| In the early morning hours of May 24, 1997, police received a report from Les’s Auto Sales, a used car lot in rural Madison County, Indiana, that a van had been stolen. About a half hour later, the Madison County Sheriff’s Department was notified that a van had crashed in a cornfield outside of Anderson, Indiana.
When police arrived, they found 20-year-old James Fosnot and 22-year-old Jake Skinner. Both had been ejected from the van, which appeared to have rolled over at least twice. Fosnot was unconscious. Skinner told a police officer that his stomach hurt, and he felt like he was going to vomit. When he tried to stand up, the officer cautioned him to remain on the ground until paramedics arrived.
Skinner had a glove on one hand. Another glove was found in a ditch. Fosnot was wearing gloves on both hands.
Skinner died at the scene. Fosnot was taken to the hospital where he remained in a coma for 11 days.
Marian Dunnichay, the Madison County Coroner, examined Skinner at the scene and reported that he had “multiple abrasions” and “contusions to the body.” In the death certificate, which Dunnichay signed on May 29, 1997, she said the manner of death was accidental, occurring during a vehicle crash.
A day after the crash, on May 25, 1997, Fosnot’s father, James Fosnot Sr., reported his son’s car, a Mazda 626, had been stolen. While his son remained in a coma, the elder Fosnot began to suspect that the injuries to his son and Skinner were not the result of a traffic accident. He told detectives Bill Harp and Sam Hanna that he suspected the two had been beaten after the crash. The detectives were skeptical, however.
On June 3, 1997, Fosnot emerged from his coma and began to communicate with his parents. He was released from the hospital on June 11.
On June 14, Marcum and Kendall were arrested in Biloxi, Mississippi when one of them tried to cash Fosnot’s payroll check.
On June 15, 1997, Fosnot gave a statement to the detectives. He said that he and Skinner, along with 20-year-old Chad Marcum and 20-year-old Mikkel Kendall, had hatched a plot to steal the van on the night of May 23. They left Fosnot’s Mazda at one location, then drove the van to the home of Walter Shipley which they planned to burglarize. They put on gloves so as not to leave any fingerprints. When they got to Shipley’s home, however, they abandoned the burglary plan because the house was not vacant.
Fosnot said they began joyriding on the rural roads, reaching speeds of up to 70 to 80 miles an hour with Kendall behind the wheel. Near the intersection of County Road 500 North and County Road 200 West, the van veered off the road and rolled over several times into a plowed field. He said that he had been hit and knocked out by Marcum. Fosnot also said that his Mazda had been at the scene of the crash.
On July 2, 1997, Kendall was interviewed by Detective Hanna. Kendall said the van had crashed and that he and Marcum had left the scene because the van had been stolen. Kendall’s right ankle was injured, and he had scratches over one eye. Marcum had bruises on his forehead and face, scratches above an eye, and one of his ribs appeared to be broken. They walked to the home of a friend in Anderson. They called the hospital to check on Skinner and Fosnot, but the hospital refused to give out medical information.
According to Kendall, at about noon on May 24, 1997, 11 hours after the crash, a friend picked up Marcum and Kendall and two other friends. They drove by the accident scene, then drove to where Fosnot’s Mazda had been parked. Kendall and Marcum then drove to Biloxi.
However, by the end of his interview with Detective Hanna, Kendall had changed his story. He said that after the crash, Marcum had beaten Skinner with a pipe and stomped on him. Kendall also said that Marcum had beaten Fosnot. Kendall also now said the Mazda was at the accident scene–just as Fosnot had reported. According to Kendall’s statement, Marcum wanted to kill Skinner because Skinner had gotten upset at Marcum for making fun of a girl for being overweight.
On July 21, 1997, Skinner’s body was exhumed, and Dr. John Pless, a forensic pathologist at the Indiana University School of Medicine, conducted an autopsy. Pless concluded that Skinner died of blunt force injury to the chest and head. He said that Skinner died as a result of being struck with a blunt instrument and that he did not die from injuries sustained in the accident.
On October 21, Kendall gave a second statement. He started by saying that Marcum did not beat anyone. But then he said that Marcum had beaten Skinner with a pipe.
Marcum was then charged with first-degree murder and first-degree attempted murder. Marcum, Kendall, and Fosnot also were charged with carjacking and theft. On September 5, 1997, Corner Dunnichay resubmitted Skinner’s death certificate based on Dr. Pless’s findings. The death was deemed a homicide due to blunt force injuries.
In September 1997, Marcum went to trial in Madison County Circuit Court.
His attorney, Montague Oliver, told the jury during his opening statement that the defense would call Dr. Kent Harshbarger to testify about Skinner’s injuries. Oliver said that Dr. Harshbarger would testify that Dr. Pless’s opinion that Skinner had been beaten was not based on science, but instead had been based on what Dr. Pless was told by someone else. “Mr. Pless did a report and the autopsy saying it could be caused by somebody being beat,” Oliver said. “Our man [Dr. Harshbarger] is saying, ‘No, no, Mr. Pless. Somebody told you that, so that is why you are reporting that. That is not true.’”
Oliver also told the jury that the evidence would show that Fosnot had told 15 lies to detectives.
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In his testimony, Fosnot said he could not remember his initial statements to police saying he was hit and knocked out. He claimed that was the result of short-term memory loss from being hit in the head. However, he did recall details of the event just before the cash. He said he was in the front passenger seat, and Kendall was driving. Marcum was in the second seat behind the driver, and Skinner was in the second passenger seat.
Fosnot said the van was going fast, hit a bump and went airborne. He said the van began to slide, so he dove between the front seats and laid face-down on the floor. He said the van then flipped into the air. When it came to rest, he said he stepped out. He said he saw a bright light and began walking toward it to get help.
“I thought it [was] maybe a porch light, somebody’s house, I could go up and say, look, there is a wreck. There are guys over there. We need help,” Fosnot told the jury. Then, “I felt someone hit me and I fell to the ground.” He said the next thing he remembered was waking up in the hospital.
Fosnot said he had been charged with conspiracy to commit burglary and conspiracy to commit auto theft, had surrendered to the Madison County Jail, and then had been released. When the prosecutor, Rodney Cummings, asked why he had been released, Fosnot said, “I was scared for my life.”
Asked why he was afraid, Fosnot said, “They had already tried to kill me once, what is going to keep them from doing it again?”
“Were there people in there that you feared?” Cummings asked.
“Yes, sir,” Fosnot said.
“Was one of those persons the defendant in his cause of action?”
“Yes, sir,” Fosnot said.
Defense attorney Oliver did not object to the testimony, even though there was no evidence that Marcum had ever threatened Fosnot.
During cross-examination, when Fosnot said he could not remember his pretrial statements, Oliver accused him of lying. When the prosecution objected, the trial judge noted, “He doesn’t remember, Mr. Oliver. Where are we going?”
“Judge,” Oliver declared. “He does remember and I am going to prove he remembers. I am going to prove he is lying.”
Outside the presence of the jury, the judge chastised Oliver, noting that while Fosnot had made inconsistent statements, there was no proof he was lying. “Now, what you have done,” the judge declared, “You have dug yourself in this well because you promised the jury you were going to show he lied. And prior inconsistent statements are not the same as lies. They are different concepts.”
Kendall recanted his statements inculpating Marcum when called to testify. He said Marcum did not beat anyone. He said he had been scared when interviewed by Detective Hanna, who had accused Kendall of beating both men. Kendall said Hanna tried to get him to say that Marcum beat them with “a pipe or something with a chain on it.” Kendall said he implicated Marcum because he was trying to protect himself. Breaking into tears, Kendall told the jury that his lies were “eating” him up.
Dr. Pless was described by the prosecution as “the leading pathologist in the state of Indiana,” who had “enormous” experience in vehicle crash investigations and deaths.
Dr. Pless testified that Skinner died of blunt force trauma to his chest and head that was not caused by the accident. He said he came to that conclusion because Skinner had no broken bones or lacerated organs, which would be expected in a high-speed crash. In addition, the injuries were caused by something smooth or somewhat rounded, and there were no abrasions on his body, which would be expected if he contacted the ground. Dr. Pless also said that the injuries were present on multiple surfaces of Skinner’s body, which he said was not consistent with the injuries suffered in vehicle crashes. He said vehicle crash injuries were present on one side of the body, not on two sides and certainly not on three sides.
Dr. Pless also said that the injuries were not consistent with being ejected from a vehicle traveling 70 to 80 miles an hour. At that speed, he said, one would expect to see the ejected person’s head separated from the spine. And finally, Dr. Pless said he found three light scratch marks on Skinner’s right arm, which could have been left by fingernails if someone grabbed Skinner by the armpit and pulled him.
The description of Fosnot’s injuries came from Fosnot himself as well as his mother. They said that he had suffered bruises, no abrasions, a dislocated shoulder, and six broken bones under his left eye. Fosnot said he had “144 busted blood vessels in my head.” He also said he suffered from short term memory loss.
In an attempt to rebut Dr. Pless, the defense called Dr. Harshbarger, who had become a licensed physician nine months prior to trial. He was a pathology resident at the time he testified and had not completed his pathology training. He wasn’t a licensed pathologist or even a non-licensed pathologist. He was not qualified as an expert in pathology, but as an expert in the medical field.
Dr. Harshbarger testified that Skinner’s injuries could have been caused by the crash. He said there was no way to tell whether the injuries were caused by the accident or a beating. He said that all areas of the body would be exposed to possible injury for an unrestrained occupant in a rollover accident.
He admitted he had only been to the scene of one motor vehicle accident in his career, and that he had never testified in court before. He also admitted that he had never worked on a case involving a beating death. Dr. Harshbarger conceded that he didn’t “even come close to [Dr. Pless’s] level of expertise and experience.”
During cross-examination, Cummings focused in part on Oliver’s assertion during his opening statement that Dr. Pless had been told what his findings should be.
“Are you going to tell the jury that Dr. Pless testified to his findings because someone told him to do that?” Cummings asked.
“No,” Dr. Harshbarger said. “I don’t know why he did it any more than…anyone in this room does.”
Fosnot’s aunt, Patricia Hittle, testified that Fosnot’s father, who was her brother-in-law, “made this whole story up” before his son awoke from the coma. She testified that she loved her brother-in-law, but he was a liar.
Cummings, in his closing argument, abandoned the theory that Skinner and Fosnot had been beaten with a pipe. He argued that “[I]t occurred to me that there must not have been a weapon. This had to have been a beating that occurred from either stomping them while they were unconscious or unable to defend themselves because there weren’t any defensive wounds. Either they were hit or punched when they weren’t looking or they were still dazed or they were laying on the ground.”
Cummings conceded that if the jury had trouble with convicting Marcum, it would “have trouble with the attempted murder.” He said, “If you believe there was a murder of Jack Skinner, then you got to believe it was the same…on Fosnot.”
Oliver’s closing argument consisted of 10 sentences and essentially waved a flag of surrender.
“I know I am expected to take up another half hour of your time to tell you the side of the story which I want you to take back in the jury room and deliberate about,” he said. “I am not going to do that. I am not going to do that anymore. I am tired of arguing, tired of fighting. I think we have put forth all of the evidence we need to put forth or that we could.
“And you all have it. I am not going to rehash it,” Oliver said. “The only thing I am going to say is this–this case reeks of reasonable doubt. You remember that. When you go back there, you be careful, you be considerate, and you be fair. Thank you.”
On September 29, 1997, the jury convicted Marcum of first-degree murder, first-degree attempted murder, carjacking, and theft. He was sentenced to 71 years in prison.
In 2000, the Indiana Court of Appeals affirmed the convictions, but remanded the case for resentencing. The sentence was later revised to 55 years in prison.
In 2009, Marcum filed a post-conviction petition seeking a new trial. The petition challenged the murder and attempted murder convictions, alleging that his trial defense attorney had failed to provide an adequate legal defense by failing to retain experts, failing to object to testimony of Fosnot that he feared being killed in jail by Marcum, making false promises in his opening statement, and giving a final argument that was “perfunctory, void of meaningful advocacy, and failed to discuss any of the testimony, evidence or inconsistencies in the State’s case.”
A hearing was held in March 2010. Among the witnesses were Dr. Steven Couvillion, a neuropsychologist; Kevin Johnson, an accident reconstruction expert; and Dr. George Nichols, a pathologist. Oliver also testified.
Oliver said the case was the last case he tried before retirement. He admitted he was tired, fried and burned out. He believed that he had been disrespected and disbelieved by the trial judge, and that the jury was tired. He admitted he “gave up.” Oliver also testified that he had been drinking rum during the evenings while the trial was ongoing.
He said he considered rum to be the drink of pirates, and that in the trial, he felt had to “do as a pirate would [in] court and be a swashbuckler.”
Oliver also admitted he did not ask the trial judge to authorize funds to hire Harshbarger until four days prior to the trial, and that he still hadn’t obtained the autopsy photos.
Dr. Harshbarger testified at the hearing that he warned Oliver that he would not be qualified as an expert at the trial–a prediction that came true–and gave Oliver the names of three qualified pathologists, including Dr. Nichols.
Dr. Nichols testified at the hearing that Fosnot’s injuries were caused by the van accident, not a beating. He said there was no evidence of any pattern injuries on Skinner’s body, whether from a pipe, bat, fist, shoes, boots, punching, kicking, or stomping. He said Skinner had two major injuries, both broad surface injuries to his face and chest. He said neither could have been caused by any of those objects. Dr. Nichols said Dr. Pless was wrong, misleading, and "incorrect scientifically."
Dr. Nichols said that Fosnot suffered a closed-head brain injury known as a diffuse axonal injury (DAI), which caused him to be in a coma. Dr. Nichols said he had never seen such an injury from a beating. He said the injury occurs when a body undergoes extreme deceleration. “It’s the stopping that causes the injury,” he said. He said that if humans were capable of causing DAI, “it would happen hundreds of times per week on cable tv with mixed martial arts where people are kicked and hit as hard as humanly possible, and it doesn’t happen.”
Johnson, a certified accident reconstruction expert, testified that the van was traveling 57 to 67 miles per hour on the road when swerved to the left, causing it to slow to 34 to 42 miles per hour when it left the road. He said the van furrowed 30 feet into the soil at about 35 miles per hour and then traveled another 70 feet as it rolled over sideways twice.
Most of the damage to the vehicle was to the passenger side–the seats where Fosnot and Skinner were sitting, Johnson said. He presented videos showing the interiors of two vehicles during rollover crashes. The videos showed how the occupants were tossed about in all directions. The videos established that “Dr. Pless’s testimony that injuries would be expected on only one side of the body in a rollover crash was simply wrong,” Johnson testified.
Dr. Couvillion, a board-certified neuropsychologist, testified that based upon Fosnot’s head injury, Fosnot would have suffered from amnesia for the events preceding his head injury, in particular for the last 15 minutes before the injury occurred. Dr. Couvillion also testified that based on the injury and Fosnot’s low IQ, Fosnot would have been susceptible to confabulating false memories that he believed were true. He said it was “highly likely” that Fosnot heard a version of events and unwittingly accepted it as true.
On July 15, 2010, Madison County Circuit Court Judge Rudolph R. Pyle III granted the petition and vacated Marcum’s petitions.
The judge cited “a series of errors” by Oliver that resulted in an unfair trial for Marcum. Judge Pyle noted that Oliver had failed to object to Fosnot testifying that he wanted out of jail because he feared Marcum. This testimony, the judge said, was “an evidentiary harpoon,” and though in isolation it did not result in an unfair trial, it was among several deficiencies.
“In this case, Marcum’s trial counsel committed a series of errors that had the cumulative effect of rendering deficient legal services that prejudiced Marcum’s case,” Judge Pyle wrote in an 18-page ruling. The judge noted that Oliver admitted he was tired and consuming increasing amounts of alcohol during the case. Oliver “acknowledged that his consumption of rum was making him sick, and that it had an adverse impact on the handling of his legal practice,” Judge Pyle said. “Further, his description of rum as ‘the drink of pirates’ gives this court some insight into counsel’s thought process as it related to Marcum’s trial.”
Judge Pyle noted that Oliver admitted he had not sought to hire an accident reconstruction expert because he believed the judge would not approve the funds. “In essence, Marcum was denied the benefit of challenging the State’s theory of the cause of Jack Skinner’s death because his trial counsel thought that funds would not be approved,” Judge Pyle said.
On January 5, 2011, prosecutor Cummings filed a motion to dismiss the case. In the motion, Cummings noted, referring to Fosnot, that “the State’s principal witness at trial has recanted his trial testimony which makes a conviction a trial virtually impossible.”
The motion was granted that day, and Marcum was released.
In December 2019, after Indiana enacted a statute allowing for wrongly convicted individuals to file claims for state compensation, Marcum filed a claim, saying he had been wrongly imprisoned for more than 13 years. The claim was denied in September 2020.
– Maurice Possley
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