news article: "no latents" vs. "no usable latents"

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New trial sought in Sterling murder case

By Cortney Casey
C & G Staff Writer

STERLING HEIGHTS — The new co-counsel of a Saginaw man convicted of murder is requesting a second trial in light of new questions about a piece of evidence.

Attorney Sanford Schulman filed the motion in Macomb County Circuit Court Nov. 9 on behalf of Salam Shaker Zora, citing “ineffective assistance of counsel and prosecutorial misconduct” during the original trial in September.

That trial concluded with a jury finding Zora, 41, guilty of second-degree murder and a felony firearms charge in connection with the January shooting of his brother-in-law, Najem Matti, 37.

Among Schulman’s supporting documents is an affidavit signed by Carl Marlinga, who served as Zora’s co-counsel during the first trial, conceding that oversights on Marlinga’s part resulted in Zora being “denied the Sixth Amendment Right of Effective Assistance of Counsel.”

At issue is a stipulation, requested by Assistant Prosecutor Steve Kaplan and agreed upon by Marlinga, that a barbecue fork found near Matti’s body bore “no fingerprints,” according to the affidavit.

In the trial, Marlinga claimed Zora shot Matti in self-defense after Matti advanced menacingly upon Zora, wielding the fork and a knife, and uttering a Chaldean war cry.

But Kaplan argued that the bullet wound pattern suggested Zora continued to fire at Matti after he was already on the floor, and he hinted that Zora and his brothers possibly staged the murder scene to cast Matti as more of a threat.

According to Marlinga, Kaplan told him the morning of the trial that a Michigan State Police lab report indicated an absence of prints on the fork. Marlinga claims he asked whether that meant no useable prints or no prints whatsoever, and Kaplan confirmed the latter, Marlinga said.

He said he agreed to the stipulation, but asked Kaplan to supply him a copy of the report when he got a chance.

“This is done all the time in order to save a needless witness who doesn’t have anything to add anyway,” he said. “I took him at his word that what he said it contained, it contained.”

But he never received the document, he said, and didn’t follow up. It wasn’t until Schulman came on board in recent weeks to handle a pending appeal that the pair discovered the MSP analysis showed a print, albeit unidentifiable, he said.

“It turns out that, contrary to what Mr. Kaplan told me, the fingerprint report does indicate that there was a print found on the metal portion of the fork,” said Marlinga. “That really changes everything. That means that his argument, which was based upon the absence of fingerprints, is simply not true.”

In his motion, Schulman refers to a Sterling Heights Police Department report stating that an officer was “able to locate a partial latent on the stainless fork” and an MSP report documenting the presence of a “partial print.”

Pulling from testimony transcripts, Schulman goes on to note that Kaplan specifically alluded to the stipulation at multiple points during the trial, and in his closing argument, said the lack of evidence on the fork and knife was “undisputed fact.”

In the affidavit, Marlinga asserts, “I believe the prosecutor committed prosecutorial misconduct by offering a stipulation that the knife and fork had no fingerprints, thereby implying that they were wiped clean, when, in fact, the fingerprint lab report upon which the stipulation was based shows the presence of prints which were not useable for identification purposes.”

Marlinga said he now believes the case is fraught with problems on multiple levels: failure of the prosecution to turn over all evidence to the defense before trial, prosecutorial misrepresentation of the facts and lack of effective defense counsel.

“I’m really accusing myself of being ineffective in not actually demanding that I see that fingerprint report prior to the trial. It’s something highly unusual, because he knew or should have known that it was not true,” said Marlinga, who at one time served as Kaplan’s boss as Macomb County prosecutor. “In retrospect, I feel foolish for having taken him at his word. I had no reason to think he would do something like this. I leave open the possibility that somehow he made a mistake, that this wasn’t purposeful.”

Regardless, in terms of a new trial, “it really doesn’t matter. It’s such an important part of the trial that all we really have to show was that it was false. We don’t have to show what his motives were,” he said. “All I know for sure is that he told me that was what the report said, and that’s not what the report said.”

Schulman said he gave Marlinga “tremendous credit” for signing the affidavit.

“Carl’s a gentleman; he really felt bad about it,” he said. “He felt duped.”

Kaplan, meanwhile, declined to say whether he believes the issue is merely a miscommunication or a tactic by the defense to secure a new trial, but noted, “A defendant who has been convicted has a constitutional right to appeal and will raise any issue.”

He insisted Marlinga was aware of the circumstances from the outset.

“At trial, there was an agreement between the attorneys that the victim’s prints or DNA were not found on the two-pronged fork or the knife,” he said. “The defense knew that no identifiable prints were found; nothing of quality was lifted.”

Kaplan acknowledged there was “some type of smudge” discovered on the fork, but said it did not constitute a print.

“We never argued that that fork had never been touched,” he said. “We said there were no prints of the victim found on the fork, and that’s true. And no DNA, also.”

The fork reportedly played a key role in the ultimate verdict.

According to Marlinga, five jurors, in post-verdict debriefings, said the reported lack of prints led them to believe Zora planted the fork beside Matti’s body.

They came to the conclusion after ignoring explicit instructions not to conduct experiments in the jury room as they deliberated, pressing their own fingers on the fork and knife in evidence to ascertain whether they left prints, he said.

Kaplan disagreed that the jurors’ actions were improper, citing a Court of Appeals case supporting the idea that measures taken during deliberations are “sacrosanct and inviolate.”

“Whatever process the jurors used cannot be challenged,” he said.

The fork wasn’t the only grounds for Schulman’s motion. He also argued that Zora’s original defense fell short in other areas, including failure to call an “important” witness and seek an “untainted” jury pool after “inappropriate” comments were made in earshot of jurors, first by other prospective jurors and later, by a relative of Matti’s in a courtroom outburst.

The dispute between Zora and Matti, which occurred in Matti’s Sterling Heights home, arose from $250,000 in cash that disappeared from a shed at one of Zora’s properties in Saginaw. Zora suspected Matti had stolen it, but Matti maintained his innocence.

During the trial, Zora testified that he and his two brothers went to Matti’s house to discuss a proposal whereby Matti would swear on a Bible in a Catholic church that he hadn’t stolen the money.

He said he fired multiple shots at Matti, who was also his cousin, to protect himself after Matti threatened him with the fork.

Kaplan argued that Zora hardly needed his brothers present if he merely intended to talk.

Zora’s sentencing, originally scheduled for Nov. 5, was adjourned until Nov. 13. Schulman said he anticipates Judge James Biernat will proceed with sentencing as planned prior to ruling on the request for a new trial.

Based on sentencing guidelines, Zora faces 12-20 years in prison for the murder charge and two years for the felony firearms count, he said.

Schulman also filed other motions Nov. 9, including one asking for Zora’s release on bond pending appeal and one seeking “judgment of acquittal notwithstanding the verdict,” which alleges the court committed a reversible error in denying Marlinga’s motions for directed verdict during the trial, which were based on what the defense claimed was the prosecution’s failure to disprove self-defense.

Kaplan suggested Schulman’s filings were premature.

“A motion for a new trial cannot be heard until after the sentencing date,” he said.

Marlinga said he remains co-counsel on the case, though Schulman is taking over as lead counsel.
You can reach Staff Writer Cortney Casey at ccasey@candgnews.com or at (586) 498-1046.

http://www.candgnews.com/Homepage-Artic ... r-Zora.asp

and

Freep.com
November 12, 2009

Doubts raised after Saginaw man's conviction - Lawyers disagree whether print overlooked

BY AMBER HUNT
FREE PRESS STAFF WRITER

A murder conviction against a Saginaw man found guilty of gunning down his brother-in-law in Macomb County could be overturned because his defense lawyers say they overlooked a fingerprint left on a barbecue fork.

But the prosecutor on the case says the supposed fingerprint was nothing more than a useless smudge and the conviction should stand.

Both sides are set to square off Friday, when 42-year-old Salam Zora is to be sentenced for second-degree murder in the death of Najem Matti, 37, who was shot five times Jan. 23 in his Sterling Heights home.

Zora claimed self-defense, saying Matti had come at him with a butcher knife and barbecue fork. Jurors were told that no fingerprints or DNA evidence had been found on either alleged weapon.

Zora's new lawyer, Sanford Schulman, has filed a motion for a new trial, claiming that Assistant Prosecutor Steve Kaplan improperly told Zora's trial lawyers that no fingerprints had been found on the fork -- which Kaplan argued helped prove that Matti was killed in cold blood.

Zora's defense lawyers, former Macomb County Prosecutor Carl Marlinga and Joe Kosmala, say they made a mistake by not challenging the assertion. Instead, they stipulated it as fact in the trial.

Lab reports actually showed there was a print on the fork, Schulman said Wednesday. "It just wasn't identifiable," he said.

Kaplan disagreed: "I don't even think it's a fingerprint; it's a smudge."

Marlinga, who served for 20 years as Macomb County prosecutor and previously worked as Kaplan's boss, filed an affidavit stating that Zora's right to effective defense counsel had been denied because he had failed "to double-check the prosecutor's representations about the fingerprint report."

In his motion, Schulman accuses Kaplan of prosecutorial misconduct and says that some jurors who convicted Zora admitted they held the barbecue fork to see if it would leave prints.

"I don't think Kaplan did that on purpose," Kosmala told the Free Press on Wednesday. "There was one line in the many hundreds of pages that references a partial print located on the barbecue fork. We had the information. We just didn't see it."

Circuit Judge James Biernat will have to decide whether to grant a new trial or sentence Zora as planned. Biernat last year set aside another of Kaplan's convictions -- that against former Clinton Township businessman Michael George, who was convicted of first-degree murder in the 1990 death of his wife.

Marlinga and Kosmala also were the defense lawyers in that case.

Contact AMBER HUNT: 313-223-4526 or alhunt@freepress.com

http://www.freep.com/article/20091112/N ... conviction

[Charles Parker]

WOW

Has anyone ever heard of "The Absence of Evidence is not Evidence of Absence".

[Pat A. Wertheim]

The problem with this article is not that there may or may not have been a smudge that may or may not have been a "partial fingerprint." The problem is that we have a reporter summarizing and sensationalizing what two opposing attorneys said, each from his own slanted (dare I say "biased"?) perspective -- but we don't have a clue what the latent print examiner actually found. Therefor, it is hard to even have a rational debate about the merits of the case.

[Gerald Clough]

It's not about the merits of the case or even whodonewhat. Most particularly, in appellate counsel's argument, it's not about the merits of the case. In short, it's not an actual innocence claim. Rather, it's seeking judgment on the issue of the degree to which the jury depended on the prosecutor's emphasis on the point and the defense counsel's access to a report that showed a partial print, or, if you accept the examiner's analysis, a smudge that may or may not have been a finger mark. There's a difference in court between nothing at all, which doesn't give defense anything to talk about, and a mark that they almost certainly could have used to ask an examiner to concede it could be a finger mark. It's an interesting case, because the defense counsel is both saying he was misled and deprived of the report and simultaneously falling on his sword in admitting he didn't follow up to get the report. The other claims aren't powerful. There's usually a respectable reason for not calling a witness, and it can be hard to show minor jury issues had significant effect. The best thing they have from the jury is the information about the jury testing the likelihood that handling the fork would leave a mark. Had they known there was a mark, it's unlikely they would have been testing, because they would assume someone handled it, but apparently they cared enough to try it themselves. Granted, it's a rare fork that is teleported from place to place without human touch, and I think we'd pretty well figure any mark could be and probably was some kind of handling mark, and we know that anything less than a meticulous cleaning might leave something to be found, but trials involve logical chains that sometimes take on unwarranted power. We know the absence of a mark or the presence of an unidentifiable mark mean nothing. If so, and if the prosecutor's position is accurately represented, we have to also question the prosecutor's emphasis on the absence of a mark.

I suspect they have a reasonable enough chance to give it a shot. It's kind of a perfect storm where it doesn't matter who got what wrong, and sometimes that's enough for an appeals court to turn it back to retry. If it happens, I think it will be on account of an ineffective assistance finding, but they're going to have to first show that it had a significant effect on the verdict, and they might just be able to show that. I suspect that, eventually, one thing that will happen will be that another examiner will look at it and say if it's a partial fingerprint or not, because that has some bearing on how effective a defense could have been developed had the defense explored it fully. We know it doesn't really imply anything factual, but it's not about what we know, it's about what the jury thought. It's not a wild-eyed bogus appeal.

[Dennis Degler]

. . .Matti advanced menacingly upon Zora, wielding the fork and a knife, and uttering a Chaldean war cry.

I was just wondering what a Chaldean war cry sounds like!