Second murder trial begins for Windham man who shot his wife in their home

A second trial will begin Wednesday for a Windham man charged with murder in the shooting death of his wife.

Alicia Gaston Press Herald file photo

The first trial for Noah Gaston ended abruptly in February without a jury verdict. On the morning the state’s chief medical examiner was scheduled to testify, he said he needed to change a key phrase in his autopsy report, prompting a judge to declare a mistrial.

The court ultimately ordered a deposition so Dr. Mark Flomenbaum could explain why he shifted his opinion on forensic evidence, but any answers to that question have remained confidential as the parties prepared for a new trial. The mistrial also prompted a lawmaker to file a complaint about Flomenbaum’s side business as an expert witness in trials outside Maine, and a review by the Maine Attorney General’s Office is still ongoing after more than nine months.

With opening statements set to begin Wednesday, it is unclear what role those events will play in the current trial. A jury was selected Tuesday.

“The fact that (Flomenbaum) has some controversy associated with him, the circumstances of him changing his opinion, I’m really interested to see how that gets presented to the jury and how each of the parties manages the facts around that,” said Deirdre Smith, the director of the Cumberland Legal Aid Clinic at the University of Maine School of Law.

Nearly four years have passed since Gaston shot and killed Alicia Gaston in a stairwell in their home in the early morning hours of Jan. 14, 2016. He has said he believed his 34-year-old wife was an intruder, but prosecutors have argued that he intended to or at least knew he would kill her. A grand jury indicted him on charges of murder and manslaughter.

Now 37, Gaston has been held without bail in the Cumberland County Jail since his arrest soon after the young mother’s death.

Defense attorneys Rob Andrews and Jim Mason declined on Tuesday to answer further questions about the upcoming trial. A spokesman for the Maine Attorney General’s Office also declined to answer questions about a pending case.

The defense team had filed a request for a change of venue for the trial, citing extensive media reports in multiple outlets in the three years and 10 months since the shooting. Potential jurors answered a standard question on Tuesday about whether they had heard or read anything about the case, and whether media coverage had caused them to form an opinion about it. Because the court was able to select a jury, the defense attorneys said the trial will not be moved to another court.

The first trial for Gaston lasted just one day in February.

The attorneys delivered their opening statements, and the defendant wept as the audio recording of his 911 call on the morning of the shooting played in the courtroom. The jury heard testimony from first responders who were at the Windham house that day, as well as Alicia Gaston’s sister.

But Superior Court Justice Michaela Murphy abruptly sent the jury home on the second morning of trial, and the attorneys spent hours in closed-door meetings in her chambers. Testimony never resumed, and Murphy ultimately declared a mistrial. Court documents showed the dispute centered on Flomenbaum, who was scheduled to take the witness stand on the second day of the trial. He conducted the original autopsy of Alicia Gaston in 2016.

In his first report, Flomenbaum described the general direction of the shotgun wound as “very slightly downward.” But when he arrived at the courthouse for the trial, Assistant Attorney General Meg Elam showed him a photograph of the wound that would be used during his testimony, and he told her the direction of the wound might be as much as 45 degrees.

The angle of the wound was important to the investigators who estimated the distance between the husband and wife at the time of the fatal shot. Elam immediately told the defense team and the judge, who stopped the trial.

Flomenbaum filed an amended autopsy report. A motion filed by the prosecutor said Flomenbaum’s change was simply to describe the wound path as “slightly downward” instead of “very slightly downward,” and called it a clarification rather than a change of opinion.

But Murphy still granted a defense request to question Flomenbaum after a June hearing. The judge said at the time that she was not sure if the chief medical examiner’s opinion truly changed, or if the attorneys misunderstood his report. But she said that question needed to be answered before the court sits another jury.

“I’m not pointing fingers at anyone, but to describe what happened as inopportune is sort of the understatement of my last few years of work as a judge,” Murphy said at the time. “It should not have happened this way. It did happen this way. It is not going to happen this way again.”

Neither the amended autopsy report nor Flomenbaum’s deposition has been made public.

Smith, the law professor, said whether the jury learns about the mistrial or its cause will likely depend on Flomenbaum’s testimony.

“The fact of the mistrial would have to be relevant somehow to the proceedings,” she said. “Because the reason for the mistrial had to do with the change in opinion from the medical examiner, to the extent that he testifies again at this trial, some of the circumstances of him changing his opinion may be something that one or both of the parties may want to bring out.”

After the mistrial, state Rep. Jeff Evangelos, an independent from Friendship, filed a complaint about Flomenbaum with the Maine Attorney General’s Office.

Spokesman Marc Malon confirmed in March that the office had launched a review of that complaint, but he declined to release a copy or share more information about it, citing the confidentiality of personnel records.

Evangelos shared his initial email complaint with the Portland Press Herald. He wrote that he took no issue at that point with the mistrial, saying he would be pleased if the medical examiner was willing to change his opinion based on legitimate findings in order to be accurate.

But Evangelos raised concerns about Flomenbaum’s outside business called Lincoln Forensics LLC, where he does consultant work and sometimes testifies in court proceedings in other states. Evangelos said he is concerned that work is diminishing Flomenbaum’s credibility in Maine.

Malon said Tuesday in an email that the review is ongoing. He declined to describe the process or answer a question about why the process has taken more than nine months.

The family of Alicia Gaston has made few public statements about the case, but released a written statement in advance of the first trial.

“Initially it was very difficult to process what happened,” her sister-in-law, Amy Ouellette, wrote in an email at that time. “As a family, we decided to hold off judgment until the facts came out. Once the facts came out, it was clear to us that the intruder story wasn’t true. It’s been three years since he took Alicia from us. The grief is very difficult, but the process being dragged out for three years because Noah’s refusal to take responsibility for his actions is unbearable. It is our hope that legal system will make sure that the truth comes out so that there can be closure.”

Alicia Gaston would have turned 38 on Saturday.