Governor Janet Mills today issued a posthumous pardon, believed to be the first in Maine history, for Donald C. Gellers, a deceased former attorney and advocate for the Passamaquoddy Tribe.
“Pardons are given in recognition of the extraordinary things people have done with their personal and professional lives, especially since the time of their conviction; how they have improved their own life; and how they have contributed to the lives of others. During those many years between his conviction in 1969 and his death in 2014, Mr. Gellers gave much to others. […] For his tireless efforts to help others the whole of his life -- both for his eight years in Maine and the 35 years since his conviction -- I pardon Mr. Gellers,” Governor Mills said. “While this pardon cannot undo the many adverse consequences that this conviction had upon Mr. Gellers’ life, it can bestow formal forgiveness for his violation of law and remove the stigma of that conviction. Let it also remind us of these guiding truths: That, when enforcing the law, proportionality is an essential component of fundamental fairness, and that fundamental fairness is the essential moral and legal promise that a thoughtful government makes to its people. And that history will long judge whether and how that promise is kept.”
“Today I am issuing a full pardon of Donald C.
Gellers, also known as Tuvia Ben-Shmul Yosef, for his 1969 conviction for the constructive possession of six marijuana cigarettes. This case is extraordinary for several reasons.
“First, this is a posthumous pardon; Mr. Gellers passed away in 2014 at age 78. The petition has been filed by attorney Robert Checkoway on behalf the Gellers family. A governor’s power to grant pardons includes this authority, but it is not clear that a posthumous pardon has ever been issued in Maine before. Research by the Law and Legislative Reference Library was unable to identify any other posthumous pardons.
“Second, it has been over 50 years since Mr. Gellers was convicted, a much longer time than that for which pardons are typically granted. But, in this case, this passage of time does not diminish our need to act. Indeed, the recent public hearing before the Executive Clemency Board attracted testimony from a wide variety of people who observed many of the events related to this case, including Mr. Gellers’ brother who travelled all the way from Florida just to read in person his two-page statement. The Board and my office also reviewed hundreds of pages of court documents, court opinions, news accounts, letters and statutes, and I base my decision here today on that comprehensive input and review.
“Pardons are given in recognition of the extraordinary things people have done with their personal and professional lives, especially since the time of their conviction; how they have improved their own life; and how they have contributed to the lives of others. During those many years between his conviction in 1969 and his death in 2014, Mr. Gellers gave much to others.
“After his conviction, Mr. Gellers emigrated to Israel where he served in the Israeli army, gaining the rank of First Lieutenant, and being wounded in the 1973 Arab-Israeli War. In 1977, he was admitted without reservation to practice law in Israel after a personal review of the circumstances surrounding his Maine conviction by the Principal Legal Assistant to the Attorney General of Israel. He studied assiduously to become a rabbi and he later moved back to New York, his original home, to serve and teach in a synagogue that was too poor to hire a full-time rabbi.
“He stayed connected to the law, applying to practice before the United States Court of Appeals for the First Circuit, to which he had been admitted in 1966. After disclosing all the circumstances of his Maine conviction, that federal court issued him a certificate of good standing in 1989.
“By then, Mr. Gellers’ life had moved more fully to the practice of his religion and, up until his death in 2014, Mr. Gellers used his faith to continue to help people: people without means; people without ready access to help; people seeking the solace of faith from the burdens of their lives.
“Earlier in his life, after being honorably discharged from the New York National Guard, Mr. Gellers came here to Maine in 1963 where he lived until 1971. He settled in Eastport, opening his own practice in that rural Downeast town.
“He soon came to represent the Native American tribal leaders and tribal members who could not find counsel elsewhere during a time of great prejudice and discrimination; a time when few if any others were willing to help the tribal members with their legal problems. During his eight years in Eastport, Mr. Gellers worked tirelessly for the Native American people, often for little or no pay. He worked on issues small and large, and his work mattered.
“In court, he secured the dismissal of charges against peaceful protesters, helped return native children who had been placed in non-native homes, and successfully challenged state jurisdiction over minor offenses committed on a reservation.
“He also brought his advocacy to Augusta. He pressed state officials to repair leaking sewage systems, and Princeton barbers to cut tribal members’ hair. He lobbied for the repeal of laws prohibiting tribal members from hunting on their own land and for the state to create a new Indian Affairs Department. He also helped prompt an investigation of an unscrupulous state official who had effective powers of life and death over tribal members through his control over access to food, medical care and fuel. In 1979, Mr. Gellers wrote this in a letter to friends:
I was dealing with a people [who] had known so many defeats that hope, itself, was a victory…. Before I came, Indians died of malnutrition, and burned up in their shacks. Getting arrested for anything meant getting convicted. Living meant begging the Welfare Indian Agent for groceries and clothes, having children taken from parents and placed for adoption in non-Indian homes, not voting for the Legislature or serving on juries, and [only] occasionally talking about treaty rights no one ever respected. I [helped stop] all that, and [I did] it peacefully.
“For all his efforts to help others, especially in the time since his conviction, I pardon Mr. Gellers.
“There is one final reason why this case is extraordinary, and this pardon cannot be announced without speaking to it. 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. After reviewing the historic record of this case, I find that there is merit to this claim.
“Mr. Gellers and his houseguest, Alfred Cox, were arrested immediately after Mr. Gellers filed the original land claims lawsuit on behalf of the Passamaquoddy Tribe. The charge was unlawful constructive possession of six marijuana cigarettes that were found in Mr. Gellers’ home. Mr. Gellers was convicted on only one of his three counts, sentenced to two to four years imprisonment and, because he now had a felony conviction, he was disbarred from practicing law in Maine.
“Even the chief of the State Police in public comments at the time recognized that a felony charge for small personal possession was “so severe” that it was “difficult to get proper adjudication[s].” This is why, even before Mr. Gellers’ trial started, the legislature was working on a bill to downgrade the offense to a misdemeanor. This new law, P.L. 1969, c. 443, took effect two years before Mr. Gellers’ appeal was decided and three years before his disbarment was ordered. It is not clear why this significant and timely change in the law did not temper the state’s discretion in prosecuting and disbarring Mr. Gellers.
“Three additional facts inform our observations in this case. First, Mr. Gellers’ arrest, trial and appellate oral argument were all handled by the State’s top officials; a unique level of attention to a small personal possession case.
“Second, although the State consistently defended at both trial and on appeal its decision to charge Mr. Gellers as a felon, it did not in the end insist that he serve his two to four-year felony sentence. Mr. Gellers instead left the country without the State either trying to stop or extradite him back. It would have been only the felony conviction, regardless of time served, that was needed, and was in fact used, to disbar Mr. Gellers and thereby end his advocacy in Maine.
“Finally, the penalty for the co-defendant, Mr. Cox, was only to forfeit the $500 bail that had been posted for him. So, in the end, Mr. Cox simply forfeited that minimal bail while Mr. Gellers was deprived of his entire livelihood. This is true even though Mr. Cox was the one who was in actual possession of the six marijuana cigarettes. But Mr. Cox was also not the legal and social advocate that Mr. Gellers was.
“As I stated at the outset, pardons are only given in recognition of the extraordinary things people have done with their personal and professional lives; how they improved their own life; and how they have contributed to the lives of others. For his tireless efforts to help others the whole of his life -- both for his eight years in Maine and the 35 years since his conviction -- I pardon Mr. Gellers.
“While this pardon cannot undo the many adverse consequences that this conviction had upon Mr. Gellers’ life, it can bestow formal forgiveness for his violation of law and remove the stigma of that conviction. Let it also remind us of these guiding truths: That, when enforcing the law, proportionality is an essential component of fundamental fairness, and that fundamental fairness is the essential moral and legal promise that a thoughtful government makes to its people. And that history will long judge whether and how that promise is kept.”
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