By Cortney Casey
C & G Staff Writer

STERLING HEIGHTS — The new co-counsel of a Saginaw man convicted of murder is requesting a second trial in light of new questions about a piece of evidence.

Attorney Sanford Schulman filed the motion in Macomb County Circuit Court Nov. 9 on behalf of Salam Shaker Zora, citing “ineffective assistance of counsel and prosecutorial misconduct” during the original trial in September.

That trial concluded with a jury finding Zora, 41, guilty of second-degree murder and a felony firearms charge in connection with the January shooting of his brother-in-law, Najem Matti, 37.

Among Schulman’s supporting documents is an affidavit signed by Carl Marlinga, who served as Zora’s co-counsel during the first trial, conceding that oversights on Marlinga’s part resulted in Zora being “denied the Sixth Amendment Right of Effective Assistance of Counsel.” 

At issue is a stipulation, requested by Assistant Prosecutor Steve Kaplan and agreed upon by Marlinga, that a barbecue fork found near Matti’s body bore “no fingerprints,” according to the affidavit.

In the trial, Marlinga claimed Zora shot Matti in self-defense after Matti advanced menacingly upon Zora, wielding the fork and a knife, and uttering a Chaldean war cry.

But Kaplan argued that the bullet wound pattern suggested Zora continued to fire at Matti after he was already on the floor, and he hinted that Zora and his brothers possibly staged the murder scene to cast Matti as more of a threat.

According to Marlinga, Kaplan told him the morning of the trial that a Michigan State Police lab report indicated an absence of prints on the fork. Marlinga claims he asked whether that meant no useable prints or no prints whatsoever, and Kaplan confirmed the latter, Marlinga said.        

He said he agreed to the stipulation, but asked Kaplan to supply him a copy of the report when he got a chance.

“This is done all the time in order to save a needless witness who doesn’t have anything to add anyway,” he said. “I took him at his word that what he said it contained, it contained.”

But he never received the document, he said, and didn’t follow up. It wasn’t until Schulman came on board in recent weeks to handle a pending appeal that the pair discovered the MSP analysis showed a print, albeit unidentifiable, he said.

“It turns out that, contrary to what Mr. Kaplan told me, the fingerprint report does indicate that there was a print found on the metal portion of the fork,” said Marlinga. “That really changes everything. That means that his argument, which was based upon the absence of fingerprints, is simply not true.”

In his motion, Schulman refers to a Sterling Heights Police Department report stating that an officer was “able to locate a partial latent on the stainless fork” and an MSP report documenting the presence of a “partial print.”

Pulling from testimony transcripts, Schulman goes on to note that Kaplan specifically alluded to the stipulation at multiple points during the trial, and in his closing argument, said the lack of evidence on the fork and knife was “undisputed fact.”

In the affidavit, Marlinga asserts, “I believe the prosecutor committed prosecutorial misconduct by offering a stipulation that the knife and fork had no fingerprints, thereby implying that they were wiped clean, when, in fact, the fingerprint lab report upon which the stipulation was based shows the presence of prints which were not useable for identification purposes.”

Marlinga said he now believes the case is fraught with problems on multiple levels: failure of the prosecution to turn over all evidence to the defense before trial, prosecutorial misrepresentation of the facts and lack of effective defense counsel.

“I’m really accusing myself of being ineffective in not actually demanding that I see that fingerprint report prior to the trial. It’s something highly unusual, because he knew or should have known that it was not true,” said Marlinga, who at one time served as Kaplan’s boss as Macomb County prosecutor. “In retrospect, I feel foolish for having taken him at his word. I had no reason to think he would do something like this. I leave open the possibility that somehow he made a mistake, that this wasn’t purposeful.”

Regardless, in terms of a new trial, “it really doesn’t matter. It’s such an important part of the trial that all we really have to show was that it was false. We don’t have to show what his motives were,” he said. “All I know for sure is that he told me that was what the report said, and that’s not what the report said.”

Schulman said he gave Marlinga “tremendous credit” for signing the affidavit.

“Carl’s a gentleman; he really felt bad about it,” he said. “He felt duped.”

Kaplan, meanwhile, declined to say whether he believes the issue is merely a miscommunication or a tactic by the defense to secure a new trial, but noted, “A defendant who has been convicted has a constitutional right to appeal and will raise any issue.”

He insisted Marlinga was aware of the circumstances from the outset.

“At trial, there was an agreement between the attorneys that the victim’s prints or DNA were not found on the two-pronged fork or the knife,” he said. “The defense knew that no identifiable prints were found; nothing of quality was lifted.”

Kaplan acknowledged there was “some type of smudge” discovered on the fork, but said it did not constitute a print.

“We never argued that that fork had never been touched,” he said. “We said there were no prints of the victim found on the fork, and that’s true. And no DNA, also.”

The fork reportedly played a key role in the ultimate verdict.

According to Marlinga, five jurors, in post-verdict debriefings, said the reported lack of prints led them to believe Zora planted the fork beside Matti’s body.

They came to the conclusion after ignoring explicit instructions not to conduct experiments in the jury room as they deliberated, pressing their own fingers on the fork and knife in evidence to ascertain whether they left prints, he said.

Kaplan disagreed that the jurors’ actions were improper, citing a Court of Appeals case supporting the idea that measures taken during deliberations are “sacrosanct and inviolate.”

“Whatever process the jurors used cannot be challenged,” he said. 

The fork wasn’t the only grounds for Schulman’s motion. He also argued that Zora’s original defense fell short in other areas, including failure to call an “important” witness and seek an “untainted” jury pool after “inappropriate” comments were made in earshot of jurors, first by other prospective jurors and later, by a relative of Matti’s in a courtroom outburst.

The dispute between Zora and Matti, which occurred in Matti’s Sterling Heights home, arose from $250,000 in cash that disappeared from a shed at one of Zora’s properties in Saginaw. Zora suspected Matti had stolen it, but Matti maintained his innocence.

During the trial, Zora testified that he and his two brothers went to Matti’s house to discuss a proposal whereby Matti would swear on a Bible in a Catholic church that he hadn’t stolen the money.

He said he fired multiple shots at Matti, who was also his cousin, to protect himself after Matti threatened him with the fork.

Kaplan argued that Zora hardly needed his brothers present if he merely intended to talk.

Zora’s sentencing, originally scheduled for Nov. 5, was adjourned until Nov. 13. Schulman said he anticipates Judge James Biernat will proceed with sentencing as planned prior to ruling on the request for a new trial.

Based on sentencing guidelines, Zora faces 12-20 years in prison for the murder charge and two years for the felony firearms count, he said.

Schulman also filed other motions Nov. 9, including one asking for Zora’s release on bond pending appeal and one seeking “judgment of acquittal notwithstanding the verdict,” which alleges the court committed a reversible error in denying Marlinga’s motions for directed verdict during the trial, which were based on what the defense claimed was the prosecution’s failure to disprove self-defense.

Kaplan suggested Schulman’s filings were premature.

“A motion for a new trial cannot be heard until after the sentencing date,” he said.

Marlinga said he remains co-counsel on the case, though Schulman is taking over as lead counsel.