A Waldoboro defense attorney accused of domestic violence assault in November 2013 had the charge dismissed in a plea deal in July, but an assault he is alleged to have committed the day after the deal was made could have him facing jail time and new criminal charges.
Philip Cohen, 45, was arrested late on Nov. 15, 2013 for allegedly assaulting a woman at his North Waldoboro home. He was arrested again on Dec. 4 for contacting the woman in violation of his bail conditions.
The case has spread beyond Lincoln County as various people within the justice system recused themselves due to Cohen’s work as a defense attorney.
The venue was changed from Lincoln to Kennebec County; the prosecutor, Andrew Matulis, is an assistant district attorney for Androscoggin County; and the hearing for Cohen’s plea deal July 11 was held in Cumberland County.
With the plea deal, the original domestic violence assault charge against Cohen was dismissed, and he pleaded guilty to class E charges of disorderly conduct and violation of condition of release.
As part of the deal, Cohen was subject to a deferred disposition: if he met a number of conditions, including refraining from new criminal conduct, at a hearing next July he would have been sentenced to pay $500 for both crimes.
However, Matulis filed motions last month in Kennebec County Superior Court to terminate Cohen’s deferred disposition, revoke his bail, and modify his bail conditions to prohibit any contact with the alleged assault victim after an investigation by the Lincoln County Sheriff’s Office has brought to light new alleged criminal conduct.
The motions are based on new allegations Cohen committed domestic violence assault against the same woman as in the November incident, obstructing the report of a crime, and violation of bail conditions all on July 12 – the day after his plea deal went through.
A report by Lincoln County Sheriff’s Detective Robert McFetridge outlines a number of new allegations against Cohen concerning the night of July 12 and earlier, including assaults on the alleged victim both locally and internationally.
McFetridge interviewed the alleged victim and two of her relatives – an adult and a juvenile – on July 14.
The juvenile, who was present at a Jefferson camp where the alleged victim was staying the night of July 12, told McFetridge she heard Cohen and the woman yelling that night, saw the alleged victim with a swollen, bloody lip, and believes Cohen struck the woman because she could hear the sound of smacking during the fight, according to the report.
The alleged victim did not answer McFetridge’s question when he asked her if Cohen gave her a fat lip, but did later deny he hit her and alleged that Cohen “was trying to pry her mouth apart and put his fist in it,” according to the report.
“She had no explanation why he was doing this,” McFetridge wrote.
The adult relative said Cohen had been out of the country twice to visit the alleged victim in violation of his bail conditions, and on one visit “broke all of the doors in her house and assaulted [her] with a frying pan,” McFetridge wrote.
According to McFetridge, he was also told during the investigation the alleged victim had called 911 from Cohen’s phone. Cohen allegedly hung up the phone and later shut it off when a dispatcher called him back, McFetridge wrote.
Records with the Lincoln County Communications Center show a 911 hang-up call from Cohen’s phone number was received at 2:08 a.m. on July 13, McFetridge said Aug. 19.
Walter McKee, Cohen’s defense attorney, said Cohen “denies all of the allegations. He did not engage in any criminal or inappropriate conduct and we intend to contest all the allegations at a hearing.”
McKee declined to answer more detailed questions regarding the allegations.
“I’m not going to be able to address any of the specifics of the case as it’s still pending,” he said.
Should Matulis be successful in revoking the deferred disposition, Cohen could be subject to up to the full penalty each of the two class E charges: six months incarceration and a $1,000 fine.
No date for hearings on Matulis’s motions were scheduled as of Aug. 18, according to Kennebec County Superior Court personnel.
While Matulis’s motions regarding Cohen’s deferred disposition and bail are pending, Matulis said Aug. 18 the prosecution is evaluating whether or not to bring new criminal charges against Cohen as a result of the investigation.
“We want to ensure that we’re able to bring a case, that if we decide to bring a case, that we are able to go forward with that case and have the witnesses that we need,” Matulis said.
Originating incident and plea deal
At Cohen’s July 11 plea hearing, Matulis said there were “significant proof issues” concerning the original domestic violence assault case, according to a transcript of the hearing.
According to police and court documents, the alleged victim has had some reluctance in discussing the alleged November assault since the night it occurred.
After a number of records requests by The Lincoln County News to different agencies starting last fall, the affidavit and police report regarding Cohen’s initial arrest in the case were recently released by the Waldoboro Police Department.
It was shortly after 11 p.m. on Nov. 15, 2013, when police responded to Cohen’s North Waldoboro home on report of a domestic dispute, according to the department’s report on the incident.
Sgt. Jamie Wilson and Officer Larry Hesseltine spoke with a third party that reported the incident, who said she had received a text message from the alleged victim that said the alleged victim had a black eye and possibly a broken nose from allegedly being punched by Cohen.
Hesseltine wrote in a narrative that he observed the alleged victim’s left eyebrow was swollen and bruised, the left side of her nose was swollen, and there was a red mark across the bridge of her nose, but the woman claimed to have fabricated the text message reporting the alleged assault.
In the transcript of Cohen’s July 11 plea hearing, Matulis said the alleged victim told police she was trying to leave the home on Nov. 15, that Cohen held her and wouldn’t let go, so she bit him and he subsequently hit her in the face.
The alleged victim told the officer if he told anyone she would deny she had said it, Matulis said. She later found out in a doctor’s visit she had sustained a broken nose, he said.
Prior to his arrest, Cohen took photos of a large bite mark around the area of his “peck,” Matulis said in the transcript.
Matulis said the alleged victim indicated she was struck with a closed fist, but also told police she was not sure exactly how she was hit, and told police at one time the strike occurred while on the ground and at another time she said it occurred while she was in a chair.
Both Hesseltine and Wilson wrote the alleged victim had, at points, denied anything had happened at Cohen’s home that evening.
At the plea hearing, Matulis outlined some further aspects of the case that affected the viability of fully prosecuting Cohen for the alleged November assault.
Matulis said he received a letter Nov. 18, 2013 – days after the original alleged assault took place – from attorney William Avantaggio, representing the alleged victim, indicating she did not want the matter prosecuted, that it was a “mutual physical altercation” and she would not be able to testify due to a possible self-incrimination issue.
The alleged victim also filed “essentially what is a recant” on a blog Nov. 21 indicating something very different happened the night of Nov. 15 than what she told police, Matulis said.
Matulis said he later contacted Avantaggio to determine if the alleged victim was willing to go forward with the case, however, and at that time she was.
Still later, the alleged victim moved to another country and bought a home and found a job there, but indicated she would stay in contact with Matulis and may have been willing to come back for further prosecution, Matulis said.
The state was not able to contact the alleged victim since they had not heard from her, however, Matulis said, and after a failed attempt to reach a plea agreement with Cohen, McKee shared an email written to him by the alleged victim that indicated she wanted the two charges dismissed as soon as possible, and that she would like contact with Cohen.
“And this is the most important part for the state – quote, ‘I have no intention on returning to Maine to testify in any trial,'” Matulis said.
The fact that the alleged victim was living out of country made it so the prosecution could not subpoena her – at least through any process Matulis was aware of, he said Aug. 18.
“We don’t have any power forcing or compelling someone to come back from another country,” he said.
According to McFetridge’s report, the alleged victim claimed Cohen had sent a letter from her computer saying she wasn’t coming back.
At the hearing, Matulis said he continued to work on plea negotiations after receiving the letter and the plea agreement reached on the disorderly conduct charge was found to be acceptable to the alleged victim.
“We have a victim who has a recantation, who indicated they had self-incriminating issues, and then went to an area outside the state’s subpoena power, and there’s been this back and forth,” Matulis said.
“But the state has no idea if we would actually have a witness going forward at trial and that’s why we’ve entered into this plea agreement today,” he said.
Denise Marr, a legal advocate for New Hope For Women, a Midcoast organization that provides support to people affected by domestic violence, says situations where a victim does not want to testify or recants earlier accusations are very common.
“There are as many reasons why victims don’t want to testify or recant as there are victims,” Marr said Aug. 19.
The reasons can include fear of retaliation, financial implications of having a family member in jail – potentially putting their job and income at risk, or pressure from children who miss the other parent.
“For each individual case there’s an individual reason as to why they may not want to go forward with the prosecution,” she said.
Another aspect to domestic violence is the victim has often already been in a “power and control relationship,” and calling the police to report a crime can be a first step toward reclaiming their power, Marr said.
The victim would then have to give up the power they reclaim to the state, which is responsible for prosecuting the case – even if the prosecutor and the victim witness advocate tries to work closely with the victim and involves them in the process, Marr said.
“Even at the end of the day, the best prosecutor, the best victim witness advocate, really have the responsibility to carry out what is safe, not just for that individual but the community at large. It is a taking back, from the victim, that final authority,” Marr said. “In some cases it may be a good thing for the victim’s protection, but it’s not helping them exert their own power.”
