FIRE MARSHAL WILBUR RICKER’S DEPOSITION
January 8, 1990, Fire Inspector Wilbur Ricker was deposed at Paul Pollard’s attorney Marvin Glazier’s law firm in Bangor . He was asked to bring with him photos he had taken of the murder scene and the two gasoline cans he had been holding for nine years. Shuman and Pinkham had never found it necessary to pick them up. He was also asked to bring copies of any reports or daily notes, etc. that he might have.
Inspector Ricker and Fire Chief Norman Herrin were both born in 1913 and were nearing retirement age when they were called to the arson/murder scene at the Rose Kenney/David Dupray cottage.
Ricker was seventy-one years old when he retired in 1984 after 42 years of service with the fire marshal’s office. He testified that the years were from “December 15, 1942 to February 15, 1984.” At the time of his deposition in 1990, he was 77 years old and said he still carried a badge in his pocket as Hancock County Deputy Sheriff. Inspector Ricker was 81 years old when he passed away on August 12, 1994. His deposition testimony gave me a record of what occurred the morning of February 24, 1981 when he found my son in the six-day-old fire rubble.
I will always be thankful to Ricker, Fire Chief Norman Herrin and Maine State Police Cpl. Allen Jamison for the information they gave me and respect them for their honesty and compassion.
Fire Inspector Wilbur Ricker's deposition - Jan. 8, 1990
|March 14, 1990 - Defense Attorney Marvin Glazier
filed a DEFENDANT’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
March 21, 1990, Popkin motioned the court to dismiss Defendant Owen Pollard with prejudice but without costs for the interests of justice and to help save time, control legal fees and costs and to simplify the issues.
March 21, 1990, Popkin filed PLAINTIFF’S LOCAR RULE 19(b) (1) AND 19 (b) (2) STATEMENT
Plaintiff alleges that on or about February 17-18, 1981, her son was alone in a cabin with Defendant Paul Pollard (Pollard, Exhibit 6, page 2), that the cabin was intentionally burned in an arson Herrin at 12, Ricker at 28-30) and that Pollard was observed running away and wiping his hands (Pollard at 63-64, Herrin at 12). Plaintiff alleges that her son died as a result of the fire (Plaintiff’s Exhibit 5, report of Ronald Roy, M.D.), that gasoline had been poured directly on her son’s body [he was alive when the gas was poured on him), which was abnormally charred, (Ricker at 40-45), and that the fire probably began with a gasoline vapor explosion (Ricker at 53-57). Plaintiff alleges that Paul Pollard was interviewed by the Maine State Police in the two weeks that followed the fire (Pollard at 41, 107, 147), denied his role in it and misrepresented the facts (Ibid, see also Pollard, Exhibit 6). Plaintiff alleges that she learned of Pollard’s statements immediately after they were made, and relied upon them as true until 1985 (Exhibit 1, Plaintiff’s Affidavit) when she learned that Pollard might be lying. Pollard had moved his residence out of Maine in 1982 (Pollard at 7 -9, 19, 159 – 160), and Plaintiff did not know his whereabouts during this period (Exhibit 1, Plaintiff’s Affidavit). Plaintiff further alleges, although it is not now in issue, that she suffered severe emotional distress as a result of the above.
PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS
6. Under Gammon and its progeny, Plaintiff has stated a claim for negligent infliction of emotional distress
Defendants’ last argument is that “summary judgment must be entered on Plaintiff’s claim for negligent infliction of emotional distress” because Plaintiff did not “witness [any] ghastly event.” Defendant’s Brief, at 15-16.
A review of recent Maine case law shows that Plaintiff has established a case for both negligent and intentional or reckless infliction of emotional distress. There is no legal requirement that such a case be based upon witnessing a “ghastly event.” According to Gammon v. Osteopathic Hospital of Maine, Inc., 534 A.2d. 1282 (Me. 1987), the issue is one of proximate causation or “foreseeability,” and it was highly foreseeable to Pollard, when he killed Cochran and burned his body, that Plaintiff would suffer severe emotional distress as a result of his actions.
In Gammon, supra, Maine’s high Court found that an action lay against a negligent hospital that had mailed a son his deceased father’s leg. Defendant in this case is arguing that while it is actionable to mail someone their son’s severed leg, it is not actionable to intentionally kill the son, pour gasoline on his body and burn it. No such distinction is supported by law or common sense.
(18)...The first thing to be noticed is that the record in this case not only supports a finding that Pollard killed Cochran, but that he burned his body by pouring gasoline on it and setting alight. This alone brings it within the strict holding of Gammon, supra, and of the cases it cites. Then, on foreseeability, common sense seems to dictate that Plaintiff’s severe emotional distress was a “foreseeable” result of Pollard’s conduct. In support of this, Plaintiff pleads the English language. In any real sense of the word, someone who intentionally kills another person, pours gasoline on them, and sets them alight, knows that the mother of the victim is almost certain to suffer severe emotional distress. In fact, this goes beyond mere foreseeability. The emotional distress on these facts is highly probable. Nor can Pollard, who spoke directly to Plaintiff within the limitations period, claim that he was unaware of Plaintiff’s individual state of mind and suffering. (Pollard at 20)
An important point is the intentional, and not merely negligent, quality of Defendant’s conduct. An intentional killing of another person involves a degree of foreseeability quite different from that involved in a mere negligence case. Someone who operates an automobile in a negligent manner knows only that if they make a mistake, relatives of an accident victim may be severely distressed. Someone who intentionally kills another person and then torches the body knows that the victim’s mother will undoubtedly suffer such distress. On the record before the Court, summary judgment on the issue of whether Plaintiff has stated a claim for negligent infliction of emotional distress must be denied.
[He wasn’t a body when the gas was poured on him]
|DEPUTY MEDICAL EXAMINER RONALD ROY DEPOSITION
March 23, 1990, Deputy Chief Medical Examiner (DCME) Ronald Roy’s deposition was taken at the law office of James Mitchell & Jed Davis in Augusta. His deposition was transcribed and video recorded. I didn’t attend Roy’s deposition because Popkin advised me against it, saying he believed it would be too traumatic for me. This was the only deposition I didn’t attend. I now wish I had attended the deposition, regardless of how traumatic it would have been.
Deputy CME Roy’s deposition began with him saying that he had “training in psychiatry and forensic pathology at McMaster University in Hamilton, Ontario” and had “functioned as the deputy medical examiner as a forensic pathologist for the last eleven years in Maine.” Roy said he had performed approximately 175 homicide autopsies in 11 years and guessed he would have testified in grand juries, probable cause hearings, bail hearings, and actual trials about 150 times.
Maine Fire Marshal Wilbur Ricker said in his 42 years as fire investigator, he had testified in courts as an expert witness hundreds of times.
When DCME Roy was deposed in March we had only 49 days to trial. Our trial date was scheduled for May 11th. But shortly after Dr. Roy’s deposition was taken, Dr. Roy left the United States and returned to Canada. All the jury would hear was a video with only a sliver of Dr. Roy’s deposition testimony. My attorney had cut up his deposition to support the State of Maine’s position that there was no trauma to Mike's burned beyond unrecognizable body.
Without consulting me, Attorney Popkin deleted more than three-fourths of Roy’s deposition. The complete deposition was 40 pages, consisting of 986 lines. A total of 785 lines were deleted. Popkin’s condensed version supported the state’s position of no trauma to Mike’s body. I have both versions of Dr. Roy’s testimony, the one the jury heard—with all the testimony Attorney Popkin paid to have redacted —and the one the jury didn’t hear. First, I am going use the part of Roy’s deposition testimony that Popkin deleted from Roy’s testimony.
DME Dr. Ronald Roy's testimony the jury did not hear 3-23-1990
DME Dr. Ronald Roy's testimony the jury did hear 3-23-1990
|My attorney sold me out
April 6, 1990, two weeks after Dr. Roy’s March 23, 1990 deposition, my attorney sent a letter to Marvin Glazier informing him of what he was removing from Dr. Roy’s deposition.
"I want to excise everything that has to do with the dental identification or with identification generally; a small bit of testimony that has to do with visual preliminary test for carbon monoxide in the blood, which Dr. Roy said was not done in this case; everything that has to do with the paper records generated by Dr. Roy, the death certificate, etc.; everything that has to do with the identification of the medical examiner’s file, the file number, etc.; and most of what Dr. Roy said about the gasoline on the body issue.On the 9th of April, Popkin sent another letter to Mr. Glazier concerning excising everything to do with gas on the Mike:
Enclosed please find a marked up copy of Dr. Roy’s deposition; it shows exactly what I propose to delete. ... You will notice that I have excised everything to do with the gasoline on the body issue. I am not including that in my direct examination.What a joke—telling Attorney Glazier that he objected to him cross-examining Dr. Roy on the gas issue. Glazier would be more than happy to stay away from Ricker’s opinion that gas was poured on Mike.
Attorney Popkin never informed me of how he intended to delete nearly all of Dr. Roy’s deposition testimony. I had no knowledge of what Popkin was doing. But while talking on the phone one day Popkin did tell me that he was not going to use Ricker’s testimony of gas being poured on Mike. We had a heated disagreement over it. I couldn’t believe that he actually planned on excluding Ricker’s expert opinion that gas had been poured on Mike. As soon as I hung up from talking with Popkin, I called Mr. Davis. I was still crying when I reached Mr. Davis. When I told him about my conversation with Popkin he assured me that Ricker’s expert opinion would be used—that it would not be excluded. But I didn’t know at that time that Popkin had already had Dr. Roy’s video deposition edited so that there was no mention of gas being poured on Mike.
Only Popkin's altered video was played for the jury. There was no mention of gas on Mike in either Roy or Ricker's testimony but Roy's deposition testimony of no evidence of trauma, no stab wounds and no gunshot wounds to Mike's body that was burned beyond recognition was played for the jury.
This was not supposed to happen according to the contract I signed at Attorney Davis’ office: “You should never hesitate to ask questions or to object to anything we do. We will try to keep you informed of every aspect of the work we are doing for you.”
I had actually suffered mentally and physically when Inspector Ricker testified during his deposition in January of 1990 that gas had been poured on my son. From the lab report that I received from Roger Johnson along with Dr. Ryan’s July 1981 letter, I knew that my son was still alive and breathing when the gas was poured on him. And Popkin was destroying my lawsuit for emotional distress.
I believe this was done to cover up whatever the Maine DEA did wrong the night Mike was murdered. Paul Pollard knows what it is. That is why Pinkham, Shuman, DA Cox and the Attorney General's Office is covering up Pollard's crimes. Roy had been at the AG's office for eleven years when his deposition was done but he left Maine and returned to Canada immediately after his deposition was taken in March. The medial examiner's office is under the jurisdiction of the AG's office and Deputy Fernald LaRochelle refused to allow Chief Medical Examiner Ryan to speak with me.
What happened the night Mike was murdered that resulted in the state allowing three murderers to walk free and to cover up Pollard's crimes of forgery, firing 5 bullets through a family residence, 2 armed robberies along with accepting a load stolen rifles, shotguns and dynamite at the Bangor Pd with no charges filed and called an unnamed client.
I've wondered if Pollard saw the red Pinto that the Maine DEA were driving when it arrived at the murder scene during the time Mike was being murdered?
According to Everett Cross he was listening to his police scanner when he heard a woman say she saw two men walk another man toward the woods before she heard a guns shot and she saw a red Pinto arrive at the arson scene and leave.
|My attorney walks out on me|
|April 25, 1990, a letter from Popkin to Clerk of U.S. District Court: Enclosed please find my Motion to Withdraw in the Cochran ...case. As I informed you, I am going to the Attorney General’s Office where I will be doing child protective litigation in Augusta and Waterville. My Motions ask that my withdrawal be deemed effective as of April 30 (Eleven days before trial).|
|Shuman and Pinkham want to testify for Pollard|
|April 27, 1990. Defendant’s Witness
Barry Shuman and or Ralph Pinkham: Both these individuals will testify as to the investigation of the fire and the reasons why the Maine State Police did not believe that Paul Pollard was involved in the death of Micheal Cochran.
|April 27, 1990. Defendant’s
Mr. Pollard has not been charged with any crime by the Maine State Police. Mr. Pollard will testify and the evidence will show that Mr. Pollard was very cooperative with the police. He gave them all the information that he had about the fire. Testimony will be offered by Mr. Pollard on this issue as well as members of the Maine State Police.
There is no indication based on the pathologist report that Micheal Cochran died of anything other than carbon monoxide poisoning. There was no indication of trauma or any other injury to Micheal Cochran. ...
The other issues deal with how much information the Court will allow the Plaintiff’s counsel to elicit on the exact location of where Mr. Pollard live, works, etc. This is because Mr. Pollard has been hounded by the Plaintiff by telephone calls over the last several years prior to the commencement of this suit. Counsel is concerned, regardless of the outcome of this suit, that the Plaintiff is most likely to continue calling the Defendant. Therefore, the less know about Paul Pollard’s whereabouts the better.
May 1, 1990, Attorney Jed Davis takes over my lawsuit. I did not see Popkin's letters to Glazier or the court until after the trial was over. I had spoken with Mr. Davis about an appeal and he told me he would need more money. I called again to speak with him and was informed that he was on vacation and wouldn't be back for 2-3 weeks. I drove to his office and asked for my file. I was told that I couldn't have it until Mr. Davis returned. I said it is my file and I want it now! They released it.
Motion in Limine
First document by Jed Davis. Plaintiff moves the Court as follows:
1. Defendant has filed his Witness List, dated April 27, 1990. In it he lists “Barry Shuman and/or Ralph Pinkham, members of the Maine State Police.”
2. Defendant has never before listed Ralph Pinkham as a possible witness. Plaintiff objects to his use on that ground.
3. In his Witness List, Defendant describes the anticipated testimony of Shuman and Pinkham as follows: “Both these individual will testify as to the investigation of the fire and the reasons why the Maine State Police did not believe that Paul Pollard was involved in the death of Micheal Cochran.”
4. The anticipated testimony of Shuman and Pinkham would be irrelevant and inadmissible for various reasons. How could they testify as to the opinion of the “Maine State Police”? They might testify as to their own opinions as to Pollard’s guilt of innocence. However, their opinions are irrelevant.
Furthermore, the bases for their opinions would statements of third persons, which would be inadmissible hearsay. In short, Defendant wants to present Shuman’s and Pinkham’s opinions as to the Defendant’s guilt or innocence based upon hearsay information. Such testimony would be far more confusing than probative. Why would Shuman’s and Pinkham’s testimony be any more admissible than that, for example, of a newspaper reporter who has been following this story for several years.
Plaintiff would not expect the Court to allow her to call such a reporter to offer his opinion as to Pollard’s guilt or innocence based upon what he had learned during his investigations over the years. Indeed, it is almost certain that the Plaintiff, herself, has spent far more hours investigating her son’s death than Shuman and Pinkham combined.
If Shuman and Pinkham are allowed to offer their opinions based upon what they learned in their investigations, then the Plaintiff should be allowed to testify about her opinion that Pollard murdered her son and to relate everything she heard and read which led to that opinion.
WHEREFORE, Plaintiff asks the Court to order that the Defendant may not present Barry Shuman and Ralph Pinkham as witnesses.
May 8, 1990.
A letter from Mr. Davis to Mr. Glazier:
I enclose the page of the telephone bill for February 1981, for 207-285-3517, which you gave me yesterday in court. Based simply on this one page from a phone bill which was not in Pollard’s name or paid by him, I am unwilling to stipulate to its authenticity. It seems mighty peculiar that, after years of litigation, this portion of a phone bill is suddenly produced on the eve of trial.