State official claims police targeted her after alleged assault

Jillian Fennimore and Chris Helms, staff writers

A judge heard arguments that the assault and battery case against Marilyn Devaney should be thrown out on grounds police hold a vendetta against her.

During a Waltham District Court hearing on Tuesday morning, attorneys argued a key defense motion. The veteran Watertown town councilor is charged with allegedly throwing a boxed curling iron at a store clerk last April. The clerk would not take Devaney’s check because Devaney did not have a driver’s license.

The judge could rule on the motion to dismiss by the end of the week.

Devaney’s attorney, Janice Bassil argued police treated her client unfairly, and that Devaney, also a member of the Governor’s Council, was “singled out” because of her position as a public official.

“This is discriminatory prosecution of Mrs. Devaney based on who she is,” Bassil said. “There is no other explanation for it.”

In her motion, Bassil referred to 30 Waltham police assault and battery reports that resulted in different actions by police. Bassil said in some of the reports, parties were asked to seek their own complaints or were summonsed for “show cause” hearings. By contrast, Devaney was charged with a felony.

“If Mrs. Devaney was anybody but who she is, this case would be dismissed,” Bassil said. “She has for some reason been singled out.”

Judge Gregory Flynn sought more evidence for Bassil’s argument that police were deliberately unfair.

“You could be right, but I need a showing; I can’t speculate,” Flynn said to Bassil. “You have to show me it’s because she is a public official. The fact that she is [a public official] might not be enough.”

But Bassil said she doesn’t have to prove that, and placed the onus of the “disparate treatment of a public official” on the Commonwealth.

Assistant District Attorney Sean Casey argued that the reports cited by Bassil were not all analogous to Devaney’s case. He said they ranged from seven cases involving school-aged children to four spats between coworkers. In five instances, neither party pursued claims. Four of the incidents resulted in arrests or charges.

Casey said Devaney’s is not a “protective rights case,” a term used in cases of bias based on race or sex.

“There is no showing that she was prosecuted because of who she is,” he said. “The Waltham Police Department absolutely acted appropriately in its investigation.”

Bassil isn’t arguing racial or sexual bias, but rather that Devaney faces a “much larger level of prosecution” as a result of exercising her Constitutional right to free speech as a citizen and elected official.

Bassil, in her efforts to convince the judge, said there was no state case law on the subject. But she offered two federal cases in support of her argument. Both dealt with the government’s infringement of a citizen’s First Amendment rights. One case dealt with a war protester challenging the draft, the other a resident refusing to fill out his census sheet.

In Devaney’s case, Bassil said she should have also received constitutional protection.

“She is a politician who speaks her mind,” Bassil said.

Flynn repeatedly asked Bassil if in those federal cases there was a “nexus” between speech protected by the First Amendment and the crime the person was charged with.

Flynn said that if, hypothetically, Devaney was known to “constantly” speak out against the police, that might show a link between the speech and the alleged crime.

But Devaney’s lawyer signaled that sort of linkage was not her legal strategy.

“She does do that, but that’s not what I’m arguing,” Bassil said.