Convicted man won't serve time for '90 rape
The state's highest court ruled yesterday that a Lowell man will not have to serve a prison sentence imposed after a 1990 rape conviction because the government waited 16 years before trying to bring him in to serve his time.
"A defendant who unsuccessfully appeals from a criminal conviction bears no burden to come forward voluntarily to be taken into custody and incarcerated," Justice John M. Greaney wrote for a unanimous Supreme Judicial Court.
The unusual case involves Vith Ly, who was sentenced in Middlesex Superior Court in Lowell to 20 years in MCI-Concord, a medium-security prison, for raping a female acquaintance. Under the law at that time, he was likely to serve a maximum of two years.
David LiBassi, who represented Ly in the early 1990s, said yesterday that the evidence against Ly was weak and that the trial judge took the unusual step of releasing Ly on bail while his conviction was appealed.
According to the SJC, Ly lost that appeal in 1991, but no one from the Middlesex district attorney's office tried to bring him in for about 16 years. During that time, he lived openly in Lowell, raised three sons, and never ran from authorities, the court said.
Ly was arrested and released twice in Middlesex County. The oversight was discovered earlier this year when he was stopped for a traffic violation and State Police discovered he had failed to register as a sex offender.
A Middlesex prosecutor then checked and discovered that Ly never went to prison for the rape conviction. The district attorney's office tried to get Ly imprisoned.
But the SJC disagreed: "We conclude that requiring the defendant to serve his sentences, at this point in time and on these facts, would violate the concept of fundamental fairness that is at the core of due process," Greaney wrote for the court.
In a statement, Leone said he was disappointed by the decision.
"The clock should not run out on a convicted rapist's debt to society and to the victim," he said in the statement. "The priority here should be achieving justice for the victim. In our opinion, true justice required this defendant to serve his full sentence."
LiBassi, who has not had any contact with Ly since the early 1990s, said the decision is actually justice being served.
Ly faces federal immigration charges stemming from his conviction and is serving a term for failing to register as a sex offender, according to court records. 