Plaintiff’s motion for new trial

Attorney Davis said during the course of Glazier questioning Pollard he asked Pollard “How many times did you speak to the State Police?” Pollard’s initial response was appropriate according to Davis but then, in a low voice, which Davis said he was barely able to hear, Pollard quickly said that he had been told by the police that he had passed two lie detector tests he had taken.
    Davis found it hard to believe that Pollard did not know that polygraph tests results are inadmissible because he was no stranger to the criminal justice system. Davis believed that Pollard had a premeditated plan to testify about passing lie detector tests.
     Private Investigator Bucky Buchanan told me that the results of Pollard’s lie detector tests were not turned over in the state’s discovery in 1984. We only have Shuman’s word that Pollard passed the tests.
     Davis’ motion said that Pollard testified about his own extensive criminal background and admitted that he had been indicted for reckless conduct with a firearm. 
He admitted that he had turned State’s evidence and, in 1986, testified against two of his former criminal cohorts. … And during his testimony at the trials of Cormier and Sargent, the Defendant was extensively cross-examined by Cormier’s and Sargent’s attorneys about his criminal background. And by the time the Pollard testified at the Cormier and Sargent trials, he had already taken and passed the lie detector tests, and yet neither of the prosecutors nor Pollard mentioned the polygraph test results. Such testimony would have helped to bolster Pollard’s credibility as a witness.”
Davis said it was known to him long before the trial of this case that Pollard had taken and passed polygraph tests. He said Pollard testified about those tests during his deposition in 1989. Davis thought it was likely that while he and his attorney were preparing for the trial, they discussed the polygraph test results. He said without doubt, Glazier would have told Pollard that the tests were inadmissible. He believed that was why Pollard quietly and unresponsively “sneaked” in a reference to the polygraph results.
The evidence as a whole was overwhelmingly in favor of the Plaintiff and against the Defendant that the jury could not reasonably and rationally find in favor of the Defendant. However, even if the Court should find that there was substantial evidence supporting the verdict, the great weight of the evidence supported Plaintiff’s claim. The verdict was against the great weight of the evidence and resulted in a miscarriage of justice.
     “It appears that the Defendant’s testimony about the polygraph test results was premeditated and intentional. From the Defendant’s point of view, it was a risk worth taking. That testimony went to the central issue in the trial, the Defendant’s credibility.
     “Despite the Court’s curative instruction, it is likely that the jurors shared the common perception of the reliability of polygraph tests. It is also likely that, in weighing the Defendant’s credibility, they could not disregard what the Defendant had told them about the polygraph test results.
     “For the above reasons, the Plaintiff asks the Court to enter judgment for the Plaintiff notwithstanding the verdict or, in the alternative, order a new trial.”
May 25, the BDN reported new trial requested by Cochran's mother

A Bangor woman whose son died in a mysterious 1981 camp fire in Lucerne has requested that a new civil trial be held to retry the man she believed killed her son. Acting on behalf of Leola Cochran, attorney Jed Davis of Augusta this week filed a motion for the new trial in U.S. District Court in Bangor, claiming that defendant Paul Pollard of Alexandria, Va., knowingly introduced unacceptable evidence during the original trial. … The trial’s verdict, which favored Pollard, resulted “in a miscarriage of justice,” wrote Davis in the motion.

Defendant’s motion to deny new trial

On June 6, 1990, Defense Attorney Marvin Glazier submitted a request that the Court deny Plaintiff's motion for a new trial.
     Glazier said Plaintiff asked the Court to rule that a new trial should be granted because Pollard testified that the police told him he passed lie detector tests. He said during cross examination he had asked Pollard whether or not he had spoken to any police officers and that the question was asked to clarify why Pollard came back to Maine to talk to the police about the fire.  1

Glazier said it was only after Pollard began to answer his next question that my attorney objected to the mention of the lie detector tests.
"At this time the Court immediately gave a curative instruction to the Jury without any request for the same by counsel for the Plaintiff. Further, counsel for the Plaintiff at that time did not ask for any further instruction, did not ask that the court conduct a voir dire of the Jury or most importantly, did not ask that the Court conduct a voir dire of the Defendant to see if, in fact, he had deliberately mentioned the test.
     “It is also important to note that at no time did the Plaintiff ever request any other instructions or make any motion for a mistrial.”
Glazier said that Davis raised the issue that Detective Shuman was going to be called to testify about a lie detector test and that it was obvious that Paul Pollard made his comment to set up the testimony of Detective Shuman. 2
"[I]n this case the Plaintiff never asked for a mistrial at any time due to the statement made by the Defendant. In Maine, the Supreme Court has consistently held that the results of a polygraph test and a party’s willingness or unwillingness to take such a test are inadmissible. Counsel could find no case where a mistrial was not asked for because of the mention of the lie detector test and later a new trial granted for that reason. It would certainly seem that it is highly prejudicial to the Defendant at this time to have the Plaintiff request a new trial be granted for the reason of the inadvertent mention of the polygraph. Counsel had plenty of opportunity at trial to get into the issue of why the statement was made, any bad motive, and whether it was intentional. To wait for the Jury to make a decision and then suddenly decide after all has been said and done that somehow the Plaintiff was prejudiced is unfair.  3
     "Although the Plaintiff had three witnesses who testified that in their opinion the fire was set, it was clear that no formal investigation was made of the fire. “Further, of the three witnesses, only Corporal Jamison was asked any questions by the Plaintiff in terms of a fire investigation. Corporal Jamison was allowed to testify as to his beliefs, even though he admitted he was not completely sure of them, due to the lack of an investigation. The Plaintiff has asked that this Court find that the Jury decision was irrational and against the great weight of evidence. Certainly based on the complete lack of evidence offered by the Plaintiff, this is not the case.”  4
     "Finally, the fact that the Plaintiff did not ask for a mistrial, would seem to require the Court to deny the request for a new trial because the Plaintiff has basically waived any wrong that may have been caused by the lie detector test statement.”
Plaintiff's Reply Memorandum
 
June 19, 1990, Mr. Davis filed a Reply Memorandum to defendant’s request that the court deny Plaintiff’s motion for new trial. Davis’ reply motion mostly repeated what he had submitted to the court in his May 22 motion.
It is not likely that the Defendant made an innocent mistake when he testified not simply that he had taken a lie detector test, but answered his attorney’s question about contacts with the police to the following effect: ‘I was told by the police that I passed two lie detector tests.’ Defendant cites ... court established three criteria: whether or not the reference to the polygraph test was intentional; whether the witness testified about the results of the test; and, most importantly, whether or not substantial prejudice was likely to result from the testimony. … In view of his serious credibility problems, the Defendant probably felt that it was imperative that the Jury be told about the polygraph results. Based upon the evidence discussed above and in Plaintiff’s previous memorandum, the Plaintiff’s Motion for New Trial should be granted.
Motion for new trial denied

The weekend of July 14–15, 1990, I was out of town and did not see the BDN’s article titled new trial denied in Cochran case. Monday evening, July 16, it was brought to my attention through a friend that my trial had been denied. That evening I did read the article and in it Jed Davis was quoted as saying, “The only possibility now is an appeal, I don’t know if she (Leola Cochran) is interested in that.”
     July 17, 1990, at 9:53 a.m., I called Augusta and was told that Mr. Davis was not in at the time. I called back at 11:15 a.m. and Mr. Davis’ paralegal, who was also his wife, answered my call. She said Mr. Davis had a client with him at the time. She said she knew that my motion for a new trial had been denied and that she would send me a copy of the denial.
     July 24, 1990, one week after contacting Davis’ office I still hadn’t heard from Mr. Davis, I drove the 78 miles to Mr. Davis’ office in Augusta where I was told that Mr. Davis and his wife were on vacation on an island and there was no phone there.
     I then requested my file. I was told that I couldn’t have the file until Mr. Davis returned. I said I could have it and I wanted it now. The two large boxes were finally turned over to me and I carried the very heavy boxes to my car.
     Upon arriving home and going through the boxes, I found something very curious in some of my transcripts of the armed robbery trials in 1986. Lines and lines of testimony were unreadable because they had been blacked out with a permanent marker. I have no idea why Mr. Popkin destroyed my transcripts. I also found the letters Popkin had sent to Glazier and the federal court saying that he was redacting most of DCME Roy’s testimony.
     July 27, 1990 at 4:18 p.m., I called Mr. Davis’ office again and was told that he was still on vacation, so I asked to speak to his partner attorney. I spoke with him briefly concerning my case. He said he could not help me; that I should talk to Mr. Davis when he returned.
     August 10, 1990, nearly two weeks after my July 27 call, I called Mr. Davis again and was told that Mr. Davis and his wife were still on vacation. August 12, feeling desperate with not being able to contact Mr. Davis, I called Mr. Popkin. He had started working on Mike's case in 1988, but on April 30, 1990 he walked out on me, eleven days before trial to work for the Attorney General’s office. I talked with him concerning an appeal and his advice was for me to write my story, rather than an appeal.
     August 14, 1990 at 11:58 a.m., I called Mr. Davis’ office and again he was not available. At 3:35 p.m. I called again and did speak with Mr. Davis for sixteen minutes. This was 32 days after Judge Clarence C. Newcomber’s denial of a new trial and my first contact with Mr. Davis. We discussed an appeal and he said he would need more money. Mr. Davis did not inform me that my date to file an appeal had expired the previous day, August 13.
     Davis’ wife mailed me Judge Clarence C. Newcomber’s denial of a new trial:
With regard to defendant’s testimony that he had “taken and passed” a lie detector test, the court finds that such testimony does not warrant granting the relief requested by plaintiff. At the time defendant so testified, the court sustained plaintiff counsel’s objection and gave a curative instruction, telling the jury that they should completely disregard the testimony and that it would be improper for them to consider it in any manner.
     Plaintiff did not move for a mistrial at any time based on this testimony. Under the circumstances, the court finds that the measures taken by it were sufficient to safeguard against improper consideration of the lie detector reference made by defendant and that denial of the motions (founded upon reference to the test) will not result in a miscarriage of justice.
     And now, this 2nd day of July, 1990, after consideration of the various memoranda submitted on the issues, it is hereby Ordered that plaintiff’s motion for a new trial or for judgment notwithstanding the verdict is DENIED
I request extension of time to file an appeal

Shortly after my last conversation with Attorney Davis,  I decided that I was going to file an appeal on my own.  But I had to file an extension of time to file an appeal because I had waited too long.
      September 6, 1990, I filed a Motion and Affidavit Pro Se with the U.S. District Court in Bangor asking for an extension of time to file an appeal. I explained the reason why I was late in filing. Mr. Glazier's September 13, 1990 memorandum of law in opposition to my motion to extend time for filing an appeal said, “It is well-established law that when a party moves for an extension of time to file an appeal after the expiration of the 30-day time period provided for by F.R. App. P 4(a), the party must show ‘excusable neglect’ in order for the motion to be granted.”
     My motion for extension of time to file an appeal was denied on September 21, 1990.  U.S. District Judge C. Brock Hornby issued an order denying my motion for an extension of time to file an appeal: “... she cannot establish excusable neglect based upon deficiencies in her lawyer’s office procedures for communicating with clients when the lawyers were too busy or were on vacation.”
     Shortly after I lost my case against Mr. Pollard, the bills started coming from Mr. Davis’ office for nearly $5,000. I had very few breaks in my fight to get justice for my 24-year-old son’s brutal death. And then I learned that Mr. Ricker had never been paid. I spoke with him and I told him the amount of money I had given attorney Davis’ office and that they were supposed to pay him. He told me to just forget it. I was and still am very sorry that he was never paid but I had no more money. Perhaps if I had been allowed to help with some of the correspondence and PI Buchanan had been allowed to videotape, as he had offered to do, we could have paid Mr. Ricker.
     In a July 20, 1989 letter attorney Popkin wrote Mr. Ricker he wrote: Finally, let me volunteer the information that we will indeed be willing to pay you for any time you spend on this. I don’t mean to insult you by offering this – only, in my experience some retired state officials do not realize that it is the usual practice of attorneys to pay experts. Let us know about this. We do not expect you to spend your time for nothing. This is purely up to you.


March 7, 1991 I received a letter from the U.S. District Court—nearly one year after my lawsuit ended.  I was asked to pick up the gasoline cans that had been at the courthouse since Mr. Ricker brought them to the trial in May of 1990. (Mr. Ricker had the gas cans stored in his barn for nine years before bringing them to court in 1990. The court had them one year before I was asked to pick them up. I then had them until March 15, 2002—eleven years. There were two photo included in the letter that had been exhibits at trial. Eleven photos had been submitted at trial but I only received two of them. One was a photo of the gas can that was below the back door covered with fire debris the other was of the arson scene. I am sure the other photos were more of Ricker’s photos of Mike’s body. I believe someone decided I shouldn’t have them.


The two cans I am holding have Mike’s name, the date of his murder (February 18, 1981), and homicide written on the tags. The cans contained the gas that was thrown all over the inside of the cottage and poured onto Mike as he lay on the floor dying. The doors were locked open, the gas was trailed to the outside, and there was a vapor explosion according to Fire Inspector Wilbur Ricker and MSP Cpl. Allen Jamison. In Inspector Ricker’s deposition, he explained why his expert opinion was that gas had been poured directly onto Mike.

NOTES
  
1    Pollard did not come back to Maine to talk to the police about “the fire.” He came back to Maine to appear in court on a forgery charge. It was only after Shuman arrived there and arrested him for firing five bullets into the Young residence that he talked about “the fire.”

2    I strongly believe that it was Det. Shuman who advised Pollard to testify that he had passed two polygraph tests during one of the times he had him in a closed room at the courthouse.
 
  3   I found it interesting that Glazier pointed out several times in his motion that there was no investigation of the arson.
 
 4   State Fire Inspector Ricker's said almost the same thing in his January 1990 deposition. He said he didn’t recall any investigation done by the state police and that he was not contacted again after March 6, 1981 when he was called to the murder scene to help locate a gun.