Justice Nancy Mills listens to Daniel Lilley, attorney for Mark Strong, during a motion hearing at York County Superior Court in Alfred on Thursday.
By Edward D. Murphy
Maine's highest court on Thursday ordered the remaining jury selection in a key defendant's trial in the Kennebunk prostitution case to be conducted in public.
The Portland Press Herald had filed a motion with the Maine Supreme Judicial Court challenging the constitutionality of Justice Nancy Mills' decision to close the proceedings to the public.
In closing the proceedings, known as voir dire, Mills said she feared that prospective jurors would not be candid if they were questioned publicly in York County Superior Court.
On Thursday, the Supreme Court first ordered Mills to stop the secret jury selection process. Then, in a 6-1 decision, it ordered her to open the rest of the process to the public and release transcripts of the closed-door sessions that began Tuesday.
"Although the trial court exercises substantial discretion over the mode and conduct of voir dire, a generalized concern that juror candor might be reduced if voir dire is conducted in public is insufficient ... to bar the public or media from the entirety of the process," wrote Chief Justice Leigh Saufley.
She was joined in the opinion by all of the other justices except Justice Donald Alexander.
A total of 145 prospective jurors were called for the trial of Mark Strong Sr., 57, of Thomaston, who is accused of being a business partner with Alexis Wright in an alleged prostitution operation run out of Wright's Zumba studio in Kennebunk.
The Supreme Court's decision "may change the way jury selection is done" to ensure that the process is transparent, the Press Herald's lawyer said Thursday.
"This is a precedent-setting decision. I'm not sure it's a practice that's ever been challenged before," said Sigmund Schutz.
"Jury selection is an incredibly important part of a criminal trial," he said. "It's a vital First Amendment value that we have public trials in this country."
The Press Herald argued that First Amendment case law shows that jury selection should be open except in the most extreme circumstances, such as national security.
The U.S. Supreme Court has held that "trial courts are required to consider alternatives to closure even when they are not offered by the parties," or by anyone else, on the principle that court proceedings should be open to the public to protect the innocent and maintain confidence in the criminal justice system.
Mills did not respond directly to the ruling in court Thursday. She did say dryly at one point, "Everything I've done in the past few days has been appealed."
Saufley stopped the jury selection Thursday morning, pending further review. Mills addressed the chief justice's stay at the end of a hearing on several motions in the case.
"There are multiple scenarios I can envision on how the trial will proceed," Mills said, while the full court's ruling was still pending. She did not specify what they could be.
It was unclear whether any jurors have been chosen for the trial.
On Tuesday and Wednesday, multiple groups of prospective jurors were brought to a private room for questioning by the judge, prosecutors and defense attorneys, but it's not known publicly who was excused or selected for the trial.
A closed jury selection process "is uncommon, but not unheard of," said E. Jim Burke, a professor at the University of Maine School of Law.
Burke said Mills was likely concerned about finding an impartial jury in a case that has drawn international publicity. That, combined with a court's general sensitivity to the privacy of jurors, likely led Mills to conduct the process behind closed doors.
In fact, Mills said earlier this week, in rejecting a motion by the Press Herald to open the proceedings, that the case had received widespread media attention and she had promised potential jurors confidentiality in an effort to make sure they answered questions honestly.
Each juror was asked to fill out a 10-page questionnaire asking their opinions on issues such as whether prostitution should be legal, their willingness to watch videotapes of sexual encounters and their exposure to publicity about the case.
They also were questioned about their opinions of religion, pornography, prostitution, adultery and government spending, according to a blank questionnaire that Mills distributed to the media.
"I can easily imagine that there is a concern that there isn't a big enough jury pool," Burke said, but selecting a jury openly will give the public more confidence that a correct verdict will be reached.
"They can say, 'Yeah, we saw that,' " he said.
Melvyn Zarr, another professor at the law school, said a quick review of the Supreme Court's ruling suggests that the justices are mindful of the difficulties of the trial.
"It's a situation in which everybody has heard about this, well beyond the confines of York County," Zarr said. "What (Mills) is trying to do is to adopt procedures that would get a fair jury."
Schutz said he, too, is aware that Mills is in charge of a case that has attracted international attention, but the test of a justice system often is "how we handle these high-profile cases."
While Mills has discretion in how to conduct the trial, Schutz said, "in this case, the closure went way too far."
Mills recessed the trial early Thursday afternoon and dismissed the jury pool for the rest of the day after hearing several motions from lawyers for the state and Strong, unrelated to jury selection.
She held a conference call with prosecutors and defense attorneys late Thursday afternoon to decide how to proceed.
The trial is expected to last about three weeks once a jury is chosen.
Strong has pleaded not guilty to 59 counts related to promoting prostitution and invasion of privacy.
Wright, 30, of Wells, is scheduled to stand trial on 106 counts in May. She has pleaded not guilty to all charges, including promotion of prostitution, engaging in prostitution, invasion of privacy, conspiracy, tax offenses and receiving welfare benefits when ineligible.
The case has drawn so much attention in part because Wright reportedly kept a meticulous list of more than 150 names of customers, including prominent figures.
Affidavits filed by police indicate that Strong may have helped Wright videotape encounters with her customers.
So far, 66 people have been charged with being prostitution clients in the case. Eighteen men who have pleaded guilty or been found guilty of engaging Wright for prostitution are on the prosecution's witness list for Strong's trial.
Staff Writer Edward D. Murphy can be contacted at 791-6465 or at:
Defendant Mark Strong talks with his attorney Daniel Lilley during a motion hearing at York County Superior Court in Alfred on Thursday.