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May 16, 2014

Convicted child rapist loses appeal

SALEM — A Salem man serving three life sentences in prison for sexually assaulting four girls and physically assaulting a fifth who tried to intervene has lost an appeal in which he argued that he really didn’t want to represent himself.

Robert Gagnon, now 73, originally had a court-appointed lawyer in the 2005 case. But prior to trial, Gagnon insisted on filing a pair of motions claiming that young girls were perfectly capable of consenting to sexual activity and that laws against sex with children were unconstitutional.

His lawyer refused to file the potentially incriminating motions — which were later introduced as evidence against him at trial.

So, Gagnon decided to represent himself, a decision the Appeals Court described as “somewhat bizarre and misguided.”

Under the Constitution, defendants in criminal cases are entitled to have an attorney or to represent themselves. But, the Appeals Court pointed out, they can’t do both at the same time.

Gagnon and a lawyer handling his appeal claimed that courts have required a judge to deny a defendant’s request to represent himself if the defendant’s argument was made incompetently. The Appeals Court disagreed with that interpretation, finding that Gagnon was “unequivocal” in wanting to represent himself.

“The defendant’s argument that he waived counsel only for the purpose of filing the two motions is unconvincing,” the three-judge panel wrote. “The judge advised the defendant that if he wished to file the motions, he needed to proceed pro se (on his own behalf).”

At the time, Gagnon was questioned at length by a judge about whether he understood his decision to represent himself and all of its implications. “The defendant stood by his decision and unequivocally waived his right to counsel,” the Appeals Court noted.

Gagnon has also written letters to various officials and the United States Supreme Court in which he expresses his beliefs about the age of consent laws.

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