Wednesday, December 12, 2012

Board Recommends Suspension for Prosecutor

Regular readers here are familiar with articles I have written about domestic violence, misogynist attitudes, and so on as well as my association and respect for Susan Murphy Milano.

  Here, however, is just the tip of the iceberg of one who's pathological  hatred of all things male needs to be stopped.  I have never encountered anything resembling the injustice men faced in this county which was so readily accepted.

Board recommends suspension for Hancock County prosecutor

Mary N. Kellett
Mary N. Kellett
ELLSWORTH, Maine — A state entity that oversees the conduct of licensed attorneys in Maine has determined that a Hancock County prosecutor violated seven bar rules and should be suspended.
The Dec. 5 report by the grievance commission Maine Board of Overseers of the Bar does not recommend a specific length of time for suspending Mary Kellett, an assistant district attorney in Hancock County.
Vladek Filler, a former resident of Gouldsboro who was prosecuted four years ago by Kellett on a charge that he raped his wife, filed a complaint against him with the board in December 2010.
Filler, who now lives in suburban Atlanta, initially was found guilty of gross sexual assault but was granted a retrial by the state supreme court. A second jury found him guilty of misdemeanor assault but acquitted him of raping his wife. He subsequently was sentenced to serve 21 days in jail, which he did earlier this fall.
In its report, the panel indicated that Kellett violated bar rules by:
• Engaging in conduct unworthy of an attorney.
• Engaging in conduct prejudicial to the administration of justice.
• Failing to employ reasonable skill and care.
• Failing to make timely disclosure of the existence of evidence that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.
• Suppressing evidence that she had a legal obligation to produce.
• Assisting the state to violate the Maine Rules of Criminal Procedure and the court’s order.
• Employing means that were inconsistent with truth and seeking to mislead the jury.
In October, a three-member grievance panel of the board held a two-day hearing on Filler’s complaint at Penobscot Judicial Center in Bangor.
In the Dec. 5 report, the panel indicated that it “concludes that an appropriate sanction in this matter would be a period of suspension. Accordingly, the panel finds probable cause for such discipline, and hereby directs Bar Counsel [J. Scott Davis] to commence an attorney disciplinary action by filing an information with the [Maine Supreme Judicial] Court.”
Attempts Tuesday to contact Davis, Kellett and her boss, Carletta Bassano, district attorney for Hancock and Washington counties, were unsuccessful.
When contacted Tuesday by email, Filler replied with this statement:
“I believe we all have an absolute moral and constitutional obligation to fight abuse of officials who now wield almost absolute power to destroy our lives and undermine the administration of justice,” Filler wrote. “What my children and I were put through is inexcusable, and I urge the Law Court to review all the evidence I have documented and provided to the Bar Counsel and act accordingly to defend our civil rights.”
According to procedural information posted on the board’s website, another hearing about Kellett’s conduct will be scheduled and heard by a single justice serving on the seven-member Law Court bench. It is the justice who presides at the hearing who will have the final decision about whether a suspension is appropriate and how long the suspension will be, according to board staff.
Jacqueline Rogers, executive director of the board, said Tuesday that this case was the first board officials knew of in which a panel report recommended that a prosecutor be suspended. She declined to comment specifically about Kellett’s alleged misconduct.
Rogers said that formal bar complaints about prosecutors that end up being argued in public hearings before the board’s grievance commission are rare. Board staff recently looked into the matter, she said, and could find only one complaint against a prosecutor that went to a public hearing over the past 30 or so years.
The grievance panel wrote in its report about two aspects of Kellett’s conduct in prosecuting Filler that “cause concern.”
One aspect is Kellett’s comment during her closing arguments that there was no evidence that the allegations against Filler were part of a custody dispute over their children between Filler and his wife. The defense wanted to introduce such testimony in the January 2009 trial, but Kellett had successfully argued before testimony began that any such testimony should not be allowed because it would confuse the jury. Following the trial, a Superior Court justice and the Law Court separately determined that Kellett’s comments during her closing were unfairly prejudicial against Filler, the panel indicated.
“Kellett testified at the disciplinary hearing that she would not change that aspect of her rebuttal argument, if she were to do it again,” the panel wrote in the report. “Ms. Kellett’s own expert, [attorney] Fernald R. Rochelle, testified that she appeared “stubborn” and as if she were “bucking the court” during her testimony. This willful recalcitrance makes it appear likely that Ms. Kellett would repeat this unfairly prejudicial conduct.”
The other aspect that the panel said causes concern is Kellett’s failure to produce and turn over before the January 2009 trial “at least two pieces of exculpatory evidence” to Filler’s defense attorney at the time, Daniel Pileggi of Ellsworth. One was a copy of a 911 call about Filler’s wife behaving strangely, which led to police being told of the supposed rape, and the other piece involved statements that Filler and his wife provided to Ellsworth police about an unrelated incident five days after the rape supposedly had occurred.
Pileggi sought both pieces of evidence to use as examples of Filler’s wife’s state of mind before and at the time the rape allegations were reported to police.
George “Toby” Dilworth, an experienced attorney and former federal prosecutor, testified at the October hearing that he believes Kellett violated bar rules in the way she handled Filler’s case.
Dilworth told the panel that the written statements Filler and his wife provided to police about the Ellsworth incident were “critical” to the defense. It is a prosecutor’s professional responsibility to provide any possibly exculpatory evidence to a defendant’s attorney, he said, and Kellett clearly did not do that.
“The seriousness of this issue cannot be overstated,” the panel wrote in its report. “The evidence was requested by letters, subpoena and motion. The evidence should have been produced pursuant to rules, a court order, case law and ethical obligations.”
The board also indicates that Kellett’s testimony at its October hearing suggests that her boss at the time, former Hancock County District Attorney Michael Povich, failed to comply with bar rules by “ratifying” Kellett’s conduct and “obviously disregarding” Pileggi’s ethical concerns set forth in a letter Pileggi sent to Kellett on May 29, 2008. The report indicates that Kellett had testified at the October hearing that she brought Pileggi’s letter to the attention of Povich, who is not mentioned in the report by name.
An attempt Tuesday to contact Povich, who retired in 2010 after serving as district attorney for 35 years, was unsuccessful.
In Filler’s 18-page disciplinary petition that was filed with the board, he accused Kellett ofviolating nine rules of the Maine Bar.
For the past few years, Filler has been living in Lawrenceville, Ga., with his two sons, whom he was granted custody of in his subsequent divorce. He has contended since he was first accused of raping his then-wife in Gouldsboro that his marriage was deteriorating and that she had fabricated the allegations in order to win custody of their boys.
Filler was convicted at his first trial of gross sexual assault but was granted a retrial after the state supreme court determined that evidence that was barred from testimony should have been allowed and that Kellett made prejudicial statements to the jury during her closing arguments.
Filler was acquitted of felony gross sexual assault during his second trial, held last year in Bangor. Filler’s second trial was prosecuted by First Assistant District Attorney Paul Cavanaugh.
Filler’s most recent appeal was argued before the Law Court in June of this year. On July 3, the court affirmed Filler’s assault conviction.


Nanna Frances said...

Mary Kellett should not be allowed to work as a prosecutor! This is not only case where she did not seek justice. She does not prosecute men; she PERSECUTES men.

She should be a defense lawyer. Defense lawyers do all the things she does, and it is acceptable. She would be a good partner in the Baez firm.

Ivy said...

An interesting article. One of those cases where you cannot tell definitively whether or not there was a crime, at least based on the information in this article, and maybe in life as well. And with rape, particularly marital rape, it is very difficult to prove. Some people don't believe marital rape is "real" rape. They believe that a man has a right to intercourse with his wife and/or that if he forces himself on her when she doesn't want to, they are just having a disagreement about sex. Many people won't say this, but instead will say that the accusation must be false, motivated by this, by that. It might be, it might not be. In the end only a jury can decide and even then the conclusion may just be, "we don't know", which means acquittal. Acquittal does not always mean it did not happen, as we know all too well. But the article highlights the importance of the judicial process, with its protections for defendants. This prosecutor committed a Brady violation withholding potentially exculpatory information from the defense, which is beyond the pale. I recently read about another case involving similar conduct in which the defendant was convicted of murdering his wife. It is long, in two parts, but very good reading. The case made me think about the burden of proof and the constitutional protections for defendants. The system is set up to protect the people from the government, embracing the principle that it is better that some guilty people go free than that for one innocent person be convicted. It is easy to to say, but also easy to forget when reading about the tragic cases discussed here -- Hailey Dunn, Ayla Reynolds, Lisa Irwin, Caylee Anthony, Kyron Horman -- that are so clear cut and even some of the murkier cases. One can almost understand why prosecutors would want to cut corners and withhold potentially exculpatory evidence because it will only distract/confuse the jury, prevent them from understanding what the prosecutor feels he/she truly knows, leading to a (we think she probably did it but we're not certain) acquittal. Beyond any reasonable doubt in some cases, can seem just too high. In a marital rape case it seems almost impossible, though someone could know it happened based on statement analysis, etc. Reading about this case from Texas my heart dropped -- the defendant was extremely dislikable and his relationship with his wife was not optimal. Aside from passing two polys (which was huge) he and the circumstances seemed very suspicious and I was doubtful until very near the the end, thinking that he had been denied fair process, etc. but would not be established to be truly innocent. I have wondered, Peter, if you thought it would be worthwhile to revisit cases in which family members initially appeared very suspicious but were ultimately not responsible. I am thinking, for example, of Sierra Lamar, that three year old who disappeared two years ago now while being watched by her 5 year old sibling whose father went on about her bike (Aliya maybe? I'm not sure now), the young girl from Colorado who gave her mom foot massages whose mom turned off her phone because of all the calls she was getting from her college, etc. Everyone here is just expressing opinions, not convicting anyone, but it might be a useful way to discuss the difference between sensitivity and deception. I think this would also illustrate the principle that the subject is dead, the speaker is alive. I think it is easy for bias to taint statement analysis -- happens to me all the time, particularly if statements are coming from a bad parent, abusive spouse or an arrogant person. For some people it is spouses in bitter custody battles, or women claiming acquaintance rape. Or people on government assistance. Or Democrats. Or Republicans. It is so hard to ignore context/the speaker when interpreting statements since they are never made in a vacuum.

Ivy said...

I meant, the statement is alive. Also, I don't know anything about this prosecutor. Based on your comments and those of Nanna Frances, and the fact that she's being suspended for more than the Brady violation, there is more going on than what was mentioned in this article. I am just sharing ruminations I've had after reading the Texas Monthly piece, etc.

Katprint said...

@ Nanna Frances - It is untrue that "it is acceptable" for defense lawyers to violate state bar rules like Mary Kellett did. Baez's similar conduct is widely viewed with contempt by defense attorneys - for example, legal commentators Richard Hornsby, Esq. and William J. Sheaffer, Esq. Please provide a link to any defense lawyers who have stated that the things that Mary Kellett did or that Baez did representing Casey Anthony are "acceptable" things for defense lawyers to do.

Nanna Frances said...

I did not intend to offend you.

Do defense lawyers have an obligation to give incriminating evidence to the prosecutor?

I strongly disapprove of Baez's methods.

Anonymous said...

This isn't the worst of anything towards anybody. As a woman, I'm stunned at the hyperboles in the last sentence of the introduction...your statement was not at all borne out by the information you've provided. Yes, she may be a poor attorney, but rein it in there. There have been far greater injustices.

brosnanfan said...


A link to a story about George Odongo, a Purdue freshman who has been accused of sexual battery and criminal deviate conduct, and who is scheduled to be deported back to Kenya:

I am wondering just what is going on, and if he is being deported wrongly. My limited knowledge of SA makes me think the girl in the case is not telling the truth, but I could be wrong. I am interested in Peter's opinion.

brosnanfan said...

Although, perhaps the above link isn't as OT as I first thought; there could be a tenuous link formed between the two cases.

I am very interested in hearing others' opinions.

Trigger said...

So now we have to accept injustice and deception in the courts without calling it into question and examining the evidence?

I say, nay, never let it be.

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