ELLSWORTH, Maine — A misconduct hearing concerning a Hancock County prosecutor originally scheduled for this week has been postponed until this coming fall.
The Maine Board of Overseers of the Bar, which governs the professional conduct of licensed attorneys in the state, had scheduled a hearing on a complaint against Assistant District Attorney Mary Kellett for Aug. 30 and 31.
According to Jacqueline Rogers, executive director of the board, the hearing date has been postponed because of scheduling difficulties with potential witnesses. The hearing now is tentatively expected to take place in late October of this year but a new date has not yet been set, she said Monday.
Vladek Filler, a former rape defendant and Gouldsboro resident, filed a complaint against Kellett with the Board of Overseers in December 2010. After reviewing the matter, the board decided to pursue a disciplinary petition against Kellett with the board’s grievance commission.
In the 18-page disciplinary petition, filed by Bar Counsel J. Scott Davis in April of this year, Kellett is accused of violating nine rules of the Maine Bar with statements she made during her closing arguments at Filler’s January 2009 trial and by withholding evidence and interfering with subpoenas issued by Filler’s defense attorney for that trial. The petition was filed after the board’s legal staff reviewed Filler’s complaint and decided a public inquiry should be held.
Filler was accused by his then-wife of raping her in December 2005 and April 2007. After two trials, he eventually was found guilty only of misdemeanor assault and then sentenced to serve 21 days in jail.
Kellett and her boss, Hancock County District Attorney Carletta Bassano, have declined multiple requests for comment about any aspect of Filler’s case or about the upcoming hearing. Kellett has continued to work and prosecute cases in Hancock County, despite the pending complaint.
According to bar officials and other district attorneys, informal complaints from defendants about unfair prosecutions are fairly common. The Board of Overseers does receive formal grievance complaints about prosecutors from time to time, but the vast majority of them are deemed to be without merit and so are tossed out without being made public.
Formal bar complaints about prosecutors that end up being argued in public hearings before the board’s grievance commission are rare, according to Rogers. She said that when board staff recently looked into the matter, they could find only one complaint against a prosecutor that went to a public hearing over the past 30 or so years.
That hearing was held in 2001 when David Crook, then the district attorney of Kennebec and Somerset counties, was accused of breaking bar rules by filing a grievance complaint against one of his former assistant district attorneys and her husband. That complaint was dismissed and Crook was issued a warning after the commission determined that Crook had no basis for filing the complaint.
Last fall, the board’s grievance commission dismissed a complaint against Aroostook County District Attorney Todd Collins after he agreed to modify a policy his office had about requiring drug defendants to be interviewed by Maine Drug Enforcement Agents without a defense attorney present before they could enter into plea negotiations with his office. That complaint never went to a public hearing and was resolved after Collins agreed to allow defense attorneys to sit in on such interviews with their clients, under certain conditions, Rogers said.
But the unusual circumstances Kellett finds herself in are not just limited to the pending complaint Filler filed with the legal oversight panel. She also has been criticized extensively on the Internet where some blogs, websites and other Web-based entities have mocked her with hyperbolic rhetoric, accused her of unfairly prosecuting men and called for her disbarment.
Among them is www.fillerfund.com, which was set up in the wake of Filler first being charged in the spring of 2007. Other websites or organizations that have singled out Kellett for criticism include National Coalition For Men, Fathersandfamilies.org, and Stop Abusive and Violent Environments, the last of which held a press conference in Bangor in the weeks before Filler’s second trial was held in May 2011.
Other DAs weigh in
Two Maine district attorneys have said this month that the degree to which Kellett has been targeted and criticized on the Internet is unusual.
R. Christopher Almy, district attorney for Penobscot and Piscataquis counties, said recently that criticism is often part of the job of being a prosecutor, but sometimes people react with more than just criticism. He said he and his staff have been subject to comments and even threats from defendants who are unhappy that they are being prosecuted.
Almy said prosecutors tend to stick to evidence in a case, which can include statements by witnesses or physical evidence, but that defendants sometimes take it personally.
“It’s just one those things that come with the job,” Almy said. “They do get carried away sometimes.”
But Almy added that experiencing sustained, highly-visible criticism such as the type Kellett has endured is not that common. He said he has never been targeted by a website or any other campaign seeking disbarment or other disciplinary action.
Almy said prosecutors often decline to prosecute cases that may come down to one person’s word against another. Kellett deserves credit for pursuing cases that other prosecutors might decide are too difficult to prove beyond a reasonable doubt, he said.
“She’s one of those prosecutors that is willing to try cases some of us shy away from,” Almy said. “I admire her for that.”
Stephanie Anderson, district attorney for Cumberland County and president of Maine Prosecutor’s Association, said last week that she herself has been criticized online, on at least one person’s personal website and in readers’ comments posted on news organization websites, but not to the extent Kellett has been.
The online criticism that has been heaped on Kellett is notable because it is so vitriolic, she said.
“It’s unbelievable what people say,” Anderson said. “People can say anything they want.”
Anderson noted that prosecutors do not have the final say in bringing felony charges such as gross sexual assault against defendants. Grand juries, which are comprised of appointed citizens, have to decide there is enough evidence to warrant the charges before a prosecutor can move forward with pursuing a felony case, she said.
As a result, prosecutors are not inclined to take unusually weak cases to grand juries, she said. Most prosecutors have heavy caseloads and tend to prioritize those that are most likely to result in convictions, she said.
“Why would you do that [pursue weak cases], when you have plenty to do?” Anderson said.
Anderson said bar complaints against prosecutors that are sent to the Board of Overseers are not that rare, but most are found to be without merit after just a cursory review. She’s had about a dozen filed against her, she said, and all but one, which was filed before she became a prosecutor, were not pursued further by the Board of Overseers.
The one complaint that did result in a public hearing against Anderson ended in a dismissal. Anderson, while working in private practice, had met in December 1988 with an employee of a company that was involved in a legal dispute that also involved one of Anderson’s clients. None of Anderson’s actions at the urgently called meeting violated any bar rules, according to a 1991 board report on the incident.
Anderson said that, as a prosecutor, she never has been harassed or threatened for pursuing a case but added that informal accusations from defendants about inconsistent or unjust prosecutions are fairly routine.
“You have to be thick-skinned,” she said. “We have to take this stuff and stand there with our hands tied behind our back.”
Filler was tried twice on the same rape allegations, in January 2009 and May 2011. He was convicted of gross sexual assault at the end of his first trial but, after a new trial was ordered, was acquitted of rape charges but convicted of misdemeanor assault at the end of his second trial.
Kellett was the prosecutor at Filler’s first trial but, after she was accused of prosecutorial misconduct, First Assistant District Attorney Paul Cavanaugh took over the case for Filler’s second trial. Cavanaugh is not accused of any misconduct in the case.
Filler’s most recent appeal was argued before the Law Court last month. On July 3, the court affirmed Filler’s conviction last year for misdemeanor assault.
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, 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 now live with their father in suburban Atlanta.
Kellett is accused of making inappropriate comments during her closing arguments at Filler’s first trial. Justice Kevin Cuddy, the trial judge, had barred Kellett and Filler’s then-defense attorney, Daniel Pileggi of Ellsworth, from raising the possibility during testimony that the rape allegations may or may not have factored into a pending child custody dispute. Kellett had asked Cuddy to prohibit any such testimony during the trial, saying that allowing it would confuse the jury about what allegations they would pass judgment on.
But Kellett herself alluded to a child custody dispute in her closing arguments.
“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.
Pileggi and Filler took issue with Kellett’s apparent violation of Cuddy’s ruling and, after the trial, 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 re-tried.
According to the petition, Kellett also said in her closing argument 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,” Davis, bar counsel for the Board of Overseers, wrote in the bar’s disciplinary petition.
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 materials 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 an Ellsworth police officer not to comply with a subpoena from Pileggi — despite a June 3, 2008, court ruling that ordered Kellett to hand over all requested materials to the defense attorney.
Assistant Attorney General Ronald Lupton, who is representing Kellett in the pending misconduct complaint, has declined to comment on the allegations and upcoming hearing.
Davis also has declined to comment, saying that the board’s policy is not to comment on pending complaints against attorneys beyond what is printed in disciplinary petitions.
Follow BDN reporter Bill Trotter on Twitter at @billtrotter.