Collusion Alleged in Murder Conviction : Jurisprudence: Marine may be victim of a deal between prosecutors and co-defendant’s FBI agent-father, attorneys say.

Leveling new accusations of misconduct against the prosecution, attorneys who won a new murder trial for Thomas R. Merrill said in court documents Friday that they have discovered evidence of possible collusion between the prosecution and the FBI agent-father of Merrill’s co-defendant.

In a Superior Court motion filed by Merrill’s lawyers are two new pieces of evidence which they say raise the question of whether there was an improper deal that benefited one defendant, former Marine Lance Cpl. Eric Wick, at the expense of Merrill, his close friend and fellow Marine.

Wick was sentenced to 37 years to life in prison with the possibility of parole, while Merrill received two life terms with no parole possibility, for the March, 1989, robbery of the Newport Coin Exchange that left two dead and a third gravely wounded.

One newly revealed piece of evidence was a friendly note to law enforcement investigators from Wick’s father, Nevada FBI agent Bruce Wick. Merrill’s lawyers say it indicates an unusually warm relationship between law enforcement personnel and the father of an accused murderer facing charges that could bring the death penalty. The other is a statement by Coin Exchange owner William D. King, who told prosecutors that one of their investigators had mentioned a deal to help Eric Wick.

Attorneys John D. Barnett of Santa Ana and William J. Genego of Santa Monica contend the prosecution failed to disclose Wick’s note and the terms of any deal to the defense, thus violating the prosecution’s legal duty to reveal all exculpatory evidence to the defense.

“The withholding of the letter of Bruce Wick, and the existence of a possible deal between Wick and the prosecution . . . is prosecutorial misconduct that cannot be tolerated,” the defense motion states.

Friday’s filing marks the second round of accusations that the prosecution improperly withheld evidence in the case, which resulted in Merrill and Wick being convicted of seven felonies, including two counts of first-degree murder.

In June, Merrill won a new trial after his lawyers argued that his original attorney did a poor job of representing him and that the prosecution withheld eyewitness statements that pointed to Merrill’s innocence.

But even before that new trial can be scheduled, Merrill’s lawyers are arguing that the newly uncovered evidence reveals a pattern of prosecutorial misconduct so serious that the only proper step now would be to dismiss all charges against their client.

A hearing on the new accusations is set for Oct. 15.

Senior Deputy Dist. Atty. Eric W. Snethen, one of those handling the matter for the district attorney’s office, declined to comment on the accusations, saying he had not yet read the motion. But police, Eric Wick’s former defense attorney, the FBI and FBI agent Wick all deny any improper involvement in the case.

“Neither (Special Agent) Wick in his official capacity, nor the FBI, were involved in the investigation,” said Walter B. Stowe Jr., assistant special agent in charge of the FBI’s Las Vegas office, which oversees the Reno office to which Bruce Wick is assigned. “Neither SA Wick, nor the FBI, attempted to influence the investigation.”

In accordance with the bureau’s policy to be of “support and assistance” to agents whose families experience “tragic circumstances,” Stowe said the FBI assigned Bruce Wick to temporary duty in Los Angeles several times in 1991, the year that the younger Wick and Merrill went on trial.

Wick said he came to Santa Ana frequently to discuss the case, particularly with his son’s defense attorney, Deputy Public Defender Tim B. Severin. He said he provided no leads or advice to anyone.

Severin said he was not a party to any deal involving the prosecution and Bruce Wick to have Eric Wick and Merrill tried together. Agent Wick, he said, never attempted to influence the outcome of the case to benefit his son.

“Bruce Wick is a pro,” said Severin. “He is an honorable person.”

Wick’s handwritten note is addressed to “Gerry/Rich/Mike,” an apparent reference to district attorney’s Investigator Gerald C. Teplansky, and to Newport Beach police officers Richard T. Long and Michael P. McDermott, two of the police investigators on the case.

The note says Wick had been trying to call them “all morning,” and goes on to say that he had had a short conversation with Severin.

“Tim says he will think about the issue and contact (the assistant district attorney) when he returns,” Wick wrote. “Thank you for your courtesy! Bruce.”

The note was found among 8,000 pages of new documentation turned over to the defense by the prosecution within the last month.

Genego, one of Merrill’s lawyers, said in court documents that the note “reveals an ongoing relationship between Bruce Wick and the prosecution’s law enforcement agents, in which they appear to be collaborating on a particular ‘issue’ (and that) . . . Bruce Wick is receiving something for which he is appreciative.”

Wick’s note is dated Oct. 4, 1990, six weeks before Merrill’s unexpected arrest. Eric Wick had been arrested sixteen months earlier as the sole defendant, and the police case had appeared dormant for the better part of a year, when Newport police in October, 1990, resumed questioning Merrill and another Marine they had interrogated more than 15 months before.

Genego said in court papers that both the content and the timing of Wick’s note raise questions about cooperation between the prosecution and Wick’s defense attorney, and whether this influenced the prosecution to shift primary blame for the crime from Wick to Merrill.

“For the father of a defendant charged with a double homicide to have a personal relationship with the investigating officers in which personal correspondence and courtesies are being exchanged is, to say the least, unusual,” Genego wrote.

“It goes from being unusual, however, to being exculpatory, when the upshot of that relationship is that, after 18 months, another person is charged with committing the crimes, the theory of the prosecution’s case changes so that the other person is depicted as the more serious offender. . . .”

In a sworn statement accompanying the motion, Merrill’s original attorney, Gary M. Pohlson, said Wick’s note was never shown to him. If it had been, he said, he would have “considered and pursued the possibility that the decision to arrest and charge Mr. Merrill was the product of, or influenced by, an agreement or understanding between the Wick defense team (including Bruce Wick) and the prosecution team.”

Pohlson said he had asked both the prosecutor and Wick’s defense attorney whether any deal existed between them, and they had denied it.

Also attached to the motion filed Friday is a transcript of a March, 1993, interview of coin shop owner King by an assistant district attorney and his investigator. King informed the two men he was told there was an “arrangement” to make sure that Wick and Merrill were tried together.

In an interview with The Times, King reiterated his belief that a deal was made to have Wick and Merrill tried together. In exchange, he said he was told that the prosecution agreed not to seek the death penalty against Wick, against whom there was stronger evidence.

“Teplansky tells me, ‘We don’t have the kind of damning evidence against Merrill that we do against Wick. We can’t convict (Merrill) by himself. We gotta have Merrill sitting with Wick in front of the same jury at the same table. It will look bad for Merrill,’ ” King said.

As it turned out, the prosecution declined to pursue the death penalty against either man. It did drop the “special circumstances” of the charge against Wick, which makes him eligible for parole, while declining to do the same for Merrill.

King had said all along that Wick was the lone gunman, and the murder weapon was found in Wick’s possession, as were some precious-metal coins believed to have been taken in the robbery. The evidence against Merrill hinged largely on the testimony of two eyewitnesses who had glanced into the Coin Exchange and whose descriptions of the gunman they saw were inconsistent.

Genego wrote that the existence of a deal “is supported by what was the final payoff--the striking of special circumstances against Wick so that he escapes life imprisonment.”

But Severin told The Times, “There was never any agreement with the prosecution to try them together. . . . But then when they were going to be tried together, I thought that would be in the best interest of my client.”

Severin said he has never seen Wick’s note and does not know what “issue” Wick refers to in it. At the time the note was written, he said he had no inkling that Merrill would be arrested.

McDermott, now a Newport Beach police sergeant, said, “From what I could see, there was no collusion between the prosecution and Severin.” He said he met once with Bruce Wick in Reno in the presence of other FBI agents to discuss the case, and later saw him in the courthouse hallway during the trial. Those encounters involved short, cordial talks in which nothing substantial was discussed, he said.

During the meeting in Reno, McDermott said he and Bruce Wick talked about Merrill’s “activities and closeness with the Wick family” but not about Merrill’s possible involvement in the crime.