An Omaha attorney will spend 100 days in jail, maybe more, after a “period of madness” that included three DUIs, a handful of domestic disputes and several violations of a protection order his former mistress took out against him.
Douglas County Judge Daryl Lowe sentenced Ben Maxell last week to the jail term and extended a probation term to November 2023. Maxell, 46, still faces sentencing for a third DUI, which took place near Red Oak, Iowa, and which could add to his time behind bars.
Lowe allowed Maxell to stay out of jail while he gets his affairs in order. He is then to report by Sept. 26. Judges typically don’t allow defendants that much time.
“I threw the book at you,” Lowe said. “But it wasn’t a big book.”
Maxell could have faced more than a year in jail had the judge run the sentences one after the other. Lowe’s official sentence was 180 days. Because sentences are reduced for good behavior, Maxell will serve about 100 days at the Douglas County Jail.
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Maxell told the judge that his life began to unravel with the death of his grandfather, essentially his surrogate father. Every three months, he said, something else would happen and he would sabotage himself and jeopardize his career. Maxell’s law license was suspended in June 2021.
A referee with the Nebraska Supreme Court will hear ethics charges against Maxell and recommend anything from reprimand to suspension to disbarment. The high court will then decide.
In addition to citing the misdemeanor convictions against Maxell, Kent Frobish, assistant counsel for discipline with the Nebraska Supreme Court, has filed ethics violation charges over allegations that Maxell collected $9,000 of client fees in three different civil cases and did little to no work for the clients.
Maxell, an attorney since 2003 who not long ago had his name on the marquee of an Omaha law firm, told the judge that he has lost a lot. He had an affair with a neighbor, ending his marriage. The girlfriend then accused Maxell of drunkenly assaulting her, pouring beer on her, spitting on her and urinating on her and a pile of her clothes.
“It’s just been a nightmare,” Maxell said. “I should have known better. I was just so lonely and lost. … I lost tens of thousands of dollars. I have lost, most importantly, my friends.”
Maxell said a newspaper article on his travails was deeply distressing to some of his relatives.
Judge Lowe blanched at that. “They suffered because of your actions,” Lowe said, not because the news media reported his actions.
Further, Lowe said, “I gave you chances. You didn’t take advantage of them.”
Maxell’s actions, and second chances, were extensive.
According to court records and police reports:
At least five times between August 2020 and July 2021, Omaha police and Douglas County sheriff’s deputies were called to incidents involving Maxell and the woman with whom he had an affair, a neighbor when Maxell was married.
On Aug. 27, 2020, Maxell entered the woman’s house while she was getting ready for work, threw her on the floor and sat on top of her. A sheriff’s deputy wrote that the woman said Maxell put his knees on both of her arms to ensure she couldn’t leave and “spat on (her) while she was pinned.” According to the woman, he then said: “It sure would be a shame if there was an accident and you fell down the stairs.”
On Sept. 25, 2020, Maxell forced open the woman’s front door, breaking the door frame. The woman said he began “physically striking her,” pinned her down on the floor and pressed his thumb in the center of her throat, making it “difficult for her to breathe,” a deputy wrote.
On Nov. 27, 2020, the woman told Maxell that she was leaving his hotel room. He grabbed her to pull her back into the room and, as they fought, Maxell struck the woman in the lip and the eye, possibly with his elbow, the woman said. Omaha police wrote that the woman “had a bruise on her lip and her left eye was swollen.”
In April 2021, the woman’s 19-year-old son called 911 and reported that Maxell “almost killed his mom.” The woman later wrote that Maxell waved a screwdriver in her face, stating, “I should just kill you!” The woman wrote in a sworn affidavit that he took nude photos of her, urinated “on my washed hair and spit on me.”
In addition to those incidents, Maxell was cited for drunken driving three times, twice in Douglas County, and several times for driving while his license was suspended. His blood-alcohol content in one Douglas County case was .21, more than 2½ times the legal limit of .08.
For the Douglas County driving infractions, John Ashford, an assistant city prosecutor, told the judge: “These aren’t mistakes; these are decisions Mr. Maxell made. This is a jail case. Periods.”
Douglas County prosecutors said they reduced several misdemeanor domestic assault cases against Maxell because of the victims’ reluctance to testify. Lowe originally gave Maxell probation after he pleaded to a couple of disturbing the peace misdemeanors. Thursday, he pleaded to several probation and protection order violations. Maxell violated the protection order by texting the woman numerous times and begging her back.
Prosecutor Rachael Henderson asked Lowe to extend Maxell’s probation to November 2023 so that he will continue to be under the supervision of the court. At her request, Lowe also required Maxell to participate in a “batterer’s intervention” program.
Henderson took issue with Maxell’s attorney, Peder Bartling, telling the court that Maxell was not an “accomplished drinker.” While on probation, prosecutors say, tests showed Maxell had both alcohol and amphetamine in his system.
“I would argue that he’s accomplished quite a bit while drinking,” Henderson said.
However, Bartling and Maxell said, the drinking stopped six or seven months ago. Bartling noted that Maxell hasn’t failed a urine test during that time span. He has sought therapy for chemical dependency and other issues. The woman who was the subject of Maxell’s obsession has moved to Texas; the two haven’t had contact in months, Bartling said.
“Mr. Maxell has spent a lifetime adhering to the law with the exception of this period of madness,” Bartling said. “It was an aberration. It was atypical. It was out of character. Simply put, this is not who Mr. Maxell is.”
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