Wednesday, August 31, 2011

Convicted rapist dad appeals sentence (Newburyport, Massachusetts)

Quibbling over Daddy's stun gun, and whether it worked or not? This is bullsh**. A waste of the court's time. Leave rapist dad PATRICK MCMULLEN in prison where he belongs.

August 31, 2011

Abusive father appeals sentence

Man who raped three daughters attempts to overturn convictions

By Dave Rogers
Staff writer The Daily News of Newburyport Wed Aug 31, 2011, 03:59 AM EDT

SALISBURY — Sentenced to life behind bars in 2005 for repeatedly raping his three daughters for years, Patrick McMullen of Salisbury will go before an appeals court judge in Boston next month hoping to overturn his convictions on more than 20 charges.

McMullen, then 43, was found guilty of child rape, assault on a child and possession of a stun gun after Essex County prosecutors proved he kept his ex-wife, Christine McMullen, and his six children virtual prisoners in the Route 1 commercial building he called home.

His children, ages 8 to 17 at the time, were not allowed to leave the property even for medical care or to attend school in what prosecutors contended was a hellish experience dating to at least 1995.

It was only after his then-wife sought a restraining order on him that McMullen's actions drew the attention of authorities.

McMullen was eventually arrested in May 2001 and a trial date set in 2002. But numerous delays, one as a result of the withdrawal of McMullen's attorney and then again when new rape charges were filed, prolonged the pain felt by his family.

McMullen's case went before a 14-member jury in February 2005 in Salem Superior Court. After quick deliberations, the jury returned with multiple guilty verdicts. Essex County prosecutor Katie Tuttman called the case the "most horrific" she had ever worked on. McMullen was represented by Michael Phelan.

When sentencing McMullen to life in prison at MCI Cedar Junction in Walpole, Judge Howard Whitehead said he wanted to impose the harshest penalties possible for his actions, saying he violated one of society's most coveted values, the trust of children. As part of his life sentences, McMullen was informed that he would be eligible for parole in 40 years.

But on Sept. 15, McMullen, who was born in Beverly and formerly lived in Amesbury, will be appealing his convictions inside the Massachusetts Appeals Court in Boston. McMullen filed his intent to appeal just weeks after his 2005 convictions and has been waiting more than six years for his day in court.

In his appeal brief, filed in January 2010, McMullen's then-attorney David J. Barend argued that Whitehead hindered McMullen's defense when he decreased the number of sitting jurors from 16 to 14. Barend also appealed McMullen's stun-gun conviction, saying that the gun confiscated by police was inoperative at the time of its seizure.

According to the appeal brief, during jury selection, Barend was allowed a total of 16 peremptory challenges, meaning he could ask for the dismissal of 16 jurors if he felt they might not be able to render an impartial verdict. By the time 14 jurors had been accepted, a long and arduous process that had taken more than two days and exhausted one jury pool, Barend had used up his 16 challenges.

In an effort to keep the impending trial from overlapping on school vacation week and to avoid a forecasted snowstorm, Whitehead decided to cut the number of jurors from 16 to 14.

Barend objected to Whitehead's decision, arguing that he would have used his peremptory challenges differently had he known Whitehead was going to reduce the number of jurors.

In his appeal brief, Barend said he had been strategically "scrimping and saving every single challenge that I've had and literally used my last one at the end."

By doing so, Barend argued Whitehead "erroneously denied McMullen his right to strategically exercise his peremptory challenges, and thereby committed reversible error."

In the commonwealth's rebuttal brief, Essex County Assistant District Attorney David F. O'Sullivan said Barend actually benefitted by Whitehead's decision to reduce the number of jurors because he was allowed two additional peremptory challenges.

O'Sullivan argued that Barend had failed to prove that Whitehead's decision to reduce the number of jurors had adversely affected his defense. He also argued that Barend had failed to show an error, defect or irregularity of the jury selection.

"In stopping at 14, the judge permissibly acted upon scheduling concerns," O'Sullivan wrote.

As to the stun-gun conviction, which resulted in a two-year sentence, O'Sullivan disputed Barend's contention that the stun gun was inoperative. O'Sullivan said the gun was tested by a Newburyport police officer and was only inoperable after the police officer removed the gun's battery, which was inside the gun when seized by police.

When McMullen goes before an appeals court judge, he will not be represented by Barend. In October 2010, Barend withdrew as McMullen's counsel and was replaced by Dana J. Gravina in February 2011. A call to Gravina's New Bedford office was not immediately returned.

Former Daily News reporter Jessica Benson contributed to this report.