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Did Mass. Man Get Away With Rape? Man Accidentally Freed Won't Return to Prison
Mass. Court Says Man Who Avoided Prison for 16 Years Because of Error Is Off the Hook

By SCOTT MICHELS
Nov. 9, 2007
ABC News

For the last 16 years, Vith Ly has lived what his lawyers say was an ordinary, quiet life in his adopted hometown of Lowell, Mass. The Cambodian immigrant paid his taxes, worked steadily as a machine operator and computer board manufacturer and raised three children, according to court records.
But there was a problem: Vith Ly was supposed to have been in prison. Ly, now 46, was sentenced in 1990 to 20 years in prison for assaulting, kidnapping and raping a co-worker. A judge ordered him released after two months while he appealed his conviction. When his appeal was rejected, Ly should have returned to prison. But because of an "inadvertent error," police and prosecutors never sent him back, and Ly never
took it upon himself to surrender. Since then, Ly has continued to live in Lowell and hasn't tried to avoid the police.

As first reported by The Boston Globe, prosecutors only realized Ly never served his prison term -- and tried to send him back -- after police did a routine license plate check earlier this year and arrested him for failing to register as a sex offender, court records state. The Massachusetts Supreme Judicial Court ruled this week that Ly will not have to serve the remainder of his sentence, saying it would be unfair to force him to return to prison. Under sentencing guidelines in effect at the time, Ly would
have been eligible for parole after two years. Reinstating the sentence "after an unexplained delay of 16 years & would violate due process and principles of fundamental fairness," Justice John Greaney wrote
for the unanimous court. The ruling, which cannot be appealed, has angered both the district attorney's
office and women's rights activists, who said the unnamed victim in the case has been ignored.

"I find it very disturbing that a sex offender is being released not only without serving his term but within the period of his original sentence," said Kim Gandy, president of the National Organization for Women. "This is a very serious crime." Toni Troop, a spokeswoman for Jane Doe, a Massachusetts organization that works on behalf of victims of domestic violence and sexual assault, said, "The question that has gotten lost is where is the justice for the victim? He committed a crime and should be held accountable for that crime. The fact that he got away with this does not dismiss the responsibility he has to society."

But the court found that Ly's personal rights trumped whatever debt he may still owe to society. "It is a basic principle that a defendant sentenced to incarceration has a due process right to serve the sentence promptly and continuously," Greaney wrote. The court said Ly had no responsibility to turn himself in, and laid the blame for Ly's predicament on the prosecutor's office. "If there is fault to be attributed," the court wrote, "it lies at the Commonwealth's doorstep." Middlesex County District Attorney Gerry Leone, who was elected in Nov. 2006, said in a statement, "The clock should not run out on a convicted rapist's debt to society and to the victim. While the district attorney's office, the court and the defendant all shared some responsibility for the failures in this case, the priority here should be achieving justice for the victim."

Ly, who moved to the United States from Cambodia in 1982 after his family was killed by the Khmer Rouge, is currently serving a six-month sentence for failing to register as a sex offender. He is eligible for parole next month, according to the Middlesex County prosecutor's office, but federal immigration authorities are likely to detain him after his release from state custody. An immigration court ruled in 2004 that Ly should be allowed to stay in the United States because of the possibility that he would be tortured if he returned to Cambodia. It was not immediately clear if immigration officials
would try to deport Ly, though his immigration lawyer said he hoped they would
not.

"He's straightened his life out," said Dan Cashman. "He's a productive member of the community. His family is completely Americanized. His kids grew up here and they need a father." According to court records, in 1990 Ly professed his love for a co-worker and asked her to leave her husband. When she refused, he raped her, according to papers filed by prosecutors. His lawyer at the time, David LiBassi, said Ly was in a relationship with the victim and did not rape her.

Since his rape conviction, Ly was arrested twice, in 1999 and 2001, for domestic assault and assault and battery, though one of those charges was dismissed. Despite those arrests, prosecutors apparently did not realize that Ly had never served his prison sentence for rape. Efforts to reach Ly's family and the victim
in his rape case Thursday were unsuccessful. Daniel Flaherty, Ly's appellate lawyer, said that while he sympathized with Ly's victim and her family, "I think ultimately this was the just result. I think
everybody has an interest in the system working right." "Justice has a funny way of surviving," LiBassi said. "I think that's what happened in this case."