Material-witness system faces criticism

BY SAM LANE | FEBRUARY 19, 2010 7:30 AM

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Justin Marshall has been in jail for more than 90 days.

The 19-year-old is being held as a material witness in conjunction with the Oct. 8 shooting death of John Versypt, the landlord of an apartment complex on Iowa City’s Southeast Side.

And although material-witness cases are rare — usually fewer than one per year in Johnson County — some, such as Iowa City attorney Sarah Majerus, feel the law is unfair.

“It’s unconstitutional,” said Majerus, who is defending Marshall. “Our criminal-law system in the United States is based on the idea that someone is innocent until proven guilty … The same thing does not exist for material witnesses.”

According to court documents, Marshall was in the apartment building when Versypt, who was checking up on the property, was shot. Police believed Marshall had key information regarding details of the shooting.

Majerus filed a motion for dismissal earlier this month. The motion lists a number of constitutional elements that she felt were violated through her client’s incarceration.

“On its face and as applied in this case, the material witness statute provides less protection of Marshall’s rights than he would be afforded if he were charged with a crime,” the court document reads.

Normally, officials take a witness’ statement and they are released, said Ronald Carlson, a professor of law at the University of Georgia-Athens,

However, in the cases of material witnesses, officials often hold the individual until an offender is identified. This allows the witness to affirm that the defendant is the person who committed the crime.

“I think if the person is from Texas or California and sees something happen in Iowa City and his testimony is essential, I see cause for a bit of a hold on him,” said Carlson, a former UI law professor. “I’m a critic of laws when they are, in my view, misused.”

Carlson — who has written about the subject for a number of college law reviews, including the UI’s — said his concern arises from the fact that, in many states, material witnesses aren’t accorded a free lawyer.

He added “the cards are in the prosecutor’s hands.” If they want to set a high bond, they can, he said.

Janet Lyness, Johnson County prosecutor, said she believes material witnesses are necessarily held.

“Clearly, sometimes you need to get witnesses who are likely to flee,” she said. “You need them to testify in whatever proceedings occur.”

Precedence for material-witness laws in Iowa came from the 2002 court case State v. Hernandez-Lopez, in which a number of people were involved in a fatal car crash and officials had to determine the identity of the driver.

Officials in the case determined that due process “requires governmental action resulting in the deprivation of a liberty interest to be implemented in a fair manner.”

Marshall will have a hearing on March 4 in which a judge will review his $100,000 bond and the motion for dismissal.

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