding should be handled by a judge who is not part of the drug court team, ordered the revocation and four year sentence vacated, and remained the case for proceedings in front of an impartial judge.What's the Impact?The decision is just a Superior Court Order so it's not statewide precedent. Still, it certainly suggests that the whole state is doing it wrong. If the recomended procedures are followed, Drug Court gets significantly more expensive with an second judge needed for termination, and arguably for lesser sanctions. It's a great decision for the defense who have historically seen drug court as a slow boat to the bad sentence. Maybe impartial judging will put the thing back on track, or maybe courts will decided to throw the baby out with the bathwater rather than fix the problem.
Clik here to view.
The case of Arnold Gross v. State of Maine challenges the fundamental structure of Maine's drug court system. In the February 25, 2012 decision, Justice William Anderson of the Penobscot County Superior Court found that, allowing a judge who participates in the drug court team, to preside of revocation proceedings, violates a defendant's constitutional rights.Maine's drug court program allows some people facing drug charges to participate in a special treatment oriented court. Defendants plead guilty, are put on probation and given a "good sentence" and a "bad sentence." If they successfully complete the problem program they receive the good sentence, if they are unsuccessful, you get the idea. The drug court team consists of a probation officer prosecutor, treatment providers and the judge. The team does not include the defendant's attorney or the defendant themselves. The team meets frequently to consider an individual's progress through the program, occasionally imposing lesser sanctions including short jail sentences. Ultimately, the team may consider whether an individual should be terminated from the program and given the "bad sentence."A recent case, Arnold Gross v. State of Maine challenges this fundamental structure. Arnold Gross plead guilty to unlawful trafficking in scheduled drugs, a class B felony. He was admitted to drug court with a "good sentence" of fully suspended prison time and probation, his bad sentence was four years in prison. After several months in the program he violated his conditions by having contact with a prohibited person. At the termination hearing Mr. Gross and his attorney were heard on the record amd argued against termination. The drug court team then consulted in private with probation, treatment, the prosecutor and the judge discussing the case off the record. Defense counsel was excluded from these conversations. Proceedings on the record resumed and the court announced the decision to terminate Mr. Gross and sentence him to four years in prison.Gross filed a petition for post conviction review and the reviewing judge found that this procedure violates due process. The judge reasoned that, at the most basic level, due process requieres:Written notice of the alleged conduct the triggers terminationThis closer to the defendant of the evidence against himThe opportunity to be heard in person and to present evidenceThe right to confront and cross-examine adverse witnessesA neutral and detached hearing bodyA statement by the court indicating the reasons for its rulingRepresentation by counselConstitutional requirements not satisfied by Maine's ProcessThe drug court structure creates several problems. First the process creates a risk of judicial impartiality since:the drug court judge becomes extremely familiar with the lives of each participant, and in some circumstances, the judge could have a personal knowledge of facts that would be relevant to a later termination hearing. At the termination hearing, the judge could also be called upon to evaluate the wisdom of validity of prior collaborative decision in which that judge participated.Second, the defendant's confrontation rights and judicial partiality are further compromised since, as a team member, the Judge is constantly made aware of ex parte information about the defendant's progress, by communication with other team members. These communications are not disclosed to the defense, their validity can't be challenged and there's no opportunity to cross-examine witnesses on these specific issues.Third, the drug court judge becomes aware of the team's general attitude about the defendant and also about the other team member's ultimate opinion as to whether a participant should be terminated. This awareness comes not from the termination proceedings but from the judge's participation in team meetings. This further compromises the defendants opportunity to confront and cross-examine witnesses against him.Justice Anderson found that the process creates a legitimate risk of due process violation. The court opined that termination proceeding should be handled by a judge who is not part of the drug court team, ordered the revocation and four year sentence vacated, and remained the case for proceedings in front of an impartial judge.What's the Impact?The decision is just a Superior Court Order so it's not statewide precedent. Still, it certainly suggests that the whole state is doing it wrong. If the recomended procedures are followed, Drug Court gets significantly more expensive with an second judge needed for termination, and arguably for lesser sanctions. It's a great decision for the defense who have historically seen drug court as a slow boat to the bad sentence. Maybe impartial judging will put the thing back on track, or maybe courts will decided to throw the baby out with the bathwater rather than fix the problem.
