A Family Business (38 page)

Jumping on the only ray of sunlight he could find in the report, Giss focused on the fact that Henion had
not
said that Tim had not been murdered, only that he had not been murdered with oleander. Henion’s findings had done nothing to make Giss change his mind about David. The prosecutor was as convinced as he had ever been that David had poisoned Tim Waters. He just did not know with what. Before the Cornell scientist submitted his report, Giss felt sure that David had used oleander. But after reading the report, Giss had to admit to himself, however reluctantly, that oleander had not been the weapon. The only way he could recoup, he felt, was to order up another series of tests to try to find out what the poison actually was.

But this brought up another problem. Henion’s report had arrived literally on the eve of the beginning of jury selection. There was no time for Giss to order up new tests unless Judge Jones agreed to give the prosecution a postponement.

Giss felt sick. For more than a year he had been working on David’s case exclusively. He knew the details inside and out, backward and forward. He had fought off Diamond’s successive and well-thought-out attempts to block a trial. He had mapped out his trial strategy, and he had his courtroom offensive planned in detail. But Henion’s report was devastating.

Giss had been ready and eager to go to trial, to take the offensive against David, a person whom Giss found personally repugnant. But there was one thing the prosecutor had learned in his experience, and that was when to retreat. Giss had not been chosen the top prosecutor in the state by exhibiting tendencies to commit courtroom suicide or by demonstrating certifiable stupidity. He
knew
when he had a case and he
knew
when he did not. As things stood in the light of Henion’s report, he did not need anyone to tell him that overnight his plans had self-destructed, that his case had dissolved before his eyes. Even his earlier contention that he could always claim degeneration of Tim’s tissue would lead to inconclusive results, fell apart in the wake of the New York scientist’s indisputable methodology.

In a vain attempt to postpone the inevitable, Giss asked Jones for a delay, hoping he might get lucky and win some extra time, which he could use to have more tests performed and perhaps determine what the poison had been.

Diamond grinned to himself. He had been involved in David’s case in one way or another much longer than Giss. He had first come in as a retained attorney by David in 1986, even before DDA Walt Lewis had charged David, with paying for the assaults on Hast, Nimz, and Tim. He slipped out of the case after the preliminary hearing in Judge Person’s court because he was not reappointed in superior court, but he had reappeared as David’s attorney when the murder charge was filed in Ventura County.

He had even more time and effort invested in the case than Giss, and he could not have been happier to see the balance of power abruptly shift. Suddenly the defense was on the offense; it was Diamond who had moved into position to call the shots. He knew that if he agreed to a delay, it could only hurt his client. But if the trial were to begin on schedule, before the prosecution could get another opinion or order up more tests, he was all but positive he could get David acquitted despite the testimony of Giss’s witnesses. Henion’s report, Diamond knew, would outweigh any medical evidence the prosecution could present. With inward glee the defense attorney voiced strenuous opposition to Giss’s request for a five-week postponement. Judge Jones held the key.

Jones agreed to a temporary delay to give himself time to ponder the possibilities. Although the new information had come at the last minute, and the prosecution had not had time to formulate a response, the prosecution had agreed beforehand to have Henion perform the tests. If they were harmful to the prosecution’s case, that was a risk Giss and De Noce had been willing to take. They had gambled and they had lost. Jones was disinclined to order a lengthy postponement in a trial that already was long overdue. Instead, he announced that he agreed with Diamond; the case would have to go to trial forthwith.

The judge’s decision prompted a hurried meeting among members of the prosecution team. But in the end they knew they had no option. As distasteful as the action appeared to the prosecutors, the murder charge would have to be dismissed. There would be no trial. At least not immediately.

From a practical point of view, the decision to dismiss the charge made sense. Giss and De Noce figured that if they took the case to trial and David was acquitted, which would likely happen, he could never again be tried for murdering Tim Waters. To even attempt to do so would violate his rights against double jeopardy. But if they dismissed the charge, and evidence later surfaced to bolster their case, David could always be recharged. There is no statute of limitations on murder.

On April 4, just four days shy of the fifth anniversary of Tim’s death, the district attorney’s office told Judge Jones that it was abandoning the charge that David murdered Tim Waters. Separate documents affirming this position were filed by Ventura County District Attorney Michael Bradbury, Giss, and De Noce.

“The circumstantial evidence was and continues to be compelling in the sense that it implicates the defendant in the death of Timothy Waters,” Bradbury noted in his formal notice of motion for dismissal.

“Certain facts remain indisputable despite the recent scientific findings,” he added, citing statements from Galambos and Edwards, virtual concessions from David that he had a motive in wanting to retaliate against Tim [meaning that he paid to have him beaten up], and the unusual circumstances of Tim’s death. But, he admitted, Henion’s findings had dealt the prosecution a fatal blow. “Based on these results, I believe that there is a reasonable doubt as to whether the defendant poisoned Timothy Waters by way of oleander, and therefore move that this case be dismissed.”

But he appended a caveat, a warning, really, to David. “It should be noted,” Bradbury said, “that Dr. Henion has not excluded the presence of all possible poisons, and thus this case will remain in an investigatory status until the prosecution’s beliefs are confirmed or dispelled.” In essence he was telling David he could be released but he had better check his closet and look under his bed every night.

However much it hurt them to do so, Giss and De Noce also filed statements supporting Bradbury’s motion. The prosecution was in a very delicate position, Giss asserted. If he and De Noce were to proceed to trial, it would have to be based on the theory that the oleandrin that Rieders had determined was in Tim’s system broke down to undetectable levels between August 1988, when the Pennsylvania toxicologist performed his tests, and March 1991, when Henion performed his. However, to try to argue that before a jury, Giss loathingly admitted, would be futile. “I do not think that the evidence is sufficient to prove this theory beyond a reasonable doubt,” he concluded. The defense, on the other hand, also could have claimed that what Rieders had taken to be oleandrin was some other substance formed when the samples taken from Tim during the autopsy were fixed with preservative.

To Giss it was a no-win situation, although he meticulously listed eight reasons he had for believing that David had murdered Tim, ranging from David’s boasts to Galambos and Edwards, to David’s admission of having Tim beaten up. “Nevertheless,” Giss said, “the confessions referred to are not admissible evidence without the ability to establish that the victim died by criminal means. Further, absent the ability to establish that the victim was poisoned, the original ascribed cause of death [metamorphosis of the liver] cannot be ignored and will prevail as the cause of death.” He could not try David for Tim’s murder if he could not prove that Tim had indeed been murdered.

At this point, with victory in his grasp, Diamond made a possible mistake. Holding his breath, Giss hoped that Diamond would not oppose the motion to dismiss, although it was entirely within the defense attorney’s purview to do so. When Diamond let the moment pass, Giss sighed in relief. If the defense attorney had protested and Judge Jones had gone along, David could have been ordered to stand trial despite the prosecution’s wish that it not happen. And that could have given the prosecution all kinds of problems.

The prosecution’s main concern, the one that led to the decision to dismiss the charge, was that David would be acquitted at a trial. If that happened, he could never again be charged with Tim’s murder, no matter what new evidence developed, because the law prevented him from being placed twice in jeopardy for the same crime. But if Diamond had opposed the dismissal motion and Jones had upheld the defense attorney, jury selection would have begun. And once a jury is picked and sworn in, jeopardy attaches. That is, from the point jurors take their oath, there is no turning back; the trial proceeds, almost always to be resolved by a verdict. However, the judge has the option, after listening to the prosecution’s case, to dismiss the charge if he feels the district attorney has not made a strong enough case to warrant conviction. If David’s trial had gone on and Jones dismissed the charge at the end of the prosecution’s presentation, it would have been the same, legally speaking, as an acquittal: David could never be charged again with Tim’s murder. Giss’s nightmare was that Jones would listen to the prosecution’s case and then decide that Rieders’s testimony was not strong enough to refute Henion’s and that the prosecution had failed to prove that Tim had been murdered, therefore a dismissal was mandatory.

But in the absence of opposition from Diamond, Jones approved the prosecution’s request to dismiss the charge
before
jury selection began, thus leaving the way open for the district attorney’s office to refile the murder charge at some future date.

Asked later why he did not oppose the motion to dismiss, Diamond said his main concern had been to get David released from jail. He had, after all, been behind bars since June 8, 1987—some forty-six months. If he had protested, Diamond reasoned, David would just have had to remain incarcerated for another indefinite period of time while the jury was selected and the prosecution built its case. Plus, going to trial, even with Henion’s report in his pocket, still would have been a gamble for Diamond. Giss and De Noce may have been able to put on such a convincing case that a jury, always an unpredictable group, may have decided that David was guilty anyway. The risk, in Diamond’s view, was not worth it. In any case, Diamond viewed the possibility of a murder charge being refiled as extremely slim.

PART SIX

Full Circle

34

In actuality, the dismissal of the murder charge against David was not the end of the Sconce saga at all; it simply represented a lull, a truce in the war, as it were. The murder charge had been only the most prominent boulder on the hillside.

That was the good news. The bad news was that what was left after the murder charge was dismissed was an unbelievably complicated legal mishmash, the likes of which few lawyers and judges, much less spectators, ever see.

To begin to understand the status of the case still pending against the Sconces in the summer of 1991, one had to go back to what had transpired in Judge Terry Smerling’s court in Pasadena in the summer of 1989. Smerling, the former ACLU lawyer originally appointed to the bench by Governor Edmund “Jerry” Brown, had waded through the stack of sixty-eight charges that were then current against the Sconces, and decided they were excessive or irrelevant or both. So he started clearing the decks.

On June 30 he announced his decision to dismiss ten of the more serious charges against the Sconces, using a variety of excuses. In tossing out many of the counts of stealing body parts against David and his father, for example, Smerling gave as his reason the fact that the words “to remove tissue,” which were printed on the cremation consent forms used by the Sconces, provided justification in allowing them to remove and sell hearts, brains, lungs, and eyes. While admitting that he found the practice “despicable,” Smerling said the form was in essence a contract, and it had been the responsibility of those who had signed it to challenge its validity.

Another of the charges Smerling dismissed was one accusing David of conspiring to murder Elie Estephan. As outlined during a separate preliminary hearing before Judge Judson Morris Jr. in January 1989, six months before Smerling began trimming the charges, David had hatched a very complicated plan to take over the business
and
help his brother-in-law, Brad Sallard. Once Estephan was murdered, David would get the business and Sallard would share in a $250,000 life insurance policy then held by Estephan’s estranged wife, who at the time was living with Sallard.

According to preliminary hearing testimony, David committed at least six separate overt acts in helping to plan Estephan’s death, including sitting in a restaurant with one of the hired hit men, Bob Garcia, and spying on Estephan through a pair of binoculars. Despite the powerful evidence pointing toward David’s participation in the murder plot, Smerling dismissed the charge because testimony also showed that David had told Garcia to “forget about” the plan before it could be consummated. The judge reasoned that since the plan was never carried to fruition, the charge of conspiracy was not valid.

Outraged, the district attorney’s office filed an immediate appeal, claiming Smerling had overstepped his authority, and the decision to dismiss the Estephan charge was illegal.

Less than a week later, on July 6, ignoring the prosecution’s complaints about his handling of the cases, Smerling dismissed twenty more charges against the Sconces, citing lack of evidence supporting the accusations. The records, he said, were too skimpy to justify bringing them to trial. Among the accusations dismissed in the second round of charge-trimming were additional counts of stealing and selling body parts, committing multiple cremations, forging organ-donor consent forms, embezzlement, and falsifying death certificates. By the end of that round, Smerling had reduced the number of charges against the Sconces by almost half. However, what was left was still an impressive list of accusations.