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It amazes me how often clients or potential clients think that the lawyer is “not fighting for them.” I suppose sometimes it is true, but more often it is based on emotional responses to good advise fom the lawyer. On of the classic triggers for this type of response is for the lawyer to suggest that it may not be productive to fight over every tiny bit of property on the list of personal property.
If the marital estate has $20,000 worth of property composed of beds. couches, stereos and yes-lawn ornaments-each side can anticipate getting roughly $10,000 worth of stuff. For one reason or another most of these items are self selecting. For example, the $300 flyfishing set will typically be set aside to the husband and the $150 scrapbooking kit and the $150 worth of pots and pans will be set aside to the wife.
These items will typically balance each other out leaving maybe 30% of the estate which could be taken by either side. Lets call these items the lawn ornaments. Lets say there is an especially beautiful garden gnome left to divide that was bought for $100. Lets say that one side or another has invested significant emotional baggage in the garden gnome. Perhaps the other side is hell bent on dividing the property EXACTLY down the middle.
Lets say the lawyers make $200/hr. Every minute that the combined team of lawyers spends on the lawn ornament costs $6.66. Lawyers bill in increments of 1/10 hr or 6 minutes per billing entry. If each lawyer spends 1/1o of one hour that is a comined bill of nearly $80. Most lawyers charge 2/10 of an hour per phone call. That is a combined bill of nearly $160.
If the clients are really invested in this particular lawn ornament it will probably take more than a single phone call to resolve. Otherwise productive settlement discussions get blown up over such stupidity. Even if one side or the other eventually gives in the financial cost can be astronomical in relation to the real value of the item.
Take my advice-if the lawyer looks at you cross-eyed because you want to fight over the lawn ornament you have a good lawyer. If your lawyer wants to feed the fight over the lawn ornament then look very carefully at your next bill.
The corollary to fighting over the lawn ornaments is giving up too soon on a legitimate position. I find this situation to be most common when one spouse or the other is fundamentally upset about getting divorced in the first place and does not have the stomach for the fight. Not to be sexist, but in my experience it is the wife who seems to most often adopt this attitude (not always by a long shot!). I will find myself taking a much harder line than my client seems to want and it can create some conflict in the lawyer-client relationship.
At the height of such disputes I often have to dust off the many sad war stories of an ex-spouse who comes to see me about two years afterthey got divorced and have suddenly realized that the property division or spousal support/alimony arrangement that they rushed into is not so good. For some reason it seems to take about two years for folks to wake up to the idea that they got screwed. The reality is that they screwed themselves and there is usually not much to be done about it.
Never be afraid to press a legitimate position.
I am tired of competing with the “big” personal injury firms for worthwhile cases. For years I pursued the same strategy as everyone else with a huge advertising budget in the yellow pages. We did a lot of personal injury cases but increasingly potential clients went to the big advertisers. The cases came but as our advertising budget exploded the arms race raced further ahead. Big out of state firms bought huge amounts of cheap tv advertising and, in my opinion, the whole model became unsustainable.
I have almost completely eliminated my personal injury advertising. We have the expertise and experience to handle these matters but now we simply compete on price. Traditionally lawyers take 1/3 of the gross as the fee (plus expenses). Often this results in a windfall for the lawyer.
We have decided to limit our practice to the “best” cases and chop our fees. Consequently, for cases taken after 6/1/2011, if your case has over $10,000 in documented medical bills and clear liability we will only charge 20% of the gross (plus expenses). This will save the client thousands of dollars in fees over traditional fee arrangements.
CROSS EXAMINATION OF SEX CRIME WITNESSES
A presentation given on February 3, 2011 and May 18, 2011 for the Maine Commission on Indigent Legal Services
- 1. BE WILLING. DON’T TAKE THESE CASES UNLESS YOU ARE WILLING TO GET YOUR HANDS DIRTY. (The trailer park story-see PFA’s).
2. USE COLLATERAL HEARINGS to get a crack at the “complaining witness.”
a. PFA’s
i. Often brought by parents at DHHS/advocate insistence.
ii. Consider the goals-balance discovery with keeping fear alive.
iii. Subpoena away!
b. Divorces
i. Courts will likely not allow child testimony even in light of allegations but collateral witnesses can be crossed.
c. Child Protective Hearings
i. Court unlikely to allow child testimony but MACWIS logs & collateral witness/taped interviews are gold.
d. Probate Court (rare)
e. Substantiation hearings. A much bigger part of the practice now.
f. Consider the “fear factor?” Wil you desensitize the witness to testifying? Is that desireable from a plea bargaining/trial strategy statndpoint?
g. Be aware of your personal aura. Are you a mean scary looking guy or a cuddly grandmother type. Understand how witnesses will react to you-tone it down or amp it up depending on the desired response.
3. BE KIND (But Don’t Back Down)
a. Often these are real victims and honey will get you more than vinegar.
b. Don’t make the jury hate you. See 2(g), above.
c. Good relationship with DA might get you an interview.
d. Often it is more productive to use a sympathetic cross of the child witness gather gold on the “real” abuser (social worker, cop, accusing parent etc) than to attack the story directly.
e. at the same time, if you can’t go after a child witness why bother to have a trial.
Julio: sorry that kid cried, blame me!
4. BE ALERT TO COLLATERAL INFLUENCES.
a. Boyfriend needs to hear she was “raped”
b. Parents need to hear the same thing . ..
c. Overzealous social workers/VWA’s
d. Sympathetic cop not following basic interrogation procedure
i. Failure to separate
ii. The 15 minute rape investigation
e. DA rehearsal (“The Mike Roberts Story” or “Kids say the darndest things!”
f. OTHER?
5. LISTEN TO THE LANGUAGE. Often its not what is being said it is what is not being said or how it is being said that will give you important clues to holes in the case (see the Mike Roberts Story). Look at the witness, not your notes.
6. PRETRIAL INVESTIGATION. Often fruitless but necessary. MACWIS LOGS & CLIFFORD ORDERS. Social Media & texts. Be prepared to fly blind.
7. CHAOS IS YOUR FRIEND. Be alert to unexpected opportunities. Explore the story in detail. Surprising things can pop out of nowhere. You often will not have an opportunity to develop information independent from what’s in the police report. If you only ask the question you know the answer to then you may simply reinforce the State’s case. Be prepared to make some magic, take a chance.
8. NEVER LEAVE A BAD ANSWER HANGING. The corollary to taking a chance is always have a backup plan. If your “take a chance” question leads into a bad answer be prepared to back out and go back to a “known” good fact. Never leave a “bad” fact hanging as the answer to your last question.
OTHER SEX CASE CONSIDERATIONS
7. DON’T BE AFRAID TO TRY THESE CASES. PREJUDICE AGAINST THESE TYPES OF DEFENDANTS IS A MILE WIDE AND AN INCH DEEP.
8. UNDERSTAND THE FOLLOWING DOCTRINES/RULES:
a. Hearsay.
b. Rape Shield Law MRE 412
i. exceptions for other source of injury
ii. specific past instances which might support a consent defense.
iii. “Tender years” doctrine and its limits.
iv. First Report
10. TRY THESE CASES. Even the dead-bang losers-you will get very favorable plea bargains in the long run.
11. PLEA BARGAINS. 10 year registry v. lifetime. Probation conditions and counseling. Non-sexual drop-downs. Move out of family dwelling. Young relatives/kids. Child porn/federal.
12. THE POLICE ARE OUR FRIEND. Sometimes our friends let us down. Regretfully point out the sloppy investigation.
By Judy Harrison, BDN Staff
Posted June 02, 2011, at 9:30 a.m.
Last modified June 02, 2011, at 6:33 p.m.
Last modified June 02, 2011, at 6:33 p.m.
BANGOR, Maine — Kelly Rider of Newport was just 17 when a neighbor recruited her to marry a man she’d never met to make it easier for him to become a U.S. citizen.
After turning 18, Rider, now 24 and the mother of two children ages 5 and 2 months, married a Kenyan national in May 2005 and became a small cog in what became the state’s first sham marriage conspiracy, which included about two dozen Mainers.
U.S. District Judge John Woodcock on Thursday sentenced Rider to one year of probation and ordered her to pay a $300 fine.
Rider pleaded guilty last year to conspiracy to defraud the United States. Unlike others in the scheme, she was not paid to marry, Woodcock said Thursday in imposing her sentence.
“What truly separates this case from the others is her motivation,” the judge said. “The others all were paid to sell out their country for a few hundred or a few thousand dollars. She got about $40 in gas money [for trips to the immigration office in Boston]. It came as a surprise to her that it was illegal.”
Rider, who technically is still married to the man from Kenya, was a witness in October 2006 to the sham wedding of her live-in boyfriend to a woman seeking to remain in the U.S., the judge said.
He has not been charged, according to the U.S. Attorney’s Office.
Rider was recruited into the scam by the Roy family, who have been described in court documents as her neighbors.
The family was part of a conspiracy federal prosecutors claimed was run by two African men. Rashid Kakande, 37, of Woburn, Mass., was convicted by a jury. Originally from Uganda, Kakande (pronounced ka-KAHN-day) is being held without bail while awaiting sentencing.
A second man, James Mbugua, (pronounced umm-BOOG-wa) was indicted in July 2010 by a federal grand jury with Kakande. Mbugua, 50, of Springfield, Mass., and a native of Kenya, disappeared last year and is considered a fugitive by the court.
June Roy White, 56, who recruited Rider, was sentenced last month to three months in federal prison, the same amount of time behind bars that her husband, Albert White, 48, of Newport, is serving. He is scheduled to be released on Aug. 9, according to the federal Bureau of Prisons’ inmate locater website at http://www.bop.gov/inmate_locator/index.jsp. She is scheduled to report on June 17.
Two of White’s daughters also have been sentenced to prison time for their roles in the conspiracy.
Torri Roy Patterson, 32, of Lewiston is scheduled to begin serving a six-month sentence on June 10. Angela Roy, 37, of Sabbatus is scheduled to begin serving a 10-month sentence on June 17.
Members of the Roy family and Rider testified against Kakande.
Rider faced up to five years in prison and a fine of up to $250,000. Under the prevailing federal sentencing guidelines, she faced between four and 10 months in prison, which qualified her for probation.
By Rich Hewitt, BDN Staff
Posted May 27, 2011, at 7:38 p.m.
Last modified May 27, 2011, at 7:55 p.m.
Last modified May 27, 2011, at 7:55 p.m.
ELLSWORTH, Maine — A Hancock County jury Friday found a former Gouldsboro man not guilty of raping his spouse. The jurors, however, did find him guilty on one of two misdemeanor counts of assault against his estranged wife.
The verdict in the trial of Vladek Filler, 41, came after nearly a full day of deliberations by the jury. Members of Filler’s family, including his 14-year-old son Nathan, who testified earlier this week, wiped tears from their eyes before and after the verdict was announced.
A subdued Filler hugged family members during a break after the verdict and spoke quietly to his son before the boy left the courtroom. Filler later left the courtroom without talking to reporters.
Prosecutor Paul Cavanaugh said outside the courtroom after the verdict that he was not entirely surprised by the result.
“The state is satisfied that the jury examined the evidence and testimony and returned a guilty verdict on the count of assault that had a photo of a bruise [on Filler’s wife’s arm],” he said. “One of the trends we’re seeing in jury verdicts is the CSI effect; juries have the expectation that there is always going to be some sort of physical corroborating evidence. It makes great TV, but it’s not always true in real life.”
“So while the verdict on the sexual assault is not a surprise, it is a disappointment,” Cavanaugh said.
Defense attorney Stephen C. Smith of Bangor said he was very pleased with the verdict.
“This has been a long struggle,’’ Smith said outside the courtroom. ”Vladek and his two children are living in Georgia and trying to put this very unpleasant chapter in their lives behind them. I am disappointed that [the charges] made it this far.”
In the courtroom earlier, Smith indicated to Justice Robert Murray that he planned to appeal Filler’s conviction on the misdemeanor assault charge.
Filler had been charged in three separate incidents spanning two years. The first misdemeanor assault charge stemmed from an incident in December 2005 when he was accused of yelling at her and throwing water in her face; the gross sexual assault charge from an incident in April 2007, and the second assault charge from an incident a few days later.
Testimony in the trial began on Tuesday and ended on Thursday. It included a description by Filler’s wife of the assaults, including the altercation in which she alleged that her husband had pinned her against the laundry machines in the bathroom of their home and forcibly sodomized her. The jury also heard a disturbing tape made by a Washington County sheriff’s deputy of the woman screaming incoherently after she was found on April 24, 2007, barefoot in a bra and pants in a blueberry field carrying her 18-month-old son.
That incident occurred a little more than two weeks after the woman said she was raped by her husband.
Both attorneys referred to that tape during closing arguments on Friday. Cavanaugh pointed to the tape as evidence that under constant abuse by her husband, the woman had reached her breaking point and was desperate to keep custody of her children.
“He broke her,” the prosecutor said. “She was at the end of her rope.”
He encouraged the jury to recall the tape.
“Was this a woman who was manipulating or conniving? Was this a woman who was getting even? Or can you hear the pain in her voice; can you hear the loss in her voice?”
Smith, on the other hand, said the tape revealed a woman who was “barking mad” and the ravings of a woman who would do anything to keep custody of her children. Filler and his wife are in the process of making their divorce final, but Filler has been granted custody of their two sons, who are now 5 and 14 years old.
“It’s a terrible thing for a mother not to have her children,” Smith said. “But this is about: Does she have a motivation to tell a story that is not necessarily true?”
Smith also noted that there was a lack of evidence in the case and stressed that Filler had not gotten a post-rape medical exam, which police had advised her to do.
After the jury’s verdict, Justice Murray allowed Filler to remain free on the existing bail, despite the prosecution’s request that he be held without bail until sentencing. Although Cavanaugh had argued that Filler has interests outside the state and country — he lives in Atlanta — Smith noted that despite living out of state, his client had appeared regularly in several civil and criminal trials since the initial charges were filed in 2007.
Cavanaugh indicated that Filler’s wife and several other interested parties wanted to address the court before sentencing. Justice Murray agreed that could not be easily done on Friday and postponed sentencing, but did not set a specific date. It wasn’t clear Friday what penalty Filler faces on the misdemeanor assault charge.
Filler was tried and convicted on all three charges in 2009. The trial judge, and then the state supreme court, ordered a retrial in the case after Filler’s attorney filed an objection to comments that Assistant Hancock County District Attorney Mary Kellett made during her closing arguments.
By Bill Trotter, BDN Staff
Posted May 26, 2011, at 1:33 p.m.
Last modified May 26, 2011, at 6:51 p.m.
Last modified May 26, 2011, at 6:51 p.m.
ELLSWORTH, Maine — A former Gouldsboro man testified in his own defense Thursday afternoon in Hancock County Superior Court, telling a jury that he never assaulted or raped his wife.
Vladek Filler
Vladek Filler, 41, is accused of throwing water in his wife’s face in December 2005 and of assaulting her and raping her in April 2007.
Filler originally was tried on the allegations in early 2009 and found guilty. But the previous trial judge and then the state supreme court ordered a retrial after Filler argued that the case’s previous prosecutor, Assistant Hancock County District Attorney Mary Kellett, inappropriately raised during closing arguments an issue that had been barred from testimony.
The defense rested its case around 3: 30 p.m. Thursday. Closing arguments and then jury deliberations are expected to begin at 9 a.m. Friday morning.
On Thursday, under direct questioning by his defense attorney Stephen C. Smith of Bangor, Filler said “no” several times when asked if he had done certain things.
He denied forcibly sodomizing his wife or assaulting her in any way. He said that she punched him in the face during the December 2005 argument but that he did not throw her out of the house, prevent her from using the plumbing, or otherwise retaliate. He denied preventing her from using the family car or disabling the car, though he did say he asked her in December 2005 not to use the car with the children because he thought it was not reliable.
Filler contends that his marriage to his estranged wife was failing and that she fabricated the allegations against him in order to gain a tactical advantage over him in the looming custody battle over their two sons, who are now 5 and 14 years old. Filler since has been granted custody of the two boys, who live with him in suburban Atlanta.
He testified Thursday that in early 2007, he told his wife he was making plans to leave her. She had an “extremely emotional” negative reaction to this news, he said.
“It [became] a constant ongoing subject of arguments and discussion and plans and negotiations” between him and his wife, Filler said.
According to testimony, things came to a head on Saturday, April 21, when Filler’s wife went to pick up her daughter, who was fathered by another man, at the Bangor bus station. Filler’s wife took their infant son with her but, after picking up her daughter, who is now 21, she went to a friend’s house and then spent the night at another friend’s house in Steuben. She and Filler have been separated ever since.
Under cross-examination by prosecutor Paul Cavanaugh, Filler said he was concerned but not hysterical when his wife and toddler son did not return later that day. He said he became more concerned on Sunday morning when she still had not returned home with the child, who then was less than 2 years old.
Cavanaugh pressed Filler about statements he supposedly had made to his children’s guardian during subsequent divorce proceedings about his wife being violent with his children. If she was known to be violent, Cavanaugh asked, why didn’t he call police right away on Saturday?
Filler said his wife had “taken off” unexpectedly before for several hours, but always returned home.
“I had no idea she abducted our child,” Filler said. “I figured it was one of those kinds of episodes. My [14-year old] son was begging me to call the police.”
Filler said he called a friend of his wife’s Sunday morning to try to track down his younger son, but did not find out where the boy was. He was about to call the police next, he said, when they pulled up in his driveway, after his wife had called police from Steuben to file a complaint that Filler assaulted and raped her earlier that month.
Filler’s 14-year-old son also testified Thursday afternoon. The teenager said his father and mother argued frequently before they separated but said he never saw Filler strike his mother.
The boy testified that, during the December 2005 argument during which Filler allegedly twice threw water from a cup into his mother’s face, he saw his mother strike Filler in the face. He said he never saw his father throw water on his mother. The boy was 9 at the time.
When Cavanaugh asked the boy why he waited more than a year to tell anyone about seeing the altercation, the boy shrugged.
“I was just a kid,” he said. “I didn’t want to bring attention [to it].”
When asked by Cavanaugh if he loved his mother, the boy said, “Hard to say.” The boy added he had not seen his mother since his parents’ divorce proceedings were held in November 2009.
Immediately after the state rested its case Thursday morning, Smith moved to have the charges dismissed. His request was denied.
Smith told Justice Robert Murray in the judge’s chambers that the case should be dismissed because there is no physical evidence to support the sexual assault allegation against his client. Smith added that Filler’s wife testified her memory was unclear about the alleged physical assaults and, though there was testimony about Filler’s wife having a bruise around the time of the second alleged assault, there has been no clear evidence introduced at trial about how she got that bruise.
“This is a person who has problems with reality,” Smith told the judge. “I would suggest to the court that her credibility is suspect.”
Cavanaugh, in a brief response to Smith’s motion, said the state supreme court already had reviewed the allegations against Filler and declined to dismiss the case. Cavanaugh added that the Law Court has ruled that allegations without physical evidence are enough to bring charges against alleged perpetrators.
In denying the motion to dismiss on Thursday, Justice Murray said it is up to the jury to decide whether the evidence presented is credible enough to convict Filler.
The state rested its case late Thursday morning after calling two Gouldsboro police officers and a friend of Filler’s wife to the witness stand. The police officers testified separately that Filler’s wife told them in mid-April 2007 she had been raped by Filler a few weeks earlier. The officers also testified that each had told Filler’s wife she should get a post-rape medical exam. Each officer also indicated that to his knowledge, she never did.
The friend of Filler’s wife testified Thursday morning that she drove Filler’s wife to a friend’s house in Steuben on Saturday, April 21, 2007, but that she did not know the friend’s name or remember how to get there. When Filler called her the next day to ask where his family was, the friend said she told him truthfully that she did not know.
By Bill Trotter, BDN Staff
Posted May 25, 2011, at 8:02 p.m.
ELLSWORTH, Maine — The chilling sound of a Steuben woman’s screams reverberated through the courtroom Wednesday as the sexual assault trial against her husband continued in Hancock County Superior Court.
The screams were from a recording of the woman being taken into protective custody by police on April 24, 2007, a little more than two weeks after she says her husband, Vladek Filler, raped her in their Gouldsboro home. The recording was presented Wednesday as evidence in the sexual assault retrial of Filler.
Washington County sheriff’s deputies took Filler’s wife into protective custody on April 24 after she called police from a friend’s house in Steuben and they went to check on her well-being.
Called as a prosecution witness, Lt. Travis Willey of the Washington County Sheriff’s Department testified that he found Filler’s wife on a rural road near a blueberry field, wearing no shoes, black pants and a bra, and carrying her youngest son, who then was about 18 months old, in a sweatshirt. Willey told the jury in Filler’s trial that he made the recording as he and other police took Filler’s wife into protective custody and took her to Down East Community Hospital in Machias for an evaluation.
When questioned on the stand by Hancock County First Assistant District Attorney Paul Cavanaugh about her state of mind, Willey said Filler’s wife was not making a whole lot of sense. She appeared tired and, because she had white froth around her mouth, dehydrated as well, Willey said.
“She seemed very irrational at the moment,” the deputy said.
On the recording, Filler’s wife can be heard making accusations between her screams and other unintelligible comments. She threatens on the recording to kill her husband and says that he sexually assaulted her and her three children. The woman has two boys with Filler and she has a now-21-year-old daughter who was fathered by another man.
“She didn’t go into details, but she did say that [Filler molested the children],” Willey said under cross-examination by Filler’s attorney, Stephen C. Smith of Bangor.
Filler, 41, is on trial for assaulting and sexually assaulting his estranged wife, but has not been charged with any crimes against his two sons or his stepdaughter. Filler now lives in suburban Atlanta and has custody of their two sons, who are 5 and 14 years old.
Filler originally was tried on the allegations in early 2009 and found guilty. But the trial judge and then the state supreme court ordered a retrial after Filler argued that the case’s previous prosecutor, Assistant Hancock County District Attorney Mary Kellett, inappropriately raised during closing arguments an issue that had been barred from testimony.
During the trial on Wednesday, Filler’s wife was heard screaming on Lt. Willey’s recording, “I will kill him!” and “I’m not crazy! I‘m not crazy!”
The jury of eight women and seven men, including three alternates, listened to the recording for about half an hour at the end of Wednesday’s testimony. The trial is expected to resume around 9 a.m. Thursday.
Before Willey’s testimony, Steuben resident Linda Gleason testified that in the days leading up to Filler’s wife being taken into protective custody, Filler’s wife, stepdaughter and youngest son were staying with Gleason in Steuben. Gleason, a friend of Filler’s wife, said that they were staying with her after Filler and his wife had a fight about Filler’s wife using the car.
Gleason said Filler’s wife called police from her house on April 23, 2007 — the day before she was taken to Machias for a mental evaluation — to tell them about the alleged rape she said happened on April 6 that year. In the days leading up to the recording, Gleason testified, she did not see Filler’s wife eat or sleep.
Filler’s wife also testified earlier Wednesday while being cross-examined by Smith. The defense attorney questioned her about the alleged sexual assault on April 6, during which Filler supposedly sodomized her against the laundry washer and dryer machines in a bathroom.
Filler’s wife answered slowly and several times asked Smith to repeat his questions. Several times throughout the day, each attorney objected to questions asked by the other. They held many sidebar sessions with presiding Justice Robert Murray, out of earshot of the jury, to discuss their objections or concerns before questioning resumed.
Under cross-examination, Smith asked Filler’s wife how Filler held her down, which of his hands he used to do what, how her head was positioned during the alleged assault in relation to the machines and a laundry basket, and other questions about the incident.
During the line of questioning, Filler’s wife said she does not know why she did not later get a post-rape medical exam, which police had recommended that she do. She also acknowledged that when she spoke to police about an unrelated matter on April 11, she never told them she had been raped five days earlier.
Filler’s wife also said that in December 2005, around the same time Filler allegedly threw water from a cup into her face during an argument, she was thinking about leaving her husband. She said she had gathered some personal documents and photographs in a bag in case she decided to leave.
“I was afraid,” she testified.
Smith asked her if she was afraid that, if she left, her husband would get custody of the children.
“I was afraid,” she repeated.
The prosecution is expected to continue calling witnesses on Thursday. Smith has said that Filler and his eldest son are each expected to testify in the trial.
The trial is expected to conclude on either Thursday or Friday.
By Judy Harrison, BDN Staff
Posted May 24, 2011, at 7:09 p.m.
Last modified May 24, 2011, at 7:30 p.m.
Last modified May 24, 2011, at 7:30 p.m.
BANGOR, Maine — A federal judge Tuesday ordered that a Parkman man facing gun charges be freed on $5,000 unsecured bail.
U.S. Magistrate Judge Margaret Kravchuk denied a federal prosecutor’s motion seeking to have Michael J. DeMaria, 43, detained until his case is resolved.
The judge issued her eight-page decision after a detention hearing held Monday in U.S. District Court in Bangor. During the hearing, Kravchuk called the government’s evidence against DeMaria “weak.”
DeMaria has been charged in federal court with two counts of illegal possession of firearms and ammunition — one for possessing firearms while being addicted to a controlled substance and possessing ammunition while being subject to a protection from abuse order.
Kravchuk noted in her order that DeMaria had been free on bail without incident since January on a state charge of violating a protection order. She also pointed out that no guns or destructive devices were found in his possession as a result of the recent two federal search warrants.
No drugs were found on the premises, either, Kravchuk wrote. DeMaria also has never tested positive for any drug and there is no evidence he has been treated for substance abuse.
DeMaria was arrested again early last week by heavily armed FBI agents and state police as he prepared to attend a divorce hearing in Dover-Foxcroft.
“We’re pleased he’s been released,” DeMaria’s attorney, Stephen Smith of Bangor, said Tuesday. “We really thought when the SWAT team took him down, he should have been treated with more respect.”
Bail conditions include no possession of firearms, ammunition or illegal drugs. He also may not have contact with his estranged wife, who filed a protection from abuse complaint against him, or his two grown children. DeMaria also must undergo a substance abuse evaluation.
Authorities in Piscataquis County had been keeping an eye on DeMaria’s home since December, when his wife told police he threatened to kill her and the couple’s 7-year-old son. The protection from abuse order required that DeMaria turn his guns over to law enforcement officials.
On Jan. 1, a search warrant was executed at DeMaria’s home by state and local authorities in search of bombs and bomb-making materials. No explosives were found, but officials did discover two guns in wall safes hidden in a bathroom in violation of the protection order.
If convicted, DeMaria faces up to 10 years in prison and a $250,000 fine.
By Eric Russell, BDN Staff
Posted May 23, 2011, at 7:29 p.m.
Last modified May 23, 2011, at 8:26 p.m.
Last modified May 23, 2011, at 8:26 p.m.
BANGOR, Maine — A federal judge did not issue a ruling at Monday’s bail hearing for a Parkman man arrested last week on firearms charges because she said both his attorney and the prosecutor failed to make a compelling case.
U.S. Magistrate Judge Margaret Kravchuck called the government’s evidence against Michael J. DeMaria “weak,” but she also said the man’s attorney did not provide her with viable bail conditions that might help protect the public.
Kravchuk told defense attorney Stephen Smith and Assistant U.S. Attorney Todd Lowell that she would issue her decision in writing later this week.
DeMaria, 43, of Parkman was arrested early last week by heavily armed FBI agents and state police as he prepared to attend a divorce hearing in Dover-Foxcroft. He has been charged with two counts of illegal possession of firearms, one for being an unlawful user of a controlled substance and the other for being subject to a protection from abuse order. If convicted, DeMaria could receive up to 10 years in prison and a $250,000 fine on each count.
Lowell made the case Monday that DeMaria should be held without bail as he awaits resolution of the changes because the man poses a risk of flight and could be dangerous to others.
According to court documents, relatives told police that DeMaria is obsessed with training to fight against the government and had motion sensors and monitors placed throughout his property on Lander Road in Parkman. Relatives further claimed DeMaria was obsessed with firearms, that he carried a gun with him at all times and that he buried “go bags” containing firearms, food, and other survival supplies at strategic locations on his property.
Authorities had been keeping an eye on DeMaria since December, when his wife told police he threatened to kill her and the couple’s son. The wife obtained a temporary protection from abuse order, which required, among other things, that DeMaria vacate the home and turn over his firearms. At that time, several firearms were seized and thousands of rounds of ammunition were found.
On Jan. 1, a search warrant was executed at DeMaria’s home by state and local authorities in search of bombs and bomb-making materials. No explosives were found, but officials did discover two guns in wall safes hidden in a bathroom, which was a violation of his protection order.
DeMaria has no criminal history other than the violation of a protective order, and Smith said his client’s affinity for weapons should not be a factor in determining bail. Smith also said DeMaria’s messy divorce has complicated the case against him.
“The [government] wants to paint him as some sort of homegrown domestic terrorist,” Smith said, adding that DeMaria’s cache of weapons would be perfectly legal if not for the protection order.
Kravchuk agreed that DeMaria should not be detained simply because he has a history of gun ownership and she also agreed that the arrest affidavit contains allegations mostly from family members of DeMaria.
But the judge also said it would be hard for her to release DeMaria on bail given that there is no third party custodian who could ensure he met bail conditions.
