SALEM — The father of a Boston boy missing since 2008 was declared incompetent Thursday to stand trial in the child’s disappearance, raising the possibility that charges will be dismissed because he has already been in jail for years.
In a 10-minute hearing, Judge Timothy Feeley declared Ernesto L. Gonzalez Jr. incompetent to stand trial on charges of parental kidnapping and misleading investigators, as well as a separate assault and battery case, because of a debilitating mental illness.
Gonzalez, 41, has been in jail or in a secure hospital since the August 2008 disappearance of his son, Giovanni, during a weekend visit with his father in Lynn. Three months after his arrest, Gonzalez confessed to a Globe reporter that he killed the boy. Police later discovered a bloodstained knife, but Gonzalez has never been charged with homicide and Giovanni has not been found.
The brief hearing in Essex Superior Court stood in sharp contrast to the frenzied land and air search for Giovanni just before his first day of kindergarten. But the judge, the prosecutor, and defense lawyer agreed that Gonzalez is unfit for trial after they reviewed multiple medical reports that said Gonzalez rarely answers questions, rants about unrelated matters, and suffers wild delusions about people around him.
Whether Gonzalez may ever face trial is unclear. The defense is pushing to dismiss the charges under a state law that allows dismissal because he is incompetent and has served more than half the maximum sentence he would have received if convicted. But the prosecution says the true extent of Gonzalez’s mental illness is unknown, so it is possible he could improve. A hearing on dismissing the charges is set for Nov. 12.
“Clearly, he’s incompetent,” Russell C. Sobelman, Gonzalez’s court-appointed lawyer, said after the hearing. “An attorney can’t go to trial unless his client is competent and can assist him with the trial.”
Prosecutor Jean Curran declined to comment after the hearing, but a spokeswoman for her office said prosecutors are still pursuing charges against him. “It’s not over,” said Carrie Kimball Monahan, spokeswoman for the Essex district attorney’s office.
Even if the charges are dismissed, Sobelman said, it is unlikely that Gonzalez will get out of jail soon because he has other cases pending.
Gonzalez has been in Bridgewater State Hospital since December, after he allegedly attacked a jail guard, and a Brockton judge has ordered him to stay there through June and to take antipsychotic drugs. Gonzalez is also facing assault and battery charges stemming from an October 2011 attack on a fellow inmate in which he allegedly smashed the man’s face against a metal sink.
If the parental kidnapping and lying charges are dismissed, prosecutors could try to have the charges reinstated if Gonzalez is someday found competent. Gonzalez has pleaded not guilty to those charges.
But Giovanni’s mother, Daisy Colon, said the options offer no solace. She believes Giovanni is still alive, and has urged officials to search for him.
In a phone interview Thursday, she expressed frustration the criminal justice system appears more focused on the rights of Gonzalez, the defendant, than on those of her son.
“I don’t understand it,” she said. “We’re talking about a 5-year-old boy. . . . Where are my son’s rights?”
Gonzalez had not seen Giovanni, then 5, for about a year when he filed a lawsuit seeking joint custody in June 2008. Colon had stopped allowing visits because she thought Gonzalez disciplined the boy too harshly, but she allowed them to resume after Gonzalez filed suit and because she wanted Giovanni to know his father.
She did not know that during their time apart Gonzalez was hospitalized in April 2008 at a detox center for an overdose of Tylenol and Advil, according to a psychological report in court records.
Giovanni had two visits with his father without incident.
Then, on Aug. 17, 2008, Colon went to pick up Giovanni and nobody answered the door. Gonzalez at first denied having the boy, but neighbors and other witnesses told police that they had seen them together.
Since then, she said, she has kept searching, in hope that she would find answers that have so far eluded investigators.
“What about my son?” she said. “There is no consolation.”Maria Sacchetti can be reached at firstname.lastname@example.org. Follow her on Twitter @mariasacchetti.