Judging Lopez, continued

by Dan Kennedy

The bottom line, according to this school of thought, is that Martin's office overcharged Horton, and that Lopez's actions were aimed at offsetting what she believed to be an example of prosecutorial abuse.

Obviously, this interpretation does not fit with the crimes to which Horton pleaded guilty. "The facts of the case were admitted to by the defendant, and they were not contradicted by the judge or the defense attorney," says Martin spokesman Jim Borghesani. And the fact that Horton pleaded guilty to serious crimes has been taken by almost everyone in the media at face value.

Yet legal experts say that, under some circumstances, defendants will plead guilty to crimes more serious than those they actually committed in order to avoid the trauma of a trial and the possibility of a long prison sentence. And here's a little-understood point: although Horton pleaded guilty, her sentence was not technically part of a plea bargain, which requires the participation of the defendant, the judge, and the prosecution. In Horton's case, Borghesani says, the prosecution refused to take part in the proceedings, preferring to push for an eight-to-10-year prison term. Thus Horton's choice was to plead guilty to the charges the prosecution had filed -- and take her chances with a judge who questioned aspects of the DA's case -- or go to trial and risk incarceration. Under those circumstances, it's certainly possible that Horton would agree to admit to crimes more serious than those she actually committed.

So why has the DA's version of events been so readily accepted by the media, the politicians, and the public, and Judge Lopez's statement that there were mitigating factors so widely dismissed? The answers are actually fairly obvious. For one thing, the DA's office was free to tell a coherent story, whereas Lopez was barred from offering any details. Rather, the possibility of mitigating factors has leaked out slowly and, for the most part, anonymously, making it easy for the likes of Governor Paul Cellucci, House minority leader Fran Marini, and Martin's staff to dismiss it as a "whispering campaign" aimed at revictimizing the victim. But hard evidence is presenting itself that the story told by the victim may not have been the whole truth. As Paul Martinek, a lawyer who is the publisher and editor of Masslaw.com, put it in a Globe op-ed on Saturday, judges must adhere to a strict code of ethics that prevents them from defending themselves, and have no well-defined professional organization or constituency to speak out on their behalf. "When judges are criticized -- and they frequently are on sentencing matters -- there is little they can do but sit back and take it," Martinek wrote.

In addition, prosecutors' offices are rich sources of news for reporters. When Martin's staff first tipped off the media last month to the Horton case, the media responded -- thus angering Lopez, who put off the sentencing for several more weeks. Reporters didn't ask why the DA was suddenly so interested in a story that had gotten virtually zero public attention up to that time. They were too busy lapping up the details of the alleged child molester who was wearing a dress.

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It's been said that the media's most awesome power is the power to summarize. The summary of the Horton story -- judge lets confessed child molester off with a slap on the wrist -- is damning and, superficially at least, accurate. But truth, as opposed to mere accuracy, is to be found in the nuances and complexities of the case, not in the headlines and the 30-second updates on TV.

Another example involving Lopez makes the point. In 1992, Lopez ordered that Matthew Rosenberg, then 22, be freed after eight years in juvenile detention for killing a five-year-old boy named Kenneth Claudio. Over the past week, several articles have dredged up that case as evidence that this is not the first time Lopez has been too lenient. Indeed, on Monday, the Herald's Joe Sciacca cited the Rosenberg case as one of several that supposedly prove Lopez should "not be wearing a robe much longer."

The Kenny Claudio murder was a horrific crime that prompted changes in the law making it easier to try juveniles as adults. But a quick perusal of the clips shows that Lopez's role in freeing Rosenberg has been distorted. It turns out that the Division of Youth Services (DYS), which had custody of Rosenberg, can detain youths only until they are 18 unless DYS obtains an extension. In Rosenberg's case, DYS had already gotten three extensions; it had gotten the last one by promising not to seek any more, an agreement the agency promptly reneged on. According to a Globe report at that time, a "psychologist, a psychiatrist and Rosenberg's DYS caseworker all testified before Lopez that Rosenberg has responded to treatment and is not likely to be a danger to himself or to society if released."

Thus Rosenberg had served out his sentence and then some, and it would have been more surprising if Lopez had extended his detention rather than granting his freedom. She really had no choice but to free Rosenberg, given the state of the law at that time. Moreover, if Rosenberg has been in trouble with the law since his release, a Nexis search fails to reveal it. In other words, it would appear that Lopez, by following the law, did the right thing and that the juvenile-justice system worked. Yet she will always be known, to quote Sciacca, as the judge who "sprung convicted child killer Matthew Rosenberg."

Time will tell whether Lopez also did the right thing in letting Charles Horton off so lightly. What we know already, though, is that this case is a lot more complicated than it seems at first glance. The media should explore those complexities, rather than ignore them as inconvenient impediments to a good story.

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Dan Kennedy's work can be accessed from his Web site: http://www.dankennedy.net

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Dan Kennedy can be reached at dkennedy[a]phx.com

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Articles from July 24, 1997 & before can be accessed here

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