Merzbacher must not be freed

Our view: Despite a Supreme Court ruling on ineffective counsel during plea bargaining, the state still has a strong case to keep a convicted child rapist behind bars

March 22, 2012

The U.S. Supreme Court made an important ruling for the cause of fairness when it decided this week that the right to effective counsel extends to plea bargains and not just trials. As Justice Anthony Kennedy wrote in the majority opinion in the 5-4 case, 97 percent of federal convictions are the result of pleas, as are 94 percent of convictions in state courts. Unless the right to effective counsel extends to plea deals, it means very little.

But an opinion that in theory is eminently just threatens to result in a manifest injustice in Baltimore. At first blush, the high court's ruling appears to bolster the case of former Baltimore Catholic school teacher John J. Merzbacher, who was sentenced to four life terms on six counts of child rape and sexual abuse and faced 100 other charges for similar crimes. He destroyed dozens of lives, and despite his age (70) and years in prison, his victims still fear for themselves, their children and for the community. But a federal judge agreed last year with his contention that he was never informed of a plea offer, and that echoes the circumstances of one of the cases the Supreme Court addressed this week. For what he has done, Mr. Merzbacher deserves to spend the rest of his life in prison. Fortunately, the court ruling leaves open several avenues for Maryland officials to make sure he does.

One of the two cases that made the basis for the court's ruling revolves around a defendant who was not informed of a plea deal offered by prosecutors. In Missouri v. Frye, the defendant, Galin E. Frye, was charged with driving without a license in 2007, and because of his previous convictions for the same offense, he faced felony charges under Missouri law. A prosecutor offered him a 90-day sentence on a misdemeanor charge if he pleaded guilty. He was not informed of the offer, pleaded guilty without a deal and was sentenced to three years in prison.

Similarly, Mr. Merzbacher claims he was not informed of a plea offer that would have had him serve just 10 years in prison (he has already served more than 15). But the Supreme Court's ruling doesn't offer a get-out-of-jail-free card to him or any other similarly situated defendant. Justice Kennedy set out a three-part test: Would the defendant have accepted the deal if he had known about it, would prosecutors have later withdrawn the offer, and would a judge have accepted it. None of that is easy to establish in retrospect, but the state has a strong case that Mr. Merzbacher fails on at least one count.

Mr. Frye can convincingly argue that he would have taken the plea deal, since he pleaded guilty anyway. Mr. Merzbacher has subsequently claimed that he would have done so, but that isn't believable. He maintained his innocence throughout the trial — in fact, the last words he spoke in court, during his sentencing, were, "I have just one short statement to make to the court, and that is I am innocent." He tried for some years after he went to prison to get a new trial on the grounds that the jury instructions for evaluating the state's burden of proof were insufficient. The state Court of Appeals ruled that they were acceptable. The claim about the plea bargain didn't surface until 1998.

The question of whether prosecutors would have gone through with the plea agreement is somewhat less clear in Mr. Merzbacher's case as well. Although Maryland law does not generally allow prosecutors to back out of a plea agreement, it's not clear how formal the offer was for Mr. Merzbacher. In the Frye case, prosecutors provided a written plea offer. That was not the case for Mr. Merzbacher, and a city prosecutor said in a 2004 hearing that the offer was not finalized and was in its "embryonic stage," though the testimony of those who participated in the conference varies on that question. Why a prosecutor would have agreed to such a lenient deal in the first place is hard to fathom, but there is no record of it having been discussed at any time before or after a conference between attorneys in a judge's chambers in December 1994. Moreover, it was the judge, Clifton T. Gordy, who initiated the discussion of a plea.

Finally, although Judge Gordy, who retired in 2006, testified that he would have reluctantly accepted the plea deal, it is not clear that his determination of 17 years ago is binding on any current Baltimore Circuit Court judges. Indeed, federal Judge Andre Davis, in his ruling in favor of Mr. Merzbacher's complaint of ineffective counsel, notes that a current member of that bench would have to express a willingness to accept those terms. Given the horrific nature of Mr. Merzbacher's crimes, it would be unconscionable for any of them to do so.

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