Middlesex DA dismisses complaint against Marzilli
Middlesex District Attorney Gerard T. Leone Jr. is refusing to prosecute a criminal complaint charging state Senator J. James Marzilli Jr. with sexually assaulting an Arlington woman, instead filing a notice in Cambridge District Court yesterday effectively dismissing the case.
Charges alleging that Marzilli assaulted four other women in Lowell continue in Middlesex Superior Court.
The notice filed in Cambridge effectively spoils any legal remedy the woman had in bringing criminal charges against the Arlington senator, who she accused of sexually assaulting her when he brought her home after a charity event in April.
The woman still has legal alternatives, such as filing a civil case. But she was steadfast in seeking criminal charges.
The woman had achieved a minor legal victory last month when a Cambridge District Court magistrate issued the criminal complaint charging Marzilli with two counts of indecent assault and battery. The woman had taken the rare step of requesting the complaint on her own after Leone had refused to file a charge on her behalf in April.
But Leone, as district attorney, has the final authority to prosecute, and he said yesterday that the case lacks the evidence to prove "beyond a reasonable doubt," the benchmark in securing a conviction, that Marzilli assaulted the woman. Leone said the clerk magistrate has a lower standard to follow in issuing a complaint, but that the evidence would not hold up in a criminal trial.
Leone said the magistrate never considered witness statements or defense arguments - Marzilli did not even show up during hearings - and so the magistrate did not have the opportunity to review the full case. He said his decision not to prosecute was based on a full review of the evidence.
"Our decision that the evidence in this case does not support criminal charges should not be taken in any way as a sign that we did not take her or her allegations seriously," Leone said in a prepared statement. "At the same time, we have an ethical and professional obligation to bring cases when the evidence meets a criminal standard of proof. This case does not meet that standard."
Leone was caught in a difficult position on the case, having dismissed it initially and again yesterday, although more allegations of improper conduct by Marzilli surfaced after the April assertion.
Marzilli's lawyer, Terrence Kennedy of Everett, said Leone's decision had been expected. He said he will continue to argue against allegations that Marzilli assaulted four other women.
"Now, I can focus on what my job is and not deal with distractions, and that is to defend Jim Marzilli," Kennedy said.
Wendy Murphy, the woman's lawyer, blasted Leone for dismissing the charges, saying he had no authority to do so until Marzilli is officially charged, which would have happened at his Aug. 28 arraignment. Murphy said she will purse legal recourses to make sure Marzilli is arraigned.
"If I have to make sure he's arrested, I will do that," she said, adding that his arraignment would ensure that the charges show up on his record. "He deserves to have the charges on his record."
She also blasted Leone for issuing a news release announcing the dismissal of the charges without first contacting her or her client.
The woman's allegations put a spotlight on alleged sexual harassment by Marzilli. In July, he was indicted on charges that he accosted four other women in Lowell on June 3, giving more credibility to the Arlington woman's accusations. Marzilli faces charges that include annoying and accosting a person of the opposite sex.
Kennedy is seeking to have most of the charges dismissed on legal grounds. He is challenging the constitutionality of the charge of annoying a person of the opposite sex, saying there are no equal laws that would criminalize annoying and accosting a person of the same sex. The case has been continued to Oct. 23.
Marzilli, a 50-year-old Democrat, checked into McLean Hospital in Belmont for what Kennedy has described as bipolar disorder soon after he was charged.
Milton Valencia can be reached at mvalencia@globe.com. 