The Third to Final Hurdle: A Letter to the Judge on the Eve of the Sentencing Our Son’s Murderer

Sentencing Memorandum By Daniel J. Marco

Father of Victim Zachary J. Marco

21 Years Old

Dear Judge O’Connor:

First of all, on behalf of my family, Claudia R. Marco, Zachary’s mother and Kathleen (Katie) Marco and Michelle Marco, Zachary’s sisters, we would like to extend our gratitude for the professional and compassionate manner in which you conducted these past proceedings. I doubt that you really understand, at an emotional level, what it is like to sit through hearing after hearing in a case involving the death of a son, best friend, mentor and hero but you kept us safe from the defendant’s family outbursts, their verbal taunts on the streets and their overall disrespectful behavior. The apple simply did not fall far from the tree, there can be no doubt.

The purpose of this letter, and my comments at sentencing, are not to try and get you to vary from the agreed upon sentence of 15 years for armed robbery consecutive with 25 years to life. We approved that deal and we are not backing away from it. However, it seems to me that 35 years hence, Mr. Harper will appear in front of some board, whether it is parole or clemency, asking to be released back into the community, and I am using this opportunity to speak, most probably from the grave, to those board members.

Attached to my visor in my car is a series of photos Zack had taken for a Passport. Unfortunately, with the passage of time and because of the fact that sunlight hits those photos from time to time, they are already starting to fade. Memory is much the same way. And though I will never forget my son, there are times, already, that I struggle to recall his voice, his laugh, his mannerisms and his ubiquitous smile. While my memory is clear, I am now 52 years old, I want the world to know exactly who Mr. Harper killed:

• A son and best friend and grandson cousin and nephew
  
• A mentor and hero to his sisters
• He joined ROTC during his sophomore year of High School
• He held three letters in High School Sports (Wrestling, football and cross country)
• He was awarded the Provost Scholarship to Arizona State University
• He scored “Exceeds” on all his AIMS scores
• He worked his way into the Barrett Honors College at Arizona State University
• He was a political Science Major with a philosophy minor
• He was a straight A plus student following his first semester in college
• He was taking a class load of 8 courses
• He, at the same time, tutored up to 50 students, teaching them how to study and in a number of cases raising their grades from C’s to A’s. He actually made course plans for his tutoring sessions and created poster boards to explains his lectures to his students
• He spent up to 18 hours a day, everyday including weekends in the ASU library, studying (he was shot on a Sunday night at 9:30 walking to his apartment from the ASU library after spending over 12 hours in the library)
• He was selected to serve as a Page in the Arizona State Senate
• He would have interned in Washington D.C.
• He worked for charities such as Habitat for Humanity, among others
• He was an absolute favorite of his professors
• He did not drink, smoke, or do drugs. He played sports even though he was only about 5′ 4” in height
• He had a wonderful sense of humor and rare is the photograph of him without a smile on his face
• He had a very small but tight knit group of friends all of whom did not do drugs, got A’s for grades and are now starting careers that are in the upper stratospheres
• He planned on being my law partner, as I was my father’s law partner for 16 years in Ohio
• He was doggedly loyal
• He was kind to everyone UNLESS he thought you were a person not rising to your potential, then he just sort of ignored you
• He was in absolutely perfect physical shape despite a slight heart valve issue
• He wanted to get into politics and his goal was to “reintroduce a conversation about the greater good”
• He intended to go to Harvard Law School
• He was the rock in our family, the sun around which our planets revolved. When he was taken away, the family unit disintegrated, and that is a great damn shame
• He, need we say it, was a great, great kid. His potential was unlimited. The good he was going to do, boundless. His energy unsurpassed. His compassion unique. His gifts from God, inspiring. He was and remains an inspiration to his friends, his sisters, his mother and to me.
• He is a lost treasure to this County, this State, this nation and the world.
• He is profoundly missed by all who knew him, not week by week, or day by day; but rather, second by second.
• We mourn the world’s loss.

Now, let’s compare that bullet list to Mr. Harper’s:

• He is a High School drop out
• He is a documented Gang Member loyal to the Vista Bloods, one of the most violent gangs in Phoenix according to the police
• He is a felon
• He is a probation violator and apparently never once appeared at a scheduled meeting
• He was in Scottsdale jail just 30 days before he shot my son, so obviously incarceration does not phase him in the least
• He is 22 years old and is the nephew of 18 year old Uncle Marion Patterson III his co-defendant
• He is, unfortunately, the father of a child out of wedlock
• He was unemployed, with no visible means of support except he says he receives a small Social Security death benefit. The truth is, he lived off his mother and his girlfriend who worked two jobs. His only real source of income was stealing and pawning and who knows what else.
• When he was arrested, the police found counterfeit money on his person.
• He is a coward who took a gun loaded with hollow point bullets to a fight he was going to start where he knew, with I am sure 99% certainty, his opponent would be unarmed.

So that is who shot and killed my son. A person of no redeeming qualities, no goals, no ambition. A small time thug gangsta wannabe who could not even come up with $500 to post bail when he was initially arrested. A failure in school. A failure in life. A failure to the community. And now, a certain failure as a father. A failure in every aspect of life, even his gang life. We are all safer during the period of his incapacitation.

Defendant’s Mental Retardation Claim

There was quite a bit of debate regarding the possibility that the defendant is mentally deficient. While that was relevant to the then pending death penalty specification, it should not be relevant to any request for parole, clemency or release at any time in the future. Louis Harper is not mentally deficient in terms of his ability to function within the normal limits of societal values. His actions in the death of my son are clear evidence of that fact.

The Tempe Police Department graciously gave me unfettered access to the investigative file regarding this crime. I read Marion Patterson’s statement, Mr. Harper’s denials (about 4 hours worth of denials) and the synopsis of the two passenger statements. I reviewed crime scene photos, and hospital and autopsy photos. Given my 23 years as a Criminal defense attorney, and my stellar win-loss record in almost any kind of case, my ability to read these types of reports and synthesize a probable theory of the case is, well, better than most.

Now, Mr. Harper may have a low IQ, I do not know, I was not privy to those reports, but there is a difference in being able to navigate the halls of the schools and being able to navigate the streets, where Mr. Harper’s real education came. Clearly, his family has no interest in education as my interactions with them prove them to be ignorant, combative and stupid. Harper may have failed school but he possesses a PhD in crime and street survival tactics and, frankly, came very close to getting away with this murder; and who knows, this may not be his first murder.

So, what appears to have happened in this case, and what belies his cries for compassion, is as follows:

The night before the murder, Mr. Harper and his Uncle, Marion Patterson sent texts to each other indicating that they need to do a “lic” (which is street lingo for robbery, or something bad that is going to happen to someone) because they needed some “racks,” meaning money. Obviously, they had robbed before so, while they had no particular victim in mind, they knew who to look for. Living near campus, they knew students often walked alone carrying valuable equipment, such as laptop computers and cell phone, IPODS, that sort of thing.

The next night, Mr. Harper convinced some girls that he needed their car and they brought it over. After picking up Mr. Patterson, Mr. Harper and another girl, they decided to go to Mr. Patterson’s residence to hang out, which is south on Rural Road from the intersection of Rural and University in Tempe, AZ.

Unfortunately, at the exact same time as the car carrying Harper and Patterson reached that intersection, intending to turn left, or south onto Rural from University, my son, carrying his laptop computer case and listening to music on his IPOD was walking home from the Arizona State Library after a night of studying. At about 9:20 he approached the intersection of Rural and University, walking east on University.

The light turns green. My son begins to walk across the street. As he reaches about the mid-way point, the car carrying Mr. Harper turns left and executes the turn immediately behind my son. Mr. Harper says, out loud; “He has a laptop.” He and Patterson have a quick conversation and Harper instructs the female driver of the vehicle to execute a u-turn and then to turn right onto University, following my son. Because she had an idea what Harper intended to do, the driver actually missed the right hand turn and drove through the Rural and University intersection. Mr. Harper instructed her to take the next right. They do and they come out on University drive behind my son. Mr. Harper tells them to pull into a driveway. She does, stops the car and Harper and Patterson get out of the vehicle.

Patterson gets behind my son and is asking him to stop to give them directions. Harper is, of course, behind Patterson. Because he was listening to music, my son could not hear Patterson so he repeated the request for directions a couple of times. Finally, Zachary stops, takes one ear bud out of his ear, listens to Mr. Patterson and tells them he cannot give them the directions.

Patterson then grabs for the computer bag. My son, all 5’4” of him, takes two hands and pushes Patterson to the ground. While he does that, the computer comes out of his grip, flies into the air and lands at Mr. Patterson’s feet. (Clearly, at this point the Zachary’s laptop breaks. The screen was cracked and damaged in the fall, so in the end, my son’s life was taken for nothing.)

Zack turns and sees Harper.

Now, in Mr. Patterson’s statement, he says that a scuffle ensues and that Zachary grabs for the gun, and that he and Harper fought over the gun which goes off. I think that Patterson here is just trying to make it look like an accident to help his older nephew. There is no evidence that the shot that killed my son was from close quarters. There was no powder burn on his skin or on his shirt. Consistent with that, the medical examiner concluded that the shot probably was fired from a few feet away, which makes sense.

Having just seen the ease with which Zachary dispatched Patterson, Harper, the ultimate coward, just raised the gun and fired. He hit my son just below his left nipple. The hollow point bullet did what it was designed to do. That is, it fragmented and one of the pieces pierced his heart causing him to immediately and quickly bleed to death.

Now, here is where Mr. Harper’s street genius kicks in. He yells to Patterson to grab the laptop because it might have fingerprints on it. He also had the presence of mind to search for, and find the ejected shell casing (the gun was a glock) and then instruct Patterson to run to the car.

Once in the car he instructed the driver to DRIVE DRIVE DRIVE. As they once again approached the intersection of Rural and University, he instructed the driver to cut through a business parking lot, rather than go through the intersection, out of fear for the intersection cameras.

Inside the vehicle, Mr. Harper, quite proudly showed off the shell casing.

There are conflicting reports about what Harper said about the shooting. One is that it was an accident, that he just raised the gun and it went off. The other was that he thought that my son was going to punch Patterson, whose nickname is Bop. (“He was going to punch you Bop.”) But what is certain is that he instructed Patterson who, somehow got possession of my son’s cell phone, to take the battery out of the phone so that they could not get traced through the cell towers. Patterson obliged. He also told the other occupants of the vehicle to never speak of the night’s events, to just not think about it. He told them this while holding a gun.

These are not the acts nor the instructions of someone mentally retarded or even mentally deficient. They are the instructions of a cold-blooded killer; someone familiar with the routine of crime, death and evasion from authorities. Mr. Harper is clearly, just a bad, awful person, who should be kept away for as long as possible.

It goes on. In the apartment, Mr. Harper opened my son’s laptop, saw that the screen was broken, tried to boot it up and failed. Fortunately, it was probably in the act of opening the laptop that he transferred his thumbprints to the screen. He instructed Mr. Patterson to get rid of the laptop. Patterson placed it in a box and placed it on the top shelf of a closet.

A couple of days later, Patterson’s mother sees the box and, thinking its contents garbage, took the box to the nearby Safeway Store. Instead of placing it into the garbage bin, she laid it down next to the it. An employee saw the bag, opened it up and associated the laptop with the murder of a boy in Tempe because she had seen the media stories on TV. The rest is just good, old fashioned police work. I am sure this fact catches Mr. Harper completely by surprise.

One last thing, Harper was in jail when the police searched his house. During one recorded jail phone call to the home they were talking about the search. He asked whether a certain bedroom was searched and the answer was yes. He responded something to the effect of, you gotta get me out of here. Why? Because he had hidden the murder weapon between a box spring and mattress and he knew the gig was up.

Again, taken as a whole Mr. Harper displayed moments of Criminal genius and, absent the removal of the laptop from the apartment to a space next to the garbage bin rather than inside the garbage bin, it is likely this crime would have never been solved. The only real stupid thing Harper did was keep the gun.

So, despite what the defense will attempt to portray, this is not a man worthy of empathy or care. He is a rotted fixture of a corrupt and emotionally deficient segment of our culture. He, and all like him, of every race, color or creed should be banished from this earth. There is no hope of redemption for him, or the likes of him. We should show no quarter.

 Lack of Remorse

Throughout these proceedings, Mr. Harper, and his family, have shown absolutely no remorse, no sorrow and no self-reproach. In fact, the entire family has displayed contempt for me and my family; a contempt that is palatable. Mr. Harper, in one hearing, actually raised his shackled hands and formed his hand into a gun, using the thumb as a mock trigger, dropped his thumb and said “boom.” He did this quietly. He and I locked eyes many times throughout the hearings, mad dogging as it is called, and he would simply sit and stare at me, clearly threatening me. He said, on one occasion, as he was being removed from the courtroom by a guard, that he would “beat your bitch ass.”

On a number of instances, his step-father, I believe he is his step-father, made advances towards me and my family. On one instance, as I and my 80 year old father, along with a couple of others, stood outside on a corner waiting to cross the street, a car driven by the step-father, with his mother sitting in the front seat drove by and they yelled “Leave him alone, leave him alone” as if Mr. Harper is a victim of my family. He cannot display remorse because clearly, he was never taught to care.

Finally, Mr. Harper takes no blame for what happened despite his guilty plea. His plea was to save his own skin from the death penalty. For example, in a hearing designed to reach resolution, he essentially blamed race or my standing as an attorney as the reasons for his predicament. He claimed the shooting was an accident. At that hearing, Zachary’s mother and I were lectured by Harper’s sister on the issue of “mercy.” We did not respond.

The only regret Mr. Harper carries is that of being caught, arrested and facing life in prison. To him, all these events are external. I am sure, at night, he lays and wonders how all this happened, to him. He is the consummate victim. Life’s dupe. But the fact is, not only is he is own worse enemy, he is the world’s enemy.

Conclusion

There are only three things a defendant says at this type of sentencing: I’m sorry. It was an accident. I didn’t mean it. Mr. Harper can save his breath. He is not sorry. It was not as accident as the evidence demonstrates and he did mean it. He pulled out a gun, placed his finger on the trigger, pulled and then tried to cover it up.

When Mr. Harper killed my son, he killed me and my family. We are no longer a single unit but we are a house divided. Zack’s mother lives one place, I live in another. This was not the probability of things while he was alive. Further, my earning capacity has greatly diminished as I no longer have the stomach for Criminal defense work; the core of my earning power has been removed. My daughters no longer trust people outside of the family. We face alternating days of depression and deep depression.

My son, my best friend, my pal, my student, my coach, my example, my future law partner, my right hand, my artist, my writer, and my hero is dead. Not over a laptop and cellphone, but over a broken laptop and an unusable cellphone. His life traded for nothing. He was doing and did nothing wrong. He happened upon the path of one Louis Harper, a coward, a fiend, an enemy to all mankind. A person who was afraid of a punch. He shot my son with a hollow point bullet, it hit him right below the left nipple, fragmented in his body, pierced his heart and he bled out.

Mr. Harper, however, will live to fulfill his own destiny: uselessness, despair, a leech of public funds and the target of other inmates. An absentee father.

My son will never fulfill his destiny. He is dead. And his death is unforgivable.

Very truly yours,

Daniel J. Marco