January 25, 2013

Highest court halts secret Kennebunk jury selection

Justices side with the newspaper and order the prostitution case screenings opened to the public.

By Edward D. Murphy emurphy@pressherald.com
Staff Writer

Maine's highest court on Thursday ordered the remaining jury selection in a key defendant's trial in the Kennebunk prostitution case to be conducted in public.

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Justice Nancy Mills listens to Daniel Lilley, attorney for Mark Strong, during a motion hearing at York County Superior Court in Alfred on Thursday.

Gregory Rec / Staff Photographer

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Defendant Mark Strong talks with his attorney Daniel Lilley during a motion hearing at York County Superior Court in Alfred on Thursday.

Gregory Rec / Staff Photographer

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PDF: Full text of ruling by Maine Supreme Judicial Court

The Portland Press Herald had filed a motion with the Maine Supreme Judicial Court challenging the constitutionality of Justice Nancy Mills' decision to close the proceedings to the public.

In closing the proceedings, known as voir dire, Mills said she feared that prospective jurors would not be candid if they were questioned publicly in York County Superior Court.

On Thursday, the Supreme Court first ordered Mills to stop the secret jury selection process. Then, in a 6-1 decision, it ordered her to open the rest of the process to the public and release transcripts of the closed-door sessions that began Tuesday.

"Although the trial court exercises substantial discretion over the mode and conduct of voir dire, a generalized concern that juror candor might be reduced if voir dire is conducted in public is insufficient ... to bar the public or media from the entirety of the process," wrote Chief Justice Leigh Saufley.

She was joined in the opinion by all of the other justices except Justice Donald Alexander.

A total of 145 prospective jurors were called for the trial of Mark Strong Sr., 57, of Thomaston, who is accused of being a business partner with Alexis Wright in an alleged prostitution operation run out of Wright's Zumba studio in Kennebunk.

The Supreme Court's decision "may change the way jury selection is done" to ensure that the process is transparent, the Press Herald's lawyer said Thursday.

"This is a precedent-setting decision. I'm not sure it's a practice that's ever been challenged before," said Sigmund Schutz.

"Jury selection is an incredibly important part of a criminal trial," he said. "It's a vital First Amendment value that we have public trials in this country."

The Press Herald argued that First Amendment case law shows that jury selection should be open except in the most extreme circumstances, such as national security.

The U.S. Supreme Court has held that "trial courts are required to consider alternatives to closure even when they are not offered by the parties," or by anyone else, on the principle that court proceedings should be open to the public to protect the innocent and maintain confidence in the criminal justice system.

Mills did not respond directly to the ruling in court Thursday. She did say dryly at one point, "Everything I've done in the past few days has been appealed."

Saufley stopped the jury selection Thursday morning, pending further review. Mills addressed the chief justice's stay at the end of a hearing on several motions in the case.

"There are multiple scenarios I can envision on how the trial will proceed," Mills said, while the full court's ruling was still pending. She did not specify what they could be.

It was unclear whether any jurors have been chosen for the trial.

On Tuesday and Wednesday, multiple groups of prospective jurors were brought to a private room for questioning by the judge, prosecutors and defense attorneys, but it's not known publicly who was excused or selected for the trial.

A closed jury selection process "is uncommon, but not unheard of," said E. Jim Burke, a professor at the University of Maine School of Law.

Burke said Mills was likely concerned about finding an impartial jury in a case that has drawn international publicity. That, combined with a court's general sensitivity to the privacy of jurors, likely led Mills to conduct the process behind closed doors.

(Continued on page 2)

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