Mary Kellett: When you don’t have the law on your side, when you don’t have the facts on your side, bang your fist on the defence table as loud as you can.

“The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.” Robert H. Jackson (U.S. Attorney General at the time of the quote (1940-1941), went on to be an Associate Justice of the Supreme Court 1941-1954)

Not so much the defence table, but one likes to stay true to the quote as much as one can.

Mary Kellett was a prosecutor in Hancock, Maine up until late last year. She was not retained after the elections for her office installed a new District Attorney.

Back in 2007, Kellett prosecuted a case against Vladek Filler in which allegations of gross sexual assault and assault were led, which led to a conviction. This case was prosecuted at the same time that Filler and his wife were divorcing.

During the trial, some issues had emerged. Firstly, the prosecution and police had withheld certain documents that the defence were seeking, despite having a right to access those documents. Secondly, Filler had sought at the trial to lead evidence that the allegations had been made to advance his wife’s position in custody proceedings. Kellett had objected to the evidence, on the grounds that it would confuse the jury on what it is that they were prosecuting, and the objection was upheld. Whilst Filler was allowed to make the claim during his own testimony, other evidence on the point was not allowed to be led. This would probably have been all well and good, however during Kellett’s closing, she criticised Filler’s claim, on the grounds that there was no evidence. One wonders why.

Filler appealed, arguing that these, amongst other grounds, had caused it to be an unfair trial, to which the judge agreed and declared a mistrial. Kellett appealed this decision, but it was upheld by the Maine Supreme Judicial Court, who said that evidence of the custody dispute was relevant and should have been able to lead, and that further to this, Kellett’s closing had added to the prejudice against Filler.

At the retrial, Paul Cavanaugh replaced Kellett as the prosecutor. At this trial, Filler was acquitted on the gross sexual assault charge, and one of the assault charges. Filler was found guilty of the remaining misdemeanour assault charge, and sentenced to 21 days in prison. His appeal on this sentence was not upheld.  Despite these proceedings, Filler was granted custody of his sons.

Due to Kellett’s behaviour during the first trials, Filler made a complaint to the Maine Bar Association which was heard in 2012-2013. She originally denied that her conduct amounted to professional misconduct, but after the Board had conducted its investigation and recommended her suspension for breaching the following grounds:

  1. engaging in conduct unworthy of an attorney in violation of M. Bar R. 3.1(a);
  2. engaging in conduct prejudicial to the administration of justice, in violation of M. Bar R. 3.2(f)(4);
  3. failing to employ reasonable skill and care, in violation of M. Bar R. 3.6(a);
  4. failing to make timely disclosure of the existence of evidence that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment in violation of M. Bar R. 3.7(i)(2);
  5. suppressing evidence that the lawyer had a legal obligation to produce in violation of M. Bar R. 3.7(i)(2)
  6. assisting the State of Maine to violate the Maine Rules of Criminal Procedure and the court’s Order in violation of M. Bar R. 3.6(d); and
  7. employing means that were inconsistent with truth and seeking to mislead the jury in violation of M. Bar R. 3.7 (e)(1)(i)

she admitted that they breached the rules. She received a suspended thirty day suspension of her license, subject to undertaking ethics training.

The full text of the decision can be found here.

Had this been all, Kellett’s inclusion here would be inappropriate – it could simply have been an honest mistake as she claimed; as honest a mistake as one can make that results in professional censure.

We now look to a 2011 case involving Keovilaisack Sayasane. He was accused of criminally threatening, terrorizing and assaulting his wife, Michelle Sayasane. There was however a bit of a problem – his wife was going to be giving evidence for the defence.

Two days before the trial, Kellett contacted Michelle with regard to the case, and told her that Keovilaisack had a prior manslaughter conviction, of which she was aware. She had believed the victim to have been another Vietnamese man. Kellett however told her that the victim of this had been his first wife, information which she said had been provided to her by the head of the Attorney General’s Office’s criminal division, Deputy Attorney General William Stokes. Further, according to Michelle, Kellett went on to say that Child Protective Services may have to be involved if Michelle continued to allow her children contact with Keovilaisack.

Michelle would go on to testify against Sayasane, despite her earlier intentions (edit: I had originally used “convictions” but realised in the context it was open to misinterpretation). When questioned by Toothaker (Keovilaisack’s lawyer) about whether the information she had been provided had impacted on her current testimony (at the time, he was still confirming that the information was in fact wrong, having only been made aware of them on the morning of the trial), she said that the information had changed her opinion of her husband. The issue became murkier when Michelle said that Keovilaisack had phoned her the night before the trial and (to quote from the news article):

“She said that Sayasane had encouraged her not to show up to testify at his trial, according to the transcript. If she didn’t, he would take care of her and they could live happily together, she said. If she did testify, Sayasane allegedly told her, his attorney would make her look like a bad mother and their children would be taken from her.”

Which of course on the face of it may be tampering with a witness. Keovilaisack was charged later with tampering with a witness, but I am unable to find any later news stories about a conviction on it. Interestingly, the DA office didn’t seem to believe that Kellett’s actions also constitute tampering with a witness.

Either way, this caused an issue – this information had been provided while the jury was in the room whereas the questioning about the provision of the false information had been done in the absence of the jury. As such (at least from what I’m getting from the piece) for the trial to be fair, the jury would also have to be allowed to hear about the false information issue, which then leads to the issue of prejudice from having to lead evidence about prior convictions, a situation which was only made necessary due to the conduct of Kellett. Kellett then argued that this was irrelevant, as knowing the gender could not impact the current allegations, but oddly enough this argument was not accepted, and the judge declared a mistrial. I am unable to find any articles on a retrial, and as such assume the matter is essentially dropped.

Michelle, in 2013, wrote a post about her experience during this case, and in it she details the reason for her decision to testify in his defence. The post is certainly worth a read. In it, she admits that he was prone to violence and had a drinking problem, however she also contextualises it. Her husband had grown up during the war in Vietnam. Both his parents were killed during the fighting, and while living with his grand mother, would occasionally have to flee and hide from Vietnamese soldiers. When he moved to America, he did not know English. In the manslaughter incident above, he has maintained that he was acting in self-defence. He says he was attacked by a Vietnamese man, and combining that with his history in Vietnam, he reacted in a panicked state. For some reason (I’m not certain about whether translators are required in American courts, and if so when those policies were instituted), he was not provided with a translator, and found himself unable to present his case. He plead guilty, and served 15 years in prison.

Michelle believed that prison would not be useful for her husbands problem; he needed counselling. This isn’t to say her husbands violence was ok, just that it can be better dealt with by being helped than convicted.

Whether or not you agree with Michelle’s conclusion is, to me, irrelevant. What is important is that she made a choice, not based on emotional attachment, not because she was trapped with him, but from a position which objectively can justify her conclusion. She analysed the problem, and made a choice on how best to get a resolution. And because that choice didn’t suit Kellett, she was put under emotional distress both by being lead to believe her husband had killed a former wife, and that her children would be taken away unless she acceded.

Furthermore, the information was wrong. Kellett said the information had come from the Attorney General’s Office, but when asked about the incident, that office said that they had searched and provided the summary of the case they had on file, which very clearly said the victim was a 21 year old man. Michelle had not initially accepted Kellett’s word on the case; a key factor was being told it was not from her, but from a government office.

As mentioned at the beginning, Kellett no longer works in the office after not having been retained in her position after the election. In fact, most of the office is changing. Cavanaugh and another attorney, Bill Entwisle are leaving to go to other District Attorney’s Offices. Mary Kellett is reportedly now in private practice.

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