Ex-lawmaker is scheduled to turn himself in Monday

Last updated: January 30. 2014 11:42PM - 3671 Views
By - mguydish@timesleader.com

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In what has become a series of rapid-fire, last-minute filings in an effort to keep Raphael Musto from heading to a federal facility, attorneys for the former state senator filed papers with the U.S. Third Circuit Court of Appeals on Thursday, arguing the trip to the facility could kill Musto.

On Jan. 7, Musto was found mentally incompetent to stand trial, and U.S. District Judge A. Richard Caputo ordered him into the custody of the attorney general, to be committed to the Federal Medical Facility in Butner, N.C. Musto’s attorneys asked Caputo to stay that order, but Caputo rejected the motion.

Caputo noted that putting Musto in custody of the attorney general was a legally mandated result of being declared incompetent. Pointing out that Musto had sought to be declared incompetent and got what he wanted, Caputo called the request to stay the order “incongruous.”

That meant Musto must still report Monday to the facility, where he is to remain for up to four months with evaluations to see if his condition improves enough to stand trial.

In Wednesday’s filing seeking a stay, Musto’s attorney’s argued the order to report to North Carolina could physically harm him because of an aortic aneurysm, and that his competency hearing showed his mental impairment — caused in part by non-alcoholic cirrhosis — is unlikely to improve.

In rejecting that argument, Caputo noted he had ruled Musto was physically competent to stand trial based on testimony that the aneurysm was stable at 4.7 centimeters and surgery is not indicated until at least 5 centimeters.

An aneurysm is a widening of a blood vessel in one spot, creating a bulge that can rupture with potentially lethal effect. Treatment often involves observation until the aneurysm reaches a certain diameter.

Caputo also noted health concerns raised by Musto’s attorneys are mitigated by the fact he is to enter a medical facility.

In the papers filed Thursday, Musto’s attorneys asked the appellate court to issue an emergency stay of Caputo’s order for 21 days. They argue that would give attorneys and courts time to act on an earlier appeal seeking to have the trial continued indefinitely due to Musto’s health. They again cited the aneurysm.

“For the reasons set forth at length in the forthcoming memorandum, even the trip to North Carolina may prove fatal to Appellant,” Musto’s attorneys wrote.

The appeal for an indefinite delay of the trial was stalled Jan. 24 when an order was issued saying the case “has been listed for possible dismissal due to jurisdictional defect.” Both sides were ordered to “file written responses addressing this issue” within 14 days.

In an added twist, an order was issued Thursday that said “upon further review” the appeal will not be listed for dismissal, but stressed, “This does not in any way signify that a determination of jurisdiction has been made.” Both sides must still address the jurisdiction issue.

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