Justice corrects earlier morning decision to restart jury selection in Kennebunk prostitution case

Mark Strong Sr. talks with his attorney Dan Lilley after Justice Nancy Mills dropped 46 charges against Strong at York County Superior Court in Alfred on Thursday morning, January 24, 2013. Strong still faces 13 counts.
Gregory Rec | Pool/PPH
Mark Strong Sr. talks with his attorney Dan Lilley after Justice Nancy Mills dropped 46 charges against Strong at York County Superior Court in Alfred on Thursday morning, January 24, 2013. Strong still faces 13 counts.
By Seth Koenig, BDN Staff
Posted Jan. 29, 2013, at 9:36 a.m.

ALFRED, Maine — After first indicating to attorneys that the controversial and time-consuming jury selection process in the first major trial of the high-profile Kennebunk prostitution case would be started over, Superior Court Justice Nancy Mills on Tuesday morning said the current group of potential jurors will continue to stay with the case.

“This jury panel is here through the end of February,” Mills told the court in an abruptly called hearing. “Obviously they have not been dismissed or discharged, and depending on how the time frames of this case works out, they may serve [on this case].”

Mills on Tuesday morning refused to allow the case to continue on a smaller slate of charges while the bulk of the counts are held up in appeal. As a result, the trial of Mark Strong will remain on hold while the Maine Supreme Judicial Court considers whether to throw out 46 of the 59 charges against him.

Mills initially said she would start over what has been a lengthy and controversial jury selection process in the case, concerned that during the past week, potential jurors still in the running to serve have seen media reports or become frustrated by the time-consuming interviews.

The judge’s first Tuesday morning decision on the jury threatened to essentially hit a reset button on what has been one of southern Maine’s highest-profile cases in years, with international media descending on the region over the past several months to cover the scandal. But after the subsequent clarification, Mills made it clear that jury candidates who have started coming to the courthouse since last Tuesday are still potential jurors on the case.

Jury selection in the case had gone on for four-plus days, the first time in Mills’ 19 years on the Superior Court that she had not been able to seat a jury in a day or less, she said. As many as 250 York County residents were issued jury summonses, with 140 initially showing up at the courthouse to begin filling out questionnaires and sitting for individual interviews with the judge and attorneys in the case.

Jury selection labored on for many days as attorneys struggled to find jurors who did not know anyone involved in the sprawling case or hadn’t been influenced by the intense media coverage.

Mills suggested in court on Tuesday that the jury pool has been whittled to approximately 22 people, with attorneys settled on all but three jurors. The jury will include 12 people and as many as four alternates.

Further adding time to the jury selection process 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. Those so-called voir dire interviews had previously been off-limits to the public and media, as Mills argued she and the attorneys needed to be able to ask “probing” questions of the jury candidates to ensure they will be impartial in a trial featuring heavy sexual content and explicit evidence.

During a pretrial hearing on Friday, Mills dismissed 46 charges of invasion of privacy against Strong, leaving 13 counts of promotion of prostitution remaining against him. That ruling was immediately appealed to the Maine Supreme Judicial Court by the York County district attorney’s office and the state attorney general, bringing the trial to at least a temporary halt before jury selection was even completed.

Strong is accused of working alongside fitness instructor Alexis Wright of Wells to run a prostitution business out of her Kennebunk Zumba studio.

Lilley requested that the trial continue on the 13 remaining prostitution-related counts, but Mills at the time decided to wait until the appeal of the larger group of charges played out at the Law Court.

On Monday, the state supreme court ruled that the decision on whether to split the cases against Strong in two — one immediate trial on the prostitution promotion charges and a potential second trial on 46 privacy invasion charges if the high court overturns Friday’s dismissal — would rest with Mills.

The L aw Court announced Monday it wouldn’t decide on how quickly it will issue a ruling on the appealed charges until Mills makes her decision on whether to split the cases. With that decision made, participants in the case will await a procedural order from the supreme court, which is expected to indicate whether the higher court will expedite the appeal.

The Superior Court judge heard arguments on whether to sever the two slates of charges Tuesday morning at the York County courthouse in Alfred. The focus of the arguments Tuesday morning centered on the effect of separating the charges on the jury selection process, which began a week earlier and hasn’t yet been resolved.

York County Deputy District Attorney Justina McGettigan told Mills Tuesday that comments Lilley made to reporters on Friday after leaving the courthouse have potentially influenced jury candidates who have already spent long days at the location.

“There’s a perception that this lengthy jury selection is the fault of the state,” McGettigan said. “As the court well knows, the defendant has a right to a trial, and the state is a party in that trial. We’ll now have to ask them again what their views are in light of all the [recent] press reports. … Although the court has admonished the jurors not to read anything about this case, we do have an example of a juror coming in with a newspaper.”

Lilley said that if prosecutors are concerned about the jury being “tainted,” they should support a change in the location of the trial. Mills denied a previous motion by Lilley to change the venue.

“It doesn’t show much confidence by the state in the jury’s ability to follow orders. … There’s no indication that the jurors have been exposed to anything, and if they followed the court’s orders, we have to assume they’re compliant,” Lilley told the court Tuesday.

The debate about splitting up the counts is the latest court battle in what has been a tumultuous pretrial stretch in the Strong case.

Friday’s appeal to the Maine Supreme Judicial Court represented the second appeal to the state’s highest court in two days in the case, after the Press Herald appeal on Thursday.

Lilley filed a motion to get the 46 privacy invasion charges thrown out based on the argument that the johns could not legally expect privacy while at a fitness studio or business office, or while in the act of committing a crime — in this case, engaging a prostitute. The invasion of privacy charges are tied to the fact that the alleged sexual interactions between Wright and the johns, many of which allegedly took place in the above locations, were videotaped without the johns knowing.

Lilley argued before the court that protecting the privacy of johns in the illegal act of engaging a prostitute is akin to allowing a drug dealer to claim privacy infringement if caught on film dealing drugs while inside an apartment.

Prosecutors countered that an individual committing a crime is not exempt from simultaneously being a victim of another crime, pointing out that they would prosecute someone for shooting the same hypothetical drug dealer even though the drug dealer may have been selling narcotics at the time of the shooting.

Mills ruled in favor of the defense, dropping the majority of the charges, and the prosecution appealed, placing the trial in the hands of the Maine Supreme Judicial Court, where it remains.

With the appeal still pending, Mills told attorneys in the case on Tuesday they have another week to finish cataloging evidence and making it available to their opponents.

During a morning hearing, defense attorneys argued that electronic evidence being used by prosecutors, including specific emails Strong allegedly sent or received, has not been adequately differentiated from other irrelevant electronic records included on computer hard drives being held as evidence.

Prosecutors countered they still need to see any documents the defense plans to use to indicate that investigating police officers were retaliating against Strong for research he was doing into alleged misconduct in the department.

Both parties have until Feb. 5 to turn over the requested evidence.

http://bangordailynews.com/2013/01/29/news/portland/attorneys-in-kennebunk-prostitution-case-battle-over-whether-to-split-strong-trial-into-two-parts/ printed on April 17, 2014