By David E. Frank
Published: January 18, 2010
In a closely watched case that impacts repressed-memory trials in Massachusetts, the Supreme Judicial Court has upheld the rape and indecent assault convictions of defrocked priest Paul Shanley.
Shanley, who is serving a 12- to 15-year prison sentence, appealed his conviction on grounds that Superior Court Judge Stephen A. Neel improperly allowed a jury to consider his victim's claim of repressed memories.The victim testified at a 2005 trial that more than 20 years had passed before he remembered what had happened to him. He said his memory came back in 2002 after seeing widespread media coverage about the church abuse scandal.
Shanley's appellate lawyer, Robert F. Shaw Jr. of Cambridge, argued that trial attorney Frank Mondano provided ineffective assistance of counsel by failing to properly challenge the repressed-memory evidence.
But the SJC disagreed.
Justice Robert J. Cordy, writing for the court, held that Neel did not abuse his discretion when he admitted expert testimony on the subject of dissociative amnesia.
"[T]he judge's finding that the lack of scientific testing did not make unreliable the theory that an individual may experience dissociative amnesia was supported in the record, not only by expert testimony but by a wide collection of clinical observations and a survey of academic literature," he wrote.
Although Cordy found that the judge's instruction on the statute of limitations was erroneous, he concluded that it did not require a reversal.
Neel told the jury that the statute of limitations for the indecent assault and battery offense would have expired on Sept. 9, 1999, "unless the Commonwealth has proved beyond a reasonable doubt that the defendant was not usually and publicly a resident of the Commonwealth for at least 1,015 days between October 5, 1986, the last date of the offenses, and June 20, 2002, the date the indictments were returned in this case."
Whether the defendant resided in Massachusetts before the statute of limitations began to run, Cordy said, "is not relevant to whether, once statutorily commenced, the six-year period was thereafter tolled for any period of time by the defendant's absence."
The judge wrote that Neel's instruction should have focused the jury's attention only on the defendant's residence after Sept. 9, 1993.
But where the evidence was not objected to and did not involve an element of the crime, Cordy wrote, it did not give rise to a substantial risk of a miscarriage of justice.
"The Commonwealth's evidence that the defendant left the Commonwealth in 1990 and, but for a forty-three day period in 1993, was not usually or publicly a resident of Massachusetts until he returned in May, 2002, was very strong," he wrote. "It was so strong that even though defense counsel had cross-examined the Commonwealth's witnesses, he made no reference to the issue in closing argument."
In a written statement, Middlesex County District Attorney Gerard T. Leone said the court gave credence to the legitimacy of the prosecution's theory of the case.
"As the SJC recognized, repressed memories of abuse is a legitimate phenomenon and provided a valid basis for the jury to find that the victim, a child at the time of the assaults, repressed memories of the years of abuse he suffered at the hands of Paul Shanley," he wrote.
The 50-page decision is Commonwealth v. Shanley, Lawyers Weekly No. 10-014-10.
The full text of the ruling on Bishop Accountability here
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