SJC reinstates kidnapping rap on Gonzalez

LYNN – The state’s Supreme Judicial Court reinstated Wednesday a parental kidnapping charge on a Lynn man whose 5-year-old son, Giovanni, went missing in August 2008. He has never been found.Ernesto Gonzalez, who has pleaded not guilty to all charges, remains held at the Middleton Jail on a charge of misleading a grand juryThe boy’s mother, Daisy Colon, said Wednesday she was pleased with the court’s ruling, and that she believed Gonzalez’ prosecution would aid in the search for her son, even though he is not being charged with Giovanni’s disappearance.”I’m very happy with the results,” said Colon. “It will help the search, but also help the other parents if they happen to be in this situation as well.”Colon said investigators are still actively searching for her son, who would be 9 years old now. A poster in the lobby of the Lynn Police department shows the boy at age 5, when he went missing, along with a photo of what he might look like now. The East Boston resident has been working with The Center for Missing and Exploited Children to find Giovanni since his disappearance.”I believe with all my heart he is still alive,” she said. “I understand there have been some recent tips, but I don’t know the details.”The decision, written by Justice Barbara Lenk states that a parental kidnapping charge requires that a person hold a child younger than 18 from his or her lawful custodian “without lawful authority.” The court cited a state law that the children of unmarried parents be automatically placed into the custody of the mother, “even after paternity is established.”Gonzalez had challenged the constitutionality of that law, but the court said that challenge “need not be considered” in their decision.Lenk wrote that Gonzalez had been “absent” in Giovanni’s life for an entire year before seeking joint custody of the boy in June 2008. The court noted Gonzalez “first sought out [Colon’s] permission, in apparent recognition of her role as custodial parent.””In any event, we would be loath to permit a defendant to raise an as-applied constitutional challenge? in the circumstance presented by this case. “To hold otherwise would allow unmarried non-custodial fathers simply to take their children, without judicial process? in the subsequent prosecution for parental kidnapping,” the document states.Essex District Attorney Jonathan Blodgett said in a statement that he welcomed the reversal so his office could “proceed with the parental kidnapping charge” against Gonzalez.But defense attorney Russell Sobelman of Lynn said the parental kidnapping charge is a non-issue compared to Gonzalez’ charge of misleading a grand jury because he has already been held in jail longer than the maximum sentence for that crime.”Even if he was guilty, and I’m not saying that he is, he’s already served the time. It’s really the other charge that matters,” Sobelman said.Gonzalez’ next court date, which Sobelman said is not currently set, will be for a hearing on “criminal responsibility and/or competency.””He does have serious mental health issues,” Sobelman said.Giovanni was reported missing by Colon on Aug. 17, 2008 after she went to pick him up from a pre-arranged visit at his father’s apartment on Brightwood Terrace and found no one there. After attempting several hours trying to locate her son and Gonzalez, she called police.Officers eventually entered the apartment through a window and found Gonzalez locked in a bathroom. He denied being with Giovanni all weekend, but witnesses testified to seeing the boy and police later found traces of the boy’s blood on a knife, the floor and a cleaning can. Giovanni has never been found.Gonzalez published a confession on Nov. 27, 2008,, in which he claimed he killed and dismembered the boy, dumping the parts in various Lynn dumpsters, but he is not being charged with the boy’s disappearance. Colon has previously told the Daily Item she thinks Gonzalez may have conspired with an accomplice to kidnap and transport Giovan