Prosecutors in Kennebunk Zumba prostitution trial cannot be called as witnesses, judge rules

Defendant Mark Strong Sr. (right) talks with his attorney Daniel Lilley after a hearing Tuesday morning, Feb. 19, 2013 in York County Superior Court.
Shawn Patrick Ouellette | Pool/PPH
Defendant Mark Strong Sr. (right) talks with his attorney Daniel Lilley after a hearing Tuesday morning, Feb. 19, 2013 in York County Superior Court.
Posted Feb. 19, 2013, at 10:01 a.m.
Last modified Feb. 19, 2013, at 3:54 p.m.

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Justice Nancy Mills presides over the Zumba case in York County Superior Court on Tuesday, Feb. 19, 2013.
Shawn Patrick Ouellette | Pool/PPH
Justice Nancy Mills presides over the Zumba case in York County Superior Court on Tuesday, Feb. 19, 2013.
York County Deputy District Attorney Justina McGettigan in York County Superior Court after a hearing Tuesday, Feb. 19, 2013.
Shawn Patrick Ouellette | Pool/PPH
York County Deputy District Attorney Justina McGettigan in York County Superior Court after a hearing Tuesday, Feb. 19, 2013.

ALFRED, Maine — Prosecutors from the York County district attorney’s office will not be forced to testify in the first of two major trials in the high-profile Kennebunk prostitution case.

In the first hearing since the state’s highest court threw out more than two-thirds of the charges against Thomaston insurance broker Mark Strong, Superior Court Justice Nancy Mills ruled Tuesday morning that defense attorneys for Strong cannot call Deputy District Attorney Justina McGettigan or Assistant District Attorney Patrick Gordon to the witness stand in an attempt to prove their client was targeted by “selective prosecution.”

Mills also shook off attorney alerts that she may have a conflict of interest in the case, due to peripheral relationships with the attorney general’s office and a law firm that represented one of the lead investigators, and said she will not recuse herself from the ongoing case.

Strong is accused of conspiring with fitness instructor Alexis Wright to run a prostitution business out of her Kennebunk Zumba studio. Wright faces her own separate trial that’s scheduled to begin in May.

Strong’s attorney Daniel Lilley has argued that his client was targeted in the prostitution investigation as retaliation for research he was doing into alleged misconduct in the Kennebunk Police Department. Strong was a part-time private investigator.

Mills previously ruled that Lilley can pursue the payback argument in an earlier decision, ruling against prosecutors’ motion that discussion of retribution by law enforcement be barred from the trial.

“It appears from the discovery, that from the very outset, in … 2011, [police] went very early to the district attorney’s office, and it appears the district attorney’s office shepherded the case very closely through all the investigative stages,” Lilley said. “The fact that the prosecutors seem to be very close to the investigation, that may require us to call one of the prosecutors, most likely Ms. McGettigan, [to testify].”

Deputy District Attorney Justina McGettigan countered that defense attorneys can obtain information about the district attorney’s office’s role in the investigation through questioning of police who are already on the witness list.

“It’s not necessary to call us, because he can explore that through testimony by other witnesses,” McGettigan said.

Mills also on Tuesday decided not to recuse herself from the case — as well as the forthcoming Wright case — after acknowledging that sister-in-law Janet Mills has been named the state’s attorney general. The attorney general’s office signed off on the prosecution’s recent appeal to the law court, but both Assistant Attorney General William Stokes and York County District Attorney Kathryn Slattery each wrote letters telling the court they are satisfied Janet Mills has been screened from the cases and Nancy Mills’ impartiality has remained untainted.

Both Stokes and Slattery wrote, however, that they would support Mills if she decided to step down to “avoid … the appearance of a conflict.”

Mills also said she thinks she could act impartially despite the fact that her husband’s Skowhegan law firm, Wright & Mills, represented a lead investigator from the Kennebunk Police Department, Audra Presby, during a 2011 protection from abuse hearing.

Defense attorneys Sarah Churchill, representing Wright, and Lilley told Justice Nancy Mills on Tuesday that their clients think she should continue to oversee the cases.

Strong’s team is also moving into the Superior Court trial with a key legal victory under its belt. On Friday, the Maine Supreme Judicial Court upheld Mills’ Jan. 25 pretrial decision to dismiss all 46 privacy invasion charges against Strong, leaving only 13 promotion of prostitution counts against him for the coming trial.

The case has been on hold at the Superior Court level while the prosecution’s appeal of Mills’ ruling to throw out the 46 charges played out in the higher court.

Mills and attorneys from both sides are expected to resume jury selection this week — perhaps as early as Wednesday. The normally routine process of seating a jury, which Mills said had never taken her longer than a day in her 19 years in Superior Court, was about to begin its fourth day when the case was halted by prosecutors’ appeal.

Attorneys have struggled to find jurors who have not been influenced by the global media coverage the Kennebunk scandal has attracted, or who are not somehow involved in the sprawling case.

Law enforcement agencies at the local, county, state and federal levels have been involved, and nearly 70 individuals have been charged as “johns” of the prostitution business.

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

Strong has said he also was 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.

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