Accused takes Fifth in store arson trial

BANGOR – The co-defendant in an arson case at a downtown lingerie store invoked his Fifth Amendment right not to testify Tuesday during the second day of the trial of 19-year-old Scott Gagnon, who is also accused in the April 4 fire.

Gagnon’s attorney, Jeffrey Silverstein of Bangor, suggested Tuesday there might be an alternative suspect in the fire and told Justice Andrew Mead that he had subpoenaed the man. That suspect, however, checked into Acadia Hospital four days ago and is now unavailable to testify.

Out of the presence of the jury, Silverstein told Mead that he intended to call to the stand co-defendant Harold Hawkes of Bangor, 19, who is expected to stand trial for the same crime this winter. Hawkes was brought to the courthouse from the Penobscot County Jail and, along with his attorney, Donald Brown of Bangor, told the court that he would not testify, invoking his rights protecting himself from self-incrimination.

Though Hawkes has already implicated Gagnon in the fire, Silverstein hoped to point out differences in the statements the two men made to police, thereby suggesting that no one really knew which one, if either, was responsible for the fire.

Both Hawkes and Gagnon have been in the Penobscot County Jail since their arrest in April.

Now Silverstein plans to call to the stand Bangor detectives who interviewed Hawkes when he was arrested days after the fire that destroyed the Extra Touch and severely damaged the historic building at 27 State St.

Today, jurors at the Penobscot County Superior Courthouse are expected to hear a two-hour taped interview that police conducted with Gagnon days after the fire occurred. Though Gagnon initially denied any involvement in the fire, he later reportedly confessed to having the lit Molotov cocktail in his hand and tossing it into the store.

The state has admitted into evidence a piece of cast iron believed to have been used to break the window before the flaming device was thrown inside.

Hawkes reportedly has admitted to making the cocktail out of a plastic bottle, lighter fluid and a handkerchief, but claims Gagnon threw it inside the store.

Though the taped confession is expected to be damaging to Gagnon’s case, Silverstein is arguing that Gagnon only confessed because police badgered him for two hours.

“He finally told them what they wanted to hear,” Silverstein said.

For most of the day Tuesday, jurors heard testimony from investigators with the State Fire Marshal’s Office who testified that their investigation determined that the fire was set intentionally and that a liquid accelerant was used.

They also testified that shards of glass found on the floor suggested that the plate-glass window at the store had been broken before the fire started.

At the end of the day, Silverstein spoke with Justice Mead in the courtroom about the possibility of a court order mandating that Acadia allow a warrant to be served on the patient Silverstein mentioned as a possible alternative suspect, so that he could testify later this week.

Mead suggested that Silverstein research what rights were available to the defense in that regard. “I’d obviously like to have him here to testify,” Silverstein said. “But we have not ever had much luck in breaking through the confidentiality rules of Acadia.”

Mead said he was disturbed that people could escape “the process” by checking into a hospital.

“I find it disturbing that there is a sovereign state within our border that allows a person to avoid the process. It’s kind of like going to Switzerland, isn’t it?” said the judge.

The issue remained unresolved Tuesday. Silverstein would have to show the court that there was reason to believe that the “alternative suspect’s” statements that he set the fire were at least in some part reliable before Mead would allow the testimony anyway.