The attorney for the notorious Spindle City convicted murderer filed a petition with a single justice of the SJC Monday, requesting a chance to appeal Superior Court Judge John Connor’s February ruling denying Drew a new trial.
Drew, 50, was convicted of the 1980 ritualistic slaying of Fall River prostitute Karen Marsden. Her murder was the third in a string of eerily similar cult slayings in and around the city.
After levying explosive allegations of prosecutorial misconduct and incompetent lawyering by his initial attorney, Drew was granted a number of evidentiary hearings to determine if he deserved a new trial.
His motion for new trial was based largely on accusations of prosecutorial coercion lodged by former trial witnesses, who recently claimed their damning testimony against Drew at his 1981 trial was fabricated and forced by former top prosecutors. The motion also alleged Drew’s trial attorney, John Birknes, was incompetent and provided ineffective assistance of counsel.
“I think it’s reasonably clear that evidence in the trial record shows Birknes’ lawyering fell well below the minimum standards,” said Drew’s attorney, Michael Cutler.
The single justice who receives the petition will have two options: deny it or allow the appeal to proceed before all seven members of the court.
“This is really it,” Cutler said. “If the single justice denies our petition, there will be no appealing that.”
Drew, sentenced to life in prison without the possibility of parole in 1981, pinned his hopes for freedom on an original trial record Cutler believes shows various instances of incompetent lawyering, and on the testimony of four recanting witnesses.
The witnesses, including one who was also convicted of the Marsden slaying, all said their dark tales of ritual murder in the Westport woods were lies.
One of the recanting witnesses also testified she saw Murphy begin to murder Marsden on the roof of another witness’ apartment building. She said Drew was not at the scene.
But in Connor’s February ruling, he deemed the recanting witnesses’ testimony lacked credibility, even though prosecutors never proved that the witnesses had ulterior motives for recanting their stories.
Connor also ruled Birknes’ defense of Drew was “thorough and deliberative,” something Cutler said couldn’t be further from the truth.
“Judge Connor didn’t consider everything he should have,” Cutler said. “He didn’t follow the right rules.
“The whole thing stinks,” he added.
As evidence of Birknes’ alleged ineffective assistance, Cutler pointed to the original trial transcript, which shows Birknes was admonished by the trial judge numerous times during his examination of witnesses.
Birknes, who never tried a murder case before or after the Drew trial, is also accused of not speaking with his witnesses prior to trial. Cutler says Birknes also failed to realize his investigator had died without ever reporting on Drew’s alibi.
“Denying this petition and forever foreclosing further judicial review of the defendant’s life sentence would not serve the interest of justice,” Cutler said. “Given the undisputed errors and omissions by the trial defender, the motion judge’s assessment of such defender performance as thorough and deliberative merits appellate review by the full bench.”
Prosecutors will now have 30 to 60 days to file their opposition to Cutler’s petition.
In the meantime, Cutler said Drew is extraordinarily upbeat about his case.
“Carl is pleased the truth is finally on the record. He would have preferred a better outcome from the motion judge, but he does have some level of satisfaction for getting evidence of his innocence out into the light of day,” Cutler said. “My client is still looking at life in prison, but at least the real story has been told.”