State’s Top Court Weighs New Defense for Homeless Man Accused of Trespassing to Escape Dangerous Cold

Photo: Alena Kuzub

A case argued before the Massachusetts Supreme Judicial Court this month could have major implications for those who trespass to escape dangerously cold winter nights.

Justices heard an appeal in the case of David Magadini, a 67-year-old homeless man from Great Barrington who was sentenced to 30 days in jail last year after he was found guilty on seven counts of trespassing.

Lawyers for the accused said that on five of the nights he was discovered trespassing by police, Magadini undertook the illegal measure to escape, at times, near-zero temperatures.

But District Judge Fredric Rutberg did not allow Magadini’s counsel to make a necessity defense before the jury, a decision his lawyers believe violated their client’s rights to a legal defense and forced the jury to convict.

In layman’s terms, a necessity defense argues that a defendant had no choice but to break the law, normally in order to avoid a greater harm. Examples might include trespassing onto private property to escape a dangerous animal, or breaking the speed limit with a life-threatening injury in order to ensure a timely arrival at a hospital.

Lawyers for Magadini say he and other homeless individuals in the state face a similar dilemma during dangerously cold winter nights:

“A homeless person who trespasses while seeking shelter from extreme weather undertakes a quintessential example of lawbreaking by necessity,” an amicus brief filed by numerous organizations, including the ACLU of Massachusetts, reads. “In this case, a homeless person…who could not access an emergency shelter or rent an apartment, trespassed into the hallway of a mixed-use private property to seek warmth and shelter from a bitter winter night in February 2014.”

To be clear, if justices find in Magadini’s favor, the ruling would not give individuals the right to trespass during extreme weather — rather, those accused of trespassing under those circumstances would be allowed to argue they broke the law out of necessity, and let a jury decide.

“It’s quite possible the jury would have convicted Mr. Magadini on these facts, even if they had been given the jury instruction,” ACLU of Massachusetts staff attorney Jessie Rossman told the justices. “But we don’t have an answer to that question because the judge usurped [the jury’s] role to consider that question of fact.”

Additionally, under Massachusetts case law, a jury weighing a necessity defense must consider whether four specific criteria are met:

1. At the time of the crime, the defendant was faced “with a clear and imminent danger,” specifically, one that is not “debatable or speculative.”
2. The defendant must reasonably expect that his behavior will be “effective” and a “direct cause” in escaping the danger.
3. There is no “legal alternative” that would be effective, and
4. Legislators have not passed laws barring the defense “by a clear and deliberate choice” about “the values at issue” in the case.

Assistant District Attorney John Bosse asked justices to uphold Magadini’s conviction, arguing the defendant failed to meet the third criteria and that effective “legal alternatives” were available to him.

“[Magadini] indicated he had sufficient money to rent an apartment…[and] testified that he looked for an apartment in Great Barrington,” Bosse said. “When the prosecutor asked if he looked to surrounding communities, he said ‘I was born here, I lived here my whole life, I intend to stay here, I refuse to leave Great Barrington.’”

Magadini’s legal team argued that, when considering necessity, Massachusetts case law is traditionally concerned with the most immediate circumstances surrounding the crime committed, and that taking into account Magadini’s behavior over the past few years — for example, electing to stay in Great Barrington when he may find housing in a neighboring town — would “fundamentally change the way this court always analyzed” necessity.

“We always look at what is occurring at the time of the crime in question,” Rossman told the court.

Justice Robert J. Cordy seemed to disagree, at one point asking Magadini’s lawyer Joseph Schneiderman how his client wasn’t confronting an emergency of his own design that cold February night.

“If you have intentionally created the emergency by staying in a town where you cannot afford to live, where you know it will be cold…isn’t that different?” he asked. “You say ‘take a picture,’ and it was cold that night…but that doesn’t make sense in this case I don’t think.”

“You cannot enhance or aggravate risks, and that is absolutely a common thread in Massachusetts jurisprudence on necessity,” Schneiderman replied. “I believe, though, that [this] reads too much into the record to say he is aggravating risk because he is choosing to stay in Great Barrington…Mr. Magadini, by his own testimony, [says] ‘I use blankets, I use scarves, I use gloves,’…in the end, it should be up to the jury to make the ultimate decision whether blankets, scarves and gloves protected him, or he engaged in intentional aggravation.”

Magadini, who became homeless in 2005, also testified at his trial that he briefly stayed in Great Barrington’s sole homeless shelter, Construct, in 2007, but was kicked out for “certain reasons” about which he did not elaborate. The second nearest shelter is 20 miles from Great Barrington.

Bosse told the court Magadini should have tried to reapply to Construct instead of trespassing on private property, prompting some incredulity from Justice Geraldine Hines.

“Is [going to Construct] a viable alternative, at 1 in the morning?” She asked.

“I think it’s reasonable to assume that if he was willing to comply with the rules at 1 in the morning they wouldn’t have turned him away,” Bosse replied.

“Oh come on,” she countered. “They’re going to do an intake interview at 1 in the morning?”

“They’re probably the most caring people on the earth, people who work at shelters, directors of shelters,” he said. “I don’t think they’re gonna turn him away if he’s willing to work with them.”

Bosse added that Magadini could have approached police for help, but as the complaint observes: “Mr. Magadini could also reasonably reject soliciting the aid of the Great Barrington Police. None of the officers offered him aid and would actually dispatch him back into the cold. For the police to act, Mr. Magadini would likely need to request to be arrested for committing criminal vagrancy (G.L. c.272, X66) because of his homeless status.”

The body had not issued a ruling by time of publication Sunday.