Judge orders prosecutor to show cause why she should not be sanctioned
The Office of the Attorney General dropped yesterday its sexual abuse case against a retired Army reservist but it has the option to re-file the case in the future.
The OAG reportedly had the case against Michael Barry Murphy dropped as it would be unable to prove its case at trial. Barry, 54, was accused of sexual abuse of a minor.
Superior Court Associate Judge Teresa Kim-Tenorio said the prosecution—represented by assistant attorney general Betsy Weintraub—sought the case’s dismissal after being unable to present evidence that was not tendered during discovery and a challenge to witness competency.
In addition to Weintraub’s lack of diligence and case management, Kim-Tenorio said insufficient evidence warrants dismissing the case.
Kim-Tenorio ordered Weintraub to appear in court on Aug. 29 to show cause as to why she should not be sanctioned for lack of diligence and dilatory tactics.
The judge vacated the jury trial that was set for Sept. 11, 2017, as well as the pre-trial conference scheduled for yesterday, Aug. 15.
According to court records, the case involves two alleged sexual assault offenses.
In August 2016, the OAG charged Murphy with sexual abuse of a minor in the first degree and sexual abuse of a minor in the second degree. The trial was originally set for Feb. 13, 2017, and was moved to April 3, 2017, and finally to Sept. 11, 2017.
Last July 7, Weintraub filed a motion to extend the discovery deadline. She argued that she was unaware of the discovery deadline until one month prior to the deadline.
Last Aug. 2, Kim-Tenorio denied the government’s motion.
At the Aug. 8, 2017, status conference, Weintraub asked the court to reconsider.
Kim-Tenorio denied this again, saying reconsideration would prejudice the defense and cause extreme delay.
Last Thursday, Weintraub filed the motion to dismiss in which it indicated the government’s inability to prove its case.
Defense counsel Janet H. King argued that the Commonwealth failed to prosecute diligently and that the appropriate remedy is to dismiss the case with prejudice.
In her order yesterday, Kim-Tenorio said she disagrees with the government’s argument that public interest is better served by dismissal.
“This matter involves serious charges of sexual assault, which is a matter of great public significance in the Commonwealth, even more so to the alleged victim and/or defendant,” Kim-Tenorio said.
Moreover, Kim-Tenorio said, a tremendous amount of resources have been expended in the prosecution and defense of this matter, including thousands of wasted taxpayer dollars and resources of already-overburdened agencies.
Most importantly, she said, public interest requires a trial to vindicate the alleged victim or defendant.
Clearly, she said, Weintraub needs to evaluate her definition of public interest.
Murphy is currently out on a $50,000 bond. The government charged him with sexual abuse of a minor in the first degree and sexual abuse of a minor in the second degree, for allegedly sexually abusing a 4-year-old girl on Aug. 6, 2016.
In the second case, the government charged him with two counts of sexual abuse of a minor in the second degree, and one count of indecent exposure in the first degree. The incident allegedly happened from 1994 to 2004 when the victim was a minor. The victim is now 26 years old, according to court documents.