Triple Juries: Quite a Trial

by Donna Pendergast

As every prosecutor or defense attorney knows there is nothing in the criminal trial arena more stressful than a murder trial. Unlike other types of cases, in a murder trial a life has been taken, and the stakes don't get any higher. For both sides, you have one chance to get it right. There are no "do overs," and it is up to the attorneys to see that justice is done. For the prosecution, a failure to adequately address an issue that the jury later finds to be significant or a miscalculation on how the evidence should be presented to a jury, and a person who has committed a heinous crime can go free. For a defense attorney, their clients' freedom rests in their hands. For both sides, this means that extensive pretrial preparation is necessary to make sure you know your case inside out before you ever enter a courtroom.

Murder trial preparation for a prosecutor can be exhausting. Speaking from 24 years of experience, hundreds and, on occasion, thousands of hours may be required in advance of trial to read all of the police and evidence reports, research and analyze issues, consult experts, develop trial strategy, and prepare for the issues that the defense will likely raise. All of that must occur before a prosecutor ever begins to prepare a theme for trial or draft an opening argument that will effectively explain the issues in the case and lay a road map for what the prosecutor expects to prove to the jury. A prosecutor must also be prepared to summarize their case effectively for a jury in a closing argument. Preparation for a great closing argument begins during pretrial strategizing and continues throughout the entire trial.

Now, imagine having to do that same preparation for multiple juries--yes, multiple juries. It is not unusual for a prosecutor to encounter a situation where multiple trials or multiple juries are necessary in one case to protect the constitutional rights of a criminal defendant. This situation usually arises when a criminal defendant has made a statement to the police in which he implicates a co-defendant in some manner. Under the theory that a co-defendant has a motive to implicate others in an effort to make himself or herself look better at the expense of others, case law precludes using a defendant's out-of-court statement against other defendants in trial in most circumstances. This means that certain testimony can only be heard by a jury considering the culpability of a specific defendant who made the statement.

When the situation occurs that certain statements or testimony is only allowable against one defendant, the judge has to make a decision on whether he will hold multiple trials, or have two or more juries in one trial. A court often opts to use multiple juries in one case in the interest of saving time and sparing the witnesses the inconvenience of having to testify multiple times in multiple trials. Sparing a victim's family from having to go through the rigors of a trial multiple times is also an important consideration.

I have tried multiple two-jury cases. A two-jury trial is a logistical nightmare for a court and courtroom staff. Arrangements have to be made for dual courtroom seating and dual jury room accommodations in courtrooms designed for one jury. Courtroom security for multiple juries has to be addressed, and the court has to make legal determinations on what evidence can be heard by which jury in advance of the trial. Trying to keep it all straight is a difficult task for the judge, courtroom staff and the attorneys involved. Because of the complexity of the preparation required, if more than two juries are required, a judge will usually opt to do multiple trials with one or two juries in each.

In most jurisdictions, having three juries going at the same time is never even contemplated. Trying to make arrangements to accommodate three juries and keep rulings straight as to which jury can hear which evidence is an almost insurmountable task with three juries. However, on rare occasion in large jurisdictions like Wayne County, Michigan, which services the City of Detroit, a three-jury trial will take place.

I have tried one case with three juries going at the same time. Trust me; it's enough to make your head spin. Imagine having to prepare multiple opening and closing arguments and then having to argue the cases one after another to separate juries while keeping the facts straight on each and remembering not to mention what they can't hear. Since the prosecutor carries the burden of proof in a case, they are allowed a rebuttal argument after the defendant's closing argument. With a triple-jury case, that means the prosecutor gives six closing arguments in total, three initial closings, and three rebuttals--quite a feat even for someone who loves to talk, like myself.

My experience trying a case with a triple jury came in a Detroit homicide case. Three men were doing work rehabbing an vacant house for its owner. They decided to rob and murder the homeowner when he came by to check on their progress. When the homeowner arrived, he was beaten with two-by-fours and shovels, and was ultimately shot. His body was disposed of in a Dumpster that was at the curb for the next day's garbage pick up. His body would never be recovered at the city dump, despite a week-long search by detectives. The amount of garbage brought into the dump every day made finding the body almost impossible.

In the case, all three defendants made statements exculpating themselves and inculpating the other two defendants. That meant that either we needed separate trials or each defendant needed a separate jury when we got to the part of the trial where the defendant's respective statements were introduced as evidence. A "no body" case is a difficult trial to begin with. When the judge decided to do a triple jury trial, I thought to myself, "It doesn't get much more difficult than this."

I was wrong.

In a twist straight from a movie, the detective in charge of the case was arrested the night before the trial started. The allegations were that he solicited a prostitute while in a city car. The police department had no replacement to send over so I was stuck sitting at the table alone in court with no officer to coordinate witnesses and assist me during a triple-jury trial. I was forced to handle everything from procuring witnesses from the hallway to testify, to lugging the packaged two-by-fours and shovels that were evidence in the trial back and forth between the courtroom and my office. I remember grumbling to myself one day, "I'm not Superwoman," but I got through it, and all three defendants were eventually convicted.

I have had some complex and exhausting cases in my life. Out of all of those experiences, the triple-jury case remains the most physically exhausting. In every sense of the word, it was quite a trial.

Statements made in this post are my own and do not reflect the views opinion of position of the Michigan Attorney General or the Michigan Department of Attorney General.

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Getting Away with Murder - Part 2

by Stacy Dittrich

Today, in Part 2 of Getting Away with Murder, I’ll be focusing on the cases of Natalee Holloway, Rilya Wilson, O.J. Simpson, and JonBenét Ramsey. (Click here to read Part 1) Out of these eight featured cases, only two bodies have been found (Simpson and Ramsey), and only three suspects have been arrested in the murders (O.J. Simpson, who subsequently was found not guilty, Geralyn Graham, and Casey Anthony, both who are currently awaiting trial). While watching the various experts commentating on most of these cases, I hear repeatedly how difficult it is for the prosecution to proceed with charges without a body. Not so, says Assistant U.S. District Attorney, Tad DiBiase, an expert in the area of “No Body Cases.”

DiBiase has tracked these cases as far back as 1834, when seaman Maurice Fitzgerald was murdered at sea and his body was never found. However, his killers were tried and found guilty of murder. According to DiBiase, this case and 279 others in the United States (excluding ID, NH and VT) tracked through November 2008, only resulted in 25 acquittals or reversals on appeal due to the fact no body was found. His contention is that it is a high probability of a conviction without a body, and the case should proceed.

Unfortunately, it seems that some prosecutors are “gun shy.” The possibility of a not guilty verdict or the suspect walking free is too great in their eyes. In the meantime, the murderer is out on the streets free to kill again. In this aspect, I say kudos to the Orange County Sheriff’s Department in Florida for the arrest of Casey Anthony. If the evidence is there, take it and run with it.

Regardless, there are some circumstances that it would be highly unlikely any charges would come whether or not the body is found—these are few and far between. In the case of missing Alabama student, Natalee Holloway, sometimes politics plays a far greater role than a murdered high school student.

4. Natalee Holloway—Missing May 30, 2005, No Body Found.

I believe it’s certainly safe to say at this point that the Aruban government has thoroughly botched the investigation into missing American high school student, Natalee Holloway, 19, and failed her family miserably.

On Monday, May 30, 2005, Natalee Holloway was last seen alive in a bar in Aruba while on a senior class trip. There is no question that she was accompanied by then 17-year-old Joran Van der Sloot, and brothers Deepak and Satish Kalpoe (pictured right with Holloway) as she left the bar. She was never seen again and her body has never been found. In the meantime, all three men have been questioned in the case and no formal charges have been brought. The fact that Van der Sloot is the son of a prominent Aruban political figure raises some eyebrows. Apparently, his father's influence is enough to erase the fact he recently confessed to the murder of Holloway on videotape. Smoking marijuana, the Aruban authorities claimed they could not proceed as he “was under the influence when making that claim.”

According to Women In Crime Ink’s Robin Sax, an L.A. Deputy District Attorney, it is not for the prosecution to question his frame of mind—it’s up to the defense to prove he was “muddled by the wacky weed.” But, like all of the other claims and witness statements in the case, the information was ignored. Just recently, Van der Sloot was videotaped taking part in a sex ring in Thailand. Allegedly, there’s more to the tape than that. FOX News’ Greta Van Susteren claims to have in her possession more of the tape which has Van der Sloot confessing to Holloway’s murder—yet again. She offered to bring it to Aruban prosecutor Hans Mos in person, but he refused. Why? He said there is nothing on the tape that has any substance—a claim made even though he has never seen it.

At this point, Joran Van der Sloot is laughing at law enforcement in his country, and at the Americans that believe in his guilt. Unfortunately, it may take this sociopathic animal murdering another human being before he is finally caught. Either that or the Kalpoe brothers need to grow a conscious and start talking. But, the question remains: even if they do talk, and Holloway’s body is found, will they even prosecute Van der Sloot then? I think not.

This sends a clear message to parents out there: If your child is taking a class trip or vacation with friends—send them to Florida.

5. Rilya Wilson—Missing, unknown month, 2000—No Body Found.

There are some people who actually have not heard of 4-year-old Rilya Wilson, but you may have heard the story. Rilya was the foster child in Florida who went “unnoticed” by the Florida Department of Children and Families (DCF). Living at the time with foster mother, Geralyn Graham, DCF didn’t notice Rilya was missing until two years later. According to Graham, Rilya was picked up by a caseworker for a doctor’s appointment and was never returned. DCF authorities quickly established this wasn’t the case, but admitted they had “lost this child” within the system.

Furthermore, the outrageous actions of the DCF ultimately caused the resignation of the DCF chief, and news laws that require officials to track missing foster children and the supervision of caregivers.

In 2005, Geralyn Graham was charged with first degree murder in the death of Rilya. While incarcerated, she allegedly told a fellow inmate, “I killed it.” She claimed Rilya (pictured left) had demons and she dumped the child’s body in a ravine—authorities have yet to locate her remains. At this time, Graham is still awaiting trial and prosecutors are confident they will attain a conviction.

The case sparked outrage against DCF treatment of African-American foster children and is presently being used to help lobby a bill that would enact the “Rilya Alert.” Similar to the Amber Alert, the Rilya Alert would be geared towards missing African-American children within the foster care system.

6. O.J. Simpson—Found Not Guilty in the Murders of Nicole Brown Simpson and Ronald Goldman, October, 1995.

Like most, the mere mention of Simpson’s name is difficult to say without vomiting in my mouth a little. One would be hard pressed to find a person that truly believed in his innocence, especially after he wrote a full blown confession in a book years later. His arrogance and mockery were never-ending (I’ve always seen a chilling connection between the attitude of Joran Van der Sloot and Simpson . . . blech). The case in which the famed football star brutally sliced and diced his ex-wife and her friend has caused prosecutors, and defense attorneys, to tighten their belts and get their acts together for the last decade. The world’s obsession with the O.J. Simpson case is never-ending. Just recently, Simpson (pictured right) was tried and convicted of armed robbery in Las Vegas for holding a memorabilia dealer in his hotel room at gunpoint. Some say it’s retribution for getting away with murder.

As Simpson sits whining away in his jail cell awaiting sentencing, he is appealing his conviction based on the fact he is black. However, some say this is precisely the reason he was acquitted in the murders over a decade ago and that he uses his ethnicity to his benefit when suited. Black or white, most prudent people of all colors believe that this is a man who deserves to live, and die, in prison. It looks like we may just get our wish. Simpson will no longer be remembered for his impressive football career—he will forever be remembered in the graduating class of the upper echelons of crime like Manson and Bundy. It would seem that miracles in the halls of crime really do happen—The Juice has finally been squeezed dry.

It’s at long last time to throw that used-up-piece-of-fruit in the garbage where it belongs.

7. JonBenét Ramsey—Murdered, December 26, 1996—No Arrests Made.

The case that, twelve years later, still is heatedly debated on the crime blogs and media, the Ramsey case is, undoubtedly, solved in the minds of many. However, it is the prosecutor who is most important and, apparently, they don’t have a clue who the murderer is. I wrote my own theory on the Ramsey case (view it here) that sparked outrage among the supporters of John Ramsey, the father of victim 6-year-old JonBenét. Referring to someone like myself as a BORG, which I think stands for “believer of Ramsey guilt.”

Either that or they’re obsessive Star Trek fans.

The small group of supporters launches an immediate attack for anyone pointing to JonBenét’s parents as the murderers—a fact I firmly believe. No doubt several of them will make an appearance in the comments section of this post.

No one but John and Patsy Ramsey (who is now deceased) really know what happened the night of December 26, 1996. After a lengthy Christmas day, they put their 6-year-old daughter to sleep, woke up the next morning, found her missing, and ultimately discovered her sexually assaulted and dead body in the basement.

The prosecutor has since cleared the parents and believes that, someday, DNA evidence will hit on a match to the true murderer. It’s my opinion that the human race will most likely witness The Rapture before an arrest in the murder of JonBenét Ramsey. It’s a shame, but the man that brutally took the life of this small, innocent child has to look in the mirror every day and live with it.

But, if he can be so cold-hearted to commit murder he probably doesn’t care.

All eight of these cases have generated millions of dollars in movie, television, and book deals, feeding society’s hunger for a good crime story, and driving those at-home-super-sleuths into a frenzy for the need to solve. There may be several more that I didn’t touch on, but these are the ones that come to mind when I think of “crime stories.” Of course, it’s a historical fact that these cases will be replaced over the next few decades with a new class of innocent victims and barbaric heathens that will get away with murder—a sad, and frightening, fact.

I have always said during my tenure as a police officer that my job security was higher than anyone’s. Now, as a full-time crime writer, my opinion remains the same.

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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.

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