Evidence exchange in Kennebunk prostitution case becomes legal battleground

Deputy District Attorney Justina McGettigan scowls at defense attorney Daniel Lilley's assertion that the box of evidence delivered to his office from the prosecution was unorganized, unstamped and incomplete during arraignment procedures Tuesday Oct. 9, 2012 in Cumberland County Superior Court in Portland.
Deputy District Attorney Justina McGettigan scowls at defense attorney Daniel Lilley's assertion that the box of evidence delivered to his office from the prosecution was unorganized, unstamped and incomplete during arraignment procedures Tuesday Oct. 9, 2012 in Cumberland County Superior Court in Portland. Buy Photo
Posted Feb. 05, 2013, at 5:16 p.m.

PORTLAND, Maine — Attorneys in the high-profile Kennebunk prostitution trial had a deadline of Tuesday to exchange evidence in the case, a normally routine process that has become a flashpoint as the prosecution and defense have traded accusations of withholding information.

Dispute about evidence in the trial of Mark Strong — who is accused of teaming with Kennebunk fitness instructor Alexis Wright to run a prostitution business out of her Zumba studio — dates back to the Thomaston insurance broker and part-time private investigator’s October arraignment.

At that hearing, defense attorney Daniel Lilley complained to Superior Court Justice Nancy Mills about what he called a “mishmash” of evidence provided by prosecutors, delivered to his office in the form of boxes of documents he said were not adequately organized and computer hard drives he said he could not access.

After hearing Lilley’s complaints, Mills sternly rebuked the York County district attorney’s office, ordering prosecutors to better correlate their evidence and setting the stage for what would be regular battles over material.

Debate in that regard continued on to as recently as a Jan. 29 hearing, in which Lilley argued that electronic evidence being used by prosecutors, including specific emails Strong allegedly sent or received, had not been clearly differentiated from irrelevant electronic records included on computer hard drives being held as evidence.

Prosecutors countered that they still need to see any documents the defense plans to use to back up allegations police officers were investigating Strong as retaliation for research he was doing into alleged departmental misconduct.

The salvos, made during the most recent public hearing held in the trial, added to weeks of legal wrangling about evidence in the case. In early December, Lilley filed a motion to dismiss all charges against his client on the grounds that prosecutors did not turn over all evidence against Strong by a court-imposed Nov. 26 deadline to do so.

Lilley also filed a motion to suppress evidence seized from Strong’s property using a search warrant, initially requested by a Kennebunk police officer Strong believed was targeting him for payback, and which Lilley argued never should have been granted.

Mills declined to drop all the charges or the evidence gleaned from the disputed search warrant, but the judge did reaffirm that prosecutors could not use a report from Kennebunk Police Lt. Anthony Bean Burpee regarding emails he allegedly exchanged with Strong, but which were filed after the Nov. 26 deadline.

As pretrial proceedings labored on and new motions were filed — a prosecution appeal to the Maine Supreme Judicial Court put the lower court trial temporarily on hold — Mills set a new evidence trade deadline for Tuesday to corral lingering disagreements on the material.

In the case of at least one piece of evidence, the prosecution and defense don’t agree on whether it exists.

The defense has continued to raise questions about one external hard drive that Strong has alleged investigators confiscated, but that prosecutors never entered into evidence. Lilley argued before Mills as recently as Jan. 29 that the hard drive, on which Strong allegedly kept information from his research into police misconduct, was taken and referenced in a detective’s report but never returned.

Deputy District Attorney Justina McGettigan has dismissed claims of a lost hard drive, and Mills backed the prosecution account by writing in a Dec. 31 decision that the device in question was never listed on any seizure inventories nor referenced in the detective’s report.

After a December hearing, Lilley told reporters the issue broke down to a case where the state is arguing the hard drive “doesn’t exist — we’re saying it does.”

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. 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.

The Tuesday deadline for attorneys in the trial to exchange evidence at the Superior Court-level came sandwiched between filing deadlines in the case imposed by the Maine Supreme Judicial Court.

The state’s highest court is fielding a prosecution appeal of Mills’ Jan. 25 decision to throw out all privacy invasion charges against Strong — representing 46 of the 59 counts he was on trial for. The remaining 13 are charges of promotion of prostitution.

The supreme court deadline for initial briefs from prosecutors and any other interested parties came at 4 p.m. Monday, and the defense response will be due by 4 p.m. Thursday.

Oral arguments on the appeal will be heard by Maine Supreme Judicial Court justices on Feb. 13. The trial of Strong at the Superior Court level is expected to resume after the higher court rules on the fate of the 46 disputed charges, however Mills has instructed attorneys to continue on with what she described in court as “housekeeping” items at the lower court level, such as the exchange of evidence.

Wright faces a separate trial scheduled to begin in May.

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