Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

To The South Of Boston, A Trial For Rape May Be The Accused’s Least Concern Given DNA match To Prostitute’s Murder

In Worcester Superior Court, testimony is scheduled to begin today in the trial of a Berlin man charged with raping and trying to suffocate a woman last year in a West Boylston motel. The defendant, Alex F. Scesny, 38, has also been identified by law enforcement as a “person of interest” in the unsolved slayings of several area prostitutes. Today he is facing trial on charges of rape, assault with intent to murder, assault and battery, and assault and battery with a dangerous weapon (to wit: a pillow) allegedly occurring on March 17, 2007.

In April, District Attorney Joseph D. Early Jr. labeled Mr. Scesny a “person of interest” in the 1996 strangulation death of 39-year-old Theresa K. Stone in Fitchburg. Cold case investigators turned their attention to Mr. Scesny after a DNA profile derived from biological evidence recovered in the West Boylston rape investigation was shown to match a genetic profile from a swab taken during Ms. Stone’s autopsy, according to a state police affidavit filed in court. He later described Mr. Scesny as a “person of interest” in the deaths of five other women who were known to have worked as prostitutes in the Main South section of the city.

While Scesny’s DNA has only linked him to Theresa Stone’s murder, the similarities between the cases has stirred fears of a possible serial killer.

Scensy’s lawyer says media attention surrounding his client’s name would make finding an unbiased juror in the West Boylston rape case difficult.

He has not been charged with any of the killings.

Yet.

Sam’s take:

Scensy’s lawyer has articulated a valid concern; one which puts into question his client’s ability to get a fair trial. Unfortunately, it is a bit late in the game to be raising it now.

First of all, let’s look at the situation from the perspective of Mr. Scensy. I understand that many readers are not very likely to feel any sympathy for him under the circumstances. That is part of the problem. Our Justice system declares that a criminal defendant is presumed innocent unless and until proven guilty beyond a reasonable doubt. In case on trial, he is merely accused of rape and attempted murder. Further, he has not even been charged with the other crimes. Law enforcement’s success in matching his DNA to one of the murders, while sure to be compelling if and when he is charged, is not something to even be considered in connection with the current trial.

The danger here to Mr. Scensy is that public knowledge of the alleged connection to these other uncharged matters could taint the jury. When training less experienced attorneys in trial advocacy, I stress evidence presented in the courtroom does not, in itself, sway juries. It is the perception of the evidence that makes the impact.

Therefore, while a judge may warn the jurors not to be effected by outside publicity, the individual juror cannot help but be influenced by, at least, the shift in perception caused by the publicity to some extent.

But let’s turn our focus around. “Ok, Sam”, you say, “I am not a juror. I can be as biased as I want to be and, frankly, I don’t care if this guy gets a fair trial or not”.
Unfortunately, you are wrong. You care very much about his getting a fair trial for three reasons. First of all, if he is found guilty and the appeals court finds that he did not receive a fair trial, his conviction will be overturned. If he is actually guilty, I would imagine you do not want that to happen…especially if you live in the area.

The second reason you care is based on my assumption that you care about the victims in these various crimes. First of all, if the conviction is overturned, the rape victim has to go through the prosecution all over again…or simply be forced to see her assailant go free. There are also five other deceased murder victims, and their families, to consider. What if the potential jury pool is so tainted that any successful prosecution for their murders becomes impossible? I would suggest we owe them better…regardless of your view of what they did for a living.

Finally, you care about the right to a fair trial for reasons having to do with you and those you do care about. As regularly discussed in this daily blog, it is very easy to find oneself looking down the barrel of a criminal prosecution. This is true whether you are actually guilty or not…things happen. I sincerely hope that you or a loved one are never put in the position of the government’s changing your last name to “Defendant”. However, if it should happen you do not want to put the government to the test in a system that has relaxed its concern about fair trials.

If you are ever forced into a position where you are facing charges, or an investigation which could lead to criminal charges, you need an experienced attorney involved as soon as possible who knows the system and knows the pitfalls that lay in your path. At the earliest possible moment, You need someone who can not only defend you, but can guide you through what can easily become an unfair and unforgiving system. The delay can be catastrophic to your rights…and to your freedom.

The full articles of this story can be found at :
http://www.necn.com/Boston/New-England/Jury-selection-begins-for-man-charged-with-rape/1221523743.html and http://www.telegram.com/article/20080916/NEWS/809160555/1006/NEWS07

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