Turner man appeals 40-year sentence in high court, probes sentencing law

By Chris Williams, Sun Journal
Posted May 17, 2013, at 5:55 a.m.

PORTLAND, Maine — A Turner man sentenced to 40 years in prison for killing his wife in 2010 appealed his sentence Thursday in Maine’s highest court.

Attorney Adam Sherman argued before the Maine Supreme Judicial Court that the trial judge in Androscoggin County Superior Court erred when he set the basic length of Brian Nichols’ prison term by comparing the circumstances surrounding Nichols’ case to similar murder cases.

Nichols fatally shot his wife, Jane Tetreault, 38, in bed at their house because he suspected her of having an affair, an accusation police later said was unfounded.

His trial attorney had said his client’s mental state was a mix of clinical problems, including paranoia, mania, delusions, personality disorder, anxiety and possibly schizophrenia.

Nichols was sentenced a year ago by Active-retired Justice Robert Clifford following Nichols’ guilty plea a month earlier to intentional and knowing murder.

Nichols and prosecutors had agreed to a 42-year cap. Nichols had argued for a sentence of 35 years. Prosecutors urged the maximum.

Clifford settled on a 40-year sentence, after considering other murders committed in similar circumstances and after weighing factors that might add or subtract time from a basic sentence of 35 to 40 years.

Sherman said his client was denied due process because defense lawyers don’t have the same access to sentencing data as prosecutors at the Office of the Maine Attorney General, which prosecutes murder cases in most Maine counties.

That appears to be unfair, Sherman told the six justices hearing his appeal Thursday morning.

Most of those justices expressed surprise that Nichols was appealing a sentence that they said seemed to be at the low end of the spectrum for murder.

Justice Ellen Gorman detailed the parameters of the sentence, noting Clifford’s final sentence fell within five years of the defendant’s proposed sentence range.

“What’s wrong with that?” she asked.

Sherman said there appeared to be a “structural problem” with the first step of the Hewey sentencing analysis that was enacted in 1995 by the Maine Legislature based on the 1993 case, State v. Hewey. The analysis is used by all sentencing judges in murder and felony cases in Maine.

Sherman said that arriving at a basic sentence, the first of three steps in the Hewey analysis, is difficult to pinpoint because there are no universal data available to establish what that basic sentence should be.

“There is a dearth of information regarding basic sentences in Maine,” he said.

In Nichols’ case, Sherman said he was concerned that Clifford set the basic sentence too high.

Sherman said Clifford’s basic sentence for Nichols “was not sufficiently compared to the other prior basic sentences in Maine.”

Sherman said he went to three Maine courthouses to research court transcripts for murder sentencings. He offered two comparable basic sentences for the high court to consider.

Justice Andrew Mead said the basic sentence average length likely would have been higher had Sherman found more transcripts than he did.

Sherman suggested that sentencing judges in Maine courts should be required to record in file documents the length of term of the basic sentence in each of their cases.

Chief Justice Leigh Saufley said the Legislature is working with the court system to try to create a “case management system in which that kind of data can be collected.”

She said a similar approach is under way in court systems nationally. “It requires an entirely new approach to data collection.” And it requires money to pay for it, which Maine doesn’t yet have, Saufley said.

At Nichols’ sentencing, Clifford had access to four other murder cases of “similar horrible deaths, all of which resulted in higher basic sentences” than Nichols was given, Saufley said. She echoed Gorman’s earlier question about the length of Nichols’ sentence: “What’s wrong with that?”

Sherman said those four cases were offered by prosecutors because the defense was limited in the scope of cases to which he had access. He said he left a message at the Office of the Attorney General seeking access to their database a month or two before Nichols’ sentencing date, but never heard back.

Justice Donald Alexander wondered how much value basic sentencing data might present, given the vast array of facts and circumstances found in murder cases.

Assistant Attorney General Lauren LaRochelle defended Clifford’s sentence, saying he “properly applied sentencing principles” in setting Nichols’ basic sentence. Clifford identified “objective factors that made this murder particularly serious.” It was premeditated, committed with a firearm, a minor was nearby and it was preceded by a long history of domestic violence, LaRochelle said.

Clifford rightly included those factors in determining his basic sentence, she said.

Asked whether Sherman was right in pointing out that there is no statewide court standard for basic sentences in murder cases, LaRochelle said state law directs the sentencing judge to consider the “nature and severity of the crime,” which Clifford did, she said.

Mead asked her what the sentencing judge should use as a benchmark to establish how many years a basic sentence should be, considering the lack of a statewide database.

“Isn’t it just throwing darts in the dark?” he asked.

“There’s not an exact formula,” she said. “It’s an exercise of the court’s discretion using the information from the case and trying to assess where that might fall on the continuum” of comparable cases.

The court isn’t expected to decide on the appeal before summer.

 

http://bangordailynews.com/2013/05/17/news/portland/turner-man-appeals-40-year-sentence-in-high-court-probes-sentencing-law/ printed on August 27, 2014