MACHIAS, Maine — In the midst of a trial, a Superior Court judge recently dismissed drug trafficking charges against a Cherryfield man after investigators and prosecutors failed to share evidence with the defense.
That evidence, Justice Robert Murray said, included the recording of a phone call that a confidential informant said was made at the direction of Maine Drug Enforcement Agency officers to the defense attorney in an effort to extort money from him.
The judge also cited the lack of a report that should have been written by an agent as a reason for dropping the charges.
The president of a statewide organization of criminal defense attorneys said last week the organization will consider filing a complaint against prosecutors with the Maine Board of Overseers of the Bar once a transcript of the trial is completed.
Washington County Sheriff Donnie Smith, who has been critical of the MDEA in the past, on Thursday expressed concern in a telephone interview about the dismissal and the cost of incarcerating the defendant for 14 months while he awaited trial.
Murray dismissed the charges against Fred M. Rini, 44, on Sept. 23, the fourth day of his jury trial. The judge specifically cited the testimony of Michael Kennedy, a confidential informant for the MDEA, and his references to Michael Crabtree, who until August was a Washington County sheriff’s deputy on loan to the MDEA.
“The court is concerned that despite the existence and knowledge of the MDEA agents involved, some of whom have been identified by the confidential informant and are individuals whose names have surfaced a number of times in this case, for whatever reason, did not turn over the recording or disclose any of this information to the defense in any way in these proceedings,” Murray said in dismissing the charges. “The court finds and has concerns that the cumulative impact of these issues … cannot be cured … short of a dismissal of the charges.”
It could not be determined Thursday when the trial transcript will be ready.
The judge also said that given Crabtree’s level of involvement in the case as described by the confidential informant, the agent’s written reports should have been turned over to the defense. Murray also expressed concerns over Kennedy’s contention that he had been threatened in the days leading up to the trial.
Rini was arrested in July 2010 and indicted two months later by the Washington County grand jury on a charge of aggravated trafficking in marijuana, a Class B crime, and of aggravated trafficking in cocaine, a Class A crime.
He pleaded not guilty to both charges, which stemmed from incidents the previous April.
Rini was unable to post the $25,000 cash bail.
He faced stiffer penalties on both charges because of a prior drug conviction in federal court in Ohio. If convicted, Rini faced up to 10 years in prison on the marijuana charge and up to 30 years in prison on the cocaine charge.
Technically, Murray dismissed the charges for discovery violations by the prosecution.
Rini’s attorney, Don Brown of Brewer, said recently that prosecutors are obligated by the discovery rules of evidence to turn over all relevant items — from reports to recordings to test results to audio and video recordings.
Brown fired off an email to fellow members of the Maine Association of Criminal Defense Lawyers and a former Bangor Daily News reporter a few days after the trial. In the email, he outlined what he believed were “the failures, inconsistencies and inaccuracies in this case.”
The discovery rules stem from a 1963 U.S. Supreme Court decision, Brady v. Maryland. Subsequent case law expanded Brady’s reach from prosecutor to law enforcement officers.
State and federal judges take discovery matters very seriously. The U.S. Justice Department’s case against former U.S. Sen. Ted Stevens of Alaska was dismissed for discovery violations.
Carletta “Dee” Bassano, district attorney for Hancock and Washington counties, said last week that the work of her office should not be judged by one case and certainly not the Rini case.
“It’s a difficult case to use as a template,” she said in a telephone interview.
Joelle Pratt, the first assistant district attorney assigned to the case, became ill the second day of the trial, both Bassano and Brown said. Murray delayed the trial a week and Assistant District Attorney Jacqueline Smith took over prosecution of the case.
Paul Cavanaugh, first assistant district attorney for Washington County, also was involved in the case.
“We can’t turn over [to the defense] what we don’t have,” Bassano said. “Our office never received a report from Crabtree. He never wrote a report.”
As for the taped phone call Kennedy said he made to Brown, Bassano said: “If it’s anything, it’s ongoing investigative material and did not deal with Rini specifically.”
Efforts to reach Crabtree were unsuccessful. He now works for the Eastport Police Department but continues to work with the arm of the Maine State Police that investigates drug trafficking.
MDEA Division Commander Darrell Crandall, who is Crabtree’s supervisor, said that neither he nor Crabtree could talk in detail about the specifics of what happened in the Rini case.
“In general terms, when an agent does something substantive, he or she would be required to submit a report on whatever that substantive action was.”
Repeated efforts to reach MDEA Director Roy McKinney were unsuccessful.
Smith said he found the fact that a report was not filed and sent to the District Attorney’s Office “troubling.”
“We lose cases from time to time, but we should never lose a case because an officer failed to do his job by completing his reports,” he said. “It cost the taxpayers of Washington County $46,000 to hold this inmate. The taxpayers of Washington County can ill afford this type of behavior.”
Rini’s attorney said that he would like to know more about the tape recording of the telephone call Kennedy said under oath that he made to Brown’s office at the direction of MDEA agents.
Brown said earlier this month that he refused Kennedy’s request for money and hung up on him.
Criminal defense attorneys around the state have been supportive of Brown’s concerns about how the Rini case was handled, the Brewer attorney said earlier this month.
“Attorneys in Maine have an ethical obligation to report misconduct of other attorneys if it is a clear violation of our ethical code,” Sarah Churchill, the Portland attorney who is president of the lawyers group, said last week in an email. “If, after a review of the transcript, our organization feels that the ethical code has clearly been violated, we would file a complaint with the Board of Overseers in keeping with our ethical responsibilities as lawyers.”
While Rini no longer is facing charges in state court, he could be sent back to federal prison for violating his supervised release.
He pleaded guilty six years ago to drug conspiracy, drug possession and health care fraud charges for illegally obtaining and selling oxycodone.
He was sentenced in November 2005 in U.S. District Court in Cleveland to three years and four months along with three years of supervised release. He also was ordered to pay nearly $750 in restitution to the Ohio Medicaid Program.
Rini came to Maine from Ohio in September 2009, about a year after he was released from federal prison. After the move, his supervision was transferred to the Bangor office of U.S. Pre-trial and Probation Services.
A petition to revoke his supervised release filed in July 2010 in federal court in Bangor includes an allegation that Rini admitted smoking marijuana on June 9, 2010, to his probation officer and that he left the scene of an accident on June 16, 2010. The petition also includes the Washington County charges that have been dismissed.
Rini is free on personal recognizance bail pending a hearing in January in federal court in Bangor.
Editor’s note: The Bangor Daily News did not cover the trial but a reporter listened to the recording made of the proceeding at the transcription center at the Penobscot Judicial Center in Bangor. The recordings of proceedings made in courtrooms around the state are turned into documents when transcripts are ordered by attorneys and are available to the public.