"He's Gonna Outlive Me"
Judge Joseph E. Irenas
Rob Marshall, as he prefers to be called, was not a free man. The decision, handed down by Judge Joseph E. Irenas of the United States District Court of New Jersey three days earlier, had not overturned
Marshall's conviction for murder and conspiracy to commit murder in the death of his wife. In fact,
Marshall is one of the few people who still maintain that he is innocent. But the judge did overturn the death sentence. The judge had found what courts for 20 years before him had failed to find. In a 60-page ruling handed down April 4, 2004, Irenas ruled that
Marshall had not been served well enough by his attorney. He had collapsed outside the courtroom after his conviction, but within two hours faced a jury charged with deliberating whether he lived or died, a jury that deliberated for 45 minutes without hearing from a single witness before finding him worthy of death. In the stark language of the court, Irenas declared that
Marshall's lawyer had failed to meet the standards expected of "competent counsel."
The only remedy, the judge said, was for a new court hearing to decide Marshall's fate, a decision which, in essence, requires the state and Marshall to relive the most dramatic moments of one of the most shocking and highly charged murder cases in recent New Jersey history.
The state of New Jersey has challenged Irenas' ruling, and prosecutors officially say they expect to win their appeal before the 3rd U.S. Circuit Court of Appeals and return the convicted killer to death row. But privately, even the most ardent supporters of capital punishment in New Jersey admit that, after nearly two decades, during which time witnesses have died and evidence and even outrage over the crime itself has lost its potency, it's more than likely that Robert O. Marshall will never face the ultimate sanction for his crime.
Jesse Timmendequas
It's particularly galling to those who feel that
New Jersey's 21-year-old capital punishment statute is little more than a paper lion. Since the state senate overwhelmingly reestablished the death penalty, more than three dozen defendants have been found guilty of crimes heinous enough in the minds of the jurors who tried them to deserve society's most severe sanction. Among those who remain on
New Jersey's death row are such notorious killers as Jesse Timmendequas, the chronic sex offender who was convicted of the 1993 rape and murder of 7-year-old Megan Kanka. His was a crime so horrific it prompted nationwide outrage and led to the establishment of a series of laws governing sex offenders that was named "Megan's Law" in memory of the victim.
Yet despite all that, in all those years since the death penalty was reestablished in New Jersey, not a single inmate has been executed.
To many capital punishment proponents, the Marshall case illustrates deep, perhaps even irreparable flaws in the state's death penalty system.
Dick Zimmer
"This is a perfect example of the dysfunction of the system, not just at the state level but obviously at the federal level" said Dick Zimmer, a former state senator and U.S. congressman who headed a panel appointed in the mid-1990s by then-Gov. Christie Whitman to find ways to streamline the state's capital punishment system. "There's no question but that the system is completely screwed up to lead to this result at this time."
Kevin Kelly, who in 1986 was the assistant Ocean County prosecutor who convinced a jury that Marshall had conspired to kill his wife and that he should die for it, has an even more visceral reaction. To him, Marshall's escape from death row is not temporary, it is permanent, and it is proof that the state never really intended to implement the death penalty and should simply abandon it.
To Kelly, the notion that Marshall could face a new sentencing hearing and still be sentenced to death by the unanimous vote of a jury is beyond improbable.
"It's not going to happen," he says, before ticking off a laundry list of reasons to support his assertion. "It's not going to happen because it's too old...you'd have to, in effect, try the guilt case all over again...You'd have to reintroduce all that evidence, the circumstances of the murder, the autopsy, the pathologist, I mean where are all these people? After 20 years, they're gone."
"I'm gone," said Kelly, who left his part-time post in the prosecutor's office soon after the Marshall case and is now in private practice on the Jersey shore. What's more, he says, it's unlikely prosecutors and the courts would have the stomach to face a protracted proceeding again. "I can't see spending the money, I mean the cost involved, and the time involved...it would be a lot of manpower and a lot of taxpayers' money.
For Kelly, the bottom line is this: "I always said he's going to live longer than me, and you know what? It's going to happen. It is. I got a stint in my heart now. So, that's the deal."
