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Weymouth

Mother’s disorderly conduct conviction overturned

The state Appeals Court has ruled that Weymouth police acted improperly when they charged a woman with disorderly conduct in the spring of 2009, and overturned her conviction.

Mariann Gardner served almost a week in MCI-Framingham on a six-month sentence before she was released pending the appeal of her guilty finding in Quincy District Court, according to her attorney, Lauren Thomas.

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“Now she doesn’t have to go back,” Thomas said. “Quite honestly, we were so happy the right thing happened. We felt this was a terrible injustice.”

A spokesman for the Norfolk district attorney’s office, which prosecuted the case, said the Appeals Court’s July 2 decision was under review. “We are deciding whether to appeal” to the state Supreme Judicial Court, David Traub said.

Weymouth police did not respond to several phone calls asking for comment on the decision.

The case began in May 2009 when police received an anonymous tip that someone had a hand gun in House Rock Park, a municipal park with a basketball court, playground equipment, woods, and a giant glacial boulder.

No weapon was found, police said. But several youths, including two of Gardner’s sons, were at the park and she was called to take them home while police continued their investigation, according to court documents.

The police and Gardner differ as to what happened next.

According to Gardner’s attorney, one police officer told Gardner she could take her sons home, but a second “officer came up out of nowhere, yelling and screaming. She tried to explain that another officer had said it was OK, but he was in her face yelling, and yelling at her daughter, who had come with her and who had gotten out of the car,” Thomas said.

Gardner reacted, Thomas said, by “putting her mom hat on. She starts yelling to her daughter to get back in the car, to her sons. She turns to the officer and said, ‘You are a police officer; you should know better than yelling like this.’

“He didn’t take kindly to that. He grabbed her, threw her against the son’s car; he pulled her arm behind her back, fracturing her wrist,” Thomas said. She said Gardner left the scene in an ambulance and was charged with disorderly conduct.

According to the police, Gardner ignored orders to stay away from her son’s car and when an officer “put his left hand on her right arm, she spun around with clenched fists.”

The Appeals Court decision focused on whether police had sufficient reason for the disorderly conduct charge – and concluded that they didn’t.

“The Commonwealth argues that when a person faces an officer with clenched fists, it is sufficient to permit an inference that the person is engaged in fighting or threatening behavior” — a justification for a disorderly conduct charge, the Appeals Court wrote in its decision.

“However, without some further indication of hostile intent by means of words or conduct, such as swinging or lunging at the police officer, shouting obscenities, or throwing something, the evidence of clenched fists is insufficient to warrant an inference that the defendant was making a threat or engaging in fighting behavior,” the decision said. “There is no evidence that when [Gardner] turned around, she took any steps toward the officer or spoke any words indicative of a threat or an intent to engage in combat.”

In addition, the decision said it was “significant that [Gardner] was invited to the scene by police to pick up her son” and her conduct “served a legitimate purpose.”

A three-judge panel of the Appeals Court – Judges Elspeth Cypher, R. Malcolm Graham, and Peter W. Agnes Jr. — overturned the guilty verdict reached in Quincy District Court on Aug. 17, 2009.

Thomas said that it was unusual for a disorderly conduct case to reach the Appeals Court, but that Gardner had refused to accept a plea bargain and decided to go to trial.

“She is a very proud person who has always respected police authority and she felt very violated and embarrassed and upset,” Thomas said. “She refused to plead guilty to something she didn’t do and the DA’s office refused to budge, refused to give her an offer of any plea that would maintain her innocence.”

Thomas, who is with Sinsheimer and Associates in Boston, said Gardner is considering a civil suit against the town.

“We haven’t made any decisions on that,” Thomas said. “It’s a big investment of time, and you open up your personal life a lot.”

Asked how the Appeals Court decision reflects on the Weymouth Police Department, Thomas said: “Like any police department, there are a lot of really good people who do their job well and try very hard to do the right thing. And sometimes there are individuals who maybe need a little extra training, or who are a little out of hand. That is not unique to Weymouth.”

Johanna Seltz can be reached at seltzjohanna@gmail.com.
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