Bartolo Ford of Lisbon is seated with his lawyers, Jamesa Drake and David Bobrow, in Androscoggin County Superior Court during a hearing on Ford’s petition for post-conviction review.
AUBURN — A local criminal defense attorney testified Friday that his legal strategy would have differed from that of the lawyer who represented a Lisbon man who was convicted at trial in 2010 of aggravated attempted murder of a police officer and other related crimes.
Leonard Sharon, who has practiced criminal law in Maine and Pennsylvania for nearly 50 years, pointed to several aspects of the trial of Bartolo Ford at which he likely would have adopted a different approach.
In those aspects, Sharon said, “ineffective assistance of counsel was provided.”
Ford is seeking a new trial, an appeal to the state’s highest court or a plea agreement offered by prosecutors before trial.
Sharon was the only witness called Friday by Ford’s new attorneys. His post-conviction review hearing began a day earlier when he took the witness stand, along with his wife and Darrick Banda, one of his trial attorneys.
His lead trial attorney, Daniel Lilley, died in March.
Sharon, who was presented Friday as one of Maine’s top trial attorneys, said Lilley was wrong to tell Ford he couldn’t testify at his trial.
Ford said Thursday in Androscoggin County Superior Court that he told Lilley he wanted to speak to the jury so they would “know what I went through” as a war veteran who served with the U.S. Army Reserves in Saudi Arabia, Kuwait and Iraq during Operation Desert Storm.
Lilley told him flatly that he wouldn’t be testifying.
Sharon said that decision doesn’t lie with the attorney.
“It’s his right to make that decision whether or not I believe it’s in his best interest,” Sharon said.
He said he would have discussed the pros and cons of putting the defendant on the stand then make a recommendation. If the defendant insisted on testifying against the attorney’s advice, Sharon said he would put that on the record in order to avoid the kind of post-conviction hearing at which Sharon found himself testifying on Friday. If Ford were going to possibly testify, Sharon said he would be preparing him for that as he would any potential witness.
Ford, who was charged with stealing cement well tiles, said he had receipts that would have shown he wasn’t stealing them shortly before a high-speed chase with police ensued.
Sharon said that information may have influenced the jury’s thinking about the charges that stemmed from that chase.
Ford said he was offered a plea deal of aggravated criminal mischief by then-Deputy District Attorney Craig Turner, who prosecuted the case. That plea would have capped Ford’s incarceration at three years and could have limited his time behind bars to less than a year in Androscoggin County Jail instead of state prison.
Banda testified that he strongly urged Ford to accept that plea offer. Lilley also had recommended Ford take the plea deal during an office visit. Ford had agreed. But the next day, Lilley had called him to say he changed his mind and believed Ford would be acquitted if they were to take the case to trial. He followed his new recommendation with a reminder that he would need a $25,000 check to cover Lilley’s trial fee.
When asked about that sequence of events, Sharon expressed concern.
Lilley’s interactions with Ford regarding the plea offer “were improperly handled, ineffectively handled,” Sharon said. “I would have put on the record the discussions and why I believed my client’s refusal to accept the plea was voluntary, knowing and intelligent.”
Sharon said he also was troubled by Lilley’s directive to Ford that he not take the plea offer. Sharon said there was nothing in the file in that case to show Lilley had new information from an investigation that would explain why he changed his mind about recommending whether Ford should take the plea or go to trial.
“It seemed that the advice given was not based on the weighing of any strength of the evidence,” Sharon said.
After meeting with Ford and his wife at Lilley’s office where he and Banda had urged Ford to accept the plea, Lilley had suddenly confronted Banda, he testified on Thursday. Lilley appeared to be questioning Banda’s conclusions about medical reports concerning Ford that Banda had reviewed in the case.
Sharon said it appeared that Lilley had not educated himself adequately on the issue of post traumatic stress disorder, around which the defense strategy appeared to center. The expert testimony presented by the defense at trial didn’t support the notion that a person suffering from an episode of PTSD could have lucid moments where he recognized his actual situation and surroundings while lapsing into delusions of being in a war zone.
Ford had said he suffered from PTSD and at the time of the chase was having a flashback to his tour in Iraq. He said his condition was aggravated by a recent change in his prescription medication and by the sleep drug Ambien, which he had taken that night. Ford said he had no memory of the chase except for bits and pieces.
Sharon said he has a working knowledge of the disorder from his representation of veterans of the Vietnam War who suffered from PTSD.
He said Ford’s expert witness at trial, Dr. John Dorn, who was also his treating psychologist, had been unable to answer questions about sufferers from PTSD having moments of lucidity during an incident in which flashbacks of war are triggered. He apparently hadn’t been properly prepared for trial, Sharon said.
Asked whether Ford’s expert witness hit the baseball out of the park during his key testimony, Sharon said: “At best, it hit the wall.”
Ford intended to call as a witness on Friday Dr. Andrew Tick, an author and psychotherapist who has been working with veterans for decades. Tick was ill and couldn’t attend the hearing. Tick’s opinion is that it’s possible to be under PTSD and still perceive reality certain parts of the time, Sharon said. Lilley should have worked with Dr. John Dorn, his trial witness, to get him to convey that information to the jury. If he couldn’t, then Lilley should have tried to get an expert witness, such as Dr. Tick, to testify instead.
Sharon said he would have sought to have the trial judge instruct the jury on self-defense, especially when Lilley suggested that Ford used the truck he was driving as a weapon when he rammed a police cruiser with it at one point during a high-speed chase.
Active-Retired Justice Donald Marden, who presided over this week’s post-conviction review and served as trial judge, wondered aloud whether it would have been wise to suggest to the jury that Ford couldn’t have intended to murder a police officer because he was suffering from an abnormal condition of mind and was therefore unable to form intent, but still able to intend to defend himself by using his truck as a weapon.
“Aren’t they contradictory?” he asked Sharon.
“Yes, they could be,” Sharon said. But Ford may have formed the intent to defend himself during his lucid periods the night of the incident, he said.
Assistant District Attorney Patricia Reynolds Regan, who cross-examined Sharon on Friday, pointed out that Banda had spoken to a noted Maine psychologist months before trial to see whether he might testify for the defense, but that expert concluded after reviewing psychological tests that he wouldn’t be helpful as a defense witness.
Regan asked Sharon whether he was aware what Ford’s wife told medical personnel at Central Maine Medical Center in Lewiston on the night of the Ford’s arrest after the chase. She said her husband had told her there was another man in the vehicle with him who was holding a gun to his head and pressing on the gas pedal, according to a report Regan had Sharon read aloud in the courtroom.
“He said he did not know who was going to kill him first, the man in the car or the police,” Sharon read.
He next read from a report by Poland Rescue, which was at the scene that night when Ford was captured.
“Patient states he was kidnapped and shot during the incident,” Sharon read.
She asked whether Sharon would have had concerns about putting Ford on the witness stand.
“Absolutely,” he said.
Regan asked whether Sharon was aware that Ford had been hospitalized four times by the military, but none for PTSD.
She asked Sharon whether it was uncommon for a defendant to accept a plea offer right up to the first day of trial.
He said it wasn’t.
Ford was convicted at trial 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 related to 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.
The high-speed chase began on the night of Sept. 15, 2008, when Ford was spotted taking two 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 at a bridge on Hotel Road, one of the cylinders fell off and shattered in the road, puncturing the tire of the cruiser driven by officer David Madore and disabling the car.
A second officer, Cpl. Kristopher Bouchard, took up the chase. Ford stopped for Bouchard, then rammed his cruiser twice, disabling it. Bouchard fired four shots through the door of the truck, hitting Ford in the hip.
Officer Matthew Johnson then took up the chase. He caught up to Ford in Poland, at the entrance to the Poland Spring bottling plant. Ford stopped, then rammed Johnson’s cruiser head-on after turning his truck around.
Video footage from Johnson’s dashboard camera was played for the jury during Ford’s August trial. On the tape, Johnson was heard shouting, “He’s trying to kill me!”
At the intersection of Routes 26 and 121, Auburn Deputy Chief Jason Moen took up the chase in an unmarked cruiser. When Moen switched on his flashing blue lights, Ford stopped, then chased Moen’s car and fled to a dead-end road. Ford abandoned his truck in a stream and fled on foot into the woods. He later surrendered to a Maine State Police trooper on Route 26.