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Copyright © 2005-2006 by Jay B. Gaskill 

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Reading the Defense:

            The killing of Pamela Vitale - Horowitz

By

Jay B. Gaskill

Attorney at Law

 

Noon.

Tuesday, September 26, 2006. 

Life without parole.

 

Today the court did what the law and the facts required, and sentenced Scott Dyleski to the term prescribed by the California Penal Code for the crime of first degree murder with special circumstances.  But for SD’s age at the time of the offense, the punishment could well have been death.

 

As California murder cases go, this was an exemplary trial, accomplished in a reasonable time (final outcome in less than 12 months from the October 15, 2005 crime) and without any substantial legal error. 

 

Yes, there will be an appeal. 

 

On the face of it, I have seen no reason for the prosecution, the victim’s family and all the others concerned with the administration of justice to worry about this conviction being overturned.  In all likelihood, both conviction and sentence will be affirmed by the California Court of Appeal in late 07 or early 08. The California Supreme Court will decline to hear the matter, and that will be that. 

 

But the implications for the rest of us will linger long after, like the smoke and dust I smelled in Manhattan on 9-12-01. 

 

Because this was no ordinary crime. 

 

Scott Dyleski was the canary in our mine….

 

Monday, September 25, 2006.

 

Tomorrow, Scott Dyleski will undoubtedly and deservedly be sentenced to life in prison (without parole eligibility) for the special circumstances murder of Pamela Vitale. [I will recap the sentencing and appeal issues that day and following.]

 

I wish I could say with confidence that this kind of savage, sick killing was so unique that it is unlikely to recur.

 

All the evidence suggests to the contrary.

 

This was the “first blood” of young serial killer “wannabe”. 

 

I believe that the dark cultural milieu that generated SD’s malevolent mindset continues to attract – and warp – other susceptible minds.

 

Hence: My last postings on the Dyleski Case will complete my discussion of the “WHY?” question.

 

 

 

That “WHY?” discussion began with My Almost Last Posting (Saturday, September 23rd, 2006). 

 

My NEXT observations immediately follow below.

 

[1 of 2]

Dyleski’s Capture and Your Child’s Rescue

 

If you need a primer about why Scott Dyleski’s savage murder of Pamela Vitale on October 15, 2005 was no ordinary killing, read my earlier postings below.  For the reasons I’ve outlined over the last 11 months of commentary, this murder had the distinct signature of actual, existential evil.

 

If there is any lesson for parents from Scott Dyleski’s case, it is this: The corruption-risks that life outside the home presents to our children are not limited to “drugs and thugs”.

 

The lesson of SD’s case is that there are malevolent ideas, images, and themes out there that are as dangerous to the developing mind as biological pathogens are to the developing body. These “malogens” (my term) are propagated in music, on the internet and by personal contact.  Often, they behave as opportunistic infectious pathogens seeking fertile breeding grounds. Sometimes they form up in nodes, attacking and overtaking whole subcultures, most often the teen subcultures (as they are among the most under-protected targets in our society).

 

We can recognize these cultural nodes by certain telltale signs: look for the celebration of violent, even homicidal imagery, and by a nihilist, even anti-life ethos. 

 

It looks very much like the Lafayette teen “Goth” subculture (using that term superficially) may have contained or connected with such a “malogen” infested node.

 

How can this happen? What are the risk factors? What are the defenses? Can this bizarre suburban killing be dismissed or marginalized as just another kind of trouble that those crazy kids get into when they do drugs?

 

Let me take up the last question first.  Drugs (meaning all the illicit, addictive controlled substances from marijuana to brain-damaging crystal meth.) can become the “loss leader” entry-lure into a criminal sub-community or (worse still) into one of the “malogenic” social nodes I’ve just described.

 

I’ve heard credible reports of a well embedded drug sub-culture in the Lafayette area.

 

Here is the significance to Dyleski’s situation: Drugs weaken the moral immune system. Of course by “drugs”, I’m referring to the common illegal addictive psychoactive chemicals.  There are no “smart guy” exceptions to this rule.  Lawyers and other well educated professionals are equally susceptible to the moral corruption effect.  It’s just that many well healed drug users are better able to conceal the character degrading effects of long term addiction.

 

But addictive drugs, as such, are not really the core threat.  The deeper problem raised by young Dysleki’s fall into actual evil is the prevalence of the anti-life ethos, the “malogens” if you will, that operate much as a moral virus, propagating within certain vulnerable sub-cultures.

 

Software engineers construct firewalls to protect our computers for viruses. 

 

Here is the problem facing the current generation of parents:

 

How do we help maintain a robust moral firewall from the torrent of “malogens” that will inevitably confront them the moment they surf the internet or venture outside the protective envelope of the home?

 

No firewall is perfect, but any firewall trumps sending the new generation into the storm naked where bad ideas and bad “vibes” are seductively wrapped and promoted. 

 

All anti-life, anti-meaning, anti-intelligence content, however communicated is a potentially lethal soul poison.  Some young developing minds are more vulnerable than others.  

 

In a nutshell this is the firewall: A robust, life affirming, intelligence affirming moral ethos.

 

You just can’t pretend it into existence.  It needs to be installed.  That project normally takes a parent or mentor about 12 years.

 

A cautionary note: even a well constructed firewall can be temporarily hacked through by drug addition. Watch for my Appendix, at the end of my Last Dyleski Posting on 9-26.

 

You can’t install the firewall into your children (or students):

(a) If you, yourself don’t have one;

(b) If you permit your child (or student) to live a long time in effective isolation from a supporting community of “firewall sharers”.

 

 

If you are firewall deficient, get busy fixing that deficiency. 

 

So how do you find and install your own firewall? 

 

Remember the two primary touchstones of a legitimate moral tradition:

Affirmation of Life and

Respect for Reason (i.e., the faculties of Conscious Intelligence).

 

Start with a strong ethical tradition (a religious one works, but there are others as well) that honors both of these core values. 

 

Find the niche within that tradition that best fits your nascent “better self”; locate a supporting community and join in a mutually supporting dialogue with them.

 

As you become grounded in morality, a number of things will begin to snap into alignment. Your children (or students) will notice.

 

In this way, our children are like the dogs that can smell fear: our children’s moral olfactory organs can smell hypocrisy and moral ambivalence a mile away.  However they might complain about “rules, our children respect and thrive in an authentically moral environment, especially one in which the adults (even as we may appear to be flawed and imperfect) still love our ideals enough to measure ourselves by them and strive to instill them in our children.

 

As I write this, Scott D awaits a sentence to prison, and my wife, just home from a long, scary stay in the hospital, is resting nearby. [Prayer works.]

 

One must never forget those who were taken away by evil, as Pam V. was, and we must not forget that what we do here and now will affect the fates of others like her in the future.

 

As we arrive at the day of Scott Dyleski’s sentencing; my discussion of the implications and lessons continues …

 

[2 of 2]

 

It appears that the 2005 murder rate in the US (and in the Bay Area) sharply increased in 2005 and that the trend continues in the current year. Chuck Wexler, executive director of the Police Executive Research Forum, as recently quoted in the LA Times, said - “We’re at the front end on an epidemic.”

 

There are limits to the medical-epidemiological analogy where murders are concerned. People choose to kill other people; the propensity to do that is primarily a moral disorder, not an involuntary response to a disease, like a fever.

 

If murder were a real epidemic, we might expect to see an increase among the clergy and college professors. 

 

But the increase is limited to certain other sub-groups in the population, the violence prone among us. 

 

While it is certainly possible that the thug population, as a percentage of the general population, might have increased, another explanation is more likely: Some of the thugs and other “V-prone” types who were deterred in 2004, were less deterred in 2005 and 2006. 

 

One dirty little secret that I’ve discussed in the press and elsewhere on “The Policy Think Site”: The occasional use of the ultimate punishment for murder, the death penalty, does in fact operate to deter some thugs, some of the time, and this deterrent effect can be measured.  In March, 2005, the US Supreme Court in Roper vs. Simmons, outlawed the death penalty for all persons under the age of 18, no matter how heinous the crime. The other dirty little secret: drug dealers and other criminal businesses prefer using minors as the assassins of choice because these little killers can’t get the death penalty.  By now, I am reasonably certain that a careful review of the numbers will show a significant increase in murders committed by minors in the US, post Simmons, especially in those jurisdictions (like Texas) where execution was a possibility, now ruled out of bounds.

 

Caveat one: I’m not suggesting that a jury would have likely meted out the death penalty for Dyleski (nor even that it should have), but I am suggesting that the possibility of imposing that penalty (say for sophisticated killers 16 and over) will save some innocent lives.

 

Caveat Two: Nor am I suggesting that Scott Dyleski would necessarily have been deterred by a more severe possible penalty (though a greater appreciation of the risk of getting caught might have stayed his hand). And to be fair, California had ruled out executing underage killers long before the Roper vs. Simmons decision made it national policy.

 

Dyleski’s motivation is interesting because it suggests strongly that he had in fact switched sides, not just in the classic criminal sense, but in the larger sense that involves embracing an authentically evil ethos. This sort of thing is much more dangerous because it is much less easily deterred.  Real serial killers tend to continue until they are caught.

 

I am personally convinced that the general culture (with laudable exceptions) is uniquely vulnerable to the “malogenic” forces I’ve described above.  Unless society does a better job of erecting, installing and maintaining a robust moral firewall, we are in for some frightening times.

 

As a Judeo Christian, with other friends well rooted in the firmer parts of the Buddhist tradition whose moral grounding I deeply respect, I find the post-modern New Age tendency towards “spiritual hedonism” without a firm grasp of bedrock moral principles, to be an invitation to social disaster. 

 

Mrs. Fielding, you will recall, was holding herself out as a kind of psychic who could perform long distance “DNA repair”.  Naturally, I don’t know SD’s Mom, and I stand ready to be corrected about her, but the scraps of biographic information (or misinformation) that have so far leaked into the public square about her paint a disturbing picture of family life.  Frankly, her New Age moral orientation sounds much more “woo-woo” ethereal than Torah based.

 

It is self evident that the moral firewall installation failed where her son was concerned, or was never systematically attempted in the first place.

 

The firewall every child desperately needs is a robust, life affirming, intelligence affirming moral ethos, preferably well rooted in deep human tradition.  How is it best transmitted between the generations? 

 

The answer is deceptively simple: We install and maintain the moral firewall against evil by doing three things (as parents, teachers, mentors, exemplars) as well as we possibly can. We strive to:

 

  • Be Good Moral Examples;
  • Keep and Promote Constructive Moral Associations;
  • Do Effective Moral Training.

 

Note, I did not say, “we do exhortation”.  To merely exhort -- “do as I say” -- is an appeal to brute authority, yes, often necessary with a small child (as in “Get away from there!”), but mere exhortation is far from sufficient as an effective moral training program. 

 

How is the moral firewall against evil nurtured and sustained?

 

  1. By maintaining a program of study and reflection in one or more of the deep wisdom traditions. Beware any tradition that attempts to deny the reality of evil or undermines the value of reason and conscious intelligence.  [Note: This is an imperative: We must protect our capacity for reasoning, conscious intelligence; hence this is one of several reasons that addictive, mind-numbing drugs are dangerous.]
  2. By engaging with a living, morally supportive community. 
  3. By connecting (through study, reflection, meditation and yes, prayer, if that works in your world) with the Ultimate, whether you see this as Ultimate Truth, Ultimate Moral Center, Ultimate Being, or all three.

 

Honoring the Touchstones

 

Recall the two touchstones of the great ethical traditions:

 

(1)   Affirmation of Life;

(2)   Respect for Reason (i.e., for the faculties of human conscious intelligence).

 

As parents, mentors, teachers and neighbors we are called to pick (or reconnect with) our moral tradition carefully; then to honor, cherish and teach it forever….

 

 

Take this away

 

If Scott Dyleski’s crime and Pamela Vitale’s courageous and valiant fight for life (ultimately leaving the evidence trail that stopped this serial killer in the making) are to have meaning for us, these are the lessons.

 

Take heed that Pam did not die in vain….

 

JBG

 

ONE SHORT

APPENDIX:

Why Drugs Are More Dangerous Now Than Ever

 

This is a pet topic of mine. Addictive drugs are more harmful in the current morally bankrupt popular culture than ever before. For the case against rampant drug legalization, go to my article at http://www.jaygaskill.com/narc.htm .

 

From a parental point of view, the takeaway point is that addictive, illegal drugs are character poison, some more toxic than others.  For the addict, there are essentially only three paths, all downhill:

 

  1. Jittery, potentially violent, eventual flameout.  Brain damage a strong possibility.  Methamphetamines and chemically related “uppers” start this path.
  2. Flaky, potentially criminal, eventual drop out.  [Marijuana and its derivatives.]
  3. Sedated, potentially desperate, eventually die out. [The opiates and derivatives.]

 

In SD’s case, we can detect the strong cultural link between a permissive drug sub-culture and a “malogen” infested node that rejoiced in lyrics like these:

 

Dead (Death Wish Mix)

“… life for you is a broken dream and i'll spout it out your sick dream has come to me now for the end we'll always pretend yeah where do you go what do you want it's nothing at all feel the machines implanted in your thoughts mangled nervs twist and turn form new paths in your brain pull out all the wires and push them into your heart yeah push it into your heart yeah push it into your heart…so shoot it out your sick life has come to me your life ends you'll never cry or breath again”

 

In all three downward paths I’ve just sketched, character is the first casualty of addiction – even mild addiction.  Fidelity is transferred to a chemically induced state.

 

The capacity for true fidelity is crippled or lost altogether: The early character casualties include:

 

  • Honesty (truth fidelity);
  • Loyalty (personal fidelity);
  • Integrity (self-fidelity).

 

These three virtues, when linked to life affirmation and the respect for the intact, un-drugged, rational mind, can form an invincible firewall against life’s malogens.

 

JBG

Alameda, CA 9-25-06

 

 

 

Why I Followed THIS Murder Case:

 

On October 15, 2005, the body of Pamela Vitale, wife of criminal defense attorney, Daniel Horowitz, was discovered in the couple’s trailer home in suburban Lafayette, California. My commentary started in this space on October 20, 2005. Because Dan Horowitz was a Court TV celebrity, his agony was displayed on the evening television news, along with helicopter shots of the property. The Vitale-Horowitz trailer was a temporary dwelling on the construction site of the couple’s dream home.

 

Daniel’s wife had been severely beaten and was stabbed a number of times. An abdominal stab wound was inflicted and other stab wounds in her back, probably inflicted post-mortem. Pot shards were found on her head - apparently left when a pot was shattered with such force that her outer skull was exposed. A “Satanic” symbol was carved into Pamela’s back by her killer, a crudely formed “H”.  The coroner opined that Ms. Vitale was still alive during that carving.

 

The prime suspect, Scott Dyleski was charged with Pamela’s killing, and was tried as an adult for the crime of first degree, special circumstances murder. Scott Dyleski was found guilty as charged by a jury. 

 

Shortly after the arrest, I made this observation:

 

Dyleski’s case may well present us with the poster child for what is dreadfully wrong with the current non-religious culture, a milieu in which children are too rarely raised in authentic reverence for the deep ethical traditions that have held up earlier generations. 

 

Think about it: In an earlier era, even the bare suggestion that a homicidal minor was involved in some kind of satanic activity would have been extraordinarily sensational.  Something in the general lurid category of “two headed alien’s body found in ditch”. Sadly, the hints of a satanic connection (that I assume to be true here for purposes of this discussion, only) produce a different reaction:  “Oh, one of those again.”

 

So common has the cultural deterioration become that we are no longer surprised by evil in high school.

 

In October 2005, I promised to deal with the “why” issues in later postings.  That time is now. My reasons for following this case are your reasons for studying it. 

 

We now know in the legal sense that which many knew in the common sense: On October 15th, 2005, Scott Dyleski, a 16 year old male from Lafayette, CA, who affected the so called “Goth” style, brutally murdered an innocent woman, loved by many, named Pam Vitale, and left, in her back, a bizarre signature…..

 

From all accounts we also know that Scott Dyleski was effectively disconnected from the great moral/ethical traditions that have sustained civil society, yet was strongly connected to an amoral and anti-moral subculture -- on the web and in elements of his surrounding self-chosen community.

 

Goth as superficial dress and style, aping the dark side like a group of teens on Halloween is not the issue.  Dyleski’s version was the real thing, and that is why we must all now pay attention….

 

FOR Wednesday, August 30, 2006 and Friday, September 1, 2006, SEE BELOW ↓

 

Why? (a)

 

Why did Scott Dyleski, a 16 year old suburban male, brutally murder Pam Vitale and carve a double armed cross symbol in her back? Then why did he attempt to eviscerate her abdomen?

 

Don’t tell me this is some ordinary crime.

 

Post conviction, we have reason to believe that Scott Dyleski was particularly receptive to the morbid and warped elements in the local teen culture, and that he found in that stylistic darkness, an “art” that contained the precursors and suggestions of evil.  

 

You don’t have to believe in some medieval version of Satan to understand the reality of evil in the modern world. In any reasonable sense of the term, the language and images that Dyleski apparently found so attractive suggested real evil. Too many of the graphic and musical narratives that enthralled him were anti-life urges. Bleak calls to despair and meaninglessness are as harmful to the teenage mind as a computer virus to your hard drive. And these images and narratives were too often coupled with the symbols of murder and mayhem. Not to put too fine a point on it, they were invitations to evil.

 

I grant that this kind of analysis, especially the use of the “E” word, tends to make “modern” minds a little uncomfortable.  And the crime itself did not?

 

Not every teenager is susceptible to this crap.  Why was Scott? And not every neighborhood contains a cesspool of satanic followers.  Did Scott’s? Are there others? The internet seethes with this stuff. What was going on in Lafayette?

 

And why is any of this important? 

 

No parent of a killer, mugger, burglar or robber wants to feel responsible for the acts of his or her child.  Yes, responsibility does shift; the new generation gets to carry its own guilt. The sins of the children are not those of the parents. 

 

But… 

 

All parents are at least minimally responsible to prepare their children for the challenges of the world.  As part of that preparation, the parent generation needs to impart a robust moral code to those who follow. 

 

And why is any of this important? That crucial intergenerational moral transfer probably did not happen in Dyleski’s life. And it is too often not happening in the modern family setting.

 

 

Why? (b)

 

Friday, September 1 and Saturday, September 2, 2006

 

Something went gravely wrong in Lafayette, California.  You might think of this as finding just one termite in your foundation.

 

There will be a Why (c).

 

So watch this space for updates.

 

It’s never just one…

 

To aid us in untangling the “Why” discussion it now becomes critically important for the reporters assigned to this case to talk to those best positioned to shed light on the influences, Satanic and otherwise, that formed the disturbed, malevolent  mind that created a “To Do” list that included killing innocent victims, chopping up their bodies and burying their remains.

 

 

A Quick Case Review – In Case You Missed It

 

The Prominent Bay Area criminal defense attorney, Daniel Horowitz, and his wife, Pamela Vitale, bought land in Lafayette, CA, a bedroom community in Contra Costa County, just inside the band of coastal hills that form the geological edge of the San Francisco Bay.  They would live on site while a large home was constructed for them.

 

For the most part, the Lafayette area is hilly, wooded and affluent.  The building site (as anyone could see from the helicopter shots on television) was a generous swath of level land in a hilly setting. The couple’s dream house-to-be was surrounded by trailers, building materials, and the modest trailer home that Pam and Danny would live in during building. 

 

I met Danny on a number of occasions over the years.  As a lawyer, he earned the affectionately bestowed “Hurricane Horowitz” title early on in his career.  You could always count on Danny to inject an amazing torrent of litigation energy into a case. 

 

When Pam’s brutally murdered body was discovered on October 15th, 2005, the media immediately zoomed in on the grieving husband. The televised pictures of Danny, torn by grief and pain, were hard for me to watch.  

 

The prime suspect, Scott Dyleski, sixteen years old, was arrested a few days later and was charged as an adult with Pamela’s killing.

 

Biographical information and crime details began to surface early. Dyleski was implicated in utilizing stolen credit cards to buy grow lights for marijuana cultivation; the scheme linked him to the Horowitz Vitale site through his use of the stolen credit card numbers and unauthorized delivery addresses..

 

He stands convicted of beating and stabbing Pam Vitale to death, using a rock, a flower pot and a knife he brought with him.  He carved a strange symbol on the victim’s back then cut open her abdomen. 

 

The coroner’s report revealed the chilling details: Pot shards were found on Pamela’s head, left when a pot was shattered with such force that her outer skull was exposed; she was repeatedly beaten on the head by a hard object like a rock, not quite enough to crack the skull, but cumulatively enough to kill, various stab wounds were located in Pamela’s back, but (as distinguished from the savage “H” wound) were probably inflicted post-mortem.

 

Pamela was not yet dead when the H symbol was carved, though it is anyone’s guess whether she could still have been conscious.

 

Only the Scott Dyleski knows what symbolism was actually intended by that horrible carving.  But it is clear enough that some symbolic meaning was meant – this mark was not the random gibberish of a drooling idiot, but the calculated sign of someone who was into the dark side. 

Witness David Curiel testified that he had moved into Dyleski’s room after police arrested Scott.  [Curiel’s brother was the owner of the home where Scott had lived with his mother, Esther Fielding.]  David called the police after he discovered Scott’s chilling “to-do” list as he cleaned out a dresser drawer Dyleski had used. The list included the names of people, with their personal information.  The list read in part: “Knock out/kidnap , question, keep captive to confirm PIN, dirty work, dispose of evidence (cut up and bury)”.

Mom was not a willing witness against her son.   I believe that Mrs. Fielding (Esther) discovered Pam Vitale’s information on a list of credit card numbers kept by Scott in his backpack, but at the preliminary hearing, she recanted.  Aware that suspicion for the Vitale murder would fall on her son, Mrs. Fielding became concerned that he might be keeping incriminating evidence. She told Scott: “I’m giving you one chance to get everything out of your room.”

 

Mrs. Fielding originally told authorities that Scott had placed the duffle bag, containing the suspect clothes, in her abandoned Van, but she backtracked: “I think he said something about old clothes.” Mom later spotted the bag (in the company of a neighbor) in the van, but simply left it there.

 

Mrs. Fielding admitted burning a book and some disposable gloves belonging to Scott. “It was a panicked reaction.”. The box of unopened gloves and a journal were burned by Mom at the home of her sister, Marjorie Fielding in Bolinas. At the same time, Sister Marjorie’s boyfriend, Robert, also burned Scott’s book, “Mass Murder.”

 

Sister Marjorie eventually persuaded Scott’s Mom to turn over Scott’s knife, as well as some other belongings. 

 

Scott’s recovered duffle bag was subjected to a detailed forensic examination. It contained a bloody shirt, a black raincoat, a glove and a ski mask.  The DA’s forensic expert linked blood stains on the ski mask found in the duffle bag in Mrs. Fielding’s abandoned family van both to Scott and the murder Victim, Pamela Vitale. 

 

There was other evidence:: (a) The cross symbol carved in Ms. Vitale’s back resembles drawings among Scotts personal effects and a CD album cover; (b) Scott’s computer was used to order a “HawkBlade” knife; and he apparently depicted himself online with dark imagery (e.g., “Android Messiah” and a skull icon, among others); (c) artwork and poetry signed by Scott with heartwarming sentiments like “live to kill”.

 

The jury has found Scott Dyleski guilty on all counts, burglary and special circumstances murder. His sentencing hearing (with a probable life in prison without parole outcome) is currently scheduled for September 24th.

 

THE CLUES TO THE LARGE “WHY?”

 

As of the jury verdict, the Gag Order no longer applies.

 

Questions and clues dribbled out over the course of the media coverage, staring with SD’s October 2005 arrest. 

 

I have identified many them as they surfaced. 

 

A Partial Review:

 

About the Scene:

 

When Dan Horowitz and Pam Vitale bought land in Lafayette, CA, they probably didn’t know that the surrounding area had a reputation. Reputedly it was home for drug dealers. I am in no position to verify that rumor, but realtors tend to know these things.  Most drug dealers prefer to live in seclusion, far from the drug markets that support them. 

 

About Scott:

 

We heard no early suggestion that Dyleski’s mother was herself not a law abiding person. But it is clear that Scott had some negative role models to follow.  What were they?

 

Established drug dealers tend to even scores and settle disputes by deadly means.  But they tend not to carve Gothic or satanic symbols in their victim’s backs. No, Scott Dyleski betrayed no such ordinary motivation.  This killer was in the thrall of something much darker and more malevolent than ordinary greed. 

 

The Mark of Satan?

 

The mark carved into Pamela Vitale’s body by her killer has been variously described as an “H” or as a “double T”, but both descriptions could easily depict the same thing.  One correspondent has asked me whether the killer carved the “Cross of Lorraine” onto Ms. Vitale’s back.  That emblem represents two crosses sharing the same center pole; and seen on edge, the symbol makes a credible “H”. 

 

Only the killer knows what symbolism was actually intended.  But it is clear enough that some symbolic meaning was meant – this mark was not the random gibberish of a drooling idiot, but the calculated sign of someone who was visiting the dark side. 

 

Ancient alchemists used this symbol to denote a powerful poison. 

 

In Medieval France, certain conspirators against the regime used the symbol, as the “Cross of Lorraine”, a heraldic motif that depicted both the “arms of Christ” and the “arms of Satan”. Hence the “Satanic” overtones.

 

Since it was the killer (and not some innocent bystander) who inscribed this symbol, we can readily and reasonably conclude that its intended meaning was malevolent.  Just what specific malevolent meaning did it hold for the fevered mind of Pam’s killer? We can only speculate at this point.  But given the macabre nature of the whole event, it is hardly out of the ballpark to use the word “Satanic” at least in the metaphoric sense.

 

Given the signature nature of the killing, it should hardly come as a surprise that, at some point, the killer had adopted the dress code of the “Goth” subculture.  Of course, most teenagers who dress like a character in an Anne Rice vampire novel are not killers.  And, yes, there is a lot of understandable defensiveness about the topic, driven by the prevailing multicultural ethos taught in school and the general observation that teens have been dressing and acting out in rebellious ways ever since we adults started keeping track of such things. 

 

But there are extreme and very disturbing examples, such as the 1996 murders committed by a “Goth” teenage male in Kentucky who played Dungeons and Dragons, was upset by his mother’s divorces, walked cemeteries at night pretending to be a 500 year old vampire.  This eventually led him to found to a vampire cult, commit two senseless murders and receive a death sentence handed down by a New Orleans Judge.

 

I have no reason to suspect that Pam’s killer was acting under the influence of some shadowy cult figure. But I do believe that the dark imagery and symbolism of some anti-life subculture (however it ends up being described) were operating in the web of this killer’s homicidal motivation. 

 

This event illuminates something much more serious than one more Charlie Mason cult. In this early 21st century cyber-culture, susceptible young men and women no longer have to fall into some sinister cult, or join some criminal cohort to become infected with evil.  All sorts of bizarre and ultimately malevolent ideation, fantasies and dark power-ideologies are floating through our culture, just below of the radar of most adults.

 

These ideas act like an odorless and colorless toxic gas that primarily affects the emotionally, morally and intellectually vulnerable among us.  Regrettably, that vulnerable population includes a disproportionate number of teenagers.  And this presents the grave and growing problem for modern parents: In the current culture, those whose moral compasses have been damaged by the disempowerment of religious and other robust ethical traditions include more young people than ever before.  This social problem will not soon go away.

 

The Address of Satan’s Followers?

 

Moraga is a high end Contra Costa County residential community not far from the Vitale death site. In September, the Moraga police investigated an illegal shed and tree house, apparently placed there without the owner’s knowledge.

 

In a Blair Witch Project moment, investigators were startled to find a recently decapitated calf’s head and a hand saw (with bits of fur) nailed to the shed wall.  Recall one of the pictures that Scott Dyleski made for art class: It depicted a human or humanoid figure with an animal head holding two severed human heads, one head in each hand. 

 

His “morally neutral” art teacher gave him excellent grades.

 

Prior to the gag order, Sheriff’s investigators had disclosed some interest in the site because of its Satanic implications, but indicated they had ruled out any connection to the Vitale killing. We heard no more about this at trial.

 

Scott and His Fascinations

 

Recall the Cross Examination and Redirect of Scott’s girlfriend:

 

Defense question: “Is a lot of Scott’s art similar to Velvet Acid Christ art?” [Velvet Acid Christ is apparently SD’s favorite Goth rock band.]

 

Answer: “Yes.”

 

Here’s what the DA was not allowed to do with this.

 

Sample Lyrics:

 

Pray For Life

“do you pray for life do you kick and scream …now i let go of the flow in my heads i see you die my vision make me want to cry forever lost in time spinning twitching losing control the rage of existence shooting my soul the crazy deeds of society batter my mind kill everything the edge of knife splatters my life kicks me in the head and leaves me dead for reason's unknown the clock spins backwards reversing time and space no time is left to contemplate pray for life pray for life when souls are tortured life is a mess and everything is just your best as always lost in dreams and visions i let go of the flow in my head i see you die goodbye goodbye goodbye spinning twitching …”

 

Dead Tomorrow

”Don't you understand me? …All my life waiting for the answers to these dreams alone of the knife that's cutting from my life… Dead Tomorrow, dead tomorrow, You'll be dead tomorrow
Dead Tomorrow, You'll be dead tomorrow, Dead Tomorrow…”

 

Dead (Death Wish Mix)

”… life for you is a broken dream and i'll spout it out your sick dream has come to me now for the end we'll always pretend yeah where do you go what do you want it's nothing at all feel the machines implanted in your thoughts mangled nervs twist and turn form new paths in your brain pull out all the wires and push them into your heart yeah push it into your heart yeah push it into your heart…so shoot it out your sick life has come to me your life ends you'll never cry or breath again”

 

I do not presume the role of art critic here.  Whatever the poetic merit of these lyrics, their impact on a loopy, mixed-up teenage male with “issues” was gravely unhealthy, and -- given Scott’s sufficiently receptive mind -- actually malevolent.

 

Defense Question: “You ever see him fly into a rage?”

Answer: “No” He is “calm and collected. He didn’t lose his temper.”

 

As I recall, Jack the Ripper and other serial killers were reportedly methodical and cool about their “craft”.

 

The DA asked Reddy whether she had discussed God and the devil with Scott. Yes, she answered.  Scott apparently believed in both and saw good and evil in each.  That was manifestly not an innocuous answer.

 

During her redirect examination by the prosecution, Dyleski’s girlfriend looked at some of the defendant’s artwork, and identified the two armed cross or “H” figure.  It was Scott’s symbolic signature. 

 

We don’t need to hire one of the characters in Dan Brown’s “DaVinci Code” to uncover the secret mysteries here.  I doubt that young Dyleski was aware of all the history associated with this particular symbol.  [For example, a simple form of the character is used in botany to this day as a symbol of a very poisonous plant.] But I am convinced that he inhabited an anti-moral universe in which this symbol represented something dreadful. The key – as far as this killing and the underlying mental state of the killer is concerned - is the confusion and intermingling of good and evil in a single holy figure.  This confers psychological permission to do dreadful things.

 

Some Informed Speculation

 

Dyleski’s reported taste in music and his other dark predilections make me strongly suspect that he was familiar with the “industrial noise” musician Boyd Rice.  Mr. Rice, who was made a High Priest in the Church of Satan (founded by the nut case Anton LaVey) and wears a version of the two armed cross, is a stone cold misanthrope.  His “think tank”, the Abraxas, is said to promote the following ethos:

 

“The strong rule the weak, and the clever rule the strong”. 

 

This might be an accurate description of the social climate in the nation’s capital, but it is not a moral sentiment.  This is the nihilist’s creed.  Moreover Mr. Rice and followers apparently support human depopulation by any means necessary. Rice’s followers are told that they transcend good and evil. That’s at least half true - the good has certainly been “transcended” (in the left-behind sense).

 

Whether SD inhaled this noxious stuff directly, he clearly sniffed something like it. The teen culture teems with this kind of thing.  These notions are actually evil in my moral universe.  They operate like a moral virus, infecting those with the most compromised immune systems. Modern teens, especially those raised in the New Age culture, have compromised moral immune systems.

 

[A note: I’ll return to this theme again as the full picture emerges.  But I want to stress that in my moral universe, people are not automatons, sleepwalkers at the mercy of cultural forces.  They are accountable as moral agents.]

 

The key of all these half baked, anti-life ideas is the tendency to blend good and evil, obscuring their differences.  As Rice has written:

 

“Interestingly, the gods mentioned herein seem to be viewed as co-equal, with the ruler of the underworld being called upon in the same breath as he who created the Earth and heavens. In this context, Jesus (the “demon of the dead”), although being conjured, seems to be an intermediary between man and the gods.” 

 

If you’re curious about this dark subculture (and every parent should be), you can learn more about this twisted nonsense at http://www.thevesselofgod.com/home.html .

 

Scott’s Mother

 

Was she the Poster Mother of the New Age or just another soft hearted Mom?

 

Someone here profoundly failed a deep obligation shared by all parents. Mom and Dad may screw up parenting on a number of fronts – we all are flawed in some way – but parents above all else must protect their children from evil influences. You’d think that such an important task, at least in broad outline, would be a no-brainer. 

 

Let’s review what the admittedly sparse record tells us about Mrs. Fielding’s attempts to protect her son from the consequences of his actions:

 

·        Mrs. Fielding (Esther) apparently discovered Pam Vitale’s information on a list of credit card numbers kept by Scott in his backpack, but at the preliminary hearing, she recanted: “I don’t think I saw Pamela’s number.” We’ll hear more about this.

·        Aware that suspicion for the Vitale murder would fall on her son, Mrs. Fielding became concerned that he might be keeping incriminating evidence. She told Scott: “I’m giving you one chance to get everything out of your room.”

·        Mrs. Fielding originally told authorities that Scott had placed the duffle bag, containing the suspect clothes, in the abandoned family VW Van, but she backtracked: “I think he said something about old clothes.” Right. Mom later spotted the bag (in the company of a neighbor) in the van, but simply left it there.

·        Mrs. Fielding admitted burning a book and some disposable gloves belonging to Scott. “It was a panicked reaction.” No doubt the disposable gloves were for Scott’s charity work. The box of unopened gloves and a journal were burned by Mom at the home of her sister, Marjorie Fielding in Bolinas. Really, are we to think that no one peeked first? At the same time, Sister Marjorie’s boyfriend, Robert, also burned Scott’s book, “Mass Murder.” No doubt the DA can find a replacement copy on Amazon. Sister Marjorie eventually persuaded Scott’s Mom to turn over Scott’s knife, as well as some other belongings. 

 

Because she warned Scott to get away from the police; and because she participated in burning or otherwise hiding, denying or obfuscating incriminating evidence, we can reasonably conclude that Mrs. Fielding was part of that “morally neutral” mindset that saw nothing particularly wrong with her son’s dark predilections.  I grant that she noticed a change in Scott’s emotional outlook following his sister’s death (apparently via a drunk driver); she contemplated but did not follow through on getting him therapy.

 

And I also must note that she apparently did nothing serious to react to his extraordinary morbid fascinations.  Did she not notice?

 

Esther Fielding, was reportedly a New Age “healer”. She claimed to activate the DNA in a patient via remote viewing to overcome inherited problems. Is this bizarre enough for you? Suspend disbelief and presume Mom’s sincerity; read one revealing testimonial:

“The day after I had my DNA Activation I had to stop taking thyroid medication I had been on for fifteen years... Overnight it was healed.  All my life I have been afraid of heights.  One day after pulling inherited fears in a gene replacement workshop I realized I was no longer afraid of heights.  I didn’t pull ‘fear of heights’ so I wasn’t expecting this.  It was inherited.  It wasn’t even mine.  Later I was able to help a friend re-roof her house.”

Scott probably wishes that Mom had done a better job neutralizing the incriminating traces of Pam Vitale’s DNA on his ski mask.

 

Reputedly Mom also did removal of government and alien implants.  Too bad, Scott may now think, that she couldn’t undo government search warrants.

 

Scott would have done far better, one suspects, had Mom remained in the food industry. 

 

Better still, she and Scott would have benefited from more common sense and a stronger foundation in the fundamental moral precepts and values that have sustained our civilization.  But maybe I’m asking too much.

 

We can all accept normal human frailty; but when we fall short of the mark, we usually try to do better, do we not?  But something was gravely out of whack here.  “Mark? What mark?”

 

SO MUCH MORE TO LEARN

 

There are a number of persons not publicly interviewed, especially in depth, who may shed light on Scott’s flirtation with the dark side, among them:

 

Scott’s father.

 

He attended the trial.  He was seen briefly talking to Daniel Horowitz.  You know he has essential biographical information on Scott and may she light on what made this young killer tick.

 

The Sheriff of Contra Costa County. 

 

This crime took place in the Sheriff’s beat, the un-incorporated area of the county where his county agency (as opposed to city police) are “the only law in town”.  Either on background or without attribution I suspect there is a story here about what is really going on among some of the teen and post teen set in Lafayette and surrounding areas.

 

Scott’s other acquaintances:

 

We should learn much more from his peer group who were not called as character witnesses.  Scott Dyleski hung out with or was seen hanging out with a number of others who didn’t make the defense character list.  This is a rich potential field for information.

 

Mrs. Fielding. 

 

Yes, Mom was and is protective about Scott.  But she knows things about her son, things noticed or suspected, things acted on and things not.  If she is willing to talk candidly, it would be an important public service.

 

Scott’s Hard Drive:

 

The computer exists.  It can tell us much….

 

My Soap Box -- Part One

 

For too many parents, evil is no longer something devoutly to be resisted and from which children are to be fiercely guarded. In part this is a result of a cultural sea change – from right and wrong (including gray areas) to a morally neutral therapeutic model.  For these parents, evil is irrelevant, meaningless, or marginalized.  Why?  The ethics and morality that give meaning to evil are themselves considered outmoded ideas. In this sub-culture, everything that is really important has been subsumed in the narcissistic agenda of self-healing.  Without more it might be unfair to peg Scott’s mother as a card carrying member of this sub-culture, but the signs and suggestions are clearly there.

 

Even the more conventional parents, those who of us who cling to the “antiquated” notion that morality is deeply relevant (“Yes, Virginia, there may not be a Santa Clause, but good and evil are very, very real”) have a sharply uphill course, given the gravely wounded state of our culture. For traditional parents (dare I call them “normal”?) the job of protecting the innocence and moral grounding of our children is vastly more challenging than in earlier times. 

 

Children and young “adults” are subjected to a seductive torrent of bizarre, unfiltered material, both emotionally and morally disturbing; it seethes through the culture and the adolescent sub-cultures like a computer virus. This toxic material is relatively harmless to those who are well rooted in the deep ethical traditions that have upheld humanity, but it is highly contagious to New Age addled juvenile minds.  These are information-carried toxins (really they are moral pathogens); they saturate the internet; they are carried by computers, cell phones and personal contact wherever “modern” juveniles congregate. 

 

Why are these toxins able to propagate so freely?

Because there is no effective resistance. The New Age fog has disabled the faculty of critical intelligence among thousands of Northern Californians. These are the putative adults for whom the traditions of integrity and courage that animated the “Greatest Generation” have long been forgotten.

 

We inhabit a culture that is paralyzed by moral ambivalence and remains apparently unable – like the characters in Harry Potter who couldn’t utter the name of Harry’s nemesis, Lord Voldemort – to actually recognize and name evil, even when it makes one of its blatant appearances.

 

Evil and the contemporary mind is not a new topic for me.  See http://www.jaygaskill.com/explainingevil.htm. 

 

All parents have a unique and essentially non-delegable responsibility to protect their children from evil influences. 

 

When I defended juvenile cases, I was soon able to predict whether a particular miscreant minor would become a repeat customer.  It usually took only a ten minute conversation with the primary parent for the dreaded pattern to emerge. It was all about the excuses for little Johnny or Jill, and evidenced a moral hollowness that was palpable. Sometimes I would see the minor again, years later, as a killer. See: http://www.jaygaskill.com/humancondition.htm.

 

As I intimated earlier, we may have in this case the makings of a poster child for what is dreadfully wrong with our culture.  If any good comes of this sorry episode, maybe it may be the realization that young people like Scott are the canaries in our mine. 

 

Evil (as I occasionally remind my naïve friends) is one of the realities of modern life every bit as much as it was in ancient times.  Only now we just use the term “sick”, as if by “medicalizing” a profound moral mal-orientation, we can somehow create the comforting illusion that the world consists entirely of good people, some of whom occasionally “catch” a case of “badness” as if it were some kind of cold. Evil, in this faux-therapeutic mindset, is a very bad flu.

 

These insights are hardly secret information, but they are widely ignored. For an early speech of mine to a law enforcement audience, see: http://www.jaygaskill.com/sheriff.html.htm.

 

Of course, I was just stating the obvious to the receptive.

 

There is MORE TO COME…

 

JBG

 

 

 

Monday, August 28, 2006

 

GUILTY AS CHARGED.

 

Shortly after 4 PM Pacific, the Scott Dyleski jury announced the verdict:

 

Guilty of First Degree Murder

Guilty of Special Circumstances

 

But for his age at the time of the offense (16), this might have been a death penalty case.

 

Anything less than this verdict would have been a surprise (as those of you who have followed by analysis will readily understand).

 

But the case is not over.  Sentencing will follow in a few weeks. Two things to keep in mind:

 

  1. The “Why?” question was always the most important one.
  2. The Gag order is no longer in effect.

 

On Wednesday, September 30th, I will address the Why question and its implications for all of us.

 

 

 

August 26

 

The jury went home Friday after a full day’s work.  Deliberations resume Monday.  We can conclude little at this point except that this jury is doing its job conscientiously.

 

JBG

 

AUGUST 24

 

At the end of the day, no verdict. Deliberations resume Friday. This is the point when the prosecutor begins to worry…

 

AUGUST 24

 

Deliberations continue.

 

 

Rarely if ever does any jury reach a verdict shortly after having been instructed. So today (Thursday) is the first full day of deliberations and the first realistically possible day on which a verdict can be reasonably expected.  If there are no holdouts (these would probably be confined to the jurors still uncertain about the first-second degree murder question), a verdict could be reached this afternoon. 

 

Unless I’ve completely lost my touch, a verdict today would be a conviction on all charges.  The longer the case deliberates (or so the courtroom lore suggests) the more hope there is for the defense. 

Yesterday, the jury viewed forensic evidence, the most significant of which was some credit card information to which was appended the “death list” (“kidnap … cut up and bury”). There was also a review of the testimony of Kim Curiel who saw Dyleski at 10:45 AM on the morning of the killing.  Both tidbits favor the prosecution.  I can imagine the foreperson turning to a concerned juror, asking -- “Did that answer your question?” I think a consensus is building among the twelve.  If I were prosecutor Jewett, I’d not start worrying until Monday afternoon.

Thursday, 9: 30 A.M.  The jury is now at work.

 

My Un-redacted Commentary follows:

 

Why This Defense?

 

A necessary disclaimer:

 

I have no inside pipeline; this is just informed speculation. 

 

First, let me identify the two things about which I am very confident, based on all that I’ve read, and my general experience in the field.

 

  1. I am personally persuaded that the defendant in this case was physically present at the murder scene, that he shed blood there and left blood there.  From my perspective as a non-juror, outside observer, this defendant’s conviction for murder will be a just outcome. The system is working very well; the real killer is on trial; the defendant (in my opinion) is in fact the killer; and the blood of Pam Vitale, an innocent victim, was factually (and metaphorically) on young Dyleski’s hands.

 

  1. Ms. Leonida is a competent and ethical lawyer who devoted her best efforts to this case. Her office provided her with the resources any competent trial lawyer would require: investigation, clerical support, and funds for experts as needed. Any subsequent claim that she delivered ineffective assistance of counsel will prove to be unfounded.

 

More Speculation:

 

There are only four scenarios in which a murder defendant in this situation would not testify in his own defense:

 

  1. Though he was willing to give exonerating or mitigating testimony, it was determined that the proposed testimony, after cross examination and impeachment, would have done more harm than good to the defense.
  2. Whether #1 was true or not, the defendant had cold feet.
  3. The defendant admitted guilt to his lawyer.
  4. The defendant not only admitted guilt to his lawyer, he described a chilling scenario that would have been even worse than the DA’s main theory of the case.

 

Only scenarios 3 and 4 would have effectively blocked Ms. Leonida from attempting to address her client’s mental state at the time of the crime in an effort to head off the first degree special circumstances conviction (triggering life without parole).  I grant that selling a second degree murder to this jury would have been difficult, but not as difficult as selling an acquittal.

 

Trapped as the defense was, Ms. Leonida managed in her closing to obliquely attack the DA’s first degree theory.  She asked whether her client was supposed to be attacking a neighbor he thought had killed his dog or was trying to steal financial information, or….

 

“The prosecutor threw a bunch of motives out to see which one sticks.”

 

But without being able to argue specifically against the first degree theory, this non-argument on the mens rea issue will do little to detain the jury once they arrive at the following place:

(1) SD went to the Vitale-Horowitz trailer for some criminal purpose.

(2) A struggle ensued during which he quickly gained the advantage, then beat and stabbed his victim, carved a symbol on her back and cut her open. 

 

After that epiphany, the discussion will turn to the first degree issue.  But there will be no theory articulated by the defense to support mitigation.

 

If I were to wager which of the four scenarios above best explain the defense posture, I would be forced to pick the last one.

 

If Ms. Leonida gained this young defendant’s trust, she may well have heard enough to make sure he never takes the witness stand. 

 

Assuming a conviction:

 

After the verdict, a pre-sentencing report, prepared by the probation department will be ordered.  Sentencing will probably take place in October.  The defendant will not be eligible for probation.  The prison term will be fixed by law.  The report will be used in the prison system for placement purposes. In all likelihood, SD will first go to a high security Youth Authority facility; he later will be transferred to the state prison system.

 

The probation report will be a public document only for a short time.  But there is a section in which the “defendant’s version of the crime” is set out based on the probation interview.  The section will probably report that “defendant declined to discuss the offense on advice on counsel.”

 

 

TO THE JURY:

8-23-06

 

By all accounts, the defense argument yesterday afternoon was unremarkable, apparently even less persuasive than my outline below.  I’ll reserve my comments until later.

 

Jason Dearen, reporter for the ANG group, has produced the best account available of the final arguments. Go to http://www.insidebayarea.com/oaklandtribune/ci_4224067 .

 

The jury is to be instructed today.  Their deliberations should be mercifully brief.  Absent a sleeper juror or two (unreasonably pro-defense, but undetected), the guilty verdict will be delivered this week.

 

One sign of trouble for the prosecution:  A request for a reread of any testimony.  This will signal that one or more jurors remain unconvinced about something.

 

Don’t be surprised if the foreperson asks the judge for clarification at some point.  Some jurors – otherwise persuaded of guilt – may have differing theories about the specific scenario.

 

JBG

 

 

Update: 8-22-06 Afternoon

 

Harold Jewett concluded his argument this afternoon.  Having gone over the forensic evidence and the timeline, he introduced a new theory: 

 

As part of Dyleski’s credit card fraud plan with friend Robin Croen, marijuana growing equipment was charged to neighbor Karen Schneider but mistakenly delivered to the Vitale-Horowitz address.  That credit card transaction was declined and Scott reportedly told CroenI’ll take care of it.”

 

When Dyleski arrived with a weapon, ski mask and gloves it is evident that “taking care of it” involved serious criminal intent.

 

This theory, if believed, supplies the pre-existing intent to commit a felony or theft, the predicate element needed for a special circumstances felony murder. The election of a single theory is a slight risk for the DA since it seems to pin the criminal intent theory exclusively on the mistaken address, leaving room for a defense counter argument. 

 

Ms. Leonida – scheduled to argue next – might otherwise have been able to make some headway with the intent issue, but she has been cornered: Leonida is committed to a “Scott wasn’t there defense” and therefore doesn’t represent (and can’t argue for) the “real killer”.

 

Otherwise it would have been stronger (and safer) for Mr. Jewett to say candidly that “What we can say with certainty is that Scott Dyleski entered Pamela Vitale’s home, uninvited, with the obvious intent to do her great bodily harm.  That intent is enough to make the entry a burglary and the crime a first degree felony murder.  But we have more…” And so on. 

 

But by all counts the prosecution’s argument was an effective one. The defense has an uphill struggle…

 

 

TUESDAY, August 22, 2006

 

FINAL ARGUMENTS TODAY

 

The order is: (1) prosecution summation, (2) defense summation, (3) prosecution rebuttal, then (4) the jury instructions and (5) deliberations. 

 

Based on the opening statements, I expect the DA’s argument to run the entire morning and the defense argument to take up only part of the afternoon, followed by a very brief DA rebuttal. 

 

If I’m right, instructions to the jury will be Wednesday morning.  I would not be surprised to see a verdict on Friday or Monday.

 

At this point, the defense is probably hoping to persuade two or three jurors that a reasonable doubt remains as to Scott Dyleski’s guilt.  Without a unanimous verdict, the case would be retried. I don’t think any reasonable observer expects to see an acquittal; the votes just aren’t there. 

 

If this case was headed for a not guilty verdict, it would have been apparent from the evidence.  No argument, however brilliant, can persuade 12 jurors to disregard the weight of the evidence in a case like this one.  It is difficult to imagine a defense argument powerful enough to pull this one out of the fire.

 

I’ll comment further at the end of the day… Meantime, you might want to review my prediction about the defense argument:

 

The Defense Argument:

What to Watch For

 

The defense will be able to construct a respectable, but (in my opinion) ultimately unpersuasive argument from all this:

 

  • The defense will try to show a “circumstantial” alibi, using the DA’s timeline, but attempting to show that Dyleski could not have done it all before he showed up at the Curiel home when he did. In a weak identification case, this approach would have some promise, but not in a DNA case.

 

  • The “death plan” note is only circumstantially connected to Dyleski via location. The DA was not able to produce fresh forensic evidence (such as a handwriting expert, fingerprints or DNA) on the topic, so Leonida will ask the jury to disregard the note.

 

  • The van clothing items are clearly linked to the killing because of Vitale’s DNA. They are weakly linked to Dyleski, she will argue, because location only. The defense will hammer the point that Scott’s DNA was not DEFINITIVELY associated with the clothing items in the van; and she may argue that DNA traces alone, especially when there are others as well, aren’t enough.

 

  • Then, in a Jonnie Cochran moment, Leonida will argue that the only DNA on the recovered glove that did not belong to the victim (the glove trace DNA of a third person), belonged not to Scott Dyleski, but to someone else.

 

  • She will then ask the jury to give the defendant the benefit of the doubt on the commingled blood found on Vitale’s foot.  A probability is not a certainty, she will argue; experts can and will argue over the certainty issue; and she will point out that even the DA experts appeared to disagree about the foot DNA. This will be a very hard sell because the defense did not produce its own expert.

 

  • Leonida will review all the testing and retesting anomalies and the DNA of persons unknown, and argue that the evidence as a whole is inconclusive.

 

There are several problems with this argument that Mr. Jewett will undoubtedly exploit.

 

  • Recall that Mrs. Fielding, Scott’s mother, identified the ski mask as Scott’s.

 

  • Recall that Scott’s shoe was identified and that we have a tread match from the bloody print at the scene.

 

  • Recall that Mom said – before she partly backtracked – that Scott had placed the incriminating duffle bag in her abandoned van.

 

  • Recall that Scott’s girlfriend was a given a backpack by Scott that contained his bloody stained shoes.

 

  • Expect Mr. Jewett to ask whether there could be any innocent explanation for Scott to have any clothing with Vitale’s blood on it or to have his own blood on Vitale’s foot. He will argue that there is only one reasonable conclusion: Scott D is the killer.

 

The most likely defense theory can be boiled down to the following:

 

Someone, not Scott, killed Vitale for unknown reasons. That person hid Scott’s blood stained effects in Scott’s mother’s van, and by an extraordinary coincidence, was one of the 1 in 40,000 Caucasian males whose DNA would match that of Scott’s when mingled with Vitale’s.

 

As a former defense trial lawyer who has had some difficult (read impossible) cases, I know that the defense (especially the ethical defense) is limited by the actual available evidence, the client’s instructions, and the arguments that can be teased out of the overall picture.

 

Footnote:

 

The impact of the pathologist’s evidence on this jury cannot be underestimated.  As Jason Dearen of the ANG Newspaper group observed in the courtroom during the pathology evidence, ( Go to http://www.insidebayarea.com/localnews/ci_4194727 ) — “A pale, sullen Scott Dyleski fixed his gaze on graphic autopsy photographs of Pamela Vitale’s bruised, swollen body as prosecutor Harold Jewett showed jurors the many injuries that led to the 52-year-old woman's death…. Jurors sobbed, and the horrific images evoked whimpers from some in the courtroom's seating gallery.” 

 

But for the defendant’s age, this would have been a death penalty case with a significant probability of a death verdict, in my opinion.

 

 

 

August 21, 2006

 

DEFENSE RESTS – NO REBUTTAL

 

Arguments to the jury begin tomorrow morning.  Today, the defense called Criminalist Eric Collins back to the stand to establish that at the time of his arrest Scott Dyleski was 110 pounds, 5 feet six inches, presumably to establish that he was lighter and slighter than Pam Vitale.

 

In total, the defense called six character witnesses whose picture of the defendant was that of a gentle, caring person, not that of a killer, and that Scott’s artwork, though dark, wasn’t that different from some of his peers.

 

The most significant fact about the defense, the elephant in the room that the prosecution is forbidden to discuss: This jury did not hear from the defendant.

 

For a guide to the probable defense arguments, see my analysis below.

 

JBG

 

 

August 20, 2006

 

THE TRIAL WILL CONCLUDE THIS WEEK

 

A chronological account of the evidence sessions (August 1 through 17) follows below.

 

The Defense is expected to conclude Monday and final arguments will follow.

 

 

 

 

THE TRIAL DAYS FROM JULY 27TH THROUGH AUGUST 17TH

 

 

July 27th & 8th 2006

Post # 38.1

 

Textbook Opening Statements – No Surprises

(An excellent and detailed summary of the Opening Statements by Reporter Jason Dearen is at http://jaygaskill.com/DyleskiOSDearen.htm .)

 

By all accounts prosecutor Harold Jewett overmatched defense attorney Ellen Leonida with the compelling details of the crime and the damning evidence that links Scott Dyleski to the killing of Pam Vitale on October 15th last year. Ms. Leonida’s presentation was 10 minutes to the DA’s two hours.  Her opening was uncluttered with evidence, focusing on her client’s character (a “kind, gentle” kid who “dresses weird for Lafayette”, a PETA member who cares deeply about animals) and raised the prospect of an alibi: The defense will show that Scott was home when Pam Vitale was killed. 

 

As you can see from my analysis below, this is a client who has undoubtedly directed that his attorney go for the acquittal, not for mitigation.  Given that direction, Ms. Leonida has done the next best thing: She delivered a defense opening that gives jurors a plausible reason to keep an open mind throughout the DA’s case; bolsters the defense credibility; and avoids the mistake of promising that which cannot be produced.

 

But can an alibi trump (what appears from this remove to be) a compelling web of physical and circumstantial evidence? 

 

Did the defense even have a choice?

 

 

August 1, 2006

Post # 39

 

The trial began Monday with chilling accounts from neighbors, describing Dan Horowitz’ cries (like a wounded animal, by one account) when he discovered his wife’s body at home. This was followed by a description of the bloody crime scene. The wounds to Pam Vitale were gruesome. 

 

Her bloody body was in the fetal position, wearing only a tee shirt and underwear. Broken pottery was scattered about the room. Though Vitale had been stabbed in the abdomen, she apparently died from one or more blows to the head. Contra Costa evidence analyst, Alex Taflya, showed the jury three pieces of bloody molding and two utility flashlights that he believes were used in the assault.  Taflya evidently doesn’t thinks that a pot or pots inflicted the death wound.

 

The jury also learned that the killer wore gloves and that bloody shoe prints were recovered. [Recall that these will be tied to Dyleski.]

 

Following this grim description of the murder scene, the jury heard Dan Horowitz’ account of his last day and hours with Pam before his terrible discovery.  I doubt that the emotional impact of this testimony could have been improved on (from the prosecution’s point of view) had the court decided to let the prosecutor play the 911 dispatch tape of Dan Horowitz’ call to the authorities.  Put differently, the tape’s exclusion doesn’t seem to have hurt the prosecution at all. 

 

Reportedly, members of Dyleski’s family decided to sit this testimony out. 

 

In cross examination of the Sheriff’s evidence analyst (in California they’re often called criminalists), Ms. Leonida established that a purse left on the table was not then opened for its contents – at least by this witness.  This purse (undoubtedly Ms. Vitale’s) will prove important to the extent that the DA is relying on a theft theory to support a first degree, special circumstances murder.

 

It’s much too early in the development of the case to assess the strength of the DA’s specific theory of culpability (i.e., was this killing in furtherance of a burglary, theft, etc, -- more on that later), but I get the clearr drip, drip, drip sense of forensic inevitability leading to “case solved – we have the real killer.”  

 

But I’ve been surprised before.

 

 

August 2, 2006

Post # 39.1

 

Drip, Drip, Drip Continued: The Telltale Computer

 

Yesterday, a Humboldt County forensic computer sleuth, Christopher Andrews, opened Scott Dyleski’s hard drive for the jury, exposing what may well have been seething in SD’s disturbed mind.

 

Although the search was selective and the contents huge (presumably unearthing mostly innocent content), here is what the jury learned about the contents of Scott’s cache:

 

1. A list of marijuana growing equipment;

2. An order to buy a curved blade knife;

3. A drawing of a human heart;

4. An autopsy of a human body;

5. A cat being tortured.

 

On cross examination of this witness, Ms. Leonida established that SD also had information on PETA.  Presumably the defense hopes to soften these sick images by pointing out Dyleski’ soft and fuzzy side. Others might not see a fascination with the ill treatment of animals by people as not all that mitigating in a trial for murdering an innocent woman.  After all, some over the top “animal rights” advocates find “mere human’ rights an annoying obstacle in their crusade to liberate the fuzzy ones “by any means necessary”.

 

We’re not likely to hear about it in the trial, but I recall an earlier report from November of last year. As I wrote then:

 

Moraga is a high end residential community not far from the Vitale death site. In September, the Moraga police investigated an illegal shed and tree house, apparently placed there without the owner’s knowledge. In a Blair Witch Project moment, investigators were startled to find a recently decapitated calf’s head and a hand saw (with bits of fur) nailed to the shed wall. 

 

Prior to the gag order, Sheriff’s investigators had disclosed some interest in the site because of its Satanic implications, but indicated they had ruled out any connection to the Vitale killing.

 

August 3, 2006 AM

Post # 40

 

Croen & Kovar Testify

The Marijuana Scheme & An Incriminating Duffle Bag Close The Noose

 

Yesterday, the jury heard from Scott Dyleski’s friend, Robin Croen, 17, who described Dyleski’s scheme to acquire marijuana growing apparatus using stolen credit card numbers. In the context of the overall emerging case, Croen was devastating. A woman named Jahosky was illuminating; and a deputy named Kovar has set up the incoming DNA evidence. 

 

Some key points:

 

  1. Using a stolen credit card number, Scott placed a large order for indoor grow lights. But the very day before Vitale’s murder, Scott was told that the order could not be shipped because the credit card was declined.

 

  1. Vitale was killed at about 10 AM on 10-15. That night, Croen – who had apparently heard nothing about a killing – met Dyleski in his home and sold him marijuana. When Croen noticed that Scott’s nose was deeply scratched, Dyleski explained he’d scratched himself during a walk on Hunsacker Canyon Road.

 

  1. While Scott was at Croen’s house, his mother called to warn him that the road was blocked and that somebody had been murdered. Scott was to stay where he was.

 

  1. Scott then told Croen and two other friends (one presumably was Scott’s girlfriend) that he’d seen someone on his Hunsacker Canyon Road walk – maybe that was the killer. [Sure.]

 

  1. When the conversation then turned to serial killers, Scott began to recite a ditty about Lizzie Borden—the notorious woman who had killed both parents with an axe. Then Scott and his girlfriend, having bought some marijuana from Croen, left the house.

 

  1. Tuesday, October 18th (note that by then publicity about Vitale’s killing was major news) Scott warned Croen that he was planning to confess to the marijuana growing scheme because it might link him to the murder. Dyleski said that he’d actually seen Vitale on his walk and that she’d grabbed his wrist. Croen: “He said he was afraid of being linked to the killing by some kind of DNA evidence.” [No kidding.]

 

  1. The jury also heard from Jackie Jahosky who received Scott’s on-line orders on her lighting shop. The billing names were Halpin and Schneider but the billing address was 1901 Hunsaker Canyon Road (Vitale and Horowitz). Shipping was to an address that police established to be that of Esther Fielding, Scott’s mother.

 

  1. Then Deputy Rick Kovar testified.  Inside an “abandoned’ Toyota van on Scott’s mother’s property and registered to her, he found a black duffel bag. Among the contents:

·        ski mask

·        black coat

·        black glove.

There were traces of blood on the clothing in that black duffle bag.

 

Well?

 

The forensic reconstruction of this crime scene is reasonable and readily understandable to any jury. I must conclude that when -  as expected – later DNA evidence puts Scott Dyleski at the knifing scene, and ties him to ski mask and glove, the entire picture in this jury’s mind will shift (provisionally at first) from “Who-done-it?” to Why?. 

 

In my opinion, the forensic evidence already seen by this jury will prove enough – given the expected DNA match – to convict Scott Dyleski of murder. 

 

Whether seeds of doubt can yet be sprinkled across this particular forensic landscape is problematic.  For example, Ms. Leonida has suggested in cross examination that there is yet another bit of DNA involved, i.e., not Scott’s and not Pam’s.  Without prejudging a defense that has yet to materialize, I must confess that I’ve been there. In my own trial experience, when there is very strong, even compelling evidence that the defendant was arm deep in a bloody killing, evidence that might or might not link someone else is almost always disregarded by the jury. 

 

Is it already too late for the defense to prepare the jury to hear a mens rea defense?

 

 

August 4, 2006

POST # 41

 

Out of the Closet: The Girlfriend Testifies

The jury was given a chilling glimpse into Scott Dyleski’s mind today by his 18 year old girlfriend, Jena Reddy, whose very identity as a witness in the case had been kept an official secret in the case’s early stages. Reddy testified about Scott D’s fascination with torture and vivisection. The couple experimented with the infliction of pain and talked about breaking children’s necks, (hypothetically, of course). Dyleski was apparently fascinated by the subject of human organs, especially how someone could survive after a particular organ had been removed. Young Dyleski was fascinated by serial killers, particularly Jack the Ripper.

 

Reddy supplied an important evidentiary link.  Scott gave her a red backpack to keep. Police now have that backpack.  It contained blood stained shoes along with other incriminating evidence.  Reddy has been given immunity in exchange for her cooperation.

 

When Reddy met Scott on the afternoon of the killing, his face was scratched; and his wrist and arm were apparently injured. A few days after the murder, he told Reddy that he’d encountered Vitale earlier on October 15th and she had grabbed his arm; he was afraid his DNA would be found under her fingernails. Scott Dyleski’s fears were justified.

 

Reddy is back on the stand Monday.

 

My Editorial Comment:  Evil has a certain look and feel. 

 

There are several stages of denial in cases like this: That anyone human could have done the crime; that the “nice” person charged could be guilty of doing it; or that he or she could not possibly have done it unless “sick”.  [In the latter view, evil is a medical condition and an evil mindset is by definition insanity.]

 

The profile of this defendant is that of someone who is or was so very seriously off the normal moral track in the time period during which this and the related offenses were committed that the “E” word looms over the scene like some Steven King monster.

 

Assume, just for the sake of this discussion, only, that SD was Pam Vitale’s killer: We are entitled to seriously entertain the notion that this was in fact a serial killer in the making. If Scott was the killer, he may eventually be among the many people who are grateful that a potential grisly killing spree was aborted at its very inception. In this sense, Pam Vitale’s heroic struggle for life may have spared many others.

 

 

Monday, August 7, 2006

POST # 41.2

 

Some Backpedaling Is Expected

 

Scott Dyleski’s girlfriend wasn’t deep enough in legal trouble to have an incentive to really dump on SD, especially since that would have increased her own complicity.  So I’m not particularly surprised to learn that Jena Reddy has just testified that many of the grisly conversations she and Scott had were in the kidding not pre-planning mode.

 

Even naïve bystanders are in a position to give us an insight into a twisted mind.  Frankly, I doubt that this jury is really interested in whether young Jena thought Scott was kidding, because by now most of them have probably concluded that her boyfriend-on-trial-for-murder was not kidding at all.

 

But Ms. Reddy did quite enough for the prosecution, thank you. She also testified that on the day that Vitale’s body had been discovered, SD talked about how painful a death by beating would be and how many blows it would take to kill someone (36 to 39 blows).

 

Reddy also identified SD’s “art” signature – a symbol that the jury and DA have already seen.  The killer carved it into Pam Vitale’s back.

 

The defendant’s mother follows girlfriend to the witness stand today.  I expect that Mom is still in full denial mode.  This means that all the bits and pieces of evidence she provides to bolster the DA’s case against Scott will have an even greater impact on the jury. When a witness gives testimony against a presumed bias, that testimony is more credible by far than when it is consistent with the bias. Moms are legend in the criminal justice system for trying to bail out their wayward sons.  That the prisons are full of these guys is a powerful indicator that a mother’s loyalty is trumped by the weight of the evidence.

 

 

 

Later on Monday, August 7, 2006

POST # 42

 

 

The Cross Examination and Redirect of Ms. Reddy

 

Defense question: “Is a lot of Scott’s art similar to Velvet Acid Christ art?” [Velvet Acid Christ is apparently SD’s favorite Goth rock band.]

 

Answer: “Yes.”

 

Here’s what the DA was not allowed to do with this.

 

Let’s sample Velvet Acid Christ:

 

A Self-Description Promo:

 

 

The tension laden and insane vocals are very apparent, on the edge of snapping.

 

The hissing, cursing, writhing vocals rip apart almost every track.

 

A very heavy metal influence was present on half of the songs that and are very well balanced with electronic dance anthems.

 

Nothing on the market sounds like this.

 

nothing

 

Sample Lyrics:

 

Pray For Life

”do you pray for life do you kick and scream …now i let go of the flow in my heads i see you die my vision make me want to cry forever lost in time spinning twitching losing control the rage of existence shooting my soul the crazy deeds of society batter my mind kill everything the edge of knife splatters my life kicks me in the head and leaves me dead for reason's unknown the clock spins backwards reversing time and space no time is left to contemplate pray for life pray for life when souls are tortured life is a mess and everything is just your best as always lost in dreams and visions i let go of the flow in my head i see you die goodbye goodbye goodbye spinning twitching …”

 

Dead Tomorrow

”Don't you understand me? …All my life waiting for the answers to these dreams alone of the knife that's cutting from my life… Dead Tomorrow, dead tomorrow, You'll be dead tomorrow
Dead Tomorrow, You'll be dead tomorrow, Dead Tomorrow
…”

 

Dead (Death Wish Mix)

”… life for you is a broken dream and i'll spout it out your sick dream has come to me now for the end we'll always pretend yeah where do you go what do you want it's nothing at all feel the machines implanted in your thoughts mangled nervs twist and turn form new paths in your brain pull out all the wires and push them into your heart yeah push it into your heart yeah push it into your heart…so shoot it out your sick life has come to me your life ends you'll never cry or breath again

 

I would not presume to assume the role of art critic here.  Whatever the poetic merit of these lyrics, their impact on a loopy, mixed-up teenage male with “issues” was probably unhealthy, and given a sufficiently receptive mind, actually malevolent.

 

Defense Question: “You ever see him fly into a rage?”

Answer: “No” He is “calm and collected. He didn’t lose his temper.”

 

As I recall, Jack the Ripper and other serial killers were reportedly methodical and cool about their “craft”.

 

The DA asked Reddy whether she had discussed God and the devil with Scott. Yes, she answered.  Scott apparently believed in both and saw good and evil in each.

 

That was manifestly not an innocuous answer. I’ll expand on the point tomorrow…

 

 

Tuesday Morning, August 8, 2006

POST # 43

 

Yesterday,

I promised to continue this discussion about Scott’s mental and moral condition at the time of the crime.

 

The DA asked Reddy whether had discussed God and the devil with Scott. Yes.  Scott apparently believed in both and saw good and evil in each.  That was manifestly not an innocuous answer. I’ll expand on the point tomorrow…

 

During her redirect examination yesterday by the prosecution, Dyleski’s girlfriend looked at some of SD’s artwork and identified the two armed cross or “H” figure.  It was Scott’s symbolic signature. 

 

Months ago, I responded to speculation about this symbol because word had gotten out that it was carved in to Ms. Vitale’s back.  This is what I posted then:

 

Mark of Satan?

 

The mark carved into Pamela Vitale’s body by her killer has been variously described as an “H” or as a “double T”, but both descriptions could easily depict the same thing.  One correspondent has asked me whether the killer carved the “Cross of Lorraine” onto Ms. Vitale’s back.  That emblem represents two crosses sharing the same center pole; and seen on edge, the symbol makes a credible “H”. 

 

Only the killer knows what symbolism was actually intended.  But it is clear enough that some symbolic meaning was meant – this mark was not the random gibberish of a drooling idiot, but the calculated sign of someone who – let’s not put too fine a point on it – you wouldn’t ever want dating your progeny, niece or nephew. 

 

Ancient alchemists used this symbol to denote a powerful poison. 

 

In Medieval France, certain conspirators against the regime used the symbol, as the “Cross of Lorraine”, a heraldic motif that depicted both the “arms of Christ” and the “arms of Satan”. Hence the “Satanic” overtones.

 

We don’t need to hire one of the characters in Dan Brown’s “DaVinci Code” to uncover the secret mysteries here.  I doubt that young Dyleski was aware of all the history associated with this particular symbol.  [For example, a simple form of the character is used in botany to this day as a symbol of a very poisonous plant.] But I am convinced that he (or the “real killer” – assuming that ghost’s unlikely materialization) inhabited a moral (or anti-moral) universe in which this symbol represented something dreadful. The key – as far as this killing and the underlying mental state of the killer is concerned - is the confusion and intermingling of good and evil in a single holy figure.  This confers psychological permission to do dreadful things.

 

Dyleski’s reported taste in music and his other dark predilections make me strongly suspect that he was familiar with the “industrial noise” musician Boyd Rice.  Mr. Rice, who was made a High Priest in the Church of Satan (founded by the nut case Anton LaVey) and wears a version of the two armed cross, is a stone cold misanthrope.  His “think tank”, the Abraxas, is said to promote the following ethos:

 

“The strong rule the weak, and the clever rule the strong”. 

 

This might be an accurate description of the social climate in the nation’s capital, but it is not a moral sentiment.  This is the nihilist’s creed.  Moreover Mr. Rice and followers apparently support human depopulation by any means necessary. Rice’s followers are told that they transcend good and evil. That’s at least half true - the good has certainly been “transcended” (in the left-behind sense).

 

Whether SD inhaled this noxious stuff directly, he clearly sniffed something like it. The teen culture teems with this kind of thing.  These notions are actually evil in my moral universe.  They operate like a moral virus, infecting those with the most compromised immune systems. Modern teens, especially those raised in the New Age culture, have compromised moral immune systems. [A note: I’ll return to this theme again as the full picture emerges.  But I want to stress that in my moral universe, people are not automatons, sleepwalkers at the mercy of cultural forces.  They are accountable moral agents.]

 

The key of all these half baked, anti-life ideas is the tendency to blend good and evil, obscuring their differences.  As Rice has written:

 

“Interestingly, the gods mentioned herein seem to be viewed as co-equal, with the ruler of the underworld being called upon in the same breath as he who created the Earth and heavens. In this context, Jesus (the “demon of the dead”), although being conjured, seems to be an intermediary between man and the gods.”  

 

If you’re curious about this dark subculture (and every parent should be), you can learn more about this twisted nonsense at http://www.thevesselofgod.com/home.html .

 

 

 

Tuesday Afternoon, August 8, 2006

POST # 43.1

 

Mom’s Testimony is Delayed & Kim Curiel Pre-empts Scott’s Alibi

 

Dyleski’s mother, Esther Fielding, did not testify Tuesday as expected. 

 

Instead the jury heard from Mrs. Kim Curiel, who was the Fielding/Dyleski landlady. She portrayed the defendant as a normal boy whose demeanor sharply changed after the death of his sister in a collision incident. 

 

On the day of the murder, Scott appeared at the house at about 10:45 AM. (the time was established by backing up events from Mrs. Curiel’s timed purchase at 12:36 PM), and announced in a loud voice: “I had the most beautiful walk this morning”.

 

Mrs. Curiel noticed the bloody scratches on Scott’s face. [Police place the killing sometime around 10:12 AM when Pam Vitale’s computer session was interrupted.]

 

When Mrs. Curiel and her husband first confronted Scott with evidence of the credit card fraud, Scott denied it.  The next day, Mrs. Curiel confronted Scott with the possibility that the credit card scheme would connect him to the (now public) Vitale killing.  Scott strongly denied being involved in the killing and related the same story the jury has heard from Scott’s girlfriend about the woman who had scratched him. In a dramatic bit of testimony, Mrs. Curiel described a distraught Scott Dyleski, worried about DNA under Ms. Vitale’s fingernails. When Scott showed Mrs. Curiel his scratched arm, he was shaking.

 

Naturally, the couple became nervous about Dyleski.  The next day, Scott was re-confronted and admitted the fraud scheme.

Mrs. Curiel supplied the quote of the day:

 

“He didn’t have an alibi and was telling this crazy story that he couldn’t keep straight.”

 

If, as the defense indicated in the opening statements, Scott Dyleski still intends to prove that he was home when the murder took place, Mrs. Curiel’s testimony has pretty much pre-empted that alibi.

 

The defense may have some room to maneuver, though, because the time is tight, especially if you assume that Pam Vitale first encountered the ski-masked figure at 10:12 A.M. 

 

The violent struggle, the beating, stabbing, carving and the shower (assuming the DA thinks it was the killer, not Ms. Vitale who was showering), and the escape from the scene eat up the killer’s time; all these actions would have to be shoehorned into about 34 minutes. 

 

Still, the struggle and actual killing might have taken but a few minutes and the walk from the Vitale/Horowitz trailer to the Curiel home might have been possible in fewer than 10 minutes.  I assume that the prosecutor who elicited these timing points, has done the necessary homework. Therefore - if as expected we have a DNA mach between Dyleski’s blood and Vitale’s blood on the incriminating items in the incriminating locations, even Houdini couldn’t wriggle out of this forensic web.

 

 

Wednesday, August 9, 2006

POST # 43.3

 

Dyleski’s Alibi is in Shambles

 

Today the jury heard from Mrs. Curiel’s husband, Fred Curiel, who began his testimony late yesterday by undercutting his wife’s timeline. Arguably, I then opined, this may have opened a bit of daylight for the defense theory. 

 

But I also predicted that this would   

“..come to nothing if and when the DNA evidence comes in to firmly place Scott Dyleski at the crimes scene.  Of course, should there turn out to be a major flaw in the blood evidence, all bets are off.  The defense may be able to do something with Fred’s testimony to erect an alibi only if the DNA hurdle can be overcome.”

 

Well, in Fred Curiel’s testimony later today, the defense alibi balloon popped.

 

Mr. Curiel had earlier told investigators that he’d seen Scott Dyleski sitting on the couch next to his wife at 9:26 AM on the day of the murder.

 

Today he effectively recanted.

 

“I’m not sure I saw Scott.” 

 

Why the change?

 

“I don’t have an explanation other than my memory is not ... I don't have an explanation.”

 

This development is devastating to the defense for several reasons:

 

(1) Ms. Leonida told the jury in her opening statement to expect proof of an alibi.  The jury will forgive her personally, of course, because the cause of her failure of proof was obviously out of her control, but the damage to the defendant’s posture? That’s another matter.

 

(2) A mens rea defense (as I recommended in my earlier postings) is now much more difficult to mount. It may not even have been prepared.  [As I wrote earlier, the defense may be hamstrung by the defendant’s posture; his instructions to counsel may preclude anything but a go-for-broke defense strategy.] Even if there is an expert waiting in the wings to discuss SD’s mental state, this jury has not been prepared. This is a defense nightmare come true.

 

(3) In my experience, a discredited alibi often has a more damning effect than an alibi never offered.

 

As I post this, Mrs. Fielding is scheduled to be testifying for the prosecution, presumably against her son.

 

More on that soon...

 

 

Thursday, August 10

POST # 44

 

As I predicted, Mrs. Fielding – who testified yesterday afternoon and whose testimony continues this afternoon – was reluctant to directly incriminate her son. 

 

But she did.

 

A survey of the information Mom has already supplied authorities – all reluctantly – was in my pretrial Posting # 27:

 

Twenty-seventh Posting: February 17th

 

·         Mrs. Fielding (Esther) apparently discovered Pam Vitale’s information on a list of credit card numbers kept by Scott in his backpack, but at the preliminary hearing, she recanted: “I don’t think I saw Pamela’s number.” We’ll hear more about this.

 

·         Aware that suspicion for the Vitale murder would fall on her son, Mrs. Fielding became concerned that he might be keeping incriminating evidence. She told Scott: “I’m giving you one chance to get everything out of your room.” I’ve had many a criminal client who might have avoided conviction if only my client had garnered sufficient “forensic” support from good old Mom. Fortunately for the DA, Scott was a sloppy housekeeper.

 

·         Mrs. Fielding originally told authorities that Scott had placed the duffle bag, containing the suspect clothes, in the abandoned family VW Van, but she backtracked: “I think he said something about old clothes.” Right. Mom later spotted the bag (in the company of a neighbor) in the van, but simply left it there.

 

·         Mrs. Fielding admitted burning a book and some disposable gloves belonging to Scott. “It was a panicked reaction.” No doubt the disposable gloves were for Scott’s charity work. The box of unopened gloves and a journal were burned by Mom at the home of her sister, Marjorie Fielding in Bolinas. Really, are we to think that no one peeked first? At the same time, Sister Marjorie’s boyfriend, Robert, also burned Scott’s book, “Mass Murder.” No doubt the DA can find a replacement copy on Amazon. Sister Marjorie eventually persuaded Scott’s Mom to turn over Scott’s knife, as well as some other belongings. 

 

Of course, the duffle bag was recovered by police and has undergone a detailed forensic examination. It contained a bloody shirt, a black raincoat, a glove and a ski mask.  We can expect lab evidence to link some of these items to the Vitale murder.

 

But the trail now goes well beyond a simple who-done-it.  The ski mask, the gloves, Scott’s dark, homicidal musings, and his sinister “to do” list are pointers.  Assuming, for the sake of this discussion that SD was the killer, it becomes increasingly plausible that he was carrying out some twisted, homicidal scheme.  Once guilt is evident beyond reasonable dispute, the defense strategy will necessarily shift: It will be in Scott’s interests to portray the killing as an unplanned, impulsive act, the result of a sudden quarrel or other spontaneous eruption. But one does not wear a ski mask and gloves for an idle social encounter. Recall the definition of burglary and the implications for the special circumstances analysis above.

 

 

Highlights of Mrs. Fielding’s trial testimony yesterday and today so far:

 

Mom burned incriminating evidence belonging to Scott:

  • a box of gloves
  • credit card information
  • a journal.

Why? “I just panicked.”

 

She backpedaled, having first admitted seeing Pam Vitale’s name on the credit card slips she burned, then retracted that statement.

 

Then she identified two exhibits as having been obtained from her son:

  • One  knife
  • One ski mask

 

So reluctantly, with tears and much hesitation, the mother has tied together two highly incriminating items of evidence for the prosecution.  But for Scott’s age and the Supreme Court’s restrictions on executions of the under 18 cohort, this the defense would be using this weekend to prepare for the penalty phase of the trial.

 

Does Mrs. Fielding have anything new?

 

 

Monday, August 14th and Tuesday morning, August 15th

POST # 45.1

 

CORNERED

 

During Friday’s session, no evidence was taken but – out of the presence of the jury – the court ruled in favor of the DA to the effect that Fred Curiel’s credit card records can be introduced in the case.  DA Jewett announced that he expects to complete his case in chief by Thursday.

 

The jury resumed hearing the case Monday. As of early afternoon, the case against Scott Dyleski includes the following:

 

  • Mrs. Fielding’s’s abandoned van from which deputies recovered gloves, overcoat, shirt and ski mask, was stained with blood in places. (Criminalist Donald Finley).

 

  • Fingerprint tech Kathryn Novaes did not find SD’s prints at themurder scene, nor on the “death plan” (“dispose of evidence, cut up and bury”) that was recovered from Scott’s old dresser, but did find his prints of some of the recovered credit card slips.

 

  • The bloody fingerprint left at the murder scene is a tread match with Scott’s shoe (which is some probative evidence of identity, but falls short of the certainty attributed to a fingerprint match).

 

  • Sheriff’s Department Criminalist, Eric Collins, described Vitale’s wounds and showed the jury the symbol carved in her back. Collins showed the jury Ms. Vitale’s blood stained shirt and a blood marked pottery shard taken from her head. He described many of Pam Vitale’s wounds as “defensive”, i.e., the kind of wounds a victim tends to get when warding off an assault.

 

The jury also was treated to a tour of Scott Dyleski’s bizarre and disturbing ideation, a portrait sufficiently dark to chill the heart of any parent.  One wonders whether Mrs. Fielding even noticed.

 

  • Prosecutor Jewett projected a picture of the symbol (H or double bar cross) carved into Vitale’s back and compared it with Dyleski’s stick figure signature on his artwork.

 

  • The jury was treated to samples of SD’s art, figures holding bloody knives, one with a ram’s head, holding two severed human heads and a knife.

 

  • Dyleski did a portrait of Ed Gein, the serial killer who dismembered his victims and kept their organs in jars.

 

No member of the jury, having seen this material, will doubt whether young Dyleski was capable of violence and mayhem.

 

Defense examination of the prosecution’s criminalist will begin today’s session. No doubt Ms. Leonida will work hard to soften the impact of this window into Scott Dyleski’s mind. [See above.]  After all, teenagers will be teenagers…

 

The most significant evidence that remains to be heard by this jury is the mapping and DNA identification of the blood evidence.

 

Look for any instance in which Vitale’s blood and Dyleski’s blood are closely associated, especially if found on the same item. A finding, for example that traces of both were on an article of Dyleski’s clothing would probably cinch the case for all 12 jurors.  That would leave only the “I was framed defense.”

 

Whenever a defendant in a murder case like the present one claims to have been framed, the jury will smell a last refuge-of-the-cornered defense.  A guilty finding tends to follow.

 

Are there any holes in this case? 

 

Tuesday noon, August 15th

POST # 45.2

 

Cross Examination as Art

 

FLASH: Scott Dyleski got an “A+” for his picture of a man’s head in a jar. These and other forensic points about the art-evidence were scored by Ms. Leonida on cross examination of Detective Joseph Moore (e.g., “You arrest a lot of teenagers for writing poetry, detective?”).  The question was ruled improper and wasn’t answered.  But I can imagine some of the jurors thinking, “No but I do make arrests for murder, counsel.”

 

The defense line of questioning in the morning session will only prove effective if Dyleski’s dark artistic predilections are being used to establish guilt in the first instance. But when the inquiry into Scott’s morbid interests is coupled with the forthcoming DNA evidence, the detective’s evidence will be seen by the jury in a different light entirely. Then, the defense approach will sound more like an attempt to minimize the impact of interesting and disturbing evidence that sheds light on the chilling mindset of a teenage killer.

 

I suspect what we have developing here is a possible portrait of a mind highly receptive to malevolent images and ideas, a mind for whom the boundary between “mere” art and actual brutality was to become hopelessly blurred.

 

 

Wednesday, August 16th

POST # 46.1

 

DNA Expert Stockwell Sews it Up

 

Yesterday afternoon, DNA expert David Stockwell (from the Co. Co. Sheriff’s Crime Lab) told the jury the following:

 

  1. Positive findings: Vitale’s Dyleski’s DNA was identified with scientific certainty via blood stains on the glove, face mask and duffel bag recovered from Mrs. Fielding’s van.
  2. Weak negative finding: None of Vitale’s DNA was on Dyleski’s knife (minute blood traces were insufficient for DNA work – but it was not Vitale’s and the jury will conclude that the knife was wiped clean before Mrs. Fielding turned it in).
  3. Weak negative finding: None of Dyleski’s DNA was found under Vitale’s fingernails, i.e., no one’s DNA was found there.
  4. One inconsistent finding: A trace of DNA from the recovered glove did not belong to Dyleski. [I think that this jury will eventually conclude that someone other than SD used this glove at a different time than the murder.]
  5. The key finding: On Vitale’s foot there was commingled female and male DNA identifiable blood: some was Vitale’s and some was Dyleski’s to a 43,000 to one likelihood. This is considered an adequate match, but not a perfect one. The problem was that the two samples were commingled, reducing the certainty of the identification from the astronomical probabilities (approaching absolute certainty) that a perfect DNA match can yield under better conditions.
  6. An incriminating stain: Dyleski’s shoe (that he gave to his girlfriend) had Vitale’s blood on it.
  7. Cross examination points: Stockwell had some problems in recovering the foot DNA in that one of the test kits had been contaminated. On retest with a new kit with no contamination, the DNA match with Vitale and Dyleski’s blood was made.  Also, Stockwell agreed that the ski mask containing Vitale’s blood had DNA traces from a third person in addition to Dyleski.

 

Detective Jason Barnes tied up another loose end: The walk from the murder scene to Fielding’s van was ten minutes, leaving about 25 minutes for the other actions that the killer must have done, assuming that the killer was Dyleski, who showed up at the Curiel’s at 10:45 AM on October 15th.

 

The autopsy pathologist testifies today.

 

 

Wednesday, August 16th

POST # 46.2

 

Update: Expert Harmor Nails It

 

Gary Harmor from the Serological Research Institute in Richmond testified to bolster and repair the testimony of DNA expert  Stockwell.  Stockwell gave Harmor an original, uncontaminated sample of the swab from Vitale’s foot.  Harmor found Dyleski’s DNA. It was an exact match for all 17 markers in Dyleski’s profile.  This is a definitive finding. If the jury accepts Harmor’s testimony, all twelve of them should be persuaded that Scott Dyleski was the killer.

 

Late Wednesday, August 16th

POST # 46.3

 

Coup De Gras

 

 

Prosecutor Harold Jewett closed the DA’s case in chief today with a chilling account of the brutal struggle between Pamela Vitale and her murderer.  Pathologist Brian Peterson and the autopsy photos painted the following picture of a violent home invasion in Pam Vitale’s last minutes:

 

Pam Vitale suffered 26 head blows from a hard object, such as a rock.

 

Her belly was slit open by the murderer, opening up her small intestine.

 

The two armed cross symbol was carved on her back while she was still alive, though she might have been unconscious.

 

Pam Vitale’s defensive wounds included cuts and broken hand bones, bruises in her arms and legs, and a bruise to the bottom of her foot that – as the witness opined – could have been a result of kicking her assailant in the face.

 

I recall that Dan Horowitz has said that Pam would have not gone out passively, but fighting with every ounce of spirit left in her.  It may well have been that very kick that imbedded an incriminating trace of Dyleski’s blood in her heel. 

 

I say: Bless Pamela Vitale for her valiant last struggle -- she may have saved other lives.  JBG

 

Defense Evidence Today, Thursday, August 17th

POST # 47

 

Expect a brief defense case, reportedly a sheriff’s deputy and “character” witness -- someone who knows Scott Dyleski’s makeup, and therefore can say that “he couldn’t have done it.” From these two teasers, I suspect that the defense is committed to a reasonable doubt defense. The possibility looms that neither the defendant himself will be called to testify nor an alibi witness. 

 

A stronger defense approach would involve one or more forensic experts, hired to cast doubt on the blood and DNA evidence. With or without expert testimony, the defense will try to reconstruct a circumstantial alibi, using times and distances. But without strong forensic support, the effort will probably be less than persuasive.

 

The one remaining question of interest is whether Scott Dyleski will testify in his own defense.  If he does, the cross examination will be devastating.  But if he does not, there will not be a single witness whose testimony unambiguously supports his factual innocence.

 

 

Thursday, August 17th

POST # 47.1

 

Defense Evidence Falls Flat

 

The defense witnesses consisted of Scott’s High School art teacher, his Frisbee coach and a friend from school. This all boiled down to a typical portrait of a “nice boy”.  It was the sort of thing one hears when the guy next door is arrested for something terrible and his neighbors express surprise.  

 

Dyleski’s art teacher doesn’t judge the moral content of students work.  His Frisbee coach thought Scott was calm and not combative.  His friend never saw Scott frustrated or angry, and his jokes about eating babies were just in good fun.

 

More significantly, Deputy Rachael Fawell told the jury that Kim Curiel gave her a statement in 2005 that Scott had walked into their house at 9:20 on the day of the killing with bloody wounds on his face. This would be a prior inconsistent statement, one that if factually true, would provide support for an alibi for any murder that took place about 45 minutes later.

 

Unfortunately for the defense, prosecutor Howard Jewett demolished the point on cross examination: Kim had also told the deputy that she wasn’t sure about the time.

 

The case resumes Monday with the expectation that defense evidence will conclude then, and both sides will be invited to give their final arguments.

 

 

RETURN TO THE TOP FOR THE LATEST POSTING. ▲

ALL OF MY EARLIER POSTS ARE BELOW. ↓

JBG

 

 

THE JURY SELECTION POSTS

7-22-06

POST #36

 

JURY SELECTION WEEK ONE:

A HINT ABOUT THE DEFENSE?

 

Jury selection this week was routine, if that can be said of a trial in which the accused is linked to “the dark side”.   Both prosecutor Harold Jewett and defender Ellen Leonida were permitted to ask prospective jurors questions about their personal attitudes. Ms. Leonida’s questions were of the stock variety and disclosed little of the defense theory; she is holding her cards closely at this point. 

But I was a bit surprised that the DA chose to ask questions about whether prospective jurors were familiar with the “Goth” sub culture or the Wiccans or whether anyone had read about serial killers.  

You don’t get to ask these questions unless it is clear to the judge that these are matters of evidence that will surface in the trial of the case. 

Note that the trial judge has ruled out the 911 dispatch tapes.  This tells us that the court has been asked at least once to exercise its power under California Evidence Code 352, the power to exclude evidence if its prejudicial effect outweighs its probative value. 

So we are entitled to conclude: References to Goth and the “dark side” have: (a) been objected to and overruled or (b) not objected to. Either way, we can now be sure that the jury will hear about them; otherwise the DA would not be entitled to ask these questions of prospective jurors in front of the whole panel.  [I note the juror questioning is taking place in open court with all prospective candidates of the day present.]

And why did the DA ask about these things?  Assume that the defense is attempting to use Scott’s contamination by these dark elements in the local culture, possibly by introducing expert evidence as to his mental state (see my earlier posting on the Medicalization of Evil).  Jewett will not want anyone sitting on the jury who has “special knowledge” of that subculture; no wild card vote allowed.  Is this our first hint of the shape of the defense? Or is it just a very cautious DA?

We can’t know yet.

7-25-06

POST #36.1

 

Jury selection is proceeding apace.  No surprise there.  We were told to expect opening statements Monday, July 31st, but jury selection finished early.  The outlines of the prosecution’s case are clear already.  That day will undoubtedly reveal where the defense is going with this.

 

JBG

 

7-26-06

POST #36.2

 

A correspondent asked me yesterday why PETA members and “affiliates” are routinely being kicked off during jury selection. Why indeed?

 

 

There was a hint in my earlier posting on Halloween 2005:

 

Eighth Posting: October 31st RUMORS AND COUNTER-RUMORS:

A DOG DAY AFTERNOON?

 

Try this on for size:

 

Young Dyleski, deeply upset by a hit and run vehicle injury to his beloved dog, seeks out Pamela Vitale, bludgeons her to death, carves a gothic or satanic (take your pick) symbol in her back, drinks a glass of water and takes a shower – all at the trailer home / scene of the crime, then repairs to his girlfriend’s place for solace.

 

And why does young Dyleski confront Pamela alone in her trailer home? Apparently because he thinks (no doubt mistakenly) that she was the driver of the hit and run car.  The same report suggests that the dog in question, a Border Collie, did not actually die until after Pamela did (who it must be pointed out, as an innocent human being was in a significantly different moral and legal category from Dyleski’s dog). 

 

And what of the reports that Scott’s ordered marijuana growing shipment was to be delivered at the Horowitz / Vitale construction site?  Not so, at least in this version.

 

Sorting out this sort of rumor and counter-rumor is why we have trials. 

 

Each “unnamed source” is portrayed as having a law enforcement origin (presumably from some sheriff’s deputy or investigator, or some civilian source to who the former supposedly conveyed the “information”). 

 

We might be forgiven for thinking that Judge Flinn’s gag order, leaking almost daily, has led to the unintended consequence of promoting even more unsubstantiated rumors that would normally dog a murder case. {Sorry}

 

Perhaps there was more to the dog incident that I thought.  If the DA suspects that the defense will rely on this as part of a mens rea defense (see my Post 33 for a legal analysis), then a prospective juror’s affiliation with or strong sympathy for a group that is fervent about animal rights could predispose sympathy (one might think) to a beloved dog’s avenger.  While that state of mind that could never legally justify a killing of a legal person, it might soften the juror’s assessment, leading to a second degree conviction.  Or so the DA suspects.

 

 

ALL PRETRIAL POSTS (MOST RECENT FIRST)

 

From the First Posting: October 20, 2005

 

The “why-done-it cases” are inherently less interesting than the “who-done-it” variety.  The unlawful killing of Daniel Horowitz’s wife, Pamela, will probably be an exception (at least in its early stages) because of the exceptional focus on this interesting criminal defense attorney—Danny is a public figure in a terrible situation, one that anyone who lives in the Bay Area and has loved ones in a vulnerable situation, can instantly relate to. 

 

I met Danny on a number of occasions over the years.  As a lawyer, he earned the affectionately bestowed “Hurricane Horowitz” title early on in his career.  You could always count on Danny to inject an amazing torrent of litigation energy into a case.  The televised pictures of Danny, torn by grief and pain, were hard for me to watch….  

 

Synopsis: The Case So Far…..

 

Danny Horowitz and Pam Vitale bought land in Lafayette, CA, a bedroom community in Contra Costa County, just inside the band of coastal hills that form the geological edge of the San Francisco Bay.  They would live on site while a large home was constructed for them.

 

For the most part, the Lafayette area is hilly, wooded and affluent.  The building site (as anyone could see from the helicopter shots on television) was a generous swath of level land in a hilly setting. The couple’s dream house-to-be was surrounded by trailers, building materials, and the modest trailer home that Pam and Danny would live in during building.  I met Danny on a number of occasions over the years.  As a lawyer, he earned the affectionately bestowed “Hurricane Horowitz” title early on in his career.  You could always count on Danny to inject an amazing torrent of litigation energy into a case. 

 

When Pam’s brutally murdered body was discovered on October 15th, 2005, the media immediately zoomed in on the grieving husband. The televised pictures of Danny, torn by grief and pain, were hard for me to watch.  

 

The prime suspect, Scott Dyleski, an older juvenile, was arrested a few days alter, charged with Pamela’s killing and will now be tried as an adult.  Biographical information and crime details began to surface early. Dyleski was implicated in utilizing stolen credit cards to buy grow lights for marijuana cultivation; the scheme linked him to the Horowitz Vitale site. He stands accused of beating and stabbing Pam Vitale to death, using a piece of construction material from the site and a knife he brought with him.  The DA believes he carved a Satanic symbol on the victim’s back then allegedly he took a shower in the Vitale / Horowitz trailer home while his victim’s bloody body lay nearby. The coroner’s report revealed a number of chilling details: Pot shards were found on Pamela’s head, apparently left when a pot was shattered with such force that her outer skull was exposed; the “symbol” carved into Pamela’s back was a crude “H”; the multiple stab wounds in Pamela’s back (as distinguished from the abdominal stab wound) were inflicted post-mortem.

 

A pathologist can determine whether a wound occurred after the victim was dead (i.e., after the heart has stopped beating) because the body behaves differently to trauma when there is a blood pressure than when there is not.  By a similar analysis, (in this case by noting the extent of “post mortem lividity) a pathologist can usually estimate how long the victim’s body spent lying in a single position). Pam’s body was face down and she was effectively dead when the stab wounds to her back were inflicted. 

 

The mark carved into Ms. Vitale’s body by her killer has been variously described as an “H” or as a “double T”, but both descriptions could easily depict the same thing.  The “Cross of Lorraine” may have been carved onto Ms. Vitale’s back.  That emblem represents two crosses sharing the same center pole; and seen on edge, the symbol makes a credible “H”.  Only the killer knows what symbolism was actually intended.  But it is clear enough that some symbolic meaning was meant – this mark was not the random gibberish of a drooling idiot, but the calculated sign of someone who – let’s not put too fine a point on it – you wouldn’t ever want dating your progeny, niece or nephew.  Ancient alchemists used this symbol to denote a powerful poison.  In Medieval France, certain conspirators against the regime used the symbol, as the “Cross of Lorraine”, a heraldic motif that depicted both the “arms of Christ” and the “arms of Satan”.

 

The Preliminary hearing took place February 14, 15, 16 and 17.  Among the witnesses, were Scott’s friend, Robin Croen, who was tied in to Dyleski’s s aborted scheme to use purloined credit card information to buy marijuana growing equipment delivered, David Curiel, and Scott’s mother, Esther Fielding.

 

Witness Roben Croen was granted immunity in exchange for his testimony. He testified that: Scott Dyleski told him (Croen) that he encountered Pamela Vitale while taking a walk on Oct. 15, the day of the murder. Croen, 17, testified that Scott had scratches on his face that day. Scott claimed the woman had accosted him. Dyleski expressed concern, worrying that Vitale’s DNA might be found on his clothing or his on hers, because she had “grabbed” Scott as he walked in Hunsaker Canyon. Dyleski left an hour later. Croen testified that he did not see him until Oct. 18. But when Dyleski met Croen at Acalanes High School, Scott told Croen that “he had an alibi and he was going to be fine.”

Witness David Curiel testified that he had moved into Dyleski’s room after police arrested Scott.  [Curiel’s brother was the owner of the home where Scott had lived with his mother, Esther Fielding.]  David called the police after he discovered Scott’s chilling “to-do” list as he cleaned out a dresser drawer Dyleski had used. The list included the names of people, with their personal information.  The list read in part: “Knock out/kidnap , question, keep captive to confirm PIN, dirty work, dispose of evidence (cut up and bury)”. David Curiel also said he overheard Dyleski telling his girlfriend, “Once they find my DNA on her body, they’re going to come after me.”

Mom was not a willing witness against her son.  Mrs. Fielding (Esther) apparently discovered Pam Vitale’s information on a list of credit card numbers kept by Scott in his backpack, but at the preliminary hearing, she recanted: “I don’t think I saw Pamela’s number.” Aware that suspicion for the Vitale murder would fall on her son, Mrs. Fielding became concerned that he might be keeping incriminating evidence. She told Scott: “I’m giving you one chance to get everything out of your room.” I’ve had many a criminal client who might have avoided conviction if only my client had garnered sufficient “forensic” support from good old Mom. Fortunately for the DA, Scott was a sloppy housekeeper.  Mrs. Fielding originally told authorities that Scott had placed the duffle bag, containing the suspect clothes, in the abandoned family VW Van, but she backtracked: “I think he said something about old clothes.” Mom later spotted the bag (in the company of a neighbor) in the van, but simply left it there. Mrs. Fielding admitted burning a book and some disposable gloves belonging to Scott. “It was a panicked reaction.”. The box of unopened gloves and a journal were burned by Mom at the home of her sister, Marjorie Fielding in Bolinas. At the same time, Sister Marjorie’s boyfriend, Robert, also burned Scott’s book, “Mass Murder.” Sister Marjorie eventually persuaded Scott’s Mom to turn over Scott’s knife, as well as some other belongings. 

 

The duffle bag has undergone a detailed forensic examination. It contained a bloody shirt, a black raincoat, a glove and a ski mask.  The DA’s forensic expert linked blood stains on the ski mask found in the duffle bag in the abandoned family VW van BOTH to Scott and the murder Victim, Pamela Vitale.  The implications are inescapable.  . The DNA evidence is a powerful statistical match, on the order of an excellent fingerprint ID. 

 

There is other evidence:: (a) The cross symbol carved in Ms. Vitale’s back resembles drawings among Scotts personal effects and a CD album cover; (b) Scott’s computer was used to order a “HawkBlade” knife; and he apparently depicted himself online with dark imagery (e.g., “Android Messiah” and a skull icon, among others); (c) artwork and poetry signed by Scott with heartwarming sentiments like “live to kill”.

 

On March 3 Scott Dyleski was arraigned for Special Circumstances Murder.

 

A trial date of July 17, 2006 was assigned.

 

 

 

 

 

7-14-06 

POST #35

 

As I expected, the defense motion to change the trial venue because of pretrial publicity was denied by the court this afternoon.  This means that the trial will start as scheduled with jury selection on Monday, July 17th.  Don’t expect to learn much about the case during jury selection. 

 

From time to time, the trial attorneys are given great latitude in questioning jurors and use this opportunity to give speeches about their respective positions, couched in questions like, “If the evidence showed that [fill in the blank here with a speech] then would that [incline you to lean] [cause you to lean] [fill in your own phrase here] … and so on.  I’m sure that will not happen.  Instead, I expect that the trial judge will take the lead in questioning the jurors, and that the questions asked by trial counsel will not give you much of a preview of the evidence to come.

 

Two possible exceptions: 

 

  1. If a defendant has irrevocably decided not to testify, sometimes the defense will attempt to defuse the issue during jury selection by reminding the prospective juror, for example, that one is not to speculate or draw any inference against a non-testifying defendant, and asking, “Can you faithfully follow that rule?” or words to that effect.  Of course, that would be a powerful signal from the defense that Scott will not testify. 
  2. It is also remotely possible that, if the defense has adopted a mitigation strategy (“Door B” Post 33 below), some of the questions of prospective jurors by Scott’s lawyer might reveal that stance as well.

 

Barring the unforeseen, we can expect jury selection to be pretty much uneventful, uninformative, and (dare I suggest it?) boring. 

 

But the selection of a jury in any murder case is a critical stage of the proceedings because some potential jurors are predisposed, however covertly, towards one side or the other.  Each side in the process will attempt to salt the jury with men and women who are biased in favor of their respective positions or at least strongly sympathetic to them. 

 

When the smoke clears, all the obvious cases of pro-defense or pro-prosecution jurors have been culled out.  This leaves the casual observer looking at 12 opaque human faces and reading tea leaves.

 

Frankly, the jury selection process in a non-death penalty murder case is not the sort of thing I (or anyone else) can effectively comment about without attending the courtroom every day.  So I am unlikely to have much to say in this space until the opening statements are given, probably during the week of July 24th.

 

Of course, if something really interesting happens before then, I will have something to say. And you’ll see it here first…

 

 

 

7-12-06 

 

POST #34

 

 

The Pretrial Motions: A Flurry or a Sputter?

 

There are only three working days left, including today, until Jury Selection begins.

 

To date, the DA has won one and “lost” two pretrial motions:

 

(1)   After objection, the DA voluntarily abandoned using “dog smell” evidence, a no-loss concession, especially in light of the fact that deputies had reputedly “smell-contaminated” the relevant scene before the canine olfactory detective was brought there to sniff.

(2)   The search and seizure objection to the entry and evidence collection at Dyleski’s home was overruled.  This was a critical win for the prosecution because key evidence would otherwise have been suppressed.  Attacking the search warrant was a long shot attempt by the defense. The authorities had obtained that search warrant using an application that was undoubtedly sufficient on its face. The burden of the defense was to prove the inclusion of material false information in that application or the inclusion of material true information. As a practical matter, that kind of attack almost always fails in a murder case, especially where the authorities are acting with reasonable care and good faith.

(3)   The 911 dispatcher’s tape of Daniel Horowitz’s initial phone call to police cannot be introduced by the DA in the case in chief. This is not an uncommon ruling, although it could easily have gone the other way. Exclusion does little or no real damage to the prosecution since the caller, Mr. Horowitz, is available as a witness and will undoubtedly testify about the grisly scene he encountered in his home on October 15th of last year.

 

Friday, the defense will move for a change of venue, presumably based on pretrial publicity.  Unless I’ve missed some juicy disclosure, almost nothing has been published in the media that the jury won’t hear about during opening statements. 

 

No one really wants this case tried in LA.  I suspect the defense is pursuing this motion to “protect the record” so that some second guessing appellate attorney won’t allege incompetence.  

 

Prediction is always difficult, but if the venue of this case is ordered changed, you can color me shocked.

 

Stay tuned.

 

 

 

7-11-06 

 

POST #33

 

 

The Medicalization of Evil Defense

 

Prediction at this distance is an art form, not a science, but we can expect the defense to go down one of two paths, starting with Door A: who-done-it or Door B: why-done-it.  For the reasons I’ve outlined in earlier postings, I think Door B is the only viable course open.  The case is ripe for this approach because the punishment differences between murder second for a teenager (who gets out as an adult with most of his life ahead of him) vs. special circumstances murder (who never gets out) are dramatic. 

 

It would be irresponsible (provided the defense is allowed to pursue option B by the client) to reach for the unobtainable, through Door A (an acquittal), when that very act of overreaching will become an obstacle to mitigating the offense. 

 

In other words, Dyleski’s punishment is tightly linked to his state of mind at the time of the offence because of something lawyers call mens rea (Latin for “evil mind” or “criminal mind”). In Scott Dyleski’s case the mens rea to be proved by the prosecution is the specific mental state required for a first degree special circumstances murder.  See my earlier postings for a detailed analysis. [Esp. #25B, #’s 27-31]

 

But California has restricted some of the common defense ploys in this area by outlawing the so called “diminished capacity” defense, in effect banning the attempt to show that, by virtue of intoxication or other mental state, the defendant could not or was unlikely to have the required mens rea.  But this does not bar the defense from trying to show through the testimony of experts and other (possibly including the defendant) that the accused did not actually form the required “guilty” intent. 

 

In SD’s case a mens rea defense could come about in a variety of ways.

 

For example, the defense might suggest that there was some kind of prearranged business meeting between Pamela Vitale and the defendant. This would be used to attempt to show that SD entered the trailer home with permission and without the pre-existing intent to commit a felony assault or theft inside.  Thereafter, this theory would assert that some kind of quarrel erupted and young SD snapped, killing PV after a struggle.  The jury would be left (optimally) with a choice between manslaughter and second degree murder, the punishment for either of which has a get-out-of-prison date. 

 

This path might superficially appear attractive to the defense, but it is a non-starter unless Dyleski or some other witness credibly testifies in its support.  Moreover, the entire defense house-of-cards would rest on shaky speculation. And this defense would collide in any event with a possibly fatal obstacle: Few jurors are likely to buy the notion (which I personally find repellant) that Pamela Vitale was anything other than an innocent victim.

 

And even this line of defense must overcome the bizarre Satanic implications of the knife carvings on the victim’s back, the serial killer implications of the dreadful note found in SD’s former dresser, and the other intimations of a pre-existing evil mindset.  As it happens, one possible way out of this box would also generate an independent mens rea defense that does not involve attempting to dirty the victim. It would involve painting the picture of a loopy, mentally damaged teenager whose grandiose schemes were nine parts fantasy to one part reality, the product of a troubled and bizarre childhood.  That alone, of course, would not amount to much until and unless it explained SD’s entry into the Vitale-Horowitz home.  Here, one might argue that in SD’s fevered mind, Pam Vitale was holding something of value, possibly something that he believed had been misdelivered to the Vitale-Horowitz address.  This simplifies the proof.  It doesn’t matter that Pam was innocent of any prior dealings with SD.  Everything needed for the mens rea defense comes out of Scott’s head, so to speak.  In this scenario, Scott asks to come in, Vitale agrees, a dispute erupts, SD explodes in fury, then… Well, you get the picture.

 

This sort of picture is usually painted though the trained eloquence of a hired mental health expert witness.  It marketability depends on the difficulty many people in the current culture have in believing that real evil exists in the world.  This is the “modern” notion that bizarre crimes of this nature are always the result of “sickness” rather than moral/immoral choices.  The attempt to medicalize evil has been with us for at least 80 years in one form or other.  I suspect that at least half the jurors called to serve on the Dyleski case would be at least potentially receptive to the approach.

 

 

7-10-06 

POST # 32

 

JURY SELECTION STARTS IN ONE WEEK

 

Barring last minute developments, such as a plea bargain or a flurry of defense motions (neither scenario appears likely), we can expect a tedious, week-long jury selection process to start late Monday morning on July 17th.

 

There is no death penalty for persons under 18 years of age at the time of the killing, so the single jury selection complication will be the task of ferreting out those jurors who have been “tainted” by pretrial publicity.  Because the Gag Order has been scrupulously adhered to by the parties, witnesses and attorneys, publicity issues will be a minor subtext.

 

By the way: Kudos to Gloria Allred for attempting to challenge the Gag Order. It was a foredoomed project, especially as addressed to the U. S. Supreme Court. There are almost never the necessary votes to interrupt a pending criminal trial, except in the most egregious circumstances.

 

The issue of an overbroad Gag Order is more effectively joined when a brave reporter, party or witness chooses to violate its terms in order to test the limits.  This normally results in a contempt citation by the court and a jail sentence. There follows an appeal via a writ of habeas corpus and likely federal court intervention, usually by a single federal judge. 

 

Ms. Allred is to be forgiven for not taking that courageous step, especially when going to jail would have interfered with her primary obligation, the representation of her client, the “mystery witness”. This person is undoubtedly Scott Dyleski’s girlfriend, hereafter called “Mystery Girl”. 

 

I feel confident in predicting that “Mystery Girl” will supply the major drama in this case – at least until or unless Scott himself testifies. 

 

The DA had a solid reason to grant MG immunity, and Mystery Girl had an equally solid reason to get herself a high profile lawyer. 

 

Conflicted witnesses tend to give inconsistent testimony. Sparks will fly when “mystery girl” is called to the stand.

 

Meantime, the prosaic process of selecting 12 jurors and a few alternates will hold interest mostly for insiders. I’ll comment on that process as it seems important.

 

The real drama will start with opening statements several working days later.

 

 

6-8-06 

POST # 31

 

THE TRIAL STRATEGIES

 

By now the witness lists have been drawn up for each side; all of the essential discovery items have been traded; and the shape of the case is well known to the insiders.

 

The shape of the defense case starts with the defendant:

 

·        Did he talk to the authorities?

·        What is he now telling his lawyers?

·        Will he testify?

 

The most important of these questions is the last one.  If your client insists on taking the stand in his defense, the shape of the defense case is immediately constrained:

 

The defense shalt not undermine the client’s testimony, however unmarketable it may be.

 

A necessary disclaimer: In my commentary about the Dyleski case, I may sometimes seem to be speaking with the authority of an insider, often making assertions that are framed as if based on first hand knowledge.  They are not. All is opinion, expert opinion, to be sure, but opinion nonetheless. My sources are the published reports about the case and insights derived from my own forensic experience as a trial lawyer. 

 

THE DA’S CHALLENGES

 

From this remote viewing platform it is easier to discern the likely shape of the prosecution’s case, so I’ll begin with a quick overview of the DA’s challenges. 

 

I believe that the DA will swiftly and convincingly be able to prove to any reasonable juror that Scott Dyleski was arm deep in the bloody scene of Pamela Vitale’s killing. 

 

The “Who Killed Pam?” question should be decisively settled by the DNA evidence. Items of clothing that are linked to Scott D reportedly contain identifiable traces of blood that belonged to him and to Pamela Vitale. A bloody footprint at the crime scene may also be linked to Scott. When the fog has cleared the courtroom, I believe the jury will not find a reasonable innocent explanation for these damning facts.  In my opinion, no reasonable innocent explanation exists…outside of fantasyland.

 

A brutal knife killing of this type, unless explained, supports a murder conviction, at least of the second degree.  From the perspective of the DA, the real challenge consists in getting to first degree murder and – if possible – to special circumstances murder.

 

As it happens, there is a clear path to both.  Assume Dyleski intended to commit a theft or some felony offence when he entered the Vitale-Horowitz trailer home (even if that entry was via an open door). Then the ensuing fatal knifing becomes a first degree murder by operation of the felony murder rule.  The entry into someone’s dwelling with the specific intent to commit a theft or a felony crime therein is a burglary, even without a clandestine breaking-in. A homicide committed in the course of a burglary is a first degree murder by operation of law.

 

Here is the potentially applicable special circumstances murder:  Penal Code Section 190.2 (17): “The murder was committed while the defendant was engaged in … (G) Burglary in the first or second degree.”

 

Burglary (P.C. Section 459): “Any person who enters any house … [or] building … with intent to commit grand or petit larceny or any felony is guilty of burglary.”

 

An assault with a deadly weapon or by “means of force likely to produce great bodily injury” is a felony offence.  (Section 245 P.C.)

 

I said the DA has a clear path to this outcome, but not necessarily an easy one.  The challenge will be to prove the killer’s state of mind at the time of the entry into the Vitale-Horowitz home. So far, the DA has or may well have the following evidence that would be persuasive on  the issue of the killer’s pre-existing intent:

 

  • Dyleski’s gloves, because they support the theory that he planned, prepared and premeditated the confrontation.
  • Dyleski’s “death note” in which the author seems to be planning a series of crimes in which he will chop up the bodies of his victims.
  • And….?  Watch for statements by SD to the police or third parties (family members, girlfriend, for example) about this.  Because of the gag order we can’t yet know what else the DA may have on the issue of intent.

 

The DA’s challenges are all in the category of proving linkages beyond a reasonable doubt.

 

The incriminating items of clothing with identifiable blood traces are linked to SD by proximity, because the van was kept near where Scott lived, and he knew about and used it.  More importantly the items are linked to Scott by the almost impossible to explain coincidence that both Scott’s blood and the stabbed woman’s blood were recovered from the same place.

 

The DA will need to strongly tie the death note to the defendant.  Its location in the dresser in the room where Scott formerly resided powerfully suggests, but falls short of definitively proving that it was written by Scott. Look for the DA to link it to the defendant though material found in Scott’s computer, possible statements to friends, and by handwriting analysis.

 

The Defense Challenges

 

A realistic defense strategy will focus on the first degree elements, essentially turning the trial into the question: What was Scott thinking? 

 

If during opening statements, we hear “He was framed” or the outline of a broadband reasonable doubt attempt to generate a “who-done-it” case, we can infer that the defense strategy has been crippled.  This will imply that young Dyleski has forbidden any mitigation defense; and that the adopted strategy (doomed in my opinion) is to go for broke.

 

In my later postings I will begin an analysis of defense strategies.

 

 

 

 

 

CHRONOLOGICAL ARCHIVE

ALL POSTINGS THROUGH MARCH 06

 

 

First Posting: October 20, 2005

 

 

The “why-done-it cases” are inherently less interesting than the “who-done-it” variety.  The unlawful killing of Daniel Horowitz’s wife, Pamela, will probably be an exception (at least in its early stages) because of the exceptional focus on this interesting criminal defense attorney—Danny is a public figure in a terrible situation, one that anyone who lives in the Bay Area and has loved ones in a vulnerable situation, can instantly relate to. 

 

I met Danny on a number of occasions over the years.  As a lawyer, he earned the affectionately bestowed “Hurricane Horowitz” title early on in his career.  You could always count on Danny to inject an amazing torrent of litigation energy into a case.  The televised pictures of Danny, torn by grief and pain, were hard for me to watch.  

 

The prime suspect, an outed juvenile, has been arrested and will undoubtedly be charged with Pamela’s killing.  Given the extraordinary attention to this case, it’s not surprising that this 16 year old’s identity was floated almost immediately.  I’ll leave it to a later posting to use his name.  For now, you can go the Nancy Grace for that and other details about the crime.

 

The following is based on several reasonable suppositions: (1) that the forensic evidence strongly places the suspect at the killing scene; (2) that no powerful exonerating evidence will emerge, raising a Geragos-style who-done-it theory; (3) that the killer will be charged with first degree murder.  

 

This means that “D” will be on a fast track to adult court after being remanded to the adult court jurisdiction under the appropriate law. [See Welfare & Institutions Code section 707, et seq.] More on the process later. At this writing, we only know that “D” is in custody and referred to the DA for charging.

 

Any prospective defense attorney for “D” will be hoping that the forensic and other evidence will support some kind of quarrel scenario.  Without more, this would open up a path to a second degree murder or even voluntary manslaughter conviction, each of which would result in parole, probably well before “D”. reaches the victim’s age.  But the worry will be whether there is evidence of robbery or sexual assault.  These elements would escalate the case to special circumstances murder which, for a juvenile in adult court, carries life without possibility of parole.

 

I’ll deal with the “why” issues in later postings, but for now, permit an early observation:

 

D’s case may well present us with the poster child for what is dreadfully wrong with the current non-religious culture, a milieu in which children are too rarely raised in authentic reverence for the deep ethical traditions that have held up earlier generations. 

 

Think about it: In an earlier era, even the bare suggestion that a homicidal minor was involved in some kind of satanic activity would have been extraordinarily sensational.  Something in the general lurid category of “two headed alien’s body found in ditch”. Sadly, the hints of a satanic connection (that I assume to be true here for purposes of this discussion, only) produce a different reaction:  Oh, one of those again.”

 

So common has the cultural deterioration become that we are no longer surprised by evil in high school.

 

 

Second Posting: October 24, 2005

 

SCOTT EDGAR DYLESKI WILL BE TRIED AS AN ADULT ON THE CHARGE OF MURDERING PAMELA VITALE.

 

The fast track to adult court was a clean bypass. 

 

As allowed by Welfare and Institution code 707 (b) and (d), the almost-17-year-old Layayette High School student, Scott Edgar Dyleski, was charged directly as an adult offender and will be arraigned on Thursday October 27th on charges that he murdered Pamela Vitale.  His family has retained Thomas McKenna, a Walnut Creek attorney, to defend.

 

Biographical information and crime details have begun to surface. Dyleski reportedly lost his half sister in a car accident three years ago. He has been implicated in utilizing stolen credit cards to buy grow lights for marijuana cultivation. He allegedly carved a symbol on the victim’s back (before or after) she died. He is accused of beating her to death with a piece of construction material from the site (where Danny & Pamela lived while their dream home was being built). Then he apparently took a shower in the Vitale / Horowitz trailer home while his victim’s bloody body lay nearby.

 

We’re still not hearing any crime details that would support special circumstances murder charges (a sexual assault for example, or robbery). So as it stands, we have an unexplained fatal beating of an innocent adult female victim who was minding her business at home until her life was ended by a homicidal teenager.

 

The DA’s fast track path to adult court could technically be reviewed or even set aside by the judge at the preliminary hearing (date not set), but only if evidence of the predicate murder charge (as opposed to some lesser offense) were deemed not sufficient. 

 

This is not going to happen. The function of a preliminary hearing in this state is to determine via admissible evidence whether the charged crime(s) (and /or related or lesser crimes) were committed and whether the accused did it.  The standard of proof at that hearing is far less than beyond a reasonable doubt. That burden of proof will easily be met. 

 

Theoretically, the preliminary hearing itself could be bypassed if the DA elects to proceed by Grand Jury.  It’s a rare gambit, but when utilized, it deprives the parties of the opportunity to cross examine witnesses, and the press of an early public airing of the key evidence.  I’m expecting we’ll see a preliminary hearing, but not very early.

 

The immediate defense task will be to interview Scott, obtain and review the discovery materials (police, forensic, lab and witness reports) and initiate its own investigation.  The press will be seeking a defense comment.  Expect a vague softball, something like, “This is a huge tragedy for everyone. We’re confident that when the full story can be told…..” And so on.

 

If evidence suggesting some “satanic” influence on Dyleski has been uncovered (one wonders, for example, what exactly was carved into the victim’s back, described in one report as a Gothic symbol), we can expect that the DA will instruct the investigating police authorities to put a lid on it.  I note one published theory that Dyleski had come to the Horowitz / Vitale trailer home to discuss what had happened to his marijuana growing supplies (presumably to have been delivered there without Vitale’s consent).  That could have only originated with a law enforcement source.  The DA will want to shut that sort of thing down right away, unless he is preparing to ship a prosecution team to Death Valley to avoid pretrial publicity.

 

A prudent defense attorney would concur.  But no one can prevent family and acquaintances from talking.  Cameras and the lure of fame, however transient, are seductive. 

 

We’ll learn much more soon…

 

 

Third Posting, October 26th:THE GLOVES ARE IMPORTANT

 

More crime scene evidence has been disclosed:

Blood spatter evidence and other evidence of Pam Vitale’s final struggle for life; a stab wound to her abdomen; a shoeprint; and the theory that the killer was wearing gloves. 

 

The probability that, in spite of gloves and the post homicide shower, the killer left DNA traces at the scene has increased. If only a stray hair from the killer was recovered (which leaves a less definitive mitochondrial DNA trail than a serum sample containing cell nucleus DNA), the prosecution will have a very strong case. Given the overall circumstances, we can assume that the recovery of any DNA evidence linked to the defendant will virtually clinch the whodunit question.

 

What is the most significant discovery (assuming it bears out)? The theory that the killer wore Gloves. 

 

Of course, there would need to be fiber traces mingled with blood smears for this assertion to be proved, or other compelling forensic evidence (more than the mere absence of fingerprints). 

 

Why is this important to the case?  It supports the implication that the killer planned the confrontation.  From this sort of thing it becomes a fairly straightforward matter for the prosecutor to build a first degree murder case. 

 

Is there also a special circumstances murder theory lurking in these facts? 

 

Has the defendant made a statement? 

 

 

Fourth Posting, October 27th : There Goes The Neighborhood…

 

About the scene surrounding the crime:

 

Danny and Pam bought land in Lafayette, CA, a bedroom community in Contra Costa County, just inside the band of coastal hills that form the geological edge of the San Francisco Bay. 

 

They would live on site while a large home was constructed for them.

 

For the most part, the Lafayette area is hilly, wooded and affluent.  The building site (as anyone could see from the helicopter shots on television) was a generous swath of level land in a hilly setting. The couple’s dream house-to-be was surrounded by trailers, building materials, and the modest trailer home that Pam and Danny would live in during building. 

 

The road next to the site is a private one, a sign of the kind of secluded neighborhood that attracts people with the money to buy privacy and the need to maintain it. 

 

The scuttlebutt among realtors was that the surrounding area had a reputation. Reputedly it was home for one of more drug dealers. I am in no position to verify that rumor, but realtors tend to know these things.  Most drug dealers prefer to live in seclusion, far from the drug markets that support them. 

 

Pam and Danny’s dream home was badly sited. Tragically, it was in an area less secure than they would have hoped and by virtue of this murderous invasion, it became the epicenter of intense media interest.

 

Sometimes the privacy comes as far too high a cost and is shattered anyway.

 

Irony requires a sense of detachment.  The Horowitz-Vitale location wasn’t ironic, it was a really, really unlucky confluence of circumstances. Frankly, many of Northern California’s most beautiful, undeveloped places, the ones that afford the greatest seclusion, are the most dangerous places to live just because of those same attributes. Now that is ironic.

 

About Scott:

 

For purposes of the following discussion, I will assume for the moment that the stories about young Dyleski’s attempt to assemble the elements of a little marijuana growing empire are true.

 

We hear no suggestion that Dyleski’s mother was not law abiding. But it is clear enough that Scott had some negative role models to follow. 

 

But his apparent criminal sophistication was pathetic. The cleverness of his money making scheme was underwhelming. 

 

  • Where was he planning to grow the marijuana plants? 
  • Was he going to sell the product in high School? 
  • Did he really think his theft of credit card numbers from mailboxes wouldn’t come back to him eventually? 
  • When he approached the trailer home of Pam Vitale, what did he expect to find? Boxes of mis-delivered grow lights? 
  • Assume he came to Pam’s door wearing gloves. Why?

 

Established drug dealers tend to even scores and settle disputes by deadly means.  But they tend not to carve Gothic or satanic symbols in their victim’s backs. No, young Dyleski (again I assume for purposes of this discussion only that he did this killing) betrayed no such ordinary motivation.  This killer was in the thrall of something much darker and more malevolent than ordinary greed. 

 

As I intimated earlier, we may have in this case the makings of a poster child for what is dreadfully wrong with our culture.  If any good comes of this sorry episode, maybe it may be the realization that young people like Scott are the canaries in our mine. 

 

Evil (as I occasionally remind my naïve friends) is one of the realities of modern life every bit as much as it was in ancient times.  Only now we just use the term “sick”, as if by “medicalizing” a profound moral mal-orientation, we can somehow create the comforting illusion that the world consists entirely of good people, some of whom occasionally “catch” a case of “badness” as if it were some kind of cold. Evil, in this faux-therapeutic mindset, is a very bad flu.

 

 

Fifth Posting October 27th

 

SCOTT EDGAR DYLESKI IS ARRAIGNED AND MCKENNA WITHDRAWS AS COUNSEL TODAY.

 

In a brief appearance this afternoon before Superior Court Judge Flinn, attorney Tom McKenna was permitted to withdraw, and Scott Edgar Dyleski’s murder case was referred to the Contra Costa Public Defender.  I assume that McKenna had been retained earlier by the mother, possibly in connection with the investigation into Scott’s credit card fraud activities. Representation on the murder matter would have commanded a much higher fee, no doubt beyond the mother’s means. It is also possible that McKenna now has a conflict of interest, especially if he or one of his employees has become a witness to some aspect of the new case. We may never know, as these things are usually well cloaked by attorney/client confidentiality. [According to one report, McKenna defended the driver who killed Scott’s half sister.]

 

Dyleski is charged as an adult with murder in the first degree. 

 

Judge Flinn has imposed a temporary gag order, applicable to the DA, defense, police, and witnesses.  The scope and permanence of that provisional order (which may be challengeable on first amendment grounds as to private witnesses) will be taken up by the court on November 10th.  It does not apply to the press, of course.

 

Meantime, Dyleski is to be interviewed by a staff attorney assigned by the public defender who will report to the court, presumably ready to enter the expected not guilty plea, on November 9th.  The Contra Costa Public Defender’s office employs a number of experienced trial attorneys who have handled murder cases. 

 

A number of official sources exist from which we can glean the outlines of the case against Dyleski. These include search warrant applications that were presented to the court for approval and the search warrant returns that describe the items seized. For example, we now know that a bag was collected by sheriff’s investigators from a vehicle parked at Dyleski’s home.  Among other things in that bag was a glove. There was blood on the glove. 

 

So the noose tightens. 

 

 

Sixth Posting: October 28th : MOM JOINS SON IN CUSTODY AS AN ACCESSORY

 

 

Note to the working press:

Scott Edgar Dyleski has graduated.  Now that he has been charged by a felony complaint with the first degree murder of Pamela Vitale and has duly been arraigned on that offense before a Superior Court judge, the SUSPECT description is no longer apt.  He is now officially a DEFENDANT.  The sole remaining question is whether, after adjudication, he will matriculate to the status of CONVICT.

 

 

 

Esther Fielding, Dyleski’s mother, has been arrested as an accessory to the murder.  No wonder the Public Defender was called in to defend Scott. Mom has her own legal difficulties to pay for.  Note that she was not charged as a principal.

 

Under the general rule:

 

  • Any principal to a felony offense, defined as one who commits the offense, causes, aids, advises, or encourages the same (see Penal Code sections 27 & 31) is punishable to the same extent, whether doer or helper. 

 

  • An accessory to a felony is one who harbors, conceals or aids the principal, with the purpose to frustrate the authorities who are assigned to apprehend the alleged miscreant.  Being an accessory to a murder is a felony offense, but it carries a comparatively short prison sentence. 

 

There is no “But I’m the mother” exception or defense.

 

It turns out that Esther, Scott’s mom, was absent from his Thursday arraignment because she was already in custody, having been arrested for being an accessory to her son’s murder of Pam Vitale. This means, on the face of it, that the authorities believe she did something significant to help her son evade justice.  Her initial bail was set at $ ½ million, so there may be some aggravating elements, such as a supposed flight risk. 

 

From the reports so far, we can only glean that on the night that the Sheriff’s officers were looking for Scott, Esther Fielding was “interviewed” for several hours. She apparently gave up her son’s whereabouts and he was arrested in Walnut Creek.

 

Did Esther do more than stall during interrogation to assist Scott’s attempt to evade justice?  Expect a bail reduction and Mom’s pretrial release, unless she is believed to more culpable than first appears.  Is there is more going on here than meets the eye?  

 

 

SEVENTH Posting: October 29th : MOM IS FLIPPED: TESTIMONY TRADED FOR RELEASE

 

Esther Fielding, Dyleski’s mother will now cooperate with the DA. Yesterday, I asked whether there was more going on here than meets the eye. There was.  Friday, DA Jewett, working with Esther’s attorney, Blackie Burak, obtained an agreement that Mom will testify against son for dismissal of the accessory charges.  I suspect she will be called right away (before she changes her mind) to link young Dyleski to the “death glove” found in his car, among other things. 

 

It also came to light yesterday that Scott’s girlfriend, with whom he apparently was staying on the night of his arrest, was compelled to testify before the Grand Jury.

 

The newly revealed Grand Jury involvement is very significant for press access to information about the case (especially in light of the gag order) because it reveals that the DA is undoubtedly seeking an indictment instead of proceeding solely by complaint and preliminary hearing. Recalling my Second Posting:

 

Theoretically, the preliminary hearing itself could be bypassed if the DA elects to proceed by Grand Jury.  It’s a rare gambit, but when utilized, it deprives the parties of the opportunity to cross examine witnesses, and the press of an early public airing of the key evidence.”

 

The “no preliminary hearing gambit” is no longer a theoretical possibility.  I note that Dyleski’s first attorney was in agreement with the DA regarding the judge’s gag order.  Since the gag issue comes up again on November 10th, presumably with the public defender standing next to Scott, the press would be well advised to be separately represented then.  It has been my experience that most attorneys, most of the time, are loath to travel to some remote jurisdiction for trial.  Given some of the lurid details we might expect to hear at preliminary hearing and the prospect that a change of venue might then be sought, the defense and prosecution might be in agreement to retain the gag order in order to tamp down media attention.

 

 

Eighth Posting: October 31st RUMORS AND COUNTER-RUMORS:

A DOG DAY AFTERNOON?

 

Try this on for size:

 

Young Dyleski, deeply upset by a hit and run vehicle injury to his beloved dog, seeks out Pamela Vitale, bludgeons her to death, carves a gothic or satanic (take your pick) symbol in her back, drinks a glass of water and takes a shower – all at the trailer home / scene of the crime, then repairs to his girlfriend’s place for solace.

 

And why does young Dyleski confront Pamela alone in her trailer home? Apparently because he thinks (no doubt mistakenly) that she was the driver of the hit and run car.  The same report suggests that the dog in question, a Border Collie, did not actually die until after Pamela did (who it must be pointed out, as an innocent human being was in a significantly different moral and legal category from Dyleski’s dog). 

 

And what of the reports that Scott’s ordered marijuana growing shipment was to be delivered at the Horowitz / Vitale construction site?  Not so, at least in this version.

 

Sorting out this sort of rumor and counter-rumor is why we have trials. 

 

Each “unnamed source” is portrayed as having a law enforcement origin (presumably from some sheriff’s deputy or investigator, or some civilian source to who the former supposedly conveyed the “information”). 

 

We might be forgiven for thinking that Judge Flinn’s gag order, leaking almost daily, has led to the unintended consequence of promoting even more unsubstantiated rumors that would normally dog a murder case. {Sorry}

 

Still the new theory, with all its weaknesses (e.g., the gloves need to be explained and the sheer deadly excess of the attack, among other things), does allow counsel later to argue in mitigation that this killing was a sudden quarrel ignited by the passion of an unbalanced youthful mind, and so on.  It is essentially a second degree murder argument with a very weak (and unmarketable) manslaughter component. 

 

In the absence of strong evidence of premeditation (that the gloves alone may or may not support) or of an accompanying felony offense (such as robbery or burglary), the prosecution may have difficulty making out a first degree case.  But that assessment is very premature.

 

Rarely does defense counsel move quickly to the plea bargain phase in cases like this.  This is partly because the effort is probably futile right now, and partly because few defense lawyers are confident enough in what they know about the case at this early stage to make firm recommendations to a client. The DA, in turn, operates under tight constraints in high publicity cases.  All eyes are relentlessly trained on the prosecutor who, having charged the case as murder in the first degree, is expected not to seem lenient. 

 

Ironically, a second degree conviction can be operatively identical to a first degree one, since both carry a “life top”. Many second degree murder convicts are not paroled until after they would otherwise have been parole eligible on a first.  This makes any attempt to engage in sentencing bargaining an actuarial guessing game at best.  The odds favor a jury trial.

 

Ninth Posting: November 2nd  :WILL WE SEE A PREMINARY HEARING?

 

Gloria Alred, another celebrity attorney, is reportedly representing a young female witness whose home was searched by police; this witness is undoubtedly Scott’s girlfriend.  As Ms. Alred was holding forth on Court TV, Judge Flinn pointedly called her attention to the gag order.  Now Gloria is suddenly silent.  Sorry.

 

The DA, having used the Grand Jury as a vehicle to compel the testimony of reluctant witnesses, is very unlikely to abandon it as a vehicle to bypass the preliminary hearing, thus depriving the insatiable media appetite for a public airing of the crime details. 

 

But there is still another legal consideration.  Because testimony before the Grand Jury is not subject to cross examination, it cannot be used as independent evidence at trial (only as the basis for cross examination of a live witness).  This becomes an important consideration only when a key witness becomes unavailable at trial.  Prior preliminary hearing evidence of the absent witness can be used, but prior Grand Jury testimony cannot.  Whether this consideration will cause the prosecutor to schedule a preliminary hearing is an open question.

 

 

Tenth Posting: November 4th  : THE GIRLFRIEND

 

Reflecting on the case, it becomes apparent who the key witness must be, the single person most likely to help or hurt Robert’s chances of avoiding the maximum conviction. 

 

Recall, that as long as the prosecution can definitively place the defendant in the murder melee, a place he otherwise would have no obvious legitimate reason to be, a conviction of murder second seems virtually assured, absent compelling counter-evidence from the defense.

 

You know that if the following is true: (A) i.e., that Scott is the killer and (B) that he spent the night of the killing with his girlfriend, then it follows that he undoubtedly he talked about it with her. 

 

Having “harbored” a killer, the girlfriend (in this scenario) would be as culpable as an accessory as was Mom, and therefore subject to the same leverage.  You can be certain that Ms. Alred has been negotiating on behalf of her client to the probable detriment of young Dyleski.

 

What did he say that night?  Did he brag?  Did he lie?  Did he try to avoid the subject? 

 

Those who are curious about why Scott went to the Horowitz-Vitale residence in the first place (to avenge a dog? to recover grow lights? for some other, yet un-discussed purpose?) will include the District Attorney’s office. 

 

If we don’t hear of Scott’s girlfriend’s arrest as an accessory, we can assume that the lesson of Mom’s arrest and release was not lost on her.  Of course she’s been talking….

 

 

Eleventh Posting: November 9th  : THE ARRAIGNMENT IN MARTINEZ

 

The media, hungry for information about this case, swarmed around Scott Dyleski’s arraignment appearance today in Martinez, CA. Media attention was almost involuntary at this point; cameras were seeking another peek at the defendant, a look at his new attorney; reporters were trying to exploit an opportunity to ask questions that – thanks to Judge Flinn’s gag order – can’t really be answered. 

 

When can we expect the next flood of information?  If (as I now expect) the DA proceeds by Grand jury indictment, individual private witnesses (think of Scott’s girlfriend, here) would be potentially available for interview after they have testified.  This availability would depend, of course on whether the witness and witness’s counsel agree to talk, and whether Jude Flinn’s gag order has been narrowed to conform to the First Amendment.  Any non-subpoenaed witness not a member of law enforcement or of the defense legal team would be fair game.

 

If the case proceeds by preliminary hearing then we could expect to see a mini-trial, much as in OJ and Scott Peterson.  And there is always the prospect that counsel will file a motion, the contents of which will find themselves into print and the speculation mill.  Absent these developments, further information depends on the media doing the following: (a) aggressively challenging the gag order (b) proactively interviewing all witnesses who are outside its scope.

 

When the arraignment finally took place, anticlimax hardly captured the moment. Scott, now 17, was formally arraigned with counsel from the public defender’s office this afternoon, and entered a plea (surprise) of not guilty. 

 

The prosecutor has declined to say whether there will be a preliminary hearing. [Don’t hold your breath while waiting for one.] Scott and the lawyers will reappear on December 8th, ostensible to pick a date for a preliminary hearing.  Dyleski has waived his right to an early preliminary hearing (a common step in these cases because defense counsel needs extra time). Whether one is likely to take place (or whether there will be a Grand Jury indictment) should be evident on or before the 8th of December.

 

There were no new crime details whatsoever.

 

Early reports from the courtroom were silent about which attorney from the Contra Costa Public Defender’s office was selected to defend him, or whether other arrangements were being made. In one report from the scene, Scott’s public defender attorney entered his not-guilty plea for him.  The press managed not to name the lawyer.  Talk about low profile! I suspect the specific trial lawyer who will handle Scott’s case may not have been identified today, and that another lawyer may have made this early appearance.

 

Meantime, the date on which the court will review its existing gag order was changed from tomorrow to a date later in November. This suggests that the court will be addressing issues of scope and duration of the provisional order and that one or more of the media will be present with counsel.

 

 

Twelfth Posting: November 11th : BEING GAGGED?

 

No further information has surfaced about who (presumably from within the Contra Costa Public Defender’s office) will appear for Dyleski on December 8th, but we will probably learn more when attorneys show up on later in November to discuss the gag order. 

 

On that point, we can expect that Gloria Allred who (represents an unnamed witness --undoubtedly Scott’s girlfriend) will weiggh in against the gag order, seeking changes to allow “public commentary on matters of public interest”.  This foreshadows the First Amendment arguments that would be made for members of the media (assuming they are represented by counsel) on the 19th. At present, the gag order appears to be overbroad. I would expect the press to pool resources, hiring counsel who would seek to open up the case for greater public scrutiny.

 

 

Thirteenth Posting: November 13th: WAITING FOR DNA

No reliable public account exists describing the recovered and examined physical evidence at this stage of the case.

 

We’ve been told, for example, that police sources believe the killer drank a glass of water after the struggle.  It’s a reasonable inference that the drink was taken after (certainly not during), but what if it was before? That would imply the killer was invited in. What forensic evidence suggests that it was the killer who drank from the glass rather than the victim?  One assumes the glass had some blood on it or even fingerprints that could be reasonably linked to the killer. 

 

Traces of blood were evidently found on gloves found in a car linked to Scott Dyleski.  Some speculation has surfaced that they were bicycle gloves, the kind with open fingers (thus allowing fingerprints and undercutting one possible premeditation theory), while others have opined that they were work gloves.

 

Their incriminating nature, however, would depend on the identification of the blood found on them.  Given the violence of the struggle with Pamela, it is not out of the question that both victim and killer blood DNA have been found on one or both gloves. 

 

If so, that would pretty much sew up the “who-done-it” aspect of the case, leaving the why question dangling.

 

The defense does not have automatic access to view the physical evidence collected by the Sheriff’s Department. Examination normally requires a court order (routinely granted).  Sometimes the defense will arrange for a non-government expert to perform its own forensic tests on physical evidence in the possession of the prosecution. Again that requires a separate order, and assumes that the original substances to be tested (blood traces for example) weren’t exhausted in the government’s original examination.  All this takes time.

 

While those legal and investigation steps are taking place, we are entitled to wonder what prompted the early reports (and denials) that the Scott had arranged for marijuana growing equipment to be shipped to the Horowitz-Vitale home site.  If the early reports were true (i.e., that the death site was the intended delivery point), then we might imagine a plausible reason for a dispute between Pamela and the would-be teenage drug producer who came to her door. For example, Pamela might have answered the door to an engaged young man raving about a delivery she knew nothing about. But if the shipment was not intended for the home site, the whole matter of Scott’s “business” aspirations may be a side issue. 

 

The defense may yet float the other reported story -- that Scott was seeking out the hit and run driver who had run over his dog. 

 

The most difficult scenario for the defense – assuming that the prosecution proves that Scott D. was the killer – would be a random killing.

 

I think this killer was greatly enraged about something.  The severity of the beating belies any ordinary dispute. And the reported carved symbol on Pamela’s back suggests me that the homicidal impulse did not arise for the ordinary reasons we tend to see in murder cases (greed, jealousy, even revenge). 

 

No, the why-done-it aspects of this homicide remain the most interesting.

 

 

 

Fourteenth Posting: November 15th: LEADS and PROBABLE CAUSE

 

We’re sorting through clues and rumors, hoping for real information; but until the gag order is lifted or narrowed, or there is a preliminary hearing, we’ll be waiting a good long time. Pending some hard news, let’s talks about the rumors and leaks:

 

A Search Warrant Issue?

 

One corresponded has asked me about a report that the Lafayette Police knew the day before the killing took place that the marijuana growing equipment Dyleski allegedly ordered in another’s name was to be delivered to his place rather than Vitale’s.  My correspondent was concerned that this discrepancy might have undermined the legality of the search warrant that ultimately uncovered the evidence that (it is suggested) links Scott with the crime scene.

 

Suffice it to say that the discrepancy – if it’s not just the product of rumor – is potential trouble for the prosecution. 

 

To be lawful, the search of Dyleski’s residence would require two things:

 

ONE: Probable cause to suspect that the search would reveal certain evidence identified in the warrant application, consisting of contraband or evidence of criminal activity, (presumably the shipments in question).  The legal status of the search depends on what the police/sheriff’s deputies reasonably suspected at the time of the application, and on the reliability of the information on which that suspicion was founded. 

 

TWO: That the place to be searched and the items sought were described in the warrant with reasonable specificity.

 

If the Vitale address was a mistake, and the only justification for the search was the (erroneous) suspicion that hydroponics equipment was to be delivered there, the search might be illegal. 

 

But the police are entitled to rely on apparently credible information and proceed in good faith. 

 

If the Lafayette PD knew something not communicated to the Sheriff who then acted in good faith to get a warrant, the search would probably be upheld. In any event we can easily imagine that one of the stolen credit card numbers was connected to Vitale in some way.  In that event, the shipment could easily been directed to that address in the first instance, because that is what credit card companies often require.  We can also imagine that Dyleski might have attempted to get the shipment sent to his mother’s address after placing the order.  This would explain the discrepancy and it could justify a search of both places.

 

As it turns out, a witness not bound by the gag order (a neighbor named Kim Curiel) has told the press that she actually saw the shipping document for the marijuana growing equipment.  The credit card used belonged to an unnamed neighbor, but the address used for the cardholder was Vitale’s.  In the shipping document that this witness reportedly saw, the equipment was to be delivered where Dyleski lived.  We can conclude that someone (possibly this witness) made out a Lafayette Police Department report to the effect that the equipment was to be delivered to the Dyleski address (a place we now learn that was shared by a couple of other residents).

 

Whatever else this information does for the theory of the case (more on that later) it does not sound like it would support a finding that the search warrant was illegal.

 

As it stands, the prosecution still has a theory that Dyleski may well have approached Pam Vitale about the shipment, especially if it was not delivered to his mother’s place.

 

But then there is that dead dog….

 

An Alternate Motive?

 

This same neighbor is apparently the source of the earlier reports that Scott Dyleski was emotionally distraught after a hit and run driver from the neighborhood ran over his 13-year-old border collie, Jazz, on or about September 30th.  According to this witness, Kim, the driver lives near the Horowitz-Vitale site.  Also according to Kim, Jazz was so seriously hurt that he was put down.  Reports from the Lafayette Animal Hospital put the dog’s death on October 17th.   Apparently Kim and family were very upset about the Jazz incident, but Scott was not.  Whoops.  There goes the “grieving teenager defense”.

 

Satan Did It?

 

Moraga is a high end residential community not far from the Vitale death site. In September, the Moraga police investigated an illegal shed and tree house, apparently placed there without the owner’s knowledge. In a Blair Witch Project moment, investigators were startled to find a recently decapitated calf’s head and a hand saw (with bits of fur) nailed to the shed wall. 

 

Prior to the gag order, Sheriff’s investigators had disclosed some interest in the site because of its Satanic implications, but indicated they had ruled out any connection to the Vitale killing.

 

Will any of this pan out?  Impossible to say. But kudos to the Contra Costa Times, whose reporters seem not to have lost the old fashioned art of reporting.

 

 

 

Fifteenth Posting: November 16th: THE FACTS WILL OUT

 

The ultimate status of Judge Flinn’s gag order, originally scheduled to be reconsidered on November 10th, remains uncertain.

 

It now appears that both the DA’s office and the public defender assigned to Dyleski’s case are behind the order’s continuation. An attorney from the Contra Costa Public Defender’s office, Ellen Leonida, has been quoted in opposition to Gloria Allred’s attempt to loosen the gag.

 

These parties have no interest in facilitating a general, open hearing on the press access issue. [If I were in their position, I’d probably do the same.]

 

Ms. Allred’s position as attorney for a single witness, one who has testified before the Grand Jury and is still bound by a confidentiality order, presents a very limited case for the order’s relaxation.  Unless someone else appears to represent the media, as such, the existing gag order is likely to stand.

 

It is worth remembering what the Supreme Court has declared:

 

“The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.  ‘It would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.’  Public vigilance serves us well, for ‘the knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power. Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.’” [Gentile vs. State Bar of Nevada, 501 U.S. 1030 (1991)]

 

The gag order is about leaks from the sources who, by virtue of their employment within the prosecution and defense teams, can be made subject to the court’s direct authority.

 

No gag order can be made applicable (consistent with the First Amendment) to any members of the working press, nor to any purely private witness who wishes to be heard.  Even a witness who has testified before a Grand jury may speak freely, once that tribunal has returned a public Indictment or finished its term. 

 

The facts surrounding Pam Vitale’s killing (in all their forms) will eventually come out in this case, much as the water overtopped the levies in Louisiana. 

 

It’s just a matter of time….

 

 

Sixteenth Posting: November 16 & 17: A LOOSER GAG?

Judge Flinn heard arguments late Wednesday from defense and prosecution favoring the gag order and from Ms. Allred and an attorney representing the San Francisco Chronicle, opposing the order.  The good news is that the judge announced from the bench that he is inclined to issue a more narrow order.  What that means in practice will be clarified in a few days.

 

Seventeenth Posting: November 18: BRUTAL DETAILS

 

The Coroner’s report and autopsy have now surfaced, and they support some interesting insights into how the killing took place. Among the most salient points:

 

  1. Pot shards were found on Pamela’s head, apparently left when a pot was shattered with such force that her outer skull was exposed.
  2. The “symbol” carved into Pamela’s back was a crude “H”.
  3. The multiple stab wounds in Pamela’s back (as distinguished from the abdominal stab wound) were inflicted post-mortem.
  4. Tests were conducted to determine whether there was a sexual assault, but no report on the findings has been publicly released as of this writing.

 

A pathologist can determine whether a wound occurred after the victim was dead (i.e., after the heart has stopped beating) because the body behaves differently to trauma when there is a blood pressure than when there is not.  By a similar analysis, (in this case by noting the extent of “post mortem lividity) a pathologist can usually estimate how long the victim’s body spent lying in a single position).

 

Pam’s body was face down and she was effectively dead when the stab wounds to her back were inflicted. 

 

In the bizarre world of the defense perspective, this is sort of good news, because it tends to eliminate the notion that the victim was tortured (as could be the contention if the evidence suggested that the “H”, for example, were carved while the victim was still alive).

 

Torture would have supported a special circumstances allegation, as would a finding consistent with sexual assault. Because the Grand Jury is still deliberating (apparently), we can expect that the possibility of adding a special circumstances allegation (that would up the penalty ante to life without parole) is still open.

 

This remains an extraordinarily violent killing and the post mortem stabbing suggests a kind of malevolent frenzy that is impossible to reconcile with the picture of the “nice kid next door” image.

 

Because a “crown molding” was apparently used in the assault, one wonders whether it was already in the killer’s hands when Pam opened the door.  A jury would conclude that it undoubtedly was, unless there is evidence that Pam or Danny kept construction materials inside the trailer. 

 

If the killer came to the door wearing work gloves and carrying a weapon, a first degree theory is still supported, though the jury would need to conclude that the premeditated purpose was to accomplish a killing. 

 

If there is additional evidence that the killer was “lying in wait” for the opportunity, then a special circumstances murder charge could be supported.

 

Although motive is technically not an element of the offense, a jury will want to know “Why?”, and the prosecution will need to answer that question, especially if the goal is to obtain a conviction of first degree murder.

 

The defense may or may not be at the stage when plea bargain discussions are appropriate.  The conflict is common: At the early stages when the DA’s position has not hardened and there may yet be very damaging evidence out there to be discovered, a seasoned defense attorney with a realistic perspective can often obtain a plea deal that would later be out of the question.  But the defense rarely finds itself in the position of knowing a great deal more about the case than the prosecution.  In this case, good defense practice would dictate having the client’s “head examined”, i.e., hiring a mental health professional to evaluate Scott’s current mental state and to render an opinion about his state of mind during the criminal offense.  When, as is often the case, the accused starts out with a full-on denial of culpability, the mental examination is premature and plea discussions (especially for a minor) are out of the question.

 

Meantime, the evidence continues to trickle out into the public arena….

 

 

 

Eighteenth Posting: November 24th (with minor revisions on 11-25): SPOOR OF EVIL?

 

Happy Thanksgiving to All!

 

The parents, aunts and uncles among us can be thankful that our kids, nieces & nephews haven’t succumbed to the “dark side”. 

 

Young Dyleski can be thankful that the Contra Costa Public Defender’s Office provides a highly competent legal defense in murder cases, and he can be especially thankful (if he’s factually innocent) that the current state of the forensic arts can exonerate as well as convict. 

 

Never has crime scene investigation been a more powerful tool in determining the truth. We can all be thankful for that. 

 

JBG

 

Mark of Satan?

 

The mark carved into Pamela Vitale’s body by her killer has been variously described as an “H” or as a “double T”, but both descriptions could easily depict the same thing.  One correspondent has asked me whether the killer carved the “Cross of Lorraine” onto Ms. Vitale’s back.  That emblem represents two crosses sharing the same center pole; and seen on edge, the symbol makes a credible “H”. 

 

Only the killer knows what symbolism was actually intended.  But it is clear enough that some symbolic meaning was meant – this mark was not the random gibberish of a drooling idiot, but the calculated sign of someone who – let’s not put too fine a point on it – you wouldn’t ever want dating your progeny, niece or nephew. 

 

Ancient alchemists used this symbol to denote a powerful poison. 

 

In Medieval France, certain conspirators against the regime used the symbol, as the “Cross of Lorraine”, a heraldic motif that depicted both the “arms of Christ” and the “arms of Satan”. Hence the “Satanic” overtones.

 

Since it was the killer (and not some innocent bystander) who inscribed this symbol, we can readily and reasonably conclude that its intended meaning was malevolent.  Just what specific malevolent meaning did it hold for the fevered mind of Pam’s killer? We can only speculate at this point.  But given the macabre nature of the whole event, it is hardly out of the ballpark to use the word “Satanic” at least in the metaphoric sense.

 

If the killing was done by a teenage male, it would hardly come as a surprise that, at some point, the killer had adopted the dress code of the “Goth” subculture.  Of course, most teenagers who dress like a character in an Anne Rice vampire novel are not killers.  And, yes, there is a lot of understandable defensiveness about the topic, driven by the prevailing multicultural ethos taught in school and the general observation that teens have been dressing and acting out in rebellious ways ever since we adults started keeping track of such things. 

 

But there are extreme and very disturbing examples, such as the 1996 murders committed by a “Goth” teenage male in Kentucky who played Dungeons and Dragons, was upset by his mother’s divorces, walked cemeteries at night pretending to be a 500 year old vampire.  This eventually led him to found to a vampire cult, commit two senseless murders and receive a death sentence handed down by a New Orleans Judge.

 

I suspect that Pam’s killer was not acting under the influence of some shadowy cult figure. But I also suspect that the dark imagery and symbolism of some anti-life subculture (however it ends up being described) were operating in the web of this killer’s homicidal motivation. 

 

If I am right, this event illuminates something much more serious than one more Charlie Mason cult. In this early 21st century cyber-culture, susceptible young men and women no longer have to fall into some sinister cult, or join some criminal cohort to become infected with evil.  All sorts of bizarre and ultimately malevolent ideation, fantasies and dark power-ideologies are floating through our culture, just below of the radar of most adults.

 

These ideas act like an odorless and colorless toxic gas that primarily affects the emotionally, morally and intellectually vulnerable among us.  Regrettably, that vulnerable population includes a disproportionate number of teenagers.  And this presents the grave and growing problem for modern parents: In the current culture, those whose moral compasses have been damaged by the disempowerment of religious and other robust ethical traditions include more young people than ever before.  This social problem will not soon go away.

 

Will the case of the People of the State of California vs. Scott Edgar Dyleski shed light on the larger problem?  I hope to ensure that it does….

 

 

11-26-05 Note:

 

On the Monday before Thanksgiving, Judge David Flinn issued a “final” gag order, narrowed somewhat in scope to allow attorneys to talk about court rulings, and the defense to discuss its position (undoubtedly to counter, if the defense chooses, the information already discussed by the prosecution). 

 

The scope of the court’s provisional order was narrowed, but the media attorney (representing the San Francisco Chronicle) did not prevail.  

 

From the press accounts, I glean that ALL individual witnesses are still silenced by the order, but I haven’t yet seen the full text. 

 

As I indicated in my November 16th posting, my own analysis suggests that only witnesses under subpoena to testify before the Grand Jury and those who have testified (during the pre-indictment period) can be effectively silenced without raising grave First Amendment problems. 

 

I put the word “final” above in quotes because no gag order is ultimately the final word; as litigation changes the order is always subject to modification or appellate review. 

 

Will the media seek to appeal Judge Flinn’s order?  I doubt it; the media doesn’t have unlimited resources for a single case, and must choose it battles.  If national media outlets get in the game you can expect further challenges to the reach of the gag order, but not right away.

 

We can look for further attempts to narrow the scope of Judge Flinn’s gag order as soon as the Grand jury’s work is completed.

 

JBG

 

 

Nineteenth Posting: November 28: WHO WILL TESTIFY?

 

Who are the key witnesses in this case? 

 

It is a common lay misconception that all witnesses who shed light on a crime will be called to testify at trial.  This rarely happens because prosecutors tend to like a simple, clean case, and therefore avoid merely “interesting” witnesses who don’t line up squarely behind the primary legal theory that supports the desired conviction.  For this reason, we can expect the prosecution to avoid a number of potential “why-done-it” witnesses, especially those who might hint at some macabre motivation that otherwise doesn’t tend to fit neatly into the preferred “who-done-it” framework. 

 

This would be especially true if the prosecution has a specific premeditation theory that explains why the killer went to this particular place that day and why he would have wanted Pamela Vitale to die.

 

The potential list of witnesses is very large.  You can be sure that every worker and visitor to the Horowitz/Vitale home site, including the “live-on” former owner (who was an early suspect) will have generated at least one interview captured in a supplemental report. 

 

Most of this information will not be used at trial except as needed to establish the likely time that the killer visited the site. 

 

All of the Sheriff’s deputies, investigators and other law enforcement personnel who visited the crime scene and who collected of observed evidence there and at the other site or sites where evidence was gathered, such as Dyleski’s home, the car parked there, his girlfriend’s home, among others.  Every piece of incriminating physical evidence will need to be identified in court by a responsible officer or other witness.  One of more forensic experts will be called to testify. 

 

The list of potential witnesses will exceed 50.

 

But out of this larger universe of witnesses, only four or five will prove critical. 

 

Danny Horowitz will be called.

 

The pathologist who examined Pamela’s body and the other crime scene investigators will be called.

 

Scott’s mother and his girlfriend will be called. 

 

Will we hear from Scott, directly or indirectly?  Routine practice would have required an attempt to get a statement from Scott himself.  If he talked, and if any portion of his statement is admissible, his interviewer will testify.

 

The case against Scott Dyleski will turn on a handful of witnesses.

 

Ultimately, we can expect that the prosecution will rely on a web of physical evidence that ties Scott Dyleski to the killing scene, and a forensic reconstruction of Pamela’s final struggle for life. 

 

A bit of Scot’s blood at that scene and of Pam’s blood in Scott’s car, if identified via DNA markers, could in the context of the larger picture alone support a second degree murder finding, even if motive remains forever unexplained. 

 

Of course, nothing can be ruled out, including some surprises from the defense, but there are sharp constraints, if incriminating DNA blood typing is available to the DA.  Think of it from the defense perspective: If your client is placed inside that bloody scene, just how much defense maneuver room is left?  Not much.

 

Without DNA blood typing, there is the slightly less conclusive mitochondrial DNA hair typing like that used in the Peterson case.  Combined with the other circumstances it would probably convince a jury of guilt. 

 

In the absence of any DNA evidence, there could be a wayward fingerprint at the scene.  This would be less persuasive than DNA evidence unless the print in question is linked with the blood traces.  Fingerprints can’t be reliably dated, leaving open the chance (if the print were in an “innocent” location) that any particular print could have been left a day earlier.

 

Blood is never innocent.

 

The finding of a bloody shoe/boot print at the killing scene opens the possibility that a boot or shoe belonging to Scott Dyleski has been matched.  Again, a forensic finding is often very persuasive, though less so that a good fingerprint match. Shoes and boots acquire unique characteristics through use, while our fingerprints are unique from birth.

 

The really interesting questions remain:

 

What, if anything, did Scott tell the police?

 

What light can his mother and girlfriend shed?

 

Is there yet another key witness?

 

 

 

Twentieth Posting: December 1: TOO MANY GAG ORDERS

 

Recently I talked to one of the more resourceful reporters working on the Dyleski case, among others, about the over-use of the “gag order” in a number of recent cases.  It has become a fad.

 

Here is the article:

 

///

As published in the Oakland Tribune 11-27-05

 

Gag orders becoming court trend

 

Contra Costa County’s Vitale case an example of restrictions to keep trial details from media and curb publicity

 

By Jason Dearen, STAFF WRITER
Inside Bay
Area

 

When police arrested teenager Scott Dyleski for Pamela Vitale’s murder in Lafayette last month, a cavalcade of television satellite vans, photographers and reporters rushed to cover the case.

 

In an effort to curb the relentless publicity, the Contra Costa Superior Court imposed a “blanket gag order” that bars all trial participants from talking to reporters. Gag orders make the courtroom the only venue in which those involved in the case can discuss the evidence publicly.

 

The court’s rationale goes like this: Heavy publicity creates a jury pool permeated with people who have already formed opinions about a case, putting in peril a defendant’s Sixth Amendment right to a fair trial. A rarity, it was the first gag order issued in Contra Costa County in 40 years.

 

In Alameda County and elsewhere, however, gag orders are being imposed more frequently on trials with little media coverage. This trend is being seen throughout the state and nation, free speech advocates and attorneys say, and is dangerous because it feeds public perception of increased secrecy in the criminal justice system.

 

It’s a trend you don’t want to see get out of hand,” said Jay Gaskill, former Alameda County Public Defender. “If you step an inch back from thinking as an attorney and think of it as a citizen who wants to see justice work fairly well, public scrutiny is important, it really is.”

 

And scrutiny is what a gag order hinders. While reporters can attend and write about a trial despite a gag order, attorneys are barred from discussing legal tactics and defendants cannot speak to reporters from jail.

 

Anecdotal evidence shows that the gag order trend is not just local. National free-speech advocates are seeing more gag orders in criminal and civil trials that are not burdened with the press attention of high-profile cases.

 

“Are we seeing more gag orders? Absolutely,” said Lucy Dalglish, director of the Reporters Committee for Freedom of the Press in Arlington, Va., a group that tracks free-speech issues nationwide.

 

“In general they are a tool that was used by courts depending on the jurisdiction, but once they catch on they spread like wildfire.”

 

Inconsistently imposed

 

While gagging sensationalized trials like those of Michael Jackson or Scott Peterson may be necessary for the defendant to get a fair shake, Alameda County judges are granting gag orders in trials with only modest media interest.

 

For example, two cases under way currently in Alameda County that have received only minor local press coverage are gagged, while a third, much more publicized case, is not.

 

The legal proceedings of the son of mayoral candidate and City Council President Ignacio De La Fuente were gagged after the man’s defense attorney requested it. Judge Winifred Smith gagged the trial with no comment. Ignacio De La Fuente Jr. is charged with beating and raping four women.

 

Also, Alameda County Superior Court Judge Jeffrey Horner and attorneys agreed to gag the upcoming capital trial of alleged multiple murderer Demarcus Ralls after a brief discussion in Horner’s chambers. Last year Horner issued a gag order without citing any reason in the second of the Oakland “Riders” police misconduct trials.

 

District Attorney Tom Orloff said he has noticed a minor increase in the use of gag orders, but added his office will not request them, in most scenarios.

 

However, Orloff said he will not oppose defense requests for gag orders either, because it is usually a strategic benefit for a prosecutor. “We’re not usually the ones who ask for it. (Gag orders) benefit us more because we have more constraints on what we can say than the defense does,” Orloff said.

 

It appears that publicity alone is not to blame for the increase in gag orders. Right now, Orloff is prosecuting a case that has been heavily covered by the local television and print media — the capital murder case of Irving Ramirez, who is accused of killing a San Leandro police officer earlier this year. Despite the coverage, the case has not been gagged.

 

Alameda County criminal defense attorney Deborah Levy, who represents Ralls and Ramirez, has noticed the inconsistency.

 

She represented Kenneth Parnell in his 2003-2004 trial for trying to buy a young boy. The case received a lot of press because Parnell had been convicted years earlier of kidnapping Steven Stayner and Timothy White, a story made famous in the movie and book “I Know My First Name is Steven.”

 

Even with the high-profile nature of the trial, there was no gag order issued. Levy cited two other murder trials she worked on in the 1990s where no gag order was imposed.

Levy thinks some judges are fearful of a media circus and issue gag orders as preventative measures. “It’s because of what’s happened in these other cases, like Michael Jackson and Scott Peterson,” Levy said, adding that judges do not want to lose control of a trial.

 

A matter of convenience

 

These days the decision to gag a trial depends simply on whether an attorney on either side prefers it, says former Public Defender Gaskill. Some of the time, there is no argument in court, unless a media company challenges the order.

 

Peter Scheer, executive director of the California First Amendment Coalition, said, “The people making the choice represent the government, the defendant, and the convenience of the court. But we’re missing one crucial party — the public’s not there to raise an objection.”

 

Attorneys who argue against gag orders for a living point to the fact that judges have many other options. They can read strict instructions to the jury about avoiding the press, and can spend more time interviewing prospective jurors. In addition, professional codes of conduct for attorneys already bar them from making prejudicial statements to the press.

 

By decreasing scrutiny on the court’s every move, gag orders can make the court’s life easier, Gaskill said — another reason they are gaining popularity. “The judge feels less pressure in making decisions because there’s less intense scrutiny on everything the judge does,” Gaskill said. “Most lawyers ... don’t feel comfortable litigating a case in the media and the courtroom.”

 

But convenience is not a legal rationale for restricting speech during a public trial. The effect of more gag orders, experts say, is more secrecy, which fuels an already palpable mistrust of the system by citizens.

 

“When justice is done in plain sight, the public evaluates it differently than that done behind closed doors,” said Gene Policinski, executive director of the First Amendment Center in Arlington, Va.

 

///

 

 

Will no one revisit the gag order in the Vitale case?  I happen to believe that the “why-done-it” questions are of great public importance because I strongly suspect that the cultural forces that may have contributed to this killer’s slide to the “dark side” are far more endemic than is commonly realized.  This case and others like it need to be the occasion to explore, publicly and in as great a depth as possible, a number of important issues in the context of otherwise inexplicable acts of violence.  We need to be able to ask and answer questions like: “Which teenagers are at risk?” … and…”What can we do about it?”  Anyone who surfs the net quickly discovers the necessity of using a firewall to protect against cyber attacks that can disable a computer.  Yet we leave the moral education of far too many young, impressionable people to chance in a culture that is teeming with moral viruses.  Where is their firewall?  What would that kind of protection look like?

 

I’ve been thinking….

 

 

Twenty-first Posting: December 2: NO DANNY DID NOT DO IT &

YES, SCOTT REALLY IS IN TROUBLE

 

 A disclaimer: No one outside the immediate players can yet know with any acceptable degree of certainty whether Dyleski is the real killer. We can’t know the ultimate truth of the matter. 

 

One recent correspondent wrote me that:

 

 “There are a lot of folks who think that Scott Dyleski did not commit this murder.  Further, Scott is much more ‘normal’ than the media and law enforcement officials would have you believe.  The Contra Costa Times has been hosting a discussion board on the Pamela Vitale slaying since Oct. 16.   Currently, there are over 5,300 postings on the board.  I have been following it from the first day and can tell you that many local, Lafayette residents have written in to dispute the media's representation of Scott.  (More like the media’s ‘demonization’ of Scott.)  Additionally, many have written to let others know that their children who know Scott or who have known Scott in the past do not agree with the characterizations portrayed in the media.  I have not read one, single posting from a local person who claimed to know Scott personally who "seconded" the way he's been portrayed in the media.”  

 

My reply:

 

Thanks for your thoughtful comments.  If, as I suspect, the forensic evidence puts Scott at the murder scene, the questions you raise will go away.  If not, these same questions will suddenly loom very important. 

 

Until we have a preliminary hearing or a Grand Jury indictment -- with transcripts released – we’ll all be working on sketchy information.  Having seen a number of apparently “inexplicable” murders over the years, (inexplicable based on the character assessment of former friends and neighbors -- “He seemed like such nice fellow”), I tend to trust the physical evidence over the impressions of a defendant’s acquaintances.

 

 

I’m perfectly happy to be wrong, especially about the culpability of a defendant. 

 

Because I have no access to the detailed forensic information currently in the possession of the prosecution, my comments about whether the “real killer” is now in custody are just provisional observations based on an assessment of the published reports and assumptions based on what usually turns out to be true in similar cases.

 

The ongoing speculation (especially about possible other parties and their possible culpability) is harmful; this is why we need to have the gag order relaxed.

 

My “why-done-it” comments relate to the actual killer, who may turn out to be SD or someone else.

 

But, as a matter of firm personal belief, I have absolutely ruled out Danny as a suspect. 

 

Young Dylesky is not in the cross hairs of law enforcement because of sloppy police work, some conspiracy, or random chance.

 

I very much doubt, however, that Pam Vitale’s killing will remain one of those “unsolved” mysteries for long….

 

 

 

 

Note: December 6th – Re THAT DECEMBER 8TH COURT APPEARANCE

 

What can we reasonably expect to learn when Dyleski, his public defender, and the prosecutor appear before Judge Flinn in the Contra Costa Superior Court this Thursday? 

 

  • Will there be a preliminary hearing or a Grand Jury indictment?  The defense needs to know whether to prepare for a preliminary hearing (which probably would be scheduled for a January date), or for the trial itself without the benefit of the prior cross examination of witnesses that the preliminary hearing provides.  Except in the very unlikely event that a plea bargain is in play, we can expect the defense will be strongly pushing for a preliminary hearing.
  • Will we learn of any special motions made by the defense?  This can happen at any time, of course, but the kind of motion(s) and their contents always tend to reveal what is going on behind the scenes.  Has the defense been given full discovery?  Will the defense be conducting its own forensic tests? Is there evidence that the defense will seek to exclude?  On the latter point, we can reasonably expect that any search and seizure conducted in the course of the investigation would routinely be challenged by the defense.  We may also be able to glean from the defense posture whether Dyleski made any damaging statements although a motion to exclude evidence of any such statement could be reserved for a much later hearing.

 

We can expect that the defense now knows the general outlines of the case against the defendant and has some idea of the strength of the forensic evidence.  A cautious defense team would observe silence at this point to avoid the Geragos trap where the defense makes ultimately unsustainable claims that will come back to damage counsel’s credibility.

 

Will any of these questions be answered on Thursday?

 

 

Twenty-second Posting: December 8: ONE STEP CLOSER…

 

The parties appeared today before Judge Flinn, and now we finally know that the DA has elected to proceed by preliminary hearing, not via Grand Jury indictment.

 

On Valentine’s Day, Tuesday, February 14th 2006 at 8:30 AM., the Dyleski case will appear in Contra Costa Department 1 to be assigned a court for the preliminary hearing.   That assignment procedure is normally reserved for the longer, non-routine hearings and is consistent with the expectation that Dyleski’s hearing will take more than one day. 

 

The preliminary hearing itself will be open to press and public, and we can expect to learn a great deal about the nature and quality of the evidence that the prosecution believes is sufficient to convict Scott D. of first degree murder.

 

At this point the defense should have been given transcripts of all testimony before the Grand jury, along with other discovery. These materials could surface in the pubic domain in any number of ways, starting now. 

 

Things should start to get interesting again….

 

 

Twenty-third Posting: January 14, 06: PRELIM. ON TRACK / DANNY HAS LOONY CLIENT DISTRACTION

 

The Valentine’s Day preliminary hearing date is not a month away and Pam’s Widower, Danny Horowitz now must endure an interruption in the Polk murder case where he has been ably representing a wife accused of murdering her husband. 

 

This defendant, none too tightly wrapped in my opinion, has a predisposition to fire - or attempt to fire – her defense counsel.  She has now seized on the theory that her attorney may be guilty of killing his wife (a notion I find thoroughly loony, not to put too fine a point on it). Moreover, Ms. Polk thinks this a reason to fire yet one more defense counsel. (Dan Horowitz wasn’t the first defense lawyer Polk has fired and she’s not likely to improve her circumstances with anyone else.]

 

I’ve seen this sort of client behavior many times before; it almost always stems for a defendant’s desire to delay the case, coupled with a fire-the-messenger attitude, in effect, “Maybe the next lawyer will give me better odds”.  Good luck with that….

 

The trial judge is always placed in a difficult position, because a decision not to allow a defendant to fire his or her lawyer can be a point successfully raised on appeal. 

 

As for Danny Horowitz’ position, he hasn’t asked me, but my advice is practical:

 

Once a client as unstable as this one raises an ugly issue like this, she will raise it again on appeal no matter what.  In other words, expect to see no effective “kiss and make up” repair for the accusation and request, even if Ms. Polk seems to come to her senses. 

 

So wise counsel simply exits the case, leaving the defendant to secure (and try to fire) someone else.

 

As to the Vitale murder:

 

The fact that the DA has made no suggestion that the Grand Jury is continuing to take evidence increases the likelihood that next month we will actually see the preliminary hearing proceed as scheduled.  About time….

 

 

 

Twenty-fourth Posting: 9:00 AM, February 15, 2006 [corrected noon 2-15] THE HEARING BEGINS…AND THE NOOSE BEGINS TO TIGHTEN….

 

The preliminary hearing was conducted on 2-14-06 before Judge O’Mally.

It will last several days.

 

THE PLAYERS:

 

Prosecutor Harold Jewett (JD Santa Clara ’82) is a 15 year veteran trial lawyer. The head prosecutor (ROBERT J. KOCHLY) would not be expected to personally in a preliminary hearing.

 

Defense: Assistant Public Defender, Ellen Leonida, (JD, Boalt ’96) is an experienced felony litigator. 

 

Any defense or prosecution office tries to assure continuity of representation in a major case from the beginning -- the preliminary hearing attorney is the one who also does the trial.  If the case does go to trial (and the only alternative is a plea bargain, an increasingly unlikely scenario), we would expect these two lawyers to remain on the case.

 

THE EMERGING EVIDENCE:

 

[You can already hear the popping of the speculation bubbles; the conspiracy-to-frame-that-nice-young-man theories aren’t going to hold up.] 

 

  1. We now know the name of Scott’s friend, Robin Croen, and who was tied in to Dyleski’s s aborted scheme to use purloined credit card information to have marijuana growing equipment delivered (apparently in Scott’s mother’s name) to the Vitale-Horowitz site (at least by one account). I expect Scott will hear some very damaging testimony from Croen soon.
  2. And we now know why it was reasonable for police to suddenly focus suspicion of young Scott as the likely killer. After the killing, Scott was spotted with red abrasion marks on his face, marks he claimed were from walking through the woods.
  3. Beyond that, at the time of his arrest, Scott was found to have bruises and abrasions on his arms and legs, more consistent with having been in a fierce struggle than his “I was scrapped by a branch” version.  Again this raises the interesting question, whether Scott agreed to talk to investigators and whether he made damaging statements.
  4. The noose will tighten sharply in the next few days, when the following loose ends are knitted together: (a) How the pattern of a bloody footprint near Pam’s body matches Scott’s shoes; (b) Whether blood traces recovered from shirt and shoes found in a bag (bearing Dyleski’s name) in a VW bus associated with Scott can be linked via DNA to the murder. We are told to expect DNA evidence later this week or early next week.
  5. A more detailed picture of the dark mind of young Dyleski is emerging: (a) The cross symbol carved in Ms. Vitale’s back resembles drawings among Scotts personal effects and a CD album cover; (b) Scott’s computer was used to order a “HawkBlade” knife; and he apparently depicted himself online with dark (shall we say unwholesome?) imagery (e.g., “Android Messiah” and a skull icon, among others); (c) artwork and poetry signed by Scott with heartwarming sentiments like “live to kill”.

 

While it remains premature to convict anyone for this brutal crime, the why-done-it issues loom ever larger (as I predicted they would).  I expect the defense will probe the strength of the case, without putting on any evidence at this stage of the proceedings. But the subtext theme of the defense will be an attempt to undercut any first degree, premeditated killing theory supported by the DA’s case.  As I mentioned in earlier postings, the gloves worn by the killer and other hints that Scott may have intended a killing before he went to the scene will assume greater and greater importance.

 

And this was only day one.

 

 

Twenty-fifth Posting (A): 9:00 AM, February 16th, 2006: THE BODY BLOWS

[What really happened yesterday?]

 

OUCH!

On Day Two (2-15-06) before Contra Costa Superior Court Judge Mary Ann O’Malley, the prosecution delivered two body blows to the defense, one each from witnesses Robin Croen and David Curiel.

In quick summary here are the two blows:

BODY BOW ONE

Witness Roben Croen, Dyleski’s partner in the credit-card scheme, was granted immunity in exchange for his testimony. He testified that:

Scott Dyleski told him (Croen) that he encountered Pamela Vitale while taking a walk on Oct. 15, the day of the murder. Croen, 17, testified that Scott had scratches on his face that day. Scott claimed the woman had accosted him. Dyleski expressed concern, worrying that Vitale’s DNA might be found on his clothing or his on hers, because she had “grabbed” Scott as he walked in Hunsaker Canyon. Dyleski left an hour later. Croen testified that he did not see him until Oct. 18. But when Dyleski met Croen at Acalanes High School, Scott told Croen that “he had an alibi and he was going to be fine.”

BODY BLOW TWO

Witness David Curiel testified that:

David had moved into Dyleski’s room after police arrested Scott.  [Curiel’s brother was the owner of the home where Scott had lived with his mother, Esther Fielding.]  David called the police after he discovered Scott’s chilling “to-do” list as he cleaned out a dresser drawer Dyleski had used. The list included the names of people, with their personal information.  The list read in part:

Knock out/kidnap , question, keep captive to confirm PIN, dirty work, dispose of evidence (cut up and bury)”.

David Curiel also said he overheard Dyleski telling his girlfriend, “Once they find my DNA on her body, they’re going to come after me.”

There was other testimony yesterday, but if the prosecution comes up with incriminating DNA evidence, we will see an early knockout.

 

Twenty-fifth Posting (B): 9:55 AM DOES A NEW CHARGE LOOM?

 

Could the Vitale killing turn out to be a special circumstances murder?

 

All of the potentially applicable Special Circumstance Murder provisions are listed in Penal Code Section 190.2.  I note that young Dyleski is not eligible for the death penalty, because of his “tender years”. BUT, if special circumstances were charged and he were convicted thereof, the punishment would be life without the legal possibility of parole. 

 

Among the potentially applicable Special Circumstances, any careful prosecutor would review subparagraphs (14), (15), (17), particularly part (A) and (G), and would also consider subparagraph (20).

 

A quick charging review:

 

  • Subparagraph (14) involves especially “heinous” murders, but is not currently used by California prosecutors because of vagueness problems.
  • Subparagraph (15) involves “lying in wait”.  In the absence of a confession or a live witness demonstrating that Scott lurked around the site until the coast was clear, this theory would be too hard to prove.
  • Subparagraph (20) involves torture.  While this is a promising theory, the killing looks more like a fight to the death followed by the disgusting act of carving a satanic symbol in the corpse.  BUT, if it turns out that the pathology is consistent with the victim being alive and conscious during the “carving” then torture might well be provable.
  • Subparagraph (17) covers any murder done in the course of committing a listed felony.  Two felonies are possibly implicated: (A) robbery (as yet unproved) and (G) burglary. The latter is a very promising theory because a burglary in California (see PC 460, 459) is committable without a break-in.  What is needed? Only that the perpetrator enter the dwelling of another with the co-existent intent to commit “any felony” therein.  And, yes, one who enters a dwelling with the intent to commit an assault with a deadly weapon or murder, is guilty of burglary. 

 

But wait: Dyleski has not been charged with any special circumstances. But, yes, in this situation, special circumstances murder may still be charged. The law is clear: as a result of the evidence adduced at a preliminary hearing the prosecution may add the special circumstances charge so long as the evidence supports the additional allegation. Of course, that dramatic addition would trigger a review process to test whether the evidence really was sufficient. But charges are added after (and during) preliminary hearings all the time.

 

So the problem of proof looks something like this: Assuming for the purposes of this discussion that Dyleski is the killer (as the prosecution has already concluded), one would only have to also conclude that Scott had selected this victim for murder (by relying on the kill list discovered in his dresser drawer) and went into the Horowitz-Vitale dwelling in order to carry out that murder scheme. This theory (if believed) simultaneously solves the first degree murder requirement and proves the burglary special circumstance. 

 

But the theory, at present, consists of connecting several widely separated dots.

 

Special circumstances are not lightly alleged and never (at least by a prudent DA) added on less than very strong evidence.  As the testimony accumulates over the next three days, keep this theory in mind.  You can bet that the defense is paying attention and will tread lightly where and when needed. 

 

What to look for?  Any indication (especially from Scott’s pre October 15 behavior) that he was preparing for or planning to do a homicide.

 

 

 

Twenty-sixth Posting: 9:42 AM, February 17th A PENDING DEFENSE DISASTER?

 

When thinking about mother Fielding’s testimony concerning her son, Scott, we should consider two rules of forensic wisdom:

 

(1) Moms almost never turn on their children in the courtroom.

(2) Any witness who grudgingly testifies against bias or interest is even more credible in the concession.

 

We’ll not know until the experts testify about the physical evidence, principally the bloody clothing associated with young Dyleski, whether Mom’s reluctant testimony linking him with the highly incriminating contents of the duffle bag in the family abandoned VW van, will prove to be critically incriminating or merely cumulative.

 

More on this topic later, but for now, I was particularly struck by Ms. Fielding’s remark that Scott evidenced a recent change in Scott that prompted an attempt to get him to a mental health professional.

 

Two immediate thoughts:

 

(1) No “recent” change would be sufficient to explain the homicidal mind that wrote the dresser drawer notes, kept a book about murderers, maintained a sinister list of neighbors and – again assuming the case proceeds as expected—brutally killed and carved the neighbor lady.

 

(2) A mere visit or two with a psychologist (as contemplated by Mom) would have been too little and too late. Frankly a session with an exorcist would have been more productive. 

 

At what point does parental denial and cluelessness mutate into complicity?  Again, the case is unfolding and therefore these remarks may be dismissed – for now – are merely hypothetical, but all the more reason to….

 

 

 

Twenty-seventh Posting: 1:00 PM, February 17th MOM GIVES UP EVIDENCE:

 

↓AMONG THE ARROWS ↓

 

 

  • Mrs. Fielding (Esther) apparently discovered Pam Vitale’s information on a list of credit card numbers kept by Scott in his backpack, but at the preliminary hearing, she recanted: “I don’t think I saw Pamela’s number.” We’ll hear more about this.

 

  • Aware that suspicion for the Vitale murder would fall on her son, Mrs. Fielding became concerned that he might be keeping incriminating evidence. She told Scott: “I’m giving you one chance to get everything out of your room.” I’ve had many a criminal client who might have avoided conviction if only my client had garnered sufficient “forensic” support from good old Mom. Fortunately for the DA, Scott was a sloppy housekeeper.

 

  • Mrs. Fielding originally told authorities that Scott had placed the duffle bag, containing the suspect clothes, in the abandoned family VW Van, but she backtracked: “I think he said something about old clothes.” Right. Mom later spotted the bag (in the company of a neighbor) in the van, but simply left it there.

 

  • Mrs. Fielding admitted burning a book and some disposable gloves belonging to Scott. “It was a panicked reaction.” No doubt the disposable gloves were for Scott’s charity work. The box of unopened gloves and a journal were burned by Mom at the home of her sister, Marjorie Fielding in Bolinas. Really, are we to think that no one peeked first? At the same time, Sister Marjorie’s boyfriend, Robert, also burned Scott’s book, “Mass Murder.” No doubt the DA can find a replacement copy on Amazon. Sister Marjorie eventually persuaded Scott’s Mom to turn over Scott’s knife, as well as some other belongings. 

 

Of course, the duffle bag was recovered by police and has undergone a detailed forensic examination. It contained a bloody shirt, a black raincoat, a glove and a ski mask.  We can expect lab evidence to link some of these items to the Vitale murder.

 

But the trail now goes well beyond a simple who-done-it.  The ski mask, the gloves, Scott’s dark, homicidal musings, and his sinister “to do” list are pointers.  Assuming, for the sake of this discussion that SD was the killer, it becomes increasingly plausible that he was carrying out some twisted, homicidal scheme.  Once guilt is evident beyond reasonable dispute, the defense strategy will necessarily shift: It will be in Scott’s interests to portray the killing as an unplanned, impulsive act, the result of a sudden quarrel or other spontaneous eruption. But one does not wear a ski mask and gloves for an idle social encounter. Recall the definition of burglary and the implications for the special circumstances analysis above.

 

 

Twenty-eighth Posting: 2:00 PM, February 17th DNA POINTS TO PREMEDITATED MURDER & DYLESKI MUST STAND TRIAL

 

On March 3 Scott Dyleski will be arraigned for Murder, having been bound over for trial following the three day preliminary hearing before Judge O’Malley.

 

The DA’s forensic expert linked blood stains on the ski mask found in the duffle bag in the abandoned family VW van BOTH to Scott and the murder Victim, Pamela Vitale.  The implications are inescapable.  There simply is no plausible innocent explanation for this.

 

The DNA evidence is a powerful statistical match, on the order of an excellent fingerprint ID. 

 

Therefore, “who-done-it” phase of the Dyleski case (for all but the most conspiratorially minded fringe) is over as a practical matter.  And the specter of a first degree murder conviction (and possibly worse) must now be considered by the defense.

 

It’s high time for the gag order to be relaxed to allow the media to explore the background information that will shed light on the remaining questions.

 

 

Twenty-ninth Posting: 2-20-06

 

POSTER CHILD OF THE NEW AGE?

 

Someone here profoundly failed a deep obligation shared by all parents. Mom and Dad may screw up parenting on a number of fronts – we all are flawed in some way – but parents above all else must protect their children from evil influences. You’d think that such an important task, at least in broad outline, would be a no-brainer. 

 

In fact, for many of the confused and morally disabled adults in the current culture, that task is impossible.  For too many parents, evil is no longer something devoutly to be resisted and from which children are to be fiercely guarded; no, for these parents, evil is irrelevant, meaningless, or marginalized.

 

Why?  The ethics and morality that give meaning to evil are themselves considered outmoded ideas. In this sub-culture, everything that is really important has been subsumed in the narcissistic agenda of self-healing. 

 

Even the more conventional parents, those who of us who cling to the “antiquated” notion that morality is deeply relevant (“Yes, Virginia, there may not be a Santa Clause, but good and evil are very, very real”) have a sharply uphill course, given the gravely wounded state of our culture. For traditional parents (dare I call them “normal”?) the job of protecting the innocence and moral grounding of our children is vastly more challenging than in earlier times. 

 

Children and young “adults” are subjected to a seductive torrent of bizarre, unfiltered material, both emotionally and morally disturbing; it seethes through the culture and the adolescent sub-cultures like a computer virus. This toxic material is relatively harmless to those who are well rooted in the deep ethical traditions that have upheld humanity, but it is highly contagious to New Age addled juvenile minds.  These are information-carried toxins (really they are moral pathogens); they saturate the internet; they are carried by computers, cell phones and personal contact wherever “modern” juveniles congregate. 

 

Why are these toxins able to propagate so freely? Because there is no effective resistance. The New Age fog has disabled the faculty of critical intelligence among thousands of Northern Californians. These are the putative adults for whom the traditions of integrity and courage that animated the “Greatest Generation” have long been forgotten.

 

Young Dyleski’s Mom, Esther Fielding, was reportedly a New Age “healer”. She claimed to activate the DNA in a patient via remote viewing to overcome inherited problems. Is this bizarre enough for you? Suspend disbelief and presume Mom’s sincerity; read one revealing testimonial:

“The day after I had my DNA Activation I had to stop taking thyroid medication I had been on for fifteen years... Overnight it was healed.  All my life I have been afraid of heights.  One day after pulling inherited fears in a gene replacement workshop I realized I was no longer afraid of heights.  I didn’t pull ‘fear of heights’ so I wasn’t expecting this.  It was inherited.  It wasn’t even mine.  Later I was able to help a friend re-roof her house.”

Scott probably wishes that Mom had done a better job neutralizing the incriminating traces of Pam Vitale’s DNA on his ski mask.

 

Reputedly Mom also did removal of government and alien implants.  Too bad she couldn’t undo government search warrants.

 

Scott would have done far better, one suspects, had Mom remained in the food industry.  Better still, she and Scott would have benefited from more common sense and a stronger foundation in the fundamental moral precepts and values that have sustained our civilization.  But maybe I’m asking too much.

 

We can all accept normal human frailty; but when we fall short of the mark, we usually try to do better, do we not?  But something is gravely out of whack here.  “Mark? What mark?”

 

As I’ve already indicated, the Gag Order needs to be relaxed and the working press needs to re-interview Mom and Dad and others, to penetrate the New Age Fog that surrounded Scott’s character formation, and to expose the truth. There is much to learn.

 

 

POSTING # 30

March 3, 2006

Scott Dyleski was arraigned on First Degree felony murder and a burglary special circumstance allegation before Judge Thomas Maddock.  [For the legal basis of this move see my postings below.]

Assistant DA Harold Jewett included the new charges in an “Information” (the charges filed after a preliminary hearing and holding order), charges filed before the re-arraignment.  Additional or upgraded charges are allowed when the evidence adduced at the preliminary hearing supports them. 

The defense may attempt to dismiss the new charges in a motion under Penal Code Section 995.  That motion, if brought, will undoubtedly be denied. But the defense function is to cover all bases and to challenge the DA at every step of the way.  This looks like an uphill struggle for the defense.

Scott Dyleski is not eligible for the death penalty. If he is convicted, no parole board would have the legal authroity to release him.  He would die in prison, unless some future governor granted clemency.

I still believe strongly that the gag order should be relaxed in the public interest to enable better reporting about the forces and influences that led to this disturbing killing.

Stay tuned.

 

 

I opened this discussion October 20th last year with the following comments:

 

 

I’ll deal with the “why” issues in later postings, but for now, permit an early observation:

 

D’s case may well present us with the poster child for what is dreadfully wrong with the current non-religious culture, a milieu in which children are too rarely raised in authentic reverence for the deep ethical traditions that have held up earlier generations. 

 

Think about it: In an earlier era, even the bare suggestion that a homicidal minor was involved in some kind of satanic activity would have been extraordinarily sensational.  Something in the general lurid category of “two headed alien’s body found in ditch”. Sadly, the hints of a satanic connection (that I assume to be true here for purposes of this discussion, only) produce a different reaction:  “Oh, one of those again.”

 

So common has the cultural deterioration become that we are no longer surprised by evil in high school.

 

Monday, 2-20 (President’s Day) 2006, I return to the “Why Question” in more depth. 

 

To aid that discussion, however, it now becomes critically important for the Gag Order to be relaxed.  The reporters assigned to this case need to talk to those best positioned to shed light on the influences, Satanic and otherwise, that formed the disturbed, malevolent  mind that created a “To Do” list that included killing innocent victims, chopping up their bodies and burying their remains.

 

We inhabit a culture that is paralyzed by moral ambivalence and remains apparently unable – like the characters in Harry Potter who couldn’t utter the name of Harry’s nemesis, Lord Voldemort – to actually recognize and name evil, even when it makes one of its blatant appearances.

 

Evil and the contemporary mind is not a new topic for me.  See http://www.jaygaskill.com/explainingevil.htm. 

 

All parents have a unique and essentially non-delegable responsibility to protect their children from evil influences. 

 

When I defended juvenile cases, I was soon able to predict whether a particular miscreant minor would be a repeat customer.  It usually took only a ten minute conversation with the primary parent for the dreaded pattern to emerge.  Sometimes I would see the minor again, years later, as a killer. See: http://www.jaygaskill.com/humancondition.htm. Sometimes as a murder victim.

 

These insights are hardly secret information, but they are widely ignored. For an early speech of mine to a law enforcement audience, see: http://www.jaygaskill.com/sheriff.html.htm. Of course, I was just stating the obvious to the receptive.

 

Synopsis: The Case So Far…..

 

Danny Horowitz and Pam Vitale bought land in Lafayette, CA, a bedroom community in Contra Costa County, just inside the band of coastal hills that form the geological edge of the San Francisco Bay.  They would live on site while a large home was constructed for them.

 

For the most part, the Lafayette area is hilly, wooded and affluent.  The building site (as anyone could see from the helicopter shots on television) was a generous swath of level land in a hilly setting. The couple’s dream house-to-be was surrounded by trailers, building materials, and the modest trailer home that Pam and Danny would live in during building.  I met Danny on a number of occasions over the years.  As a lawyer, he earned the affectionately bestowed “Hurricane Horowitz” title early on in his career.  You could always count on Danny to inject an amazing torrent of litigation energy into a case. 

 

When Pam’s brutally murdered body was discovered on October 15th, 2005, the media immediately zoomed in on the grieving husband. The televised pictures of Danny, torn by grief and pain, were hard for me to watch.  

 

The prime suspect, Scott Dyleski, an older juvenile, was arrested a few days alter, charged with Pamela’s killing and will now be tried as an adult.  Biographical information and crime details began to surface early. Dyleski was implicated in utilizing stolen credit cards to buy grow lights for marijuana cultivation; the scheme linked him to the Horowitz Vitale site. He stands accused of beating and stabbing Pam Vitale to death, using a piece of construction material from the site and a knife he brought with him.  The DA believes he carved a Satanic symbol on the victim’s back then allegedly he took a shower in the Vitale / Horowitz trailer home while his victim’s bloody body lay nearby. The coroner’s report revealed a number of chilling details: Pot shards were found on Pamela’s head, apparently left when a pot was shattered with such force that her outer skull was exposed; the “symbol” carved into Pamela’s back was a crude “H”; the multiple stab wounds in Pamela’s back (as distinguished from the abdominal stab wound) were inflicted post-mortem.

 

A pathologist can determine whether a wound occurred after the victim was dead (i.e., after the heart has stopped beating) because the body behaves differently to trauma when there is a blood pressure than when there is not.  By a similar analysis, (in this case by noting the extent of “post mortem lividity) a pathologist can usually estimate how long the victim’s body spent lying in a single position). Pam’s body was face down and she was effectively dead when the stab wounds to her back were inflicted. 

 

The mark carved into Ms. Vitale’s body by her killer has been variously described as an “H” or as a “double T”, but both descriptions could easily depict the same thing.  The “Cross of Lorraine” may have been carved onto Ms. Vitale’s back.  That emblem represents two crosses sharing the same center pole; and seen on edge, the symbol makes a credible “H”.  Only the killer knows what symbolism was actually intended.  But it is clear enough that some symbolic meaning was meant – this mark was not the random gibberish of a drooling idiot, but the calculated sign of someone who – let’s not put too fine a point on it – you wouldn’t ever want dating your progeny, niece or nephew.  Ancient alchemists used this symbol to denote a powerful poison.  In Medieval France, certain conspirators against the regime used the symbol, as the “Cross of Lorraine”, a heraldic motif that depicted both the “arms of Christ” and the “arms of Satan”.

 

The Preliminary hearing took place February 14, 15, 16 and 17.  Among the witnesses, were Scott’s friend, Robin Croen, who was tied in to Dyleski’s s aborted scheme to use purloined credit card information to buy marijuana growing equipment delivered, David Curiel, and Scott’s mother, Esther Fielding.

 

Witness Roben Croen was granted immunity in exchange for his testimony. He testified that: Scott Dyleski told him (Croen) that he encountered Pamela Vitale while taking a walk on Oct. 15, the day of the murder. Croen, 17, testified that Scott had scratches on his face that day. Scott claimed the woman had accosted him. Dyleski expressed concern, worrying that Vitale’s DNA might be found on his clothing or his on hers, because she had “grabbed” Scott as he walked in Hunsaker Canyon. Dyleski left an hour later. Croen testified that he did not see him until Oct. 18. But when Dyleski met Croen at Acalanes High School, Scott told Croen that “he had an alibi and he was going to be fine.”

Witness David Curiel testified that he had moved into Dyleski’s room after police arrested Scott.  [Curiel’s brother was the owner of the home where Scott had lived with his mother, Esther Fielding.]  David called the police after he discovered Scott’s chilling “to-do” list as he cleaned out a dresser drawer Dyleski had used. The list included the names of people, with their personal information.  The list read in part: “Knock out/kidnap , question, keep captive to confirm PIN, dirty work, dispose of evidence (cut up and bury)”. David Curiel also said he overheard Dyleski telling his girlfriend, “Once they find my DNA on her body, they’re going to come after me.”

Mom was not a willing witness against her son.  Mrs. Fielding (Esther) apparently discovered Pam Vitale’s information on a list of credit card numbers kept by Scott in his backpack, but at the preliminary hearing, she recanted: “I don’t think I saw Pamela’s number.” Aware that suspicion for the Vitale murder would fall on her son, Mrs. Fielding became concerned that he might be keeping incriminating evidence. She told Scott: “I’m giving you one chance to get everything out of your room.” I’ve had many a criminal client who might have avoided conviction if only my client had garnered sufficient “forensic” support from good old Mom. Fortunately for the DA, Scott was a sloppy housekeeper.  Mrs. Fielding originally told authorities that Scott had placed the duffle bag, containing the suspect clothes, in the abandoned family VW Van, but she backtracked: “I think he said something about old clothes.” Mom later spotted the bag (in the company of a neighbor) in the van, but simply left it there. Mrs. Fielding admitted burning a book and some disposable gloves belonging to Scott. “It was a panicked reaction.”. The box of unopened gloves and a journal were burned by Mom at the home of her sister, Marjorie Fielding in Bolinas. At the same time, Sister Marjorie’s boyfriend, Robert, also burned Scott’s book, “Mass Murder.” Sister Marjorie eventually persuaded Scott’s Mom to turn over Scott’s knife, as well as some other belongings. 

 

The duffle bag has undergone a detailed forensic examination. It contained a bloody shirt, a black raincoat, a glove and a ski mask.  The DA’s forensic expert linked blood stains on the ski mask found in the duffle bag in the abandoned family VW van BOTH to Scott and the murder Victim, Pamela Vitale.  The implications are inescapable.  . The DNA evidence is a powerful statistical match, on the order of an excellent fingerprint ID. 

 

There is other evidence:: (a) The cross symbol carved in Ms. Vitale’s back resembles drawings among Scotts personal effects and a CD album cover; (b) Scott’s computer was used to order a “HawkBlade” knife; and he apparently depicted himself online with dark imagery (e.g., “Android Messiah” and a skull icon, among others); (c) artwork and poetry signed by Scott with heartwarming sentiments like “live to kill”.

 

On March 3 Scott Dyleski was arraigned for Special Circumstances Murder and a trial date of  July 17, 2006 was assigned.