BY DAN VALENTI

PLANET VALENTI NEWS AND COMMENTARY

(FORTRESS OF SOLITUDE, THE WEEKEND EDITION APRIL 22-4, 2022) — THE PLANET‘s foil, John Q. Public, based his criticism of our coverage of the Tucker Infanticide Case on the major premise that since we didn’t read the 17 pages, we therefore had it wrong. JQP challenged me to read the opinion and then report honestly if we stood by our coverage. If not, he wanted an apology.

• THE PLANET obtained a copy.
• We did so read.
• There is NO APOLOGY ISSUED.
• Not only do we stand by our words but we are morally bound to supplement them in this, The Weekend Edition.
• Veni, Vidi, Vici, Valenti.

Agostini’s 17 pages contain astounding revelations. They lead THE PLANET to emphatically call for the reintroduction of the case against Cassandra Barlow-Tucker. There must be a trial in this indescribably horrific case where, due to the neglect of all the adults in his life, a helpless infant died a tortuous death.

Consider:

• A baby died while in the foster care of Matt Tucker and Cassandra Barlow-Tucker of Adams.
• Between 2017 and the fostering of Kristoff Zenopolous, 10 months old when he died, the Tuckers fostered 20 children. This is in addition to two biological children of their own and two more foster kids that they legally adopted. Moreover, part of the testimony the judge ruled irrelevant was the finding of investigators that the Tuckers continued to accept “foster care” support money even after the two children were adopted.
  • Judge John Agostini noted that while accepting such money is “not illegal,” it is “not encouraged.” In plain English, moral persons of upright character would not accept the money under such false pretenses. This is a “not illegal” form of cheating the public treasury.
• In two months of “caring” for baby Kristoff, the Tuckers raked in $3,136.89 from DCF plus $243.53 for a clothing allowance. Moreover, investigators testified that the Tuckers received $1,054.36 “and that they were required to return such overpayments [quoting from Agostini’s ruling]. “In other words, they had defrauded the Commonwealth by intentionally accepting foster payments after the death of Kristoff. Document supporting these claims were also introduced as exhibits.” The judge said introducing such evidence tainted the grand jury. The judge ruled that the financial information irrelevant.
• THE PLANET strongly disagrees. We contend it is highly relevant, since, combined with the Tuckers’ penchant for serial, addictive fostering, suggests they were in it for the money. THE PLANET supports the Commonwealth’s inclusion of this evidence.
  • This ruling of the judge provides a way forward in pressing the same charges against the Tuckers. With a resubmission of the “relevant evidence” and the exclusion of the material Judge Agostini said polluted the minds of the grand jury, there’s a winnable case for the prosecution not only in securing a trial but one that is winnable.

• This brings to mind an important question: Did Judge Agostini make his decision primarily out of a dispassionate legal consideration or out of a need to embarrass Harrington? It’s a fair question, given the disregard the bench in general has for Harrington, an animus that achieved orbit after Harrington tried and failed to remove a judge from one of her cases. Judges are human beings. The D.A.’s actions in that case won her no friends on the bench.
• Agostini’s findings cite precedent in abundance, but precedent, as legal hawks know, is sometimes the technical buttress that supports (justifies, rationalizes) the morally insupportable. In history and in biography, when an earlier researcher publishes a misstatement of actuality, those who come after will usually take it for fact. The error gets repeated again and again, taking on a life and faux “truth” of its own.
  • Precedent can work this way, and both wise and clever jurists know this and use it to great effect. Only Judge Agostini can know for sure if there was any other consideration in his ruling other than a dispassionate consideration based on the legalism’s of the Commonwealth’s case. Agostini wrote that “the Commonwealth’s evidence was intentionally one-sided.” The Commonwealth, in turn, can justifiably ask, if just for its own satisfaction, if “the judge’s ruling was intentionally one-sided?” In other words, just as Harrington can’t know Agostini’s intentions, the judge can’t know hers.
  • The judge said “the well was poisoned” referring to what he said was the Commonwealth’s deliberate intention to mislead the grand jury. But, again, it can be asked was Agostini drinking from his own poisoned well, good water made bad after the D.A.’s failed attempt to remove a judge?
  • Agostini chided Harrington for not including exculpatory evidence while nothing the prosecution is not obliged to do so in grand jury proceedings. That being the case, why would the Commonwealth do it? Prejudice would explain it, though not legally and therefore not definitively.

• The second element of why Agostini concluded that the Commonwealth unfairly poisoned the grand jury was the introduction by the prosecution of some 70 pages taken from a blog written by Barlow-Tucker highly critical of DCF. In publishing this blog, Barlow Tucker, in a breathtakingly dumb move, violated her contract with DCF, for it was against DCF policy.
  • Most of Judge’ Agostini’s criticisms of Harrington for using the blog as evidence centered around Barlow-Tucker’s entries discussing her, violent foster child referred to as “Big D.” This four-year-old exhibited troubling behavior for which Barlow-Tucker lost patience. She wrote, “[W]hy am I putting up with this bullshit? … Get this little asshole out of my house.” Are these the words of a caring foster mom? Consider: She not only wrote the words, which one might understand if they were entered into a private journal in a moment of exasperation, but she published them. Her blog brought disciplinary action by the DCF. The judge ruled this was intended to embarrass the Tuckers and poison the grand jury.
    • Who does publishes stuff like this? Again, we agree with the Commonwealth. That seems relevant. Nonetheless and again, this finding does the Commonwealth a great favor. Bring new charges again, but this time leave out Barlow-Tucker’s blog.
• Judge Agostini also made a couple other statements with which THE PLANET disagrees and again where we side with the Commonwealth, that is, Harrington. In saying this, we remind our readers that THE PLANET has great respect for the judge, and we have often said so in the past.
  • He wrote, “This is a not case where the evidence showed the Tuckers failing to provide any medical care at all.” We couldn’t believe this one. No one would dispute that the Tuckers provided some care. They made some doctor appointments (they also skipped one). They administered the prescribed Albuterol. The issue is not that they provided some care but did they provide enough care? Sufficient care? Necessary care? Clearly, they did not. The dead body of a 10-month-old baby illustrates that.
  • Judge Agostini also wrote: “… there was nothing to suggest that Kristoff’s death was the result of a protracted decline of which the Tuckers were aware.”
    • “Nothing to suggest?” Nothing? THE PLANET agrees with the Commonwealth. There was a wealth of findings to suggest that very thing and that has every bearing on the case.
    • We can already hear the objection: “You’re not a lawyer, Valenti. You think you have a greater legal mind that Agostini?” True. We are not a lawyer. No. Agostini has it in spades over our legal acumen. We’re not in the same universe. We are not a lawyer — but that is our strength and advantage.
      • It is because I am not a lawyer that permits me my analysis, not in any technical or legal sense but in a sense much more important: the sense of morality and ethics. Sometimes you just KNOW what’s right and what’s wrong. The stench in this case issues a redolent indictment against the Tuckers all its own. Any with sense and senses can smell it. We also remind our critics that we are supporting Harrington on this one, and anyone who reads this blog knows THE PLANET is not her greatest fan. We cite this as our moral imperative here. We support her for the integrity she showed in bring the Commonwealth’s case forward against the Tuckers. Justice demanded that she do it, and she did it.
• Since being placed in the Tuckers’ care, the child exhibited symptoms of a respiratory illness that, though it waxed and waned, never went away.
• The illness worsened until the baby died in his crib, alone and unattended.
• This was a needless and preventable death.

———- ooo ———-

The most interesting section of Judge Agostini’s order is titled “Kristoff’s Death.” It is included in the “Factual” section, not the “Discussion” section.

The baby died sometime between the evening of Feb. 16 and the morning of Feb. 17, 2020. And the Tuckers had it on video. The Tuckers had installed a sound-and-motion-activated camera system in Kristoff’s bedroom, which he shared with other Tucker children. We quote from Agostini’s pages:

• 6:30 to 7:17 p.m. Feb. 16, 2020, the camera is active. “At that time, Kristoff is shown moving and continually making a coughing, gasping sound, but Mr. Tucker leaves the room without checking up on him.”
  • Can we stop there? The baby has been sick for two months. In his last hours of life, Baby Kristoff exhibits a continual cough and is gasping — GASPING — for air. Tucker is in the room, does nothing, then leaves. Is this the action of a caring, loving parent or someone who doesn’t care about little else than the money? Fair question.
• 7:29 p.m. same night: “Kristoff is heard gasping and coughing, and is seen rolling partially onto his right side and grabbing one of the spindles of the crib.”
  • The baby’s torture is obviously worsening (“gasping … grabbing one of the spindles of the crib” the way someone mite bite on a piece of wood while having a limb amputated with anesthetic). No intervention by the Tuckers.
• 12:44 a.m., Feb. 17, 2020: The camera is “activated by one of the Tuckers’ older children getting out of bed. At that time, Kristoff is shown silent and motionless, lying on his back with one arm bent up and the other hanging slightly off the crib, between the spindles.”
  • THE PLANET cannot read these words without heartbreak. The helpless, sinless, spotless, innocent infant is dead.
• “The camera was activated again at 1:44 a.m., at which time Kristoff was in that same position, still and silent.
• “This was the position he was discovered in at 8:37 a.m., when Ms. Barlow-Tucker enters the room. … Police were unable to locate any records of Mrs. Barlow-Tucker taking Kristoff to the doctor in February 2020 or of asking Ms. Young or Ms. Miller of DCF to do so.
  • Let that sink in. For all of the 17 days of February, the Tuckers had no records to show they had the common sense, let alone diligent care and compassion one would expect from good parents, to take this sick baby to the ER (which their contract with DCF permitted) or to the attention of qualified medical personnel. There are no words.
  • How can all of this not lead to trial before a jury? How?

In the section titled “Autopsy Report and Expert Medical Testimony,” we have these findings:

• “In the days leading up to his death, a pediatrician listening to Kristoff’s left lung would have had good breath sounds” but would have heard nothing from the right lung, which was shrunken and collapsed. This would have immediately indicated a serious problem.” The lung was full of pus.
  • But, as we have seen, the Tuckers could produce no records that they brought the baby to a doctor in those critical 17 days.
• Then there’s this, from the baby’s pediatrician, Dr. Sandeep Kumar, who “watched a portion of the February video from the Tuckers’ home in the presence of the grand jury. … Dr. Kumar opined that Kristoff’s continuous cough, with no breaks, was a sign that his breathing tube was about to be blocked completely. He stated that Kristoff was in very obvious respiratory distress, as demonstrated by his heavy breathing and nodding his head. Finally, he opined that based on the symptoms demonstrated in the video, as well as the symptoms the Tuckers observed in the preceding weeks such as fever, dehydration, and an unproductive cough that turned into a phlegmy cough, Kristoff should have been taken to the emergency room right away.”
  • Once more, words fail. Kumar is saying that the Tuckers observed obvious symptoms of serious trouble that should have triggered an immediate rush to the ER. That’s when a good, caring, loving parent scoops the child up, gets in the car, and floors it to the nearest medical facility.
  • With all due respect to Judge Agostini, how is this not enough to warrant sending this case to trial? Not sending the case to trial on technicalities but one clear evidence of failure of care, a responsibility the Tuckers, by virtue of their agreement with DCF, agreed to provide? On other irrelevant evidence, ignoring the highly damning evidence? On perhaps a dislike or even personal hatred of Andrea Harrington? THE PLANET doesn’t assert this as factually the case, for we cannot possibly know. We can raise the question, however, based on a dispassionate moral reading of the factual evidence.

———- ooo ———-

Based on the entire body of information, including now and especially fortified by Judge John Agostini’s ruling, THE PLANET asserts the following:

• The Commonwealth must bring new charges against the Tuckers.
• The Tuckers, on the basis of an untainted indictment of a neutral grand jury, must be brought to trial to determine their legal culpability in the death of 10-month-old Kristoff Zenopolous. The evidence is there. If the Tuckers escape with a “not guilty” verdict in a fair trial, so be it. THE PLANET will accept the affair as being honorably settled.
• Judge Agostini threw out the case “without prejudice.” This is legalese saying, “Yeah, there may be enough to warrant a trial, but we’re not ruling on that. We’re simply saying that the prosecution’s presentation to the grand jury was flawed.”
  • In other words, there could be (and likely is) sufficient evidence to warrant an indictment.
    • As long as there is even the slightest chance of succeeding in bringing this to trial, the Commonwealth must keep trying.
• The DCF workers in the case — Danielle Costa, Lauren Miller, Hamila Young, and Sheen Young going up the chain of command — failed the baby. Is there liability there too? Our gut tells us “yes.”
• Judge Agostini issued his finding “without prejudice,” but did he throw out the case because of prejudice against the prosecution?

One final thought: The prosecutor who has the stones and the indomitable belief in justice to bring charges again and succeeds in bringing the Tuckers to trial will assure a place in the pantheon of local legal history. Bringing this case down to the below-sea-level of politics, whichever among the three candidates for D.A. in this years election — incumbent Andrea Harrington or challengers Tim Shugrue and Bob Sullivan — makes the Tucker Case a dominant campaign issue will win. We base this on the outrage of the general public; 100% of our sampling shows they bleed for the infant.

An enormous injustice was done to a helpless infant. It caused him to die. Nothing can bring him back to life. It’s just that his needless, tortuous death demands redress.

Our we human or not?

Have a great weekend, everybody.

ADD 1, April 22: THE PLANET has three post scripts prompted by this case.

1. Only a trial, not an indictment or a preliminary hearing, can provide a resolution of the legal aspects of this case. Witnesses will be called. Examination and hard cross-examination will be allowed. All of the testimony will be under oath, subject to charges of perjury. Moreover, a trial result in a VERDICT.
2. This is the first time THE PLANET has felt that District Attorney Andrea Harrington has acting, on behalf of the Commonwealth and We The People, as our attorney. That is the essence of the job. Representing Mary Jane and Joe Kapanski when someone harms the social and cultural fabric out of which public safety is fashioned.
3. Judge Agostini’s ruling is brilliant in this sense: In it, he sent the D.A. a loud, visible defeat, which would take care of any personal feelings he had about this. While doing so, he ruled that the case was not closed and could be raised again by prosecutors. In fact, reading between the lines, it’s almost like he’s hoping for a new set of proceedings against the Tuckers, but by a new prosecution team. This is an election season.

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“Justice thrown out is justice denied” — Sir Donald Turpentine, Knight of the Bath.

“Advice is like snow — the softer it falls, the longer it dwells upon and the deeper it sinks into the mind” — Samuel Taylor Coleridge.

LOVE TO ALL.

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