AUGUSTA — Gov. Janet Mills issued what is believed to be Maine’s first posthumous pardon Tuesday, bringing closure to one of the most sordid episodes in the state’s legal history.

Donald Gellers

Mills granted a full pardon to Donald Gellers, the Passamaquoddy tribe’s first legal champion, who was the victim of a 1968 state-sponsored conspiracy organized by the Attorney General’s Office. The conspiracy ended his work exposing police brutality, civil rights violations and the looting of the tribe’s trust fund by state officials. Gellers died of cancer in 2014, a few months after his story was exposed as part of “Unsettled,” a 31-part series in the Portland Press Herald on the Passamaquoddy tribe’s struggle for self-determination.

“Many have long claimed that a motivation to arrest Mr. Gellers was not just to enforce the state’s criminal laws, but also to thwart his outspoken political and legal advocacy,” Mills said in a news conference Tuesday afternoon at the State House. “After reviewing the historic record of this case, I find that there is merit to this claim.”

“For his tireless efforts to help others the whole of his life – both for his eight years in Maine and the 35 years since his conviction – I pardon Mr. Gellers,” added Mills, a former attorney general. “While this pardon cannot undo the many adverse consequences that this conviction had upon Mr. Gellers’ life, it can bestow formal forgiveness for his violation of law and remove the stigma of that conviction.”

Mills was visibly affected by the details of the state’s actions against Gellers, choking up near the end of her remarks. “It was a long time in coming,” she explained to reporters. “It’s unfortunate that he didn’t achieve justice in his lifetime. I wish I could have changed that.”

Gellers’ brother, Paul Gellers of Saint Augustine, Florida, said his family was grateful for the governor’s action. “It took over 50 years in the making, but finally there’s been justice served,” he said. “I’m sure that wherever he is looking down from, he can rest in peace and we have some closure and peace in our lives. It’s just extremely sad that he and my parents were not alive to see this day.”

Gellers was framed in 1968 for the “constructive possession” of six marijuana cigarettes as part of an elaborate undercover operation organized by the Attorney General’s Office and the Maine State Police. The raid on his home occurred while Gellers was driving back from Boston, where he had just filed a lawsuit asserting the treaty rights of the Passamaquoddy tribe, including the possession of a majority of the state. His work paved the way for the 1980 tribal land claims settlement acts, which were spearheaded by his former intern, Tom Tureen.

Gov. Janet Mills, left, hugs Darrell J. Newell, vice chief of the Passamaquoddy tribe’s Indian Township reservation, during a news conference in Augusta on Tuesday in which she signed the pardon for late attorney Donald Gellers. The Passamaquoddy tribe’s first legal champion, Gellers was the victim of a 1968 state-sponsored conspiracy organized by the Attorney General’s Office. Joe Phelan/Kennebec Journal  Buy this Photo

Gellers’ clemency application was put forward several times at his family’s request by their pro bono attorney, Robert Checkoway of Freeport, but it was never granted a hearing under former Gov. Paul LePage. That changed Oct. 17, when Mills’ board of pardons heard testimony from tribal members and Gellers’ brother and friends, some of whom had traveled from out of state to attend.

“We fully realize the origin of this whole matter was expediency: to get Don Gellers out of Maine and to quash his Passamaquoddy land case,” Paul Gellers said at the October hearing. “Not for a split second was there a thought for the morality or for the impact it would have.”

Passamaquoddy elder Madonna Soctomah, a former tribal representative to the Legislature, alternated between English and Passamaquoddy to deliver her bilingual plea to the board.  “A non-native man had it in his heart to help native Americans, my people … people nobody would help,” she said. “If it wasn’t for Gellers and his tenacity and knowledge and his faith in us, the (1980 land claims) settlement probably wouldn’t have ever happened.”

Several tribal leaders said they celebrated the decision in a case that has long haunted state-tribal relations.

“Nothing like this has ever been done by a previous governor,” said Donna Loring, former legislative representative for the Penobscot Nation, who now serves as the governor’s adviser on tribal affairs. “I’ve had many years in this Legislature and knew lots of people here. This governor is an honest broker, and I think there is hope for trust and for an improved relationship.”

“He’s a legend at home as an advocate for native folks for justice and against oppression,” said Darrell Newell, vice chief of the Passamaquoddy tribe’s Indian Township reservation, who attended the news conference and watched as the governor signed Gellers’ pardon. “He was a strong warrior for the Passamaquoddy.”

Darrell Newell, vice chief of the Passamaquoddy tribe’s Indian Township reservation, said of Donald Gellers, “He’s a legend at home as an advocate for native folks for justice and against oppression. Robert F. Bukaty/Associated Press

The facts of Gellers’ case do not cast Maine’s judicial system of the 1960s and early 1970s in a favorable light. The police moved on Gellers while he was in Boston filing a suit that, in effect, sought to recover $150 million Maine had looted from a trust fund established for the tribe under a 1794 treaty. Adjusted for inflation, the claim would be worth about $1.1 billion today.

Immediately upon his return to Eastport, he was subjected to a sting. An undercover detective pretending to be a Boston mobster tried unsuccessfully to get Gellers to give him drugs. They arrested him at gunpoint after claiming to have found six marijuana cigarettes in the pocket of a jacket hanging in his upstairs closet.

Although the Legislature had made minor possession of marijuana a misdemeanor, Maine Attorney General James Erwin prosecuted Gellers under an older felony statute, and he was sentenced to two to four years in prison. During a long appeals process, a judge refused to allow the American Civil Liberties Union and the National Lawyers Guild – both concerned about an obvious miscarriage of justice – to file “friend of the court” briefs. He was denied a new trial, even after a prominent Boston attorney, Harvey Silverglate, came forward saying he’d been told over drinks by assistant attorney general John Kelly – who had overseen the raid on Gellers’ Eastport home – that his office had set up the unpopular attorney.

Bizarrely, Kelly is now one of the three members of the governor’s board of pardons, and he recused himself from the case. In 2014 Kelley told the Press Herald that he did not remember the events Silverglate described, though he agreed his bosses were clearly trying to get Gellers. “Obviously they were very motivated,” he said. “The facts speak for themselves.”

The pardon board and the governor’s attorneys made their recommendations to Mills after reviewing and scrutinizing an extensive history of the case assembled by Checkoway. The dossier described how Gellers had represented the Passamaquoddy in the 1960s against racist barbers and police abuses, and had attempted to gain justice for Peter Francis, a tribal elder beaten to death in 1965 by a group of white hunters from Massachusetts after he tried to prevent them from driving off with a teenage Passamaquoddy girl.

In 1971, Gellers, his legal recourses exhausted, informed then-attorney general Dick Cohen that he was emigrating to Israel rather than serve his sentence. Cohen did not attempt to stop him. In Israel, Gellers adopted his Hebrew birth name, Tuvia Ben-Shmuel-Yosef, lived on a kibbutz and fought and was wounded in the 1973 Arab-Israeli war. He also applied to the Israeli bar, submitting full documentation of his conviction in Maine. Israeli officials described it as “a catalogue of horrors” and admitted him to practice without reservation.

In her remarks, Mills highlighted the peculiar way the case was carried out. “Mr. Gellers’ arrest, trial and appellate oral argument were all handled by the state’s top officials – a unique level of attention to a small personal possession case,” she said. “Although the state consistently defended at both trial and on appeal its decision to charge Mr. Gellers as a felon, it did not in the end insist that he serve his two- to four-year felony sentence. … It would have been only the felony conviction, regardless of time served, that was needed, and was in fact used, to disbar Mr. Gellers and thereby end his advocacy in Maine.”

In the early 1980s, he moved to New York City, and in 1989, he disclosed the circumstances of his Maine conviction to authorities at the U.S. Circuit Court of Appeals, which issued him a certificate of good standing, even though he was technically a fugitive in Maine. Instead of practicing law, however, he became a rabbi. He died from cancer on Oct. 8, 2014.

In her comments Tuesday, Mills noted that Gellers had spent the last decades of his life trying to help people. “Up until his death in 2014, Mr. Gellers used his faith to continue to help people: people without means, people without ready access to help, people seeking the solace of faith from the burdens of their lives,” she said.

“During his eight years in Eastport, Mr. Gellers worked tirelessly for the Native American people, often for little or no pay,” Mills added. “He worked on issues small and large, and his work mattered.”

Checkoway, the attorney for the Gellers family, said the pardon engendered faith in the capacity of the justice system. “The lawsuit brought by an unruly lawyer in Washington County 50 years ago which threatened to upend centuries of legal structures and land ownership was not, in the end, a threat too great for our own system to handle,” he said in a written statement.

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