Marjorie Orbin's Appeal

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This is the book about Marjorie Orbin

AZ Court of Appeals

Marjorie Orbin, the subject of my book, WHAT SHE ALWAYS WANTED, is a very confident woman. From the Maricopa County Jail, and later from an Arizona state prison, she would write to me that she “knew” she would prevail upon appeal. In fact, shortly after her sentencing, she wrote me that she expected to be out of prison in “a year and a half.”

Well, she has just had the second anniversary of that sentencing, but she’s still behind bars. Because the Arizona Court of Appeals has denied her wish for a new trial.

If you have read WHAT SHE ALWAYS WANTED, you know that there were numerous problems with Marjorie’s trial. Bizarre, unforeseen twists and turns in that proceeding gave Marjorie and her supporters room to hope that the whole shebang would be tossed on the slag heap and she could try all over again with a shiny new jury who had never heard of her. 

But Marjorie may have failed to consider the intricate subtleties of law. In a unanimous three judge decision, all the troubles that plagued Marjorie’s trial have been deemed, in one way or another, irrelevant to the outcome. 

Marjorie Orbin w/ a CBS camera

Perhaps the most publicity-oriented complaint Marjorie and her attorneys had about her trial centered on video tapes that were used by the TV show 48 Hours. In an episode they named “Diary of a Showgirl,” the case of Marjorie Orbin played out frame by frame. As described in WHAT SHE ALWAYS WANTED, an angry hearing took place after the show in which Marjorie’s lawyers unsuccessfully argued some home videos in Diary of a Showgirl should have been given to them to use in the trial, not to a TV crew to use on the air.

The Court of Appeals has ruled that, first, the tapes were never in the possession of the prosecution but only in that of Jake Orbin, Jay’s brother. Jake qualified as Jay’s heir and executor and, under the law, a victim of the crime. He had no obligation to turn the tapes over. Moreover, “the court found Defendant had personal knowledge of the existence of the tapes yet never requested them until after the verdicts.”     This very point was made, in my presence, by Judge Anderson himself at the original hearing. How could the tapes have been “undisclosed” when Marjorie herself knew about them all along?  After all, she appears in them! The Court of Appeals, as did Judge Anderson, seemed to consider it some kind of mendacious gamesmanship that the defense would ignore the tapes until the trial was over, the verdict was in, and some strangers happened to put them on TV.

The other big ticket item was the investigation of then Homicide Detective Dave Barnes. The court ruled that this spectacle, as eyebrow-raising and unusual as it was, did not “go the foundation of [Marjorie’s] case.”  They also said Judge Anderson’s handling of the calamity did not impair any of her rights.

Former detective Dave Barnes

​Okay, so there was another big ticket item: Prosecutorial Misconduct. This was a complicated affair that you’ll have to read the book to unravel, I don’t have enough space here. But the three appellate judges studied it and concluded, “We find no abuse of discretion.”

On another issue, one in which Marjorie’s defense was trying to blame Marjorie’s former lover for the murder--a defense known as “3rd party culpability”--the court ruled the defense’s position was “an incorrect statement of the law and would have misled the  jury.”

And finally, Marjorie’s lawyers had argued about expert testimony that they had wanted disclosed much earlier. Of note to those also following the sweat lodge trial, the trial court basically ruled that the prosecutor botching a timely disclosure does not magically create reversible error. In several pages of legalese, the Court of Appeals spelled out that while the prosecution had, indeed, botched it, the trial court made sure the defense ultimately had ample time to review and present the material. No harm, no foul.

Marjorie has other appeal options open to her. The process will continue. But she has missed her goal of being out “in a year and a half.”  And the Orbin family is spared the ordeal of going through a whole new trial.

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