On April 12, a Sun Journal editorial urged the Maine Law Court to reject a request for a third trial for Brandon Thongsavanh. It, unfortunately, left a false impression of the true cause of this failure of justice.
At Thongsavanh’s first trial, the prosecution, the state’s Attorney General’s Office, intentionally chose to seriously prejudice the jury against him by repeatedly referring to the most offensive of offensive T-shirts that Thongsavanh was allegedly wearing at the time of the incident, thereby clearly denying him a fair trial. Had the prosecution not chosen to adopt this “win at all costs” approach, leaving out the highly prejudicial evidence, Thongsavanh would most likely have been found guilty fairly, and no second trial would have been granted. However, due to the prosecution’s actions, he was, rightly, granted a second trial.
During both trials, the state charged Thongsavanh with deliberate indifference murder, one of three types of murder, which according to Maine state law requires (is not optional) that the jury be given the option of finding the defendant guilty of manslaughter when deliberating. In fact, that option was given to the jury in Thongsavanh’s first trial.
When the defense attorneys raised this issue at the second trial, the prosecution objected, arguing that the evidence had not generated the manslaughter option, much like the arguments set forth by the Sun Journal in the April 12 editorial. However, the law is clear: When deliberate indifference is charged by the prosecution, manslaughter must be given as an option to the jury, no exceptions.
Recognizing that not providing the option to the jury would create another very significant likelihood of yet a third trial, the prosecution should not have objected to the clear legal mandate of the Legislature, again denying Thongsavanh a fair trial. As with the first trial, had the proper instruction been given, it is likely that he would have been found guilty of murder and there would be very little chance of another trial.
While everyone would agree that putting the family of Morgan McDuffee through multiple trials is devastating for the family, it is not Thongsavanh’s defense attorneys, the system itself, or Thongsavanh that are responsible. Defendants are entitled to fair trials and prosecutors are obligated by law to ensure that they receive fair trials. Multiple trials can often be avoided when prosecutors do not lose sight of this basic right.
While Thongsavanh will likely be denied another trial for many of the reasons set forth in the editorial, we should look more closely at the true reason for this failure of justice for Thongsavanh and the McDuffee family.
Verne Paradie Jr. of Auburn is an attorney with Trafton and Matzen