ELLSWORTH — A Gouldsboro man convicted of sodomizing his wife was granted a new trial Monday because of statements a prosecutor made regarding a custody fight during her closing arguments.

A jury convicted Vladek Filler in January on one count of gross sexual assault and two counts of assault. The jury found him not guilty of four additional counts of gross sexual assault.

Defense attorney Daniel Pileggi of the Ellsworth firm Roy, Beardsley, Williams and Granger argues that his client was denied due process and a fair trial.

“It is respectfully submitted that the violations, individually and collectively, are so pervasive and significant as to have violated his constitutional rights,” Pileggi stated in a motion for a new trial and argument in support of a motion for judgment of acquittal.

Filler, who is free on post-conviction bail, was engaged in a child custody fight during the time his wife alleges she was assaulted. The court did not allow evidence of the custody dispute during the trial.

“ … As a result of the court’s efforts to sanitize the criminal proceeding, Mr. Filler was deprived of the opportunity to present to the jury a complete picture of the relationship, and a context for Mrs. Filler’s allegations,” the defense attorney stated.

Hancock County Superior Court Justice Kevin M. Cuddy stated in his decision that during the trial, the court excluded from evidence facts relating to the child custody dispute.

Cuddy stated in his decision to grant a new trial that one of the major points of the prosecution in its closing argument entailed the child custody dispute.

In his motion for a new trial, Pileggi stated that the defense would have presented evidence of his client seeking a protection from abuse order.

This evidence would have included Mrs. Filler’s filing of a similar petition in Washington County after her efforts in Hancock County to gain custody of the couple’s two sons had failed, Pileggi stated.

The evidence would have demonstrated “the existence and vehemence of the Fillers’ child custody fight, all occurring at the same time and immediately after Mrs. Filler’s claims of physical and sexual abuse,” Pileggi stated.

“The error was compounded by the prosecutor’s repeated statements during her closing argument that the record contained no evidence of a custody dispute and that Mr. Filler’s defense should therefore be discounted,” Pileggi stated.

Assistant District Attorney Mary Kellett said she is in the process of working with the attorney general’s office to deal with the judge’s decision. The attorney general must approve any prosecutorial appeal.

“Obviously we wouldn’t appeal if we didn’t disagree with the decision of the court,” said Kellett.

Kellett declined to comment further because the case is still pending.

If the attorney general agrees to let the prosecutor appeal the judge’s decision, the Maine Supreme Judicial Court would hear the appeal.

Pileggi also contends in the motion that his client should be acquitted, citing that the alleged sexual act was physically impossible given the space constraints of the location in which Mrs. Filler says the assault occurred.

Pileggi stated in his support for acquittal that the Maine Supreme Judicial Court has made clear that a conviction may be sustained solely upon a witness’s testimony, but in order to do so the testimony must reflect actions that were physically possible.

“For example, the court would not be compelled to accept Mrs. Filler’s testimony if she had said she had identified Mr. Filler as her assailant through a conversation with aliens,” Pileggi stated. “The evidence here is similarly outrageous.”

No reasonable jury could have found Filler guilty beyond a reasonable doubt, the defense attorney said.

“Given the vast array of evidence demonstrating Mrs. Filler’s claims to be impossible, the only inference that may be drawn is that the jury improperly placed a burden on Mr. Filler to disprove the crime’s occurrence.”

Pileggi also contends that Kellett misstated the burden of proof, “implying that Mr. Filler was guilty unless he proved otherwise.”

The defense attorney stated in his motion that Kellett told the jury “there was no evidence that the sexual assaults did not occur.”

At his new trial, Filler, 39, would be retried on the three charges he was convicted on.

Gross sexual assault is a Class A felony, which carries a maximum possible prison sentence of 30 years.

The court has not yet set a date for Filler’s new trial.