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Suspect in rape was out on bail
whoiscarol | January 7, 2010 at 04:23 pm
Kingston man charged with 2d assault on a child
Joseph Gardner of Kingston (right) pleaded not guilty yesterday in Plymouth District Court to charges of raping a 3-year-old girl. (Ted Fitzgerald/ Associated Press/ Pool)
By John R. Ellement and Jonathan Saltzman
Globe Staff
Plymouth District Attorney Timothy J. Cruz said Gardner faced “heinous allegations’’ in the first arrest and that prosecutors were disappointed that Plymouth District Court Judge Thomas F. Brownell set bail at $10,000 instead of the $200,000 they originally sought.
After Gardner’s indictment, the first rape case was transferred to Superior Court, where prosecutors again requested high bail – $150,000. But Judge Joseph M. Walker III kept bail at $10,000, and Gardner remained free.
Depending on the circumstances, Cruz said, judges typically impose a range of bail amounts in sexual assault cases. In some instances, he said, judges have released rape suspects on their own recognizance.
Judges are typically barred from speaking about pending cases.
Jack M. Atwood, a Plymouth lawyer whom McColloch works for and who represented Gardner on the first rape charges, did not return phone calls.
John G. Swomley, a Boston defense lawyer who has represented many individuals accused of sex offenses, said the $10,000 bail struck him as low.
“If the allegations are credible and there doesn’t appear to be something that wouldn’t be suggestive of fabrication, it would normally be a much higher bail,’’ said Swomley, who is not involved in Gardner’s cases.
Still, he said, the judges might have considered that Gardner had never been accused of a sex offense before August, according to public records.
In the first case, Gardner allegedly broke into a Kingston home through a bathroom window, according to the mother of the alleged victim, whose name the Globe is withholding because it would indirectly identify her daughter, the victim of a sexual assault. The Globe does not identify sexual assault victims.
Investigators gathered fingerprints and other forensic evidence that tied Gardner to the crime, she said.
According to a Kingston police report filed in court, the first alleged victim was staying at a woman relative’s house with another female relative, age 10, on Aug. 22. Between 4 and 6 a.m., the woman heard the 6-year-old crying and the 10-year-old girl yelling but dismissed it as a routine disturbance.
But around 6 a.m., the woman got up and was told by the 6-year-old that “a man was in her room . . . and was hurting her,’’ said the police report. A container of baby powder was on the floor and the powder was on the bed.
The woman discovered Gardner – to whom she was related by a former spouse – just steps away from the girls’ bedroom. Gardner said he was there to pick up garbage and take it to the dump, but the woman told police Gardner did not come through the front door and was not supposed to be in her home.
Gardner, who had baby powder on him, was ordered to leave but returned later with his father, David Gardner, according to the police report. Joseph Gardner “was very upset’’ and tearfully denied harming the 6-year-old girl, according to the report.
The woman took the girl to Jordan Hospital in Plymouth and was told by medical staff that the child would have to be taken to Boston to be interviewed by a specially trained medical team, said the report.
But while waiting at the hospital, the girl appeared to recant. A nurse overheard her say “she made it all up’’; outside the hospital, though, the girl told her relative she denied being attacked “because she just wanted to go home,’’ according to the report.
Meanwhile, the 10-year-old gave police a graphic account of the assault, the report said.
The events leading up to the second alleged rape began when Gardner started dating a woman with whom he had gone to high school, prosecutors said. The woman brought her two children, a 3-year-old girl and an 8-year-old boy, to spend the night at Gardner’s home on Friday, prosecutors said.
Gardner lives on Summer Street with his 4-year-old son. The woman had slept there without her children the night before, court records show.
The woman told investigators that she heard her 3-year-old crying in the middle of the night but dismissed it because the girl often got upset while sleeping.
The next morning the woman noticed that her daughter was no longer wearing a pull-up diaper and she asked her about it. The girl then allegedly told her mother that Gardner sexually assaulted her and told the girl he would kill her father if she told anyone, according to police. The woman took her daughter to Jordan Hospital, which notified police.
When police arrested Gardner at home on Sunday morning, he said the woman’s allegations were untrue. “She accused me of this yesterday and wanted money so I gave it to her,’’ Gardner told police, according to court records. “She must have heard about my other case.’’
Andrew Ryan of the Globe staff contributed to this report. 
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Wayne Young | January 14, 2010 at 10:16 PM
At least this guy was brought before a judge. In Fresno, CA at ABC-TV, KFSN, Nick Ryan was caught molesting a little boy on kids day and he was released from work. His harddrive was taken out of his computer and destroyed. The mother was paid off to keep quiet. They could have prosecuted Nick, but chose to protect their name so he could go on to sexually harass other little boys. Nick was eventually caught and is now serving 80 years in prison. The employees, not knowing why Nick was leaving the company had a going away party for him-nice joke, huh. When the employees found why Nick was really fired. the employees were told to shut-up. All supervisors involved have been promoted by ABC President Walter Liss. Who is really the quilty parties here? Is there some way to hold those responsible for the cover-up. If the GM, Valarie Staab had not helped to lie about pedaphile the other little boys could have been spared. Valarie Staab was promoted to one of the top stations in the U.S,, KGO, San Francisco. Do you think that Disney owned ABC really cares about people.
William G. Soura, II | March 10, 2010 at 05:47 PM
COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE, SS. SUPERIOR COURT
Criminal Division of
COMMONWEALTH ) the Trial Court.
) Docket Nos. 92-0893,
v. ) 92-0894 and 92-0897
)
WILLIAM G. SOURA, II )
DEFENDANT’S MOTION FOR POST CONVICTION RELIEF
Pursuant to Mass.R.Crim.P. 30.
{A motion in the nature of Mass.R.Civ.P. 60(b)}
Now comes William G. Soura, II, for himself, the defendant in the above captioned and numbered matter and, pursuant to Hazel Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 772 (1944); Sahin v. Sahin, 435 Mass. 392, at 402 (2001) and Mass.R.Crim.P. 30, moves the Court to revoke certain rulings of the court in this case, including the indictments and subsequent convictions of the defendant, to relieve him from the on going collateral consequences stemming there-from. Or, alternatively to order a new trial.
As grounds: the defendant says: It would be unconscionable, Constitutionally, to withhold any relief from the defendant; where the record evidence, introduced by the Commonwealth, clearly shows that there had been no complaint of the crimes charged made by the complaining witness. The complaining witness was untruthful when she testified that she did complain of the crimes charged. The prosecutor knew the testimony was false. The prosecutor intended to and attempted to verify the complainant’s false testimony by persuading a complaint witness to lie. And, the record evidence clearly shows that the trial jury recognized the untruthfulness of the complainant by acquitting the defendant of the crime for which the Commonwealth proved there was no complaint to, and as consequence; there being no evidence other than the discredited testimony of the complainant, there was no relevant evidence upon the record from which the jurors may have drawn proof that a complaint was made for any of the crimes charged. Thus, the convictions were void for want of due process of law. See Jackson v. Virginia, 443 U.S. 307 (1979). “It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. Cole v. Arkansas, 333 U. S. 196, 333 U. S. 201; Presnell v. Georgia, 439 U. S. 14. These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend. E.g., Hovey v. Elliott, 167 U. S. 409, 167 U. S. 416-420. Cf. Boddie v. Connecticut, 401 U. S. 371, 401 U. S. 377-379. A meaningful opportunity to defend, if not the right to a trial itself, presumes as well that a total want of evidence to support a charge will conclude the case in favor of the accused. Accordingly, we held in the Thompson case that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. See also Vachon v. New Hampshire, 414 U. S. 478; Adderley v. Florida, 385 U. S. 39; Gregory v. Chicago, 394 U. S. 111; Douglas v. Buder, 412 U. S. 430. The “no evidence” doctrine of Thompson v. Louisville thus secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty.” Jackson, supra, at 314, 443 U.S..
To obtain the indictments and convictions, against the defendant, the prosecutor deliberately deceived the Court and jurors, by allowing the complainant to testify falsely that she had made a “prompt complaint” of the crimes charged against the defendant; while promising the Court and jurors that a complaint witness would verify that the complaint was made. Notwithstanding, the Commonwealth, through its “fresh complaint witness,” in violation of M.G.L. c. 233 section 23 and the Confrontation Clauses within both Federal and State Constitutions, introduced proof that no such complaint had been made. In so doing, the prosecutor tricked the Court into believing that a complaint of the crimes had been made; and deprived the defendant of his constitutional right to confront the complainant with evidence of her untruthfulness; which lead to confusing the jurors and consequently, their inherently inconsistent verdicts.
When the prosecution introduced the testimony of the complaining witness, which was, in effect: (1) that she had complained about the act, digital penetration, which constituted the crime charged, to her mother. And, (2) that the complaint was made mere moments following the very last alleged assault. And then the prosecution’s complaint witness, the child’s mother, testified, that no such complaint had been made to her “at the time.” The Commonwealth had introduced evidence of the prior inconsistent statements and untruthfulness of the complaining witness, in violation of M.G.L. c. 233 section 23, after essentially having promising not to.# Since the complainant’s evidenced untruthfulness pertained to the acts which constituted the crime charged on indictment no. 920896, pursuant to Commonwealth v. King, the mother’s contradictory testimony was evidence of the complainant’s “prior inconsistent statements.” Pursuant to Commonwealth v. Rosa, the mother’s testimony was admissible only to impeach the credit of the complainant. However, the complainant had also testified, that each of all 8 of the crimes alleged had occurred “just like the last one.” The complainant was unable to remember any real detail of circumstance that could actually distinguish one alleged event from another. However, there were the words put into her mouth by the prosecutor.
Where the trial judge instructed the jurors that an inference could be drawn that the crimes did not happen where there is evidence that the crimes were not complained of, and the prosecution’s complaint witness testified that the crime had not been complained of, and the jury acquitted the defendant for the crime; there is .
_________________
# See {Tr. III, at …}: The prosecutor, in his opening statement, promised the entire Court room that the Commonwealth’s “fresh complaint witness” would testify to having heard the complaining witness tell her, that she (the complaining witness) had been digitally penetrated within her vagina by the defendant. Notwithstanding the promise, the complaint witness testified that “ [s]he didn’t say at the time,” that she had been digitally penetrated.