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Judge maintains gag order in Kennebunk Zumba prostitution case until jury is selected

Shawn Patrick Ouellette | Pool/PPH
Shawn Patrick Ouellette | Pool/PPH
Justice Nancy Mills presides over the Zumba case in York County Superior Court on Tuesday, Feb. 19, 2013.
By Seth Koenig, BDN Staff

ALFRED, Maine — Superior Court Justice Nancy Mills on Tuesday reinforced her gag order over attorneys involved in the first of two major trials in the high-profile Kennebunk prostitution case, saying previous comments Defense Attorney Daniel Lilley made to the media were “demeaning” to prosecutors and the legal process alike.

Lilley on Thursday filed a motion asking Mills to lift a request barring the attorneys from talking to reporters during the jury selection phase of the trial, which remains unfinished.

In a hearing Tuesday morning at the York County courthouse, Mills refused to do so. The judge has expressed concerns that the impartiality of 23 remaining potential jurors — whittled down from a group of 140 who first showed up for jury selection on Jan. 22 — could be influenced by opinionated comments about the case made by attorneys to the media.

“I would like that to continue until we get a jury, and I’m hopeful that may be as early as tomorrow,” Mills said of the gag order, adding, “My goal is to be able to pick a fair and impartial jury. I’m satisfied that once a jury is selected, that the attorneys will abide by their code of professional conduct.”

Essentially, the judge said she would not stand in the way of attorneys wishing to speak to reporters once jury selection is complete, but expects in doing so the attorneys will be “professional” in their comments. Mills suggested previous remarks made by Lilley to media representatives — that the Strong trial is a case of “prosecutors on steroids” or prosecutors should “get off their asses” and try the case — were not professional.

“[Those comments] were not helpful to the process, they were demeaning to the state, and I’m not willing to take the chance that additional comments will be made before we select a jury,” Mills said.

Lilley represents Thomaston insurance broker Mark Strong Sr., who is accused of conspiring with fitness instructor Alexis Wright to run a prostitution business out of her Kennebunk Zumba studio. Wright faces a separate trial scheduled to begin in May.

Lilley argued on Tuesday that he and his client have constitutional rights to free speech, and that by providing public updates on the status of the trial, he would not be crossing the legally recognized threshold of providing a “substantial danger” to the court process in place.

“Comments on the evidence after a day at trial, or comments on scheduling, are nowhere near the ‘substantial danger or inhibition to the administration of justice,’” Lilley said. “The public has the right to know the significance of the legal proceedings, and a lawyer needs to address that.”

He also rebutted prosecutors’ arguments that Lilley could “color” the public perspective on the trial in his client’s favor by talking to the press.

“The color of the case turned black months ago when all of the evidence was opened up, and all of the [subsequent] speculation and all of the innuendo and all the of the anonymous phone calls buried my client,” Lilley said.

Mills said she would lift the gag order, but not until jury selection is complete, which may happen Wednesday. Prosecutors argued that reporters have been able to thoroughly cover the case without including direct comments from attorneys taking part.

Deputy District Attorney Justina McGettigan noted that, since the Portland Press Herald and its ownership group MaineToday Media won a Maine Supreme Judicial Court ruling last month to do so, even court interviews with potential jurors must be conducted in public.

McGettigan suggested that since Sarah Churchill, the attorney representing Wright, is not directly involved in the Strong trial and is not covered by the gag order, she has been free to weigh in publicly on the case in favor of Strong.

The deputy district attorney cited a Press Herald story published late Monday night based on letters exchanged between the defense and prosecution — regarding the possibility that prosecutors may be called to testify in the Strong trial — given to the newspaper by Churchill.

“To the extent that the public needs to be informed about this case, they are being informed about this case, by TV or by newspapers,” McGettigan said. “It’s not necessary for Mr. Lilley, or Mr. Strong or the state to talk to the press. … Certainly, Mr. Lilley can speak to Ms. Churchill, and Ms. Churchill can present Mr. Lilley’s case to the press, which she has done in this story.”

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