Michael Volpe

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“I was arrested in 2009, and charged with rape and related sex offenses,” Marcy said in a letter to this reporter on July 12, 2017. “The first time I spoke to the police I implored them to take my DNA and test it. Edwardsville Police informed me ‘they do not need my DNA, because they do not have any DNA to test it against.’ They have her statement and that is all they need.”

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(Note, the name of the child was changed to the pseudonym, Ruby, because of her age)

A curious technicality is keeping a Pennsylvania man in jail, despite no longer having any evidence to support his rape conviction.

Joseph Marcy was convicted in 2012 of molesting his daughter Ruby, who was six and seven when the alleged incidents occurred and nine when she testified.

At the trial, the only evidence against him was Ruby’s testimony and a doctor who said bruising in her vaginal region was consistent with molestation.

Other medical experts have since concluded the bruising was consistent with numerous things, not just molestation, and Ruby has since recanted her testimony, testifying in an appeals hearing called a Post-Conviction Relief Act (PCRA) hearing, that she lied during her father’s trial.

“And did you want to come in today?” Ruby was asked by John Hakim, her father’s attorney, at this PCRA hearing.

“Yes,” she responded.

“And why is that?” Hakim asked.

“To tell the truth,” she responded.

“And what’s the truth?” Hakim asked again.

“That he did not do it,” Ruby said, recanting.

“The nature of the after-discovered evidence is recantation.” Judge Joseph Augello, senior judge in the Luzerne County Court of Common Pleas, said in making the PCRA decision. “Therefore, it is not cumulative but rather contradictory given the fact that Ruby was the sole eyewitness to the crime. Defendant took that stand and claimed he did not commit the crime in question. A complete recantation by the victim raises the question of whether a crime was committed at all.”

Judge Augello, who heard the original trial and sentenced Marcy to 20-40 years in prison, overturned the decision on May 20, 2015.

But the Luzerne County District Attorney’s Office appealed the decision, and the Superior Court of Pennsylvania reversed Judge Augello’s decision; the court did not rule on the substance of Judge Augello’s argument, or any arguments which were debated in the PCRA hearing or in the appeal.

Instead the court claimed that Marcy did not file his PCRA motion quickly enough after finding out that Ruby had recanted, an argument which inherently implies that every motion Judge Augello accepted and all hearings he held were done outside the guidelines.

“I’m glad you’re working on this,” said Hakim. “This one has bothered me (referring to Marcy’s case).”

CYS Inserts Itself into Joseph Marcy’s Life

The alleged molestation was not the first allegation Ruby made initially to Luzerne County Children and Youth Services (CYS).

In 2009, after her grandparents on her mother’s side noticed a bruise on Ruby’s butt, they called CYS.

In interviews with CYS social worker Holly Jones, Ruby disclosed that her father had been beating her.

But when this went to trial, in front of a juvenile court tribunal, Ruby was found to be without credibility because she was susceptible to coaching.

“After reviewing all of the evidence and testimony provided in this case, I find that the CYS did not present sufficient evidence to prove that the subject child was the victim of child physical abuse inflicted by Joe Marcy and witnessed by her mother. The sole evidence presented by CYS is the statement of the subject child. However, based upon the review of that testimony, I find that the testimony of Ruby was fabricated and not credible. Ruby is a six year old child and she stated that she was punished with a wooden paddle with holes in it had her name and the name of her siblngs written on it. That statement by Ruby exactly mirrors information that was told to her by her mother in the past.” The judge in that case concluded.

According to Marcy’s mother, Michelle, Ruby was staying with her when this decision was made because her son was not allowed to see his daughter while the investigation was ongoing.

CYS picked Ruby up days after the decision- to transport to see her father finally- and it was during this car ride when purportedly Ruby first disclosed, again to Jones, that her father had been molesting her.

Marcy said he’s since concluded that because his attorney- he received a public defender- did not introduce the evidence properly- the jury was not made fully aware of the outcome of the initial investigation of child abuse which concluded Ruby was susceptible to coaching.

For this and other reasons, Marcy also argued ineffective counsel.

A voicemail with the Luzerne County Public Defender’s office, which provided counsel, was left unreturned.

A voicemail left with Luzerne County CYS was also left unreturned.

The Investigation and Trial

Soon after, the Edwardsville, Pennsylvania Police Department investigated the allegations. Michael Leman headed up the investigation, a term Marcy takes issue with.

“They did no investigation,” he said.

“I was arrested in 2009, and charged with rape and related sex offenses,” Marcy said in a letter to this reporter on July 12, 2017. “The first time I spoke to the police I implored them to take my DNA and test it. Edwardsville Police informed me ‘they do not need my DNA, because they do not have any DNA to test it against.’ They have her statement and that is all they need.”

A voicemail left with Leman was left unreturned.

Marcy said that Ruby changed her story multiple times- at different times she claimed it was oral, anal, and in some cases her father acted alone and in other versions he was with a cousin.

The Edwardsville Police, Marcy said, made a half-hearted effort to find this cousin, going to his last known address, but when he wasn’t there, they made no further attempt to find him.

The star witnesses for the prosecution in the trial held in February 2011, were Ruby, Dr. Michael Rogan, and Jones.

Dr. Rogan testified as an expert that redness in her vaginal region was consistent with molestation.

As noted earlier, further experts have since pointed out that there were many explanations for this: “Review of the medical examination of Dr. Michael Rogan for the Children Advocacy Center describes vulvitis and perianal irritation which was described as ‘red.’ There I a distinction, however of the length of duration of the lesion. Acute vulvitis is usually red or erythematous with swelling, but chronic vulvitis is usually white, scaly, thickened with whitish patches. Acute general means less than 72 hours while chronic means more than 72 hours. What Dr. Rogan described as acute vulvitis. His conclusion was that the presentation is consistent with sexual abuse because of the alleged history. However this conclusion cannot be made reliably of the cause and effect of the acute vulvitis from the information presented and from the lack of elimination of their known causes of vulvitis in this age group.” Said Dr. Marguerit Salam-Host, in an analysis for the defense.

Marcy was convicted and sentenced to 20-40 years, a sentence that he believes was extra harsh because he refused to own up to his crime and proclaimed innocence during sentencing.

Aftermath:

Within minutes of the trial ending, the verdict began to unravel.

Here’s part of a letter from Michael Lamb to the prosecutors.

“My name is Michel Lamb. I was at the trial on its final day. I came with Mekel Marcy and Nicole Marcy to help Nicole because she is in a wheelchair. I am in no way related. I have never even met Mr. Marcy or his mother. I am writing this on my own free will.

“As we exited the building coming out onto Water Street, one of the jurors pulled up in their car and stopped in the middle of the road to say how sorry they were of the outcome of the trial and verdict. Saying what it came down to was the stroking motion of Ruby’s hand on the DVD. This person said there were a couple of the jurors holding onto a not guilty verdict. Also, that there was a ton of pressure to make a guilty verdict because of how long they were in there for. Also stating that that the Edwardsville Police Department was good for nothing. This juror was in tears, smoking a cigarette, saying that Mr. Marcy was innocent.

“It sounded to me like this person was being forced into the guilty verdict.”

While interesting, this affidavit amounted to hearsay evidence and nothing more came of any potential jury tampering.

Within a year of being convicted, Marcy began filing appeals.

In 2012, Marcy received a letter from an aunt, stating that Ruby had recanted.

“We heard a rumor that she (Ruby) had recanted,” Hakim said of this initial letter.

Hakim said that moving forward he followed a process meant to ensure that Ruby made an official recantation and without being pressured, a process which included hiring a private investigator and getting an attorney to advocate on Ruby’s behalf.

After learning of the letter, Marcy immediately filed a PCRA appeal based on this letter, which was dismissed without prejudice meaning it could be filed again.

Judge Augello dismissed the PCRA appeal because another appeal was still making its way through the court.

After the other appeal was denied, a PCRA was appeal was filed, and Marcy said it was amended several times as he learned more information of Ruby’s recantation.

After the private investigator, John Gabriele, completed his investigation, a final PCRA was submitted, leading to the hearing where Ruby testified to recanting, and finally, to Judge Augello ordering a new trial.

Marcy noted that at no point in the process did the Luzerne County District Attorney’s Office claim that the PCRA was not filed in time.

Judge Augello held numerous hearings and heard numerous motions and other filings throughout the process, and at no point did anyone argue that any was filed outside of jurisdiction.

Indeed, the Luzerne County District Attorney’s office, Marcy said, argued that the recantation was not credible and this is what they argued in the PCRA hearing, in briefs, and in the oral argument in front of the Pennsylvania Superior Court.

John Hakim handled the appeal leading up to the PCRA hearing and the hearing itself; he said he’s handled between 10 and 1,000 PCRA appeals and that victory is rare but he’s never had one overturned afterwards.

He said recantations are also rare and no guarantee because the same judge who oversaw the trial oversees the PCRA hearing and that judge, Augello in this case, would need to decide about which testimony- the trial or the PCRA hearing- was more credible.

Though his conviction was overturned, Marcy remained in jail because the court refused to reduce his bond which was beyond his ability to pay.

Rather than taking the case to trial- where the county would no longer have a case- the county appealed to the Pennsylvania Superior Court.

Though the issue of whether the PCRA was filed properly never came up during the appeals process, this is what the court fixated on when it made its decision: “After careful review, we conclude that the PCRA court improperly granted Appellee’s PCRA Petition because Appellee had knowledge of the victim’s recantation in 2012 and did not raise it until 2014.”

In making this decision, the court acted sua sponte- a Latin legal phrase- for a court acting on its volition rather than in response to an argument.

The Pennsylvania Superior Court said this case has been sealed and, as such, would not provide any further comment.

A voicemail left with the Luzerne County District Attorney’s office was also left unreturned.

Is the Law on Marcy’s Side?

Because prosecutors never raised this issue, Marcy said he was never given a chance to defend himself and prove to the court that he did submit his PCRA in time.

Marcy cited three cases as precedent for his case.

Commonwealth Vs. Medina was included in Judge Augello’s decision in the PCRA hearing. In that case, the murder conviction against Jose Medina was overturned in 2011 after nearly two decades when a witness recanted.

Here’s part of a Philadelphia Inquirer article form 2011.

“A Philadelphia judge has ordered a new trial for a man convicted of murder nearly 19 years ago – a conviction based partly on the testimony of an 11-year-old boy who has since recanted.

“Common Pleas Court Judge Lisa M. Rau issued her order vacating the conviction of Jose Medina Jr. on Tuesday and published a scathing 217-page opinion in which she concludes that the police coerced false testimony from the boy.

“’The improper conduct that was committed in this case breeds contempt for our justice system and compromises our ability to rely on the verdict as being a just outcome,’ Rau wrote.”

In Commonwealth of Pennsylvania Vs. Vincent Boyd, a murder conviction from 1983 was reversed in 2016 and the Pennsylvania Supreme Court reversed a lower court ruling which argued the PCRA petition was not submitted in time.

In Commonwealth of Pennsylvania Vs. Jackie Loner, Marcy said the case was most like his. Loner was convicted in 1991 of molesting his daughter in 1989. He received PCRA relief after his daughter recanted.

In a fourth case, Commonwealth of Pennsylvania Vs. Mosteller, the Pennsylvania Supreme Court noted this about rape convictions which rely solely on the testimony of the alleged victim: “whereas here the defendant’s conviction is based completely on testimony of the child prosecutrix and the truth of that testimony is open to serious question because of the testimony of a disinterested medical witness, a subsequent recantation of testimony as supported by this record necessitates a new trial.”

Marcy said in 2012 when he first learned of the recantation all he had was a letter and it would have been irresponsible to appeal simply based on the letter which would be considered hearsay. Indeed, Marcy said, he believes he is being punished for thoroughly investigating Ruby’s recantation and only appealing after a thorough investigation concluded her recantation was legitimate.

Marcy said the recantation was not confirmed until the investigation was completed in 2014, and his attorney was filing all appropriate filings throughout; at no time did the court or prosecutors argue that anything was filed improperly.

Matthew Kelly handled this portion of the appeal and he didn’t respond to a message at his office for comment.

Conclusion:

Marcy also reached out to Pennsylvania Governor’s Tom Wolf’s office for relief, but Wolf refused to intercede, saying it was still in the judicial process.

“Thank you for your recent correspondence regarding your current incarceration. Please know that it has been reviewed with the utmost attention, and rest assured that this matter is extremely important. You and your family must be going through a trying time and I want to express my sympathy. Regretfully, due to the legal nature of this matter, my office is unable to provide any assistance that you seek. As outlined in the Pennsylvania Constitution, I do not have the jurisdiction to intercede or investigate matters.” Governor Wolf said in a letter to Marcy on September 19, 2016.

But Governor Wolf has the power to pardon which is what Marcy was asking; a message left with Wolf’s public affairs office was left unreturned.

Marcy said his case now rests in the US Federal Court system, where he hopes an appeal’s court there will overturn the Superior Court decision and restore him to a new trial.

Luzerne County has a long history of corruption; it is where the so-called Kids for Cash scandal occurred and the less well-known custody for cash scandal.

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