Jimmy Carlino was 14 when he went to Boston to see a Yankees-Red Sox double header with family friend, Bob Oliva. That’s where he says Oliva raped him. The problem is that the alleged rape happened “on or about July 30 to Aug. 1, 1976.”
Bob Oliva is now 65, having retired from his position as basketball coach at Christ the King Regional High School.
Oliva, considered one of the pre-eminent high school coaches in the New York area for nearly three decades, won 549 games and five city championships in 27 seasons at Christ the King Regional High School, located in Queens. He stepped down last season, citing health problems stemming from the accusations.
Now he’s out on $10,000 bail, with orders not to have contact with Jimmy, who is now 48 years old. Why, after 34 years, did Carlino raise these accusations?
Carlino’s civil attorney, Mitchell Garabedian, said Carlino is testifying against Oliva “so the truth is revealed and to make the world a safer place for children.”
It seems a little late to worry about making “the world a safer place for children.” As for revealing the truth, that doesn’t require criminal charges.
If indeed Bob Oliva raped Jimmy Carlino in a Boston hotel room in 1976, then no amount of delay alters the fact that a horrible crime was committed. No one, certainly not me, can excuse such a heinous crime against a child. But accusations are easy, even when heinous. And 34 years late is a problem. Now there’s no evidence to show a crime occurred but for the word of a 48 year old. And there’s no evidence to defend against the allegations but for the word of a 65 year old.
This is why the law provides for a statute of limitations, because no one can muster evidence in defense of heinous accusations 34 years later. If defendants are entitled to defend, as is their constitutional right, then they no less permitted to be stripped of that ability by time than by anything, or anyone else. So why not here?
Massachusetts prosecutors said they were able to prosecute the 34-year-old case because the statute of limitations remained frozen while Oliva was living outside of the state.
Charles at Popehat did the research, and found Ch. 277§63 of the Massachusetts criminal code provides that the statute of limitations is “[t]olled when defendant is not usually and publicly resident” in the state. Well, that’s convenient. For the nonresident, no case ever dies in Massachusetts.
From the statute of limitations angle, this is a very broad conference of power on the prosecution, given that Oliva did nothing to conceal his whereabouts, and in fact was quite easily found should anybody so desire. From the prosecution’s position, they can’t be blamed for the delay, as there was no accusation until last year, when he reported the crime to Boston police for the first time. To the extent that Oliva’s defense is prejudiced by the delay, it’s clearly not their fault.
However, the problem with a 34 year old accusation goes beyond mere statute of limitations. Where a defendant is denied the ability to mount a defense against an accusation, whether heinous like this or not, it’s not merely a question of who is at fault. So Jimmy Carlino, who is not a state actor and for whom the state is not responsible, is the one who failed to timely report the crime to police. Bob Oliva is still left holding the defense bag. As appealing as the deprivation of the constitutional right to defend may be, it’s unclear how well it will play with a judge. It’s very hard for a judge to support the argument of someone who is alleged to have raped a 14 year old boy.
Consider how this plays out at trial.
Carlino: Bob Oliva raped me in 1976.
Oliva: No, I didn’t.
What’s a jury to do? On its face, the testimony should not be able to survive a trial order of dismissal, no matter how truthful Carlino sounds or how detailed his testimony. There is nothing about Carlino’s testimony that would make it sufficient to trump Oliva’s denial. But few judges would have the guts to toss the case, not when the allegations are of the rape of a child.
Of course, while this is not proof of anything, there appears to be no accusation by any other person of sexual impropriety against Bob Oliva, despite his being around young boys in locker rooms for decades,
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Is this a case you would consider taking?
Yes, I would.
I would too. The allegations are the rape of a child but to point out the obvious to a judge in a TOD motion in letters a foot high, figuratively, the child is in advanced middle age and a free agent for more than a generation when he decided accuse his putative rapist who he knew or should have known was working with boys, and lots of them, for that long or longer.
So what’s the putative victim’s motive? Oh besides making the world safe for children. The dumb things attorneys say and do.
Whether the story is true or not, follow the money. That’s what this is about and that’s all it’s about.
I always like to know when we’re just haggling over the price.
My position has always been a qualified one. Here, the issue isn’t what happened, but that even if it did, 34 years (without incident) is far too long. That’s enough of a reason for me.
And then there’s price, but no haggling.
Discovery would be amusing in a pathetic way.
On the matter of Judge’s “guts,” do you have any reason to believe that Massachusetts law supports your suggestion that the evidence (the victim’s testimony) is insufficient as a matter of law to support a conviction. I am pretty sure a judge would say, as the rest of your article does, that delay goes to weight, not admissibility, that credibility is a matter for the jury; and that the delay is not attributable to the Commonwealth.
So, my question is: are you arguing the law as it is, or for a change in the law? (I am not being rhetorical, I would genuinely like to know which you think it is).
It’s a fair point. You are right, the testimony of the victim would be legally sufficient, as a reasonable jury would be entitled to credit his testimony and reject the defendant’s denial (assuming he took the stand). My point is that, after 34 years and the impossibility of obtaining any defense evidence other than the defendant’s testimony (and theoretically requiring the defendant to testify or offer no defense at all), there is no evidence against him whatsoever except the testimony of the victim.
This would, as you note, satisfiy sufficienty and leave weight to the jury. I would contend that the jury should never get that chance, and so I advocate a change under these circumstances, arising only out of the absurd delay and denial to the defendant of his constitutional right to defend.
That statute tolling the statute of limitations when someone resides outside of Mass seems quite peculiar and apparently can be used quite perniciously.
As opposed to the benign tolling statute?
You’re right, they can all be used perniciously. For a minute there I had assumed that in an enlightened state like ny, there had to be some element of purposeful avoidance, but that’s not the case. I believe however, there are some safeguards in caselaw- cases like People v. Townsend and People v. Staley that hold that unreasonable delay in prosecution can constitute a denial of due process. I have no idea whether those cases apply only to a prosecutor or police department sitting on its ass for a number of years, or whether undue delay can be caused by an accuser just not accusing until he feels like it. I imagine that for the right price any accuser can find an expert to testify that the trauma of the crime was such that a particular delay was not unreasonable.
I believe that there is a two-prong test, unjustified delay (as in the defendant did not hide or hinder the forward progress of the prosecution) and prejudice.
Whether the story is true or not, follow the money. That’s what this is about and that’s all it’s about.
Except that he was a high school basketball coach, not exactly a big money earning position. “Follow the money” would only be valid if there was some independent source of funds.
I had that in mind too. Oliva is retirement age and may have substantial assets accumulated from his earnings. He may have a trust fund. Carlino may be delusional. Who knows?
And this is MA in which the diocese of Boston has paid substantial compensatory and punitive damages for molestations decades old. The precedent may factor into the reasoning somehow.
Who knows? His attorney apparently thinks this is worth his time and involvement. That tells me something too.
I doubt that the defendant-is-out-of-state tolling provision applies to civil cases.
Gee maybe they didn’t think of that.
Then again — maybe it does apply. Would it be any surpise?
I would be surprised if civil statutes of limitations were tolled when the defendant was out of state because those who make the laws—those with money and power—benefit more from a speedy running of limitations than from tolling.
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