District 6 District Attorney Geoffrey Rushlau has been D.A. for the four-county coastal area, including Sagadahoc, Lincoln, Knox, and Waldo counties, for six terms, making him one of the longest serving D.A.s in Maine. He met with the Wiscasset Newspaper on Friday, July 8, to discuss a wide range of issues, including domestic violence prosecution, and the proposed marijuana initiative known as Question One on the November ballot.

Rushlau would not comment on specific pending cases before the courts, but answered some questions in general terms.

Domestic violence

“Except for certain crimes, people are ordinarily allowed to be out on bail prior to trial,” he said in response to a question about how domestic violence alleged abusers are moving through the court system. “Murder is one of those cases, and there is an ancient rule called the Harnish Hearing that says that those accused of a formerly capital crime may be denied bail, but that is rarely invoked. The purpose of bail is to assure that the defendant shows up for trial. It’s not really to deal with public safety.”

What that means is that those who commit domestic violence assault are very likely to be out on bail. Even though their alleged victims have the opportunity to obtain a Protection from Abuse Order, which allows them to get a restraining order, in Lincoln County, it is not uncommon for defendants to violate bail conditions — often because they attempted to contact the victim. Even then, the perpetrator may get a day or two in jail before being released again on bail.

Rushlau said that it should not be allowed for a defendant to use community property as collateral for bail for domestic violence, but there is no prohibition on it. The victim has to object to its use for that purpose through the State. It is also not typically allowed for a parent or grandparent to put up their property for bail for a child or grandchild for any crime.

“Remember that any trial begins with an accusation,” Rushlau said. “The State has to prove its case beyond a reasonable doubt.”

Also problematic is that although laws changed in the mid-1980s, requiring the state to prosecute all cases that could be prosecuted successfully, it took a while for the psychology of police departments and the prosecutors’ offices to change. Victims do not have to press charges, nor can they prevent the charges from proceeding. “We took the responsibility out of the hands of the victims,” Rushlau said. “But it took a while for the reality to catch up to the law.” Prior to that time, police had far more discretion. They could advise the perpetrator to take a walk and cool off, for instance. That is no longer the case.

But even now, many victims, after looking at how their lives will change if the prosecution goes forward, are upset when they are told they don’t have the authority to make a case go away, Rushlau said. “The state is the prosecuting authority, not the victim. But victims sometimes still say they want to withdraw charges.”

Police are supposed to make an arrest if they can identify a predominant aggressor, which sometimes isn’t easy in the heat of a domestic situation. “You’ve got two people pointing fingers at each other and saying, ‘She started it’ or ‘He started it,’” Rushlau said. If an arrest is made, the D.A.’s office has to determine if it can prove guilt beyond a reasonable doubt. In many cases, Rushlau said, it is likely that the state will have to prosecute the case without the assistance of the victim. “Weeks or months down the road, the victim may change his or her mind,” he said. “Then  the state has to decide whether the material it already has, which may include photographs, the original complaint, medical reports, the police report, and so on, are strong enough to win the case.”

If not, the case may be dropped, or a defendant may plead to a lesser offense, he said.

Marijuana legalization

“First, let me say that I do not want Question One to become law,” Rushlau said. “If it does, I am concerned that it will be increasingly easy for young people to get drugs.” Marijuana may not be technically addictive, Rushlau said, but there is a dependence that affects many young people — and adults.

If Question One, on the November ballot, were to pass, Maine would join several states that have made marijuana legal for recreational use, including Colorado, Oregon, Washington, Alaska and Washington, D.C. Maine may not be alone — several other states have recreational marijuana on the ballot this year, including Massachusetts, California, Arizona, Nevada, Michigan, and Missouri. Other states have deadlines for turning in signatures later in the summer.

Right now, Rushlau said, there is no test that can accurately tell whether someone is too impaired with marijuana to drive. “Should we use a breath test, or saliva test?” he said. “There are simply no tests that can pinpoint impairment, although we are attempting to build that capacity now,” he said.

Many habitual users develop such a tolerance that they are not impaired at testable levels in the blood — Colorado uses a limit of five nanograms per milliliter of blood, for instance. Most tests suggest that limit is far too low. The science, Rushlau said, is simply not conclusive, which is why the Maine State Legislature declined to establish a limit for THC, the active ingredient in marijuana, to identify impaired drivers. “Marijuana also metabolizes quickly,” Rushlau said. “A person may not be impaired an hour after smoking a joint, whereas a person who has had several drinks may be impaired for hours.” But THC, unlike alcohol, is fat soluble, and can remain detectable for days or weeks after use in a blood screening. While a person who has been drinking all night won’t test positive the next day, the same is not true with marijuana. That makes any sort of enforcement — and any prosecution for impaired driving — very difficult. Police may have to obtain search warrants to take blood samples as well, something not necessary with a breathalyzer test today.

Rushlau said that it took time over decades to hone an appropriate level of alcohol in the blood to identify whether a person was impaired. The first drunk driving arrest was made in 1906, and all through the next century, levels were identified, and tests improved. The level of alcohol in the bloodstream considered impaired has gone down several times in the last couple of decades, and may go down again to .05 in the next few years, which is about the level of half a beer or so.  “AAA recently came out against a THC bloodstream limit,” Rushlau said. “We need the science to back us up, and for there to be universal acceptance of the limits.”

Rushlau said that the state is not prepared for marijuana legalization, and how the next federal administration will deal with states that are not in compliance with federal law is anybody’s guess. “Typically, the federal government withholds funding of some type, usually federal highway funds,” he said. That has not yet happened in Colorado or Oregon or Washington State.  While the Obama administration has had a laissez-faire attitude toward states experimenting with legalization, it is by no means certain that any new administration will have the same response.

Compromised evidence

One of the allegations made against Lincoln County Deputy Kenneth Hatch was that he used marijuana, stored in evidence bags in his garage, according to the alleged victim, to encourage the victim’s compliance in the alleged sexual abuse. While Rushlau would not comment on that case, he said that any evidence that cannot show a chain of custody from the person or place from which it was seized to the date of the trial is problematic.

“It is the responsibility of the law enforcement agency to make sure that the integrity of the evidence is maintained,” he said. “If drugs disappeared, even if they were already analyzed and authenticated by chemists, it would be very difficult to prosecute a drug case,” he said. “It would not be sufficient to prove guilt.”