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Xavier Magazine | June 28, 2017

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The Intersection

By Jacob Baynham

PART ONE: THE SHOOTING

The Friends

The day of Nov. 1, 2002, may have ended without bloodshed in New Albany, Ind., if the mail had come to Cynthia Bogard’s house at the usual time. It typically arrives between 4:00 p.m.-5:00 p.m., but it ran early that day.

An unemployed bartender on disability, Bogard was in her narrow row house on Chartes Street, waiting for her welfare check. The mail arrived around 3:00 p.m., still early enough to cash it before the weekend. She called her friends Lisa and Donald Barnett and asked for a ride to the bank.

Lisa and Donald—everyone called him Ducky, a nickname his father gave him—were over at Bogard’s house earlier that day. Ducky brought $20 worth of crack with him, and the three friends sat and smoked it through a metal pipe, talking as the drug entered their bloodstream and triggered a flood of dopamine in their brains.

When Bogard called, they returned to the house in Ducky’s truck. It was a beat-up grey pickup with a power washer in the bed, a tool Ducky used in his own little pressure washing business. They reached Bogard’s house a little after 3:00 p.m.

 

The Lovers

Half a mile away, Steven Paul and his girlfriend, Noreen Cousins, woke up slowly that day. Neither of them had to work, so they lay in bed watching TV. They’d been dating for a year and a half and were living together at a friend’s house.

The son of an Indian doctor and a university professor, Paul grew up in New York and Florida. He was a part-time painter and was learning to blow glass while studying visual communications at Ivy Tech State College in nearby Sellersburg.

When they got out of bed, they took Paul’s pit bull for a walk, as they did every morning, and decided to drive up to Paul’s uncle’s farmhouse near Pekin, Ind. It was only 25 miles north of New Albany.

Paul liked it up there. He would let his dog run around, visit with his cousins and shoot his handgun at paper targets that went from black to green when they were hit.

At around 3:30 p.m., they got in Paul’s white Ford pickup. It was a nice day, but chilly, so Noreen pulled on a black hooded sweatshirt before they headed out the door. Paul grabbed the guns. He put a .40-caliber Taurus in the glove box for Noreen and tucked his .40-caliber Glock in the right cargo pocket of his pants, where he always kept it.

The gun had 10 rounds in the magazine and one in the chamber. It had no safety switch. They stopped at Ace Pawn and Loan for a box of 50 cartridges then drove two blocks north on State Street to a liquor store called Bottles Unlimited. They wanted to buy some beer to take with them into the country.

 

The Encounter

Lisa and Ducky drove Bogard to Marketboy Grocery to cash her check. Then they crossed the Ohio River into Louisville’s West End to buy more crack. Ducky knew the place. They bought three grams, which Lisa stuffed in her bra, and drove back over the Sherman Minton Bridge, a double-decker span from the 1960s that lifts I-64 over the Ohio River, connecting Kentucky and Indiana. The bridge was already filling with traffic. It was Friday afternoon, close to 4:00 p.m., and the weekend was beginning.

Ducky, Lisa and Bogard were planning a weekend of their own. They talked about throwing a little party back in New Albany, playing some cards and kicking back. Bogard suggested they stop at Bottles Unlimited to pick up some drinks. Ducky took the first exit off the bridge, crawled east through three blocks of traffic on Elm Street and pulled into the liquor store lot.

At the same time, Paul and Cousins turned into the lot from State Street. Pulling into facing parking spaces, the trucks almost collided. Paul got out of his vehicle and walked over to Ducky’s truck.

A 36-year-old former football player, Ducky was a big man, 85 pounds Paul’s senior. Paul grinned when he saw Ducky’s size.

“Okay, now you want to smile,” Ducky said. “What are you talking about, of course I’m smiling. You’re smiling, too. It’s a nice day out.”

“All right boy, go in the store then, go on,” Ducky said.

“You almost hit me.”

“Well, we didn’t.”

The exchange was brief and ended with the two shaking hands. Paul never went into Bottles Unlimited, deciding instead to go to a different liquor store up the road. He got back in his truck, pulled onto State Street and circled around the block to get back on Elm, a one-way.

Cousins saw the whole confrontation from inside the truck and began to simmer. She knew Ducky from the neighborhood. Their families knew each other. Ducky was a bully, she said. He smoked a lot of crack. Nothing but trouble.

By the time Paul circled the block to get back on Elm, the simmer had grown to a full boil. They were in the center lane when they approached Bottles Unlimited.

The light was red and traffic slowed to a stop, a dammed stream of idling engines that pooled all the way back to the interstate. As they sat there, waiting for the light to change, Cousins shifted in her seat, leaned halfway out the passenger side window and began shouting obscenities at Ducky who was still seated in his truck.

“You all ain’t nothin’ but a bunch of crack heads,” Cousins yelled.

“Your mammy’s a crack head,” Ducky shot back.

 

The Students

Several hours earlier, two 15-passenger vans left Xavier and headed south toward Louisville. They were full of students participating in a “rural plunge” experience organized by Ben Urmston, S.J., director of the Dorothy Day Center for Peace and Justice. The group was on its way to Tell City, Ind., where the students would spend a night on a hog farm, learning about small-scale agriculture. But first they were scheduled to hear a speaker in New Albany.

It was an unconnected group of students—a Nicaraguan exchange student, three Japanese graduate students, various others. Most of the students were on the trip to fulfill a requirement for their theology class. They were still learning each other’s names when they crossed the Sherman Minton Bridge from Louisville into Indiana and took the Elm Street exit. One van made it through the intersection before the light changed to red, but the second van became part of the growing pool of traffic and only crept toward State Street.

Anna Burdick, a 19-year-old public relations major, was absent-mindedly watching the cars. “I was looking out the window because we’d been driving so long and I was kind of bored,” Burdick later testified. “A car came up along the side of us … There was a woman hanging out of the window of the vehicle screaming. I assumed that she was screaming at us.”

The other passengers in the van turned to look. “She was saying the ‘F’ word a lot,” Rosie Gibson, an 18-year-old Montessori education major told the police.

“She was pretty steamed,” said David Dunn, a 19-year-old biology major.

The students realized she was shouting over the Xavier van, to someone sitting in a truck in the parking lot next to them. Ducky was returning the insults. It only took a few more words before Cousins threw open the truck door and stepped out onto the street.?Paul leaned over and grabbed a fistful of her black sweatshirt as she was leaving the truck. He was trying to hold on, but she slipped through his fingers. Cousins ran across the street, around the Xavier vehicle, to Ducky’s truck. The students’ eyes followed her from one side of the van to the other. “She was ready to fight,” said Dunn.

 

The Fight

Bogard had just walked out of Bottles Unlimited and set a six-pack of Smirnoff Ice on the hood of Ducky’s truck when she heard the yelling and saw Cousins running toward her. “She came up out of that truck so fast,” Bogard said. “Just charged toward the truck.”

Cousins started swinging while Ducky was still in his vehicle. Bogard remembers him looking bemused, with “a sort of grin on his face.” He stepped out of the truck and deflected the blows. Ducky was much larger than Cousins. Gibson remembers him saying something like, “What are you going to do?”

That’s when Paul got out of his truck. Walking through traffic, he pulled the Glock from his pocket and wandered into the peripheral vision of everyone who was focused on the fight.

Most of the witnesses thought he was coming to break it up. His right arm was straight against his body. In his hand was a ?black gun.

Lisa McCafferty Friel was just two years out from earning her biology degree from Xavier and interning with the Dorothy Day Center. She was chosen to drive the second of the two vans. “It was like I was watching a movie,” she says.

In the passenger seat, Tom Sheibley, the associate director of the Center, started shouting, “Get down, he’s got a gun!” But Friel lacked the instinct to duck. She had no concept the gun could hurt her. And she couldn’t take her eyes off it.

Neither could Gibson, watching from the window. “When I saw that he had a gun I was just watching him,” she says. She followed Paul’s arm as he leveled the weapon. “I was looking at his face when he pulled the trigger,” she says. “It looked kind of disturbingly calm. He was just looking straight ahead. I really didn’t see much emotion at all.”

The shot hit Ducky in the right side of his stomach, a copper jacketed bullet that tore through his intestine, pierced his inferior vena cava—the largest vein in the body—then severed his left iliac artery and another section of intestine before coming to a rest in the soft tissue on the other side of his body.

Vaughn Jantzen, a self-employed tree-trimmer, heard the shot from the Citibank parking lot across the street. He thought it was a firecracker or a car backfiring. He looked up and saw Ducky. “There was a black man, looked like he was scrambling to get out of the way of something,” Jantzen said.

The students were glued to the van window. “He doubled over in pain and kind of went like, ‘Ohh,’ ” Burdick says. “I could hear the agony.”

Ducky turned and started to run. Paul leveled again, firing a second shot into Ducky’s left shoulder. Ducky ran 96 feet, across an alley and through some bushes before he dropped to the pavement.

Paul and Cousins scrambled back to their truck and drove away.

Inside the van, Sheibley had the presence of mind to read the license plate aloud, repeating it so he wouldn’t forget. Unable to find a pen, one of the students punched the numbers into a cell phone.

After the second shot, Jantzen, the tree-trimmer, ran across the street. “Everybody started screaming and hollering,” he said. “There was a truck that was taking off and it was squealing tires.”

Friel sprung into action. She pulled the van off the road and ran toward Ducky. Trained in CPR since she was 12, she took off her sweatshirt and pressed it to Ducky’s wound, trying to stop the bleeding. “He was going into shock,” she says. “He was shaking.”?Bogard ran toward Ducky, too. She remembers him raising his head and trying to call his wife. “Lisa.”

 

The Aftermath

It was only seconds before the scene was flooded in lights and sirens.The liquor store was a block away from the police station. It was such a small town, Friel says, “You didn’t have to call the police, you just had to yell.”

As EMTs loaded Ducky into an ambulance and rushed him to Floyd Memorial Hospital, students wandered around the lot, some of them crying. When the ambulance left, police circled the scene in crime tape. They asked the Xavier students to look for the bullet casings. Friel had never shot a gun before, never even held one. She didn’t know what a casing looked like, but within a few minutes she had found a small metal cylinder on the asphalt. A detective marked and photographed it. It was such a small piece of metal.

Around the same time, a mile up State Street, Ducky Barnett, a husband, a son and the 36-year-old father of five, was pronounced dead. Six days later he would be lowered into the ground at West Haven Cemetery as his 13-year-old daughter, Joslin, sang “Amazing Grace.” ?His family had to pay the New Albany Tribune to print an obituary.

 

PART TWO: THE TRIAL

The Outsiders

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.

The Lawyers

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.”)

 

The Defense

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.”

 

The Intersection

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.”

 

PART THREE: THE REFLECTION

The Decision

Sheibley and Friel didn’t know exactly what to do. There’s no written protocol for what to do after witnessing a murder. No manual. “The last thing we expected to have happen was to witness what we did,” says Sheibley, who is now director of campus ministry for Saint Joseph’s University in Philadelphia. “We made a decision to go ahead and continue on with the rural plunge.”

In retrospect, he wonders if he should’ve given the students the option to turn back. “I hope that I would have at least given them a little bit of a chance to talk about it if they wanted to, to check in with everybody to make sure that they were doing okay.”

But everyone was processing the experience differently. Friel remembers some students crying with the same grief as Ducky’s wife, Lisa. Others, like herself, were still coming to terms with what they saw. “I’m a post-processor,” she says. “I deal with my feelings later. It’s not that I was numb, but I guess I just didn’t let myself be affected at the time.”

When the weekend was over and the group returned to Xavier, the students dispersed. They were an unconnected group. “I really didn’t see them again ’til the lawyers were involved,” Sheibley says. Nevertheless, he paid a visit to the McGrath Health and Wellness Center to speak with a counselor. He wanted to know what he could do for the students who witnessed the killing. It was only in telling this counselor about what they saw in New Albany that Sheibley realized how the experience affected him.

“I wasn’t even really noticing for myself that that was something that really bothered me,” he says. “It struck something down deep. That was really an awful thing, a really tragic thing to see.”

 

The Last Decade

Ten years later, the witnesses in the van look back on the shooting differently. One of the witnesses refused an interview request, saying it’s an experience she tries not to think about, much less talk about.

But for others, time has softened the trauma. As terrible as it was, Sheibley says he rarely thinks about it. “I can’t say that my life was dramatically changed,” he says. “I wish I had something really profound to say about it. I don’t know that I really do. It’s certainly an unforgettable event. It helps me to appreciate my life.”

In the months after the incident, Friel remembers feeling leery of groups of men on the street. That feeling has eased over the years, but she is raising her three children away from toy guns and video games, and she is sensitive to the way movies desensitize people to violence. Today Friel works with children with physical disabilities and is sometimes reminded of the shooting. She took care of one child from a rough neighborhood recently who tried to run away from home in his wheelchair after his brother was shot.

“I had the tiniest insight,” she says. “Not that I can identify with him, but if it impacted me to this degree, it has to have impacted him more. If anything, I was given it so I can have a bit more insight. Now it’s in my bag of experiences that I can pull out and say, yeah, I did experience that.”

Gibson (now Rosie Warburg) had trouble sleeping in the months after the shooting. “I would think about it all the time,” she says. “When I would lie down at night to go to sleep and close my eyes, I would see it play over and over and over again.”

Her most vivid flashback was that of Ducky’s wife, Lisa, standing outside the liquor store screaming. “She came out and saw him lying on the ground, in the bushes. She was clinging to us and crying, yelling, ‘Ducky, Ducky.’ I really felt for her. She had lost her husband.”

But now, Warburg says she feels a strange detachment from the experience. “It really doesn’t feel like something that I saw. It’s almost a story or something I saw in the news. I don’t know if it’s what your brain does to protect you against it, but it’s almost like it wasn’t even real, like we didn’t even see it.”

 

The Town

The shooting is not forgotten in New Albany. The case stands out for both Cody and McDaniel because it was a rare killing in broad daylight in their sleepy town. “It took place literally a block from the courthouse,” Cody says. “I’ll never forget that day or that trial.”

The pair had the chance to reminisce recently over a plate of pasta at La Bocca, an Italian restaurant two blocks from the liquor store. Cody is late, but that just gives McDaniel an excuse to smoke a cigarette outside. “A judge is never late,” he says between drags, “because you can’t start without him.”

When the judge arrives, they take a table. McDaniel orders an Absolut martini, up, one olive. It comes with three, but he doesn’t say anything. Cody gets a water. The two men are close, but their professional relationship hasn’t come without disagreement. McDaniel points to the 19-and-a-half-year sentence Cody dealt to Paul—the highest sentence for an aggravated battery conviction. Cody justified the sentence by saying Paul’s actions constituted the “ultimate battery”—death.

McDaniel protests the sentence. “I always believed you felt the guy got one hell of a break from the jury,” McDaniel says. “I did.”

“And it was an equitable sentencing. I understood that. I always thought we did okay with the jury.”

It’s a strained conversation, even now, even as well as they know each other. In the end, Paul served less than six years. He is now in California, working for a skateboarding company. McDaniel won his case. Cody wonders if justice was served.

 

The Final Word

The equality of justice was the foundation of prosecutor Owen’s closing argument, which was built upon the idea that justice should be afforded to everyone, even crack addicts in a liquor store parking lot. Preserving justice, he said, is a decision that people make every day­—people like the students, who just happened to be stuck in traffic at the unalterable moment when the lives of Paul and Ducky intersected.

“There were a lot of people sitting there at that stop light and across from it,” Owen told the jury. “Probably 50 cars, hundreds of people probably, that saw this incident or parts of it.” Most of them drove on, he said, and never stepped forward as witnesses. It was “just a small handful, the kids in a van, who saw an injustice and wanted to help … They went the extra mile not for their own selves or to try to save themselves, but because it was the right thing to do, to serve justice. Folks, you’re at a crossroad, right now. You’ve got a decision. You can either drive away, or you can be like those kids—stop and ensure that justice is done.”

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