BELFAST — It was a tense day in Waldo County Superior Court April 12, as Sharon Carrillo and her lawyers Chris MacLean and Laura Shaw came before Justice Robert Murray to argue for the removal of the Maine Attorney General’s Office (AGO) from the case.
The motion came after MacLean and Shaw were alerted by the AGO that prosecutors Assistant Attorney General Donald Macomber and Leane Zainea had procured privileged records with the use of extrajudicial subpoenas.
Julio Carrillo, whose records were also reportedly requested with extrajudicial subpoenas, also attended the hearing with his lawyer, Darrick X. Banda, but his hearing on the matter was moved to an April 30, court date. Instead, he and Banda watched from the sidelines as MacLean made his case to Justice Robert Murray.
Sharon Carrillo, 33, and her husband Julio Carrillo, 51, were arrested Feb. 26, the day after 10-year-old Marissa Kennedy was discovered deceased. Both Carrillo’s admitted to beating Marissa over the course of several months, often multiple times each day, in their separate interviews with Maine State Police.
The girl was reportedly made to kneel on kitchen tiles, which were deemed the most painful area of the house to do so. She was then beaten by both Carrillos, with closed fists, open hands, and a metal mop handle that broke on Marissa’s torso, according to the interviews. She was also made to stay in a dark closet for prolonged periods.
Marissa was reportedly beaten until she could no longer walk or speak without slurring. She had bleeding on the brain and an ulcerated liver among other injuries, with her cause of death listed as Beaten Child Syndrome.
Macomber sat with his arms crossed for the duration of MacLean’s detailed and confrontational argument, frequently bouncing one leg as he listened to his colleague’s accusations.
MacLean began by talking about the affidavits produced by members of the AGO, including Macomber and Zainea, which were ordered following a March 27 hearing about how the AGO came to possess privileged and confidential records.
Following the March 27, hearing, Justice Murray found that the AGO had improperly obtained the records in question, from Maplebrook School where Sharon once attended and a Walmart Supercenter where she once worked, both in New York State, and ordered both to turn over any physical records gained and to delete any digital copies.
They were also both ordered to write statements about how the AGO came to possess the records, which resulted in the submission of nine affidavits from Macomber, MacLean, and other members of the AGO, in addition to the Maine State Police detective who initiated contact with Maplebrook School CEO Donna Konkolics.
According to MacLean, six of the nine affidavits submitted by the AGO were not proper affidavits under Maine law, or any law, which he said he was surprised by given the seriousness of the allegations.
The allegations, which include “the allegation that subpoenas were used that were illegal, and subpoenas were used in an improper procedural manner as well, to obtain confidential and privileged information.”
In order to be legally valid, subpoenas must be signed after a notary public administers an oath where the parties swear to the truth of the information therein. In the case of six of the nine affidavits submitted, including those from Zainea and Macomber, did not include the word ‘swore’ in the jurat, where the notary signs the document.
All were handled by the same notary public, which MacLean said he found curious given that they were not identical with regard to verbiage used in the jurat.
Valid affidavits include something called a jurat, which is where the notary signs to verify that before the affidavit was signed an oath was administered by the respective notary public. MacLean said that on Zainea and Macomber’s respective affidavits, in particular, the word ‘swore’ was deleted from the paperwork, leaving a typo behind.
As part of his presentation to the court, MacLean provided an exhibit in order to provide information about what affidavits are required to have by law. When entering an exhibit, lawyers must give a copy to the opposing side, though Macomber stated aloud that he didn’t want it.
When MacLean placed one on the edge of Macomber’s desk before continuing on to Justice Murray, Macomber instantly stood, briefly stepping toward the then-unoccupied podium to throw the paperwork back on top.
“Let the record reflect that the Attorney General just threw that back to me,” MacLean stated.
When it was Macomber’s chance to address the judge and respond to MacLean’s ethical accusations, his first words to Murray were, “forgive me, your honor, I’m trying to contain my rage at the attacks on my personal integrity, on Miss Zainea’s personal integrity, on the integrity of the staff of the [AGO].”
He denied altering the affidavits and confirmed that all nine were sworn to after an oath of truth was taken in front of a notary public.
“We swore the truth, we are officers of the court, the information in those affidavits is true. Apparently, Mr. MacLean and Ms. Shaw are the only people who know how to comply with the affidavit rules or subpoena rules,” Macomber said.
Macomber said it was interesting to him that the Maine law court has not ruled that a subpoena can never be used, a Maine subpoena can never be used for out of state records, saying case law is replete across the country with this split in jurisdictions as to whether or not a subpoena for out of state witnesses applies to records as opposed to testimony from witnesses.
Though he acknowledged that a Maine subpoena is not enforceable if someone out of state doesn’t want to comply, Macomber said the situation with Maplebrook [School] was not one of those situations.
Macomber characterized the extrajudicial subpoenas sent to Maple Brook School CEO Donna Konkolics as a “friendly subpoena,” saying there was no effort on the part of the school to not comply with the subpoena.
MacLean would later take issue with this characterization, producing an affidavit from Konkolics stating that had she known that the subpoena was not legally binding and that there was no court date April 6, as the AGO subpoena stated there was, she would not have turned over the records.
Macomber called MacLean’s request for disqualification of a prosecution office as an extraordinary remedy, saying cases suggest that it’s only pertinent for conflicts of interest or extreme ethical violations, which he said is not the case with the AGO.
Macomber admitted to failing to file a motion in limine to the rule, saying, “I didn’t do that in this case. I made a mistake. But for Mr. MacLean to stand up here, or for Ms. Shaw in her motions, to suggest I did this intentionally, it’s, it galls me,” he told Justice Murray.
“It eats at me, your honor,” he said. “I pride myself on my integrity. If I was intending to violate the rules to gain an advantage I wouldn’t have copied [Camden Law offices] on the subpoena.”
A motion in limine is “a pretrial motion asking that certain evidence be found inadmissible and that it not be referred to or offered at trial,” according to Cornell Law School.
Macomber again defended himself and the AGO, saying he personally had made a mistake with regard to the subpoenas sent to Maplebrook School and Walmart.
Despite the AGO officially rescinding the Walmart subpoena, they did receive records that were brought into the courtroom, sealed and handed to Murray.
While the Maplebrook records received were already turned over to the State, both Macomber and Assistant Attorney General Zainea acknowledged at least skimming through the documents prior to that forfeiture.
MacLean has asked that not only any information gathered via extrajudicial subpoena be deemed inadmissible, but that the AG be disqualified from trying to the case, or at a minimum removing Zainea and Macomber from the case.
When he concluded his response to MacLean and Shaw’s allegations, Macomber said: “I submit your honor, that I made a mistake. [The AGO] didn’t do anything intending to circumvent Ms. Carrillo’s rights.”
In his final remarks to the court, Justice Murray stated, “The court is going to take this matter under advisement to review the additional information, as well as the most recent submissions to the court before rendering its final opinion, a decision on this point.”
When asked by reporters about an expected timeline for the ruling, MacLean said due to the seriousness of the matter he expects Justice Murray will rule very promptly, though there is no timeline for him to issue a ruling.
MacLean said it will be a very interesting decision, and that he hopes that the AGO will be disqualified from the case, or that Macomber and Zainea are both removed from the case.
“I think in fairness to my client that she shouldn’t have to live with the knowledge that prosecutors have private and confidential psychiatric evaluation information. It is just uncomfortable, she has a lot to deal with facing a murder charge in the state and she shouldn’t have to worry about the prosecutors having confidential and privileged information about her,” he said.
Erica Thoms can be reached at firstname.lastname@example.org