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matter over mind

2004-07-23 - tell time

One of the better articles summarizing Marty's current hearing, without all the gory specifics. I'm optimistic for him /his family / the idea that the truth is finally coming out after he's served a decade and a half in prison for something someone else previously got away with.

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New York Times -- 7/23

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July 23, 2004

REPORTER'S NOTEBOOK

Defendant Can't Testify as He Fights Conviction

"...here in a proceeding that could free him after 14 years in prison, or leave him behind bars for the rest of his life.

Marty, now 32, was convicted of killing his parents, at the age of 17 - crimes he says he did not commit. He is appealing to overturn the jury's verdicts.

Other than his hushed whispers into the ears of his lawyers, Marty's voice has not been heard in the proceedings, nor is he expected testify at the remaining sessions.

According to relatives who have talked with him, Marty obviously has much he would like to say. But this courtroom is not the right forum for it.

Instead, the hearing is focusing on new evidence uncovered by his lawyers and investigator. Though Marty knows about the evidence, he was not a witness to it.

"Marty doesn't have any first-hand knowledge that he can testify to," said one defense lawyer.

To get the convictions overturned, the law requires the defense to provide new evidence strong enough to be likely to result in a different verdict if heard by a new jury. The defense says they believe that their material is compelling.

Their prime witness is Glenn, who will testify on Friday. He says he was the getaway driver who took two men to and from the murder scene and saw them discard in a wooded lot a pipe that he said was used as a murder weapon. A defense investigator recovered a rusty pipe from the lot.

One passenger Glenn named is a career criminal, Joseph. Four other people say Joseph told them that he was involved in the killings, though he now denies it. He was also connected with two other figures in the case, Todd and his father, Jerry.

Jerry was Marty's father's business partner, and owed him hundreds of thousands of dollars, a debt they argued about. Jerry was at his business partner's waterfront home , for a high-stakes card game the night of the murders and was the last player to leave. Several days later, he disguised himself and fled to the West Coast under an alias. He and his son have denied any involvement.

The day of the murders, the police arrested Marty. They said they used trickery to extract a confession, telling him that he must have blacked out and committed the crimes and lying that his father had recovered and identified Marty as the attacker. Marty never signed the confession and immediately repudiated it, but it still impressed the jury.

This time there are no jurors. "This is not a jury trial," said Judge Braslow, who will decide whether to overturn the convictions. "I'm here and I'm listening to all the evidence." He agreed to consider hearsay and other material that would likely be excluded from a regular trial.

Marty's lawyers are up against an assistant district attorney, Lato, who argues that the convictions should be upheld. He has already challenged Glenn's credibility, citing his past drug use and mental problems. He also highlighted inconsistencies in various versions of events. For example, whether conversation took place in a bedroom or outside a house - or after going through a bedroom to the outside.

The judge is a Democrat who won election where Republicans usually predominate. He seems to follow the testimony closely but says little. Presiding with a genial but firm manner, he nudges the lawyers when their questioning of witnesses seems repetitive, saying, "Let's go." And when their questioning seems to go off track, he says, "Let's move on."

A lad when he was arrested, Marty is a grown man. He listens intently to the testimony, takes notes and confers with his lawyers. ' He's smart, he knows the facts of the case better than any other individual on the face of the earth, and he's even read some case law,' one of his lawyer's said.

Buoyed by dozens of relatives, friends and other supporters at the hearing, Marty discreetly nods to them. During breaks, they talk to reporters in the hallway, but sometimes burst into tears. His aunt Ruthie summed up their hopes. 'If the truth comes out,' she said, 'Marty is free.' "

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