By Tricia Bishop, The Baltimore Sun
2:18 PM EDT, March 22, 2012
Nearly 100 people have added their names to an online peititon seeking to keep a convicted child rapist behind bars since Wednesday, when two U.S. Supreme Court decisions appeared to bolster the man's appeal arguments and the likelihood he could be released from prison despite having been sentenced to four life terms.
John Joseph Merzbacher, now 70, was accused of terrorizing students at a Baltimore Catholic school in the 1970s and convicted two decades later of six counts of child rape and sexual abuse in connection with the allegations. But he more recently claimed that the findings and their punishments shouldn't stand, because he was never told of a 10-year plea deal proposal before his trial. A federal judge, Andre M. Davis, agreed with him in 2010, ruling that Merzbacher should get a second chance at the offer under certain conditions, opening the door for his immediate release.
The Maryland attorney general's office fought the ruling, but had to put its own appeal on hold for more than a year to see how the country's high court would decide two similar cases involving botched plea offers. The justices' decisions, each reached in a 5-4 vote, seem to side with Merzbacher's interpretation.
"It's been our position all along that he has served the time that he would have served had he been properly advised of the plea bargain, and at this point, it's up to the courts to decide how to resolve all of that," said Merzbacher's attorney, Henry Mark Stichel.
The possibility of Merzbacher being set free has renewed fears for those who say the former teacher attacked them while they were preteens at the city's Catholic Community School on Fort Avenue in Locust Point. Many have kept in touch through the years and are discussing ways they can fight Merzbacher's potential release, by reopening cases they dropped years ago and lobbying state leaders for help.
"This is a man who threatened my life. If I ever told, he said he would kill me, and he [said] it to all of us," Elizabeth Ann Murphy said Wednesday. She became the public face of the victims when she took Merzbacher to court and won the convictions against him in 1995.
The Supreme Court findings have put her efforts in jeopardy.
In one case, Lafler v. Cooper, the justices found that a Michigan man who rejected a plea deal based on the bad advice of his lawyer, then received a prison term that was three times as long, should be re-offered the deal, which a judge can then choose whether to enforce.
And in the second case, Missouri v. Frye, they found that a defendant who was never told of a plea offer should now be extended the deal if he is also able to show that the trial court and prosecutors would have upheld it originally. That case is in many ways parallel to Merzbacher's, said Erin Murphy, a Baltimore appellate lawyer not affiliated with the case.
"In my opinion, Davis' ruling is going to in fact be upheld because what Judge Davis did was exactly what the Supreme Court did," said Murphy, who's no relation to Elizabeth Murphy.
The rulings had the effect of bringing the state's appeal back to life. A briefing schedule was ordered Wednesday by the 4th Circuit Court of Appeals, which is considering the case, and, that afternoon, in the middle of her interview with The Sun, Elizabeth Murphy received an e-mailed notice from the attorney general's office, alerting her that the appeal was moving forward.
"It's just hard, because you just want it to go away," she said. "I tried everything in my power as a citizen in the state of Maryland to fulfill what I feel is my obligation to keep this violent child rapist behind bars at great personal cost emotionally — to be so public with this and to go through a public trial and to be willing to show my face and to say my name — I've done everything to cooperate with the state, and now it's time for the state to step up and make sure he stays in prison."
A spokesman for the attorney general's office said they were "reviewing the decisions" and unable to comment further. Stichel was also hesitant to discuss the effect of the high court's rulings, other than to say they appeared "favorable" upon first review. He has not yet had a chance to discuss the decisions with his client, who's in a facility on the Eastern Shore.
When Murphy learned of the high-court's rulings Wednesday, she updated an Internet petition that had been dormant for four months, hoping it would help keep Merzbacher behind bars. It spurred a flurry of activity and 88 additional signatures by 2 p.m. Thursday, bringing the total number of signatures up to 1,922.
Merzbacher was accused of raping and sodomizing students day after day for years while a teacher at the small religious school, which turned a blind eye to his actions, former students told The Sun. He beat the children, according to court documents, forced them to have sexual relations with each other, and threatened death to anyone who told.
When criminal charges were filed against him decades later, he denied the allegations. He also maintained his innocence throughout the trial, making it tough for his former students to believe he would have accepted a plea deal had he known about it.
Elizabeth Murphy, now 51, called the idea "absurd" and said there would be "grave implications" for other children if Merzbacher were freed.
His effects are lasting. When he was sentenced to four life terms, 13 others who had filed more than 100 charges against him agreed to drop their cases, believing he would never again be free. Of those 13, at least three died young after years of struggle, and most have led hard lives, abusing drugs or alcohol or food, they or their relatives said, to mask the feelings of shame.
"I have a problem with trusting people and have been in and out of counseling," said Linda Tiburzi, who agreed to drop her case after Murphy's was successful. At 51, she can't stomach the idea of being in a relationship, and leaves them before they blossom. She's been diagnosed with post-traumatic stress disorder and a dissociative disorder that makes it hard for her to face her problems. And as a child, she was angry and bitter.
"I was totally out of control," she said. It wasn't until Merzbacher was investigated in the 1990s, after Murphy stepped forward, that she told anyone about the alleged abuse. Now she's ready to tell the world again, asking that her criminal case be reopened if Merzbacher is freed.
"I'd be willing to turn my life upside down again, I live in Massachusetts now, and I'd be willing to come back to Baltimore just to have that man be put where he needs to be," she said.
She and other students of Merzbacher's are prepared to come forward with their stories if need be.
Former Archbishop Edwin F. O'Brien sent a letter to Davis "in support of the courageous survivors of John Merzbacher" asking that the judge allow the life sentences to stand. The Archdiocese settled civil claims against it with payouts over the years; Tiburzi said she received $42,000.
"The abuse and threats have had an enormous impact on these innocent people, first as children, then as adults, as well as their families, and I fear that granting Merzbacher's request to be released from custody will cause further harm to these who have already suffered greatly," O'Brien wrote. "To nullify the jury's guilty verdict and prior judge's sentence would be a great injustice to those who risked much and received some measure of justice from Merzbacher's original criminal trial."
Davis said in his ruling that the plea deal should be offered to Merzbacher, but it was contingent upon finding a Baltimore judge willing to honor it, and Merzbacher agreeing to take the term.
It's now up to the 4th Circuit to determine whether that ruling will stand. Briefs are due in the case by the end of April according to the schedule posted Wednesday.
"It's just a potential travesty," Elizabeth Murphy said.
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