One man’s clock is another man’s baloney. — Salvador Dali
We’ve all seen it. At home, at school, at the bar — some big guy picks a fight with a little dude and the little guy cleans the big guy's clock.
Leonard DeVilbiss, aka the big guy, said he only wanted to help Brandan Magill, aka the little guy, but got smashed on the head with a crowbar for trying to do the right thing.
Mr. Magill said that’s a bunch of baloney.
We all know baloney comes in slices, not bunches, and we also know that, like whistling up a dog, whoever calls the cops has law enforcement on his side, because the guy who didn’t call the cops probably (so the thinking at the police academy goes) has something to hide.
And so it happened that the State was prosecuting little guy Magill for assaulting with a deadly weapon causing great bodily injury to the big guy DeVilbiss.
Prosecutor Joshua Rosenfeld gave the jury the following narrative in his opening remarks last week: The defendant, little guy Magill, and his girlfriend, Michelle Atkinson, were traveling from Lake County because Ms. Atkinson wanted to buy a new car and had the cash money in her purse to buy it with.
In fact the purse contained heroin, but she was stingy with the dope, and had only given Magill $4 for gas to get from Lake County to Mendo so there they were at the Squaw Rock in broad daylight when…
But first. Squaw Rock is an historic Mendocino County landmark noted for a much more romantic myth than was to play out between big guy, little guy, and the little woman with the dope in her purse. It's said that long, long ago a spurned Indian princess had hurled herself to her death from the great rock's heights.
When the Lake County fun couple paused at Squaw Rock, and after a long exchange of vile insults and innumerable recriminations, little guy Magill went for a walk down to the river, “to retrieve his things Michelle threw down there” in the prosecution’s view. Or “to cool off and calm down,” in the defense version. Or to shoot up more heroin if you ask me.
Whatever the reason for Magill's walk to the waters, in the little guy's absence Michelle punctured his tires with a screwdriver and took off on foot down Highway 101 where she seems to have flagged down the big guy, begging him for help with the little guy stranded back at Squaw Rock.
When little guy Magill climbed back up from his restorative interlude by the river and saw his flat tires he took off after Michelle on his bicycle, which was conveniently stashed in the back of his grandpa’s borrowed Ranchero. But after a brief ride on the bike he gave up and laid down for a little nap on his handlebars.
Defense said he was exhausted from quarreling with Michelle. I say he was stoned on smack and nodded out, but I wasn't asked for my opinion.
Little guy Magill was still "resting" on his bicycle when Michelle returned in the company of a gallant big guy, Leonard DeVilbiss.
Michelle and little guy Magill, the latter now rested up and then some, resumed screaming endearments at each other, which appears to be the foundation of their relationship, and is not at all uncommon in contemporary love matches, especially the ones that turn up in court.
Big guy DeVilbiss, a carpenter by trade, apparently alarmed at the screaming match between little guy Magill and Michelle, the woman the big guy had been told was the wronged party in the dispute, picked a customized Vaughan nail bar out of his tool box and slipped it into his back pocket before going over to “help Brandan fix his flat tires.”
How exactly a nail bar would help repair flat tires went unexplained. Benign scraper or deadly weapon? It depended on who was wielding it.
A word about the Vaughan flat bar, a tool that every journeyman framing carpenter knows intimately, having started out with an old broken-toothed one, as a butt-boy apprentice, salvaging lumber from the scrapheap or tearing out the architect’s mistakes. The tool is made of tempered steel, an eighth of an inch thick, two-and-a-half inches wide, and 14 inches long, in the shape of a J, with a slight curve to the shank. But this one had been modified. The shank had been ground off on one side to form a blade with a point, so that it looked like a large knife — in fact, one passerby said he thought it was a knife; and little guy Brandan probably did too, when big guy Leonard pulled it out of his pocket, pointed it at little guy Brandan and shouted, “Gimme her shit back!”
When asked about the blade, big guy Leonard said, with a dismissive shrug, that it was used as a “scraper.” Well, I guess you could say it scraped his head pretty good.
Big guy Leonard is six-four, and weighs in at 220. Little guy Brandan is five-eight, tops, with the frail build of a junkie. Somehow or other little guy Brandan took a slash to the stomach, then all of a sudden the tool — magically transformed into a deadly weapon now that it was in the little guy's hands was slashing away at the big guy's head, and the big guy was on the ground with the furious little guy on top of him.
As the little guy flailed away at the big guy's head with the "scraper," a passerby, Susan Callagy, an instructor at Mendocino College, testified, “They were on the ground and the guy on top swung one, two, three times at the other man’s head.”
Deputy DA Rosenfeld asked, “How did the man on top swing the pry bar?”
“I’m not sure how to explain it…”
“Do you play tennis?”
“Was it like an overhand?”
“Yes! That’s how he swung it, overhand.”
“What was the woman doing?”
“She had no interest in the men at all. She hurried over to the one vehicle in front and grabbed something then ran back to the truck parked behind it. She never even looked at the guys who were fighting.”
Here one begins to wonder why Michelle ran off and left her purse full of “money” in the first place, back when she was puncturing the tires and her traveling companion, little guy Brandan, was taking his nature stroll along the river.
By this time, however, the jury had heard big guy Leonard testify that when he got his truck back — the cops gave it to Michelle, thinking she and Leonard were a couple when he was flown to the E Room at Santa Rosa Memorial — it was littered with spent syringes and empty “gobs,” the parchment packaging ($60-grams and $30-half-grams) heroin comes in. It put no great strain on one’s imagination to intuit that Brandan took the dope with him on his sojourn to the riverside — which sent Michelle into her tire puncturing rage, to make sure he didn’t leave with it while she went to recruit help in getting it away from him.
But the DA cared nothing for any of this speculative noise. Rosenfeld’s only object was getting the assault charges proved. To this end he continued to insist that there was money for a new car in the purse, the pry bar was a tool borne by the big guy good Samaritan, that little guy Magill was an evildoer who converted the tool into a deadly weapon, and Michelle Atkinson, the author of the whole show, was neither here nor there.
The Defense Attorney, a Mr. Justin Milligan from Sonoma County, argued that little guy Magill had acted in self-defense, simple as that. The jury agreed: Ms. Atkinson may have victimized Mr. DeVilbiss, but little guy Magill had merely defended himself, even if he had nearly beaten big guy Leonard senseless. As we all know, adrenalin takes over reason in combat situations where the odds are against us — as they were in little guy Magill's case. So when Rosenfeld argued that a reasonable person would not have over-reacted to DeVilbiss’s attack, he no longer had the jurors on his side.
When little guy Magill came back and found his tires flat, he called his father to come help get grandpa’s classic old Ranchero back home. Mr. Harry Magill had arrived at the scene just as the fight was ending. Mr. Magill said the vanquished big guy had offered to shake hands with his little guy son, a gesture big guy Leonard denied having made: “Why would I shake his hand? Fuck him! After what he did to me!?”
Indeed. As the defeated big guy was walking away from the field of battle, the little guy took a parting shot at the back of the big guy's head. The little guy's dad, Harry Magill, called his son's blow to the back of the big guy's head a mere “attention getter,” although one would think from the big guy's emergency room wounds that his attention had been thoroughly gotten prior to this parting blow from the little guy.
The verdict was a surprise when the jury came back the next day and said the little guy was “Not Guilty.”
Deputy DA Rosenfeld was more than surprised by the verdict. He was baffled, and somewhat indignant. And he was absolutely vindicated in these feelings, as the law is very clear on the point that in self-defense we may use only enough force as is reasonably necessary and not a gram or even a half-gram more. Rosenfeld had made the distinction clear to the jurors.
“Self-defense evaporates when your Daddy is standing there and the guy you’ve just beat the living crap out of is walking away, and you come up and take another shot at the back of his head with this thing, ladies and gentlemen, this deadly weapon.”
Rosenfeld took this opportunity to display, again, the bloody pictures of Mr. DeVilbiss’s battered and savaged scalp. Clearly, little guy Magill had gone too far — no question about it.
But who started it? That's what the jury was thinking. That's what most people would think. Little guy gets attacked by a big guy with some kinda tool in his hand as a weapon, but little guy beats the crapola outta the big guy with his own armament. Case closed.
Defense attorney Milligan didn’t do a very good job in refuting any of this. He painted his client in pastels that were too innocent by far. It was clear to everyone that the little guy was a man with only a tenuous hold on himself, and even at the defense table the little guy completely lost it, at first squirming, then gasping audibly, and finally trying to shout down the witnesses and nearly bolting out of his chair to attack them. Milligan had to stop in his cross-examination and take his client out into the hall for a good, old-fashioned ass-chewing. The jurors could hear them out there — the little guy defendant squealing like a shoat in a snare and Milligan shouting at his client to “Shut up you stupid ass, you’re ruining your own case!”
“But he’s lying!” the little guy shouted.
“Shut up, damn you! I mean it. You go back in there and sit down and shut up — and don’t you make another peep or I’m outtahere — got it?”
Even after his lawyer's dramatic admonitions, the little guy continued to squirm wildly at the injustice of it all. He was scarlet in the neck and face and ears. Frustrated squeaks escaped his clenched jaws. The little guy was the wronged party here! "I was attacked by this big mazoo and I defended myself. How the hell could I be sitting here at the defense table?"
The reckless fool wanted to take the stand, which really would have cooked his bellicose butt, but lawyer Milligan was able to talk the little guy out of it. But just barely.
Lawyer Milligan explained all this to judge Leonard LaCasse, who was filling in for Ann Moorman last week, and it took the little guy several tries before he could agree not to waive his Fifth Amendment rights and further incriminate himself. As with so many defendants, he had the right to keep quiet, but lacked the self-control to do it.
The jurors were able to detach themselves from the strict and uncompromising letter of the law and go with a gut feeling of what was just. Judge LaCasse trusted the jurors in this respect and overruled the lawyers, each in turn, regarding their objections to this or that piece of evidence being admitted. Defense attorney Milligan, for instance, didn’t want the jurors to hear a recording of his client’s obscenity-rich interview with the investigating officer, Matthew Casey of the CHP.
LaCasse sagely pointed out, “These modern-day juries are not made up of 19th century school marms, counselor. They’ve generally heard this kind of language before.” And when it came to prosecutor Rosenfeld’s attempt to preclude any mention of Ms. Atkinson’s highly questionable credibility the judge was decisively terse: “Denied.”
And certainly the jurors had to be wondering — even though they were instructed not to — why Michele Atkinson wasn’t in the dock instead of the little guy.
If Squaw Rock could talk…