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More than five years after a Boston boy named Giovanni disappeared during a weekend visit with his father, charges against the man could be dismissed because of mental illness.
The boy's father, Ernesto Gonzalez, was charged with parental kidnapping and misleading investigators, and has been in jail ever since. Giovanni has never been found.
Gonzalez's lawyer, Russell Sobelman, said he plans to argue for dismissal during a hearing Tuesday in Salem Superior Court. Giovanni's mother believes her son is still alive and being hidden somewhere by friends of Gonzalez.
Under a state law, defendants who have been declared incompetent to stand trial can move for dismissal if they have served at least half the maximum sentence they would have received if convicted.
Gonzalez has been in jail since August 2008, so he has already served more than half of the 10-year maximum sentence he faced. He was declared incompetent last month after a judge reviewed medical reports that said Gonzalez suffers from a serious mental illness and is unable to assist in his defense.
Giovanni's mother, Daisy Colon, said she believes Gonzalez has been playing the system.
"From Day One, it's been back and forth, back and forth. He's competent one day, then the next, he's not," she said.
Sobelman said that even if the charges are dismissed, Gonzalez will not be released from jail anytime soon because of two other pending criminal cases in alleged attacks on a fellow inmate and a guard. He has also been ordered confined to Bridgewater State Hospital under a civil commitment petition filed by psychiatrists there, Sobelman said.
Carrie Kimball Monahan, a spokeswoman for Essex District Attorney Jonathan Blodgett, said authorities have conducted an extensive search for Giovanni, locally, in Florida and outside the country.
"We continue to follow each and every lead as they are presented to us," she said.
She said that under the law, prosecutors cannot oppose a move to dismiss the parental kidnapping and misleading police charges because the "clock has run out on those charges." She said prosecutors would oppose any attempt to dismiss the unrelated assault charges against Gonzalez.
Giovanni was 5 and just about to start kindergarten when he disappeared.
Colon said she went to pick up the boy at Gonzalez's Lynn apartment after a weekend visit, but no one answered the door. Gonzalez initially told police he had not seen him that weekend, but witnesses said they saw the father and son together.
Several months after his arrest, Gonzalez told a reporter for The Boston Globe that he had killed his son, dismembered his body and disposed of body parts in trash containers throughout the city. A massive search for the boy turned up no trace of him, and Gonzalez was never charged with anything else.
Christopher Dearborn, a professor at Suffolk University Law School, said the law calls for dismissal in the Gonzalez case.
"The fact that they think he either may be dangerous to the community at large or may be a suspect or a target of an investigation that would carry a lengthier penalty is irrelevant under the law," Dearborn said.
Colon said she worries that if the charges are dismissed, they will not be reinstated even if Gonzalez is someday found to be competent.
"Then there's no justice for Giovanni," she said. "So anybody can go and do a crime, kidnap their child, get caught and spend five years saying, `I'm incompetent,' playing the system, then they'll drop the charges."
Colon believes her son is alive.
"I don't know exactly where he is ... but I believe 100 percent that he is alive," she said. "I pray for the people that do have Giovanni, that God will touch them and they will return Giovanni home."
This program aired on November 11, 2013. The audio for this program is not available.
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