Mark Cardilli Jr. spent the past two days trying to convince a judge that he was wrongly convicted of manslaughter in the shooting death of 22-year-old Isahak Muse because his lawyers didn’t adequately defend him.

He’ll likely have to spend at least another two months waiting to see if he will get a new trial.

The 2019 shooting of Muse, who was Black and Muslim, sparked protests and racial tensions. Cardilli’s acquittal on the more serious charge of murder frustrated Muse’s family and supporters.

“Congratulations,” a young man called to Cardilli’s lawyers shortly after the verdict was read. “You just got a murderer off.”

This week, Cardilli was back in the Cumberland County courthouse with a new legal team building the argument that he received inadequate defense from his trial attorneys.

The post-conviction hearing ended Friday, but it will likely be weeks before attorneys for both sides submit their written closing arguments and Superior Court Justice John O’Neil rules on Cardilli’s petition for a new trial.

Friday’s testimony began with the cross-examination of Cardilli, who avoided a murder conviction after shooting Muse in the back in the early hours of March 16, 2019. The U.S. Army veteran, who is serving a 7½-year sentence at the Maine Correctional Center in Windham, emphatically stated what has become one of the pillars of his legal team’s argument: that his defense attorney Matt Nichols misled him about his chances of success in a bench trial with Superior Court Justice Nancy Mills.

“My lawyers told me that there was going to be an acquittal,” said Cardilli, who suggested he would have considered a jury trial or a plea deal had Nichols been less effusive about Mills. “It was my conclusion that it would be a done deal.”

Expert witness Thea Johnson, an associate professor at Rutgers Law School, testified Friday that defense attorneys have an obligation to make sure their clients understand the risks and rewards of decisions like forgoing the right to a jury, accepting a plea deal and going to trial. She said Cardilli’s claims, and even pieces of Nichols’ own testimony Thursday, raised concerns that the defense team may have failed to meet this standard.

The problem, she said, was the cumulative effect of several positive remarks about Mills – that her assignment to the case was a “godsend,” that Nichols would have hoped for 12 Millses on the jury, and that the lawyer’s daughter knew and referred to her as “Grandma Mills” – stacked against several negative claims about Cardilli’s chances of facing a fair-minded and capable jury in “leftist” Portland given the politically charged nature of the case.

While it’s good practice for lawyers to discuss things like a judge’s reputation and the ways jurors might react to the racial elements of a case, Johnson said, Cardilli’s testimony made it sound as though Nichols had crossed a line by overstating how much the defense would benefit from a bench trial compared to a jury trial, which is usually seen as a more favorable option for defendants in self-defense cases.

“If it’s enough indication from the lawyer that this judge will find in your favor, the closer it gets to looking like an assurance of some outcome, to me the more problematic it gets,” Johnson said. “And the closer you get to ineffective assistance.”

Johnson also argued the defense should have done more to incorporate a specific self-defense statute that justifies the use of deadly force against a person one “reasonably believes” is about to use deadly force against them. She pointed to what appeared to be a communication breakdown between Sarah Churchill, Nichols’ co-counsel who testified Thursday that the statute was not a key defense in the case, and Nichols, who said he had raised the defense.

“It seemed to be that they were at least hinting at that argument or trying to get there, but there was never any full-throated embrace of that argument,” Johnson said. “If that was part of the strategy, there was an absolute failure to make that argument.”

In order to vacate a conviction on the basis of ineffective counsel, the defense must show that counsel was “deficient” and that those deficiencies had deprived the petitioner of a fair trial.

While Cardilli’s testimony suggested Nichols and Churchill had been deficient, according to Johnson, she admitted that meeting the second aspect would be more difficult.

Even though the defense did not explicitly lay out a self-defense argument based on Cardilli’s fear of imminent danger, both Mills and an appellate court ruled on the issue and found such a fear unreasonable. Likewise, Johnson criticized the defense’s failure to identify a specific legal standard relevant to one of the statutes at issue in the case, but it was not clear how the mistake impacted the trial’s outcome.

Nichols, returning to the stand Friday, once again disputed the most damning parts of Cardilli’s testimony. He said the name “Grandma Mills” never existed, and that his family’s actual nickname for Mills and other judges, “Judgiepoo,” did not mean he had ever had a personal relationship with Mills.

The defendant’s unwillingness to take a plea deal, Nichols said, came from Cardilli’s strong belief that he had done nothing wrong – not because his attorneys told him that victory was assured.

“I never at any time with Marky Cardilli Jr. or any client in my 34 years suggested anything close to what has been alleged,” Nichols said. “I would never do it with any client, no matter what the charge.”

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