Military Rape Crisis Center

BARNSTABLE — David Pierce, the former Coast Guard master chief petty officer convicted of rape, remains a free man pending an appeal before the state’s highest court.

Pierce, 46, of Sandwich stood before Judge Gary Nickerson in Barnstable Superior Court yesterday to see whether he would be sent to prison to begin serving his three- to four-year state prison sentence. In August, the Massachusetts Appeals Court upheld Pierce’s conviction, but his attorney told Nickerson he has filed an appeal with the state Supreme Judicial Court.

“I am going to allow the process to play itself out,” said Nickerson, who granted the rare stay. Pierce was convicted by a jury of rape in February 2009, but Nickerson freed him on $50,000 cash bail because of the likelihood that Pierce would be successful in winning a new trial, according to court records.

At issue in the appeal is Nickerson’s decision to exclude cross examination of the woman by Pierce’s attorney, James Merberg, about an alleged pattern by the woman of accusing men of abuse at the end of relationships.

During the trial, the woman testified that Pierce raped her on two occasions in a jealous rage. The rape kit, a term used for the collection of evidence in a sexual assault case, showed no semen despite testimony by the woman that she had been penetrated and Pierce ejaculated, according to the court transcript.

Pierce never testified on his own behalf, but he told the police that bruises on his accuser’s body were from a tickle fight that also involved his children.

Prosecutor Thomas Shack argued that Pierce should begin serving his prison sentence because his chances of winning a new trial are “very limited” given the Appeals Court decision to uphold the jury verdict.

The SJC should decide in the next couple of weeks whether to hear the case, Merberg said. “I don’t see what the harm would be” in continuing the stay, Merberg said, noting that Pierce has met all of the conditions of his bail.

Shack criticized public comments made about the case. “Over the last year and a half, the victim has continued to be pilloried by statements in the press,” he said.

But Nickerson said he can only put conditions on Pierce, not his family members. “I can not muzzle his relatives,” the judge said.

In a story published in June, James Pierce, David’s father and a Sandwich selectman, said his son was falsely accused. “Please pay particular attention to the account of a full day’s testimony the jury was not allowed to hear,” David Pierce wrote in an e-mail. “That testimony dealt with several other occasions in several other states and Massachusetts where the alleged victim, who was over 40 years old, made similar accusations against several other men.”

As they left the court together yesterday, David and James Pierce both declined comment.