A Pennsylvania man remains in jail despite multiple courts saying there is no longer any evidence of his guilt.
Joseph Marcy was convicted in 2012 of molesting his daughter, who was six and seven at the time of the alleged incidents and sentenced to twenty to forty years in jail.
In 2015, his daughter recanted, and the trial judge overturned the conviction, noting in his decision, “A complete recantation by the victim raises the question of whether a crime was committed at all.” (RELATED: Could Pennsylvania Rep. Brian Sims Face Legal Repercussions For Offering Bounties To Dox Children?)
Marcy remained in jail, however, and when the District Attorney appealed that decision, another court reinstated the conviction.
That appeals court did not rule on the veracity of the recantation, arguing instead that his appeal was not filed in time.
Luzerne County CYS
Marcy was originally investigated by Luzerne County Children and Youth Services (CYS) for physical abuse of his daughter, after a bruise was found on her buttocks.
That investigation lasted several months.
Marcy’s daughter testified against him in a juvenile court hearing but the case was thrown out after a judge determined that Marcy’s daughter was susceptible to coaching.
Michelle Pardini, Joseph Marcy’s mother, said her granddaughter was staying with her when the CYS investigation was completed. (RELATED: Pennsylvania Rep Offers Reward To Anyone Who Will Dox Pro-Life Teens In His Video)
She said CYS when case workers came and took her granddaughter, she thought her granddaughter was going to be reunited with her son, when she received a call from CYS stating there was a new allegation.
Pardini said CYS informed her that Marcy’s daughter had disclosed to them that Marcy was molesting his daughter.
Investigation and Trial
Marcy’s case was then investigated by Michael Leman, a detective with the Edwardsville, Pennsylvania Police Department.
Because the alleged events happened years prior to the investigation, the case was based entirely on the testimony of Marcy’s daughter.
PHILADELPHIA, PA – AUGUST 14: Police tape is stretched across a street near a residence during a shooting on August 14, 2019 in Philadelphia, Pennsylvania. At least six police officers were reportedly wounded in an hours-long standoff with a gunman that prompted a massive law enforcement response in the city’s Nicetown-Tioga neighborhood. (Photo by Mark Makela/Getty Images)
Leman declined to comment on the case when reached at the police station.
Buddy Yeager, Marcy’s uncle, said he remembered the police told Marcy, “We don’t need DNA evidence, because we have your daughter.”
“His daughter was coached,” Yeager said further, “Joey really got the shaft.”
Marcy, in an interview from prison, said his daughter’s story was also not consistent. (RELATED: Man Beaten To Death After Attempting To Steal A Car With Children Inside)
At times, she said her father molested her alone and at other times she claimed that another relative was involved as well.
Despite the inconsistency, Marcy was convicted in 2012 and sentenced to twenty to forty years in jail.
A doctor testified during trial to say that redness in her vagina region was consistent with molestation but other experts have since testified that it was consistent with many things, with molestation not being very likely.
The Luzerne County District Attorney’s Office did not respond to a request for comment.
The Appeal
Marcy said shortly after his conviction he received a letter from a relative stating that his daughter had recanted.
John Hakim, an attorney in Pennsylvania assigned to handle Marcy’s appeal, said the letter would not have been enough on its own to file an appeal, but it led to a full investigation before he filed an appeal, known as a Post-Conviction Relief Act (PCRA) petition.
Hakim said he faced an uphill battle, “PCRA to get a victory in one is pretty rare. It is not a common occurrence.”
In 2015, a PCRA hearing was held in front of the same judge, Judge Joseph Augello, who presided over the criminal trial.
At that hearing, Marcy’s daughter recanted.
Prosecutors argued that she was being coached to recant.
“She {Marcy’s daughter} explained that her grandmother Michelle started living with them and told her that the things that the things that happened to her were a dream,” The Luzerne County DA’s Office said in a 2017 filing, “{Marcy’s daughter} also said that she had told a man, an investigator, that the defendant did do all these things to her and that it was the truth.”
Michelle Pardini denied ever coaching her grandchild.
“I never said that,” Michelle Pardini told the Caller. (RELATED: ‘He Won’t Speak Up’: Defendant Decks His Own Attorney)
She said that she even offered to take a lie detector test, though none was administered.
The Luzerne County DA also argued that Marcy’s daughter described her abuse at trial in graphic detail, something she wouldn’t be able to do if it was fabricated.
“She recalled that she previously testified the Defendant peed in her mouth, that she made a hand motion on his ‘pickle’, that the Defendant’s ‘pickle’ was hairy and that his ‘pickle’ went in her butt,” the DA said in their appeal, “However, she said those things were lies. But when asked how she would know those things as a six year old, i.e. that liquid would go in her mouth, that the Defendant’s ‘pickle’ was hairy, to make a hand motion, and that his ‘pickle’ was in her butt, she could not say how she knew those things.”
Hakin said that while the DA’s office made those arguments, the judge heard their argument, the recantation, and the judge determined the recantation was credible.
Justice sigh, Philadelphia City Hall, Pennsylvania.(Shutterstock/DimitryBR)
In the decision, the judge cited the lack of other evidence as one reason for overturning the decision, “A complete recantation by the victim raises the question of whether a crime was committed at all.”
The court granted Marcy a new trial on May 20, 2015.
More Appeals
Luzerne County DA’s office immediately appealed the decision to the Pennsylvania Superior Court.
Marcy remained in jail as his bond remained the same amount, one beyond his ability to pay.
On July 1, 2016, the Pennsylvania Superior Court, in an unpublished opinion, reinstated the conviction, but the court did not issue a decision on the merits.
Instead, the court argued that the PCRA was not submitted in time. (RELATED: District Attorneys Suing To Keep ICE Agents Out Of Courthouses)
“After careful review, we conclude that the PCRA court improperly grated Appellee’s PCRA Petition because Appellee had knowledge of the victims’ recantation in 2012 and did not raise it until 2014,” the court stated.
Marcy said he was shocked by their decision because even the prosecutors were not making this argument.
The court made this decision without either side arguing about whether the PCRA was filed on time, known as sua sponte.
“I would respectfully disagree with the Superior Court on that,” Hakim said, ““I certainly would argue it’s timely.”
Hakim said that the argument is a technical one.
The Pennsylvania Superior Court is arguing that the clock started as soon as the relative wrote the letter.
He would argue that the letter is hearsay and not evidence and the clock should not have started until he had the recantation from Marcy’s daughter.
Marcy agrees with Hakim.
“If I would have filed based on the letter, that would have been hearsay,” Marcy said, “There would not have been enough evidence. The letter was just probable cause to send the private investigator.”
In 2017, Marcy filed an appeal with the US District Court in the Middle District of Pennsylvania.
In May 2017, the Luzerne County DA filed their response.
While they detail their arguments in the PCRA in the response, their argument is a technical one. (RELATED: One Of The Biggest Gun Shows In Southern California Can Continue, US District Court Rules)
“Thus, the recantation issue is untimely and the PCRA court did not have jurisdiction to consider the claim. Since the recantation issue was not included in a properly filed post-conviction petition, the one year period AEDPA was not statutory tolled, thus this claim is time barred,” the Luzerne County DA stated in their response to Marcy’s appeal.
Marcy said that at this point no one is arguing that there is any evidence of his guilt.
“I’m innocent sitting in prison,” Marcy said, “In my opinion, it’s pretty cut and dry.”
While all filings were completed in May 2017, the US District Court has not made a decision.
The case was assigned to Judge William Arbuckle.
justice and law concept.Male judge in a courtroom with the gavel,working with smart phone,digital tablet computer docking keyboard,eyeglasses,on wood table
(Shutterstock/everythingpossible)
In May 2019, Judge Arbuckle’s chambers gave this reporter a statement, “Marcy v. Warden, SCI Graterford, 3:17-cv-00411 has been referred to Judge Arbuckle. The briefs have been filed and this case is ripe for decision.”
Judge Arbuckle’s chambers did not respond to a follow up email for this story.
He said he has checked into possibly receiving a pardon, but he was told he would need to admit guilt before being considered.
He also said any parole would be predicated on his admitting guilt. (RELATED: PA Man Charged With Posing As GMA Producer, NYT Reporter To Steal Government Documents)
He insists he’s innocent and will not admit guilt.
“Would you admit to this crime if it meant getting out of jail,” Marcy was asked by The Daily Caller.
“No,” he responded.