Cote Choneska, left, and Joseph “JJ” Johnson. Credit: Natalie Williams / BDN

A Superior Court judge will consider Tuesday whether two Penobscot County men accused of slaying a Bangor man in 2019 and then setting a fire to try to cover it up will be tried separately or together.

Cote Choneska, 41, of Veazie and Joseph Johnson, 32, of Old Town are charged with murder and arson in the Nov. 1, 2019, death of 59-year-old Berton Conley. They are scheduled to be tried at the Penobscot Judicial Center in late January and early February.

They were arrested on Nov. 4, 2019, and have been held without bail since then. Choneska is incarcerated at the Somerset County Jail in Madison. Johnson is being held at the Penobscot County Jail.

Justice William Anderson was scheduled to hear oral arguments remotely on the motion to sever.

It is highly unlikely the judge will grant the motion to sever the trials, filed by the defendants’ attorneys. It has been nearly 30 years since a Maine judge allowed defendants to be tried separately for murder. Anderson in 2013 denied a motion to sever the trial of Nicholas J. Sexton, now 40, and Randall Daluz, now 43, who were charged with murder and arson in the 2012 triple homicide of three Bangor-area residents in their early 20s.

The last defendants accused of murder to be tried separately were Hubert E. Hartley III, now 49, and Henry P. Lombard Jr., who died in 1998 at the age of 35. They were accused of slaying Paul Lindsay and Morris “Buddy” Martin at a Fairfield farmhouse on Thanksgiving 1990. They were found not guilty in separate trials in 1991 and 1992.

Both victims were shot in the head at close range. During their separate trials, Lombard and Hartley accused each other of pulling the trigger.

After their acquittal in state court, the half brothers were charged in federal court of conspiracy and gun charges. Lombard was convicted by a jury sentenced to life in prison due, in part, to his extensive criminal history and the 1990 slayings. Hartley pleaded guilty and was sentenced to five years in federal prison.

Lombard died of an apparent suicide in 1998 at a federal detention center in Rhode Island. Hartley was released in October 1996.

While criminal defense attorneys privately point to the acquittals of Lombard and Hartley as a reason trials of dual defendants in murder trials are no longer severed, prosecutors and judges often cite the expense of conducting two trials as a reason for denying motions to sever.

Lisa Marchese, who is now deputy attorney general, in 2013 argued against trying Sexton and Daluz separately.

“We have asked the court to try them together because all of the evidence will be the same and there is a preference in the law that cases such as this be tried together for judicial economy,” she said. “It would be very expensive to try this case twice when the evidence against both is the same.”

Anderson is not expected to rule Tuesday on whether Choneska and Johnson should be tried separately. He most likely will take the matter under advisement and rule on the matter in a few weeks.