BELFAST — The judge in the case of the State v. Sharon Carrillo has decided that the prosecutors in charge of trying the case will not be disqualified, nor will they be subject to a protective order, as requested by Sharon’s lawyer Chris MacLean.
In an order handed down April 12, the same day a hearing was held to address MacLean’s motion to disqualify the Attorney General’s Office (AGO), or at least to have Assistant Attorneys General prosecutors Donald Macomber and Leane Zainea removed from the case, Justice Robert Murray explained his decision.
MacLean had argued that by using extrajudicial subpoenas to secure privileged and confidential records about his client, both Macomber and Zainea had committed professional misconduct. Murray did find that the records from Maplebrook School, where Sharon once attended, and records from a Walmart where she worked, both in New York, were improperly obtained.
The April 12 order, which reportedly came late in the day, dealt with two motions:
A Motion to Disqualify, filed March 26; and
An Expedited Motion for Protective Order-Extrajudicial Subpoenas, which was filed April 3.
Justice Murray noted in his decision that the two motions are “inextricably tied” to the issues presented to the Court in the Defendant’s earlier Expedited Motion for a Protective Order, filed March 21, and the addendum added March 26.
A March 27 hearing about the two earlier motions was held, during which Murray determined that, “at a minimum, what we have here is a procedural error on the part of the State with respect to the efforts it undertook to obtain certain documentation.”
As a result, the State was ordered to produce any and all original documents received, any copies of the documents, and affidavits prepared by and signed by “any individual in the [AGO] that had involvement in either the gathering or receipt of any such documentation.”
Nine affidavits were subsequently filed, including affidavits from Macomber, Zainea, and the Maine State Police detective who initially contacted Maplebrook School.
Since the court had previously determined that the State failed to comply with the “applicable rules and procedures in attempting to gain confidential records,” the order notes that the issue at hand at the most recent April 12, hearing, was “whether such error on the State’s part constitutes the type of prosecutorial misconduct or ethical breach which would warrant or require disqualification of some or all of the AG from further participation in the pending charge against the Defendant.”
MacLean had argued that Sharon Carrillo shouldn’t have to live with the knowledge that prosecutors had private, confidential documents about her, including psychiatric information.
In a tense hearing April 12, Macomber took responsibility for the errors made, saying, “I fall on my sword,” and that he had made a mistake, but also that he was angry at having his integrity questioned.
In his order, Justice Murray wrote that although Sharon Carrillo and her lawyers Chris MacLean and Laura Shaw, both of Camden Law, contend “that disqualification is the only appropriate remedy,” the Court “declines to accept that view of the proper remedy.”
Murray wrote that although the State “clearly failed to comply with the proper procedure and rules,” the context of the specific failure must be examined in order to determine the proper “remedial response by the Court.”
The order also notes that although the errors were made, the State alerted Sharon Carrillo’s defense counsel promptly, which allowed the defense to quickly bring the matter to the Court’s attention, where steps were undertaken to “ameliorate” the impact of the State’s conduct.
The order states that although the Maine Law Court has yet to specifically address the issue of disqualification of counsel in the [exact] context being presented, there are other U.S. cases with similar circumstances. While an exact standard for disqualification hasn’t been set, various factors have been established to consider when considering disqualification.
Some of these factors include the extent to which the attorney reviews and digests the privileged information and the promptness with which the attorney notifies the opposing side that he or she has received privileged information, among others.
In his order, Justice Murray wrote: “this Court is not persuaded that the Attorney General’s conduct in the pending matter rises to that level of behavior which would warrant the rather extraordinary remedy of disqualification. Accordingly, the Defendant’s motion to disqualify is hereby, denied.”
The order goes on to say in part that Sharon Carrillo’s motion for a protective order “regarding a concern for what it refers to as ‘extrajudicial’ subpoenas appears to be a prophylactic attempt to address future conduct based primarily upon the concern generated by the State’s failure to comply with the subpoena process as outlined above.”
Murray writes that counsel for both the Defendant and the State are “accomplished lawyers with decades of practice and experience between them,” and that the Court is confident when utilizing subpoenas in a pending matter, “will do so in full accordance” of the law.
The order concludes that “accordingly, the Defendant’s request for a prior order in the nature of a protective order regarding some potential future behavior is denied.”
It is not the outcome Chris MacLean had hoped for following the April 12 hearing, but he said via email April 15 that although he is disappointed with the decision: “this is not about winning or losing - it is about ensuring that everyone follows the laws and procedures. The prosecutors did not follow the law or procedures. When that happens, we have to take a stand.”
MacLean said that while [Justice Murray] believes that the prosecutors can be trusted to follow the law going forward, he hopes that his confidence is “well placed.”
If necessary, MacLean said he plans to ask the judge to reconsider his ruling and appeal the decision.
“In the meantime, if the prosecutors break the rules again, I will renew my request that they be removed and I suspect the judge will show less indulgence with them than he did this time.”
Erica Thoms can be reached at firstname.lastname@example.org