Tuesday, September 16, 2008

The "No Body" Murder Case - A Prosecutor's Perspective

by Donna Pendergast

The
Corpus Delicti rule mandates that a prosecutor prove that a crime has been committed before a person can be convicted of committing a crime.

A dead body is a critical component and establishes the corpus delicti of a murder case. However, successful prosecutions have occurred where there is no body and sometimes no physical evidence linking a suspect to the crime.

I have successfully prosecuted two "
no body" murder cases and sent away five defendants on murder charges where there was no body to substantiate the crime. Having tried over 200 cases to a jury with 97 of those cases being murder trials, I can vouch from experience that the "no body" murder trial is the most difficult and complex prosecution of all. It is a difficult feat to convince jurors of a murder without the body as a key piece of evidence. With careful and tenacious planning it is an obstacle that can be overcome.

The ABC's of a "No Body" Prosecution

Prosecuting a murder case without a body is an uphill climb for a prosecutor. Without a body,
circumstantial evidence becomes the key to the prosecution. The prosecutor must use every shred of available evidence to prove to the jury circumstantially that murder is the only logical explanation of what happened. The prosecutor must also disprove all innocent explanations for the disappearance.

The first thing that a prosecutor must do in a "no body" murder case is make a critical assessment of all available evidence to determine if there is sufficient circumstantial evidence to convince a jury that a murder occurred. Before charging a "no body" murder case, the prosecutor must be ready to rule out reasonable explanations for the disappearance through the process of elimination.

The prosecutor must prove not only that death is the reason for a disappearance, but that the means of death was at the hands of another. The prosecutor needs to use circumstantial evidence prove that the death was a murder as opposed to an accident or by natural causes. The defense will capitalize on any uncertainty in the case arguing that there may be another explanation.

The Missing Hunters

A case that I prosecuted in 2003 is a classic example of a "no body" murder case. On Friday November 22, 1985,
Brian Ognjan (pictured below) and David Tyll (at right) left their suburban Detroit homes for a weekend hunting trip and disappeared off the face of the earth. When they failed to return home as planned on Sunday night, the families and later police authorities began a massive search. Their bodies and vehicle were never recovered.

In October 2003, J.R. Duvall (pictured below)
and his brother Coco Duvall went to trial for the murder of the missing hunters. I had oone witness who came forward after 18 years to admit that she had observed the Duvall brothers savagely beat the hunters to death with a baseball bat outside a local bar. It was widely rumored, but never proven, that the bodies of the hunters were then cut up in a wood chipper and fed to pigs. A more detailed account of the nuances of the case can be found in Tom Henderson's book Darker Than Night which gives an eerily accurate description of the case and trial.

The lack of bodies in the case was complicated by other difficult problems. My key witness in the case, Barb Boudro, had issues that I also needed to overcome with circumstantial evidence to prove a murder. Barb admitted to having at least nine drinks the night of the murder, she didn't know what had happened to the bodies after the beating and she had delayed telling the police what she knew for 18 years. I also had a concern, which did in fact materialize at trial, that Barb would be portrayed as a media attention seeker because of the high-profile nature of the trial.

To corroborate Barb's story, I needed to elicit every favorable shred of circumstantial evidence available to bolster her version of events. To prove the death of the two hunters was fairly easy. Both David Tyll's and Brian Ongjan's bank accounts and credit cards had never been accessed after their disappearance. This evidence was presented at trial to refute claims made by the defense that perhaps the two hunters had ran away to start new lives.

I also presented testimony from David Tyll's wife that he had asked her to come along on the trip. This circumstantial evidence seemingly ruled out the likelihood that the two hunters willingly set the stage to disappear and start new lives. I also put in evidence to show that there had been no medical insurance claims presented nor processed over the past 18 years for either of the two. This circumstantial evidence supported my witness's claim that the hunters were in fact dead.

Proving that the deaths were due to murder was more problematic. Barb's testimony still for the most part needed to stand on its own to prove death by murder as opposed to accident or natural causes. The defense argued that even if the hunters were dead, the prosecution couldn't prove murder but for the testimony of one shaky and drunk witness. The defense further argued that the hunters who were last seen in an extremely intoxicated state may have driven off the road and ended up in a lake or quarry. As the defense repeatedly argued, the prosecution had the burden of proving that something like that hadn't happened.

Luckily I had snippets of statements made by the Duvall brothers over the ensuing 18 years that corroborated Barb's version of events to a certain extent. It was only a few small snippets but it was enough. After a two week trial the
jury came back guilty of First Degree Murder in less than two hours.

My other "no body" case was considerably easier than the first. In
Detroit Michigan, in early 2001, three men working on a house renovation ambushed, tortured, and robbed the owner of the house when he stopped in to check on their progress. They then stuffed his body in a trash can and took it out to the curb where it was picked up in the normal trash collection the next morning. By the time the police learned of the murder and got to the city dump the body was presumably completely buried under massive mounds of trash. Multiple search attempts were made to sift through the trash piles with a bulldozer to no avail. That set the stage for a "no body" prosecution utilizing circumstantial evidence.

The victim had been stabbed multiple times at the house so there was
DNA evidence at the crime scene to compare to the victim's DNA taken from his toothbrush. This proved that at the very least the victim had been bleeding in the house. I also put into evidence pictures of the city dump so that the jury could understand the futility of the search and see for themselves why the body was never found.

The three defendants later all individually made statements exculpating themselves but implicating the others in the murder. This further proved a murder even if the respective defendants were blaming it on each other. Since these types of statements are only admissible in trial against a defendant himself and not against other defendants I was required to do a triple jury trial when prosecuting the case.

The trial was a circus to say the least. We had three separate juries in court at the same time. I was required to do three separate opening and three closing arguments back to back to back. That made for one exhausted prosecutor.

For much of the testimony all three juries could be in court simultaneously. However, certain witnesses only pertained to one jury and when the defendant's respective statements were introduced into evidence only the jury for that defendant was allowed to be in the court to hear the statement. All three juries ultimately convicted the defendants of murder after a three-week trial.

My personal experience has proven that the conventional wisdom of "no body, no murder" is a thing of the past. The "no body" murder case makes for a difficult prosecution but more and more frequently these case are being prosecuted and won despite the lack of a body. What used to be the perfect crime for those cunning enough to dispose of their victims has become a little less perfect. For that we can all be grateful.

Statements made in this post are my own and not intended to reflect the views, opinions, or position of the Michigan Attorney General or the Michigan Department of Attorney General.

9 comments:

Cicero Lost said...

What were the key factors that made these cases prosecutable? Is it simply the will of the prosecutor? There was a article previously posted by Kelly Siegler about lazy prosecutors.
I learned in civics that the judicial system is not perfect. It can't be its limited by the information available which is never perfect and a jury and laws which aren't either. Yet the press seems to need to create a villain, usually the prosecutor sometimes the defense attorney whichever way public opinion sways. Good defense attorneys and good prosecutors walk a thin line. The better the attorney the thinner the line. Does this always constitute a breach of ethics? Does every overturned conviction point to a bad prosecutor? I never met a prosecutor that would prosecute a case against anyone they thought was innocent. Does the stereotype of the district attorney out for a win even if an innocent person goes to prison have any basis in reality. It rings made up to me like the villain twirling his mustache as he ties Lillian Gish to the railroad tracks.
It would seem with the cases that are being re-examined with DNA technology a prosecutor would be reluctant to prosecute without physical evidence. Are they penalized for cases they do not prosecute? Do the constituents play a role in getting cases prosecuted? Does the community? What is a prosecutor's incentive for trying the tough cases?

Donna Pendergast said...

Cicero,
Thanks for all the thought provoking questions----it would take hours to answer all of them. In short: What made these cases prosecutable? Every case is different-----in my Detroit case strong circumstantial evidence left no choice but to prosecute. Clearly we weren't going to reward the defendants for being cleaver enough to dispose of the body. In the case of the hunters, we had an eye witness that knew small details that no one would know unless they witnessed the crime. It was a judgement call-----YES it was going to be an extremely difficult case but the case wasn't going to get any better and the victims deserved their day in court-----sometimes you just have to let a jury call it for better or worse. I've never been afraid of a hard case and I'm not afraid of losing as long as I give it everything that I've got. Losing is not a crime.

A Voice of Sanity said...

Does the stereotype of the district attorney out for a win even if an innocent person goes to prison have any basis in reality.
Absolutely
It would seem with the cases that are being re-examined with DNA technology a prosecutor would be reluctant to prosecute without physical evidence.
It seems not.
Are they penalized for cases they do not prosecute?
No.
Do the constituents play a role in getting cases prosecuted?
Yes.
Does the community?
Very much so.
What is a prosecutor's incentive for trying the tough cases?
Promotion.

Three cases to study for some answers: Scott Peterson, Douglas S. Mouser and Gilbert Cano. In each case you have the same prosecutor(s) and some stunning results which have no relationship to the actual evidence, but owe their results to public attitudes instead.

"Convicting the guilty is easy. Convicting the innocent takes real skill".

LadySheila said...

Thank you Donna Pendergast for satisfying my quest concerning these types of trials.

The other question needing an answer (as I'm sure many are wondering) is, would a prospective police department wait to arrest someone on a murder charge (again with no body, as in the Anthony case)if they did, in fact, have enough evidence to do so and if so, why would they wait? (again, Anthony case as an example)As a non-professional, I don't want to give my assumption.

And by the way, your work as a prosecutor is EXTREMELY impressive.

LadySheila said...

Oh! One last question of course if you have the time:

Is there enough circumstantial evidence in the Anthony case (in your professional opinion)to prosecute for a murder charge with no body? Thank you again.

Donna Pendergast said...

LadySheila
A no body murder case is always a risk. The chances of running into a juror who will require a body (even if they say otherwise in voire dire)is a strong one. I will not venture an opinion as to whether or not there is sufficient evidence in the Anthony case without knowing EVERYTHING that the police have. I'm sure that there are things that the police have not even released as of yet but as a prosecutor you have to know everything before you make a judgement.

As to whether a police department would wait if they had enough evidence----once again, it's pretty early on in the Anthony case and I think there is probably still a lot of hope that she will be found. You don't want to go forward with a much weaker no body case unless you are sure that the body won't be found. The prosecution is always keenly aware that a "Not Guilty" verdict can't be appealed because of double jeopardy so they want to give it their best shot when they do go to trial. Especially in a case like the Anthony case where there appears to be no real overt threat to the public.

Voice of Sanity we At Womenincrimeink welcome all opinions. That being said I can say that in 21 years of prosecution
I can't think of one case where I honestly believe that the prosecutor was going for a win in the interest of self promotion and knowingly sought to convict an innocent person. Are there bad apples in every profession? Probably----- but I haven't seen anyone in my office willing to do that and I hope that I never do.

Cicero Lost said...

Thank you for your answers Ms. Pendergast. I suppose there are unethical prosecutors but I agree I think they are rare. Given the average salary of a prosecutor is half what it would be in the private sector, I can't see them putting an innocent man away for that kind of promotion. If they were motivated by money they could move into the private sector and make more.
It is unfortunate that a lot of DNA exonerations are attributed to over zealous prosecutors or incompetent defense when in reality they are the result of improved information available to the justice system.

Donna Pendergast said...

Well said Cicero and so true

A Voice of Sanity said...

Donna Pendergast said...
Voice of Sanity we At Womenincrimeink welcome all opinions. That being said I can say that in 21 years of prosecution I can't think of one case where I honestly believe that the prosecutor was going for a win in the interest of self promotion and knowingly sought to convict an innocent person. Are there bad apples in every profession? Probably----- but I haven't seen anyone in my office willing to do that and I hope that I never do.

I've heard Nancy Grace actually say on air that if she thought she could get a conviction she wouldn't allow her own doubts to deter her from trying.

In two of the cases I mentioned the accused were prosecuted and convicted despite the evidence, not because of it. In the third, Gilbert Cano, given unassailable evidence AND a full confession but no public interest, the same prosecutors pled the accused down to 2nd degree (for a double homicide) and negotiated a 17 year parolable sentence. It would be a brave person who would try to prove that the politics of these cases did not supersede any evidence that was available.