ALFRED, Maine — Superior Court Justice Nancy Mills on Tuesday had two more chances to throw out all charges against Mark Strong Sr. in the first of two major trials in the high-profile Kennebunk prostitution case, but the judge denied both defense motions to dismiss during a day in court marked by frequent stoppages and objections from both sides.
During a morning hearing before jurors were called into the courtroom, Mills heard defense arguments that evidence is regularly being introduced by prosecutors too late in the process for defendant Mark Strong Sr. and his team to prepare.
The justice felt the conditions did not rise enough in severity to put an end to the trial, ruling against the defense motion to dismiss, but Strong’s attorneys persisted, moving again to throw out all the charges during the afternoon session after learning of another piece of evidence prosecutors had not turned over.
Mills denied that motion as well.
Strong faces 12 counts of promotion of prostitution and one count of conspiracy to promote prostitution for his alleged role helping Kennebunk fitness instructor Alexis Wright run a prostitution business from her Zumba studio. Wright faces a separate trial scheduled to begin later this spring.
Defense attorneys in the Strong case have filed at least six motions to dismiss the charges since he first was arrested in July, each time arguing that prosecutors from the York County district attorney’s office were not turning over evidence they said they could use to prove Strong’s innocence.
On Jan. 25, Mills granted the defense a victory by dismissing all 46 privacy invasion charges against the defendant, but allowed the trial to continue on the 13 counts related to promotion of prostitution.
“Every day, seemingly with every witness, we’re discovering evidence that was not given to us,” defense co-counsel Tina Nadeau told Mills Tuesday, arguing a motion to dismiss filed by her team last week. “Every day brings a new surprise.”
Prosecution witness and U.S. Postal Inspector Michael Desrosiers acknowledged during cross examination by Lilley on Tuesday afternoon that in a letter he offered prosecutors copies of his notes from his role in the investigation, as well as copies of express mail receipts allegedly documenting mail exchanged between Wright and Strong.
Lilley argued that prosecutors should have been obligated to obtain the notes and receipts and offer them to the defense. That triggered his latest motion to dismiss the charges, which again was denied.
“It would be negligence on my part not to review the evidence, but I can’t review what I don’t have,” Lilley said.
Nadeau previously had told the court that Strong’s team received 150 new items of evidence in recent days, including records of interviews Kennebunk police Officer Audra Presby conducted with Wright’s associates from a nearby strip club in July 2012 and a video allegedly depicting Wright engaged in sexual acts with another woman. Another item Nadeau said the defense received Tuesday was a report written by a detective from the August-September 2012 time frame in the investigation.
“I haven’t seen this until today, and he’s scheduled to testify today,” Lilley told the judge Tuesday. “We’re also getting supplemental discovery on johns who are scheduled to testify soon.
“We’re having to prepare for witnesses on the fly as we get evidence in dribs and drabs,” he continued.
But Assistant District Attorney Patrick Gordon argued that prosecutors are not obligated to turn over every item their office receives, only items that are deemed “material” to the case. He said many items sought by the defense pertain to individuals not on the witness list.
Nadeau countered that the decision of what’s material should not be up to prosecutors to decide.
But Mills decided Tuesday not to dismiss charges in response to either of the two defense motions, saying that while she was sympathetic to Strong’s argument, prosecutors are handling an “overwhelming” amount of evidence in the case and “nobody’s perfect.” The judge also said she does not believe trouble with the discovery process has reached a point where it prejudices the court against the defendant.
Mills offered Strong’s team more time to absorb new evidence. She also offered to give the jury special instructions regarding their consideration of certain pieces of evidence in question if the defense prefers.
Mills on Tuesday afternoon released the jury about two hours early, in part to meet with attorneys for a second time to discuss how much sexually explicit material the jury will be expected to consume when the trial continues.
Lilley has argued that images allegedly found on Strong’s computers by police, depicting Wright engaged in sexual acts with various men, could “horrify” the jurors and prejudice them against his client.
Deputy District Attorney Justina McGettigan has countered that the images, allegedly taken remotely of the sex acts through the popular videoconferencing program Skype, are important to prove Strong played an active role in the alleged prostitution business.
Defense attorneys said in court Monday that prosecutors have 577 Skype images, as well as additional associated videos, ready to introduce as evidence in the case if necessary.
Mills said she hopes attorneys can settle on an appropriate amount of explicit images that are admissible by Wednesday morning so the images can be introduced as evidence before the jury.