Three sex convictions among appeals to be heard by high court in Bangor

By Judy Harrison, BDN Staff
Posted Nov. 07, 2011, at 7:52 p.m.

BANGOR, Maine — The Maine Supreme Judicial Court will hear appeals in 13 cases Tuesday and Wednesday at the Penobscot Judicial Center.

The issues justices have been asked to review range from the investigative tactics used by police to whether evidence was admitted properly to the role of an arbitrator in lawsuits.

All but one of the cases originally was filed in Aroostook, Penobscot, Washington or Hancock counties. Chief Justice Leigh I. Saufley said when the new courthouse opened nearly two years ago that the justices would try to schedule cases from northern and Down East Maine during its two yearly visits to Bangor.

The 13th case is an appeal from the Business and Consumer Docket, based in Portland, over the denial of a rate increase for individual plans requested by Anthem Health Plans of Maine Inc. last year.

Three of the five appeals from Penobscot County were filed by men convicted of sex charges in connection with minor females.

The first case justices are scheduled to take up Tuesday is the December 2010 conviction of Jack Dempsey Bailey II, 49, of Bangor for sexually assaulting two of his daughter’s friends in Bangor between 2003 and 2005.

It will be the second time in two years that Bailey’s attorney, F. David Walker IV of Portland, has taken his client’s case to the state’s high court.

In March 2010, the justices granted Bailey a new trial after concluding the evidence that allowed police to identify the victims was obtained illegally.

Last December, the former owner of the now-defunct Bubba Jack’s Restaurant on Odlin Road in Bangor entered a conditional guilty plea that allowed him to pursue the appeal to be heard Tuesday. By pleading guilty, Bailey admitted to having sex repeatedly with one girl when she was between the ages of 11 and 13 and videotaping a victim exposing herself to the camera.

Walker is expected to argue that without the illegally obtained evidence, which included a videotape, police would not have been able to identify the victims, who were interviewed by police but did not testify at Bailey’s trial. Their statements, Walker claimed in his brief, were “fruit of the poisonous tree,” an argument courts have upheld in the past.

Susan Pope, the assistant district attorney for Penobscot County who is handling the appeal, argued in her brief that the victims might have come forward on their own without the intervention of police so their statements concerning Bailey are admissible.

If Bailey were to win the second appeal, the charges against him would be dismissed. If the state’s high court were to reject the appeal, he would serve the rest of his sentence, which is 20 years with all but eight suspended.

Mitchell Sounier, 27, of Bangor was sentenced in September 2010 to 12 years in prison after a conviction for sexually assaulting a 5-year-old relative on Thanksgiving Day 2009.

Sounier’s attorney, Hunter Tzovarras of Bangor, is expected to argue Wednesday afternoon before the justices that statements Sounier made to police should have been suppressed. Tzovarras said in his brief that Bangor police’s tactics were unconstitutionally coercive and that they entered Sounier’s father’s house, where the younger Sounier lived, without consent.

Pope argued in her brief that although Sounier’s father at first was reluctant to let police in because he thought they wanted to interview him, the older man voluntarily let police in the house. She also argued that legal precedent backs up how police conducted the interview.

The last case justices will consider on Wednesday is David Churchill’s appeal of his conviction for unlawful sexual contact in January. A jury found him not guilty of the more serious charge of gross sexual assault. Churchill was sentenced to 2½ years in prison with all but a year suspended.

Tzovarras argued in his brief that a chat log of online conversations between Churchill, 26, of Fort Fairfield and the 13-year-old victim, who was coached by Bangor detectives in an attempt to get Churchill to confess, was admitted improperly as evidence.

Pope disagreed in her brief, arguing that the chat log was admitted correctly.

http://bangordailynews.com/2011/11/07/news/court/three-sex-convictions-among-appeals-to-be-heard-by-high-court-in-bangor/ printed on July 25, 2014