AUGUSTA — Extradited from Plattsburgh, N.Y., last October to face a 2011 charge that he had hit a 4-year-old girl with a hammer, Daniel Omar Cole, 38, spent several months in the Kennebec County jail in lieu of $50,000 bail.
He was freed Jan. 10 shortly before he was set to go to trial when the prosecution dismissed the indictment charging him with aggravated assault.
At the time, District Attorney Maeghan Maloney said the office would seek a new indictment on a charge of assault in connection with the same March 9, 2010, incident in Augusta. This time, the allegation — at least according to filings by Cole’s defense attorney Joshua Klein-Golden — was that Cole had forced the girl’s head into a toilet and did not mention a hammer.
A grand jury in Kennebec County indicted Cole, formerly of Augusta, on that charge Jan. 24, and he voluntarily returned to Maine for his arraignment and pleaded not guilty.
The case was set for jury selection on March 7.
Then on March 6, the prosecutor’s office dismissed the second indictment.
Klein-Golden now wants to make sure his client is not charged a third time in connection with the same incident. “He is relieved and excited that it’s over,” Klein-Golden said.
On Tuesday, Klein-Golden filed a written motion asking a judge in Kennebec County Superior Court to dismiss the case “with prejudice,” rather than “without prejudice” as it stands now.
He also asks the judge to sanction the prosecutor’s office by ordering it to reimburse the Maine Commission on Indigent Legal Services for more than $2,500 in fees Klein-Golden incurred in defending Cole.
Klein-Golden said he was fairly sure about obtaining a dismissal with prejudice but held out only faint hope for the reimbursement sanction.
“I think they should because they dismissed the case in January and expedited it the second time knowing they did not have an address or contact information for the child and her father,” Klein-Golden said.
He also maintains the discovery in the case showed the evidence against his client was weak.
“I received three or four different statements from the alleged victim,” Klein-Golden said. He said the girl at one point said it was her brother who had hit her, then a neighbor, and indicated she was fond of Cole.
“There was also a mention that he had put her head in a toilet while she was throwing up,” Klein-Golden said.
Maloney said an investigation started in 2010 when Cole took the child to a local hospital apparently after she suffered a seizure.
“Mr. Cole is not the victim’s father,” Maloney said. “The victim was living with her mother at the time of the incident, and Mr. Cole was the mother’s boyfriend.”
Maloney said her office had been in contact with a detective in a district attorney’s office in the state where the girl lives with her father. Maloney said that detective spoke with the victim’s father about the case, and he agreed to meet with the detective but never did so; and the detective’s subsequent attempts to contact the father by phone and in person were in vain.
She said Deputy District Attorney Fernand Larochelle spoke with the girl’s father once, but that subsequent calls were not returned.
“Without the victim, the state cannot prove the case at trial,” Maloney said in an email. “With the detective unable to find the father, we are not able to subpoena the victim. The court gave us until March 6th at 6 p.m. to either subpoena the victim through her father or to dismiss the case.”