(c) Whoever:There has been a rather strident campaign launched in support of Mr. Vassell and my former post elicited a response which laid out the factual position claimed for Mr. Vassell and asked me to read the Defense's Motion to Dismiss.
(i) by means of a dangerous weapon, commits an assault and battery upon another and by such assault and battery causes serious bodily injury;
. . .
shall be punished by imprisonment in the state prison for not more than 15 years or in the house of correction for not more than 21/2 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.
(d) For the purposes of this section, "serious bodily injury" shall mean bodily injury which results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.
I did. It moved me much further along the line toward belief in Mr. Vassell's guilt of A&B (the gradation of the appropriate final conviction I am still uncertain of). Let me explain.
Apparently Massachusetts allows for the pretrial dismissal of a case if 3 conditions are met:
In order to obtain a dismissal on the basis of selective enforcement, the defendant must initially offer evidence that reasonably permits an inference of unlawful discrimination by showing thatDefense counsel does yeoman's work trying to stretch this test to cover the facts of the case at hand. He expends a great amount of effort showing that the "victims" in this case were brutish, aggressive, racist cretins. He shows some strong indications that law enforcement jumped to some improper conclusions. Yet, he never gets past the first test.
(1) a broader group of persons than those prosecuted has violated the law;
(2) the failure to prosecute others was either consistent or deliberate; and
(3) the decision not to prosecute others was based on an impermissible classification factor such as race, religion, or sex.
If the defendant satisfies that initial burden, the Commonwealth must then rebut the inference that there has been selective enforcement, or the case will be dismissed.
Commonwealth v. Palacios Docket 05-P-52
The way the defense tries to get past the first test is to conflate the assault by one of the "victims" and the assault and battery by the other "victim" on Mr. Vassell with the assault and battery with a weapon by Mr. Vassell. There are two flaws in this. First, neither of the "victims" used a weapon as required by the statute Mr. Vassell is charged under and thus could not have been part of the same group as Mr. Vassell. Second, it's doubtful that the case from which this test comes is talking about a small group. Palacios is about a claim of selective enforcement of DUI and driving with a suspended license against a driver based upon his ethnic background. The "group" would be all drivers - a rather large group.
Even if a group of 3 people was sufficient, the presence of only one weapon, the knife held by Mr. Vassell, causes the defense's argument to fail the second test. There cannot be a consistent or deliberate failure to prosecute the "victims" because it is impossible to charge them under the same law.
Why would defense counsel put this argument forth? Because Mr. Vassell is in a world of hurt. By the defense's own statement of facts after the initial conflict Mr. Vassell picked up a knife, carried it to the location of the second conflict, and drew it before he was physically attacked.
I don't know Massachusetts case law, but if it is anything like Virginia, the use of fists (as the victims did) carries with it a inference that the intent is not lethal while the use of a knife (as Mr. Vassell did) carries the opposite inference. When Mr. Vassell brought and drew a knife he unilaterally escalated to the use of lethal force. On the facts, it appears that Mr. Vassell is guilty of that which he is charged.
On the other hand, Paracios also states that in Massachusetts
If the defendant's charge of racial profiling is not established prior to trial, it may not subsequently be raised again as a defense. However, we distinguish between racial profiling and racial bias. Denial of the motion to dismiss does not by itself eliminate the right of either party to challenge at trial the testimony of a witness on the ground of racial bias. The right to cross-examine a witness regarding racial bias is not unfettered, however, and the judge may reasonably limit the extent and scope of cross- examination on this, as on any other, subject. Where the defendant makes no plausible showing to support his claim of racial bias, the judge may prohibit reference to a witness's alleged bias altogether.In other words, the defense might not have the law or facts of the second conflict on its side, but it has all sorts of impeachment evidence which it could use to make the prosecution's "victims" look very bad and damage law enforcement witnesses as well. And it's just demonstrated that to the prosecution.
This motion strikes me as a gambit played as part of negotiating a plea. The defense is showing that it will move forward with self defense bolstered by the ability to impeach the victims to shreds. Still, it has to take into account the fact that Mr. Vassell brought a knife to a fist fight and drew it first. In the end, I'd be surprised if this went to trial because of uncertainty on both sides (unless it has become so blown up that one side or the other won't back down or the facts are even more anti-defendant than the motion lets on).