Friday, December 12, 2008

Judge declines to dismiss Marsalis rape charge

Change of venue likely in 2005 Sun Valley rape case


By TERRY SMITH
Express Staff Writer

A Blaine County 5th District Court judge has declined to dismiss a 2005 rape charge against Jeffrey J. Marsalis, shown here at a Dec. 1 court hearing. Defense attorney Douglas Nelson alleged at the hearing that a Sun Valley police investigator provided false testimony to a grand jury that indicted Marsalis on a rape charge in 2006. Photo by Willy Cook

Fifth District Court Judge Robert J. Elgee has declined to dismiss a 2005 Sun Valley rape charge against Jeffrey J. Marsalis, who has alleged that a Sun Valley police investigator committed perjury in testimony before a Blaine County grand jury.

Elgee wrote in a decision issued Thursday that incorrect testimony provided by Sun Valley investigator Mike Crawford did not influence the grand jury to indict Marsalis in 2006. Elgee declared that there is insufficient information to determine if Crawford or the Blaine County Prosecuting Attorney's Office intentionally allowed false testimony to be presented.

"It is unclear exactly why the prosecutor allowed the grand jury to hear Crawford's incorrect testimony or failed immediately to correct it," Elgee wrote. "The state maintains that this error was the result of oversight. Without more, the court cannot find that the state committed perjury or that its misconduct rises to a level warranting dismissal."

The grand jury indicted Marsalis for allegedly raping a then-21-year-old woman at his studio condominium in Sun Valley on Oct. 9, 2005. The prosecuting attorney's office alleges that the woman was unconscious at the time, either because Marsalis slipped her a so-called date-rape drug or because she was severely intoxicated.

Crawford told the grand jury that a test of a white powdery substance found at Marsalis' condominium was inclusive because there was not enough of the material for testing, when in fact the test conducted at the Idaho State Police forensics laboratory concluded that the material was not a date-rape drug or a controlled substance.

At a hearing on Dec. 1 to consider the motion to dismiss, Crawford acknowledged that he provided inaccurate testimony but said that the error was unintentional.

Elgee determined in his decision that the false testimony did not influence the grand jury's findings.

"After considering the totality of the evidence presented to the grand jury, the court cannot conclude that this is an instance where 'but for' Crawford's incorrect testimony, the jury would have declined to indict Marsalis," Elgee wrote. "The court finds the gravity and seriousness of any misconduct simply does not rise to that level that would justify a dismissal."

A jury trial for Marsalis is scheduled to begin Jan. 5. However, court records indicate that the trial will likely be continued. Hailey attorney Douglas Nelson said he plans to file for a change of venue with Boise being the most likely location. Court records further indicate that Prosecuting Attorney Jim Thomas and Elgee are likely to agree with Nelson's request.

A change of venue and continuance of the trial are likely to be discussed at a pretrial conference scheduled for Monday.

Marsalis meanwhile, remains a prisoner in the Blaine County jail. He was extradited to Idaho in August from Pennsylvania where he is serving a 21-year prison sentence for convictions in Philadelphia in 2007 of two counts of sexual assault and one count of unlawful restraint. He had been accused of drugging and raping seven women in a trial that received national news media attention.




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