August 17, 2018
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Maine high court weighs bid to remove prosecutors from Marissa Kennedy murder trial

Gabor Degre | BDN
Gabor Degre | BDN
Sharon Carrillo, 33, is escorted to the Waldo County Superior Court in this February file photo. Carrillo and her husband Julio Carrillo, 51, were charged with the murder of Sharon's 10-year-old daughter Marissa Kennedy in Stockton Springs.
By Nick McCrea, BDN Staff

AUGUSTA, Maine — Justices on Maine’s highest court on Tuesday grilled both sides of a heated dispute over whether the lead prosecutors should be ousted from the trial of a mother accused of beating her 10-year-old daughter to death.

The Maine Supreme Judicial Court wanted to know how prosecutors improperly handled out-of-state subpoenas, and whether their misstep damaged the chance of a fair trial for Sharon Carrillo.

The legal spat started in April when attorneys representing Carrillo tried to have the entire attorney general’s office removed from the case after prosecutors sent subpoenas to a New York school for students with learning disabilities and a Walmart where she formerly worked requesting Carrillo’s personal records, including privileged information regarding her mental health.

The out-of-state subpoenas failed to go through proper court channels, and indicated a school official would have to attend a court hearing in Maine if she didn’t send the records. No such hearing date was ever scheduled.

“How can a fictitious established court date be something that is purely a mistake?” Chief Justice Leigh Saufley asked Leanne Robbin, who represented the attorney general’s office at the Tuesday hearing. “That looks like an intentional action.”

Robbin explained that the AG’s office mistakenly overlooked the proper process, even though it’s aware of the rules for how out-of-state subpoenas should be handled.

“Sometimes when there are a lot of balls in the air, balls get dropped,” she said.

Robbin argued that removing the prosecutors who knew the case best would set a “terrible precedent.” She also claimed that the AG’s office had implemented changes to ensure such subpoena missteps didn’t happen again.

Chris MacLean, Carrillo’s lead defense attorney, told justices that Carrillo was “shaken to the core by this violation of her rights.”

But several justices questioned what damage had actually been done and how disqualifying prosecutors would resolve it.

Justice Donald Alexander said both sides have been open about the fact that Carrillo’s mental health likely will become a factor in the case. If it does, the prosecution would get access to any confidential records on Carrillo’s mental state that come into evidence.

“What is it that is lost since it appears everyone understands your client is challenged,” and evidence of that will likely become public, Saufley asked.

MacLean has said his client has “the mentality of a 12-year-old” and might be more inclined to take a plea deal if she feels prosecutors won’t treat her fairly in gathering evidence or at a trial.

Both Carrillo and her husband, Julio Carrillo, face murder charges in connection with the death of Sharon Carrillo’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.

In March, Waldo County Superior Court Justice Robert Murray ordered the state to turn over or destroy any records it received in response to the out-of-state subpoenas. Prosecutors handed the paper records over in a sealed envelope and later submitted affidavits detailing who in the AG’s office saw the records and to what extent.

A month later, Murray decided prosecutors shouldn’t be removed from the case because they’d sufficiently minimized potential damage caused by the “procedural error.”

MacLean appealed that decision to the Maine Supreme Judicial Court. He has backed off his call to have the entire AG’s office removed, but still wants the two lead prosecutors, assistant attorney generals Leane Zainea and Donald Macomber, to be disqualified.

Macomber, who signed off on the subpoenas, admitted to mistakes in court, but said the defense’s actions amount to character assassination. Prosecutors have argued the disqualification effort is a distraction from the real issue — bringing justice to Kennedy’s alleged killers. Members of the attorney general’s office declined to comment after Tuesday’s hearing.

“It is our view that this [appeal] was more to embarrass those individual prosecutors” than to protect the defendant, Robbin told the justices.

On only five previous occasions has the Maine Supreme Judicial Court 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, and the highest-profile case among those instances.

Normally, murder cases don’t reach the state’s highest court until after the trial and verdict.

The Carrillo hearing was expedited, so justices are expected to issue a decision within a few weeks.

The Carrillos likely won’t go to trial until sometime in 2019.

Follow Nick McCrea on Twitter at @nmccrea213.

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