PORTLAND, Maine — The Maine Supreme Judicial Court on Tuesday unanimously rejected a convicted sex offender’s contention that he did not receive a fair trial because police lost the tape of an interview with the victim made in 1996 when she was a teenager.
Clarence Cote, 66, of Nemaha, Nebraska, was convicted in January 2014 of sexually assaulting his niece in 1990. He was sentenced two months later to 10 years in prison with all but five years suspended, followed by six years of probation, on two counts of gross sexual assault.
The crime was reported to police in 1994 after Cote had moved out of state. He was arrested Dec. 14, 2012, in Nebraska on a warrant issued after the girl was interviewed.
Cote was held at the Penobscot County Jail while awaiting trial and sentencing. Because that time was applied to his sentence, Cote is due to be released from the Maine State Prison at the end of December 2016.
Cote’s attorney, Stephen Smith of Augusta, appealed the conviction last year. Justices heard oral arguments in April in Portland.
The tape would have shown the girl talked to police about sexual touching but not the kinds of sexual assault she described as an adult at the trial, Smith told the justices.
“The recording addressed important inconsistencies in the complaining witness’s version of the offense,” he wrote in his brief. “Notwithstanding the lack of a statute of limitations, it is unfair and violative of due process to the defendant to allow conviction where the police lost vital evidence.”
The justices disagreed in a 13-page decision written by Justice Jeffrey Hjelm. He said that there were three reasons why the loss of the tape did not violate Cote’s right to a fair trial. The first was that the victim and the police officer who taped the interview were able to testify at the trial and the officer’s written report about the interview survived.
“There were two other factors that support the conclusion that the delay has not prejudiced Cote,” Hjelm wrote. “First, there is the prospect that the recording would have worked to Cote’s disadvantage by allowing the jury to hear an account of the assault in a child victim’s voice.
“Second, because the disappearance of the recording while in the state’s custody was disclosed to the jury, its absence was actually beneficial to Cote because it allowed him to argue to the jury that the state’s evidence was uncertain and unreliable due to the passage of time,” the judge said.
Penobscot County District Attorney R. Christopher Almy said Tuesday that he was pleased with the decision and happy for the victim.
“She kept this case alive for 20 years and prodded us to hold our ground,” he said in an email. “Her letter to the governor when she was only a teenager prompted the state police to reinvestigate.”
In 1996, the victim penned a letter to then-Gov. Angus King asking him to help her “get justice,” according to a previously published report. King forwarded the letter to the Maine State Police, but they were unable to locate Cote, who had moved from Arizona, the last address family members had for him, to Nebraska.
Smith criticized the high court’s decision in an email Tuesday afternoon.
“This ruling invites prosecutors and police to delay cases they would have difficulty proving otherwise,” he said. “It is difficult enough for people to defend themselves against charges of sexual assault when the evidence is fresh; now that it is permissible to misplace evidence, it will be even harder.”
To reach a sexual assault advocate, call the Statewide Sexual Assault Crisis and Support Line at 800-871-7741, TTY 888-458-5599. This free and confidential 24-hour service is accessible from anywhere in Maine. Calls are automatically routed to the closest sexual violence service provider.