CARIBOU, Maine — The Maine Supreme Judicial Court has ruled that a lower court must reconsider a 2011 case in which a Sinclair man was found guilty of unlawful sexual contact for molesting a 6-year-old girl.
The defendant, Mark J. Theriault, is seeking a new trial.
Chief Justice Leigh Saufley wrote the majority opinion in the 43-page decision and Justice Donald Alexander wrote the lone dissenting opinion.
Aroostook County Superior Court Justice E. Allen Hunter sentenced Theriault to 16 years in prison with all but eight years suspended after Theriault was found guilty during a jury trial in 2011.
According to court testimony, Theriault built up a relationship with members of the victim’s family and would sometimes baby-sit their children and keep them overnight. On the afternoon the alleged molestation occurred, Theriault took the 6-year-old to his home, where he told her she needed to take a bath. He left her alone in the bathroom while she did so, but after she dressed, he made her lie down on the bed and molested her, according to court documents. It was only after the girl pleaded to go home that he stopped and took her back to her family’s residence, according to testimony offered by the victim in the trial. When she got home, her older sister asked her why her hair was wet. The girl told her sister and other family members about being victimized. The police were called and she was taken to the hospital for an examination.
After he was convicted by a jury and sentenced, Theriault switched lawyers and appealed to superior court, arguing that he had been denied effective counsel by his previous attorney, Allen Hanson of Caribou.
Theriault appealed his case before Hunter in August 2012, alleging that Hanson failed to provide effective representation during the pretrial and trial proceedings. A trial on the post-conviction petition was held in September 2013, at which Hanson and Theriault both testified. On March 11, 2014, Hunter issued a written decision denying the petition.
Hunter ruled that in order for the defendant to prove his case of ineffective counsel, he also needed to demonstrate that the outcome of the trial “would have been different but for counsel’s performance.”
Hunter stated among other things that Theriault failed to prove that Hanson’s failure to hire a private investigator, consult with an expert on child interview issues or to have Theriault testify on his own behalf would have produced a different outcome at trial.
Theriault also had argued that his attorney had failed to point out that the victim testified she had been playing a game on a PlayStation the day of the alleged incident and that there was no such video gaming system at the defendant’s home.
Hunter ruled that because the jury accepted the victim’s testimony despite other contradictory statements about the incident itself, evidence that Theriault did not have a PlayStation was not “likely to have produced a different result.”
A majority of the state supreme court justices, however, decided that Hunter did not fully apply the standards outlined in the U.S. Supreme Court case of Strickland v. Washington in determining whether Theriault’s right to a fair trial had been violated by his counsel’s inadequate performance.
Saufley noted that in analyzing Theriault’s claim Hunter did not apply that part of the Strickland test which requires the court to determine if there is a “reasonable probability” that counsel’s ineffectiveness “rose to the level of compromising the reliability of the conviction and undermining confidence in it.”
At the same time, Saufley said the supreme court justices recognized that application of the reasonable probability test would “alter the merit of an ineffectiveness claim only in the rarest case.”
Nevertheless, the supreme court majority vacated the appeal ruling and sent the case back to Hunter to review and reconsider based on the Strickland standards.
Justice Donald Alexander in his dissent, however, strongly disagreed, saying, “The post-conviction record in this appeal reveals a too common, shotgun-style approach to post-conviction advocacy.”
Alexander wrote that he believed that Hanson had done a number of things to prove himself effective at trial, and that “Theriault has failed to demonstrate either incompetence of counsel or prejudice entitling him to post-conviction relief.”
Aroostook County District Attorney Todd Collins argued the case for the state before the supreme court.
“The ruling asks Justice Hunter to go back and analyze the facts and issue a new order,” he said. “After that, we go from there. [Theriault] remains in jail.”
Richard Hartley, the Bangor attorney representing Theriault, said his client is seeking a new trial, and he is waiting to receive the new order from Hunter.