Kennebunk prostitution case in limbo again while high court reviews judge’s dismissal of 46 of 59 counts against defendant

Mark Strong (right) talks with his attorney Dan Lilley after Justice Nancy Mills dropped 46 charges against Strong at York County Superior Court in Alfred on Thursday, Jan. 24. Strong still faces 13 counts.
Gregory Rec | Pool/PPH
Mark Strong (right) talks with his attorney Dan Lilley after Justice Nancy Mills dropped 46 charges against Strong at York County Superior Court in Alfred on Thursday, Jan. 24. Strong still faces 13 counts. Buy Photo
Posted Jan. 25, 2013, at 9:28 a.m.
Last modified Jan. 25, 2013, at 5:26 p.m.

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Kennebunk prostitution defendant Mark Strong leaves the Cumberland County Superior Court in Portland on Friday, Jan. 18, 2013 after the court denied his motion by Strong's attorney Dan Lilley to be removed from the case. The trial is set to begin next week in York County Superior Court in Alfred.
Rich Beauchesne
Kennebunk prostitution defendant Mark Strong leaves the Cumberland County Superior Court in Portland on Friday, Jan. 18, 2013 after the court denied his motion by Strong's attorney Dan Lilley to be removed from the case. The trial is set to begin next week in York County Superior Court in Alfred.

ALFRED, Maine — Superior Court Justice Nancy Mills on Friday morning threw out 46 of the 59 counts against the alleged co-conspirator in the high-profile Kennebunk prostitution case, setting the stage for another appeal to the state’s highest court.

Mills’ decision to grant a defense motion to dismiss a majority of the charges against Mark Strong dealt prosecutors a pretrial blow hours before opening arguments in the trial were expected to begin.

As a result, the timing of those arguments was thrown into uncertainty. For the second time in two days, a pretrial ruling in the case triggered an appeal to the Maine Supreme Judicial Court, this time as the York County district attorney’s office and state attorney general launched a legal effort to overturn the count dismissals.

On Thursday, the Portland Press Herald and parent company MaineToday Media won a high court appeal of Mills’ decision to keep interviews with potential jurors closed to the public and media.

As was the case Thursday, news of the appeal to the supreme court caused Mills to bring the case to a halt until the higher court issues a ruling on the matter.

While the supreme court issued a ruling on the Thursday appeal within hours, the panel is not obligated to rule quickly on Friday’s appeal. That could put Strong’s trial on ice indefinitely, although defense attorney Daniel Lilley called for an emergency consideration by the law court.

The court closed Friday without a decision posted by the high court, nor a ruling on Lilley’s motion to expedite the process.

The latest appeal also means jury selection — which was put on hold during Thursday’s MaineToday Media appeal and was expected to resume Friday under the law court’s demand of public access — has been suspended again. Mills told the court jurors will be instructed to call a jury telephone hotline after 5 p.m. Sunday to learn whether to return on Monday morning.

On Monday, if the trial resumes then, jury selection will begin its fifth day. Mills said earlier this week that it has never taken her longer than one day to seat a jury in her 19 years on the Superior Court.

Lilley, representing Strong alongside co-counsel Tina Nadeau, asked Mills to separate the cases against his client, urging her to press forward with the trial on the 13 remaining promotion of prostitution counts while waiting for a law court ruling on the 46 privacy violation counts.

But the judge denied the request, saying prosecutors could simply appeal the separation, as well.

When York County Deputy District Attorney Justina McGettigan told the court Thursday that the state attorney general’s office had agreed to support an appeal of the dismissals, the announcement drew a strongly worded response from Nadeau, who accused prosecutors of using the appeal to unlawfully “delay, harass, manipulate or abuse the defendant.”

Nadeau also said continuing to delay jury selection in the case with an appeal could create resentment among jurors against her client. Jury selection is now on its fourth day.

“There’s no doubt they could take that out on our defendant when they’ve been stewing down there for four days without knowing the reasons” for the delays, Nadeau told the court. “The state is sour right now because they lost 46 improper counts, and they should have considered that before they went forward with this case. … Every minute we sit here is an infringement on the rights on our client.”

The court on Thursday heard arguments on the motion by Lilley to dismiss 46 counts of invasion of privacy or conspiracy to invade privacy. Mills on Friday morning ruled that the charges would be dropped. Remaining are 13 counts of promotion of prostitution.

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. Jury selection in the case is expected to continue after McGettigan’s recess, with opening arguments to begin after that process is complete.

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 such as 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 Assistant York County District Attorney Patrick 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.

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.

Lilley on Thursday received two other crucial pretrial motions in his favor as well.

Mills told prosecutors to give copies of letters they sent to johns about potential plea agreements to Lilley in response to his concern that the johns were being offered lesser punishments in exchange for testifying against his client. In a separate ruling, she also said the defense team is free to pursue its controversial argument that Strong was the subject of police retaliation in the case.

The three decisions represent significant 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.

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, calling the subject matter irrelevant in the question of whether or not he’s guilty of the crimes.

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