Stu Bykofsky: A matter of record, a matter of justice

DOWN IN THE mud of the river bottom, a shiny item has been found, reflecting some light on the mystery surrounding the wrongful life sentence being served by Marcus Perez, 42.

To summarize: In 1990, after a judge told him that he would be sentenced to between 17 1/2 and 35 years, tops, Perez pleaded guilty to homicide. Instead, he got life without parole.

Judge Theodore McKee, then of Common Pleas, now chief judge of the U.S. 3rd Circuit Court of Appeals, has told me, and others, that when he told Perez he would be eligible for parole, "I was dead-wrong."

By the time Perez had learned that the judge erred, the case had passed from McKee's authority, which meant that he couldn't correct his own mistake. Perez had to file an appeal under the Post-Conviction Relief Act (PCRA), which he has been doing for more than 20 years. Every time, the D.A. - first Lynne Abraham, and now Seth Williams - has opposed the appeals.

A very troubling aspect of the case is this: After Perez was sentenced, the original transcript was changed in a way to undercut his grounds for appeal.

The original transcript quoted the judge as saying, "Life implies 17 1/2 to 35 years. I'm not saying you would receive that, but I'm saying that is the most you could receive . . ." The "correction" changes implies to plus, significantly changing what the judge said.

McKee was not notified of the "correction," even though his own words were being changed. Incredibly, neither Perez nor his lawyer was present at the hearing to discuss the change. Only the prosecution was represented, even though the D.A.'s office later made it appear otherwise. Is that fair?

The change was made after Assistant District Attorney Jerome Teresinski brought an "error" to the attention of court stenographer Kenneth Brown, to seek a change in the record. The proper procedure, a First Judicial District spokesman told me, is for the judge to be contacted. Teresinski's discovery came four years after the sentence, not coincidentally following an appeal by Perez based on what the transcript said.

The prosecution apparently didn't like what the record said - so it got changed. Is that just?

Judges tell me that requests for changes of the record years after the fact are extremely rare.

 

The Perez case surfaced in Robert Huber's profile of D.A. Seth Williams in the current Philadelphia magazine. Like me, Huber thought that the Perez case smelled fishy and reached out for Teresinski, now with the U.S. Department of Justice.

Teresinski's lawyer, Trevan Borum, told Huber that Teresinski did "nothing improper." And Williams has maintained that the change in the transcript was proper as suggested by a stenographer's affidavit. In a later email to me, Borum said that Teresinksi found the "error" while performing his duties in the D.A.'s law division, which included studying transcripts involved in appeals or petitions.

Huber unearthed one startling detail: Teresinski is the godfather of one of Williams' daughters.

Isn't that cozy?

By contacting the court reporter, Teresinski did something unusual. Now, it seems Williams is covering for the godfather by supporting the transcript change in court. Williams told Philadelphia magazine that any suggestion that he's covering for the godfather is "ludicrous."

In Perez's most recent PCRA, Common Pleas Judge Glenn Bronson did not show enough curiosity about the improperly "corrected" transcript to demand an explanation. Instead, he ruled that Perez's attorneys hadn't brought anything new to the table. Perez's attorneys will appeal to Superior Court in a couple of months.

"Changing the transcript is changing the facts" we use to appeal, says Perez's attorney, Daniel McGarrigle, of the Henry Law Firm. It is damn serious.

This is bigger than the wrong sentence imposed on Perez. The most important question is how the courts can tolerate district attorneys putting their thumbs on the scales of justice. Not all judges do.

Just weeks ago, Common Pleas Judge M. Teresa Sarmina set aside Terrance Williams' death penalty because a prosecutor suppressed evidence that might have been useful to Williams' defense.

That's like what is happening to Perez with the D.A.'s change in the transcript.

Where's the judge who will call the D.A. on the carpet, look him in the eye and demand answers?

 


Contact Stu Bykofsky at stubyko@phillynews.com or 215-854-5977. Join Stu on Facebook. For recent columns, go to philly.com/Byko.