High court may review Marks case
The U.S. Supreme Court is being asked to review a federal firearms case brought against Tommy Stanko Marks, the oldest son of Spokane Gypsy leader Jimmy Marks.
It will probably be sometime this spring before the nation’s highest court decides whether to accept for review the appeal filed by Tommy Marks’ attorney, Assistant Federal Defender Steve Hormel, of Spokane.
The central issue is whether someone can be charged federally with being a felon in possession of a firearm if the underlying state court conviction making the person a “felon” is found to be unconstitutional and set aside.
The development is the latest chapter in a 19-year-old bitter legal battle between members of Spokane’s Gypsy community, known as Rom, and law enforcement agencies and prosecutors.
A federal charge of being a felon in possession of a firearm was dismissed against Tommy Marks in October 2003 by Senior U.S. District Court Judge Frem Nielsen, of Spokane, shortly before the case was scheduled to go to jury trial.
The federal judge ruled that Marks’ constitutional rights were violated when he and co-defendant Stevie Marks, his cousin, were represented by the same attorney during a state criminal trial in 2000 in Spokane County Superior Court.
The two defendants both testified, offering contradicting testimony and incriminating each other, after they were charged criminally following a fight with a sheriff’s deputy in 1999 at the Marks family gravesite in Holy Cross Cemetery. Tommy Marks ultimately was convicted of a state assault charge.
Nielsen said one defense attorney representing two defendants in the Superior Court trial posed conflicts of interest and denied Tommy Marks a constitutionally guaranteed right to a fair trial. Therefore, the judge held, Marks wasn’t a felon and not prohibited from possessing a firearm.
The constitutionality of the assault conviction is now part of a personal restraint petition, similar to a writ of habeas corpus, which is before the Washington State Court of Appeals.
Last August, the 9th U.S. Circuit Court of Appeals reversed Nielsen and reinstated the firearms charge, which is being held in abeyance while Hormel asks the Supreme Court to examine constitutional issues in the case.
The case involves Washington and two other states, Colorado and Nebraska, and their legal definition of when someone becomes a “felon” and losses certain constitutional rights, including the right to possess a firearm, Hormel said.
In his motion to the Supreme Court, Hormel said Nielsen’s ruling concluded that Washington state law disqualified Marks’ assault conviction from use in the federal firearms prosecution.
But in reversing that ruling, Hormel said, the 9th Circuit appeals court held that prohibiting use of prior unconstitutional convictions applied only to Washington state firearms laws, not the federal firearms statute. Thus, the 9th Circuit never resolved nor reached the “conflict of interest” issue used by Nielsen to render Marks’ state conviction unconstitutional, Hormel said.
The Supreme Court, he argued, should resolve the question of whether the federal firearms law requires federal courts to apply state laws that disqualify unconstitutional convictions that make someone a felon prohibited from possessing a firearm.
The U.S. Solicitor General’s Office has not taken a position either supporting or opposing the request that the Supreme Court review the Marks case.
After the cemetery fight involving a sheriff’s deputy, the federal firearms charge against Tommy Marks was developed by a Spokane County sheriff’s detective assigned to a Bureau of Alcohol, Tobacco, Firearms and Explosives task force.
The federal charge was filed after sheriff’s detectives found a rifle in a Spokane Valley home when they were asked to join bank officials changing locks on the vacant residence as part of a foreclosure.
Tommy Marks, who had lived in the home but moved months earlier to Victorville, Calif., said the rifle belonged to other family members. He also was charged with possessing a handgun he took as partial payment in a car transaction and later sold after being convicted of the felony assault charge.
Jimmy Marks said Wednesday the cemetery fight was tied to animosity and bitterness remaining from a 1986 police raid on Gypsy family homes that resulted in years of legal battles involving the city and county and their respective police agencies.
The raid, ruled unconstitutional by the Washington State Supreme Court, resulted in a $1.43 million payment to the Marks family by the city of Spokane in 1997.
“From a ‘Mickey Mouse’ deal, they’ve now made it all the way to the door of the U.S. Supreme Court – the Supremes,” Jimmy Marks said. “It shows everybody we didn’t stick our heads between our legs and walk away.”