Tuesday, May 17, 2011

Why I am hopeful about the Vladek Filler retrial

I am confident that Mr. Filler will be acquitted.

Why? You will recall what happened at the first trial:  the prosecution improperly prevented Filler from mounting the only defense available to him by keeping evidence of the custody battle out of the case.

That was bad enough. What happened next is the kind of cheap, dishonest lawyer trick one would expect from a disreputable ambulance chaser, not a guardian of justice who bears the title of prosecutor:  the prosecution exploited that improper victory by telling the jury the following: "I would ask you where the evidence is to back up his statement that he stated in both his opening and his closing that this is a marriage that was ending, this is a child custody, this was a first step in a child custody fight. Where is one piece of evidence about that? . . . . The suggestion that [Filler's wife] has made this all up just for the purpose of getting ahead in the child custody, where is the evidence of that? . . . . Custody dispute? Where is that?"

Of course the prosecutor knew "where the evidence" was to back up Mr. Vladek's defense that the claims against him were fabricated to gain the upper hand in a custody dispute: the prosecution kept it out of the trial, that's where it was. The prosecutor's suggestion to the jury that there was no child custody dispute is both heinous and unpardonable.

Did the jury have any choice but to convict, in light of the fact that Mr. Filler's lawyer promised the jury evidence of a child custody dispute and failed to deliver on it?

That won't happen at the retrial.

The Supreme Judicial Court of Maine has given the trial court its marching orders by writing an opinion that is now the law of the case. At the retrial, the trial court is not permitted to deviate from or to overrule the legal principles announced in that opinion.

The Supreme Judicial Court of Maine has made clear that "evidence of a complaining witness's motivation bears directly on the issue of credibility. . . .." Here, "evidence that Filler's wife had taken legal steps to gain custody of the children was relevant because it made a fact of consequence--whether she had a motive to fabricate her allegations of abuse--more probable than not. . . . . [E]vidence of the legal actions taken by Filler's wife would have supported Filler's theory that she had an ulterior motive in making the claims in the first instance. . . . . Filler's wife's credibility was central to the outcome of the case and Filler's defense necessarily rested on his impeachment of her. Thus, the probative value of her motivation for potentially fabricating the allegations of abuse was substantial. . . . .this relevant evidence would have required only a few minutes of trial time to be fully explored."

In light of the opinion of the Supreme Judicial Court of Maine, I don't see how evidence of the custody battle can be kept out of the retrial, and I don't see how that evidence won't cast at least a reasonable doubt in the minds of a reasonable jury.

The astounding thing is that the prosecutor didn't drop the case in light of what the appellate court ruled.