BANGOR, Maine — A judge has ruled in part against prosecutors who had sought to dismiss a lawsuit filed against them and others by a former Gouldsboro man who was tried twice, but ultimately acquitted, on charges that he raped his wife.
In a 78-page decision, Judge John Woodcock ruled last week in U.S. District Court in Bangor that some of Vladek Filler’s accusations against Mary Kellett and Paul Cavanaugh, both former assistant district attorneys for Hancock and Washington counties, should be dismissed. Kellett now works in private practice and Cavanaugh is a prosecutor in Kennebec County.
But Woodcock also said there is merit to some of Filler’s arguments about his rights being violated because he was denied due process and a fair trial. Those claims, he wrote, will be allowed to move forward.
In 2012, after investigating a complaint filed by Filler, the Maine Board of Overseers of the Bar determined Kellett violated seven rules that govern the conduct of licensed attorneys in the state, including suppressing evidence that contradicted claims by Filler’s wife. Bar rules prohibit licensed attorneys from blocking opposing attorneys’ access to evidence or from advising or assisting anyone to do so. More specifically, the same rules also require prosecutors to provide defendants or their attorneys with known evidence that may support the defendant’s case.
Kellett, who was the first prosecutor in Maine ever sanctioned by the board for prosecutorial misconduct, later was ordered to undergo remedial training by Justice Ellen Gorman of the state supreme court.
In his decision, Woodcock wrote that Kellett did not defame Filler when she released an affidavit and Filler’s mug shot to the news media. He added that Kellett’s former role as a prosecutor makes her absolutely immune to some of Filler’s claims — one of which is that presenting evidence against him to a Hancock County grand jury amounted to malicious prosecution — but not to all of them.
However, her advice to police officers to not respond to subpoenas from Filler’s defense attorney seeking evidence violated bar rules, the judge noted, and is not protected through prosecutorial immunity. Had that same advice come from a private attorney instead of a prosecutor, Woodcock wrote, “there would be no plausible claim for immunity on the part of the private lawyer.”
Because Kellett improperly obstructed the discovery process by suppressing the existence of potentially exculpatory evidence from Filler and his attorney, Woodcock wrote, a six-year statute of limitations on Filler’s claims that his rights were violated does not apply to when the suppression occurred in May and December of 2008. The clock started ticking after Filler’s first trial in January 2009, when his and his attorney’s persistence brought the suppression to light, according to the judge.
“The court concludes that Mr. Filler filed this lawsuit within six years of the date of accrual, when he first knew or with due diligence should have known the facts that form the basis of his [lawsuit],” Woodcock wrote.
Woodcock also declined to dismiss Filler’s defamation claims against Cavanaugh, saying that Cavanaugh’s comments about the case during a February 2014 campaign appearance at Pat’s Pizza in Ellsworth, when he was a candidate for district attorney, could be deemed defamatory.
In those comments, which were recorded and posted on YouTube, Cavanaugh said that Filler is associated with groups that believe “Mary Kellett is just another one of those women that have taken away all of the rights for men” and that Kellett had asked for but never received from police evidence sought by Filler.
After Filler agreed to voluntarily drop a claim of negligent infliction of emotional distress against Cavanaugh, the judge dismissed it.
Filler, who now lives in suburban Atlanta, filed the lawsuit in January 2015 against Kellett, Cavanaugh and 16 other people or entities that were involved in his criminal investigation and prosecution on rape and assault charges. Among the others being sued by Filler are several current or former law enforcement officers, two former Hancock County district attorneys and the governmental entities they served.
In April 2007, Filler’s then-wife accused him of raping and assaulting her at their Gouldsboro home. He steadfastly denied the charges, arguing that his wife fabricated her accusations in order to gain leverage in a looming custody dispute over the couple’s two sons. Filler later was granted full custody of the boys in his subsequent divorce from his wife.
Filler was charged with five counts of gross sexual assault and two counts of simple assault. He went to trial twice, once in January 2009 and again in May 2011. He was acquitted at the earlier trial of four counts of gross sexual assault but was convicted on one count of gross sexual assault and two counts of misdemeanor assault. The conviction later was thrown out after the trial judge and then the state supreme court determined that Kellett made inappropriate statements in her closing arguments to the jury.
At his second trial, which was prosecuted by Cavanaugh instead of Kellett, Filler was acquitted of raping his wife but was convicted on one count of misdemeanor assault. Last year, that assault conviction was vacated by the judge who presided over Filler’s second trial, wiping clean Filler’s criminal record.
In his order, Woodcock refers to two pieces of evidence described in Filler’s civil complaint that appear to support Filler’s claims that his ex-wife fabricated accusations against him to try to win leverage in the looming custody dispute.
According to the documents, on April 24, 2007, two days before Filler’s arrest, his wife tried to get her 17-year-old daughter from a prior relationship to report to the Washington County Sheriff’s Department that Filler had molested her. Filler’s wife and her daughter were staying with Linda Gleason, a Steuben resident and friend of Filler’s wife, at the time.
“The daughter refused to do so and instead called 911 to inform the dispatcher that her mother was ‘crazy,’ that her brother had chosen to live with his father [in Gouldsboro], and that her mother was going to use criminal charges to try and get Mr. Filler convicted ‘of anything’ so that her brother would have no choice but to live with her,” Woodcock wrote, paraphrasing Filler’s complaint.
Later, despite multiple requests from Filler’s first attorney, Daniel Pileggi of Ellsworth, to obtain exact copies of all the Washington County Sheriff’s Department video and audio recordings of its phone and in-person interactions that day with Filler’s wife and her daughter, Kellett and the sheriff’s department provided Pileggi with only a partial copy of one audio recording of an in-person interview.
Filler eventually obtained a complete copy of his stepdaughter’s 911 call to Washington County directly from the sheriff’s department in May 2009, after his first trial had concluded.
Court documents, including Woodcock’s order, also describe a video-recorded police interview of Filler’s wife during which Gleason, who also is named as a defendant in Filler’s lawsuit, was allowed to sit with her.
During a break, the officer conducting the interview left the room while the video recorder was still recording. With the officer out of the room, Filler’s wife told Gleason that accusing Filler of sexual abuse was her way of “fighting for the children,” court documents indicate.
“Gleason advised her to cry, stating that ‘it wouldn’t seem real’ unless [Filler’s wife] cried during the interview,” Woodcock’s order indicates. “[Filler’s wife] told Gleason that she did not feel like crying, but Gleason repeatedly urged her to cry.”
When the officer returned, Filler’s wife “began crying hysterically,” according to court documents.
Kellett never turned this portion of the interview video over to Pileggi despite his request for copies of the entire recording, according to Woodcock. Pileggi eventually received an unedited version of the entire recording months later directly from Gouldsboro police.
Attorneys representing Filler — David Weyrens, Thomas Hallett and Timothy Zerillo, all of Portland — posted a comment about Woodcock’s decision on their website.
“Congratulations to our client,” they wrote. “This is a major victory in his long odyssey to seek justice.”
Voicemail and email messages left Friday afternoon for Kellett’s and Cavanaugh’s attorneys were not returned.
Kellett and Cavanaugh have until Feb. 16 to file an answer to Filler’s amended complaint, which was filed Feb. 4, 2015.
Filler is seeking unspecified compensatory and punitive damages against the defendants and is demanding a jury trial. A date for the trial has not been set.