Shared and Posted: Wednesday, November 13, 2013 3:00 am via the Lynn Daily Item

SALEM — A judge said he will rule Nov. 20 on whether to dismiss charges against Ernesto Gonzalez, a Lynn man found incompetent to stand trial for allegedly kidnapping his 5-year-old son in 2008.

“If (the judge) follows the case law precedent and applies it to the statute, then he must dismiss,” defense attorney Russell Sobelman said outside Salem Superior Court Tuesday. “If there is no case law on point and he goes solely by the statute, then he has more discretion.”

Gonzalez, 41, was charged with parental kidnapping and misleading investigators in the disappearance of his 5-year-old son Giovanni in August 2008.

Giovanni was reported missing by his mother, Daisy Colon, on Aug. 17, 2008 after she went to pick the child up from a pre-arranged visit at his father’s apartment on Brightwood Terrace. Colon found no one at the apartment, and, after attempting for several hours to locate her son and Gonzalez, she called police.

Gonzalez denied being with Giovanni all weekend, but witnesses testified to seeing the two together. Gonzalez then told a reporter he killed and dismembered the boy’s body, and police later found traces of the boy’s blood on a knife, on the floor and on a cleaning can in the apartment. But Giovanni has never been found. Colon has previously told The Daily Item she thinks Gonzalez may have conspired with an accomplice to kidnap and transport Giovanni out of the country, then hide him until father and son could be reunited.

At issue Tuesday was a state law that allows defendants who have been declared incompetent to stand trial to file for charges to be dismissed if the defendant has served at least half the maximum sentence they would have received if convicted.

Sobelman argued Gonzalez had reached that point, having been held for five years: half of the 10-year sentence for a conviction of misleading investigators, the charge Gonzalez faces with the longest jail time. Sobelman also argued Gonzalez’s mental health was unlikely to improve.

“Every documentation shows it appears to be a spiraling situation with his mental health,” Sobelman said. “His condition seems to be deteriorating.”

But Essex Assistant District Attorney Jean Curran argued Gonzalez’s mental competency had only become an issue in 2010. Doctors have evaluated Gonzalez several times and, last month, Judge Timothy Feeley accepted a joint recommendation from Sobelman and the Commonwealth that Gonzalez be ruled incompetent for trial.

Curran said Tuesday that it was “premature” to have the charges dismissed so soon after that ruling, suggesting the time considered in regards to the state law should be calculated from the time the defendant was found incompetent, not the time the defendant was incarcerated.

Salem Superior Court Judge John Lu said he would not dismiss the charges Tuesday but would take the matter under advisement and issue a ruling Nov. 20.