Frank Hebert is not guilty of assault for hitting child molester
Photo by Ralph Stewart
Wheelchair-bound Frank Hebert of Vineyard Haven, on trial for assault and battery with a dangerous weapon after he struck accused child molester Joshua Hardy with a Louisville Slugger baseball bat, is not guilty. Edgartown District Court Associate Judge Thomas S. Barrett delivered the verdict Monday.
Judge Barrett presided over a bench trial, in which the judge, with the agreement of the defendant, decides a case without a jury.
Mr. Hebert was accused of hitting Mr. Hardy of Middleboro in the arm. Mr. Hardy is married to the daughter of Mr. Hebert's companion. The couple has one child.
It took a little more than one hour for Judge Barrett to hear the case. He issued the not guilty decision immediately and with no pause or recess.
"This court does not condone any kind of vigilantism," Judge Barrett said, prior to delivering his decision. "As tempting as it might be, that's not the way to address these issues."
Mr. Hardy was not in the courtroom Monday and did not make a statement. He in jail in the Plymouth County Jail. His bail was set at $35,000 cash. He awaits trial on five counts of indecent assault and battery on a child and one count of dissemination of obscene material.
On February 22, Mr. Hebert, confined to an electric wheelchair after an automobile accident, was in his computer store, Mac/PC Sales and Service, on State Road in Vineyard Haven, when he confronted Mr. Hardy with evidence that the latter had molested a three-year-old, whom Mr. Hebert regards as his granddaughter.
At first, Mr. Hardy denied the accusations, according to Mr. Hebert.
"After a couple of minutes, he said, 'Fine, I did it, what are you going to do about it' and then started laughing," Mr. Hebert told a reporter in a conversation following his arraignment on March 25 on a charge of assault and battery with a dangerous weapon, a Louisville Slugger baseball bat. "He got up to leave, and that was it, I hit him."
According to a State Police incident report by Trooper Robert Branca, dated February 24, during a weekend visit in February, Mr. Hebert learned that Mr. Hardy may have sexually assaulted his companion's granddaughter and used a cell phone to take sexually provocative photographs of the child.
Upset, on February 22, Mr. Hebert called Trooper Branca. Mr. Hardy was on his way to the Island to collect his stepdaughter, and Mr. Hebert wanted him arrested.
The State Police officer contacted Middleboro Detective Robert Lake, who said there was no warrant outstanding for Mr. Hardy at that time, but that he was conducting interviews in the course of an investigation into Mr. Hardy's activities. Trooper Branca told the detective he would remain in contact.
Mr. Hardy planned to pick up the girl at 4:30 pm and then catch the 5 pm ferry back to the mainland. Even as Mr. Hardy was traveling to the Vineyard, Mr. Hebert and his family were on the phone with Middleboro Police.
Mr. Hebert advised Trooper Branca that he expected Mr. Hardy at his store between 4:30 pm and 4:45 pm and that he was worried he might run away if he saw police.
"I explained to Hebert that if Hardy arrives at the store before the police arrive, not to confront Hardy," Mr. Branca wrote. "Hebert assured me that he would not touch him. However, he did state he wanted to confront him, due to the circumstances."
Trooper Branca arrived at the Mac Sales Store soon after the confrontation.
"I was then met by Hebert. I asked where Hardy was. He told me, 'He's right here, crying like a baby.' I observed Hardy sitting in a chair clutching his right elbow."
Asked why he had a bat, Mr. Hebert told The Times, "Fear. I didn't think it would go as well as it did. All I told him to do was sit in the chair and wait for the State Police."
And, about striking Mr. Hardy with a baseball bat, Mr. Hebert said, "It's just not ever what I envisioned. Not me. Hell, I can't even stand up. How much damage can I do anyway?"
The office of the Plymouth district attorney prosecuted the case. Cape and Islands district attorney Michael O'Keefe handed the case off to the Plymouth prosecutor, because Janice Bassil of the Boston firm of Carney and Bassil represents Mr. Hebert, and her firm also represents Mr. O'Keefe.
In July, the Plymouth prosecutor offered Mr. Hebert pre-trial probation as reasonable disposition in the case. Mr. Hebert was adamant that he did nothing wrong and rejected the deal in favor of a trial.
In court on Monday, Ms. Bassil painted a different picture. Mr. Hebert was less the avenging grandfather portrayed in the Boston Herald and on national news shows last winter and more a stumbling invalid who stuck Mr. Hardy inadvertently when he stumbled after using the Louisville Slugger he kept by the door to prop himself up.
Plymouth County Assistant District Attorney Frank Ribeiro called State Police Trooper Robert Branca as his first witness. Mr. Branca described the sequence of calls he received from Mr. Hebert and what he saw when he responded to the scene.
Ms. Bassil asked Mr. Branca if there was a follow up investigation. The trooper said there was not. She asked for an immediate decision.
"The Commonwealth failed to show deliberate intent," Ms. Bassil said. "This is a man in a wheelchair that can barely hold up his right hand to be sworn in. The Commonwealth hasn't proved anything."
Judge Barrett denied her motion.
Under questioning, a customer who was in the store at the time said he never saw Mr. Hebert aim or swing his bat but did see it come out of his hand.
Ms. Bassil asked Mr. Hebert how he felt upon learning that his granddaughter was molested. "I couldn't believe it," Mr. Hebert said. "The child was still in diapers."
He described the confrontation. "I blocked the door," Mr. Hebert said. "I'm in a mechanical wheelchair all day that holds up my head. It blocks the entire door, you can't get out."
"I just asked him why did you do this. He just smiled and said 'What?'"
Mr. Hebert told the judge he asked Mr. Hardy again and showed him a computer disk. "I said we have proof. He said, 'Fine, I did it, so what, nobody's going to care.' I said 'I care,'" Mr. Hebert testified.
Mr. Hebert said Mr. Hardy moved toward him as if to leave. "I grabbed the bat and said 'you're not going anywhere, except to jail.'"
Mr. Hebert said he put the bat at the door for protection. He said he used the bat to push himself up out of the wheelchair and fell forward onto a table.
"It (the bat) went flying," he said.
"Did you intend to hit Joshua Hardy with the bat?" Ms. Bassil asked.
"No," Mr. Hebert said.
"Did you intend to hit Joshua Hardy, because he molested your granddaughter?" Ms. Bassil asked.
"No," he answered.
"What was your state of mind?" she asked.
"Disbelief that anyone could do that to a little tiny child," he said.
Assistant District Attorney Ribeiro questioned Mr. Hebert about interviews with various media outlets in which he said that if he had to do it all again, he would. He led Mr. Hebert through the sequence.
"An accident isn't going to cause bruising and swelling from one foot away," the prosecutor told the judge. "The story doesn't make sense, it's not credible. He was trying to get his own vengeance. He hit him with the bat. He did it intentionally."
Following the verdict, Ms. Bassil said, "I am greatly relieved that the court saw that Frank was not guilty of these charges. As I have said before this was a foolish case to prosecute and it should never have been charged. This was a waste of taxpayer dollars."
Mr. Hebert was equally relieved. "I'm just shocked that they wanted to prosecute," he said.
About the verdict, he said, "It doesn't do anything for my granddaughter, except now I'll be around to tell her it will be okay and try to explain things to her. I'm worried about her future, not his. It's beyond fathoming that anyone could do this."