April 3, 2012 at 1:00 am

Murder charges possible without body

Getting convictions in such cases is more difficult, but not impossible, legal experts say

Michigan assistant attorney general Donna Pendergast has won two cases without a victims body, resulting in prison terms for five defendants. It is not insurmountable, she says. (David Guralnick / The Detroit News)

The filing of murder charges last month against the father of 2-year-old Bianca Jones raised eyebrows and questions: Since the Detroit toddler is still missing, how can D'Andre Lane be prosecuted in her death?

"(Prosecutors) are making the assumption that Mr. Lane's daughter is dead," Terry L. Johnson, the attorney for Bianca's father, said when Lane was arraigned March 15. "But there's no body, or even parts of a body. We still believe she's somewhere ... kidnapped or abducted."

Legal experts say in a murder case, the lack of a body makes gaining a conviction more difficult, but not impossible. They say prosecutors have won guilty verdicts in hundreds of similar cases nationwide, including several convictions in the past two decades in Michigan.

"These do present special challenges," said Donna Pendergast, a Michigan assistant attorney general. "It can be a battle when you don't have a body in today's 'CSI'-oriented world and juries demanding to know what your evidence is … but it's not the perfect crime."

Pendergast has the convictions to prove it. She has won two cases without a victim's body, resulting in prison terms for five defendants.

"It is not insurmountable," she said. "You need to take every scrap of evidence and weave it into a tapestry for the jury which shows why you don't have a body. And explain to them why a defendant shouldn't be rewarded because they disposed of the body in a tidy manner."

In some instances, prosecutors have won convictions many years after a victim disappeared, despite the lack of a body.

In one especially prominent case in Macomb County, Arthur Ream was convicted in 2008 of kidnapping and murdering 13-year-old Cindy Zarzycki, who disappeared in 1986.

A month after a jury found him guilty, Ream led investigators to a Macomb Township site where Cindy's remains were buried.

The prosecutor in that case, Steven Kaplan, also won a first-degree murder conviction in 2001 against Robert William Pann in the Dec. 26, 1991, disappearance of his girlfriend, Bernice Gray, whose body has not been found.

Gray disappeared after dropping off her daughter at a day care center. A resident living near the center heard gunshots and four days later, Gray's car was found with her blood and shell casings inside. Pann told family members that night he had been "digging all day."

Despite the conviction, there has been no relief for Gray's family, said her stepfather, Julian "Sandy" Ulmer of Warren. Pann's efforts to win a new trial have been denied in Michigan courts, but an appeal in federal court is pending. The family has yet to obtain restitution under the Michigan Crime Victims Act, Ulmer said.

"He (Pann) is still trying to get out of prison," Ulmer said. "We've spent thousands of dollars on legal work because we are afraid if we don't stop pushing issues, it will give him a better chance of federal appeal and getting his conviction reversed. We would love to put it all to rest, but it seems to go on and on.

"Relief?" Ulmer continued. "It's like an emotional dagger stuck in the family."

Pendergast said one of the biggest hurdles for prosecutors in such cases is convincing jurors that guilt can be proven without a victim's body.

Pendergast said much of the work must be done before a case goes to trial, during the voir dire process in which prospective jurors are questioned by prosecutors and defense attorneys to any prejudices or predispositions they might have toward a particular case or law.

"You sometimes have to lay out to prospective jurors that your case does not include the discovery of a body — and get a commitment from them that should that happen, can they still decide a case based on other evidence," the prosecutor said. "Or, would they be unable to find guilt for a defendant because of their strong belief that there must be a body."

The law does not require a victim's body to charge someone with murder, but strong circumstantial evidence — witnesses, motivation and opportunity — is generally needed to prove guilt beyond a reasonable doubt, said Thomas DiBase, a former U.S. attorney in Washington.

"Today's technology — not just DNA, but computer records, cellphones, electronic trails — provides prosecutors with tools that didn't exist years ago," said DiBase, who acts as a consultant to police and attorneys in cases involving missing victims.

DNA helped Pendergast win murder convictions against three men in the February 2001 slaying of Larry Nelson, who had hired them to do some remodeling work for him in a Detroit house. Junious Maurice Hall and Jeffrey Holmes are serving life terms, and Michael Monford, convicted of second-degree murder in the case, was sentenced to 20 to 40 years.

"They beat Larry Nelson with two-by-fours, a shovel, shot him and then put him in a garbage can for pickup," Pendergast said. "In that case, we had DNA and blood, but no body. Police sat on a dump for a week, but we never found it. But we got a conviction."

In 2003, Pendergast also successfully prosecuted brothers Donald "Coco" Duvall of Monroe and Raymond "J.R." Duvall of South Branch in the 1985 slayings of Brian Ognjan, 27, of St. Clair Shores and David Tyll, 27, of Troy. The two Metro Detroit men disappeared while on a hunting trip in northern Michigan. The brothers killed the pair following an argument in Oscoda County, chopped up their bodies and fed their remains to pigs, according to court records.

Evidence, including a witness to the slayings who came forward years later, provided a chain of strong circumstantial evidence that could not be ignored by jurors, who returned guilty verdicts after deliberating for just two hours, Pendergast said. Both men are serving life terms.

DiBase became interested in cases with missing victims after successfully prosecuting one in 2006 (the second such case in D.C., he said). He has compiled a database of 300 trials involving missing victims in the United States dating to the 1800s.

"Even taking into account 35 dismissals, acquittals or reversals on appeal, as of this January, there was a 90 percent conviction rate in no-body trials," he said.

mmartindale@detnews.com

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