On April 1, 1999, 63-year-old Gerald Brown, a lobsterman who fished the waters around Criehaven, an island 20 miles off the coast of Maine, accused another lobsterman, 40-year-old David McMahan, of making an obscene drawing on one of Brown’s lobster trap buoys. The two men had been engaged in a running quarrel for several years because other lobstermen considered McMahan to be fishing with too many traps.
The two exchanged “a number of salty, down-east expressions” on McMahan’s dock and then the confrontation became physical. When it was over, Brown was bleeding from the head after McMahan hit him with a gaff and the wooden handle broke in half.
Brown’s helper took photographs of the wounds, then helped Brown sell his day’s catch and stow his boat. Brown then drove himself to a hospital for treatment and reported the incident to the Knox County Sheriff’s Office. Two days later, on April 3, McMahan was charged with aggravated assault.
McMahan went on trial in Knox County Superior Court before Judge Francis Marsano who heard the case without a jury.
Brown testified that the 10 lobstermen on Criehaven had an agreement and map showing fishing territories and that only people who lived on the small island were allowed to fish in the island waters. McMahan had a home on the island, but the other lobstermen claimed he paid no attention to the agreement and map and fished wherever he wanted and with more traps than the agreement specified.
Brown said that in March 1999 he discovered an obscene drawing on the large round vinyl ball used to mark lines suspended in the water and suspected that McMahan was responsible. On April 1, Brown said he saw McMahan on his dock and confronted him. Brown said that when McMahan started “getting up in my face,” he pushed McMahan aside and attempted to leave the dock. Brown said he was struck from behind by the gaff more than once and that the gaff finally broke over his head. He said he picked up a pitchfork, but threw it back down because the fight was over.
McMahan’s attorney attempted to attack Brown’s credibility by introducing evidence of Brown’s past acts of violence and threats. Judge Marsano refused to hear the evidence. When the defense lawyer asked to make a presentation to put the evidence on the record, the judge told him to do it over the lunch hour when the judge was out of the courtroom and could not hear the description.
At the end of the prosecution’s case, Judge Marsano acquitted McMahan of aggravated assault, a felony, but allowed the case to continue on a lesser charge of misdemeanor assault.
McMahan testified that Brown was punching his fist into the palm of his other hand as he strode down the dock. The men began screaming at each other and McMahan testified that he was afraid that Brown was going to hit him. McMahan said Brown shoved him and was about to punch him and the next thing he remembered was that he and Brown had fallen off the dock and landed on the rocks where they were wrestling over a gaff handle. He said Brown got up and grabbed a pitchfork and made several threatening gestures before putting it down and leaving the area.
On January 6, 2000, Judge Marsano convicted McMahan of misdemeanor assault and sentenced him to 10 days in jail, but suspended the sentence and placed him on probation for one year.
On November 13, 2000, the Supreme Judicial Court of Maine vacated the conviction and ordered a new trial. The court ruled that Judge Marsano should have listened to the defense evidence in order to decide whether to admit it in evidence. That evidence, the court said, suggested “an ongoing practice by Brown and other fishermen to harass and drive out fishermen, such as McMahan, who would not comply with rules Brown and his associates attempted to impose.” The court found that the evidence was relevant to the issue of self-defense because of its bearing on “the reasonableness of McMahan’s actions and of his beliefs as to what might occur when Brown came onto his wharf.”
On April 21, 2001, the prosecution dismissed the charge.
– Maurice Possley