Monday, August 30, 2010

Child rapist Merzbacher appeals ruling to close loophole

Child rapist Merzbacher appeals ruling to close loophole
Convicted child rapist wants to eliminate need for judge's approval to reissue old plea deal, which would set him free
By Tricia Bishop, The Baltimore Sun

6:44 a.m. EDT, August 30, 2010

Convicted child rapist John Joseph Merzbacher has filed an appeal to close a loophole in a recent court ruling that requires he be given a fresh chance at freedom, despite his four life sentences.

On July 30, federal court judge Andre M. Davis ordered that a court must now offer Merzbacher a 10-year plea deal that his attorneys never properly presented before his 1995 trial, violating his constitutional rights. But Davis added one seeming caveat that has Merzbacher nervous.

"Before Merzbacher gains full relief, a judge of the [Baltimore] circuit court must express a willingness to carry out the undertaking," Davis wrote in a memorandum opinion accompanying his order.

In a notice filed last week, Merzbacher said he intends to appeal that provision "to the extent that it states or implies that a judge … [has] the discretion not to approve the plea agreement."

At the time the offer was formed, a city judge had signed off on it. But today, it's unlikely that anyone would step forward, knowing in hindsight the details that were revealed during the trial, lawyers said.

"It is possible, and, in fact, it is likely that no judge… would approve such a plea agreement today," Merzbacher himself says in a related court filing, adding that there will "be another round of litigation" if the issue is not addressed and the offer not extended.

Merzbacher taught English at the Catholic Community School in Locust Point in the 1970s, and at least a dozen of his former students have accused him of beating, raping and threatening them and their families. He was indicted on more than 100 felony charges in 1994, though only one case went to trial. The rest were dropped after his convictions on rape, sexual child abuse, perverted practice and several counts of carnal knowledge of a minor female under 14 and subsequent sentencing.

But now, those grown students are investigating whether their cases could be reopened or new charges filed — anything to keep him behind bars.

Davis' ruling suggested that Merzbacher, who has already served 15 years, could be released from prison within months. The possibility was met with terror and outrage by his former students, and indignation by prosecutors.

Maryland Attorney General Douglas F. Gansler has appealed the ruling and requested that the July order be stayed in the meantime, which to Merzbacher has not objected.

The Fourth Circuit Court of Appeals suspended the appeal proceedings, however, until a lower federal court determines whether Merzbacher is allowed to appeal the issue and whether to approve his motion to proceed without paying court costs, including a $450 filing fee.

As of last week, Merzbacher had $2.33 in his prisoner account, according to court filings. He earns about $32 per month doing prison work.

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