BANGOR, Maine — Oral arguments before the Maine Supreme Judicial Court in a domestic violence case out of Hancock County took an odd turn last week when a Down East prosecutor told justices that too many appeals in criminal cases accused prosecutors of misconduct.

More than one justice Thursday told Paul Cavanaugh, first assistant district attorney for Hancock County, that when they see a problem, they point it out in their opinions.

“I don’t know the number of criminal convictions that are under appeal, but my guess is that 90 percent have an allegation of prosecutorial misconduct,” Cavanaugh said. “It is a troubling trend. Either there’s a problem and we need to address it, or there isn’t and you need to address that, too.”

Cavanaugh brought up the subject of prosecutorial misconduct during oral arguments in the appeal of Vladek Filler, 42, of Atlanta from a conviction for a misdemeanor assault involving his former wife when the couple lived in Gouldsboro. It was the second time the state’s high court had heard an appeal in the case. The first time, justices upheld the trial judge’s decision to grant Filler a new trial based on statements made by Cavanaugh’s colleague, Assistant District Attorney Mary Kellett, during closing arguments.

“Let me suggest to you that the truth of [whether prosecutorial misconduct has occurred or not] is deducible from the record,” Chief Justice Leigh I. Saufley said last week. “State prosecutors and judges have high ethical duties and we do see a lot of claims of prosecutorial misconduct, but to a certain extent, it is the nature of the beast.”
Justice Ellen Gorman said the court was doing as Cavanaugh suggested.

“When we do see it, we deal with it,” she said. “When we don’t see misconduct, we don’t point it out.”

Justice Donald Alexander told Cavanaugh he seemed to be too sensitive to the issue.

“Maybe you ought to grow a thicker skin,” the justice said.

Filler’s attorney, Stephen Smith of Bangor, filed the second appeal after his client was convicted May 27, 2011, of misdemeanor assault and acquitted of five counts of gross sexual assault and another assault charge in the second trial. Cavanaugh replaced Kellett as prosecutor for the retrial. Filler was sentenced last August to 21 days in jail.

Superior Court Justice Robert Murray stayed the imposition of the sentence pending the outcome of the appeal.

Smith argued last week that Filler deserved a third trial because, among other things, Cavanaugh compared the situation Filler’s ex-wife was in when she left one of their three children with him at their Gouldsboro home to “Sophie’s Choice.” Smith said that comparing the Fillers’ family situation to the book and film in which a woman was forced to choose which one of her children would be killed by a Nazi soldier was unfairly prejudicial.

Justice Jon Levy said that for a juror familiar with the book or movie, the reference could bring up images of the Holocaust and Hitler’s extermination of the Jews.

“Why use it?” Levy asked.

Cavanaugh said that he used a cultural reference he thought jurors would be more familiar with, instead of an older reference, such as Hobson’s Choice.

That expression is not from literature but has been traced to Thomas Hobson, who ran a thriving horse rental business in Cambridge, England, around the turn of the 17th century, according to the Phrase Finder website. Hobson rented out horses, mainly to Cambridge University students, but refused to hire them out other than in the order he chose. The choice his customers were given was “this or none,” according to information on the website.

“I wanted the jury to understand that this was an impossible choice,” Cavanaugh told Levy. “To me, it was an idiom. I expect in the future, we’ll be using idioms like LOL in front of juries.”

LOL stands for “laughing out loud” and is used in text messages and emails.

Smith argued that in his closing argument to the jury in the second trial, Cavanaugh asked the jury “to punish the defendant for the divorce findings, the child custody dispute and relocation of the children,” rather than for alleged criminal conduct.

The Fillers divorced in 2010, according to a previously published report. Vladek FIller was granted sole custody of the children and relocated to Atlanta.