AUGUSTA — The lawyer for a former Augusta man is asking a judge to dismiss charges against his client in the case of an alleged assault on a 4-year-old girl. Daniel Omar Cole has already been indicted twice in the case and had the charges dismissed both times.

Prosecutors have been unable to contact the girl’s father so they can arrange for the girl to testify, said Cole’s lawyer, Joshua Klein-Golden. Evidence in the case is weak, Klein-Golden said.

Cole, 38, was extradited from Plattsburgh, N.Y., last October to face a 2011 charge that he had hit the girl with a hammer, He spent several months in the Kennebec County jail in lieu of $50,000 bail.

He was freed Jan. 10 shortly before he was set to go to trial when the prosecution dismissed the aggravated assault charge.

At the time, District Attorney Maeghan Maloney said the office would seek a new indictment on an assault charge in connection with the same March 9, 2010, incident in Augusta. This time, the allegation – at least according to filings by Klein-Golden – was that Cole had forced the girl’s head into a toilet. The new filings did not mention a hammer.

A grand jury in Kennebec County indicted Cole, formerly of Augusta, on that charge Jan. 24, and he voluntarily returned to Maine and pleaded not guilty.

The case was set for jury selection on March 7, but the prosecutor’s office dismissed the second indictment a day earlier.

“I received three or four different statements from the alleged victim,” Klein-Golden said. He said the girl at one point said it was her brother who had hit her with the hammer, then a neighbor, and indicated she was fond of Cole.

“There was also a mention that he had put her head in a toilet while she was throwing up,” Klein-Golden said.

Klein-Golden now wants to make sure his client is not charged a third time in connection with the same incident.

“He is relieved and excited that it’s over,” Klein-Golden said.

On Tuesday, Klein-Golden filed a written motion asking a judge in Kennebec County Superior Court to dismiss the case “with prejudice,” meaning no further charges could be filed in the case.

He also asked the judge to order the prosecutor’s office to reimburse the Maine Commission on Indigent Legal Services for more than $2,500 in fees Klein-Golden incurred in defending Cole.

Klein-Golden said he was fairly sure about obtaining a dismissal with prejudice but held out only faint hope for the reimbursement.

“I think they should because they dismissed the case in January and expedited it the second time knowing they did not have an address or contact information for the child and her father,” Klein-Golden said.

Maloney said an investigation started in 2010 when Cole took the child to a local hospital apparently after she suffered a seizure. “Mr. Cole is not the victim’s father,” Maloney said. “The victim was living with her mother at the time of the incident, and Mr. Cole was the mother’s boyfriend.”

Maloney said her office had been in contact with a detective in a district attorney’s office in the state where the girl now lives with her father. Maloney said that detective spoke with the victim’s father about the case, and he agreed to meet with the detective but never did so, and the detective’s subsequent attempts to contact the father by phone and in person were unsuccessful.

She said Deputy District Attorney Fernand Larochelle spoke with the girl’s father once, but that subsequent calls were not returned.

Betty Adams can be contacted at 621-5631 or at:

badams@centralmaine.com

Twitter: @betadams