High court gets appeal of verdict

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LEWISTON – The jury that last year convicted Brandon Thongsavanh of murdering a Bates College student should have been given the option of finding him guilty of criminally negligent manslaughter, defense lawyers wrote in court papers filed in Portland Friday.

That is one of three arguments Thongsavanh’s lawyers made in a lengthy brief to the Maine Supreme Judicial Court appealing his conviction of a charge of depraved-indifference murder. He also is appealing his 58-year sentence.

Thongsavanh, 23, of Auburn is at the Maine State Prison in Warren awaiting the outcome of his appeal.

He was tried twice for the crime. Both times, juries found him guilty.

His first conviction was overturned on appeal by the state’s high court. It agreed that references to the defendant’s T-shirt with a vulgar religious reference may have prejudiced the jury.

This time local lawyers David Van Dyke and Scott Lynch wrote that their client should be granted a new trial because:

• state law requires the jury be given the option of considering him guilty of criminally negligent manslaughter, a lesser offense;

• details in his case support the manslaughter charge; and

• the current state law defining depraved indifference murder is so vague that it’s unconstitutional.

They also wrote that their client should have gotten a shorter sentence because his crime lacked heinous elements – such as rape or torture – that were present in other murders with similar sentences.

This case falls in the “low- to medium-range of seriousness” for murders, the defense brief says, calling it “routine.” For that reason, his sentence should not have been more than 28 years, according to the brief.

Thongsavanh played no role in the events leading up to the 2002 street fight where police said he stabbed Morgan McDuffee five times, including once in the heart, the brief said. Thongsavanh only appeared at the murder scene out of “coincidence.”

At the time of his January sentencing, Androscoggin County Superior Court Justice Ellen Gorman explained her sentence, citing, among other factors, that Thongsavanh’s history and psychological profile suggested he would pose a danger to society.

As for his conviction appeal, prosecutors told Gorman the evidence didn’t support giving the jury the option of considering a lesser charge, noting the victim was stabbed five times.

The case has not been scheduled for a hearing, according to a clerk at the Maine Supreme Judicial Court.

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