Retrial Set in Coin Shop Slayings : Courts: Judge refuses to dismiss murder case against Thomas R. Merrill, saying that no secret deal was struck to aid a co-defendant in 1989 robbery.

The judge who overturned Thomas R. Merrill’s murder convictions refused on Friday to dismiss the case, saying there was no proof that the prosecution, the FBI-agent father of Merrill’s co-defendant and a defense lawyer made a secret deal that denied Merrill a fair trial.

“There is no evidence of any kind of deal,” Superior Court Commissioner Richard M. Aronson told John D. Barnett and William J. Genego, Merrill’s defense attorneys.

The ruling clears the way for the retrial of Merrill, a Marine lance corporal who was initially convicted of seven felony counts, including two first-degree murder charges, in July, 1991. He was found guilty along with his friend and fellow Marine, Eric J. Wick, for the 1989 robbery of the Newport Coin Exchange in Newport Beach that left two people dead.

Wick ultimately received 37 years to life in prison, while Merrill was sentenced to two life terms without the possibility of parole.

Barnett and Genego had asked Aronson to permanently dismiss all criminal charges against the former Tustin Marine, and forever bar the district attorney’s office from ever charging him again, because of repeated instances of alleged misconduct by the prosecution.

They specifically contended that an agreement was improperly struck to implicate Merrill in the shootings and then try him together with Wick, against whom the evidence was substantial.

Barnett and Genego alleged 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 to secure a joint trial, in exchange for the dropping of the death penalty against Wick.

The deal, they argued, was helped along by Wick’s father, FBI Agent Bruce Wick of Reno, who cooperated with police by helping them implicate Merrill, who was the bunkmate of his son at the Tustin Marine Corps Air Station.

Robinson, the defense argued, needed the joint trial because one of his own memos indicated that the evidence was so weak against Merrill that it would be difficult to convict him if he went on trial alone.

Noting earlier court testimony from Bruce Wick, Severin and Robinson, Aronson said their denials and accounts of what happened in the months leading up to the June, 1991, trial were both “credible and persuasive.”

Agent Wick told the court that he was approached by police who wanted him to persuade his son to talk about Merrill’s possible involvement. But Wick said he only discussed the matter with Severin, and never asked his son for information.

Severin could not recall the specifics of his discussions with Robinson about the prosecution’s effort to try Wick and Merrill together. He said, however, that he never agreed to go along with the prosecution effort, in exchange for a reduced sentence for Wick.

In testimony, Robinson said his office obtained a joint trial legally by dropping charges against Wick and refiling them along with Merrill’s case. That way, he said, no deal had to be entered into with the defense, preserving all the prosecution’s sentencing options.

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

Aronson said Robinson’s eventual decision not to seek the death penalty or life in prison without the possibility of parole for Wick was based on proper reasoning, including Wick’s young age and a verdict that indicated he was not the shooter.

“Often decisions on sentencing are made by the prosecution after the verdict,” Aronson said. “I find the D.A. credible on this offer to change his sentencing recommendations. There is nothing sinister about the D.A.’s move to drop the death penalty.”

The district attorney, Aronson said, could legally try Wick and Merrill together, because the alleged offenses involved a common event and the same victims. He asserted that it was up to Merrill’s defense counsel at the time, not the prosecution, to request that Merrill be tried separately from Wick.

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 Merrill 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 a district attorney investigator before a preliminary hearing that Merrill was not one of the suspected robbers. Testimony and sworn statements further indicated that Olsen repeated his statements to Robinson and the investigator before the trial of Wick and Merrill.

Robinson, however, maintains that he never withheld evidence, because Olsen only told him that he could not identify Merrill, not that he wasn’t one of the men he had seen. The former prosecutor has steadfastly denied any professional impropriety. Pohlson likewise defends his own actions.

During the habeas proceeding, 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 part of his final ruling.

After Aronson voiced his view, the district attorney’s office agreed that evidence was withheld at the preliminary hearing--enough reason for the judge to overturn Merrill’s convictions. Aronson said at a hearing last week that he did not blame either Robinson or Pohlson in his final ruling, because questions about their conduct had become moot.

At the beginning of Friday’s hearing, Edgar A. Freeman, a retired deputy district attorney, defended Robinson’s professional reputation and presented Aronson statements countering Olsen’s assertion that Merrill was not one of the robbers.

Freeman and his former colleague, James G. Enright, a former high-ranking prosecutor, said they had discussed the Merrill case with a detective in the case who said Olsen never told him Merrill was not one of the men he had seen trying to flee the Newport Coin Exchange.

“I am here to support the professional reputation of Jeoff Robinson,” Freeman told Aronson. “His reputation has been attacked in the newspapers. . . . I want to see that justice is done and that equity is established.”

Aronson let Freeman file the statement in the case file, but he said it was irrelevant to the issues that were under the court’s consideration.

Aronson also ruled Friday that Merrill should not be granted a new preliminary hearing to determine once again whether there was enough evidence to try him in Superior Court for murder.

Barnett and Genego contended that Merrill was denied his right to put on an adequate defense at his preliminary hearing in March, 1991, because Olsen’s statements had been withheld from his attorney.

Though he said the law in this area conflicts, Aronson concluded that the addition of Olsen’s statements for a new preliminary hearing might not have affected the outcome because enough evidence exists to justify a trial.

Prosecutors and Merrill’s defense team will appear before Aronson on Nov. 5 to discuss setting a trial date. Genego said Friday he will consider appealing the decision to deny his client a new preliminary hearing.