Lawyers vow to keep child rapist imprisoned

Attorney General will appeal ruling

August 02, 2010|By Tricia Bishop, The Baltimore Sun

John Joseph Merzbacher will not leave prison any time soon, state prosecutors said Monday, vowing to keep the convicted child rapist behind bars despite a federal ruling that he be offered a plea deal from 1994.

Baltimore State's Attorney Patricia C. Jessamy pledged Monday to preserve justice "for the victims," and the Maryland attorney general's office promised to appeal the ruling.

"It's safe to say we're done considering," Raquel Guillory, a spokeswoman for the attorney general's office, said in an e-mail. "We will."

Meanwhile, a retired judge explained the rationale behind the plea deal for the first time Monday. Judge Clifton J. Gordy justified the offer, saying there was little physical evidence and that too much time had elapsed by the time the charges were brought.

The legal moves surrounding Merzbacher were prompted by a 72-page opinion handed down late Friday by federal appeals court Judge Andre M. Davis.

It requires that the Baltimore Circuit Court give Merzbacher, who has long maintained his innocence, a chance to accept a 10-year plea deal that was supposed to have been offered to him in 1994 — an oversight that violated his Sixth Amendment right to effective counsel, Davis concluded.

Merzbacher, a former teacher at the Catholic Community School accused of terrorizing dozens of children, has spent 15 years in prison, which means his punishment will have been long past paid if he is offered and accepts the deal.

It's a chilling prospect for some of Merzbacher's former students, who thought they were safe after he was convicted of raping Elizabeth Ann Murphy in the mid-1970s and sentenced to four life terms.

Several of them vowed to reopen their closed cases, which were dropped after the 1995 conviction, if Merzbacher is released. Meanwhile, attorneys not affiliated with the case theorized about whether the ruling could be carried out, particularly because it requires a Baltimore judge to agree to honor the deal.

Appellate court specialist Erin Murphy Ehman, who reviewed the ruling at The Baltimore Sun's request, said Davis' opinion was "very thorough" as well as "intellectually honest" by acknowledging that a city judge would have to make an unpopular decision to fulfill the order.

"The defendant is going to have a very difficult time finding a judge who is willing at this point to agree to the deal," said Ehman's colleague, Andrew White, a partner in the Baltimore firm of Silverman, Slutkin, Thompson, White LLC.

"It's a superhuman feat to go back to 1994 and ask a judge to forget" all that's come out, White said.

Merzbacher was accused in court papers of sadistic sexual abuse: raping girls, sodomizing boys and forcing children to have sex with one another, then coercing their silence through intimidation. He threatened to kill their families if they spoke out and at least once fired a gun inside a classroom to make his point, a victim's attorney said.

The Catholic Church turned away from him, Merzbacher has said, and the Archdiocese of Baltimore fought to keep his life sentences intact, "given the horrific nature" of the crimes, the religious body said in a statement Monday.

The archdiocese also settled nearly two dozen civil claims filed against Merzbacher, one of its former schoolteachers, according to retired Judge Joseph H. H. Kaplan, who oversaw the mediation in those cases. The church did so "even though the archdiocese had no technical obligation to do that," Kaplan said in an interview. The statute of limitations on such civil cases was three years, he said, and the abuse had occurred decades earlier.

There is no statute of limitations for criminal felony offenses, however. That means old cases against Merzbacher could be reopened or new cases could be filed, according to attorney Joanne Suder, who represents 14 people who say Merzbacher molested them.

Suder received panicked calls over the weekend, and planned to meet with clients by the week's end to help calm their nerves and remind them that Merzbacher's release is not imminent. The attorney general's office, which tried the federal case, will likely ask for a stay on the ruling, joined by Jessamy, whose office originally prosecuted Merzbacher.

"Everyone was caught by surprise," Suder said, adding that many stand ready to fight. "I know that there would be just dozens and dozens of people who would be definitely coming forward if this case were on the docket for a judge to consider whether or not to take the plea bargain."

The plea deal was arranged in a different time under different circumstances, about a year after Merzbacher was indicted on multiple counts, said retired Judge Clifton J. Gordy, who was assigned to handle the pre-trial motions in the case.

The victims were by then grown, there was little physical evidence to corroborate their claims, the incidents happened decades earlier and there were fears that they would be further harmed if made to testify, or if the jury didn't believe them, Gordy said.

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