AUGUSTA — One of the most sordid episodes in Maine legal history took a step closer to closure in an emotionally charged Augusta pardon hearing room Thursday afternoon.

Don Gellers

The pardon proceedings were unprecedented for several reasons, not least of them that the applicant, Donald Cotesworth Gellers, has been dead for five years. If successful, he might be the first posthumous pardon participant in the state’s 199-year history.

More poignantly, the most compelling argument for clemency is one that isn’t supposed to be presented in a pardon hearing, where applicants are expected to accept their guilt and to have served their sentences.

As the Press Herald reported in a 29-part series published in 2014, Gellers was framed in 1968 for the “constructive possession” of a single marijuana cigarette as part of a shocking state-sponsored conspiracy involving the sitting attorney general, his staff and the leadership of the Maine State Police. The elaborate raid on his home occurred while Gellers was driving back from Boston, where he had just filed a suit asserting the treaty rights of the Passamaquoddy tribe, including the possession of a majority of the state. His work eventually led to Maine’s 1980 tribal land claims settlement act.

“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,” his brother, Paul Gellers, who had flown up from Florida for the hearing, told the pardon board. “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 state Legislature, appealed to the pardon board, alternating between English and Passamaquoddy to deliver her remarks in both languages.

“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.”

Dwayne Tomah, a member of the Passamaquoddy tribe, said that if it weren’t for Gellers, he might not be allowed to enter the building to testify. (In 1964, when Gellers began representing the tribe, its members were wards of the state and barred from voting or serving on juries.)

“He listened to us and saw the truth of what we said and sought justice on our behalf,” he said. “We owe him much. We. Owe. Him. Much.”

There were no opponents of the pardon application among the dozen people attending the hearing.

After the 45-minute hearing, the pardon board convened in executive session. It will make a recommendation on Gellers’ application to Gov. Janet Mills, who under the Maine Constitution has full authority to decide whether to grant the posthumous pardon. Such pardons are rare. In April, President Trump granted one for Jack Johnson, the first black heavyweight boxing champion, who was convicted in 1913 of transporting a white woman across state lines.

The facts of Gellers case do not cast Maine’s judicial system of the 1960s and early 1970s in a favorable light.

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 by assistant attorney general John Kelly over drinks that his office had set up the unpopular attorney.

Today, Kelly is one of the three members of the governor’s board of pardons, which heard testimony Thursday. In 2014, Kelley told the Press Herald he did not remember the events Silverglate described, but he recused himself from Thursday’s proceedings and any involvement in Gellers’ pardon application. That leaves two board members – chair Fernand LaRochelle and Carletta “Dee” Bassano – to make recommendations to Mills.

People familiar with the pardon process told the Press Herald that a decision will likely be announced within weeks.

The board members had already read an extensive history of the case assembled by the Gellers family’s pro bono attorney, Robert Checkoway of Freeport. 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 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.

“This man has done some of the greatest deeds for civil rights in Maine,” Checkoway told the board. “I ask you and beg you for this pardon for him, his memory, his relatives and the natives.”

Paul Gellers said the Maine conviction hung over his brother and the family, who never knew when it might rise up and be used against him. “It hurt every one of us for three generations,” he said, and haunted their mother’s “every waking moment until her death.”

If granted, Gellers might be the first person to receive a posthumous pardon in Maine’s history, although it is difficult to know for certain, because records do not indicate whether an applicant was alive at the time a pardon warrant was issued.

Don Gellers never sought a pardon from a governor of Maine. A few months before his death, a Press Herald reporter asked whether he would want one. “Well, yes,” Gellers replied. “Yes, that would be nice.”

Related Headlines


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.