Prosecutor error led to tossed case

NASHUA – A simple mistake in writing the sexual assault charges against a Massachusetts man led to the case being dismissed, not weakness in the evidence, the prosecutor said Thursday.

The trial of Mark Kerner, 48, of 273 Pleasant St., Brockton, Mass., ended Tuesday with all charges dismissed because of mistakes in the wording of the indictments, Assistant Hillsborough County Attorney Cassie Devine said Thursday.

“I drafted the indictments incorrectly . . . It’s my mistake,” Devine said.

The Telegraph incorrectly reported Thursday that based on incomplete information, Judge Diane Nicolosi had dismissed the charges for lack of evidence.

The alleged victim, now 22, testified persuasively that Kerner molested her on several occasions at her former home in Nashua, said Devine and a juror in the case, Michael Gravel, of Nashua.

Gravel brought the dismissal to the attention of The Telegraph after the trial ended, and he said he was disturbed to see Kerner leave the courthouse Tuesday afternoon after the charges were thrown out.

“Watching him walk out the door, you just want to throw up. It just makes you sick to think that he might have gotten away with it,” Gravel said. “It’s disgusting.”

Kerner remains free on bail and faces trial in another related case involving a younger girl in the same household. Prosecutors claim that he molested this girl, now 16, on various occasions from 1997 through 2000, when she was 5 to 8 years old. He faces five counts of aggravated felonious sexual assault in that case, and Devine has filed notice that she will seek a sentence of at least 25 years in prison if he’s convicted.

Devine said she is still reviewing the charges in that pending case, to make sure that no similar problems arise. Kerner’s trial in that case is scheduled to begin Sept. 22 but will likely be postponed for reasons including the unavailability of a key witness, Devine said.

Kerner has been registered as a sex offender since 2002, after he completed a nine-month jail sentence for a 2001 misdemeanor sexual assault conviction in Nashua, police said at the time of his arrest last year.

Kerner was tried this week on several felony sexual assault charges alleging that he had repeatedly molested a girl on various occasions in the late 1990s through 2000. Kerner was a neighbor of the girls’ family, and occasionally babysat children in the household and lived in the house for a time while he was having trouble in his own home, Devine told jurors.

Kerner’s lawyer, public defender John Newman, moved to dismiss the charges after Devine rested her case, thus ensuring that Kerner could not be tried again on the same charges.

Two of the indictments had a word missing that incorrectly limited the charge, while two others incorrectly put the alleged assaults years earlier than they took place, Devine said. Two other charges were dismissed because the evidence supporting them depended largely on evidence relating to the other charges, and they couldn’t stand on their own, she said.

Devine said she is confident that Nicolosi “was correct in all her rulings,” and had no choice but to dismiss the charges.

“The police did a bang-up investigation,” Devine added.

Jurors were told only that the case had been dismissed on a “legal technicality,” Gravel said.

Though he was interested to hear more, Gravel said he thought the prosecution’s evidence suggested Kerner was guilty as charged.

The girl was struggling with an unsupportive and impoverished family, in which even food, clothing and shelter were uncertainties, the juror said, so it’s understandable that she didn’t report the alleged abuse when she was young, at the time that it happened.

“It made sense to me,” Gravel said, echoing Newman’s opening statement, in which he argued that the allegations “make no sense.”

“She was in a situation where she really couldn’t talk to anybody,” he said. “What motive would she have to put herself out there . . . . What reason would she have to lie?”