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	Appeal in Child Rapist Case Put on Hold By Tricia Bishop Baltimore Sun January 21, 2011 http://www.baltimoresun.com/news/maryland/bs-md-merzbacher-appeal-20110120,0,6276575.story The U.S. Supreme Court recently agreed to hear two cases involving criminal plea deals, and their outcomes could affect whether a Maryland child rapist — sentenced to four life terms in 1995 — stays behind bars or is soon set free, according to the state attorney general's office. A federal judge ruled last year that John Joseph Merzbacher, accused of molesting dozens of students at a Baltimore Catholic school in the 1970s, should get a second chance to accept a 10-year-plea deal his defense attorneys neglected to tell him about years ago. Merzbacher was convicted at trial of raping then-teenager Elizabeth Ann Murphy, now 49, and sentenced to a lifetime in prison in the mid 1990s. The judge's 2010 decision meant Merzbacher would likely be released, which outraged prosecutors, Murphy and former students who had earlier dropped their abuse cases against him, believing Merzbacher would never be set free. Maryland appealed the ruling to the 4th U.S. Circuit Court of Appeals in Richmond, Va., and an opening brief explaining the state's argument is due in the case next week. But Assistant Attorney General Edward J. Kelley has now asked that the appeal be placed in abeyance until the high court rules on two cases from Michigan and Missouri — known as Lafler v. Cooper and Missouri v. Frye — which involve similar plea deal situations. "The Supreme Court's dispositions in [the cases] almost certainly will affect the ultimate resolution" in the Merzbacher appeal, by addressing "critical issues presented by the parties," Kelley wrote in a court document filed last week, a few days after the Supreme Court agreed to hear the two cases. Merzbacher's current attorney, H. Mark Stichel, consented to the request "with great reluctance" in a court document filed Wednesday. "He should have been out in 2005 [under the plea deal], and it's now 2011," Stichel said in a telephone interview. "Any delay is just additional time that we think he shouldn't be incarcerated." The Supreme Court will hear arguments in the two cases toward the end of its term this year, and likely rule by the end of June, attorneys said. The Lafler v. Cooper case involves a defendant whose lawyer advised him not to take a plea deal based on a misunderstanding of Michigan law. The man, Anthony Cooper, went to trial on charges of assault with intent to murder and was sentenced to a term that was three times as long as that offered in the plea. Cooper later argued that his counsel was ineffective for giving bad advice, and two courts agreed, requiring that he be offered another chance to take the plea and its lighter sentence. In the Missouri v. Frye case, Galin Frye pleaded guilty to a felony charge of driving on a revoked license and received a three-year sentence. Prosecutors had offered a lighter, misdemeanor plea deal that Frye's lawyers never told him about, however, and he fought the conviction. A court later ruled that he should get the plea deal or a chance at trial. The U.S. Supreme Court will now consider how those cases should be handled, and, more specifically, what remedy should be provided for "ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures." The question is similar to that before the 4th Circuit in the Merzbacher case, and the high court's answer is likely to guide the Richmond judges. For his victims, the delay means more time in prison for Merzbacher — a small relief, Murphy said. "There's another part of me that just wishes it would be settled once and for all," she added. "I'm tired of having it in the back of my mind constantly." Contact: tricia.bishop@baltsun.com
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