Tuesday, December 11, 2012

Misconduct Suspension Recommended for ADA Mary Kellett

I posted before about Maine ADA Mary Kellett's Prosecutorial Misconduct Hearing. The allegations stem from a 2009 trial of Vladek Filler. Kellett prosecuted Filler for gross sexual assault and domestic violence assault against his wife. He was acquitted of the sexual assault but convicted of the lesser charge and sentenced to 21 days in jail. Filler maintained that his wife fabricated the allegations to gain advantage in a child custody dispute. In October, the board heard the misconduct petition and on 12/10/12, the pannel announced that it is recommending Suspension
As reported by MPBN:
Following a two-day disciplinary hearing in October, a panel of three attorneys found that Kellett violated Maine Bar Rules by failing to make timely disclosure of the existence of evidence, suppressing evidence, trying to mislead a jury, failing to employ resonable skill and care, engaging in conduct prejudicial to the administration of justice and engaging in conduct unworthy of an attorney.
What's that you say? "Suspension for prosecutorial misconduct? You must be joking." Well, I'm as surprised as you. These bar complaint cases almost never go anywhere and the ones that have some teeth usually end in a "reprimand." No one can ever remember a prosecutor actually recommended for suspension.

Maine District Attorney Reacts to Kellett's Suspension Recommendation

Penobscot County District Attorney Chris Almy commented to MPBN. He is not Kellett's boss, she works out of the neighboring Hancock County office. You might expect  Almy to be shocked by this rare ruling and thinking hard about the ways his office can ensure that every lawyer avoids treading close to the line. Here is what he had to say:
"Well, I think that from the perspective of a prosecutor, I'm sure that this is pretty devastating to, not just to Mary Kellett and the DA's Office in Hancock County, but to all of us, because our job is a difficult one and we make a lot of split-second decisions. So when you have people reviewing our conduct that have less than a large familiarity with what we do, it puts us at a disadvantage - and I say that in all due respect to the finders here, to the people who made a decision."

The take away from the quote seems pretty clear. In DA Almy's view, the suspension recommendation is not a catalyst for reform, it's an aberrant result that needs to be explained away. The board is not qualified to review prosecutors because they aren't prosecutors so they don't understand the work and the pressure and the dynamic nature of a criminal trial. Since they lack that understanding, the decision lacks validity; it's not a legitimate critique of prosecutorial practice, it's a mistake.

First off, this is bogus. Prosecutors are held to the same ethical standards as defense attorneys or tax lawyers. The fact that the pannel may or may not have experience in a practice area, does not have much to do with their fitness to evaluate the practitioner. More importantly, the comment condones conduct that an independent board has found unethical. If we take a closer look, the argument really is: "They can't critique us because they don't do what we do, and anyone who does what we do, should approve of what Kellett did."

Maybe I am reading too much into Almy's comments, I hope I am. I know a lot of great prosecutors who would cringe to hear his explanation and who are saddened by the case and would never have done what Kellett did. But the board has done nothing yet. The case is referred to a Superior Court Justice who will make a decision on what to do with Kellett. That judge will most certainly be familiar with the criminal process and may have been a prosecutor themselves. Maybe that judge will vindicate the DA's view and impose no suspension, but I wonder how Almy will respond if the judge follows the recommendation.