The Maine Attorney General’s Office is withholding an amended autopsy report Maine’s chief medical examiner filed at a judge’s request after he upended a murder case last month when he changed his findings.

Dr. Mark Flomenbaum was a key witness in the trial of Noah Gaston, who is charged with murder in the shooting death of his wife in Windham three years ago. But on the morning of his scheduled testimony, Flomenbaum changed his opinion about the angle of the fatal shot, a critical detail that could indicate how close the gunman was to the victim.

The medical examiner’s new conclusion prompted a mistrial and baffled legal experts. Superior Court Justice Michaela Murphy gave Flomenbaum 30 days to explain the basis for his earlier opinion and the reason for the change. Both sides have confirmed the medical examiner filed that report last week. But the attorneys have denied requests for a copy, saying it is confidential discovery material.  Court administrators said the report was provided only to the parties in the case and was not filed in the public court record. The original autopsy report is part of the public court record.

Chief medical examiner Mark Flomenbaum

“I’m assuming that this information is going to come out at trial,” defense attorney Robert Andrews said.

Andrews would not discuss the contents of the report. But he said it did not answer his questions about why Flomenbaum changed his findings, and he wants to depose the medical examiner.

“There has to be some explanation,” Andrews said. “We can’t delay the demand for justice for defendants and for victims because of the whims of state actors. There might be an innocent explanation, but there still has to be one.”

Elaine Clark, the spokeswoman for the court system, said the report could still come into the public court record – for example, as an exhibit attached to a future motion. The case file has been with the judge and unavailable at the Cumberland County Courthouse since the mistrial.

It was not clear Monday whether Murphy had seen the report. A spokesman for the Maine Attorney General’s Office said discovery material is typically turned over to the defense team, but not the judge. The office denied a request for the report under Maine’s Freedom of Access Act by citing exemptions for investigative and prejudicial materials.

But attorney Sigmund Schutz said the court has many tools to select an impartial jury, such as the ability to individually question potential jurors, and there is a public interest that should warrant the report being released.

“I think this goes to the public’s confidence in the fairness of our criminal justice system and the performance of an incredibly important public official,” said Schutz, a board member of the New England First Amendment Coalition and an attorney who represents the Portland Press Herald in public records cases.

The rare turn of events put new scrutiny on Flomenbaum, who was hired in Maine in 2013 as deputy medical examiner. A year later he succeeded Dr. Margaret Greenwald in the office’s top post. In 2017, the last year for which budget information was available, Flomenbaum’s state salary and benefits was nearly $260,000. At a lawmaker’s request, the Attorney General’s Office recently launched an internal review of Flomenbaum’s credibility and his side business as an expert witness in other states.

Alicia Gaston, 34, died from a single shot from a shotgun in the stairwell of the family’s Windham home on Jan. 14, 2016. Her husband has said he thought she was an intruder when he fired the gun, but prosecutors have argued that he intended to kill her. Gaston, 36, is charged with murder and manslaughter. He has been held without bail at the Cumberland County Jail since he was arrested more than three years ago, and he will remain in custody.

His trial began last month with opening arguments and emotional testimony, but the judge unexpectedly paused testimony on the second day and granted the mistrial later in the week. A new trial has been tentatively scheduled for November.

Megan Gray can be contacted at 791-6327 or at:

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Twitter: mainemegan

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CORRECTION: This story was updated at 5:40 p.m. on March 19, 2019, to correct who is withholding a new autopsy report in this murder case.

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