Massachusetts Appeals Court Upholds Sex Assault Convictions Against a Man Who Molested his Step-Granddaughters

The Massachusetts Appeals Court today affirmed the sexual assault convictions of a man who molested his step-granddaughters over the course of many years.  The name of the case is Commonwealth v. Silva

Three of the defendant’s step-granddaughters testified against him at trial.  The first victim was 19 years old when she testified.  She said the defendant began sexually assaulting her beginning when she was six years old and continued until she was a sophomore in college, when the defendant digitally raped her while she was sleeping.  The second victim was 18 when she testified and told the jury the defendant started touching her inappropriately when she was only four years old, and when she was nine years old the defendant touched her vagina under her clothes.  The third victim was 15 years old at the time of the trial.  She also had been inappropriately touched by the defendant beginning when she was four years old and ending when she was eight.  The defendant was convicted of multiple counts of indecent assault and battery on a child and rape.

On appeal, the defendant focused on the aborted testimony of a fourth witness – his 18-year-old daughter.  The prosecutor told the jury during opening statements that the daughter would testify her father had sexually abused her.  However, on the witness stand, the daughter backtracked.  When the prosecutor asked if the defendant had ever touched her in a sexual way, the daughter did not respond (there were several periods of silence in court, exceeding one minute each, when the daughter did not answer the prosecutor’s questions).  The daughter finally testified she did not remember if her father had sexually assaulted her and the prosecutor then confronted her with testimony she had given to the grand jury (where she said she had been sexually assaulted by her father).  The daughter acknowledged she had previously testified to the assault but insisted she could no longer remember.  Ultimately, the daughter’s testimony was suspended and she later refused to testify, asserting her Fifth Amendment right to not incriminate herself.  Once the daughter refused to testify any further, the defendant moved for a mistrial.  Instead, the trial judge struck the daughter’s testimony and told the jurors they could not consider the testimony in any way and were required to pretend they had never heard it.  The defendant argued the judge’s instruction did not cure the obvious prejudice he had suffered.  The Appeals Court disagreed.

This case illustrates the tension between an established rule of law (that jurors are presumed to follow a judge’s instruction) and how events happen in real life (it’s crazy to think in this type of case that a juror would be able to forget what the daughter said about her father’s sexual abuse).  The Appeals Court said that once the trial judge struck the testimony from the record, “[i]n law, [the daughter’s] testimony did not exist for purposes of the defendant’s trial.”  In order to accept the defendant’s argument, the Court would need to conclude that the jurors had not followed the law as instructed, which would be in conflict with case law going back decades.  Because the Court was unwilling to entertain such an argument, it ruled that the jury was not tainted by the defendant’s daughter’s halted testimony and affirmed the defendant’s convictions.

Nobody should lose any sleep over this defendant’s case.  His crimes against his young, vulnerable family members were despicable.  However, there is an old legal saying that you “can’t unring the bell,” which means it’s sometimes impossible for a fact finder to forget something that has been said in court.  While the defendant’s guilt in this case appears to have been overwhelming even without his daughter’s testimony, it might be appropriate in a future case for a Massachusetts appellate court to consider whether – in the real world – it’s reasonable to think jurors are able to simply forget about inflammatory testimony that has been stricken by the trial judge.