PORTLAND, Maine — A prosecutor from Hancock County admitted Monday morning to a state supreme court justice that she violated rules of the Maine Bar when she prosecuted a former Gouldsboro man on gross sexual assault and misdemeanor assault charges.
Mary Kellett, assistant district attorney for Hancock County, appeared Monday before Justice Ellen Gorman after the Maine Board of Overseers of the Bar recommended late last year that she be suspended. A board grievance panel met in Bangor last fall to consider a misconduct complaint filed against Kellett by Vladek Filler and determined that Kellett had violated seven bar rules in handling Filler’s assault case. The board’s recommendation that Kellett be suspended is the only such recommendation that board staff can recall for a prosecutor in Maine, according to Jacqueline Rogers, executive director of the board.
Gorman was expected on Monday to review arguments in the misconduct complaint and then to determine whether Kellett actually had violated rules that govern the conduct of licensed attorneys in Maine. Instead, the assistant attorneys general representing Kellett and J. Scott Davis, counsel for the bar, each told Gorman they had reached an accord by which Kellett would admit to violating bar rules and accept a suspension of her law license.
During the board hearing last fall, Kellett denied that she violated any bar rules. On Monday, however, Kellett acknowledged that she made inappropriate statements during her closing arguments at Filler’s first trial, in January 2009, and that she suppressed and failed to disclose evidence that Filler sought for his legal defense leading up to that trial. Kellett said the violations were mistakes and were not intended to deprive Filler of a fair trial.
“I want to acknowledge that I made errors in the prosecution of the Filler case,” Kellett told the judge in brief remarks. “I regret the harm that my errors caused.”
Filler was accused of physically assaulting his then-wife in December 2005, of raping her in April 2007, and then of assaulting her again a few days later, all at the Gouldsboro home they shared at the time. He was convicted at his first trial, in January 2009, of raping and assaulting his wife. After a retrial was ordered, he was acquitted in May 2011 of gross sexual assault and of one misdemeanor assault but was convicted of the second misdemeanor assault charge.
Filler’s second trial was prosecuted by Paul Cavanaugh, another prosecutor who works for Carletta “Dee” Bassano, district attorney for Hancock and Washington counties. Filler served 21 days in jail for the misdemeanor assault conviction.
Filler consistently has maintained that his now-former wife made up the allegations because their marriage was deteriorating and she was seeking an advantage in an expected custody dispute over their two young sons. Filler, who now lives in suburban Atlanta, won custody of the boys in his subsequent divorce from his wife.
In a Dec. 5, 2012, report in which it recommended that Kellett be suspended, a Board of Overseers grievance panel wrote that it was concerned by two aspects of Kellett’s conduct in prosecuting Filler.
The first was Kellett’s comment during her closing arguments that there was no evidence that the allegations against Filler were part of a custody dispute over their children between Filler and his wife. The defense wanted to introduce such testimony in the January 2009 trial, but Kellett successfully argued before testimony began that any such testimony should not be allowed because it would confuse the jury. Justice Kevin Cuddy, the trial judge, did not allow the testimony to be introduced, but still Kellett brought it up to the jury in her closing arguments.
Following the trial, Cuddy and the Law Court separately determined that Kellett’s comments during her closing were unfairly prejudicial against Filler, the panel indicated.
The panel also was concerned over Kellett’s failure to produce and turn over prior to the January 2009 trial “at least two pieces of exculpatory evidence” to Daniel Pileggi of Ellsworth, who was Filler’s defense attorney at the time. One was a copy of a 911 call about Filler’s wife behaving strangely, which led to police being told of the supposed rape, and the other piece involved statements that Filler and his wife provided to Ellsworth police about an unrelated incident five days after the rape supposedly had occurred.
Pileggi sought both pieces of evidence to use as examples of Filler’s wife’s state of mind before and at the time the rape allegations were reported to police.
After last fall’s grievance hearing, the panel determined that Kellett violated bar rules by:
• Engaging in conduct unworthy of an attorney.
• Engaging in conduct prejudicial to the administration of justice.
• Failing to employ reasonable skill and care.
• Failing to make timely disclosure of the existence of evidence that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.
• Suppressing evidence that she had a legal obligation to produce.
• Assisting the state to violate the Maine Rules of Criminal Procedure and the court’s order.
• Employing means that were inconsistent with truth and seeking to mislead the jury.
After Monday’s short hearing, Kellett and Bassano left the courtroom through an alternate entrance without speaking to reporters. Attempts Monday afternoon to contact them were unsuccessful. Kellett and Bassano consistently have declined to publicly comment on Filler’s misconduct complaint.
Filler told Gorman Monday that he thinks Kellett should be permanently disbarred. He said the charges against him had irreparably harmed him and his two young sons. Kellett’s mishandling of his case, he said, was an “abuse of power” that he described as willful, inexcusable and prolific.
“This is about intentional misconduct,” Filler told Gorman. “I have been fighting [this] for six years. I am pleading with this court for justice.”
Gorman told Filler that Kellett’s violations were a first offense and that she did not intend to disbar the prosecutor. The judge did say that suspension was a significant punishment that would have a lasting effect.
“It is a sanction that would continue to follow Ms. Kellett for the rest of her life,” Gorman said. “It is not a light sanction to impose.”
Gorman also offered Filler an apology on behalf of the state’s criminal justice system.
“You did not receive a fair first trial,” the judge said.
Following the hearing, Filler told reporters in a courthouse hallway that he was disappointed Gorman would not consider disbarring Kellett. He said he did not think his second trial was fair either, though Gorman said it was.
“This was not about punishment [for Kellett],” Filler said. “I have an interest in making sure that other people are not subjected to such destructive [prosecutorial] abuse.”
He declined to indicate whether he accepted Gorman’s apology, saying that accepting it is difficult to do considering how he and his sons were affected by the criminal charges and subsequent trials.
William Fisher, one of two assistant attorneys general who represented Kellett throughout the grievance process, said after Monday’s hearing that in 10 years, Kellett has handled 10,000 criminal cases. That amount is not abnormal, he said, but still amounts to a “very high” volume of cases. There are financial constraints on Maine’s criminal justice system, as there are throughout state government, he said, which has resulted in some Cumberland County prosecutors handling as many as 3,000 or 4,000 a year.
Fisher said one mishandled case should be considered an aberration for Kellett, not the norm.
“Ms. Kellett has suffered and learned from these proceedings,” Fisher said. “I believe she is going to be a better prosecutor.”
As part of Kellett’s admission, Fisher said, prosecutors in Bassano’s office will work with the Office of the Attorney General to establish systems by which they can keep better track of what types of evidence police departments have and do not have in each criminal case that Bassano’s office is prosecuting. The attorney general’s office also is working with Bassano’s office to review proper procedures for preparing for trial and for conducting trials, he said.
Gorman said she would review the agreement between Kellett and the Board of Overseers, which calls for a 30-day suspension, and that she planned to suspend the prosecutor but that the suspension itself would be suspended, meaning that Kellett will be able to continue to practice law unless new misconduct issues arise, at which point the suspension could go into effect.
Gorman said she expected to issue her final decision sometime later this week.