Man acquitted of rape testifies against prosecutor at misconduct hearing

BANGOR, Maine — A former defendant who ended up being acquitted of raping his wife appeared in a Bangor courtroom Monday to testify that a Hancock County prosecutor suppressed evidence that could have helped his case.

The testimony came during a prosecutorial misconduct hearing held Monday morning at Penobscot Judicial Center by the Maine Board of Overseers of the Bar, which polices the professional conduct of attorneys in Maine. Vladek Filler, 43, who used to live in Gouldsboro, claims Hancock County Assistant District Attorney Mary Kellett broke nine rules of the bar when she prosecuted his case leading up to and during his January 2009 trial.

Filler was accused of assaulting his then-wife, physically and sexually, in 2005 and 2007. Filler, who now lives in suburban Atlanta with his two sons, has contended since he was first accused of rape that his marriage was deteriorating and that his wife fabricated the allegations in order to win custody of their boys.

In his bar complaint, filed in December 2010 with the board of overseers, Filler claims Kellett broke bar rules by making improper statements during her closing arguments in his trial, by withholding evidence and by interfering with subpoenas issued by Filler’s defense attorney for that trial.

On Monday, Filler told the three-member panel reviewing his complaint that he and his attorney at the time, Daniel Pileggi of Ellsworth, had trouble getting copies of police investigative materials leading up to his January 2009 trial. In one example, he said, Kellett allegedly told an Ellsworth police officer not to provide Pileggi with copies of police investigative materials that stemmed from an incident in Ellsworth on April 11, 2007.

In that incident, Filler got into an altercation with Stephen Fay, managing editor of the Ellsworth American, after Filler and his wife went to the weekly newspaper to complain about information the paper had published about Filler’s stepdaughter. No charges ever were filed in the matter.

Filler alleged that Fay physically threw him out of the newspaper offices. Filler said his wife urged him to go to local police to report it.

The incident could have been relevant to Filler’s rape trial, according to Filler, because his wife later accused him of raping her on April 6, 2007, five days before the incident at the Ellsworth newspaper office.

Written statements the couple provided to police would have shown that his wife expressed concern about his well-being and made no attempt to tell police about the alleged sexual assault against her by Filler less than a week earlier.

“It was very significant, as [Pileggi] and I both agreed,” Filler said.

Filler said he never got copies of the written statements he and his wife had given Ellsworth police until after he was convicted of rape at his January 2009 trial. He later was granted a new trial and found guilty only of misdemeanor assault.

Pileggi also testified Monday, saying that he was “pretty concerned” that his repeated requests for copies of the written statements to police were not fulfilled during that first trial.

“I believe I would have used [Filler’s wife’s] statement in the criminal defense,” at the January 2009 trial, Pileggi said.

Bar Counsel J. Scott Davis is presenting the misconduct case to the board, while Assistant Attorney General Ronald Lupton is representing Kellett.

In his opening statement to the panel, Lupton said Kellett did not do anything to violate bar rules. He said his office and the Law Court each reviewed the case prior to Filler filing his complaint with the board and neither found that Kellett had done anything improper.

“Please keep in mind the distinction between prosecutorial error, and prosecutorial misconduct,” Lupton said.

Davis told the panel that Kellett did break bar rules and, to support his case, called George “Toby” Dilworth, an experienced attorney and former federal prosecutor, to the stand as an expert witness. Dilworth was forthright in saying that he believes Kellett violated bar rules in the way she handled Filler’s case.

He said that during her closing argument Kellett improperly made comments that were not germane to evidence presented during the trial.

Dilworth said the written statements Filler and his wife provided to police about the Ellsworth incident were “critical” to the defense. It is a prosecutor’s professional responsibility to provide any possibly exculpatory evidence to a defendant’s attorney, he said, and Kellett clearly did not do that.

“This should have been turned over, and it’s not enough to put the [responsibility of disclosure] on the police,” Dilworth told the panel. “Prosecutors have a constitutional requirement to turn over any exculpatory evidence.”

Davis and Lupton each declined after Monday’s proceedings to comment on Filler’s complaint.

Kellett also is accused of making comments about a custody dispute between Filler and his wife during her closing arguments at Filler’s January 2009 trial, even though Justice Kevin Cuddy, the trial judge, had prohibited testimony about that dispute. Kellett had argued for barring such testimony because she felt it would confuse jurors.

Filler was granted a retrial after the state supreme court determined that such evidence about the child custody dispute should have been allowed and that Kellett made prejudicial statements to the jury during her closing arguments.

At his second trial, in Bangor in May 2011, Filler was acquitted of gross sexual assault but was convicted of assaulting his wife, from whom by then he was divorced. He later was sentenced to serve 21 days behind bars for the misdemeanor assault conviction.

Testimony in the complaint is expected to conclude sometime Tuesday.

The three-member panel then will deliberate in private to determine what sort of action to take. Their options include:

• Finding that Kellett did not violate bar rules and dismissing the complaint.

• Dismissing the complaint with a warning to Kellett.

• Publicly reprimanding Kellett.

• Recommending to the Law Court that Kellett be suspended or disbarred.

Tatyana Roberts, Filler’s sister, said during a break in Monday’s proceedings that her family is not happy that Filler has to serve his sentence while his complaint against Kellett is being heard. She said Filler has a bad back and his being in jail likely will make him less comfortable and focused on the hearing.

“He needs to be with his children,” Roberts said. “He doesn’t belong in jail.”

Follow BDN reporter Bill Trotter on Twitter at @billtrotter.