Pizza Hut slaying trial opens today Defendant could plead insanity in '88 rape and killing. By Jason Spencer AUSTIN AMERICAN-STATESMAN STAFF Monday, October 7, 2002 It took Achim Josef Marino four years to convince authorities that he -- not the two men serving life sentences for the crime -- raped and killed 20-year-old Nancy De Priest at a North Austin Pizza Hut in 1988. Prosecutors paid attention in 2000 when DNA tests conclusively linked Marino to the slaying. A judge freed Christopher Ochoa and Richard Danziger in 2001 after each had served 11 years in prison. But when Marino's capital murder trial begins today, his lawyer says, he will ask a Travis County jury to find Marino not guilty. Defense attorney Larry Sauer does not dispute the confession but said he is considering an insanity defense. Marino has been in prison since 1990, serving three life sentences for aggravated robberies in 1988 and 1990. He will be eligible for parole in 2005. Marino has told Sauer that he wants to plead not guilty by reason of insanity. Sauer said he hired a psychiatrist to examine Marino over the weekend to determine whether Marino meets the legal standard for criminal insanity. To be found not guilty by reason of insanity, a defendant must have a severe mental disease or defect that prevented him from knowing right from wrong at the time of the crime. In the spring, a court-appointed psychiatrist determined that Marino's mental illness falls short of criminal insanity. Sauer said he will announce his defense strategy in court today. At the request of De Priest's mother, Jeanette Popp, prosecutors are not seeking the death penalty. If convicted, Marino would be sentenced to life in prison and would be eligible for parole in 2016, said Assistant District Attorney Bryan Case. If found not guilty by reason of insanity, Marino would simply serve out his other life sentences. Case said he does not know what to expect when jury selection begins this morning. "He is unpredictable," Case said. Popp had hoped that Marino would plead guilty and accept a life sentence. She requested that prosecutors not seek the death penalty after meeting with Marino in prison. Popp, who became an anti-death-penalty activist in 2000, said Marino described her daughter's death in detail and said he killed her to quiet the demons inside his head. "His quote to me was, `My spiritual adviser said that if I made a human sacrifice, they would stop,' " Popp said. "So that's what my daughter was, a satanic sacrifice for him." Popp said Marino told her he decided to confess after becoming a born-again Christian. Popp said she doubts the sincerity of his religious conversion but does not want him executed. "If that was the case, he would not be doing this," Popp said of Marino's religious conversion and his plan to plead not guilty. "I told him, `If you have any remorse at all, please don't make me go through this again.' " Popp said she dreads the prospect of listening to detectives, and possibly Marino, testify about her daughter's death. De Priest, who had a 15-month-old daughter, was preparing to open the Pizza Hut on Reinli Street when, Marino says, he got her to open the door by posing as a repairman. Once inside, he forced her out of her clothes, raped her and shot her in the back of the head. The restaurant has since gone out of business. "Oh God, I can't even imagine. I did not want to do this again," said Popp, who lives in Azle, near Fort Worth. "I just did everything I could to avoid this fiasco again. I do not want to look at that man again." After Ochoa and Danziger were cleared, Popp became chairwoman of the Texas Moratorium Network, which seeks to stop executions in the state. De Priest's daughter, now 14, lives with her father and stepmother, Popp said. Last month, Popp was on her way to Austin to plead with Marino one last time to forgo the trial. But Case abruptly called off the meeting, she said, when he learned that Popp planned to videotape her conversation with Marino and give the film to the news media. "I told Mr. Case that I would be using the video for purposes of other victims who want to meet with their killers so they would have an idea of what it was like," Popp said. "He said he didn't know what kind of sick agenda I had, that my behavior was unbelievable. . . . He told me I was trying to profit from my daughter's death." Case said he canceled the meeting because he feared the videotape's release would taint the pool of potential jurors. He denied accusing Popp of capitalizing on her daughter's death. Popp said her death penalty opposition grew out of Austin police detectives' handling of the investigation. An internal Austin Police Department review of the case concluded that detectives botched the investigation by misinterpreting evidence and failing to corroborate Ochoa's confession. Ochoa, who pleaded guilty to murder and testified against Danziger, has said detectives coerced the confession. Austin police turned over Ochoa's complaint to the U.S. attorney's office. No officers were charged with wrongdoing. In a letter to the Austin American-Statesman in April, Marino said he decided to plead not guilty by reason of insanity because of the public reaction to Andrea Yates' murder trial. A Houston jury rejected the death penalty in that case and sentenced Yates to life in prison for drowning her five children. "After Yates' sentence was reported by the media, `normal' society inundated both talk and non-talk formatted radio with calls clamoring for vengeance and Yates' blood," Marino wrote. "The vast majority of normal society are passively hostile toward the mentally ill, and if given the chance, such as during jury service, will injure such a person at the first opportunity." Marino said he hopes his case will expose flaws in the way the Texas criminal justice system deals with mentally ill defendants. "Originally, I had intended to accept a state plea bargain solely to spare Jeanette Popp and her family and friends the trauma and pain of a subsequent murder trial," Marino wrote. "However, because I am a former mentally ill person who was also subject to direct demonic influences . . . I cannot morally, or in good conscience plead guilty to the murder of Nancy Lena De Priest, and my reason for my change of heart can be summed up in two words. Andrea Yates." Popp said she does not think Marino is legally insane. "The man is not insane, (but) he's not completely rational," she said. "He sat and looked me in the face and told me exactly what he did to my daughter and why he did it." Dr. Richard Coons, an Austin psychiatrist who often performs court-ordered mental evaluations of criminal defendants, examined Marino in the spring at state District Judge Bob Perkins' request. Coons agreed that Marino was not insane in 1988. "Mr. Marino may have suffered from bipolar disorder at the time of the offense, but he knew that his conduct was wrong and illegal," Coons wrote in a report to Perkins. "He set out to murder someone, gained the cooperation of his victim by guile, robbed her, sexually assaulted her, and murdered her. Fearing detection . . . he spent a great deal of effort trying to locate the spent shell casing. All of this strongly indicates that he not only wasn't prevented from knowing that his conduct was wrong, but affirmatively knew that it was illegal and wrong."