Pubdate: Thu, 21 Aug 2014
Source: Boston Herald (MA)
Copyright: 2014 The Boston Herald, Inc
Contact:  http://news.bostonherald.com/
Details: http://www.mapinc.org/media/53
Note: Prints only very short LTEs.
Author: Bob McGovern

McGovern: JUDGE'S RULING THAT DRUG DEN NO 'ENDANGERMENT' TO CHILDREN CONFOUNDS

Here's a mind-blower from the halls of justice.

Johanny Hernandez kept her two young children in a Mattapan apartment
allegedly filled with heroin and cocaine, and equipped with a
surveillance system to guard the operation. Yet a Superior Court judge
has ruled that Hernandez did not recklessly endanger her kids -
despite a flood of evidence showing a well-orchestrated drug operation
in the apartment.

"The reckless engagement statute ... does not criminalize foolish,
reckless, or negligent parenting," wrote Superior Court Judge Peter
Krupp. "It does not criminalize neglect of a child or extraordinarily
poor role modeling. It does not even criminalize the use of a child to
aid in the distribution of drugs. ... (I)t is hardly self-evident that
a person who sells drugs out of her house is likely to be robbed, and,
if robbed, that her children will be physically or sexually harmed
during the robbery."

The problem with the case, according to Krupp - a seasoned litigator
who was appointed to the bench by Gov. Deval Patrick in 2012 - was he
didn't think the grand jury that indicted Hernandez had heard enough
evidence to prove she was putting her children in any danger.

Krupp wanted prosecutors to show that Hernandez's kids - who cops say
are between 7 and 10 years old - faced a "substantial" risk of
sustaining a "serious bodily injury" in the alleged drug den.

Yet court documents indicate that one of Hernandez's children once
opened the door for an undercover agent and led him upstairs to meet
Alex Santana - the alleged leader of the "drug organization."

Needless to say, Suffolk prosecutors think Krupp got it all
wrong.

"In the past five months alone, four defendants have been convicted of
murders in Boston committed in the course of drug-related robberies,"
said Jake Wark, spokesman for the Suffolk District Attorney Daniel F.
Conley's Office.

"The drug trafficking enterprise in this case was significant, ongoing
and high-level, so much so that it employed a surveillance system to
check for armed gunmen," said Wark. "We believe this inherently
dangerous business posed a substantial risk to the children living in
its midst."

Aside from the obvious perils of drug trafficking, Wark pointed out
that the drugs allegedly kept in the Mattapan apartment also posed
dangers to the kids.

I spoke with a couple of criminal defense lawyers about Krupp's
ruling, and not surprisingly, they thought the prosecutors blew their
own case.

"It doesn't appear that evidence was there," said David Yannetti, who
reviewed the decision. "If they had included some testimony that an
undercover officer saw drugs unattended, in a child's reach, that
would have been enough."

Kathleen Celio, the lead prosecutor in the case, didn't provide
specific examples, the filings show. Instead, she relied on the expert
testimony of a Boston police detective, who listed the dangers that
generally follow the drug trade.

"There has to be actual evidence of a child being in danger," said
lawyer Randy Chapman, who was not involved in the case. "You can't say
kids are automatically in danger in those situations. That's up to the
Legislature, not the judge."  
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