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By Alan Berlow
Oct. 13, 2000 | On Feb. 25, 1998, the office of Texas Gov. George W.
an extremely unusual letter. Handwritten in curly script across the top of the first page, just
above the salutation -- "Dear Governor Bush Sir" -- were the words "RE: Murder Confession."
In the four-page letter its author, Achim Josef Marino, a 39-year-old
state prison inmate
serving a life sentence for aggravated robbery with a deadly weapon, described how he
had "robbed, raped and shot" 20-year-old Nancy DePriest at a Pizza Hut in Austin in
October 1988. Marino explained that at the time of the murder "I was insane," and that
since then he had undergone a "Christian conversion" and "spiritual awakening" and was
fully prepared to be executed for killing the young woman.
Perhaps most startling about Marino's letter was his assertion that
two innocent men were
serving life sentences for a crime he himself committed. "Governor Bush Sir, I do not know
these men nor why they plead [sic] guilty to a crime they never committed," Marino wrote,
"but I tell you this sir, I did this awfull [sic] crime and I was alone."
Presented with evidence about a murder in the form of a confession and
the possibility that
two innocent men had been languishing in a Texas prison since 1988, what did Bush do?
Nothing, according to Bush spokesman Mike Jones. Jones said the governor receives more
than 1,400 letters from prisoners each year and, although he cannot recall ever receiving
another murder confession by post, he insisted the letter was almost certainly not brought
to Bush's attention. It was referred instead, Jones said, to the governor's general counsel
and criminal justice staff, none of whom responded to Marino. Nor did anyone from Bush's
office follow up on the matter with the Austin police, district attorney or, as Marino himself
suggested in his letter, the two men convicted of the crime and their attorneys.
According to Jones, "no additional action was taken by us" because Marino
wrote in his letter
that he had already referred his allegations to the district attorney's office and the police. Bush's
office took Marino at his word. "There was really no other role for the governor's office," Jones said.
Rosemary Lehmberg, first assistant district attorney for Travis County,
confirmed she received
no communication from Bush's office concerning any of Marino's claims. "I think I would know
about that," she said. "I'm not aware of any contact."
Long after Marino wrote Bush's office, according to Lehmberg, her office
finally began looking
into the case. Lehmberg added that the Austin Police Department has also been looking into the
allegations for "some time." A spokeswoman for the Austin police said the department does not
talk about "ongoing homicide cases."
The possible existence of Marino's letter to the governor was first
reported a few weeks ago on
KVUE, the Austin ABC-TV affiliate. Salon was able to obtain a copy of the letter from the
governor's office. (The office initially told reporters that it had no copy of the confession, before
it was pointed out that the office was misspelling Marino's last name.)
Although Bush's office was under no legal obligation to turn over evidence
relating to the crime,
its failure to do so raises serious questions about the diligence of Texas' highest law enforcement
authorities. Austin attorney Bill Allison represents Christopher Ochoa, one of the two young men
whom Marino alleges were wrongly convicted for his crime. (The other is Richard Danziger.)
According to Allison, Bush's office had a clear obligation after receiving the confession in the mail:
"They should have turned it over to law enforcement."
Marino, who has been convicted on three charges of assault with a deadly
weapon, felony possession
of a firearm and sexual assault, can hardly be held up as a model of virtue. But in the conclusion of
his letter to Bush, Marino took a moral position difficult to disagree with: Bush was "morally obligated
to contact Dansinger [sic] and Ochoa's attorneys and famalies [sic] concerning this confession."
The disclosure about Marino's letter and the failure of Bush's office
to act on it comes at a time
when the governor's criminal justice record has been under intense scrutiny. In June, the Chicago
Tribune reported that among the 131 men and women executed under Bush up to that point, 40 were
condemned in trials where the defense attorneys presented no mitigating evidence or only one witness
during sentencing, while another 29 went to their deaths based in part on testimony by a notorious
state-financed psychiatrist, Dr. James Grigson, whom the American Psychiatric Association found
unethical and untrustworthy.
To date, Bush has signed off on 145 executions, including several in
which troubling questions have
been raised. The most prominent recent case was the June execution of Gary Graham, who was
convicted on the basis of testimony from a single witness, and executed even though exculpatory
witnesses were never allowed to testify on his behalf.
Bush has consistently touted Texas' death penalty procedures, most recently
in his Wednesday
debate with Vice President Al Gore, in which he suggested that capital punishment is the best way
to deal with "hate crime" homicides. Bush has stated that "there is no doubt in my mind that each
person who has been executed in our state was guilty of the crime committed" and that all of his
state's condemned prisoners have had "full access to the courts ... and to a fair trial."
The two men Marino claims took the fall for his crimes were not sentenced
to death but to life in
prison because of the peculiar way in which the case developed. But like those heavily scrutinized
Texas death penalty cases, the convictions of Ochoa and Danziger raise profound questions about
justice in the Lone Star State.
Ochoa's case never came to trial because he confessed to murdering DePriest.
But University of
Wisconsin law professor John Pray insists Ochoa's was no ordinary confession. Pray's nonprofit
research group, the Wisconsin Innocence Project, undertook its own investigation of Ochoa's case
last year. "Ochoa confessed because of threats that if he didn't he would receive the death penalty,"
Pray said. "What this says about the death penalty is that it corrupts the system even in cases where
a defendant wasn't sentenced to death. It can create a situation in which an innocent person will
plead guilty" to save his life. Pray, who along with Allison is one of the attorneys representing
Ochoa, said his client was also threatened by Austin police officers with physical violence if
he refused to confess.
Authorities in the district attorney's office would not discuss the case.
Allison said there are actually three Ochoa confessions in which "the
facts kept changing" and
were "getting better and better" from the state's point of view. The attorney said the confessions
show how police hammered away at an apparently innocent man until they got him to say what
they wanted. In the first confession, asserted Allison, "Ochoa basically said, 'Somebody else did it
and told me about it. In the second confession, Ochoa's response was, 'I participated,' and in the
third, it became, 'I did the shooting.'"
Fortunately for Ochoa and his co-defendant, Richard Danziger, DNA evidence
from the rape of
DePriest was preserved and, following requests from the Wisconsin Innocence Project earlier this
year, the Travis County District Attorney's Office agreed to have it tested. Although the district
attorney has not released the results of that test, Allison said he is confident they will confirm an
earlier test conducted by the state's own lab that demonstrates Marino was telling the truth: that
he was the one who raped DePriest. The test showed that the DNA discovered on the victim did
not match Ochoa's or Danziger's. It did, however, match Marino, the new focus of the D.A.'s office.
Marino's story is further substantiated by claims he made about physical evidence in his letter to Bush.
Marino said that keys from the Pizza Hut and two bank money bags from the restaurant could be
picked up from his parents' home. Sources close to the investigation say police did recover the
evidence exactly where Marino said it would be.
According to his attorneys, Ochoa, who had no criminal record prior
to his arrest on the murder
charge at age 22, was afraid for years to assert his innocence because he thought prosecutors
might retaliate and seek a death sentence.
Danziger, who was 18 when he was arrested while on parole in connection
with a forgery conviction,
maintained his innocence throughout his 1990 trial, insisting witnesses against him, including homicide
detectives, were lying. He is currently confined to a prison mental institution. After his homicide
conviction, he had no legal representation until Oct. 6, when the state appointed him counsel as
it was considering the second DNA test of Marino.
Marino claimed on the KVUE broadcast that he has confessed the details
of the murder to various
public officials -- including Bush -- in letters dating back as far as 1996. The state, meanwhile, still
has not appointed him a lawyer -- even though his confession could subject him to a death sentence.
Refusing to comment directly on the case, assistant district attorney Lehmberg said, "He's not charged
with anything for one thing; he's here from the penitentiary where he's been convicted, so there's
nothing pending against him."
"Dear Governor Bush Sir:
I did this awfull crime"
This is the letter Achim Joseph Marino sent the Texas governor
more than two years ago.
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Oct. 13, 2000