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Hears arguments on testimony, evidence



Published: Tue, December 24, 2013 @ 12:05 a.m.

By joe gorman

jgorman@vindy.com

YOUNGSTOWN

Judge R. Scott Krichbaum on Monday denied motions for acquittal or a new trial filed by a man who was convicted in November of committing a 1974 triple homicide in Canfield Township.

Attorneys for James Ferrara, 64, had filed the motions in Mahoning County Common Pleas Court earlier this month after he was convicted of the December 1974 deaths of 33-year-old Benjamin Marsh; his wife, Marilyn, 32; and their daughter, Heather, 4, inside their South Turner Road home.

A 1-year-old son, Christopher, was found unharmed.

A key part of Monday’s hearing was testimony from a corrections officer at the Mahoning County jail, Devin Fitzpatrick, who had testified at Ferrara’s trial that Ferrara had bragged about what kind of weapon he likes to use, which is the same type of weapon investigators think was used to kill Benjamin and Marilyn Marsh.

Heather Marsh was beaten to death.

Ferrara wrote a five-page letter to one of his attorneys, Tony Meranto, after the trial claiming that after the verdict came in, Fitzpatrick approached him in his cell, and that Fitzpatrick admitted trying to elicit information to be used at the trial from Ferrara at the behest of prosecutors.

Under questioning from Judge Krichbaum, Fitzpatrick said he was not part of a conspiracy to entrap Ferrara into saying something incriminating while he was in the jail. Under cross-examination from Assistant Prosecutor Rebecca Doherty, Fitzpatrick said Ferrara often approached him for conversation in the jail — not the other way around.

Ferrara was not a suspect in the homicides until his fingerprints were matched in 2009. He was indicted in the murders in June.

Meranto also said he believed a new trial or acquittal was warranted because of a lack of evidence. The only evidence prosecutors used to convict his client — a set of fingerprints on an outside garage door that allowed entry into the home — could have been mishandled, he said, because police and prosecutors could not account for it for several years.

The state Bureau of Criminal Investigation processed the homicide scene for the sheriff’s department in 1974, but the person who collected the evidence is dead. Meranto said the former deputy who assisted in collecting the evidence at the time could not answer questions in court as to how the evidence collected was stored, when it was stored and who had possession of it while it was in storage.

Assistant Prosecutor Dawn Cantalamessa said the state has receipts from BCI stating the evidence was collected and stored, and the deputy identified the cards used at the crime scene to catalog the evidence, especially the fingerprints. Cantalamessa said jurors also are instructed to weigh not just the evidence, but the person presenting the evidence during deliberations, and she said jurors found that witness to be credible.

Meranto also said jurors admitted after the trial that they discussed evidence not introduced during the trial, such as Ferrara’s 1983 conviction and sentence for a double homicide in the Columbus area, and for that reason his client deserved a new trial.

Meranto said statements Ferrara made to investigators that he never knew Marsh and had never been to his home would have worked in his favor had the fingerprint evidence not been admitted.

Judge Krichbaum said he found no evidence that the chain of custody was broken in Ferrara’s case when it came to the fingerprint evidence.


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