DANVERS — The lawyer for a Marine sergeant accused of assaulting his father and improperly storing his guns tried unsuccessfully yesterday to persuade a judge to dismiss the most serious of the charges against the soldier.
Instead, the case against Sgt. Matthew Fairbanks, 23, who was arrested last year after police were called to his Danvers apartment for a disturbance, is set to go to trial on July 18, after the judge dismissed just one of the counts against him, a charge of malicious destruction of property.
Fairbanks’ attorney, Michael Walsh, had tried to use the legal doctrine known as “accord and satisfaction” to obtain the dismissal of a felony count of assault and battery with a dangerous weapon, the toilet he allegedly used to strike his father’s head after ripping it from the floor.
More commonly used in civil court cases, an accord and satisfaction is essentially a type of out-of-court settlement. However, it is rarely used now in criminal cases, on public policy grounds, though Massachusetts courts have recently upheld its use in some misdemeanor cases.
And that’s just what Salem District Court Judge Robert Brennan cited in his ruling yesterday.
“It’s just not good public policy,” said the judge, regardless of the views of the defendant’s father, who now says in an affidavit that his son never verbally or physically assaulted him during the incident last January.
Brennan also called into question the decision to submit that affidavit yesterday, saying that either Fairbanks’ father “made a false report to the police or he’s making a false statement under oath in this affidavit.”
The issue may be moot when the case goes to trial, a prosecutor acknowledged yesterday; Fairbanks’ father lives in Florida and does not appear willing to testify against his son, meaning that the state would likely be unable to prove the charge at trial.