By Stephanie Bergman
The Essex County District Attorney's office had no choice but to watch a Level 3 sex offender walk out of court free on bail, since it could not call for a dangerousness hearing, the DA's spokeswoman said Thursday.
Carrie Kimball Monahan said that, since Starr Lloyd III was charged with open and gross lewdness — not a inherently violent crime — the prosecutor could not ask for a dangerousness hearing, which could have put Lloyd in law enforcement custody for 90 days.
The law that allows the DA to ask the court to hold someone who is a danger to the community specifically mentions that people charged with violent crimes are eligible to be held if found dangerous by the court; it also allows the DA to ask the court to hold someone if violence is implied by their behavior, such as someone who violates a restraining order or is charged with burglary or arson.
"Any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result" can be subject to a dangerousness hearing, according to General Law Chapter 276, Section 58a.
"You're asking the court to hold someone without a trial," said Kimball Monahan when explaining why a dangerousness hearing was not requested for Lloyd, a Level 3 sex offender with two prior convictions. Lloyd has been free since posting $3,000 bail last month when he was charged with open and gross lewdness in the presence of a 12-year-old girl at his Gloucester home. He has been indicted on the most recent charge, moving his case out of district court and to Salem Superior Court.
Kimball Monahan said the charge against him, "as hideous as it is," she said, did not involve violence, tying the hands of the prosecution.
Robert Condon Jr., a local lawyer, disagreed.
"If I'd been assigned that case, I would have expected a hearing. I'd have read the report and gotten ready to defend him in a 58a hearing," Condon said Thursday.
According to Condon, the fact that a child was involved implies possible violence.
"It's a judgment call on (the prosecutor's) part," said Condon.
A number of local attorneys called the Times when Lloyd was let out on bail to express surprise that the DA's office had not asked for a dangerousness hearing.
The hearing can only be requested at the first pre-trial hearing, generally the arraignment, unless the defendant is charged with new crimes in the interim. So the DA's office had no such option when Lloyd appeared in court for the second time this past Tuesday.
The DA's office had sought $10,000 in his first appearance — just hours after he had confessed to the crime, according to the police report, and told officers he needed "help." But Lloyd's bail was set at $3,000 by Gloucester District Court Judge Joseph Jennings, and Lloyd's father paid it, setting the 43-year-old Heights at Cape Ann man free.
"The purpose of bail is to make sure you show up for court," said Kimball Monahan. Lloyd has always appeared in court when called, and so Jennings could only impose low bail meant to ensure that Lloyd returned to court.
Lloyd's criminal history is extensive: In 2009, Lloyd was charged with breaking into the Manchester home of a 16-year-old girl and raping her. As a result of that rape charge, the courts moved Lloyd, who has lived in Gloucester and Manchester, up from a Level 2 sex offender to a Level 3. The levels correspond to the likelihood of a person re-offending, with Level 3 as the greatest likelihood.
In two earlier convictions for open and gross lewdness, including one in Peabody in 2002, Lloyd was found guilty of exposing himself and masturbating in a manner where girls and women could see him.
Then, both in Peabody in 1999 and in Burlington in 2001, Lloyd was caught driving on a highway alongside women who could see him, fully exposed and masturbating as he drove, according to police reports.
The DA's office dropped the 2009 rape case, however, after Lloyd was indicted.
Kimball Monahan took issue with portrayals that the DA's office had "failed" to prosecute the case, as was worded in court documents.
She said she could not reveal more information about why the case was dropped, but said the DA's office was obligated to drop it when they thought they would be unable to win.
"We take crimes against children very seriously," said Kimball Monahan. "If we can't prove guilt without a reasonable doubt, we are ethically bound not to prosecute."
In Massachusetts court rules for prosecutors, the standard mandates that a prosecutor shall "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause," a lower bar than beyond a reasonable doubt.
Stephanie Bergman can be reached at 978-238-7000 x3451, or firstname.lastname@example.org.