SMETHPORT – If by James McMahon’s own admission, he was not
intoxicated when he killed another man in a bar fight in 2001, his
trial lawyer cannot be called ineffective for failing to use
intoxication as a defense at trial, argues the district attorney in
a motion in McMahon’s appeal.

District Attorney John Pavlock filed a reply to defense counsel
Greg Henry’s motion seeking a new trial for McMahon. Henry says
that the level of McMahon’s intoxication should have been
introduced into evidence at McMahon’s murder trial for the March 8,
2001, stabbing death of Link Dowell III.

Had that been introduced, Henry argues, the jury may have
convicted McMahon of third-degree murder instead of first, which
would have meant a sentence of about 40 years compared to the
sentence of life in prison McMahon is currently serving.

“… the sole issue in this case is whether trial counsel had a
reasonable basis to pursue an intoxication defense,” Pavlock wrote
in his brief opposing Henry’s motion. If there was no reasonable
basis, the counsel cannot be found ineffective, Pavlock said.

Testimony by friends of the McMahon’s that he consumed alcohol
and appeared to be drunk is insufficient “to support the conclusion
that the defendant was so overwhelmed or overpowered to be
incapable of forming the specific intent to kill,” the district
attorney argues.

Citing testimony from trial counsel Dennis Luttenauer at Post
Conviction Relief Act hearings in February and March, Pavlock said
McMahon told his attorney he was not drunk and “that was not what
the stabbing was about.” Because of that, “it was certainly
reasonable for trial counsel to not pursue that defense. In fact,
if trial counsel had presented such a defense when the defendant
denied that it existed, he would have been committing a fraud on
the court.”

Pavlock also presented testimony from friends of McMahon’s who
had been with him March 8, 2001, prior to the fight with Dowell.
Referring to the trial transcript, Pavlock cites testimony of
Sherri Delcamp, who mentioned that other people were drunk, but
makes no mention of McMahon’s level of intoxication.

Pavlock recounts a list of activities that McMahon was able to
perform – things that had he been drunk, his ability to perform
them would have been impaired, such as walking, playing pool,
throwing things, understanding and comprehending conversation,
talking without slurring words and driving without an accident.

Pavlock also cites letters McMahon wrote to two others while he
was at McKean County Jail. There was no mention of intoxication in
the letters recounting the events surrounding Dowell’s death.

“Further, the defendant specifically attributes the cause of the
attack to retaliation: ‘It was his fault. You know who that is. He
did this to me and himself. You know how I am about people touching
me. They just can’t get away with it.’,” Pavlock wrote in his
motion, quoting letters from McMahon.

In Pavlock’s conclusion, he again refers to McMahon telling
Luttenauer that he wasn’t drunk when he stabbed Dowell.

“He was able to talk, walk, run, play pool, identify his
brother, identify his friends, drive a car, plan his retaliation,
clean himself up and flee to Erie,” Pavlock argues. “None of these
actions are consistent with being intoxicated to the extreme extent
of being overwhelmed or overpowered by alcohol to the point that he
lost control of his faculties. Therefore, it was absolutely
reasonable for trial counsel to not pursue an intoxication
defense.”

Pavlock asked that McMahon’s request for a new trial be
denied.