6 of 7 trespassing convictions against Great Barrington man thrown out


GREAT BARRINGTON — "Our law does not permit punishment of the homeless simply for being homeless."

So says the state's highest court in a 24-page ruling issued Thursday which throws out six of seven trespassing convictions against a homeless Great Barrington man who sought shelter during the winter of 2014.

The decision hinges on a relatively narrow issue regarding jury instructions.

The Supreme Judicial Court ruled Judge Fredric D. Rutberg erred by not giving jurors in the case against David Magadini an instruction to allow them to consider a necessity defense.

The SJC said the common-law definition of that defense "exonerates one who commits a crime, 'under the pressure of circumstances,' if the harm that would have resulted from compliance with the law ... exceeds the harm actually resulting from the defendant's violation of the law."

American Civil Liberties Union staff attorney Jessie Rossman said in a statement, "The necessity defense provides a critical safety valve, which allows juries to acquit individuals when they determine that following the law would cause more harm than breaking it."

According to court files, Rutberg denied the request to provide a necessity defense instruction to Magadini's jury, concluding he had other, legally available alternatives to trespassing in order to find shelter.

Rutberg retired from the bench in February 2015 and is now president of New England Newspapers Inc., which operates The Eagle, and a part owner in the company that bought the newspaper group in May. Rutberg declined comment on Thursday.

The SJC found there was at least some evidence that Magadini lacked legal alternatives to trespassing during cold weather.

Magadini testified he was asked to leave Great Barrington's only homeless shelter, had once been denied entry to that shelter during a blizzard and unable to rent an apartment, despite repeated attempts to do so.

"The law does not require the defendant to continue to seek shelter ... in order to demonstrate that doing so is futile," according to the SJC ruling.

"Moreover, we are not prepared to say as a matter of law that a homeless defendant must seek shelter outside of his or her hometown in order to demonstrate a lack of lawful alternatives," according to the ruling.

In a telephone interview Thursday, Rossman said whether Magadini had means to move out of Great Barrington — which he refused to do, according to court files — or had made life choices that caused him to be homeless in the first place are irrelevant when considering a necessity defense. She said it requires consideration whether a defendant's actions at that moment were necessary or whether the penalty for taking those actions is less than the results of not taking them.

"This case provides a quintessential example of an instance where the necessity defense is required," she said. "Magadini trespassed in the hallway of mixed-use property, but only to escape bitter cold after being denied access to emergency shelter."

Rossman said the question of whether those trespasses were necessary should have been taken up by the jury as members of the community, and they should have received that instruction from the judge in order to consider it.

In Magadini's case, he was convicted of seven counts of trespassing occurring between February and June 2014.

At the time of the violations, he had active trespass notices of which he was aware from the three buildings in question: the Barrington House, Castle Street and SoCo Creamery.

With the exception of the trespassing at SoCo Creamery, which occurred on June 10, all of the others happened during conditions described as "cool," "cold" or "very cold," according to the decision.

He was sentenced to concurrent 30-day sentences on the trespassing charges, but those sentences were stayed while his case was under appeal, according to court records.

The SJC said Magadini could have a new trial on his overturned charges, leaving his conviction on the remaining charge in place.

Berkshire District Attorney David F. Capeless said Thursday that since Magadini was given 30-day sentences on those charges, it would be prudent to discuss the matter with the victims to see if they will request those cases move forward.

Capeless said those discussions will likely happen in the near future.

Magadini had been homeless since at least 2004 and typically lived outside year-round, but often sought shelter during cold weather, sometimes in private buildings.

In 2007, he was allowed to stay at a Great Barrington shelter but was asked to leave after about four months.

Magadini typically would live in Stanley Park or under the gazebo behind the Great Barrington Town Hall.

According to court records, Magadini considered the gazebo his home, going so far as using its address to register to vote.

Contact Bob Dunn at 413-496-6249.


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