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The Boston Herald

April 18, 1998 Saturday

TANGLED WEB: Lawyers: Conviction looks like a longshot

By MICHAEL LASALANDRA

Criminal defense lawyers say it could be very difficult to get a conviction on a kidnapping charge against Stephen Fagan, accused of swiping his own children from their mother's custody.

"It's difficult to get a conviction if the parent (has) kidnapped out of love and concern for a situation the child is in," said John Markham, a Boston criminal defense attorney and former prosecutor with the U.S. attorney’s office.

"Juries will usually acquit in these cases," said Boston defense attorney Harvey Silvergate. "Regardless of what the law says, juries aren’t easy to convince that they should convict parents of felonies for taking their own children, for whatever guided or misguided reasons."

Under Massachusetts law, the penalty for kidnapping one's own child is much less severe than that for kidnapping a stranger.

Kidnapping a stranger carries a maximum sentence of 10 years in state prison but the maximum sentence for a parent who kidnaps a child is one year in the house of correction.

That increases to five years in state prison if the child is transported outside Massachusetts, said a spokesman for the Suffolk County district attorney’s office.

While transporting a kidnapped victim across state lines is a federal crime, it is unlikely the federal government would exercise jurisdiction, said Boston criminal defense attorney J. Albert Johnson.

Markham said he defended parents accused of kidnapping their own children from a cult a few years back, and got an acquittal.

"The law used to be that natural parents could not even be charged under federal law and a lot of states went along with that," he said. "It reflected a predisposition against getting involved in family disputes."

"The law was changed in the 1970s but it is still very difficult to get a conviction," he said. "The natural law of father-mother devotion overrides the statute unless the parent is kidnapping the child for some bad reason. But if the parent loves the child, it is hard to convict."