PORTLAND — The state’s highest court gave a scathing appraisal of a prosecutor’s conduct at a Lewiston man’s appeal for a new trial on Thursday. 

Buddy Robinson, 33, was convicted of murder in the death of Christiana Fesmire and was sentenced to 55 years in prison in October 2013.

He is asking the Maine Supreme Judicial Court to throw out the conviction on the grounds that the trial tactics used by prosecutors outweighed the evidence.

Robinson was convicted in the 2011 beating and drowning death of Fesmire, 22, who lived downstairs from his Highland Avenue apartment. 

Last June, a judge in Androscoggin County Superior Court denied Robinson’s motion for a new trial, finding Assistant Attorney General Andrew Benson’s conduct had not caused “a harmful prejudicial error such that substantial justice has not been done.”

Robinson’s appellate lawyer, Adam Sherman, did not contest the evidence but the courtroom tactics, arguing that had lawyers for the state not acted inappropriately the jury would have dismissed the charges.

Among the allegations is that Benson, now a district court judge, prejudiced jurors during closing arguments by making nonverbal instructions to the jury and feigning sleep during the defense’s arguments. 

In oral arguments Thursday morning, Chief Justice Leigh Saufley called that behavior “sophomoric.”

“It’s unprofessional and discouraging to see something like that come from a professional prosecutor’s office,” Saufley said, before adding, “On the other hand, isn’t it more likely to have the jury disrespecting the prosecution than redounding to the detriment of the defendant?”

Among the allegations was that Benson mouthed the words, “He did,” or, “He did it,” as the jury was being asked rhetorically which of the suspects in the case would have known about a family reunion Fesmire had planned to attend.

In addition, Sherman said, Benson made sarcastic statements that prosecutors never convict the right person — implying that they do, indeed, always get the right man — using the prestige of the attorney general’s office to leverage the jury into a decision not based on the facts. 

But Assistant Attorney General Donald Macomber said that if justices accepted such an interpretation, they’d be acting on information they didn’t have: the mind-set of jurors. 

Macomber said any effect Benson’s comments had on jurors, who were instructed by the judge to review only the evidence in making their decision, would be based upon assumption. 

“I’m not going to stand here and say (Benson’s behavior) is appropriate conduct on the part of a prosecutor,” Macomber said. “But what you’re looking at is three isolated sentences in the context of a 59-page (trial) transcript.”  

Benson would later testify that he had no recollection of making those statements, mirroring the lower court’s conclusion that despite credible testimony to the contrary, it was just as likely the incident never happened. 

Saufley, however, said such a conclusion presented a logical gap: If the court found the story credible, why didn’t it believe it? 

Saufley said Benson admitted to feigning sleep for the sole purpose of annoying Robinson’s attorney, and was concerned whether jurors saw — and how they felt — about the conduct. 

“When do we get to the point that this is not acceptable behavior and we’re not going to allow the trial to stand?” she asked. 

Macomber said the trial judge, on balance, took into consideration Benson’s and two officers’ testimony that the event did not take place. Even if Benson intended to annoy the defense lawyer, the verdict was correct, Macomber said. 

“There’s no question (Robinson) had a fair trial,” Macomber said. 

When he said that evidence outweighed courtroom antics, Justice Ellen Gorman quipped with frustration, “So the better the state’s case, the more misconduct you can get away with?”

Gorman added, “If the state of Maine is winning most of its homicide cases because it has a lot of good evidence, but in doing so the record is replete with prosecutorial misconduct, shouldn’t we start vacating convictions to save the process?” 

Not if the evidence is great enough, Macomber said. 

ccrosby@sunmediagroup.net