A former Maine attorney for the Passamaquoddy tribe — allegedly framed by police and later convicted of felony possession of six marijuana cigarettes more than 50 years ago — has received a posthumous pardon from Gov. Janet Mills.
Gov. Mills says it’s believed to be the first time in Maine history that someone who is dead has been officially forgiven for a crime.
Donald Gellers died of cancer at the age of 78 in 2014. During his lifetime, he never asked for a pardon. But in October, Gellers’ attorney, relatives and members of the Passamaquoddy tribe appeared on his behalf to ask the governor’s pardon board to grant him one and to end what has been described by journalist Colin Woodard as “one of the most sordid episodes in Maine legal history.” Woodard has written extensively about the case for the Maine Sunday Telegram.
The governor’s exclusive, constitutional power to grant a pardon is reserved for those who have done extraordinary things with their personal and professional lives, especially since the time of their conviction. And Mills, a former prosecutor and Maine attorney general, says Gellers’ lifetime record of doing good for others puts him firmly in that category.
“While this pardon cannot undo the many adverse consequences that this conviction had upon Mr. Gellers’ life,” Mills said during an emotional news conference, “it can bestow formal forgiveness for his violation of law and remove the stigma of that conviction.”
Gellers was a young, Jewish attorney from New York when he arrived in rural Washington County in the 1960s and set up a law office in Eastport. Within a few years, he’d made a name for himself as a champion for the Passamaquoddy tribe. He campaigned for civil rights, including recognition by the federal government, challenged abuses by police and child welfare agents and sought justice for a tribal elder who was beaten to death by five white hunters from Massachusetts.
He also became the catalyst for the historic 1980 land claims settlement that awarded Maine tribes $81.5 million in reparation for land that was taken from them.
“I think without Don Gellers we wouldn’t have been able to have a voice,” says Dwayne Tomah, a member of the Passamaquoddy Tribe who supported Gellers’ pardon request. “We would have been basically under the entire control of the state government and federal government. So he really, really is instrumental in bringing attention to the rights that we’re being violated.”
Gellers’ arrest in March 1968 took place just days after he returned from Massachusetts to file the original Indian land claims case. In the 29-part Maine Sunday Telegram series “Unsettled,” Woodard writes that Gellers had become a target well before that but the lawsuit sealed his fate.
Gellers returned home one night to find several people in his house, including a state police detective posing as a Boston gangster. Woodard says it was part of an elaborate sting.
“By the time Don Gellers returned to Eastport from filing the suit, in effect against Maine, in court in Boston a command post had been set up for several days or maybe weeks, by some accounts in Eastport, headed by an assistant attorney general, John Kelly, and including several state troopers,” he says.
Gellers and a black housemate, Al Cox, were handcuffed and charged with felony possession of six marijuana cigarettes. Mills notes that even the chief of the state police said at the time that a felony charge for small personal possession was “so severe” it was difficult to get proper adjudication.
Gellers was convicted of one of the three counts and sentenced to 2-4 years imprisonment, a sentence that was never pursued by the state. He was also disbarred from practicing law in Maine. Meanwhile, his co-defendant was released on $500 bail.
“I was surprised that the judge didn’t throw out the conviction as a result of my testimony, and I thought that Gellers got a really raw deal,” says Harvey Silverglate, a Boston-based attorney.
Silverglate says back in 1968, he was working on another case in Bangor when he ran into Assistant Attorney General John Kelly at the courthouse. They got to talking, went out for dinner, and Silverglate says Kelly confided to him the details of what was essentially a conspiracy to arrest Gellers.
“He didn’t tell me who had — at least I don’t remember him telling me who had engineered this plan — but they wanted to get rid of Don Gellers,” he says.
And Silverglate says the reason was that Gellers was becoming too effective a litigator for the Passamaquoddy tribe. Silverglate says he was surprised by the admission, and later testified on Gellers’ behalf during a motion for a new trial.
Kelly, who is now a member of the governor’s pardon board, has told Woodard that he cannot recall such a discussion with Silverglate. Mills declined to call what happened to Gellers a “conspiracy,” but did address the claim.
“Many have long claimed that a motivation to arrest Mr. Gellers was not just to enforce the state’s criminal laws, but also to thwart his outspoken political and legal advocacy. Well, after reviewing the historic record of this case and all the documents we could find, I feel there is merit to that claim,” she said.
After his conviction, Gellers emigrated to Israel, where he served as an officer in the Israeli army. In 1977, he was admitted to practice law in Israel after a review of the circumstances surrounding his Maine conviction. He then studied to become a rabbi and later moved back to New York to teach in a synagogue.
When he died in 2014, the Machias Valley News Observer wrote that, “few in Maine history have paid as high a price as Don Gellers for persevering against the highest odds to do the right thing in the pursuit of justice.”
Reached at his home in Florida, Gellers’ younger brother Paul said Tuesday has been an epic day for the family, one that they thought would never come.
“It’s been over 50 years in the making. This is something that my family has lived with, my children grew up with all their lives, overshadowing many things,” he said. “So to see justice finally come to pass, even though it’s so late in coming, there’s understandable bittersweetness to it. But it’s a huge thing to clear my brother’s name.”
Paul Gellers says he’s grateful to Mills, to Woodard for bringing his brother’s story to light, to the tribe for supporting the pardon and to attorney Robert Checkoway, who represented the family in the process.
In a written statement, Checkoway says Gellers’ wish for a pardon “became his dying wish.” As for himself, Checkway says he’s pleased that the corrected historical record will now reflect that Gellers was “a courageous advocate for civil rights and not an outlaw.”