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Monthly Archives: March 2014

Indirect Justice For Ayla?

babyayla_6_0I’ve been asked by some to post Anon Lurker’s comment in a post so that we can all have further discussion on this topic.
 
March 30, 2014 at 4:58 pm

Penny, you are onto something with the detailed analysis of the broken arm and other unrelated injuries:

§207. Assault

1. A person is guilty of assault if:

A. The person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person. Violation of this paragraph is a Class D crime; or [2001, c. 383, §10 (NEW); 2001, c. 383, §156 (AFF).]

B. The person has attained at least 18 years of age and intentionally, knowingly or recklessly causes bodily injury to another person who is less than 6 years of age. Violation of this paragraph is a Class C crime. [2001, c. 383, §10 (NEW); 2001, c. 383, §156 (AFF).]

Instead of child endangerment, which is a misdemeanor, how about a couple of charges of assault based on the broken arm, the wrenched leg, the bruising from the non-existent fight in the non-estistent Chuck E. Cheese ballpit? None of these incidents are related to the homicidal incident resulting in the death of the child. Therefore, if you prosecute them and lose, oh well, no ‘double jeopardy’ problems with the homicide.

Note that subsection (B) makes it a Class C Felony for an adult to cause bodily injury to a child under 6. A Class C Felony in Maine is punishable by up to five years in state prison, and the statute of limitations may be a little longer than for misdemeanor child endangerment. These incidents are totally separate and distinct incidents from the homicide that, if prosecuted, and lost at trial, would have no effect on the ability of the AG’s office to bring the homicide charge at a later date.

Even if what Ms. Maloney says is true, that the homicide case and all lesser included offenses arising from the homicidal incident were turned over to the AG, nothing about that turn-over prevents Ms. Maloney from prosecuting Mr. DiPietro for separate and unrelated incidents of assault in the weeks leading up to the fatal incident, any more than she or any other prosecuter would be prevented from prosecuting him for other unrelated crimes. The Portland District Attorney’s Office was not prevented from prosecuting him for the assault on Courtney. No double jeopardy problem there.

There may be tactical reasons for not proceeding on the assault charges, such as not wanting to disclose in discovery some of the evidence in the homicide case, but neither of the two excuses provided by prosecutors, the “double jeopardy” excuse, or the “turned the case including all lesser included offenses over to the AG” excuse are applicable to a decision to prosecute or not to prosecute the prior unrelated assaults.

There are defenses that could be raised to the unrelated assault charges, such as accident, somebody else did it, etc. But, raising these defenses might require someone to have to take the stand and testify under oath. Maybe Mr. DiPietro, maybe his Mommy Dearest. Or, maybe nobody dares get on the stand and testify and you end up with a conviction. Sounds like a win-win situation to me.

Mr. DiPietro is a hider. It rattled him to the core having to come out of his cave to deal with the assaulting Courtney charge. Smoke him out of his cave and rattle him some more.

There would be bail and bail conditions, and Mr. Dipietro does not do well with bail conditions. He violates them and ends up with new charges which is what happened in the Courtney assault case. One usual condition of bail is that the person is “subject to random seach and testing.” The defendant’s Fourth Amendment rights are substantially curtailed which allows the police to search him or his home pretty much whenever they feel like it, without a warrant and without probable cause. Drug offenders hate being on bail because of this condition. If nothing else, during the period bail conditions are in effect, Mr. DiPietro would have to be very careful about driving drunk, possessing drugs, etc. due to the diminishment of his Fourth Amendment rights.

Because the charges brought involve an assault on a child, another likely bail condition would be “no contact with children under six,” which has the effect of protecting other children in the community from the effects of his temper during the pendency of the charges. If he is living with a woman with young children, which is one of my worst nightmares, there would be none of that for awhile.

There is more than one way to skin a cat.

The Florida police did not have sufficient evidence to prosecute Misty Croslin for involvement in the murder of little Haleigh Cummings. But, thanks to Misty being a drug user and a drug dealer, the police were able to set up a couple of controlled buys of Oxy’s from her which resulted in a 25-year prison sentence. Indirect justice is not as healing as direct justice, but indirect justice is a whole lot more healing than no justice at all.

In the State of Maine, assault on a child under six is a felony. And, like Misty Croslin, Mr. DiPietro has a history of using and dealing drugs. And, he does not do well with bail conditions. Bring the charges, slap him with some bail conditions, hit him with the bail searches. Refuse to offer him a plea bargain. Force him to trial for a couple of reasons, first, to keep him on bail for as long as possible, and second, to force him, or someone, to take the stand and testify under oath to present a defense — or lose the case.

I have seen convictions for assaults on children on less evidence. The key to successful prosecution of a child assault case is proving that the child’s injuries could not have occurred the way the defendant describes them as occurring. Certain kinds of injuries are almost always what child abuse medical experts call “inflicted injuries.” There are no accidental scenarios that are capable of causing certain kinds of injuries to children. If even one of the several injuries Ayla suffered in the weeks leading up to her death could not have been accidental, the door to a conviction, a felony conviction, starts to swing open.

Mr. DiPietro somewhat foolishly gave detailed explanations of how several of the injuries to the child occurred. These explanations can be compared by child abuse medical experts with the nature of the injuries actually suffered. Child assault cases become stronger when a parent tries to lie their way out of it because now, instead of having to prove in Court that the injury could not have been accidental, all you have to prove is that it could not have happened the way the parent said it happened.

The kind of leg injury that Ayla suffered is a kind we see all the time with rough diaper changing. It is rarely an accidental kind of injury. The broken arm, depending on the nature of the break, may or may not be consistent with the explanation for it. For example, a spiral fracture is almost always caused by a parent twisting the arm and cannot be cause by a parent falling on it. A dislocation fracture is caused by pulling, not falling. And, let’s not forget the totally bogus Chuck E. Cheese story. No medical expert needed to prove the ridiculousness of that one.

One of the problems with the homicide case is, there is no body for child abuse medical experts to examine. There is no way to know if the injuries suffered by the child had to have been inflicted or could have been accidental. This problem does not plague the unrelated assault cases. The child was taken to a doctor for these injuries. There are photographs, X-rays, descriptions of locations of bruises, etc. that can be compared by child abuse medical experts with Mr. DiPietro’s accounts of how he claims the injuries happened. The missing evidentiary link in the homicide case is not missing in the unrelated assault cases.

I am sorry for this post turning out to be so long. Obviously, I have some expertise in these matters that I hope turns out to be helpful to you.

This little girl deserves justice. Direct justice, that would be nice, but if indirect justice is all that is ever likely to be obtainable, do as the police and prosecutors did in Florida in the Haleigh Cummings case, think outside the box and figure out some other way to obtain it for her.

I don’t know about everyone else but I’ve been discouraged by Stokes’ response to Trista’s letter to the editor. If Anon Lurker’s suggestion is even a remote possibility then it brings me hope. What do you think? Could this work? 

Thank you Anon Lurker for bringing some light into the darkness that shadows our hope for justice for Ayla.

 
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Posted by on March 30, 2014 in Uncategorized

 

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