AUGUSTA — An attorney for Carole J. Swan, a former Chelsea selectman facing trial on a four-count indictment charging her with offenses related to that post, is asking a judge to force a road contractor and two banks to produce paperwork he says is critical to her defense.
Attorney Leonard Sharon made his arguments Tuesday in Kennebec County Superior Court as lawyers for contractor Frank Monroe, Kennebec Savings Bank and Savings Bank of Maine sought to have Sharon’s subpoenas quashed.
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Sharon told Justice Donald Marden that the records will help prove Swan’s contention that she was investigating Monroe when she was caught on tape by sheriff’s deputies allegedly giving a bribe to him.
“She was in fact conducting her own investigation,” Sharon said.
Swan, 53, is accused of accepting kickbacks from Monroe, a plow contractor from Whitefield. Monroe told police in February he had paid Swan $3,000 and $7,000 on separate occasions in 2010, and was being asked to inflate a bill for road sand so she could receive $10,000 more during the first week of February.
The Kennebec County Sheriff’s Office then set up and recorded a sting in which Monroe paid Swan an undisclosed sum in marked bills. Kennebec County Sheriff Randall Liberty said Swan was later arrested with the cash in her car and admitted the scheme in a subsequent police interview.
Sharon subpoenaed Monroe’s bank and business records from 2007 to the present and rejected arguments by attorneys for the banks who claimed that the records are private and cannot be provided except under subpoena by a court or other governmental authority.
“Bank records are not privileged,” Sharon said. “There is no expectation of privacy.”
Sean Farris, the attorney for both Monroe and his construction company, objected to providing Monroe’s bank records as well as employee payroll records and business accounts payable records over a four-year period. Farris said there was “not a sufficient showing for a blanket fishing expedition into my clients’ records,” and he noted that Monroe was a witness in the criminal case against Swan.
“Our position is if they’re looking for specific information, let’s spell that out,” Farris said.
He also suggested adopting a method for in-camera review by the court prior to having an records produced.
Farris told the judge that Swan’s husband, Marshall Swan, is also under investigation by the U.S. Attorney’s Office.
“The Swans own a construction business that is a direct competitor to Mr. Monroe,” Farris said.
Sharon said records must be produced, even if under seal, because Swan has a Sixth Amendment right to documents that would help her defend herself against the criminal charges.
“My concern is to have a lawfully issued subpoena,” Marden said. “You need a determination by court whether it’s a lawfully issued request.” Marden also said he would examine the need for the record as well as case law prior to ruling on the motions to quash the subpoena.
Sharon told Marden he would file a more specific affidavit within the next 10 days that shows what material he needs, and that he would file it under seal so it would be available only to attorneys for the other parties.
Swan, 53, was arrested Feb. 10 and later decided not to run for re-election to the select board. Her term ended in June.
She was indicted in July on the following charges:
* aggravated forgery, a felony punishable by up to 10 years in prison and a $20,000 fine, alleging she falsified a public record Feb. 1;
* attempted theft, a felony punishable by up to five years in prison or $5,000 in fines, alleging she authorized a $22,075 check from the town of Chelsea to pay a fraudulent invoice Feb. 3; and
* two counts of improper compensation for services, alleging she solicited or accepted money in return for promoting a contract while she was a public official. These are misdemeanors, each punishable by up to six months in jail and a $1,000 fine.
Swan has pleaded not guilty to all charges and is free on $25,000 bail.
She did not appear to be present Tuesday in a courtroom that was full of people waiting for hearings in several cases.
Betty Adams — 621-5631
badams@centralmaine.com
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