Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Martha Vinyard Man Faces Assault And Battery With A Dangerous Weapon Charges For Attack On Alleged Sexual Predator

You have seen it in the movies. Sometimes, at the end of the film, you walked out angry.

Sometimes feeling exhilarated.

It is the tale of the vigilante. The vigilante who goes after the unmistakable “bad guy” and, maybe even, rescues the innocent victim.

Usually, how you feel depends on what happens to the vigilante.

Well, you may want to ask Frank Herbert (hereinafter, the “Defendant”), the 57-year-old wheelchair-bound grandfather about it. He allegedly attacked an accused pedophile with a baseball bat. The alleged pedophile was the Defendant’s girl-friend’s son-in-law. The Defendant says he was protecting a young girl.

Child protection advocates are hailing the Defendant as a hero. The Commonwealth, however, is charging him with the Massachusetts felony of Assault and Battery with a Dangerous Weapon.

He faces 10 years in state prison.

It happened on February 22nd on Martha’s Vinyard. The Defendant allegedly struck his alleged target, Joshua Hardy, on the arm with the bat and kept the apparently 230-pound-man at bay until the police arrived. Hardy is now facing sexual assault charges and is held on high bail. He is accused of assaulting two girls.

Mr. Hardy has just recently announced that he refuses to testify against the Defendant because doing so might incriminate him. As any daily reader of this blog knows, this is his right under the Fifth Amendment to the Untied States Constitution.

You might think the prosecution ends there. However, according to the Commonwealth, it doesn’t. The prosecution claims that it can prove the case against the Defendant even without the testimony of Mr. Hardy.

Maybe…force one of the girls to testify against their hero?

The Defendant’s lawyer calls the prosecutors’ decision, “an asinine lack of discretion. It’s not like [the Defendant] lined up a baseball bat like Manny Ramirez .He tried to do the right thing.”

The Defendant’s girlfriend said she fears, “He won’t last in prison. He can’t even hold a food tray.”

The Defendant has no prior criminal record and was offered pretrial probation on the bat assault charge that did not require him to admit guilt if he stayed out of trouble for a year, However, he says that his conscience would not allow him to accept it. “I did what I had to do, and the rest doesn’t matter,”

Attorney Sam’s Take On Vigilantes And Self-Defense

This is one of those conundrums that, I suggest to you, could easily be seen both ways and, in fact, underscores one of the truths we have discussed about the criminal justice system.

A simple everyday sense of logic and fairness would argue for the Commonwealth’s dropping of the charges. After all, whatever the details of the event were, it seems clear that the Commonwealth believes that the girls were being sexually assaulted by Mr. Hardy. The Defendant is an older and handicapped man who, it would appear, risked his own safety to protect those girls. He has no prior record and it is certainly not illegal, in itself, to possess a baseball bat. Even aside from the heroic element to it, it would seem laughable to prosecute him.

And then there is the view of the prosecution. The legal view. We cannot simply allow vigilante justice to run amok. There is absolutely merit to that. Again, we do not know all the details of the-events-at-issue here. However, what if the girls were not in imminent danger? What if this was a revenge for a previous molestation?

The laws regarding self-defense are somewhat complicated, but they are also clear in some respects. Yes, you can act out if you are reasonably defending yourself or another person. However, it has to be at the point that either you or that person is actually in danger.

Otherwise, it is simply vigilantism, which our system does not allow.

And you do not need to be an experienced criminal defense attorney to know that “revenge” is not a legal defense.

We rely on the police and the courts to “do justice”. This is why a police-citizenry relationship is so important and why it is a real problem when the perception is that officers cannot be trusted.

…But that is the subject for another day.

Here’s another topic for another day…did you know that, for the most part, there will be no lasting difference to the Defendant between the pre-trial probation he was offerred than if he goes to trial and wins?

Try to get your head around that one!

Don’t worry. If you can’t…I will get back to it tomorrow unless something else bumps the subject off for a day or so.

To view the article upon which this blog is based, please go to http://www.bostonherald.com/news/regional/view.bg?articleid=1352755&srvc=rss

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