Exposer case shows difficulty of balancing rights and livability

The case of Gregory Fay Martin, a 52-year-old mentally retarded man who has a history of exposing himself in the Southwest area, is testing the criminal justice system's ability to preserve the rights of both a community and an individual.

Martin, who has an IQ of 58, was convicted of three counts of indecent exposure in 1988, 1992 and 1994, for which he was placed on probation. Last September he was convicted of exposing himself to a group of people at Lake Harriet, including a 3-year-old child. He was found mentally incompetent to stand trial and was released to the custody of his father.

In January and February, Martin was arrested again and charged with two counts of indecent exposure for acts he allegedly committed at Lake Harriet and near Lake of the Isles.

Martin's lawyer, Marsh Halberg, said that Martin did not commit these two new crimes.

But, that's not the point, said Richard Lay, a CARAG board member concerned with the report of a recent indecent exposure in his neighborhood. If Martin was found mentally unfit last fall, he asked, why isn't he off the streets?

Martin will undergo another mental competency hearing June 28 to determine whether or not he stands trial for the two new charges - a redundant and moot event, said Halberg, an attorney with the firm Thomsen and Nybeck. "He's mentally retarded," he said. "That isn't something that's going to change."

Speaking hypothetically, Halberg acknowledged that on the one hand, the system does not want people, especially if they have small children, to be victims of indecent exposure. On the other hand, he said, most mentally retarded people who engage in acts of indecent exposure don't realize they are doing something wrong.

Not a simple answer

"[Martin] should be in a controlled area," said Lay. "Especially if he's already been convicted of indecent exposure."

It isn't that simple, said deputy Hennepin County Attorney Pete Cahill.

For some people, he said, nothing happens. In order to be committed, a person has to be found mentally ill - which is different than being found mentally incompetent to stand trial.

To be found mentally ill, a person must be considered a danger to themselves or others - a category court psychologists have already determined Martin does not fall into.

"There's not a nice fit between the two - that if you're incompetent, you get committed," said Cahill. "You may be incompetent, but in many cases that involve this level of crime, you're not committable because you're not a danger to yourself or others."

Cahill said he understands the resentment residents or police officers may feel. "In the end, though," he said, "it's a matter of civil liberties."

"I can't say it's bad," he said. "We don't want to be putting people in jail who don't understand the charges against them or can't assist in their own defense. That's not fair to them.."

Halberg said that in cases involving perpetrators who are mentally retarded, everybody loses. "Of course we don't want people who are a danger to themselves or others - whether they're mentally retarded or not - creating trouble for the public.

"But, my guy has also held the same job [as a janitor] for 25 years. Here's a guy who's been able to live alone with his parents' supervision. He's got a lot to lose, and he doesn't fully understand that what he did [last fall] is wrong."

An imperfect system

In cases like these, said Halberg, everyone in the judicial system makes more of a collaborative effort to try and do what is best for both the community and the perpetrator.

"It's less adversarial," he said. "The prosecution, defense, judge and probation people - everybody's just trying to think, 'How can we make this work?'"

Cahill said that it will ultimately be up to the judge and the mental health expert to decide June 28 on the level of intervention for Martin.

"To be honest," he said, "he doesn't sound like the type of guy to be committed, but they might step it up a little bit." At this point, he said, Martin might be assigned a social worker or directed to treatment of some kind.

In the neighborhood

Sgt. Dave Follano, who works in the Sex Crimes unit of the Minneapolis Police Department, said indecent exposures are notoriously hard to prosecute, he said, because more than 70 percent of them never get reported.

It is important that victims report these crimes, he said. "I'm closing on a case now where this guy was charged with indecent exposure, and he admitted that he'd been habitually exposing on a daily basis for four years." (Martin admitted last fall that he had exposed himself about 15 times at Lake Harriet during the two days leading up to his arrest.)

Follano said victims should try and focus, if at all possible, on the perpetrator's appearance - especially his face - and write down a license plate number if the perpetrator is driving a car.

"The only way to establish patterns and bring perpetrators before the justice system," he emphasized, "is if people take the time to make a report and follow up with it. That's vital."