THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

SJC allows state’s case against Marzilli

By John R. Ellement
Globe Staff / June 10, 2010

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The state’s highest court ruled unanimously yesterday that Middlesex prosecutors can pursue attempted indecent assault and battery charges against former state senator J. James Marzilli.

The Supreme Judicial Court pointed out that while Marzilli is not believed to have actually touched his victims, there is enough evidence for prosecutors to show that he tried to do so.

“The fortuity that the defendant failed in his attempt to complete a crime does not absolve him from responsibility for it,’’ Chief Justice Margaret H. Marshall wrote for the court.

In court papers, Middlesex District Attorney Gerard T. Leone Jr.’s office has said that Marzilli should be imprisoned if convicted.

Marzilli’s attorneys had argued that the criminal case should be dismissed because of a 1974 Appeals Court case that found no support in state law for the prosecution of someone for attempted indecent assault and battery.

But Marshall said the 1974 ruling was wrong and will no longer be followed by Massachusetts courts. She said the Legislature has repeatedly made such an act a crime.

“If the Legislature had intended to exclude indecent assault and battery from operation of the attempt statute, it would have done so directly,’’ Marshall wrote.

Marzilli, then a Democratic state senator from Arlington, was arrested by Lowell police in 2008 after he allegedly made indecent sexual advances to four women on June 3. He later resigned from office.

The appeal to the SJC involved only one of the four alleged victims.

Marzilli’s lawyer, Terrence Kennedy of Everett, has said that Marzilli suffers from a major mental illness.

Kennedy said by phone yesterday that he welcomed the SJC ruling because it clears the way for Marzilli to challenge the case before a jury.

“We are pleased to have it resolved so that we can move toward his exoneration,’’ said Kennedy.

Kennedy said the case likely will probably go to trial this fall.

In a statement, Leone said that his office is also ready for the trial to begin.

John Ellement can be reached at ellement@globe.com.

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