SalemNews.com, Salem, MA

March 2, 2013

Judge refuses new clerk’s hearing for Danvers selectman

BY JULIE MANGANIS
STAFF WRITER

---- — DANVERS — A Salem judge has rejected Danvers Selectman Keith Lucy’s bid to have an assault case sent back to a clerk magistrate for a new hearing.

Lucy, 47, was charged last fall with a single count of assault following an encounter with a Town Meeting member, Jack Fratus, inside Danvers Town Hall on the night of last September’s primary election.

Fratus alleged that his wife and another friend were looking at election results on a board when Lucy cut in front of them, and that when Fratus confronted Lucy, a heated exchange ensued.

Fratus says Lucy raised his hand as if he was about to strike him, putting him in fear. He filed a civilian-signed criminal complaint in court, and after a show cause hearing before a Salem District Court assistant clerk magistrate, a criminal charge of assault was filed against Lucy.

Lucy’s lawyer says two witnesses will testify that Lucy did not cut in front of the women, but was simply re-joining a woman who had accompanied him to Town Hall that night.

The lawyer, Michael Smerczynski, argued that Lucy did not have a lawyer with him on the day of the hearing, and was not able to present the two witnesses who could have rebutted the account offered by Fratus. He also questioned whether all of the elements of the crime of assault were presented.

“He says ‘go ahead and hit me,’” Smerczynski quoted Fratus as saying in his complaint, “and then he says ‘I’m afraid.’”

Yesterday, Judge Matthew Machera said he could see no justification for giving Lucy another show cause hearing before a clerk.

“You’re asking me to revisit the hearing,” Machera told the lawyer. But while the disputed facts “are certainly a great trial issue,” he said there is no basis, procedurally, to grant a new hearing.

Prosecutor Lars Trautman cited prior cases and state law, which say that even a procedurally incorrect clerk’s hearing does not justify remanding the case to a clerk. Instead, the way to deal with that is through a motion to dismiss on the grounds of insufficient evidence to support the complaint.

Machera suggested to Smerczynski that he consider filing a motion to dismiss the case if he believes there was insufficient evidence to support the charges.

Smerczynski said he would, and a hearing on that motion is now set for May 9.

---

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.