ON MONDAY, MARK GREENBERG rose to give his closing argument.
“When Walter Ogrod appeared in front of you a week ago today and in a loud, clear voice said that he was not guilty, he had two strikes against him,” he said. “The first strike was the horrible nature of the crime . . . and the second strike against him was a courageous and dignified family that hated and loathed him because they felt he took their child away from them.”
The jury’s job was to consider the evidence impartially, he said; the prosecution was required to present evidence, and innuendo was not evidence.
He said there were four reasons Walter was not guilty: he did not fit the description of the man seen carrying the box; the two statements allegedly taken from him were so diametrically opposed that they could not be believed; the evidence showed that another individual was positively identified as the man carrying the box; and, finally, the physical evidence showed Walter’s innocence.
The three eyewitnesses, Greenberg said (limited to discussing only the ones who’d given evidence at the trial), fell all over each other to convince the jury that they didn’t get a good look at the man with the box. But what were the odds of three people looking at the same man from three different perspectives at the same time coming up with the same description if it wasn’t accurate? All three described a shorter, thinner man than Walter, and a T-shirt wouldn’t have hidden Walter’s extra weight. As for the man’s age, between twenty-five and thirty, Greenberg argued that even now, at age thirty-one and having spent four years in jail, Walter looked a lot younger than he was; in 1988, he’d been twenty-three and looked like a teenager. He reminded the jury that many people in the neighborhood had known Walter by sight if not by name, so if it had been him carrying that box around the neighborhood at rush hour, someone would’ve recognized him.
“Are we talking about a stranger? If anything, Walter Ogrod was notorious in that neighborhood,” Greenberg said.
He moved on to Walter’s supposed confessions.
“I want to make perfectly plain here, ladies and gentlemen, that both confessions are bogus,” he said. “It’s not as if the police confession is right and the Banachowski confession is false or the Banachowski confession is true and the police confession is false. . . . The evidence here, members of the jury, is that both confessions are bogus.”
On the Devlin/Worrell statement, Greenberg asked why Walter would sit in the waiting area for two hours on the day of his interrogation if he was just an informational witness and free to go. And if Walter signed his rights waiver when the detectives said he did, why didn’t they note the time or mention it in the written statement?
“I’m not saying that this is a technicality here, that you should acquit Walter Ogrod because the police violated his rights,” Greenberg said. “No. I’m telling you that common sense says that if, in an abundance of caution, this man was going to be given his rights, that detectives would’ve had him sign it. That’s not what happened here.”
The Devlin/Worrell statement, Greenberg said, flowed on the page as if Devlin never lifted his pen from paper, though it was supposed to have been a labored and difficult process.
“No, ladies and gentlemen of the jury, that is not Walter Ogrod’s confession. It’s bogus. A ‘labored’ confession?” he asked, mocking the term Devlin had used. “You saw the mistakes that were made, three spelling errors. . . . Do you mean to say, members of the jury, that for those two hours and forty-five minutes the only mistake that’s going to be made, the only cross-out that’s going to be made are three single words that are misspelled?”
Greenberg was challenging the Devlin/Worrell statement, but since he hadn’t brought up Walter’s lack of sleep during the trial he couldn’t bring it up now.1 The jury never heard an explanation for why a man would falsely confess to something so terrible.
Greenberg moved on to the snitch story: wasn’t it a strange coincidence that for two and a half years in jail Walter never told anyone he’d committed the murder—until right after the superior court ruling that he could be tried again, at which point he told two snitches?
“By the way, where is John Hall?” he asked. “I can’t believe Ms. Rubino is saving him for a more important case.”
“Objection,” Rubino said.
Judge Stout sustained the objection and the jury never knew anything about Hall’s involvement. Or that Rubino was, in fact, holding him for the Ernest murder trial in a few months.
“What does common sense say happened in this case?” Greenberg said. “Isn’t it coincidental . . . that two days after Jason Banachowski is interviewed by Detective Michael Gross and reaffirms his statements about Mr. Ogrod killing this child . . . two days later, two days later, he enters into a plea agreement with the District Attorney’s office. . . . Members of the jury, in fact there was a deal. There was a deal between Jason Banachowski and the Commonwealth of Pennsylvania, and he got the benefit of that deal.”
Greenberg argued that the detectives and the snitch had given diametrically opposed versions of the killing, and yet by calling them Rubino was vouching for the credibility of both. Which was true, Greenberg asked, Walter the “incredibly manipulative, craven, pre-planning, premeditated individual” in the snitch statement, or Walter the guilt-ridden wreck who broke down to Detective Devlin? The creep who stalked Barbara Jean and lured to his house to sexually assault her or the impulse killer who grabbed her when she came over to play with Charlie Green? As for carrying the body and box around the neighborhood, Greenberg said, the snitch statement couldn’t be true, so he supposed they were left to believe the detectives’ statement, which was also full of inaccuracies but in which Walter at least dragged and carried the box down St. Vincent Street.
“Members of the jury,” Greenberg said, “what the prosecutor is asking you to believe is Chinese menu justice: A little bit from column A, a little bit from column B; mix them all together; mix and match them.
“And what proof beyond a reasonable doubt? Are you telling me that as members of the jury of his peers . . . we can pick and choose what version we want to believe? No. The internal inconsistencies of this case, members of the jury, with respect to the two bogus statements, establish conclusively that neither of them is true.”
Greenberg held up a picture of Ross Felice alongside the police sketch.
“This photograph . . . and this sketch, I submit to you, are so similar as to be almost exact,” Greenberg said.
He described again the incident at the gym when Ross Felice ran from David Schectman. It wasn’t his job to prosecute anyone, Greenberg said, but to present “compelling evidence to show that Walter Ogrod is not the individual who committed this atrocious crime,” and the identifications of Ross Felice were compelling evidence.
Greenberg allowed that Walter probably did tell Wolchansky all about his case, about suing “the living daylights” out of everybody when he finally went free. But, he said, that didn’t mean Walter had admitted to the crime.
Greenberg closed with “the one piece of evidence that shows, beyond any doubt, that Walter Ogrod is innocent”—the pull-down bar from the weight set. He outlined the medical examiner’s descriptions of Barbara Jean’s wounds—no fractures to her head or her shoulder blade, not a broken bone on her—and asked, “Do you really believe, members of the jury, that if Walter Ogrod, in a fit of rage, took this pull-down bar and beat that delicate four-year-old child in the head, what do you think her head would look like? . . . A cracked egg, as horrible as that might sound, as horrible as that might be to envision.
“Imagine what that poor child’s skull would be like if she was hit with this object,” he went on. “No, ladies and gentlemen of the jury, that child may have been beaten to death, but she was not beaten to death by that pull-down bar, she was beaten to death with something maybe lighter, maybe a stick, maybe a pole, maybe a handle of a cleaning instrument, broom, mop, something like that, but not that pull-down bar.
“This is conclusive evidence that the man who sits at that table right now not only is presumed to be innocent but is innocent.
“Thank you.”
It was 11:40 AM; Greenberg’s closing had taken fifty minutes. He’d left the jury with a vivid, disgusting image of the murder but without making the clearest argument against the pull-down bar as murder weapon: that the original doctor who performed the autopsy had said the weapon was flat.
Thomas James thought it was a good closing. He watched reporters, especially the one from Channel 6 news, “scribbling frantically” in their notebooks.
Greenberg’s defense of Walter had highlighted the differences between the two statements and argued strongly that a case built on two irreconcilable versions of a crime had a reasonable doubt built in, that both statements were bogus. But Greenberg’s case at the second trial left Walter a blank, hiding behind a lawyer. Walter’s lack of facial expression—part fear, part self-control, part inability to understand and convey emotion—contributed to this; not only did Thomas James note at one point that Walter didn’t seem angry enough about what was happening, but the subject of Walter’s emotionless, remorseless, blank face came up in newspaper stories about the trial.
Juries are instructed that a defendant deciding not to testify shouldn’t be held against him, but this jury never heard any information about how false confessions could and did happen and never heard Walter say he did not murder Barbara Jean. They never had a chance to get a sense of this man who’d supposedly admitted to a murder he hadn’t done, which can only have added to their sense that Walter had something to hide: most of us believe that if we were falsely accused of killing a little girl, nothing could prevent us from taking the stand and telling everyone we didn’t do it.
Judi Rubino began her closing by reassuring the jury that they shouldn’t worry about the contradictions and gaps in the case against Walter, because even clear-cut murder cases can have details that never quite make sense. The jury, she said, had to determine “what manner of person killed Barbara Jean Horn.”2
In other words, this case was about feel, and she set about making the jury feel comfortable that Walter was that “manner of person,” sometimes pushing and sometimes flouting the rules of what she was allowed to say, daring Mark Greenberg to stop her.
First, she needed to go over the evidence again, beginning with the eyewitness testimony.
“It’s often been said,” she told the jury, “that identification testimony is the weakest type of evidence and the most unreliable.”3 If the eyewitnesses had said Walter was the man with the box, she said, the defense would be arguing that identification testimony was unreliable.
None of the witnesses really saw the man, Rubino argued, because he was bent over carrying something heavy. Also, Walter might look different all these years later, she said; maybe after four years of getting three squares a day, he’d put on weight. The police sketch was wrong and had “nothing to do” with the witnesses, who “never identified anybody else as being the person who did the killing.”4
Rubino finished her muddling of the eyewitness testimony by telling the jury again that the sketch looked as much like Walter as it did like Ross Felice.
“Walter,” she said, “fit the description . . . as well as anybody did.”5
She’d succeeded in turning one of the biggest weaknesses in her case into a strength, twisting the eyewitnesses until it seemed Walter had essentially been identified as the man with the box. Even as she did so, she reminded the jury that David Schectman said the man had nothing unusual about his voice—which would’ve helped Walter if the jury had heard his speech impediment.6
Rubino next had to make the two conflicting stories she had into one narrative of the crime. To do this, she would move between the them, blending them as she went so that the jury, unable to take notes or ask questions, would lose track of which detail came from which story and hear it all as one narrative.
She started with the snitch description of Walter’s excitement to get downtown to talk to detectives because he thought they were finally going after John Fahy; gone was the horrible guilt Devlin and Worrell said had compelled Walter to the Roundhouse (and with it the entire basis for their version of events). Though even Worrell said Walter tried to leave the Roundhouse twice that afternoon, Rubino told the jury Walter was so excited to be interviewed he waited the two hours for the detectives without even trying to leave.7 And she now argued that Walter’s hysterical crying during the interrogation had been fake, a ploy to cover his shock at finding out his mother had turned him in and give him time to come up with a story.8
Judge Stout, who hadn’t changed her mind about allowing Walter’s statement even when Devlin admitted it wasn’t verbatim, now listened as Rubino changed Walter from a guilt-ridden wreck to a world-class manipulator able to deceive two of the best homicide detectives in the city.
Rubino told the jury, “The judge will tell you that you can believe all, part, or none of any witnesses’ testimony, and you can believe all, part, or none of the defendant’s statements. And when you put the two statements together . . . you will see that the two stories, the two versions he gave, are consistent in the most important details.”9
In other words, the jury should mix and match, accepting the pieces of whichever version made sense to them. It was indeed Greenberg’s pick-and-choose, buffet-style justice.
Rubino also tried to reinforce Wolchansky’s credibility. She asked how he would’ve known any details of the Henry Fahy case—the case that was supposedly Walter’s inspiration for his plan to murder Barbara Jean—if he hadn’t heard them from Walter.
“[Wolchansky] didn’t live in that neighborhood; there was nothing in any newspapers about any of this stuff,” she said of the Henry Fahy case.10 But the Henry Fahy case had gotten a lot of news coverage and had been through the courts for more than a decade; there were plenty of sources for information about it. Rubino inadvertently acknowledged this when she argued that Walter had “stud[ied] up on Henry Fahy’s case” at the library.11
Furthermore, Rubino’s claim about Walter allegedly researching the Henry Fahy case violated an important rule: lawyers are not supposed to mention things in closing arguments that they did not bring up and support with evidence during the trial. But Greenberg did not object.
Rubino went on to the murder weapon: How could “Mr. Banachowski” possibly have known there was a weight set in Walter’s basement, she asked, or that the child had been hit on the head with something that matched the pull-down bar?
In fact, all of that information could’ve (and did) come from Hall, from the newspaper coverage of Walter’s arrest or first trial, or from court documents about the case. Or from Walter himself describing the crime to explain why he was innocent.
Rubino told the jury again that Wolchansky hadn’t snitched to gain anything for himself, repeating that he hadn’t even told his own lawyer about it. Rubino had the right to argue that Wolchansky’s motives were pure, as long as she didn’t have evidence to the contrary. But it’s hard to imagine she actually believed Wolchansky never told his own lawyer about his informing against Walter.
As Rubino’s closing argument reached its climax, she layered additional innuendo on her portrait of Walter as the “manner of person” who would kill a child. Mark Greenberg rarely objected. Rubino said that Walter had moved out of his house in the fall of 1989 because he was worried the investigation was catching up with him, though it had come up in the first trial that Walter’s aunt actually owned the house and had evicted everyone.12 She told the jury that Walter’s mother thought he was guilty, a bit of actual hearsay from a dead woman that came from Hall’s story, which Rubino embellished with a description of Walter’s thought process when the detectives told him they had a witness.
“He said to himself, ‘Well, that must be my mother,’” Rubino told the jury, though the detectives’ bluff about a witness had been specific, that a neighbor had seen Walter let Barbara Jean in his house.
Each little distortion or overstatement of the evidence added to Rubino’s case. But her next distortion, also based on hearsay, wasn’t little.
“Well,” she said to the jury, referring to Walter, “if you never told your mother [that you were the killer], why would you tell [Wolchansky] that you did? And if your mother suspected you, why was that? Was it because you’re that kind of person? Did [Walter’s mother] know he was a pervert? Did she know he had never dated? Did she know he liked going to sex shops and porn shops and have [sic] child pornography around?”
Greenberg finally objected. Rubino hadn’t brought up any evidence to support any of these claims during the trial—because there wasn’t any—so it was against the rules for her to bring them up now.
Stout sustained Greenberg’s objection, but that didn’t stop Rubino.
“Did [Walter’s mother] know that he liked only young girls, like four years old?” she asked rhetorically.13
Greenberg and Stout said nothing.
Later, in chambers, Rubino admitted to Judge Stout that the child pornography claim had never been mentioned during the trial. It had come, she said, from Alice Green telling detectives that her boyfriend had told her Walter once said he knew where to get child pornography.14
Convictions have been overturned because prosecutors mention far less inflammatory things than child pornography in their closing arguments without having put on evidence of the claim during the trial.15 But Judge Stout, who had told Rubino before trial that she couldn’t use the issue of child pornography, let it go.
When it came to the murder itself, Rubino told the jury that whichever of Walter’s statements they believed, the crime was premeditated. If they believed the detectives, all that was needed for premeditation was enough time to pick a weapon, grab it, and use it. If they believed the snitch, the premeditation was clear.16
“Nobody saw Barbara Jean go with anybody” that day, Rubino said.17 This also wasn’t accurate: there was the neighbor down the block who’d seen her being led down the street at three o’clock on the afternoon of the murder.18
If Walter were innocent, Rubino asked, why didn’t he help John Fahy search for Barbara Jean or tell him she’d come by earlier in the day? This was the story from the Devlin/Worrell statement that actually put Walter in his living room, talking to John Fahy, possibly at the very moment the man with the TV box was walking down St. Vincent Street.
Rubino told the jury that Barbara Jean would’ve been comfortable going with Walter because she knew him, and reminded them of the pull-down bar in his basement that “could have” been the murder weapon.19 Then she brought up more hearsay from a deceased witness, telling the jury that Sarge Green had suspected Walter of having something to do with killing Barbara Jean. Green, who’d died before the first trial, had, at least initially, told his daughter he didn’t think Walter could be the murderer.20 And he never told anyone he suspected Walter—not on the day of the murder, not four months later when he was arrested for assaulting Walter, and not in 1992 when he was interviewed by Devlin and Worrell.
She told the jury again, “Walter Ogrod fit the description of the person carrying the box as well as anybody else did.”21
Then Rubino added more innuendo: Everyone on the block had helped search for Barbara Jean except Walter (actually, the Greens hadn’t, either). Was that because he was trying to stay out of the limelight so nobody would remember him? Why had he moved out of the house in ’89—wasn’t it because he didn’t want to be around while the investigation was going on?
“The defendant said he was beaten up by Chuck [Green] because Chuck suspected he did it,” she said. “There has been no denial of that. The defendant admitted to his mother that he killed Barbara Jean and threatened his own mother; there has been no denial of that.”22
Greenberg objected. Since if Walter had testified he would have denied the stories, both of which originated with Hall and came into the trial through Wolchansky, Greenberg argued that by mentioning them Rubino was essentially telling the jury that Walter was admitting guilt by not testifying.
Judge Stout sustained Greenberg’s objection but, again, Rubino didn’t stop.
“The defendant,” she said, “when confronted by inmates in the jail who say to him things like, ‘Baby in the box,’ doesn’t say to them, ‘I didn’t do it.’ What does he say? ‘Whack ’em and sack ’em.’ Well, isn’t that just what he did to Barbara Jean? He whacked her and threw her in a bag. He sacked her, that’s a great line, ‘whack ’em and sack ’em.’”
Greenberg didn’t object. Later, in chambers, he asked to go on the record and said he was making a “tactical decision” not to ask for a mistrial based on what Rubino had said in front of the jury because he knew Judge Stout would explain to the jury that defendants were not required to testify—as if the judge’s explanation could undo the damage Rubino’s barrage of damning hearsay had done. And Greenberg’s emphasis on the record that his decision was “tactical” would make it harder for Walter’s appeal lawyers, if it came to that.
It’s hard to imagine the difficulty of Greenberg’s task—one lawyer up against the power of the state wielded by a prosecutor determined to win at all costs. But it’s hard to understand why he didn’t object more to what Rubino was doing, and why he made such a point of enshrining his silence as a trial tactic.
Rubino reached her grand finale.
“When you go in that jury room,” she said, “close your eyes for a minute. Put yourself back inside that basement on July 12 of ’88, imagine just for a minute that you’re Barbara Jean, imagine the fright and the fear that that child must have felt. Imagine the horror she went through, and then when you look, think to yourself, what face appears to you? I submit to you that the face you will see is the face of Walter Ogrod, the man who sits right there, and no other.”23
The prosecution of Walter Ogrod had come full circle, from Devlin telling him to “imagine in your mind what happened next” to Rubino asking the jury to imagine being Barbara Jean and seeing Walter’s face as he attacked her.
“There has been no contradiction to any of the testimony dealing with Walter’s version of what happened,” Rubino said. “And when you put the two statements together, what he was telling Mr. Banachowski over a couple of months’ period and what he told the detectives over a two-hour period, you will see that the two stories, the two versions, are consistent in the most important details, in that he hit Barbara Jean, tried to force her to put his penis in her mouth, tried to molest her, and that she screamed and that he then hit her with the bar from his weight set; that is consistent throughout.
“Not for the family and friends of Barbara Jean Horn,” Rubino said, “not for retribution, but for justice, we ask you, ladies and gentlemen, to find the defendant, Walter Ogrod, guilty of murder in the first degree, rape, and involuntary deviate sexual intercourse.
“Let Barbara Jean finally rest in peace, knowing that her killer has been convicted.”
After lunch Judge Stout gave the jury their charge, explaining the laws involved and the standard of proof necessary for a conviction. Thomas James noticed a woman and two men sitting in the gallery behind Walter; with a shock, he realized one of them looked like a thinner, bespectacled version of Walter and was probably his brother. (This despite the fact that the brothers were both adopted.) The man noticed James staring and whispered to the woman, whom James later saw looking at him.
When the jury began deliberating, David Miller, the alternate juror, wasn’t needed, so he was released from jury duty and went back to his office a block from the courtroom. He wasn’t sure how he would’ve voted; he had some doubts about Walter’s guilt, all hinging on the statement to the detectives, and wanted to listen to more of the testimony about it read back. Maybe it was fanciful to think he could’ve picked something up in the statement that proved Walter hadn’t given it, but he would’ve tried. He called a court officer and asked for a ten-minute heads-up before the verdict was read so he could come back to hear it.24
In the jury room, a preliminary vote came out ten to two for conviction. Thomas James voted guilty on the sexual assault charge, not guilty on rape, and guilty on first-degree murder.
The foreman suggested they all listen to the reasoning of the “not guilty” voters, which revolved around problems believing Walter’s confession to the detectives. The “guilty” voters went through the doubters’ concerns about the confession step-by-step, and when they voted again they had unanimous “guilty” verdicts on the sexual assault and on first-degree murder. It had taken less than an hour and a half. They couldn’t settle on the rape charge because they weren’t clear on the definition of rape.
Thomas James argued that other than the jailhouse snitch, there was no proof Walter had attempted to rape the little girl—the medical examiner had reported no damage or tearing despite the snitch’s story that Walter tried to enter her but she was too small. The jury sent a note to Judge Stout, asking for clarification about whether or not the intent to rape was enough to convict a defendant of rape. She responded that it was late and she would answer the next morning. Court was adjourned for the day.
It took the jurors a while that evening to come down from the intensity of the experience of deciding a man’s fate; one member seemed in shock, ashen-faced and quiet. They had a good dinner, drank some beer, and back at the airport Hilton some of them started packing. Two jurors did a guard’s nails, and they all went to bed at around 10:00 PM. Thomas James didn’t sleep well; he was too keyed up for what would happen the next day.
At 10:30 the next morning Judge Stout clarified for the jury what constituted rape under Pennsylvania law. They went back to the jury room and acquitted Walter of that charge in five minutes, finalized their verdicts, and sent a message to Judge Stout that they were finished. A guard rehearsed them for what would happen in court, and they returned to the courtroom at 10:50.
When the jury walked in, John Fahy knew from the way they looked right at him and Sharon that they’d found Walter guilty. He thought one of the jurors even nodded at him slightly; he wasn’t sure. He squeezed Sharon’s hand.
“They got him,” he whispered. “I know they got him.”25
“Ladies and gentlemen of the jury, have you agreed upon a verdict?” the court crier asked.
Walter stood and faced the jury. He thought the verdict could go either way.
Thomas James had never been more conscious of his role in what was happening than at that moment. He looked mostly at Mark Greenberg.
On the first count, rape, how did the jury find?
“Not guilty,” the foreman said.
A gasp of dismay went up in the courtroom. Walter looked shocked and leaned on the table for support; Thomas James thought he could see hope growing in him.
They’re going to find me not guilty on everything, Walter thought.
On the next count, attempted involuntary deviate sexual intercourse?
“Guilty.”
The courtroom was silent. Thomas James saw Walter withdraw, standing up straight, blanking his face out.
On the last charge, murder?
“Guilty of murder in the first degree.”26
What the hell? Walter thought. He felt lower than he ever had in his life. Were they listening? he wondered about the jury.27
John Fahy slumped with relief.28 A sob burst out of someone in his family and someone else said “Yes!”
“It’s over,” John thought. “It’s finally over. They finally got him.”
For Sharon, it was like somebody took bricks right off her back. She tried not to cry as her family wept around her.
Greenberg had the jury polled; each member stood and agreed with the verdict. Judge Stout thanked them for their service and released them until the penalty hearing the next day, when they would decide whether Walter was sentenced to death or life without parole.
No one on the jury made a sound until they got back to the jury room. Thomas James felt it was hard to hold his composure but couldn’t break down the way he needed to. One juror wept quietly; another had tears running down her cheeks. They all talked about it, trying to put in perspective what they’d done. James told them that they were just instruments in the process, instruments of justice. They all seemed to find solace in that.
Outside court, John Fahy addressed reporters.
“He’s an animal,” he said. “He’s got no remorse for what he’s done at all. If he had any remorse, he wouldn’t have put us through two trials. The guy is evil, and I’m just glad we don’t have to deal with him anymore. I’m relieved that this nightmare is finally over. I don’t care what happens to Walter Ogrod from here on out, as long as he is never able to harm another child and do this to another family ever again.”
Sharon also said she didn’t care how the penalty phase ended.
“Nothing will bring Barbara Jean back,” she said. But the conviction was a big relief. “Now we can remember Barbara Jean with all the good times we had, and not have to think about this part of it. I know she is looking down on us, and she’s with us all the time.”
A reporter asked Mark Greenberg for Walter’s reaction.
“Mr. Ogrod is obviously disappointed,” he said, trying to sound level. “It’s obvious that no matter what the jury says [about his punishment], he feels his life is over, regardless.”
There was, he said, something fundamentally unfair about a man coming within a vote of being acquitted only to be tried again, three years later, with a change of jury and a change of prosecutor, and possibly get the death penalty. It was a perfect example why the death penalty was an arbitrary sentence.
Rubino wasn’t having it.
“If one jury is stupid, it doesn’t mean the next one has to be,” she told a reporter. “This was an intentional killing during attempted deviate sexual intercourse, and the type of killing it was absolutely calls for the death penalty.”29
She told another reporter that the snitch story buttressed the statement to Devlin and Worrell “because it was so detailed, even more detailed than the statement to police. It was a different jury, and the evidence was put in a different way.”30
For once, Judi Rubino could be accused of understatement.
The jurors went back to the hotel. Tropical Storm Josephine rolled in, filling the sky with heavy rain. Thomas James was too upset to eat. He felt he couldn’t be alone, so he went to the TV room and watched Mission Impossible with other jurors. When the movie ended, the other jurors left. James sat for a moment. A promo for the evening news came on. Their verdict in the Ogrod case was the lead story. He watched in silence.
By dinnertime the mood had changed. In need of release, the jurors laughed and joked, bonding over their shared experience. One juror said a guard had told her they were the closest and nicest jury she’d ever had.
David Miller hadn’t gotten a call from the court officer, so he didn’t hear the verdict in person. He was annoyed, felt he was owed the courtesy of a phone call. He wasn’t all that surprised Walter was found guilty, because of the alleged confession to detectives, but the lack of evidence bothered him: no fingerprints, no strong eyewitness testimony, and the prosecutor wasn’t sure what the murder weapon was; even as she’d waved around the pull-down bar she’d told the jury the murder weapon was “something like this.” Miller wasn’t bothered that Walter didn’t testify—the case against him wasn’t that strong, and if none of it were true what could he have said to disprove it?
One thing did surprise Miller: how quickly the jury had decided. An hour and a half just didn’t seem long enough to consider the case properly.
That night a reporter for the Philadelphia Daily News spoke to Charles Graham, the foreman from Walter’s first trial.
“I really don’t think he did it,” Graham said. “If I thought for one second that he did it, I would have voted guilty. I feel terrible for the family. Somebody killed that little girl. But I don’t think it was him.”
Walter, Graham said, didn’t match the description given by eyewitnesses and was a big, stupid guy. It had been easy for detectives to pressure him into confessing.
“If you would listen to him talk,” Graham said, “his words don’t sound like that of the confession.”
When asked about the second jury’s interpretation of the facts, Graham said, “It’s all in the presentation. That’s the jury system. . . . It’s based on people. People aren’t perfect. People are flawed. It’s a shame.”31