I try to keep my writing devoid of my sarcastic wit; however, at times it’s difficult to hold back especially when dealing with stressful events that make you feel like you are in the Twilight Zone. Last week I attended the State v. Filler criminal re-trial in Ellsworth, Maine to lend my support to Vladek Filler and his family. I rarely if ever get involved or lend my support in criminal matters for the accused; however, after meeting Vladek, his mother and his sister a few years ago and reading about the case against Vladek extensively I was convinced that an egregious wrong had been perpetrated. I wanted to do what I could to help.
The newspaper accounts of this trial do not do it justice, after all reporters can only give their readers a glimpse of what went on in that court room during the trial. A reporter is only allowed so much space to write his article and has deadlines to meet. Having sat in that court room for three of the four trial days, watching the proceedings and listening to each person’s testimony, as well as spending time with the Filler family outside the court room I definitely came away with a much more comprehensive understanding than if I had just read the newspaper accounts.
Watching Asst. DA Paul Cavanaugh present the State’s side of the case was like viewing a made for TV “B” movie. You know the kind of movie I mean, one of those low budget films with some the cheesiest acting and dialogue you have ever seen. Sadly, this proceeding was anything but a made for TV movie. It was a real life drama with a man’s life, freedom and his children’s future on the line. For more background information on this case please read my blog entries dated of 4-12 and 4-14-2011.
State v. Filler May 25th 2011 - Day Two
Nicole (who is a volunteer advocate with DAHMW) and I drove to Ellsworth early to be at the courthouse for the 8:30am start time for the day’s court proceedings. We met up with Vladek, his two sisters, his mother and his oldest son. First stop was a room in the courthouse reserved for the Filler family during the trial and then onto the court room for the hearing.
Let me just take a moment here to tell you about the collective Filler family. The Fillers are the type of people who would give you the shirt off their backs and the last dollar in their pocket if they knew you needed it. I have never in my life met a more close knit, warm and loving family. After sitting down and talking with Vladek, his son and his extended family for just a few hours it felt like we had all been great friends for many years. Here they were at one of the most intense, grueling times in their lives (I say “their” because it’s so evident that if one of them is suffering they are all suffering…they are that close) having lived under a dark ominous cloud for more than four years and yet they took the time to make sure you feel welcomed, appreciated and included.
Asst. DA Paul Cavanaugh was into his second day of presenting the State’s case against Vladek Filler when we arrived. The States star witness was Vladek’s ex wife, Ligia, who was first up on the witness stand that morning. That morning the star witness was cross examined by Vladek’s defense lawyer Stephen Smith.
Before I discuss the cross examination of the prosecutor’s star witness let me just say for the record that I am an assiduous and fervent advocate for victims of domestic violence and sexual assault. I volunteered at our local rape crisis center for over a year and have been the victim of date rape myself as a teenager so I fully and completely empathize with victims of these crimes. I feel that those who commit sexual and domestic assault against women, men and children should get the harshest punishment allowable by law. So you know that if I believed for one second that Vladek Filler had committed the crimes that he was accused of I would have been sitting in the front row behind the prosecutor and not the defendant at this trial. However, I have no respect, empathy or use for someone who would use the legal system, victim’s services and the taxpayer’s money to exact revenge against their former intimate partner.
As I watched and listened to the prosecution’s star witness on that Wednesday I thought to myself, “This lady is in the wrong profession, she should have gone into dramatic acting.” Please understand that it is not my intent to belittle or make light of this most serious situation, it’s just that I found the alleged victim to be disingenuous. I was totally unmoved by her overly dramatic testimony.
She sat on the witness stand looking forlorn holding her hand to her chest and taking slow deep audible breaths in and out, in and out, with every response she gave as she was cross examined by the defense attorney. When she wasn’t taking slow deep audible breaths she spent a great deal of time having sips of water and pausing to use a tissue to wipe her eyes. She responded to most of the questions asked with, “I don’t understand the question…could you repeat the question…I don’t remember….I can’t recall…I can’t remember…I don’t recall…I don’t know….” Again, her testimony struck me as melodramatic and insincere.
She appeared to have a difficult time remembering key facts such as whether the alleged sexual assault took place on the top surface of the washer, the dryer, or with her head inside the laundry basket that was on top of one of these appliances. With regards to the alleged assault that she said happened in 2005 she couldn’t remember which came first, her slapping Vladek or him throwing water (from what she said enough to soak her face, hair and/or clothing) from a glass at her two times.
Nathan, 14 year old son of the star witness and Vladek testified that he had been awoken by the sound of his parents arguing and that he witness what happened. Nathan testified that he saw his mother punch his father in the nose knocking the glasses off his face and that his father did not throw water at his mother. He also testified that his mother’s clothes and hair were dry and not wet as they would have been had she just had water thrown at her.
The star witness was asked by the defense to describe the alleged sexual assault. She testified that Vladek had held her two hands behind her back with one of his hands and held her head down on the dryer/washer with his other hand and while she struggled he pulled her corduroy pants down (she couldn’t remember if they were button fly or had a button with a zipper) to around her ankles, pulled his own pants down and then sodomized her. If I remember correctly she said he didn’t use any lubrication. She further testified that after he was done she felt his semen run down her leg.
She testified that after filing a complaint with the police about the alleged sexual and domestic assaults she was advised to go to the hospital to have a rape kit done (to preserve evidence of the alleged sexual assault for trial) by both of the police officers she spoke with. I don’t doubt that her friend who’s house she was at when she met with the first officer also told her to get a rape exam. Her fairly new friend was instructor of the CNA classes that the star witness attended as well as a nurse. None the less she ignored everyone’s advice and chose not to have a rape exam done. No doubt, there can be good reasons for choosing not to have a rape exam; it can be an uncomfortable and humiliating experience to have such a procedure done. However, it could also be that in this case the accuser knew there wouldn’t be any evidence of sexual assault because the assault never happened.
Reflecting further on the star witnesses bizarre behavior (IMHO) and evasiveness to the questions asked of her I suppose it’s possible that she has some sort of medical or mental health condition that would cause her to respond in this manner when under stress. However, since the prosecution refused to answer to repeated requests from the defense to produce her medical and mental health records no one will ever know. It does seem odd though that she appeared much less forgetful when the Asst. DA posed questions to her after the defense finished his cross examination. I am reminded at this time of a quote from Mark Twain, “If you tell the truth you don’t have to remember anything.”
After the star witnesses cross examination there were a number of other witnesses for the prosecution that testified on Wednesday and Thursday. Some of those witnesses were unremarkable and not worth a mention while others were quite memorable. The three prosecution witnesses that most stand out in my memory are Lt. Travis Willey, the former Police Chief of Gouldsboro PD and Officer Harry Larrabee who is currently with Gouldsboro PD. I don’t recollect the former chief’s name so I will just call him Chief Wiggum.
Lt. Willey was the officer who answered the call to pick up the star witness as she did her mad dash down the street and through the blueberry fields in bare feet wearing nothing but a bra and black pants. Shockingly she was also carrying her toddler son on her hip at the time. According to Lt. Willey and the audio of the event it took about an hour and a half to get to their final destination where she could be psychologically evaluated. He spent a good deal of that time chasing after her, convincing her to turn the toddler over to him, putting her in restraints and driving to the hospital. Part of the audio of this can be heard by clicking here.
The jury heard about 35 minutes of the 90 plus minute audio of this event during the trail. They were advised that they could take the audio in with them when they deliberated if they felt the need. One of the things she alleged in this recording was that her husband had sexual molested the children. That accusation was investigated by DHHS and found unsubstantiated/to have no merit. During her mad dash she threatened to kill the officer, her husband and pretty much anyone who stood in her way. She suggested that a cousin of hers would help her kill her husband. One minute she was raging and threatening to kill someone and the next she was laughing like a person possessed.
Here are some examples of her recorded ramblings, “I will kill you mother f’er,” “You messed with the wrong person…We going to cut you to pieces,” “He’s going to die because I’m going to f’ing kill him myself,” “You’re going straight to Hell and you know what? I am going straight to hell too but you know what? I’m going to enjoy it…” and “I’m not crazy, I’m not crazy.” At one point in the recording you could hear her kicking violently with her feet hitting some hard surface (perhaps the back of the front seat in the police car).
You can hear Lt. Willey say in the audio that she is “right certifiable.” Asst. DA Cavanaugh tried to convince the jury that the star witness acted this way because as an abused woman she was at the end of her rope because help couldn’t come fast enough for her to protect herself and her children from a controlling, abuser and rapist. I don’t think the jury bought that theory though.
SIDE BAR: I understand that the audio also contains an accusation made by the star witness against Lt. Willey. When they arrived at the hospital she accused Lt. Willey of hurting her and he denied it. If the jury was to believe that the star witness was a victim at the end of her rope as Asst. DA Cavanaugh claimed then what about her falsely accusing her husband and Lt. Willey? Should they also just ignore the fact that she falsely accused both of them?
I wasn’t too surprised when I noticed one of the jury members wiping tears from her eyes when listening to this audio. Others saw a few more jury members dabbing their eyes also. It was a deeply disturbing audio of a woman over the edge, who wouldn’t have been touched and concerned by what they heard?
State v Filler May 26, 2011
The next noteworthy witness for the prosecution was Officer Harry Larrabee. Officer Larrabee was the first person that the star witness spoke with at the police department about the alleged assaults. BTW, did you know that someone can just call the police, report that they were assaulted by their spouse a few weeks ago and without any face to face interview or written and sworn testimony from the accuser a person can be charged with domestic assault? Maybe I am just naïve but I was shocked to hear that this could happen. Officer Larrabee’s testified that he took the complaint over the phone and then went straight to the Filler house to charge Vladek with assault. Pretty scary stuff.
Officer Larrabee also testified that when he met with the star witness face to face on Sunday he asked her if she had any bruises from being grabbed by the arms and pushed down into a chair (from the 2007 assault). Officer Larrabee reported that he asked the star witness to her pull up her short sleeves and he looked at the front, back and sides of her arms and found no indication of a bruise.
Former Chief Wiggum took the witness stand after Officer Larrabee. He testified that that he met with the star witness a day after Officer Larrabee had on Monday and that she showed him a bruise on her arm and he took a picture of it. That picture of the bruise was enlarged to the size of a piece of 8 ½ by 11 piece of paper and submitted as evidence. I don’t know about you but I find it telling that there was no sign of a bruise anywhere on her arms on Sunday but by Monday there was a bruise to be photographed.
Chief Wiggum testified that he was one of the investigators who assisted with the collection of evidence of the alleged 2007 sexual assault crime scene. He testified that he and another officer (whose name eludes me also so I will just call him Eddie ) went into the Filler home with an arrest and a search warrant. The star witness told them to look for condoms and lubricant…these items were not found. I was a little confused because I thought the star witness testified that he didn’t use lubricant.
Chief Wiggum and Eddie dusted the dryer/washer for hand and face prints and took the two throw rugs that were on the floor in the bathroom to test for semen. Chief Wiggum testified that they found no prints on the dryer/washer and no semen on the rugs. The defense asked Chief Wiggum whether or not the clothing worn by the star witness and the accused during the alleged sexual assault was collected. He testified that it was not.
SIDE BAR: Vladek took the witness stand on Thursday. During his testimony he described the approximate size of the bathroom where the alleged assault occurred. There were also pictures (regular size not 8 ½ by 11” like the bruise picture) of the bathroom submitted into evidence. Vladek testified that the space between the dryer/washer and the wall opposite these appliances was literally not even wide enough for two people to occupy at the same time. Someone once told me that the more absurd a scenario is the more believable it is….
So Chief Wiggum and Eddie took pictures, collected two throw rugs, dusted for finger/face prints and search for condoms and lubricant that the star witness said they would find but did not collect the clothing each person was wearing. I would have thought collecting the clothing worn during the alleged assault important given that the star witness said that she felt sperm run down her leg after the sexual assault and that her pants were around her ankles. Maybe I just watch too much NCIS.
SIDE BAR: The court took a morning break during Chief Wiggum’s testimony. He was to return to the witness stand after the break for further cross examination. Only a few people stayed in the courtroom during the break. The bailiffs stepped out for a few minutes. I happened to walk back into the court room while attorney Smith was conferring with his client just outside the court room door. I sat down and immediately noticed that Chief Wiggum was stretching his neck to read the notes left on the podium by the defense attorney. I didn't think that attorney Smith would appreciate having his notes read by the prosecution's witness so I shot out of my seat and rushed to let attorney Smith know that Chief Wiggum was reading his notes on the podium. Attorney Smith made a bee line into the court room.
State v. Filler May 27, 2011
The State and the defense presented their closing arguments on Friday morning. Some of the highlights were:
Asst. DA Paul Cavanaugh, as I mentioned before, asked the jury to view the star witness’s “certifiable” moments with Lt. Willey as an abused woman’s cry for protection and help rather than as a mentally unstable woman’s need of hospitalization. He also told the jury that in the real world evidence collection by police investigators at crime scenes are rarely as substantial or definitive as what you see on TV shows like NCIS. He mentioned that NCIS crime scene investigators always seem to find the evidence they need to prove their case but in the real world that just doesn’t happen. However, he criticized the police's handling of the investigation in this case quite a bit.
Attorney Smith asked the jury, (and I am paraphrasing here) was the star witness was barking mad or was she clever as a fox? Vladek's main defense was that the star witness made up the assault allegations to get revenge for him wanting to divorce her and have custody of the children. He reminded them about Nathan’s testimony of witnessing the 2005 argument and that he saw his mother punch his father in the face knocking his glasses off and breaking them but never saw his father strike or throw water at his mother.
Closing arguments went on for about 90 minutes and then the jury received their instructions from the judge before then went into deliberation. One of the instructions was on the definition of circumstantial evidence. The judge used an analogy about snow to explain what circumstantial evidence was and again I am paraphrasing here but basically he said if they look out at bedtime and see that there is no snow on the ground but when they wake up they see snow, they can reasonable assume that it snowed during the night. They didn’t see it snow but they have circumstantial evidence that it did snow.
The jury went to deliberate. After about 75 minutes of deliberation the jury asked for a lunch break. They came back from lunch at around 1:15pm and went back to deliberations. Waiting for the verdict was agonizing, the minutes passed like hours, hours passed like days. The jury was finally ready to render their verdict at 4pm. We all rushed back into the court room.
Vladek had three criminal charges against him, two misdemeanor assaults, i.e. for allegedly throwing water at the victim in 2005 and for grabbing the star witness by the arms and pushing her down into a chair in 2007, and one felony charge of gross sexual assault. If they found him guilty of the gross sexual assault Vladek could have been put away behind bars for many years.
The jury’s verdict: Not guilty of the 2005 assault, Not guilty of gross sexual assault, Guilty of the 2007 assault.
A few observations:
When the forewoman read the verdict something strange happened to her voice. She was completely audible when she read the not guilty for the 2005 assault but her voice was almost a whisper and she seemed to have a difficult time saying not guilty on the gross sexual assault charge. The judge had to ask her to repeat the verdict. I don’t know if this has any relevance but we heard that there was a lot of loud arguing going on in the jury’s deliberation room at times. BTW: She was one of the jurors that we saw wiping away tears as she listened to the disturbing audio.
I would love ask the jury how they came to find Vladek was guilty on the 2007 assault charge. I have a hunch that they remembered that big 8 ½” by 11”picture of the bruise on the star witnesses arm taken by Chief Wiggum three days after the alleged incident and forgot about the fact that there was no indication of a bruise when Officer Larrabee examined her arms the day before Chief Wiggum.
We were all grateful that the jury reached the right conclusions and found Vladek not guilty of the alleged 2005 assault and 2007 gross sexual assault and disappointed that they found him guilty of the 2007 assault. He may appeal the conviction.
No date has been set for sentencing on that charge at this time. Since the charge is a misdemeanor Vladek may have to pay a fine, be mandated to some type of batterer’s intervention class and/or receive up to 364 days in jail. It’s all up to Judge Murray. If his sentence includes jail time the guardian ad litem i.e. the lawyer for the children, who testified at the trial the first day recommended that the children stay in the custody of their fraternal grandmother and aunts in Georgia and not be given to their mother.
Some further observations:
The State got to present their case from Tuesday morning 8:30am until Thursday morning 11:30am while the defense only had about three hours on Thursday afternoon to present their case.
After the State rested the prosecutor and defense attorney went into the judge’s chambers. The defense attorney made a motion to dismiss on the grounds that the prosecutor lacked enough evidence for a conviction. A newspaper reporter from the Bangor Daily News was allowed to go into the judge’s chambers with them during this procedure. It seemed odd but perhaps it happens all the time…
If you think something like this can’t happen to you well so did Vladek at one time….
The opinions expressed here are those of Jan Brown and not necessarily that of the Filler family or the Domestic Abuse Helpline for Men and Women.