The Maine Supreme Judicial Court on Thursday ordered the remainder of jury selection in the trial of Kennebunk prostitution defendant Mark Strong Sr. to be conducted in public.
The Portland Press Herald/Maine Sunday Telegram had sought an opinion from the Supreme Court after challenging York County Superior Court Justice Nancy Mills’ decision to close the jury selection process, known as voir dire, to the public.
Mills said she was worried prospective jurors would not be candid if the proceedings were held in public.
On Thursday, the state’s top court first ordered Mills to stop the secret jury selection process and then, in a 6-1 decision, ordered her to open the rest of the process to the public and release transcripts of the closed-door sessions.
“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,” said the opinion, written by Chief Justice Leigh I. Saufley. She was joined in the opinion by the other justices, except Justice Donald Alexander, who was the lone dissenter.
Strong, 57, of Thomaston, is accused of being a business partner with defendant Alexis Wright in an alleged prostitution operation operated in a fitness studio in Kennebunk. He has pleaded not guilty to 59 counts related to promoting prostitution and invasion of privacy.
Wright, 30, of Wells, is scheduled to stand trial on 106 counts in May. She has pleaded not guilty to all charges, including promotion of prostitution, engaging in prostitution, invasion of privacy, conspiracy, tax offenses and receiving welfare benefits when ineligible.
The case has drawn so much attention in part because Wright is suspected of keeping a meticulous list of more than 150 names of customers, including prominent figures. Affidavits filed by police seeking search warrants earlier in the investigation indicate that Strong may have helped Wright record her encounters with her customers on video.
So far, 66 people have been charged in connection with being Wright’s customers. The names of 18 men who have pleaded guilty or been found guilty of engaging Wright for prostitution have been included on the prosecution’s witness list.
The court’s decision “may change the way jury selection is done” to ensure 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,” Sigmund D. Schutz said.
“Jury selection is an incredibly important part of a criminal trial. 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 the jury selection process 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 both protect the innocent and serve the public’s interest in maintaining confidence in the criminal justice system.
Mills did not respond directly to the ruling in court Thursday, although she did say dryly at one point, “Everything I’ve done in the past few days has been appealed.”
Saufley had stopped ongoing jury selection Thursday morning, pending further review. Mills addressed the chief justice’s stay at the end of a hearing on several motions, including one by Strong’s attorney, Daniel Lilley, to dismiss about half the charges against Strong.
“There are multiple scenarios I can envision on how the trial will proceed,” she said Thursday, while the full court’s ruling was still pending, but did not specify what those possibilities could be.
It was unclear whether any jurors have been seated in the trial yet. Multiple groups of jurors were brought up to a private room for questioning by the judge, prosecutors and defense attorneys, but no information was released about who was excused from the jury pool or selected for the trial.
Mills recessed the trial early Thursday afternoon and dismissed the jury pool for the rest of the day after hearing several motions from lawyers for the state and for Strong, unrelated to jury selection, and held a conference call with prosecutors and defense attorneys late Thursday afternoon to decide how to proceed with the trial.
The trial is expected to last about three weeks once a jury is chosen.
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 probably was concerned about the ability to find a fair jury in a case that has received international publicity. That, combined with a court’s general sensitivity to the privacy of jurors, probably led to Mills’ decision to conduct the process behind closed doors with the lawyers for both sides.
And in fact, Mills had said earlier this week, in rejecting the Press Herald’s motion to open the jury selection process, that the case had received widespread media attention and she had promised potential jurors confidentiality in an effort to make sure they answered honestly.
The jurors were asked to fill out 10-page questionnaires that delved into their opinions on issues such as whether prostitution should be legal, their willingness to watch videotapes of sexual encounters and their exposure to publicity about the case, which has attracted worldwide attention. They also were questioned on their opinions of religion, pornography, prostitution, adultery and government spending, according to a blank questionnaire that Mills distributed to the media.
“I can easily imagine that there is a concern that there isn’t a big enough jury pool,” Burke said, but he added, holding the process of picking a jury openly will give the public more confidence that a correct decision will be reached if a jury is seated in York County or the trial is moved.
“They can say, ‘Yeah, we saw that,’” he said, if the public sees what led to the decision.
Melvyn Zarr, another professor at the law school, said a quick review of the Supreme Court’s ruling suggests that the justices are mindful of the difficulties of the trial Mills is handling.
“It’s a situation in which everybody has heard about this, well beyond the confines of York County,” Zarr said. “What she’s trying to do is to adopt procedures that would get a fair jury.”
Schutz said he, too, is aware that Mills is in charge of a case that has attracted international attention, but often the test of a justice system is “how we handle these high-profile cases.”
While Mills has discretion in how to conduct the trial, Schutz said, “in this case, the closure went way too far.”