By Associated Press
Wednesday, August 15, 2007 - Updated: 07:36 AM EST
BOSTON - A Lowell man who spent the past 16 years living free and raising a family should have been serving prison time for a 1990 rape conviction, prosecutors said in a petition to the state’s highest court.
The Middlesex district attorney’s office is asking the Supreme Judicial Court to overturn a Superior Court judge’s decision last week allowing Vith Ly to remain free because the district attorney’s office was "negligent" in not ensuring that he was returned to prison following the exhaustion of his appeals in 1991.
"While we remain disappointed with the mistakes made several years ago that led to this defendant not completing his sentence, we strongly believe that the defendant should pay his debt to society by serving his full sentence for the serious crimes he committed against this victim," Corey Welford, a spokesman for the district attorney’s office, said in a statement.
Ly’s attorney, Daniel Flaherty, did not return several messages left at his office on Tuesday.
The case dates to 1990 when Ly was convicted of rape and other charges and sentenced to 20 years in state prison. He was released after serving just two months of his sentence pending the outcome of his appeal.
But when the state Appeals Court turned him down in July 1991, no one told him he should report to prison to complete his sentence. The district attorney usually brings the defendant back to court to have the sentence reinstated, even though there is no state law requiring it. But Ly’s case fell through the cracks.
Ly, now 46, was arrested in 1997 and again in 2001 on domestic abuse incidents, and still no law enforcement officials realized that he should have been behind bars.
Ly was arrested again in April after a traffic stop. State police running a routine background check discovered that he had never registered as a sex offender as required by law. That’s when the mistake was finally uncovered.
The district attorney asked Superior Court Judge Hiller Zobel - the same judge who sentenced Ly in 1990 - to send him back to prison to complete his sentence.
But Zobel claimed prosecutors were "negligent" in their handling of the case and gave Ly credit for time served while he was free. Zobel did order Ly held pending a decision from the SJC.
The district attorney’s office, in its petition to the high court filed late Monday, denied negligence and said there is nothing in the law to support Zobel’s decision.
"The court erred when it essentially adopted, with no legal factual basis, the doctrine for credit for time spent at liberty based on a theory of simple or mere negligence," the petition says.
David Frank, a former prosecutor who now works for Massachusetts Lawyers Weekly, said the district attorney has a strong case.
"I think the government has a good leg to stand on because the defendant was given all his due process rights, was convicted and exercised all his rights to appeal," he said. "I can’t think from a constitutional standpoint where the harm is to the defendant."
He said he has never heard of a case where a defendant was credited for time served while free. "It’s a very odd case," he said.
Toni Troop, a spokeswoman for Jane Doe Inc., a statewide advocacy group for victims of rape and domestic violence, said the victim is being forgotten amid all the legal wrangling.
"This decision by Judge Zobel only adds insult to injury by adding yet another mistake in the handling of this case," she said. "We hope the SJC will not disregard the trust that the victim put in the criminal justice system."
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