Attorneys for Murder Defendant Merrill Allege Secret Deal in First Trial : Law: Case should be dismissed because of arrangement that denied Merrill a fair hearing, his defense team argues. Prosecution rejects claims.

Attorneys who won a new murder trial for Thomas R. Merrill explored in court on Friday whether the prosecution and a defense attorney for Merrill’s co-defendant made a secret deal that denied Merrill a fair trial.

At the daylong hearing, William J. Genego and John D. Barnett, Merrill’s new defense attorneys, argued that the case should be dismissed altogether because of repeated instances of misconduct by the prosecution.

Specifically, they contended that an agreement was improperly struck to try Merrill and his friend Eric J. Wick together for the 1989 robbery of the Newport Coin Exchange. Two people were shot to death in the crime, and the store owner was gravely wounded.

Barnett and Genego said that Wick’s attorney, Deputy Public Defender Tim B. Severin, agreed not to oppose the legal maneuvers of former Deputy Dist. Atty. Jeoffrey L. Robinson in exchange for a greatly reduced sentence for Wick.

Supporting their contention was the testimony of William King, the surviving store owner, who said a district attorney investigator told him there was a deal to try Wick and Merrill together, because it would be difficult to convict Merrill any other way.

Evidence introduced Friday included an internal memo by Robinson acknowledging that he had “a thin case” against Merrill and he would be hard to convict if tried alone. He went on to say that he needed the “intangible benefit” that would come from having Merrill side by side in court with Wick, against whom the evidence was substantial. The memo also showed he had discussed a joint trial with Severin, who wanted the death penalty ruled out if he helped facilitate a joint trial.

But during six hours of questioning, the allegations of a back-room deal were met with broad denials from Robinson, Severin, District Attorney Investigator Gerald C. Teplansky, and Deputy Dist. Atty. Richard King, one of Robinson’s superiors who took part in discussions with him about a joint trial.

Robinson testified that it was proper for him to seek a joint trial for Wick and Merrill to prevent their defense attorneys from gaining an advantage over the prosecution. If separate trials were held, he said, the defense could try to blame the crime on the other defendant and the jury would not get the entire picture of the close relationship between Merrill and Wick.

“I had to get (them tried together) . . . or someone guilty of murder would walk,” Robinson said on the witness stand. “If Merrill was tried with Wick, it would prevent either defendant from laying it off on each other.”

King and Robinson said that instead of pursuing the deal with Severin, they dropped the charges against Wick, and refiled them along with Merrill’s to achieve a joint trial.

According to the testimony, the prosecution eventually agreed not to seek the death penalty or life without possibility of parole for Wick after he was convicted. Evidence indicated that Robinson dropped those penalties because Wick had no criminal record, he apparently was not the shooter, and he was young, only 23 at time of trial.

At the end of Friday’s hearing, Commissioner Richard M. Aronson, who is hearing the case, took the matter under submission. He said he would issue his ruling on Oct. 22.

But before the hearing began, Aronson expressed skepticism about the existence of a secret agreement between Robinson and Severin--”I think the allegation on the deal is somewhat thin. You make a big leap from an arrangement to a secret deal.”

Merrill and Wick, both former Tustin Marines, were convicted of seven felonies each in July, 1991. Wick ultimately received a 37-year to life sentence, while Merrill, Wick’s bunkmate at the Tustin helicopter base, received two life sentences without the possibility of parole.

In June, all of Merrill’s convictions were thrown out at a habeas corpus hearing after Barnett and Genego argued that his original attorney, Gary M. Pohlson, did a poor job representing him and that the prosecution withheld eyewitness statements that pointed to his innocence.

They provided evidence and sworn statements that the witness, Finn Olsen, had told investigator Teplansky before a preliminary hearing that Merrill was not one of the suspected robbers. Robinson and police were present, the evidence indicated, but were coming and going from the conversation.

Testimony and sworn statements further showed that Olsen repeated his statements to Robinson and Teplansky before the trial.

Robinson, however, said Olsen never told him at any time that Merrill was not one of the suspects, only that he could not identify anyone. He has steadfastly denied any professional impropriety. Pohlson likewise defends his representation of Merrill.

During the habeas hearing, Aronson gave his opinion that he believed there were two instances of withholding evidence--one at the preliminary hearing and one before trial--but he never made that an official ruling. Shortly after Aronson voiced this view, the district attorney’s office agreed it had withheld evidence at the preliminary hearing, and the judge overturned Merrill’s convictions.

Before Friday’s hearing got underway, Aronson clarified his June decision to dismiss charges against Merrill. He said that the prosecution improperly withheld evidence at the preliminary hearing and that it was unnecessary to take additional testimony about withholding evidence before the trial.

Referring to the possibility of a second instance of prosecution misconduct immediately before the trial, Aronson said, “I might consider it as true, but I never concluded it. The issue (of misconduct at the preliminary hearing) was proved. So why entertain more evidence I don’t need?”

On June 28, Aronson ordered a new trial for Merrill, saying that the request to overturn his convictions “has merit.” The commissioner said Friday that he neither blamed Robinson nor Pohlson for the situation in the final decision.