THE PROSECUTION’S FIRST WITNESS was Joan Zablocky, in front of whose house the box had been left, who described her call to 911. She was followed by Michael Massi, the car salesman witness, who identified the TV box and said the man carried it “like it was pretty heavy.”1 Rubino led Massi carefully through an explanation of why he hadn’t gotten a good look at the man and why he’d been wrong on the day of the murder when he’d described the man to detectives as between five feet six and five feet eight: the man had been hunched over, dragging the box, so, Massi now said, he hadn’t had any way to gauge how tall he was.
“Are you able to tell us whether or not you see, in this courtroom today, the person who was carrying the TV box on July 12th of 1988?” Rubino asked.
“No,” Massi said.
On cross-examination, Greenberg produced the statement Massi had given police at 7:50 PM on the night of the murder, a little more than two hours after the event, when Massi said that after putting the box down on the sidewalk across St. Vincent Street, the man had stood up to catch his breath for about twenty seconds, giving Massi a sense of how tall he was: five feet six to five feet eight.
“Mr. Massi, were you shown this sketch on July the 13th or 14th, 1988, two days after your observations?” Greenberg asked, showing Massi the police sketch.
“Yes, I was,” Massi said.
“Do you remember telling those two detectives . . . that the composite was a very good likeness to the male, and that the hairstyle depicted in the composite was almost exact?” Greenberg asked.
“No, I do not,” Massi said.
Greenberg had made his points, but Rubino had gotten what she needed—a witness muddling the clear statements he’d given to police around the time of the killing.
At a meeting in Judge Stout’s chambers before the second day of the trial, Rubino and Greenberg argued about whether Rubino could show a picture of Barbara Jean, dead, to the jury. Judge Stout worried that a gruesome picture might prejudice the jury, and since the fact that Barbara Jean was the victim in this case had been established in other ways, told Rubino to use a photo of Barbara Jean alive.
“I don’t see anything wrong with that,” Stout said. “That is certainly not gruesome. . . . It’s a picture of the child.”2
“Right, with a [teddy] bear,” Greenberg said.
“They get to see him march in here every day with his suit,” Rubino said, referring to Walter.
“Yeah, Walter with the black eye, with the lousy makeup job,” Greenberg said.
“You should blame him for being smart with the prisoners,” Rubino said.
“Now, I’m going to tell you all in front, don’t start the fussing,” Stout said.
Rubino opened the second day of the trial with eyewitness David Schectman, guiding him through his story: leaning against the station wagon, waiting for his kids, a man coming toward him on St. Vincent Street carrying and dragging a TV box by a garbage bag inside.
Schectman knew to be as vague as possible and, by this point, probably didn’t have to pretend: he’d been trying to help detectives for so long, identifying people whenever they asked him to, reconsidering height, weight, and hair color so many times, he may easily have been confused. But on some things Schectman wasn’t confused at all. The TV box was heavy and the man carrying it had been panting and sweating and at one point had dragged it by the garbage bag inside—a key point, since the snitch was going to say Walter never actually carried Barbara Jean in the box. And Schectman could remember times: he first saw the man with the box at 5:12, last saw him at 5:23 when the camp van arrived with his kids, and last saw the box at 5:26 as he and his wife drove west on St. Vincent, the same direction the man with the box had been walking.
Rubino had him describe how terrible he’d felt when he’d found out there was a body in the box: if he’d only stopped to look in the box, he could’ve helped catch the murderer.
Schectman testified that the man had been “somewhere about 5ʹ8ʺ, 5ʹ10ʺ, maybe 165 pounds and . . . sandy-colored hair” and lowered his estimation of the man’s age to between twenty and twenty-five. He tried to explain that after his wife died he’d gone to therapy and had learned in therapy that he wasn’t good at recognizing faces.3
Greenberg objected; he didn’t want the jury listening to some supposedly therapeutic reason why Schectman’s detailed statement from the night of the murder was inaccurate.
“Do you recall what hairstyle he had?” Rubino pressed on.
“Shortish,” Schectman said. He repeated his story from the first trial, how he’d really only seen the man for a few seconds, not eleven minutes as he’d told detectives that night. And he now said that he couldn’t be sure of the man’s height because the man had been bending over much of the time or had been elevated on the steps to the backyard.
“Do you see the person in court today who was carrying the box?” Rubino asked.
“I couldn’t really tell you,” Schectman said. “I did not get a good enough look at the person to tell you whether that person is here or not here.”
This was a win for Rubino: she would make “couldn’t be sure” into “could be Walter.”
“As a result of the counseling you’ve gone through,” Rubino asked, “have you learned anything about yourself that explains to you why you were not able to get a better impression?”
Greenberg objected. Stout upheld the objection. Rubino wasn’t deterred.
“Are you good at remembering faces?” she asked Schectman.
“Objection,” said Greenberg.
“Overruled,” said Stout, allowing Rubino to get her dubious point across to the jury.
“No, I’m not particularly good at remembering faces,” Schectman said. He added the psychological cover for his drastic change of story: “For 31 years [as a fireman] I dealt with buildings and objects and I was very good at sizing up on fires [sic] and the situation developing on a fire ground, I discovered that I was more object- and building-oriented than people-oriented, you know. . . . I generally need to meet someone and shake their hands and repeat their names three or four or five times.”
On cross-examination Greenberg read Schectman his statement to police on the night of the murder.
“He was a white male, about 25 to 30 years of age, dark blond hair or dirty blond hair, it was short. . . . He was tanned slightly. He was sweating heavily. He was 5ʹ8ʺ to 5ʹ9ʺ, 160 to 165 pounds. He was wearing a white crew neck T-shirt with some printing on the front . . . but no pocket.”
“Now,” Greenberg continued, “is that the description that you gave police, Mr. Schectman, on July the 12th, 1988, at approximately 8:20 PM?”
“Yes.”
“And the question that was posed to you by the officer who took this statement was: ‘Would you be able to identify him again?’ Do you see that question?” he asked, referring to the copy Schectman was using to follow along.
“Yes, I do.”
“And what did you tell the officer?”
“According to this, [I] said, ‘Yes, I would.’”
Did he remember telling a detective the composite sketch was a “good likeness” of the man carrying the box? Schectman didn’t. Greenberg had him describe the time detectives took him to the gym to look at Ross Felice and read from Schectman’s statement that day:
“I, at once, recognized this male as the male I had seen carrying the TV box west on St. Vincent Street on July 12, 1988, the box Barbara Jean Horn’s body was found in. . . . This male stood up, turned his head away from me, and walked away from me out of the gym.”
“Are you positive it is the same man?” one of the detectives had asked.
“Very positive,” Schectman had answered. “No doubt in my mind whatsoever.”
Greenberg took Schectman through his July 12 story again, got him to admit that he did remember plenty of specifics—when he had looked at his watch, his interactions with the man with the box. Once again, Greenberg never asked Schectman what the man’s voice had sounded like, though Schectman had told police the man’s voice was normal, which Walter’s was not.
Rubino next called Christian Kochan, the newspaper boy, leading him carefully through his testimony about riding down the St. Vincent Street sidewalk on his bike and squeezing past the man with the box. Because he was only fourteen at the time, Kochan now said, his estimates about the man’s height and age had been wrong.
For her last question, Rubino asked if he’d ever identified anyone as the man he’d seen carrying the box, and Kochan said “no.”
On cross-examination, Mark Greenberg held up the photograph of Ross Felice, whom Kochan had identified as the man carrying the box five weeks after the murder.
“In fact, [this] is a photograph that you identified on August the 18th, 1988, which you signed your signature to, is that right?” Greenberg asked.
“Objection to the term ‘identified,’” Rubino said.
It’s not clear by what technicality Rubino argued that that wasn’t an identification—witnesses only sign photos to establish that they’ve identified the person. But Judge Stout upheld the objection.
“It’s a picture that you selected that you put your name to on August the 18th, 1988?” Greenberg asked.
Kochan admitted he’d signed the back of the photo to indicate it looked like the man carrying the TV box.
During her follow-up questions Rubino got Kochan to say that he’d only identified the picture that looked most like the composite sketch. Even if true, that was very different from the claim that he’d never identified anyone.
By the time Kochan left the stand, Rubino, with helpful rulings from Judge Stout, had succeeded in muddling the eyewitness testimony. And the pattern for the trial was set: Rubino would say whatever she thought could help her case, overstating some things, denying others, the only limitation being her old friend Judge Stout’s willingness to uphold Greenberg’s objections against her.
After the eyewitnesses, Rubino put on the medical experts. As at the first trial, the jury wouldn’t hear from Dr. P. J. Hoyer, who’d actually performed the autopsy, but from one of his assistants, Dr. Haresh Mirchandani, who hadn’t been present.
John and Sharon left the courtroom, and Mirchandani described the autopsy results: the wounds, that there was no evidence of sexual assault, that Barbara Jean had probably been alive for several of the wounds she suffered.
On the key question of the murder weapon, Mirchandani said, in response to a question from Greenberg, “I can’t say if this [pull-down bar] was the object, no way.”4
Greenberg hadn’t hired an independent forensics expert to review the autopsy photos. It’s not surprising, given his lack of resources, but an expert could have helped a lot. Dr. Hoyer had written in his notes the day after the murder that the weapon was probably a “2 × 2 or 2 × 4”—in other words, flat, unlike the pull-down bar from the weight set5—and years later, when Walter’s lawyers did have the resources to hire an expert to examine the autopsy report, Dr. Marcella Fierro, the retired chief medical examiner for the Commonwealth of Virginia and onetime head of the National Association of Medical Examiners, would confirm this. She discredited the idea of the pull-down bar as murder weapon once and for all, finding that the wounds on Barbara Jean’s back showed a distinctive pattern of two central parallel lines and two oblique parallel lines, meaning the murder was caused by a “blunt, flat object with a distinctive pattern on its surface, such as a golf club.” The lacerations on Barbara Jean’s head were also characteristic of a flat object, certainly not a pipe or anything round. She found to a reasonable degree of medical certainty that the pull-down bar (which she also reviewed) was not the murder weapon. She consulted with Dr. Hoyer, who had performed the original autopsy, and he agreed that the pull-down bar could not be the murder weapon.6
The jury never heard any of this.
Rubino’s next witness, Dr. Lucy Rorke, described the injuries to Barbara Jean’s brain. Dr. Rorke also said there was no evidence in the brain of suffocation, potentially another problem with the snitch’s story, since Walter was supposed to have said he covered her nose and mouth with his hand as he killed her. Rubino tried to mitigate this problem by getting Rorke’s opinion about whether Barbara Jean’s brain would show signs of suffocation if the suffocation hadn’t been prolonged.
The suffocation issue may be the best example of Stout’s deference to Rubino.
When Greenberg objected to Rubino’s question about suffocation Judge Stout upheld him, but that didn’t stop Rubino from asking again anyway.
“Assume, if you would, hypothetically, that this child was being held by someone,” Rubino said, “that she began to scream when someone was sexually assaulting her, and that her mouth was covered.”
“Objection,” Greenberg said: the trial was supposed to determine whether those things happened, not the prosecutor.
“I don’t think those facts have been brought out,” Judge Stout said, sustaining Greenberg’s objection.
“Well, they will be,” said Rubino. “So I think I can ask a hypothetical.”
“All right, then I’ll allow it.”
Stout had just told the jury to assume the prosecution would present facts to back up their version of the murder because Rubino said they would.
“Assume hypothetically, Doctor,” Rubino said to Dr. Rorke, “that the child was being held and that a hand was placed over her mouth to stop her from screaming. What changes, if any, would you expect to see [in her brain tissue] if it were a short period of time, not a prolonged suffocation?”
“None.”7
Dr. Rorke agreed with the medical examiner that Barbara Jean’s injuries were caused by a blunt object and said the pull-down bar could have caused the injuries. On cross-examination, Greenberg got Rorke to agree that any kind of blunt object would be consistent with the injuries—a broom handle, mop handle, tire iron.
John Fahy took the stand to tell the story of Barbara Jean’s last day. He broke down weeping twice during his testimony. On the important question of whether he’d knocked on the door of 7244 during his search for Barbara Jean, he said he couldn’t remember for sure but thought he’d yelled across the street to Linda Green between 5:00 and 5:20 and she’d come to her door to answer him. Whether he crossed the street or not, if this conversation occurred then it occurred at a time when several witnesses, including the Greens, all put Walter in the living room—at the exact time the man with the box was dragging it down St. Vincent Street.8
At the airport Hilton that night, Thomas James, juror number ten, started a journal, which I later discussed with him. He remembered the witness David Schectman as having been unreliable and antagonistic to the defense.9
Schectman’s determination to help the prosecution had come through, then, but the “unreliable” part was all Rubino needed.
David Miller, the alternate juror, had been confused by the witness testimony too: people saw a guy carrying a box, he was tall, he was short, he was medium, none of it was definitive, he felt none of it told him much about the case.
Rubino had succeeded in her first task—undermining the witnesses.
James also remembered that the Fahys had left the courtroom for the forensic testimony and that John broke down twice on the stand and clearly felt guilty about what had happened to his daughter. He didn’t remember or note in his journal that both forensic experts had said they couldn’t be sure the pull-down bar was the murder weapon.10
The next morning Sharon Fahy took the stand and told her story of the day of the murder. Greenberg asked a few questions, clarifying that she’d never met Walter and didn’t know who he was until the November night four months after the murder when she’d watched Sarge Green beat him down Rutland Street and asked John who he was. Greenberg needed this so he could later put the lie to the snitch story that Walter had fallen in love with her because she was nice to him.
After Sharon, Rubino came back to the murder weapon. Whereas with the eyewitnesses she’d needed to create a muddle out of clear testimony, now she needed to create clarity out of a muddle. Fortunately for her, Stout allowed, as she had at the first trial, a salesman from a sporting goods store to testify about which pull-down bar would have been on the weight set Walter had. She then let Rubino introduce one of those pull-down bars into evidence and wave it around, as Joseph Casey had at the first trial, a vivid image for the jury.
In order for Rubino to push the idea of the pull-down bar as the murder weapon she also needed to convince the jury that neither Devlin nor Worrell knew of the weight set and pull-down bar in Walter’s basement before talking to him. If it came out that the detectives had heard of the weight set first, the last thing “only the killer would know” was gone from Walter’s statement and Rubino’s case might collapse.
Rubino put on Detective Edward Rocks, Devlin and Worrell’s colleague on the SIU, to claim, as he had at the first trial, that he’d never mentioned the weight set or the pull-down bar to Devlin or Worrell before Walter’s interrogation.
On cross-examination, Greenberg asked Rocks about his work on the Maureen Dunne murder and about Maureen’s father being a Philadelphia detective. He wanted the jury to understand that the detectives had known each other and that the murder of a detective’s daughter was a very big deal—that there was no way Devlin and Worrell didn’t go over the Dunne murder when they were looking into the trouble house at 7244 Rutland as part of the Barbara Jean Horn investigation.
Rocks stuck to his story, and Greenberg didn’t debate his claim that he’d never shown the Dunne murder file to his colleagues. Stout allowed Rubino to show the jury a photo of Maureen Dunne’s murder scene, the weight set near her bed, her body covered by a piece of paper. Rocks said clearly that Walter had not been involved in her murder, but showing the jury a picture of a murder scene in his house with his alleged murder weapon in it helped cast an aura of violence and murder around him for the jury.
And this time the jury never even heard the argument about whether Devlin and Worrell had asked Walter’s landlord about the weight set four days before Walter’s interview.11
Rubino put on a fingerprint technician to explain that the fact that the one fingerprint on the garbage bag didn’t match Walter’s didn’t mean much. The technician explained how the fingerprinting process works and that the fingerprint on the bag could have come from anybody who’d handled the garbage bag at any time. He also told the jury that no usable fingerprints were lifted from the cardboard box.12
Rubino’s next witness was Marty Devlin, and to aid his testimony her office had created a timeline graphic that used the word “confession” to describe Walter’s statement to police.
Greenberg objected to this, and the lawyers met in Judge Stout’s chambers to argue the topic. Greenberg argued that the entire trial was about whether or not Walter had confessed; it was for the jury to decide if that had happened or not, but if Stout let the DA label the interrogation a “confession” on a poster she would be essentially settling that question.
Stout deferred to Rubino, ruling the DA’s office could use the word.
Greenberg couldn’t believe it.
“It is for the jury to decide [if it was a confession],” he said. “That’s why [putting that word on the sign] is prejudicial.”
“It isn’t prejudicial,” Rubino said.
“I am a lawyer, not a doctor,” Judge Stout said, “and I don’t want you having a heart attack back here. I have ruled. If I am wrong, then the appellate court will correct me.”13
“Judge . . . this is plain error,” Greenberg said, meaning a mistake that could force a higher court to throw out the trial. “I don’t understand why you will allow this document.”
“She doesn’t think it is error,” Rubino said.
“You show me a case which says so, if you think it is error,” Stout said. “Do you have a case?”
“I only saw [the DA’s graphic] five minutes ago,” Greenberg said. “She never even told me about it. It is a classic sandbag.”14
Greenberg suggested a compromise: put quotation marks around the word confession on the graphic.
Judge Stout liked the idea. “There wouldn’t be anything wrong with that, really,” she said.
“Why do I have to?” Rubino asked. She said the graphic had already been typewritten.
“I know. . . . That is his suggestion,” Stout said weakly.
“I don’t accept it as a suggestion,” Rubino said.
“All right, let it go just as it is,” Stout agreed.
Greenberg asked for an eight-by-eleven photo of the timeline to be taken for use on appeal, but Rubino wouldn’t allow it and Stout didn’t push her.
“You are building in error,” Greenberg said.
“Once we get a conviction, I will worry about error,” Rubino answered.15
That night, Thomas James remembered, he was impressed by Sharon. He’d worried that Greenberg would badger her and was relieved that Greenberg knew better. Though Greenberg had tried to make the point that the house was too small for Walter to commit the murder there with other people home, all that had come across to James was Greenberg asking a lot of weird questions on dimensions and distances and trying hard to throw Ross Felice’s name to the jury as much as he could. The fact that there’d been a murder in that same basement two years before had made an impression on James, as had the pictures of the Dunne murder scene showing the gym set and pull-down bar.