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Judge Overturns Conviction in 1975 `Cain and Abel' Slayings

Iowa prosecutors committed `flagrant' misconduct, ruling says, by withholding evidence that cast doubt on the defendant's guilt.

September 10, 2006|Flynn McRoberts and Maurice Possley | Chicago Tribune

A federal judge has ordered Iowa authorities to retry or release a man convicted of one of the most notorious slayings in the state's history -- the murder of a farmer, his wife and two young children in Cedar Falls, Iowa, more than 30 years ago.

The judge ruled recently that Jerry Mark, a former Peace Corps volunteer and self-described hippie lawyer, was denied a fair trial because prosecutors and his trial judge withheld key evidence that could have proven his innocence.

The evidence included testimony from eyewitnesses that suggested Mark was hundreds of miles away when his brother, Les, and his family were slain in the farmhouse that had been passed down for generations. In some instances, prosecutors hid the identity of people who contradicted their witnesses, according to the ruling.

Senior U.S. District Judge Donald O'Brien found that the failure of the state to turn over more than 50 pages of investigative reports was a "gross" and "flagrant" violation of the prosecutors' duties.

"This court is not ruling that Mark is not guilty of the crimes," O'Brien wrote. "Only that in a careful detailed review of the cumulative effect of all the evidence that was not disclosed, Mark did not receive a fair trial."

Mark was convicted in 1976 and sentenced to life in prison for the gunshot slayings, in which Les and Jorjean Mark's 5-year-old daughter and 18-month-old son were shot in the chest and head. Prosecutors invoked the biblical brothers Cain and Abel, contending at Jerry Mark's trial that he had told a friend that his brother had cheated him out of my his farm.

Dorothy Mark, who found the bodies of her younger son and his family at dawn on Nov. 1, 1975, said in an interview that she had been expecting a favorable ruling. "We were sure that Jerry was innocent," she said after hearing news of the ruling when he called from prison. "We thought the judge, when he studied the case, he would rule in Jerry's favor."

The Iowa attorney general's office, which is handling the case for the state, said it would appeal the decision to the U.S. 8th Circuit Court of Appeals. "We are disappointed in the decision," said Bob Brammer, spokesman for the attorney general's office. "Mark will remain in prison ... during any appeal."

David Dutton, Mark's trial prosecutor who now is in private practice, declined to comment, saying he was "ethically prohibited from commenting on a matter in litigation."

The case against Mark was circumstantial. It featured eyewitness testimony supporting the theory that he had driven his motorcycle from his home in California to the farm, committed the murders, then fled.

Mark admitted going on a road trip, but contended he never reached Cedar Falls. In granting a new trial, O'Brien ruled that prosecutors and the judge never gave Mark's lawyers reports of witnesses who supported his account. Some of those witnesses told authorities they saw Mark hundreds of miles west, traveling toward the crime scene after the murders.

One of them, Jean Doyle, "would have been an important witness for Mark as she would have testified that she saw him arriving from the west, and traveling east, and she witnessed all of this on Saturday morning, Nov. 1, after the murders had occurred 540 miles away."

Mark's co-counsel in his appeals, Jim Cleary, agreed that various witnesses supported his client's alibi, including a waitress in western Nebraska who said she saw him a few hours after the murders. "If he was in North Platte, Neb., on Saturday morning, it would've been physically impossible for him to be [at the farm] at the time the crimes were committed," Cleary said.

Among the other withheld reports were those that undermined state witnesses, including one person whose memory had been impaired by the removal of a brain tumor 10 years before the crime. Other reports included widely different descriptions of the clothes Mark was wearing while allegedly fleeing on his Honda motorcycle. "You cannot get that many sets of clothes into this motorcycle. To not turn over these exhibits was a violation," the judge wrote.

Defense attorneys also never saw a report that cast doubt on a prosecution claim that a shoeprint found at the crime scene had been left by Mark.

The case against Mark also rested on forensic evidence that has since been overturned or otherwise cast in doubt. So if the case is retried, prosecutors will have far less forensic evidence to present.

For instance, at the original trial, the state said blood typing tests found that saliva on a cigarette butt inside the farmhouse matched Mark's blood type, O. But subsequent, more precise, DNA tests two years ago definitively excluded Mark.

Prosecutors also used a technique that compared bullet lead found at the scene to the lead in bullets purchased by Mark. The process, known as comparative bullet lead analysis, has since been found to be flawed and unreliable.

The case has long been contentious. During a post-conviction hearing, one of Mark's trial attorneys testified that obtaining information from the prosecution "was like tooth and nail. You couldn't get anything out of them," according to O'Brien's ruling. "Nobody volunteered anything."

At the same time, prosecutors repeatedly have contended they acted properly and turned over everything required of them. But O'Brien was unconvinced. He said those claims were "self-serving" and that the evidence showed something else.

"They did not actually do what they swear they did," he wrote.

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