Carlos Stevenson appeared in court last fall.
Mark Alan Lovewell

High Court to Review Dismissal of Charges in Local Assault Case

In a case testing the limits of the grand jury system, the state’s highest court has agreed to review the dismissal of charges against a Vineyard Haven businessman who was indicted for child rape solely on the basis of a police officer’s testimony.

In a case testing the limits of the grand jury system, the state’s highest court has agreed to review the dismissal of charges against a Vineyard Haven businessman who was indicted for child rape solely on the basis of a police officer’s testimony.

The charge and five other charges of indecent assault on a child were dismissed this spring against Carlos G. Stevenson, owner of Mosher Photo, by the Hon. Cornelius J. Moriarty. In a May 19 decision remarkable for its forceful language, Judge Moriarty criticized the Cape and Islands district attorney’s office for not having the accuser testify and relying on hearsay evidence alone in seeking an indictment from a Dukes County grand jury.

Dismissal of the charges were made “without prejudice,” meaning that charges could be brought again.

Cape and Islands District Attorney Michael O’Keefe appealed Judge Moriarty’s decision, and Mr. Stevenson, through his attorney, petitioned the Supreme Judicial Court to take the case directly, skipping the usual path of appeal through the Massachusetts Appeals Court. On Oct. 5, the court agreed to hear the appeal.

Over the years, prosecutors have been given wide latitude in how they present cases to grand juries. While Judge Moriarty acknowledged that appellate courts have repeatedly upheld indictments based solely on hearsay, he said this case “presents such extraordinary circumstances” that the indictment should be dismissed.

Mr. Stevenson was indicted by a Dukes County grand jury on Oct. 6, 2014. When prosecutor Laura Marshard presented the case, the only witness she called was Det. Mark Santon, a Tisbury police officer with extensive training and experience investigating sex crimes, who had interviewed the accuser. The accuser, 23 at the time she made the charges, gave him a detailed account of alleged repeated molestation that began thirteen years earlier, when she was 10 years old.

Judge Moriarty wrote that the accuser (identified only as Jane Doe in court documents) was available to testify, and that there was no good reason for her not to appear before the grand jury.

“The practice of reliance on hearsay, rather than upon the testimony of Doe, was pernicious for three reasons,” Judge Moriarty wrote. “First, it allowed the grand jury to rely upon evidence that appeared consistent and smooth, as articulated by Santon, an experienced witness. Second it deprived the grand jury of the opportunity to assess Doe’s credibility. This is particularly important here, where there are no other witness to the alleged crimes, no admission or confession by the defendant, and no forensic evidence of any sort. This case, like many others, is all about credibility. The grand jury should have been given the opportunity to hear from her firsthand, and observe her demeanor and appearance in order to assess her credibility.

“The third reason the practice is undesirable,” the judge continued, “is that it denied the defendant his opportunity to obtain pre-trial discovery. There was no probable cause hearing here. The defense knows only what Santon said Doe said. By virtue of the commonwealth’s effort to have Doe speak to the grand jury through the voice of another, it deprived the defendant of his opportunity to utilize grand jury testimony in cross-examining her when she testified at trial.”

District attorney O’Keefe was equally forceful in his belief that the grand jury’s decision to issue an indictment should not have been vacated by Judge Moriarty.

“The judge is wrong, as a matter of law,” Mr. O’Keefe said in a telephone interview with the Gazette. “This isn’t a parking ticket that the judge is wrong about. This is a rape indictment. We’ll do what we feel is appropriate to protect the victim.”

Mr. O’Keefe said it is the prosecutor’s job to represent the accuser, while balancing an aggressive prosecution with the rights of the accused.

“We are always careful about those rights,” he said.

In the commonwealth’s argument opposing dismissal of the charges, Mr. O’Keefe and Ms. Marshard wrote that state law allows dismissal of a grand jury’s indictment only if the prosecutor failed to produce evidence of the crime, when the prosecutor knowingly presents false evidence, or when the prosecutor doctors evidence. They argued that the evidence presented does not come close to warranting dismissal of the charges under the limited exceptions they cited, and that they were not obligated to call the accuser to testify.

“Defendant cites no authority which requires the alleged victim testify before the grand jury,” the prosecutors wrote. “Defendant cites no authority prohibiting the use of hearsay testimony in the grand jury. There is no evidence suggesting the grand jury requested additional testimony than provided by Det. Santon. Det. Santon’s role is to present the testimony of the victim, not to evaluate and present this opinion of the victim’s testimony. It is clear the grand jury had sufficient evidence to find probable cause to indict Mr. Stevenson.”

Judge Moriarty wrote in his ruling that there is another important issue that informed his opinion, the rights of Mr. Stevenson.

“The defendant here is charged with crimes that are abhorrent to society,” the judge wrote. “A conviction almost always brings justifiable severe punishment. But nearly as severe is the mere return of an indictment. A defendant will have to pay legal expenses, which are expensive, and suffer with the loss of his job or business. Worse, one who is simply accused of a sexual offense, whether major or minor, may never recover from the serious damage that an indictment does to their reputation. They will have lifetime repercussions as a result. No matter what, a person’s life and accomplishments will be forever stained by the mere accusation.”

Janice Bassil of the Boston law firm Bassil, Klovee and Budreau, who represents Mr. Stevenson, said her client “adamantly, absolutely” denies the charges, and said he has suffered from the accusations.

“His life has been turned upside down,” she said. Even if he ultimately prevails, she said, the indictment alone tarnished him “especially in some place as small as Martha’s Vineyard.”

In a sign of the importance the state’s highest court places on the legal issues, the justices have asked interested parties to file “friend of the court” briefs to help them make their decision, which could have wide implications for prosecutors and defense attorneys.

The court outlined the issues it hoped to receive comments about: “Whether the judge erred in finding that the commonwealth’s use entirely of hearsay evidence (i.e., the investigating police officer’s testimony) to obtain an indictment was, in the circumstances, ‘pernicious’ and constituted the type of ‘extraordinary circumstance’ that required dismissal of the indictment.”

Lawyers for both sides are expected to argue the case before the Supreme Judicial Court in January, with a decision expected later in the year.

Comments

Submitted by Anonymous (not verified) on Thu, 10/29/2015 - 22:27

Permalink

Grandmother Vineyard Haven

Is that Mosher Photo, Main Street Vineyard or a off-island Mosher Photo?

Submitted by Anonymous (not verified) on Fri, 10/30/2015 - 07:04

Permalink

sue tisbury

Sorry but I have no respect for that judge. I've read other cases that his rulings were sloppy and unjust. Why put a rape victim under that stress and embarrassment, so the court could see her suffering while reliving that nightmare. I've seen first hand the stress and embarrassment from having to tell people of being molested. Yes, let's put that guy back on the streets where so many other molesters are walking free and able to totally mess up some other kids life forever.

Genevieve Vineyard Haven

Sorry, Sue, but "indicted" does not mean "convicted." And why put the accused - who is only accused and not convicted - through the stress and embarrassment of being publicly identified while having to pay enormous legal fees because he was "accused." I completely agree that the judgement appears to be sloppy and unjust. All of the citizens of Martha's Vineyard deserve a JUST justice system.

Submitted by Anonymous (not verified) on Fri, 10/30/2015 - 07:52

Permalink

Katherine Scott Tisbury

Re "The accuser, 23 at the time she made the charges, . . ."

She is an adult. She was an adult when she made these charges.
The accused has a right to face his accuser and also to full due process.
Sounds to me like Judge Moriarty made the right decision.

Submitted by Anonymous (not verified) on Fri, 10/30/2015 - 11:23

Permalink

Susanna J. Sturgis West Tisbury

We're talking about a grand jury investigation here, not a trial. The grand jury is supposed to determine whether there is evidence enough to indict. It's not determining guilt or innocence. "Jane Doe" will probably be called to testify at any trial. True, the case might have been stronger with more than one witness, but the grand jury chose to indict on the detective's testimony alone. That decision shouldn't be overturned lightly.

Katherine Scott

The grand jury could have called more witnesses, including the alleged victim. As Susanna says, that was a weakness in the grand jury investigation and that is very likely why the judge overturned it. Who says he did it "lightly"?

Submitted by Anonymous (not verified) on Fri, 10/30/2015 - 11:34

Permalink

Art Landberg Oak Bluffs

Perfectly put Susanna J. Sturgis. Couldn't have said it better.

Submitted by Anonymous (not verified) on Sat, 10/31/2015 - 16:57

Permalink

deshandra brown mv

Judge Moriarty got this right. The district attorney should know better. I won't opine on the facts of the case, but as another poster noted, the alleged victim is adult, and as such, should be able to convey to a grand jury her side of the story, and if sufficient, and indictment will be issued. A Police officer is an expert in testifying, and as such, will be very convincing to a grand jury. The problem lies in that the grand jury is not seated to have a someone who is an 'expert' at 'testifying' provide information, which is 'second hand'. This is a serious charge, and if the 'accused' is guilty, then he deserves the appropriate sentence. However if the 'accused' is innocent, then his reputation is ruined. There was a case in NYC of an alleged rape a few years ago. The 'accused' was a well known broadcast journalist, Greg Kelly, whose dad just happened to be the police commissioner. Fortunately for Greg, he had text messages saved from the 'accuser' who said 'what a great time' it was when they 'fooled around' and couldn't 'wait to do it again'. The accusers boyfriend found out their indescretions, and he convinced her to make an allegation of rape. Had there been no text messages to clear Greg, he would be in jail. And to this day, I have not heard of the accuser being charged with making false allegations of a crime. My point is, not to diminish the allegations, but the accuser must speak to the grand jury. Not have an expert at testifying do so. And has been said before...you can indict a ham sandwich. Its not a trial.

Submitted by Anonymous (not verified) on Wed, 11/04/2015 - 22:45

Permalink

John black West Tisbury

None of the comments get to the root of the case. This man is charger with the rape of a child. The a user was perfectly willing to go on the stand but mass law dictates that they do not have to put the victim on the stand if there is overwhelming evidence otherwise. That is the reason why the am the highest court in our state is reviewing the case. They only do two of them a year and they chose this one because of the strength of the case and any reasonable person, if they heard the facts would convict him of this unthinkable crime. Do any of you know what he is actually accused of? Or what he did to this victim who was 10 and 11 years old. This man got off on a technicality, nothing more. The probable cause for the case is not under question. Like my father said, " John, 30 years ago on this island we'd have just clipped him and be done with it."

Add new comment

Plain text

  • No HTML tags allowed.
  • Lines and paragraphs break automatically.
  • Web page addresses and email addresses turn into links automatically.