No body? No problem convicting, 90 percent of time

[April 20, 2010]  NEWARK, N.J. (AP) -- Police in New Jersey believe they have solved one of the coldest cases in the state's history: the disappearance of five Newark teenagers in 1978.

After tracking leads for 32 years, two men were arrested March 22 and charged with herding the teens at gunpoint into an abandoned rowhouse, tying them up and torching the building, setting a blaze so fierce police say the bodies were incinerated, destroying any evidence.

Now, prosecutors have a difficult task: Prove the teens were murdered when their bodies were never found.

Murders without bodies were long considered one of the most complex challenges in the legal profession, but advances in technology have made the once-unthinkable prospect more common.

The absence of the key piece of evidence -- the corpse -- poses unique problems for both prosecutors and defense attorneys, according to Thomas "Tad" DiBiase, a Washington D.C.-based lawyer who runs a Web site chronicling "no body" murders. He said the majority of such cases end in convictions or guilty pleas.

"The body can tell you how the murder occurred," he said. "It can tell you when the murder occurred, it can tell you where the murder occurred, so by taking away the body you take away all those elements from a case -- that makes it enormously difficult."

The New Jersey case was initially treated as a missing persons case and no connection was made between the fire and the teens' disappearance, reported two days later. In the decades since, any clues have been all but obliterated: The site of the fire is now a housing complex and additional case files were reportedly lost in a courthouse flood.

Prosecutors have charged Lee Evans, 56, and 53-year-old Philander Hampton, 53, with murder and arson. Prosecutors say Hampton sometimes hired the teens for odd jobs and killed them over some missing marijuana. Both have pleaded not guilty.

The near-total absence of forensic evidence in the case doesn't necessarily help the defense, according to Michael Robbins, the lawyer representing Evans.

"In the absence of evidence and proof, there's a real risk that outrage, that anger and emotion, will be substitutes in the courtroom for competent evidence, testimony and proof," Robbins said. "Without a body, how can you corroborate what anyone says? Without a crime scene, how can you even begin to attempt to corroborate the version of events that the witness here is putting forth?"

Two of the nation's most high-profile murder cases without bodies -- the killing of a wealthy Manhattan socialite by a mother and son team, and a doctor who killed his wife and tossed her body from an airplane over the Atlantic Ocean- were prosecuted by former Manhattan District Attorney Robert Morgenthau.

"These cases are important because it shows you can't just get rid of the body and get rid of the case," Morgenthau said. He recalled how skeptics questioned his decision to pursue New York's first such murder prosecution based entirely on circumstantial evidence: the death of Irene Silverman, a wealthy Manhattan socialite and former Radio City Music Hall Rockette.

"But we were convinced that they had murdered this woman, and we thought it was a very bad precedent to not prosecute people because there is no body -- it encourages people to do away with the body," Morgenthau said.

Morgenthau's team successfully convinced a jury that a mother-son con team killed Silverman and forged documents to try to steal her $8 million townhouse. Sante and Kenneth Kimes were convicted in 2000; Sante was sentenced to 120 years in prison, her son, 125. Prosecutors called more than 100 witnesses and introduced evidence they said was in the Kimes' possession, including Silverman's personal documents, loaded pistols, two fright masks, plastic handcuffs, syringes and a pink liquid similar to a known "date rape" drug. They also found a forged deed that transferred her town house to the Kimeses for a fraction of its nearly $10 million value.

Circumstantial evidence also convicted Dr. Robert Bierenbaum, a Manhattan plastic surgeon who got 20 years to life in prison for killing Gail Katz-Bierenbaum. Prosecutors showed that Bierenbaum spent nearly two hours flying the afternoon after his wife was last seen, convincing a jury that he had dismembered her, squeezed the body into a duffel bag and dumped it from a small airplane over the ocean.

Prosecutions for murders without bodies were once extremely rare, according to DiBiase, who traces the earliest documented case in the U.S. to 1819, when brothers Jesse and Stephen Boorn were convicted of murdering their brother-in-law, Richard Colvin, in Manchester, VT.

More than 300 hundred such cases that have gone to trial in the U.S. since, more than 90 percent of them resulting in a conviction, DiBiase said.

Although defense attorneys often try to convince jurors that no body means no proof a person is dead, DiBiase has found only one case, around 1886, in which a victim turned up alive after his supposed killer -- tried twice on charges he killed his lover's husband -- had been convicted and executed.

In the past decade, DiBiase said a surge in such murder prosecutions is largely thanks to advances in DNA technology, computer records and cell phone logs, and improvements in forensics.

Juries have also become more sophisticated with the popularity of crime, law and forensic television shows, according to Donna Pendergast, assistant attorney general for the Michigan Department of Attorney General's office, who has successfully prosecuted several of these cases.

Pendergast says the enormous public appetite for forensics has led to jury pools full of people who "want to see every little fingerprint."

She has convinced juries that a person was really dead even though no body was ever found, because the victim didn't access bank accounts or credit cards after they disappeared.

"Traditionally, a prosecutor would say: 'No body, we don't have a case,'" Pendergast said. "But now that people are seeing these cases can be won ... it's not 'the perfect crime' anymore."

[Associated Press; By SAMANTHA HENRY]

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