Monday, October 22, 2012

Rare Prosecutorial Misconduct Hearing Begins for ADA Mary Kellett

Image of ADA Mary Kellett
ADA Mary Kellett Contests the
Bar Overseer's Misconduct Petition

The Maine Board of Overseers Begins a hearing into Possible Bar Violations by ADA Mary Kellett.

ADA Kellett successfully prosecuted Vladek Filler, accused of domestic violence assault and gross sexual assault against his ex wife. There was evidence that the wife went to police only to gain an advantage in a child custody case. At trial, Kellett objected to the defense attorney's line of questioning on the issue and the judge excluded the testimony.

The prosecutor argued in closing that, while the defense attorney suggested there was some ulterior motive for the allegations, there was no evidence to support that postion. Of course, the lack of evidence might have had something to do with the fact that the prosecution successfully excluded it. Kellett also suggested that while the defendant claimed that he had not committed the crimes, he had failed to present any proof of his innocence. This argument unconstitutionally suggests that the defense bears some burden of proof at trial, which is false since the burden always lies with the Prosecution.

The Board of Overseers petition includes other allegations of misconduct. As the Bangor Daily News reports:

In the 18-page disciplinary petition, filed by Bar Counsel J. Scott Davis in April of this year, Kellett is accused of violating nine rules of the Maine Bar with statements she made during her closing arguments at Filler’s January 2009 trial and by withholding evidence and interfering with subpoenas issued by Filler’s defense attorney for that trial.

The most serious allegations might turn out to be discovery violations: preventing or delaying the release of evidence to the defense. Still, there is always the possibility that, while distasteful, nothing here rises to the level of bar violation. It is pretty easy to file a bar complaint, the vast majority get dismissed before hearing, and even those that go to hearing often result in a finding of no violation.

We might get a decision soon and a lot of defense lawyers and prosecutors will be watching. This is an extremely rare case of a prosecutor facing these allegation and, while I would not wish a Board of Overseers Hearing on anyone, if Kellett crossed the line and it cost someone their freedom, that is pretty bad news, no matter what side of a case you're on.

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