SALEM — A Salem Superior Court judge is considering whether to dismiss parental kidnapping and obstruction of justice charges against a Lynn father whose son has been missing more than five years.
Ernesto Gonzalez, 41, has been found incompetent to stand trial. Yesterday, his attorney, Russell Sobelman, urged Judge John Lu to dismiss the charges, citing both a state law and another notorious North Shore case.
Gonzalez’s son Giovanni was just 5 when he was dropped off for a weekend visit with his father in August 2008. He hasn’t been seen since.
But without solid evidence that the child was killed, he remains simply a missing person, and his father has been charged only with lying to investigators and parental kidnapping.
Under a state law enacted in 1992, a person deemed incompetent to stand trial can ask to have the charges dismissed after serving half of the maximum sentence he could have received if convicted.
Sobelman said that Gonzalez, now being held at Bridgewater State Hospital, has served that amount of time. The defense also cited legal precedents that allow a judge to dismiss a case “in the interest of justice” if it is determined that a defendant is not likely to be become competent.
Sobelman cited the decision of another judge who last year dismissed the case against former Peabody police officer George Sideris, charged with beating his elderly mother into a coma in 2004.
Prosecutor Jean Curran, meanwhile, said that while she initially believed the judge may have had no choice but to dismiss the case, she now has concerns that the statute is unclear, not only because it conflicts with the more recent Truth in Sentencing law enacted in 1994, but because it is not clear whether the time spent in custody before a determination of incompetency counts against a defendant.
While Lu said he does not believe dismissal would be in the interest of justice, he said he wanted to take some time to look at the statute before ruling. He scheduled another hearing for Nov. 20.