(CHRISTOPHER K. MACLEAN — RICHARD A. MCKITTRICK PAMELA G. TERRY. PETER G. WARREN SARAH | GILBERT — Retired — KATHERINE C. GIBSON te caMDEN — limes sie 966 LAW an esos March 26, 2018 VIA HAND DELIVERY Brooke Otis, Clerk Waldo Unified Criminal Docket 103 Church Street Belfast, Maine 04915 Re: State of Maine v. Sharon Carrillo Docket No. WALCD-CR-2018-146 Dear Brooke: Enclosed for filing on behalf of the Defendant, in connection with the above-referenced matter, please find an Addendum to the Expedited Motion for Protective Order filed with this Court on March 21, 2018. Please also find a Motion to Disqualify. Please contact my office with any questions you may have. Thank you. Very truly yours, CAMDEN LAW LLP na Laura P. Shaw, Esq. LPS:kav Enclosure cc: —_Leane Zainea, Assistant Attorney General Sharon Carrillo ‘CAMDEN LAW LLP | Camden Law LLP is a merger of the firms McKittrick & Warren, PA, and Elliott, MacLean, Gilbert & Coursey, LLPSTATE OF MAINE UNIFIED CRIMINAL DOCKET WALDO, SS CRIMINAL ACTION Docket No. WALCD-CR-2018-146 STATE OF MAINE ADDENDUM TO EXPEDITED MOTION FOR PROTECTIVE ORDER v. SHARON CARRILLO, Defendant. NOW COMES the Defendant, Sharon Carrillo, by and through her attorneys, Christopher K. MacLean, Esq. and Laura P. Shaw, Esq., and submits this Addendum to the Expedited Motion for Protective Order filed with the court on Wednesday, March 21, 2018, as follows. 1. On March 21, 2018, Defendant filed an Expedited Motion for Protective Order in this court in response to receiving a copy of a subpoena sent by the State to the Maplebrook School (the Maplebrook subepona). In that motion, Defendant pointed out the various procedural rules, ethical rules, and constitutional ‘provisions violated by the Maplebrook subpoena!; asked the court to order’ that the State immediately turn over to the court any and all 1 In addition to rules previousiy cited, the Maplebrook subpoena and the subpoena referenced in this motion (the Walmart subpoena) both violate provision 17A(a) of the Maine Unified Rules of Criminal Procedure. Specifically, although a subpoena may be issued and signed by a member of the Maine Bar, “[tJhe text of subdivisions (d) [referring to the ability to file a motion to quash or modify a subpoena], (e) [referring to sanctions for non-compliance of a subpoena] and (i) [referring to privileged or protected documentary evidence] of this Rule shall be contained in, or appended to, the subpoena.” M.R.U.C.P. 17A(a). Here, the subpoenas were drafted and signed by the State, and neither subpoena contained any of the language required by sections (d) = (. The fact that the language of 17A(f), concerning privileged or protected documents, was not contained in the subpoena was undoubtedly a contributing factor to the quick response by the Maplebrook School. Had the school been put on notice of the rule as required, the records most likely would not have been sent.records received in response to the subpoena; and asked that the court impose sanctions, including that the court prohibit the State from using or accessing the Maplebrook records or any information contained therein in any way whatsoever with regard to this case. 2. Also on March 21, 2018, a copy of that motion regarding the Maplebrook subpoena was sent via email to both AAG’s assigned to this case. 3. On March 22, 2018, Defendant received a nearly identical “subpoena” that had been sent by the State to Newburgh Walmart Supercenter in Newburgh, NY on March 20, 2018. (See attached, Exhibit C.) The subpoena sought the production of employment records, which are confidential pursuant to New York and federal law. 4. The Walmart subpoena was sent to a New York entity; commanded a representative of that New York Walmart to appear to “testify” on April 6, 2018; did not contain the language required under provisions 17A (d) - (f) of the Maine Rules of Unified Criminal Procedure; and stated that in lieu of appearing and testifying, Walmart could simply email the confidential employment records to the Attorney General's office. 5. Upon receipt, on March 22, 2018, undersigned counsel immediately sent a letter to Walmart asking it not to respond to the subpoena. (See attached, Exhibit D.) Undersigned counsel called and asked to speak to someone at the store, but was unable to connect with anyone with information about the subpoena. 6. Undersigned counsel also reached out to the Attorney General’s office and asked it to also advise Walmart not to send the records. Shortly thereafter, the Attorney General’s office did send a fax to Walmart stating that it was no longer seeking the material requested in the subpoena, and askingthat it please disregard the subpoena. (See attached, Exhibit E.) 7. Out of an abundance of caution, Defendant is asking this court to order that in the event records were received in response to the Walmart subpoena, or in the event records are received in response to the Walmart subpoena at any time going forward, the State immediately notify the Defendant and the court; the State refrain from looking at or reviewing the records in any way whatsoever; and that those records immediately be turned over to the court and placed under seal. 8. Furthermore, it is concerning that the Attorney General’s office waited for undersigned counsel to ask before rescinding the subpoena, despite being put on notice of the various violations made by the subpoena the day before. Defendant requests that the State be sanctioned, including but not limited to being prohibited from using or accessing any records sought by the subpoena or the information contained therein in any way with regard to this case, 9, Finally, in considering the appropriate sanctions requested by the Motion for Expedited Protective Order filed on March 21, 2018, and this addendum, this court should consider Defendant’s Motion for Disqualification of Counsel, which is being filed contemporaneously herewith. WHEREFORE, Defendant respectfully requests that in the event records were or are received in response to the Walmart subpoena, the State be ordered to notify the Defendant and the court, refrain from reviewing or looking at the records, and immediately turn the records over to the court to be placed under seal; that the State be prohibited from using or accessing those records or the information contained therein in any way with regard to this case; and that this Honorable Court issue any further orders necessary to protect the integrity of the judicial process.Datea: | Ve | Vb CAE Laura P. Shaw, Esq. (Bar No. 5631) Attorney for Defendant CAMDEN LAW LLP 20 Mechanic Street Camden, Maine 04843 (207) 236-8836 CERTIFICATE OF SERVICE I hereby certify that on this 2G‘day of March, 2018, a copy of the foregoing Addendum to Expedited Motion for Protective Order was mailed by first class mail, originating in Camden, Maine, postage prepaid to Leane Zainea, Assistant Attorney General, and Donald Macomber, Assistant Attorney General, at 6 State House Station, Augusta, Maine 04333-0006. Ce Laura P. Shaw, Esq.AGCRM-18-021 STATE OF MAINE ‘UNIFIED CRIMINAL COURT WALDO, ss. DOCKET NO.: CR-18-146 CR-18-147 STATE OF MAINE SUBPOENA TO PRODUCE DOCUMENTS (MLR.U. CRIMP. Rule 17A) SHARON CARRILLO. & JULIO CARRILLO To: Newburgh Walmart Supercenter tin: Personnel Newburgh, NY 12550 VIA FAX: 845-567-1909 You are hereby commanded to appear before the Waldo County Court located at the Waldo County Courthouse, 137 Church Street in Belfast, Maine on April 6, 2018 at 9:00 a.m. to testify and produce the following: Please bring with you the following: any and all employment records for SHARON CARRILLO (DOB: 11/17/1984), SHARON KENNEDY (DOB: 11/17/1984), and JULIO CARRILLO (DOB: 09/10/1966) This subpoena: (@) commands your appearance on April 6, 2018 at 9:00 a.m. until dismissed by the Court, and (bd) is issued on application of the State of Maine. A copy of this subpoena has been mailed to defendant Sharon Carrillo's attorneys, Christopher K, MacLean, Esq. and Laura Shaw, Esq. at Elliott, MacLean, Gilbert & Coursey, LLP, Attorneys at Law, 20 Mechanic Street, Camden, Maine 04843 and defendant Julio Carrillo’s attorney Steven C. Peterson, Esq. at Law Office of Steven C. Peterson, 643 Rockland Street, Suite B, P.O. Box 330, West Rockport, Maine 04865, NOTE: In lieu of appearing personally before the Waldo County Court, you may comply with this subpoena by providing copies of the requested information together with a certificate identifying them as your business records by email to Assistant Attorney General Donald Macomber at ‘ag.criminal@maine.gov or by fax at (207) 287-3120. The original certificate, attached to the records, ‘should be mailed to: Donald Macomber, AAG, Office of the Attorney General, 6 State House Station, ‘Augusta, ME 04333-0006, Ifyou have any questions, contact the undersigned attomey for the State. Dated: March 20, 2018 a Donald Macomber, Assistant Attorney General Maine Bar Registration No. 6883 6 State House Station Augusta, ME 04333-0006 (207) 626-8507 Fax: (207) 287-3120 | |CERTIFICATE OF AUTHENTICITY OF BUSINESS RECORDS Pursuant to Maine Rules of Evidence 803(6) and 902(L1) 1 attest on penalty of criminal ‘Pras punishment for false statement or false attestation that I am employed by Pease pit) — _and that my official ttle is Pie ay I further state that each of the records attached hereto is/are the original records which are maintained in the custody of __ _ rT | further state that: A) such records were made, at or near the time of the occurrence of the ‘matters set forth, by (or from information transmitted by) a person with knowledge of those matters; B) such records were kept in the course of a regularly conducted business activity; ©) the business activity made such records as a regular practice; and D) _ifsuch reconis is not the original, such record is a duplicate of the original, | certify on penalty of criminal punishment for false statement or false attestation that the foregoing is true and accurate to the best of my knowledge and belief. Executed on Date ‘Sworn to before me and subscribed in my presence, this __day of » 2018. ‘Notary Publi Stamp and SealCHRISTOPHER K MACLEAN — PANELAG. TERRY ‘SARAH CLBERT — KATHERINE C. GlesoN — sin peal CAMDEN enn Elegie LAW tose March 22, 2018 Sent via fax to 845-567-1909 Newburgh Walmart Supercenter Attn: Personnel Newburgh, NY 12550 ‘To Whom It May Concern: I represent Sharon Carrillo, formerly known as Sharon Kennedy, in her criminal matter currently pending in the State of Maine. I understand the State of Maine Attomey General’s office has sent you a document purporting to command you to provide any and all student records for Sharon Kennedy. Please note that this is not a valid subpoena, and Ms. Carrillo is expressly objecting to the release of any documents that have been requested by the State of Maine Attomey General's Office. Under Maine law, a subpoena requesting the production of documents such as the one sent to you has no power to compel the production of documents outside of the State of Maine. Furthermore, please note that under Maine law, prior to seeking privileged or protected documentary evidence in a criminal matter, an attomey is required to seek authorization from 2 judge. MR.U.CP. 17A(®). The Assistant Attorney General has not done so in this case. As a result, any documents provided in response by you. would constitute a violation of Ms. Carrillo’s privacy rights to privileged employment documents. Please confirm that you will not be releasing any documents in response to the subpoena. Please contact my office with any questions or concems, Very truly yours, CAMDEN LAW LLP A— —— ‘Laura P. Shaw, Esq. co: Sharon Carrillo ‘CAMDEN LAW LLP | Camden Law LLP Is 2 merger of the firms Mckittrick & Warren, PA. and Elliott, MacLean, Gilbert & Coursey, LLPREGIONAL OFRES: Janer T, MILLS [ATTORNEY GENERAL SAHaRLow St, 2" FL008 DaNcon, Man 0440) Tet: (207) 941-3070 Pax: (07) 9413075, STATE OF MAINE «415 CONGRESS ST, STE_301 = PORTLAND, MAINE @si01 OFFICE OF THE ATTORNEY GENERAL Tae anny s320260, 6 STATE HOUSE STATION Fa: (207) 822-4259 pen ear AUGUSTA, MAINE 04333-0006 TTY: 1-888-577-6090 ACCESS HIGHWAY, STE. 1 EAIBOU, MAINE 04736 ‘eu 207) 496-3792 Pras @07)496-3291, To: Newburgh Walmart Supercenter Attn: Personnel 1201 Route 300 Newburgh, NY 12550 Date: March 22, 2018 Fax Number: 845-567-1909 From: Samantha Sirois, Trial Assistant Paralegal Re: URGENT ~ RECINDING SUBPOENA This transmission is__4 __pages, including this cover sheet. THIS FAX SERVES TO RECIND THE SUBPOENA TO PRODUCE DOCUMENTS THAT WAS FAXED TO THIS NUMBER ON MARCH 20, 2018. DO NOT SEND US ANY RECORDS PURSUANT TO THAT SUBPOENA AND DISREGARD IT IN ITS ENTIRETY. CONFIDENTIALITY NOTICE: This message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender and destroy all copies of the original message.Ryowowat Orrters 4 Hantow Sr. 2p FLoon Bawoos, Marne 04401 Tai: (207) 941-3070 Fax: (202) 941-3075 Janer T. Mus won) [ATTORNEY GENERAL 425 Conontss 1. Seu. 301 Ponrianiy, Mazne 04101 Tau: (207) 822-0260 Fax: (207) 822.0259 Srare oF Marnn Ovrice oF THE Atronney Gunenar 6 Stare House Stav10N Avousta, Maine 04333-0006 14 Access Huonway, Se. 1 Cantsou, Maine 04736 ‘Tet: (207) 496-9792, (207) 496.3291 ‘TEL: 207) 926-8000 ‘TTY USERS CALL MAINE RELAY 711 March 22, 2018 Newburgh Walmart Supercenter Attn: Personnel 1201 Route 300 Newburgh, NY 12550 VIA PAX: 845-567-1909 Re; Subpoena to Produce Documents Dated March 20, 2018 Dear Sir or Madam: We are no longer seeking any records pursuant to this subpoena. Please refrain from sending us the material requested in this subpoena and disregard, I have attached a copy of the subpoena that was faxed on March 20, 2018. Please contact me at 207-626-8514 or Jeane.zainea@maine.gov if you have any questions. piicerely, ? Leane Zainea Assistant Attorney General Office of the Attorney General L2Jsbs EnclosureAGCRM-18-021 STATE OF MAINE UNIFIED CRIMINAL COURT WALDO, ss. DOCKET NO.: CR-18-146 CR-18-147 STATE OF MAINE ) ) ve ) ) SUBPOENA TO SHARON CARRILLO ) PRODUCE DOCUMENTS ) (MLR.U. CRIMP. Rule 17) & ) ) JULIO CARRILLO ) To: Newburgh Walmart Supercenter Attn: Personnel Newburgh, NY 12550 VIA FAX: 845-567-1909 You are hereby commanded to appear before the Waldo County Court located at the Waldo County Courthouse, 137 Church Street in Belfast, Maine on April 6, 2018 at 9:00 a.m. to testify and produce the following: Please bring with you the following: any and all employment records for SHARON CARRILLO (DOB: 11/17/1984), SHARON KENNEDY (DOB: 11/17/1984), and JULIO CARRILLO (DOB: 09/10/1966) ‘This subpoena: (a) commands your appearance on April 6, 2018 at 9:00 a.m. until dismissed by the Court, and (b) _ is issued on application of the State of Maine. ‘A copy of this subpoena has been mailed to defendant Sharon Catrillo’s attorneys, Christopher K. MacLean, Esq. and Laura Shaw, Esq. at Elliott, MacLean, Gilbert & Coursey, LLP, Attorneys at Law, 20 Mechanic Street, Camden, Maine 04843 and defendant Julio Carrillo’s attorney Steven C. Peterson, Esq. at Law Office of Steven C. Peterson, 643 Rockland Street, Suite B, P.O, Box 330, West Rockport, Maine 04865. NOTE: In liew of appearing personally before the Waldo County Court, you may comply with this subpoena by providing copies of the requested information together with a certificate identifying them as your business records by email to Assistant Attorney General Donald Macomber at oag.criminal@maine.gov or by fax at (207) 287-3120. The original certificate, attached to the records, should be mailed to: Donald Macomber, AG, Office of the Attorney General, 6 State House Station, ‘Augusta, ME, 04333-0006. Ifyou have any questions, contact the undersigned attorney for the State. Dated: March 20, 2018 [ees Donald Macomber, Assistant Attorney General Maine Bar Registration No. 6883 6 State House Station ‘Augusta, ME 04333-0006 (207) 626-8507 Fax: (207) 287-3120CERTIFICATE OF AUTHENTICITY OF BUSINESS RECORDS Pursuant to Maine Rules of Evidence 803(6) and 902(11) 1 , attest on penalty of criminal ‘Pei punishment for false statement or false attestation that I am employed by Pease pe) and that my official ttle is Passa I further state that each of the records attached hereto is/are the original records which are maintained in the custody of a I further state that: |A) such records were made, at ornear the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with | knowledge of those matters; | B) such records were kept in the course of regularly conducted business ys ©) the business activity made such records asa regular practice; and a 1D) _ifsuch records is not the original, such record is a duplicate of the original. I certify on penalty of criminal punishment for false statement or false attestation that the foregoing is true and accurate to the best of my knowledge and belief. Executed on Date Signature Sworn to before me and subscribed in my presence, this_ day of 2018. ‘Notary Public Stamp and SealSiseieioiocbiedk “IND. XT JOURNAL— kkdmncioeccone® DATE HAR-22-2018 DATE/TIME. = MAR-22-2018 13:59 JOURNAL No. = @3 cole. RESULT = 0K PAGECS) = 004 DURATION, FILE te. = 240 ae = MEMORY TRANGHISSION DESTINATION = 98455671909 RECEIVED ID = RESOLUTICN = STD “ATTORNEY GENERAL. ehokteboociacobabiolacaapnebljoecem “ATTORNEY GENERAL stinkie 2E73120- Kime KOESTATE OF MAINE UNIFIED CRIMINAL DOCKET WALDO, SS CRIMINAL ACTION Docket No. WALCD-CR-2018-146 STATE OF MAINE. ) } v, ) MOTION TO DISQUALIFY WITH ) INCORPORATED MEMORANDUM SHARON CARRILLO, ) OF LAW ) Defendant. ) NOW COMES the Defendant, Sharon Carrillo, by and through her attomeys, Christopher K. MacLean, Esq. and Laura P. Shaw, Esq., and moves this Honorable Court to disqualify the Attomey General’s office, including but not limited to Donald Macomber, AAG and Leane Zainea, AAG, from prosecuting this case, as follows. 1. This motion is filed as a companion motion to the Motion for Protective Order previously filed in this court, ‘This Motion to Disqualify sets forth the relief sought by Defendant for the prosecutorial misconduct that resulted in the State's obtaining 73 pages of confidential and privileged records from the Maplebrook School which are protected by New York and federal law. Defendant files this separate Motion to Disqualify is filed — rather than simply seeking the same relief through the Motion for Protective Order ~ given the significance of the legal, procedural, and ethical implications at stake. 2. On March 16, 2018, the State of Maine Attomey General’s Office sent a “subpoena” improperly seeking privileged and confidential school records from the Maplebrook School in Amenia, New York. That subpoena was received by the Maplebrook School on March 19, 2018. Shortly thereafter, the school promptly sent all records in its possession to the Attorney General’s office, which included progress reports, report cards, an individualized education plan, and a psychological testing and analyses of Sharon Carrillo marked “CONFIDENTIAL.” In total, 73 pages of highly sensitive, privileged, and confidentialinformation was sent to the Maine Office of the Attomey General 3. Counsel for Defendant leamed of the “subpoena” and that records had been produced in response to the subpoena on March 21, 2018. Defendant filed a motion on that same date asking that the Attorney General’s office be ordered to turn the records over to the court, A. copy of the motion was emailed to the Attomey General’s office. See Expedited Motion for Protective Order March 21, 2018 and Addendum to Expedited Motion for Protective Order, filed herewith. As of today, the Office of the Attomey General still has possession of the privileged and confidential records and has not turned them over under seal to the court. This should have been done immediately. 4. Asset forth more fully below, it is difficult to imagine a more egregious abuse of process than what has occurred. A subpoena is a powerful and coercive tool; indeed, a nonparty who fails to obey a subpoena is subject to an “order of arrest.” MR.U.CP. 17A(¢). Lawyers in Maine are charged with the ethical obligation to use them strictly within the confines of the law. One of the limitations of a subpoena issued through a Maine court is that it is valid only within the borders of the State of Maine. All lawyers in Maine know this. This fundamental principle is not limited to Maine ~ it is the same in every state, The prosecutors knew that use of a subpoena in New York was unlawful on its face. A second limitation that applies to all criminal subpoenas in Maine is that they cannot be sent without prior court approval to any non-party if the subpoena seeks information “that may be protected from disclosure by a privilege, confidentiality protection, or privacy protection under federal law, Maine law...or the Maine Rules of Evidence.” M.R.U.CP. 17A(). When protected records are sought, the rules do not even allow the subpoena to be served on the non-party absent a court order. Jd, Moreover, in order even to be a subpoena, the rules require that the subpoena contain warnings that put the non-party on notice that privileged and confidential records cannot be released absent a court order. MR.U.CP. 17A(a) (“The text of subdivisions (a), (e), and (f) shall be contained in, or appended to, the subpoena.”) This requirement is an added safeguard so that if a Maine attorney were to violate the ethical and procedural rules, the recipient of the subpoena would at least be made aware that the records could not be released without a court order. ‘The “subpoena” employed by the Office of the Attomey General failed to contain any of the required warnings.Finally, the subpoena falsely indicated that the recipient of the subpoena needed to appear in court on April 6, 2018 to testify. This falsely created a sense of urgency on the part of the Maplebrook School to provide the privileged and confidential records in order to avoid the extreme inconvenience of traveling to Maine. There was no court event scheduled for April 6, 2018. 5. Insum, the Maine Office of the Attorney General used a “subpoena” which (1) it knew had absolutely no legal validity; (2) to obtain privileged and confidential documents protected under state and federal law — and which contained highly sensitive psychological records; (3) without seeking prior court approval; (4) using a subpoena that did not even contain mandatory warnings relating to the very procedural and ethical violations that took place; and (5) falsely stated that the recipient was required to appear for a non-existent court date to testify if the records were not produced. As a result of these serious and ethical violations, the prosecutors in this case are in possession of a trove of confidential information that they are not entitled to have or ever see. 6. The only appropriate remedy in this case is disqualification of the Attorney General’s office from the prosecution of this matter. In the event the documents have been already been reviewed by the Attorney General’s office, the entire office has been tainted by that review. Even if the records have not actually been reviewed, the appearance of impropriety is such that disqualification is required, and disqualification is necessary to deter this conduct from occurring in the future, sanction the specific prosecutors involved, restore the integrity of the process, and protect the Defendant’s right to due process and a fair trial. MEMORANDUM OF LAW Whether a prosecutor should be disqualified or removed from a matter due to prosecutorial misconduct that revealed confidential information of the Defendant, but did not involve a Sixth Amendment violation, has not been addressed by the Law Court. However, it is clear that the trial court has discretion to decide whether or not to disqualify an attomey, as well as discretion to issue an appropriate sanction or remedy to prosecutorial misconduct. In view ofthe conduct that has occurred — and the centrality of Defendant's intellectual and mental health capacity in this particular case — disqualification is the only appropriate remedy to the conduet at issue. First, disqualification has been used in this State as an appropriate remedy in circumstances when a prosecutor’s office has improperly obtained confidential information about a Defendant. See State of Maine v. Paul Olsen, YORCD-CR-2012-1940 (transferred from the York County District Attomey’s office to the Cumberland County District Attomey’s office after the York County District Attorney's office improperly obtained confidential information regarding the Defendant). A copy of the motion filed by the Defendant in State v. Olsen is attached as Exhibit A. In that case, the State had improperly reviewed Defendant’s ex parte motion fo secure attendance of an out-of-state witness and accompanying documents. After a hearing, Justice Mills disqualified the York County District Attorney’s Office and transferred the matter to Cumberland County. No written order was issued by Justice Mills, Next, a common ethical rule that disqualifies attorneys from representation or prosecution, of matters — and a useful analogy to the effect of the prosecutorial misconduct at issue in this case ~ is the rule prohibiting representation in the event of a conflict-of-interest. Under the Maine Bar Rules and Rules of Professional Responsibility, the conflict of interest rules are specifically designed to protect confidential information of opposing parties from use by an opposing attomey who has acquired that confidential information outside of the current proceedings. For example, lawyers shall not commence representative adverse to a former client “if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation.” M. Bar. R. 3.4(d)(1)(i). This protection of the use of external confidential information is so important that Maine courts err on the side of caution when determining whether to disqualify an attorney on conflict- of-interest grounds. When disqualification is sought on the basis of the State’s ethical rules, “the party moving to disqualify an attorney has the burden to demonstrate more than mere speculation that an ethics violation has occurred, but doubts should be resolved in favor ofdisqualification.” Casco Northern Bank v. JBI Assocs., 667 A.2d 856, 859 (Me. 1995) (emphasis added). When an attorney has been disqualified under one of the [Maine Bar] rules, “no lawyer affiliated with the lawyer or the lawyer's firm may commence or continue such representation.” M. Bar R. 3.4(b)(3)(i). Even when it is unclear that a conflict of interest based on the use of confidential information exists, courts have stated that continued involvement of the attorney who may have confidential information in its possession “risks an appearance of impropriety too substantial to allow the firm to continue [its representation}” and requires disqualification of the attorney. State v. Kilmartin, 2009 Me. Super. LEXIS 114 (Cumberland Cnty. Super. Ct, May 14, 2009) (emphasis added) Another analogous scenario involves prosecutorial misconduct leading to Sixth Amendment violations, when a prosecutor has improperly obtained information that is privileged or confidential pursuant to the attorney-client relationship or attorney work-product doctrine. In those cases, the United States Supreme Court has stated that the proper approach in the case of a violation is to “identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial.” United States v, Morrison, 449 U.S. 361, 365 (1981). Often, that means the appropriate remedy is disqualification of the office handling the prosecution at issue. See, e.g., Shillinger v. Haworth, 70 F.3d 1132, 1143 (10th Cir. 1995) (prosecutor intentionally intruded upon attorney/client relationship by soliciting deputy to reveal what deputy witnessed of incarcerated defendant's trial preparation with defense counsel; remanding case for trial court to determine proper remedy, including whether prosecutor should be removed from case upon any retrial); United States v. Horn, 811 F.Supp. 739 (D. N.H. 1992) (removing prosecutor who placed paralegal in private document-management company to secretly access defense counsel’s work-product while counsel reviewed discovery); cf In re Meador, 968 S.W.2d 346, 351-52 (Tex. 1998); Richards v. Jain, 168 F. Supp. 2d 1195, 1209 (WD. Wash. 2001). ‘Under both analogous scenarios described above, the first step of the inquiry for the court is to determine whether an ethical violation or misconduct occurred. Here, it is orystal clear that the Attomey General’s office has committed prosecutorial misconduct. The Attomey General’soffice sent a subpoena that did not conform to the rules of MR.U.CP. 17A(@) (omitting mandatory language conserving privilege and confidentiality) to an out-of-state entity over which the subpoena had no legal force or effect; the subpoena purported to command appearance to testify at a hearing did not exist; the subpoena sought privileged ot protected materials without filing a motion in limine first as required in M.R.U.C.P. 17A(Q); and this was all done in order to access Defendant's highly confidential and sensitive records, which were in fact sent to the Attorney General’s office in response to the subpoena. See Expedited Motion for Protective Order, March 21, 2018. While the Rules of Professional Conduct apply to all attorneys, “they apply with particular force to prosecutors because of their status as the community's representatives.” State v. Ashley, 666 A.2d 103, 105 (Me. 1995). The United States Supreme Court described a prosecutor as: the representative of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 US. 78, 88 (1935). The Law Court has endorsed this vision of a prosecutor's role. See, e.g, State v. Young, 2000 ME 144, 16, 755 A.2d 547, 548 (“As we have noted previously, prosecutors are held to a higher standard regarding their conduct during trial because they represent the State . .. and because they have an obligation to ensure that justice is done, as opposed to merely ensuring that a conviction is secured.”) ‘Under the conflict of interest analysis, in the event an ethical violation is found, disqualification of the entire firm associated with the disqualified attomey is mandatory, and the court’s inquiry would end there. Under the analysis used in prosecutorial misconduct cases, the next step for the court would be to determine the “the appropriate relief to assure the Defendant a fair trial.”‘The misconduct that took place has far-reaching consequences for the Defendant in terms of her right to a fair trial, First, the misconduct interferes with Defendant's right to testify at trial. The psychological and testing information that the prosecutors have in their possession provides the prosecutors with a roadmap to the inner functioning of the Defendant’s mind. It describes personal details, including private and sensitive information, it provides detailed analysis of the strengths and weaknesses of her cognitive functioning, it provides testing data, and generally exposes her psychology to the prosecutors. If she testifies at trial, which is her constitutional right, she will know that these prosecutors have read private and sensitive personal information about her which she thought was confidential and secret. She will know that they possess knowledge of her, of her life, of her experiences, and detailed and specific data and conclusions. about every dimension of her cognitive functioning. Therefore, even if the prosecutors were prohibited from using or referring to the information at trial, their knowledge gained from the materials ~ which they had no right to see ~ taints the process and interferes with Defendant's right to testify. Moreover, if the Defendant elects to place her cognitive functioning or mental health in play, the prosecutors have illegally obtained information that they can use to impeach or attack expert testimony offered by the defense that may differ from the result of previous psychological evaluations. Even if the prosecution was prohibited from using the information directly, they would be able to push and explore on cross examination — or through their own expert presentation further develop — aspects of different psychological background and cognitive functioning that they have leamed about through the acquisition of privileged, confidential materials that they were not entitled to ever see. As such, disqualification is the only appropriate relief for the misconduct at issue to ensure that the Defendant receives a fair trial. Cf Horn, 811 F Supp. at 752. Finally, although under either analysis the court is not required to consider the impact of disqualification on the State, itis useful to point out that disqualification of these prosecutors will not prejudice the State. This criminal case is in the very early stages; Defendant had her initial appearance on February 28, 2018 ~ less than one month ago. She has not yet been arraigned. Accordingly, there will be no prejudice to the State in disqualifying these prosecutors,In sum, the prosecutors currently involved in this case have committed prosecutorial misconduct that has caused them to have access to sensitive, confidential information about the Defendant. The only way to protect Defendant's right to a fair trial is to remove these prosecutors from the case. If the Court disqualifies these prosecutors from further involvement in this case, but allows other prosecutors the Maine Attomey General’s Office to take over the case, any prosecutors handling the case need to be required to certify that they have not seen or reviewed these materials or had conversations with these two prosecutors about the materials. If no prosecutors can so certify, under oath, the Attomey General’s office must be disqualified from any further involvement in this matter. The records at issue need to be tumed over to the Court immediately and placed under seal. All electronic versions of the file need to be destroyed and no copies may be retained by the Attomey General’s office. A certification must be made to ‘the court under oath that this has been done. WHEREFORE, Defendant respectfully requests that the Office of the Attorney General, or at a minimum AAG Don Macomber and AAG Leane Zainea, be disqualified from any further involvement in this matter, and that this Honorable Court issue any further orders necessary to protect the integrity of the judicial process. Dated: 3/4 18 stopher K. MacLean, Esq. (Bar No. 8350) Attorney for Defendant CAMDEN LAW LLP 20 Mechanic Street Camden, Maine 04843 (207) 236-8836Dated: [24 [29% Cn Laura P. Shaw, Esq. (Bar No. 5631) Attomey for Defendant CAMDEN LAW LLP 20 Mechanic Street Camden, Maine 04843 (207) 236-8836 CERTIFICATE OF SERVICE Thereby certify that on this 26th day of March, 2018, a copy of the foregoing Motion to Disqualify was mailed by first class mail, originating in Camden, Maine, postage prepaid to Leane Zainea and Donald Macomber, Assistant Attorneys General, at 6 State House Station, Augusta, Maine 04333-0006 and via email Crn__ Laura P. Shaw, E:STATE OF MAINE SUPERIOR COURT YORK, ss CRIMINAL ACTION Docket No. CR-12-1940 STATE OF MAINE ORDER ON DEFENDANT'S v. EMERGENCY REQUEST FOR REMEDIAL COURT PAUL OLSEN, ACTION Defendant Before the court is defendant's emergency request for remedial court action. Argument was held on May 4, 2015. In the motion, defendant requested thet the court disqualify the State's attorney. At argument, defendant requested, instead, that the court dismiss the indictment. Facts The clerk’s office, by mistake, gave to the State a copy of defendant's ex parte motion to secure attendance of out-of-state witness and accompanying documents. Defense counsel, in that motion, reveals that defendant intends to call at trial the witness for whom the subpoena was sought and whose testimony will impeach or contradict the testimony of the alleged victim’s and potentially other witnesses. This witness would testify about the alleged victim’s actions leading up to and after the night in question, about this witness's actions and discussions with the alleged victim, and about his recollection of an incident involving the witness, defendant, and alleged victim, which differs from information provided in discovery. (Mot. { 4.) The motion and documents were date stamped at the District Attorney's office on 4/22/15. A witness called the District Attorney’s office on 4/30/15 because the witness did not want to be involved in the process. At that point, the State’s attorneyremembered having seen the defendant's motion and read the documents. He then notified defense counsel that a witness had called the District Attorney's office and the State’s attomey assumed the witness was the person for whom the subpoena had been sought. (See emails attached to defendant’s motion.) The State’s attorney read the documents a second time before the argument on defendant's emergency request for remedial action In response to the court's questions at the hearing, the State’s attorney agreed he read the documents twice, he clearly saw the words “ex parte” on the documents, and those words did not suggest to him that he discontinue reading. Argument At the hearing, the State’s attorney argued that defendant did not file the motion under seal and if the State’s attorney had requested to review the court's file, he could have reviewed the defendant's motion. The court notes the motion was placed in the court's file in an envelope stamped twice, “Confidential Materials Enclosed” and with the word, “Confidential,” handwritten on the envelope. ‘The State's attorney argued further that the motion contained no trial strategy and he “put it to” the defendant to show that it is trial strategy. The State's attorney also argued that the motion did not contain an attorney-client communication. Finally, the State's attorney argued that “calling an alleged rape victim a liar” is nothing new and is not trial strategy. Defendants attorney argued that the witness is a critical witness for the defense and because the State's attorney now knows how the defense intends to present this witness at trial, the State's attorney can prepare the alleged victim prior to trial, as opposed to after the witness testifies during defendant's case. Defendant's attorney argued the preparation for trial has been impacted.Conclusions Disqualification The court concluded at the hearing that the documents contained trial strategy. ‘The information in the motion was work product of defense counsel that is “crucial toa lawyer's preparation of a client's case and to the smooth functioning of its adversary system” and is entitled to protection. United States v. Stewart, 294 F. Supp. 2d 490, 493, (S.D.N.Y. 2003). There are several factors to consider in deciding whether the interests of justice require disqualification. See In re Meador, 968 8.W.2d 346, 351-52 (Tex. 1998). In this case, the State's attorney should have known the information in the documents was privileged. He notified defense counsel that he had received the information only when the witness called the District Attorney's office. Based on his argument at the hearing, the court concludes he would not have notified defense counsel absent the call. The State's attorney read the documents twice. Knowing the topics about which a critical defense witness will testify permits the State to prepare the alleged victim’s testimony before trial, as opposed to calling her in rebuttal to respond to the witness's testimony. Retum of the documents will not mitigate that prejudice. Defendant was not at fault for the unauthorized disclosure, The State did not argue it would be prejudiced by disqualification, Further, although the State's attorney stated that bar counsel told him this conduct is not a violation of the bar rules based on the State's attorney's presentation of the facts to bar counsel, a violation is not required for disqualification. In re Meador, 968 S.W.2d at 351 The State's attorney's reading the information was not inadvertent, as in the Stewart case, Further, unlike in Stewart, the remedy of prohibiting the State from using the information at trial is unavailing. Stewart, 294 F. Supp. 2d at 494. The disclosure ofthe information cannot be undone. See Richards v. Jain, 168 F. Supp. 2d 1195, 1209 (W.D. Wash. 2001). “[I]n those cases involving the loss of the protection of privilege, the Court should resolve any doubts in favor of disqualification.” Id. (internal quotation marks omitted), Dismissal The facts in this case differ from those in the case relied upon by defendant. See State v. Lenarz, 22 A.3d 536, 558 (Conn. 2011). Further, the court in Lenarz relied on a presumption of prejudice, as some courts do when trial strategy is involved. See Lenarz, 22 A.3d at 543-44 & n.8; see also State v. Cruthirds, 2014 ME 86, { 37, 96 A.3d 80 (showing required that discovery violation prejudiced defendant to the extent he was deprived of a fair trial); State v. Sargent, 656 A.2d 1196, 1199 (Me. 1995) (same). “The extreme sanction of dismissal should be reserved for extreme cases.” State v. Reeves, 499 A.2d 130, 133 (Me. 1985). The ruling must be fundamentally fair and in furtherance of justice. See Cruthirds, 2014 ME 86, { 37, 96 A.3d 80; State v. Landry, 459 A.2d 175, 177 (Me. 1983), Based on this record, the court concludes that allowing another District Attomey’s Office or the Office of the Attorney General to continue this prosecution will avoid prejudice. to the defendant and is fair to the parties. All documents and recordings that concern defendant's motion to secure attendance of out-of-state witness will be placed under seal, removed from the court's file, and maintained in the York County Superior Court Clerk’s Office. No employee of the York County District Attorney’s Office will discuss the information contained in defendant's motion to secure attendance of out-of-state witness in any way with any person, including successor counsel for the State.Because of this justice's relationship with the Office of the Attorney General, the court will defer to another justice the determination of whether this case will be referred to the Office of the Attorney General or another District Attorney's Office. The entry is Defendant's Motion to Disqualify the York County District Attorney's Office is GRANTED. Defendant's Motion for Court to Dismiss Indictment is DENIED. Date: May 14, 2015 Justice, Superior Court