Earlier this month, the district attorney’s office for Somerset County dropped drug trafficking charges against a defendant before a judge could consider whether the office had defied a court order to hand over evidence.
The office of Maeghan Maloney, the district attorney for both Somerset and Kennebec counties, dropped a more than year-old case against Derek Sicard, 33, of Ludlow, Massachusetts, writing in court documents that it did so because Sicard had been arrested as part of a drug bust in Connecticut in late November.
But Sicard’s attorney, Julia Lodsin, said she doesn’t believe that the case was dropped because of charges filed in another state. A former prosecutor, Lodsin believes that the charges were dropped to prevent a judge from ruling, for a second time in this case, that the prosecution had violated the rules of discovery, or the process by which the prosecution shares its evidence with the defense.
“My opinion is they dismissed to avoid the court order coming out,” Lodsin said.
In September, Somerset District Court Judge Erika Bristol ruled Somerset County prosecutors had acted in “bad faith” after they failed to turn over evidence to Sicard and his attorney.
In her ruling, Bristol excluded crime lab evidence from the case and ordered prosecutors to hand over the outstanding evidence — including police reports, witness statements and data from electronic devices — by Sept. 24 or have that evidence also excluded from the case.
“The state’s unreasonable and lengthy delay, lack of sufficient response, and casual approach to their discovery obligation in this case cannot be condoned,” Bristol ruled.
Despite the court order, the prosecution never turned over the evidence, Lodsin said. On Nov. 20, Lodsin filed a motion seeking a second discovery violation and dismissal of the case. She had emailed prosecutors twice in October asking whether the state intended to hand over the required evidence but never got a response, she wrote.
Instead of gathering and turning over the evidence, Maloney’s office filed a motion with the court on Nov. 20 asking Bristol to reconsider her “bad faith” finding.
Assistant District Attorney Jonathan Provisor wrote that prosecutors had been negligent but that Maine’s high court held that a finding of “bad faith requires more than negligence.”
Bristol denied the motion on Dec. 1.
The prosecution dropped all charges against Sicard on Dec. 4.
Judges in three recent cases have ruled that Maloney’s office has committed discovery violations, the legal term for failing to turn over evidence to the defense in criminal cases.
After a violation has been found, courts remedy the violation with sanctions, which can include delaying the case, excluding evidence at trial or even dismissing charges.
For instance, Superior Court Justice Robert Mullen dismissed drug trafficking charges last month in a separate Somerset County case after prosecutors in Maloney’s office failed to turn over evidence, including records related to a seized cell phone and drug test results.
The Maine Supreme Judicial Court also heard oral arguments in October in an appeal of a criminal case involving a discovery violation by Maloney’s office that a lower court judge had called “completely unacceptable.” The appeal is still pending.
Discovery violations are not tracked by the courts, so it’s unclear how frequently they occur statewide or in other prosecutorial districts.
Together, the discovery violations and dismissed charges raise questions about whether Somerset County prosecutors’ failure to provide evidence to the defense is violating the rights of defendants, and, in doing so, preventing the office from getting convictions in cases involving serious drug charges.
In response to questions about her office’s failure to hand over the discovery in the Sicard case, Maloney said that her office “has given defense counsel everything in our file.”
“The DA’s Office can ask an outside agency for additional information, but it cannot force the outside agency to comply. Defense counsel wants information not in the DA file. The Maine Health and Environmental Testing Laboratory currently has only one chemist for the entire State of Maine which is not sufficient to handle all of the drug cases in our state,” Maloney wrote.
She went on to explain that her office dropped the charges against Sicard “to enable the Connecticut case to proceed without interruption and in order to keep him in custody in Connecticut.”
She noted that Sicard is “being held on a one million dollar cash bond in Connecticut on charges which typically receive a higher penalty from the Connecticut Court than he would receive on the Maine charges.”
The charges Maloney’s office dropped against Sicard were six counts of aggravated trafficking in scheduled drugs, which are class A crimes — the most serious under Maine law. Each charge carried a maximum sentence of 30 years in prison.
In Connecticut, Sicard is currently facing two misdemeanors and three felonies, including operation of a drug factory, criminal possession of a pistol and revolver, and risk of injury to a child. The two most serious charges are Class C felonies, which carry a maximum penalty of 10 years in prison. (Connecticut divides crimes into felony and misdemeanor categories; Maine does not.)
It’s unclear if more serious charges will be filed against Sicard in the Connecticut case. Neither the case’s prosecutor nor Sicard’s public defender returned messages seeking comment.
A former prosecutor in Maloney’s office, Sicard’s attorney, Lodsin, said that serious criminal charges rarely get dropped because of lesser charges in another state.
Sicard was arrested in Connecticut with another man, Jason Fogg, 34, of Enfield, Connecticut, who also has pending drug trafficking charges in Somerset County. Fogg faces more charges than Sicard in Connecticut — nine felonies to Sicard’s three — but Maloney’s office has not dropped its charges against Fogg, Lodsin pointed out.
Augusta-based attorney Darrick Banda recently took over Fogg’s representation in Maine. Banda said that the Connecticut charges provided a “convenient excuse” to dismiss the case against Sicard after the discovery violation hurt the prosecution’s case.
“They dismissed it because they have egg on their face with this discovery violation,” Banda said. “People have charges out of state all the time, and they don’t give up so easily just because of that.”
Maloney said that her office was proceeding on Fogg’s case and not Sicard’s due to “factual differences I cannot discuss publicly.”
It’s not unusual for prosecutors to dismiss charges because a defendant is facing additional charges in another state, said University of Maine School of Law professor Jonathan Chapman, a former federal prosecutor. But typically the lesser charges are dropped.
Given that the more serious charges in Maine were dismissed, Chapman said it would seem that the Somerset County charges were dismissed because the case was “problematic.”
“There are any number of reasons why up here they are just perceiving the case to be problematic, not least, apparently, the discovery issue, and they’re just concluding that it’s not sensible to press on, especially when presumably there would be some form of justice happening in Connecticut,” Chapman said.
This story was originally published by The Maine Monitor, a nonprofit and nonpartisan news organization. To get regular coverage from the Monitor, sign up for a free Monitor newsletter here