Maine: Prosecutor Misconduct

 

ADA Mary N. Kellett:

Guilty on Seven Counts of Prosecutor Misconduct

For years, persons in Ellsworth, Maine had been saying Assistant District Attorney Mary Kellett was prosecuting sexual assault cases based on dubious allegations that lacked probable cause. One attorney described Kellett’s actions in one case as “the most egregious abuse of prosecutorial discretion” that he had witnessed in 30 years of legal practice. In the process, many innocent persons suffered harm to their reputations, their careers, and their lives.

The Dissolving Union of Vladek and Ligia Filler

The case centers around businessman Vladek Filler, and his wife Ligia, a Guatemalan woman with an abusive history. After a rocky 16-year marriage, Vladek informed Ligia in December 2005 of his decision to end the union. Ligia responded to the news by punching her husband violently in the face, an overt act of domestic violence that was witnessed by the children.

Despite the assault, Vladek worked over the next several months to help Ligia find a job to assist her during the period of marital transition. The following events led up to Ligia’s claim of spousal rape:

April 20, 2007 — Vladek informed Ligia of his plan to move out of state with the children.

April 21, 2007 – Ligia abducted the couple’s one-year-old son and moved to another town in Maine.

April 22, 2007 – Vladek made a complaint to the police about Ligia’s history of domestic abuse and psychological problems (Criminal complaint against Ligia Barrientos, Newton, Mass District Court, Oct. 27, 1991. http://www.fillerfund.com/criminalcharges.htm). Their 10-year-old son wrote a Witness Statement confirming the December 2005 assault on his father.

April 23, 2007 — Vladek contacted a local domestic violence agency to report Ligia’s abusive behavior.  Vladek was denied help. Hours later the same domestic violence shelter contacted Child Protective Services to file a complaint on behalf of Lidia against Vladek.

April 24, 2007 – Ligia was found running on a local road barefoot and partially undressed, holding her 1-year-old son and shouting death threats at the police. The officer on the scene stated Ligia was “flipping out” and “certifiable” for admission to a mental facility (Videotape by Ellsworth County Police Department recorded April 24, 2007. http://www.youtube.com/watch?v=GsKIcQhjaJg&feature=player_embedded#at=20). Police succeeded in rescuing the child from the woman. During the ensuing police interview, Ligia “chanted about ‘cutting up’ the defendant [Vladek] while laughing and crying hysterically, swearing and kicking a door,” according to the police report.

April 25, 2007 – During a follow-up interview, Ligia Filler admitted to the police she had struck Vladek on the face. Questioned if Vladek had ever assaulted her, she replied, “he never hit me.”

July 24, 2007 – At the request of Child Protective Services, the District Court issued an order placing the children in Vladek’s care. Due to her mental health problems and abusive behavior, Ligia was barred from any contact with Vladek or the children.

August 23, 2007 – The family court granted custody of the couple’s two sons to Vladek, and limited Ligia’s contacts to one hour per week of supervised visitation, due to her documented history of child abuse.

December 3, 2009 — Responding to Ligia’s desperate allegation that Vladek had molested their children, the Ellsworth District Court concluded the accusation was “false and known to be false. She [Ligia Filler] has shown a capacity to manufacture claims.”(Determination of Ellsworth District Court. Findings at Page 4, Paragraph 1.)

Indictment and Trial of Vladek Filler

Ligia claimed that she was raped by Vladek on April 6, 2007. Two days later ADA Kellett charged Vladek on five counts of Class A gross sexual assault and two counts of Class D assault. One of the charges stemmed from an allegation that Vladek had splashed Ligia with water — after she had hit him in the face in 2005

SAVE believes Ligia’s claim of marital rape did not meet the probable cause standard. Ligia was known to be an unreliable witness, her history of abuse perpetration was well-known, the children could not corroborate her allegation of assault, she had refused a rape kit examination, and Ligia had an evident motivation for filing the claim.

January 12, 2009 – A four-day jury trial began. The defense attorney had not received certain documents he had requested, which prevented him from undertaking a full cross-examination of Ligia.

January 14, 2009 — During her rebuttal , Kellett quoted Ligia as admitting, “Oh yeah. I slapped him. I slapped him because he said some really offensive things.” During her closing argument, Kellett made misleading statements to members of the jury and shifted the burden of proof to the defendant.

“Mr. Filler was denied due process, and a fair opportunity to have the State’s burden of proof properly evaluated, based upon complete facts, and without the prosecution’s misinformation.” — Defense attorney Daniel A. Pileggi

January 15, 2009 — The trial ends with acquittals on four counts, and a guilty verdict on three counts.

March 2, 2009 – As a result of Kellett’s misleading closing argument to the jury and her withholding of exculpatory evidence the judge declared a mistrial. In an unusual move, ADA Kellett decided to appeal the judge’s decision to the Maine Supreme Judicial Court.

September 9, 2010 — The Maine Supreme Judicial Court issued its decision on the Kellett appeal. Denying Kellett’s request to overturn the mistrial decision, the High Court reprimanded Kellett, agreeing with the trial court that Kellett’s “rebuttal argument created a high likelihood that Filler was unfairly prejudiced.” (http://me.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20100909_0000090.ME.htm/qx, paragraph 22).

Grievance Complaints Against ADA Mary Kellett

On March 29, 2011, Stop Abusive and Violent Environments (SAVE) filed a Grievance Complaint with the Board of Overseers of the Bar, requesting the disbarment of Mary N. Kellett. (http://www.saveservices.org/wp-content/uploads/COMPLA1.pdf). The SAVE complaint concurred with many of the points made in a December 28, 2010 complaint filed by Vladek Filler.

On May 12, 2011, SAVE held a press conference outside the Penobscot Judicial Center in Bangor highlighing the many prosecutorial abuses of ADA Kellett. The press conference received extensive media attention.

SAVE also initiated a public petition recommending that Kellett “should receive such appropriate disciplinary action as is provided for by the Maine Bar Rules:” http://www.saveservices.org/wp-content/uploads/Kellett-Disciplinary-Petition.pdf  The petition was eventually signed by over 1,600 persons.

In support of the Complaint, SAVE mounted two national publicity campaigns in Spring 2011 and Spring 2013. In addition, SAVE issued multiple press releases and Elerts, and disseminated information via social media channels, as well.

As a result, the Maine Board of Overseers of the Bar (BOB) initiated an investigation. The Board issued an 18-page Disciplinary Petition concluding ADA  Kellett “has acted in a manner unworthy of an attorney” for violating nine ethical rules (Disciplinary Petition dated April 6, 2012).

On December 5, 2012 a three-member panel found Kellett had violated seven ethical standards, including the intentional concealment of exculpatory evidence, trying to mislead a jury, failing to employ reasonable skill and care, engaging in conduct prejudicial to the administration of justice, and engaging in conduct unworthy of an attorney. The panel recommended suspension of Kellett’s license to practice law: http://www.maine.gov/tools/whatsnew/index.php?topic=mebar_overseers_discipline&id=464815&v=article

The BOB panel also concluded that ADA Kellett’s “stubborn” demeanor during the hearing made it appear likely that “Ms. Kellett would repeat this unfairly prejudicial conduct.” Despite this finding, ADA Kellett was allowed to continue her normal prosecutorial duties.

On April 24, 2013, the Board’s Bar Counsel forwarded a report to the Maine Supreme Judicial Court. The report described prosecutor Kellett’s refusal to comply with a 2008 pre-trial court order to release discovery documents and other instances of misconduct as a failure to meet her “constitutional and ethical obligations,” a shortcoming the Board termed “inexcusable:” http://www.saveservices.org/2013/05/pr-ethics-board-issues-rebuke-of-hancock-co-prosecutor-mary-kellett/

Supreme Judicial Court Decision

On July 16, 2013, Justice Ellen Gorman, acting on behalf of the Maine Supreme Judicial Court, issued the final determination. The 24-page report noted that Kellett did in fact supress innocence-proving evidence and mislead the jury in her closing arguments. The document noted that “ADA Kellett agreed and admitted that her conduct in the Filler criminal prosecution was in violation of the following then applicable Maine Bar Rules: 3.1(a); 3.2(f)(4); 3.6(a); 3.7(e)(1)(i); and 3.7(i)(2).”

Gorman’s statement emphasized that a “prosecutor must always act in an effort to do justice rather simply to convict. That is become prosecutors do not represent individual victims.”

Claiming that the “purpose of the bar disciplinary proceedings is not punishment, but rather the protection of the public” from unethical attorneys, the Supreme Court Justice imposed a suspension of 30 days, but then suspended the suspension itself  ”on the condition that ADA Kellett completes six hours of continuing legal education.”

The statement also revealed, “This case represents the first disciplinary proceeding filed with the Court by the Overseers of the Bar against a member of Maine’s prosecutorial bar.” As such, this was a precedent-setting case that is likely to lay the groundwork for future complaints alleging unethical prosecutorial conduct.

The entire decision can be seen HERE.