State prosecutors and the attorneys for a Portland landlord facing jail time in a 2014 fire that killed six young people clashed in court Thursday about whether the state fully disclosed information that may have affected the verdict.
Gregory Nisbet was convicted of a code violation for having third-floor windows too small to qualify as emergency exits, but was acquitted of six counts of manslaughter. His attorneys are seeking a new trial or a dismissal of his conviction. If neither are granted, the judge in the case said Thursday he expects an appeal, a prospect that upset family members of some of the victims.
The accidental fire, Maine’s deadliest in 40 years, was seen as a wake-up call for the city’s landlords. All six victims were under the age of 30: David Bragdon Jr., 27, Christopher Conlee, 25, Nicole Finlay, 26, Maelisha Jackson, 26, Steven Summers, 29, and Ashley Thomas, 29.
Nisbet was sentenced in November to three months in jail for the code violation and ordered to pay a $1,000 fine. He was due to begin serving his sentence Dec. 23, when his attorneys filed their motion for a new trial.
They argued Thursday that the state did not disclose a memo from the state Fire Marshal’s Office regarding concessions for buildings built before 1976. It’s believed that the Noyes Street apartment building was built in the 1920s.
A state prosecutor testified in Cumberland County Superior Court that prosecutors gave defense attorney Sarah Churchill a copy of the memo as soon as they learned about it, shortly after the trial began. But Churchill testified she received it from a different source after Nisbet was sentenced.
Justice Thomas Warren did not issue a decision Thursday. He said attorneys would make their final arguments in writing after they receive a transcript of witness testimony. Once those transcripts are available, the defense will have 14 days to file its argument and then the state will have 14 days to reply.
Warren also said that he was told Nisbet would likely appeal his conviction if the court did not agree to a new trial or decide to dismiss the conviction.
RELATIVES OF VICTIMS IRRITATED
The ongoing legal wrangling and the prospect of an appeal did not sit well with family members of the victims who attended Thursday’s hearing.
Ashley Summers, who lost her husband Steven in the fire, noted that Nisbet and his attorneys claimed during sentencing that he was taking responsibility for his actions.
“I’m just in a little shock,” said Summers, whose two daughters were left without a father. “The frustration is we’re trying to start moving on. For (Nisbet), it’s going to be a little blip in his life. He’s going to be dealing with the consequence for a short period of time. For us, 20 years from now, I’m still going to be talking to my kids about everything.”
Nisbet’s motion for a new trial is based on a state fire marshal’s memo issued to code officers, firefighters and landlords a year before the Nov. 1, 2014, fire about looser safety requirements for homes built before 1976.
For Nisbet to prevail, the defense must prove, among other things, that the state had the evidence and failed to provide it, that it would have likely changed the outcome, that it was discovered since the trial, and that it is material to the issue.
The size of the third-floor windows is the subject of debate, with witnesses offering varying estimates about how far the windows opened and whether the opening was large enough to meet code.
Assistant Attorney General Bud Ellis said he first learned about the memo shortly after the week-long trial began last October, so it wasn’t part of the 1,073 pages of pre-trial discovery. He said he immediately informed defense attorney Churchill and provided her with a copy, but she didn’t seem that interested in it.
“My recollection is we discussed the memo,” Ellis said. “I remember she didn’t seem that terribly upset or concerned about it.”
MEMO’S VALUE AS EVIDENCE
Churchill, however, offered a different account. She said the memo first came to her attention shortly after Nisbet was sentenced. She could not recall whether Nisbet had forwarded her the memo, or whether she received it from another source. She said she and her legal secretary scoured their files and offices to make sure they did not have a copy before filing the motion.
Churchill said she would have admitted the memo as evidence, since it would have been a counterpoint to testimony by Assistant Fire Marshal Richard McCarthy that allowances were typically made for minor violations.
“I think the example he gave was an eighth-of-an-inch off the measurements, which clearly isn’t correct when you compare it to that memorandum,” she said.
Ellis, however, said the contents of the memo were discussed, even though the memo itself was not referenced. He said it was clear that a window, when opened, needed to have an opening of 24 inches high and 20 inches wide and that the window itself had to measure at least 5 square feet.
McCarthy, who also testified Thursday, said the window on the third floor was still not up to code.
“(The memo) does not change my opinion,” he said. “I don’t think it would have been able to open 24 inches.”
Randy Billings can be contacted at 791-6346 or at: