Why Don Gellers' Family Is Seeking A Posthumous Pardon 50 Years After Allegations Of A Frame-Up

Oct 24, 2019

He was an attorney for the Passamaquoddy Tribe whose fierce advocacy got him into so much trouble that he chose to leave the country rather than serve a four-year prison sentence more than 50 years ago.

Don Gellers is not a household name, and his story is not well known. But the alleged conspiracy by Maine State Police and the Attorney General's Office to frame him for drug possession is now the focus of an unusual request from family and tribal members: a posthumous pardon from the governor.

Gellers never served his sentence.  He fled to Israel after his appeals failed. And when he died in 2014, he had yet to clear his name. Collin Woodard, of the Portland Press Herald, has reported on Gellers' case and he covered the pardon hearing last week. Woodard talked with Maine Public's Morning Edition host Irwin Gratz about how Gellers ran afoul of state officials.

WOODARD: He was arrested, literally, on returning to his driveway in Eastport after having driven and filed a suit in Boston. He was arrested for what was called “constructive possession of marijuana.” A sting team had been going through his house and had allegedly found evidence of there being marijuana cigarettes in the pocket of one of the jackets hanging in the upstairs closet of his house. It had been decriminalized already, but the attorney general at the time decided it would be prosecuted under the old felony statute. And ultimately, he was found guilty.

GRATZ: Now, of course, the people who defended Gellers thought he had been set up. What was the evidence for that?

Well, one of the critical pieces of evidence in it was that a now-famous sort of libertarian attorney, named Harvey Silverglate who still practices in the Boston area - in 1968, while Gellers’ appeals were still going on, he came forward saying that he had been in Maine for a separate legal action, at a bar over drinks had heard from an assistant attorney general that the Attorney General's Office had just set up a meddlesome Eastport attorney and were getting rid of him. And when he put two and two together with the Gellers’ case, he came up to Maine and testified to this.

Talk a little bit about this pardon request. Who is making it now, since Gellers died in 2014, and why?

His family is asking for a posthumous pardon, and they did starting shortly after his death. A Freeport attorney has been representing them pro bono. It is extremely unusual in that, as far as anyone knows, or members can ascertain, Maine has never given a posthumous pardon. It's a very important case for the Passamaquoddy Tribe, because Gellers was such a key figure in defending their civil rights and creating the first and foundational steps of what became the Maine Indian land claims settlement, which included their tribe being recognized as a federal tribe and ending the state treating them, literally, as wards of the state. And, so, for the tribe, it would be important in terms of healing. From the Gellers family's point of view, amends should be made because this was clearly not a case conducted in a normal fashion.

Now, the pardon is one way to set the record straight, if you will. But are there any officials involved in his case who could be called on to answer now for what they did then?

Well, enough time has passed that many of the people involved have passed away. However, the assistant attorney general that Harvey Silverglate testified he overheard saying that the Attorney General's Office had set him up is one of the three people serving on this pardon board today. That man, John Kelly, had to recuse himself from the proceedings last week because of his association with the case. I interviewed Kelly in 2014 and he said he had no memory of the case or of the events that Harvey Silverglate describes. Silverglate is still around and told me that he remembers all this clear as day, because it was one of the few times in his career where he felt as though he might be personally retaliated against for his testimony. And, as he put it, you know, got in his car the moment he testified and got out of the state of Maine for fear that he might be in trouble.

Colin Woodward, thank you for your time. We appreciate it.

Thank you.