Burlco woman to get new trial in husband's death after high court says right denied

Marie Hess at her sentencing in 2001. She has been serving a 30-year sentence with parole possible after 25.
Marie Hess at her sentencing in 2001. She has been serving a 30-year sentence with parole possible after 25. (SARAH J. GLOVER / Staff Photographer)
Posted: July 22, 2011

A woman who admitted 10 years ago that she fatally shot her husband - a Burlington Township police officer - while he slept will face a new trial as the result of a New Jersey Supreme Court ruling Thursday.

In a 4-2 decision, the court ruled that Marie Hess was denied her constitutional right to effective counsel because her lawyer allowed her to enter into a rare plea bargain that prohibited him from arguing for leniency.

The Supreme Court overturned the sentence and remanded the case to Superior Court in Mount Holly for review. The county prosecutor plans to go a step further by throwing out the plea agreement and planning for trial.

In the original case, Marc Neff, Hess' Philadelphia-based attorney, left the sentencing entirely up to the judge. He also did not mention "evidence that defendant was physically and mentally abused, threatened, and afraid of her husband; and failed to offer the argument that she was a battered woman," the court said in a decision written by Justice Barry Albin.

Hess is serving a 30-year sentence that requires 251/2 years without parole. Had she not entered into a plea agreement that admitted aggravated manslaughter, she could have faced about five more years without parole if convicted of murder.

Hess, then 35, admitted shooting her husband and former high school sweetheart, James Hess, also 35, in the back of the head on Aug. 19, 1999.

While Marie Hess was imprisoned, a psychiatrist diagnosed her with battered-wife syndrome.

She filed an appeal, and the high court struck down the provision in the plea agreement that tied Neff's hands. The court said that provision and Neff's ineffectiveness had deprived the trial judge of hearing Marie Hess' side of the case.

The Supreme Court left it up to the prosecutor to decide whether to move forward with a new sentencing hearing or to invalidate the plea agreement.

Prosecutor Robert Bernardi quickly chose the latter.

"In our view, Marie Hess and her lawyer fully recognized the extreme risk that they would be taking by going to trial on the original charge of murder," he said in a statement. "Because of that risk, she voluntarily accepted a plea offer to aggravated manslaughter to avoid the likelihood of being convicted of her husband's murder. Now, based on the court's decision, the state will give Marie Hess exactly what she asked for - a trial."

Bernardi also said that his office and James Hess' family were "extremely disappointed" with the ruling.

Michele Adubato, Marie Hess' lawyer in the appeal, called the opinion "well-reasoned." Her client just wants to be treated fairly at an "open and unfettered hearing," she said.

Hess' case is the only time the Burlington County Prosecutor's Office has negotiated an agreement that barred the defense from arguing for leniency, the high court said.

Neff said that agreement was the only offer on the table. "It was a very emotional, high-profile case. . . . There was no choice; it was either accept it or she was going to trial for murdering a police officer," he said.

The dissenting justices - Chief Justice Stuart Rabner and Justice Roberto Rivera-Soto - said Neff provided effective counsel in what "admittedly was a difficult case: The proofs stacked against defendant were daunting."

Without the plea agreement, Hess would have faced a harsher penalty, they said, and was aware her lawyer wouldn't argue for leniency.

Police said that after Hess shot her husband, she went to her job as a toll-taker at the Burlington-Bristol Bridge, dropped clothes off at a cleaners, ordered a pizza, returned home, and then called 911, feigning surprise at finding his body. Later, she led police to the gun she hid in the kitchen.

The sentencing was held in a packed courtroom attended by many family members and police officers.

The Supreme Court said Neff should have objected to a professionally made 17-minute video that depicted James Hess' life while Beatles songs and religious music played in the background. The video, played at the sentencing, had the potential to "unduly arouse or inflame emotions," the court said.

"The Victim's Bill of Rights permits a family member of a homicide victim to make a statement about the impact of the crime" and to show photographs, the court wrote, but pictures of his tombstone, funeral, and childhood "do not project anything meaningful about the victim's life at the time of his death."

Richard Pompelio, who heads the New Jersey Crime Victims' Law Center, said the court's statements show "a complete lack of understanding" of what victims endure.

"This is the one time in the justice system where the victim is given some kind of face or voice and it doesn't really prejudice the case," he said.

Rivera-Soto wrote in the dissenting opinion that the admissibility of a victim-impact statement "rests in the sound discretion of the sentencing court" and not "personal views of propriety." He said the video was admissible and gave the victim's family the opportunity to help the judge understand their loss.

Contact staff writer Jan Hefler at 856-779-3224 or jhefler@phillynews.com.


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