February 21, 2020
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This retiring judge once brought roosters into the courtroom in a case involving Janet Mills

Robert F. Bukaty | AP
Robert F. Bukaty | AP
Justice Donald G. Alexander asks a question during a hearing in the Maine Supreme Judicial Court on whether ranked-choice voting can be used in Maine's June primary in Portland in this April 12, 2018, file photo.

Maine’s longest-serving judge spent his last day on the bench making sure defendants recently arrested in Kennebec County understood their rights.

That’s also how Maine Supreme Judicial Court Justice Donald G. Alexander spent his early days on the bench 41 years ago when he first became a District Court judge in 1978.

Judges and attorneys agreed that Alexander’s most lasting impact on Maine law is his book, the “Maine Jury Instruction Manual.” Jurors are expected to hear sections that book for decades to come as they complete their civic duty.

Alexander, 77, of Winthrop retired at the end of the day Friday after serving 41 years, one month and 26 days as a Maine judge. He was appointed to the Superior Court in 1980 and to the state’s high court 18 years later.

William Penn Whitehouse, the state’s second longest serving jurist, retired in 1913 after serving as a judge for 35 years, one month and 25 days.

Chief Justice Leigh I. Saufley announced those numbers and many more in a Jan. 9 tribute to Alexander, the last day he heard oral arguments at the Cumberland County Courthouse in Portland.

“Justice Alexander is a perfect example of a collegial partner and taught many of us how to disagree energetically and creatively without being disagreeable,” she said. “He is irascible, dogged and an always energetic defender of the rule of law. I don’t know how we will get along without him.”

Alexander does not plan to return to the bench part time as do recently retired Superior Court Justices Nancy Mills and Roland Cole, if they are confirmed by the Maine Senate.

“I want the opportunity to join other things and to speak out on things if I want to,” he said of why he decided not to seek another appointment to the state’s high court. “I’ll still stay involved in law where I can be helpful.”

Alexander said that he hoped to work with the Maine Board of Overseers of the Bar, as a private or court mediator and on some committees that advise the court and the Legislature on the law.

Gov. Janet Mills, who attended the Maine School of Law in the 1970s with Alexander’s wife, Barbara, said Friday that she would have nominated him to the bench as did her predecessors James Longley, Joseph Brennan, John McKernan, Angus King, John Baldacci and Paul LePage.

The justice said last month that he did not want to be the oldest person ever nominated to the bench in Maine so did not seek reappointment.

Alexander was born and raised in the Boston suburbs but visited Maine as a boy with his father who was the accountant for some of the now-closed sardine packing plants in Washington County.

“I remember being in Lubec before they built the bridge to Campobello,” he said.

Alexander graduated from Bowdoin College in Brunswick and decided to take the law school entrance exam even though he was unsure if he wanted to be a lawyer. He almost did not sit for the test because the Bowdoin football team was playing the University of Maine for a state title that day.

“Towards the end of the test, I heard the chapel bell ringing,” he recalled. “That meant Bowdoin had won the game and that was the last time Bowdoin beat UMaine [in football].”

The justice graduated from the University of Chicago Law School in 1967, then went to Washington, D.C., where he first worked for the League of Cities before working for Maine Sen. Edmund Muskie on environmental legislation. Alexander and his wife moved to Maine in 1973 so she could attend law school. He soon was working in the Maine attorney general’s office, where he was the deputy to Joseph Brennan before his successful run for governor in 1978.

“As deputy attorney general, Don Alexander handled some of AG Brennan’s most notable initiatives, including opposing the United States Postal Service’ stamp price hike and a successful suit against the Maine State Bar Association over their menu of legal fees for certain services, a violation of antitrust law,” said Mills, who served as attorney general herself.

As a lawyer in private practice and as the Androscoggin County district attorney, Mills appeared before Alexander hundreds of times. One of the most memorable, she said, was for a case she prosecuted involving roosters.

“As district attorney in Androscoggin County, my office prosecuted a man for engaging in cock fighting, a violation of the animal cruelty laws,” she said. “I had no idea how vicious these animals were trained to be until Justice Alexander suggested we bring the caged birds to the courthouse. The echo of a loud and murderous ‘cock-a-doodle-do’ haunts my memories still of that otherwise elegant and animal-free courtroom.”

Alexander recalled the case, too, but made clear there was no cockfight in his courtroom.

“Because of the noise the two cocks were making in the DA’s office, they had to put one in the courtroom,” he said. “Without the other there, it was quiet.

“Then it was proposed that we decide the case by designating one cock guilty and one not guilty and letting them have at it,” he continued. “But that wasn’t really going to happen, and the governor, then DA, indicated a fight would not be appropriate. The guy pled guilty, so there was never a trial or a fight.”

Alexander’s most lasting impact on the law in Maine is his model jury instructions, first published in 1985 and revised many times since. Maine trial judges are reluctant to stray from them despite the urgings of defense lawyers.

When a defense lawyer a few years ago asked Superior Court Justice William Anderson to give a different set of instructions than the ones Alexander had penned, Anderson leaned over the bench at the Penobscot Judicial Center in Bangor and asked: “You want me to not give Justice Alexander’s instructions?”

“Yes, your honor.”

“Well, I’m not going to that,” the judge said, swiftly dismissing the idea.

While on the state supreme court, Alexander participated in 6,583 decisions and wrote 75 separate dissents, sometimes described as “scathing” by lawyers on the losing side. In 2007, the justice vehemently disagreed that the prosecution had presented enough evidence to a jury to convict Lucien Woo of Class B drug trafficking.

“Today the court holds that if a person (or his estranged father-in-law) had some of the ingredients to bake a cake, and someone once gave that person a recipe to bake a cake, then he can be found guilty of baking a cake, although no one saw him bake the cake, and no trace of a cake has ever been found,” Alexander wrote. “Our law does not permit beyond a reasonable doubt conviction on such flimsy evidence.”

Last week, he disagreed with the majority of his fellow justices in the opinion that found unconstitutional a Maine law that requires blood tests of drivers impaired drivers in fatal crashes. But, he did so less colorfully, saying it was “objectively reasonable under the Fourth Amendment” to draw the blood of a Tennessee trucker convicted of manslaughter and operating under the influence in a 2016 Knox County crash that killed two.

Alexander often tells lawyers that he holds the record as the most reversed justice in the state of Maine. The number of his reversals as a district and superior court justice are hard to measure because supreme court opinions have only included the names of lower court judges since 1988, a decade after Alexander went on the bench, but he estimated it is much more than 100.

He has even been reversed by his colleagues.

In 2014, in a 4-to-2 decision, the state’s high court reversed his earlier ruling that would have allowed F. Lee Bailey, then 80, of Yarmouth to practice in Maine. Bailey, best known for representing O.J. Simpson in his 1995 murder trial, had not practiced law since the early 2000s, when he was disbarred in Florida and Massachusetts. He moved to Maine in 2010.

Alexander said he has the most reversals because he was on the court so long and handled so many cases. His reversal percentage rate is “right in the middle.”

The justice declined to name his most important cases, saying that is best left to others. He said the biggest changes he’s seen over the years have to do with technology and the lower number of trials held recently compared to past decades because there are more plea agreements and settlements.

On his last day on the bench, Alexander got a surprise visit from the governor, who presented him with a proclamation in honor of his contributions during his career.

“Lawyers, jurors and court personnel across the state will miss him greatly,” Mills said. “I suspect we haven’t seen the last of Donald G. Alexander and I hope he offers his immense intellectual talents to our state in some nonjudicial capacity soon. There is simply no one like him.”

 

Correction: An earlier version of this report misstated when Donald G. Alexander joined the Maine Supreme Judicial Court.

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