PORTLAND, Maine — A Lisbon man is hoping the state’s highest court will vacate his conviction for trying to kill Auburn police by ramming a dump truck into a cruiser during a high-speed chase in 2008.
The Maine Supreme Judicial Court, acting as the law court, heard oral arguments on the case Tuesday.
Bartolo Ford was 49 years old in November 2010, when he was sentenced in Androscoggin County Superior Court in Auburn to 20 years in prison with all but nine years suspended. Ford was convicted by a jury of aggravated attempted murder and five other felonies.
Ford, through his attorney, Justin Andrus, claims that at trial the judge made the mistake of failing to give jurors instruction on whether he was acting in self-defense and how intoxication might have affected his mental state before the jury began its deliberations. Andrus also told justices that the trial judge should have confirmed directly from Ford that he knowingly and voluntarily waived his right to testify at trial in his own defense.
Prosecutors argued that Ford’s attorneys not only waived instruction to the jury regarding self-defense and intoxication during a conference with the judge in chambers, but they also didn’t generate evidence at trial to support those two defense strategies.
The state, represented by Deputy District Attorney Andrew Robinson, also argued that the trial judge doesn’t have to “make an inquiry on the record” about the defendant’s decision not to testify.
Justice Donald Alexander pointed to state law that says once defense counsel has formally waived jury instruction on self-defense and intoxication, “it is waived, gone … that’s it for those defenses.”
In Ford’s case, his trial attorneys — Daniel Lilley and Derrick Banda — asserted instead that the defendant suffered from an abnormal condition of mind during the chase, due to his war experience in Iraq. Jurors were instructed by the trial judge to consider that as a viable defense in raising doubt about Ford’s culpability.
That decision was arguably his attorneys’ best legal strategy aimed at a not guilty verdict, Alexander said.
“If the law is applied there, and the instruction was appropriate, he walks,” Alexander said.
Ford’s trial attorneys likely waived instruction on self-defense and intoxication because those instructions would have “confused” the abnormal condition of mind defense strategy, Alexander said.
“So, if that’s a strategic decision, we certainly don’t touch it,” Alexander said.
Andrus said instructions on self-defense and intoxication should be given by the judge before a jury deliberates if those justifications are raised by evidence presented at trial.
Alexander countered, “The Legislature intervened and said, ‘No, no, no, if it’s waived, it’s waived.’”
Justice Andrew Mead said Ford’s attorneys were clear on the court record in their intentions to waive those two jury instructions.
Andrus said, “There is no indication on the record this was the defendant’s waiver,” merely that of his defense attorneys.
Justice Ellen Gorman asked whether the issues raised by Andrus — that Ford’s defense attorneys might not have represented their client’s best interests — wasn’t better argued during a post-conviction review, when a defendant has the opportunity to have the court assess the quality of his trial defense.
Ford already was heard on post-conviction review the end of last year, but apparently didn’t raise those issues at that hearing.
Andrus said that, by waiving self-defense and intoxication as instruction to the jury, Ford essentially pleaded guilty to those elements.
Justices asked Andrus how far the trial judge should go in being satisfied that defense counsel is representing the wishes of the defendant.
Chief Justice Leigh Saufley said Ford had two “very experienced” trial attorneys who gave a “great deal of thought to the nature of the defense” in Ford’s case.
“Basically then, you get to second guess on appeal every strategic decision relating to litigation choices about calling witnesses or not calling witnesses, the defendant testifying or not testifying or instructing or not instructing [the jury] on particular points,” Alexander said.
Robinson said the law court has acknowledged that a defense attorney telling a jury his defendant is guilty of a lesser crime in an effort to acquit his defendant of a greater crime is an appropriate tactic.
During discussions in chambers, defense attorneys said they didn’t believe evidence raising justification of self-defense had been generated during the trial, Robinson said.
When the attorneys discussed a justification for intoxication, the defense attorneys said that would complicate their strategy, Robinson said.
On the subject of whether a defendant decides to testify at trial or not, Saufley said such a discussion between defendant and judge would have to be done “very delicately, so that the defendant does not read from the judge the thumb on the scale of either of those incredibly important rights: the right to remain silent and the right to testify in his own behalf.”
It’s less risky if that discussion takes place between the defendant and his attorney, she said.