Thursday, October 25, 2007

Pedophile gets 25 years under 'Jessica's Law'

A 62-year-old Sterling Heights man will serve at least 25 years in prison after he lost his argument against a new law that requires such a sentence for molesting a 7-year-old girl. Donald E. Fitzpatrick received a 25- to 40-year prison sentence Wednesday under "Jessica's Law," a law that took effect in September 2006 to more harshly punish pedophiles.

He is the first defendant in Macomb County and may be the first in the state to be sentenced under the law, part of which requires a 25-year mandatory penalty to an adult who sexually assaults a child under 13.

If the new law was not in effect, sentencing guidelines would have showed a range of nine to 15 years in prison, although circuit Judge Matthew Switalski could have exceeded guidelines if he found "substantial and compelling reasons."

One of Fitzpatrick's attorneys, John Royal, argued that the law is unconstitutional, but Switalski of Macomb County Circuit Court disagreed. He compared the mandatory minimum sentence to habitual offender status and third-time drunken driving cases that elevate to felonies, in which a jury sorts out the facts and the judge determines the sentence.

Switalski said little to Fitzpatrick before sentencing him.

"Things speak for themselves," Switalski said.

A jury in August found Fitzpatrick guilty of first-degree criminal sexual conduct for digitally penetrating the girl about Sept. 30, 2006, in the living room of his Takoma Drive home. The girl is the granddaughter of a longtime female companion. Two other girls and three adults testified of sexual abuse at Fitzpatrick's hands as "prior acts" evidence.

The jury acquitted him on a second count of the same charge.

Assistant Macomb prosecutor Rebecca Oster called Fitzpatrick's actions a "prime example of predatory behavior." Fitzpatrick gained the trust of victims by ingratiating himself in his girlfriend's family by buying little girls expensive gifts, including a horse for one of them, she said.

"He has special interest in children aged 7 to 10," Oster told the judge. "He acts out when he thinks he can get away with it. He used his position of trust as a trusting grandfather figure."

The victim's mother said no one in the family suspected the abuse until the first girl revealed it, followed by the others.

"If I would've known (about the abuse), he would not be here today," the woman said. "He was accepted by the entire family as a grandfather."

She said Fitzpatrick was at the hospital for the birth of her children, including the victim.

"He held them the day they were born," she said.

The victim's mother said Fitzpatrick's assault has negatively affected her daughter, now 8, who is receiving counseling.

"She cries all the time and doesn't want to be a little kid," she said. "We're told she suffers from post-traumatic stress syndrome."

A letter by the victim, now 8, was read in court.

"I don't want him to do this to anyone else," her letter said. "I want him to stay in jail until he dies."

During arguments prior to the judge issuing the sentence, defense attorney Royal also argued that it was not established "on the record" that Fitzpatrick is older than age 17, a requirement under Jessica's Law.

Judge Switalski asked Fitzpatrick his age, at which point Royal told him not to reply. Oster intervened and noted that Fitzpatrick was born Oct. 20, 1944.

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