Cases

SOME CASES REPORTED THAT WERE HANDLED BY THIS OFFICE.

The below cases are some of the variety of cases reported that this office has handled, indicating the breadth of practice in which this office is involved. Some we have lost, some we have won, but in each case we fought hard for the interests of the client, in some instances plowing new legal ground.

State v. Reese, Docket: Sag-04-11 , SUPREME JUDICIAL COURT OF MAINE , 2005 ME 87; 877 A.2d 1090; 2005 Me. LEXIS 91, April 26, 2005, Argued, June 30, 2005, Decided

THREE WEEK MURDER TRIAL, TRIAL AND APPELLATE COUNSEL

OVERVIEW: Most of the alternative suspect evidence proffered by defendant was simply too speculative to be admitted. If the issue of admissibility of a letter from an alternative suspect opining that the victim might be dead had been preserved, it still would not have been admissible under Me. R. Evid. 804(b)(3), because unavailability was not shown.

State v. Witham, Docket: Ken-04-703 , SUPREME JUDICIAL COURT OF MAINE , 2005 ME 79; 876 A.2d 40; 2005 Me. LEXIS 83, May 17, 2005, Submitted on Briefs, June 29, 2005, Decided

AGGRAVATED CRUELTY TO ANIMALS, TRIAL AND APPELLATE COUNSEL

OVERVIEW: Because defendant needed only to ask whether a reasonable person would find his conduct to be morally debased, posing a high degree of risk, and manifesting a total lack of concern for a cat's death or suffering, he failed to show that Me. Rev. Stat. Ann. tit. 17, Section 1031(1-B) (Supp. 2003) was void for vagueness.

Wells v. Powers, Docket: Cum-04-245 , SUPREME JUDICIAL COURT OF MAINE , 2005 ME 62; 873 A.2d 361; 2005 Me. LEXIS 65, November 3, 2004, Argued, May 25, 2005, Decided

SURVEY AND BOUNDARY DISPUTE, TRIAL AND APPELLATE COUNSEL
BATTLING SURVEYORS -CLIENT'S SURVEY UPHELD

OVERVIEW: In a boundary dispute case, trial court properly determined location of boundary between property of owner and neighbors by reference to drill holes and line between properties because it was intent of parties to original transaction that governed location of line drawn and location of boundary was identified as line described in original survey.

State v. Johnson, Docket: Ken-03-577 , SUPREME JUDICIAL COURT OF MAINE , 2005 ME 46; 870 A.2d 561; 2005 Me. LEXIS 48, December 8, 2004, Submitted on Briefs, April 5, 2005, Decided

TRAFFICKING COCAINE, TRIAL AND APPELLATE COUNSEL

OVERVIEW: Because there was no difference in the substance of the crime charged in the original and the amended indictment, it was not error for the trial court to allow the amendment of the indictment to properly reflect that crack cocaine was also crack cocaine or cocaine freebase and cocaine in regard to defendant's trafficking trial.

State v. Donovan, Docket: Ken-02-743 , SUPREME JUDICIAL COURT OF MAINE , 2004 ME 81; 853 A.2d 772; 2004 Me. LEXIS 88, September 9, 2003, Argued, June 29, 2004, Decided

DNA TESTING IN CRIMINAL DEFENSE, TRIAL AND APPELLATE COUNSEL
DNA TESTING ALLOWED

OVERVIEW: Trial court erred in denying defendant's post-conviction motion for DNA analysis because DNA evidence met requirement of materiality, and defendant's identity as person who sexually assaulted victim was specifically placed in question during trial.

16. State v. Hatt, Docket: Lin-01-322 , SUPREME JUDICIAL COURT OF MAINE , 2002 ME 166; 810 A.2d 415; 2002 Me. LEXIS 195, May 8, 2002, Argued, November 13, 2002, Decided

AGGRAVATED ASSAULT, APPELLATE COUNSEL, HABEAS CORPUS COUNSEL

OVERVIEW: Trial court properly excluded expert testimony of victim's personality disorders that defendant sought to use to impeach victim's testimony, as offer of proof was insufficient to show that the disorders impacted victim's ability to tell the truth.

Hanna v. Hildings, Docket: Lin-02-6, SUPREME JUDICIAL COURT OF MAINE, 2002 ME 107; 799 A.2d 1243; 2002 Me. LEXIS 139, May 30, 2002, Submitted on Briefs, July 2, 2002, Decided

DIVORCE, ALIMONY, SPOUSAL SUPPORT - APPELLATE COUNSEL

OVERVIEW: Trial court did not err in failing to apply a newly enacted statute in entering divorce judgment and awarding spousal support, because the order was entered before the date on which it could be modified; thus, the statute could not apply.

Oyster Shell, Inc. v. Town of Damariscotta, Lin-01-507, SUPREME JUDICIAL COURT OF MAINE, 2002 ME 23; 789 A.2d 1280; 2002 Me. LEXIS 23, January 28, 2002, Submitted on Briefs, February 11, 2002, Decided

PLANNING BOARD REVIEW, MOTEL LAW - APPELLATE COUNSEL

PLANNING BOARD DECISION OVERTURNED

OVERVIEW: A city board of appeals lacked jurisdiction to hear a company's appeal of the denial of a conditional use permit, as the city land use code specified denials of permits by a city code enforcement officer had to be reviewed by a planning board.

State v. McMahan, Kno-00-51, SUPREME JUDICIAL COURT OF MAINE, 2000 ME 200; 761 A.2d 50; 2000 Me. LEXIS 208, October 18, 2000, Submitted on Briefs, November 13, 2000, Decided

TRIAL AND APPELLATE COUNSEL -ASSAULT CONVICTION OVERTURNED

OVERVIEW: Defendant's conviction for assault was vacated, as trial court erred by excluding relevant defense evidence on central issue without first hearing and ruling on it, by insisting offer of proof be made during recess.

Board of Overseers of the Bar v. Campbell, Decision No. 7362, Law Docket No. Cum-94-723, SUPREME JUDICIAL COURT OF MAINE, 663 A.2d 11; 1995 Me. LEXIS 167, May 15, 1995, Argued, July 27, 1995, Decided

OVERVIEW: Petition for reinstatement to the Bar was properly denied because attorney failed to present clear and convincing evidence of required statutory factors and exhibited a pattern of responding with unwarranted attacks on those who opposed his goals.

Board of Overseers of The Bar v. Campbell, Decision No. 4710, Law Docket No. Cum-87-390, Supreme Judicial Court of Maine, 539 A.2d 208; 1988 Me. LEXIS 94, March 7, 1988, Submitted on Briefs, March 29, 1988, Decided

THE QUESTION WAS PRESENTED WHETHER COUNSEL COULD PROPERLY STAND MUTE WHEN THE ACCUSED WAS THROWN INTO JAIL WITHOUT EXPLANATION BY THE TRIAL JUSTICE IN THE MIDDLE OF TRIAL

OVERVIEW: Even though an attorney had been held in contempt of court for his behavior in representing a client in a criminal case, it was still appropriate for the board of overseers of the bar to issue a reprimand to the attorney.

State v. Kovtuschenko, No. Yor-86-270, Supreme Judicial Court of Maine, 521 A.2d 718; 1987 Me. LEXIS 665, November 18, 1986, Argued, March 2, 1987, Decided

THE ISSUE WAS PRESENTED WHETHER THE RIGHT TO DRIVE COULD BE TAKEN AWAY SIMPLY ON MAIL NOTICE

OVERVIEW: A statute, which prohibited operation of a motor vehicle after written notice of license suspension, rather than actual notice, was a reasonable regulation of the right to operate a motor vehicle and did not violate defendant's due process rights.

State v. Thompson, No. Lin-85-327, Supreme Judicial Court of Maine, 514 A.2d 1208; 1986 Me. LEXIS 897, September 8, 1986, Argued, September 17, 1986, Decided Attorney, for State.Andrews B. Campbell, Esq., for Defendant.

APPELLATE COUNSEL ON RECKLESS ENDANGERMENT CHARGE

State v. Poland, No. LIN-85-517, Supreme Judicial Court of Maine, 514 A.2d 812; 1986 Me. LEXIS 910, Argued September 4, 1986, September 10, 1986, Decided Joel Bowie, Esq.

APPELLATE COUNSEL ON GROSS SEXUAL MISCONDUCT CHARGE

State v. Friel, Law Docket No. Sag-85-225, Supreme Judicial Court of Maine, 508 A.2d 123; 1986 Me. LEXIS 770, March 13, 1986, Argued, April 18, 1986, Decided

TRIAL AND APPELLATE COUNSEL. CASE OF FIRST IMPRESSION ON THE RIGHT TO KEEP AND BEAR ARMS UNDER THE MAINE CONSTITUTION

OVERVIEW: A conviction for possession of a firearm by a felon was proper because the applicable statute did not violate the constitutional right to bear arms and the trial court did not commit any reversible errors.

State v. Friel, Law Docket No. Kno-85-64, Supreme Judicial Court of Maine, 500 A.2d 631; 1985 Me. LEXIS 856, September 3, 1985, Argued, November 4, 1985, Decided

TRIAL AND APPELLATE COUNSEL - DOUBLE JEOPARDY WIN ON MANIFEST NECESSITY OF TRIAL JUSTICE TO DECLARE MISTRIAL.CASE WON DESPITE TRIAL COUNSEL BEING THROWN IN JAIL IN THE MIDST OF TRIAL

OVERVIEW: Motion justice properly granted defendant's motion to dismiss an indictment on the grounds of former jeopardy after a trial court sua sponte ordered a mistrial in defendant's first trial without consulting defendant or his attorney.

Goucher v. Dineen, Law Docket No. Yor-83-184, Supreme Judicial Court of Maine, 471 A.2d 688; 1984 Me. LEXIS 635, January 17, 1984, Argued, February 15, 1984, Decided

TRIAL AND APPELLATE COUNSEL - COMPENSATORY DAMAGES ABOUT $60; PUNITIVE DAMAGES AGAINST ATTORNEY FOR $10.000

OVERVIEW: Because the evidence supported the jury finding that defendant attorney made an improper use of process and did so with an ulterior motive, he was properly found liable for abuse of process.

Merrill v. Merrill, Law Docket No. Law-81-263, Supreme Judicial Court of Maine, 449 A.2d 1120; 1982 Me. LEXIS 770, January 6, 1982, Argued, September 2, 1982, Decided

TRIAL AND APPELLATE COUNSEL - ISSUE OF MARITAL PROPERTY DIVISION

OVERVIEW: A district court exceeded its authority by making post-judgment amendments to the provisions of a divorce decree dividing the marital property where the party benefiting from the amendment had failed to file a motion for relief from the judgment.

Nadeau v. State, [NO NUMBER IN ORIGINAL], Supreme Judicial Court of Maine, 395 A.2d 107; 1978 Me. LEXIS 1031, December 1, 1978

APPELLATE COUNSEL - ISSUE PRESENTED OF RIGHT OF WRONGLY CONVICTED FELON TO SUE STATE

OVERVIEW: Where the former convict failed to state a cause of action based on his imprisonment, a trial court should have dismissed the complaint by granting the State's motion to dismiss.

CORE TERMS: special legislation, summary judgment, cause of action, similarly situated, highway, motion to dismiss, equal protection, sovereign immunity, general law, pre-trial ...

Mattson v. Mattson, [NO NUMBER IN ORIGINAL], Supreme Judicial Court of Maine, 376 A.2d 473; 1977 Me. LEXIS 343, August 8, 1977

APPELLATE COUNSEL - ISSUE OF GROUNDS FOR DIVORCE

OVERVIEW: A wife was properly granted a divorce from a husband for irreconcilable marital differences because an amendment to complaint related back to original pleading, evidence supported decree, and separate finding of marital breakdown was not essential.

CORE TERMS: divorce, marital, irreconcilable, marriage, counseling, breakdown, fault, marriage counselor, divorce action, broken down ...

STATE v. ROBINSON, CRIMINAL ACTION DOCKET NO. CR-02-271, SUPERIOR COURT OF MAINE, KENNEBEC COUNTY, 2003 Me. Super. LEXIS 159, June 6, 2003, Decided, June 6, 2003, Filed

MOTION TO SUPPRESS STATEMENTS AS INVOLUNTARY AND IN VIOLATION OF MIRANDA RIGHTS.

State v. Johnson, CIVIL ACTION DOCKET NO. CR-02-274, SUPERIOR COURT OF MAINE, KENNEBEC COUNTY, 2003 Me. Super. LEXIS 41, February 28, 2003, Decided, March 3, 2003, Filed, Affirmed by State v. Johnson, 2005 ME 46, 2005 Me. LEXIS 48 (Apr. 5, 2005)

MOTION TO SUPPRESS ALLEGEDLY UNLAWFUL VEHICLE SEARCH

STATE v. DONOVAN, CRIMINAL ACTION DOCKET NO. CR-94-393, SUPERIOR COURT OF MAINE, KENNEBEC COUNTY, 2002 Me. Super. LEXIS 242, November 20, 2002, Decided

SUPERIOR COURT HEARING COUNSEL - DNA TESTING ALLOWED AT TRIAL LEVEL

STATE v. RAWLEY, Docket No. CR 00 - 343, SUPERIOR COURT OF MAINE, KNOX COUNTY, 2001 Me. Super. LEXIS 16, January 31, 2001, Decided, January 31, 2001, Filed

TRIAL COUNSEL, ASSAULT CASE

STATE v. $ 5,510.00 U.S. CURRENCY, CIVIL ACTION DOCKET NO. CV-00-091, SUPERIOR COURT OF MAINE, CUMBERLAND COUNTY, 2000 Me. Super. LEXIS 64, April 21, 2000, Decided

CASE ON FORFEITURE OF MONEY IN DRUG CASE

HALCO v. DAVIES ET AL, Law Court Knox 04-268

CONTRACT CLAIM

Plaintiff entered a confidentiality agreement on discrimination case. Defendants stated to the press the settlement promoted litigation and was a "pay off". Superior Court for reasons unclear held Plaintiff stated no claime. On appeal, Law Court reversed. Case at time of listing awaiting trial.

DANIEL TRASK v. MATTSON FLOORING AND SHERWIN WILLIAMS, Sagadahoc County Superior Court.

TRIP AND FALL

Elderly Plaintiff tripped and fell on defective transition strip between linoleum and carpeting in home. Case settled for $150,000. $105,000 offered by second defendant and rejected by client. Counsel proceeded to trial tenaciously and could not get the second $105,00 despite efforts. Considering client had six month life expectancy and prior health conditions, settlement was favorable

ISSUE: EFFECTIVENESS OF PRIOR LAWYER IN CRIMINAL DEFENSE
State v. Robert Whitmore
Sagadahoc, Justice Mills at hearing level, affirmed by Law Court MEM 08-05; below Sag DOCKET NO. CR 05-109

Seven Counts Gross Sexual Misconduct, 15 year sentence vacated. Justice Mills Decision affirmed from Kennebec County Superior Court. The most interesting aspect of this case is that Justice Mills was the Trial Justice and threw out the verdict in the case she presided over. The victim had been a six year old who lied repeatedly. Counsel at trial indicated he was very surprised at the verdict of guilt in that light. At Post Conviction hearing, the evidence was: Trial counsel admittedly had not prepared the defendant, who had no admissible record and was a decorated combat victim, to testify, and made a decision he would not be a good witness without discussion with the Defendant. The defendant at trial had stated to the Court he was aware of his right to testify. At Post conviction hearing he said he wanted to but did not because of counsel's advice. Trial counsel stated his default position was not to have a defendant testify. He has also not sought to subpoena two witnesses from out of State who had lived in the home during the time of the allegations. Nor had he sought to use the Defendant's requested defense which was to attack the grandmother of the child, who was a Jehovah's Witness and had motive to get the child out of the Baptist household and take custody. Ms. Mador argued that affirmation of the decision would open the floodgate to post conviction reviews whenever the defendant did not testify. For no reason stated, this case as a Memdec may not be cited for authority.

RETRIAL AND ACQUITTAL
State of Maine v. Robert Whitmore DR 03-100146
Sagadahoc
Justice Andrew Horton
DA Pat Mador
defense counsel Andrews B. Campbell
Court Reporter Kimberly
States Expert: Hannah Pressler Spurwink

The Defendant Robert Whitmore on February 11, 2009, after four day second jury trial was acquitted of eight counts of Gross Sexual Assault and eight counts of Unlawful Sexual Contact. This brought to a close a five year saga, in which his conviction after trial in 2003, affirmed by the Law Court in 2005 (despite uncorroborated testimony of the five year old alleged minor victim), was vacated on post conviction writ, brought by present counsel, by Trial Justice Nancy Mills in 2007, the relief being affirmed in 2008 on appeal to the Law Court. The Retrial was noteworthy because it turned on the testimony of a child witness who was six years old at the first trial and twelve years old at the second trial. Video interviews from the initial investigation, not played to the jury at the first trial were played at the second trial and witnesses who had lived in the home of the Defendant during the time period of the charges, not called at the first trial were called in the second. Also the question whether the child witness had been influenced by her grandmother, a Jehovah's Witness, to speak negatively of the Defendant, a Baptist, was raised. The Defendant testified at the new trial which he did not at the first. The case was noteworthy for a number of legal points: Although the alleged victim testified that the Defendant told her after each sexual act not to tell anyone, the Defendant was denied introduction of reputation testimony by Wally Staples, pastor of his Church, as to his reputation for veracity among 60 parishioners. Further Hannah Pressler, Registered Nurse Practitioner, Spurwink, testified under oath that notwithstanding the twelve year old victim testifying at second trial that the Defendant repeatedly put his penis inside her vagina, and Pressler's finding that was no sign of trauma, these things are not contradictory because twelve year olds in her experience often do not know the details of sexual intercourse. Mr. Whitmore spent three years in jail before during this period.

ISSUE: VOLUNTARINESS OF CONSENT, CRIMINAL MOTION TO SUPPRESS

State of Maine v. Bernice Rines, KEN CR 07-1028
Possession of Cocaine (classs C)
Kennebec County Superior Court
Case dismissed after Motion to suppress won.

Defendant was in her apartment. An armed tactical entry team executed a warrant on one Filion. They heard he was in her apartment next door. She came outside. The police cuffed her, and removed him and another from the apartment. They then did a protective sweep. Officer Richards asked if she would consent to a search of her apartment. She was told if she refused they would get a warrant. She requested to speak with her mother an sister. Ultimately she signed a document expressing her consent. She said she was aware it was her choice but felt she didn't have much choice. She never read the form. She was not read Miranda rights. Even though she was handcuffed, and there were many armed police officers, and though she was illegally detained, the Court found it a close call whether consent was voluntary.

Defendant Bernice Rines was charged with possession of cocaine., relying on State v Kremen, 2000 ME 117, 754 A.2d 694, Judge Calkins and Saufley's concurring opinions that if the defendant was unlawfully detained at time asked for permission for a search, consent would be invalid. This defendant, the Court held, citing Florida v. Bostick, 501 U.S. 429, 437 (1991) and Dunaway v. New York, 442 U.S. 200, 219, had been told she was being "held" for safety reasons but because she was cuffed and in the presence of a number of armed officers who had just arrested two others from the apartment, the crucial test was whether taking all the circumstances surrounding the encounter into account, the police conduct would have communicated to a reasonable person that he(she) was at liberty to ignore the police presence and go about her business. The illegality of the seizure tainted the consent and the fruits of the search were tainted and suppressed.

ISSUE: ANTITRUST VIOLATION BY MATINICUS FISHERMEN - LOBSTER WAR

Ronald T. Watkinson et al v Lavon Ames, et al, BCD-WB-CV - The Plaintiff and his sons, were residents of Owls Head, Maine. The father owned a house on Matinicus, and also owned Wooden Ball Island two miles away from Matinicus Island.. The defendants were fishermen on Matinicus Island who claimed a right to fish not only Matinicus waters but Wooden Ball waters also. Defendants did not, however, want to allow the Plaintiff's sons to fish Matinicus. Plaintiffs sued alleging the Defendants were cutting their traps, and molesting their gear, and put in evidence of assault and agreements retained on computer to restrict the fishing in Matinicus waters to Matinicus residents. Defendants alleged violation of Maine's little Sherman Act allegedly unlawful division of markets, Interference with Advantageous Business Relations and other counts. After strenuous opposition, at Mediation the case was settled and Plaintiffs got their equal fishing rights to Matinicus waters. This case involved interesting issues about the historic practices of peer control by harbor and Island fishermen over entry into local fishing markets.

TRAFFICKING IN PRISON CONTRABAND
State of Maine v Julia A. Frascone, CR 08-097
Charge: Trafficking in Prison Contraband
September 2008

After one week trial Knox County Superior Court - hung jury. Defendant charged with mailing oxycodone into the prison. District Attorney dismissed charges rather than retry.

ARSON
State v. Henry Schmidt, Sagadahoc County Superior Court, November 2008

Geoffrey Rushlau, Esq the District Attorney for this County is reported to have stated to the press of the Acquittal of Henry Schmidt of Arson charges that "We were disappointed with the jury verdict but we accept it. We know of (no credible) evidence that points to another suspect." Although learned, the career prosecutor's perspective, from defense counsel's perspective has little evidence to support it.

Henry Schmidt was accused of Class A Arson, setting fire to Dot's Good Deal in Bath, Maine, on March 30, 2008, his probation on a prior conviction violated and he was held on no bail seven months. After a six day trial in Sagadahoc County Superior Court he was acquitted and the Trial Justice Andrews Horton found that Patricia Mador, Esq. Assistant District Attorney had not established even by a preponderance that a fire was set or that he set it.

The State established no motive to set the fire and there was no insurance on the property. Indeed 80% of the personal property destroyed in the fire was Henry Schnidt's property. The State's case rested on Dan Young, Fire Marshall, who conducted several interviews with the sister of the Defendant and her son, who initially stated that the Defendant was not seen near the building.

They later changed their story (after the Marshall Young suggested the State was only interested in the Defendant Henry Schmidt and not them but if he did not set the fire it must have been them) to say they saw the Defendant go into the shop that burned down fifteen minutes before the fire and that a half hour before the Defendant said in a phone call to his brother in California that "it looked like a bunch of niggers lived there and ought to be burned flat." The defense called Henry's brother from California here to trial and he denied Henry ever made such a statement, but stated his sister did. During trial it was established that the sister, whom Young called "Honey" and "Kiddo" in his interviews, changed her story to put the Defendant at the scene and making admissions of guilt, after being offered "any help he (Young) could give on her." She and her son, witnesses against the Defendant, both had pending felony theft charges from L.L. Bean, and the sister had an aggravated trafficking conviction.

She admitted in trial that she lied under oath that she was not a cooperating witness in another drug prosecution. The District Attorney, not having provided discovery information on the subject of her chief witness before her testimony, though advised in advance of the defense position this witness was an informant, recalled her after her testimony revealing that was in one case she was an informant, and not revealing that in several others in which the defense believes she was an informant.. The witness had testified she was afraid of the Defendant and needed relocation when in fact she had other reasons to be afraid and need relocation.

The defense expert Bill McCarthy testified that the fire investigation by Young was "bizarre and flabbergasting" and that in his experience he had never seen a prosecution like this in his thirty seven years experience."

There were no photos of the point of origin, no samples sent to the lab, and substantial evidence that there may have been linseed oil soaked rags that spontaneously combusted. One neighbor testified that the fire started before the Defendant got to the scene and an unknown individual was seen by a passing police officer, Joel Bruce, on a ladder at the back of the store before the fire.

Ms. Mador, ADA, notwithstanding the acquittal, demanded three years time on the probation violation if the Judge found Schmidt by the lower standard of proof had committed Arson. The Justice found no violation and particularly found credible one Cathy Ivey's testimony. She had overheard the Defendant's sister talking at the Galley Restaurant where she admitted her son's involvement and her involvement in the crime. The same sister later threatened in a phone call that Ivey's house would be next and there would be nothing but ashes left. She knew where her sister and mother lived. Ivey stated she attempted to report this to both the Fire Marshall and through counsel DA and they disregarded it. He also found credible the testimony of Chris Ivey who testified she had over heard the prosecution's main witness make statements about how particular persons and friends of hers had caused the fire. Two other independent witnesses reported conversations that the same particular persons and friends had caused the fire. Another witness, one Josh Nessius, stated that he had overheard the Defendant's sister and others wondering what would happen when they learned that her son and her significant other had started the fire. He also stated that within hours of his reporting this to the fire Marshall, Paul the nephew called him saying Pat had told him everything he reported.

CIVIL RIGHTS
Gary Ames vs. Inhab. of Rockland, Billy Smith, et al, Rockland, Knox County Superior Court 2009

Settlement for $150,000 for assault on mentally challenged individual on complaint of excessive force, deliberate indifference to constitutional rights of the Plaintiff.

LIBEL
Daniel Trask v. Cobbossee Aerie Eagles, Sagadahoc County Superior Court 2009:

Plaintiff sued the local Aerie in Gardner for libel and slander and whistleblower after they stripped him of his Treasurer Post and membership for "speaking ill of another Eagle" and for taking funds or property for personal use. Dan Trask had complained in the Lodge and to the Grand Aerie, and to State Trooper David Armstrong, of their failure to account for Games of Chance unsold tickets, thus allowing potential payouts on unused tickets, and for failing to account for Poker Machine money, which allegedly was used to pay bartenders. As a nonprofit organization there are severe restrictions on how money from gambling or poker machines can be used. The failure of the Aerie to keep records or minutes of its meetings on these subjects and inconsistencies between testimony and earlier depositions were significant factors at trial. Verdict for Plaintiff on libel and poker money and for defaming him granted by jury against Cobbossee Aerie Eagles.

OUI
State of Maine v. Laurie Brewer, Lincoln County 12-09

A bright August evening, around 7:30 PM Lincoln County Deputy Mark A Bridgham checked the local cemetery for littering and vandalism at request of the Selectmen. The Defendant Laurie Brewer was at the far end of the cemetery where she was visiting her fathers grave and had just got back in her vehicle. The Deputy observed her stationary vehicle. As she started to move, he wanted to know what she was doing and activated his blue lights. Brewer abruptly stopped, rolled her window part way down, and had her license and registration ready to give the officer, who came up asked her to roll her window down. There was an odor associated with alcohol and her eyes were glassy. Field sobriety tests were administered. She was arrested and taken to the Station for an intoxylizer test, on which she came out .09. The officer jumped the 15 minute observation period according to the test. He stated that the 13 minute waiting period, short two minutes, as indicated on the test, resulted from his error in typing in the starting time for the test. The primary issue was whether the officer had reasonable and articulable suspicion based on Delaware v. Prouse and other leading cases. Viewed objectively, where there was no civil violation or surrepticious conduct by the Defendant, the Court found no basis to stop, and the case was dismissed.

Civil Rights
Choate v Magnusson, Beard et al, USDC Maine, 2010

Civil Rights action for denial of civil rights and wrongful death of inmate and failure to protect inmate, $500,000 settlement. Guard walked by and said "You can do better than that" as he hung there.

ARSON
State v. Jack Vogel, Kennebec Superior Court, 2010.

State v. Jack Vogel, Kennebec Superior Court, 2010. Two Class A Arson Charges. Defendant Acquitted after trial. Trial was held Before Justice Mills, jury waived. The Defendant suffers from multiple commitments for ADHD, PTSD and Paranoia. He was charged with setting a fire in the attic. His cotenant upstairs said she heard and saw j\Jack come down the stairs right before the fire. He was also accused of setting a fire three days before which he had found and put out. Jack unfortunately had on several occasions threatened to burn the place down. The upstairs neighbor was granted immunity from prosecution from drug charges to testify against him on anything that happened the day of the last fire when she was using heroin. She took the Fifth Amendment on questions about any other day that had to do with her two years of drug use, like where did you get the drugs, what was the cut, how strongly addicted are you? The prosecution theory, amply fueled by a miserably unfair Reid Technique style interrogation of the Defendant was he was jealous or angry at the neighbor and set the fire because she rebuffed alleged sexual advances. He denied this vigorously. Against counsel's strong opposition based on the U.S. Supreme Court case, Van Arsdale, and the right to confront, the court refused to allow defense counsel to crossexamine her about drug dealing and use of heroin or other drugs except and only on the day of the fire and still let the neighbor testify about what she wanted. The Court relied on State V Johnson, a 2010 Maine Supreme Court case, which allows restriction of cross exam on collateral matters. It is amazing and bad lawr that the Court refused to disqualify the alleged eye witness' testimony even after she took the Fifth Amendment on many questions. However, even though the Justice allowed her to testify selectively and curtailed the right to confront, the Court found her testimony not to be credible. Jack testified even though he had threatened to torch the place because it was a dump, he has never set and would not set a fire. Barry Bolan, Jack's counselor, testified about jack threatened all kinds of things but they were symptoms not real threats.

NEGLIGENCE
Mills v Mclean Carpentry & Lowes Home Improvement Center - Lincoln County Superior Court - 2010

Settlement against insurer for McLean and Lowes for $80,000 for negligently installed roof which blew off during Hurricane Ike resulting in a flooded three apartment building. This rather low settlement was followed by a larger Settlement with Middle Oak Insurance for $260,000, the insurers of the homeowner Plaintiffs, on threat of bad faith coverage suit. Plaintiffs had had themselves to sue the third party installer (who with a green crew, had been hired by Lowes Home Center) because their insurer, Middle Oak, dba Middlesex Insurance, had refused to cover or bring action for the insureds.

STATE V MILNE Sag Sup CR 09-237

Dan Milne was charged and acquitted as follows:

Defendant after eight months on original charge was ready for trial, jury waived and the State dismissed on April 30, 2010. Originally he was not charged with Burglary but Attempted Burglary and was not charged with Passing a Roadblock. Defense counsel submitted prescriptions for all drugs, which defendant was on for intense pain after six knee operations. ADA Pat Mador literally refused to look at the records. At trial counsel again produced all prescription and medical records got all the eight pills Dan had in the container, under attestation, and called a Private Detective to show the same small cylindrical container he used is publicly marketed and was sold even three days before trial for prescribed medication at Shaws, thus overcoming any presumption of unlawful possession. On the burglary the Defendant testified he had stopped at a house on a country road for water after his radiator overheated and knocked on the doors of the home, opening a screen door to knock on the inner door. The Court believed his entirely plausible story. After the neighbor confronted him, called the police and called him a thief, he left quickly because he knew his license was suspended, then passed at 10 mph over the speed limit a cruiser, which was parked on the opposing side of the road with lights on, and turned a corner very fast in the center of Bowdoinham nearly hitting another vehicle, and parked up the street, going into the woods and walking toward home, when he was apprehended peacefully. Although that was the extent of the road block and no blue lights were behind him, the court found him guilty of the motor vehicle offenses, which was appealed. Dan had over eleven prior convictions, including a burglary, theft, drug, in the 1980s and 90s, and prior eluding and aggravated OUI in 2004, but had successfully completed rehab and 4 years probation on the prior offense and turned his life around. He received 3 years all but 90 days suspended on the MV offenses, in view of his work history, family ties and rehab. He had been offered 5 years all but two suspended before trial, but refused to plea to attempted burglary or the unlawful drug possession felonies. The earlier dismissal by the DA on the day he was ready for trial and her dogged and inexplicable refusal throughout even to look at his medical and prescription records did not go well with the Court. Her reliance to show illegal possession on his keeping his prescribed medicine in a publicly marketed drug container got short shrift and the attempt to prove burglary because he stopped to get water after the car's radiator overheated also got short shrift. This is one more example in counsel's experience of the overcharging of defendants in Sagadahoc County and the prosecution attempt to kill a mosquito with a megaton bomb.

On appeal, Milne's conviction of running a road block was vacated. A police vehicle parked in the opposing lane with lights and siren on, without more, does not constitute a roadblock at which all motorists must stop..

State v. Mooers, Superior Court, Lincoln County
March 2011.
Impersonating a Public Servant

Defendant was charged with flashing a badge at two people who came onto the remote woods surrounded property next to his property and telling them they were trespassing, and could be charged with burglary. One of them was in the house which Mooers said the door was closed and locked to before. He admitted he had a Tombstone Badge in his Wallet. Mooers is a former State Trooper who quit because he was asked to lie by his boss many decades ago. But he had collected memorabilia, badges, etc for years and was proud of his background. After being out for two days, during which one person overheard them nearly coming to blows, the jury came back hung. What purpose this prosecution served except to show someone does not like the Defendant for some personal reason is hard to figure.

State v. John Touchton, SAGA 10-241
Stealing Oxycodone, 17-A MRS Section 1109 (Class C)
Unlawful Possession of Oxycodone, 17-A MRS Section 1107-A (Class C)
Acquittal both counts

The Defendant, a colorful member of the Russian community of Richmond, who had been shot fifteen times in his life, first in the womb, and had in his time been quite a notorious outlaw, was acquitted of both charges after a two day Jury Trial. The State's case consisted of testimony by Agent Jason Pease, and Agent James Pease, together with Sheriffs, that in conducting a search for stolen catalytic converters and drugs at the residence of Elena Touchton, John's mother, they had found prescriptions less than two days old for Oxycodone but could see she was one hundred pills short. Agent Pease testified that John had admitted to him that he stole the pills. The police also recovered a dirty spoon and hypodermic needle. Counsel succeeded in excluding the test results on the residue in the spoon as having been produced in an untimely manner but lost a motion to suppress statements allegedly made by the defendant. Testimony at trial included testimony (discovered through the motion hearing) the agent, Jason Pease, had failed to realize John had his own prescriptions for oxycodone, had taken care of his mother, who had serious heart and other conditions, for three years getting her oxycodone from the pharmacy for her, and would not think of hurting her by taking awy her medicine. She testified also she had been held as a youth at Dachau and other Concentration Camps, before escaping, and that the investigating officers in Maine shoved fireams in her face, then denied her access to her oxygen while questioning her on a hot August day and behaved worse than the Nazis had treated her. The entire confession alleged to come from Touchton was thrown into question because Agent Pease claimed Touchton said he was an addict and had not used for a week before the theft. In fact Touchton had a prescription for daily use and was medically dependent. The prosecutor also was somewhat surprised when Helen and her daughter Nancy testified that after the search they had found the prescriptions in the upstairs bedroom where they had been left under some curtains Helen was sewing. Even had the jury convicted, Justice Horton indicated he might acquit because there was no corpus delicti, a rule requiring independent evidence of a crime having been committed to be produced before any admission or confession can come in. It is always unnerving because no one knows what a jury will do, but again this case is to counsel an example of the hundreds of thousands of dollars being wasted by the State on prosecuting cases that ought to be culled out long before trial.

Minor v. Concord Insurance
Knox County Superior Court 2011
Personal Injury Settlement

Minor settlement $690,000 recovery for growth plate injury and broken ankle. This two year long case involved a trampoline injury when more than one minor was jumping on the trampoline at one time. The Plaintiff, a nine year old, suffered an injury requiring his ankle to be rebroken and operated on twice to equalize growth of the legs. The settlement took into consideration available home insurance, which the jury would not hear, and other assets, and that the defendant was a relation of the victim. The defendant refused to settle until shortly before trial.

Powers v Nash
Sagadahoc County 2012
Forcible Entry and Detainer

Got return of Hitachi excavator from Nash Equipment in New Hampshire. One Goodwin sold it to Arthur Powers. Nash Equipment had a security interest it had let expire and had filed a new statement after Powers had possession, instead of the required Continuation UCC1 statement. Argued before Judge Tucker, won return of excavator and appeal to the Maine Supreme Judicial Court, and also obtained $24,500 recompense and $9,000 for attorney fees and five months lost use despite Plaintiff having several other excavators and no commercial use.

Wyman v MaineGeneral
Kennebec United States District Court for Maine, 2011-2012
Age and Disability Discrimination

Successful age and disability discrimination suit, prevailed before Maine Human Rights Commision, sued in State Court, removed by defendant to Federal Court, and after depositions and ready for trial, was settled for substantial sum (amount confidential) in Judicial Settlement Conference. Defendant MaineGeneral Hospital hired 23 year old with no experience and laid off 57 year old with good performance evaluations for over 25 years in Information Technology Department in reorganization.

State v Paul Thompson
Sagadahoc County Superior Court, May 2015
Disorderly Conduct

Defendant charged with two counts of Disorderly Conduct for telling Court officer "what the F do you want?" after he was asked to leave clerk's office. Vigorous argument on First Amendment rights and the informal rule you get one FU before they can arrest you. Due to being in Court House and all the jury after 4 and 1/2 hours convicted Defendant of one count. Partial justice achieved.

Joe Castellucci v. Shepard Motor Cars Inc.
June 2015
Age Discrimination

After 12 and 1/2 years successful sales service, 70 plus year old laid off due to slower sales during past year when he suffered drowsiness from medicine for treatments he was getting. When herbal drugs arrived new manager would say you got your Viagra and repeatedly said all people over 75 ought to be shot. It was all very funny but devastating to Joe to be fired. Happily he got a new sales job across the Street and is Salesman of the month. Age Discrimination suit brought and a Settlement reached - confidential but in a suitable amount. A wrong was righted for a good man and salesman.

Sauvie v Sauvie
Lincoln County Superior Court, March 2015
Divorce

Large motel in issue. ABCPA represented husband who wanted to keep business running. Spouse was angry and insisted on selling even if at loss. After trial, husband given motel to run and payments over five years to pay marital share of wife. Fighting provided a successful solution for a worthy and hard working client.

Estate of Mildred Maccomb
Probate and related proceedings, Kennebec County Probate Court - 2010-2016
This proceeding lasted many years where counsel represented successfully during life and in over forty hours of probate proceedings an eccentric and elderly champion breeder of Great Pyrenees and sheep for many years, through various proceedings, holding off family who wanted her in a extended living or nursing home and out of her beloved if rickety home, and against whom she was at odds as she was with State agencies. Elders must be protected against abuse but also against those who "know best" and would take their independence and dignity as human beings. Although battles were lost along the way, the war was won.

State of Maine v Raymond Bellavance, Kennebec County 2014.
Class A Arson trial

Trial went on two weeks. The State immunized and got two witnesses who turned on the Defendant during trial. Despite objections, continued fight, and appeal the conviction was upheld. Criminal defense is largely a matter of plea bargaining or if a satisfactory plea is not offered or appropriate going to trial often against great odds (or else why would the State charge and proceed to trial rather than drop the case?). The persistence and ability to fight hard and persistently and the spirit to battle and not to fear trial despite tough odds is most of what it takes to be a real defense lawyer. While you may get beat and others who take easier cases may do little but look good, the joy is in fighting hard against the odds.

State v Alphonso Davis, Kennebec Superior Court 2017
Two Counts - Aggravated Trafficking Heroin

Two out of State young black men later alleged to have the largest amount of crack cocaine found in a car in Maine were stopped in a car driven by a white woman who allegedly was on a release condition allowing random search. Motion to suppress was filed on basis of racial profiling and absence of reasonable suspicion to stop. Client had just been a few months before released after serving time on another aggravated trafficking conviction. Matthew Black Esq on companion case successfully prosecuted motion to suppress for other passenger and Justice Billings suppressed the search and arrest because arresting officer was not credible and relied on hunch without actually checking out conditions applicable to driver. Despite same if not more vigorous Motion filed by Davis, DA would not agree to same result for Davis due to his record, and held off while apparently judge shopping. Persistence paid off; Case dismissed.

State v Prescott McCurdy, Sagadahoc County 2017
Six Counts of Violation of Protective Order,
One Count of Stalking
One Count of Operating Unregistered Motor Vehicle

Defendant raised the defense that all the alleged violations except motor vehicle charge (which was severed) resulted from actions on his part protected by the First Amendment and rules of court. He had sent a number of communications to the Court protesting the entrance of the initial violation order over a period of nearly a year, largely entitled Notices of Claim and challenging the jurisdiction of the Court based on absence of subject matter jurisdiction. Two charges were dismissed by the District Attorney at the outset of trial, the Defendant was convicted on two charges but the Jury was hung on the remaining charges of violation of protective order and stalking (based on general course of conduct). The defense was that the Accused did not intend to harass the alleged victim, but was exercising political speech protected by the First Amendment, a defense which was allowed as it may have related to his intent to harass, which although mens rea is not an element of Violation of a Harassment Order was allowed as it would come in on the Stalking Charge in any event. The State opted not to retry so it was a solid victory.

The Jury was also hung on the Operating an Unregistered Motor Vehicle. Defendant had no plate and readily admitted he did not agree that noncommercial use of a vehicle required registration regardless of statutory requirement. His only plate was a sign saying LIBERTY. That the arresting officer when Defendant would not roll down his window put a gun to his head may have helped the defense. The State opted not to retry. Another victory.

State v Shawn Billington, Sagadahoc County March 2018
Class A Unlawful Sexual Contact, two counts
Motion to Suppress Granted

This is a significant case because Justice Billings roundly criticized Officer Adam Temple and the Sagadahoc Sheriff's Department for employing the Reid technique of interrogation without any education on how it and other coercive techniques may result in False confessions. The Defendant was told he should come into the station to be interviewed for reasons the Officer would not give one day after a ten year old had reported two incidences of alleged unlawful touching five years earlier with very few details. The Defendant was put in a small room, told he was free to leave, then interrogated by one officer mainly but with a second bad cop officer coming in at the end. From the beginning the officer assumed he was guilty and repeatedly accused the suspect, stating the question was not whether he did it but just the reasons why he did it, lying, minimizing the consequences if he confessed, and shutting the suspect up whenever he (sixty three or more times) denied committing the crime. Although the suspect's statements were, even if given in a very coercive environment, found voluntary, Justice Billings found that a reasonable person accused so repeatedly and without qualification of being guilty of very serious crimes over an hour would not have felt free to leave. Miranda warnings were required, but not given, so any statements were suppressed.

The case went to trial with V. Bartlett as cocounsel. Evidence was a ten year old's statements after SASSME interview as to events allegedly occurring ten years before. The alleged admissions of Defendant at suppressed interrogation were admitted at trial as the Defendant testified. The jury was concerned, asked and was told by Justice Billings that no Miranda rights were given, yet Defendants statements were voluntary so could be heard by the jury. The defense emphasized the highly coercive nature of the Reid interrogation. The jury didn't like it. The jury acquitted after four hours and replay of video of the interrogation.