Judge denies Ardolino appeal in death of son, 9

BANGOR – A Superior Court justice has denied a Harrington man’s request for a new trial in the death of his 9-year-old son, but Robert Ardolino’s lawyer plans to appeal the decision to the state supreme court.

Justice Andrew Mead found in his seven-page order that Ardolino’s trial attorney, Daniel Lilley, handled the case appropriately and was not “ineffective” in his counsel to Ardolino, which Ardolino’s new attorney claimed during a hearing in Bangor last month.

Ardolino, 48, was convicted in March 1996 of killing Matthew Ardolino. Ardolino’s older son, Daniel Ardolino, testified during the trial that his father kicked Matthew in the stomach and jabbed him repeatedly in the abdomen with a baseball bat at the family’s Harrington home in 1993. Matthew Ardolino died several hours later from a massive abdominal infection caused when his small intestine ruptured.

During last month’s hearing, Ardolino’s new attorney, Robert Rosenthal of New York City, argued that a transcript of an audiotape of an interview police conducted with Robert Ardolino the morning his son died contained 100 errors.

The tape has since been enhanced and some of the statements made by Robert Ardolino that were inaudible before can now be heard clearly and may have made a big difference in how the jury decided the case, Rosenthal argued.

The attorney argued that Lilley should have had the tapes enhanced before the 1996 trial.

Mead acknowledged in his decision that the enhanced version of the tape contains a number of instances in which the original transcript appears to be in error, but he found that “most of the changes are utterly innocuous.”

Rosenthal also argued that Lilley should have challenged the admissibility of the testimony of Dr. Lawrence Ricci, who testified at trial that Matthew Ardolino suffered from battered child syndrome. Rosenthal said during last month’s hearing that Lilley should have suggested more strongly through questioning that Matthew Ardolino’s injuries could have been caused by other reasons, such as fights with other children and bicycle accidents.

“Even accepting these possibilities at face value, the fact that most of the injuries were sustained within the last five days of Matthew’s life [as testified to by all the experts] makes [Robert Ardolino’s] assertions patently unlikely. … The question of the sheer magnitude of the number of bruises would still be unanswered.”

The third argument made in Ardolino’s quest for a new trial dealt with interviewing techniques that detectives used when questioning Daniel Ardolino. Rosenthal played the audiotaped interviews that were conducted with Daniel and put an expert on the stand to testify that police used “suggestive and biased” tactics to get Daniel Ardolino to tell them that his father had beaten Matthew.

Dr. Maggie Bruck, who works in the psychology department at Johns Hopkins University in Baltimore, testified that the detectives broke every rule pertaining to proper interviewing tactics when they conducted the interviews with Daniel Ardolino.

She suggested that the interview techniques were abusive and that as a result, statements made by Daniel Ardolino are unreliable. Daniel Ardolino was the state’s primary witness in the case against his father.

Rosenthal argued that Lilley should have retained Bruck or another expert to testify at trial, which may have caused jurors to question the boy’s testimony.

Mead found that Bruck’s opinion that children are susceptible to suggestion and manipulation by adults is held by any average person. Mead found that even had Lilley sought to have Bruck testify at trial, the trial judge probably would not have allowed her testimony because her “conclusions do not significantly add to the common perception of people living in society, which includes children.”

Contacted at his office Wednesday, Rosenthal said he completely disagreed with Mead’s decision and said he plans to appeal the case to the Maine Supreme Judicial Court.

The Law Court already has heard the legal argument regarding the enhanced tapes and denied Robert Ardolino a new trial based on that argument. Now Rosenthal hopes the court will agree to hear his arguments regarding the battered child syndrome testimony and the testimony of Bruck.

Rosenthal will petition the court to hear the case, but the court can elect not to hear the appeal.

“If that happens or if we are heard and lose, then we will go to the federal court,” said Rosenthal.

Federal courts can hear appeals of cases that have been through every appeal at the state level, but normally they overturn cases only if a grievous constitutional error has occurred.

Ardolino is serving a 35-year prison sentence for the murder.