Chapter 9: Legal Issues

During this time, a reporter for the Philadelphia Inquirer compared what Marino had done to a similar deal made just 11 days later with a killer in Kingston, New York. In exchange for a lighter sentence, Lawrence Whitehurst had told DA Michael Kavanagh where he could find a kidnapped little girl, Rickel Knox. Assuming that she could still be alive, Kavanagh accepted the terms. However, the child was found dead, and she’d been killed shortly after she was abducted. Whitehurst had tricked the DA. Kavanagh instantly rescinded. When Castor was asked if something similar could occur in the Fairley case, he responded that the situations were apples and oranges. Whereas Marino had made a deal with an attorney, Kavanagh had made a deal with a killer. “We were negotiating with the lawyer, not the bad guy,” he said. “The lawyer is the one who told us where we could find the body. We had bargained in good faith. We got something we really needed and he got something for his client. And we don’t lie when we deal with a client’s lawyer.”

Now, Castor realized, they had to show the public that they’d made a good deal; They had to find evidence on Lisa Manderach’s body. During the autopsy, the pathologist had carefully cleaned her fingernails, most of which were broken. Nothing indicated that she’d been raped. Two ribs had been broken in the struggle, while others were cracked, and she’d been strangled to death. Hers and Devon’s bodies were released to the families to be buried together in a single bronze coffin.

On the day of the funeral, September 16, as evidence technicians sorted through the contents of the bag from the store’s vacuum cleaner, they found a broken fingernail. Castor sent the coroner and a criminalist to the funeral home. “Before they took Lisa out,” he said, “I had them remove her fingernail so we could see if it matched the broken nail.” They managed it just in time.

Then another piece to the puzzle fortuitously came their way.

“Once it was put into the paper with the description of his [Fairley’s] car,” Saville recalled, “a woman called us who had worked for a company called Margolis Wine & Spirits. In the building where the health club was, there was a large warehouse. In the front was a nationwide mover and they had all their trucks there. In the back was a section for Margolis Wine & Spirits. So, this woman came in on a Sunday afternoon to get paperwork. When she pulled in, she looked toward the far corner of the parking lot, where there was a sinkhole. And she saw this car with its trunk open and lit up. She made eye contact with Fairley—he was about 40 yards away. She just thought he was dumping trash. I think he panicked, because he closed up the trunk and drove away. We surmised that he had intended to dump Lisa there. He used to go to that health club and he knew the area. But he goes to the next building over and that’s where he dumps her.”

The autopsy was the easy part. Now they had to get the biological evidence analyzed, and they needed analysts with solid credentials. This was the first murder case in Montgomery County to use DNA evidence, and during the early 1990s, the legal road for this evidence had been rocky.

Ever since the Frye test in 1923 to determine the admissibility of scientific evidence, any new scientific technology introduced as testimony had to pass the test of acceptability within a relevant scientific community. Thus, the courts avoided admitting evidence based on whim or methods that were devoid of objectivity and rigorous controls. DNA analysis had to prove to be scientifically sound in method, theory, and interpretation, and had to be positively reviewed by peers.

First used in criminal cases in America in 1987, DNA analysis had gained increasing acceptance, but then challenges were aimed at the way samples were interpreted and handled. In 1992, the National Research Council Committee of the National Academy of Sciences had affirmed the use of DNA analysis, but recommended tight regulations over collection and processing. Because many different environmental factors can occur between the collection of a sample and its final use, the courts were forced to review DNA testimony case by case.

By the 1990s, forensic science had become a high-tech arena, with more exacting ways to analyze evidence in many areas. With fiber analysis, for example, examiners could use a high-powered microscope to measure the precise diameter and color of a fiber from a crime scene, shine a beam of infrared light to get the absorption spectrum, use polarized light to find refractive indices, or turn to various forms of chromatography to separate dye compounds into specific chemicals. Then came a highly publicized trial in 1995 that put the analysis of DNA back in the spotlight.

Late in the evening of June 12, 1994, an attacker murdered Nicole Brown Simpson and Ronald Goldman. The chief suspect—and soon the only one—was Nicole’s former spouse, the celebrity football player-turned-actor, O. J. Simpson. Prosecutors Marcia Clark and Christopher Darden built their case from photos of a battered Nicole and her diary descriptions of Simpson’s obsessive stalking. He pleaded not guilty and hired a team of celebrity lawyers. They, in turn, hired top forensic experts. Henry C. Lee was among them. He was considered one of the most knowledgeable international experts in contemporary crime scene investigation. As Director of the Connecticut State Police Forensic Science Laboratory in Meriden, Connecticut, he had visited thousands of crime scenes. He also consulted on cases in other jurisdictions.

The battle over the reliability of the DNA evidence in the Simpson case was dubbed the “DNA Wars,” and as a safeguard, three different labs performed the analysis. All three determined that the DNA in several drops of blood at the crime scene matched Simpson’s. It was a 1 in 170 million match using a method called RFLP, and a 1 in 240 million match using the polymerase chain reaction, or PCR, test. Initially, PCR testing had been considered less definitive, but it was faster and more practical, and by 1995, the testing had become more refined.

Dr. Henry Lee

Lee testified for the defense (just two weeks before Lisa Manderach was killed) that there appeared to be something wrong with the way the blood had been stored and packaged. The prosecution expert stated that the degradation would not hinder accurate analysis. The evidence against Simpson seemed damning, but the defense team introduced racial bias and corruption in the LAPD. After deliberating for less than four hours on October 2, 1995, the jury freed Simpson with a not-guilty verdict. Some trial analysts believed that Lee’s testimony had been instrumental. Thus, Castor was aware that consulting him for the Manderach case could be one more political hot potato.

Nevertheless, Lee’s lab was a leader in this field, especially with PCR analysis, and Castor wanted to take no chances. He’d worked with Lee on a prior death penalty case, so they already had a professional relationship. The Simpson verdict was not yet assured when the decision was made to seek Lee’s assistance.