AUBURN – Brandon Thongsavanh’s lawyers Thursday called the 2002 fatal stabbing of a Bates College senior “garden variety” and “plain vanilla,” shocking and angering the victim’s family.
David Van Dyke used the offending modifiers during courtroom arguments for a lighter sentence for his client. Thongsavanh got 58 years for the murder conviction. It was the second time the same judge had imposed that sentence on the defendant, whose repeat trial last fall resulted again in a guilty verdict.
Thongsavanh, 23, would be 78 after serving his full sentence. He has been in jail since his arrest in March 2002 and will be credited for time served.
Van Dyke used the adjectives to explain that the crime lacked heinous aspects – such as rape, premeditation, torture or multiple victims – that would justify such a long sentence.
Regis McDuffee, father of stabbing victim Morgan McDuffee, said outside the courthouse that he and his family were offended and sickened by the reference to downplay his son’s slaying.
“A garden variety murder?’ I don’t know what that means. A plain vanilla murder?’ I have absolutely no idea what that means,” he said. “But I can tell you that I almost threw up when I heard it. I will remain offended for as long as I live.”
Van Dyke and co-counsel Scott Lynch appealed Thongsavanh’s conviction and sentence shortly after Androscoggin County Superior Court Justice Ellen Gorman handed down the sentence. Earlier in the courtroom, she rejected Thongsavanh’s motion for a new trial.
Lynch said the verdict should be thrown out because:
• the phrase “depraved indifference” is not defined in the law and is therefore unconstitutional, and
• the lesser charge of “negligent criminal manslaughter” should have been offered to the jury as an optional verdict.
Assistant Attorney General Lisa Marchese asked the judge to dismiss the motion to retry Thongsavanh. She said there must be a “rational basis” for offering the jury an alternative verdict. The evidence didn’t support such a charge, she said, noting the victim was stabbed five times.
Gorman agreed.
In a review of similar cases, Van Dyke and Lynch said they found the 58 years imposed on Thongsavanh “was far more severe than is warranted.” Van Dyke said the harsh sentence reflected a social bias against Thongsavanh, whom he called “devalued.”
Gorman also rejected the defense team’s efforts to shorten the time Thongsavanh must now serve.
After reading testimony from health and corrections officials, including one who called the defendant a “sociopath,” Gorman responded to Van Dyke’s assertion.
“I have not lost sight of Mr. Thongsavanh’s humanity. I do not see Mr. Thongsavanh as a series of tattoos,” she said. But, she added: “I do see him as a danger to my community and to my state.” She also said he has shown no remorse.
Asked if he wanted to speak, Thongsavanh declined. Van Dyke explained he advised his client not to comment pending appeal of his conviction.
Members of both families testified before the sentencing.
McDuffee’s parents, brother, fiancee and lacrosse coach called the murder a senseless act that took their loved one away forever.
“It’s been a nightmare, which there’s no return from,” said his mother, Lisa Freeman.
Thongsavanh’s father said he raised his son the best he could and taught him right from wrong. He apologized to McDuffee’s family.
“I believe he was in the wrong fight at the wrong time,” Thoune Thongsavanh said.
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