THE FIRST AND MOST IMPORTANT ISSUE to be decided prior to Walter’s trial for Barbara Jean’s murder was whether prosecutor Joseph Casey could use Walter’s statement to Devlin and Worrell at trial or if it had been coerced. In September 1993 Judge Juanita Kidd Stout held a hearing on this issue.
Judge Stout was one of the most distinguished jurists in Philadelphia. In her long career she had been an ADA in charge of a division of the DA’s office, the first African American judge in Pennsylvania, the first African American woman to be elected to a judgeship in the United States, and the first African American woman to serve on any state’s supreme court. She had gray hair pulled back tightly from her forehead and habitually leaned forward in her chair to look out over the courtroom with deep-set, intelligent eyes. Being five feet three inches, she sometimes had to sit on a pillow on her chair to see over the bench.
Stout was comfortable with high-profile cases, having presided over two of the biggest in recent Philadelphia history: the investigation into the infamous 1985 showdown between Philadelphia police and the radical MOVE organization that culminated in the firebombing of the MOVE house and the ensuing destruction by fire of an entire city block; and the trial, in absentia, earlier in 1993, of Ira Einhorn, a ’60s radical who’d beaten his girlfriend to death. Einhorn somehow got bail on the eve of his trial in 1981 (his lawyer was Arlen Specter, the well-connected former DA who went on to become a long-serving US senator) and fled to Europe. The controversial trial in absentia resulted in a conviction, and Judge Stout sentenced him to life in prison; he was eventually extradited from France and convicted of the murder in a new trial in 2002 and is currently serving life without parole.1
For ADA Joseph Casey, fifty-three, with thinning gray hair and a middling reputation, this was a big case. He had a chance to win a high-profile case that had embarrassed law enforcement officials for four years, from when Barbara Jean Horn’s body had been found two blocks from her house to the morning of Walter Ogrod’s arrest. Casey had worked on the case since 1989, overseeing the 1990 grand jury that had failed to indict either of two other suspects in the murder, and now could get a death sentence for a vicious killer who had put the whole city on edge.
The most important issue at Judge Stout’s suppression hearing was what was known as the “six-hour rule,” according to which once Philadelphia detectives had a suspect in custody, they had six hours to interrogate him. Any confession that took longer than six hours to obtain was supposed to be thrown out—was, as Devlin himself described it, “not worth the paper it’s written on.”2
In the Ogrod case, the statement was even more important than usual—since there was no other evidence against him, if the statement were tossed, he would go free. And the statement presented a real six-hour rule problem for the prosecution; even by the detectives’ account, Walter had been in the homicide offices for about fourteen hours, from his arrival at the Roundhouse at 3:45 PM on April 5 until being booked the next morning at about 6:00 AM. (If Walter’s version is true, he arrived around 1:30 PM and was there more than sixteen hours.)
The detectives, then, had to whittle Walter’s fourteen hours in the homicide offices into a six-hour confession. The first step in this process was to swear that they never thought of Walter as a potential a suspect, only an “informational witness,” until the moment he confessed. This was crucial because the six-hour rule clock only started ticking when Walter became a suspect.
On the stand at the suppression hearing, Devlin gave the detectives’ version of what happened the night Walter signed the statement. He admitted up front it was a crazy story that in some ways didn’t seem to make much sense, but it went like this: Walter called homicide after noon on that Sunday, April 5, 1992, and made an appointment with Detective Worrell to come in for an informational conversation at 6:00 PM. It had never occurred to either detective—Devlin stressed for the first time of many—that Walter might be a suspect in the case. To the detectives’ surprise, Walter showed up at 3:45 PM, more than two hours early. Worrell met him in the lobby of the Roundhouse, signed him in, and took him upstairs to wait on the benches outside Room 104, the homicide offices. Devlin testified he was out running errands at that time and protocol required two detectives in an interview, so Worrell waited for Devlin to get back before taking Walter to an interview room. The entire time he waited on the bench, Devlin explained, Walter was free to go, because he was not a suspect yet.
Devlin said he got back to the Roundhouse at around five thirty and Worrell put Walter in Interview Room D, leaving the door open because Walter was purely an informational witness—not a suspect. For the next half hour or so, the detectives conducted what Devlin called an “oral” interview, meaning he didn’t write down what Walter said. He only began writing down the questions asked and Walter’s responses just before six thirty.
During this conversation, one of Walter’s answers concerned the detectives, Devlin explained: Walter said that on the day of the murder Barbara Jean had come to his house sometime between 1:00 and 3:00 PM, looking for Charliebird, and that he’d let her in, told her to “go talk to Mrs. Green,” who was in the dining room, and gone upstairs.
Until that moment, Devlin testified, they’d never heard that Barbara Jean had been in any house on Rutland Street that day other than her own. He asked Walter if Barbara Jean had talked to Mrs. Green after he let her in, and Walter said he didn’t know. This, Devlin testified, was hard to believe, because if Linda had been in the dining room, as Walter said, he would’ve seen her from the front door and would know the answer to that question.
The information about Barbara Jean being in the house and Walter’s apparent lie about seeing Linda bothered the detectives. Then, Devlin testified, Walter told them that when John Fahy came to the door later in the afternoon asking if he’d seen Barbara Jean, Walter told him he wasn’t sure if he had or not. This answer bothered the detectives, too—what kind of person wouldn’t tell the father of a missing little girl that he’d let her in his house a couple of hours earlier?
Devlin testified that he sensed that Walter was getting nervous and so asked him, “You’re not telling us the truth. Are you, Walter?”3
Walter began crying convulsively, Devlin said. Devlin and Worrell decided to give him a chance to compose himself. It was 6:50 PM.
“You know, Walter, relax, take your time,” Devlin told him.
Even at this point, Devlin swore, he and Worrell had no idea Walter might be a suspect.
Devlin said he got Walter a cup of coffee and Worrell took him to the bathroom. Back in the interview room Walter took his seat, sipping his coffee, eyes red and swollen, and before the detectives could say anything started talking, pouring out a long, rambling description of his childhood. Then Walter said he was going to tell them something he’d never told anyone, not even Dr. Ganime, his psychiatrist for many years.
Devlin said it still didn’t occur to him or Worrell that Walter was a suspect, but they decided out of an abundance of caution to read him his Miranda rights. They gave Walter a printed card with the rights on it and had him read them aloud and initial each one. They did not make a note of this on Walter’s interview record, nor did they record the time of day on his rights waiver—an odd thing to forget, since the entire point of a rights waiver is to prove a suspect understood his rights before he confessed.
Devlin testified that after signing his rights waiver, Walter seemed to want to cooperate, so they asked him the one question they had: What were you going to tell us? And, Devlin told the court, he wrote down verbatim what Walter said next: “This is going to be hard for me to say. Please be patient and let me take my time. I never meant to do anything bad to that little girl. I feel like killing myself over this. It’s caused me a lot of stress. I’ll tell you the best I can remember it.”
Then, Devlin swore, Walter spoke for the next two hours and forty-five minutes, uninterrupted, describing the murder and the aftermath as Devlin transcribed every word, verbatim. The detectives never interrupted, Devlin explained, because they were nervous Walter would stop talking if they did.
When he finally did stop, they stepped into the hallway to consult with Sergeant Nodiff, their supervisor, then went back in for follow-up questions. Devlin asked Walter if he ejaculated during the sexual assault. Walter said he didn’t remember, and Devlin asked him if he knew what the word meant. Walter said he did. Was anyone else in the house? Walter didn’t see anyone. Had he talked to anyone while carrying the body around? He didn’t remember doing that.
The questions continued, Devlin testified, but it became clear Walter wasn’t going to cooperate anymore. They had him read a couple of pages of the completed statement out loud to make sure he could read Devlin’s handwriting, and then he read the rest to himself, signing each of the sixteen pages as he went. They faxed the statement to the charging DA at 12:04 AM.
Devlin said he and Worrell were surprised by how relaxed Walter was once the confession was done. He was “a different guy . . . like he excised a demon or something.”4 They didn’t even handcuff him. He put his feet up on the table, ate a cheesesteak, drank some coffee, and read the newspaper.
Sergeant Nodiff, Devlin said, called Joseph Casey at about 2:00 AM to come in and sign off on Walter’s statement. He didn’t say if they discussed why Nodiff got Casey out of bed to review a statement if it had in fact been accepted by the charging DA two hours earlier.
In his cross-examination of Devlin, Mark Greenberg focused on the detective’s claim to have written down everything Walter said “verbatim.” How could it have taken two hours and forty-five minutes for Walter, in a smooth, uninterrupted monologue, to say what amounted to a few minutes’ worth of spoken words? Devlin explained that Walter had stopped often to cry. Had Devlin noted those pauses in his transcript? No, Devlin admitted, he hadn’t made a note every time it happened; he’d noted it once at the beginning but not again, though it happened several times.
Eventually, Devlin admitted the statement was not verbatim. This was the first time the prosecution’s case against Walter would shift, but not the last. Walter had been arrested and charged with capital murder because, the detectives swore, an unprompted confession had poured out of him and Devlin had written down every word. Now Devlin, pressed on this explanation, admitted it wasn’t exactly true.
A few minutes later, under intense questioning from Greenberg, Devlin grudgingly admitted that he and Worrell had known every provable detail of the case—manner of death, that Barbara Jean was wet, that she was naked, etc.—before they ever talked to Walter.
Greenberg questioned Devlin about the justifications he was offering for producing a confession without a single provable detail that only the killer would know. Devlin grew testy.
“We did not know . . . the location of the murder,” he snapped. “We did not know the instrument of the murder. We did not know who the murderer was.”
But there was no other evidence for these things.
Greenberg came to the problems with the detectives’ version of the interrogation, including their stated impressions of Walter at the time. Devlin said Walter had appeared normal and sober.
“Regular person, right?” Greenberg asked.
“Seemed to be,” Devlin said.
“Yet, the first question on page fourteen [of the statement] that you wrote down, ‘Do you know what ‘ejaculate’ means? Answer: ‘Shooting your load so to speak.’ What was it about Mr. Ogrod, Detective Devlin, that made you ask a twenty-seven-year-old to define what the word ‘ejaculate’ means?”
Devlin tried to dodge the question but eventually admitted, “To find out whether or not he knew what ‘ejaculate’ meant.”
“Did you think that was such a word that would have difficulty for him to define?” Greenberg asked.
“I had no idea,” Devlin said. “I had no idea.”5
Greenberg asked if he’d noticed Walter’s speech impediment or anything that indicated Walter might have psychological problems. No. Had he ever asked his supervisor if Walter seemed like the kind of person who might confess falsely? No. Did he now know his supervisor had asked Alice Green that same question the next day? No.6
Devlin came through his cross-examination well enough; no one could prove that he’d noticed Walter’s speech impediment or that Walter was “off,” so it would come down to whether the judge would call him a liar by throwing out Walter’s statement. Not very likely.
Greenberg called Walter’s landlord, Howard Serotta, to describe his conversation with detectives on April 1, 1992. This would establish that the one remaining detail in the statement that supposedly only the killer could know—the murder weapon—had actually come from detectives themselves.
Serotta described his conversation with the detectives, them asking about the weight set; he said having a homicide detective show up was not an everyday thing and it was the only time he ever spoke with Philadelphia detectives about Walter, so he couldn’t be mistaking it for a later conversation. He said he was very surprised when Walter, who seemed like a good person, was arrested, and he told of waiting a few weeks to clean out Walter’s apartment, assuming the detectives would be back to search it. He said he eventually cleaned the apartment himself and didn’t find anything of interest to the case—no weight set, no child pornography, no child’s belongings.7
Peter Blust testified next, describing Walter’s frantic phone call the morning he was arrested. This testimony was meant to support Walter’s claim that he had been saying he was coerced and describing his interrogation in detail from within a few minutes of being booked; he could not, then, as the prosecutors would claim, have invented the story at his lawyer’s suggestion a few days later.
But Joseph Casey, alerted to Blust by his friend Joe Brignola, had done his research. He got Blust to admit that his law license had lapsed and that he’d been arrested a few years before for drunk driving and being abusive to a police officer. This finished Blust as a witness, which meant that when the trial came, the jury wouldn’t hear his corroboration that Walter had recanted his confession immediately.
Greenberg put Walter’s psychiatrist, Dr. Ganime, on the stand to give some of Walter’s background, explain Walter’s deficiencies, and offer his opinion that the confession was not in Walter’s style of speaking. This was the closest Greenberg came to putting up an expert to describe Walter as being at high risk for giving a false confession; given the limits to his resources, it might have been the best he could do. He never brought up Joseph Casey’s post–2:00 AM trip to the homicide office.
Predictably, Judge Stout ruled that the prosecution could use Walter’s statement at trial, which would be in late October. But even as she ruled Walter’s statement admissible, she undermined the detectives’ version of events, writing in her “Findings of Fact/Conclusions of Law” that the detectives did ask Walter’s landlord if Walter had a weight set—which would mean the detectives had their idea of the murder weapon before they talked to Walter. Joseph Casey realized the import of this finding and asked Stout to reconsider it. She said she would be happy to, but I can’t find any record that she did, which means her original finding remains on the record.8