Saturday, November 27, 2010
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Thursday, September 23, 2010
A voice for justice in the murder of James Alenson
There is no telling when Judge Jane Haggerty will decide what to do with the killer of James Alenson. She has been asked to reduce his life sentence to a term with parole, and is formulating her response.
Ever since the murder, on Jan. 19, 2007, the focus for Alenson's family has alternated between mourning and justice. They attended a three-week trial in Middlesex Superior Court in Woburn Massachusetts, and listened day after day to grueling testimony, detailed descriptions of how young James was stabbed repeatedly with a sharp kitchen knife, his final moments spent bleeding to death on the cold tile floor of a bathroom at Lincoln-Sudbury Regional High School.
Most wrenching was the testimony from another student hidden in another stall, of James pleading with his attacker, "What are you doing to me? You're hurting me! Stop!"
None of us, least of all his parents who tended to his scraped knees and runny nose as a boy, will ever know what he thought, how he felt, or how much pain he experienced as his puncture wounds multiplied. But one thing we know for sure is he suffered, and suffered as the result of another student whose troubled background made his very presence at the school a cause for internal debate.
We go through life never really understanding what justice means, until someone we know becomes the victim of a violent crime, and the word takes on a whole new meaning. In this case, the meaning of justice rang loud and clear on April 29, 2010, when John Odgren was found guilty of the murder by a jury of his peers and sentenced to life without the possibility of parole, as required under Massachusetts law: Justice.
For the Alenson family, parents and siblings, there will never be a satisfactory answer for what went on that day. Some consolation might be taken from the post-mortems that shed light on the life of John Odgren, a student with mental health issues who was neither a friend nor an enemy of the victim, just his killer.
Adding to the family's trauma comparisons have been made between Odgren's murder of Alenson and the recent suicide of student Phoebe Prince.
The now-19-year old Odgren was described in court as a very bright boy with a dark side and a keen appreciation for some of the more violent cartoons and video games, someone who likes to watch television of the CSI variety and whose self-education in police procedure is a source of evident pride, as when he told the police officers what their next move should be, and when he asked another what the sentence is for manslaughter, "15 to 20?"
Odgren supporters think he was not only too young at 16 to be jailed for life, but that his crime was the symptom of a sick community; it took a village to kill James Alenson.
It might be easier to appreciate that others were negligent in the care and custody of John Odgren if his lawyers didn't use words like "barbaric and uncivilized" in arguing for a reduced sentence, as if his random yet pre-meditated attack was anything other than barbaric and uncivilized.
To revisit the issue and decide now that Odgren should someday go free would be to hit the Replay button on the days of the notorious “Revolving Door" system of justice in Massachusetts.
Justice demands that an unrepentant, unreformed John Odgren gets the same chance of walking out of prison as James Alenson had of making it from the bathroom back to class on that fateful January day in 2007.
He never did. He wouldn't make it to summer that year, to his 16th birthday on July 28, or to any other family celebrations. His future was decided for him by John Odgren, whose fantasy used to be about killing a person, and lately is about getting away with it.
Laurie Myers is the president of Community VOICES, a victims’ advocacy organization and resident of Chelmsford Massachusetts. lmyers@communityvoices.net
Wednesday, September 8, 2010
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Monday, March 29, 2010
Parole denied for ex-Westford man in series of 1980's rapes
Lowell SUN
Parole denied for ex-Westford man in series of 1980s rapes
By Kris Pisarik, kpisarik@lowellsun.com
03/25/2010
WESTFORD -- A former Westford man, dubbed the "mall rapist" for sexually assaulting 20 women after kidnapping them from North Shore shopping centers more than 25 years ago, "should never see the light of day," a victim advocate warned yesterday.
Laurie Myers, of Community Voices, a Chelmsford-based watchdog group that monitors sex offenders, child-crime and missing-children's cases, applauded the Massachusetts Parole Board's unanimous decision in denying parole to Phillip Pizzo, 60.
Pizzo pleaded guilty in 1984 to 13 counts of aggravated rape, four counts of armed robbery while masked and two counts of armed robbery, for which he was sentenced to concurrent life terms. He was also convicted of seven counts of kidnapping. His sex crimes spanned Middlesex, Essex and Norfolk counties.
"Obviously, the board made the right decision, as much as the mental-health community thinks they (sex offenders) can be rehabilitated, they can't," said Myers, who is a former rape-crisis counselor in Lowell. "The more time they spend behind bars is a good thing."
The Parole Board released its Feb. 11 ruling on Tuesday. Pizzo's hearing was held Jan. 5, at which time he was quoted by the Boston Herald as stating, "I've hurt a lot of people in the past; I take full responsibility for that." But then Pizzo blamed his brutal crimes on his traumatic childhood, low self-esteem and rejection from women.
At that same hearing, Essex County Assistant District Attorney Kenneth
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Bresler called Pizzo "the worst rapist in the history of Massachusetts."
His boss, Essex District Attorney Jonathan Blodgett, said that "five years from now, when he is again parole eligible, we will be present to vigorously oppose his release under any circumstances."
According to a narrative in the Parole Board's decision, Pizzo would accost women as they got into their cars while wearing a ski mask. He'd hold a knife to their throats, force them to the passenger seat and tie them up, covering their faces with a ski mask. He would then drive them to his 10 Butternut St., his Westford home, sometimes pinching their breasts and genitals along the way, the Parole Board stated.
He would ask them personal questions, like "Where do you work? Do you have a boyfriend? Are you faithful to him?" the report stated.
"We never knew anything was going on," said Robert Freeman, who still lives across the street from where Pizzo committed many of his crimes. "I don't know that anybody knew," he said, adding that Pizzo wasn't in the neighborhood for long and appeared to live alone.
Once inside his home, according to the parole report, Pizzo would force the women -- usually in their late teens or early 20s -- to drink liquor. He'd uncover their faces and cover his while repeatedly raping them. He'd then force them to take a shower and he'd drive them back to the mall from which they were abducted, the board stated.
In one incident, Pizzo stabbed a woman in the face at the Meadow Glen Mall in Medford as she tried to escape. He was finally arrested when police spotted his blue 1976 Cadillac prowling a shopping mall parking lot, authorities said.
"Phillip Pizzo's crimes were both far reaching and extremely disturbing and his series of rapes and kidnappings committed against young women terrorized residents across Eastern Massachusetts," Middlesex District Attorney Gerard Leone said in a statement. "We are pleased with the Parole Board's decision to deny this inmate parole."
Pizzo was declared a sexually dangerous person in 1985 and was committed for a day to life at the Massachusetts Treatment Center. The court ruled in 2009 he was no longer sexually dangerous, but prosecutors strongly disagreed.
The Parole Board noted that Pizzo has been enrolled in treatment programs during his civil commitment, but had not finished the Core Program, which lasts three years.
In its decision, the Parole Board stated that it "does not believe that he is ready for community supervision. To release him at this time would be an injustice to Mr. Pizzo and the community. In this case, public safety requires further incarceration."
Myers, the victim advocate, believes that should be permanent.
"If our judicial system works the way it should, he should never see the light of day," Myers said. "Everything he did points to him reoffending when he gets out. The odds are stacked against society.
"Read more:http://www.lowellsun.com/ci_14754856?IADID=Search-www.lowellsun.com-www.lowellsun.com#ixzz0jYqTUxS5
Parole denied for ex-Westford man in series of 1980s rapes
By Kris Pisarik, kpisarik@lowellsun.com
03/25/2010
WESTFORD -- A former Westford man, dubbed the "mall rapist" for sexually assaulting 20 women after kidnapping them from North Shore shopping centers more than 25 years ago, "should never see the light of day," a victim advocate warned yesterday.
Laurie Myers, of Community Voices, a Chelmsford-based watchdog group that monitors sex offenders, child-crime and missing-children's cases, applauded the Massachusetts Parole Board's unanimous decision in denying parole to Phillip Pizzo, 60.
Pizzo pleaded guilty in 1984 to 13 counts of aggravated rape, four counts of armed robbery while masked and two counts of armed robbery, for which he was sentenced to concurrent life terms. He was also convicted of seven counts of kidnapping. His sex crimes spanned Middlesex, Essex and Norfolk counties.
"Obviously, the board made the right decision, as much as the mental-health community thinks they (sex offenders) can be rehabilitated, they can't," said Myers, who is a former rape-crisis counselor in Lowell. "The more time they spend behind bars is a good thing."
The Parole Board released its Feb. 11 ruling on Tuesday. Pizzo's hearing was held Jan. 5, at which time he was quoted by the Boston Herald as stating, "I've hurt a lot of people in the past; I take full responsibility for that." But then Pizzo blamed his brutal crimes on his traumatic childhood, low self-esteem and rejection from women.
At that same hearing, Essex County Assistant District Attorney Kenneth
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Bresler called Pizzo "the worst rapist in the history of Massachusetts."
His boss, Essex District Attorney Jonathan Blodgett, said that "five years from now, when he is again parole eligible, we will be present to vigorously oppose his release under any circumstances."
According to a narrative in the Parole Board's decision, Pizzo would accost women as they got into their cars while wearing a ski mask. He'd hold a knife to their throats, force them to the passenger seat and tie them up, covering their faces with a ski mask. He would then drive them to his 10 Butternut St., his Westford home, sometimes pinching their breasts and genitals along the way, the Parole Board stated.
He would ask them personal questions, like "Where do you work? Do you have a boyfriend? Are you faithful to him?" the report stated.
"We never knew anything was going on," said Robert Freeman, who still lives across the street from where Pizzo committed many of his crimes. "I don't know that anybody knew," he said, adding that Pizzo wasn't in the neighborhood for long and appeared to live alone.
Once inside his home, according to the parole report, Pizzo would force the women -- usually in their late teens or early 20s -- to drink liquor. He'd uncover their faces and cover his while repeatedly raping them. He'd then force them to take a shower and he'd drive them back to the mall from which they were abducted, the board stated.
In one incident, Pizzo stabbed a woman in the face at the Meadow Glen Mall in Medford as she tried to escape. He was finally arrested when police spotted his blue 1976 Cadillac prowling a shopping mall parking lot, authorities said.
"Phillip Pizzo's crimes were both far reaching and extremely disturbing and his series of rapes and kidnappings committed against young women terrorized residents across Eastern Massachusetts," Middlesex District Attorney Gerard Leone said in a statement. "We are pleased with the Parole Board's decision to deny this inmate parole."
Pizzo was declared a sexually dangerous person in 1985 and was committed for a day to life at the Massachusetts Treatment Center. The court ruled in 2009 he was no longer sexually dangerous, but prosecutors strongly disagreed.
The Parole Board noted that Pizzo has been enrolled in treatment programs during his civil commitment, but had not finished the Core Program, which lasts three years.
In its decision, the Parole Board stated that it "does not believe that he is ready for community supervision. To release him at this time would be an injustice to Mr. Pizzo and the community. In this case, public safety requires further incarceration."
Myers, the victim advocate, believes that should be permanent.
"If our judicial system works the way it should, he should never see the light of day," Myers said. "Everything he did points to him reoffending when he gets out. The odds are stacked against society.
"Read more:http://www.lowellsun.com/ci_14754856?IADID=Search-www.lowellsun.com-www.lowellsun.com#ixzz0jYqTUxS5
Lawrence man charged in rape of second Lowell student on his school bus
Eagle Tribune
Lawrence man charged in rape of second Lowell student on his school bus
By Mark E. Voglermvogler@eagletribune.com
March 26, 2010
LOWELL — A 22-year-old Lawrence man has been charged with the rape of a second teen-age girl who rode on the bus he drove for Lowell Public Schools.
Gian Carlos Mirabal, of 30 Jennings St., was arrested last month in the sexual assault of a 16-year-old girl. He faces new allegations from a 15-year-old victim who recently came forward.
Middlesex District Attorney Gerry Leone revealed the second school bus rape victim yesterday after announcing that a grand jury at Lowell Superior Court earlier in the week had indicted Mirabal on two counts of forcible child rape.
District Attorney spokeswoman Cara O'Brien said the grand jury indictments relate to the alleged assaults on both victims.
A date for Mirabal's arraignment in Lowell Superior Court has not yet been set. Initially held on $50,000 cash bail, he had been scheduled for a probable cause hearing Monday in connection with the first case.
The rape allegations in connection with the first victim came to light last month after the manager of the North Reading Transportation Bus Company reviewed security footage of a bus that was involved in a minor accident on February 25. Mirabal has been a school bus driver for the company since last June.
While reviewing the footage, the bus company manager observed "suspicious behavior involving the bus driver and a 16-year-old female student on the bus," Lowell Police Captain Randall Humphrey said in a press statement earlier this month.
The bus company contacted a school official who alerted authorities.
The investigation determined that last fall Mirabal began to ask the first victim, then in the eighth grade, to remain on the bus after he dropped the other students off. He would allegedly drive the bus to another area and assault the victim, investigators said.
The victim, who first met Mirabal last spring when she was in still in the seventh grade, told authorities she did not want to be on the bus with him.
But Mirabal physically kept her from leaving at least once and ordered her not to tell anyone about the assaults, according to investigators.
"A second victim, 15 at the time, has since come forward also alleging inappropriate behavior by the defendant," Leone said.
Lawrence man charged in rape of second Lowell student on his school bus
By Mark E. Voglermvogler@eagletribune.com
March 26, 2010
LOWELL — A 22-year-old Lawrence man has been charged with the rape of a second teen-age girl who rode on the bus he drove for Lowell Public Schools.
Gian Carlos Mirabal, of 30 Jennings St., was arrested last month in the sexual assault of a 16-year-old girl. He faces new allegations from a 15-year-old victim who recently came forward.
Middlesex District Attorney Gerry Leone revealed the second school bus rape victim yesterday after announcing that a grand jury at Lowell Superior Court earlier in the week had indicted Mirabal on two counts of forcible child rape.
District Attorney spokeswoman Cara O'Brien said the grand jury indictments relate to the alleged assaults on both victims.
A date for Mirabal's arraignment in Lowell Superior Court has not yet been set. Initially held on $50,000 cash bail, he had been scheduled for a probable cause hearing Monday in connection with the first case.
The rape allegations in connection with the first victim came to light last month after the manager of the North Reading Transportation Bus Company reviewed security footage of a bus that was involved in a minor accident on February 25. Mirabal has been a school bus driver for the company since last June.
While reviewing the footage, the bus company manager observed "suspicious behavior involving the bus driver and a 16-year-old female student on the bus," Lowell Police Captain Randall Humphrey said in a press statement earlier this month.
The bus company contacted a school official who alerted authorities.
The investigation determined that last fall Mirabal began to ask the first victim, then in the eighth grade, to remain on the bus after he dropped the other students off. He would allegedly drive the bus to another area and assault the victim, investigators said.
The victim, who first met Mirabal last spring when she was in still in the seventh grade, told authorities she did not want to be on the bus with him.
But Mirabal physically kept her from leaving at least once and ordered her not to tell anyone about the assaults, according to investigators.
"A second victim, 15 at the time, has since come forward also alleging inappropriate behavior by the defendant," Leone said.
Sunday, March 28, 2010
War on sex crimes must be waged on many fronts
The Patriot Ledger
EDITORIAL —
A sex crime in California that captivated the nation for most of this month was a painful and frightening reminder of our vulnerability to such predators.
Local police and prosecutors say there’s no reason to believe the same type of brutal attack – which led to the Feb. 28 arrest of a convicted sex offender for the rape and murder of a 17-year-old girl in California – couldn’t happen here.
Registered sex offender John Albert Gardner III is accused of murdering Chelsea King and is a suspect in the murder of 14-year-old Amber Dubois as well.
His arrest has raised many questions.
Do sex offender registries work?
Should residency laws be strengthened to further corral where offenders can live and work?
Should the worst offenders serve longer sentences or be incarcerated for life?
Unfortunately, there are no simple answers.
Our prison system is already overburdened. And limits on where sex offenders can live and work push them further away from the support and services that are needed to keep them from re-offending.
“This problem doesn’t lend itself to one solution,” said William Keating, Norfolk County District Attorney.
Both he and Plymouth County District Attorney Timothy Cruz have lobbied for longer prison sentences, extended probation or lifetime parole for the worst offenders.
“Some of these people can’t be fixed or helped,” Cruz said. “Some of them should never be released.”
Opponents to such moves argue they violate our Constitution and would push the prison system to the point of collapse and bankrupt the state in the process.
The parents of Chelsea King have launched a campaign in California – with plans to push it as a federal law – that would strengthen oversight of child-sex predators.
They’ve introduced a bill, called Chelsea’s Law, that would increase electronic monitoring, including lifetime parole with GPS monitoring for certain offenders.
It’s an idea worth serious consideration.
Meanwhile, there are things that should change immediately, such as aggressively using existing laws.
That means judges imposing maximum-allowed sentences on the predators most likely to re-offend. That means vigilant enforcement of the existing terms of parole and probation. It also means parents taking advantage of access to information – either through the state or at local police departments – about potential threats.
Yes, the sex offender registry has it’s flaws. Some offenders do not register properly or at all.
But while it cannot pinpoint all possible threats, it gives parents more information than they would have without it.
Few things elicit the kind of visceral reaction we have to stories of sex crimes against children.
Elected representatives should continue to push for laws that improve protections without bankrupting us or gutting our system of justice.
At the same time, stories like Chelsea King’s are important reminders that even as legal protections evolve, we can never let down our guard.
Friday, March 19, 2010
Island Man Arrested on Rape Charges
Vineyard Gazette
News Update: Friday, March 19
Island Man Arrested on Rape Charges
By JIM HICKEY
An Island man arrested this week is facing several charges of rape and indecent assault and battery against a mentally retarded person.
Peter Duart, 41, a registered Level II sex offender as well as a former assistant coach of the Martha’s Vineyard Regional High School football team, and an elected, currently serving member of the Tisbury planning board, was arrested by Massachusetts state police on Wednesday in Dartmouth after Oak Bluffs police issued a warrant for his arrest.
Mr. Duart was apprehended at a restaurant in Dartmouth. He was found to be in possession of over $5,000 in cash as well as his passport.
State police from the Oak Bluffs barracks traveled to Dartmouth to pick up Mr. Duart after his arrest, and he was brought back to the Island to be processed.
Oak Bluffs police obtained a search warrant to search Mr. Duart’s home on Daggett avenue in Tisbury, based on allegations that he possessed child pornography. During the search, police seized a laptop computer, DVDs as well as letters and notes.
He was arraigned on Thursday morning, bail was set at $50,000, and he was ordered to surrender his passport.
He is being held at the Dukes County Jail, according to a statement issued Friday by Oak Bluffs police.
In 2003 Mr. Duart was indicted by a grand jury on one count of rape and one count of indecent assault and battery on a retarded person.
News Update: Friday, March 19
Island Man Arrested on Rape Charges
By JIM HICKEY
An Island man arrested this week is facing several charges of rape and indecent assault and battery against a mentally retarded person.
Peter Duart, 41, a registered Level II sex offender as well as a former assistant coach of the Martha’s Vineyard Regional High School football team, and an elected, currently serving member of the Tisbury planning board, was arrested by Massachusetts state police on Wednesday in Dartmouth after Oak Bluffs police issued a warrant for his arrest.
Mr. Duart was apprehended at a restaurant in Dartmouth. He was found to be in possession of over $5,000 in cash as well as his passport.
State police from the Oak Bluffs barracks traveled to Dartmouth to pick up Mr. Duart after his arrest, and he was brought back to the Island to be processed.
Oak Bluffs police obtained a search warrant to search Mr. Duart’s home on Daggett avenue in Tisbury, based on allegations that he possessed child pornography. During the search, police seized a laptop computer, DVDs as well as letters and notes.
He was arraigned on Thursday morning, bail was set at $50,000, and he was ordered to surrender his passport.
He is being held at the Dukes County Jail, according to a statement issued Friday by Oak Bluffs police.
In 2003 Mr. Duart was indicted by a grand jury on one count of rape and one count of indecent assault and battery on a retarded person.
Thursday, March 4, 2010
Sex offender held in a rape of disabled man
Salem News
3-4-2010
Sex offender held in rape of disabled man
By Julie ManganisStaff writer
BEVERLY — A Level 3 sex offender has been charged with forcing a disabled man to engage in sexual acts in a rooming house apartment, according to court documents.
Wayne Dion, 57, who was convicted of child rape and dissemination of obscene material to minors back in 1997, is considered at the highest risk of reoffending by the Sex Offender Registry Board.
He is now being held without bail pending a dangerousness hearing, after his arrest Monday on a charge of rape.
On Monday afternoon, police were called to 9 Park St., where Dion has been living, and met a 36-year-old disabled man who told police that Dion had forced him to engage in sexual acts, according to a police report.
The younger man said he had known Dion for two to three months and said Dion had repeatedly offered him marijuana if he would engage in sexual activity with him.
The younger man told police that he refused.
Police knocked on Dion's door and got no answer, though they could hear a television. According to the report, police went to the building manager when no one answered, because they were concerned that Dion might be in medical distress; he has diabetes and uses a machine to help him breathe at night because of sleep apnea.
He wasn't there.
Police arrested him when he showed up at the police station to re-register as a sex offender. It was unclear from the report what prompted that visit.
Prosecutors at Dion's arraignment Tuesday asked Judge Robert Brennan to hold Dion without bail as a danger to the community. Brennan allowed the request to hold Dion until a full hearing on March 8.
http://www.salemnews.com/punews/local_story_063001149.html
3-4-2010
Sex offender held in rape of disabled man
By Julie ManganisStaff writer
BEVERLY — A Level 3 sex offender has been charged with forcing a disabled man to engage in sexual acts in a rooming house apartment, according to court documents.
Wayne Dion, 57, who was convicted of child rape and dissemination of obscene material to minors back in 1997, is considered at the highest risk of reoffending by the Sex Offender Registry Board.
He is now being held without bail pending a dangerousness hearing, after his arrest Monday on a charge of rape.
On Monday afternoon, police were called to 9 Park St., where Dion has been living, and met a 36-year-old disabled man who told police that Dion had forced him to engage in sexual acts, according to a police report.
The younger man said he had known Dion for two to three months and said Dion had repeatedly offered him marijuana if he would engage in sexual activity with him.
The younger man told police that he refused.
Police knocked on Dion's door and got no answer, though they could hear a television. According to the report, police went to the building manager when no one answered, because they were concerned that Dion might be in medical distress; he has diabetes and uses a machine to help him breathe at night because of sleep apnea.
He wasn't there.
Police arrested him when he showed up at the police station to re-register as a sex offender. It was unclear from the report what prompted that visit.
Prosecutors at Dion's arraignment Tuesday asked Judge Robert Brennan to hold Dion without bail as a danger to the community. Brennan allowed the request to hold Dion until a full hearing on March 8.
http://www.salemnews.com/punews/local_story_063001149.html
Lynn man sentenced for aggravated rape
Lynn Item
3-4-2010
Lynn man sentenced for aggravated rape
By Karen A. Kapsourakis / For the Item
NEWBURYPORT - A Lynn man convicted of raping and beating a woman with a sword at his Alley Street home in 2008 may spend up to 25 years behind bars.Cornelius Moore, 52, of 82 Alley St., #2, Lynn, went on trial last week in Newburyport Superior Court on charges of aggravated rape and assault and battery with a dangerous weapon, a sword, in connection with a sexual assault at his home on Aug. 18, 2008.A 12-person jury comprised of eight women and four men deliberated for about three hours, finding Moore guilty as charged Tuesday afternoon.He was sentenced Wednesday afternoon by Judge Richard E. Welch, III, to serve 12-to-15 years in state prison on the aggravated rape charge and will serve another 8-to-10-years in prison on the assault and battery with a dangerous weapon charge.In essence, Moore will serve not less than 20 years and not more than 25 years in prison before he is released.Assistant District Attorney Greg A. Friedholm presented evidence at trial that on the night of Aug. 18 the victim, who was in her 50s, went to his apartment to apparently see an area where she could store some items. They were acquaintances at the time.While at his apartment, Moore forced himself on the woman while threatening and beating her with a sword.Defense lawyer Rebecca Whitehill argued during the trial that the women had fabricated the incident and that her client was innocent of all charges. Moore did not take the stand in his own defense.Friedholm sought a 25-to-30 year punishment, saying it was based upon "not only the violence perpetrated upon the victim, but also takes into consideration the violent criminal history of the defendant that spanned two decades," he said.Moore has numerous violence charges on his record, including a 2005 Lynn incident when he allegedly rammed his car at patrons standing outside Cesar's Palace Lounge on Buffum Street after bartenders had ejected him for being belligerent and verbally abusive.Moore is also a registered sex offender for being previously convicted of indecent assault and battery.Whitehill asked the judge for leniency, proposing a lesser punishment.Friedholm later credited the work of the Lynn Police Department for their investigation of the case.Moore was indicted by an Essex County grand jury in September of 2008 and has been held in custody in lieu of $50,000 cash bail since being arraigned. The judge credited him the 562 days he spent awaiting trial on the case.
3-4-2010
Lynn man sentenced for aggravated rape
By Karen A. Kapsourakis / For the Item
NEWBURYPORT - A Lynn man convicted of raping and beating a woman with a sword at his Alley Street home in 2008 may spend up to 25 years behind bars.Cornelius Moore, 52, of 82 Alley St., #2, Lynn, went on trial last week in Newburyport Superior Court on charges of aggravated rape and assault and battery with a dangerous weapon, a sword, in connection with a sexual assault at his home on Aug. 18, 2008.A 12-person jury comprised of eight women and four men deliberated for about three hours, finding Moore guilty as charged Tuesday afternoon.He was sentenced Wednesday afternoon by Judge Richard E. Welch, III, to serve 12-to-15 years in state prison on the aggravated rape charge and will serve another 8-to-10-years in prison on the assault and battery with a dangerous weapon charge.In essence, Moore will serve not less than 20 years and not more than 25 years in prison before he is released.Assistant District Attorney Greg A. Friedholm presented evidence at trial that on the night of Aug. 18 the victim, who was in her 50s, went to his apartment to apparently see an area where she could store some items. They were acquaintances at the time.While at his apartment, Moore forced himself on the woman while threatening and beating her with a sword.Defense lawyer Rebecca Whitehill argued during the trial that the women had fabricated the incident and that her client was innocent of all charges. Moore did not take the stand in his own defense.Friedholm sought a 25-to-30 year punishment, saying it was based upon "not only the violence perpetrated upon the victim, but also takes into consideration the violent criminal history of the defendant that spanned two decades," he said.Moore has numerous violence charges on his record, including a 2005 Lynn incident when he allegedly rammed his car at patrons standing outside Cesar's Palace Lounge on Buffum Street after bartenders had ejected him for being belligerent and verbally abusive.Moore is also a registered sex offender for being previously convicted of indecent assault and battery.Whitehill asked the judge for leniency, proposing a lesser punishment.Friedholm later credited the work of the Lynn Police Department for their investigation of the case.Moore was indicted by an Essex County grand jury in September of 2008 and has been held in custody in lieu of $50,000 cash bail since being arraigned. The judge credited him the 562 days he spent awaiting trial on the case.
Thursday, February 25, 2010
Reject Senate bill on CORI reform
Reject Senate bill on CORI reform
The Lowell Sun
02/24/2010
By Laurie Myers
It has been three years since Deval Patrick became the governor of Massachusetts, and one of the items that topped his agenda was "reforming" Criminal Offender Record Information (CORI). He claimed the existence of criminal records prevented criminals from obtaining jobs and housing, but those of us who are involved in supporting victims of violent crime argue that sealing criminal records at all would provide the secrecy that only perpetuates more crimes.
In 2008 and throughout his campaign, the governor announced that sex offender records would not be eligible for sealing. This was something we had hoped for and with which CORI activists agreed. The governor stayed true to his word during his first two years in office, but the bill died during the last legislative cycle. Along with it died the governor's word that he would not give a free pass to those convicted of crimes against the most vulnerable.
In the governor's second filing of his CORI reform bill, he decided to allow sex offenders who have been relieved of their obligation to register with the Sex Offender Registry to have their records sealed. What he failed to address is the loophole in our law that allows judges to waive the sex-offender registration requirement. According to Kevin Burke, former secretary of public safety and security, the change was the result of the governor wanting to be "fair."
Let's talk about what's fair.
Every court from the U.S. Supreme Court to the Massachusetts Supreme Judicial Court has agreed that the public has the right to know if a person convicted of a sex crime lives or works in their community, but the governor would rather err on the side of secrecy and create a new set of "privacy" rights to those who choose to commit a crime than honor the decisions handed down by the courts.
The CORI "reform" legislation goes even one step further and exempts the government and businesses from liability if a person hired under the new veil of secrecy commits a crime. "No employer or person relying on volunteers shall be liable for negligent hiring practices by reason of relying solely on criminal offender record information received from the department and not performing additional criminal history background checks."
So who suffers? You! And it gets better. If this law passes and you happen to be lucky enough to obtain criminal information and decide to not hire someone based on what you've learned, you could be brought before "the commissioner" or his designee whose new job it will be to "investigate" complaints pertaining to misuse of the public safety information and issue sanctions and penalties for "misuse," including fines up to $5,000 for each violation." The new commissioner would also have the power to forward information for criminal prosecution if he interpreted its use to "cause a reasonable person to suffer emotional distress" and if found guilty, the person "shall be punished by a fine of not more than $5,000 or imprisoned in a jail or house of correction for not more than one year, or both."
This new law would create a new group of criminals in Massachusetts -- the law abiding -- along with the final stage of moral bankruptcy, an all new low for even the state of Massachusetts.
This bill passed the Massachusetts Senate in November, currently awaits action by the House of Representatives and is close to becoming law. We all agree that people deserve second chances, but at what cost? More than 20 other states make all criminal conviction information public and CORI, as it stands now, limits the public's access to criminal information. We should eliminate CORI all together and dedicate the resources to making sure all information is correct. If a citizen makes a request for criminal information it should be accurate and up to date, not hidden because the governor thinks he knows what's best.
Sorry, governor, ignorance is not bliss, and the way to stop the pattern of abuse is not to wave a magic wand and make the records disappear. Just ask the family members of the victims of Amy Bishop. Contact your legislators and let them know that S2220 is misguided and should not be acted on.
Laurie Myers is the president of Community VOICES, a victims' rights organization, a former rape crisis counselor and a resident of Chelmsford.
Read more:http://www.lowellsun.com/ci_14460692?IADID=Search-www.lowellsun.com-www.lowellsun.com#ixzz0gaogqxi7
The Lowell Sun
02/24/2010
By Laurie Myers
It has been three years since Deval Patrick became the governor of Massachusetts, and one of the items that topped his agenda was "reforming" Criminal Offender Record Information (CORI). He claimed the existence of criminal records prevented criminals from obtaining jobs and housing, but those of us who are involved in supporting victims of violent crime argue that sealing criminal records at all would provide the secrecy that only perpetuates more crimes.
In 2008 and throughout his campaign, the governor announced that sex offender records would not be eligible for sealing. This was something we had hoped for and with which CORI activists agreed. The governor stayed true to his word during his first two years in office, but the bill died during the last legislative cycle. Along with it died the governor's word that he would not give a free pass to those convicted of crimes against the most vulnerable.
In the governor's second filing of his CORI reform bill, he decided to allow sex offenders who have been relieved of their obligation to register with the Sex Offender Registry to have their records sealed. What he failed to address is the loophole in our law that allows judges to waive the sex-offender registration requirement. According to Kevin Burke, former secretary of public safety and security, the change was the result of the governor wanting to be "fair."
Let's talk about what's fair.
Every court from the U.S. Supreme Court to the Massachusetts Supreme Judicial Court has agreed that the public has the right to know if a person convicted of a sex crime lives or works in their community, but the governor would rather err on the side of secrecy and create a new set of "privacy" rights to those who choose to commit a crime than honor the decisions handed down by the courts.
The CORI "reform" legislation goes even one step further and exempts the government and businesses from liability if a person hired under the new veil of secrecy commits a crime. "No employer or person relying on volunteers shall be liable for negligent hiring practices by reason of relying solely on criminal offender record information received from the department and not performing additional criminal history background checks."
So who suffers? You! And it gets better. If this law passes and you happen to be lucky enough to obtain criminal information and decide to not hire someone based on what you've learned, you could be brought before "the commissioner" or his designee whose new job it will be to "investigate" complaints pertaining to misuse of the public safety information and issue sanctions and penalties for "misuse," including fines up to $5,000 for each violation." The new commissioner would also have the power to forward information for criminal prosecution if he interpreted its use to "cause a reasonable person to suffer emotional distress" and if found guilty, the person "shall be punished by a fine of not more than $5,000 or imprisoned in a jail or house of correction for not more than one year, or both."
This new law would create a new group of criminals in Massachusetts -- the law abiding -- along with the final stage of moral bankruptcy, an all new low for even the state of Massachusetts.
This bill passed the Massachusetts Senate in November, currently awaits action by the House of Representatives and is close to becoming law. We all agree that people deserve second chances, but at what cost? More than 20 other states make all criminal conviction information public and CORI, as it stands now, limits the public's access to criminal information. We should eliminate CORI all together and dedicate the resources to making sure all information is correct. If a citizen makes a request for criminal information it should be accurate and up to date, not hidden because the governor thinks he knows what's best.
Sorry, governor, ignorance is not bliss, and the way to stop the pattern of abuse is not to wave a magic wand and make the records disappear. Just ask the family members of the victims of Amy Bishop. Contact your legislators and let them know that S2220 is misguided and should not be acted on.
Laurie Myers is the president of Community VOICES, a victims' rights organization, a former rape crisis counselor and a resident of Chelmsford.
Read more:http://www.lowellsun.com/ci_14460692?IADID=Search-www.lowellsun.com-www.lowellsun.com#ixzz0gaogqxi7
Saturday, February 20, 2010
Haverhill man gets 23 year sentence for raping child
http://www.eagletribune.com/punewshh/local_story_048224418.html?keyword=topstory
Eagle Tribune
Haverhill man gets 23-year sentence for raping child
LAWRENCE — A Haverhill man could spend more than two decades behind bars after being convicted last week of raping a young Lawrence girl in 1997.
Lawrence Superior Court Judge Leila Kern yesterday sentenced Kevin Quinn, 44, to 23 years in state prison for rape of a child with force and two counts of indecent assault and battery on a child under 14.
The victim, who is now 19, disclosed the sexual abuse in June 2007 — 10 years after two separate instances.
After hearing testimony in a weeklong trial, the jury deliberated for close to three hours before finding Quinn guilty of indecently assaulting the girl.
Quinn, who was already registered as a Level 3 sex offender, had previously received a 10- to 15-year prison sentence after pleading guilty for aggravated rape in 1986.
The victim in that case also was from Lawrence.
Once released from prison, Quinn will be on probation for five years. Judge Kern ordered him to have no direct or indirect contact with the victim or her family.
The judge also ordered him to have no contact with any children under 16, comply with the requirements of the Sex Offender Registry Board, and participate in a sex offender treatment program.
Essex County Assistant District Attorney Karen Hopwood prosecuted Quinn, who was represented by attorney Lynette Leos of the Committee for Public Counsel Services.
Hopwood praised the work of victim/witness advocate Amy Snow and Lawrence Detective Daniel Fitzpatrick.
Eagle Tribune
Haverhill man gets 23-year sentence for raping child
LAWRENCE — A Haverhill man could spend more than two decades behind bars after being convicted last week of raping a young Lawrence girl in 1997.
Lawrence Superior Court Judge Leila Kern yesterday sentenced Kevin Quinn, 44, to 23 years in state prison for rape of a child with force and two counts of indecent assault and battery on a child under 14.
The victim, who is now 19, disclosed the sexual abuse in June 2007 — 10 years after two separate instances.
After hearing testimony in a weeklong trial, the jury deliberated for close to three hours before finding Quinn guilty of indecently assaulting the girl.
Quinn, who was already registered as a Level 3 sex offender, had previously received a 10- to 15-year prison sentence after pleading guilty for aggravated rape in 1986.
The victim in that case also was from Lawrence.
Once released from prison, Quinn will be on probation for five years. Judge Kern ordered him to have no direct or indirect contact with the victim or her family.
The judge also ordered him to have no contact with any children under 16, comply with the requirements of the Sex Offender Registry Board, and participate in a sex offender treatment program.
Essex County Assistant District Attorney Karen Hopwood prosecuted Quinn, who was represented by attorney Lynette Leos of the Committee for Public Counsel Services.
Hopwood praised the work of victim/witness advocate Amy Snow and Lawrence Detective Daniel Fitzpatrick.
DA: Rapist strikes again
http://wbztv.com/video/?id=86938@wbz.dayport.com
DA: Rapist strikes again
Sex offender was free despite violating probation
By Laura CrimaldiSaturday, February 20, 2010 -
A Framingham rapist and Level 3 sex offender is accused of breaking his GPS monitoring bracelet and committing another rape and kidnapping after he violated his probation last month but was allowed to remain free.
Prosecutors say William French, 29, raped a woman in Framingham on Thursday, just two days after Middlesex Superior Court Judge Howard Whitehead ordered French to wear a GPS monitoring bracelet for one year because he violated the terms of his probation by testing positive for smoking pot Jan. 4.
“This is a terribly disturbing case,” Middlesex District Attorney Gerard Leone said in a statement. “We allege that the defendant’s chilling actions occurred . . . just days after he was placed on GPS monitoring by the Probation Department for a probation violation.”
Prosecutors say probation officials were alerted at 11:25 p.m. on Thursday after French removed his GPS monitoring bracelet. A warrant for his arrest was issued 20 minutes later.
It was unclear yesterday what limits were placed on French’s movements under the terms of his electronic monitoring. French lives with his grandparents in Framingham, court records show.
A spokeswoman for the Office of the Commissioner of Probation responded only to e-mailed questions yesterday and stated without providing further details that a warrant was issued Thursday after probation officials learned French had cut off the bracelet. A judicial spokeswoman could not be reached late yesterday to comment on Whitehead’s decision Tuesday to let him remain free.
Details of the latest rape and kidnapping allegations were not released. Framingham District Court Judge Sarah B. Singer ordered the police report impounded and police refused to discuss it. A police log shows French was arrested at 2:50 a.m. yesterday at Framingham police headquarters.
French, who appeared in court wrapped in a blanket that covered his face, was charged with aggravated rape, kidnapping, assault and battery, unarmed robbery, burglary, armed assault and making threats. He is due back in court Thursday for a dangerousness hearing.
French was sentenced to eight to nine years in state prison after pleading guilty to aggravated rape in 2002, according to the Middlesex District Attorney’s Office.
French was released on probation June 24, said Department of Correction spokeswoman Diane Wiffin.
The terms of French’s six-year probation require him to stay drug- and alcohol-free, submit to random drug screens, undergo sex offender treatment and have no contact with the victim.
In the prior rape case, French told the victim he had a gun and threatened to kill her and her 13-year-old daughter, who was sleeping in another room, if she did not comply, court records show.
French’s record also includes a string of prior arrests for larceny, assault, threats and burglary.
DA: Rapist strikes again
Sex offender was free despite violating probation
By Laura CrimaldiSaturday, February 20, 2010 -
A Framingham rapist and Level 3 sex offender is accused of breaking his GPS monitoring bracelet and committing another rape and kidnapping after he violated his probation last month but was allowed to remain free.
Prosecutors say William French, 29, raped a woman in Framingham on Thursday, just two days after Middlesex Superior Court Judge Howard Whitehead ordered French to wear a GPS monitoring bracelet for one year because he violated the terms of his probation by testing positive for smoking pot Jan. 4.
“This is a terribly disturbing case,” Middlesex District Attorney Gerard Leone said in a statement. “We allege that the defendant’s chilling actions occurred . . . just days after he was placed on GPS monitoring by the Probation Department for a probation violation.”
Prosecutors say probation officials were alerted at 11:25 p.m. on Thursday after French removed his GPS monitoring bracelet. A warrant for his arrest was issued 20 minutes later.
It was unclear yesterday what limits were placed on French’s movements under the terms of his electronic monitoring. French lives with his grandparents in Framingham, court records show.
A spokeswoman for the Office of the Commissioner of Probation responded only to e-mailed questions yesterday and stated without providing further details that a warrant was issued Thursday after probation officials learned French had cut off the bracelet. A judicial spokeswoman could not be reached late yesterday to comment on Whitehead’s decision Tuesday to let him remain free.
Details of the latest rape and kidnapping allegations were not released. Framingham District Court Judge Sarah B. Singer ordered the police report impounded and police refused to discuss it. A police log shows French was arrested at 2:50 a.m. yesterday at Framingham police headquarters.
French, who appeared in court wrapped in a blanket that covered his face, was charged with aggravated rape, kidnapping, assault and battery, unarmed robbery, burglary, armed assault and making threats. He is due back in court Thursday for a dangerousness hearing.
French was sentenced to eight to nine years in state prison after pleading guilty to aggravated rape in 2002, according to the Middlesex District Attorney’s Office.
French was released on probation June 24, said Department of Correction spokeswoman Diane Wiffin.
The terms of French’s six-year probation require him to stay drug- and alcohol-free, submit to random drug screens, undergo sex offender treatment and have no contact with the victim.
In the prior rape case, French told the victim he had a gun and threatened to kill her and her 13-year-old daughter, who was sleeping in another room, if she did not comply, court records show.
French’s record also includes a string of prior arrests for larceny, assault, threats and burglary.
Friday, January 29, 2010
Police: Southie man charged in global child porn network
Boston Herald
Police: Southie man charged in global child porn network
By Laura CrimaldiFriday,
January 29, 2010
Investigators probing a South Boston man who allegedly amassed one of the world’s largest child-porn collections found movie files showing girls as young as 5 or 6 years old having sex with men, records show.
George A. Shipps, 47, who has a criminal record going back to 1975, was held this morning on $100,000 bail on one count of possession of child pornography and one count of distributing child pornography.
A state police arrest report states a depraved movie depicting young girls engaged in sex acts was one of 16,000 child porn files officers allegedly found last night on file sharing software on Shipps’ computer.
Shipps, a father of five adult children, allegedly confessed when officers showed up at his home, said Assistant Attorney General Christopher Kelly.
“He admitted he had child porn on his computer system. He admitted it was his,” said Kelly. “He said he didn’t know what he would do if his children were the ones depicted in these files.”
Shipps pleaded not guilty to both counts at his arraignment in South Boston District Court. He is due back in court on Feb. 26.
Kelly said Bay State authorities began investigating Shipps earlier this month after being informed he was sharing thousands of child-porn files by Pennsylvania law enforcement.
Child pornography is typically swapped using special file sharing software, Kelly said.
Shipps’ criminal record includes 18 entries on his juvenile record and 55 entries on his adult record, Kelly said. He added Shipps spent time in jail in 1990 and 1994. Among the charges on his adult record are assault and assault and battery on a police officer, Kelly said. Court records show he received psychiatric care for violence.
His court-appointed attorney said Shipps denies the charges and described the technology used by investigators to trace child porn as flawed.
“There are things he says are pop-ups,” said defense attorney Robert Menton. “I believe a lot of it is hunch rather than solid information.”
Menton also questioned Kelly’s claim that Shipps had amassed one of the world’s largest child porn collections.
“I haven’t seen a list and I don’t believe there’s a list,” he said. “It has very little relevance to the case at all.”
Menton said Shipps was recently laid off from his store manager position at True Value Hardware in Newton. He said Shipps attended Quincy College and previously worked for eight years at Home Depot.
A female associate of Shipps who was in court declined comment.
http://www.bostonherald.com/news/regional/view/20100129man_charged_with_possession_dissemination_of_child_porn/srvc=home&position=2
Police: Southie man charged in global child porn network
By Laura CrimaldiFriday,
January 29, 2010
Investigators probing a South Boston man who allegedly amassed one of the world’s largest child-porn collections found movie files showing girls as young as 5 or 6 years old having sex with men, records show.
George A. Shipps, 47, who has a criminal record going back to 1975, was held this morning on $100,000 bail on one count of possession of child pornography and one count of distributing child pornography.
A state police arrest report states a depraved movie depicting young girls engaged in sex acts was one of 16,000 child porn files officers allegedly found last night on file sharing software on Shipps’ computer.
Shipps, a father of five adult children, allegedly confessed when officers showed up at his home, said Assistant Attorney General Christopher Kelly.
“He admitted he had child porn on his computer system. He admitted it was his,” said Kelly. “He said he didn’t know what he would do if his children were the ones depicted in these files.”
Shipps pleaded not guilty to both counts at his arraignment in South Boston District Court. He is due back in court on Feb. 26.
Kelly said Bay State authorities began investigating Shipps earlier this month after being informed he was sharing thousands of child-porn files by Pennsylvania law enforcement.
Child pornography is typically swapped using special file sharing software, Kelly said.
Shipps’ criminal record includes 18 entries on his juvenile record and 55 entries on his adult record, Kelly said. He added Shipps spent time in jail in 1990 and 1994. Among the charges on his adult record are assault and assault and battery on a police officer, Kelly said. Court records show he received psychiatric care for violence.
His court-appointed attorney said Shipps denies the charges and described the technology used by investigators to trace child porn as flawed.
“There are things he says are pop-ups,” said defense attorney Robert Menton. “I believe a lot of it is hunch rather than solid information.”
Menton also questioned Kelly’s claim that Shipps had amassed one of the world’s largest child porn collections.
“I haven’t seen a list and I don’t believe there’s a list,” he said. “It has very little relevance to the case at all.”
Menton said Shipps was recently laid off from his store manager position at True Value Hardware in Newton. He said Shipps attended Quincy College and previously worked for eight years at Home Depot.
A female associate of Shipps who was in court declined comment.
http://www.bostonherald.com/news/regional/view/20100129man_charged_with_possession_dissemination_of_child_porn/srvc=home&position=2
City man guilty of raping boy
The Eagle Tribune
City man guilty of raping boy
January 29, 2010
By Jim Patten
jpatten@eagletribune.com
HAVERHILL — A man accused of molesting a 12-year-old boy for nearly a year will spend five to eight years in state prison.
Jeffrey Perry, 39, of 99 Emerson St., received the sentence yesterday in Salem Superior Court after pleading guilty. His prison term will be followed by three years of supervised probation upon his release, according to the sentence.
Perry also was ordered to comply with the requirements of the state Sex Offender Registry Board, complete sex offender treatment, have no contact with the victim, no unsupervised contact with any child under 16, and be subject to GPS monitoring.
The plea, agreed upon by the prosecution and defense, was done to prevent any further trauma the victim would have suffered by having to take the stand at trial, said Steve O'Connell, spokesman for the district attorney's office.
Perry pleaded guilty to a total of 12 charges during the hearing before Judge David Lowy.
They included eight counts of indecent assault and battery, one count of disseminating pornography to a minor, and three counts of rape of a child.
Perry was arrested Aug. 10 while Detective Carl Rogers and state police Detective Sgt. Paul Zipper were investigating an Aug. 9 arson fire in the apartment of Patricia Mandigo, 55, of 99 Emerson St.
Perry and his elderly mother had been staying in a bedroom at Mandigo's apartment, and when Rogers and Zipper returned there on Aug. 10 to continue their investigation, they encountered Perry and the boy.
While they were interviewing them, the officers quickly realized the two were sharing a bed, police said. The boy is known to Mandigo, police said.
The officers said that when they questioned Perry later at the police station, he admitted to molesting the boy. They called in Detective Andrea Fogarty, who was able to speak with the boy, police said. The boy confirmed what Perry told Rogers and Zipper, and Perry was then arrested, police said.
At the time of his arrest, police described Perry as a classic sexual predator who bought the victim gifts to gain his trust before luring him into sexual acts.
Perry told police the sexual activity began in September 2008 while he was living in Lawrence, and continued when he moved to Haverhill and until his arrest in August of last year.
Police said at the time of the arrest that Perry was a convicted Level 1 sex offender.
Assistant District Attorney Kate MacDougall prosecuted the case. Perry was represented by Amanda Barker from the state's Committee for Public Counsel Services.
When Rogers and Zipper discovered the relationship between Perry and the boy, they were in the middle of investigating three fires that had been set in and around Mandigo's apartment the day before.
That investigation led them to charge her with eight counts of arson of a dwelling, which included a fire in her apartment at 94 Emerson St., where she had been living the previous December. The fire destroyed the building.
Mandigo continues to be held without bail and is awaiting trial on arson charges.
http://www.eagletribune.com/punewshh/local_story_029002216.html?keyword=secondarystory
City man guilty of raping boy
January 29, 2010
By Jim Patten
jpatten@eagletribune.com
HAVERHILL — A man accused of molesting a 12-year-old boy for nearly a year will spend five to eight years in state prison.
Jeffrey Perry, 39, of 99 Emerson St., received the sentence yesterday in Salem Superior Court after pleading guilty. His prison term will be followed by three years of supervised probation upon his release, according to the sentence.
Perry also was ordered to comply with the requirements of the state Sex Offender Registry Board, complete sex offender treatment, have no contact with the victim, no unsupervised contact with any child under 16, and be subject to GPS monitoring.
The plea, agreed upon by the prosecution and defense, was done to prevent any further trauma the victim would have suffered by having to take the stand at trial, said Steve O'Connell, spokesman for the district attorney's office.
Perry pleaded guilty to a total of 12 charges during the hearing before Judge David Lowy.
They included eight counts of indecent assault and battery, one count of disseminating pornography to a minor, and three counts of rape of a child.
Perry was arrested Aug. 10 while Detective Carl Rogers and state police Detective Sgt. Paul Zipper were investigating an Aug. 9 arson fire in the apartment of Patricia Mandigo, 55, of 99 Emerson St.
Perry and his elderly mother had been staying in a bedroom at Mandigo's apartment, and when Rogers and Zipper returned there on Aug. 10 to continue their investigation, they encountered Perry and the boy.
While they were interviewing them, the officers quickly realized the two were sharing a bed, police said. The boy is known to Mandigo, police said.
The officers said that when they questioned Perry later at the police station, he admitted to molesting the boy. They called in Detective Andrea Fogarty, who was able to speak with the boy, police said. The boy confirmed what Perry told Rogers and Zipper, and Perry was then arrested, police said.
At the time of his arrest, police described Perry as a classic sexual predator who bought the victim gifts to gain his trust before luring him into sexual acts.
Perry told police the sexual activity began in September 2008 while he was living in Lawrence, and continued when he moved to Haverhill and until his arrest in August of last year.
Police said at the time of the arrest that Perry was a convicted Level 1 sex offender.
Assistant District Attorney Kate MacDougall prosecuted the case. Perry was represented by Amanda Barker from the state's Committee for Public Counsel Services.
When Rogers and Zipper discovered the relationship between Perry and the boy, they were in the middle of investigating three fires that had been set in and around Mandigo's apartment the day before.
That investigation led them to charge her with eight counts of arson of a dwelling, which included a fire in her apartment at 94 Emerson St., where she had been living the previous December. The fire destroyed the building.
Mandigo continues to be held without bail and is awaiting trial on arson charges.
http://www.eagletribune.com/punewshh/local_story_029002216.html?keyword=secondarystory
Wednesday, January 27, 2010
Quincy sex offender denies rape charges
Boston Herald
Quincy sex offender denies rape charges
2 victims have no memory of encounter
By Laura Crimaldi Wednesday, January 27, 2010
A Level 2 sex offender accused of raping two women he hooked up with in a Quincy bar first told cops he stayed awake to care for the drunken women but then admitted he had sexual encounters with both.
But Patrick Banks, 21, of Quincy insisted the woozy all-nighter with the two women, ages 23 and 24, was not rape.
Banks was ordered held yesterday on $25,000 bail at his Quincy District Court arraignment on five counts of rape and two counts of indecent assault and battery on a person over 14.
Norfolk County Assistant District Attorney Beth Walston said the two alleged victims have “no recollection” of what happened after drinking a beer and a fruity drink Banks bought for them at a Quincy bar Friday night.
Walston said the women learned what happened from what Banks told them Saturday morning and from text messages he sent to them over the weekend.
Both women submitted blood and urine samples for testing to determine whether they were drugged. Walston said the test results are pending.
Banks was arrested Monday afternoon at the Quincy police station after being interviewed by cops, said police Capt. John Dougan. Banks initially told police after leaving the bar he accompanied the women to one of their homes, where one of the alleged victims threw up for 25 minutes in the bathroom.
“He stated he was concerned because the girls were so intoxicated,” Walston said. Banks later changed his story, saying he had sexual intercourse with one woman and touched the breasts and put his tongue in the mouth of the second woman, Walston said.
She added Banks told the second woman they did not have sex, but then informed her they did in a text message.
Banks’ defense attorney, Robert Tutino, said the police report has “major inconsistencies” and noted one of the alleged victims sent Banks a text message earlier on Friday about going to the bar.
Banks had to register as a sex offender and serve time in the Department of Youth Services for a juvenile conviction for two counts of open and gross lewdness, assault with intent to rape and witness intimidation, Walston said.
Three restraining orders have been issued against Banks, including one that is permanent. An affidavit submitted on behalf of a juvenile girl for the permanent order states Banks tried to rape the girl in a playground on Oct. 27, 2004, records show.
Banks is due back in court on Feb. 18.
Quincy sex offender denies rape charges
2 victims have no memory of encounter
By Laura Crimaldi Wednesday, January 27, 2010
A Level 2 sex offender accused of raping two women he hooked up with in a Quincy bar first told cops he stayed awake to care for the drunken women but then admitted he had sexual encounters with both.
But Patrick Banks, 21, of Quincy insisted the woozy all-nighter with the two women, ages 23 and 24, was not rape.
Banks was ordered held yesterday on $25,000 bail at his Quincy District Court arraignment on five counts of rape and two counts of indecent assault and battery on a person over 14.
Norfolk County Assistant District Attorney Beth Walston said the two alleged victims have “no recollection” of what happened after drinking a beer and a fruity drink Banks bought for them at a Quincy bar Friday night.
Walston said the women learned what happened from what Banks told them Saturday morning and from text messages he sent to them over the weekend.
Both women submitted blood and urine samples for testing to determine whether they were drugged. Walston said the test results are pending.
Banks was arrested Monday afternoon at the Quincy police station after being interviewed by cops, said police Capt. John Dougan. Banks initially told police after leaving the bar he accompanied the women to one of their homes, where one of the alleged victims threw up for 25 minutes in the bathroom.
“He stated he was concerned because the girls were so intoxicated,” Walston said. Banks later changed his story, saying he had sexual intercourse with one woman and touched the breasts and put his tongue in the mouth of the second woman, Walston said.
She added Banks told the second woman they did not have sex, but then informed her they did in a text message.
Banks’ defense attorney, Robert Tutino, said the police report has “major inconsistencies” and noted one of the alleged victims sent Banks a text message earlier on Friday about going to the bar.
Banks had to register as a sex offender and serve time in the Department of Youth Services for a juvenile conviction for two counts of open and gross lewdness, assault with intent to rape and witness intimidation, Walston said.
Three restraining orders have been issued against Banks, including one that is permanent. An affidavit submitted on behalf of a juvenile girl for the permanent order states Banks tried to rape the girl in a playground on Oct. 27, 2004, records show.
Banks is due back in court on Feb. 18.
Thursday, January 21, 2010
Holliston man gets seven years in child porn case
Holliston Tab
Holliston man gets seven years in child porn case
By Norman Miller/Daily News staff
Thu Jan 21, 2010
WOBURN - A Holliston man who once told police he treated his son's friend like a son was sentenced Tuesday to at least seven years in prison for raping the boy.
Michael Finos, 46, pleaded guilty to raping the boy, sexually assaulting the boy and several child pornography-related charges in Middlesex Superior Court on Tuesday.
He had originally pleaded not guilty to all of the charges.
Finos was arrested on July 19, 2009, at his 256 Fiske St. home.
Finos pleaded guilty to rape of a child by force, two counts of indecent assault and battery on a child younger than 14, two counts of posing a child in a state of nudity, inducing a minor into sexual intercourse, possession of child pornography and dissemination of matter harmful to a minor.
Finos was sentenced to seven to eight years in prison for the rape charge and the two counts of indecent assault and battery, all to run concurrently.
He was also sentenced to 10 years supervised probation once he is released from MCI-Cedar Junction on the rest of the charges.
At Finos' Framingham District Court arraignment on July 21, the victim's mother said she felt betrayed by him. The Daily News is not identifying the mother because it would identify her son.
"He's not sick. Sick people can be cured," the woman said after the arraignment. "Poor little boys are innocent lambs to him. He told the police, 'I treated him like a son.' He told me a year ago, 'He is like a third son."'
(Norman Miller can be reached at 508-626-3823 or nmiller@cnc.com.)
http://www.wickedlocal.com/holliston/news/x1685419196/Holliston-man-gets-seven-years-in-child-porn-case
Holliston man gets seven years in child porn case
By Norman Miller/Daily News staff
Thu Jan 21, 2010
WOBURN - A Holliston man who once told police he treated his son's friend like a son was sentenced Tuesday to at least seven years in prison for raping the boy.
Michael Finos, 46, pleaded guilty to raping the boy, sexually assaulting the boy and several child pornography-related charges in Middlesex Superior Court on Tuesday.
He had originally pleaded not guilty to all of the charges.
Finos was arrested on July 19, 2009, at his 256 Fiske St. home.
Finos pleaded guilty to rape of a child by force, two counts of indecent assault and battery on a child younger than 14, two counts of posing a child in a state of nudity, inducing a minor into sexual intercourse, possession of child pornography and dissemination of matter harmful to a minor.
Finos was sentenced to seven to eight years in prison for the rape charge and the two counts of indecent assault and battery, all to run concurrently.
He was also sentenced to 10 years supervised probation once he is released from MCI-Cedar Junction on the rest of the charges.
At Finos' Framingham District Court arraignment on July 21, the victim's mother said she felt betrayed by him. The Daily News is not identifying the mother because it would identify her son.
"He's not sick. Sick people can be cured," the woman said after the arraignment. "Poor little boys are innocent lambs to him. He told the police, 'I treated him like a son.' He told me a year ago, 'He is like a third son."'
(Norman Miller can be reached at 508-626-3823 or nmiller@cnc.com.)
http://www.wickedlocal.com/holliston/news/x1685419196/Holliston-man-gets-seven-years-in-child-porn-case
Friday, January 15, 2010
Commonwealth vs. Paul Shanley
COMMONWEALTH vs. Paul SHANLEY.
SJC-10382
September 10, 2009. - January 15, 2010.Child Abuse. Evidence, Expert opinion, Qualification of expert witness, Scientific test. Witness, Expert. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, New trial, Judicial discretion, Argument by prosecutor. Practice, Civil, Instructions to jury. Limitations, Statute of. Indecent Assault and Battery.INDICTMENTS found and returned in the Superior Court Department on June 9, 2002.The cases were tried before Stephen E. Neel, J., and a motion for a new trial, filed on November 14, 2007, was heard by him.The Supreme Judicial Court granted an application for direct appellate review.Robert F. Shaw, Jr., for the defendant.Loretta M. Lillios & Bethany Stevens, Assistant District Attorneys, for the Commonwealth.The following submitted briefs for amici curiae:R. Christopher Barden & Eric Tennen for International Committee of Social, Psychiatric, Psychological, Cognitive Science, Neuroscience, and Neurological Scientists.Paul R. Rudof, Committee for Public Counsel Services, for Committee for Public Counsel Services.Wendy J. Murphy for Leadership Council for Child Abuse and Interpersonal Violence. Thomas A. Pavlinic for False Memory Syndrome Foundation.Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.CORDY, J.On February 7, 2005, Paul Shanley was convicted of sexual abuse of a child: two indictments charging rape, in violation of G.L. c. 265, § 23; and two indictments charging indecent assault and battery on a person under the age of fourteen years, in violation of G.L. c. 265, § 13B. The abuse occurred between 1983 and 1989 when the victim was attending Confraternity of Christian Doctrine (CCD) classes at the church where the defendant served as a Catholic priest. The victim testified that he did not remember being abused by the defendant until nearly twenty years later, when he learned that other individuals had publicly made allegations that the defendant had sexually abused them when they were children. The victim's testimony about what he remembered of that abuse constituted the core of the evidence against the defendant at trial.The defendant appealed from his convictions, and subsequently filed a motion for a new trial. The appeal proceedings were stayed pending resolution of the new trial motion, which was denied by the trial judge on November 26, 2008. The defendant appealed from the denial of this motion and that appeal was consolidated with the appeal from his convictions. We granted the defendant's application for direct appellate review.On appeal, the defendant contends that he is entitled to a new trial because (1) the judge erred in admitting expert testimony related to "repressed memory" [FN1]; (2) his trial counsel was ineffective for failing to prevent the admission of such expert testimony and for failing to challenge it adequately at trial; (3) the prosecutor made improper arguments during her closing; and (4) the judge erred in his instruction to the jury regarding the statute of limitations on the indecent assault and battery indictments. We affirm.1. Trial. a. The Commonwealth's case. The Commonwealth's case included the testimony of the victim as to his memory of the abuse he suffered at the hands of the defendant; the testimony of witnesses who observed the victim during the period of time when he claims he recovered that memory; the testimony of an expert witness on dissociative amnesia and recovered memory; and the testimony of individuals who could corroborate that the victim both attended CCD classes during the time period he alleges he was abused, and occasionally left those classes for behavioral reasons. The Commonwealth also presented evidence regarding the defendant's role and presence at the church where the abuse occurred, as well as his whereabouts outside of Massachusetts after he left that church in 1990. [FN2]Setting aside the victim's testimony regarding the alleged sexual abuse, and the testimony of the Commonwealth's expert, the jury could have found the following facts. The defendant was a priest at St. Jean's Church in Newton during the years when the victim was enrolled in CCD classes there. He would often check on the children while they were in their CCD classes on Sundays. Children ranging from the ages of six to fourteen, including the victim, attended these classes.The victim was born on September 9, 1977, and grew up in Newton with two siblings. His parents separated when he was four years of age and, after a short stay with his mother, he lived primarily with his father in his paternal grandmother's house. The victim attended CCD classes with the same group ofchildren at St. Jean's Church from first grade (in 1983) until he reached eighth grade. During the years the victim attended CCD classes, some of the children became quite boisterous and periodically were required to leave the classroom. The victim and two of his friends in particular were disciplined often, both in the lower grades and when they were in fourth or fifth grade. On occasion, the defendant admonished those who were required to leave the classroom for misbehavior, and the victim was observed leaving the classroom with the defendant on several occasions.Several years after graduating from high school, the victim joined the Air Force. After being trained as an Air Force police officer, he was stationed at Peterson Air Force Base in Colorado Springs, Colorado. He returned home to Massachusetts for a visit in spring of 2001 and began a romantic relationship with Tammy. [FN3] Their relationship continued when the victim returned to Colorado, with Tammy visiting the victim and the two often speaking on the telephone.Tammy telephoned the victim on January 31, 2002, and mentioned an article published in a Boston newspaper concerning the defendant and allegations of child sexual abuse. The victim expressed surprise at the contents of the article, commenting to Tammy, "That's weird, everybody liked him." After thisconversation, the victim began remembering being taken out of CCD class by the defendant, but he did not remember anything else. He also began reading newspaper articles on the Internet about the allegations and looking at photographs of the defendant.On February 11, 2002, Tammy again telephoned the victim and told him that one of his childhood friends and former CCD classmates had made an allegation of abuse against the defendant. The victim had a strong emotional and physical reaction to this news. Shortly after this conversation, the victim contacted his flight chief and said that he was not coming to work.Later on that same day, the victim spoke with the childhood friend who had made the allegation of abuse. Early the next morning, the victim contacted a personal injury attorney, with whom he later entered into a fee agreement. The victim also went to see Captain John F. Drozd, a psychologist on the Air Force base to talk with him about his mental state. [FN4] He stayed at Drozd's office for ten to twelve hours and felt awful, confused and sick. Drozd recommended that the victim keep a journal, which he did, backdating his entries to the first conversation with Tammy on January 31. [FN5]The victim returned to Massachusetts on February 15, 2002. [FN6] He briefly returned to Colorado, [FN7] where he ultimately received an honorable discharge from the military in April, 2002. He then returned to live with Tammy in Massachusetts. After joining a civil suit brought against the Archdiocese of Boston (based on the abuse he alleged against the defendant) he received a settlement in the amount of $500,000.With respect to the sexual abuse, the victim testified at the defendant's trial to the following based on the memories that came back to him after learning of the allegations made by others. The defendant began sexually abusing him when he was approximately six years of age and first began attending CCD classes. The defendant would take the victim out of his CCD class, bring him to the bathroom in the basement, unzip the victim's pants watch him urinate, and then touch the victim's penis with his hand and mouth.The defendant also sexually assaulted the victim in the pews of the church after the victim put pamphlets in the pews for the upcoming Mass. He would do so by sitting next to the victim, putting his right arm around the victim, touching the victim's penis through his clothes, and grabbing the victim's hand and putting it on his own penis over his clothing. The defendant would also bring the victim into the confessional room which was located "off the side of the pews," where the defendant would undress them both and place his finger in the victim's anus.Finally, the victim testified that the defendant would bring him to the rectory, get him soda and a snack from the kitchen, and then play the card game, "War." When the victim would lose a hand, the defendant would instruct him to remove a piece of his clothing. When the victim would go on a "winning streak," the defendant would remove his clothing.The abuse of the victim continued until the defendant left the Newton church in 1990 when the victim was approximately thirteen years of age. The defendant told the victim that no one would ever believe him if he disclosed the abuse.The Commonwealth called Dr. James A. Chu as an expert in the field of dissociative amnesia. He was not called to give a diagnosis of the victim, but rather to assist the jury in determining the credibility of the victim's testimony that he had recovered memories nearly twenty years after the abuse, and their consequent reliability. His qualifications as an expert were not contested by the defendant at trial. [FN8]Dr. Chu testified that dissociative amnesia is a diagnosis included and defined in the Diagnostic and Statistical Manual (DSM). That manual is published bythe American Psychiatric Association, and is a classification manual widely used by mental health professionals in making diagnoses of mental health problems. The DSM lists criteria for a clinician to consider when making a particular diagnosis. Dr. Chu was a member of the task force in the 1990's charged with reviewing dissociative disorder diagnoses for the purpose of preparing the most recent version of the DSM, DSM-IV, which was published in 1994. [FN9] He explained that in the DSM-IV, dissociative amnesia is a "descriptive term [for] somebody who cannot remember certain important information about themselves, either about what happened to them, sometimes personal information ... not ... due to ... head trauma or intoxication." It means, "basically, that there is a dissociative barrier that prevents somebody from remembering something in their ordinary state of consciousness."In describing how dissociative amnesia works, Dr. Chu testified that it is possible for a person to forget something and remember it later. Dr. Chu observed the phenomenon in his own clinical practice with adults who had been traumatized as children and explained that while it was not common in that population, it was "not at all rare." He analogized dissociative amnesia to a type of forgetting, which "leads to people having really pervasive amnesia for not only [traumatic] events themselves, but [also] sometimes for neutral events or even good events." He explained that persons who have experienced repeated traumatization suffer from dissociative amnesia more often than those who experience a single traumatic event.He went on to testify that when a person remembers "so-called forgotten memories," it is usually the result of a "trigger of some kind" which reminds that person of the traumatic experience. [FN10] While there was no typical pattern for the subsequent reaction of a traumatized person once there has been a trigger, the person may experience memory flashes or "body sensations." More specifically, a person might experience physical sensations that mirror the sensations he or she incurred from the trauma itself (for example, genital pain where a person had suffered sexual abuse); or have a subsequent reaction to a trigger, become overwhelmed by the sudden onset of traumatic memories and experience "people panic," that is, agitation, crying, and increased adrenaline. He further explained that, although it is "highly variable" among individuals, the return of such memories may lead to disruption or dysfunction in a person's life.Dr. Chu also testified about the quality of the memory that might be recovered with the caveat that "all ... memories are subject to various kinds of distortion." In general, however, "the central themes of memories are really relatively well-preserved," with distortions as to peripheral details andperhaps the sequence of the memory. He also explained that a person may not remember everything about a particular event all at once, that instead, the memory might progressively return. Dr. Chu identified the ways in which a clinician would go about testing the validity of a memory recovered many years later, including determining whether a person's life changed abruptly at a certain time, whether the person has had the ability to begin and maintain interpersonal relationships, and whether the narrative of the person's life is believable and reasonable.Dr. Chu acknowledged that it was possible for a new memory to be created in some people that has no basis in reality. He gave common examples of this phenomenon on a minor scale, but explained that there was "probably only a very small minority of people who are vulnerable to that kind of suggestion."Dr. Chu concluded by estimating that dissociative amnesia occurs in approximately twenty per cent of the seriously traumatized population.b. The defense case. The defense at trial was threefold: first, that the abuse did not happen; second, that the victim had significant financial and personal reasons to fabricate the abuse (including getting discharged from the Air Force and participating in the civil suit against the Boston Archdiocese); and third, that the theory of repressed memory is inherently unreliable given the problem with corroboration and the possibility of false memories. The first two prongs of the defense were presented through the cross-examination of the Commonwealth's witnesses. The third was developed initially through the cross-examination of Dr. Chu, during which he acknowledged that there are professionals in the psychiatric community who do not believe there is sufficient evidence to verify the existence of dissociative amnesia, and that clinical research on the subject relies to a significant extent on the self-reporting of the patient--a methological limitation. This prong of the defense was enhanced by the testimony of Dr. Elizabeth Loftus, an expert witness, and the only witness called by the defense.Dr. Loftus is a professor at the University of California at Irvine in the Department of Psychology and Social Behavior and the Department of Criminology, Law, and Society. She is also a member and former president of the American Psychological Society, which has several thousand members focusing on the science and teaching sides of psychology. Her qualifications as an expert were not contested by the Commonwealth at trial.Dr. Loftus testified that she has conducted research on memory and memory distortion, including experiments in the 1970's and 1980's where her research group evaluated the reliability of eyewitness testimony to a simulated accident or crime scene by subjecting the eyewitnesses to misinformation, such as leading questions or media accounts of the incident, to determine the impact, if any, on their recall of the event. She further elaborated that her research in the 1990's expanded the theories of misinformation to see whether people could be implanted with entirely false memories, for example, by making a person think that he or she had been lost in a shopping mall as a child. She explained that one quarter of the persons involved in this experiment believed in the false memory of being lost.Dr. Loftus described memory as involving the construction or reconstruction of experiences where a person may blend later occurring details into the memory of an event. She explained that many things could affect the accuracy of a memory, including factors related to the perception of an event as it occurs, such as lighting and distance and the exposure to postevent information such as leading questions or media coverage, which can distort or supplement a memory. Dr. Loftus also explained that the passage of time made memories weaker and thus more vulnerable to postevent contamination. She explained that a false memory is a false belief accompanied by sensory detail.In addition, Dr. Loftus testified that it was "virtually impossible without independent corroboration" to determine the difference between an accurate memory and a false one. She stated that the impact of trauma on a memory is that while the core of the memory might be recalled, the peripheral details may be distorted. [FN11] In contrast to Dr. Chu, Dr. Loftus testified that repetitive traumatic experience would make it more likely that someone would remember a particular event.She elaborated on the controversy surrounding "repressed memory" and explained that in her view of the literature there is no "credible scientific evidence for the idea that years of brutalization can be massively repressed." She noted that it was possible to retrieve unpleasant memories through ordinary remembering and forgetting, but there was a lack of current scientific support for the theory that some "special mechanism" would "banish [traumatic experience] into the unconscious." She also explained that there was "inherent limitation" in the method of studies used to test for repressed memory, namely, that the retrospective memory technique relies on self-reporting by patients.2. Discussion. a. Admission of expert testimony. The role of expert testimony is to assist jurors in interpreting evidence that lies outside their common experience. The proponent of such testimony bears the burden of establishing that it "will assist the trier of fact to understand the evidence or todetermine a fact in issue," Mass. G. Evid. § 702 (2008-2009), and that the methodology or theory underlying the expert testimony is sufficiently reliable to be presented for the jury's consideration. [FN12] Id.Trial judges serve an important gatekeeping function with respect to expert testimony. Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (Lanigan ). As a gatekeeper, the judge must make a preliminary assessment whether the theory or methodology underlying the proposed testimony is sufficiently reliable to reach the trier of fact. [FN13] For these purposes, expert testimony is sufficiently reliable if the underlying theory or methodology is either (1) generally accepted in the relevant scientific community, see Frye v. United States, 293 F. 1013 (D.C.Cir.1923); or (2) satisfies the alternative requirements adopted inLanigan, supra at 25-26. The judge may hold a pretrial hearing (Lanigan hearing), as he did here, to assist in making this preliminary assessment. A judge's decision to admit expert testimony is subject to review only for abuse of discretion. Canavan's Case, 432 Mass. 304, 312 (2000). Once admitted, the validity and credibility of the expert testimony is subject to challenge like any other testimony, including through the admission of opposing expert testimony, and it is for the jury to determine what aid it might provide to their deliberations.In this case, the victim was expected to testify that he had been abused many years ago, but had only recently remembered that abuse. To assist the jury in understanding how memories of abuse might be forgotten and later remembered, the Commonwealth proposed to offer expert witness testimony to explain the theory, condition, and symptoms of dissociative amnesia and recovered memory. In response, the defendant moved to preclude such testimony because the theory underlying it could not meet the test of reliability required for admission.
[FN14](i) The Lanigan hearing. In considering the defendant's motion, the judge was initially of the view that a Lanigan hearing might not be required because this court, in Commowneath v. Frangipane, 433 Mass. 527 (2001), had both permitted expert testimony "concerning dissociation and recovered memory; what these conditions or symptoms are; and the fact that victims of trauma may experience them," id. at 535, and suggested that no Lanigan hearing was necessary as to expert testimony which concerned "memory problems associated with dissociative memory loss, and related mental disorders ... such as those referred to in the most recent edition of the [DSM], or those disorders where qualified expert testimony has been accepted as reliable in the past in Massachusetts appellate cases." Id. at 538.Despite his misgivings about whether it was required, the judge proceeded to conduct a Lanigan hearing that extended over five days. [FN15] During that hearing, two experts retained by the Commonwealth, Dr. Daniel Brown and Dr. Chu, were called to testify. In addition to this testimony, the judge considered, without objection from the Commonwealth, an affidavit prepared by Dr. Loftus and submitted by the defendant.Dr. Brown was called by the Commonwealth to explain the theory, conditions, and symptoms of dissociative amnesia and recovered memory and their general acceptance in the scientific community. Dr. Chu, who had been retained by the Commonwealth, was called to testify about the "fit" of the proposed opinion testimony regarding dissociative amnesia and recovered memory, to the facts of this case. The defendant does not challenge Dr. Chu's testimony on this subject, or on the ruling of the judge that the "fit" was sufficient in this case. We focus then on Dr. Brown's testimony.Dr. Brown is a licensed psychologist, an assistant professor of clinical psychology at Harvard Medical School, [FN16] and an adjunct professor at the Simmons School of Social Work. He specializes in treating patients who have been the victims of trauma, e.g., physical abuse, sexual abuse, child neglect, accident, torture, and natural disasters. He has previously given expert testimony in judicial proceedings regarding dissociative amnesia in five States and has also testified about memory and trauma at the international war crimes tribunal. He is the author of twelve books, including a text entitled, "Memory, Trauma Treatment and the Law," which presents a comprehensive review of 2,500 clinical and laboratory studies on human memory.Dr. Brown testified that based on his clinical experience, his review of thousands of studies regarding various aspects of memory, and his analysis of eighty-five studies focused on amnesia in childhood sexual abuse cases, many of which were subject to peer review, it was his opinion that dissociative amnesia exists for a clinically significant minority of traumatized individuals, including children subjected to sexual abuse. He also testified about the evolution of the use of dissociative amnesia as a diagnosis in the DSM, which has been revised several times. He opined that this diagnosis is generally accepted in the field and cited six surveys of psychology professionals, including psychiatrists, psychologists, social workers and clinicians working with war veterans to that effect. According to those surveys (taken collectively), eighty-nine per cent of those surveyed accepted the validity or possible validity of dissociative amnesia.Dr. Brown acknowledged that there is controversy surrounding the existence of dissociative amnesia and the difficulty in determining its existence in a particular individual. [FN17] He also highlighted some of the problems with determining the existence of dissociative amnesia, and agreed that a person with a suggestible personality might be susceptible to false memories suggested by a trusted source, and that an extremely suggestive process of interviewing a subject could also create false memories.Defense counsel cross-examined Dr. Brown for two days about the problems affiliated with determining the existence of repressed memory; the difficulties of corroborating the details of recovered memories; the difficulty in making a precise diagnosis in accordance with the DSM-IV; the uncertainty as to the cause or neurological or biological mechanisms that lead to dissociative amnesia; and the likelihood that a particularly suggestable person would develop false memories or malinger. In that examination, defense counsel brought to the judge's attention the contentions of the critics of repressed memory theory based on the lack of a scientific method to test for it in individuals; the absence of a controlled methodology; and the methodological limitations of clinical observation and experience that depend so greatly on patient self-reporting.(ii) The judge's decision. The judge denied the defendant's motion to exclude expert testimony on dissociative amnesia and recovered memory, concluding that the diagnosis and theories behind it were generally accepted in the relevant scientific community. In doing so, the judge recognized the significance of its listing as a diagnosis in DSM-IV, and credited the testimony of Dr. Brown that "clinically significant minorities of [victims of child sexual abuse] experience amnesia," testimony that was buttressed by the studies cited to and relied on by Dr. Brown which "reflect[ed] a broad-based acceptance of dissociative amnesia and recovery." Contrary to the defendant's arguments that controversy regarding the validity of a theory necessarily precluded a determination that the theory is generally accepted, the judge recognized the controversy, was fully aware of its contours, and rejected it as being determinative in light of the other evidence of acceptance. Lanigan, supra at 27 ("Unanimity of opinion among the relevant scientists is not essential even under the general acceptance test"). That other evidence, the judge pointed out, included statements of both the American Medical Association and the American Psychiatry Association, that "memories of traumatic events can be forgotten but that pseudomemory formation is also possible," in addition to the 1996 final report of the American Psychological Association working group on the investigation of memories of childhood abuse, which included points of agreement among the group members (including Dr. Loftus) that (1) it is possible for memories of abuse that have been forgotten for a long time to beremembered, and (2) it is also possible to construct convincing pseudo memories for events that never occurred. [FN18]The defendant argued below, and argues on appeal, that because there is a lack of peer-reviewed literature regarding repressed memory, the judge improperly concluded that the theory is generally accepted. We defer to the findings of the judge with regard to the testimony of Dr. Brown that was based, in part, on his review of eighty-five studies focused on amnesia in childhood sexual abuse cases, which were conducted in a variety of contexts, including surveys and clinical evaluations, as constituting sufficient and reliable peer review for the purposes of general acceptance. See Canavan's Case,432 Mass. 304, 314 n. 6 (2000) ("A relevant scientific community must be defined broadly enough to include a sufficiently broad sample of scientists so that the possibility of disagreement exists").The defendant's other arguments are equally unpersuasive. They essentially echo the contention made by Dr. Loftus and other critics of repressed memory theory that the theory is invalid because there does not yet exist a scientific method using experimental design to test for its existence in certain individuals nor are there known error rates or standardization. [FN19] The judge, while well apprised of the contention that studies of dissociativeamnesia are unreliable because of methodological flaws, explicitly found that "the methodological criticisms ... by Dr. Loftus [in her affidavit were] rebutted [by Dr. Brown in his testimony]."In sum, the judge's finding that the lack of scientific testing did not make unreliable the theory that an individual may experience dissociative amnesia was supported in the record, not only by expert testimony but by a wide collection of clinical observations and a survey of academic literature. See Canavan's Case, supra at 313 ("Observation informed by experience is but one scientific technique that is no less susceptible to Lanigan analysis than other types of scientific methodology"). There was no abuse of discretion in the admission of expert testimony on the subject of dissociative amnesia.b. Ineffective assistance of counsel. The defendant moved for a new trial pursuant to Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), on the grounds that he was denied the effective assistance of counsel both at the Lanigan hearing and at trial. His claims relate to defense counsel's alleged failure to challenge adequately the admissibility of the expert testimony at the Lanigan hearing, and his failure to defend effectively against it at trial. Essentially, the defendant alleges that had counsel done better work in either proceeding, the outcome would have been different. In support of his motion for a new trial, the defendant submitted three affidavits from experts, [FN20] and more than fifty scholarly articles, surveys, and studies, some of which were peer reviewed, [FN21] questioning the existence of repressed memory.A trial judge "may grant a new trial at any time if it appears that justice may not have been done." Mass. R.Crim. P. 30(b). The decision to grant a motion for a new trial is within the sound discretion of the motion judge who is entitled to "special deference" if he was also the trial judge. Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996).In evaluating claims of ineffective assistance, the court engages in "a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, typically, whether it has likely deprived the defendant of an other available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) ("there ought to be some showing that better work might have accomplished something material for the defense"). See also Commonwealth v. DiGeronimo, 38 Mass.App.Ct. 714, 719-720 n. 6 (1995).If a defendant challenges the "tactical or strategic decisions," of trial counsel, he must establish them as "manifestly unreasonable." Commownealth v. Montanez, 410 Mass. 290, 295 (1991), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). We are cautious on review "to avoid characterizing as unreasonable a defense that was merely unsuccessful." Commonwealth v. White, 409 Mass. 266, 272 (1991).With respect to the Lanigan hearing, the defendant's claim that counsel was ineffective in his challenge to the admissibility of expert testimony is largely belied by the transcript of the hearing. Defense counsel cross-examined Dr. Brown for nearly two full days and in doing so, thoroughly and precisely illuminated for the judge the issues and the controversies surrounding the scientific validity and acceptance of the theory of dissociative amnesia and the reliability of recovered memory. His attack on the proposed evidence was both sophisticated and knowledgeable, and provided the judge with the information necessary to a full understanding of the nuances of the debate about the subject. Defense counsel also methodically challenged Dr. Brown by highlighting for the judge any possible bias related to Brown's testimony in prior litigation and his association with less credible authors and scholars.In addition, and in connection with the motion for a new trial, the judge carefully reviewed all of the affidavits and the recent scientific articles, surveys, and studies submitted by the defendant. Those materials suggest that an increasing number of mental health professionals have concluded not only that no empirical evidence supports the theory of dissociative amnesia, but also that false memories can occur as a result of a number of factors. After this review, the judge reached several conclusions. First, that there was no dispute at the Lanigan hearing (or at trial) that in some individuals false memories can be implanted, but the existence of such false memories "does not negate the case for the existence of repressed memories." Second, that the lack of unanimity in the scientific community regarding the theory of dissociative amnesia does not rule out its admissibility (citing Lanigan, supra at 26-27). Third, that there is ample evidence of the acceptance of the diagnosis in its inclusion in the DSM-III-R and the DSM-IV, and in its acceptance by the American Psychiatric Association and the American Medical Association, as well as by a number of appellate and trial courts.Finally, the judge concluded that even had defense counsel produced (at the Lanigan hearing) all of the evidence submitted with the motion for a newtrial, his decision to admit the evidence on the basis of its general acceptance by the relevant scientific community would not have changed. Consequently, the "better work" that the defendant now claims his counsel should have done would not have accomplished anything material, and the defendant was not deprived of a substantial defense. After our own review of the record before the judge, we agree that the defendant has not satisfied his burden of demonstrating that his counsel provided ineffective assistance at the Lanigan hearing.We reach the same conclusion with respect to defense counsel's performance at trial. The defendant complains about his counsel's decision to call Dr. Loftus as the sole defense witness to testify about the unreliability of expert testimony on the subject of disassociative amnesia. This, however, was only one prong of the defense case which, importantly, focused both on the victim's possible fabrication of the abuse for the purpose of personal benefit, and the possibility that false memories of abuse had resulted from the process of memory recovery.Defense counsel elicited from Dr. Loftus not only testimony that dissociative amnesia was not a theory accepted by a large segment of the scientific community, and had never been scientifically proved, but also (based on her extensive experience and studies in the field of memory) that there were a number of suggestive influences that substantially increased the likelihood that a particular memory is false--some of which were present in the facts of this case. [FN22] That counsel might have offered even more evidence on these subjects does not amount to ineffectiveness. Although the defendant argues that Dr. Loftus's lack of clinical experience disadvantaged her during cross-examination, her background as a research scientist buttressed the defense theory that clinical observations provided insufficient foundation for the reliability of repressed memory, and that the implantation of false memories was a scientifically documented phenomena.More generally, defense counsel conducted a vigorous defense on all fronts, which included a thorough cross-examination of the victim and Dr. Chu, further exposing for the jury the potential problems with the reliability of evidence based on memories recovered after dissociative amnesia. [FN23] He highlighted for the jury the academic debate involving the existence and manifestation of dissociative amnesia, underscoring the fact that there is no demonstrable evidence to corroborate that the phenomenon exists. He examined Dr. Chu about the possibility that a person susceptible to suggestion could be implanted with a false or pseudo memory, and Dr. Chu acknowledged there were those in the field who believe that the more an individual has the capacity to dissociate memories, the more he is likely to develop pseudo memories. Defense counsel further undercut the relevance of studies related to dissociative amnesia to this case by getting Dr. Chu to admit that such studies provided no illumination as to the question whether any particular individual might be affected by dissociative amnesia. Dr. Chu also acknowledged that the self-reporting aspects of the clinical setting provide limitations in answering the question of whether there is demonstrable evidence that dissociative amnesia exists.Finally, defense counsel utilized the DSM-IV in questioning Dr. Chu, focusing the testimony on the DSM-IV's cautionary language regarding the use of DSM-IV in forensic settings where the patient has been referred by an attorney, and in making a diagnosis of dissociative amnesia where there is "currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence."In sum, this is not a case where "the record reveal[ed] that, notwithstanding an over-all high quality of work at trial, defense counsel's conduct or failure to act in a particular instance was so serious a lapse as to enhance significantly the chance of a defendant's conviction." Commonwealth v. DiGeronimo, 38 Mass.App.Ct. 714, 719-720 n. 6 (1995). Counsel pursued a dynamic, multi-faceted trial strategy that did not rely solely on challenging the admission of the expert testimony, but also on exploring the factual deficiencies in the victim's version [FN24] of events and by impeaching his credibility and his motivations. [FN25] The trial judge's denial of the defendant's motion for a new trial on the ground of ineffectiveness was not an abuse of discretion.We cannot say that counsel's performance at trial with regard to the testimony about repressed memory was lacking, see Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974); or that counsel's strategic decision to rely largely on cross-examination of witnesses was manifestly unreasonable. SeeCommonwealth v. Montanez, 410 Mass. 290, 295 (1991). Finally, we are not persuaded that counsel failed to pursue an otherwise available, substantial ground of defense that might have accomplished something material for the defense. See, e.g., Commonwealth v. Satterfield, 373 Mass. 109, 115 & n. 10 (1977). The defendant's principal argument is not that his trial counsel failed to pursue a particular defense, but that he failed to do so as effectively as he could have. However, we evaluate counsel's performance not to determine whether in hindsight he might have done things differently and perhaps more effectively, but to determine whether he provided representation commensurate with that of an "ordinary fallible lawyer." Commonwealth v. Saferian, supraat 96. He did so in this case. [FN26]c. Closing argument and comments by the prosecutor; memory analogy. The defendant argues that he suffered severe prejudice when, in attempting to counteract a possible rejection by the jury of the theory of repressed memory, the prosecutor equated that theory with ordinary forgetting and remembering in her closing argument; and, in doing so, misrepresented and mischaracterized the testimony of both Dr. Chu and Dr. Loftus. The defendant further argues that if defense counsel knew that the prosecutor would analogize the victim's repressed memory to ordinary forgetting and remembering during her closing, he would have called an expert to rebut this comparison. [FN27]The Commonwealth responds that the theory of the case was not exclusively limited to the validity of the theory of dissociative amnesia because the victim was never actually diagnosed with that disorder. Instead, the jury were entitled to reject the testimony regarding dissociative amnesia, the purpose of which related to the victim's credibility regarding the delay in reporting the sexual abuse, and still find that the victim had remembered the sexual abuse in reliable detail. The Commonwealth further argues that, at a minimum, the state of the evidence changed with Dr. Loftus's testimony that, notwithstanding her view that the underlying theory of dissociative amnesia had not been scientifically validated, it was nonetheless plausible that a person could forget a traumatic event and then remember it through the processes involved with ordinary memory. [FN28]The defendant did not object to the prosecutor's closing on this ground at trial. Therefore we review his claim to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).Prosecutors are required to limit their arguments to facts in evidence and reasonable inferences that may be drawn from those facts. Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005), quoting Commonwealth v. Coren, 437 Mass. 723, 730 (2002). A defendant's challenge to a specific part of a closing argument is analyzed in "the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).Here, the prosecutor's comments about the testimony of Drs. Chu [FN29] and Loftus [FN30] with regard to "remembering" and "forgetting," were not in error. There was testimony about forgetting and remembering traumatic events aside from a diagnosis of dissociative amnesia, a fact recognized andarticulated by the judge prior to closing argument. [FN31] The prosecutor's argument highlighted that testimony and there was no error.d. The "voluntary" appearance and testimony of the victim at trial. The defendant argues that given the importance of the victim's credibility to the prosecution of this case, the prosecutor improperly buttressed his credibility throughout the trial by suggesting to the jury that he appeared "voluntarily" and not by subpoena or as a result of a contractual agreement related to the settlement of the civil suit.This issue arose early in the trial when defense counsel objected to the prosecutor's opening statement that, "[y]ou will learn ... that [the victim] filed a civil lawsuit against the [Boston] Archdiocese, [which] paid him $500,000 last May with no requirement that he testify in this criminal trial." The prosecutor countered that the Commonwealth should be entitled to respond because the defense was going to argue that the victim was biased and motivated by the civil settlement. The judge agreed to take the objection into consideration, but declined to give an instruction addressing the civil case immediately after the opening statements, stating that he would be willing to give an instruction at the time the parties introduced evidence of the civil settlement.The issue arose again before the direct examination of the victim. Defense counsel objected that it would be improper for the prosecution to suggest that victim's appearance in the case was somehow voluntary, and argued that it would be unethical "for the Commonwealth to try to suggest to the jury that this witness has anything to do with the processing of this case notwithstanding whatever policies they may have about forcing people to do or not do anything." The prosecutor again countered that the Commonwealth had a right to rebut the defense's suggestion that the victim was testifying because of the civil settlement and that it was proper to elicit testimony that he was not under subpoena and was under no obligation to appear to testify. The judge agreed to give an instruction that the Commonwealth had exclusive discretion in deciding which witnesses to call in attempting to prove its case against the defendant beyond a reasonable doubt. Defense counsel agreed to wait and see how the victim's testimony developed before requesting such an instruction. The victim testified on direct examination that payment of the civil settlement did not have any conditions attached to it and that he did not appear at trial because of a subpoena. The defense did not object to this testimony, did not move to strike it from the record, and did not request the instruction that the judge had proposed.In his cross-examination of the victim, defense counsel proceeded to question him extensively about the fact that he had spoken with a lawyer about potentially joining a class action suit against the Boston Archdiocese on February 11, the same day on which that the victim alleged he recovered his memories of abuse.Later, at the charge conference, defense counsel again sought to preclude the Commonwealth from arguing that the victim's appearance was voluntary and not compelled by subpoena or any agreement related to the civil trial. The prosecutor countered that defense counsel's cross-examination of the victim suggested that he was lying about having been abused and that the civil lawsuit was the motivation for his lies. The judge ruled that the Commonwealth could comment in its argument about the victim's voluntarily appearing (as was established by the evidence), but would not be permitted to appeal to sympathy or "any improper use of that evidence." [FN32] The defendant's objection was overruled.In her closing, the prosecutor stated: "[The victim] is a twenty-seven year old man. He's recently married. He has a job that he loves.... He has half a million dollars in his pocket. So why, ladies and gentlemen, did he come in here and tell you what happened to him? Why? What does your common sense tell you? "You saw him on that stand for almost 14 hours day after day, hour after hour, he willed himself through that testimony. You saw it. What does your common sense tell you? "He came in here and he told you what happened because that man, that defendant, that priest, raped him and molested him when he was a little boy over and over again. The defendant would have you believe it is all a lie. It's for the money; that people don't forget about things that happen to them and then later remember them.... "Was it all a lie? Was it made up? Did [the victim] come in here and just lie about it? Was it for the money? He has the money. He got the money over nine months ago. No strings attached. What did he get from coming in here? The opportunity to be on the stand? He sustained long, painful questioning, and what did he get from it? It's not about the money. Put that aside. Is it all a lie? ... "And [an attorney] filed a civil lawsuit on behalf of [the victim], and [the victim] got a half a million dollars. True. But so what? It's all done, signed, sealed, delivered to the bank. And it's done. No more words need to be said. That's over. And it has been over for over eight months. That's what you know. That's what you know about what happened."Prior to addressing the jury, the judge suggested a limiting instruction to the parties to address the victim's participation in the civil suit. [FN33] Defense counsel asked that the judge refrain from instructing the jury on that issue. Therefore, no limiting instruction on the civil suit was given.The defendant relies on Commonwealth v. Beaudry, 445 Mass. 577 (2005), for the proposition that the Commonwealth's argument was improper. In that case, the prosecutor argued that the child complainant was credible simply because she testified at trial and that she did not have any motive to lie. Id. at 586. Defense counsel objected to the argument and the judge gave a limiting instruction to the jury, stating, "[T]he fact that a complaining witness has come into court and testified before you does not entitle that witness to any greater credibility.... [T]he mere fact that somebody has come into court to testify does not mean that their testimony is entitled to be believed by you because of the mere fact that they showed up in court and testified." Id. at 586-587.Here, the substance of the prosecutor's closing argument properly touched on the victim's motivation in appearing to testify because it was a primary issue in the case. Unlike in the Beaudry case, the defense strategy was to assail the credibility of the victim by suggesting that he had a motive to fabricate the allegations of abuse, both because of the civil suit and because of a latent desire to get out of the Air Force. Therefore, the prosecutor was warranted in "mak[ing] a fair response to an attack on the credibility of a government witness." Commonwealth v. Senior, 454 Mass. 12, 17 (2009), citingCommonwealth v. Chavis, 415 Mass. 703, 713 (1993). Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 129 S.Ct. 202 (2008) (noting that prosecutor's comment regarding government witnesses motives to lie "was a legitimate attempt to defend the credibility of these two witnesses"). There was no error.e. Statute of limitations. The two indictments charging indecent assault and battery, in violation of G.L. c. 265, § 13B, were returned on June 20, 2002. The offenses they allege last occurred on October 5, 1986. The relevant statute of limitations provides that an indictment for such an offense must be "found and filed within six years after such crime has been committed; provided, however, that any period during which the defendant is not usually and publicly a resident within the commonwealth shall be excluded in determining the time limited." G.L. c. 277, § 63, as amended through St.1996, c. 26. It further provides that for the crimes charged here, "the period of limitation for prosecution shall not commence until the victim has reached the age of sixteen or the violation is reported to a law enforcement agency, whichever occurs earlier." Id., as appearing in St.1987, c. 489.It was stipulated at trial that the victim reached the age of sixteen years of age on September 9, 1993. Consequently, the prosecution was required to commence no later than September 9, 1999, unless the defendant was not "usually and publicly a resident within the commonwealth" for some period of time before September 9, 1999. The parties also stipulated that the indictment was returned 1,015 days beyond the six-year limitation date.The statute of limitations defense was initially raised by the defendant in a motion to dismiss. At a scheduled hearing on pretrial motions, the prosecutor, defense counsel, and the judge agreed that, while properly advanced in the motion to dismiss, the resolution whether the indictments were timely brought raised a question for "a finder of fact in the context of trial."At trial, the prosecutor presented evidence from which the jury could have found that the defendant resided outside of Massachusetts for almost the entire period from 1990 (when he left St. Jean's Church) until May, 2002, just before he was indicted. The witnesses from whom the Commonwealth elicited this evidence were cross-examined by defense counsel regarding the basis for their testimony, establishing that they were relying largely on records and not their own personal knowledge. In her closing, the prosecutor argued that the Commonwealth had proved that the defendant was not usually and publicly a resident in the Commonwealth for a sufficient period of time to satisfy its burden of demonstrating that the indictments were timely brought under the statute. The prosecutor also requested a specific jury instruction on the statute of limitations, which the judge gave in its entirety, and to which the defendant did not object.The judge's instruction essentially told the jury that the statute of limitations for the indecent assault and battery offense "would have expired" on September 9, 1999, "unless the Commonwealth has proved beyond a reasonable doubt that the defendant was not usually and publicly a resident of the Commonwealth for at least 1,015 days between October 5, 1986, the last date of the offenses, and June 20, 2002, the date the indictments were returned in this case."In his motion for a new trial, the defendant contended that this instruction was error as it allowed the jury to consider the period before the six-year statute began to run (October 5, 1986, through September 9, 1993) in determining whether the Commonwealth met its burden of proving that he was not usually and publicly a resident of Massachusetts for those 1,015 days. In denying the motion for a new trial, the judge declined to decide whether the instruction was an incorrect statement of the law, and instead concluded that because the defendant had not presented any evidence that he was in the Commonwealth between September 9, 1993, and June 20, 2002, he was not, in any event, entitled to an instruction on the statute of limitations. [FN34] The judge reasoned that insofar as the defense of the statute of limitations is an affirmative defense, see Commonwealth v. Steinberg, 404 Mass. 602, 606 (1989), the defendant had the burden of producing evidence to support the defense at trial before the Commonwealth had any burden of disproving it. Therefore, in the absence of his production of any such evidence, the defendant was not entitled to an instruction. Alternatively, the judge concluded that any "presumed" error in his instruction did not create a substantial risk of a miscarriage of justice because the result of the trial would not have been different had the error not been made.We first conclude that the instruction was error. Whether the defendant resided in or outside of Massachusetts before the statute of limitations began to run on September 9, 1993, is not relevant to whether, once statutorily commenced, the six-year period was thereafter tolled for any period of time by the defendant's absence. [FN35] The instruction should have focused the jury's attention only on the defendant's usual and public residence during the period after September 9, 1993.We next conclude that the statute of limitations defense was properly raised, preserved, and sufficiently presented by the defendant in this case. We have repeatedly referred to the statute of limitations defense as an affirmative defense, Commonwealth v. Steinberg, supra at 606, citing Couture v.Commonwealth, 338 Mass. 31, 33 (1958), and have explained with respect generally to affirmative defenses that where asserted, "the defendant takes on a burden of production because the Commonwealth has no burden of disproving an affirmative defense 'unless and until there is evidence supporting such defense,' " Commonwealth v. Cabral, 443 Mass. 171, 179 (2005), quoting Model Penal Code § 1.12(1), (2) (1985). "If the defense is 'affirmative,' once a defendant raises the defense to a charge and the defense is supported by sufficient evidence, the defendant is entitled to have a jury instruction on the defense, and the Commonwealth has the burden of disproving the defense."
[FN36] Id. We have never had occasion specifically to address what evidence the defendant must adduce in order to be entitled to an instruction on a statute of limitations defense. [FN37]We need not decide what might be necessary in every case where a challenge to the timeliness of an indictment is brought, but in this case, where the Commonwealth was on full notice that the defense was being raised, evidence that the victim's sixteenth birthday was more than six years before the indictments were returned was sufficient evidence of untimeliness to require the Commonwealth to prove that the limitations period was properly tolled under the provisions of G.L. c. 277, § 63. The defendant was not otherwise required to offer evidence that he was "usually and publicly a resident within the commonwealth," in order to raise and preserve the defense. Consequently, the defendant was entitled to a proper instruction on the subject.Finally, we agree with the judge that based on the evidence at trial, the erroneous instruction (which was neither objected to nor pertained to an element of the offense) did not give rise to a substantial risk of a miscarriage of justice. The Commonwealth's evidence that the defendant left the Commonwealth in 1990 and, but for a forty-three day period in 1993, was not usually or publicly a resident of Massachusetts until he returned in May, 2002, was very strong. [FN38] It was so strong that even though defense counsel had cross-examined the Commonwealth's witnesses, he made no reference to the issue in closing argument. A review of the evidence suggests that this failure was not a shortcoming of counsel, but based on a realistic assessment of the state of the evidence before the jury. Had the jury been properly instructed, we have little doubt that the result would have been the same.Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).Judgments affirmed.Order denying motion for a new trial affirmed.
FN1. The terms "repressed memory," "recovered memory," and "dissociative amnesia" were used interchangeably throughout the pretrial and trial proceedings and generally refer to the phenomenon of completely forgetting and later recovering a memory.
FN2. Evidence regarding where the defendant resided after 1990 and up until his indictment in 2002 is relevant to the statute of limitations defense and jury instructions, and is discussed in more detail infra.
FN3. A pseudonym.
FN4. Captain Drozd talked to the victim and administered a test to him. He also changed the victim's military status so that he was temporarily disqualified from performing security duties and from carrying a firearm.
FN5. Drozd described the journal to the victim as being "an emotional barf bag" and directed the victim to record everything that came into his mind.
FN6. Drozd had filled out a request for the victim to take temporary leave. Tammy testified that the victim was very agitated while he was home and would soak the sheets with sweat and curl up into a ball.
FN7. Because of the change in his status and his disqualification from security work when the victim returned to Colorado, he was employed in the visitors' center for civilian guests to the military base. He tried to return to work, but had to leave after a few hours because, he "couldn't be around people." The victim continued to see Drozd and was taking the medications Celexa, Zoloft, and Trazodone. He also developed "a stress rash" on his body for one or two weeks. The victim never returned to work as an Air Force police officer.
FN8. Dr. Chu is a licensed psychiatrist and the chief of clinical services at McLean Hospital. His speciality is the diagnosis and treatment of adults who have been seriously traumatized as children, and he has treated patients suffering from such trauma for nearly thirty years. He is certified by the American Board of Psychiatry and Neurology and Adult Psychiatry, and is a distinguished fellow within the American Psychiatric Association.
FN9. Dr. Chu testified that a particular diagnosis is included in the DSM only after a "fairly rigorous process by which interested groups of people" may convene a task force or engage in field trials to test a new diagnosis of a specific syndrome. The diagnoses in the manual are subject to revision and evolve over time. The dissociative amnesia diagnosis first appeared as such in the third edition of the DSM, DSM-III.
FN10. Dr. Chu gave examples of various triggers that he has observed, including that childbirth may be a trigger for a woman who was sexually abused as a child because the genital pain, fear, and helplessness of childbirth are similar to sensations that the woman may have experienced as a sexually abused child. Another example that he gave was a mother who experiences a trigger when her own child reaches the age at which she experienced abuse.
FN11. On cross-examination, Dr. Loftus acknowledged that it is more difficult to distort the central details of a memory.
FN12. The proponent of the evidence also has the burden of establishing that the witness he intends to call is qualified as an expert in the relevant area, a matter not at issue in this case. Mass. G. Evidence § 702 and note at 207- 208 (2008-2009), and cases cited.
FN13. The judge must also determine whether the reasoning or methodology can be applied to the facts in issue--that is, whether there is a proper "fit" between the two.
FN14. The defendant also moved to suppress the trial testimony of the victim based on the ground that recovered memory is inherently unreliable.
FN15. The judge correctly surmised that hearings held pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (Lanigan ), may not always be required where qualified expert testimony of the same type and offered for the same purpose has been accepted as reliable in the past in Massachusetts appellate cases, see Commonwealth v. Frangipane, 433 Mass.
527, 538 (2001). However, we have not "grandfathered" any particular theories or methods for all time, especially in areas where knowledge is evolving, and new understandings may be expected as more studies and tests are conducted. See Lanigan, supra at 26-27. In spite of what we said in Commonwealth v. Frangipane, supra, the evolving nature of scientific and clinical studies of the brain and memory and the controversy surrounding those studies made it prudent for the judge to proceed with a Lanigan hearing in this case.
FN16. For fourteen years, Dr. Brown was responsible for the annual course on the assessment and treatment of psychological trauma at Harvard Medical School.
FN17. Dr. Brown also testified that much of the current research and debate is centered on determining what neurological or psychological processes or mechanisms cause dissociative amnesia. The Commonwealth did not propose to offer expert testimony on the neurological or psychological processes or mechanisms that might cause dissociative amnesia.
FN18. Critics of repressed memory theory argue that it is flawed because of the risk that so-called false memories can be created where therapeutic or forensic intervention is suggestive. The judge was well aware of this risk and its impact on the validity of the theory and addressed this point in his
memorandum of decision, stating, "[T]he Court rejects any suggestion that the relevant scientific community generally accepts the notion that the fact that false memories may be created in some individuals invalidates the conclusion that dissociation and recovered memory occur in others. In any event, whether one or the other is at work [in this case] is for the jury to decide, with such aid as admissible expert opinion from both sides may provide."
FN19. Dr. Loftus acknowledged that there are severe ethical concerns in designing an experimental study to test the possibility of false memory by implanting memories of abuse in human subjects.
FN20. The experts included Harrison G. Pope, Jr., a practicing board certified psychiatrist and professor of psychiatry at Harvard Medical School. Dr. Pope stated that one of his primary teaching areas involved helping faculty and students to design scientifically valid research studies and to evaluate the methodology of other studies. He attached thirty examples of scientific publications questioning the validity of the repressed memory hypothesis to his affidavit. See note 28, infra. The defendant also submitted an affidavit from Dr. Loftus in which she stated that she provided very minimal assistance in the pretrial stage and that her testimony at trial was limited by her experience to the scientific study of memory, rather than its clinical counterpart. The
third expert was R. Christopher Barden, who has both a doctorate in clinical child psychology and a law degree. He identifies himself in his affidavit as a "national expert in psychology and law." The substance of his affidavit criticized the performance of the defendant's trial counsel and attempted to discredit Dr. Brown.
FN21. Taken collectively, the articles further illustrated the controversy over repressed memory, that the theory was questionable because it could not be tested with scientific methods; that there was the possibility of false memories; that clinical techniques could lead to the formation of false memories; and that there was uncertainty about the neurological mechanism which caused repression.
FN22. Dr. Loftus explained she had designed experimental situations to test for the presence of false memory by using sources of suggestion such as leading questions, allowing a subject to overhear someone else's recollection of an event, and media coverage of an event. Here, there was evidence that the victim learned of the allegations of abuse from media reports and from speaking to a childhood friend who also claimed to have been abused.
FN23. For example, during cross-examination, Dr. Chu admitted that
determining whether abuse occurred to particular individuals was at best, "reasonable speculations." He also admitted, consistent with the defense theory that the abuse did not happen, that determining the validity or accuracy of a memory is perhaps a secondary concern in the clinical setting, where the well-being of the patient takes priority over investigating the truth of a memory; and that the victim here had significant incentive to fabricate. Defense counsel also questioned Dr. Chu extensively about the possibility that the victim was malingering or otherwise exaggerating or fabricating the occurrence of abuse.
FN24. Defense counsel cross-examined nearly all of the Commonwealth's "fact" witnesses about the layout of the church, the bustling Sunday atmosphere at St. Jean's and the number of persons who resided in the rectory during the relevant time period.
FN25. Both the financial settlement from the lawsuit and the testimony from the expert witnesses that a person might malinger or fabricate the appearance of dissociative amnesia to avoid military service bore directly on the victim's credibility.
FN26. We also decline the defendant's invitation to grant a new trial on the
ground of "fundamental unfairness" in light of what appellate counsel declares was the admission of "demonstrably false" information about the acceptance of "repressed memory" in the scientific community. This claim is based on the affidavits and relevant published material submitted in support of the motion for a new trial. Having reviewed that material, we are not persuaded that the judge erred when he concluded that he would have permitted the Commonwealth's expert to testify in any event on the basis of the full record before him-- including the testimony at the Lanigan hearing. Nor are we persuaded that the record in this case requires that we second guess the judge or reach a different conclusion.
The defendant does not challenge on appeal the sufficiency of the evidence. We do not consider whether there could be circumstances where testimony based on the repressed or recovered memory of a victim, standing alone, would not be sufficient as a matter of law to support a conviction.
FN27. The defendant also argues that Dr. Chu improperly used the term "forgetting" instead of "repression" in his testimony and otherwise "with obfuscation" used the terms "forgetting" and "remembering" at trial.
Specifically, Dr. Chu testified as to the following:
"There is ordinary forgetting. Sometimes people forget pretty awful things just through normal forgetting. There seems to be another kind of forgetting
that happens when somebody tries so hard not to think about something for so long that eventually they can't even remember it if they try to remember it. And then there seems to be this other kind of, I would call more of a dissociative mechanism where, especially with chronic traumatization ... that really leads to people having really pervasive amnesia...."
FN28. On cross-examination, Dr. Loftus testified that she wrote in a 1996 article that it was "possible for people to forget about traumatic experiences and later remember them." She elaborated that she would refer to that as "ordinary forgetting and remembering, possibly triggered by a retrieval cue."
FN29. With regard to Dr. Chu, the prosecutor stated: "He came here and told you, he told you about things that make sense: that sometimes people forget about things that happen to them and then they remember them later on."
FN30. With regard to Dr. Loftus, the prosecutor stated:
"Even Dr. Loftus, although she started out on her direct saying that 'it is a very vitriolic debate; this cannot happen; there cannot be such a thing as massive repression.' Within two minutes, when I was asking her, she agreed with me, 'oh yeah, people can forget traumatic experiences that happened to them, and they can later remember them.' And what did she say? 'And if
something happens to you over and over again, you remember it even better.' "
The prosecutor later stated:
"But, ladies and gentlemen, think about it for a minute. Hasn't it all happened to one of us: the walking down the street and you bump into someone, or you are at a high school reunion, just like Dr. Loftus said, and you see someone who you haven't seen in a long time and you start talking. And all of a sudden you remember the time that the two of you were out together and you ran out of gas and you got stranded by the side of the road, and then you got into trouble because you missed your curfew. Now, you hadn't thought about that 10, 12 years, but now you remember. Does it make it any less real that you hadn't thought about it? Does it mean that it never happened? No. Use your common sense."
FN31. Defense counsel requested a jury instruction that the Commonwealth had to prove the existence of repressed memory in order for the jury to find the defendant guilty because if the phenomenon exists, the victim's testimony was truthful, but if not, then the victim must have been fabricating the abuse. In declining to include the requested instruction, the judge noted that in addition to the mutually inconsistent theories related to repressed memory suggested by the defendant, there existed a third basis for the jury's decision, namely, "[M]emories of childhood sexual abuse may be forgotten and
remembered without being repressed. So that seems to me an alternate theory that the Commonwealth can argue from the evidence." The defendant did not object to the judge's ruling.
FN32. The prosecutor never used the term "voluntary" or "voluntarily" in her opening statement, in her cross-examination of the victim, or in her closing. Nor did she mention in her closing that the defendant had not been subpoenaed.
FN33. The instruction was: "I instruct you that neither the civil case nor the settlement of that case has any bearing on the prosecution of this criminal matter."
FN34. The judge apparently did not remember a stipulation admitted in evidence, that the defendant was in Massachusetts for forty-three days between October 16 and December 30, 1993.
FN35. Although it is not explicitly referred to in G.L. c. 277, § 63, as a "tolling" provision, we have consistently referred to it as such. See, e.g.,Couture v. Commonwealth, 338 Mass. 31, 32 n. 1 (1958) (noting that it was not necessary for Commonwealth to plead "the exception tolling the statute").
FN36. While we have referred to a statute of limitations defense as an "affirmative defense," it differs from what we ordinarily understand to be a defining characteristic of such defenses, that is, that they involve, "a matter of ... justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence" (emphasis added). Commonwealth v. Cabral, 443 Mass. 171, 181 (2005), quoting Model Penal Code § 1.12(3)(c). The defendant here is not seeking to excuse or justify his actions by claiming some type of lawful authority. Cf., e.g., id. at 172 (defendant claimed he was agent of a surety and therefore had lawful authority to detain person who defaulted on bail); Commonwealth v. Vives, 447 Mass. 537 (2006) (defendant's claim of right to property in armed robbery case). Rather, it is the Commonwealth that contends that it is justified in bringing the indictments beyond the six-year statute of limitations because the defendant was absent from the Commonwealth.
FN37. The parties to not contest, that once properly raised, the Commonwealth has the burden of proving beyond a reasonable doubt that the indictments have been timely brought.
FN38. The Commonwealth introduced testimony from the keeper of records for the Boston Archdiocese, who testified that there was a change of address form
dated February 14, 1990, for the defendant, listing a new address in Palm Springs, California. He also testified that there was another change of address form in the file dated March 6, 1995, with a new address in New York City. Another clergy member who worked in the Archdiocese's administrative offices testified that he had written a memorandum in January, 1990, referencing the defendant's move to California, and that the office also had several different addresses, all in California, for the defendant during the time from 1990 to late 1994. A third member of the clergy testified that he corresponded with the defendant during late 1995 and early 1996 at a New York City address. A fourth member of the clergy testified to corresponding with the defendant at a New York City address throughout 1997 and then writing a memorandum referencing the defendant's arrival in San Diego, California. He also testified that he wrote letters to the defendant in San Diego on July 13, 1998, and March 3, 1999.
In addition, the Commonwealth introduced copies of the defendant's New York resident tax returns from 1995 and 1998, and his resident income tax returns from San Diego, California, for 1997. The Commonwealth also introduced a stipulation based on California Department of Motor Vehicle records that the defendant listed San Diego as his address as of January 24, 2002. The parties further stipulated that the defendant returned to Massachusetts from California on May 6, 2002, and, on arrival, commented about the changes in the city since
he had last been there.
SJC-10382
September 10, 2009. - January 15, 2010.Child Abuse. Evidence, Expert opinion, Qualification of expert witness, Scientific test. Witness, Expert. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, New trial, Judicial discretion, Argument by prosecutor. Practice, Civil, Instructions to jury. Limitations, Statute of. Indecent Assault and Battery.INDICTMENTS found and returned in the Superior Court Department on June 9, 2002.The cases were tried before Stephen E. Neel, J., and a motion for a new trial, filed on November 14, 2007, was heard by him.The Supreme Judicial Court granted an application for direct appellate review.Robert F. Shaw, Jr., for the defendant.Loretta M. Lillios & Bethany Stevens, Assistant District Attorneys, for the Commonwealth.The following submitted briefs for amici curiae:R. Christopher Barden & Eric Tennen for International Committee of Social, Psychiatric, Psychological, Cognitive Science, Neuroscience, and Neurological Scientists.Paul R. Rudof, Committee for Public Counsel Services, for Committee for Public Counsel Services.Wendy J. Murphy for Leadership Council for Child Abuse and Interpersonal Violence. Thomas A. Pavlinic for False Memory Syndrome Foundation.Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.CORDY, J.On February 7, 2005, Paul Shanley was convicted of sexual abuse of a child: two indictments charging rape, in violation of G.L. c. 265, § 23; and two indictments charging indecent assault and battery on a person under the age of fourteen years, in violation of G.L. c. 265, § 13B. The abuse occurred between 1983 and 1989 when the victim was attending Confraternity of Christian Doctrine (CCD) classes at the church where the defendant served as a Catholic priest. The victim testified that he did not remember being abused by the defendant until nearly twenty years later, when he learned that other individuals had publicly made allegations that the defendant had sexually abused them when they were children. The victim's testimony about what he remembered of that abuse constituted the core of the evidence against the defendant at trial.The defendant appealed from his convictions, and subsequently filed a motion for a new trial. The appeal proceedings were stayed pending resolution of the new trial motion, which was denied by the trial judge on November 26, 2008. The defendant appealed from the denial of this motion and that appeal was consolidated with the appeal from his convictions. We granted the defendant's application for direct appellate review.On appeal, the defendant contends that he is entitled to a new trial because (1) the judge erred in admitting expert testimony related to "repressed memory" [FN1]; (2) his trial counsel was ineffective for failing to prevent the admission of such expert testimony and for failing to challenge it adequately at trial; (3) the prosecutor made improper arguments during her closing; and (4) the judge erred in his instruction to the jury regarding the statute of limitations on the indecent assault and battery indictments. We affirm.1. Trial. a. The Commonwealth's case. The Commonwealth's case included the testimony of the victim as to his memory of the abuse he suffered at the hands of the defendant; the testimony of witnesses who observed the victim during the period of time when he claims he recovered that memory; the testimony of an expert witness on dissociative amnesia and recovered memory; and the testimony of individuals who could corroborate that the victim both attended CCD classes during the time period he alleges he was abused, and occasionally left those classes for behavioral reasons. The Commonwealth also presented evidence regarding the defendant's role and presence at the church where the abuse occurred, as well as his whereabouts outside of Massachusetts after he left that church in 1990. [FN2]Setting aside the victim's testimony regarding the alleged sexual abuse, and the testimony of the Commonwealth's expert, the jury could have found the following facts. The defendant was a priest at St. Jean's Church in Newton during the years when the victim was enrolled in CCD classes there. He would often check on the children while they were in their CCD classes on Sundays. Children ranging from the ages of six to fourteen, including the victim, attended these classes.The victim was born on September 9, 1977, and grew up in Newton with two siblings. His parents separated when he was four years of age and, after a short stay with his mother, he lived primarily with his father in his paternal grandmother's house. The victim attended CCD classes with the same group ofchildren at St. Jean's Church from first grade (in 1983) until he reached eighth grade. During the years the victim attended CCD classes, some of the children became quite boisterous and periodically were required to leave the classroom. The victim and two of his friends in particular were disciplined often, both in the lower grades and when they were in fourth or fifth grade. On occasion, the defendant admonished those who were required to leave the classroom for misbehavior, and the victim was observed leaving the classroom with the defendant on several occasions.Several years after graduating from high school, the victim joined the Air Force. After being trained as an Air Force police officer, he was stationed at Peterson Air Force Base in Colorado Springs, Colorado. He returned home to Massachusetts for a visit in spring of 2001 and began a romantic relationship with Tammy. [FN3] Their relationship continued when the victim returned to Colorado, with Tammy visiting the victim and the two often speaking on the telephone.Tammy telephoned the victim on January 31, 2002, and mentioned an article published in a Boston newspaper concerning the defendant and allegations of child sexual abuse. The victim expressed surprise at the contents of the article, commenting to Tammy, "That's weird, everybody liked him." After thisconversation, the victim began remembering being taken out of CCD class by the defendant, but he did not remember anything else. He also began reading newspaper articles on the Internet about the allegations and looking at photographs of the defendant.On February 11, 2002, Tammy again telephoned the victim and told him that one of his childhood friends and former CCD classmates had made an allegation of abuse against the defendant. The victim had a strong emotional and physical reaction to this news. Shortly after this conversation, the victim contacted his flight chief and said that he was not coming to work.Later on that same day, the victim spoke with the childhood friend who had made the allegation of abuse. Early the next morning, the victim contacted a personal injury attorney, with whom he later entered into a fee agreement. The victim also went to see Captain John F. Drozd, a psychologist on the Air Force base to talk with him about his mental state. [FN4] He stayed at Drozd's office for ten to twelve hours and felt awful, confused and sick. Drozd recommended that the victim keep a journal, which he did, backdating his entries to the first conversation with Tammy on January 31. [FN5]The victim returned to Massachusetts on February 15, 2002. [FN6] He briefly returned to Colorado, [FN7] where he ultimately received an honorable discharge from the military in April, 2002. He then returned to live with Tammy in Massachusetts. After joining a civil suit brought against the Archdiocese of Boston (based on the abuse he alleged against the defendant) he received a settlement in the amount of $500,000.With respect to the sexual abuse, the victim testified at the defendant's trial to the following based on the memories that came back to him after learning of the allegations made by others. The defendant began sexually abusing him when he was approximately six years of age and first began attending CCD classes. The defendant would take the victim out of his CCD class, bring him to the bathroom in the basement, unzip the victim's pants watch him urinate, and then touch the victim's penis with his hand and mouth.The defendant also sexually assaulted the victim in the pews of the church after the victim put pamphlets in the pews for the upcoming Mass. He would do so by sitting next to the victim, putting his right arm around the victim, touching the victim's penis through his clothes, and grabbing the victim's hand and putting it on his own penis over his clothing. The defendant would also bring the victim into the confessional room which was located "off the side of the pews," where the defendant would undress them both and place his finger in the victim's anus.Finally, the victim testified that the defendant would bring him to the rectory, get him soda and a snack from the kitchen, and then play the card game, "War." When the victim would lose a hand, the defendant would instruct him to remove a piece of his clothing. When the victim would go on a "winning streak," the defendant would remove his clothing.The abuse of the victim continued until the defendant left the Newton church in 1990 when the victim was approximately thirteen years of age. The defendant told the victim that no one would ever believe him if he disclosed the abuse.The Commonwealth called Dr. James A. Chu as an expert in the field of dissociative amnesia. He was not called to give a diagnosis of the victim, but rather to assist the jury in determining the credibility of the victim's testimony that he had recovered memories nearly twenty years after the abuse, and their consequent reliability. His qualifications as an expert were not contested by the defendant at trial. [FN8]Dr. Chu testified that dissociative amnesia is a diagnosis included and defined in the Diagnostic and Statistical Manual (DSM). That manual is published bythe American Psychiatric Association, and is a classification manual widely used by mental health professionals in making diagnoses of mental health problems. The DSM lists criteria for a clinician to consider when making a particular diagnosis. Dr. Chu was a member of the task force in the 1990's charged with reviewing dissociative disorder diagnoses for the purpose of preparing the most recent version of the DSM, DSM-IV, which was published in 1994. [FN9] He explained that in the DSM-IV, dissociative amnesia is a "descriptive term [for] somebody who cannot remember certain important information about themselves, either about what happened to them, sometimes personal information ... not ... due to ... head trauma or intoxication." It means, "basically, that there is a dissociative barrier that prevents somebody from remembering something in their ordinary state of consciousness."In describing how dissociative amnesia works, Dr. Chu testified that it is possible for a person to forget something and remember it later. Dr. Chu observed the phenomenon in his own clinical practice with adults who had been traumatized as children and explained that while it was not common in that population, it was "not at all rare." He analogized dissociative amnesia to a type of forgetting, which "leads to people having really pervasive amnesia for not only [traumatic] events themselves, but [also] sometimes for neutral events or even good events." He explained that persons who have experienced repeated traumatization suffer from dissociative amnesia more often than those who experience a single traumatic event.He went on to testify that when a person remembers "so-called forgotten memories," it is usually the result of a "trigger of some kind" which reminds that person of the traumatic experience. [FN10] While there was no typical pattern for the subsequent reaction of a traumatized person once there has been a trigger, the person may experience memory flashes or "body sensations." More specifically, a person might experience physical sensations that mirror the sensations he or she incurred from the trauma itself (for example, genital pain where a person had suffered sexual abuse); or have a subsequent reaction to a trigger, become overwhelmed by the sudden onset of traumatic memories and experience "people panic," that is, agitation, crying, and increased adrenaline. He further explained that, although it is "highly variable" among individuals, the return of such memories may lead to disruption or dysfunction in a person's life.Dr. Chu also testified about the quality of the memory that might be recovered with the caveat that "all ... memories are subject to various kinds of distortion." In general, however, "the central themes of memories are really relatively well-preserved," with distortions as to peripheral details andperhaps the sequence of the memory. He also explained that a person may not remember everything about a particular event all at once, that instead, the memory might progressively return. Dr. Chu identified the ways in which a clinician would go about testing the validity of a memory recovered many years later, including determining whether a person's life changed abruptly at a certain time, whether the person has had the ability to begin and maintain interpersonal relationships, and whether the narrative of the person's life is believable and reasonable.Dr. Chu acknowledged that it was possible for a new memory to be created in some people that has no basis in reality. He gave common examples of this phenomenon on a minor scale, but explained that there was "probably only a very small minority of people who are vulnerable to that kind of suggestion."Dr. Chu concluded by estimating that dissociative amnesia occurs in approximately twenty per cent of the seriously traumatized population.b. The defense case. The defense at trial was threefold: first, that the abuse did not happen; second, that the victim had significant financial and personal reasons to fabricate the abuse (including getting discharged from the Air Force and participating in the civil suit against the Boston Archdiocese); and third, that the theory of repressed memory is inherently unreliable given the problem with corroboration and the possibility of false memories. The first two prongs of the defense were presented through the cross-examination of the Commonwealth's witnesses. The third was developed initially through the cross-examination of Dr. Chu, during which he acknowledged that there are professionals in the psychiatric community who do not believe there is sufficient evidence to verify the existence of dissociative amnesia, and that clinical research on the subject relies to a significant extent on the self-reporting of the patient--a methological limitation. This prong of the defense was enhanced by the testimony of Dr. Elizabeth Loftus, an expert witness, and the only witness called by the defense.Dr. Loftus is a professor at the University of California at Irvine in the Department of Psychology and Social Behavior and the Department of Criminology, Law, and Society. She is also a member and former president of the American Psychological Society, which has several thousand members focusing on the science and teaching sides of psychology. Her qualifications as an expert were not contested by the Commonwealth at trial.Dr. Loftus testified that she has conducted research on memory and memory distortion, including experiments in the 1970's and 1980's where her research group evaluated the reliability of eyewitness testimony to a simulated accident or crime scene by subjecting the eyewitnesses to misinformation, such as leading questions or media accounts of the incident, to determine the impact, if any, on their recall of the event. She further elaborated that her research in the 1990's expanded the theories of misinformation to see whether people could be implanted with entirely false memories, for example, by making a person think that he or she had been lost in a shopping mall as a child. She explained that one quarter of the persons involved in this experiment believed in the false memory of being lost.Dr. Loftus described memory as involving the construction or reconstruction of experiences where a person may blend later occurring details into the memory of an event. She explained that many things could affect the accuracy of a memory, including factors related to the perception of an event as it occurs, such as lighting and distance and the exposure to postevent information such as leading questions or media coverage, which can distort or supplement a memory. Dr. Loftus also explained that the passage of time made memories weaker and thus more vulnerable to postevent contamination. She explained that a false memory is a false belief accompanied by sensory detail.In addition, Dr. Loftus testified that it was "virtually impossible without independent corroboration" to determine the difference between an accurate memory and a false one. She stated that the impact of trauma on a memory is that while the core of the memory might be recalled, the peripheral details may be distorted. [FN11] In contrast to Dr. Chu, Dr. Loftus testified that repetitive traumatic experience would make it more likely that someone would remember a particular event.She elaborated on the controversy surrounding "repressed memory" and explained that in her view of the literature there is no "credible scientific evidence for the idea that years of brutalization can be massively repressed." She noted that it was possible to retrieve unpleasant memories through ordinary remembering and forgetting, but there was a lack of current scientific support for the theory that some "special mechanism" would "banish [traumatic experience] into the unconscious." She also explained that there was "inherent limitation" in the method of studies used to test for repressed memory, namely, that the retrospective memory technique relies on self-reporting by patients.2. Discussion. a. Admission of expert testimony. The role of expert testimony is to assist jurors in interpreting evidence that lies outside their common experience. The proponent of such testimony bears the burden of establishing that it "will assist the trier of fact to understand the evidence or todetermine a fact in issue," Mass. G. Evid. § 702 (2008-2009), and that the methodology or theory underlying the expert testimony is sufficiently reliable to be presented for the jury's consideration. [FN12] Id.Trial judges serve an important gatekeeping function with respect to expert testimony. Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (Lanigan ). As a gatekeeper, the judge must make a preliminary assessment whether the theory or methodology underlying the proposed testimony is sufficiently reliable to reach the trier of fact. [FN13] For these purposes, expert testimony is sufficiently reliable if the underlying theory or methodology is either (1) generally accepted in the relevant scientific community, see Frye v. United States, 293 F. 1013 (D.C.Cir.1923); or (2) satisfies the alternative requirements adopted inLanigan, supra at 25-26. The judge may hold a pretrial hearing (Lanigan hearing), as he did here, to assist in making this preliminary assessment. A judge's decision to admit expert testimony is subject to review only for abuse of discretion. Canavan's Case, 432 Mass. 304, 312 (2000). Once admitted, the validity and credibility of the expert testimony is subject to challenge like any other testimony, including through the admission of opposing expert testimony, and it is for the jury to determine what aid it might provide to their deliberations.In this case, the victim was expected to testify that he had been abused many years ago, but had only recently remembered that abuse. To assist the jury in understanding how memories of abuse might be forgotten and later remembered, the Commonwealth proposed to offer expert witness testimony to explain the theory, condition, and symptoms of dissociative amnesia and recovered memory. In response, the defendant moved to preclude such testimony because the theory underlying it could not meet the test of reliability required for admission.
[FN14](i) The Lanigan hearing. In considering the defendant's motion, the judge was initially of the view that a Lanigan hearing might not be required because this court, in Commowneath v. Frangipane, 433 Mass. 527 (2001), had both permitted expert testimony "concerning dissociation and recovered memory; what these conditions or symptoms are; and the fact that victims of trauma may experience them," id. at 535, and suggested that no Lanigan hearing was necessary as to expert testimony which concerned "memory problems associated with dissociative memory loss, and related mental disorders ... such as those referred to in the most recent edition of the [DSM], or those disorders where qualified expert testimony has been accepted as reliable in the past in Massachusetts appellate cases." Id. at 538.Despite his misgivings about whether it was required, the judge proceeded to conduct a Lanigan hearing that extended over five days. [FN15] During that hearing, two experts retained by the Commonwealth, Dr. Daniel Brown and Dr. Chu, were called to testify. In addition to this testimony, the judge considered, without objection from the Commonwealth, an affidavit prepared by Dr. Loftus and submitted by the defendant.Dr. Brown was called by the Commonwealth to explain the theory, conditions, and symptoms of dissociative amnesia and recovered memory and their general acceptance in the scientific community. Dr. Chu, who had been retained by the Commonwealth, was called to testify about the "fit" of the proposed opinion testimony regarding dissociative amnesia and recovered memory, to the facts of this case. The defendant does not challenge Dr. Chu's testimony on this subject, or on the ruling of the judge that the "fit" was sufficient in this case. We focus then on Dr. Brown's testimony.Dr. Brown is a licensed psychologist, an assistant professor of clinical psychology at Harvard Medical School, [FN16] and an adjunct professor at the Simmons School of Social Work. He specializes in treating patients who have been the victims of trauma, e.g., physical abuse, sexual abuse, child neglect, accident, torture, and natural disasters. He has previously given expert testimony in judicial proceedings regarding dissociative amnesia in five States and has also testified about memory and trauma at the international war crimes tribunal. He is the author of twelve books, including a text entitled, "Memory, Trauma Treatment and the Law," which presents a comprehensive review of 2,500 clinical and laboratory studies on human memory.Dr. Brown testified that based on his clinical experience, his review of thousands of studies regarding various aspects of memory, and his analysis of eighty-five studies focused on amnesia in childhood sexual abuse cases, many of which were subject to peer review, it was his opinion that dissociative amnesia exists for a clinically significant minority of traumatized individuals, including children subjected to sexual abuse. He also testified about the evolution of the use of dissociative amnesia as a diagnosis in the DSM, which has been revised several times. He opined that this diagnosis is generally accepted in the field and cited six surveys of psychology professionals, including psychiatrists, psychologists, social workers and clinicians working with war veterans to that effect. According to those surveys (taken collectively), eighty-nine per cent of those surveyed accepted the validity or possible validity of dissociative amnesia.Dr. Brown acknowledged that there is controversy surrounding the existence of dissociative amnesia and the difficulty in determining its existence in a particular individual. [FN17] He also highlighted some of the problems with determining the existence of dissociative amnesia, and agreed that a person with a suggestible personality might be susceptible to false memories suggested by a trusted source, and that an extremely suggestive process of interviewing a subject could also create false memories.Defense counsel cross-examined Dr. Brown for two days about the problems affiliated with determining the existence of repressed memory; the difficulties of corroborating the details of recovered memories; the difficulty in making a precise diagnosis in accordance with the DSM-IV; the uncertainty as to the cause or neurological or biological mechanisms that lead to dissociative amnesia; and the likelihood that a particularly suggestable person would develop false memories or malinger. In that examination, defense counsel brought to the judge's attention the contentions of the critics of repressed memory theory based on the lack of a scientific method to test for it in individuals; the absence of a controlled methodology; and the methodological limitations of clinical observation and experience that depend so greatly on patient self-reporting.(ii) The judge's decision. The judge denied the defendant's motion to exclude expert testimony on dissociative amnesia and recovered memory, concluding that the diagnosis and theories behind it were generally accepted in the relevant scientific community. In doing so, the judge recognized the significance of its listing as a diagnosis in DSM-IV, and credited the testimony of Dr. Brown that "clinically significant minorities of [victims of child sexual abuse] experience amnesia," testimony that was buttressed by the studies cited to and relied on by Dr. Brown which "reflect[ed] a broad-based acceptance of dissociative amnesia and recovery." Contrary to the defendant's arguments that controversy regarding the validity of a theory necessarily precluded a determination that the theory is generally accepted, the judge recognized the controversy, was fully aware of its contours, and rejected it as being determinative in light of the other evidence of acceptance. Lanigan, supra at 27 ("Unanimity of opinion among the relevant scientists is not essential even under the general acceptance test"). That other evidence, the judge pointed out, included statements of both the American Medical Association and the American Psychiatry Association, that "memories of traumatic events can be forgotten but that pseudomemory formation is also possible," in addition to the 1996 final report of the American Psychological Association working group on the investigation of memories of childhood abuse, which included points of agreement among the group members (including Dr. Loftus) that (1) it is possible for memories of abuse that have been forgotten for a long time to beremembered, and (2) it is also possible to construct convincing pseudo memories for events that never occurred. [FN18]The defendant argued below, and argues on appeal, that because there is a lack of peer-reviewed literature regarding repressed memory, the judge improperly concluded that the theory is generally accepted. We defer to the findings of the judge with regard to the testimony of Dr. Brown that was based, in part, on his review of eighty-five studies focused on amnesia in childhood sexual abuse cases, which were conducted in a variety of contexts, including surveys and clinical evaluations, as constituting sufficient and reliable peer review for the purposes of general acceptance. See Canavan's Case,432 Mass. 304, 314 n. 6 (2000) ("A relevant scientific community must be defined broadly enough to include a sufficiently broad sample of scientists so that the possibility of disagreement exists").The defendant's other arguments are equally unpersuasive. They essentially echo the contention made by Dr. Loftus and other critics of repressed memory theory that the theory is invalid because there does not yet exist a scientific method using experimental design to test for its existence in certain individuals nor are there known error rates or standardization. [FN19] The judge, while well apprised of the contention that studies of dissociativeamnesia are unreliable because of methodological flaws, explicitly found that "the methodological criticisms ... by Dr. Loftus [in her affidavit were] rebutted [by Dr. Brown in his testimony]."In sum, the judge's finding that the lack of scientific testing did not make unreliable the theory that an individual may experience dissociative amnesia was supported in the record, not only by expert testimony but by a wide collection of clinical observations and a survey of academic literature. See Canavan's Case, supra at 313 ("Observation informed by experience is but one scientific technique that is no less susceptible to Lanigan analysis than other types of scientific methodology"). There was no abuse of discretion in the admission of expert testimony on the subject of dissociative amnesia.b. Ineffective assistance of counsel. The defendant moved for a new trial pursuant to Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), on the grounds that he was denied the effective assistance of counsel both at the Lanigan hearing and at trial. His claims relate to defense counsel's alleged failure to challenge adequately the admissibility of the expert testimony at the Lanigan hearing, and his failure to defend effectively against it at trial. Essentially, the defendant alleges that had counsel done better work in either proceeding, the outcome would have been different. In support of his motion for a new trial, the defendant submitted three affidavits from experts, [FN20] and more than fifty scholarly articles, surveys, and studies, some of which were peer reviewed, [FN21] questioning the existence of repressed memory.A trial judge "may grant a new trial at any time if it appears that justice may not have been done." Mass. R.Crim. P. 30(b). The decision to grant a motion for a new trial is within the sound discretion of the motion judge who is entitled to "special deference" if he was also the trial judge. Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996).In evaluating claims of ineffective assistance, the court engages in "a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, typically, whether it has likely deprived the defendant of an other available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) ("there ought to be some showing that better work might have accomplished something material for the defense"). See also Commonwealth v. DiGeronimo, 38 Mass.App.Ct. 714, 719-720 n. 6 (1995).If a defendant challenges the "tactical or strategic decisions," of trial counsel, he must establish them as "manifestly unreasonable." Commownealth v. Montanez, 410 Mass. 290, 295 (1991), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). We are cautious on review "to avoid characterizing as unreasonable a defense that was merely unsuccessful." Commonwealth v. White, 409 Mass. 266, 272 (1991).With respect to the Lanigan hearing, the defendant's claim that counsel was ineffective in his challenge to the admissibility of expert testimony is largely belied by the transcript of the hearing. Defense counsel cross-examined Dr. Brown for nearly two full days and in doing so, thoroughly and precisely illuminated for the judge the issues and the controversies surrounding the scientific validity and acceptance of the theory of dissociative amnesia and the reliability of recovered memory. His attack on the proposed evidence was both sophisticated and knowledgeable, and provided the judge with the information necessary to a full understanding of the nuances of the debate about the subject. Defense counsel also methodically challenged Dr. Brown by highlighting for the judge any possible bias related to Brown's testimony in prior litigation and his association with less credible authors and scholars.In addition, and in connection with the motion for a new trial, the judge carefully reviewed all of the affidavits and the recent scientific articles, surveys, and studies submitted by the defendant. Those materials suggest that an increasing number of mental health professionals have concluded not only that no empirical evidence supports the theory of dissociative amnesia, but also that false memories can occur as a result of a number of factors. After this review, the judge reached several conclusions. First, that there was no dispute at the Lanigan hearing (or at trial) that in some individuals false memories can be implanted, but the existence of such false memories "does not negate the case for the existence of repressed memories." Second, that the lack of unanimity in the scientific community regarding the theory of dissociative amnesia does not rule out its admissibility (citing Lanigan, supra at 26-27). Third, that there is ample evidence of the acceptance of the diagnosis in its inclusion in the DSM-III-R and the DSM-IV, and in its acceptance by the American Psychiatric Association and the American Medical Association, as well as by a number of appellate and trial courts.Finally, the judge concluded that even had defense counsel produced (at the Lanigan hearing) all of the evidence submitted with the motion for a newtrial, his decision to admit the evidence on the basis of its general acceptance by the relevant scientific community would not have changed. Consequently, the "better work" that the defendant now claims his counsel should have done would not have accomplished anything material, and the defendant was not deprived of a substantial defense. After our own review of the record before the judge, we agree that the defendant has not satisfied his burden of demonstrating that his counsel provided ineffective assistance at the Lanigan hearing.We reach the same conclusion with respect to defense counsel's performance at trial. The defendant complains about his counsel's decision to call Dr. Loftus as the sole defense witness to testify about the unreliability of expert testimony on the subject of disassociative amnesia. This, however, was only one prong of the defense case which, importantly, focused both on the victim's possible fabrication of the abuse for the purpose of personal benefit, and the possibility that false memories of abuse had resulted from the process of memory recovery.Defense counsel elicited from Dr. Loftus not only testimony that dissociative amnesia was not a theory accepted by a large segment of the scientific community, and had never been scientifically proved, but also (based on her extensive experience and studies in the field of memory) that there were a number of suggestive influences that substantially increased the likelihood that a particular memory is false--some of which were present in the facts of this case. [FN22] That counsel might have offered even more evidence on these subjects does not amount to ineffectiveness. Although the defendant argues that Dr. Loftus's lack of clinical experience disadvantaged her during cross-examination, her background as a research scientist buttressed the defense theory that clinical observations provided insufficient foundation for the reliability of repressed memory, and that the implantation of false memories was a scientifically documented phenomena.More generally, defense counsel conducted a vigorous defense on all fronts, which included a thorough cross-examination of the victim and Dr. Chu, further exposing for the jury the potential problems with the reliability of evidence based on memories recovered after dissociative amnesia. [FN23] He highlighted for the jury the academic debate involving the existence and manifestation of dissociative amnesia, underscoring the fact that there is no demonstrable evidence to corroborate that the phenomenon exists. He examined Dr. Chu about the possibility that a person susceptible to suggestion could be implanted with a false or pseudo memory, and Dr. Chu acknowledged there were those in the field who believe that the more an individual has the capacity to dissociate memories, the more he is likely to develop pseudo memories. Defense counsel further undercut the relevance of studies related to dissociative amnesia to this case by getting Dr. Chu to admit that such studies provided no illumination as to the question whether any particular individual might be affected by dissociative amnesia. Dr. Chu also acknowledged that the self-reporting aspects of the clinical setting provide limitations in answering the question of whether there is demonstrable evidence that dissociative amnesia exists.Finally, defense counsel utilized the DSM-IV in questioning Dr. Chu, focusing the testimony on the DSM-IV's cautionary language regarding the use of DSM-IV in forensic settings where the patient has been referred by an attorney, and in making a diagnosis of dissociative amnesia where there is "currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence."In sum, this is not a case where "the record reveal[ed] that, notwithstanding an over-all high quality of work at trial, defense counsel's conduct or failure to act in a particular instance was so serious a lapse as to enhance significantly the chance of a defendant's conviction." Commonwealth v. DiGeronimo, 38 Mass.App.Ct. 714, 719-720 n. 6 (1995). Counsel pursued a dynamic, multi-faceted trial strategy that did not rely solely on challenging the admission of the expert testimony, but also on exploring the factual deficiencies in the victim's version [FN24] of events and by impeaching his credibility and his motivations. [FN25] The trial judge's denial of the defendant's motion for a new trial on the ground of ineffectiveness was not an abuse of discretion.We cannot say that counsel's performance at trial with regard to the testimony about repressed memory was lacking, see Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974); or that counsel's strategic decision to rely largely on cross-examination of witnesses was manifestly unreasonable. SeeCommonwealth v. Montanez, 410 Mass. 290, 295 (1991). Finally, we are not persuaded that counsel failed to pursue an otherwise available, substantial ground of defense that might have accomplished something material for the defense. See, e.g., Commonwealth v. Satterfield, 373 Mass. 109, 115 & n. 10 (1977). The defendant's principal argument is not that his trial counsel failed to pursue a particular defense, but that he failed to do so as effectively as he could have. However, we evaluate counsel's performance not to determine whether in hindsight he might have done things differently and perhaps more effectively, but to determine whether he provided representation commensurate with that of an "ordinary fallible lawyer." Commonwealth v. Saferian, supraat 96. He did so in this case. [FN26]c. Closing argument and comments by the prosecutor; memory analogy. The defendant argues that he suffered severe prejudice when, in attempting to counteract a possible rejection by the jury of the theory of repressed memory, the prosecutor equated that theory with ordinary forgetting and remembering in her closing argument; and, in doing so, misrepresented and mischaracterized the testimony of both Dr. Chu and Dr. Loftus. The defendant further argues that if defense counsel knew that the prosecutor would analogize the victim's repressed memory to ordinary forgetting and remembering during her closing, he would have called an expert to rebut this comparison. [FN27]The Commonwealth responds that the theory of the case was not exclusively limited to the validity of the theory of dissociative amnesia because the victim was never actually diagnosed with that disorder. Instead, the jury were entitled to reject the testimony regarding dissociative amnesia, the purpose of which related to the victim's credibility regarding the delay in reporting the sexual abuse, and still find that the victim had remembered the sexual abuse in reliable detail. The Commonwealth further argues that, at a minimum, the state of the evidence changed with Dr. Loftus's testimony that, notwithstanding her view that the underlying theory of dissociative amnesia had not been scientifically validated, it was nonetheless plausible that a person could forget a traumatic event and then remember it through the processes involved with ordinary memory. [FN28]The defendant did not object to the prosecutor's closing on this ground at trial. Therefore we review his claim to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).Prosecutors are required to limit their arguments to facts in evidence and reasonable inferences that may be drawn from those facts. Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005), quoting Commonwealth v. Coren, 437 Mass. 723, 730 (2002). A defendant's challenge to a specific part of a closing argument is analyzed in "the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).Here, the prosecutor's comments about the testimony of Drs. Chu [FN29] and Loftus [FN30] with regard to "remembering" and "forgetting," were not in error. There was testimony about forgetting and remembering traumatic events aside from a diagnosis of dissociative amnesia, a fact recognized andarticulated by the judge prior to closing argument. [FN31] The prosecutor's argument highlighted that testimony and there was no error.d. The "voluntary" appearance and testimony of the victim at trial. The defendant argues that given the importance of the victim's credibility to the prosecution of this case, the prosecutor improperly buttressed his credibility throughout the trial by suggesting to the jury that he appeared "voluntarily" and not by subpoena or as a result of a contractual agreement related to the settlement of the civil suit.This issue arose early in the trial when defense counsel objected to the prosecutor's opening statement that, "[y]ou will learn ... that [the victim] filed a civil lawsuit against the [Boston] Archdiocese, [which] paid him $500,000 last May with no requirement that he testify in this criminal trial." The prosecutor countered that the Commonwealth should be entitled to respond because the defense was going to argue that the victim was biased and motivated by the civil settlement. The judge agreed to take the objection into consideration, but declined to give an instruction addressing the civil case immediately after the opening statements, stating that he would be willing to give an instruction at the time the parties introduced evidence of the civil settlement.The issue arose again before the direct examination of the victim. Defense counsel objected that it would be improper for the prosecution to suggest that victim's appearance in the case was somehow voluntary, and argued that it would be unethical "for the Commonwealth to try to suggest to the jury that this witness has anything to do with the processing of this case notwithstanding whatever policies they may have about forcing people to do or not do anything." The prosecutor again countered that the Commonwealth had a right to rebut the defense's suggestion that the victim was testifying because of the civil settlement and that it was proper to elicit testimony that he was not under subpoena and was under no obligation to appear to testify. The judge agreed to give an instruction that the Commonwealth had exclusive discretion in deciding which witnesses to call in attempting to prove its case against the defendant beyond a reasonable doubt. Defense counsel agreed to wait and see how the victim's testimony developed before requesting such an instruction. The victim testified on direct examination that payment of the civil settlement did not have any conditions attached to it and that he did not appear at trial because of a subpoena. The defense did not object to this testimony, did not move to strike it from the record, and did not request the instruction that the judge had proposed.In his cross-examination of the victim, defense counsel proceeded to question him extensively about the fact that he had spoken with a lawyer about potentially joining a class action suit against the Boston Archdiocese on February 11, the same day on which that the victim alleged he recovered his memories of abuse.Later, at the charge conference, defense counsel again sought to preclude the Commonwealth from arguing that the victim's appearance was voluntary and not compelled by subpoena or any agreement related to the civil trial. The prosecutor countered that defense counsel's cross-examination of the victim suggested that he was lying about having been abused and that the civil lawsuit was the motivation for his lies. The judge ruled that the Commonwealth could comment in its argument about the victim's voluntarily appearing (as was established by the evidence), but would not be permitted to appeal to sympathy or "any improper use of that evidence." [FN32] The defendant's objection was overruled.In her closing, the prosecutor stated: "[The victim] is a twenty-seven year old man. He's recently married. He has a job that he loves.... He has half a million dollars in his pocket. So why, ladies and gentlemen, did he come in here and tell you what happened to him? Why? What does your common sense tell you? "You saw him on that stand for almost 14 hours day after day, hour after hour, he willed himself through that testimony. You saw it. What does your common sense tell you? "He came in here and he told you what happened because that man, that defendant, that priest, raped him and molested him when he was a little boy over and over again. The defendant would have you believe it is all a lie. It's for the money; that people don't forget about things that happen to them and then later remember them.... "Was it all a lie? Was it made up? Did [the victim] come in here and just lie about it? Was it for the money? He has the money. He got the money over nine months ago. No strings attached. What did he get from coming in here? The opportunity to be on the stand? He sustained long, painful questioning, and what did he get from it? It's not about the money. Put that aside. Is it all a lie? ... "And [an attorney] filed a civil lawsuit on behalf of [the victim], and [the victim] got a half a million dollars. True. But so what? It's all done, signed, sealed, delivered to the bank. And it's done. No more words need to be said. That's over. And it has been over for over eight months. That's what you know. That's what you know about what happened."Prior to addressing the jury, the judge suggested a limiting instruction to the parties to address the victim's participation in the civil suit. [FN33] Defense counsel asked that the judge refrain from instructing the jury on that issue. Therefore, no limiting instruction on the civil suit was given.The defendant relies on Commonwealth v. Beaudry, 445 Mass. 577 (2005), for the proposition that the Commonwealth's argument was improper. In that case, the prosecutor argued that the child complainant was credible simply because she testified at trial and that she did not have any motive to lie. Id. at 586. Defense counsel objected to the argument and the judge gave a limiting instruction to the jury, stating, "[T]he fact that a complaining witness has come into court and testified before you does not entitle that witness to any greater credibility.... [T]he mere fact that somebody has come into court to testify does not mean that their testimony is entitled to be believed by you because of the mere fact that they showed up in court and testified." Id. at 586-587.Here, the substance of the prosecutor's closing argument properly touched on the victim's motivation in appearing to testify because it was a primary issue in the case. Unlike in the Beaudry case, the defense strategy was to assail the credibility of the victim by suggesting that he had a motive to fabricate the allegations of abuse, both because of the civil suit and because of a latent desire to get out of the Air Force. Therefore, the prosecutor was warranted in "mak[ing] a fair response to an attack on the credibility of a government witness." Commonwealth v. Senior, 454 Mass. 12, 17 (2009), citingCommonwealth v. Chavis, 415 Mass. 703, 713 (1993). Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 129 S.Ct. 202 (2008) (noting that prosecutor's comment regarding government witnesses motives to lie "was a legitimate attempt to defend the credibility of these two witnesses"). There was no error.e. Statute of limitations. The two indictments charging indecent assault and battery, in violation of G.L. c. 265, § 13B, were returned on June 20, 2002. The offenses they allege last occurred on October 5, 1986. The relevant statute of limitations provides that an indictment for such an offense must be "found and filed within six years after such crime has been committed; provided, however, that any period during which the defendant is not usually and publicly a resident within the commonwealth shall be excluded in determining the time limited." G.L. c. 277, § 63, as amended through St.1996, c. 26. It further provides that for the crimes charged here, "the period of limitation for prosecution shall not commence until the victim has reached the age of sixteen or the violation is reported to a law enforcement agency, whichever occurs earlier." Id., as appearing in St.1987, c. 489.It was stipulated at trial that the victim reached the age of sixteen years of age on September 9, 1993. Consequently, the prosecution was required to commence no later than September 9, 1999, unless the defendant was not "usually and publicly a resident within the commonwealth" for some period of time before September 9, 1999. The parties also stipulated that the indictment was returned 1,015 days beyond the six-year limitation date.The statute of limitations defense was initially raised by the defendant in a motion to dismiss. At a scheduled hearing on pretrial motions, the prosecutor, defense counsel, and the judge agreed that, while properly advanced in the motion to dismiss, the resolution whether the indictments were timely brought raised a question for "a finder of fact in the context of trial."At trial, the prosecutor presented evidence from which the jury could have found that the defendant resided outside of Massachusetts for almost the entire period from 1990 (when he left St. Jean's Church) until May, 2002, just before he was indicted. The witnesses from whom the Commonwealth elicited this evidence were cross-examined by defense counsel regarding the basis for their testimony, establishing that they were relying largely on records and not their own personal knowledge. In her closing, the prosecutor argued that the Commonwealth had proved that the defendant was not usually and publicly a resident in the Commonwealth for a sufficient period of time to satisfy its burden of demonstrating that the indictments were timely brought under the statute. The prosecutor also requested a specific jury instruction on the statute of limitations, which the judge gave in its entirety, and to which the defendant did not object.The judge's instruction essentially told the jury that the statute of limitations for the indecent assault and battery offense "would have expired" on September 9, 1999, "unless the Commonwealth has proved beyond a reasonable doubt that the defendant was not usually and publicly a resident of the Commonwealth for at least 1,015 days between October 5, 1986, the last date of the offenses, and June 20, 2002, the date the indictments were returned in this case."In his motion for a new trial, the defendant contended that this instruction was error as it allowed the jury to consider the period before the six-year statute began to run (October 5, 1986, through September 9, 1993) in determining whether the Commonwealth met its burden of proving that he was not usually and publicly a resident of Massachusetts for those 1,015 days. In denying the motion for a new trial, the judge declined to decide whether the instruction was an incorrect statement of the law, and instead concluded that because the defendant had not presented any evidence that he was in the Commonwealth between September 9, 1993, and June 20, 2002, he was not, in any event, entitled to an instruction on the statute of limitations. [FN34] The judge reasoned that insofar as the defense of the statute of limitations is an affirmative defense, see Commonwealth v. Steinberg, 404 Mass. 602, 606 (1989), the defendant had the burden of producing evidence to support the defense at trial before the Commonwealth had any burden of disproving it. Therefore, in the absence of his production of any such evidence, the defendant was not entitled to an instruction. Alternatively, the judge concluded that any "presumed" error in his instruction did not create a substantial risk of a miscarriage of justice because the result of the trial would not have been different had the error not been made.We first conclude that the instruction was error. Whether the defendant resided in or outside of Massachusetts before the statute of limitations began to run on September 9, 1993, is not relevant to whether, once statutorily commenced, the six-year period was thereafter tolled for any period of time by the defendant's absence. [FN35] The instruction should have focused the jury's attention only on the defendant's usual and public residence during the period after September 9, 1993.We next conclude that the statute of limitations defense was properly raised, preserved, and sufficiently presented by the defendant in this case. We have repeatedly referred to the statute of limitations defense as an affirmative defense, Commonwealth v. Steinberg, supra at 606, citing Couture v.Commonwealth, 338 Mass. 31, 33 (1958), and have explained with respect generally to affirmative defenses that where asserted, "the defendant takes on a burden of production because the Commonwealth has no burden of disproving an affirmative defense 'unless and until there is evidence supporting such defense,' " Commonwealth v. Cabral, 443 Mass. 171, 179 (2005), quoting Model Penal Code § 1.12(1), (2) (1985). "If the defense is 'affirmative,' once a defendant raises the defense to a charge and the defense is supported by sufficient evidence, the defendant is entitled to have a jury instruction on the defense, and the Commonwealth has the burden of disproving the defense."
[FN36] Id. We have never had occasion specifically to address what evidence the defendant must adduce in order to be entitled to an instruction on a statute of limitations defense. [FN37]We need not decide what might be necessary in every case where a challenge to the timeliness of an indictment is brought, but in this case, where the Commonwealth was on full notice that the defense was being raised, evidence that the victim's sixteenth birthday was more than six years before the indictments were returned was sufficient evidence of untimeliness to require the Commonwealth to prove that the limitations period was properly tolled under the provisions of G.L. c. 277, § 63. The defendant was not otherwise required to offer evidence that he was "usually and publicly a resident within the commonwealth," in order to raise and preserve the defense. Consequently, the defendant was entitled to a proper instruction on the subject.Finally, we agree with the judge that based on the evidence at trial, the erroneous instruction (which was neither objected to nor pertained to an element of the offense) did not give rise to a substantial risk of a miscarriage of justice. The Commonwealth's evidence that the defendant left the Commonwealth in 1990 and, but for a forty-three day period in 1993, was not usually or publicly a resident of Massachusetts until he returned in May, 2002, was very strong. [FN38] It was so strong that even though defense counsel had cross-examined the Commonwealth's witnesses, he made no reference to the issue in closing argument. A review of the evidence suggests that this failure was not a shortcoming of counsel, but based on a realistic assessment of the state of the evidence before the jury. Had the jury been properly instructed, we have little doubt that the result would have been the same.Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).Judgments affirmed.Order denying motion for a new trial affirmed.
FN1. The terms "repressed memory," "recovered memory," and "dissociative amnesia" were used interchangeably throughout the pretrial and trial proceedings and generally refer to the phenomenon of completely forgetting and later recovering a memory.
FN2. Evidence regarding where the defendant resided after 1990 and up until his indictment in 2002 is relevant to the statute of limitations defense and jury instructions, and is discussed in more detail infra.
FN3. A pseudonym.
FN4. Captain Drozd talked to the victim and administered a test to him. He also changed the victim's military status so that he was temporarily disqualified from performing security duties and from carrying a firearm.
FN5. Drozd described the journal to the victim as being "an emotional barf bag" and directed the victim to record everything that came into his mind.
FN6. Drozd had filled out a request for the victim to take temporary leave. Tammy testified that the victim was very agitated while he was home and would soak the sheets with sweat and curl up into a ball.
FN7. Because of the change in his status and his disqualification from security work when the victim returned to Colorado, he was employed in the visitors' center for civilian guests to the military base. He tried to return to work, but had to leave after a few hours because, he "couldn't be around people." The victim continued to see Drozd and was taking the medications Celexa, Zoloft, and Trazodone. He also developed "a stress rash" on his body for one or two weeks. The victim never returned to work as an Air Force police officer.
FN8. Dr. Chu is a licensed psychiatrist and the chief of clinical services at McLean Hospital. His speciality is the diagnosis and treatment of adults who have been seriously traumatized as children, and he has treated patients suffering from such trauma for nearly thirty years. He is certified by the American Board of Psychiatry and Neurology and Adult Psychiatry, and is a distinguished fellow within the American Psychiatric Association.
FN9. Dr. Chu testified that a particular diagnosis is included in the DSM only after a "fairly rigorous process by which interested groups of people" may convene a task force or engage in field trials to test a new diagnosis of a specific syndrome. The diagnoses in the manual are subject to revision and evolve over time. The dissociative amnesia diagnosis first appeared as such in the third edition of the DSM, DSM-III.
FN10. Dr. Chu gave examples of various triggers that he has observed, including that childbirth may be a trigger for a woman who was sexually abused as a child because the genital pain, fear, and helplessness of childbirth are similar to sensations that the woman may have experienced as a sexually abused child. Another example that he gave was a mother who experiences a trigger when her own child reaches the age at which she experienced abuse.
FN11. On cross-examination, Dr. Loftus acknowledged that it is more difficult to distort the central details of a memory.
FN12. The proponent of the evidence also has the burden of establishing that the witness he intends to call is qualified as an expert in the relevant area, a matter not at issue in this case. Mass. G. Evidence § 702 and note at 207- 208 (2008-2009), and cases cited.
FN13. The judge must also determine whether the reasoning or methodology can be applied to the facts in issue--that is, whether there is a proper "fit" between the two.
FN14. The defendant also moved to suppress the trial testimony of the victim based on the ground that recovered memory is inherently unreliable.
FN15. The judge correctly surmised that hearings held pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (Lanigan ), may not always be required where qualified expert testimony of the same type and offered for the same purpose has been accepted as reliable in the past in Massachusetts appellate cases, see Commonwealth v. Frangipane, 433 Mass.
527, 538 (2001). However, we have not "grandfathered" any particular theories or methods for all time, especially in areas where knowledge is evolving, and new understandings may be expected as more studies and tests are conducted. See Lanigan, supra at 26-27. In spite of what we said in Commonwealth v. Frangipane, supra, the evolving nature of scientific and clinical studies of the brain and memory and the controversy surrounding those studies made it prudent for the judge to proceed with a Lanigan hearing in this case.
FN16. For fourteen years, Dr. Brown was responsible for the annual course on the assessment and treatment of psychological trauma at Harvard Medical School.
FN17. Dr. Brown also testified that much of the current research and debate is centered on determining what neurological or psychological processes or mechanisms cause dissociative amnesia. The Commonwealth did not propose to offer expert testimony on the neurological or psychological processes or mechanisms that might cause dissociative amnesia.
FN18. Critics of repressed memory theory argue that it is flawed because of the risk that so-called false memories can be created where therapeutic or forensic intervention is suggestive. The judge was well aware of this risk and its impact on the validity of the theory and addressed this point in his
memorandum of decision, stating, "[T]he Court rejects any suggestion that the relevant scientific community generally accepts the notion that the fact that false memories may be created in some individuals invalidates the conclusion that dissociation and recovered memory occur in others. In any event, whether one or the other is at work [in this case] is for the jury to decide, with such aid as admissible expert opinion from both sides may provide."
FN19. Dr. Loftus acknowledged that there are severe ethical concerns in designing an experimental study to test the possibility of false memory by implanting memories of abuse in human subjects.
FN20. The experts included Harrison G. Pope, Jr., a practicing board certified psychiatrist and professor of psychiatry at Harvard Medical School. Dr. Pope stated that one of his primary teaching areas involved helping faculty and students to design scientifically valid research studies and to evaluate the methodology of other studies. He attached thirty examples of scientific publications questioning the validity of the repressed memory hypothesis to his affidavit. See note 28, infra. The defendant also submitted an affidavit from Dr. Loftus in which she stated that she provided very minimal assistance in the pretrial stage and that her testimony at trial was limited by her experience to the scientific study of memory, rather than its clinical counterpart. The
third expert was R. Christopher Barden, who has both a doctorate in clinical child psychology and a law degree. He identifies himself in his affidavit as a "national expert in psychology and law." The substance of his affidavit criticized the performance of the defendant's trial counsel and attempted to discredit Dr. Brown.
FN21. Taken collectively, the articles further illustrated the controversy over repressed memory, that the theory was questionable because it could not be tested with scientific methods; that there was the possibility of false memories; that clinical techniques could lead to the formation of false memories; and that there was uncertainty about the neurological mechanism which caused repression.
FN22. Dr. Loftus explained she had designed experimental situations to test for the presence of false memory by using sources of suggestion such as leading questions, allowing a subject to overhear someone else's recollection of an event, and media coverage of an event. Here, there was evidence that the victim learned of the allegations of abuse from media reports and from speaking to a childhood friend who also claimed to have been abused.
FN23. For example, during cross-examination, Dr. Chu admitted that
determining whether abuse occurred to particular individuals was at best, "reasonable speculations." He also admitted, consistent with the defense theory that the abuse did not happen, that determining the validity or accuracy of a memory is perhaps a secondary concern in the clinical setting, where the well-being of the patient takes priority over investigating the truth of a memory; and that the victim here had significant incentive to fabricate. Defense counsel also questioned Dr. Chu extensively about the possibility that the victim was malingering or otherwise exaggerating or fabricating the occurrence of abuse.
FN24. Defense counsel cross-examined nearly all of the Commonwealth's "fact" witnesses about the layout of the church, the bustling Sunday atmosphere at St. Jean's and the number of persons who resided in the rectory during the relevant time period.
FN25. Both the financial settlement from the lawsuit and the testimony from the expert witnesses that a person might malinger or fabricate the appearance of dissociative amnesia to avoid military service bore directly on the victim's credibility.
FN26. We also decline the defendant's invitation to grant a new trial on the
ground of "fundamental unfairness" in light of what appellate counsel declares was the admission of "demonstrably false" information about the acceptance of "repressed memory" in the scientific community. This claim is based on the affidavits and relevant published material submitted in support of the motion for a new trial. Having reviewed that material, we are not persuaded that the judge erred when he concluded that he would have permitted the Commonwealth's expert to testify in any event on the basis of the full record before him-- including the testimony at the Lanigan hearing. Nor are we persuaded that the record in this case requires that we second guess the judge or reach a different conclusion.
The defendant does not challenge on appeal the sufficiency of the evidence. We do not consider whether there could be circumstances where testimony based on the repressed or recovered memory of a victim, standing alone, would not be sufficient as a matter of law to support a conviction.
FN27. The defendant also argues that Dr. Chu improperly used the term "forgetting" instead of "repression" in his testimony and otherwise "with obfuscation" used the terms "forgetting" and "remembering" at trial.
Specifically, Dr. Chu testified as to the following:
"There is ordinary forgetting. Sometimes people forget pretty awful things just through normal forgetting. There seems to be another kind of forgetting
that happens when somebody tries so hard not to think about something for so long that eventually they can't even remember it if they try to remember it. And then there seems to be this other kind of, I would call more of a dissociative mechanism where, especially with chronic traumatization ... that really leads to people having really pervasive amnesia...."
FN28. On cross-examination, Dr. Loftus testified that she wrote in a 1996 article that it was "possible for people to forget about traumatic experiences and later remember them." She elaborated that she would refer to that as "ordinary forgetting and remembering, possibly triggered by a retrieval cue."
FN29. With regard to Dr. Chu, the prosecutor stated: "He came here and told you, he told you about things that make sense: that sometimes people forget about things that happen to them and then they remember them later on."
FN30. With regard to Dr. Loftus, the prosecutor stated:
"Even Dr. Loftus, although she started out on her direct saying that 'it is a very vitriolic debate; this cannot happen; there cannot be such a thing as massive repression.' Within two minutes, when I was asking her, she agreed with me, 'oh yeah, people can forget traumatic experiences that happened to them, and they can later remember them.' And what did she say? 'And if
something happens to you over and over again, you remember it even better.' "
The prosecutor later stated:
"But, ladies and gentlemen, think about it for a minute. Hasn't it all happened to one of us: the walking down the street and you bump into someone, or you are at a high school reunion, just like Dr. Loftus said, and you see someone who you haven't seen in a long time and you start talking. And all of a sudden you remember the time that the two of you were out together and you ran out of gas and you got stranded by the side of the road, and then you got into trouble because you missed your curfew. Now, you hadn't thought about that 10, 12 years, but now you remember. Does it make it any less real that you hadn't thought about it? Does it mean that it never happened? No. Use your common sense."
FN31. Defense counsel requested a jury instruction that the Commonwealth had to prove the existence of repressed memory in order for the jury to find the defendant guilty because if the phenomenon exists, the victim's testimony was truthful, but if not, then the victim must have been fabricating the abuse. In declining to include the requested instruction, the judge noted that in addition to the mutually inconsistent theories related to repressed memory suggested by the defendant, there existed a third basis for the jury's decision, namely, "[M]emories of childhood sexual abuse may be forgotten and
remembered without being repressed. So that seems to me an alternate theory that the Commonwealth can argue from the evidence." The defendant did not object to the judge's ruling.
FN32. The prosecutor never used the term "voluntary" or "voluntarily" in her opening statement, in her cross-examination of the victim, or in her closing. Nor did she mention in her closing that the defendant had not been subpoenaed.
FN33. The instruction was: "I instruct you that neither the civil case nor the settlement of that case has any bearing on the prosecution of this criminal matter."
FN34. The judge apparently did not remember a stipulation admitted in evidence, that the defendant was in Massachusetts for forty-three days between October 16 and December 30, 1993.
FN35. Although it is not explicitly referred to in G.L. c. 277, § 63, as a "tolling" provision, we have consistently referred to it as such. See, e.g.,Couture v. Commonwealth, 338 Mass. 31, 32 n. 1 (1958) (noting that it was not necessary for Commonwealth to plead "the exception tolling the statute").
FN36. While we have referred to a statute of limitations defense as an "affirmative defense," it differs from what we ordinarily understand to be a defining characteristic of such defenses, that is, that they involve, "a matter of ... justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence" (emphasis added). Commonwealth v. Cabral, 443 Mass. 171, 181 (2005), quoting Model Penal Code § 1.12(3)(c). The defendant here is not seeking to excuse or justify his actions by claiming some type of lawful authority. Cf., e.g., id. at 172 (defendant claimed he was agent of a surety and therefore had lawful authority to detain person who defaulted on bail); Commonwealth v. Vives, 447 Mass. 537 (2006) (defendant's claim of right to property in armed robbery case). Rather, it is the Commonwealth that contends that it is justified in bringing the indictments beyond the six-year statute of limitations because the defendant was absent from the Commonwealth.
FN37. The parties to not contest, that once properly raised, the Commonwealth has the burden of proving beyond a reasonable doubt that the indictments have been timely brought.
FN38. The Commonwealth introduced testimony from the keeper of records for the Boston Archdiocese, who testified that there was a change of address form
dated February 14, 1990, for the defendant, listing a new address in Palm Springs, California. He also testified that there was another change of address form in the file dated March 6, 1995, with a new address in New York City. Another clergy member who worked in the Archdiocese's administrative offices testified that he had written a memorandum in January, 1990, referencing the defendant's move to California, and that the office also had several different addresses, all in California, for the defendant during the time from 1990 to late 1994. A third member of the clergy testified that he corresponded with the defendant during late 1995 and early 1996 at a New York City address. A fourth member of the clergy testified to corresponding with the defendant at a New York City address throughout 1997 and then writing a memorandum referencing the defendant's arrival in San Diego, California. He also testified that he wrote letters to the defendant in San Diego on July 13, 1998, and March 3, 1999.
In addition, the Commonwealth introduced copies of the defendant's New York resident tax returns from 1995 and 1998, and his resident income tax returns from San Diego, California, for 1997. The Commonwealth also introduced a stipulation based on California Department of Motor Vehicle records that the defendant listed San Diego as his address as of January 24, 2002. The parties further stipulated that the defendant returned to Massachusetts from California on May 6, 2002, and, on arrival, commented about the changes in the city since
he had last been there.
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