Ruling to come

Carrillo's attorney says damage done, asks judge to remove AG's office from case

Prosecutors say procedural mistakes not relevant to murder of 10-year-old
By Ethan Andrews | Apr 12, 2018
Photo by: Ethan Andrews Assistant Attorney General Donald Macomber, a state prosecutor on the Marissa Kennedy murder case, speaks April 12 outside Waldo County Superior Court.

Belfast — Attorneys for the Stockton Springs mother accused of participating in the beating death  of her 10-year-old daughter continued a campaign Thursday to get two state prosecutors, and potentially the entire Attorney General's Office, removed from the case.

Sharon Carrillo and her husband Julio Carrillo each face a charge of depraved indifference murder in connection with the February death of Marissa Kennedy, who was found dead at the family's Stockton Springs condominium with evidence of trauma to her head and abdomen.

Police say the Carrillos confessed to attempting to stage the girl's death as an accident and that they beat the girl for months before she died, continuing even after Marissa showed difficulty walking and started slurring her speech.

Sharon Carrillo's case has been the more active of the two, and has centered on her intellectual capacity. Her attorneys have characterized her as a woman of low intelligence who was abused by her husband. The state has requested its own psychological evaluation of Sharon Carrillo.

Defense attorneys Christopher MacLean and Laura Shaw scored a victory earlier this month when Waldo County Superior Court Justice Robert Murray agreed to disqualify school and employment records that the state obtained using invalid subpoenas.

The records included progress reports, report cards, an individualized education plan (IEP) and a psychological evaluation, according to a school official.

Murray ordered state prosecutors to turn over any records they received along with affidavits from any state employees or police who reviewed the records.

MacLean on Thursday said six of the nine affidavits returned by the state were not valid, either because they were not notarized or they didn't meet the statutory standard for an affidavit.

Specifically, he said, affidavits from Assistant Attorneys General Leane Zainea and Donald Macomber, the state's lead prosecutors in the case, contained no written reference to having been notarized under oath, and, in at least one case, had a word missing where "sworn" might typically have been printed.

MacLean said the notary, whose seal appeared on other affidavits submitted by the state, would have known the difference between a sworn and unsworn statement.

MacLean's argument built on his team's previous assertions that the state circumvented the law to get key documents.

The Attorney General's office in March used a subpoena to get confidential records from Maplebrook School, a private boarding school for people with intellectual disabilities in Amenia, N.Y., that Sharon Carrillo attended. The state also subpoenaed employment records for both Sharon and Julio Carrillo from the Walmart Supercenter in Newburgh, N.Y.

Both subpoenas included a date for an upcoming hearing that never existed, according to MacLean. Additionally, the prosecution bypassed a step required to subpoena records from an institution outside of Maine. MacLean and Shaw argued that the document had no legal standing but was meant to trick the recipient into believing there was no choice but to comply.

Officials from Maplebrook School sent Sharon Carrillo's confidential files to state prosecutors. On Thursday, Macomber handed over a slim envelope of records from Walmart that he said arrived since the last hearing.

At the previous hearing, Macomber and Zainea expressed remorse and told Murray that the errors were unintentional.

On Thursday, Macomber showed signs of frustration. He sat with his arms crossed during the defense's arguments and at one point threw a copy of a state statute given to him by MacLean back at the attorney. He later told Murray that he had done what was asked of him, and said he took offense at MacLean's characterization.

"I'm trying to contain my rage at the attacks on my personal integrity, on Ms. Zainea's integrity and the integrity of the Attorney General's Office," he said.

In reference to the affidavits, Macomber said any omissions were a mistake. He cited examples of the defense attorneys and Justice Murray himself admitting to mistakes in previous cases.

"People make mistakes," he said. "I made a mistake."

Macomber said the subpoenas sent to Maplebrook School and Walmart were "friendly subpoenas," not intended to deceive the recipients, but in essence to provide the correct paperwork to an institution that was willing to provide the requested records.

He recounted how State Police Detective Jason Andrews called the school to ask for Sharon Carrillo's records and was told by Chief Executive Officer Donna Konkolics that she could not release them without a court order or subpoena.

MacLean later quoted Konkolics from an affidavit, saying she would not have released the records had she known that the hearing did not exist or the subpoena was not a valid document.

MacLean said it would be hard to prove the prosecution didn't gain from viewing Sharon Carrillo's school records. He referred to the affidavit from Andrews, the state police detective, who said he had been looking at the school files specifically for the names of Sharon Carrillo's former roommates and her extracurricular activities at the school.

He claimed not to have found these, but MacLean said that type of information could be gleaned from documents to advance their case without explicitly using the documents themselves.

This, MacLean said, represented a conflict of interest and was grounds for disqualifying the entire Attorney General's Office. Alternatively, he said the court could view it as an ethics violation and remove Macomber and Zainea but allow the Attorney General to appoint replacements.

"It's an unusual case that requires an unusual remedy," he said.

Murray said he would take it under advisement and make a ruling at a later date.

Speaking outside the courthouse Thursday, Macomber reiterated that his office had made mistakes but said those mistakes amounted to a distraction from the real concern at hand.

"The defense is trying to make this about the prosecution," he said. "This case is not about the prosecution, it's about Marissa Kennedy and what happened to her."

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