The Maine Supreme Judicial Court on Wednesday in Portland considered an appeal by the East Millinocket man serving a 45-year sentence for murdering 16-year-old Joyce McLain in August 1980.
Philip Scott Fournier, 57, was convicted in February by Superior Court Justice Ann Murray following a jury-waived trial. She sentenced Fournier, who was 19 when McLain was killed, in April.
Fournier’s attorney for the appeal, Rory McNamara of Berwick, argued that the defendant did not waive his religious privilege by telling his parents what he told his minister, to whom he had confessed killing McLain. McNamara also said Murray should not have excluded testimony by a detective about why he did not arrest Fournier when he confessed in 1981, or evidence about a number of alternative suspects interviewed by investigators.
“The defendant made statements to others about what he told his minister but he never revealed his exact conversation with Rev. [Vinal] Thomas,” McNamara said Wednesday. “That is hardly an intentional waiver of religious privilege.”
Assistant Attorney General Lara Nomani has argued that under Maine law Fournier waived his right to religious privilege when he told his parents in front of the minister to whom he’d confessed killing McLain that he did not sexually assault the teenage girl because “it was the wrong time of the month.”
“Mr. Fournier confessed to his parents, his pastor, his work supervisor and the police,” Nomani told the justices. “Justice Murray’s decision reflects a correct understanding of the law. Mr. McNamara is asking this court to change rather than apply the law.”
Justices disagreed with McNamara on the question of religious privilege. Both Andrew Mead and Ellen Gorman said the attorney had Maine law wrong.
“Isn’t that privilege waived if the defendant discloses any part of the privileged matter?” Mead asked. “In the case, the defendant clearly did talk to his parents and to a custodian. Isn’t privilege evaporated at that point?”
Citing a Massachusetts case, McNamara said Murray should not have allowed Thomas to testify about his privileged communication with Fournier. Just because Fournier told others what he told the minister should not mean he waived his religious privilege concerning that conversation, Fournier’s attorney argued.
McNamara also argued that Murray should have considered the cumulative effect of the number of possible alternative suspects in the case instead of deciding whether evidence would be admitted about each individually. The sheer number of alternative suspects could have raised reasonable doubt about Fournier’s guilt, he said.
Justice Joseph Jabar pointed out that the court should not consider that argument because it was not raised during the trial or following Fournier’s sentencing.
Nomani said that one person was offered as an alternative suspect in court while testimony about others was excluded. There was no evidence that “linked that suspect to Joyce McLain, her murder or the crime scene,” she said.
Several justices noted that because of the years that elapsed between the time McLain was killed in 1980, when Fournier confessed the following year, and when he was arrested in 2016, it might have been important to find out why Fournier was not arrested after he spoke with a detective in 1981.
“Given the fact that the record does not show any new evidence being found during that time, why wasn’t it important for [Murray] to hear what was happening in 1981?” Gorman asked.
“It was not an appropriate question,” Nomani answered. “I don’t think this court has ever held that a police officer’s assessment of a suspect [and his or her demeanor] can be considered as evidence.”
Chief Justice Leigh I. Saufley sat out oral arguments in the case. Saufley worked in the Maine attorney general’s office between 1980 and 1990, when she became a District Court judge.
Because the office would have been investigating the murder during that time period, Saufley most likely decided that participating in the appeal could be a conflict of interest.
The state’s high court regularly considers appeals in murder cases but almost never overturns a conviction.
There is no timeline under which the court must issue a decision.