Jeffrey Marsalis

Jeffrey Marsalis, right, claimed that his counsel—trial attorney Doug Nelson, left—was ineffective in his defense, which ultimately led to a jury conviction of rape and a maximum sentence of life in prison in 2009. Judge Jonathan Brody dismissed the claim with prejudice in a ruling late last month.

A former Sun Valley resident convicted of rape more than a decade ago will no longer be able to argue in court that he had inadequate legal counsel during his jury trial, 5th District Judge Jonathan Brody ruled late last month, effectively putting a notorious case to rest.

Brody dismissed a petition for post-conviction relief from Jeffrey Marsalis in a written decision filed on May 26, writing that Marsalis had failed to prove that his defense attorney, Doug Nelson, had made significant errors.

“To obtain relief, the errors of counsel must be so serious as to deprive [Marsalis] of a fair trial with a reliable result,” Brody wrote in the 33-page decision.

Post-conviction relief is a procedure that allows a criminal defendant to bring more evidence or raise additional issues in a case after a judgment. Had Brody ruled in favor of the defendant, the state would have to decide whether to retry Marsalis or dismiss the case entirely.

Jeffrey Marsalis, now 48, was found guilty of felony rape following a jury trial relocated to Ada County in April 2009. Two months after that, 5th District Judge Daniel Hurlbutt Jr. sentenced him to life in prison with the possibility of parole after 15 years.

Marsalis—a former Sun Valley Co. security guard—was found by a jury to have raped a 21-year-old resort employee at his Sun Valley condominium following a night of drinking in Ketchum in October 2005. The co-worker reported the crime to the Sun Valley Police Department. Forensic biological samples taken as part of a rape kit revealed DNA matching Marsalis’, though blood and urine samples did not detect any date-rape drugs.

When the 2005 crime in Sun Valley occurred, Marsalis was already being investigated by Philadelphia police on allegations of raping a total of 10 women whom he allegedly met online. While out on bond for the Sun Valley case, he was acquitted of eight rape charges but received a 21-year prison sentence for two lesser charges of sexual assault, the Philadelphia Inquirer reported in 2007.

In 2008—following the Philadelphia trials—the Blaine County Prosecutor’s Office filed a request to extradite Marsalis to Blaine County to face a jury under the Interstate Agreement on Detainers, a federal agreement that allows state-to-state transfer of prisoners in unrelated cases. The office was granted temporary custody of Marsalis, who was months into his prison sentence in Pennsylvania at the time.

“The defendant is accused of having sexual intercourse with a female who was unconscious due to an intoxicating substance. That is not consensual sex. It’s rape,” state prosecutor Jim Thomas told the jury, which returned a guilty verdict in 2009.

After trial, Hurlbutt ruled that Marsalis’ sentencing be consecutive with the Pennsylvania conviction, meaning Marsalis would serve his first sentence in custody of the Pennsylvania Department of Corrections before being transferred back to Idaho to serve a minimum of 15 years, making him ineligible for parole before 2028.

Marsalis currently remains incarcerated in a Pennsylvania facility. Since his conviction, he’s been the subject of several TV documentary-dramas, including “Web of Lies” by Investigation Discovery and ABC’s “20/20.”

According to Blaine County Prosecuting Attorney Matt Fredback, Marsalis appealed Brody’s ruling to the Idaho Supreme Court on June 2. The appeal came as “no surprise” given the case’s history, he told Blaine County commissioners on Wednesday.

“It’s really great to have this behind us, though. For me personally, and for the whole [prosecuting attorney’s] office,” he said. “We’ve been prosecuting this case for almost 15 years.”

Question of consent debated at trial

According to reporting by the Philadelphia Inquirer, Marsalis, a former EMT, allegedly masqueraded as a trauma surgeon, astronaut and CIA agent on dates with women he met online.

The Sun Valley case shares similarities to accounts from Marsalis’ other victims in Pennsylvania.

According to court documents, Marsalis picked the victim up at her Sun Valley dorm on Oct. 9, 2005, drove to a Ketchum bar and proceeded to spend nearly $100 on liquor between the two of them. His bar tab showed that 20 beers and four shots of liquor had been consumed by the end of the night.

The victim testified that she went into an amnesia-like “blackout” state, woke up the next day in pain and had flashbacks of the rape.

The victim “recalled consuming three or four beers and one Kamikaze shot and had no memory of the rest of her night. [She] noticed an unusual tasting granular substance in the bottom of the Kamikaze shot glass,” Brody wrote in his decision, citing the original 2008 indictment returned by the Blaine County Grand Jury. “The cab driver … observed [the victim] and Marsalis leave the bar … [she] was unable to walk.”

At trial, the taxi driver testified that the victim was unable to exit her van on her own.

“[Marsalis] had her up under her arm, and he was half-dragging her. Her toes were pointed backward, her right leg toe was pointed backward as he was walking her,” she told the jury.

During an interrogation by then Sun Valley Assistant Police Chief Mike Crawford, Marsalis allegedly contradicted himself, first adamantly denying that he had engaged sexually with the victim but then changing his answer to “not that I can recall” when Crawford brought up the DNA results, according to the indictment.

At trial, defense attorney Doug Nelson argued that the victim’s blackout state did not automatically mean a lack of consent.

“Just because you can’t remember the next day … all the crazy crap that you might have pulled, when you’re in a blackout, it does not mean that you didn’t know what you were doing at the time,” he argued.

Brody concluded in his decision that whether the victim had or had not reached the point of blackout didn’t change the rules of consent.

“The jury was presented with strong evidence of [the victim’s] severe intoxication, which related directly to her inability to resist sexual intercourse with Marsalis,” he wrote.

Rapist’s petition dates back to 2012

Brody’s May 26 ruling came after years of back-and-forth between Marsalis and the state. Marsalis first filed a petition for post-conviction relief on Dec. 26, 2012, according to court records, arguing that Nelson had made errors depriving Marsalis of a fair trial.

Those alleged errors included failing to rebut the state’s expert testimony from Dr. Marc LeBeau, a senior forensic scientist with the FBI; failing to call other witnesses who were favorable to the defense; and failing to advise him of his right to a speedy trial.

Brody dismissed the petition in October 2017, but Marsalis filed an appeal to that ruling the following month. Two years later, the Idaho Supreme Court issued an unpublished opinion, affirming in part and reversing in part Brody’s decision. In response, the state filed a petition for review that ultimately led to a February 2020 ruling from the Supreme Court handing the case back to 5th District Court for an evidentiary hearing on Marsalis’ claims.

Prior to 2012, Marsalis filed an appeal with the Idaho Court of Appeals arguing that the grand jury indictment used to prosecute him should be thrown out because, he claimed, Crawford’s claim that police had found a “white powdery substance” on Listerine breath strips during a search of Marsalis’ home—implying an incapacitating drug—was false. (Lab testing of the breath strips was inconclusive.) The appeals court ruled in September 2011 that police evidence presented during the proceeding was, in fact, sufficient for an indictment, according to reporting by the Associated Press.

Due to the case’s high profile and strong interest from the media, the venue of the 2009 trial was changed from Blaine to Ada County. The trial focused intensely on the blood alcohol concentrations in Marsalis and his co-worker. To help determine those numbers, the state heard expert testimony from forensic scientist LeBeau who used a series of formulas to estimate intoxication.

At trial, LeBeau explained how alcohol and other central nervous system depressants—including “date rape drugs” in the benzodiazepine class, such as Rohypnol—are absorbed and eliminated in the body. LeBeau testified about two formulas used to calculate blood alcohol concentrations after the fact: the “modified Widmark formula” and the “Dubowski chart.” (The first formula divides estimated ounces of alcohol consumed by a person’s weight, while the second describes stages of alcohol influence and symptoms observed at each category.)

Using the Widmark formula, LeBeau estimated the victim’s BAC to be between a .06 and .10 based on her recollection of how much she drank and up to .28 based on consuming about half the bar tab, or 11 beers and two shots. Marsalis’ BAC, on the other hand, peaked at .16, he estimated.

Testimony backfires on Marsalis

At evidentiary hearings in Hailey in August and September 2021, Marsalis brought three witnesses to challenge the estimations from LeBeau and to prove that Nelson’s refusal to hire a toxicologist or psychologist to rebut Dr. LeBeau’s testimony was unfair.

The two scientists ended up agreeing with LeBeau’s formula results, however.

One witness called on behalf of Marsalis last fall was Dr. Kim Fromme, a forensic psychologist who testified that there was a “complete lack of scientific evidence” on one of the formulas LeBeau used, but that his other calculations were accurate. Another expert witness, forensic toxicologist Brian Capron, testified that both formula results from LeBeau were consistent with the symptoms of intoxication exhibited by the victim.

Another claim brought at the hearing was that Nelson had failed to inform Marsalis that he had the right under the interstate agreement to a trial beginning within four months of arriving in Idaho. (The trial began within five months.) Marsalis, however, signed away that right by signing a waiver to a speedy trial, Brody said in his written decision.

“Nelson had advised Marsalis to waive his right to a speedy trial in order to prepare the best possible defense for the case, and Marsalis agreed. The fact remains that Petitioner signed a waiver,” he wrote.

Ultimately, Brody found Nelson’s conduct within “a wide range of professionally competent assistance” and LeBeau’s testimony based on “scientifically sound information and literature.” He concluded that even if Nelson had challenged LeBeau’s testimony in court and requested an earlier trial date, the trial outcome would not have been any better.

Brody also wrote that Nelson knew that he could not challenge LeBeau’s testimony because it was supported by strong eyewitness accounts.

“It would not have helped Marsalis to have an expert at trial explain to a jury that she was less intoxicated than she appeared because a jury would have believed a date rape drug led to her intoxication,” he stated.

Marsalis also called David Nevin, a prominent Idaho criminal defense attorney, as a witness. Nevin argued that Nelson should have eliminated all evidence of a date-rape drug being used.

Nelson did not consider that argument, however, because he was “concerned that such evidence would increase the chances of conviction and would be an aggravating factor at sentencing,” Brody said.

“[Nelson] was very effective in his cross-examination of Dr. LeBeau,” Brody wrote. “He was so effective that even though some evidence of a drug-facilitated rape remained, the state did not mention it in its closing arguments even after [using] it in opening statements.”

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