Cody Backus seemed destined to spend decades in prison, perhaps his entire life, after being convicted of murder in 2008.
37-year-old Backus lost two appeals in state court and a separate appeal in federal court for the 2006 murder of James Brennan Jr. He was properly convicted of murder for his role in a Syracuse robbery that left Brennan dead, judges ruled.
But in 2018, Backus got the break of his life.
His decade-old murder conviction was tossed — with agreement from the Onondaga County District Attorney’s Office — and he was released from prison. Gone was the 20-year-to-life sentence that seemed a foregone conclusion after three lost appeals.
Instead of being imprisoned until 2026 at the very earliest, Backus was a free man.
Now, he’s accused of fatally beating an 82-year-old man in Fulton. Backus faces a new murder charge in Marshell Foster’s death, an attack that police say Backus partially recorded and later uploaded to social media.
How exactly did Backus end up a free man at the time of Foster’s murder?
It turns out that a key prosecution witness from 2006, who testified at Backus’s first murder trial, had lied about what happened. In fact, that purported witness, Clarence Paige, likely wasn’t even there during the events that led to Brennan’s death during a drug robbery on Graves Street in Syracuse.
Learning that their key eyewitness had lied to a jury — and probably wasn’t even there for the events he described — Onondaga County prosecutors told a judge in 2018 they had no choice but to ask for Backus’s murder conviction to be tossed.
“…I’m uncomfortable with a conviction that based on probable perjured testimony,” former First Chief Assistant District Attorney Rick Trunfio told a judge in 2018.
Defense lawyer Kim Zimmer had been working for years to get Backus’s murder conviction tossed. She had uncovered Paige’s deception by providing evidence that he had recanted to others and also testified to different facts in a different trial.
Backus was never accused of being the actual shooter who killed Brennan in 2007; he was charged with murder after someone else pulled the trigger.
Under New York law, Backus could be convicted of murder if he participated in a robbery that led to someone’s death.
Without the tainted witness’s testimony, however, prosecutor Rick Trunfio told a judge that he couldn’t prove Backus was there for the actual robbery that led to Brennan’s death.
Instead, Trunfio said during a July 2018 court appearance, there was only evidence that Backus had helped set up a robbery of Brennan and had planned to rip the victim off of money and drugs. The proof now showed that Backus had left the victim’s apartment before two others came in and killed the victim, Trunfio said. (Another man was acquitted of being the actual shooter in Brennan’s death.)
For his part, Backus had always maintained his innocence in the burglary and maintained he was only convicted based on a lying witness’s testimony.
So both sides struck a deal in 2018: Backus would take a reduced 9 1/2 year sentence for attempted burglary, but he would maintain his innocence under a so-called Alford plea. In other words, Backus would not be required to plead guilty, but agree that there was enough evidence to find him guilty of the reduced charge.
Under law, that meant a judge could sentence him to prison as though he’d actually pleaded guilty. The 9 1/2 years in prison was intentionally chosen because he already served that time and would get Backus out of prison immediately.
Two days after the judge resentenced Backus, he was released on parole. He’d been free ever since, until his arrest last month in Foster’s beating.
Backus now faces a murder charge after Foster died from the beating on Monday.
Staff writer Douglass Dowty can be reached at ddowty@syracuse.com or 315-470-6070.
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