Sentencing for Jeffrey J. Marsalis, convicted of rape by a jury last month, is likely to be delayed until late June.
The continuance was requested by Blaine County Prosecuting Attorney Jim Thomas, who wrote in a motion that witnesses for the state would not be available on the scheduled sentencing date of June 1. Thomas further wrote that he will "be out of state on a personal matter."
Presiding Judge Daniel Hurlbutt Jr. had not ruled on the motion by Tuesday, but is expected to grant the continuance because defense attorney Douglas Nelson does not oppose it.
Meanwhile, Marsalis is not cooperating in either a pre-sentence investigation or psychosexual evaluation ordered by Hurlbutt after Marsalis was found guilty.
Marsalis, 35, was convicted by a jury in Boise in April of raping a woman at his Sun Valley condominium in October 2005. He was also convicted in Philadelphia, Pa., in 2007 of two counts of sexual assault and one count of unlawful restraint and sentenced to 21 years in prison.
Nelson said Marsalis is exercising his Fifth Amendment right in not cooperating in the pre-sentence examinations.
"The U.S. Supreme Court and the Idaho Supreme Court have both said that a defendant doesn't have to expose himself to that crap," he said.
Nelson said he is mainly concerned about a pending appeal that Marsalis has filed in the Pennsylvania convictions.
"I don't want anything that happens here to affect what's going on in Pennsylvania," Nelson said.
He said pre-sentence investigations and psychosexual evaluations typically rely on the opinions of the evaluators who can be subjective in their interpretations. Not participating in the interviews will preclude the possibility of Marsalis' saying something that might be interpreted as "further incrimination," Nelson said.
"It would be called malpractice for me to allow him to do that," he said.
Nelson added that judges are not allowed to hold non-cooperation because of the exercise of Fifth Amendment rights against a defendant.
"Theoretically, it should not have any affect on the sentence here," he said.
Terry Smith: tsmith@mtexpress.com
