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.
The corruption and misconduct from Hancock County district attorney’s office must stop. This man is a target for gaining custody of his children and for exposing prosecutorial misconduct.
Aroostook County’s DDA is exactly the same… truth or justice is irrelevant. It’s all about personal favors, vendetta’s and helping friends with their custody disputes…. even after they’ve realized their friend is lying. Their needs to be some investigations into this increasing trend.
Saying “Sophie’s Choice” in trial argument as prosecutorial misconduct? Wow, this is getting ridiculous, but I wouldn’t be a bit surprised if the SJC buys into it. Glad I wasn’t a prosecutor in this state!
I am glad someone is finally looking into the Hancock County Criminal Justice System. Maybe the Good Ole Boy System will finally go by the wayside and we will get some real justice and they will hire some competent ADA’s.
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.”
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Justice Gorman said, “When we don’t see misconduct, we don’t point it out.” ????
When the Justice doesn’t see any misconduct….what would there be to point out?
She meant in response to the allegation that misconduct has occurred. When the allegation is made, they address it if its found and specifically identify what the misconduct was and if misconduct is not found they don’t get into the details of why the conduct in question doesn’t amount to prosecutorial misconduct.
I assume that when the defendant’s lawyer claims prosecutorial misconduct, say for an alleged improper closing argument, that the matter is briefed and argued and that the court discusses the arguments, and the language claimed to be improper argument, in its written opinion, along with cases and authorities, when it rules on the point. I assume further that it does that in all cases where prosecutorial misconduct is raised on appeal, whether the defendant prevails or not.
I can’t believe the court would only discuss prosecutorial misconduct issues in cases where it rules for the defense. Otherwise, how could the court build a body of authoritative case law on prosecutorial misconduct to guide counsel in future cases?
In many other similar cases involving a female perp and a male victim a fine and suspended jail would have been ok. ADA Kellet made this case her personal vendettta and got invovled in this families personal issues. It was 200% misconduct on the part of the DA’s office.
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Apparently you have never met any of those employed in the Hancock County DA’s Office. It is as liberal and as biased as any DA’s office you can find in the world.
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You see such misconduct when the desire for convictions outweighs justice.
There has to be greater ways for the public to ascertain what is going on in this area. It’s great if judges are speaking up when they see it, but how do we know how many are, and, frankly, is just speaking up enough (is that curbing any such behavior or not?). Legislators and the Executives records are scrutinized, but this, except in the most high profile of cases, does not seem to generally be the case for our criminal or justice system. I’m not saying every action or motivation needs to be defended to the nth degree, but in a general sense I’d like to see an entire sea change of greater transparency, etc. I applaud the BDN for running this type of important piece.
Had this been a woman she would have never been charged by that corrupt feminist DA
office. Even men usually get a $300 fine for a 1st offense of a class D assault. 21 days in jail for claims that he pushed his wife? Filler is a target of that DA office for exposing their crimes and corruption. He dared to win custody of his children despite all the lying and the laws they broke trying to punish him for IDEOLOGICAL reasons. The “evidence” that he did anything wrong is ludicrous. His wife is a crazy child abuser and a proven liar who belongs in jail. The lead prosecutor Mary Kellett needs to be disbarred. This is not about some “Sophie’s choice” comments made by the stand in. This is about one sham trial lynching after another in war on this man and father and others like him. There is more on this case here: http://fillerfund.com/
Maybe I’m the only one who didn’t read this, (I don’t live in Hancock County) but wow… this account of the Hancock County ADA in action stinks so bad it makes dead pogies smell like air freshener by comparison.
http://fillerfund.com/history.htm
Lawyers fighting lawyers. I wonder who pays the retainer? Probably the common man.
Well the citizens in Hancock County certainly are paying Atty. Cavanaugh to defend Atty. Kellet’s behavior and it is not her first trip to the rodeo for being biased.
Hancock County does not operate in a vacuum. I sat in on several proceedings in Waldo County over the years and watched law enforcement lie on the stand, witnesses blatantly lying under oath, and prosecutors routinely asking for longer sentences than are allowed by law. In a civil suit I sat stunned as judge told a friend of mine that he didn’t really understand the legalities of the case but he was finding her guilty and if she didn’t like it she could appeal. ( this woman was very poor and unable to afford the appeal)
I once tried to bring to the notice of first the DA in Waldo and then the AG of the state a case in which a local man had defrauded an elderly man of home, sold the home and kept all of the proceeds while the elderly man was in the hospital in critical condition. I was told that the case was too “small” to pursue. I even had all of the fraudulent paperwork with all of the forged signatures. I had the elder gentleman’s hospital reports showing he was unable to sign anything. I kept up the pressure for over a year for someone, anyone to take this case. Nope, too small.
Eventually the thief in this case moved to FL where he continued to defraud the elderly, until someone there actually decided to investigate. When the law eventually began to close in the thief killed himself. How many people would not have lost their homes and life savings if Waldo County and the State of Maine had done their job in the first place.
Collusion between LE and prosecutors is an old story and it has only gotten worse over the years. Yes there is a problem. It is called making yourself look good no matter the cost. Another portion of the problem is that attorneys no longer do their jobs. They simply tell their clients to take a plea, whether they are guilty or not. So much simpler than actually finding evidence and working a case. Our legal system in this country/states is severely broken, it is about time that someone took notice.
I won’t hold my breath though until things get fixed.
As this article points out, how do you compare Sophie’s Choice to Hobson’s Choice or LOL? Cavanaugh knows what he did and it’s called misconduct. Him using a bogus photograph of the wife and using the custody battle to make the jury feel sorry for her while blocking proof of her lying was prosecutorial misconduct.