Billerica police arrested seventy-two year old Ernest Frobese late last week for failure to register as a sex offender. Frobese’s pre-trial conference date is scheduled for January 23. A mistrial was declared two years ago after the court found Frobese incompetent to stand trial for failure to register. Frobese was sent to Bridgewater State Hospital to be held until he became competent or for at least 6 months. On Monday, November 5, 2012 Frobese was arraigned and released on personal recognizance.
Frobese was convicted in 1995 for indecent assault and battery on a child, and he is classified as a Level 3 sex offender. Initially, Frobese’s legal guardian would register for him. In 2007, Frobese became obligated to register on his own, and he allegedly failed to do so in 2008. He was tried on the 2008 failure to register charges in 2010. His defense attorney argued that Frobese was not criminally responsible. A psychologist testified in the 2010 trial that while Frobese is articulate and intelligent, he suffers from paranoid delusions.
As a Massachusetts criminal defense attorney, this report raises a number of issues for discussion. One issue involves the government’s burden of proving actual knowledge of the registration requirement. The Appeals Court recently clarified that the prosecution has to prove actual knowledge and that it is not enough that a reasonable person would be aware of the registration requirement. In this case, it could be difficult for the government to prove that element, particularly in light of Frobese’s mental health issues and the fact that his guardian registered for him in the past. An experienced criminal defense lawyer will conduct a careful review of Frobese’s Sex Offender Registry Board (SORB) records for indications that he did not actually know that he was required to register.
Another issue involves competency to stand trial. The due process clause requires that a person understand the charges against him and be able to participate in his own defense. The issue of competency can be raised by any party and at any stage. Defense counsel must consider carefully whether to raise competency issues, as there can be undesirable consequences. For instance, there is no right to bail during the competency evaluation period. A defendant might sacrifice speedy trial rights, and/or he might be committed for a longer time than he would have received as a sentence. Massachusetts General Laws chapter 123, section 15 governs the procedure for competency evaluations. Under section 15(a), the first step is an outpatient evaluation which usually takes place in the court clinic. If the court finds that further evaluation is necessary, section 15(b) provides for commitment for further examination, which should not be longer than 20 days. If, after the inpatient evaluation, there is a real doubt as to competency, the court may hold an evidentiary hearing under section 15(d). It is important to note the distinction between criminal responsibility and competency to stand trial. Criminal responsibility involves state of mind at the time of the crime’s commission, whereas competency to stand trial involves mental condition at the time of trial.
In Frobese’s first trial, he was apparently found incompetent and a mistrial was declared. Where a defendant is found incompetent, the case is stayed until he becomes competent or until the case is dismissed. Here, Frobese was reportedly committed to Bridgewater State Hospital. Bridgewater is for males requiring “strict security,” and as a result, most defendants would tend to prefer commitment to a less uncomfortable facility.
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