Thursday, October 13, 2005

Editorial: More loopholes

Published in the Current

(Oct 13, 2005): Trucker Scott Hewitt has found another of Maine’s legal loopholes through which he may yet slip.

He has already effectively gotten away with killing Tina Turcotte of Scarborough, whose car Hewitt’s truck demolished on I-95 in Hallowell July 29. Kennebec County District Attorney Evert Fowle has determined Hewitt cannot be charged with manslaughter, even though Hewitt’s inattention was ruled the cause of the crash.

Fowle told the Current last month that the law allows a charge of manslaughter only when a person’s actions meet the legal definition of “recklessness” or “criminal negligence.” Fowle said he cannot consider the circumstances under which Hewitt was driving, including while his license was under suspension and after his commercial truck had allegedly been placed out of service for safety violations.

Now Hewitt, who has been held in jail pending his December trial, has found a judge willing to lower his bail to the point that many – including Turcotte’s widower – worry that Hewitt might get out of jail and drive again, as he did just days after the crash in which Turcotte died.

Setting bail is an art more than a science, and while the rules and regulations of administering bail are laid out in Maine law, no mention of any amount is made in Maine’s bail code. That leaves lawyers, judges, suspects and the public little to go on.

The right to not be subject to “excessive bail” is enshrined in the 8th Amendment to the U.S. Constitution – the same part of the Bill of Rights that bars “cruel and unusual punishment” – and also in Article 1 of the Maine Constitution. That’s about it.

Kennebec County Superior Court Justice Kirk Studstrup has twice made easier the prospect of Hewitt bailing out of jail. Last month he allowed Hewitt to post $500,000 in property bonds, as an alternative to the $100,000 cash that was Hewitt’s original bail.

And last week, Studstrup lowered both of those amounts, to $75,000 cash or $300,000 in property bonds.

The law requires a judge to consider the nature and circumstances of the charges, as well as the defendant’s criminal history and other past conduct, when setting bail.

However, there is a lot of leeway in the law. Hewitt is charged with nine crimes, but they are all misdemeanors carrying relatively light maximum sentences of six months in jail and $1,000 fines. That would tend to favor lowering his bail: People charged with minor crimes are typically considered less serious and are allowed to post smaller bail amounts.

On the other hand, and we believe far outweighing the lack of severity of charges, is Hewitt’s almost unbelievable record.

Beyond his appalling driving file, including more than 60 convictions and more than 20 license suspensions, Hewitt drove just a few days after the crash. He claimed at the time of the fatal crash that he did not know his license was suspended, but has no such excuse for driving afterwards.

Former Maine Secretary of State Bill Diamond, now the Senate majority leader in Augusta, and Scarborough Republican Rep. Darlene Curley are concerned that Hewitt’s bail may be set low enough that he could get out of jail and be back on the road. The judge has already said if Hewitt does bail out, he would not be allowed to drive, but nobody seriously believes he will suddenly begin to obey that restriction.

Curley and Diamond have made a move that might close that loophole in the future, but it still exists right now, and may be big enough for Hewitt to fit through.

If he is able to bail out of jail, it will be a shame – and a hazard to all Mainers. Though Hewitt will likely be required to give assurances he will not drive – and will have to certify he understands and agrees, before being allowed out – we have no reason to trust his judgment.

Jeff Inglis, editor

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