November 21, 2018
BANGOR DAILY NEWS (BANGOR, MAINE

Court clears Maine man of assault charges

PORTLAND — A Piscataquis County man was cleared of assault charges Thursday when the state supreme court ruled he had been a victim of double jeopardy — being tried twice for the same crime.

Harold Derby was charged July 21, 1987, with assaulting a 14-year-old boy who lived near him in Willimantic. At his first trial, the jury deliberated on Dec. 10, 1987, from 4 p.m. until 9:35 p.m. when Superior Court Justice Eugene Beaulieu declared a mistrial over the objections of both prosecutors and defense attorneys.

Derby was tried a second time, on May 9-10, 1988, and convicted of assault, but he appealed.

The Maine Supreme Judicial Court overturned that conviction Thursday and ordered the superior court to dismiss the charge against him.

“Because the record does not support a finding that the jury in Derby’s first trial was genuinely deadlocked, there was no manifest necessity for the mistrial declared by the court,” the ruling said.

“Derby lost his opportunity to obtain a favorable verdict from the first jury and his right to be free from double jeopardy,” which is being tried twice for the same crime, the court said.

Derby’s attorney, Robert Murray of Bangor, said the ruling “reaffirmed the constitutional protection against double jeopardy.”

“It guarantees the defendant the right to have his case determined by one jury,” Murray said.

In its review of the case, the supreme court said, the jury in Derby’s first trial sent a note to the judge at 8:44 p.m. stating that it was “unable to reach agreement at this time. We’re tired. What do we do?”

Beaulieu reminded the jury of its duty to reach a verdict and ordered them to resume deliberations.

“At 9:35 p.m., with no further communication from the jury and no inquiry, the court declared a mistrial and sent the jurors home over the objection of both the defendant and the state,” the high court said.

“After a hearing before the same justice who presided over the first trial, Derby’s motion to dismiss the charges based on double jeopardy grounds was denied,” the ruling said.

R. Christopher Almy, district attorney for Piscataquis and Penobscot counties, said he could understand both sides in the case.


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