Hancock County prosecutor defends actions during 2009 trial of man acquitted of rape

Posted Oct. 23, 2012, at 9:32 p.m.
Hancock County Assistant District Attorney Mary Kellett (right) walks to the Penobscot Judicial Center for her prosecutorial misconduct hearing by the Maine Board of Overseers on Tuesday afternoon. She is accused of suppressing evidence that could have helped a former defendant.
Linda Coan O'Kresik
Hancock County Assistant District Attorney Mary Kellett (right) walks to the Penobscot Judicial Center for her prosecutorial misconduct hearing by the Maine Board of Overseers on Tuesday afternoon. She is accused of suppressing evidence that could have helped a former defendant.

BANGOR, Maine — During the lengthy second day of a misconduct hearing, a Hancock County prosecutor spent more than three hours defending her actions in the 2009 trial of a man who later was acquitted of raping his wife.

Assistant District Attorney Mary Kellett told the Maine Board of Overseers of the Bar, which polices attorney conduct, that she believed she followed rules of professional conduct and appropriately responded to requests for evidence and information from the defense.

Vladek Filler, 43, who used to live in Gouldsboro, claims Kellett broke nine rules of the bar when she prosecuted his case leading up to and during his trial in January 2009.

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 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.

The evidence in question included written statements from the Ellsworth Police Department relating to an incident that occurred five days after the alleged sexual assault by Filler.

In that incident, Filler allegedly 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.

Filler and his attorney argued Monday that the Fillers’ written statements related to that incident would have been important to the trial because they 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.

Kellett said Tuesday that she wasn’t aware the written statements existed and that she was only aware of the police report itself, which was provided.

In a recording of a phone conversation played during Tuesday’s proceedings, Ellsworth police Officer Chad Wilmot, who also testified Tuesday, called Kellett to inform her that Filler’s attorney during the trial, Daniel Pileggi of Ellsworth, had subpoenaed him for documents related to the Ellsworth American incident.

Wilmot said during the conversation that he didn’t understand why Pileggi would be requesting that information, as he believed it was unrelated to the sexual assault case. Pileggi asked Wilmot to deliver the documents before his appearance in court on the subpoena.

Kellett advised Wilmot to not deliver the documents ahead of the subpoena date. She argued that Pileggi should have gone through her office during discovery rather than using a civil subpoena in a criminal matter. She told Wilmot that was “against the rules” and “sleazy.”

Another piece of evidence at issue was a video and audio recording from a Washington County Sheriff’s cruiser of an emotional interview with Filler’s wife.

Kellett said she and other staff at the District Attorney’s Office made repeated attempts to get the the video and audio sooner.

Lt. Travis Willey of the Washington County Sheriff’s Office testified Tuesday that it took several months for the department to provide that evidence because of difficulties with equipment.

Assistant Attorney General Ronald Lupton, who represented Kellett during the hearing before the three-member Board of Overseers, said Kellett was involved in more than 2,200 cases ranging from juvenile cases to felonies in 2007 and 2008 during the height of the Filler investigation.

“In my work world, weeks can go by in the blink of an eye” because of the heavy work load, Kellett told the board when explaining why it took several months for her to get audio evidence from police.

Filler also took issue with some of Kellett’s statements during her closing argument in his trial, which were not germane to evidence presented during the trial, according to Filler and his attorney.

During her closing, according to Filler, Kellett referred to a custody dispute between Filler and his wife, even though Justice Kevin Cuddy, the trial judge, had prohibited testimony about that dispute. Kellett had argued for barring such testimony to avoid confusing jurors.

Kellett also mentioned during her closing argument that the defense had not presented evidence to the jury that Filler and his wife hadn’t had sex on the day of the alleged assault, which Filler’s attorney argued unfairly shifted the burden of proof to the defendant. She said the statement was an attempt to bring up whether or not “compulsion” was involved.

Kellett told the board that she was aware that it was up to the state to prove the charges against Filler, and not up to Filler to provide evidence proving his innocence. She said she tried to clarify that fact with the jury during her closing statement, but that some portions of her closing statement may not have been worded as well as they should have been.

“I believe that I as a prosecutor have the right to disagree with a defendant’s argument,” Kellett said, adding that she believed she was not violating any rules or ethics when bringing up the evidence.

The Board of Overseers said Tuesday that each attorney has until mid-November to submit written arguments in the case.

The panel will deliberate in private to determine what sort of action to take. The board gave no indication how long it would take to come to a decision. Its 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.

At his second trial in May 2011, Filler was acquitted of gross sexual assault but was convicted of assaulting his then-ex-wife. He was sentenced to serve 21 days behind bars for the misdemeanor assault conviction, and began serving that sentence on Wednesday, Oct. 17, in Hancock County Jail.

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