A Hard Lesson: Justice Doesn't Always Triumph

TRENTON, N.J. - A little, beige wren of a man shuffles into the noncontact visitors' booth at New Jersey's maximum-security prison and, at the sight of his first visitor in more than a year, breaks into a sweet smile.

"Call me Bobby," says the 62-year-old whose prison nickname is Papillon - "not because I look like Steve McQueen, but because I'm old like he was in the movie." He touches the thick glass wall of the booth in lieu of a handshake and speaks into the phone in his only interview in 15 years. "So pleased to meet you. I've been waiting to tell someone my story."

Meet Robert Cumber, the other guy convicted in the Robert O. Marshall murder-for-hire case.

Marshall, a Toms River insurance broker, was convicted of murdering his wife in 1984 as part of a $1.5 million insurance scam. He was the subject of the best-selling book "Blind Faith" by Joe McGinniss and a TV miniseries. His perennial appeals stir heated debates.

`Just a little squirt'

Then there is Bobby Cumber, the throwaway guy - or, as he is identified in McGinniss' book, "just a little squirt."

Barring an unlikely act of mercy by the governor, Cumber, who never even jaywalked, will spend most or all of the rest of his life in prison for a crime that everybody - including the prosecutors who tried him and the judge who sentenced him - agrees he didn't commit.

Cumber did not arrange the murder. The arranger walked.

Cumber did not commit the murder. The man the cops loved for the

shooter walked.

Cumber did not receive a dime for the murder. He was not in New Jersey when the murder occurred; he was bowling 1,400 miles away.

What Cumber did was take phone messages between Marshall and the guy who arranged the murder, messages primarily limited to: "Tell him to call me."

Technically, he was convicted as an accomplice, but the real reason Cumber is serving 30 years behind bars without the possibility of parole is that Cumber was naive to the point of lunacy.

Cumber's real crime was that he believed justice always triumphs.

`Justice was never done'

"Bobby had the opportunity to take a walk. All he had to do was plead to a lesser charge, but he thought that because he was innocent he would be able to prove it," says Deputy Public Defender Matthew Astore, who handled part of Cumber's abortive appeals. "So he went to trial. And lost. Big time."

"Maybe he was a little greedy," Astore says, referring to a wrongful-arrest suit Cumber hoped to win once he was acquitted. "But there are stone-cold killers who are serving less time than Bobby Cumber. There has never been a case that bothered me as much as this one.

"Justice was never done in the case of Bobby Cumber."

It is a sentiment echoed by investigators in the Cumber case, and even by the sentencing judge, Cumber's attorney says, although the judge refused to discuss the case publicly. Even many who thought Cumber was guilty will admit that 30 years without parole was excessive.

These are some of the things that have happened in the 14 years Cumber has been in prison: He got old. His dark hair turned white. His dogs died. He lost his house, his Southern accent and the sight in his right eye. He stopped remembering his dreams, he developed stomach problems, and every one of his brothers and sisters and their families stopped talking to him.

He says he remains close to his wife and daughter, whom he hasn't seen since the day he was sentenced in 1986. He learned how to play chess and to shop by catalog.

Aug. 13 was his 28th wedding anniversary. With money earned working in the prison library, he bought his wife, Myra, luggage from JCPenney. Counting the year in jail before his trial, he has been behind bars exactly half of their marriage.

Not like the movies

His life in prison is not like the movies - "you know, with all those terrible things happening to people in the showers and stuff," says Cumber, a 5-foot, 8-inch 150-pounder. "It's kind of like the military; you've got to know the rules and stuff. But mostly it's just lonely.

"I just wish I knew why I was in here, what I done that was so wrong. If this is God's plan for me, I sure wish somebody would explain why."

Held as an afterthought to the public circus that resulted in the Marshall conviction, the Cumber trial is infamous among New Jersey criminal lawyers as one of the most unlikely convictions in history.

Patrick Sheehan, the former assistant Ocean County prosecutor who tried Cumber, admitted: "We offered the plea because there was a distinct possibility, at the outset of the trial, that Bobby would be acquitted. We couldn't believe there was going to even be a trial. We thought he would grab the plea and go home to Louisiana."

Sheehan stresses that he does not believe Cumber is completely innocent in the Marshall murder.

"He had 31 phone calls from Marshall, including one the day before the murder. He introduced Marshall to the guy who arranged the killing. He knew something," he says. "Nobody is that stupid."

Cumber's lawyers argue, however, that he is that stupid, or at least that gullible.

"I think people in New Jersey have trouble believing somebody can be as simple as Bobby Cumber," says his current attorney, Assistant Public Defender Claudia Van Wyk. "Somebody asked him to do a favor, which was to pass on messages.

"This is a guy who liked to help people and who wasn't good at saying no. The prosecution argued that Bobby had to have an angle, because nobody is that good-natured. But Bobby is."

Always accommodating

Cumber, most people agree and one psychologist testified, is almost pathologically accommodating. Here is a classic Bobby Cumber story:

He always dreamed of being a sailor. At 17, he quit high school to join the Navy. But he went through the wrong door at the recruiting station and joined the Air Force instead of the Navy. He never had the nerve to fix the mistake and served 20 years, 6 months and 13 days in the Air Force before retiring with a pension.

He always missed the Navy, he says, but military life "suited me. I'm good at taking orders."

Marshall, an upwardly mobile problem gambler, was in a bind in 1984. He was in debt to the casinos, in love with a friend's wife and looking for a new life that he intended to finance with his own wife's blood.

He had stature in the community and three handsome, popular sons, but he wanted a hit man. He met Cumber at a wedding and told him he needed to get in touch with an out-of-town private detective. Cumber introduced him to Billy Wayne McKinnon, a cashiered Louisiana deputy sheriff's officer who trolled around the fringes of crime, picking up leftovers.

Careful to keep Cumber as an unwitting buffer - McKinnon later testified, "I didn't want him to know I had profited from his friend" - McKinnon used Cumber as a message drop while he met with Marshall.

By the end of his second visit to New Jersey on July 19, McKinnon had already taken $22,000 from Marshall, who had upped his wife's insurance to $1.5 million. McKinnon claimed he never intended to actually commit a murder, just fleece the mark, but he soon heard from an acquaintance, Larry Thompson, that a $75,000 contract was out on McKinnon for reneging on his bargain with Marshall.

McKinnon testified that Thompson offered to do the Marshall hit for a piece of the $60,000 fee McKinnon had negotiated.

In the early hours of Sept. 7, 1984, Robert Marshall, returning with his wife after a night of gambling in Atlantic City, stopped at the Oyster Creek Picnic Area off the Garden State Parkway. Marshall got out of the car, he said, to check a problem with the rear tire.

Thompson did the shooting, McKinnon claimed on the stand. Marshall was knocked out from behind. Maria Marshall was shot twice in the back.

Police were immediately suspicious of holes in Marshall's account of the shooting, of the timing of the insurance policies, of his debts, of his paper trail.

Barely two weeks after the murder, Ocean County investigators were down in Louisiana, lured by 31 phone calls - most less than one minute long - that Marshall made from his business phone to Caddo Hardware, where Cumber worked. They picked up Cumber and, after two days of questioning, arrested him for conspiracy to commit murder.

Sang his heart out

Initially, he looked good as someone to break the case, but Cumber, who shook and cried throughout his interrogation, didn't know enough to earn immunity as a state's witness. McKinnon did, and he soon sang his heart out.

The first trial began in February 1986. Marshall, McKinnon and Thompson were tried together, producing dramatic revelations, courtroom collapses and wildly diverging verdicts.

Marshall got the death penalty. Thompson, to everyone's astonishment, was acquitted after producing family and friends to claim he had been at the dentist and a revival meeting on the day of the murder.

McKinnon also walked with time served, as part of a deal for his testimony against Thompson and Marshall.

But what about Cumber, the witness on tap just in case McKinnon didn't come through for the prosecution?

In 1985, Superior Court Judge Manuel Greenberg dismissed all charges against Cumber for lack of evidence. Cumber's attorney immediately filed a $30 million wrongful-arrest suit against Ocean County. The county prosecutor appealed the dismissal, and on Dec. 31, 1985, an appeals court reinstated the murder charges against Cumber.

Prosecutors offered Cumber a plea deal: Confess to conspiracy to commit insurance fraud - the penalty being the year he had already served in jail awaiting trial - and the murder charges would go away. So, too, however, would any hope for the $30 million wrongful-arrest suit.

"My attorney told me: `If you're guilty, take the plea. If you're innocent, let's go for it,' so we went to trial," Cumber ruefully recalls. "I think I was stupid and naive and maybe just a little greedy.

"I didn't want all that money," he insists of the $30 million. "I just thought, Here I've already been sitting in jail for a year and the judge said I didn't do it and I know I didn't do it, and somebody should pay for my lost wages at the hardware store."

So Cumber risked everything and lost.

McKinnon was also the star witness in the second trial, but this time the prosecution hammered at his credibility, also suggesting that if McKinnon hadn't told Cumber about the murder, then Marshall had.

Defense lawyer's nightmare

Already convicted and on death row, Marshall was a defense lawyer's nightmare as a rebuttal witness. He was not called to testify for Cumber.

"I've lost cases before, but this one bothered me more than any," says Cumber's defense attorney, Thomas Barron, who cried in court when the verdict was read and gave up defense work shortly after the trial.

"In retrospect, yeah, sure, I should have pressured him to accept the plea, but it seemed like such a sure thing," Barron says. "Who knew the prosecution was willing to trash their own star witness just to nail Bobby?"

The absolute minimum sentence Cumber faced was 30 years. He was the first person so sentenced who had not actually wielded the murder weapon. Of course he appealed, but each appeal coincided with Marshall's appeals. Often they were turned down together.

Barring an act of mercy, Cumber has figured out he will get out of prison on the exact date of his 44th wedding anniversary. The year will be 2015. He will be 79 years old.

In the meantime, Cumber continues his quiet survival at New Jersey's toughest prison. He says in 1989, when his first appeal was denied, he gave up hope of ever getting out.

Weekdays, he says, are easier because he is busy. He works in the prison education department from 8 to 10:45 a.m., 1 to 3:30 p.m. and 8 to 9:30 p.m. Mostly he makes copies of things, for which he earns $4 a day.

Weekends are much tougher. He listens to "the classics . . . you know, Sinatra and Johnny Cash," writes letters to his family and tries to avoid the eternal question, "What if . . ."

When asked to describe himself, Cumber responds: "Small, honest, petite, family comes first, help people in need, workaholic. I'm not really designed for prison."

He watches movies and sports on a small television he bought from a catalog. A devout Catholic, he doesn't blame God for his predicament, or, oddly enough, Robert Marshall. But he does blame Billy Wayne McKinnon.

"I was just trying to be nice, and he used me. I'm supposed to be home taking care of my family, but he's the guy who did all the bad things and he's out there and I'm in here. That don't seem right to me."