PORTLAND — A Lewiston man filed a rare motion with the state’s highest court seeking a reversal of its decision earlier this month when it rejected his claim that the prosecutor at his murder trial unfairly prejudiced the jury by his alleged misconduct during closing argument.

Buddy Robinson, 34, is serving a 55-year sentence at Maine State Prison. He was convicted of murder in the 2011 beating and bathtub drowning of 22-year-old Christiana Fesmire, who had lived downstairs from Robinson’s Highland Avenue apartment in Lewiston.

Robinson’s trial attorney, Edward “Ted” Dilworth, wrote in his motion earlier this month that Robinson wasn’t granted a fair trial in 2014 at Androscoggin County Superior Court.

“This court found many instances of prosecutorial misconduct, but could not conclude the aggregate impact of the misconduct affected the jury’s verdict,” he wrote. “This is the incorrect standard.”

Dilworth wrote that the burden rested with the state to show that “it is highly probable that the jury’s determination of guilt was unaffected by” the alleged misconduct of former Assistant Attorney General Andrew Benson.

Dilworth hadn’t been able to object to Benson’s actions because Dilworth had his back turned to Benson at that time during his closing argument, he wrote.

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“Robinson’s argument, as the cumulative effect, should be considered preserved and the burden of proof should be switched to the state,” Dilworth wrote.

He wrote in his motion that it isn’t the responsibility of the trial judge to weigh the evidence or to determine who is credible.

“That is for the fact-finder,” he wrote.

One role of the trial judge is to determine whether the prosecution has presented the elements of the crime that was charged, Dilworth wrote.

Weighing the evidence and choosing to believe the credibility of witnesses is left up to the jury, Dilworth wrote.

Because the trial judge doesn’t participate in jury deliberations, that judge can’t be expected to determine what factors influenced jurors’ decisions in the conviction of a defendant, he wrote.

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If the court were to find prosecutorial misconduct existed, the analysis as to what level of misconduct “will be tolerated should be based on the amount of liberty one is at risk to have taken away, not the strength of the case,” Dilworth wrote.

Misconduct by a prosecutor at trial thwarts the notion that the trial process has been fair, jeopardizing law and order in society.

“To allow prosecutorial misconduct when a significant amount of one’s liberties may be taken away is not affording a defendant a right to fair trial nor is it letting society know the process is fair or certain,” Dilworth wrote in his motion.

On Feb. 2, the Maine Supreme Judicial Court upheld a ruling by Androscoggin County Superior Court Justice MaryGay Kennedy that denied Robinson a new trial.

Robinson’s appellate attorney, Adam Sherman, told the high court during oral arguments last year that then-Assistant Attorney General Benson had feigned sleep, mouthed nonverbal instructions and gestured to the jury during Dilworth’s closing argument at Robinson’s 2012 trial. Benson has since been appointed to serve as a Maine District Court judge.

Sherman said that prejudice created by Benson’s inappropriate behavior outweighed the evidence presented at trial and skewed the jury’s guilty verdict, entitling Robinson to a new trial.

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The Supreme Court released a unanimous opinion that Benson’s “misconduct” by feigning sleep in an effort to annoy the defense attorney didn’t affect the jury’s verdict, agreeing with Kennedy’s conclusion.

Supreme Court Associate Justice Jeffrey Hjelm, writing for the court, said, “Without question, that conduct was sophomoric, unprofessional and a poor reflection on the prosecutor’s office.” Yet, the question for the high court was whether the trial court judge made a mistake in concluding that Benson’s antics did not affect Robinson’s right to a fair trial.

“That conclusion was not erroneous,” Hjelm wrote.

In 2014, Kennedy denied Robinson’s motion for a new trial, finding Benson’s conduct had not caused “a harmful prejudicial error such that substantial justice has not been done.”

A Lewiston attorney, who was not connected to Robinson’s trial, had testified on appeal in Androscoggin County Superior Court that he witnessed Benson mouthing words and pointing during Dilworth’s closing arguments.

Jason Dionne testified that he had been sitting near the back of the courtroom at the end of the trial when he saw Benson lean back in his chair near the front of the courtroom, gesture with a hand pointing at Robinson and mouth the words, “He did” or “He did it.”

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Dionne said Benson was answering a question posed rhetorically to the jury by defense attorney Dilworth, who represented Robinson at trial. Dionne said Dilworth was asking which suspect would have known that the victim had been planning to attend a family reunion that was scheduled to occur shortly after she was killed.

Dilworth held a small wooden box that contained slips of paper during his closing arguments. He had written a question earlier on each slip regarding evidence and testimony presented during trial. Dilworth withdrew one slip at a time, posing questions designed to raise doubt about the state’s case.

Dilworth’s defense was to cast suspicion primarily on Robinson’s twin sister, Brandi, and draw attention away from the defendant.

Dionne had written in a sworn statement that he had “observed the lead prosecutor gesturing with his hands and mouthing favorable responses to each question in such a manner that the jurors could easily observe.”

Dilworth’s back was turned to Benson at the time, so he apparently was unaware of Benson’s behavior, Dionne wrote. He saw at least five jurors watching Benson as he mouthed the answer to Dilworth’s question, Dionne wrote.

In his appeal to the high court, Sherman also accused Benson of having made sarcastic statements that prosecutors never convict the right person — implying that they do, indeed, always get the right man — using the prestige of the Attorney General’s Office to leverage the jury into a decision not based on facts.

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Assistant Attorney General Donald Macomber told the high court last year that if justices accepted such an interpretation, they’d be acting on the presumed collective mind-sets of jurors.

Benson had testified during the trial court appeal that he had no recollection of making those statements or behaving in an inappropriate manner, mirroring the lower court’s conclusion that despite credible testimony to the contrary, it was just as likely the incident had never happened.

Two Maine State Police officers, who sat with Benson during the trial, testified at the trial court appeal that they didn’t observe any inappropriate conduct on Benson’s part.

In considering Dilworth’s latest motion, the Supreme Court can rule on it with no additional information or request additional information from Dilworth and, possibly, from the state, said Joel Biron, deputy clerk at the Maine Supreme Judicial Court. The high court also could schedule oral arguments on Dilworth’s motion.


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