May 13 TEXAS: Lab probe may get muscle----Agreement will let a Texas House panel subpoena reluctant witnesses Witnesses who have refused to cooperate with the probe into problems at the Houston Police Department crime lab could soon be forced to testify under a proposed agreement between the city's independent investigator and a state legislative committee. In his latest report on the investigation, Michael Bromwich said this week that DNA and serology analysts at the lab may have tailored their findings in some cases to fit predetermined crime theories. Bromwich, a former U.S. Justice Department inspector general, also complained that his team has been hindered by some former lab employees' refusal to be interviewed. Specifically, he has been unable to persuade former lab supervisor Don Krueger, former DNA chief James Bolding and former analyst Christy Kim to talk with his staff. A plan is being worked out, however, to lend Bromwich the muscle that could force the reluctant witnesses to talk. State Rep. Kevin Bailey, chairman of the House Committee on General Investigating and Ethics, hopes to use the committee's subpoena power to help Bromwich get answers. Under the proposal, Bailey's committee would issue subpoenas for the witnesses and Brom-wich and his team of forensic experts would question them. According to the Texas Government Code, with the approval of the speaker of the House, the general investigating committee "may employ and compensate assistants to assist in any investigation, audit or legal matter." House Parliamentarian Denise Davis did not return phone calls from the Houston Chronicle. Bailey is still working out details, but says interrogations could be carried out in private because the law allows his committee, unlike others, to conduct interviews in executive session. However, he said, Bromwich would be free to publish the results of those interviews in his continuing progress reports - something he could not legally do if the questioning were conducted through the auspices of a state grand jury. "So, we're about the only game in town," said Bailey, D-Houston. Unorthodox plan Although the plan is unorthodox, Bailey says a majority on the committee supports it. At least one member opposes it in its current form, however. "I don't think that's going to be appropriate," said Rep. Harold Dutton, D-Houston. "(Bromwich) is not a member of the committee." Dutton said he would support allowing Bromwich to submit questions for the committee to ask the witnesses. He contends that the committee members are just as qualified to ask questions as Bromwich. "I'll bet you that we could probably ask more questions than probably Bromwich could think of," Dutton said. Questioning witnesses He also expressed concern that, even if the committee subpoenas uncooperative witnesses, they would simply invoke their Fifth Amendment right against self-incrimination and refuse to testify. But Bailey said witnesses can be held in contempt of the Legislature. Under Bailey's plan, both Bromwich and committee members could question witnesses. The debate over the plan left Bromwich less than optimistic. "I think we are all losing a valuable opportunity to acquire important information and solve some important mysteries," he wrote in an e-mail to the Chronicle. Bailey remains hopeful. "I think the (crime lab problem) is far more serious than we ever imagined," he said. "And I'm not sure it was just sloppy work. There may have been some external pressure (on analysts), and we need to figure that out and to make sure it never happens again." The crime lab's DNA division was closed more than 3 years ago. (source: Houston Chronicle) *************** Berry Sentencing Continues A jury heard from yet another woman in Theodore Berry's past in the sentencing phase of his trial today. On Wednesday Berry was found guilty of shooting and killing police officer Andrew Barcena. Ramona Yrigoyen was married to Berry for 7 years. She says he would become very angry and violent when he drank, which was often. One time when she tried to leave, she says he chased her and pulled off her clothes, leaving her naked at a pay phone calling 9-1-1. When she kicked him out, she says he stalked her and called from outside her home one night. "He said that he had a shotgun and that he was watching me and he was going to kill me," Yrigoyen said. The state rested this afternoon, and the defense called Rosa Jennings, an ex-girlfriend of Berry's to the stand. She says Berry was very nice and never lost his temper when she dated him. The state must prove Berry is a future threat to society for the jury to choose the death penalty over life in prison. Testimony continues tomorrow morning in the 409th District Court. (source: KTSM News) LOUISIANA: Indigent office in for nearly $3 million----But it's a drop in the bucket, officials say The indigent defense attorneys office in New Orleans would get a 2-year, $2.8 million federal grant under a proposal approved Thursday by the Louisiana Commission on Law Enforcement as the latest review of legal aid for poor defendants estimates it would take about $1 million to resurrect the troubled system for just the initial 6 months. The faltering New Orleans public defense system has been under a microscope since Hurricane Katrina, with critics saying the storm exposed long-standing problems of insufficient representation for many defendants who cannot afford to hire their own attorneys. Since the hurricane, as many as 2,500 people accused of crimes have languished in prisons across the state, often without any contact with a lawyer. Members of the Orleans Indigent Defense Board said the $2.8 million is a necessary injection to get the system operating almost 9 months after the storm, but is not enough to tackle needed systemic changes. "This is to fill holes that were created by the storm," said Dane Ciolino, a professor at Loyola Law School and a new member of the board. "This is not money that is designed to fix problems that existed before." The grant award is part of $58 million in hurricane relief allocated by the state commission, which includes other multimillion-dollar grants for criminal justice agencies in Orleans Parish. The recommendations must be approved by the U.S. Department of Justice before the money can be handed out. State officials hope that will happen in the next few days, said Carle Jackson, criminal justice policy adviser to the panel. "We are trying to help out the (indigent defender boards) to get court rolling again," Jackson said. Millions to run The grant comes as the newly constituted Indigent Defense Board prepares for its first meeting next week. A draft report commissioned by the Bureau of Justice Assistance, a division of the U.S. Justice Department, estimates that an adequate public defense system in New Orleans would cost $8.2 million annually. Before Katrina, the indigent office operated on a budget of $2.5 million, almost 80 percent of which came from court fees, Chief Public Defender Tilden Greenbaum said. Whether the $8 million figure is realistic is unclear, as most indigent defense in Louisiana is financed through local court fees. Louisiana Supreme Court Justice Catherine "Kitty" Kimball said Thursday the report suggestions are sound, but noted that an extra $10 million for indigent defense that Gov. Kathleen Blanco has included in the upcoming budget is for the entire state. The Orleans Parish Criminal District Court judges appointed a new slate of nine board members last month, after the group was left with just one member following a slew of resignations and non-participation by former members after the storm. The report for the Justice Department offers both short- and long-term solutions to fixing the indigent system, concluding that the current situation is untenable. The short-term steps suggested over a five- or six-month period would cost about $1 million. Perhaps the most elementary suggestion is to get a handle on how many defendants -- both incarcerated and out on bail -- the public defenders represent. According to the report, the indigent office does not maintain client files or a centralized database to track clients and cases. Greenbaum said creating a computerized system to record and track clients is a priority of the new board, which can use some other grant money received by the office for that purpose. The new grant must be used exclusively to hire attorneys, he said. Spread too thin After the storm, most of the public defenders were laid off, leaving an office that formerly employed 42 attorneys with just 7 or 8 to represent thousands of clients. As money has begun trickling back into the system -- from grants from the state and a return of some court fees -- the office now has a staff of about 20 attorneys, including nine who represent felony cases and 3 who work on clients eligible for the death penalty, Greenbaum said. The other lawyers work in the municipal and juvenile courts. The report suggests that as many as 40 private attorneys should be immediately recruited to help eliminate the backlog of cases, while the office should in the long-term work toward a goal of hiring 70 full-time public defenders. Public defenders are currently paid $29,000 annually, which the report says is insufficient, although it notes that the attorneys often work only part-time for the indigent system, handling private cases on the side. As with previous critiques of the indigent defense system, the report notes that lawyers "rarely meet with their clients, particularly when the clients are in jail." An analysis released earlier this year based on inmate interviews by the Southern Center for Human Rights found some defendants arrested and locked up in 2005 who had yet to speak to an attorney. "The office has shortcomings, yes. But the reason for the shortcomings is lack of funding. We didn't have personnel or resources," said Greenbaum, who pointed out that the Justice Department report said that most people interviewed described public defenders as "very good lawyers." Scattered across state Besides hiring attorneys and getting a records system in place, the report suggests the system work with the Criminal Sheriff's Office to help transport defendants back to the city for trials and hearings. Many of the defendants are in parish or state prisons across Louisiana, relocated there after the Orleans Parish Prison flooded during Katrina. Other New Orleans agencies that have received grant recommendations from the law enforcement commission are: $4.19 million for the Orleans Criminal Clerk of Court, $1.48 million for the Criminal District Court, $2 million for Juvenile Court, $3 million for the district attorney's office, $5.1 million for the New Orleans Police Department and $13.8 million for the criminal sheriff's office. The grants can be used for both personnel and equipment cost, although they cannot duplicate insurance payments or post-storm financing from other federal agencies. (source: Times-Picayune) NEW JERSEY: Marshall won't be executed----Eligible for parole in 8 years The state on Friday gave up its decades-long bid to put former Toms River insurance salesman Robert O. Marshall to death for the 1984 contract killing of his wife, meaning the one-time prominent member of the local country-club set could be considered for release from prison in slightly more than eight years. Ocean County Prosecutor Thomas F. Kelaher said he decided not to ask a 2nd jury to impose the death penalty on Marshall, now 66, because of the difficulty in presenting evidence more than two decades after the crime, and because of the seemingly endless string of legal appeals another death sentence would spawn. "This troublesome and distressing conclusion was made only after extensive consultation with the family of the victim, Maria Marshall," Kelaher said. Stephen E. Kirsch, an assistant deputy public defender who handled Marshall's appeals, said he told Marshall of the prosecutor's decision on Friday. "He said, "That's great news,'" Kirsch said. Marshall has always maintained his innocence, Kirsch noted. The central figure of a case that captivated Ocean County and sparked a best-seller and television miniseries, Marshall was convicted of murder for hire in 1986 and had served on New Jersey's death row longer than any other inmate since the state reinstated the death penalty in 1982. No one has been executed in New Jersey since then. Marshall was relocated from death row in 2004 when he finally won an appeal based on ineffective assistance of counsel. Crime in a nutshell Maria P. Marshall, 42, the mother of the couple's three sons, was shot twice in the back during a faked robbery at a staged breakdown of the couple's car on Sept. 7, 1984, when the couple was returning home from a trip to Atlantic City. The shooting took place off the Garden State Parkway, at the Oyster Creek picnic area in Lacey, a site that has since been closed. It was carried out by Louisiana hit men hired by Marshall so he could collect $1.5 million in life insurance on his wife and carry on an extramarital affair. With Kelaher's decision, Marshall will be resentenced in accordance with the law in effect in 1984, which stipulates a prison term of between 30 years to life in prison, with a mandatory period of 30 years before parole consideration. Under existing law, defendants convicted of murder in capital cases but spared the death penalty must spend life in prison without parole, Kelaher said. Incarcerated since his arrest in the case on Dec. 19, 1984, Marshall could be freed from New Jersey State Prison in Trenton in 2014 if he is given a 30-year sentence, according to Kirsch. If he is given a term longer than that, he would still be eligible for parole consideration in 2014. "This office will advocate for the maximum sentence allowable by law and will thereafter oppose any application Robert O. Marshall may make for parole during his lifetime," Kelaher said. Marshall's trial in 1986 was moved to Atlantic County to avoid extensive pretrial publicity about the spectacular murder case. The prosecutor said Thursday he spoke with Ocean County's assignment judge, Eugene D. Serpentelli, and both saw no reason why the sentencing could not be held in the county. It has not been scheduled. The case was the subject of the Joe McGinnis best-seller "Blind Faith" and a television miniseries based on the book. On the same day the jury in Mays Landing decided Marshall's guilt, the panel also determined he should die by lethal injection. An appeal finally succeeds Marshall appealed his death sentence for decades, and was unsuccessful until April 8, 2004, when U.S. District Court Judge Joseph E. Irenas in Camden removed Marshall from death row. Irenas in his ruling said Marshall received ineffective assistance from his attorney, Glenn Zeitz, during the death-penalty phase of his trial. The argument centered on Zeitz not calling any witnesses to ask the jury to spare Marshall's life. The state Attorney General's Office appealed Irenas' ruling, which was upheld by the 3rd Circuit Court of Appeals in November. The U.S. Supreme Court in March declined to hear an appeal by the state. The ultimate outcome of Marshall's lengthy appeals process left it up to Kelaher to decide whether to ask a new jury to put Marshall to death. "While the death penalty was clearly warranted in this case, presenting all of the trial evidence at a penalty phase trial nearly 22 years later would be extremely difficult," Kelaher said. "Beyond that, the most compelling reason not to seek the death penalty is the stark realization that, assuming a jury returns a verdict of death for Robert O. Marshall, the death penalty would trigger 20 more years of legal maneuvering without a just closure for the family." Kevin Kelly, an attorney with the Brick law firm Kelly, Nolan & White, was the assistant prosecutor who tried Marshall in 1986. He said Friday that he agrees with Kelaher's decision. "I think he should get the death penalty, but the realities are it can't be done," Kelly said of Marshall. "You would have to try the entire case . . . and that would be impossible due to the passage of time." But Kelly said the case cries out for the death penalty. "I thought the death penalty was warranted in 1986 and I think it still is, because it was murder for hire, the murder of his own wife, the mother of his 3 children," Kelly said. "It was pure evil." (source: Asbury Park Press) ********************** Prosecutor Drops Push for Death Penalty in Murder-for-Hire Case Bringing an end to a legal odyssey that spanned 2 decades, a New Jersey prosecutor said today that he would no longer pursue the death penalty for Robert O. Marshall, whose conviction for arranging the murder of his wife inspired a best-selling book and a television miniseries. The prosecutor, Thomas F. Kelaher, cited the seemingly endless appeals by Mr. Marshall and the time that has passed since his 1986 conviction as the principal reasons for declining to seek a retrial in the capital phase of the case. Mr. Marshall, whose death sentence was overturned in November by the United States Court of Appeals for the Third Circuit, could now face a maximum sentence of life in prison when he is resentenced. In a telephone interview, Mr. Kelaher said that while he felt the death penalty was warranted in the case, he was motivated by the desire to bring closure to the family of Maria Marshall, who was shot at a rest stop on the Garden State Parkway in 1984 by a killer hired by her husband. "We gave it an awful lot of thought and we feel this is the right thing to do," said Mr. Kelaher, who is the prosecutor in Ocean County and consulted with the New Jersey attorney general's office before making his decision. Mr. Kelaher said the family of Mrs. Marshall, including her 3 sons with Mr. Marshall, had been consulted. "They agreed with our position," the prosecutor said. "Every time there's an appellate decision, they're deluged with questions. It never ends. Hopefully, this will bring an end to it." The murder of Mrs. Marshall, who was 42 when she was killed, was chronicled in the book "Blind Faith" by Joe McGinnis, which was later made into a television miniseries of the same name. Mr. Marshall, 65, a former insurance broker from Toms River, N.J., was convicted of hiring 2 Louisiana men to kill his wife so he could collect a $1.5 million life insurance policy and continue what prosecutors said was an extramarital affair with another woman. One of the men hired by Mr. Marshall, Robert A. Cumber, was sentenced to 30 years in prison. But in January, Mr. Cumber - who is now 68, nearly blind and in failing health - was granted clemency by former Gov. Richard J. Codey. The man accused of firing the shots that killed Mrs. Marshall, Larry Thompson, was acquitted by the same jury that convicted Mr. Marshall. The legal maneuvering in the case had increased over the past several months. In November, the federal appeals court in Philadelphia found that Mr. Marshall had ineffective counsel from his lawyer, Glenn A. Zeitz, during the death penalty phase of his trial. And in March, the United States Supreme Court declined to reconsider the appeals court decision. Because of Mr. Kelaher's decision, Mr. Marshall will now face a new sentencing hearing. Mr. Kelaher said he will ask the court for nothing less than life without parole for Mr. Marshall. Mr. Marshall's public defender, Stephen W. Kirsch, said his client will seek to avoid life in prison. "We're pleased with the decision," Mr. Kirsch said in a telephone interview. "It's a perfectly reasonable decision in this case." Mr. Kirsch said he telephoned Mr. Marshall at New Jersey State Prison today to tell him about the prosecutor's decision. "He's, of course, pleased," Mr. Kirsch said. "He's looking forward to making his pitch to get something less than the maximum sentence." (source: New York Times) ******************* Prosecutor won't retry penalty phase of Marshall case----Plotter of wife's killing could be paroled in 8 years Robert O. Marshall, once condemned to death for arranging his wife's murder, will be eligible for parole in 8 years following a prosecutor's decision yesterday not to retry the penalty phase in one of New Jersey's most notorious cases. Ocean County Prosecutor Thomas Kelaher said too much time had passed since the 1986 trial to present an effective case against Marshall, 66, who spent 18 years on death row before a federal court overturned his sentence in 2004. "This troublesome and distressing conclusion was made only after extensive consultation with the family of the victim, Maria Marshall," Kelaher said. "While the death penalty is clearly warranted in this case, presenting all of the trial evidence at a penalty phase trial nearly 22 years later would be extremely difficult." Marshall, a former Toms River insurance executive whose case spawned the best-selling book "Blind Faith" and a television miniseries of the same name, must now be resentenced under guidelines in place at the time of his conviction. The most severe penalty he faces is life in prison without parole eligibility for 30 years. Because Marshall has already served nearly 22 years in prison, his first chance at freedom will come in 2014. Even if given the maximum, however, Marshall isn't certain to be freed by parole officials, Kelaher said. "On a homicide case, they usually don't let them out anyway," he said. The prosecutor added he expects his office will fight against Marshall's release down the line. "I would hope that whoever is in my seat 8 years from now would oppose it," he said. No sentencing date has been set. Kelaher said the decision, made in conjunction with state Attorney General Zulima Farber after consulting the Marshalls' 3 sons, was not an easy one. But he called it a logical one. "The most compelling reason not to seek the death penalty is the stark realization that, assuming a jury returns a verdict of death for Robert O. Marshall, the death penalty would trigger 20 more years of legal maneuvering without a just closure for the family," Kelaher said. Indeed, Marshall's conviction and sentence arguably represent the most exhaustively challenged death penalty case in New Jersey since the Legislature reinstated capital punishment in 1982. His appeals gained traction two years ago, when a federal judge in Camden found Marshall's defense lawyer badly mishandled the trial's penalty phase, concluding in his statement to jurors, "Whatever you feel is the just thing to do, we can live with it." Last year, the 3rd U.S. Circuit Court of Appeals in Philadelphia upheld the lower court's ruling to toss the sentence. The state Attorney General's Office, on behalf of the Ocean County Prosecutor's Office, then appealed to the U.S. Supreme Court. In March of this year, the high court declined to hear the case, setting the stage for yesterday's decision by Kelaher. Marshall's murder conviction was unaffected by the ruling. One of the two state public defenders handling Marshall's recent appeals said yesterday the decision was expected given all the factors prosecutors had to consider. "It strikes me as a perfectly rational decision for them to conclude that this could be a difficult case to try, and old wounds would be reopened," Assistant Deputy Public Defender Stephen Kirsch said. Marshall, who remains in New Jersey State Prison in Trenton, was pleased by the decision and hopes to participate at sentencing, the defense lawyer said. "He wants to make his pitch for what he feels is the appropriate sentence," Kirsch said. Marshall's 3 sons, now in their 30s and 40s, could not be reached for comment yesterday, but his daughter-in-law, Lori Marshall, said she was "relieved and happy" her father-in-law will no longer have to live with the specter of lethal injection hanging over his head. "Whatever you want to believe about his guilt or innocence, Rob Marshall is my children's grandfather, and they care about him," said Lori Marshall, who married Marshall's middle son, Christopher, 39, after his father was sentenced to death row. Lori Marshall said she has never met her father-in-law but talks to him on the phone frequently -- "he calls collect" -- from prison. She said the calls escalated to several times a week in the past year, since she and her husband separated. "He talks to the kids, sends them letters and makes them presents," she said, adding that Marshall has become quite adept at making origami paper figures while in prison. "My children want to know him," Lori Marshall said. "They want to meet him. My daughter cries about him being in prison." Robert Marshall has 6 grandchildren by his 2 oldest sons. Roby Marshall, 41, who is married to actress Tracey Gold and lives in California, has 3 sons, ages 9, 7 and 2. Christopher Marshall, who heads the alumni association at Lehigh University in Bethlehem, Pa., has 2 sons, ages 17 and 3, and a 9-year-old daughter. Both sons have said in the past that they believed their father is guilty. Marshall's youngest son, John, 35, always maintained his father's innocence and testified on his behalf as recently as 2003. John Marshall is unmarried and lives in Pennsylvania. Marshall was convicted of hiring 2 ex-convicts from Louisiana to kill his wife so he could collect on a $1.5 million life insurance policy and continue his dalliances with another woman. On Sept. 7, 1984, Robert and Maria Marshall were returning to their Toms River home from Atlantic City when they stopped at a Garden State Parkway rest area. Robert Marshall claimed he was struck in the head as he examined one of his car's tires. When he regained consciousness, he said, his wife was dead. The killing and the subsequent revelation that Marshall was having an extramarital affair with a local school administrator shocked the suburban Ocean County town and later became national news with the publication of "Blind Faith." Marshall was convicted March 5, 1986. Within hours of the verdict, jurors sentenced Marshall to death. New Jersey has not put an inmate to death since 1963. Last year, amid increasing debate about the death penalty across the nation, the Legislature enacted a 1-year moratorium on executions while the issue is studied. The moratorium, signed into law by then-Gov. Richard Codey, runs through next January. (source: Newark Star-Ledger) WISCONSIN: Capital punishment unneeded in Wisconsin Recently, 47 members of the state Assembly approved a resolution to hold a statewide advisory referendum in the Nov. 7 election, asking voters whether they favor the death penalty in some cases. About the same time, 9 men and 3 women decided that al-Qaida conspirator Zacarias Moussaoui deserved life in prison for his role in the Sept. 11 attacks. What's the difference between the jury from northern Virginia and some of our legislators? Perhaps the jurors know that the death penalty doesn't deter crime. Texas, with 409 people on death row, has a murder rate of 6 per 100,000, while Wisconsin's is only 2.8 per 100,000 (FBI Uniform Crime Statistics for 2004). If the death penalty was a deterrent, certainly the Texas rate would be lower than a state that hasn't killed anyone in 153 years. Perhaps the jurors don't feel the pressure to be tough on crime as many of our elected officials might. Perhaps the jurors felt that life without parole would give Moussaoui the chance to see the error of his ways. Whatever the reasons, the jurors decided that a co-conspirator in the deadliest attack on these United States did not deserve to die. Let's not put any juror in our state in that position. Let's keep Wisconsin death penalty-free. Forward. Jonathan Johns, Appleton (source: Letters to the Editor, Appleton Post-Crescent)
[Deathpenalty] death penalty news----TEXAS, LA., N.J., WIS.
Rick Halperin Sat, 13 May 2006 09:55:13 -0500 (Central Daylight Time)
