Judge: Will rule on Gonzalez after reviewing time served

SALEM – A judge said he needed an official count of how long Ernesto Gonzalez has been behind bars before ruling whether charges against the Lynn man, who was found mentally incompetent to stand trial for allegedly kidnapping his 5-year-old son in 2008, can be dismissed.
“(The Department of Corrections is) feeling some time pressure, and I think that’s a legitimate concern and they need to be right about the time calculation,” Salem Superior Court Judge John Lu said late Wednesday afternoon.
Lu continued the hearing on whether to dismiss the charges against Gonzalez until this morning.
Ernesto Gonzalez was charged with parental kidnapping and misleading investigators in the disappearance of his 5-year-old son Giovanni in August 2008. Gonzalez was the last person seen with the child, and Gonzalez later told a reporter that he killed and dismembered the boy. But Giovanni has never been found, and the boy’s mother believes he is still alive.
At issue Wednesday was a state law allowing defendants who have been declared incompetent to stand trial to file for dismissal if the defendant has served at least half the maximum sentence he or she would have received if convicted.
Defense Attorney Russell Sobelman argued in a hearing last week that Gonzalez had reached that point, having been held for five years – half of the 10-year sentence for a conviction of misleading investigators.
But Essex Assistant District Attorney Jean Curran noted at that hearing that Gonzalez had only been found incompetent for trial last year. A judge only accepted that finding in October. Curran questioned whether the time considered in regards to the state law should be calculated from the time the defendant was found incompetent, or the time the defendant was initially incarcerated.
Curran said Wednesday morning that Gonzalez’s mental health should determine from which date the time is calculated.
“If he cannot be restored to competency, then I agree that the computation should start from the start of the case itself,” Curran said. “But if he can be restored,” Curran said, the time credited under the state law for dismissal should be calculated from the date of the ruling that found Gonzalez incompetent.
Lu requested the Department of Correction calculate how many days Gonzalez had been incarcerated.
When the information hadn’t been provided by the end of the courtroom day, Lu ordered the hearing continued to 11 a.m. Thursday. Neither Sobelman nor Curran objected, with the latter only requesting that any updated reports on Gonzalez’s mental health be included in the court file.
Outside the courtroom, Gonzalez’s daughter Arianne Charlton, 23, said she didn’t know what to think about whether her father was mentally competent.
“Part of me thinks he could be, another part thinks not,” Charlton said, noting her father had a history of mental illness. She acknowledged she did not know Gonzalez well, meeting him when she was 11-years old in 2001 and then reconnecting with him in 2007.
She said Gonzalez showed her a picture of Giovanni in 2007.
“He said Giovanni was my cousin,” Charlton told reporters.
But Charlton said she absolutely believed Giovanni was alive. She said her father was not capable of killing the child, as Gonzalez has claimed. Asked why he would confess, Charlton suggested, “maybe because he wanted it all to stop.”