Attorneys appeal trespassing conviction of homeless Great Barrington man


GREAT BARRINGTON — Attorneys for David Magadini, the town's most prominent homeless man, tried to sway a panel of judges on Monday that he was unjustly sentenced to jail for trespassing in various businesses last winter.

Magadini, who was not at the Supreme Judicial Court hearing, is a former ZBA and Conservation Commission member who has opted to be homeless since 2007. He still owns property in town, including a house, but he has insisted that it is his right to want to rent an apartment.

Magadini is appealing "no trespassing" orders issued by several building owners in town. He is accused of violating those orders on seven specific dates between Feb. 20 and June 10, 2014, although the local building owners have stated in the past that he has repeatedly trespassed on their property during the past seven years.

On Sept. 29, 2014, Magadini was found guilty of trespassing on all counts by a jury trial in Southern Berkshire District Court. Former Justice Fredric D. Rutberg sentenced Magadini to a month in the Berkshire County Jail and House of Correction.

Magadini's attorney filed an appeal on Oct. 14, 2014, which culminated in Monday's Supreme Judicial Court hearing.

It could be several months until the seven-judge panel hands down its decision.

The hearing at the John Adams Courthouse in Boston featured oral arguments from Magadini's attorney, Joseph N. Schneiderman, ACLU attorney Jessie J. Rossman, who filed a brief in support of Magadini's appeal, and former Berkshire Assistant District Attorney John Bosse on behalf of the commonwealth.

Arguments focused on Rutberg's instructions to the jury in Southern Berkshire District Court.

Both Schneiderman and Rossman explained to the appellate court that Rutberg did not explain the "necessity defense" to the jury in his final instructions before their deliberations.

The "necessity defense" posits that a defendant did not intend to break the law, did not intend to hurt anyone in breaking the law, and had no choice but to break the law for his safety.

In this case, Schneiderman said, the potential harm was freezing to death.

Rossman said Rutberg "usurped" the jury's ability to decide the case fairly in failing to instruct them properly.

Bosse, in rebuttal, contended that Magadini admitted he had the financial resources to rent an apartment. In addition, he said, Magadini offered no evidence that he had exhausted all avenues for shelter. Thus, the necessity defense was not required.

At his trial, Magadini testified that he had been turned away from Construct Inc., a nonprofit housing entity in Great Barrington, and that no landlords in Great Barrington would rent to him. Magadini also emphasized that he wanted to live in Great Barrington because it's his birthplace and he's lived his life in town. He is 68.

That testimony confounded Supreme Court Judge Robert J. Cordy.

"If I can't afford to live in a town, do I have the right to stay there and say to the landlords, 'Figure out a way to accommodate me'?" he asked.

Schneiderman did not disagree. But, he said, that decision was up to a jury, which was denied that right by Rutberg's instructions.

Judge Geraldine S. Hines was troubled that Magadini's sought to shelter in private property.

Schneiderman said that some of the buildings in which Magadini took shelter had public spaces, including the Barrington House and an apartment building on Castle Street.

"There is access to the public," he said.

"It's still private property," said Hines.

Bosse told the court that Magadini was "obligated to work with landlords in finding shelter, not seek assistance from the courts. He has the financial resources to rent an apartment."

Contact Derek Gentile at 413-496-6251.


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