Mary Kellett claims absolute immunity for prosecutors

The story of Vladek Filler continues (Bangor Daily News, 10/31/16). It is the story of how one man stood up to the combined forces of his local police department and district attorney’s office and won. And won. And won again. With any luck, it will be, in the end, the story of how one man’s dogged determination to prove his innocence and a prosecutor’s guilt not only resulted in his compensation for the many harms inflicted on him, but made new law to prevent other prosecutors from doing what Mary Kellett so flagrantly and wrongfully did.

All the way back in 2008, Filler’s wife decided to use local law enforcement agencies to help her gain child custody from him. She did that due to her well-founded belief that her own behavior had been so questionable, so abusive and arguably so unhinged, that she might lose custody of their children to him. So she cried ‘rape’ to the police and, despite plentiful evidence of Filler’s innocence and his wife’s mendacity, ADA Mary Kellett plunged ahead with charges and a trial.

She did so in part because she had a long record of taking to trial any and all allegations of sexual assault regardless of how true or false. She was able to take Filler’s case to court because she was willing to hide exculpating evidence from the defense and even alter videotapes that, in their unaltered form, strongly suggested that his wife was lying and had been coached to do so.

Due to Kellett’s flagrant wrongdoing, Filler was at first convicted of assault, but that conviction was overturned on appeal because of Kellett’s unethical behavior during trial. His sexual assault charge was dismissed, but he was once again convicted of misdemeanor assault for allegedly splashing his ex with water. That too was overturned and he now has a clean record.

At that point, most people would have breathed a huge sigh of relief and moved on with their lives, content to have avoided prison. Not Vladek Filler. He wasn’t finished, not by a long shot. Exonerated, he turned on Kellett and the police department that had so obviously violated the rules of criminal procedure and the ethical precepts under which prosecutors are supposed to act.

Filler filed a complaint with the Maine State Bar asking it to punish Kellett for her many violations of the state’s canon of ethics for prosecutors. He won there too. Thanks to him, Mary Kellett achieved the dubious distinction of becoming the only prosecutor in the history of the state to be sanctioned by the Bar. Kellett, up till then a career prosecutor, resigned to enter private practice.

But Filler still wasn’t done. He filed a suit in federal court alleging, under U.S. Code Title 28, section 1983, that Kellett, the police and others had violated his civil rights. Earlier this year, he won round one of that suit when Federal Judge John Woodcock ruled against the defendants’ Motion to Dismiss, effectively allowing the suit to go forward.

Kellett appealed that decision, and her appeal is still pending. In the meantime, the American Civil Liberties Union and the Maine Association of Criminal Defense Lawyers have supported Filler by jointly filing a brief amicus curiae opposing Kellett’s appeal (ACLU, 10/18/16).

And well they might. After all, Kellett is asserting the broadest possible claim of immunity from civil liability. She is claiming absolute immunity, i.e. the ability by any prosecutor anywhere to violate any law, rule or ethical requirement without fear of being required to answer in civil damages to their victims. It is a claim that finds no support anywhere in American jurisprudence.

Generally speaking, government actors are considered to be immune from civil liability for their actions as long as they didn’t know or, in the exercise of reasonable care, couldn’t have known, that what they did was illegal. Needless to say, Mary Kellett’s actions fall far, far outside the ambit of that immunity law. Here’s the way the ACLU describes what she did in Filler’s case.

In 2009, Kellett, then an Assistant District Attorney in Hancock County, prosecuted Filler for assault against his then-wife, Ligia Arguetta. At the time, a police officer interviewed Arguetta about her claims in a videotaped interview; at one point, the officer left the room and Arguetta was captured on tape admitting to a friend that she made up the claims in order to win custody of the couple’s children. Kellett submitted the video as evidence against Filler; however, she first authorized the editing of the tape to remove Arguetta’s admission.

Additionally, on three separate occassions, Kellett advised police officers not to comply with subpoenas from Filler’s attorneys seeking police records of interviews and interactions with Arguetta as well as 911 calls from Arguetta.

Keep in mind that prosecutors, as representatives of the state, are required, not merely to zealously represent their client, but to ensure that justice is done. That is, they may not pursue convictions of criminal defendants at any cost. They must analyze every case and refuse to prosecute defendants they deem reasonably likely to be innocent. Plus, if they do seek a conviction, they’re required to turn over all evidence in their possession to the defendant, whether exculpatory or not.

Kellett of course violated all those rules that supposedly govern prosecutorial behavior. But now she’s going far beyond merely violating the law. She’s claiming the right to do so free of any consequence. She’s claiming that intentionally altering a videotape showing a complaining witness admitting to lying and acceding to coaching should go unpunished. That’s a claim of sovereign power that would have made King John blush.

Unquestionably, Mary Kellett will lose her appeal. My guess is that she doesn’t expect to win it. I believe that her sole purpose in filing the appeal was to waste time.

But whatever the case, by now I suspect she’s come to understand that the man she chose to target for her illegal and unethical behavior isn’t just some schmo she can push around. The man’s got some hefty push-back in him, and we should all be glad. We should be glad because Vladek Filler isn’t just his own best champion, he’s ours as well. Mary Kellett seeks to establish as a rule of law that any prosecutor anywhere can abuse the defendants she charges, violate the law and rules of ethics and get away with it. Should she prevail, we’d all be victims. In that case, we’ll all face the possibility of, somewhere, sometime having to defend ourselves against state power that literally knows no bounds.

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