Justice Delayed: The Robert Marshall Story

Standing Pat

The way New Jersey's death penalty statute is structured; defendants in capital cases actually face two proceedings. The first, the guilt phase as it's called, is in every respect an ordinary criminal trial. Though Marshall has repeatedly appealed his conviction, courts both at the state and federal level have upheld it. His challenges to the state, arguing that deals with Beth and McKinnon were impermissible at best and prejudicial at worse, gained little traction.

Robert O. Marshall Prison ID

But the second prong of the state's capital punishment statute has proved to be far more problematic for the state. Under state law, each capital defendant convicted in the guilt phase must then face a separate proceeding called the penalty phase. If the guilt phase is an exercise in judicial objectivity, in the cold science of the law, the approach to the guilt phase is more an art.

Its purpose, court after court has declared, is to weigh the value of a defendant's entire life.

Though there is a certain quantitative element - aggravating factors are weighed against mitigating factors - it is, as federal courts have often ruled, a subjective thing. In New Jersey, as elsewhere, if just one of the 12 jurors hearing a case believes that there is enough of a spark of decency in a defendant that he should be spared, then he is spared. Without a unanimous verdict in the penalty phase, a defendant does not face death by lethal injection, but instead is sentenced to life in prison, a sentence which under most circumstances translates into about 30 years.

Because it is a trial not just for life, but as one expert has put it, a trial about life and its value, both prosecutors and defense attorneys face a different, and in many respects courts have said, a more stringent standard for their professional conduct. It is expected that defense attorneys will scour their client's past, seeking every witness, every scrap of evidence, anything that could possibly cast their client in a slightly better light. In most cases, defense attorneys will seek a continuance - a delay, sometimes a considerable delay - between the guilt and penalty phases of the trial, just to buy a little extra time to get their defense in order.

That did not happen in the Marshall case.

According to court records, at 1:45 p.m. that day - a little more than two-and-a-half hours after the jury returned its guilty verdict, and between 15 and 30 minutes after he had returned to the courthouse following his collapse -- Robert O. Marshall was sitting at the defense table, as the jurors prepared to hear arguments challenging them to give him life or give him death.

Earlier, in fact at the very moment that Marshall was being observed at the hospital following his collapse, Kelly, the avuncular prosecutor, and Glenn A. Zeitz, Marshall's attorney, reached an agreement on how they would proceed. They agreed that the only aggravating factor - which was to be weighed by the jury as a reason to sentence Marshall to death - was the fact that Maria Marshall's death, which just that morning the jury with its verdict declared a murder, was a murder for hire.

Maria Marshall gravesite

As mitigation, Zeitz was to argue that Marshall had no prior criminal record, and that he was an upstanding member of the community, with a record of service that included stints with charitable organizations, as well as his well-known participation in his son's swim program.

No new evidence was introduced and neither Kelly nor Zeitz called a single witness. In fact, Marshall's sister, Oakleigh, as well as his sons, all or some of whom might have offered testimony which could have persuaded at least one of the jurors that there was something in Marshall that deserved to be spared, had left the courthouse following the guilty verdict.

It never dawned on them, a court would later rule, that the death penalty phase of the case would occur on the same day.

In fact, the entire proceeding, according to court records, consisted of opening and closing statements by both the prosecutor and the defense attorney. In a recent interview with Crimelibrary, Kelly explained that all possible evidence to support both the aggravating and mitigating factors had already been introduced in the guilt phase of the trial. There was, he said, nothing to add.

In his statement to the jury, Zeitz cited Marshall's record of service to the community, but did not delve deeply into it. "I don't want to stand here and go through the whole litany of things he's done in 46 years that - either for other people, for his family or of a civic nature. Suffice it to say, the record is substantial in that area, and you have an absolute right to consider that as a mitigating factor."

He closed with this: "All I can say is this, that I hope when you individually consider the death penalty, that you're each able to reach whatever opinion you find in your own heart, and that whatever you feel is the just thing to do, we can live with it."

In his closing statement, Kelly cited a few mitigating factors that applied to Maria Marshall. "Maria Marshall had no prior criminal history," the prosecutor said. "Maria Marshall was civic-minded, and this defendant did not give her the option of 30 years."

After deliberating for 90 minutes, the jury sentenced Marshall to death.