SalemNews.com, Salem, MA

July 23, 2013

Danvers Marine gets probation in assault, gun case

BY JULIE MANGANIS
STAFF WRITER

---- — DANVERS — A Marine sergeant arrested after a violent rampage inside his Danvers apartment in January will spend the next two years on supervised probation, a Salem District Court judge ordered yesterday.

Marine Sgt. Matthew Fairbanks, who is facing a military separation hearing later this month, admitted that had the case gone to trial, prosecutors would have been able to prove charges of assault and battery and improper storage of a firearm.

Fairbanks, 24, was arrested following an incident in his apartment in the Endicott Green apartments on Route 1, where police were called by a neighbor whose own apartment was being flooded.

The officers discovered that Fairbanks had been involved in a confrontation with his long-estranged father in the bathroom, during which he ripped the toilet from the floor, threw his father into the bathtub, and then struck his father’s head against the broken toilet.

They later found a .45 caliber Colt handgun, one of several Fairbanks was licensed at the time to own, that had been taken out and left unsecured during the evening. A waitress Fairbanks had invited back to the apartment after several drinks at Applebee’s told officers that she hid the gun and other potentially dangerous items during the altercation.

And while Fairbanks’ father has, in papers filed by his son’s attorneys, recanted his statement to police, prosecutors expected to be able to prove that the lump on his father’s head was the result of an assault.

Judge Robert Brennan continued the case without a finding for two years, and imposed conditions that include a mental health evaluation and counseling for a man described by a family friend as possibly suffering from post-traumatic stress disorder, the result of several tours of duty in Iraq.

But during his hearing yesterday, Fairbanks said he has not been given any formal diagnosis, only counseling that has been provided by the Marine Corps.

His attorneys, Matthew Walsh and John Walsh, had urged the judge to continue the case without a finding for just one day, saying Fairbanks will continue to receive treatment through the military.

Prosecutor Alex Grimes, meanwhile, argued that Fairbanks, who walked out of court yesterday, requires closer supervision than the defense is suggesting, and urged a partially-suspended jail term and three years of supervised probation.

Grimes suggested that Fairbanks’ actions after his release illustrated the need for close supervision, which, suggested the prosecutor, should also include GPS monitoring, a request the judge denied.

Fairbanks has spent nearly three months in custody after violating the terms of his release by posting photos of himself holding an AK-47 with a caption appearing to mock the judge’s order to surrender firearms on his Facebook page. He also failed to report to his probation officer and left the state without permission.

During yesterday’s hearing, Fairbanks blamed his estranged wife, whom he described as a “scorned” woman, for tipping officials off about the Facebook posting, which, he insisted, was a comment on the gun control debate.

“No one has had any proof the picture was taken after I was ordered to return my firearms,” Fairbanks told the judge.

The plea hearing capped a day of legal wrangling in a case that has taken unusual procedural twists and turns since it was filed.

In April, Fairbanks’ attorneys filed, apparently without the knowledge of the district attorney, a motion in the U.S. District Court seeking to have the case transferred there on the grounds that Fairbanks was an active duty Marine at the time of his crimes.

Federal Judge Richard Stearns quickly rejected that request, saying he saw no grounds to transfer the case because the charges were not as a result of Fairbanks’ military service, but said the lawyers were welcome to try to support their argument with additional information. That was not submitted, however, until last week.

The attorneys for Fairbanks also filed a complaint with the Supreme Judicial Court. That court refused to consider the case, but then sent it to a Superior Court judge for consideration. Last week, that Superior Court judge ordered a delay of the trial until yesterday.

But with the federal court case still pending, both Brennan and Grimes expressed concern that the defense was trying to “hedge their bets” by creating a new avenue of appeal in the event that either Fairbanks was convicted by a jury, or didn’t like the proposed disposition the judge was considering.

Both the judge and the prosecutor said that resolving the case or going to trial would first require the defense to withdraw its complaint to the federal judge.

The attorneys for Fairbanks then left the courthouse, with a room full of police witnesses as well as another woman, waiting to testify. It turned out they had gone straight to federal court, where they filed a motion renewing their request to transfer the case.

In that motion, they made several claims about Brennan, which he angrily rebutted yesterday after reading the federal filing, which included allegations that the judge was holding Fairbanks “indefinitely,” that he refused to schedule a new date in the case, and that he was “punishing” Fairbanks.

Brennan called the accusations “blatantly inaccurate” and questioned how the defense lawyers could have made those representations to a federal judge.

Matthew Walsh said only that he left court with a “different” impression than the judge.

Matthew Walsh told the judge that he left court “in a hell-fire rush because I felt justice was not being done.”

“Maybe brim and fire is not the way to approach this job,” Brennan responded.

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