Cardilli v. State of Maine

STATE OF MAINE UNIFIED CRIMINAL DOCKET

CUMBERLAND, ss. DOCKET NO. CUMCD-CR-22-1145
MARK CARDILLI JR., )
)
Petitioner, )
)
Vv. ) ORDER ON PETITION FOR
) POST-CONVICTION REVIEW
STATE OF MAINE, )
)
Respondent. )

Before the Court is Petitioner Mark Cardilli Jr.’s request for Post-Conviction

Review (PCR) pursuant to 15 M.R.S. §§ 2121-2132.
PRELIMINARY STATEMENT

At the outset, this court notes that this is one of the most challenging cases in
its career. A PCR hearing is not a retrial of the underlying case but rather an
evaluation of whether a defendant’s right under the 6th Amendment to the United
States Constitution to adequate legal representation has been violated.

The nature of the relatively small Maine legal community means that it is
inevitable that a PCR judge will be required to evaluate the performance of lawyers
who routinely appear in front of that judge. This court has had multiple cases with
trial counsel in this case, Attorney Matthew Nichols and then-Attorney Churchill,

including complicated and difficult high-profile cases. Their performance in those
cases was exemplary. They have both earned outstanding reputations in the criminal
defense bar.

The next challenge is that Attorney Churchill is now a Maine District Court
Judge. ' and a professional colleague of this court. I agreed to accept assignment in
this case because I sit in the Superior Court, not the District Court, and | am assigned
to a different judicial region. As a result, I have no day-to-day professional
interactions with Judge Churchill. I also have no social interaction with Judge
Churchill outside of occasional judicial trainings and meetings. Accordingly, I feel
I can appropriately and impartially evaluate the defense of Mr. Cardilli during his
murder trial.

Finally, it is routine for a PCR to be assigned to the judge who heard the trial.
That judge has seen the witnesses in person and has a greater understanding of the
trial dynamics apart from simply reading a voluminous transcript. The trial judge
who decided this matter was Superior Court Justice Nancy Mills. Justice Mills is
now in active-retired judicial status. Although that would not have precluded
assignment of this case to her, one of the claims advanced by Mr. Cardilli is that he
waived his right to a jury trial in favor of a bench trial with Justice Mills because of

representations by Attorney Nichols that led Mr. Cardilli to believe that Justice Mills

' As this case relates to Judge Churchil]’s role at the trial in this case in her prior career as an attorney, she shail be
referred to as Attorney Churchill in this decision.
would be inclined to rule in his favor based on a personal relationship between
Attorney Nichols’ family and Justice Mills. This court concludes that this allegation
is meritless for reasons discussed below. However, the nature of these allegations
made assignment to another judge necessary.
PROCEDURAL BACKGROUND

By indictment dated April 5, 2019, Mr. Cardilli was charged with the
intentional and knowing murder of Ishak Muse, in violation of 17-A M.R.S. section
201{A). The Superior Court (Cumberland County, Mi//s, J.) held a bench trial from
December 9 through December 13, 2019. On December 27, 2019, the court issued a
Judgment, finding Mr. Cardilli not guilty of intentional and knowing murder but
guilty of manslaughter with a dangerous weapon in violation of section 203(1)(A).
State v. Cardilli, No. CUMCD-CR-2019-01823 Unified Criminal Docket
(Cumberland Cnty., Dec. 27, 2019). On August 31, 2020, the trial court imposed a
sentence of 11 years in prison, all but seven and a half years suspended, and four
years of probation. Mr. Cardilli timely appealed on September 1, 2020. The Law
Court affirmed the judgment of conviction on June 17, 2021. State v. Cardilli, 2021
ME 31, 254 A.3d 415.

On June 24, 2021, Mr. Cardilli filed a Motion to Reconsider and Recall the
Mandate. The Law Court denied the motion. On April 1, 2022, Mr. Cardilli filed the

instant petition for post-conviction review, claiming ineffective assistance of trial
counsel, Mr. Cardilli alleges that he was deprived of a fair trial because trial counsel
(1) failed to present a self-defense justification under 17-A M.R.S. section
108(2)(A), (2) improperly counseled Mr. Cardilli into waiving his right to a jury
trial, and (3) misunderstood the law of justification under section 101(3).
FACTUAL BACKGROUND

In March 2019, Mr. Cardilli returned to Portland after five years of Army
service and began living in his family home with his parents and his seventeen-year-
old sister.* At that time, his sister was under bail conditions of no contact with her
twenty-two-year-old boyfriend, Ishak Muse. On March 15, 2019, Mr. Cardilli’s
sister ignored bail conditions and invited Mr. Muse to come over to the house. Mr.
Muse arrived at 10:00 p.m., and after a family argument over his presence, Mr.
Cardilli’s parents agreed to allow Mr. Muse to stay until 1:00 a.m.

At 1:00 a.m., Mr. Muse refused to leave, and another family argument began.
This time, Mr. Cardilli’s parents held firm and continued to tell Mr. Muse to leave.
When he refused, Mr. Cardilli and his father escorted Mr. Muse to the door to a
breezeway and tried to make him leave, but Mr. Muse pushed them off and forced

his way back into the kitchen. At this point, the altercation became physical, with

* As the facts of this case have been thoroughly set forth in State v. Cardilfi, 2021 ME 31, 254
A.3d 415, this court provides only a brief recitation of essential facts.

4
Mr. Cardilli’s sister hitting her family members and Mr. Muse attempting to punch
Mr. Cardilli. Mr. Cardilli went to his bedroom to grab his gun.

When Mr. Cardilli returned to the kitchen, he pointed the gun at Mr. Muse
and again told him to leave. Mr. Muse did not leave, but instead began hitting Mr.
Cardilli. Mr. Muse punched Mr. Cardilli in the face several times while Mr. Cardilli
retreated with the gun at his side. As Mr. Muse went to punch him again, Mr. Cardilli
raised the gun and shot three times; the first shot grazed Mr. Muse’s hand and brow
and the second and third hit his torso. The shooting occurred at approximately 1:43
a.m. Mr. Cardilli called the police to report the shooting. Emergency responders
confirmed Mr. Muse dead on the scene.

DISCUSSION

A criminal defendant’s right to the effective assistance of an attorney is
protected by the 6th Amendment to the United States Constitution and article I,
section 6 of the Maine Constitution. Watson v. State, 2020 ME 51, 4 17, 230 A.3d 6.
On post-conviction review, claims of ineffective assistance of counsel are analyzed
under the two-part test outlined in Strickland v. Washington, 466 U.S. 668 (1984),
The petitioner must demonstrate that (1) “counsel’s representation fell below an
objective standard of reasonableness,” and (2) “errors of counsel... actually had an
adverse effect on the defense.” Theriault v. State, 2015 ME 137,914, 125 A.3d 1163

(quoting Strickland, 466 U.S. at 693).
Under the first prong of the Strickland test, the petitioner must show that
counsel’s performance fell below an objective standard of reasonableness. Watson,
2020 ME 51, 4 19, 230 A.3d 6. “The proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.” /d. (quoting
Strickland, 466 U.S. at 688). The Law Court has clarified that “counsel’s
representation of a defendant falls below the objective standard of reasonableness if
it falls ‘below what might be expected from an ordinary fallible attorney.’”
Philbrook v. State, 2017 ME 162,97, 167 A.3d 1266 (quoting Francis v. State, 2007
ME 148, 74, 938 A.2d 10).

Under the second prong of the Strickland test, the petitioner must prove that
counsel’s errors “actually had an adverse effect on the defense.” Watson, 2020 ME
51, | 29, 230 A.3d 6 (quoting Ford v. State, 2019 ME 47, ¢ 11, 205 A.3d 896. This
is not a quantitative inquiry, but a qualitative one. Theriault, 2015 ME 137, 9 19,
125 A.3d 1163. The Court must “determine whether the petitioner has demonstrated
that trial counsel’s performance undermines confidence in the outcome of the case
and renders that outcome unreliable.” Id.

I. Failure to Present 17-A M.R.S. § 108(2)(A) Defense

Mr. Cardilli first argues that trial counsel was ineffective in failing to present

a self-defense justification pursuant to 17-A M.R.S. section 108(2)(A). In a murder

trial, it is the State’s burden to prove beyond a reasonable doubt that “(1) the victim
is dead; (2) the defendant caused his death; (3) the defendant’s conduct was
voluntary; and (4) the defendant acted knowingly or intentionally.” State v. Jeskey,
2016 ME 134, ¥ 31, 146 A.3d 127. If the defendant pursues a self-defense
justification, he “bears the burden of production to generate the issue with sufficient
evidence.” State v. Herzog, 2012 ME 73, 7 8, 44 A.3d 307. The burden then shifts
back to the State to disprove the defense. /d.

Section 108(2)(A) provides:

2. A person is justified in using deadly force upon another person:

A. When the person reasonably believes it necessary and reasonably
believes such other person ts:

(1) About to use unlawful, deadly force against the person or a 3rd
personf,]

Mr. Cardilli contends that trial counsel failed to argue self-defense under section
108(2)(A) at trial, and that trial counsel’s failure to make that argument constitutes
ineffective assistance of counsel. The court will begin by outlining relevant evidence
from the PCR hearing and then move on to a Strickland analysis.

A. Evidence at PCR Hearing

As stated above, Mr. Cardilli was represented at trial by Attorney Nichols and
Attorney Churchill, both of whom testified at the PCR hearing. Mr. Cardilli also

presented the testimony of two expert witnesses, Associate Professor Thea Johnson
of Rutgers University Law School, and Thomas Aveni, Executive Director of Police
Policy Studies Council,

Then-Attorney Churchill

Then- Attorney Churchill testified that self-defense under section 108(2)(A)
was not presented at trial because there did not appear to be imminent use of deadly
force by Mr. Muse that would have justified that defense. (Tr.1. 174: 8-14; 175:10-
14.) In her recollection, the only defenses presented at trial were: (1) defense of

premises under section 104(3),’ and (2) self-defense under section 108(2)(B)./ (Tr. 1.

717-A M.R.S, § 104(3) provides:

3. A person in possession or control of a dwelling place or a person who is licensed or privileged
to be therein is justified in using deadly force upon another person:

A. Under the circumstances enumerated in section 108; or
B. When the person reasonably believes that deadly force is necessary to prevent or terminate
the commission of a criminal trespass by such other person, who the person reasonably

believes:

(1) Has entered or is attempting to enter the dwelling place or has surreptitiously remained
within the dwelling place without a license or privilege to do so; and

(2) Is committing or is likely to commit some other crime within the dwelling place.
“17-A MLR.S. § 108(2)(B) provides:
2. A person is justified in using deadly force upon another person .. .
B. When the person reasonably believes:
(1) That such other person has entered or is attempting to enter a dwelling place or has

surreptitiously remained within a dwelling place without a license or privilege to do so;
and
175:1-12.) She testified that the focus of the defense strategy was proving that Mr.
Muse had “surreptitiously remained” in the Cardilli house. (Tr.1. 180:5-8.)
Consistent with that view of trial strategy, Judge Churchill testified that she excluded
self-defense under section 108(2)(A) when she wrote the written closing argument,
which she agreed states: “This is not a self-defense case under [section] 108(2)(A)
where the court needs to determine whether Mr. Muse was going to inflict deadly
force on any of the inhabitants of [the Cardilli household].” (Pet’r Ex. 20.)

Attorney Nichols

Attorney Nichols testified that trial counsel pursued a two-prong defense: (1)
use of force in defense of property under section 104(3), and (2) self-defense under
section 108(2) “in its entirety,” including both (A) defense against a person who is
about to use unlawful deadly force, and (B) defense against a person who has
surreptitiously remained in a dwelling place. (Tr.1. 38:13-15.) He stated that
surreptitious was the “keyword” of the defense (Tr.1. 25:1-2), but that self-defense
under section 108(2)(A) was also argued throughout the trial and in his oral closing.
(Tr.1. 28:22-29:5; 36:3-5.)

Attorney Nichols further testified that the division of trial work was such that

he did most of the examinations and Attorney Churchill was responsible for the

(2) That deadly force is necessary to prevent the infliction of bodily injury by such other
person upon the person or a 3rd person present in the dwelling place[.|

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research and writing. (Tr.1. 33:12-18.} He stated that Attorney Churchill wrote the
written closing argument and signed it for him, in his name. (Tr.1 29:21-25,)
Attorney Nichols testified that he did not read the written closing argument and was
unaware that self-defense under section 108(2)(A) had been excluded from the trial
court’s consideration until he read the June 2021 Law Court opinion. (Tr.1. 29:23-
30:16.)

Mr. Cardilli

Mr. Cardilli testified that he discussed with trial counsel his fear of suffering
death or serious bodily injury during the altercation with Mr. Muse, stating as
follows:

I told everyone that [sic] I feared that a punch could kill me. And if it

wasn’t the punch itself that’d kill me, being knocked out, having him

take the weapon from me, and turn it on my family, my ailing, now

deceased father, or myself would be what would happen.
(Trl. 215: 14-19.) Although he was unable to pinpoint exactly when these
conversations with trial counsel took place, Mr. Cardillt testified that he frequently
discussed his fears of death or serious bodily injury with Attorney Nichols. (Tr.1

218:3-11.)

Professor Thea Johnson

Professor Johnson is currently an Associate Professor of Law at Rutgers Law

School. She has also taught at the University of Maine School of Law and Stanford

10
Law School. Her professional experiences include working as a staff attorney at the
Federal Defenders of New York litigating habeas corpus petitions as well as serving
as a staff attorney in the Criminal Defense Division of the Legal Aid Society of New
York. In her work at the Legal Aid Society, she handled an active caseload of
criminal defense matters and served as a faculty member in the training program for
New York City public defenders.

Professor Johnson testified that self-defense under section 108(2)(A) was
generated by the evidence and should have been presented at trial. (Tr.2. 41:13-18.)
She referenced evidence demonstrating that Mr. Cardilli was assaulted, that he felt
fear, and that there was a “very violent chaotic scene.” (Tr.2. 41:20-25.) In her view,
“there was never any full-throated embrace of” self-defense under section 108(2)(A)
at trial. (Tr.2. 42:3-4.) She acknowledged that Attorney Nichols stated once in oral
closing that Mr. Cardilli was in fear of his life, but she clarified that he did not present
any legal argument in relation to that statement (Tr.2. 42: 5-13), and that “there was
an absolute failure to argue that point” in the written closing. (Tr.2. 42:14-15.)

Professor Johnson also testified that trial counsel’s “surreptitiously remained”
defense was not strong, noting that there was no “groundswell of caselaw that
supported their particular argument,” and that nothing in the writing closing
“indicated that surreptitious had a particular meaning that covered this scenario,”

where Mr. Muse “was invited to the house and everyone knew he was in the house.”

11
(Tr.2. 38:2-39:7.) She opined that “it was reasonable to make the argument that
surreptitious could also include that [Mr. Muse] was hiding in the room and had been
told to leave,” but that there was not “some obvious point of law” in support of that
argument. (Tr.2. 39:9-14.)

Professor Johnson was also “particularly concerned . . . that co-counsel had
conflicting views of the strategy.” (Tr.2. 43:9-116.) She testified that, to the extent
that there was a division of labor between trial counsel, any such division must “have
harmony to it in which [co-counsel] are on the same page about what the strategy
is.” (Tr.2. 43:17-24.) Ultimately, it is Professor Johnsen’s opinion that trial counsel’s
representation “certainly [fell] below prevailing professional norms in a murder
case.” (Tr.2. 43:25-44:4.) This court finds Professor Johnson’s testimony and
opinions credible and persuasive on the self-defense issues set forth in this section,

Thomas Aveni

Mr. Aveni is a former state and local law enforcement officer who is the Executive
Director and Co -Founder of the Police Policy Studies Council. He has been the lead
instructor at nationally presented seminars on the appropriate use of deadly force.
He is a certified police trainer and has trained over 15,000 police, security and

military personnel from the United States and 23 other countries.

12
Mr. Aveni testified the evidence presented at trial supported a self-defense
justification for the use of deadly force in defense of a person. When discussing the
level of threat posed by Mr. Muse, Mr. Aveni referenced the differences between
Mr. Muse and Mr. Cardilli in terms of size, stating that because Mr. Muse was taller
and heavier, he could “throw punches with near impunity.” (Tr.2. 87:9-21.) In Mr.
Aveni’s opinion, that created a more dangerous situation for Mr. Cardilli, as the
smaller person. (Tr.2. 88:1-6.) Mr. Aveni also noted that Mr. Cardilli took repeated
blows to the head from Mr. Muse. (Tr.2. 97:13-17.)

When discussing Mr. Cardilli’s use of force, Mr. Aveni called attention to the
folowing evidence introduced at trial: the encounter escalated quickly, morphing
from a verbal dispute to a physical confrontation (Tr.2. 86:11-12; 99:22-24); Mr.
Cardilli witnessed his parents being assaulted (Tr.2. 103:23-24); Mr. Cardilli was
himself assaulted (Tr.2. 103:25-104:2); throughout the assault on his person, Mr.
Cardilli was retreating with the gun held at his side (Tr.2, 93:5-11); and, at the
moment of the shooting, Mr. Cardilli had been backed into the wail. (Tr.2. 95:13-
24.) Mr. Aveni explained that, in his opinion, “the fact that [Mr. Cardilli] had a gun,
took a beating, kept retreating, and didn’t use the gun until he thought he had to,”
demonstrated that Mr. Cardilli exercised considerable restraint in the encounter.

(Tr.2. 92:3-15; 103:21-104:7.) Mr. Avent placed little weight on the fact that Mr.

13
Muse did not have a weapon of his own, stating: “if someone is on top of you beating
you senselessly, your gun is his gun.” (Tr.2. 100:8-16.)

The court also finds Mr. Aveni’s opinions persuasive to the extent that these
were arguments available to the defense and needed to be more vigorously advocated
at trial and not waived in a written closing argument, This court is not able to draw
any conclusion about whether such arguments would be accepted by a factfinder,
only that they were available to the defense team who were experienced criminal
defense lawyers.

B. Performance

Mr. Cardilli has demonstrated that his attorneys did not have a cohesive trial
strategy. It is clear from the testimony presented at the PCR hearing that trial counsel
had opposing views as to whether self-defense under section 108(2)(A) was part of
Mr. Cardilli’s defense. The fact that trial counsel were unaware of the disharmony
between their two strategies at the time of trial evidences a significant breakdown of
communication. In any criminal case, but especially in a murder case, it is
unquestionable that counsel must have a clear trial strategy.

Further, there is some record evidence before the court to support Mr.
Cardifli’s assertion that self-defense under section 108(2)(A) was not presented
effectively at trial, despite having been generated by the evidence. The trial

transcripts indicate that Mr. Cardilli’s fears of death or bodily injury were not

14
thoroughly explored on direct examination. While evidence on direct was adduced
from Cardilli that he had been punched at least ten times in the nose and that in
response to Cardilli saying he would not shoot, Muse responded “shoot or kill me, I
want to die”, it was only briefly inquired on redirect about Cardilli’s fear of losing
the gun and fear of death. (Bench Trial TR2 p 782-784, 832.) Further, although
Attorney Nichols did state at the end of his oral closing that it was reasonable for
Mr. Cardilli to fear for his life, the oral closing overall was more tailored to the
argument that Mr. Muse had surreptitiously remained in the house.

Finally, the written closing argument specifically instructs the trial court that
it need not consider self-defense under section 108(2)(A) when reaching its decision.
Attorney Nichols concedes that, although he was lead counsel in this case, he did
not read the written closing argument and was unaware of its contents. Attorney
Nichols acknowledges that he did not intend to waive a 108(2)(A) defense and that
108(2)(A) was part of his defense strategy. However, in the words of the Law Court:

The record clearly shows that Cardilli not only failed to request a self-

defense justification pursuance to section 108(2)(A), but explicitly

argued that the evidence did not generate the self-defense justification.

He argued in a written memorandum in support of closing, “This is

not a self-defense case under [section] 108(2)(A) where the [c]ourt

needs to determine whether [Muse] was going to inflict deadly force

on any of the inhabitants of [the Cardilli home].” Further, even

though he asked the court to reconsider some of its rulings, Cardilli

never suggested that the self-defense justification provided by section
108(2)(A) had any application.

Cardilli, 2021 ME 31, 9 34, 254 A.3d 415.

15
After due consideration of these errors, the court finds that trial counsel’s
performance fell below the objective standard of reasonableness. As noted above,
the court is especially persuaded by Professor Johnson’s opinion that trial counsel’s
performance on the self-defense issue fell below prevailing professional norms.

C. Prejudice

This court is now tasked with evaluating the integrity of the decision-making
process, in terms of whether arguments were made as vigorously as required and
whether the waiver of any such arguments affected the decision-making process of
another judge. In Niehoff v. Shankman & Assocs. Legal Ctr., P.A., the Law Court
evaluated arguments about proximate causation in a legal malpractice case where an
argument had not been made. 2000 ME 214, § 9, 763 A.2d 121. It indicated that,
even in a civil matter, few results from a factfinder can be predicted, even on a more
likely than not standard. That same difficulty, by analogy, exists here under the

higher criminal standard of proof beyond a reasonable doubt.

As noted in Theriault, the prejudice test is not outcome determinative, 2015
ME 137, 20, 125 A.3d 1163. Niehoff illustrates, even in a civil context, the extreme
difficulty of attempting to predict how the absence of an argument would affect a

factfinder’s conclusions. 2000 ME 214, 49, 763 A.2d 121. Thus, the court is not

16
required to find that, had trial counsel argued self-defense under section 108(2)(A),
the outcome of the case would more likely than not have been different. Theriault,
2015 ME 137, ¥ 20, 125 A.3d 1163 (“[t]he result of a proceeding can be rendered
unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot
be shown by a preponderance of the evidence to have determined the outcome”
(quoting Strickland, 466 U.S. at 694)). Rather, the court must determine whether
trial counsel’s errors “compromis[ed] the reliability of the conviction and
undermin[ed] confidence in it.” Ja § 25.

As discussed above, the evidence before the court demonstrates that trial
counsel failed to have a cohesive trial strategy, did not vigorously argue self-defense
under section 108(2)(A) at trial, and explicitly advised the trial court that it need not
consider 108(2)(A) in its analysis. These failures call into question the fairness and
integrity of the trial court proceedings. While the court cannot say that, absent these
failures, it is more likely than not that the outcome would have been different, neither
can it have confidence in the conviction.

Put another way, parties submit motions for a reason. Parties argue orally and
in writing before the court for a reason. These practices are not extraneous to the
coutt’s deciston-making process. Here, not only did the trial court lack the benefit
of effective argument on self-defense under section 108(2)(A), but it was also

explicitly advised to disregard that defense. This court cannot speculate as to how

17
that fact might have affected the trial court’s conclusion that Mr. Cardilli believed
deadly force was necessary but that his belief was objectively unreasonable, thereby
implicating imperfect self-defense and reducing murder to manslaughter. In other
words, the trial court may have been influenced on some level that Mr. Cardilli’s
belief that deadly force was necessary was unreasonable because of the statement in
his written closing argument that deadly force was not justified under 108(2)(A).

In her decision, Justice Mills did a thorough and exhaustive review of the
evidence and arguments presented. She did not decide the case from the bench but
took the matter under advisement and requested the guidance of written closing
arguments. The written closing argument indicated self-defense under section
108(2)(A) was not generated by the facts of the case,

A review of Justice Mill’s decision indicates that while she did an in-depth
self-defense analysis with respect to the portions of self-defense that were raised in
the written closing arguments, she did not address or analyze section [08(2)(A). It
is reasonable to conclude this was due to the express written waiver of that argument.
In the request for additional findings of fact and conclusions of law, Justice Milis
also addressed the self-defense arguments made in written closing argument but
once again did not address or analyze the applicability of 108(2)(A). Once again,
this may have likely been because of the written closing argument waiver of that

defense.

18
The Law Court did note that the facts that were found by Justice Mills would

not have supported a 108(2)(A) defense:

Even if we were to assume that Cardilli’s section 108(2)(A) argument
was not expressly waived, we find it unpersuasive. The court’s findings
regarding the level of “threat” posed by Muse preclude a finding that
Cardilli held an objectively reasonable belief that Muse was about to
use unlawful, deadly force against anyone in the household. As
mentioned above, the court explicitly found that Muse was not armed
and that he did not at any time try to grab Cardilli’s gun. The court
specifically found that Muse’s response to seeing the gun was to ask for
his phone so he could call for a ride home. Even if Cardilli had an actual
belief that Muse was about to use deadly force by taking control of the
gun that Cardilli brought into the chaos—a belief not asserted by
Cardilli at triai—the court found that any such belief was objectively
unreasonable, The court aptly noted that “Muse had been drinking ail
day on March 15, 2019 and was impaired. Deadly force was not
required to prevent minimal bodily injury or to remove...Muse from
the house.”

Cardilli, 2021 ME 31, § 35, 254 A.3d 415. However, on post-conviction review,
where there has been a finding that Mr. Cardilli’s representation was deficient, the
issue is not whether the outcome of the case would have been different if trial counsel
had argued 108(2)(A), but rather, whether the integrity of the proceedings, including
the factfinding process, were affected by their failure to do so.

A thorough review of the trial transcripts indicates that Mr. Cardilli did, in
fact, assert at trial his fear, that after repeated blows to the nose and face, being

backed up against a wall with no retreat, and being told by Mr. Muse, “shoot me or

19
kill me, I want to die” > that Mr. Muse would take the gun from him, stating: “The
reason why I shot was I feared, not knowing how many more punches I could take,
and if I dropped the gun, lost the gun, Mr. Muse would take it and turn it on me and
my family.” (Bench Trial Tr.2, 832:7-10.) Given that Mr. Cardilli testified to his fear
that deadly force would be used against him, and that Attorney Nichols referenced
that fear in his oral closing argument, it is even more concerning that the issue was
waived in the written closing argument.

Analyzing the prejudice prong in this case is especially difficult. The written
closing argument indicated that this was not a case where the court needed to
consider whether deadly force was about to be utilized against a person. As discussed
by the Law Court, this was a waiver of that defense at trial. However, the court
concludes that this written argument was inconsistent with what Mr. Cardilli
reported to his lawyers and what he testified to at trial. Further, Mr. Cardilli did
indicate to Justice Mills that he feared Mr. Muse would use deadly force against him.
(Bench Trial Tr.2. 815:8-10; 832:7-10.) As the Law Court noted, Justice Mills’
decision included factual findings that would not have supported a 108(2)(A)
defense even if it had been raised. What is more difficult for this court to analyze ts

whether the written closing argument affected that factfinding process.

5 This allegedly was said by Mr. Muse after Cardilli said 1 do not want to shoot you. ( Bench Trial TR.2 p.782 )
20
Justice Mills it is one of the most respected trial jurists in Maine. This court
would not presume to attempt to analyze her fact -finding process and, in fact, to do
so would be pure speculation, When juries are instructed as to how to conduct the
fact -finding process and determine credibility, it is routine for them to be told that
that process involves the use of their common sense and life experiences and can
include their evaluation of the way witnesses behaved on the stand and whether they
appeared forthright or evasive. These decisions are individualized and subjective to
the fact finder, whether it be a juror or a judge.

All this court can do in terms of analyzing the integrity of the of the trial
process is determine whether Mr. Cardilli received a fair defense under Strickland.

Cardilli testified that he was not sure how many more blows he could take and
that if he lost the gun and he feared Mr. Muse would use the gun against him or his
family. Attorney Nichols argued orally that this belief was reasonable. When the
written closing argument contradicted those things there was a risk that not only did
it affect a waiver of the argument but potentially an assessment of the credibility of
Mr. Cardilli. This especially true when one considers that the law of self-defense
does not place the ultimate burden on the Defendant but rather that once generated ,

the State must disprove it with proof beyond a reasonable doubt.

21
Given Mr, Cardilli ‘s testimony on redirect at trial that he feared for his life,
if this court was deciding the trial, it would be concerned that the contradictory
waiver might have affected its analysis of the evidence.® These specific concerns
would be that (1) the contradiction of his belief in written closing argument by his
lawyer might have affected this court’s analysis of the validity and credibility of his
belief, (2) affected the evaluation of the credibility of the remainder of his testimony
and (3) the assessment of all the other testimony and evidence that was inconsistent
with his testimony.

Once again, this court cannot and does not speculate on what effect this

contradiction might have had on Justice Mills’ analysis.’

However, given this court’s trepidation that the written closing argument
might have affected its own factfinding judgment, and the fact that 108(A)(2) self-
defense was never specifically addressed in the judgment, this requires the court to

conclude that Mr. Cardilli has satisfied the prejudice prong of Strickland.

* This court is weil aware that opening and closing statements are not evidence. However, as Field and Murray,
Maine Evidence, 6th edition. Section 867.7 apply notes, a statement made by a lawyer on behalf of a client can be
construed as an admission by authorization. That is ordinarily only admissible when offered by an opposing party
because an admission must be contrary to a party’s position at trial. Here, while the statement was not offered by a
patty opponent, it was contrary to Mr. Cardilli’s trial testimony. Even if this is technically not evidence ,this court
can sce how that could have affected the fact finding process apart from simply being a legal waiver of argument.
7 In bench trials this court routinely asks for the aid of written closing memoranda. Those memoranda are usually
more detailed than oral closing arguments due to time constraints. This court views those as complementary to oral
closing arguments. Without there being something specifically highlighted in a written closing memorandum , it
would be highly unusual to become concerned a party's written closing argument was contradictory to the preceding
oral one.

22
For these reasons, the court finds that Mr. Cardilli was prejudiced by trial
counsel’s failure to present a 108(2)(A) justification.
II]. Waiver of Jury Trial Right

Mr. Cardilli next argues that his right to a jury trial was not knowingly and
intelligently made but was instead induced by the improper conduct of trial counsel.
The Maine Constitution guarantees the right to a jury trial in all criminal
prosecutions. Me. Const. art. I, § 6. Waiver of the right to a jury trial must be both
voluntary and intelligent. State v. Ouellette, 2006 ME 81, 12, 901 A.2d 800. Here,
Mr. Cardilli contends that his conversations with Attorney Nichols led him to believe
that certain outcomes were guaranteed.

A. Evidence at PCR Hearing

At the PCR hearing, Mr. Cardilli testified that Attorney Nichols advised him
that, due to the racial aspects of the case, a Cumberland County jury would never
acquit him. (Tr.1. 205:25-206:20.) Attorney Nichols testified that although he and
Mr. Cardiili did discuss the impact that the current political climate, including the
ongoing Black Lives Matter movement, could have on jury selection, they also
discussed the emotional nature of the case, the likelihood that Justice Mills would
be better able to apply the law to the facts than would 12 jurors, and a host of other
considerations. (Tr.1. 91:20-92:14.) Attorney Nichols testified that all of these

factors combined led him to recommend that Mr. Cardilli waive his right to a jury

23
trial, while still making clear that the ultimate decision was Mr. Cardilli’s alone.
(Tr.1. 97: 14-24.)

Mr. Cardilli further testified that his conversations with Attorney Nichols led
him to believe that ifhe were to waive his right to a jury trial in favor of a bench trial
before Justice Mills, that “it was going to work out” for him (Tr.1 192:1-11), and
that the bench trial itself would simply be “going through the motions.” (Tr. 1. 202:3-
5.) Testimony from the PCR hearing suggests that Attorney Nichols told a brief
anecdote that may have resulted in Mr. Cardilli and his mother forming the
impression that Attorney Nichols had a personal or familial relationship with Justice
Mills where no such relationship in fact existed. (Tr.1. 95:4-95:12.)

B. Performance

Attorney Nichols made a strategic decision in advising Mr. Cardilli to waive
his right to a jury trial. Strategic decisions by trial counsel deserve significant
deference and will not justify vacating a conviction unless they were “manifestly
unreasonable.” Theriault, 2015 ME 137, § 65, 125 A.3d 1163 (Alexander, J.,
dissenting) (quoting Pineo v. State, 2006 ME 119, § 13, 908 A.2d 632). Attorney
Nichols discussed a range of important and proper considerations with Mr. Cardilli,
and although he strongly advised Mr. Cardilli to waive his right to a jury trial, he

ultimately left the decision in Mr, Cardilli’s hands.

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Further, although attorneys should generally take care to avoid sharing stories
that could be construed to denote any kind of special relationship with the court, the
court credits Attorney Nichols’ recollection of the anecdote and the circumstances
associated with it. Because the court has found that trial counsel’s performance was
not deficient in this regard, no prejudice analysis is needed. Strickland, 466 U.S. at
697 (“there is no reason for a court deciding an ineffective assistance claim... to

address both components of the inquiry if the defendant makes an insufficient

showing on one”).
ili. Law of Justification

Finally, Mr. Cardilli argues that it was ineffective for trial counsel to have
misunderstood the standard for imperfect self-defense. Under section 101(3), the
State need only prove that a defendant’s actual beliefs related to the self-defense
justification were not reasonable.® Trial counsel relied on an earlier version of the
statute, which required the State to prove that the defendant’s beliefs grossly
deviated from what a reasonable person would believe in the same or similar

situation. See P.L. 2007, ch. 475, § 10 (effective June 30, 2008); Cardi/li, 2021 ME

8 17-A M.RS. § 101(3) provides:

3. Conduct that is justifiable under this chapter constitutes a defense to any crime; except that, if
a person is justified in using force against another, but the person recklessly injures or creates a
risk of injury to 3rd persons, the justification afforded by this chapter is unavailable in a
prosecution for such recklessness. If a defense provided under this chapter is precluded solely
because the requirement that the person’s belief be reasonable has not been met, the person may
be convicted only ofa crime for which recklessness or criminal negligence suffices.

25
31, YF 16-17, 254 A.3d 415. Mr. Cardilli argues that, had trial counsel accurately
explained the standard to him, it would have impacted his decisions regarding plea
offers, jury trial waiver, trial evidence, and trial arguments.

A. Evidence at PCR Hearing

Mr. Cardilli testified that around November of 2019, there was a conversation
wherein trial counsel advised him of the gross deviation standard and explained that
the burden would be on the State to prove that the standard was met. (Tr.1. 204:3-6;
205:12-24.) This conflicts with the testimony of Attorney Nichols, who stated
unequivocally that trial counsel did not discuss the gross deviation standard with Mr.
Cardilli during that conversation, or at any time, and that the words gross deviation
“were never mentioned” to Mr, Cardilli. (Tr.1, 106:12-20.) Judge Churchill could
not recall whether the gross deviation standard was discussed with Mr, Cardilli, but
she testified that her usual practice was to follow the statute book while speaking
with clients, and in that case, the term gross deviation would not have been uttered.
(Tr.1. 179:24-180:15.)

Attorney Nichols further testified that Mr. Cardilli “had zero interest in [sic]
pleading guilty to manslaughter under any conditions,” regardless of what the
possible sentence might be. (Tr.1. 151:17-23; 152:23-153:6; Tr.2. 130:7-10.) When

asked on the stand, Mr. Cardilli was unwilling to say whether he would have been

26
willing to plead guilty to manslaughter, had he known the correct standard. (Tr.2.
6:1-5.)

B. Prejudice

Based on the testimony provided, the Court is inclined to credit Attorney
Nichols’ memory that the gross deviation standard was not discussed with Mr.
Cardilli and therefore could not have affected any of his decisions. However, even
if that standard had been discussed, other evidence presented at the PCR hearing
suggests that Mr. Cardilli would not have accepted any plea related to manslaughter.
Further, the alleged conversation regarding the gross deviation standard occurred
after Mr. Cardilli waived his right to a jury trial on October 16, 2019, eliminating
any possibility that his decision to waive that right was impacted by trial counsel’s
misapprehension.

Finally, given that the trial court first found Mr. Cardilli guilty under the
correct standard of reasonableness, Mr. Cardilli was not prejudiced by trial counsel’s
success in convincing the trial court to also consider the case under the older, more
favorable standard. Because the court finds that Mr, Cardilli was not prejudiced by
this misunderstanding, no performance analysis is needed. Strickland, 466 U.S. at
697; McGowan v. State, 2006 ME 16, J 13, 894 A.2d 493 (“if it is determined that
there was no prejudice, there is no need to address the first prong regarding whether

counsel’s performance was deficient”).

at
CONCLUSION

Because Mr. Cardilli has proved that trial counsel’s failure to vigorously argue
self-defense under 17-A M.R.S. section 108(2)(A) constitutes ineffective assistance
of counsel, and that the waiver in written closing argument could have affected the
integrity of the factfinding process, the court must grant the petition for post-
conviction review. This court wants to make it clear that this decision is not an
indication that deadly force in defense of a person was justified in this case. Rather,
this decision is that Mr. Cardilli was entitled to have that defense fully and
effectively litigated in a cohesive defense strategy, and that that did not occur, in
violation of the 6th Amendment to the United States Constitution and the doctrine
set out in Strickland v. Washington.
Entry is:

Petitioner Mark Cardilli Jr.’s Petition for Post-Conviction Relief is hereby
Granted. The present criminal judgment is vacated. The matter is remanded for a

new trial. °? The clerk may enter this Order on the docket by reference pursuant to

MR. Civ. P. 79(a).

Dated: $/aa[as . ~ fpebr FraG

ohn O’Neil Jr.
Justice, Maine Superior Court

° This court has requested thal Chief Justice Robert Mullen of the Maine Superior Court specially assigned a trial
justice for any further proceedings in this matter.

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Entered on the Docket: