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Maine Supreme Court orders judge to reconsider man’s request for new trial in 2010 murder case

Ernest Weidul addresses the family of Roger Downs Jr. during his sentencing in June 2012. Gordon Chibroski/Staff Photographer

Maine’s highest court has reversed a judge’s decision to deny a man’s request for a new trial in the 2012 death of a Portland man.

The latest ruling means 64-year-old Ernest Weidul can once again seek a trial he has sought for a decade.

Roger Downs Jr.

Weidul is nearing the end of a 16-year sentence in Maine State Prison for the death of Roger Downs Jr., who died days after he and Weidul fought in Downs’ home. The earliest he could be released is March 14, 2025, according to the Maine Department of Corrections.

He first met Downs on May 5, 2010, when Weidul scraped his car against a guardrail in front of Downs’ home on Forest Avenue. Downs invited Weidul inside to use the phone, and the two men began drinking. They later got into a fight, and Downs woke up the next day with several injuries. He called an ambulance and was taken to Mercy Hospital, where he died on May 7, 2010.

Weidul was arrested the next day for driving with a suspended license. He admitted to getting into a fight with Downs and was later charged with aggravated assault. Prosecutors added a murder charge when he was charged after Downs’ death was ruled a homicide.

Weidul challenged his conviction in a 2014 petition for retrial, which he amended in 2016, alleging that three court-appointed defense attorneys were ineffective.

The post-conviction trial lasted several years and was frequently delayed until Superior Court Judge William Anderson finally denied the motion in a lengthy 2022 order.

But Anderson was assigned to the case between three days of evidentiary hearings that were spread out between 2017 and 2022 because of jurisdictional issues, judge availability and the COVID-19 pandemic. By that time, the original judge hearing the petition — Supreme Court Justice Joyce Wheeler — had retired. Wheeler observed the first two days of the trial in 2017 and 2018, during which Weidul’s lawyers testified about their work during the trial.

On the final day of Weidul’s 2022 trial, Anderson rejected Weidul’s requests for his lawyers to re-testify. Instead, he opted to use a transcript of the deposition and later said Weidul had failed to prove his lawyers were ineffective.

Here the Maine Supreme Court ruled that the lawsuit failed Weidula.

The justices agreed in a ruling issued Tuesday that Anderson could not have made a credible decision about the effectiveness of Weidul’s lawyers without evaluating their “demeanor, tone of voice, body language” and other elements that “underlie Weidul’s claims of ineffective assistance.”

“Since Weidul did not consent and was not permitted to call the three attorney-witnesses again, except to question them on issues that had not been raised previously, we conclude that the trial court erred,” the judges wrote.

SUBSTITUTE JUDGES

It is unclear what will happen now that Anderson’s order denying Weidul’s motion for rehearing has been vacated and sent back to the lower courts.

His convictions remain in effect, according to a spokesman for the Maine Attorney General’s Office, which opposed Weidul’s appeal in April. But a new judge to hear Weidul’s petition has not yet been appointed.

Weidul’s current attorney, Donald Hornblower, was still reading the Supreme Court ruling Tuesday afternoon but said what he had read so far proved how important live testimony is.

“It seems like they’re really indicating that they can’t go any further without credible, reliable testimony that a judge hears in person,” Hornblower said. “I’m really glad the Supreme Court did something here.”

In their ruling, the judges wrote that it had already been found to be unconstitutional to replace judges during criminal trials in which “the new judge had no opportunity to assess the credibility of witnesses or listen to the testimony in detail.”

“Even if we were to look to the civil or common law rules, we would find that they too contain a rule that a successor judge who has not presided over all the witness testimony in a district court trial must either grant a new trial or at least allow the parties to re-examine witnesses whose testimony is material and disputed,” they wrote.

Assistant Attorney General Donald Macomber argued in April that while the change of judges may not have been ideal, Weidul’s case was unusual. During the trial and afterward, Macomber said, Weidul fired his lawyers “in the blink of an eye.”

“This is the oldest post-conviction hearing I’ve ever worked,” Macomber told the judges. “Because of the pandemic and his client’s mental state, it took us forever to get through this. We couldn’t get through the first two hearings because of his client’s mental state, and we couldn’t get through the third day because of his mental state. And then the pandemic happened.”

“But you are saying that because of the time it took, this case should receive special treatment?” Judge Andrew Mead asked.

“I think so,” Macomber said. “In the unique circumstances of this case, I don’t think there’s a problem.”

LONG, COMPLICATED CASE

Between his arrest and sentencing, Weidul was assigned five defense attorneys.

His first two lawyers withdrew. A second pair of lawyers — Amy Fairfield and Luke Rioux — tried to withdraw but were denied. The judge said he was too close to trial and said Weidul had already “gone through a lot of lawyers, burning bridges.”

They were allowed to hire a third lawyer, Tom Connolly, around the same time. Connolly fought to obtain Downs’ medical records from Mercy Hospital, Hornblower said, which the hospital provided two days before the jury trial began.

The evidence could have been crucial to Weidul’s defense, the judges said in their ruling, because Mercy admitted that Downs’ treatment “did not meet the standard of care” and that hospital staff failed to recognize the extent of his injuries and admit him to the intensive care unit.

During the April hearing, Judge Rick Lawrence noted that this detail “potentially could have changed the circumstances of this case.”

However, the justices wrote in their ruling that Weidul’s lawyers had decided not to use that assessment at trial. Instead, they argued that Downs died of undiagnosed pneumonia, which the jury was not convinced by.

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