By Doug Fletcher,Staff Writer

AUBURN – Less than a week after jurors found Brandon Thongsavanh guilty of murder, his lawyer has called for a new trial claiming the judge left out a key passage in her charge to the jury.

Defense attorney David Van Dyke has filed a motion with the Androscoggin County Superior Court seeking a third trial for Thongsavanh. He says jurors should have been told they could find Thongsavanh guilty of manslaughter instead of murder.

If a new trial is granted, this would be the third for Thongsavanh.

Van Dyke says the manslaughter option was included in an agreed-upon jury charge, but the judge skipped over it in her instructions to the jury.

“This issue is a 600-pound gorilla,” Van Dyke said Wednesday.

Deputy Attorney General Bill Stokes, who heads the criminal division, said Wednesday his office is aware of the appeal, but would have no comment. He said the motion wasn’t unusual or unexpected. Stokes said his office will file the appropriate motions and comments in court.

Thongsavanh has twice been found guilty of stabbing Bates College senior Morgan McDuffee to death early on the morning of March 3, 2002.

In the most recent trial – it ended last Thursday – jurors convicted Thongsavanh of murder after deliberating for nearly 14 hours over three days.

Van Dyke, however, contends that jurors should have been told they had the option of finding Thongsavanh guilty of criminally negligent manslaughter.

A manslaughter conviction would typically draw a sentence of 30 years. Prosecutor Lisa Marchese, an assistant attorney general, has said she intends to ask for a sentence of at least 58 years. That’s the term Thongsavanh was sentenced to after his first trial in 2003.

The Maine Supreme Judicial Court tossed out that conviction last year, ruling that jurors were prejudiced by repeated references to a vulgar T-shirt that witnesses said Thongsavanh was wearing the night McDuffee was killed.

During the three-week trial that ended last week, Justice Ellen Gorman limited descriptions of the shirt to avoid prejudicing the jury.

In his motion for a new trial, Van Dyke noted that co-counsel Scott Lynch had specifically asked for a jury instruction that included the possibility that jurors could find Thongsavanh guilty of manslaughter instead of murder.

The motion notes that such an instruction was included at the first trial, and that it appeared in italics in a written second draft of instructions that Gorman had handed to lawyers on the morning of Oct. 18. That’s the day jurors were charged and told to begin their deliberations.

Van Dyke’s motion also said Gorman instructed jurors regarding the legalities of “depraved indifference murder.” The lawyer wrote that that particular instruction calls for the jury to be told they could also consider manslaughter and be instructed on that charge. He cited legal rules of procedure in that aspect of the motion.

“It’s as if she told jurors half the law – the half that was favorable to the state,” said Van Dyke.

Van Dyke said he expects Marchese to argue against Gorman’s granting a new trial based on the alleged oversight.

Gorman has scheduled Thongsavanh’s sentencing for 9 a.m. Monday, Nov. 21. She is expected to hear arguments on Van Dyke’s motion before the sentencing. If Gorman denies the motion, Van Dyke said that would become grounds for an appeal to the Maine Supreme Judicial Court.

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