January 28, 2013

Appeal has Zumba trial in limbo

The dismissal of 46 counts against Mark Strong led to an appeal on Friday, with no date set for a restart.

By Scott Dolan sdolan@pressherald.com
Staff Writer

PORTLAND - The derailed trial of Mark Strong Sr., the first major courtroom showdown in the Kennebunk prostitution scandal since it broke last year, remained off the tracks Sunday with no clear answer on what's next.

The state's highest court had not issued a ruling as of Sunday evening on the prosecution's appeal of Friday's decision dismissing the bulk of the counts against Strong.

And a hotline recording told potential jurors Sunday evening to call back at 10 a.m. Monday to learn when or if jury selection would resume in York County Superior Court in Alfred.

"I think something will happen before 10 a.m.," Strong's lead attorney, Daniel Lilley, said Sunday night. "And I think we're going to go forward with the trial."

Lilley said jury selection is nearly complete, with only three more jurors to be seated.

Events on Friday changed the case against Strong, who was accused of conspiring with Alexis Wright to run a one-woman prostitution business from her Zumba studio in Kennebunk, and of helping to make video recordings of her activities with customers.

Justice Nancy Mills granted a motion by Strong's attorneys to dismiss 46 of the 59 counts against him, all related to violating the privacy of Wright's customers for recording them without their knowledge.

That left 13 charges pending against Strong, 57, of Thomaston: 12 counts of promotion of prostitution and a single count of conspiracy to promote prostitution.

In dismissing the violation of privacy counts, Mills ruled that the patrons who were committing a crime by paying for sex "may have had a subjective expectation of privacy, but I can't find an objective expectation of privacy that society would be willing to expect."

The lead prosecutor, York County Deputy District Attorney Justina McGettigan, requested a recess after the judge's ruling and obtained permission for the state Attorney General's Office to file an appeal. McGettigan argued that Mills' dismissal of the 46 counts poses a "serious impairment" to the prosecution of the case, giving legal grounds for the appeal. The case was suspended until the Maine Supreme Judicial Court rules.

The jury selection process for the trial also has been muddled. The judge conducted individual juror questioning, called voir dire, behind closed doors for three days last week before the state's Supreme Court ordered the process stopped in response to an appeal filed by the Portland Press Herald. In a 6-1 decision, the state's highest court ordered that voir dire must continue in open court.

But the court never got that far. McGettigan's appeal put the jury selection time line in limbo, leaving the judge to release the jurors for the day Friday with instructions to call the hotline Sunday to see what's next.

Strong's attorneys, Lilley and Tina Nadeau, pushed for the trial to go forward, saying Strong has a legal right to a speedy trial and that the state does not have a right to an appeal.

"Our defendant has a right to a speedy trial, which we have vigorously, as you have noted, moved forward," Nadeau said in court Friday.

Nadeau said the pool of potential jurors had sat confined for four days.

"There's no doubt that they could take that out on the defendant because they've had to sit down there," she said.

Nadeau and Lilley filed a 12-page legal argument Sunday afternoon with the state Supreme Court, challenging the merits of the prosecution's appeal of Mills' dismissal ruling.

"The state's position on this appeal is contrary to reason, common sense and the interests of society. These patrons should not be awarded the protection of the law to shield their unlawful activities," Lilley and Nadeau said in their written argument.

Mills has described the media attention in the Kennebunk prostitution case as "unprecedented." She said this is the first time in her 19 years as a judge that she has been unable to seat a jury for a trial in a single day.

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

She faces 46 counts of violation of privacy, the same number as Strong did before Mills dismissed them.

Wright's attorney, Sarah Churchill, said Friday that she likely would have asked the judge to dismiss those charges against her client as well.

The case has drawn so much attention in part because Wright is suspected of keeping a meticulous list of more than 150 names of customers, including prominent figures. Sixty-six have been charged and 18 have pleaded guilty to engaging a prostitute.

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

sdolan@mainetoday.com

 

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