By Josh Resnek
Former Superintendent of Schools Fred Foresteire was released from jail last week after serving 19 days of a 90-day suspended sentence following his conviction by a Malden District Court jury of indecent assault and battery last month.
A single judge of the Massachusetts Appellate Court James Milkey ordered Foresteire released after ruling that he could remain free while he appeals conviction.
Judge Milkey agreed that the crime Foresteire was convicted of was serious but that he did not believe he was a flight risk. Also, Judge Milkey described Foresteire as “a seventy-nine year old man with serious health issues” who “did not pose a particular danger to the community so significant to justify his continued incarceration pending appeal.
“Accordingly, the execution of the defendant’s sentence is stayed pending appeal,” Judge Milkey ordered.
Foresteire was released from the Billerica House of Correction where he had been serving his sentence.
A District Court jury convicted the seventy-nine year old Foresteire of indecent assault and battery for offenses involving a former co-worker. He was sentenced to 18 months in the House of Correction, with ninety days to serve, the rest suspended.
He later plead guilty to two additional charges of indecent assault by two other women who worked for the former superintendent of Everett’s public schools.
Judge Milkey ruled that the stay is conditioned on the defendant promptly prosecuting his appeal without undue delay.
The average time for a fast track appeal with the Appellate Court is 12-18 months.
Should the appeal fail, Foresteire would be forced to comply with the conditions of the stay, that is, the stay of execution keeping him out of jail would be immediately expire.
He could, at such a time, be returned to the House of Correction to serve out the remainder of his sentence.
Judge Milkey’s ruling contested the February 15, motion filed by Foresteire for a motion for a stay of execution.
District Court Judge Emily Karstetter found that the defendant had not “articulated an issue which is worthy of presentation to an appellate court.”
Judge Milkey conditionally rejected Judge Karstetter’s decision.
He concluded “that the defendant is entitled to a stay of his sentence.
Judge Milkey wrote:
“When a defendant seeks a stay of his sentence pending a appeal, there are two main categories of considerations that govern the exercise of the single justice’s discretion: those relating to the likelihood of the success of the appeal on the merits, and those relating to security.”
Judge Milkey detailed what Foresteire’s motion for a stay had articulated. That he would be spelling out numerous arguments that he intended to raise on appeal.
Judge Milkey detailed four of Foresteire’s arguments.
“These include the following: 1) the judge improperly denied the defendant’s motion to subpoena the victim’s medical records. 2) the judge erred in designating the victim’s friend as the first complaint witness over the victim’s doctor, 3) the judge improperly declined to declare a mistrial after the victim testified as to what she told her doctor in violation or a pre-trial order regarding first complaint testimony, and 4) several arguments that the jury instructions were improper.”
Judge Milkey appeared to agree with Judge Karstetter “that these appellate arguments are not particularly strong.”
“However, that is not the standard. Rather, the defendant need only demonstrate ‘at least one appellate issue of sufficient
heft that would give an appellate court pause. In my view, the defendant has met this “not onerous bar.”
Despite the stay, Foresteire remains free on the same conditions of release imposed prior to his conviction, to stay away from the victim, his former place of employment, and any witnesses.
If Foresteire does not comply with the conditions of the stay, the Commonwealth can move to revoke the stay in the District Court.
According to several criminal attorneys familiar with the appeals process, the likely hood of Foresteire returning to jail after the appeal is completed is slim.
“He will be almost 81. He’s in poor health. He will likely finish his sentence at home if he loses his appeal,” a local criminal attorney told the Leader Herald.