PEABODY — A former Peabody neurologist charged with fondling a patient 2 1/2 years ago says the state cannot re-try him on an indecent assault and battery charge because it would amount to double jeopardy.
But prosecutors say that's not the case and are preparing for a new trial for Walter Levitsky, 86, formerly of Topsfield.
Levitsky was charged after a patient, who was at the office to receive a monthly shot of medication to control her alcohol dependency, told a co-worker and then police that the doctor had fondled her breasts and made explicit remarks about them during an office visit in March 2017.
During his trial, which ended with a hung jury and a mistrial in May, Levitsky told jurors he was simply conducting a breast exam in an attempt, he claimed, to make the woman feel better about herself.
"I treat the whole patient," Levitsky told jurors — who were not made aware of the now-former doctor's lengthy history of similar allegations, dating back to the 1980s.
Levitsky, who surrendered his medical license after the latest charge, now lives in homes in Center Ossipee, New Hampshire and Sarasota, Florida.
On Friday, Levitsky's lawyer, Joseph Daniel Mulhall, argued that a second trial for Levitsky would violate the Constitution's Fifth Amendment protection against being tried twice for the same crime.
That provision generally does not apply after a hung jury and mistrial, Mulhall acknowledged. But in Levitsky's case, he argued that Peabody District Court Judge James Barretto should have thrown the case out before jurors even got to deliberate.
Levitsky, Mulhall argued, was entitled to a "required finding of not guilty" by the judge, based on, he argued, evidence that the woman "consented" to being touched on her breasts when she followed Levitsky's instruction to "Show me your boobs," during what Levitsky claimed was a body-mass exam.
Mulhall suggested that prosecutor Michael Varone had not proven a lack of consent, a required element of the crime.
And he cited a 1959 Supreme Judicial Court case that held that even if someone tricks a person into sexual activity, it cannot be considered a sexual assault.
Varone disagreed, saying that the 60-year-old SJC decision was not applicable in the Levitsky case. In the SJC case, he said, force was a required element and a key focus of the court's decision, while in the Levitsky case, it is not.
And, said the prosecutor, Barretto had already made a determination during the trial that there was sufficient evidence for the jury to consider a guilty finding in the case.
"Here, you have bountiful evidence ... that supports the case going to a jury," said Varone. "This is a case where (the woman) never consented to him fondling her breasts."
Barretto said he wanted to read all of prior cases Mulhall cited as legal precedent before making a ruling.
A status hearing is scheduled for Sept. 20.
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at email@example.com or on Twitter at @SNJulieManganis.