Thursday, December 12, 2013
ALFRED - Defense attorneys for Mark Strong Sr., who is on trial as one of two defendants in the Kennebunk prostitution case, argued in a motion filed by email Sunday that Strong is legally entitled to the complete personnel records of all Kennebunk police officers who are scheduled to testify at his trial.
Mark Strong Sr. is on trial as one of two defendants in the Kennebunk prostitution case. His lawyers have filed a motion seeking the complete personnel records of all Kennebunk police officers who are scheduled to testify at his trial.
2013 Press Herald file/Gregory Rec
The 14-page strongly worded motion comes as witness testimony is scheduled to resume Monday morning for the second week of Strong's trial in York County Superior Court.
Strong, 57, of Thomaston, is charged with conspiring with Alexis Wright to run a prostitution business from Wright's Zumba studio in Kennebunk.
Strong's attorneys won a victory in a hearing Friday morning, successfully countering a claim by an attorney for the town of Kennebunk that all the Kennebunk police officers expected to testify have clean personnel files. At the hearing, Kennebunk Police Chief Robert MacKenzie testified under questioning by Strong's attorney Daniel Lilley that the primary police investigator of the Kennebunk prostitution case, Audra Presby, has a written reprimand on her public record.
The cornerstone of Strong's defense has been that he was targeted in "retaliation" by police for work he had done as a private investigator looking into allegations of unprofessional conduct within the Kennebunk Police Department and that the records Strong kept of his investigation were missing after police raided his home and insurance business in Thomaston last July.
The motion filed Sunday by Strong's attorneys, Lilley and Tina Nadeau, is three-pronged, asking first that the court dismiss all 13 pending charges against Strong -- 12 counts of promotion of prostitution and one count of conspiring to promote prostitution -- as "an extreme sanction" against prosecutors "after months of procedural gamesmanship and nondisclosure."
Strong already had one pending motion filed at the start of the trial last week to dismiss the case on grounds that prosecutors failed to release key evidence that could be used in his defense before the trial and failed to meet past deadlines to release that evidence. This motion replaces that one, making it the fifth time Strong's attorneys have made legal arguments to have the case dismissed.
The second prong of the motion asks that, if Justice Nancy Mills declines to dismiss the case, prosecutors be ordered to release police personnel records since those records could benefit the defense "as it impacts the credibility of these witnesses."
In the hearing Friday, the town of Kennebunk's attorney Natalie Burns told the court that those police personnel records are confidential under state law. But Lilley disagreed, saying Strong's constitutional right to a fair trial "trumps" the state confidentiality law.
Burns intervened in the case Thursday, filing a "bench memorandum" just hours before Presby, the lead investigator of the Kennebunk prostitution case, was scheduled to be called as a witness. The judge scolded prosecutors for not informing the court sooner that the York County District Attorney's Office had been in contact with Burns' law firm since at least Feb. 10.
"I apologize that I didn't make the court instantly aware of this. I have tried my very best to inform the court of different aspects of the case," the lead prosecutor, York County Deputy District Attorney Justina McGettigan, told the judge at the end of Friday's hearing. "We did not file this bench memorandum."
Lilley said that the issues of confidentiality and personnel records should have been dealt with months ago, not midtrial. "We're getting blindsided by this," he said at Friday's hearing.
McGettigan on Friday said prosecutors have been forthright and she disagrees with the defense's characterization of prosecutors' actions.
In the third prong of the latest motion, Strong's attorneys ask the judge to inform the jury that prosecutors have "violated Defendant Strong's Constitutional rights" by depriving him of favorable evidence and that prosecutors had been aware of the "weakness of their case."
The judge had tentatively set a hearing for Tuesday to pick up where Friday's hearing left off. She ordered that Burns attend and that lawyers arrange for the Kennebunk police chief, Lt. Daniel Jones and former Lt. Nicholas Higgins be called to Tuesday's hearing, as well.
The prosecution expects to call a state police detective and police computer analysts to testify Monday.
The case has drawn international attention, in part because Wright is suspected of keeping a meticulous list of customers, including prominent figures. Sixty-six have been charged and 18 had been convicted by the end of last year.
Wright, 30, of Wells, is scheduled to stand trial in May on 106 counts, including promotion of prostitution, engaging in prostitution, violation of privacy, conspiracy, tax offenses and receiving welfare benefits when ineligible.
Scott Dolan can be contacted at 791-6304 or at: