Alleged child abuser’s retrial scuttled by DA

By Matthew Bruun TELEGRAM & GAZETTE STAFF

LEOMINSTER— Frank E. Garcia Jr. will not face a new trial on charges he molested three boys at a child care facility five years ago.

Mr. Garcia’s second trial was slated to begin yesterday in Marlboro District Court, but Worcester District Attorney Joseph D. Early Jr.’s office decided not to prosecute the case.

“The families of the victims felt it would be in the best interests of the children at this time,” Timothy J. Connolly, spokesman for Mr. Early’s office, said in explaining the decision.

Mr. Garcia, 35, was sentenced to two and a half years in prison in August 2003 after being convicted of molesting the boys at the Piccolo Mondo Child Care and Learning Center in Leominster, where he had been employed as a teacher. He was released from custody in December 2004 after he sought a new trial on grounds he was given ineffective assistance by his original lawyer, John A. Bosk Jr. of Fitchburg.

The state Appeals Court judge upheld the ruling, finding Mr. Bosk had “exculpatory evidence that he inexplicably failed to use,” namely a witness who said she would have testified that one of the alleged victims appeared to have been influenced by his mother into making the allegations against Mr. Garcia.

After the conviction was overturned, former Worcester District Attorney John J. Conte sought to bring the charges against Mr. Garcia again. James L. Sultan, Mr. Garcia’s second lawyer, sought a change of venue for the new trial, arguing news coverage of the case would make it impossible for him to get a fair trial locally.

The case was moved to Marlboro, where the prosecutor’s decision not to prosecute the case was made public yesterday.

Mr. Sultan said in an interview after the hearing that he had been given a heads-up last week that the case against Mr. Garcia would not move forward. He said the prosecution’s decision left his client with mixed feelings.

“He’s innocent and he was looking forward to going to trial to prove his innocence,” Mr. Sultan said. “On the one hand, it’s disappointing he’ll never get the chance.”

He said the lack of another trial will spare all parties a lot of aggravation.

“Unfortunately his reputation has been destroyed by the false charges,” Mr. Sultan said. “His record has been belatedly cleared.”

Mr. Garcia declined to be interviewed, according to his lawyer.

The three alleged victims in the case were 5 and 6 years old when the charges were brought in 2002.

They testified a year later that Mr. Garcia had inappropriately touched them at the center, where he had worked about four years.

Mr. Connolly said the decision not to prosecute the case did not mean the charges could not be brought again later should the alleged victims’ families change their minds about testifying.

“The DA’s office felt it had a case,” Mr. Connolly said.

Mr. Sultan said Mr. Garcia was planning to attend graduate school this fall.

“He feels greatly relieved his five-year-long nightmare is over,” he said.

July 10, 2007

Prosecutors drop sex-assault charges

By Jonathan Graham

MARLBOROUGH -- District Attorney Joe Early Jr.'s office will not pursue sexual assault charges against a Leominster day-care employee, a decision announced during a hearing in Marlborough District Court Monday.

Frank Garcia, 35, has already served about one-and-a-half years of a two-and-a-half-year sentence. A Fitchburg District Court jury found him guilty of three charges of indecent assault and battery on a child under 14 in 2003.

Garcia, a former employee at Leominster's Piccolo Mondo Child Care and Learning Center, won an appeal in 2004, which forced a re-trial.

Early's spokesman, Tim Connolly, said the alleged victims and their families did not want to go through another trial, but he left the door open for prosecutors to return to the case if that changes.

"The parents of the victims thought it would not be in their children's best interest to testify at this time," Connolly said Monday. "The district attorney's office agreed with that assessment."

Connolly said "it's never a complete surprise" when young trauma victims decide not to "relive the case."

Connolly noted that Garcia has already been convicted for the crimes, and that the appeals judge never cited any failures made by prosecutors in the original trial.

But Garcia's attorney, James Sultan of Boston, lauded Monday's decision as proof of his client's innocence.

"The reality is, if they had a case, they would have gone forward," Sultan said outside the courtroom Monday.

Sultan said that no matter what Early's office gave as its reason, "actions speak louder than words."

Garcia has already served more than a year in jail, and has spent the past five years defending himself against the charges, Sultan noted.

The alleged victims' families could not be reached for comment Monday. A call to two of the families' attorneys was not returned Monday.

Piccolo Mondo Director Maria Cuopo could not be reached for comment Monday.

Garcia quietly left the courtroom after the quick hearing. He and his family members shook hands with Sultan before leaving in a mini-van.

Sultan said his client wanted to spend time with his family and did not want to speak to a reporter.

Garcia, who continues to live in Leominster, will attend Bible college this fall, Sultan said.

Garcia has also been prominently featured in newspaper articles throughout the legal process, which had lead to the case being moved to Marlborough from Fitchburg.

"How he's ever going to get back his reputation, I don't know," Sultan said.

District Court Judge Michael Brooks ordered the re-trial after he determined Garcia's original trial attorney, John Bosk of Fitchburg, had "conducted little or no pretrial investigation or preparation."

Police had alleged that Garcia fondled a 7-year-old while cleaning a diarrhea accident. They also alleged he touched tongues with a 6-year-old.

Garcia admitted to touching tongues with the 6-year-old, but described it as an accident that occurred because the child leaned forward while Garcia was making a face at him.

All three of the children testified at the 2003 trial.

Two of the alleged victims' families filed a lawsuit against Garcia and Piccolo Mondo in 2003. The case was disposed in 2004 after an out-of-court settlement, according to Worcester Superior Court records.

September 12, 2006 

Lawyer: Garcia won't get a fair trial here 

By J.J. Huggins

LEOMINSTER -- The lawyer representing the former daycare worker once convicted of molesting three children and later granted a new trial wants to move his second trial out of Worcester County.

"I believe the pre-trial publicity will taint the trial, and I think it needs to be in a county where the people have not been exposed to three years of publicity about the case," attorney James Sultan of Boston said during a phone interview Monday.

Sultan is representing Frank E. Garcia Jr., 34, of Fitchburg.

A Fitchburg District Court jury found Garcia guilty of three counts of indecent assault and battery on a child under 14 in June of 2003.

Police allege Garcia molested three boys at the Picolo Mondo Child Care and Learning Center on Mechanic Street in Leominster in 2002.

Garcia served about a year-and-a-half of his two-and-a-half-year jail sentence.

He appealed the conviction, and District Court Judge Michael J. Brooks ruled in his favor in December 2004, giving him a new trial.

District Court Judge Edward J. Reynolds let Garcia out of jail following Brooks' ruling, according to court documents.

Garcia, 34, appeared in Leominster District Court Monday for a pre-trial hearing in preparation for his second trail.

The court scheduled a hearing for Oct. 26 on Sultan's motion for a change of venue.

District Court Judge John J. Curran Jr. on Monday allowed an Aug. 1 ruling by the state appeals court to pay Garcia $10,000 for lawyer's fees, according to court documents.

The judge also allowed a motion filed by Sultan to give the defense lawyer access to the names and addresses of all prospective trial witnesses, as well as other information the lawyer will need to prepare for the second trial, such as potential witnesses' criminal records.

Brooks, who presided over Garcia's first trial, signed a court document saying Garcia's lawyer at the time of the first trial, John Bosk of Fitchburg, "conducted little or no pre-trial investigation or preparation, including failing to interview prospective trial witnesses."

Worcester County District Attorney John Conte's office appealed Brooks' decision to grant Garcia a new trial, but the appeals court sided with Brooks.

Conte couldn't be reached for comment Monday.

Sultan, Garcia's new lawyer, said he thinks the jury will find his client not guilty the second time around.

"I hope and expect the result will be very different (from the first trial), and the jury will conclude that he was unjustly accused," Sultan said. 

September 12, 2006 

Trial relocation requested
Piccolo Mondo molestation retrial

By Matthew Bruun TELEGRAM & GAZETTE STAFF

LEOMINSTER— Frank E. Garcia Jr., who spent a year and a half in jail before his conviction on charges of molesting three boys at a child care center was reversed on appeal, returned to Leominster District Court yesterday to face the charges anew.

His lawyer, James L. Sultan, wants the case to be heard outside Worcester County.

“There has been such publicity on the case, I don’t think it’ll be possible for my client to get a fair trial,” Mr. Sultan said yesterday. “Anywhere outside of Worcester County will be fine with me.”

The motion for change of venue is set to be argued Oct. 26, Mr. Sultan said.

A jury convicted Mr. Garcia, who worked at the center, of three counts of indecent assault and battery in 2003; he was sentenced to two and a half years in the House of Correction, to be followed by six years of probation. Mr. Garcia, who has maintained his innocence throughout the case, hired a new lawyer and appealed the conviction.

Mr. Garcia, 34, was released from custody in December 2004, after the judge who heard the original case found the defendant had received ineffective assistance from lawyer John A. Bosk Jr. The Appeals Court upheld that ruling this past April.

The Appeals Court said Mr. Bosk had “exculpatory evidence that he inexplicably failed to use,” in the form of a witness who said she would have testified that one of the children appeared to be influenced by his mother in making the allegations against Mr. Garcia.

The parental coaching theory had been used by Mr. Bosk during the trial in 2003, at which three boys said Mr. Garcia had touched them inappropriately at the Piccolo Mondo Child Care and Learning Center on Mechanic Street in 2002. Mr. Garcia was a teacher there at the time.

In ordering the new trial, the Appeals Court also ordered the commonwealth to pay $10,000 for Mr. Garcia’s appellate legal fees, Mr. Sultan said. Judge John J. Curran Jr. ordered the payment during a hearing in Leominster District Court yesterday, according to Mr. Sultan. He said his client, who now works in retail, is anguished at having to face the charges again.

“He feels his life has basically been ruined by these false allegations,” Mr. Sultan said.

“He’s looking forward to clearing his name but he’s very frustrated the case has gone on all these years.”

Yesterday marked Mr. Garcia’s first appearance in Leominster District Court since Worcester District Attorney John J. Conte decided this spring to pursue the charges again.

Mr. Sultan said he will mount a more vigorous defense of Mr. Garcia than was presented in 2003.

Mr. Garcia “basically served a sentence,” and the prosecutor’s resources would be put to better use on other cases, Mr. Sultan continued.

He said the alleged victims in the case, who were 6 and 7 years old when they testified against Mr. Garcia three years ago, may be traumatized by having to testify at another trial.

“It’s not my decision,” Mr. Sultan said. “If they insist on going forward, we’ll be ready to try the case.”

June 8, 2006

DA Conte moving toward trial in Leominster molestation case

By Mary Jo Hill TELEGRAM & GAZETTE STAFF
mhill@telegram.com

LEOMINSTER— It appears that District Attorney John J. Conte is paving the way for a new trial for a former teacher at the Piccolo Mondo Child Care and Learning Center who was convicted of child molestation and then won an appeal.

“At the present time, it looks like we’re moving toward a trial,” said Elizabeth A. Stammo, a spokeswoman for Mr. Conte.

The case’s status is scheduled to be discussed July 14 in Fitchburg District Court, Mrs. Stammo said.

Frank E. Garcia Jr. had been convicted of inappropriately touching three boys at the Leominster child care center where he worked. After a jury found Mr. Garcia guilty of three counts of indecent assault and battery on a child under the age of 14, he was sentenced to 2-1/2 years in jail, to be followed by six years’ probation.

After he had served a year and a half in jail, a judge granted a new trial motion by Mr. Garcia and he was released.

The former child care worker claimed ineffective representation by his lawyer, John A. Bosk Jr., during the trial.

Mr. Conte appealed the decision on Mr. Garcia’s motion, but it was affirmed by the Appeals Court. It appears that the defense lawyer had “exculpatory evidence that he inexplicably failed to use,” according to the Appeals Court decision, which was made public in April.

That evidence contained statements by a teacher at the school who was also a babysitter for one of the victims, according to the Appeals Court decision.

If she had been called to testify, the teacher would have said that the victim, despite her coaxing, did not implicate Mr. Garcia, according to the Appeals Court decision.

And the teacher would have said the child only implicated Mr. Garcia after his mother appeared, thus supporting a defense theory of parental influence and pressure, according to the decision.

Lawyer James L. Sultan, who took up Mr. Garcia’s case after his conviction, said yesterday the court sets the status date because the case has been sent back to the trial court.

The status date is not connected to the district attorney’s discretionary decision to retry the case, Mr. Sultan said.

“My hope is that sanity will prevail and they will not retry this case,” Mr. Sultan said.

Mr. Garcia has spent 18 months in jail and has been out on strict probationary conditions for the past 18 months, Mr. Sultan said.

In effect, Mr. Garcia has served a sentence for a crime he didn’t commit, Mr. Sultan said, and to retry Mr. Garcia would put the children and their families through the stress and emotional torment of the process again. A new trial would be a tremendous waste of taxpayer money and judicial and prosecutorial resources, Mr. Sultan said.

April 22, 2006

Appeals Court Upholds Ruling on Mondo Piccolo Day Care Worker.

Frank Garcia Remains Free. 

The Massachusetts Appeals court has upheld the overturning of the conviction of Frank Garcia of Fitchburg.  Mr. Garcia has been the subject of accusations from parents of several young children, all which center on foot rubbing that turned into charges of inappropriate sexual touching. 

Mr. Garcia, who was an employee of the Piccolo Mondo Daycare Center, has always maintained his innocence. 

Mrs. Maria Cupo, center director, was never criminally charged and the state Department of Social Services could not support the allegations in its first investigation. 

A Leominster police detective, Robert Gallant, on July 31, 2002 then filed another complaint, a questionable 51A child abuse charge against Mrs. Cupo, which was not recorded in the F-net computer system for the Department of Social Services until August 12, 2002.  This child abuse filing was verified by a Leominster police incident report. 

This 51A report involved children who were in a hallway and just happened to name one of the defendants in the case.  The other two defendants were later added by the Department of Social Services during the investigation to discredit Mrs. Cupo and the center.   

DSS legal counsel Virginia Peel attempted to circumvent the Fair Hearing Process, which would have placed into record testimony from Piccolo Mondo teachers.  

Attorney Peel made public statements that the Fair Hearing was delayed due to Mrs. Cupo’s lack of legal representation. However, according to DSS regulations Mrs. Cupo could be represented by an advocate. She was represented by an advocate at the time.    

Attorney Peel reversed the department’s finding clearing Mrs. Cupo on February 6, 2003 without a hearing. 

Karen Crumbly, a Piccolo teacher who went to Leominster police to inform investigators of the third child’s disclosure that Mr. Garcia had not touched him inappropriately, also became subject of a child abuse 51A filing. This resulted in her being removed from her teaching position.   

That 51A was unsupported by DSS when the mother of the third child refused to allow the DSS investigator to interview her son. 

Ms. Crumbly was on the Commonwealth’s witness list and was summoned to testify in Mr. Garcia’s trial. However, when Assistant District Attorney Anthony Marrotta discovered Ms. Crumbly would testify to the fact the child had disclosed Mr. Garcia had not touched him, she was not called as a witness by the prosecution.  

During the criminal trial, held in Fitchburg District Court, the first two children--only inches away from Mr. Garcia--could not identify him.  On the second day, the third young child pointed blindly towards the defendants table when asked to identify Mr. Garcia. Under cross examination by Mr. John Bosk, defense counsel for Mr. Garcia, the child admitted he had been coached by “Tony,” referring to ADA Marrotta, who was prosecutor for the Commonwealth. 

The Auburn Massachusetts State police C-Pac Unit, under the control of Worcester District Attorney John J. Conte, was contacted immediately to seek a reexamination of the Garcia case based on undisclosed facts and prosecutorial action during the trial.  No investigation was ever conducted.   

A fourth charge that was filed by DA John Conte was later dismissed at the request of the Commonwealth.  According to the SAIN interview conducted by the Worcester DA’s Office, the child never disclosed that Mr. Garcia had touched him inappropriately. 

April 21, 2006

Court upholds ruling overturning conviction of alleged child molester 

By Jonathan Graham, Sentinel and Enterprise 

LEOMINSTER -- A state appeals court upheld a previous decision to overturn a local man's conviction for allegedly molesting three children at a local daycare center, saying his attorney did not provide an effective defense.

A jury convicted Frank Garcia Jr. in 2004 of molesting three boys at Piccolo Mondo Child Care in Leominster in 2002.

District Court Judge Michael J. Brooks overturned the conviction in December 2004, citing Fitchburg attorney John Bosk's "failure to conduct adequate pretrial investigation and preparation."

Thursday's decision slammed several of Bosk's decisions, including his failure to interview key witnesses and his failure to hire an independent investigator.

Garcia's current attorney, James Sultan of Boston, said Garcia had already served a year and a half of his two-and-a-half year jail sentence before receiving the first notice of a retrial.

"He's certainly relieved, but he's still concerned about the possibility that the district attorney will decide to still pursue him," Sultan said. "It just wouldn't make sense to put everybody through the ordeal of another trial."

District Attorney John Conte spokeswoman Karen Foley said Friday the matter is still "under advisement."

A six-person jury found Garcia guilty of three counts of indecent assault and battery on three children, two 7-year-olds and one 6-year-old in June 2003.

One of the 7-year-old accusers said Garcia fondled him while cleaning him from a diarrhea accident. Garcia admitted to touching tongues with the 6-year-old, but said it was an accident which occurred when the child leaned forward while Garcia was making a face at him.

Thursday's decision stated that Bosk had received documents containing statements by Karen Crumbley, a teacher at the daycare center, which said the alleged victim did not implicate Garcia until the alleged victim's mother came in the room.

"Counsel's failure to even attempt to speak with Crumbley was a grievous shortcoming, especially in a case that lacked any physical evidence or injury, and where credibility was the sole issue," Justice R. Marc Kantrowitz said in the ruling.

Bosk made a brief statement about the decision Friday.

"I am thrilled my client has earned a new trial, I was always confident in his innocence. Thank you and good night," Bosk said before hanging up.

The appellate court decision said Bosk's statements that, "It is not my practice to talk to government witnesses." and that he puts his own witnesses on the stand "cold" were a main reason the case should be retried.

The original 2004 opinion, written by Brooks, also slammed Bosk's "unjustified failure" to not hire an investigator for the case.

Sultan, Garcia's current attorney, said that he knew Garcia's charges were not defended properly when he first took on the case.

"As soon as I read the transcript of the trial, as soon as I read it, I was aware of it," Sultan said. "There was no doubt in my mind that a terrible miscarriage of justice was done."

Sultan said that while Garcia's appeal was based on Bosk's ineffective representation, Bosk was not solely at fault.

"I don't think its fair to put all the blame on Mr. Garcia's trial counsel, I think the investigation of this case was 

flawed from the very beginning," Sultan said. "The whole case should never have been brought to trial."

Sultan said it was in the best interest "of the community" to not retry Garcia.

"To be expending further public resources on this case would be a tremendous mistake," Sultan said.

Piccolo Mondo Director Maria Cuopo said she had not heard of the result before a reporter called Friday.

"No comment, I don't really know anything about it yet," said Cuopo, who defended Garcia's innocence during the trial.

April 21, 2006

Appeals Court: Retry molesting case

By Mary Jo Hill TELEGRAM & GAZETTE STAFF
mhill@telegram.com

LEOMINSTER— The Appeals Court has affirmed a lower court decision entitling a former teacher at the Piccolo Mondo Child Care and Learning Center convicted of child molestation to a new trial. The court found that he had an ineffective defense lawyer during his trial.

That lawyer, John A. Bosk Jr. of Fitchburg, apparently had “exculpatory evidence that he inexplicably failed to use,” according to the decision announced yesterday.

Mr. Bosk apparently received documents before the trial that contained statements by Karen Crumbley, a teacher at the school and a baby sitter for one of the victims.  

“Had she been called as a witness, Crumbley would have testified that David (a pseudonym for a victim), despite her coaxing, did not implicate the defendant and that he did so only after his mother appeared, which supported a defense theory of parental influence and pressure,” the decision stated.

“Counsel’s failure to even attempt to speak with Crumbley was a grievous shortcoming, especially in a case that lacked any physical evidence or injury, and where credibility was the sole issue,” the decision said.

The Appeals Court also agreed that the motion for a new trial should cover complaints for all three children. Although Ms. Crumbley’s statements only involved one of the children, the appeals court found flaws and defenses in the cases involving the other two children.

Frank E. Garcia Jr. was convicted of inappropriately touching three boys at Piccolo Mondo, where he worked in Leominster.

Mr. Garcia was accused of touching boys’ tongues to his, touching their genitals and forcing one of them to fondle him. The boys were ages 6 and 7 when they testified against him in 2003.

A jury found Mr. Garcia guilty of three counts of indecent assault and battery on a child under the age of 14. He was sentenced to 2-1/2 years in jail, to be followed by six years’ probation.

Mr. Garcia served a year and a half in jail before Fitchburg District Court Judge Michael J. Brooks, who had presided over the trial, issued a decision at the end of 2004 agreeing with Mr. Garcia’s motion asking for a new trial.

Mr. Garcia was released from jail after Judge Brooks’ decision, and claimed ineffective representation by Mr. Bosk. Worcester District Attorney John J. Conte then appealed Judge Brooks’ decision on the motion.

Following this most recent decision, the district attorney could ask the Supreme Judicial Court to consider the case further, according to lawyer James L. Sultan, who began representing Mr. Garcia after his conviction.

But if a new trial is held it would come after a lot of time has passed and would put everyone, including the children and their parents, through an ordeal, Mr. Sultan said.

Mr. Garcia already has served time in jail and was released under strict conditions, said Mr. Sultan. He said he hopes the prosecutor will decide against spending the additional resources.

Two of the parents also brought a civil case against the day care center and Mr. Garcia, and those suits were settled, Mr. Sultan said. There was no finding or admission of any culpability in these cases, he said. “There was a payment by the school’s insurance company, I believe.”

Mr. Garcia is working in sales, lives in the Leominster area with his family, and is involved with his church. Mr. Sultan said Mr. Garcia and his family are relieved and elated about the latest decision and are hopeful that he will be able to get on with his life.

Mr. Conte could not be reached for immediate comment. Mr. Bosk had no comment last night.

Justices Cynthia J. Cohen, R. Malcolm Graham and R. Marc Kantrowitz heard oral arguments in the Appeals Court case. Justice Kantrowitz wrote the opinion.

Under the 1974 case, Commonwealth v. Saferian, to claim ineffective assistance of counsel a defendant must show that the lawyer’s “serious incompetency, inefficiency, or inattention … fall(s) measurably below that which might be expected from an ordinary fallible lawyer,” according to the decision.

This results in a likely deprivation to “the defendant of an otherwise available, substantial ground of defence,” according to the decision.

When Mr. Bosk testified, during a hearing on the defendant’s motion for a new trial, that it is not his practice to talk with prosecution witnesses, and that he puts his own witness on the stand “cold,” the first prong of Saferian was essentially established, according to the decision.

And when the former trial counsel failed to interview and call a witness who, in part, contradicted a complainant’s allegations, the second prong of Saferian was met.

January 13, 2005

DA to fight judge’s Piccolo ruling

By Matthew Bruun Telegram & Gazette Staff

FITCHBURG— Worcester District Attorney John J. Conte will appeal a judge’s ruling that freed convicted child molester Frank E. Garcia Jr., a former teacher at a Leominster day care center.

Defense lawyer James L. Sultan said he was disappointed with Mr. Conte’s decision to appeal last month’s ruling by Fitchburg District Court Judge Michael J. Brooks.

“It means this is going to drag on for a long while, which is unfortunate,” Mr. Sultan said yesterday.

Prosecutors filed the notice of intent to appeal Tuesday in Fitchburg District Court.

Judge Brooks, who presided over Mr. Garcia’s trial, ruled on Dec. 17 that Mr. Garcia had been given ineffective counsel at his trial in June 2003. Three boys testified that Mr. Garcia had touched them inappropriately at the Piccolo Mondo Child Care and Learning Center in Leominster.

A jury found him guilty of three counts of indecent assault and battery on a child and he was sentenced to 2-1/2 years in jail, to be followed by six years’ probation.

John A. Bosk Jr. represented Mr. Garcia at the trial, and Mr. Sultan was hired after the conviction. Mr. Garcia served a year-and-a-half of his sentence before the judge’s ruling freed him.

Judge Brooks ruled that Mr. Bosk should have questioned a prospective witness who could have cast doubt on the validity of one boy’s testimony. The

prospective witness was another Piccolo Mondo teacher.

“To have not sought to interview her, much less not called her as a witness, is manifestly unreasonable,” Judge Brooks said in his ruling that found Mr. Garcia was entitled to a new trial.

Mr. Garcia was freed on Dec. 23 and was scheduled to return to court Jan. 21 for a status hearing on the case. It was unclear yesterday whether there is any need for that hearing now that the appeal is in the works, Mr. Sultan said.

Prosecutors will file a brief arguing that Judge Brooks erred in his ruling, Mr. Sultan said, after which the judge will file a response. This week’s prosecutorial filing contained no arguments, the defense lawyer said. He predicted the case would end up before a panel of state appellate judges for oral arguments.

“That whole process will take months,” Mr. Sultan said. “We’ll fight this every step of the way.”

Mr. Garcia was accused of touching the boys’ tongues to his, touching their genitals and forcing one of them to fondle him. The boys were ages 6 and 7 when they took the stand against Mr. Garcia in June 2003.

January 4, 2005

Prosecutors weighing new trial

LEOMINSTER— Prosecutors are still weighing whether to pursue a new trial against the former Piccolo Mondo Child Care and Learning Center teacher who was released from prison last month after a judge ruled he had been given ineffective defense counsel in court.

Frank E. Garcia Jr. had served a year and a half of his 2-1/2-year prison sentence when Judge Michael J. Brooks ruled on Dec. 17 he was entitled to a new trial.

A jury convicted Mr. Garcia on June 26, 2003, of three counts of indecent assault and battery involving young boys. Five weeks later he was sentenced to 2-1/2 years in prison, to be followed by six years’ probation.

Mr. Garcia hired a new defense lawyer, James L. Sultan, and appealed his conviction. Judge Brooks’ ruling said the jury did not hear about an inconsistent statement from one of the alleged victims in the case because Mr. Garcia’s original lawyer, John A. Bosk Jr., did not interview a prospective witness — another Piccolo Mondo teacher — before the trial or call her to testify during the trial.

“The statements seem to contain a prior inconsistent statement by one of the child victims and, arguably, an indication of possible influence by his mother,” Judge Brooks wrote. “To have not sought to interview her, much less not called her as a witness, is manifestly unreasonable.”

Judge Brooks said Mr. Garcia had been ineffectively represented and was entitled to a new trial. He was released from custody Dec. 23.

“He was thrilled,” Mr. Sultan said yesterday, referring to his client. “His family was thrilled. He got to go home for Christmas.”

Worcester District Attorney John J. Conte’s office has until Jan. 17 to appeal Judge Brooks’ ruling to a higher court, Mr. Sultan said yesterday.

“It’s totally a discretionary call by the DA,” Mr. Sultan said.

A spokeswoman for Mr. Conte yesterday said the matter was still being taken under advisement.

Mr. Garcia was accused of touching the boys’ tongues to his, touching their genitals and forcing one of them to fondle him. The three alleged victims in the case, then ages 6 and 7, testified for the prosecution during the three-day trial in June 2003.

Mr. Garcia is free on personal recognizance and is due in court later this month for a status review on the case.

“He is a person who is presumed to be innocent who is charged with a crime,” Mr. Sultan said.

Mr. Sultan said he would be ready for a new trial should prosecutors seek to retry the case against Mr. Garcia.

A fourth criminal charge against Mr. Garcia was dropped in November 2003. In that case, an 8-year-old boy said Mr. Garcia had touched him inappropriately three years earlier. The alleged abuse he described would have taken place a year before the charges for which Mr. Garcia was convicted in June 2003.

Last year, Assistant District Attorney Anthony J. Marotta said prosecutors had decided “it was not in the best interest of justice or the best interest of the child” to go ahead with the fourth charge.

March 14, 2005

Released Pre school teacher awaits Appeal Status report due March 17, 2005 from Worcester DA John J. Conte

The Massachusetts appeal computer court system reports that on March 17, 2005 Worcester DA John Conte must submit his appeal to the appeals court of Massachusetts. 

Mr. Frank Garcia was released from jail on December 23, 2005, and has been free pending the appeals decision.  Mr. Garcia currently stands as an charged individual but not convicted by the reversal of his trial court conviction by Judge Brooks.  Mr. Garcia was held at the Worcester county house of correction for five hundred and twenty six days (526) days previous to the the reversal.

Public case information list Commonwealth Plaintiff/Appellate attorney as Worcester’s ADA Christopher Hodgens.  ADA Hodgens is the current head of Appeals Division for Worcester district attorney John J. Conte.  ADA Hodgens was first contacted concerning prosecutorial misconduct and questionable testimony by parents of children involved June 27, 2003 immediately following the Fitchburg district trial conclusion. 

ADA Hodgens who was given supportive information to gain accurate facts that had been misrepresented during the trial. ADA Hodgens refused to initiate a proper investigation by the state police C-Pac unit.  This refusal is in direct violation of the oath that all attorneys take when receiving their Massachusetts law license, Attorneys pledge to uphold the constitution of the United States as well as to follow the laws that govern the Commonwealth of Massachusetts. 

ADA Hodgens had a legal obligation to notify Fitchburg Trial Judge Michael Brooks that information had come forward to which was previously unknown to the commonwealth. 

ADA Hodgens further failed notify the court that he had obtained testimony that prosecutorial misconduct may be a factor in this case.  Two different points were written and presented to ADA Hodgens.  The first being the failure of ADA Anthony Moratta to allow testimony of Piccolo Mondo teacher, Karen Crumbley, when he learned that Ms Crumbly would testify to the child’s discloser of not being touched by Mr. Garcia.  The second being that after the first two children could not identify Mr. Garcia the third child admitted on the witness stand, day two of the trial in Fitchburg District court that he was told by “Anthony” how to point at Mr. Garcia for identification purpose.

Statements gained from theses children had been rehearsed by ADA Marotta over a period of months according to records gathered in a recent civil lawsuit.  On numerous occasions the children met with “Anthony” to go over their story.  No professional therapist or criminal investigator was ever employed to determine relative facts such as when as where of actions in question which could never be accurately identified.

The Department of Social Service records did not require any services for the children involved in the criminal case, which in itself is some what contradictory.  How can children be sexually molested to the point of criminal prosecution, yet not be in need of psychological services for the abuse? 

December 25, 2004

New trial ordered in molestation case

FITCHBURG— A former worker at the Piccolo Mondo Child Care and Learning Center in Leominster who was convicted of child molestation charges has been granted a new trial and released from jail.

Frank E. Garcia Jr., who has been in custody for a year and a half, was released Thursday from the Worcester County House of Correction, according to a spokesman at the jail.

Mr. Garcia had filed a motion asking for a new trial claiming ineffective representation by his lawyer during his trial in 2003. A jury had found him guilty of three counts of indecent assault and battery on a child under the age of 14.

Fitchburg District Court Judge Michael J. Brooks, who presided over the trial last year, issued a Dec. 17 ruling on the motion that allows for a new trial.

At issue was the failure of Mr. Garcia’s lawyer to interview a witness before the trial or call her to testify. As a result, the jury did not hear about an inconsistent statement by one of the alleged child victims, according to the ruling.

In essence, the case was about the credibility of the children and of the defendant, the ruling stated.

John A. Bosk, who was not named in the ruling, defended Mr. Garcia during the trial. James L. Sultan, a Boston lawyer, is now representing Mr. Garcia.

During a hearing on the motion, Mr. Garcia’s lawyer testified that, other than speaking with the defendant and his employer, he did not conduct any pretrial interviews of prospective prosecution or defense witnesses. This included a prospective witness who also taught at the school and had worked as a baby sitter for one of the child witnesses, according to the ruling.

The child’s mother told police that the teacher had tried without success to get information from the child about what happened, according to the ruling.

And when interviewed by the Department of Social Services, the other teacher said the child denied anyone had touched him in his private areas or in a way that made him feel uncomfortable, Judge Brooks wrote.

When the child ultimately claimed that Mr. Garcia had put his tongue on the child’s tongue, the other teacher said the child’s mother was nodding her head approvingly as the child spoke, he stated.

The trial lawyer had police and DSS records about the other teacher’s statements, according to the ruling.

“The statements seem to contain a prior inconsistent statement of one of the child victims and, arguably, an indication of possible influence by his mother,” Judge Brooks. “To have not sought to interview her, much less not called her as a witness, is manifestly unreasonable.”

The case involved serious allegations, according to the ruling.

“Seeking to interview a prospective witness whose possible testimony, as set forth in police and DSS records, was as potentially helpful as that of (the prospective witness) is the most basic kind of pretrial investigation,” Judge Brooks stated.

By J.J. Huggins

FITCHBURG --A former day care worker sentenced to jail for molesting children was released Thursday after a district court judge overturned the jury's year-and-a-half old guilty verdict.

District Court Judge Michael J. Brooks approved Frank Garcia Jr.'s motion for a new trial after he heard arguments during a hearing last Friday. Brooks was the same judge who presided over Garcia's first trial and sentenced him to two-and-half years at Worcester County Jail. Garcia, 32, of Leominster, was released from Worcester County Jail on personal recognizance bail Thursday by District Court Judge Edward J. Reynolds.

A jury in Fitchburg District Court found Garcia guilty of molesting three boys at the Piccolo Mondo Child Care and Learning Center on Mechanic Street in Leominster in 2002. Garcia asserted his innocence throughout his trial in June 2003. He served a year-and-a-half of his two-and-a-half-year jail sentence.

Attorney James Sultan, of Boston, was hired by Garcia's family to represent Garcia because they felt he received inadequate counsel by his court-appointed lawyer during the trial, attorney John Bosk, of Fitchburg.

"This guy was unjustly convicted," Sultan said. "His reputation now has been destroyed ... he can never get his reputation back."

Sultan said he hopes Garcia will remain free and not have to face the Commonwealth for another trial.

"My hope is that they'll decide not to pursue the case any further," he said. "I think it is an extremely weak case."

Sultan said the case is "not worth any further taxpayer resources."

investigation or preparation, including failing to interview prospective trial witnesses."

The ruling mentioned Karen Crumbley, a teacher at Piccolo Mondo, who Bosk did not interview, but could have testified in Garcia's defense.

"The (police) report also reports that Ms. Crumbley told a detective that she had been sent by the owner of the school and that she had spoken with the child who 'disclosed nothing to her about being abused' by the defendant," the ruling states.

Bosk did not return a messages left for him at his office on Thursday.

A six person jury found Garcia guilty of three counts of indecent assault and battery on three children, two 7-year-olds and one 6-year-old in June of 2003. One of the 7-year-old accusers said Garcia fondled him while cleaning his diarrhea accident. Garcia admitted to touching tongues with the six-year-old, but said it was an accident that occurred because the child leaned forward while Garcia was making a face at him. All three of the children testified during the trial.

Maria Cupo, director of Piccolo Mondo, defended Garcia's innocence during the trial. She said she was in shock when she learned Garcia was released Thursday.

"I just want to see it in the newspaper," she said. "I'm in shock right now so call me tomorrow. ... Just put Happy Holidays from Piccolo Mondo," she said.

David Porter, who served as foreman of the selected jurors during the trial, said he didn't know anything about Garcia asking for a new trial.

July 14, 2004

Former Piccolo Mondo teacher requests new trial

By Matt O'Brien, Sentinel and Enterprise 

LEOMINSTER -- A former day care teacher convicted of sexually assaulting three of his pupils is demanding a new trial after spending nearly a year in jail.

Frank Garcia Jr., 32, a former employee at Piccolo Mondo Day Care and Learning Center, has filed a request for a new trial, said his lawyer James Sultan of Boston.

"Basically the claim is he didn't get a fair trial," said Sultan, declining to comment further because the case has been impounded.

District Court Judge Michael Brooks, who sentenced Garcia in August to two to 2 1/2 years in jail for three counts of indecent assault and battery on children, has ordered all court records for the case to be kept out of the public eye.

Deborah Propp, an administrative attorney with the state district courts, said Brooks did not leave any public explanation for impounding the documents. He was on vacation this week and unavailable for comment.

Three young boys testified against Garcia during a June 2003 trial in Fitchburg District Court about abuse that happened a year earlier inside the day care center.

A fourth case was later dismissed at the request of prosecutors.

He said the office of District Attorney John Conte responded to his request for a new trial last week. Garcia's father, Frank Garcia, Sr., refused comment when reached at his Fitchburg home. David Porter of Lunenburg, foreman of the six-person jury which convicted Garcia, declined to speak about the trial. The other five jurors were unable to be reached this week.