From what I can see, Paul Elam's A Voice for Men has amassed overwhelming evidence of prosecutorial bias against a man named Vladek Filler, who was tried in Maine and found guilty by a jury of one count of gross sexual assault and two counts of assault. After the verdict, the trial court granted Mr. Filler's motion for a new trial due to the exclusion by the trial court of certain potentially crucial evidence that would have shown a motive for his ex-wife to fabricate the claims against him, and because of improper remarks of the prosecutor in her closing argument.
Paul is featuring the case on a very special edition of A Voice for Men Radio tonight, and I know that our readers will be glued to it. Paul has amassed much information that is beyond the reported judicial decision of the Filler case, so I thought it would be appropriate for us to confine our focus to the actual decision of the Supreme Judicial Court of Maine to explain why the Court concluded that the prosecution unfairly prejudiced Mr. Filler.
First, it is well to note the prosecution's theory of the case, as reported in the Bangor Daily News immediately after the jury verdict that found Mr. Filler guilty: "According to investigators, Filler’s wife alleged that her husband forced her to have sex against her will when he became angry. . . . . Filler’s control of his wife manifested itself in his temper and in sexual assaults, according to Kellett. . . .. 'I’m very pleased with the outcome,' Kellett said. 'It is an appropriate outcome.' . . . . Filler’s control of his wife manifested itself in his temper and in sexual assaults, according to Kellett. 'It was sexual punishment, so it was very hard for her to talk about,” the prosecutor said. 'It was punitive and angry.'" See here.
After that article was written, the trial court had misgivings about its own handling of the case and granted Mr. Filler a new trial based on the improper exclusion of evidence about the child custody dispute, and due to the improper remarks of the prosecutor in her closing argument that exploited the exclusion of that evidence by suggesting there was no child custody dispute.
On appeal to the Supreme Judicial Court of Maine, the court affirmed the order granting a new trial. That decision is reported at 2010 ME 90, 3 A.3d 365 (2010). The Court wrote:
"The charges [against Vladek Filler] stemmed from allegations that Filler physically and sexually assaulted his wife on several occasions between December 2005 and April 2007. . . . . Filler's defense was premised on the theory, introduced in his opening statement, that his wife fabricated or exaggerated her allegations against him to gain an advantage in an anticipated custody case involving their minor children . . .. Filler was not allowed to question his wife on cross-examination to establish that his wife had initiated a series of legal actions to secure legal custody of the children after she had alleged the incidents of abuse that resulted in Filler's prosecution."
It is well to note that it was the prosecutor who objected to allowing Mr. Filler's lawyer to question the wife regarding the custody dispute. During the trial, the trial court erroneously agreed with the prosecution and excluded the evidence because the judge (wrongly) believed that such evidence would sidetrack the case. (In fact, the trial judge would later see the error of his order excluding the evidence because such evidence would have great probative value in impeaching the wife's credibility.)
Here is where the prosecutorial error comes in. After having improperly prevented Filler from mounting the only defense available to him by keeping evidence of the custody battle out of the case, the prosecution exploited that improper victory to put the final nail in the coffin of Vladek Filler. In her closing argument to the jury, the prosecutor said the following:
"I would ask you where the evidence is to back up his statement that he stated in both his opening and his closing that this is a marriage that was ending, this is a child custody, this was a first step in a child custody fight. Where is one piece of evidence about that? . . . . The suggestion that [Filler's wife] has made this all up just for the purpose of getting ahead in the child custody, where is the evidence of that? . . . . Custody dispute? Where is that?"
Of course the prosecutor knew "where the evidence" was to back up Mr. Vladek's defense that the claims against him were fabricated to gain the upper hand in a custody dispute: she kept it out of the trial, that's where it was. Her suggestion to the jury that there was no child custody dispute is both heinous and unpardonable. Did the jury have any choice but to convict, in light of the fact that Mr. Filler's lawyer promised evidence of a child custody dispute and failed to deliver on it?
According to the Supreme Judicial Court of Maine: "Filler objected to the State's rebuttal and moved for a mistrial. He argued, among other things, that the State had improperly encouraged the jury to use the absence of evidence regarding the marriage ending and a child custody dispute--evidence that had been excluded based on the State's objection--as a reason to reject Filler's defense."
The trial court eventually granted Filler's motion for a new trial on the basis that the prosecutor's rebuttal argument referenced the absence of evidence of a child custody dispute among the parties. The trial court also held that it should not have excluded evidence of the child custody dispute.
In affirming the grant of a new trial, the Supreme Judicial Court of Maine held that the grant of the new trial was correct because "evidence of a complaining witness's motivation bears directly on the issue of credibility. . . .." The court explained: "we have recognized that '[t]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.'" The court cited precedent in another case that "a defendant was entitled to a new trial when the court excluded testimony regarding the alleged victim's prior threats to fabricate claims that the defendant had raped her. . . .. The evidence was erroneously excluded because it 'demonstrated a distinct manifestation of [the alleged victim's] vindictiveness' towards the defendant. . . . . . We concluded that when the victim is the State's primary witness against the defendant, 'evidence tending to impeach [the victim's] credibility ha[s] greatly enhanced probative value.'" Here, "evidence that Filler's wife had taken legal steps to gain custody of the children was relevant because it made a fact of consequence--whether she had a motive to fabricate her allegations of abuse--more probable than not. . . . . [E]vidence of the legal actions taken by Filler's wife would have supported Filler's theory that she had an ulterior motive in making the claims in the first instance. . . . . Filler's wife's credibility was central to the outcome of the case and Filler's defense necessarily rested on his impeachment of her. Thus, the probative value of her motivation for potentially fabricating the allegations of abuse was substantial. . . . .this relevant evidence would have required only a few minutes of trial time to be fully explored."
As for the prosecutorial error, here is what the court wrote: "The prosecutor's rebuttal argument . . . suggested that Filler's theory of the case should be disbelieved because there was no evidence that the marriage was ending or that his wife took any steps related to a child custody dispute: 'I would ask you where the evidence is to back up his statement that he stated in both his opening and his closing that this is a marriage that was ending . . . this was a first step in a child custody fight? Where is one piece of evidence about that?' The prosecutor's reference to 'a first step' refers directly to Filler's wife's report to the police that Filler had victimized her. The absence of even 'one piece of evidence about that' refers to a second step--an actual child custody fight or divorce proceeding. Thus, the State's rebuttal argument asked the jury to reject Filler's defense that his wife had a motive to fabricate her allegations because of the absence of any evidence that she had taken any legal steps to acquire custody of the children.
". . . . the State's rebuttal argument created a high likelihood that Filler was unfairly prejudiced. . . . . The likelihood that the jury might have been persuaded to accept the central premise of Filler's defense--that his wife had a strong motive to fabricate her claims--was greatly diminished by the State's emphasis on the absence of evidence that the marriage was ending and the parties were engaged in a child custody dispute. The court did not err in concluding that the interest of justice requires a new trial."
A prosecutor is the gatekeeper of justice whose job is not merely to convict but to do justice. That's a hefty burden to place on someone whose job performance is too often judged by his or her success in the courtroom. But do justice they must. The prosecutor here did not do justice. A prosecutor should only bring charges, as Prof. Bennett L. Gershman described it, when he or she is convinced to a moral certainty of both the defendant's factual and legal guilt. To bring charges when there is any less certainty, and then to suggest to the jury that the man on trial has no defense precisely because the prosecutor has improperly prevented him from presenting it, scarcely fulfills the prosecutor's duty to do justice. It invites miscarriages and the possible conviction of an innocent defendant.
Prosecutor Mary Kellet's actions in the Filler case were morally grotesque and warrant her discharge. In light of this case, it is questionable whether any man can get a fair trial when she is prosecuting him.
Tune in to Paul's show tonight.