J. Scott Davis takes a dive for Kellett

The case of Vladek Filler comes before the bar with all sides trying to sink it.

As many of you who have been following the case of Vladek Filler are aware, he was released from jail recently, three days short of having to complete a 21 day sentence for assault. Filler was convicted for assaulting his former wife, Ligia Filler, in a case that had received a great deal of public attention due to the unusual conduct of the prosecutor in the case, Ellsworth, Maine Assistant District Attorney Mary Kellett.

After one conviction against Filler for sexual assault was overturned due to prosecutorial misconduct on the part of Kellett, Filler filed a bar complaint against her for a number of irregularities in her actions, including, but not nearly limited to, making misleading statements to the jury, withholding exculpatory evidence and instructing police officials to not comply with subpoenas issued by the court.

Bar Counsel J. Scott Davis conducted an investigation on Fillers complaint, found there was probable cause to conduct a disciplinary hearing which could result in Kellett’s disbarment and referred the case to the Maine Bar of Overseers of the Bar with that recommendation. A hearing was conducted, but not concluded, on October 22 & 23. Both hearing days ran over the time allotment and the three member bar panel opted to give each side in the case 21 days to submit final arguments in writing.

On the surface it would seem that the wheels of justice are finally turning on this case, but an examination of the conduct of Bar Counsel Davis, information from witnesses to the hearing, and, importantly the first public examination of Vladek Filler’s original bar complaint, portray something different. What you are about to read is markedly different than what has been presented by the local media in Maine, and paints a chilling picture of conspiracy and corruption permeating the local legal establishment.

It adds yet another bizarre chapter in Vladek Filler’s saga with the Ellsworth District Attorney’s Office, which includes prosecution on frivolous charges, prosecutorial misconduct, efforts by that office to gag AVFM and other publications from reporting on the case, ADA Paul Cavenaugh harassing Vladek Fillers medical providers – undermining his medical care, Filler’s strategic incarceration to coincide with the bar hearing against Kellett, a State Deputy Attorney General sent to Kellett’s defense, and Judge Robert E. Murray calculatedly refusing to rule on Filler’s request to recognize new counsel, ensuring Filler would be jailed with no representation while the hearing was conducted.

From the time of Vladek Filler’s first arrest to the writing of this article, this story has more smoking guns than a Quentin Tarantino movie. And it appears that the upcoming ruling by the bar panel is just as scripted as anything you would see from Hollywood.

This particular episode has a flashpoint; two minutes of what was essentially a very tense standoff between Filler and all else involved in the last moments of the hearing. The Ellsworth American, who had a reporter at the hearing, reported it this way:

 

The panel allowed Filler, who testified on Monday, to take the stand again Tuesday at the close of the hearing. This was done at the objection of Lupton [Kellett’s attorney], who said Filler should make any arguments through the bar counsel. Both panel Chairman M. Ray Bradford and Lupton chastised Filler for straying off topic and not answering directly during his earlier testimony. Bradford allowed him two minutes. He didn’t get the full time; Bradford had to rein him in again, bringing the hearing to an uneasy close.

If you believe the Ellsworth American’s account of events at the hearing, or most any other local media source, we have an impulsive, uncontrolled Vladek Filler, contemptuously disregarding instructions of the Panel and unable or unwilling to directly answer questions.

However, a closer examination of the conduct of Bar Counsel J. Scott Davis paint a different picture of those short two minutes; that of a Vladek Filler quickly and assertively taking action because Davis, the man who was representing his case against Kellett, was taking a dive.

Bradford had to rein Filler in, for sure, but not because he was out of control. He had to rein him in because Filler was using his two minutes to get every issue Davis failed to raise at the hearing on the record. The effort to prevent Filler from getting this information on the record appears to be as much or more the actions of Davis as it does Bradford.

Comparing the original Bar complaint to what Davis later chose to charge Kellett with in his Petition shows how grossly watered down the charges ended up being.  This Petition was filed by Davis after Filler spent some 8 hours on the phone with him outlining the case and providing Davis with precise transcripts, documents, and numerous audio recordings showing the full extent of Kellett’s misconduct.

Kellett’s misconduct that was documented in Filler’s complaint, but Bar Counsel Davis did not pursue:

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• Withholding exculpatory videotaped interview for over one year in order to bring fraudulent indictment for sexual assault which was not provable.;

• Covered up exculpatory evidence and gained numerous discovery rulings blocking defense from vital facts and evidence. If the video tape had been provided prior to all those hearings, it would have allowed the defense to obtain very different rulings;

• Kellett and her assistant, Detective Stephen McFarland, submitted into discovery Ligia Filler’s select and mistranslated e-mails, after having Ligia Filler select only the ones that weren’t harmful to the case;

• Submitted some 80 pages of falsified pornography print outs that did not come from the family’s computer, after the crime lab found no pornography and the computer investigator concluded Filler’s computer was clean. The trial judge eventually threw out the fabricated evidence, but took no action on Kellett;

• Kellett’s assistant, on videotape, refused to allow Ligia Filler to give him her medical records release because they didn’t want to provide them to defense;

• Kellett, on the record, lied to one Superior Court judge and asserted a privilege over Ligia Filler’s private records (illegal and against Ligia Filler’s wishes on video tape) in order to block those vital medical, examination, and psychiatric records from being released to defense;

• Kellett, on the record, lied to the trial judge stating she desperately tried to get these “extraordinarily important” medical records released to defense and even considered filing separate requests with the court for Ligia Filler’s records, but the court denied them to her and to defense. She had in reality asked the court not to release them;

• Kellett told John Lorenz, Ph.D., the children’s Guardian Ad Litem, that she had a journal written by Ligia Filler describing sexual abuse by Vladek Filler and lobbied the GAL to accept that women don’t lie about rape and to allow Ligia Filler (a documented child abuser) to gain custody of the children.  This journal story troubled the GAL so much that he contacted Filler and his attorney Dan Pileggi. Pileggi met with Kellett’s own investigator, Det. Stephen McFarland, who then informed him that the journal didn’t exist.

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This is not a complete summary of Kellett’s misconduct, but a sample. The details of these and other incidents of Kellett’s corrupt actions are outlined and documented in Filler’s original complaint to the Bar, available for download at the bottom of this page. Davis chose to pursue only those elements of the case most conducive to a favorable outcome for Kellett.

Bar Counsel Davis also engaged in some very questionable conduct in his gathering of testimony from witnesses on the matters he did choose to pursue.

Regarding the charge that Mary Kellett did not comply with requests and a Discovery Court Order for Ligia Filler’s important April 11, 2007 written witness statement to Ellsworth Police, Ligia Filler’s 911 recordings of April 22 and 24, 2007, Ligia Filler’s psychotic incident of April 24, 2007 video taped by the Washington County Sheriff’s Deputy, and discovery records from Gouldsboro Police:

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• Bar Counsel did not call any police officers who were involved to testify.  Those who appeared to testify for Kellett were not properly questioned about the evidence they had in their possession, such as withheld video recordings which were ordered for production;

• Bar Counsel allowed a full day of Kellett’s witnesses to claim there were technical problems with production of video/audio recordings, when in fact the police officers admitted these recordings were made, did exist, were under Kellett’s control or available to her, but were not provided to defense by Kellett as court ordered;

• Bar Counsel allowed Kellett and her witnesses to claim, without objection, that there were not specific requests for Ligia Filler’s written statements to the Ellworth Police Department. These statements were vital proof of Ligia Filler’s lying about being abused by Vladek Filler. They were explicitly requested in writing from Kellett, were Motioned for by defense, and were court ordered. However, Bar Counsel failed to point out to the Panel that statements by Kellett and her witnesses were inaccurate;

• When Filler used part of his two minutes to begin reading the explicit request by Pileggi for these records (which were later Ordered for production), both AGG Lupton and Bar Counsel Davis began yelling at Filler to stop and not to read the discovery request (Filler ignored them and read it in to the record);

• Bar Counsel did not present Vladek Filler’s audio recordings of phone conversations with two police officers from two different departments who were prevented by Kellett from releasing discovery records and recordings;

• While being yelled at Filler, in the two minutes of allowed testimony, quickly detailed how vital those recordings are, how he was told by one officer at a hearing that the records that were promised were ordered by Kellett from production, and how it is vital for the Panel Members to listen to those phone recordings which Bar Counsel did not play for the Panel.  They agreed to listen to them after the disciplinary hearing;

• Bar Counsel played a small portion of 911 calls by Ligia Filler (and her daughter) which was requested and ordered but not provided by Kellett.  The recording he played is of disturbed sounding Ligia Filler crying and asking the 911 operator to help her find an unknown cat.  What the Bar Counsel didn’t play was Ligia Filler’s numerous other 911 calls in that series with her making allegations and urging police to take custody of the couples 10 year old son from Vladek Filler;

• The recordings also contained Ligia Filler’s daughter Natasha calling 911 about her mother being “crazy” and on her way to her step father’s house after not sleeping for days, and of her mother “waiting” to get Vladek Filler criminally charged and convicted in order to force her brother into her custody. This series of recordings were not provided by Kellett in violation of discovery requests and a court order. But the Bar Counsel only played the missing cat part of the 911 recording for the Panel to suggest that’s all the recordings contained;

• Bar Counsel allowed Kellett to testify, without challenge, that she never told a Gouldsboro Police officer to withhold evidence from Vladek Filler and not comply with his subpoena.

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Filler pointed out that this contradicted what Kellett told the Bar Counsel in her written reply to the Bar Complaint. Members of the The Panel evidenced some concern at this. One member asked “Where is Vladek Filler’s original complaint?”  It turned out that Bar Counsel Davis had not provided The Panel a copy of the original complaint or the rebuttal material and exhibits.  Filler insisted on and got into evidence all of his complaint filings and Kellett’s replies.  The Bar Counsel, however, persuaded the Panel not to view Filler’s numerous document exhibits which were attached to the complaints.

Filler is currently petitioning the Panel to allow him to directly submit his own closing argument in writing in this case, as opposed to going through Davis, but so far has not received a reply.

The Bar Panel has four basic options available in order to dispose of this case. One, they can find that Kellett did not violate bar rules and dismiss the complaint. They can dismiss the complaint with a warning to Kellett. They can publicly reprimand Kellett. Or, finally, they can recommend to the Law Court that Kellett be suspended or disbarred.

If they recommend to the Law Court that Kellett be suspended or disbarred, then the case goes to the Supreme Court for a full trial outside the probable sphere of influence of the Ellsworth Prosecutor’s Office. If that happens, justice has a shot.

We are estimating here in advance that this is not likely. With Bar Counsel J. Scott Davis virtually working as co-counsel for the defense with Lupton, and the facts of this case having such a hard time making it into the view of the Bar Panel, the fix appears as though it is comfortably in.

What we have here is a dog and pony show designed to show the world that the State of Maine actually does self-police of its state functionaries, without, of course, doing any real self-policing. It’s a stage production designed to counter the well-deserved scrutiny that the actions of prosecutors like Kellett have engendered from a public that is starting to wake up to the fact that something is rotten in that state and it’s not the lobster rolls.

They will more likely than not slap Kellett on the wrist and close the curtain on the matter so she can get back to terrorizing the citizens of Ellsworth for the VAWA funds without interruption.

The only hope that this matter will be forced into the hands of real justice came from Vladek Filler, who, while incarcerated, bullied, threatened and ridiculed, stood up for two minutes and refused to be silenced while he forced the Panel to accept into evidence what everyone else involved with the case has sought to exclude.

They now have that evidence, and everyone knows it. You have that evidence, too. It is just a click away.

And so now the hope, the spark of life that Vladek Filler bravely kept alive is in our hands. In your hands. And the only thing that will extinguish that small ray of light now is if we choose to fall silent before this unconscionable injustice.

12-28-2010 State Of Maine Board Of Overseers Of The Bar Submitted