Money Weighs Heavily on the Delicate Scales of Justice

Oh, the vexations of the legal system.

Deputy Dist. Atty. Rick King no doubt will spend the better part of this weekend chewing on just that, as he decides whether to try again to get a double-murder conviction of ex-Marine Thomas R. Merrill.

After a monthlong trial that ended in mistrial last week, King could only muster seven votes for conviction. A juror told me late Friday that it was actually only six for conviction on the murder charges, but that one juror added his vote late in the game after believing that Merrill’s guilt on lesser charges also made him technically guilty on the murder counts.

The jury deliberated nearly eight days before announcing the deadlock. King is expected to announce Tuesday if Merrill will be retried.

While pondering King’s dilemma--which is whether another trial would produce a different result--I’m recalling a conversation I had a year ago with another deputy district attorney. He was defending the office’s decision not to prosecute certain sexual assault cases, partly on the grounds that it wastes taxpayers’ money to pursue cases that look like sure losers.

Double murders outrank sexual assaults on the criminal pecking order, but if the D.A.’s office goes after Merrill again, it will lend credence to critics who complain it gives up too easily on hard-to-prove sex-crime cases and then claims cost as a contributing factor.

King would never put a double-homicide case in such crass dollars-and-cents terms, but murder cases cost money. Although Orange County doesn’t have a system for computing the cost of trials, Alan Slater, Superior Court executive officer, put a ballpark figure of about $10,000 a day for a criminal case. He based that on survey information of a few years ago, noted that it might be less for a retrial and cautioned about using it as a hard and fast figure.

If anything is beyond doubt, it’s that the Merrill case is a tough one to prove. It offers a welter of conflicting testimony. Even Merrill’s defense attorney, John Barnett, says, “It’s a very difficult case, factually, to understand.”

When I reached King on Friday, he was noncommittal about another trial. I put on my best reading-between-the-lines clothes and thought he might be leaning toward forsaking another prosecution. “The case--and this is what I told the jury--it’s a case where you have to put a lot of time into it to understand it,” King said. “We don’t have a videotape--I told that to jurors in closing argument. And bless their hearts, they did that. They worked through it as best they could. It’s the kind of case where you roll up your sleeves and get into the facts.”

Barnett said there’s no reason to expect anything different next time around. “There wasn’t anything that wasn’t done in this case. No evidence not presented. No lead not followed. No witness not called. No stone left unturned. There’s nothing new. The case was very carefully tried.”

If Merrill were tried again, it would be for the third time. He was convicted of the murders in July, 1991, and given two life terms, but was granted a new trial after allegations both of prosecutorial misconduct and inadequate defense work. Neither King nor Barnett were involved in those allegations.

It was the second trial that ended last week. In the meantime, Merrill has spent nearly five years in jail since his arrest late in 1990.

Merrill originally was convicted along with co-defendant Eric Wick for the 1989 murders of two people in a Newport Beach coin shop. A third person in the shop was wounded.

In the latest trial, Wick testified for the first time that Merrill was with him and fired the deadly shots. However, the survivor, William King, has said for at least the last two years that Merrill wasn’t the man who shot him and that he didn’t see him in the shop. King told The Times two years ago that he thinks Merrill has been “railroaded.”

Late Friday night, I reached Michael Kobrin, a molecular biologist at UC Irvine and jury foreman. He said he told Rick King after the trial that “if you present the same case and get the same kind of jury, you’ll get the same outcome.”

Kobrin said Wick’s testimony was the heart of the case against Merrill, and that those favoring acquittal simply didn’t find it credible. Without Wick’s testimony, Kobrin said, there is no definitive way to establish Merrill’s presence inside the shop.

Rick King said Friday that although he got only seven votes for conviction on the murders, the vote on robbery-conspiracy charges was 8-4 for conviction. “So, we’ve got eight people believing he was involved in the conspiracy in the two deaths,” he said.

If the D.A. retries Merrill, we’ll learn something: that it does pursue cases that are hard to prove and that are costly. And that discovery opens up a whole lot of other questions that the district attorney probably doesn’t want to answer.

Dana Parsons’ column appears Wednesday, Friday and Sunday.