AUBURN — A teen charged with manslaughter in the 2018 death of 38-year-old Donald Giusti near Kennedy Park in Lewiston is seeking to have his trial moved out of Androscoggin County.
Emmanuel Nkurunziza, left, sits Tuesday with his lawyer, Allan Lobozzo, at Cumberland County Superior Court in Portland. Sun Journal photo
In a motion filed in Androscoggin County Superior Court, Emmanuel Nkurunziza, 18, argues that media coverage of his case has lessened the likelihood of finding an impartial jury in the Twin Cities area.
“These allegations took place in the Kennedy Park neighborhood of Lewiston, just steps away from the so-called “tree streets” and the basilica, the historic and cultural center of Lewiston, an area from which hail numerous local families with deep roots,” defense attorney Allan Lobozzo wrote in the motion. “Thus, this incident resonates with many individuals with close family histories in downtown Lewiston.”
Lobozzo cited at least a dozen articles published in the Sun Journal since Nkurunziza was arrested and charged as a juvenile on April 12.
“Of course, the Lewiston Sun Journal articles represent just a fraction of the total media coverage. Local television stations broadcasted stories each and every time the newspaper ran an article,” he said.
Finding a “jury of his peers will be impossible in this area” because the defendant is an African refugee, Lobozzo wrote in the motion. “There are few areas in Maine where the probability of true diversity is present.”
He noted that Portland has more than twice the percentage of foreign-born residents than Lewiston, 13% compared to 5%.
“Therefore, at least an element of diversity can be found in the Portland metropolis,” he wrote.
Lobozzo cited the Sixth Amendment, made applicable to the states by the 14th Amendment, that says: “In all criminal prosecutions, the accused shall enjoy the right to a … trial by an impartial jury of the state … wherein the crime shall have been committed.”
He cited judicial precedent where courts granted changes of venue when pretrial publicity resulted in “either presumed prejudice or actual prejudice to the defendant due to the publicity.”
The judge will presume pretrial publicity caused prejudice “when the defendant demonstrates that the pretrial publicity has the immediacy, the intensity or the invidiousness sufficient to arouse general ill will and vindictiveness against the jury at the time of the jury selection,” Lobozzo wrote, citing cases from 2015 and 2001.
He wrote that a combination of factors, including “lack of ethic diversity, pervasive publicity, and longstanding community attachment to the area where the death occurred make it constitutionally imperative to move this trial to a more neutral venue.”
Prosecutors have not filed a written response and Justice Michael Murphy, who is assigned to preside over the case, has not scheduled a hearing on the motion.
Earlier this week, in a Portland courtroom, Nkurunziza pleaded not guilty to charges of manslaughter and aggravated assault in the case.
Murphy cleared the teen to return to school and work part time.
Nkurunziza is living in Biddeford with his parents, who moved to the York County city because his family
had been living in downtown Lewiston, close to Giusti’s family.
Nkurunziza was arrested by state police in April and charged with manslaughter as a juvenile.
Eighth District Court Judge Rick Lawrence held a three-day hearing in July to determine whether there was probable cause for the charge and to hear arguments over whether the teen should be bound over from juvenile court to adult court. Lawrence ruled in September that Nkurunziza should be tried as an adult.
Nkurunziza turned 17 about a month before the June 12, 2018, nighttime melee on Knox Street when Giusti was apparently struck by a rock and knocked to the pavement. He died three days later from blunt-force trauma to his head and torso, according to a medical examiner.
Witnesses said a group of largely Somali youths clashed that night around 10:30 p.m. with more than a dozen white men, including Giusti, who had congregated in Kennedy Park.
Police said Nkurunziza admitted to having thrown a rock but hadn’t seen where it landed. A witness has said he saw Nkurunziza throw the rock and saw it hit Giusti on the head. Two police officers who viewed videos of the scene that night identified Nkurunziza as the person who threw an object that appeared to have felled Giusti.
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