ELLSWORTH, Maine — The Maine Board of Overseers of the Bar, which governs the professional conduct of licensed attorneys in the state, has decided to pursue a prosecutorial misconduct complaint against Assistant Hancock County District Attorney Mary Kellett.
The complaint stems from Kellett’s conduct in prosecuting former Gouldsboro resident Vladek Filler on charges that he had raped his wife. Filler, who now lives in Lawrenceville, Ga., originally was tried three years ago on charges of assault and gross sexual assault in connection with events that allegedly took place at the Fillers’ home off Route 186 in December 2005 and April 2007.
After two trials and two state supreme court appeals, Filler ended up being acquitted of all rape charges but was convicted of misdemeanor assault and sentenced to serve 21 days in jail.
In an 18-page disciplinary petition filed with the Board of Overseers’ grievance commission, Kellett is accused of violating nine rules of the Maine Bar with statements she made during her closing arguments at Filler’s first trial, in January 2009, and by withholding evidence and interfering with subpoenas issued by Filler’s defense attorney for that trial. Filler’s second trial was prosecuted by First District Attorney Paul Cavanaugh, who is not accused of any misconduct in the case.
The board’s disciplinary petition against Kellett was prompted by a grievance complaint filed by Filler with the board in December 2010. Kellett’s disciplinary hearing, which is open to the public, is scheduled to be held next month, Aug. 30 and 31, at the Penobscot Judicial Center in Bangor.
Kellett was out of the office on vacation on Monday and was unavailable for comment, according to staff at the Hancock County district attorney’s office. Attempts Monday to contact Carletta Bassano, district attorney for Hancock County, were unsuccessful.
Assistant Attorney General Ronald Lupton, who is representing Kellett in the matter, declined to comment Monday about the pending complaint.
J. Scott Davis, bar counsel for the board of overseers, also declined to comment on Monday, saying that the board’s policy is not to comment on pending complaints against attorneys beyond what is printed in disciplinary petitions.
Filler has contended since he was first accused of rape that his marriage was deteriorating and that his wife, from whom he is now divorced, had fabricated the allegations in order to win custody of their two sons. After his first trial, Filler was granted custody of their sons, who are 15 and 6 years old, in the couple’s subsequent divorce. The boys live with their father in suburban Atlanta.
During Filler’s first trial, Justice Kevin Cuddy did not allow Daniel Pileggi, Filler’s attorney at the time, to question Filler’s wife about her efforts to gain custody of her children. The judge decided to prohibit such testimony after Kellett argued that doing so would create a “confusion of the issues” before the jury, because the trial was about the criminal assault charges rather than the custody dispute.
Cuddy did allow Pileggi to say that the marriage was deteriorating and to suggest that a child custody dispute was likely after Filler’s wife reported the alleged assault to police.
But Kellett herself alluded to a child custody dispute in her closing arguments. According to the board’s disciplinary petition, Kellett suggested to the jury that there was no evidence that a child custody dispute existed when in fact there was — it just had not been introduced at trial.
“The suggestion that Ligia Filler has made all this up just for the purpose of getting ahead in the child custody, where is the evidence of that?” Kellett told the jury, according to the disciplinary petition.
After the trial, Pileggi filed an appeal for a new trial, which Cuddy subsequently granted. In September 2010, the Law Court upheld Cuddy’s decision and allowed Filler’s case to be retried. Evidence of the child custody dispute should have been allowed in the trial, the Law Court indicated, and Kellett’s comment in her closing arguments about the lack of such evidence “amplified” the prejudice to Filler that resulted from the exclusion of the child custody testimony.
In the board’s disciplinary petition, Bar Counsel Davis wrote that Kellet’s comments “were intentional and improper attempts to persuade the jury that the reason no evidence of a custody dispute had been presented was because none actually existed.”
The petition said Kellett’s comments violated bar rules because “she in fact knew that there was significant evidence of the custody dispute, and also knew that the only reason that actual evidence of the custody dispute had not been presented to and considered by the jury was because she had successfully moved to have it excluded by the trial court.”
Kellett made references to other supposed “facts” during her closing arguments, even though they not been introduced as evidence during testimony, which also violated bar rules, according to the petition. She also said, the petition indicates, that there was no evidence that indicated that a sexual assault had not taken place, which suggested that Filler had a “duty and burden” to present such evidence.
“Filler clearly had no such burden, and ADA Kellett certainly knew that fact under basic constitutional law and case law,” Davis wrote in the document.
Aside from comments Kellett made during her closing arguments at Filler’s first trial, Kellett also is accused of violating bar rules before and during Filler’s first trial by withholding discovery materials from Pileggi and by interfering with a subpoena issued by the defense attorney.
According to the disciplinary petition, Pileggi repeatedly requested documents and other investigative material from Kellett such as police audiotape, videotape, photographs, transcripts and reports germane to Filler’s case. Kellett is accused of not responding to some of Pileggi’s requests, of providing limited material or information in response to others and of advising a police officer not to comply with a subpoena from Pileggi — despite a June 3, 2008 court ruling that ordered Kellett to hand over the requested materials to the defense attorney.
In some cases, Kellett told Pileggi to obtain the materials he sought directly from police agencies that generated them, according to the petition. In one case, Filler and Pileggi did not receive requested documentation from police until “several months” after Filler’s first trial had ended, the document indicates.
That material, related to an assault complaint filed by Filler against an Ellsworth man in the week after the sexual assault supposedly had occurred, eventually was provided to Filler directly by the Ellsworth Police Department, and not by Kellett, according to the petition.
Follow BDN reporter Bill Trotter on Twitter at @billtrotter.