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.

BOSTON WOMAN ARRESTED AFTER THREATENING GREEN LINE PASSENGER

Today’s Attorney Sam’s Take involves the definition of Massachusetts Assault (as opposed to Assault and Battery), the intersection between criminal justice and mental health and touches upon one of our favorite topics…when free speech rights control and when they do not.

Last night, 52-year-old Madina Clayton of Boston (hereinafter, the “Defendant”) was arrested at the Brookline Hills MBTA Station after allegedly threatening several men with a knife while riding on a Green Line trolley.

According to MBTA Transit Police, the Defendant allegedly pulled out a small folding knife as she sat on the Riverside Line train. While sitting across from a male passenger, the Defendant allegedly repeatedly opened and closed the knife while staring at the gentleman.

The man understandably nervous, apparently got up to move to another part of the train. According to law enforcement, this is when the Defendant stood up, pointed the knife at him and shouted an obscenity at him.

The Defendant is said to have then turned her attentions to another male passenger. When he changed seats, she allegedly followed him with the open knife.

Witnesses claim that the Defendant “haphazardly” swung the knife at a third male passenger as he was exiting the train.

She was arrested at the scene for assault with a dangerous weapon.

It probably did not come as much of a shock to officers when they found that there was already an arrest warrant pending in her name for assault and battery with a dangerous weapon. That one was from the Boston Municipal Court. Upon her arrest, the police also found marijuana in her possession, for which she was issued a citation.

The Defendant is scheduled to appear in Brookline District Court today to answer on the new allegations.

Attorney Sam’s Take On Unruly Speech And Behavior

If you are a regular reader of this daily criminal law blog, you probably already know why the Defendant was charged with assault with a dangerous weapon as opposed to assault and battery with a dangerous weapon as she had been in an earlier case.

Assault is the threatening gesture putting a person in fear of being struck. The battery is the actual striking. As the Defendant apparently did not touch anyone in this case, she is not charged with a battery.

Another issue which you may be wondering about is whether she could be charged with any other crimes giving the verbal barrage to which she is said to have treated the first man. The answer is actually “yes”.

“How is that, Sam? Wouldn’t she be protected by her right to free speech?”

The answer to that question is “not necessarily”. First of all, we do not know the specifics of what she said. As we have discussed in the past, there are exceptions to the right to free speech. One of those exceptions is threatening to commit a crime. If the Defendant said something along the lines of “I am going to carve my initials in your throat” to her fellow passenger, she has committed a crime.

“Well, what if she just swore at him or called him racial slurs?”

You might think that these would be protected. To some degree they are. If she simply swore at the man, the answer to the possibility of being prosecuted for doing so depends on the circumstances. If she did it on three or more occurrences, she could be prosecuted for criminal harassment. Depending on the rest of her demeanor, which does not sound terribly impressive, she could be prosecuted for something like disorderly conduct.

Swearing in public is not, in itself, a crime.

If the event had racial overtones, that opens a whole new door. The choice of bringing these charges would be the same, but the matter would probably be treated as a hate crime and therefore handled with much more attention.

“Given the story and her photo…it may just be that she is alittle bit wacky“.

That is a real possibility. That opens other doors to how this matter could be treated.

That will be taken up in tomorrow’s blog.

For the original story upon which this blog was based, please go to http://www.boston.com/metrodesk/2012/12/05/boston-woman-arrested-after-threatening-green-line-passengers-with-knife-transit-police-say/4c83rNbNaW2aTuOeXd99wM/story.html

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