February 19, 2013

Judge: Prosecutors can't be called as witnesses in Zumba trial

By Scott Dolan sdolan@pressherald.com
Staff Writer

ALFRED — The attorney for Mark Strong Sr., one of two key defendants in the high-profile Kennebunk prostitution case, will not be allowed to call prosecutors as defense witnesses in his upcoming trial.

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Defendant Mark Strong Sr., right, talks with his attorney Daniel Lilley after a hearing Tuesday morning in York County Superior Court.

Shawn Patrick Ouellette / Staff Photographer

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Justice Nancy Mills presides over the Zumba case in York County Superior Court Tuesday: “If we can succeed in seating a jury, the trial can start tomorrow.”

Shawn Patrick Ouellette / Staff Photographer

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The judge presiding over the case, Justice Nancy Mills, announced the decision at a hearing Tuesday morning in York County Superior Court and ordered the pool of potential jurors to report for duty Wednesday to resume jury selection after nearly a month's delay.

"If we can succeed in seating a jury, the trial can start tomorrow," Mills said.

Mills said she would not allow Strong's attorney, Daniel Lilley, to call either of the two prosecutors in the case as defense witnesses at the trial, as he had indicated in an email to the York County District Attorney's Office. He had said in the email that he wanted "to explore the issue of selective prosecution – bias and prejudice."

Lilley has argued in the past that the lead investigator in the prostitution case, Kennebunk police Officer Audra Presby, targeted Strong, a private investigator, in retribution for Strong's work looking into possible unprofessional behavior of Kennebunk officers.

"The prosecution appears very close to the investigation," Lilley said in court Tuesday, indicating that if he called any prosecutor as a witness, it would likely be Deputy District Attorney Justina McGettigan.

McGettigan argued that a prosecutor should only be called if his or her testimony could include "relevant material and unattainable from other sources."

"It should not be used as a tactic. We would suggest that Mr. Lilley is using this as a tactic," McGettigan said.

McGettigan argued that Lilley was seeking to add to the jury's confusion by having a prosecutor appear in two roles in the trial.

Mills said the question needed to be resolved before the trial began.

"I'm going to make a ruling: Deputy District Attorney McGettigan and Assistant District Attorney (Patrick) Gordon will not be called as witnesses," Mills said.

Mills also said that a gag order against prosecutors and Strong's attorneys would remain in effect until the jury is seated. She made that order in denying a motion by Lilley to lift the gag order.

Strong's trial has been on hold since jury selection was halted on Jan. 25, pending an appeal by prosecutors hoping to reverse Mills' decision to dismiss 46 of the 59 counts against Strong.

The Maine Supreme Judicial Court on Friday upheld Mills' decision to dismiss the counts, all related to violation of privacy.

Strong, 57, of Thomaston, is accused of conspiring with Alexis Wright to run a one-woman prostitution business from her Zumba studio in Kennebunk. While privacy charges have been dropped, it's possible that prosecutors will try to bolster their prostitution case by introducing evidence related to accusations that Strong helped Wright make video recordings of her encounters with customers.

Wright, 30, of Wells, has pleaded not guilty to charges of violation of privacy, promotion of prostitution, engaging in prostitution, conspiracy, tax offenses and receiving welfare benefits when ineligible. Her trial on 106 counts against her is scheduled for May.

The Supreme Judicial Court's decision to uphold the dismissal of the 46 counts against Strong for allegedly recording Wright's sexual encounters with customers, also affects the case against Wright. She faces the same 46 counts.

The high court's decision Friday was the second time it has intervened in Strong's case since jury selection began on Jan. 22.

During the first three days of jury selection, Mills conducted individual questioning of potential jurors for the trial, with attorneys present, behind closed doors.

The Portland Press Herald appealed her decision not to hold jury selection in public, and the Supreme Judicial Court sided with the newspaper in a 6-1 decision ordering the remainder of jury selection to be conducted in public.

Mills addressed four issues at Tuesday's hearing: The question of whether Lilley could call prosecutors to testify as defense witnesses, Lilley's motion to lift the gag order and two questions on whether Mills' connection to family members in the legal profession could impact her impartiality as the judge in Strong's or Wright's trials.

Mills' sister-in-law is state Attorney General Janet Mills and her husband's law firm, Wright and Mills, once represented Presby in a protection from abuse order hearing. None of the defense attorneys or prosecutors objected to Justice Mills continuing as judge in either case.

Staff Writer Scott Dolan can be contacted at: 791-6304 or at

sdolan@mainetoday.com

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Additional Photos

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York County Deputy District Attorney Justina McGettigan prepares to leave York County Superior Court after a hearing Tuesday. Justice Nancy Mills rejected a request by defense lawyers to call McGettigan to testify as a witness for the defense during the trial of Mark Strong Sr.

Shawn Patrick Ouellette / Staff Photographer

  


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