Lisbon man argues for new trial

PORTLAND — A Lisbon man convicted of attempted murder of Auburn police argued through his lawyer Monday before the state’s highest court that he should be granted a new trial because his trial attorney had blocked him from testifying in his defense.

Bartolo Ford, 57, was convicted by a jury in 2010 of aggravated attempted murder and sentenced to 20 years in prison with all but nine years suspended, plus six years of probation. He also was sentenced on six other counts stemming from the chase, including aggravated criminal mischief, reckless conduct, eluding an officer and theft by unauthorized taking. He was sentenced to between six months and two years in jail for each of those crimes, all to be served concurrently with the longer prison sentence.

His convictions stem from a 2008 high-speed chase with Auburn police.

He lost his bid for a new trial last year when a judge denied his post-conviction petition to overturn all but one of his convictions on related criminal charges at his trial.

Justice Donald Marden, who listened to testimony during two days of hearings in Androscoggin County Superior Court in Auburn in 2017, vacated Ford’s theft conviction and ordered a “not guilty” verdict be entered in its place. All six of the remaining convictions were upheld by Marden in his February 2018 order.

In his petition, Ford had written that his trial attorney, Daniel Lilley, had been ineffective in his assistance because he: refused to let him testify in his defense; coerced him into rejecting a proposed plea agreement; failed to file a notice of appeal when Ford asked him to; and failed to fully investigate proposed evidence and expert witnesses.

Later, Ford added that Lilley had failed to request at trial an imperfect self-defense instruction by the judge to the jury.

Lilley died two years ago.

In arguing for Ford on Monday before the Maine Supreme Judicial Court, David Bobrow of Eliot said Lilley hadn’t given his client the option of testifying at trial and hadn’t prepared him for that possibility.

“At a certain point in the trial, Mr. Ford expressed his desire to testify and was told, unequivocally, by lead counsel in this matter, ‘There was no f—ing way you’re testifying.’ That is simply breathtaking on a case of this magnitude,” Bobrow told the Maine Supreme Judicial Court’s seven justices sitting as the law court.

The facts in the case were undisputed, Bobrow said. “The only issue before the jury was whether (Ford’s) mind was capable of forming the requisite mens rea to commit the act,” or had the necessary conscious understanding of the implications of his actions. “The only defense in that regard was abnormal condition of mind.”

Ford had been diagnosed with post-traumatic stress disorder from serving in the Persian Gulf War.

Bobrow said, “The fact that Mr. Ford was not given his right to testify in a matter where the only issue before the jury was his actual — his mind — not what others believed what was going on in his mind, but his mind, is simply breathtaking.”

Justices quizzed Bobrow about Justice Marden’s finding that Lilley should have allowed Ford to testify at trial that he hadn’t stolen well tiles in the back of the dump truck he was driving on the night of the police chase.

“The court concludes,” Marden had written in his decision, “that except for the defense on the theft charge, Mr. Ford received effective assistance of counsel in the defense of his criminal charges. Any deficiencies in counsel’s performance did not so prejudice Ford’s defense as to deprive him of a fair trial which result was reliable.”

But Bobrow argued otherwise.

“I think your argument is,” Justice Ellen Gorman said, “that the decision by Justice Marden has an effect on every conviction and that Justice Marden, even on this collateral appeal, should have vacated them all. Is that right?”

“That’s correct,” Bobrow said. Case law supports that view, he said.

Some justices questioned that reasoning. Ford could have provided evidence of receipts showing that he had purchased the well tiles that police believed had been stolen. That led to Marden’s dismissal of theft charge.

But Ford’s evidence that he hadn’t committed the more serious crimes for which he was charged was that “he was a kind and considerate person and that he wanted the jury to consider that as it related to the attempted murder charge and the other ones,” Justice Jeffrey Hjelm said.

“You seem to tie in the effect of Mr. Ford’s inability to testify about the fact that he was kind and considerate to his prospective directly exculpatory testimony on the theft,” he said.

Chief Justice Leigh Saufley said Marden made a mistake at Ford’s trial because he didn’t ask the defendant whether he wanted to testify at his trial. Instead Marden relied on Lilley’s experience in representing criminal defendants.

“We have an error,” she said. “The question here is what does that do to the fairness and justice of a case where you have a veteran who is apparently, indisputably suffering some experiences with PTSD, spent time in Kuwait that none of us could even imagine and responds very outlandishly to the officer’s effort to get him to stop. And what he says is, ‘I want to testify. I want to tell them that I never would have tried to kill someone.’ Why isn’t that just absolutely exculpatory evidence that should have been allowed?” she asked Androscoggin County Assistant District Attorney Patricia Mador.

Mador said evidence that Ford had suffered from PTSD at the time of the incident had been “fully fleshed out” in the testimony by psychological experts who testified at Ford’s trial.

At his post-conviction review hearing two years ago, Ford testified that he would have told the jury: “I’m not a thief and I’m a nice person.”

Justice Joseph Jabar said prosecutors at trial had argued Ford’s apparent theft of well tiles led to his criminal behavior that followed, including the more serious charges. But Marden concluded last year that Ford’s conviction on the well tiles theft should be dismissed, Jabar said. “So, how can you say that he wasn’t prejudiced when that was the very important part of the (prosecutors’) case related to state of mind?”

“The post-conviction court didn’t say he wasn’t a thief,” Mador said. “The post-conviction court said the evidence was insufficient to support that charge. There’s a big difference between those two concepts.”

Ford’s high-speed chase with local police began on the night of Sept. 15, 2008, when he was spotted taking two well tiles, or concrete cylinders, from a company on Minot Avenue. When confronted by a police officer, Ford fled in a dump truck. When the truck hit a bump, one of the cylinders fell off and shattered in the road, puncturing the tire of a local police cruiser.

When a second officer took up the chase, Ford rammed that cruiser twice, disabling it. That officer fired four shots through the door of the truck, hitting Ford in the hip. A third officer caught up to Ford in Poland. Ford stopped, then rammed that officer’s cruiser head-on after turning the truck around.

Ford eventually fled into woods after abandoning the truck in a stream, later surrendering to a Maine State Police trooper.

If the high court were to vacate Ford’s conviction, he could be retried on the charges.

Ford, who is free on probation, attended Monday’s hearing.

cwilliams@sunjournal.com