Man Wrongly Convicted Seeks to Start Trial Over

Lawyers for a former Tustin Marine improperly convicted of murder sought to roll back the prosecution’s case even further Tuesday by asking a state appeals court to return the double-homicide case to Municipal Court for a new preliminary hearing.

The request was made on behalf of Thomas R. Merrill, a lance corporal who was found guilty in 1991 of killing two people and wounding a third during the robbery of the Newport Coin Exchange. Last year, he was granted a new trial because the prosecution withheld from the defense critical evidence that pointed to Merrill’s innocence.

During Tuesday’s session before the 4th District Court of Appeal, two justices took jabs at the Orange County district attorney’s office, including a remark about the original prosecutor in the case.

Also, the deputy district attorney assigned to appeals candidly revealed in court that he had recommended to his superiors that defense attorneys be given the new preliminary hearing they are seeking, but his recommendation was rejected.

“It may be in the district attorney’s interest to have another prelim(inary hearing) to see if it still has a case,” Justice Edward J. Wallin said as the hearing neared its end.

“We have a case, your honor,” answered Deputy Dist. Atty. Eric W. Snethen.

Preliminary hearings are used in felony cases to determine whether there is sufficient evidence to try a defendant in Superior Court. They are usually limited proceedings to explore the most basic evidence, but the accused has the right to put on a defense.

Attorneys William J. Genego and John D. Barnett are appealing Orange County Superior Court Commissioner Richard M. Aronson’s ruling that denied Merrill a new preliminary hearing late last year.

Aronson erred, they say, because Merrill, who is still in jail, was denied the right to defend himself at his first hearing when prosecutors withheld the statements of a key eyewitness from his attorney. Aronson concluded that it would not have changed the outcome.

According to court records and testimony, the witness told the prosecution at least twice that Merrill was not one of the men he saw fleeing the Newport Coin Exchange immediately after the robbery. The law requires that statements pointing to innocence be turned over to the defense.

“It’s hard to imagine that he could have been denied a more substantial right,” Genego told the court. “The issue is whether Merrill should have even been charged in this case. This was tremendously exonerating evidence.”

Genego described the prosecution’s misconduct as “egregious” and asked the court to grant a new preliminary hearing to discourage the district attorney’s office from withholding evidence in the future.

If Genego and Barnett succeed, the charges against Merrill will be dismissed in Superior Court, forcing the district attorney to decide whether to refile the case in Municipal Court. In effect, it would force the prosecution to start over.

Challenging the defense’s argument, Snethen said Merrill “wants the cake he already ate.” He pointed out that his attorneys used the same arguments to get him a new trial; now they want to use them again to delay the trial by forcing a new preliminary hearing.

If a new preliminary hearing were ordered, Snethen claimed, it would turn out the same as the first, with Merrill being bound over for trial in Superior Court. Another witness, he noted, has said that Merrill looked like one of the men leaving the coin shop.

At one point, Wallin asked Snethen about Genego’s idea of punishing prosecutors for misconduct. Snethen said the cost has already been high for the district attorney and the public because a new trial was ordered. It has been set for early April.

“This is an issue of fairness, not cost,” Wallin said.

Near the end of Snethen’s argument, Justice David G. Sills remarked about former Deputy Dist. Atty. Jeoffrey L. Robinson, whose conduct has been called into question in several other high-profile trials before the appeals court.

“Is this the last case with this particular prosecutor that we have to contend with, or will there be others?” Sills said.

In the Merrill case, court testimony and a sworn affidavit indicate that Robinson was aware of the statement of an eyewitness who said Merrill was not one of the men at the coin exchange, but did not tell the defense about it.

Robinson, who is now in private practice in Mission Viejo, has denied any wrongdoing.