The Intersection (part 3)
By Jacob Baynham
PART TWO: THE TRIAL
The police caught Paul almost immediately. An off-duty detective in the area heard the call come over the radio and intercepted Paul’s pickup at 13th and Elm. Paul turned into an alley, jumped out of the truck and leapt over an eight-foot privacy fence. The officer pursued on foot, and eventually Paul surrendered. He led the officer to his gun, which he had stashed in a trash bag. As his hands were cuffed, he said, “A big black guy was beating up my girlfriend, and I shot him.”
Hours after the shooting, Friel and the Xavier students were sitting in the police station, waiting to give recorded testimonies. Ducky’s wife was there, too, as were Paul and Cousins. “It was like sitting across a living room,” Friel says. The students felt out of place. “We were supposed to just be going to a farm on the Indiana countryside,” Sheibley says.
Looking around the room, Friel thought people must have been wondering, “ ‘Who are these guys in their big white van?’ It was ironic that we, the outsiders, were the firsthand witnesses.”
The Common Thread
Unlikely as it was, Xavier became a common thread throughout the incident. There was the vanload of witnesses. Then there was Paul’s defense attorney, Michael McDaniel, a local lawyer who graduated from Xavier in 1965. And the judge who tried the case, Floyd County Judge Terrence Cody, is a 1971 Xavier alum.
Paul’s trial began on March 30, 2004, two days after Xavier lost to Duke in the Musketeers’ first NCAA Elite Eight appearance. If Xavier had won the game, the trial may have been delayed because one of the student witnesses was traveling with the team in the pep band. Xavier had beaten Louisville two weeks earlier, much to the chagrin of one of the jury members, who was a former UofL player. McDaniel and Judge Cody ribbed him about it throughout the trial.
McDaniel has practiced law in New Albany for 44 years. He has white hair, a toothbrush moustache and round, rosy cheeks. When he laughs, which is often, his eyes disappear into crinkles behind his glasses. His speech is deliberate, and he walks at a pace that’s appropriate for a town with 25 mph speed limits. He played fullback for the Xavier football team and still has a loose vertebrae on account of a hit he received during a punishing loss against the Quantico Marines. He wears a navy suit and drives a 16-year-old Blazer with no air ?conditioning. A carton of Doral Reds rides shotgun.
McDaniel’s courtroom opponent in the trial was state prosecutor Steve Owen, a slick attorney from Gary, Ind. Two jurors pulled McDaniel aside and said, “That boy ain’t from around here, is he?” Owen wore a gold chain on his left wrist and derided the local ?pronunciation of “voir dire” during the first day of jury selection. Later that day, Judge Cody took an opportunity to correct Owen’s pronunciation, when the prosecutor referred to the student witnesses who would be testifying in the trial.
MR. OWEN: They are all from (Eggs)avier University.?
THE COURT: Mr. Owen, it’s Xavier.
MR. OWEN: Xavier.?
MR. MCDANIEL: Thank you, Your Honor.
MR. OWEN: I’m sorry, Your Honor.
THE COURT: You’re offending me.
MR. OWEN: I know. Unintentionally. Xavier University.
Owen was an outsider in New Albany. “He did not resonate with the jury,” McDaniel says. “He has a different accent than we do here.” McDaniel, on the other hand, used familiar vernacular and a mellow Southern drawl. He even got the jury to laugh once or twice. (“You make a jury laugh in a murder case, and they don’t convict a murder.”)
McDaniel was familiar with the individuals involved in the shooting at Bottles Unlimited. Years earlier, he represented Ducky’s father, a truck driver who was killed in crossfire between two people arguing over a $15 debt outside The Climax Café nightclub, in a case. He also represented the man who shot Ducky’s father. McDaniel had even been at the same liquor store, his favorite in New Albany, hours before the shooting. “This is a little town,” he says.
McDaniel’s defense strategy was simple. “I was trying to make Barnett an aggressive guy who grabbed the girlfriend and prompted Paul to step out and whack him.” The fact that Ducky, Lisa and Bogard had just been over in Louisville buying crack cocaine only helped his case. So did the local support for the right to protect oneself and one’s loved ones by whatever means necessary. “Around here, you almost need to be an evil person to be convicted of a murder,” McDaniel says.
McDaniel knew from the start that Paul was not that sort of person. “Steven was an odd duck,” he says. “His goal in life was to become a pro skateboarder. Better than having a job, I guess. Truth be known, he’s probably a spoiled brat. But I don’t think he’s a guy who will ever get into trouble again.”
But McDaniel’s personal opinions of his clients never interfere with his work as a defense attorney. They can’t. “If somebody isn’t out there forcing the state to present its case properly, then it’s easier to put people in jail,” he says. “Some of those people will be innocent.”
McDaniel argued the case well. At the end of the trial he put Paul on the stand to testify that Ducky was strangling and punching Cousins.
It didn’t matter that none of the other witnesses saw Ducky hit her and that every Xavier witness pointed to Cousins as the aggressor. On April 6, 2004, Paul’s 26th birthday, the all-white jury convicted Paul not of murder, but of aggravated battery.
“I don’t know if he realized what a deal he got,” McDaniel says. “He was never remorseful about shooting Ducky.”
Sheibley and four Xavier students came back to New Albany to testify in the trial. Gibson was one of them. She recalls a moment in the courthouse between testimonies when Ducky’s wife, Lisa, showed them pictures of Ducky with his children. It was the first time Gibsonsaw the victim as a man with a face, a smile and a family.
“It wasn’t until then that I’d thought of him as a person who’d lost his life,” she says.
Sheibley remembers the moment, too. “We were together in a room back there,” he says. “We got to spend a little time with the wife and the friend of the person who was killed. Our lives intersected in a way that they never would have.”