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	Mistakes by Child Molester's Attorneys Could Set Him Free By Dan Rodricks The Baltimore Sun July 31, 2010 http://www.baltimoresun.com/news/maryland/bs-md-merzbacher-folo-20100731,0,7327433.story State must offer Merzbacher 10-year plea bargain; he had been serving four life sentences Had he known that prosecutors were willing to offer him 10 years in prison in return for a guilty plea, convicted rapist and child abuser John Merzbacher would have accepted the deal "most graciously" instead of standing trial and getting the multiple life terms he has been serving since 1995. That's what Merzbacher claimed a few years ago during a post-conviction hearing in Baltimore to determine whether his defense attorneys had told him about the plea deal. That deal — and a federal judge's conclusion that Merzbacher's lawyers erred in keeping it from him — is central to the latest chapter in one of Maryland's highest-profile child sex abuse cases, involving dozens of victims, male and female, who were students of Merzbacher's at Catholic middle school in the 1970s. Now, errors by his own attorneys could negate his four life sentences and lead to Merzbacher, 68, being freed from the Eastern Correctional Institution in Somerset County. On Friday, U.S. Circuit Judge Andre M. Davis sent the case back to state court so the former teacher can be offered the same 10-year plea deal that was apparently proposed to his attorneys before his trial. The move is contingent upon finding a Baltimore City Circuit Court judge willing to honor a pact struck nearly 16 years ago. The state could also appeal the federal ruling. Davis' 72-page opinion was highly critical of earlier rulings in state court that said Merzbacher must have known all along about the possibility of the lighter sentence. For the past several years, Merzbacher claimed that he never knew about the deal, though his attorneys were required by law to tell him. His claims were dismissed twice in the state courts, with Baltimore Circuit Court Judge John N. Prevas concluding that Merzbacher's lead defense counsel, the late M. Cristina Gutierrez, had lied when she claimed to have forgotten to inform her client of the deal. Gutierrez was a tenacious attorney who enjoyed the legal spotlight for several years in Baltimore until her disbarment in 2001. Her love of publicity is what might have compelled her to hide the plea deal and go to trial, one of her successors as Merzbacher's attorney, H. Mark Stichel, argued in 2004, several months after Gutierrez's death. "There was nothing she would have loved more than an acquittal in the case," Stichel said at the time. Davis didn't address Stichel's argument, but found some of Prevas' conclusions about Guiterrez "wholly irrelevant" and "manifestly absurd." One conclusion, the federal judge said, "stretched long-settled notions of due process to their limits, if it did not shatter those limits." Central to Merzbacher's claim is that Gutierrez and his other trial attorney, William Kanwisher, should have told him about a deal offered by the Baltimore state's attorney's office one evening in December 1994. Under the proposal, Merzbacher would have entered a plea of guilty to an unspecified number of charges stemming from his abuse of students at the Catholic Community School in South Baltimore. In return, the state would have agreed to a 10-year prison sentence and drop the remaining charges. Four life terms But the deal was never completed, and Merzbacher went on trial. He was found guilty in June 1995 and sentenced to four life terms for rape and statutory rape for the abuse of Elizabeth Ann Murphy, who was one of his students in the 1970s. Merzbacher proclaimed his innocence. But he also argued, in post-conviction proceedings, that he was denied competent counsel. He claimed he did not learn of the plea deal until well after he was in prison. "Both the Maryland Rules of Professional Conduct and the American Bar Association standards support the premise that a lawyer provides ineffective assistance of counsel when he or she neglects to inform a defendant about the possibility of a plea agreement," Davis noted in his opinion. Over the years, Merzbacher's appeals were rejected by the state court. Prevas did not believe Gutierrez had forgotten to inform her client of the offer. "It is with a very heavy heart," Prevas wrote in an opinion to the Maryland Court of Special Appeals, "that I must conclude that Ms. Gutierrez, who shortly afterwards consented to disbarment and is now suffering terminally from the effect of uncontrolled diabetes and multiple sclerosis, (I wish I could have waited and been disrespectful to her posthumously) committed perjury in the post-conviction hearing. Sadly, she is not worthy of belief." But that was all wrong, said Davis, who in his opinion was critical of Prevas for reaching conclusions about Gutierrez's credibility based on "information outside of the court record." Plus, he said, "it seems incredible" that Gutierrez would have lied to free Merzbacher, a child rapist. "Although one could conceive that a lawyer might sacrifice herself to save a wrongly convicted defendant from lethal injection," Davis said, "that is hardly the situation here." Didn't know of plea deal The federal judge said he found "clear and convincing evidence that Merzbacher was never told about the plea agreement in a constitutionally sufficient manner and almost certainly not told about it at all. "His attorneys both testified that they never told him. Their testimony cut significantly against their own interests since it suggests professional malfeasance. Additionally, Merzbacher himself testified that he was unaware that the plea agreement was a possibility for him." Had he known, Merzbacher said during a hearing, he would have accepted it. Asked why, he said, "Because I didn't have any money to continue to fight and … I believe the way [the state and defense] had it set up, there were going to be 11 or 15 different trials, which means I would have to pay for each one of those. I was scared. The publicity. And it just seemed like it was blowing out of proportion." By the time Merzbacher stood trial, there were 100 pending sexual abuse charges against him and the state had plans to go forward with 13 other trials. "The archdiocese had turned their back on me," Merzbacher said. "And, yes, I would have taken the plea." Davis ruled that the state must offer Merzbacher the 10-year deal within 60 days. Merzbacher already has served 15 years in prison. "There's this expectation that John Merzbacher is going to walk out of jail in 60 days, but I don't think that's going to happen," said Stichel, his attorney, said in an interview. "The state has already told me they fully intend to appeal the ruling." Contact: dan.rodricks@baltsun.com
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