New trial for man's overturned murder conviction could be moved out of Johnson County
The trial date for Justin Marshall, who had his conviction of killing Iowa City landlord John Versypt in 2009 overturned by the Iowa Supreme Court in July, remains set for September. However, that may change based on possible court motions, including a motion requesting the trial be moved out of Johnson County.
Marshall, 25, who was convicted in February 2013 of first-degree murder, is accused of killing Versypt, 64, the landlord in the Broadway Condominium complex, now called Orchard Place, during an attempted to robbery of Versypt on Oct. 8, 2009. Police said Marshall ended up shooting Versypt in the hand and head.
The Iowa Supreme Court upheld a court of appeals ruling overturning the conviction in July. The basically said one or more state witnesses, providing incriminating statements made by Marshall to authorities violated his right to have a lawyer present during such questioning.
Marshall’s lawyer, Thomas Gaul, Johnson County Attorney Janet Lyness and 6th Judicial District Judge Sean McPartland had a status conference by phone on Friday to work out some preliminary issues. They left the trial set for Sept. 27, but Gaul told the court he plans to file motions regarding how the Iowa Supreme Court ruling impacts the case against Marshall and he may ask the court for a change of venue, which would require resetting the trial.
“I’m not sure we can get an unbiased jury in Johnson County because of the coverage of the last trial and all the pretrial publicity before it and there will likely be more for this one,” Gaul said.
Johnson County Attorney Janet Lyness said she would resist the move. She said Johnson County jurors can be fair and impartial.
“It’s been long enough since the first trial,” Lyness said.
Lyness said another factor for resetting the trial is that the Iowa Attorney General’s Office is contemplating filing a petition of certiorari, which would ask the U.S. Supreme Court to review the Iowa court’s ruling. If one is filed, then it would cause a stay in court action on this case until the high court makes a decision.
Lyness said she intends to get a more “definitive” answer from the attorney general on the petition.
Gaul said Marshall hadn’t agreed to waive his speedy trial right at this time but he planned to file some motions next week and that would include a bond review and possibly, the change of venue.
Marshall has been transferred out of Anamosa State Penitentiary, according to the Iowa Department of Corrections, and back to the Johnson County Jail pending the new trial.
Gaul added that he needs more time to review the July court ruling and then would file motions regarding three prosecution witnesses from the last trial that Gaul thinks wouldn’t be allowed to testify.
Lyness disagreed, saying she thought only one would be eliminated from her list. She added that some of her witnesses are out of town or state and she hasn’t file any subpoenas yet.
In the court’s 4-3 decision, the justices ruled Antonio Martin — a cellmate of Marshall’s at the Muscatine County Jail — shouldn’t have been allowed to testify because Martin had an agreement with federal authorities to provide information about Marshall in exchange for a reduced sentence.
Martin elicited incriminating statements from Marshall for authorities, which violated Marshall’s right to have an attorney present during questioning, the ruling stated. The court noted that Martin, who even took notes, told Marshall “tell your side of the story if you’re going to get a lesser charge.”
The court said Martin isn’t just a “passive listener to a heartfelt confession.”
In a dissenting opinion, Associate Justice Edward Mansfield said a defendant who volunteers incriminating statements to a fellow inmate isn’t deprived of his rights just because that inmate has agreed to cooperate with authorities as part of a plea agreement for a lesser sentence, Mansfield said.
Mansfield also said the majority opinion overlooks many facts of the case. Several witnesses placed Marshall at the location where Versypt was killed, gunshot residue was found on Marshall’s jacket and Marshall’s statements to police were “highly inconsistent” and revealed details about Versypt’s death not known to the public.
McPartland set another status conference for Sept. 2, saying by then, the lawyers should have better idea what motions will be filed and if it will impact the September date.