Lawyer accused of hiding plea deal from accused rapist

Ex-teacher, convicted at '95 trial, claims inadequate representation

August 11, 2004|By Allison Klein | Allison Klein,SUN STAFF

One of Baltimore's most high-profile child sex-abuse cases resurfaced yesterday in Circuit Court after 10 years, as the credibility of ferocious defense lawyer M. Cristina Gutierrez - disbarred and now deceased - was essentially on trial.

Lawyers for Catholic school teacher John Joseph Merzbacher, 62, argued yesterday in a post-conviction hearing that Gutierrez did not adequately represent Merzbacher at his trial in 1995.

At the end of the hearing, presiding Judge John N. Prevas said he would issue an opinion to Maryland's Court of Special Appeals, which asked Prevas to revisit the issue. Merzbacher is seeking a new trial.

FOR THE RECORD - A headline in the Aug. 11 editions of The Sun was imprecise in referring to former Catholic schoolteacher John Joseph Merzbacher as an "accused rapist." Merzbacher was accused -- but not tried -- of more than 100 counts of sexual abuse. He was convicted in 1995 of six counts of rape and sexual abuse.
The Sun regrets the error.

Merzbacher, who sat silent during yesterday's proceeding, was sentenced in 1995 to life in prison for raping a 12-year-old girl. He had been accused of molesting many students at the Catholic Community School in South Baltimore, where he taught.

The lawyers contend that Gutierrez failed to inform Merzbacher of a plea deal that would have offered him a 10-year prison sentence in exchange for a guilty plea.

They said Gutierrez, known for her headline-grabbing cases, was such a publicity seeker that she wanted to take the case to trial at any cost - even hiding a possible plea deal from her client.

"Mrs. Gutierrez was a great lover of publicity," said H. Mark Stitchel, one of Merzbacher's lawyers. "There was nothing she would have loved more than an acquittal in the case."

Gutierrez, who died in January of a heart attack, was one of the city's most pugnacious defense lawyers. She was disbarred in 2001 after allegations she mishandled clients' funds at a time she was suffering from multiple sclerosis.

Prosecutor Antonio Gioia argued yesterday that the plea negotiations in the Merzbacher case had not progressed to a firm agreement and that there was never an official offer extended to him. Gioia described the negotiations as in the "embryonic stages."

Gioia also said that Merzbacher would not have accepted a plea deal anyway, because he maintained his innocence throughout the trial.

"Mr. Merzbacher was charged with a truly lurid crime. In a city of high profile criminal cases, this was the daddy in 1995," Gioia said. "This trial was about personal vindication for Mr. Merzbacher. He wanted to clear his name."

In 2000, when the issue of the missed plea deal emerged in a hearing before Prevas, Gutierrez testified that she did not take the offer to Merzbacher. She said it slipped her mind.

Gioia told Prevas yesterday that it was "preposterous" that a seasoned lawyer would forget such an offer.

Prevas also did not believe Gutierrez, as he explained in an opinion to the Court of Special Appeals in March last year.

"It is with a very heavy heart that I must conclude that Ms. Gutierrez ... committed perjury in the post-conviction hearing. Sadly, she is simply not worthy of belief," Prevas wrote.

In a March 11 order this year, the court remanded Prevas' opinion, saying he was not specific enough in his reasoning for not granting the post-conviction motion.

The court asked Prevas for a clarification of two things: what advice Gutierrez gave Merzbacher regarding plea discussions, and whether Gutierrez's advice was "ineffective assistance of counsel."

Prevas said he will reissue his 45-page opinion in the case and amend it to answer the court's questions.

Before Gutierrez's death, colleagues described her as a meticulous and tireless trial lawyer who could destroy witnesses on the stand.

Gutierrez agreed to her disbarment in 2001 rather than fight complaints filed against her with the state Attorney Grievance Commission. In her prime, she handled some of Baltimore's most notorious cases, most notably Merzbacher.

He was convicted in 1995 of six counts of rape and sexual abuse of Elizabeth Ann Murphy, now 43, who was his student from 1972 to 1975.

A former teacher and union leader, Merzbacher's name became synonymous with sex abuse in Baltimore Catholic schools. Dozens of boys and girls from his eighth-grade classes came forward and said they were molested and raped in the 1970s.

At one point, there were 100 pending sexual abuse charges against him. After his conviction, the state decided not to go forward with 13 other trials.

Merzbacher's actions were not publicly revealed until 1994, when he was indicted.

However, in the 1970s another teacher warned authorities that he suspected Merzbacher was having sex with his students.

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