Merrill Attorneys, Claiming Prosecutors Withheld Evidence, Want Case Dismissed

Heartened by their successful effort to win Thomas R. Merrill a new trial, defense attorneys are now seeking to have all criminal charges against him dismissed, arguing that prosecutors withheld critical evidence from the defense that pointed to his innocence.

Merrill’s lawyers have asked Superior Court Commissioner Richard Aronson to overturn the results of a March, 1991, preliminary hearing used to determine that there was enough evidence to try the former Tustin Marine on murder charges in Superior Court.

Because the prosecution suppressed statements of an eyewitness who said Merrill was not one of the men he saw during the crime, his attorneys contend that Merrill was denied “pivotal” information to defend himself in court.

The withholding of the statements “skewed entirely the weighing of evidence by the magistrate at the preliminary hearing and wrought a profound injustice,” wrote attorneys John D. Barnett and William J. Genego in their request to dismiss the charges.

A hearing on the matter is set for Sept. 24. If Aronson grants the extraordinary request, the charges now pending in Superior Court will be nullified, forcing the district attorney’s office to refile them in Municipal Court, where preliminary hearings are held. Basically, prosecutors would have to return to square one in a case that resulted in Merrill being convicted of murder two years ago.

In July, 1991, Merrill and his friend, former Marine Lance Cpl. Eric J. Wick, were found guilty of seven felonies, including two counts of first-degree murder, stemming from the March, 1989, robbery of the Newport Coin Exchange. Two people were shot to death in the crime, and a third was gravely wounded.

Aronson, who presided over the jury trial as a judge pro tem, sentenced Wick to 37 years to life in prison and gave Merrill two life terms without the possibility of parole. He said he believed that Merrill acted as the triggerman in “some sort of Marine macho fantasy.”

But in June of this year, Aronson overturned Merrill’s convictions and granted him a new trial after his attorneys argued that the prosecution improperly withheld important evidence and that Merrill’s original lawyer had made serious mistakes in the case.

According to court records, the evidence in question came from Finn Olsen, a commercial baker, who said he clearly saw two people--believed to be the robbers--hastily trying to get into a car in the Coin Exchange parking lot.

Although he initially thought a photo of Merrill shown to him by police resembled one of the men he saw, he could not pick him out of a lineup and eventually excluded Merrill as one of the men.

Later, in a sworn court declaration, Olsen said he told Deputy Dist. Atty. Jeoffrey L. Robinson and his investigator Gerald C. Teplansky that he did not see Merrill at the Coin Exchange. That information was provided to the prosecution before the preliminary hearing and again before trial, but never conveyed to the defense, court records state.

What Olsen observed is critical because the prosecution called him as a witness during trial to firmly establish that two people committed the coin shop robbery. Another witness was uncertain whether there was one or two people involved.

Robinson “used Olsen as a prosecution witness while carefully concealing from the trier of fact the true statement of Mr. Olsen. Such conduct is plainly a far cry from the mandate upon a prosecutor to, in all cases, seek a just result,” Barnett and Genego wrote in their motion to dismiss charges.

Robinson, now in private practice, has denied any impropriety. He said he had nothing to turn over to the defense because Olsen told him only that he was unable to identify anyone, not that Merrill wasn’t there.

“Olsen never told me that Merrill was innocent as he says in his declaration,” the former prosecutor said. “That’s an absolute fabrication.”

Robinson is contradicted by Teplansky’s sworn statements that appear to corroborate Olsen’s version of the events. Even Senior Deputy Dist. Atty. Eric Snethen, who fought against a new trial for Merrill, concedes that the prosecution erred by not turning over Olsen’s statements.

Nevertheless, Snethen contends that Merrill is not entitled to a new preliminary hearing. He declined to comment specifically because he has not yet prepared the written response to the defense request.

“They are wrong legally and factually,” Snethen said in general. “I see no legal authority to support their motion. They are relying on old law, and they are not citing the relevant law.”

Defense attorneys say that new preliminary hearings are occasionally granted, but not very often. Rarer still are the grounds being used to seek a new hearing for Merrill--the withholding of critical evidence by the prosecution.