March 18, 2010

After 26 years, suspect in killing faces trial

By BETTY ADAMS, Kennebec Journal

click image to enlarge

Staff photo by Joe Phelan Thomas Mitchell, left and his attorney Jim Strong appear for an arraignment in Kennebec County Superior on Thursday Sept. 28, 2006 Court in Augusta, Maine. Mitchell is charged with the January 6, 1983 murder of Judy Flagg that occurred in Fayette, Maine. His attorney declined to enter a plea.

AP

FAYETTE — Judy Flagg spent the early morning of Jan. 6, 1983, on the phone with her siblings.

She and her sister Monica Dion, 19, talked of going ice skating that day.

Instead Judy Flagg, 23, was dead by noon, stabbed to death, investigators believe, by a man who knew she and her young son were home alone.

In September 2006, some 23 years after Flagg's death, Thomas H. Mitchell Jr. of South Portland was indicted on a charge of murdering her. Prosecutors said new tests on old evidence found Mitchell's DNA on clippings from Flagg's fingernails.

Mitchell, 52, who has spent most of his adult life in prison, has pleaded not guilty. His jury trial is set to begin the week of April 6 in Kennebec County Superior Court. He has been held without bail in Kennebec County jail since Jan. 18, 2007.

This story begins on the day Judith L. Flagg died.

Her husband, Ted, had risen about 5 a.m. that Thursday and left to work a double shift at what was then the James River Paper Mill in Chisholm, stopping to tend a small herd of cattle along the way.

He wasn't expected home until after 10 p.m. Judy Flagg and her 13-month-old son, Chad, were alone in the Watson Heights Road home.

Ted Flagg returned to the remodeled farmhouse late that night to find it dark and cool. There were no lights on, and the fire in the wood stove had gone out. When he flipped on the lights, he saw blood and his wife's body on the kitchen floor.

Chad lay atop his mother's body, cuddling her. He was smeared with blood, but wasn't physically harmed.

He ran to his dad.

Ted Flagg called the Fayette Rescue Squad, family members and police.

"Automatically, I thought it was an accident," Flagg told a reporter the next day. "It couldn't be a suicide. We had too much to live for."

To piece together what happened that morning, police talked to Monica Dion.

Dion said Judy Flagg told her about getting a call from a man who said he was a friend of Ted's and wanted to pay a surprise visit.

Flagg explained that her husband was working until late, and the caller hung up after refusing to give his name.

When the sisters chatted a little later, Dion said Flagg thought she heard someone at the door, but then decided she had been mistaken.

Shortly afterward, a man arrived at Flagg's door, saying he was a friend of Ted's. He told Flagg he was having trouble with his car stalling and overheating.

Judy Flagg called her brother, David Dion, who made some suggestions for repairs, and she conveyed the ideas to the visitor.

David Dion, then 22, offered to look at the vehicle, but Flagg said the visitor told her he was leaving.

That was the last anyone talked to Judy Flagg.

Investigators determined she died between 10:50 a.m. and noon.

Monica Dion, now Monica Conant, continued calling until 4 p.m. and, like other family members, heard only a busy signal.

"She died like she lived, trying to help someone," Conant said recently. "That's really a picture of her life. In this case, it was a bad decision."

The phone was found under Flagg's body, clutched in her right hand.

She had been stabbed repeatedly in the torso; wounds on her hands showed she tried to fight off her attacker. Blood was found in Chad's room, where the changing table was upset and a diaper pail overturned.

The murder frightened the Fayette community, particularly stay-at-home mothers with small children; longtime residents began locking their doors.

Ted Flagg told a reporter at the time that his wife had no enemies. "She couldn't kill a fly or a spider," he said at the time.

UNFAMILIAR CAR DRAWS ATTENTION

Investigators had suspicions but not enough evidence to charge anyone.

They interviewed neighbors and took casts of footprints in the snow that weren't Judy Flagg's. They clipped her fingernails, swabbed body cavities, printed color photographs of the position of her body.

They set up a roadblock to try to determine whether anyone saw anything suspicious.

One woman came forward early.

Eloise Ault of Wayne, then a U.S. Postal Service employee, was delivering mail along Watson Heights Road late on the morning of Jan. 6, 1983, and remembered how a tan-roofed maroon car swerved into a ditch to avoid colliding with her vehicle on the crest of a hill.

She described the driver as a young, clean-shaven man with light brown hair. She had never seen him, and wondered why he was on the rural road. She remembered the car the most, with its heavy chrome grille. Ault helped police put together a composite sketch.

Police also looked into the background of the house.

The Flaggs had bought the home from the estate of Thomas H. Mitchell Sr. in September 1980.

Mitchell's son, Thomas H. Mitchell Jr., who had been convicted of kidnapping a 16-year-old Portland girl, was out on probation in the summer of 1981. He went to the Flagg home when both Ted and Judy were there to retrieve a duck lamp that had belonged to his father.

Investigators say he returned to the home the morning of the slaying.

At a pretrial hearing in January 2007, Thomas Roche, formerly a detective sergeant with the South Portland police, testified that he knew Mitchell well and saw him driving north toward Brunswick early on Jan. 6, 1983. Roche said he wondered where Mitchell was heading in his 1973 Ford Thunderbird.

Mitchell's car, olive-colored except for maroon primer on the driver's side, had a tan vinyl top.

When questioned about his whereabouts that day, Mitchell referred investigators to his daily diary, which ran from 1982 to June 1985, when he was charged with raping and attempting to murder a woman in Cumberland County. He said he kept meticulous track of his movements at the request of his family members, who believed police were hassling him.

His aunt, Eleanor Foley (who died in 2000), made his diary entries for Jan. 6, 1983.

Mitchell's day, as detailed in that diary, revolved around sleep, showering and getting a haircut.

He told his aunt he got out of bed at 8:15, showered and got coffee before going to town with his aunt. They stopped at Bentley's for breakfast, then he went to Head Hunters for a haircut while she ran an errand. At 11:45 a.m. he met up with his aunt, exchanged a shirt he got for Christmas, and had a snack when he got home at 12:30 p.m.

He went out to a friend's house, returned home at 2 p.m. and napped until 4:30 p.m., ate supper, went to another friend's and got home at 11:45 p.m. to have a snack and go to bed.

DNA TESTS REVIVE COLD CASE

Police continued to look at Mitchell as a suspect. They put together a photo lineup 18 months after the murder, but Ault was unable to identify him as the driver of the car that almost hit her. Then they seized his shoes in July 1984 to compare to the cast of the footprint found in the snow outside the Flagg home.

But without enough evidence to charge Mitchell – or anybody else – the murder case went cold. Then in 2006, just months before Mitchell was scheduled to finish a 20-year prison term, forensic scientists said DNA tests on old evidence implicated Mitchell.

Mitchell's defense attorney, James Strong, challenged the evidence at pretrial hearings, questioning the custody of the evidence, reconstruction of the footprint casts – which had fractured into dozens of pieces in the intervening years – and the length of time between the slaying and the indictment. A forensic scientist testified at a January 2007 hearing that the heel of Mitchell's left loafer fit the cast.

Justice Nancy Mills refused to suppress evidence in the case and rejected a motion to dismiss based on the length of time between the offense and the indictment.

"The sophisticated DNA testing performed in this case was not available until 2000," she wrote. "The Maine State Police devote time to unsolved homicides when schedules permit. Once the evidence was analyzed and eye witness testimony confirmed, the state sought an indictment."

Strong declined to be interviewed about the case. "I don't want to contribute at all to any pretrial publicity," he said last week.

'A TRAUMA FOR THE TOWN'

Jed Davis, an attorney in Augusta who was part-time town manager of Fayette at the time of the slaying, recalled the mood of the townspeople after the Jan. 6, 1983, slaying.

"Women became afraid to go alone in the town. It was really shocking," he said. "At that time there was no murder in Fayette that people could remember."

Residents donated money for a trust fund for young Chad, and Davis was one of three trustees.

"When he became 18 in about 2000, we met with him and we turned over the money. He had grown into a fine young man," Davis said. "His father remarried and his stepmother was just wonderful to him. Despite this horrible trauma, he had a good childhood."

Davis said the trust fund gave the town a way to express its grief.

"It was a trauma for the town," Davis said. "It was years before the town got over that."

Davis recalled that Mitchell was identified as a suspect at the time.

"It's wonderful actually that there's finally going to be some justice done on it," he said.

Barbara Helen Baker, who was married at the time to Davis and now lives in San Antonio, Texas, said the town changed after Flagg's murder.

"What ensued with the town was quite remarkable," Baker said. "By a year later, nobody was a stay-at-home mom. Everyone had jobs outside of the house."

She, too, was pleased to learn that a suspect was finally going to trial.

"I'm amazed and wonderfully surprised that they did that DNA on the fingernails," she said.

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