Joseph Marcy's Conviction Vacated

A Pennsylvania man convicted of molesting his daughter has taken a giant step toward freedom.

Joseph Marcy was featured in my article in The Daily Caller in January.

In 2012, he was convicted of molesting his daughter, but shortly after his conviction, she recanted.

Here is more from the article.

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.
...
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.

The conviction was vacated in 2015, but Marcy remained in prison under a bond he couldn't afford.

The prosecutors appealed the decision and another appeals court, the Pennsylvania Superior Court, reinstated the conviction on a legal technicality.

Rather than addressing the substance of the recantation, the Pennsylvania Superior Court argued that Marcy did not submit his appeal in time.

In 2017, he appealed to the federal system.

His appeal wound up in front of Magistrate William Arbuckle however his appeal languished from May 2017 until 2020 with no resolution.

On February 7, 2020, Judge Arbuckle rendered his decision which is below.

Marcy Court by mikekvolpe on Scribd

In the decision, Judge Arbuckle states, "Accordingly, for the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, and the Response in Opposition to this Petition, IT IS RECOMMENDED that

(1)

The Petition (Doc. 1) be CONDITIONALLY GRANTED;

(2)Petitioner’s conviction and sentence be VACATED;

(3)The Commonwealth be directed to either retry Petitioner within 120days, or release the petitioner; and,

(4) The Clerk of Court be directed to CLOSE this case.

While good news for Marcy, this is not the end of the appeals process. Both sides have twenty days from Judge Arbuckle's order to challenge. If the prosecution does challenge the decision, a full district judge will decide after that. 

Marcy remains in prison however because his daughter has recanted if this decision does stand it will render any new trial unworkable and he should be home within 120 days of the order becoming final.