Suspended Suspension for ADA Mary Kellett's Misconduct

ADA Mary Kellett

Last week the Maine Board of Bar Overseers imposed sanctions on assistant district attorney Mary Kellett for Prosecutorial Misconduct. You can read the Judgment of the Board of Bar Overseers here. I have written before about this case, first when Kellett's Misconduct hearing began in October of 2012 and again in December when the grievance panel recommended that Kellett be suspended and referred the case for a Disciplinary Hearing. That hearing was held 7/15/13 and ADA Kellett has now been suspended. But kinda not, since the suspension itself was suspended and will almost certainly never be imposed. Today, she continues to work as a prosecutor in the same office.

What Happened to Cause All This Trouble?

The bar complaint case stems from the 2009 trial of Vladek Filler. He was charged with 5 counts of Gross Sexual Assault and two counts of Assault all against his ex-wife. Filler plead not guilty and claimed that his wife fabricated the allegations to (successfully) gain advantage in child custody proceedings.

Kellett failed to disclose exculpatory evidence relevant to the wife's motive and also hid some of her exculpatory prior statements to police. She did not provide the materials in ordinary discovery or after the court ordered their production. She also prevented police from disclosing the information when defense counsel subpoenaed the materials from them directly. With no tangible evidence to support the defense theory, Kellett successfully convinced the trial judge to prevent the defense from even questioning the wife about her motives. Her objection granted and all evidence excluded, Kellett argued in closing that the defense had failed to prove any motive to fabricate. The jury found Filler guilty of one count of Gross Sexual Assault, which has a 30 year maximum sentence and a lifetime sex offender registration requirement, and two counts of misdemeanor assault.

The trial judge later granted a new trial because of Kellett's improper closing argument. The State appealed and the Supreme Court affirmed, ordering a new trial where Filler was acquitted of all but one count of misdemeanor assault. After the first trial, Filler himself requested police documents and 911 recordings that Kellett had suppressed. The police provided them and, after reviewing the materials, Filler filed a bar complaint against Kellett.

The Bar Grievance Process and Resolution

After a hearing in October 2012, the Grievance commission recommended suspension and referred the case for a disciplinary hearing before a single judge. That hearing was held July 15, 2013 before Justice Ellen Gorman of the Maine Supreme Judicial Court. Originally, she was to hear argument and decide what misconduct happened and what sanction should be imposed.  The hearing was not contested since the parties reached an agreement, which Justice Goman accepted over Filler's strenuous objection:

ADA Kellett admitted to the following violations:

1. Her rebuttal argument in Filler’s first trial unfairly prejudiced the defendant and resulted in the granting of a new trial.
2. To the extent certain statements in her closing argument to the jury might suggest that Filler had any burden of proof, her statements were improper.
3. She violated the discovery obligations of a prosecutor under M.R. Crim. P. 16, Bar Rule 3.7(i)(2) and
4. She violated the court's discovery order.
5. She failed to act with reasonable diligence to provide both automatic and requested discovery in the form of a written statement by the complaining witness, a recording of a 911 call made by the complaining witness, and a recording made at the time of an encounter between the complaining witness and a law enforcement agency.

In aggregate, that amounts to a violation of the following, then applicable rules:

1. 3.1(a) (conduct unworthy of an attorney);
2. 3.2(f)(4) (conduct prejudicial to the administration of justice);
3. 3.6(a) (failure to employ reasonable care and skill and apply best judgment in the performance of professional services);
4. 3.7(e)(1)(i) (failing to employ before the jury such means only as are consistent with the truth); and
5. 3.7(i)(2) (failing to comply with a public prosecutor’s duty to make timely disclosure to the defense of exculpatory evidence).

What's the Penalty For all that?

The penalty turns out to be almost nothing. Here is a summary of the sanction:

• Kellett is ordered suspended for 30 days.
• The suspension is suspended for at least 6 months and not more than 1 year.
• The suspension will not be imposed and will be automatically terminated if she...
• Attends 6 hours of CLE (continuing legal education) concerning opening statements, closing arguments and discovery issues. This is in addition to the 11 hours required each year for all Maine attorneys.
• Luckily, one of the hours must cover prosecutorial ethics.

As a criminal defense attorney I'm a bit conflicted about this outcome. On the one hand, a lot of my job is trying to explain to tribunals that one mistake should not define a person and that an individual should be given a chance to take responsibility and move on with their life.

On the other hand, is there really anything worse that a lawyer can do? Stealing money, charging excessive fees, missing deadlines and getting drunk, have all lead to real suspensions or disbarment, but none of that puts people in prison for fictional crimes. The system is so profoundly undermined if prosecutors abandon basic moral principles and legal requirements to obtain wrongful convictions. After an ADA has admitted to that level of wrongdoing, how many more cases should they prosecute?

Often, I approach the ADA and plead my client's case trying to explain that they made a one time mistake and drove drunk, or lost their temper. Some prosecutors dismiss this argument, and respond that this "one mistake," the one they got caught for, probably represents dozens of similar acts that they got away with. I'll admit that, often, they're right. But, if the old prosecutor's logic holds, how many people are in prison right now because they never discovered the exculpatory evidence that the prosecutor never told them about? The problem is, we'll never know.