SJC mulls remedy for a sentence not served

Middlesex prosecutors came under fire yesterday from the state's top jurists, who demanded to know why a Lowell man has remained free for the past 16 years when he should have spent at least two years behind bars for a 1990 rape conviction.

Vith Ly was convicted of raping a co-worker in 1989 and sentenced to 20 years in prison, but was freed on bail while his conviction was appealed.

Ly lost the appeal in 1991, but was never sent to state prison.

Yesterday, several Supreme Judicial Court justices questioned whether justice would now be served if Ly is returned to "the clink," as Justice Roderick Ireland referred to it.

The justices said they have to consider the fact that Ly has led a largely crime-free life since then, although he had two arrests for domestic violence in the early 1990s, and has raised a family and maintained steady employment.

"Someone dropped the ball in the DA's office," said Justice John M. Greaney.

Greaney later asked if it would be "just and fair" to imprison Ly now, in light of the likelihood that he would have been released after serving two years under the sentencing rules of the early 1990s.

But Middlesex Assistant District Attorney Fawn Balliro responded that Ly should not benefit from the government's mistakes and insisted that he belongs in prison.

"The full sentence is still in effect," Balliro said.

No clear explanation of how Ly avoided his prison sentence was discussed at the hearing yesterday. According to court records, the mistake was discovered earlier this year when a Middlesex prosecutor was researching Ly's background while prosecuting him for failing to register as a sex offender.

Ly's records from Concord state prison were obtained, and they showed that he spent only about three months incarcerated.

A lower court judge and SJC Justice Judith Cowin both ruled earlier this year that Ly has served his sentence because he spent three months in prison in 1990-91. Prosecutors want the full court to overturn those rulings.

During his 1990 trial, Ly was convicted of seven charges, including two counts of rape. The Appeals Court later threw out his conviction on a count of indecent assault and battery, but upheld his convictions on the six other charges, according to court records.

In court yesterday, Justice Margot Botsford, a former superior court judge, said that probation records reflect only the sentence imposed by a judge and do not keep track of time served.

Ly is a native of Cambodia, but defense attorney Daniel Flaherty said that federal immigration authorities checked Ly's background since his convictions and allowed him to remain in the United States under a law that protects people who face torture if they return to their home country.

Since Ly's imprisonment for failing to register, Flaherty said, federal immigration officials have signaled they want to deport him after his state sentence ends.

Greaney told Flaherty the SJC must consider how Ly's victim would feel if she learned that he never spent time behind bars. Chief Justice Margaret Marshall pointed out that sex offenders often repeat the crime.