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.


  1. Here's my problem with this post and your previous post on this matter.

    While the guy you quoted does indeed seem to be a possibly corrupt and self-serving jerk, and unable to admit to any wrong doing by anyone in his profession, you seem hardly much better in that to you it seems to be a game.

    If the Judge agrees with the panel, you will go by the "rules of the game" and admit one of your own (by that I mean someone who works in the legal system) was either colossally incompetent or corrupt. Good on you in a way: fair play - that is, if it was a game.

    Unfortunately defendents lives are at stake whenever a prosecution is brought using the power and resources of the state. Even if the case is totally without merit, and totally dismissed quite a few people are bankrupted financially or mentally or both by the effort of defense. In the present case, this probably corrupt @&*@&!! put Mr. Filler on trial twice, for example. In the end he *only* spent 21 days in jail, I suppose you could say and he apparently wasn't raped in there, and he still has custody of his kids, so what's the problem, right?

    Regardless, I'm convinced by what I've been reading online that your state has several problems of which this case is but a small drop in the bucket. One reason that so few prosecutors have faced discipline in your state would seem to be that there is alot of corruption and backscratching going on in the Maine legal system. In short, the game is often rigged, which makes any participation in it without reform ethically problematical. I can only hope this Judge has no conflict of interest or ties to anyone who might so have a conflict of interest in this case.
    Personally, I think she should be disbarred, all her previous convictions checked for signs of impropriety (and I don't mean small technicalities, but there's no way that withholding evidence that was requested is a 'small technicality') and if she is found to have done so, put her ass in jail.


  2. I hear you Clarence. I think we are on the same side of this issue. The freedom of the accused hangs in the balance. I too am afraid that the judge may not follow through with any meaningful sanction. Even if there is some suspension, I know that some in the prosecution community will come up with ways to explain away the outcome.