Attorney cries foul in attempt to halt retrial in 1987 German Township murder
By Liz Zemba
Published: Wednesday, Feb. 13, 2013, 12:01 a.m.
Prosecutors should not be allowed to seek the death penalty in Mark Breakiron's retrial because there is not enough evidence to prove the victim was tortured or robbed before she died, a defense attorney argued Tuesday.
In addition, citing prosecutors' failure to reveal evidence that might have helped the defense during Breakiron's first trial, Uniontown attorney Sam Davis asked a panel of three Superior Court judges to bar the homicide retrial in its entirety.
“The commonwealth's actions were egregious in this case,” Davis said during a hearing in Pittsburgh. “They used a jailhouse witness who wrote them letters they didn't divulge. They made deals with (the informant) they didn't divulge.”
Mark Breakiron, 51, was convicted of homicide in the 1987 slaying of Smithfield waitress Saundra Marie Martin in a German Township lounge.
Prosecutors said Breakiron stabbed Martin 20 times and cut her throat before stealing her purse and bags of money from Shenanigan's Lounge.
Jurors sentenced Breakiron to death after finding he tortured Martin and killed her during a felony robbery, both of which are aggravating circumstances for the death penalty.
He won a new trial when a federal judge threw out the murder conviction because prosecutors withheld information the defense could have used to impeach Ellis Price, a jailhouse informant whose testimony bolstered the torture and robbery theories.
The new trial is on hold until Superior Court rules on Breakiron's latest appeal.
Davis wants the court to overturn a ruling by the new trial judge, Steve Leskinen, that allows prosecutors to use the aggravating circumstances of torture and felony robbery to again seek the death penalty.
Davis on Tuesday argued when Breakiron was convicted in 1988, case law required only that prosecutors show “some” pretrial evidence of torture in order to seek the death penalty. More recent cases set a higher standard, requiring prosecutors to establish such evidence “beyond a reasonable doubt” before taking it to a jury, Davis said.
In Breakiron's case, Davis argued, torture “was never established at trial.”
There was no evidence, he said, to prove at what point during the attack that Martin died, or if she was conscious when Breakiron took her out of the bar and put her in his truck.
Davis argued robbery does not apply because Breakiron testified that he took the money after he passed out and awoke to find Martin dead. That would have made it a misdemeanor theft, Davis said, meaning it could not have been used to seek the death penalty.
“Why is it a theft? Because she's already dead. There is no force,” Davis said.
Prosecutors used the tainted testimony of Price, who is now deceased, to charge Breakiron with the more serious felony count of robbery, Davis said.
“Ellis Price was promised a lot of things by the commonwealth that were never divulged,” Davis argued, alleging prosecutors made deals with Price that were not disclosed to the defense.
Deputy Attorney General Greg Simatic argued that older case law still applies to Breakiron's case and the burden is on the defense to disprove torture.
Simatic said evidence shows Martin was still bleeding when Breakiron took her from the bar to his truck and two other locations.
A bloody rope found at the scene indicates she was alive, he said, because there would have been no need to restrain a dead person.
“This is a case in which the victim was butchered,” Simatic said.
“This was a brutal killing. She was alive and undergoing horrible torture throughout these events.”
As for prosecutors' failure to notify the defense of any deals with Price, Simatic attributed that to “incompetence,” as opposed to an intentional act.
“Just basically, things got swept aside...in the district attorney's office,” Simatic said.
“I don't think anything in this case rises to egregious, to bar retrial.”
Judges Mary Jane Bowes, Anne E. Lazarus and Robert E. Colville will issue a ruling at a later date.
Liz Zemba is a reporter for Trib Total Media. She can be reached at 412-601-2166 or firstname.lastname@example.org.
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