DOVER-FOXCROFT, Maine — Piscatatquis County District Attorney R. Christopher Almy didn’t wait for the judge to declare a mistrial before he decided to retry Wendy Farley for allegedly trying to hire a hit man to kill her husband of nearly 30 years.
“I’m confident a new trial is justified,” Almy told reporters when the jury sent out the first note saying they were deadlocked. “The audio tape was so clear in demonstrating her wish to have her husband killed.”
Superior Court Justice William Anderson declared a mistrial about 9:30 p.m. Friday, March 21, after jurors deliberated for more than six hours before telling the judge they could not reach a verdict for a second time. Judges are required to send jurors back to try again after saying they are deadlocked.
The trial of Wendy Farley, 48, began Thursday, March 20, at the Piscataquis County Courthouse. She was charged with one count of criminal solicitation, a Class A crime. She was accused of trying to hire a hit man, through Michael Anderson, 51, of Milo, known as “Mafia Mike,” in September 2012 to kill her husband.
“It was hard for me to tell exactly what they were thinking or whether it was one person or a group that thought she was not guilty,” Almy said Tuesday, reflecting on the trial.
Although there is no rule or law preventing Almy from asking jurors why they could not reach a verdict he said that he would not do so in this case or any other.
“I just generally don’t do that,” he said. “I’m not comfortable doing that. I think it’s an intrusion into the privacy of the juror deliberations and a juror may tell me something I do not want to know.”
Almy has been the top prosecutor in Penobscot and Piscatatquis counties since 1985 and was an assistant district attorney prior to that. He said after an arson trial in 1978, he learned that the state fire marshal, who testified, was distantly related to a juror. Almy said that he reported it to the judge, who held a hearing and ordered a new trial, which wasn’t a good use of court resources or taxpayer money.
“What I don’t know, I don’t have to tell a judge,” he said.
Not seeking out jurors does not mean that Almy doesn’t learn indirectly from community members how or why a jury was divided.
The court system does not track the number of trials that end in mistrials or how many cases end in plea agreements or retrials, Mary Ann Lynch said earlier this week. Neither does the software in the district attorneys’ offices around the state.
Almy, who prosecutes more serious crimes, said earlier this week that out of the six to 10 jury trials in Penobscot and Piscataquis counties each year in which he’s the prosecutor less than one a year ends in mistrial. Of those, he retries about 60 percent and reaches plea agreements with defense counsel in about 40 percent.
“The decision to retry a case is based on the strength of the evidence and, if we know the vote in the first trial, the likelihood of conviction,” he said last week.
The prosecutor said that he has no idea how many retrials he handles end in convictions or acquittals.
“Mistrials happen so infrequently that I can’t give a fair assessment of how many actually occur or how many defendants are convicted,” Almy said.
Defense attorney Peter Rodway of Portland said that the best clues to what jurors are thinking in deliberations can be found in the notes they send out to the judge. Lawyers see the notes in the judges chamber but they are not shown to the gallery during a trial. Judges sometimes paraphrase what is in notes.
“I think that they didn’t believe Mafia Mike and they were wondering whether they had to believe Mafia Mike to convict,” Rodway said Monday. “The question on the note [when jurors requested a readback of testimony] asked, ‘Does it matter who approached whom?’”
To find Farley guilty of solicitation, jurors had to agree that she did all of the following:
• Attempted to induce Anderson to commit murder either as a principal or as an accomplice.
• Intended to cause the crime to be committed.
• Believed it was probable that the crime would be committed.
Even if the jury found Farley was guilty of those elements of the crime, jurors could find her not guilty if she had backed out of the agreement or been entrapped by the police or an agent of the police into agreeing to it.
Jurors may send written questions to judges during deliberations but judges may not give specific answers that might sway them.
In the Farley trial, Justice Anderson referred jurors to his instructions, which they had a copy of in the jury room, and the evidence when they asked a question. A short time after sending out the question concerning who approached whom, jurors asked for a read back of the testimony of Chad Perkins, the Brownville police investigator who gave Michael Anderson a recorder.
Perkins testified that he asked Michael Anderson to record a conversation with Farley. The investigator said that he gave the cab driver some instructions about what kind of information he needed in order to charge Farley with solicitation.
A 39-minute recording between the cab driver and Farley was played during the trial. Jurors asked to hear it a second time late in their deliberations.
“They may have been looking at entrapment,” Rodway said. “Part of my cross [examination] was that he coached Mafia Mike in order get her to say what they needed her to say. But I don’t think that was the issue because of the way the question came out.”
Rodway and Almy both said they were not sure if they would be able to seat a second jury in Piscataquis County due to all the media coverage the trial received.
A new trial date has not been set.