Man guilty of assault seeks new judge

Posted Feb. 12, 2010, at 9:52 p.m.

BANGOR, Maine — An attorney for an Eddington man sentenced to four years in prison for assaulting his estranged wife has asked a Superior Court judge to recuse himself so his client can be resentenced by someone else.

The lawyer questioned the impartiality of the judge and contends the sentence was not properly based on what the jury found.

Darrick Banda, the Portland lawyer representing Ryan Witmer, also has asked that his client be released on bail pending the outcome of the motion for a new sentencing.

It is unusual for a judge to be asked to recuse himself after a sentence has been imposed. Motions for recusal most often are filed before a trial.

Witmer, 33, of Eddington is incarcerated at the Maine Correctional Center in Windham, according to his attorney.

He was accused of breaking into the Orrington home he had previously shared with his then-estranged wife and attacking her and her boyfriend late on the evening of June 28, 2008. The boyfriend, who has a black belt in tae kwan do, a Korean self-defense art, suffered 11 stab wounds to his back. Witmer’s wife, who had taken out a protection order to keep him away from her, suffered superficial cuts to her forearms, according to court documents.

After a 5½-day trial, a Penobscot County jury found Witmer not guilty this past Nov. 2 of aggravated attempted murder, elevated aggravated assault, aggravated assault and burglary. Jurors found him guilty of the lesser charges of simple assault and violation of a protection-from-abuse order.

On Dec. 29, Superior Court Justice William Anderson sentenced Witmer, who had no prior criminal history, to four years in prison. The judge also denied a defense motion that Witmer remain free on post-conviction bail while his sentence was appealed.

Witmer faced up to five years in prison on the violation of the protection-from-abuse order because it included an assault, and up to a year in prison on the assault conviction. The 16 months Witmer was held in the Penobscot County Jail awaiting trial have been applied to his sentence. He also could earn up to 15 percent off his sentence for “good time.”

In December, Deputy District Attorney Michael Roberts had recommended that Witmer be sentenced to five years in prison with one year suspended and two years’ probation. Banda urged Anderson to sentence his client to between 1½ and two years in prison with all but 16 months suspended. That would have allowed Witmer to remain free.

Efforts to reach Roberts on Friday were unsuccessful.

Under the court’s rules, Roberts is not required to reply to the motion.

In his motion seeking a new judge, Banda said that Anderson “improperly considered certain ‘consequences’ of Witmer’s decision to violate the order, which ran contrary to the jury’s verdict and included conduct which, in fact, the jury found legally justified.

“Additionally, the four-year sentence was improperly based on facts not in evidence and pure conjecture,” Banda said. “Any sentence which is influenced by a consideration of such conduct or consequences that the jury found legally justified is illegal.”

He also said “pre- and post-verdict factors combine to create, at a minimum, the appearance of [partiality] by Justice Anderson.”

To support his motion for recusal, Banda described Anderson’s behavior upon hearing the verdict as “visibly, and, noticeably, disturbed.” He said the judge “threw down his papers and hastily departed the bench, which contributed to the appearance of his disapproval of the verdict.”

The lawyer also said that a combination of factors including an unusually high post-conviction bail set at $20,000 surety, the judge’s refusal to allow Witmer to remain free on bail while his appeal was pending, and Anderson’s discussion before the trial of a case he lost to Banda’s co-counsel, Dan Lilley of Portland, years ago created a situation where “Anderson’s impartiality might now reasonably be questioned.”

There is no timetable under which Anderson must issue a decision.

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