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'I Don't Think Anyone Really Felt He Pulled the Trigger'
By Vanessa Miller, Reporter
IOWA CITY, Iowa - All 12 of the jurors who convicted Justin Marshall of first-degree murder in the 2009 shooting death of John Versypt in Iowa City were not convinced he pulled the trigger of the murder weapon.
Lee Kibbie, the jury foreman, said Friday they were convinced, however, that Marshall was somehow involved in the killing at the Broadway Condominium complex on Oct. 8, 2009.
"I don't think anyone really felt he pulled the trigger, and the state had not proved beyond a doubt that he pulled the trigger," said Kibbie, 42, of Iowa City. "We felt he worked with one to three other individuals."
After announcing their guilty verdict Thursday, jurors were polled about which theory under the first-degree murder conviction they chose. All but one chose to convict for aiding and abetting.
According to Iowa law, aiding and abetting is charged when someone commits an offense, whether directly or by aiding and abetting its commission. The law states a person's guilt must be based on the facts that show his or her involvement and does not depend on another person's guilt.
Two jurors also convicted Marshall on the theory of joint criminal conduct, which occurs when two or more people act together to commit a crime, according to Iowa law. The code states that each person's guilt "will be the same as that of the person so acting."
While drafting jury instructions, Marshall's defense attorney Thomas Gaul objected to instructions referring to aiding and abetting and joint criminal conduct, arguing prosecutors hadn't shown Marshall acted with anyone else.
Gaul told reporters after the verdict that he plans to appeal the conviction, and he hinted in open court that the appeal would be based on the "erroneous jury instruction." Before reaching a verdict, jurors asked attorneys to clarify the definition of joint criminal conduct, and Gaul said that indicated their confusion.
"(The question) clearly shows that prejudice has now attached itself to Marshall's case," Gaul said. "(Jurors) have indicated doubt that the state has proven that Marshall is the one who shot John Versypt."
And Gaul said the confusion is understandable.
"The reason they are having trouble understanding joint criminal conduct and aiding and abetting is that the state presented no evidence of that at trial," he said.
Kibbie on Friday told the Gazette that although jurors weren't convinced Marshall was the shooter, they did find the prosecution proved beyond a reasonable doubt that he was involved.
"We felt that he himself did not pull the trigger, but he was working with someone who had," Kibbie said.
He said the jury came to its conclusion by considering all the evidence together. There was not one piece of evidence that led them to first-degree murder. He said they created flowcharts and lists of contradictions, and they pored over photos and spent hours listening to every word of videotaped interviews.
"There were rolls of white paper on the wall and white boards," Kibbie said.
In their review of the evidence, Kibbie said, jurors discovered that Marshall himself made "a lot of contradictions" to police. In one interview, according to Kibbie, Marshall said, "I got back at the apartment, I mean I was always at the apartment."
Jurors did consider the lack of physical evidence in the case, Kibbie said, and that's partly why they found Marshall guilty on the theory of aiding and abetting – because there was no DNA or fingerprints linking him to the crime scene.
In fact, when prosecutors began their case focusing primarily on police and forensic testimony, Kibbie said the jury was a long way from coming to a first-degree murder verdict.
"We thought, 'There is no way you're going to get us to consider him guilty beyond a reasonable doubt," Kibbie said. "How can you show he's guilty?"
But, he said, once they sat down and reviewed the evidence and the law, they felt Marshall was involved and guilty under the aiding and abetting theory.
Legal experts on Friday weighed in Marshall's chances to overturn his guilty verdict based on his attorney's concerns with jury instructions. Some say erroneous jury instructions can be among the better grounds for appeal, while others say judges have broad discretion on how to instruct a jury.
Laurie Levenson, Loyola Law School professor in Los Angeles, Calif., said anything jurors say after a verdict – including the polling on what theory they chose, won't be part of the record and can't be used upon appeal.
"We don't make them explain their decisions," she said.
Questions jurors asked during deliberations can be used in an appeal, however. And, Levenson said, if the defense can show the prosecution didn't present evidence showing the defendant acted in concert with someone else, "That does increase his chance on appeal."
"There usually has to be some evidence to support a jury instruction," she said. "But if there is some evidence, even if the defense doesn't think the prosecution was strong on it, the judge can give that instruction."
Song Richardson, a University of Iowa law professor, said judges typically are given broad discretion in jury instructions, and appellate courts aren't eager to infringe on a judge's exercise of discretion.
She said the Court of Appeals will look to determine if there was evidence to justify giving a jury instruction. But, she said, a trial judge was there to hear all the arguments, leading appellate courts often to say, "We will defer to his judgment."
Marshall is scheduled to be sentenced April 26. He faces life in prison.