May 24, 2019
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Maine high court to hear bid to remove prosecutors from Marissa Kennedy murder trial

Gabor Degre | BDN
Gabor Degre | BDN
In this February 2018 file photo Sharon Carrillo is escorted into the courtroom at the Waldo County Superiour Court. Her lawyers are seeking to have state prosecutors removed from her case.

The Maine Supreme Judicial Court will hear arguments Tuesday in an accused murderer’s bid to have prosecutors kicked off the case for improperly obtaining school records.

Attorneys representing Sharon Carrillo say the state’s actions put their client’s constitutional rights to a fair trial at risk.

Sharon Carrillo and her husband, Julio Carrillo, face murder charges in the beating death of Sharon’s 10-year-old daughter, Marissa Kennedy. Prosecutors say the Carrillos physically abused the child on a daily basis for months before the girl succumbed to her injuries in February at the Stockton Springs condominium where the family was living.

As prosecutors started gathering evidence in preparation for a trial, they sent subpoenas to a New York school for students with learning disabilities that Sharon Carrillo attended, as well as a New York Walmart that previously employed both Carrillos.

The school sent 73 pages of records, including some confidential information, such as mental health and intelligence assessments.

The subpoenas weren’t valid because they were issued out of jurisdiction to agencies in other states, and sought confidential information without needed court approvals. Waldo County Superior Court Justice Robert Murray ordered the state to turn over or destroy any records it received in response to those subpoenas.

Prosecutors also had to file affidavits detailing who saw those records, and how much they saw, to determine if they saw any privileged information that should disqualify them from the cases.

Most of the prosecution team claimed to have only glanced at or “thumbed through” the records without digesting much information. The prosecutors admitted to “procedural errors,” but Carrillo’s attorneys accused them of dishonesty and misconduct that warranted their disqualification from the case.

Murray ruled that no one on the prosecution team should be removed, saying they’d taken necessary steps to minimize the damage by turning over the records and agreeing not to use them unless they became evidence and part of discovery.

Carrillo’s attorneys, Christopher MacLean and Laura Shaw, are appealing, asking Maine’s highest court to remove at least the two lead prosecutors in the case. It’s a highly unusual, if not unique, time for a case like this to reach the Maine Law Court.

On just five previous occasions, the Maine Supreme Judicial Court has weighed appeals of a lower court’s ruling on a motion to disqualify attorneys before trial. This is the first time it’s ever happened in a criminal case, according to the defense team’s brief. Usually, criminal cases don’t go before Supreme Court justices until after a trial and verdict.

“While it is true that the law court could overturn Carrillo’s conviction and grant her a new trial after a guilty verdict, moving forward with trial in view of what has occurred will force Carillo to make strategic decisions she may have not have otherwise made,” Carrillo’s attorneys argue in their brief.

The defense says that the details prosecutors had access to in those documents could affect the coming trial and give them an advantage in countering potential witnesses and evidence.

“Even though the court has ordered that the documents themselves cannot be used by the state, disqualification is necessary to neutralize the taint that has already occurred,” the defense argues.

Prosecutors, in their brief to the court, ask justices to reject the appeal and affirm Murray’s decision. They argue Carrillo’s attorneys have failed to prove that Carrillo will suffer “specific, identifiable harm” or have her constitutional rights violated because prosecutors had access to the school records.

The state also argues that disqualification would be an unnecessary overreach.

“There is no basis under any of the precedent to disqualify either of the prosecutors in the case,” their brief states. “Moreover, Carrillo’s request to disqualify the entire Attorney General’s Office takes her extraordinary argument to absurd heights.”

Follow Nick McCrea on Twitter at @nmccrea213.

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