The longest-running court case in Vermont history skidded to a halt in January after the defendant died. But prosecutors say the unresolved 1987 criminal case should not be expunged — as state law dictates — because it would compound the injustices experienced by the child victim.
At a hearing Monday, state prosecutors asked the Bennington Superior criminal court not to wipe the charges of sexual assault and obstruction of justice against Leonard Forte, which were dismissed with prejudice after he died. He was convicted at trial in 1988, but the presiding judge overturned the verdict and ordered a new trial, which never came about.
Special Assistant Attorney General Jeffrey Amestoy said Vermont’s expungement law was intended to help people who wanted a “fresh start” after run-ins with the law, unlike Forte, who he said was “interested in obstructing justice.”
Defense attorneys objected to the state’s request, saying Forte died an innocent man in the eyes of the law, so his charges should be erased from the record.
“Criminal cases that are incomplete at the time of the defendant’s death are buried with the defendant,” said Forte’s lead defense attorney, Susan McManus.
Forte, a former New York police officer, died in December at age 80 after nearly 35 years of dodging allegations that he sexually assaulted a 12-year-old girl at his Landgrove vacation home in 1987.
A Bennington County jury convicted Forte of three counts of sexual assault, but Judge Theodore Mandeville — who has since died — granted his request for a new trial, saying the female prosecutor had prejudiced the jury by being too emotional.
Ever since the state recharged Forte in 1997 — after failed attempts to get the guilty verdicts reinstated — he had argued that his case should be thrown out because he was too sick to be retried.
He’d presented a doctor’s note that prosecutors now say was faked. They also accused him of lying about having been in hospice care.
Forte died from sudden cardiac arrest resulting from longstanding heart disease, poorly controlled diabetes and hypertension, according to his death certificate filed with the court.
Before Forte died, he’d been tentatively scheduled for a retrial this spring when the new presiding judge found him physically capable of standing trial. Now, Superior Judge Cortland Corsones has to decide whether to remove Forte’s case files from public record.
Prosecutors said that to expunge or seal Forte’s case records would be the final miscarriage of justice in a case where the interests of justice “have never been served.” They asserted that Mandeville’s decision to throw out Forte’s guilty verdict was made out of gender bias; that Forte kept evading a new trial through deception; and that he died before a jury could rule on his guilt or innocence.
The interests of justice now involve keeping the victim’s story alive, they said.
“Expungement would amount to the court permanently deleting any record of this case, as if the victim had never reported, the defendant had never been charged, and as if there had been no trial resulting in convictions that were set aside — in fact, as if this case never existed at all,” the prosecution, led by Deputy State’s Attorney Linda Purdy, said in a written motion.
Forte’s lawyers contend the interest of justice would be served if his charges were sealed. McManus, said prosecutors failed to state a legal reason why the record of someone “who died an innocent man” should remain open to public scrutiny and why the interest of justice should now apply to the person Forte was accused of assaulting, Michele Dinko.
The argument “ignores the fact that it was the state’s own conduct that resulted in the mistrial,” McManus said, adding: “The state’s also asking this court to give more credence to Ms. Dinko’s feelings rather than the legal system.”
Dinko, now 47, also asked Corsones to keep Forte’s case files open as a warning that the legal system can be subverted.
“I can never wrap my head around why this happened,” she said in a personal court appearance Monday, her voice choking with emotion. “Am I not that important? It’s OK for you to be raped, and Mr. Forte not held accountable for another trial.”
Dinko, a registered nurse and mother of two teenagers, said she was inspired by her daughter to continue fighting in court.
“This case needs to stay open for all people to see, to learn that it can never happen again to anybody,” she said. “This is my last fight for what is right.”
Corsones said he will consider each side’s position and issue a decision at a later date.
Read the story on VTDigger here: With the defendant now dead, judge weighs sealing child sexual assault case.
