Gomes, Pomey Sentenced to Probation

Randy J. Gomes and Suzanne M. Pomey will not go to jail for embezzling almost $100,000 from the Hasty Pudding Theatricals (HPT).

Instead, Judge Peter W. Agnes Jr. sentenced Gomes to five years probation and Pomey to two, ignoring the district attorney’s request that the two serve jail time.

“No purpose would be served by a sentence of incarceration,” Agnes said yesterday at the sentencing hearing at Middlesex Superior Court.

Middlesex County Assistant District Attorney Edward R. Bedrosian Jr. had argued that Gomes should serve three months in jail and Pomey 30 days. The charge, felony larceny over $250, carries a maximum penalty of five years in prison.

“We’re disappointed with the sentence,” said Seth I. Horowitz, a spokesperson for the district attorney’s office.

But the judge did agree with Bedrosian that the guilty pleas of Pomey and Gomes, former members of the Class of 2002, should be accepted and entered onto their permanent records.

Lawyers for Pomey and Gomes had asked to follow a procedure outlined in a 1971 Mass. Supreme Judicial Court decision, Commonwealth v. Brandano, which would effectively prevent a conviction from appearing on their criminal records.

Under the Brandano procedure, the judge would reject the plea of guilty, offer pre-trial probation, continue the case for a period of two years and ultimately dismiss the case without a final finding.

But Agnes ruled he had the authority to follow such a procedure but chose not to exercise it.

The Defense

Court papers released yesterday revealed new details about the defense strategy of Gomes and Pomey.

Gomes’ lawyer argued that drug addiction led to his criminal behavior.

“I know that drug addiction is not an excuse for my actions but I believe that drugs clouded my judgement and ask the Court to take this into consideration,” Gomes wrote in a Sept. 13 affidavit.

Gomes wrote he is still addicted to methamphetamine, a category of drugs that includes speed and crystal meth. Since Sept. 27, 2001 he has been in treatment at the Mount Auburn Hospital Prevention and Treatment Center, according to a letter from the hospital attached to his affidavit.

Pomey’s lawyers argued that Gomes was the impetus for the crime.

Although Pomey “did acquiesce to Randy Gomes’ scheme to use money from the HPT, she did not initiate the plan,” her lawyer, Michael DeMarco, wrote in a Sept. 11 motion. “She did, however, agree to allow Randy Gomes to go forward with his plan, initially, at least, because she wanted to help Randy, then a friend, with his drug related problems.”

Both of the defendants said they were sorry for their actions.

Gomes sat in the back right corner of the courtroom with his lawyer, parents and two other relatives. Pomey sat three rows in front of him flanked on the right by her two lawyers and on the left by her father.

“Suzanne fully accepts the consequences of her actions and wholeheartedly regrets them. She is a good person,” DeMarco wrote in a Sept. 11 affidavit. “She has learned from her mistake.”

In his written decision Agnes referred to “their sincere expressions of remorse and regret” as part of the reason for his ruling.

But Agnes disagreed with the defendants’ explanations of their motives.

“The court does not find that the motive for the thefts was simply a combination of the defendant Gomes’ drug problem and defendant Pomey’s desire to assist a friend,” Agnes wrote in his decision. “The thefts involved in this case were substantial, repetitive, and not uncovered as a result of the initiative of either defendant.”

Pudding's Possessions?

During the 15 minute hearing yesterday, Bedrosian mentioned “one outstanding problem.”

The Harvard University Police Department (HUPD) has been storing a large screen TV, two CD players, a portable DVD player, DJ equipment and 91 assorted DVDs since it seized them from Gomes’ room last fall.

“Who is the rightful owner of this property?” Bedrosian asked. “I would suggest...it is not Mr. Gomes.”

He referred to the property as “ill-gotten gains” and suggested Agnes order it be given to HPT or to charity.

Gomes’ attorney, Henry R. Cashman, said that the property should be released to his client after he pays HPT back $68,440.74.

Agnes said the property should not be considered ill-gotten gains, but that “it would be unreasonable for the Harvard University Police to hold on to this property for a period of three or four years until restitution is paid.”

If the parties cannot agree on a resolution, Agnes said he will hear arguments on the matter next month.

After the hearing, Pomey and Gomes filled out papers in the probation office. Pomey laughed with her lawyers as Gomes stood solemnly and mostly silent. The two defendants never spoke to each other.

Degrees of Punishment

Although the criminal proceedings against Pomey and Gomes concluded yesterday, Harvard’s judicial body has not finished with the case.

In June, the College chose not to grant them diplomas because of the legal proceedings.

“A student may not receive a degree before a pending disciplinary case is resolved,” reads a section of The Administrative Board of Harvard College: A Guide for Students.

The Ad Board usually reviews cases a month or two after the court proceedings end, according to a University Hall administrator who asked not to be named.

“The Administrative Board of the College will conduct its own review of the matter to vindicate the College’s rules (just as the court has now acted to vindicate the laws of the commonwealth),” the administrator wrote in an e-mail.

Although College officials will not comment on specific cases, even Pomey’s lawyer acknowledges there is little chance she or Gomes will receive diplomas.

“Her degree is being held by Harvard pending the outcome of this criminal matter,” DeMarco wrote in a Sept. 11 motion. “In the event that Suzanne is found guilty, she will in all likelihood not receive her Harvard degree.”

Dollars and Depression

The court papers released today also revealed telling details about the lives of Pomey and Gomes during the time of the embezzlement.

Agnes attached to his ruling an 11-page spreadsheet detailing the activity of Pomey’s account at the Fort Knox Federal Credit Union for a 16-month period from March 1, 2000 to July 31, 2001, when she deposited $22,549.22 from HPT.

The checks she wrote to various clothing stores, salons and restaurants paint a telling picture of what Bedrosian called “a lavish lifestyle.”

In 16 months, Pomey spent $1,098 at Victoria’s Secret, $1,056.50 at Express and $829.58 at the Gap.

DeMarco referred to these costs as “ordinary personal expenses” in his Sept. 11 affidavit.

Gomes submitted to the court a letter from Frank McNamara, a staff psychologist at the Bureau of Study Counsel who began treating Gomes in Nov. 1998 when he was a first-year.

“Randy developed an intense dependency in his close relationships that was fueled by a deficit in self-esteem,” he wrote in his Sept. 12 letter.

“Consequently, he experienced considerable anxiety about disrupting newly formed social connections,” McNamara wrote.

McNamara wrote that Gomes had “profoundly conflicted feelings” about the expectations for a high level of academic performance.

“His temporarily adopted lifestyle and related behavior was largely motivated by a combination of unacknowledged anger at feeling that he was only valued by his performance, and the previously mentioned longing for acceptance—which was channeled toward a social milieu that thumbed their noses at the very culture that ‘demanded’ his performance,” McNamara wrote. “All of this was founded on a fundamentally weak self-image...and related feelings of depression."

He also wrote that Gomes was writing a book and interested in doing community theatre. McNamara said Gomes reported receiving all A’s during his last semester at Harvard.

Legal Dealings

Judge Agnes’ ruling is a significant addition to the case law regarding the authority of a judge to dismiss a case over the objections of the Commonwealth.

Lawyers for Gomes and Pomey asked Agnes to follow the 1971 Brandano precedent by dismissing the guilty pleas of their clients, granting them pre-trial probation, continuing the case for a period of two years and ultimately dismissing the case without a final finding.

But Bedrosian argued that although Brandano allows a judge to reject a guilty plea, an Aug. 23 decision by the Supreme Judicial Court, Commonwealth v. Tim T., said a judge could not do so over the objections of the Commonwealth.

The Commonwealth did object in Gomes and Pomey’s case, but the defendants’ lawyers argued that Tim T. should not apply.

Agnes agreed with the defense.

Although Brandano did raise the constitutional question of whether a judge had the authority to dismiss a case over the objections of the Commonwealth, Agnes said that Tim T. did not answer that question.

“Contrary to the Commonwealth’s argument, the Supreme Judicial Court has not overruled Brandano or decided the constitutional question left open in Brandano,” he wrote in his decision.

Agnes said that judicial dismissals of criminal prosecutions over the objection of the Commonwealth are lawful if they meet three conditions: when required by the interests of justice, following an adversarial proceeding and in circumstances in which the Commonwealth may appeal.

He concluded that since those conditions were met, he had the authority to reject their guilty pleas.

But Agnes chose not to.

“The payment of restitution may not fully address the harm that has resulted to the Hasty Pudding Club,” he wrote.

“This is not a case in which the interests of public justice require a continuance without a finding and a dismissal.”

—Staff writer Amit R. Paley can be reached at paley@fas.harvard.edu.