BY JULIE MANGANIS
---- — 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.
The judge also denied a motion to dismiss two counts of improper storage of firearms, brought on procedural grounds.
The charges were lodged after police found three guns, including a .45 caliber gun in the apartment’s laundry room, a .38 caliber gun in the console of Fairbanks’ car and a .22 caliber gun in the trunk of the car.
Prosecutor Alex Grimes suggested that the counts are based on the discovery of the guns in the laundry room and in the console of the car; Walsh argued that the complaints, as typed, refer to the gun in the locked trunk, which, Walsh argued, would be legal.
The judge, however, said that the police report contains adequate probable cause for the two counts and that the charges will stand.
The malicious destruction of property charge against Fairbanks was dismissed after the judge concluded that the removal of the toilet was part of the more serious charge of assault and battery with a dangerous weapon, the toilet itself.
Walsh will be back in court with Fairbanks later this month to argue that statements and evidence in the case should be suppressed based on the alleged failure by police to advise Fairbanks of his rights.
Walsh indicated that he will also seek the release of Fairbanks on bail at that hearing, set for June 25.
Fairbanks has been held since a judge in April found that he had violated the terms of his release in the case by failing to appear for meetings with his probation officer, leaving the state without court permission and by apparently failing to surrender an AK-47 to police. He was seen in a photo posted on his Facebook page holding the gun, with a caption that appeared to mock the court order.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at email@example.com or on Twitter @SNJulieManganis.