By Trevor Maxwell
Portland Press Herald
PORTLAND, Maine — The father of a 20-year-old Portland man is considering legal action against the state and the Cumberland County Jail because of a paperwork error that kept his son in jail for two days after he was supposed to be released.
Thomas Shell pleaded guilty last fall to criminal mischief and violating his probation on an earlier charge of domestic violence assault. He was sentenced and was due to be released Saturday.
His father, Benjamin Braithwaite, 53, also of Portland, went to the jail to pick up his son Saturday morning. He said he was told that there was still a bail amount for Shell, for $2,000.
''I couldn’t believe it,’' Braithwaite said. ''The court actually sent my son paperwork saying he was supposed to be out on Jan. 2. Nobody would listen to him, nobody would listen to me.’'
Braithwaite showed up Monday morning in Cumberland County Superior Court in Portland, where he told clerks that a mistake had been made.
At first, the staff at the court told him that records indicated Shell was supposed to go to trial on Jan. 11, and that his bail was still $2,000.
Braithwaite told them there was no trial coming up because his son had already pleaded guilty. One of the clerks then found copies of paperwork that confirmed Braithwaite’s story. The clerk faxed those papers to the jail. Shell was released to his father around 1:30 p.m. Monday.
Mary Ann Lynch, spokeswoman for the state’s Judicial Branch, said someone in the clerk’s office made a mistake after Shell pleaded guilty and was sentenced. The judgment and commitment order - a form that is signed by the judge who handles the case and shows the details about the sentence - was not transferred from the court to the jail.
''It was a human error,’' Lynch said Monday afternoon. ''We have about 10,000 cases a year that we handle. It is a human system, so there are errors from time to time.
''We try very hard to get these things right. One of the most important things that we do is to deal with constitutional rights and liberty,’' she said.
Sheriff Mark Dion said it was an unfortunate mistake and he doesn’t blame Braithwaite for being upset. ''Factually and emotionally, he has a legitimate complaint,’' Dion said. ''His son should have been released.’'
Dion said Larry LaPointe, the staff sergeant who manages the intake of inmates at the jail, happened to be in the lobby when Braithwaite came in Monday. LaPointe spent the next few hours speaking with clerks at the court, and with prosecutors in the Cumberland County District Attorney’s Office.
The prosecutors were confused because Shell had two separate docket files, with two sets of instructions regarding his release from jail, Dion said. After all the paperwork was compared, it was clear that Shell was overdue for release.
Paperwork errors sometimes let inmates get out of jail too early, or keep them in jail too long, Dion said.
''Have people stayed longer than they should? Yes. Unfortunately, the bureaucracy is based on paper,’' he said.
Dion said he expects similar mistakes will continue as long as the clerks’ offices are understaffed. The court system employs several fewer clerks than it did a few years ago, because of state budget cuts.
''If they had the eight or 10 more clerks there, the number they are supposed to have, the paperwork would flow a lot faster,’' Dion said. ''We kind of think we can keep cutting from the system and stuff isn’t going to happen. Well, stuff happens.’'
Lynch, the spokeswoman for the courts, said the staffing shortage is a constant challenge but is not to blame for the error that kept Shell behind bars.
Dion said the mistake was not comparable to a mistake at the jail last month, when a corrections officer released 23-year-old Ahmed Ismail, who had been arrested on robbery and other charges. The corrections officer mixed up Ismail with another man, who had been booked on a misdemeanor charge. Ismail turned himself in to authorities two days later.
After going home with his son Monday, Braithwaite was still irate.
''They’re treating me like I’m the criminal. It’s ridiculous,’' he said. ''Here is my son, a guy that is a free man. If anything, they should have kicked the doors down to get him out.’'
Scott Giese, Shell’s defense attorney, said he will research the matter for a potential civil claim.
''This isn’t the only guy this has happened to,’' Giese said.
Giese said he represented a man who was kept in jail in Skowhegan for four days, when he was supposed to be held overnight.
Another client has served 33 more days than the state has given him credit for, Giese said.
He said the biggest problem is that the court clerks are overworked and underpaid.
''If the dad had not gone down there and insisted on a clerk pulling the file and reading the release date, (Shell) probably still would be sitting there,’' Giese said.
Copyright 2010 Blethen Maine Newspapers, Inc.