SMETHPORT – James McMahon’s former attorney wrongly relied on
McMahon himself to determine how drunk he really was when he
stabbed a man to death in a bar fight in 2001, defense counsel
asserts in a brief to McKean County Court.

After an eight-month delay awaiting transcripts in evidentiary
hearings to determine whether McMahon will get a new trial, defense
counsel Greg Henry has filed a brief in support of his Post
Conviction Relief Act petition that alleges prior counsel, Dennis
Luttenauer, was ineffective.

Henry explains that should the level of McMahon’s intoxication
been introduced to the jury by Luttenauer during the trial, McMahon
may have been convicted of a lesser degree of murder – third-degree
murder instead of first. With the first-degree murder conviction,
McMahon was sentenced to life in prison. With a third-degree murder
conviction, he would have faced a sentence of up to 40 years in
prison.

On March 8, 2001, in a fight at the bar of the Hotel Bradford,
McMahon stabbed Link Dowell III in the back. The tip of the knife
broke off in Dowell’s heart. He died that evening.

On Nov. 30, 2001, McMahon was convicted of first-degree murder.
He was sentenced Jan. 10, 2002, to serve life in prison. Luttenauer
did not introduce evidence as to McMahon’s intoxication at the
trial.

Under Pennsylvania law, intoxication is not a defense to a
criminal charge. However, evidence of voluntary intoxication may be
introduced to lessen the element of intent of first-degree murder,
according to the Pennsylvania Crimes Code.

Referring to testimony offered at hearings in February and
March, Henry states, “physical manifestations of intoxication (e.g.
reckless driving, loss of hand/eye coordination, and staggering and
falling into furniture) alone are legally sufficient to entitle a
defendant” to a voluntary intoxication instruction to the jury.

Witnesses who were with McMahon prior to the fatal fight
recounted at the February and March hearings the condition that
McMahon was in after consuming six to eight cans of beer, most of
two bottles of wine and about 13 mixed drinks of rum and cola – and
that was only an estimate of how much the witnesses could remember
McMahon consuming, Henry stressed in the brief.

Those witnesses were never asked to tell that to the jury,
however. Henry explains that Luttenauer “did not present the
intoxication defense because it was inconsistent with his pitch for
voluntary manslaughter,” and that he believed there was
insufficient evidence to support it.

“He believed this because he unwisely relied on an intoxicated
defendant to accurately report his consumption and because he
failed to appreciate numerous clues which demanded that he conduct
an adequate, hands-on investigation of the extent of (McMahon’s)
drinking and his manifestations of intoxication,” Henry wrote.

Luttenauer did not investigate McMahon’s level of alcohol
consumption, nor did he direct anyone to investigate it, according
to Henry. He did not meet with a witness who spent the day with
McMahon prior to the fatal fight, Henry said, referring to Sherri
Delcamp, who testified at the hearings in 2006.

Had he asked her about McMahon’s level of intoxication, she
could have provided enough information for Luttenauer to request a
voluntary intoxication instruction to the jury at McMahon’s trial,
Henry said.

And Luttenauer also knew that the victim, Dowell, had been a
larger man than McMahon and was found to have a blood alcohol
content of .22 percent. Dowell had not been drinking as much as
McMahon had, Henry said.

“Based on these things alone, Mr. Luttenauer should have
suspected that the defendant’s blood alcohol level was even higher
than that of (Dowell),” Henry wrote. However, that was not used to
request a voluntary intoxication instruction either, he said.

Henry also states that McMahon “denies that Mr. Luttenauer
explained to him that his voluntary intoxication might negate the
intent required for first degree murder.” But even if Luttenauer
did tell him about it, “this would not absolve him from his
failures to properly investigate the extent of (McMahon’s) drinking
and its manifestations.”

A reply from the District Attorney’s office to Henry’s motion is
due to be filed in McKean County Court before the end of January,
according to the criminal docket.