PORTLAND – The state’s highest court has thrown out the conviction of a Lewiston man found guilty more than a year ago of murdering a Bates College student.

The Maine Supreme Judicial Court ruled Thursday that Brandon Thongsavanh, who has been serving a 58-year sentence for the murder of Morgan McDuffee, deserves a new trial.

The court based its ruling on the belief that jurors who convicted Thongsavanh in July 2003 could have been prejudiced by the state’s repeated reference to an inflammatory phrase on the T-shirt that witnesses said Thongsavanh was wearing on the night of the killing.

The phrase referred to Jesus as a four-letter derogatory term for vagina.

“There can be little doubt that disclosure of the phrase on Thongsavanh’s T-shirt presented an extremely high danger of unfair prejudice,” the state’s top justices wrote in their ruling. “It is, in fact, difficult to conceive of a more inflammatory and prejudicial expression than the one at issue here.”

The phrase on the T-shirt was a point of contention between the state prosecutor and Thongsavanh’s lawyer even before the trial.

Thongsavanh’s lawyer, William Maselli, attempted to keep the detail out of the trial by arguing that it would turn the jurors against Thongsavanh based on his character, not on his deeds.

“It makes the jury dislike the defendant on an issue that has nothing to do with the trial,” Maselli said Thursday.

But Assistant Attorney General Lisa Marchese convinced Superior Court Justice Ellen Gorman that it was relevant because it helped several witnesses place Thongsavanh at parties that took place before the street brawl that led to McDuffee’s death.

Marchese also argued that it was important evidence because it proved that Thongsavanh handed over a different shirt when police asked for the clothing he was wearing that night.

During a meeting before the start of the trial, Justice Gorman gave the state permission to refer to the T-shirt.

Marchese proceeded to mention it six times during the two-week trial, which was held at Androscoggin County Superior Court in Auburn.

“The state highlighted the literal phrase early in its opening statement, and went on to use or elicit it five more times in testimony,” the high court’s ruling states. “In these circumstances, the phrase’s admission was a fundamental injustice. When a jury begins a trial with a deep antipathy for the defendant, it is difficult to ensure a fair trial.”

Other problems

The Supreme Court justices didn’t buy the state’s defense that the detail was necessary. They pointed out that Thongsavanh never denied that he attended the earlier parties or that he gave police a different set of clothes.

Maselli also argued that Marchese should not have shown jurors a mug shot showing Thongsavanh with tattooed horns on his shaved head and that she should not have offered her personal opinion on his credibility and guilt in her opening statements.

But the Maine Supreme Judicial Court ignored these other issues, focusing only on the T-shirt.

“I raised a number of issues,” Maselli said. “So many things were missed at the trial. So I’m not surprised by the decision at all.”

State prosecutors were disappointed Thursday but ready to move forward, said Bill Stokes, the head of the criminal division for the Maine Attorney General’s Office.

“We always knew this was an issue,” Stokes said. “It’s time to learn from our mistakes and move on.”

Finding witnesses

A date and location for the second trial has not been set. According to Maselli, the first thing that will happen is that Thongsavanh will be sent back to Maine.

The 21-year-old father of two is currently serving his sentence at a maximum-security state prison in Arizona. He was sent there in May as part of a deal in which Maine agreed to exchange one of its high-risk prisoners for an Arizona inmate who was involved in a 15-day hostage standoff there.

The Arizona inmate was originally from Maine, and he demanded to be transferred here as part of the deal to set the hostages free. Prison officials referred to the swap with Thongsavanh as a fair trade.

Thongsavanh was never allowed out on bail, and that likely will not change.

But, Maselli said, he should be sent back to a Maine prison or jail as soon as possible to prepare for the second trial.

Both Stokes and Maselli acknowledged that it will be difficult to retry the case based on the large number of witnesses and passage of so much time.

McDuffee was stabbed to death in Lewiston in the early morning hours of March 3, 2002, while trying to break up a fight between three of his college lacrosse teammates and a group of local youths.

Although most of the people at the fight were either distracted or admittedly too drunk to identify Thongsavanh as the stabber, three local men testified at the first trial that they saw Thongsavanh fighting with McDuffee seconds before the victim fell to the ground with five stab wounds in his chest and back.

One of the witnesses recalled seeing a knife in Thongsavanh’s hand as he jabbed McDuffee’s chest.

The Attorney General’s Office now must begin the process of finding that witness and the others who testified during trial.

“Who knows who is even around,” Maselli said. “We’ll have to see how everything sorts out.”

Just the beginning’

As soon as Maselli heard about the ruling Thursday morning, he left a message with Thongsavanh’s parents, Thoune and Judy, at their home in Auburn.

A cook at Bates College for the past 18 years, Thoune Thongsavanh had already heard the news from his co-workers.

“I’m happy, but it’s just the beginning,” he said Thursday afternoon. “Maybe now the truth can come out.”

Thoune Thongsavanh said he hadn’t spoken to his son since he was transferred to Arizona, and he was sure he had no idea that his conviction had been overturned. The elder Thongsavanh planned to write his son a letter to tell him the news.

While hoping that the high court’s ruling would be the first step to his son’s freedom, Thoune Thongsavanh also spent Thursday thinking about McDuffee’s family.

“I hope they understand,” he said.

McDuffee’s mother and father could not be reached Thursday. His fiancee, Suzanna Andrew, said she did not want to say anything. A spokesman for Bates College also refrained from commenting.

“It would not be right for the college to comment on the judicial process,” said Bryan McNulty. “Our hearts go out to the families involved.”