The “Comic Book Murder” -- is it really the end?
Posted: Friday, May 09, 2008 8:02 PM by Dateline Editor
Filed Under:
Crime, Behind The Scenes
By Fred Rothenberg, Dateline Producer
The next decision in the Michael George murder case -- the so-called “Comic Book Murder” -- could be a game-changer and and hugely controversial.
On Thursday, May 15, Judge James M. Biernat will hear oral arguments as the defense asks the judge to overturn the jury's unanimous guilty verdict. In legalese, the defense has asked for a directed verdict. Lawyers for both sides, who already have submitted written briefs, say the judge could make a decision immediately after the oral arguments, or days later.
It appears he has three choices, two of which would be remarkable.
First, the judge could reverse the March 17 verdict, when jurors found George guilty of first-degree murder for the shooting death of his wife, Barbara, in their suburban Detroit comic book store on Friday the 13th, July, 1990.
Second, he could order a new trial, also highly unusual for a trial judge to do.
Third, he could deny the motion for directed verdict and leave any decisions on the case in the hands of an appeals court.
On the issue of the directed verdict, it's deja vu all over again.
After the prosecution rested its case, the defense asked the judge to throw out the case for lack of evidence. Generally, this motion for a directed verdict is pro-forma, and so is the response by the judge.
"You're almost always ... rebuffed within about 10 to 15 seconds," said lead defense attorney Carl Marlinga.
But Judge Biernat's response was anything but ordinary. He took nearly five hours to mull it over. Had the prosecution not met its burden? Had prosecutor Steve Kaplan not offered enough evidence for the jury to believe that the defendant was in the comic book store with a gun at the time of the murder? (The prosecution acknowledged this was a largely circumstantial case with no gun, no eyewitness, and no DNA, but believed it had dug up enough evidence to get a conviction in this cold case 18 years later.)
As a producer for "Dateline NBC" covering the trial, when the judge took one hour, then three, then five, I was thinking this trial might end at halftime.
Other reporters agreed. Something special might be happening here.
"This was taken to lengths that I've never seen before," said Edward Cardenas, veteran courts reporter for the Detroit News. "I thought the longer that it went, there was the possibility that the judge was going to throw the case out."
And if the reporters were thinking that, what about the lawyers?
For the defense, Carl Marlinga was growing more confident by the hour.
"I remember walking outside with my client and saying, 'This is obviously good news. I cannot lie to you. Judges don't take this long to decide these motions.' "
For the prosecution, Steve Kaplan wouldn't even dignify an overturned verdict as a legal possibility. When he's not running the Macomb County cold case unit and prosecuting cases, Kaplan is a part-time law professor. His keen knowledge of the law is well-known and he seemed to see this delay as the judge's ruminations and not a valid legal option.
After Dateline correspondent Dennis Murphy noted the judge’s considerable time pondering, Kaplan replied in an interview that "Some judges spend more time reviewing motions than others."
Murphy asked, "But, did you have to worry, when you guys were on break, the judge is going over this thing? Did we not meet the test here, we're going to lose this thing?"
"In our county, we have not had a murder dismissed during a jury trial," said Kaplan.
But Kaplan's boss, county prosecutor Eric Smith, let us in on what, he said, was really going on in the prosecutor's office.
"We were fit to be tied," Smith said. "After five hours, you start to worry."
After those five hours, when the judge returned to the bench, he made points for both sides. Tension was high. Would he dismiss the case?
In the end, he didn't.
"This is in many ways a classic murder case," the judge said out of the presence of the jury. "If the evidence is believed by the jury, then the jury could reach a finding of guilt." And then he added, " So the court, at this point, cannot substitute its judgment for that of the jury."
One source who spoke to Judge Biernat said the judge actually had prepared a written order granting the directed verdict. Then he re-read the case law and changed his mind.
But now, the stakes are even higher. A jury has weighed in, confident in its decision to convict Michael George for first-degree murder, insurance fraud, and a felony firearms charge. It would be a controversial step for any trial judge to overturn a murder conviction in his own county, especially after he's said in open court that there was ample evidence to go forward.
But this is a thoughtful judge who had second and third thoughts on the original motion for directed verdict. Sources around the courthouse say that Judge Biernat has been talking to his fellow judges about his options and it appears he may want to do something, if possible.
But could he be hemmed in by his previous ruling? Or, could he say that he was mistaken then and wants to set things right now? Or, could he do nothing and let an appeals court decide?
Predictably, the lawyers are divided.
"The odds of a murder conviction being overturned by the trial judge, less than one percent," said Kaplan for the prosecution.
"I believe that we have a strong shot with this judge to be able to get a reversal -- either an outright reversal or a new trial," said Marlinga for the defense. "And if it doesn't happen in this court, I believe that we have a decent shot at the court of appeals."
Whatever the judge does next week or later, expect to see “The Comic Book Murder,” that aired on Dateline Friday night (May 9), on the docket next TV season as fodder for one of the prime-time courtroom dramas. As often happens, life will imitate art -- and vice-versa.
For more information on this case, click here. Watch an Express version of the Dateline episode below.
