Board recommends suspension for Hancock County prosecutor

By Bill Trotter, BDN Staff
Posted Dec. 11, 2012, at 2 p.m.

ELLSWORTH, Maine — A state entity that oversees the conduct of licensed attorneys in Maine has determined that a Hancock County prosecutor violated seven bar rules and should be suspended.

The Dec. 5 report by the grievance commission Maine Board of Overseers of the Bar does not recommend a specific length of time for suspending Mary Kellett, an assistant district attorney in Hancock County.

Vladek Filler, a former resident of Gouldsboro who was prosecuted four years ago by Kellett on a charge that he raped his wife, filed a complaint against him with the board in December 2010.

Filler, who now lives in suburban Atlanta, initially was found guilty of gross sexual assault but was granted a retrial by the state supreme court. A second jury found him guilty of misdemeanor assault but acquitted him of raping his wife. He subsequently was sentenced to serve 21 days in jail, which he did earlier this fall.

In its report, the panel indicated that Kellett violated bar rules by:

• Engaging in conduct unworthy of an attorney.

• Engaging in conduct prejudicial to the administration of justice.

• Failing to employ reasonable skill and care.

• Failing to make timely disclosure of the existence of evidence that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.

• Suppressing evidence that she had a legal obligation to produce.

• Assisting the state to violate the Maine Rules of Criminal Procedure and the court’s order.

• Employing means that were inconsistent with truth and seeking to mislead the jury.

In October, a three-member grievance panel of the board held a two-day hearing on Filler’s complaint at Penobscot Judicial Center in Bangor.

In the Dec. 5 report, the panel indicated that it “concludes that an appropriate sanction in this matter would be a period of suspension. Accordingly, the panel finds probable cause for such discipline, and hereby directs Bar Counsel [J. Scott Davis] to commence an attorney disciplinary action by filing an information with the [Maine Supreme Judicial] Court.”

Attempts Tuesday to contact Davis, Kellett and her boss, Carletta Bassano, district attorney for Hancock and Washington counties, were unsuccessful.

When contacted Tuesday by email, Filler replied with this statement:

“I believe we all have an absolute moral and constitutional obligation to fight abuse of officials who now wield almost absolute power to destroy our lives and undermine the administration of justice,” Filler wrote. “What my children and I were put through is inexcusable, and I urge the Law Court to review all the evidence I have documented and provided to the Bar Counsel and act accordingly to defend our civil rights.”

According to procedural information posted on the board’s website, another hearing about Kellett’s conduct will be scheduled and heard by a single justice serving on the seven-member Law Court bench. It is the justice who presides at the hearing who will have the final decision about whether a suspension is appropriate and how long the suspension will be, according to board staff.

Jacqueline Rogers, executive director of the board, said Tuesday that this case was the first board officials knew of in which a panel report recommended that a prosecutor be suspended. She declined to comment specifically about Kellett’s alleged misconduct.

Rogers said that formal bar complaints about prosecutors that end up being argued in public hearings before the board’s grievance commission are rare. Board staff recently looked into the matter, she said, and could find only one complaint against a prosecutor that went to a public hearing over the past 30 or so years.

The grievance panel wrote in its report about two aspects of Kellett’s conduct in prosecuting Filler that “cause concern.”

One aspect is Kellett’s comment during her closing arguments that there was no evidence that the allegations against Filler were part of a custody dispute over their children between Filler and his wife. The defense wanted to introduce such testimony in the January 2009 trial, but Kellett had successfully argued before testimony began that any such testimony should not be allowed because it would confuse the jury. Following the trial, a Superior Court justice and the Law Court separately determined that Kellett’s comments during her closing were unfairly prejudicial against Filler, the panel indicated.

“Kellett testified at the disciplinary hearing that she would not change that aspect of her rebuttal argument, if she were to do it again,” the panel wrote in the report. “Ms. Kellett’s own expert, [attorney] Fernald R. Rochelle, testified that she appeared “stubborn” and as if she were “bucking the court” during her testimony. This willful recalcitrance makes it appear likely that Ms. Kellett would repeat this unfairly prejudicial conduct.”

The other aspect that the panel said causes concern is Kellett’s failure to produce and turn over before the January 2009 trial “at least two pieces of exculpatory evidence” to Filler’s defense attorney at the time, Daniel Pileggi of Ellsworth. One was a copy of a 911 call about Filler’s wife behaving strangely, which led to police being told of the supposed rape, and the other piece involved statements that Filler and his wife provided to Ellsworth police about an unrelated incident five days after the rape supposedly had occurred.

Pileggi sought both pieces of evidence to use as examples of Filler’s wife’s state of mind before and at the time the rape allegations were reported to police.

George “Toby” Dilworth, an experienced attorney and former federal prosecutor, testified at the October hearing that he believes Kellett violated bar rules in the way she handled Filler’s case.

Dilworth told the panel that the written statements Filler and his wife provided to police about the Ellsworth incident were “critical” to the defense. It is a prosecutor’s professional responsibility to provide any possibly exculpatory evidence to a defendant’s attorney, he said, and Kellett clearly did not do that.

“The seriousness of this issue cannot be overstated,” the panel wrote in its report. “The evidence was requested by letters, subpoena and motion. The evidence should have been produced pursuant to rules, a court order, case law and ethical obligations.”

The board also indicates that Kellett’s testimony at its October hearing suggests that her boss at the time, former Hancock County District Attorney Michael Povich, failed to comply with bar rules by “ratifying” Kellett’s conduct and “obviously disregarding” Pileggi’s ethical concerns set forth in a letter Pileggi sent to Kellett on May 29, 2008. The report indicates that Kellett had testified at the October hearing that she brought Pileggi’s letter to the attention of Povich, who is not mentioned in the report by name.

An attempt Tuesday to contact Povich, who retired in 2010 after serving as district attorney for 35 years, was unsuccessful.

In Filler’s 18-page disciplinary petition that was filed with the board, he accused Kellett of violating nine rules of the Maine Bar.

For the past few years, Filler has been living in Lawrenceville, Ga., with his two sons, whom he was granted custody of in his subsequent divorce. He has contended since he was first accused of raping his then-wife in Gouldsboro that his marriage was deteriorating and that she had fabricated the allegations in order to win custody of their boys.

Filler was convicted at his first trial of gross sexual assault but was granted a retrial after the state supreme court determined that evidence that was barred from testimony should have been allowed and that Kellett made prejudicial statements to the jury during her closing arguments.

Filler was acquitted of felony gross sexual assault during his second trial, held last year in Bangor. Filler’s second trial was prosecuted by First Assistant District Attorney Paul Cavanaugh.

Filler’s most recent appeal was argued before the Law Court in June of this year. On July 3, the court affirmed Filler’s assault conviction.

Follow BDN reporter Bill trotter on Twitter at @billtrotter.

http://bangordailynews.com/2012/12/11/news/hancock/board-recommends-suspension-for-hancock-county-prosecutor/ printed on September 21, 2014