Court denies Carl Drew appeal

BOSTON – The Supreme Judicial Court Thursday effectively put an end to convicted cult killer Carl Drew‘s 25-year quest for freedom when its judges ruled his claims of incompetence on the part of his initial trial attorney did not merit a new trial.

Drew, 50, was convicted in 1981 of the gory first-degree slaying of Fall River teen Karen Marsden. The ritualistic murder, which allegedly included the decapitation of the victim and the performance of an anointing-of-the-blood ceremony on her body, was one of a string of eerily similar cult-like slayings in and around Fall River in 1979 and 1980.

In his 2003 motion for new trial, Drew presented four recanting witnesses who all testified that the macabre tales of satanism and ritualistic murder in the Westport woods were fabricated, due largely to alleged pressure placed on them by former top prosecutors.

But those witnesses and what they alleged during a 2004 evidentiary hearing were not part of Drew’s SJC appeal.

The SJC appeal of Superior Court Judge John Connor’s decision to deny a request for new trial was allowed to proceed to the full SJC on the matter of whether Drew’s trial attorney, John Birknes, was incompetent and provided ineffective assistance of counsel.

The SJC eventually heard oral arguments in the Drew appeal two months ago, and on Thursday issued its final ruling.

“We conclude that there has been no showing of ineffective assistance of counsel,” the seven justices wrote. “The order denying the defendant’s motion for a new trial is affirmed.”

The decision was applauded by Assistant District Attorney Steve Gagne, who was assigned to the case in 2003 when Drew initially filed his motion for new trial.

“I am pleased for the family and friends of Karen Marsden, who have lived through 25 years of uncertainty as the defendant repeatedly challenged his first-degree murder conviction,” Gagne said. “Today’s decision affirms once again the correctness of the verdict.”

In its nine-page ruling, the court refers back to each of drew’s claims regarding Birknes’ alleged incompetence.

In Drew’s legal brief submitted to the court in February, his attorney, Michael Cutler, ticked off a list of 10 reasons why Birknes destroyed any chance Drew had of acquittal.

Cutler claimed Birknes wasted nearly a year of pretrial time before ever speaking with Drew’s alibi witnesses and failed to interview other witnesses before they testified at trial.

Birknes’ trial experience was also called into questions after it was revealed he had never tried a murder case before or after the Drew matter.

Cutler went on to assert Birknes was “woefully inexperienced,” failed to prepare for trial, was unfamiliar with the prosecution’s evidence, lacked interrogation objectives, omitted evidence, failed to prepare to cross-examine the state’s forensic expert and failed to present evidence of Drew’s innocence.

As further proof of Birknes’ alleged incompetence, Cutler pointed to the original trial transcript where it shows the judge presiding over the trial frequently criticized Birknes’ handling of the case.

But in its ruling, the SJC said the trial judge frequently interjected himself into examinations of witnesses by the defense attorney and the prosecutor.

“There is no merit to the suggestion that the trial judge’s criticism of counsel amounted to a finding of ineffective assistance of counsel,” the seven justices wrote.

The justices also took issue with Cutler’s claim that the cumulative effect of all of Birknes’ alleged mistakes led to Drew’s conviction.

“The defendant contends that counsel’s over-all performance, with his alleged lack of interrogation objectives, omission of powerful exculpatory evidence, lack of preparation, and disorganized opening statement and closing argument, left the defendant with an essentially defenseless case. We disagree,” the justices wrote. “(Birknes) demonstrated both familiarity with the voluminous discovery in the case and the significance of the various components.

“Contrary to the defendant’s claim that counsel had no organized defense or trial strategy, the record indicates otherwise.”

When contacted Thursday afternoon, the normally magnanimous Cutler said he would not comment on the SJC’s ruling, but did say he would file a motion for reconsideration with the court within the next two weeks.

Bristol County District Attorney Paul F. Walsh Jr., however, had plenty to say about the ruling that has likely sealed Drew’s fate.

“I applaud the right-thinking justices of the Supreme Judicial Court in rejecting this defendant’s complaints about the way he was treated by the courts,” Walsh said. “Carl Drew enjoyed the full beneficence of the justice system – unlike the brutal injustice he wreaked upon Karen Marsden with the sharp edge of a blade in the woods of Westport.

“I am grateful for the persistence and dedication of Assistant District Attorneys Kevin Connelly and Steve Gagne for their fine efforts in the motion hearing and to Mr. Gagne, who argued the appellate case for us masterfully.”

Marsden’s older sister, Wendy Alves, said she was notified of the SJC’s decision by a victim-witness advocate with the district attorney’s office Thursday morning, and said she is thrilled the saga is over.

“I’m happy. It’s really about time that this is finally over,” Alves said. “It’s been 26 long years and I hope to never hear from (Drew) again.”

Alves, though, did say she is still frustrated and saddened by the fact that none of the four people who were at the scene of the slaying have come forward and told the authorities where her sister’s body is located.


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Religion News Blog posted this on Friday November 10, 2006.
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