MARK GREENBERG BEGAN HIS CLOSING argument by reminding the jury that their job was to be fair to the defendant and not get caught up in the “heart-wrenching understanding” of what the Fahys had been through.
“I ask you to listen to me for the next thirty minutes, or for however long my voice holds out,” he said, “while I explain to you why there is a reasonable doubt in this case as to whether or not Walter Ogrod is the man who killed this child.”
Walter did not look like the man who carried the box, Greenberg said; there was a better suspect, Ross Felice, who did; and there was no evidence of a sexual assault, which proved Walter’s statement to Devlin and Worrell was false. The eyewitnesses were well-intentioned, he said; they’d been trying to help the police in July 1988 and were trying to help the DA today by backtracking from the certainty of their descriptions of the man with the box at the time of the murder, but those descriptions were clear.
He pointed at Walter: “This man is not the individual who killed that child and doesn’t fit the description.”
Greenberg said he wasn’t there to prove anyone guilty of the crime but that Ross Felice’s suspicious behavior on the night of the murder and the several identifications of him as the man with the box raised a reasonable doubt about Walter’s guilt. He dismissed the possibility of the single sperm head; the criminalist who thought he’d seen it was wrong, Greenberg said, and even after finding it once it had taken him ten minutes to find it again. Other experts never found it at all, Greenberg said, because it wasn’t there; this meant there was no sexual assault and the confession was false. He reminded the jury that Walter’s time sheets from work proved he hadn’t slept in thirty hours when the interview started. And, he asked, if the bad things the Greens now said about Walter were true, why hadn’t they said anything at the time of the murder?
Finally, Greenberg took on the statement itself, chipping at the detectives’ credibility by pointing out some of their harder-to-believe claims: that they never looked at the Dunne homicide file, that even though they had pictures of Barbara Jean with them at the beginning of the interview they didn’t show them to Walter until the end. The detectives, Greenberg explained, had all the information about the crime before they spoke to Walter and used those details to pressure him.1
Greenberg acknowledged that Walter’s testimony about what time he signed his rights waiver could have been wrong but said it happened after the statement, when Walter was too tired and confused to know what time it was.
He finished by acknowledging the horror of the crime.
“A child is dead,” he said. “It is a horrible situation. It is the worst possible death imaginable, the death of a child. But we are not here, members of the jury, to bring that child back. We are here . . . to decide whether or not a man who sits at the defense table is the man who killed that child . . .
“I ask you, I implore you, don’t . . . be caught up emotionally in this case. . . . When you go back there [to the jury room] . . . just deal with it dispassionately and coolly, and fairly, and I am convinced that when you look at the descriptions of the person carrying the box, and how it is so at odds with Walter Ogrod, you will agree with me there is a reasonable doubt and you will come back with a verdict of not guilty. Thank you.”
It was almost 2:45 PM. Judge Stout ordered a five-minute break.
Closing arguments are supposed to be limited to discussing evidence that was put on during the trial, but, lacking hard evidence tying Walter to the murder, Joseph Casey would need to stretch his narrative. His closing argument would focus on making Walter out to be a liar and the kind of “animal” who could commit such a horrible act.
He began by flattering the jury, telling them their service was second in importance to society only to wartime military service. They were the ultimate fact finders in the case, he said, each chosen because he or she understood that “beyond a reasonable doubt” didn’t mean “beyond all doubt.”
“If you . . . didn’t want to use your common sense, you could have doubt about anything,” Casey said. Taking on the role of humble scholar, he told the jury, “There is a German philosopher named Immanuel Kant, and he said, ‘I doubt I really exist.’ He would go outside and bump into a tree and say, ‘I didn’t really hurt myself—I don’t exist.’ That is nonsense. He can’t get on the jury I pick, because he has no common sense.”
Doubt had to come from evidence, Casey said, not from wanting to avoid an unpleasant job, and in this case the evidence established the defendant’s guilt beyond a reasonable doubt. Walter had told them two “demonstrable, provable” lies in his testimony, Casey said: what time he’d signed the confession, and, even more damning, that he’d read about the man trying to put the box in a Dumpster in the Northeast Times. The fax time stamp on the confession and the testimony of the reporter from the Northeast Times proved that these statements were lies.
“The defendant lied to you,” Casey said. “There is a Latin expression, I never learned how to pronounce it, ‘Falsis in uno, falsis in omnibus,’ becomes literally translated, ‘If a person testified falsely about one material fact, he testified falsely about everything.’”
Casey had told the jury he would give them irrefutable proof of guilt. In a strong case that would be eyewitnesses, physical evidence, a provable recovered weapon to support the disputed confession. Instead, he’d offered them two supposed lies told by Walter on the stand that, even if true, didn’t prove much. Casey apparently sensed this. He told the jury that if his arguments for Walter’s guilt didn’t strike them as powerful, they should feel free to pick their own and, likewise, if he hadn’t mentioned something in his closing that they thought was important, they should remember he was just giving them the highlights of what he remembered from the trial, that whatever the jurors thought was important was important.
He kept the single sperm argument alive, or tried to, accusing the defense expert who couldn’t locate it on the slide of being greedy and incompetent. Then he said that it didn’t matter anyway, the Commonwealth didn’t need that sperm to prove sexual assault.
“When you find a little girl, naked, without any clothes, naked in a box, it is a sexual assault death,” he asserted.
The jurors, he said, were unlikely to ever again witness the kind of lying they’d seen when Walter testified. He ridiculed Walter for saying the pressure of the interrogation had convinced him he’d committed the murder and then pinpointed what he called “two slips” in Walter’s testimony that proved him a liar.
The first had come when Walter referred to seeing a red wound on Barbara Jean’s head when, in fact, all the pictures the detectives had shown him of her were in black and white. This had been Walter’s worst moment on the stand. But the second “slip” Casey offered as proof of Walter’s guilt hadn’t actually happened. Casey told the jury that when he asked Walter about carrying the box, “[Walter] said, ‘When I was carrying the box,’ and then he kind of caught that.”
But according to the transcript, Walter never said anything like “When I was carrying the box.” Casey had read that line to him; it came from the Devlin/Worrell statement.2
Casey told the jury the crime had been eating away at Walter for four long years when the detectives showed up at his apartment, that bludgeoning a child to death might be the most heinous act a person could commit.
“Why? Because of the absolute innocence,” he said. “There is no four-and-a-half-year-old who is anything but innocent and beautiful and lovely, untarnished by evil, and that is why, when the defendant killed Barbara Jean and put her in the box, there was planted in his stomach the seed of his own destruction and ruin and it sat there and it sat there, waiting to be stimulated, to grow like some horrible malevolent growth and then explode.”
The visit from detectives set off the explosion.
“Four years, four years the defendant was free,” Casey said. “Shakespeare, in Julius Caesar, tells us, ‘Cowards die many times before their death. The valiant taste death but once.’ A valiant person does not kill a little girl.”
Casey argued that Walter wasn’t sleep deprived when he gave his statement, arguing first without any supporting evidence that Walter’s work records had somehow been falsified, that he hadn’t been driving as long as he said. Then, misstating Walter’s timeline for April 5–6, Casey argued that Walter had managed to nap for close to eight hours in the thirty-six preceding his interrogation. (This is not possible. The first two of these alleged “napping” hours were supposedly the two hours after Walter woke up on the Saturday morning; for the next four he was actually driving; for the last two he was waiting on the homicide bench, where he admits he dozed, though the detectives swore he didn’t.)
Sleep deprivation is one of the better-known ways to get people to talk. As far back as 1930, an American Bar Association report that was later cited by the Supreme Court said that “it has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired.”3
Not according to Joseph Casey.
“Do you think that anyone who hasn’t slept would walk in and say, ‘Yes, I killed the little girl’? That’s the way things go?” he asked the jury. “Hardly. Not within your common sense . . . [Walter] was twenty-six [sic] then. . . . You know, you get some home fries and eggs and orange juice, you are ready for another twenty-four [hours]. Young people can do that. When you get my age, you can’t, but I don’t understand the sleep-deprived thing.”
Casey came back to the idea of the “evil growth” in Walter that “Boom! . . . exploded into heavy sobs, chest-racking sobs, shoulder-heaving sobs. . . . This demon has been inside of him for years,” Casey said. “‘Conscience doth make cowards of us all. Cowards die many times before their death.’”
He argued that Walter had described his bad childhood before confessing to the murder in order to “justify” killing the little girl.
“Look at the devil,” he said, pointing at Walter. “What is he thinking when Detective Devlin or Worrell say to him, ‘You are not telling us the truth’? The million deaths he died come bursting out.”
Though even Worrell and Devlin had admitted knowing most of the details of Barbara Jean’s murder before talking to Walter, Casey told the jury that “usually, detectives know everything before they begin to interview somebody. Here, they knew nothing.”
He insisted that two previously unknown details of the crime—the sexual assault and the murder weapon—had come from Walter. The detectives had no motive, he said, no interest in getting Walter to confess.
Casey warmed up for his finale, banging his fist on the table to emphasize that premeditation could form in a moment.
“Just sufficient to allow your mind to fully form the intent to kill . . . that’s all that is necessary to form the intent to kill. It can be that brief.”
Brandishing the substitute pull-down bar, he said, “Keep in mind the Commonwealth did not create the injuries on Barbara Jean Horn. The Commonwealth did not create this bar. The Commonwealth did not push Barbara Jean Horn’s head down and then when the poor little girl whimpered, decided, ‘Oh my God, I might be caught,’ hit her”—he smacked the pull-down bar the prosecution table—“one [BANG], two [BANG], three [BANG], four [BANG], five [BANG], six [BANG], seven [BANG], with the perfect murder weapon . . .”4
The courtroom was silent.
It was a fitting end to Casey’s argument, a dramatic flourish to reinforce a story for which there was no evidence delivered with a pull-down bar that wasn’t the actual pull-down bar that wasn’t a good fit for the murder weapon.
The jury had been sequestered for the length of the trial at a hotel in Northeast Philadelphia—an odd choice, jury foreman Charles Graham thought, considering the three hours of commuting time it added every day to load the bus and sit in rush hour traffic to and from the courthouse downtown.
The jurors were told not to speak to each other about the case, but on those long commutes they did.
Graham, a high school teacher, thought the prosecutors had no real evidence against Walter. He spoke with a juror named Alfred Szewczak, a sixty-one-year-old former marine and firefighter with a spiky gray crew cut, who told Graham that his son had been shot in a bar a few years earlier and survived to testify against his assailant, who’d been acquitted anyway based on some technicality. Szewczak told Graham he’d been furious and had vowed if he ever got on a jury he would not let the defendant go free. Graham tried to talk Szewczak out of this notion, reminding him that his duty was to decide the case based on the facts and the law, but Szewczak didn’t seem persuaded.5
On the second day of deliberations, after eight and a half hours of discussion, the jury sent word to Judge Stout that they were unable to reach a verdict. Mark Greenberg, thinking a deadlock in a case with a signed confession probably meant Walter had barely escaped a conviction, asked for a mistrial. Judge Stout refused and sent the jury back to deliberate more.
The next morning at 10:30 AM the jury sent a note to Judge Stout asking her to clarify what “reasonable doubt” meant. She had them brought into court and explained that “beyond a reasonable doubt” did not mean beyond all doubt or proven to a certainty; on the other hand, a strong suspicion of guilt was not enough to convict. A reasonable doubt must be, she said, “the kind of doubt that would restrain a reasonable man or woman from acting in a matter of importance to himself or herself. If you have such a doubt as to the guilt of the defendant or as to any of the factors upon which his guilt may depend, it is your duty to acquit him.”
A few hours later the jury sent word that they’d reached a verdict. Judge Stout ordered the parties to assemble in the courtroom.
As the lawyers and family members gathered, local TV news crews set up live shots outside the building. The verdict would speak directly to the competence of a police department that had struggled for so long to solve a case that seemed so solvable in the days right after the murder; to the credibility of two of Philadelphia’s most experienced homicide detectives; to the ability of a DA’s office that prided itself on toughness to bring a child killer to justice and help a city that had been gripped by each stage of the case regain a sense of security.
The courtroom was standing room only when the jury filed in and took their seats at 2:25 PM. Most of the DA’s homicide office had come over to watch.6
Sharon Fahy held John’s hand and lowered her eyes; she couldn’t look. She thought something was wrong, everyone kept saying so, even Devlin and Worrell, because the jury had taken so long to reach a verdict when it should have been simple: Ogrod confessed, end of story. Convict him, sentence him to death, and let people get on with their lives. With her free hand she held the crucifix hanging around her neck.
John radiated tension. He was sure the jury would convict. They had to; no one could be stupid enough to believe any of the half-assed excuses Ogrod offered about being forced into confessing.
Devlin and Worrell sat next to Sharon’s sister, Barb, surrounded by other family members.
Walter sat flat-faced at the defense table with Mark Greenberg.
The court crier turned to the jurors and asked, “Ladies and gentlemen of the jury, have you agreed upon a verdict?”
Charles Graham stood up. “Yes, we have,” he said.
“Have all twelve agreed?” the crier asked.
“Yes, your honor,” Graham answered.
The crier started reading the verdict. “On—”
Alfred Szewczak stood up. “No,” he said.
“Wait a minute,” someone in the courtroom called out.
“I don’t agree with the verdict,” Szewczak said, as loud and clear as he could.
A gasp went through the courtroom. Judge Stout slammed her gavel down.
“If you cannot agree on a verdict,” she said, “I will have to declare it to be a hung jury, and I will declare a mistrial. Mr. Ogrod, you will be remanded. You will be remanded to prison.” She banged her gavel.
Sharon looked at her husband, horrified; she didn’t know what a mistrial was—Ogrod was getting off? That was it? She turned to her mother.
John knew a mistrial meant they’d have to go through all of this again. But Ogrod was right there, a few feet away, and John wasn’t going to miss his chance. He sprang from his chair and, all of five feet seven and maybe 160 pounds, bowled over a six-foot-five deputy in the center aisle and lunged at Walter.
All Sharon knew was that John’s hand was suddenly gone from hers and she heard his mother yelling “My John! My John!” and turned toward him, but he was leaping at Walter. Two deputies were trying to tackle him.
Walter and Mark Greenberg jumped away from the table; Judge Stout recoiled in her chair. More deputies rushed to help as John thrashed his body around, trying to get free.
John was so close. If he could just get his fingers around Ogrod’s Adam’s apple, he’d rip it out and this would all be done with. He could see Ogrod standing back, staring at him.
“I’m gonna fucking kill you!” John screamed at him. Walter looked scared.
It took several deputies to finally pin John, chest down, on the defense table.
“Don’t hurt John!” someone yelled.
“She’s the one who got beat to death by that fucking animal!” Barb yelled. She saw that a TV crew was filming the scene through the open courtroom door. “Shut that door!” she yelled.
The deputies got John cuffed and hustled him past the reporters in the corridor.
“He killed my daughter!” John yelled over his shoulder.7
The jury had voted to acquit: Walter had been seconds from going home.
The local TV stations covered the chaos of the mistrial live—John hustled away in handcuffs, then Walter. Judge Stout ordered John released almost immediately, and reporters followed him and Sharon home.
Reporters also followed Alfred Szewczak.
“I wasn’t gonna let him go,” he said, standing in front of his house, on the verge of tears, his gray crew cut and craggy face lit by TV lights. He’d been exhausted by the trial, by being sequestered for two weeks, by trying to convince the other jurors of what he knew in his gut: that Ogrod was guilty. To get it over with so he could go home he’d gone along with the “not guilty” verdict but on the way into the courtroom decided he just couldn’t do it. So he’d done what he had to do to make sure Ogrod didn’t get away.
Szewczak was a replacement juror and reporters found the juror he’d replaced, who told them, “There were gaping holes in the prosecution’s case. It’s pretty ironic that I got pulled off the jury, because it would have been unanimous if I had been there.”8
A TV reporter, live outside the courtroom, called the mistrial a “crushing disappointment” for the victim’s family, the police detectives, and the DA’s office. The DA’s office had 120 days to file for a new trial and announced that they would.
Similar coverage was on all three local TV networks, upstaging District Attorney Lynne Abraham, who, originally appointed DA in 1991, had on November 2 won her first election to the post. Abraham was not one to be embarrassed like that: a child killer had almost walked, and that was simply not going to happen.
John Fahy went to court the next day to apologize to Judge Stout and the bailiff. Judge Stout told him she understood: she thought Ogrod was guilty, too.9 (This feeling didn’t prevent Judge Stout from presiding over Walter’s retrial.)
Charles Graham, the jury foreman, in a letter to the Daily News, wrote that Szewczak had come to the jury with a closed mind and had voted guilty on the first ballot, telling them, “Nothing you people say is going to change my mind.” It was ironic, Graham wrote, that Szewczak, so adamant that a man would never sign a confession to something he didn’t do, had, in what he himself described as a “moment of weakness,” written “not guilty” on the final ballot despite his belief in Ogrod’s guilt.10
A retrial was scheduled for early 1994, but Mark Greenberg filed an appeal, arguing that since the jury had signed the verdict slip, Walter had actually been found not guilty and couldn’t be tried again. Judge Stout canceled the retrial and everyone waited for a superior court ruling on the appeal.