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Defense: Johns were offered special deals in exchange for testifying against Strong

Gregory Rec | Portland Press Herald
Gregory Rec | Portland Press Herald
Mark Strong talks with his attorney Daniel Lilley during a motion hearing at York County Superior Court in Alfred on Thursday, Jan. 24, 2013.
By Seth Koenig, BDN Staff

ALFRED, Maine — The attorney representing an alleged conspirator in the high-profile Kennebunk prostitution case told the court Thursday he’s concerned that so-called johns were offered lesser punishments in exchange for testifying against his client.

Superior Court Justice Nancy Mills told prosecutors to give copies of letters they sent to johns about potential plea agreements to Defense Attorney Daniel Lilley in response to the concern. In a separate ruling, she also said the defense team is free to pursue its controversial argument that defendant Mark Strong was the subject of police retaliation in the case.

The two decisions represent pretrial victories for Lilley and the Strong team, which had previously been dealt a string of legal defeats by Mills, who in recent weeks denied defense motions to drop all charges, suppress evidence, delay the start of the trial and change its location, among other things.

Strong is still awaiting a decision on one more pretrial motion: to dismiss all 47 privacy invasion-related charges against him. Those charges make up the vast majority of the 59 counts he’s on trial for, with the remaining 12 counts tied to promotion of prostitution.

Mills held a hearing on a slate of preliminary motions in the trial of Thomaston businessman Mark Strong late Thursday morning. The pretrial motions were argued before the lengthy jury selection process in the case was complete. Jury selection is expected to continue Friday morning.

Strong is accused of working alongside fitness instructor Alexis Wright, who faces her own trial scheduled for May, to run a prostitution operation out of her Kennebunk Zumba studio. Both Strong and Wright have pleaded not guilty to charges related to the case.

Mills did not rule entirely in Strong’s favor Thursday, deciding in the prosecution’s favor on a motion to block discussion of the defendant’s financial struggles during the trial.

Assistant York County District Attorney Patrick Gordon argued that previous statements Lilley has made to the court and media — referencing the state’s “unlimited resources” and “prosecutors on steroids” — have served only to create sympathy among potential jurors for Strong, and continued comments about his belief that prosecutors have an unfair financial advantage are not relevant to the question of whether Strong is guilty.

Mills agreed, saying the defendant’s financial situation will not be a consideration in the trial. However, she rejected a similar prosecution argument that Strong’s alleged investigation into the Kennebunk police should be off-limits in the trial as well. The judge ruled Thursday that Strong’s allegations of retaliation against him by police are fair game once the trial is under way.

Strong has maintained that he was drawn into the case as payback in part for investigating a 2009 affair between town police officer Audra Presby and a superior. Presby played a lead role in the department’s investigation of the alleged prostitution operation.

Strong has said he was also researching a 2011 police shooting in the town.

Kennebunk police Lt. Anthony Bean Burpee has said the police action, in which an officer shot a woman who was approaching him with a knife, was deemed justified by the Maine attorney general’s office, while Presby was disciplined at the time for the affair.

Mills said discussion of those matters during the trial may be justified.

“I would say at this point that this is cross-examination material for Officer Presby, certainly, with regard to her credibility [and] with regard to her bias,” Mills said.

The first of the preliminary motions fielded by Mills on Thursday was made by Lilley, who requested a record of “inducements, promises, compensations, leniency or rewards” offered to the 18 men who have pleaded guilty to paying for sex in the case and who are listed as witnesses for the prosecution.

Lilley told the court that the men convicted of engaging a prostitute pleaded guilty to only one charge when “evidence would suggest several criminal counts.” He said lawyers for other suspected johns have indicated that the York County District Attorney’s Office offered to drop additional counts in exchange for testimony against Strong.

“I have lawyers telling me the deal is, ‘You have to come in now and plead now so you can testify in this trial, and if you don’t do that, you’re going to be charged with more crimes,’” Lilley told the court.

Gordon said all the accused johns were allowed to plead to only one count of engaging a prostitute, with the understanding that each man’s fine would be larger or smaller depending on how often the individual met with the alleged prostitute.

Mills told the prosecutors to provide Lilley with the letters they provided the individuals suspected in the case of engaging a prostitute, including whatever plea deals were offered.

Deputy District Attorney Justina McGettigan told the court she had to be clear with the suspects that they could indeed be called as witnesses, but no special deal was made based on their agreement to testify, and the letters would reinforce that contention.

Mills did not announce on Thursday a decision on a pretrial motion by Lilley to drop all privacy invasion charges against his client, which if granted, would cut the counts against Strong from 59 to 12.

Lilley told the court Thursday that the notion that Maine privacy laws protect individuals engaged in criminal activity is “ludicrous.” The invasion of privacy charges are tied to the fact that the alleged sexual interactions between Wright and the johns were videotaped without the johns knowing.

Lilley said state privacy laws are intended to apply to places like restrooms and locker rooms, not “bordellos or prostitution houses.”

“There is no statute that is going to give a criminal privacy rights to commit a crime,” Lilley said of the johns in the case. “Does that mean if a drug dealer is in an apartment dealing drugs and somebody happens to take a photograph, that the drug dealer would be a victim of privacy invasion?”

But Gordon argued that the state would prosecute someone for committing a crime, even if the crime was committed against another criminal who was also engaged in committing a crime. He said, for instance, that a person who shoots a drug dealer in a deal gone bad will still be charged for that action, even though the victim was engaged in criminal activity.

“From the state’s perspective, at a place where a person engages in sexual behavior, they have an expectation of privacy whether or not they’re engaged in legal or illegal activities,” Gordon said.

Mills could rule on the motion to dismiss the charges as soon as Friday.

Strong has maintained that, if prostitution took place at Wright’s fitness studio, he was not involved in the illegal operation. Strong has told reporters he loaned Wright money to start her Zumba business and that he had a physical relationship with her, but that he had no part in promoting prostitution there.

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