Tag Archive for Ohio

Mistaken Identity

The use of DNA in criminal cases has become as ubiquitous as fingerprints and photo lineups, sometimes to the detriment of the prosecution.
 
The “CSI Effect,” named for the terribly popular television show that plays fast and loose with the work that real criminalists do, is a recognized phenomenon that has had an impact on some trials where juries have disregarded other evidence and complained about the lack of scientific forensic evidence.
 
There was a time when the average juror knew next to nothing about DNA evidence and courts were forced to decide whether or not to allow this advanced crime-fighting tool that combines statistical methodology and complex organic chemistry.
 
Scientific evidence is not simply admitted willy-nilly in criminal cases. Until 1993, when the United States Supreme Court decided the case of Daubert v. Merrill Dow, courts used a method called the “Frye Test.” Named for the case Frye v. United States (1923), the Frye Test required a “general acceptance” in the scientific community of any theory before it could be used in court. Daubert changed that when the U.S. Supreme Court put an end to the dueling experts by giving judges more authority to decide whether or not a scientific claim had validity. Simply put, Daubert requires a judge to look at whether a scientific test has been subjected to a rigorous review by the scientific community.
 
But enough legal mumbo-jumbo. Let’s get to the facts of the case that led the Sixth Circuit Court of Appeals to apply the Daubert test to DNA evidence for the first time. Oddly, the case isn’t a sexual homicide — perhaps the most common type of case involving a defendant’s DNA. Instead it involves a couple of rival motorcycle gangs and a sad case of mistaken identity.
 
There has never been much love lost between the Hell’s Angels Motorcycle Club and the Outlaws Motorcycle Club, two of the four largest motorcycle clubs (the others are the Pagans and the Bandidos) in the world. For much of their existence the Hell’s Angels (along with their allies, the Warlocks) and the Outlaws have been engaged in a guerrilla war with various attacks over territories occurring sporadically across the United States over the years.
 
The two clubs play for keeps. These are not people who simply ride big Harleys and wear leather. The Hell’s Angels, formed in the 1940s in California, and the Outlaws, a Chicago-based association, are organized, generally criminal groups that engage in drug trafficking, murder, and other types of mayhem. They consider themselves to be the 1 percent of the population that cannot or will not live by society’s rules, and because of this much of the violence they are involved in is internecine warfare among various clubs.
 
Occasionally, as the family and friends of David Hartlaub, a Sandusky, Ohio, record store employee, found out, their violence spills over into the other 99 percent’s world.
 
The mistake happened in 1988, but the event that precipitated Hartlaub’s tragic death occurred six months earlier when the Outlaws allegedly shot and wounded Hell’s Angel Cleveland Chapter President Kenneth Yates and stole his patched jacket, which, short of murder, is one of the most serious insults one gang can inflict on the other.
 
That incident occurred outside Joliet, Ill., Reportedly, Yates and another Hell’s Angel had planned an attack against the Outlaws using automatic weapons and other heavy artillery. The attack either never came off or was thwarted and blew back in Yates’s face. As a result, the Outlaws counterattacked and Yates was shot in the foot.
 
Bikers do not simply show up at the clubhouse and ask to join. Like fraternities, there is a certain amount of pledging involved. Fraternities, generally, do not require pledges to plant bombs or kill people to get a patch. The Hell’s Angels and the Outlaws require their probates and associates to prove their worth before they attain full membership, and that’s why Steven Yee, John Ray Bonds and Mark Verdi were in Sandusky on February 27, 1988.
 
Yee, an Ohio native, was a full-fledged member of the Hell’s Angels, and Bonds and Verdi were associates who were working their way through the probationary period. They had come to Sandusky to avenge the attack on Yates and had targeted a yellow van that they believed belonged to a member of the Outlaws MC. Bonds had been present at Yates’s shooting.
 
In fact, the van belonged to Hartlaub, who had absolutely no connection with the Outlaws or any other motorcycle club.
 
Hartlaub closed down the record store where he was employed in Sandusky in February 1988 and headed to a nearby bank to place the day’s deposit into a night drop box. Little did he know that the Hell’s Angels hit squad had been watching his van and followed him to the bank.
 
No one actually saw the hit, but a co-worker who followed Hartlaub to the bank came upon the scene moments later and saw Hartlaub lying on the ground. As he tried to exit the vehicle to investigate, a man described as having a “Hispanic appearance” came up to his car, pointed a handgun at his head and told him to stay put.
 
A second late-arriving witness was able to get a description of the shooter’s car — which she described to the police as a cream or tan color Buick, four door, dirty but in good condition.
 
The Hispanic man ran off in the direction of a nearby hotel. At the same time, someone in Hartlaub’s van roared away in the same direction.
 
Police later found the van abandoned behind the hotel with its engine running and lights on. The gun used in the shooting, a MAC-11 9-mm semi-automatic pistol fitted with a homemade silencer and a multi-round clip with a plastic garbage bag taped on to catch the spent cartridges, lay on the floor between the seats. The gun’s serial number had been obliterated; however, the FBI was later able to “raise” the serial number. The gun turned out to have been owned by a former roommate of Yee, who had owned two such guns and testified that they had been stolen from his car when it was parked outside their apartment.
 
Police found that the gun and the van’s carpet were splattered with blood. However, tests eliminated Hartlaub as the source of the blood. That’s where the DNA testing would eventually come into play because an analysis using DNA tests linked the blood to Bonds.
 
When the Buick containing Yee, Bonds, and Verdi was several blocks away from the crime scene, Verdi, who was driving, made an illegal turn and was stopped by Sandusky police. The probate, who did not have his driver’s license with him at the time, was placed in the back of the cruiser while officers determined if, in fact, he was a licensed driver. The Buick belonged to Yee.
 
The trio was allowed to continue on after the cops determined that Verdi was licensed. They did not talk to Bonds, who was in the back seat of the car.
 
Had they done so, they might have noticed that Bonds was bleeding heavily from a wound caused by a bullet that ricocheted off the van and struck him in the arm.
 
Thanks to an informant, federal officials learned that the Hell’s Angels were planning a retaliatory strike for Yates’s shooting. They knew Yee was a member of the biker club and that Bonds and Verdi were probates.
 
Putting together that tip with the traffic stop of Yee and Verdi near the scene of the crime, authorities targeted Yee and Verdi. They eventually came to believe that Bonds was the third man.
 
On March 9, 1988, local police, along with agents from the federal Bureau of Alcohol Tobacco and Firearms executed a search warrant on Verdi’s house in connection with an unrelated crime. During the search, officers found evidence of a “hit kit” linking Verdi to the shooting of Hartlaub.
 
The agents subsequently conducted a second search of Verdi’s home. They seized the items they had seen there before, as well as a MAC-11 of the same type as the murder weapon, with its serial number obliterated, a switchblade, a .45 caliber pistol, and a shirt matching the description of one worn at the crime scene by one of the gunmen.
 
In Yee’s car, which the agents tracked down a few days later, the agents found, among other things, spent shell casings which experts later determined came from the murder weapon, and blood in the back seat which the FBI eventually matched with John Bonds’s blood sample by DNA identification.
 
Agents prepared an affidavit seeking to obtain a search warrant for blood and hair samples from Bonds. These samples were the basis for evidence introduced at trial, including evidence that the DNA in Bonds’s blood matched the DNA from the blood found in the back seat of Yee’s car. Bonds was subsequently indicted, but fled before he could be brought to trial; he was a fugitive for several months before being discovered in Kentucky.
 
The men were eventually convicted of federal weapons charges, using the DNA evidence. They appealed the conviction and the Sixth Circuit U.S. Court of Appeals in Cincinnati upheld the use of DNA evidence in the case, marking the first appeals court decision to allow the use of such evidence in federal courts.
 
All three men later pleaded guilty in state court to Hartlaub’s murder and received lengthy prison terms.

A Not-Quite Cold Case

For almost a decade it looked like justice would never come for Anthony Proviano, a 29-year-old University of Cincinnati medical student who was slain while traveling home to spend Christmas with his family.
 
Proviano’s body was found on a rural road in St. Clairsville, Ohio, behind the hotel where he had stopped en route to Baldwin, Pennsylvania, where he was planning to celebrate the holidays on December 28, 1997. His family had reported him missing Christmas Day after he failed to arrive for his family’s traditional Christmas Eve gathering.
 
Baldwin Police used a Pittsburgh radio station helicopter to backtrack the route Proviano had been expected to take on his trek home and found his red Camaro in the parking lot of a hotel about an hour west of Pittsburgh. They determined that he had checked into room 125 of that hotel and paid for a single night, but the housekeeping staff said it didn’t appear that he had slept in the bed. The Camaro was packed with Christmas gifts.
 
A few hours after they found the car, police found Proviano’s body lying in heavy brush about a quarter of a mile from the hotel down an abandoned township road. A single set of footprints led to the location. He died of a single gunshot wound to the chest. A .25-caliber pistol registered to Proviano loaded with two rounds found about 100 feet from his body. His hat, winter coat, right shoe and a pair of leather gloves, plus a spent bullet casing and one unfired round of ammunition, were found closer to his body. His wallet, containing money and credit cards, was still in his back pocket.
 
The Belmont County Coroner, Dr. Manuel Villaverde, was called to the scene and noted that the sweater Proviano was wearing did not have a bullet hole. The t-shirt beneath was powder-burned and bloodstained. Villaverde ruled Proviano’s death to be a suicide and refused to order that an autopsy be performed. His decision stunned police and Proviano’s family, and set the tone for how the case would progress.
 
Chief Deputy Olen F. Martin of the Belmont County sheriff’s office shared his disgust with the media following the strange case. He told said he asked the coroner four times to conduct an autopsy and was refused each time.
 
“‘I’m flabbergasted. In any case where death is involved and it’s questionable, and this is clearly questionable from a number of aspects, why wouldn’t an autopsy be done?” he said. “In 11 years as a police officer I’ve never experienced anything like this.”
 
The ruling of suicide as the manner of death and gunshot wound as the cause did not prevent authorities from continuing to investigate the circumstances of Proviano’s death, but it certainly made the work of police more difficult and cast the Belmont County authorities in an extremely negative — and unfair — light. Under Ohio law the coroner does not determine whether a crime has occurred as that authority rests with the prosecutor, but the coroner’s ruling would certainly make a defense attorney’s job easier should anyone ever be arrested.
 
In addition, Villaverde’s ruling meant that the first chore of investigators would be to prove him wrong and then begin building a case against any suspects. Finally, the police would also have justify the time and expense being put into an essentially closed case.
 
The Proviano family refused to accept Villaverde’s decision and hired a private pathologist to conduct the autopsy. Shortly after they did this, the Belmont County Commissioners contacted the family and told them that the county would pay all expenses for the autopsy.
 
Villaverde stuck by his decision.
 
“If an autopsy would have helped determine if it was a difference between a murder and suicide, I would have done it,” he said. “I don’t like telling a family that their relative committed suicide, but I didn’t have a choice in this particular case.”
 
The private autopsy revealed no traces of gun powder residue on Proviano’s hands, and did show that he had consumed about an ounce-and-a-half of alcohol. No determination was made about whether he died by his own hand or by that of another person.
 
In defense of Villaverde, the Franklin County, Ohio, Coroner explained to the media that autopsies do not always provide the necessary answers.
 
“Coroners in Ohio can select to do an autopsy or not, said Dr. William R. Adrion. “People treat an autopsy like it’s going to be a mystery-solving thing. It doesn’t always turn out that way.”
 
It would take a year of pressure from the Proviano family, police and politicians from two states to push Villaverde into changing his ruling from suicide to “undetermined.”
 
He didn’t do it willingly, however.
 
“I still think it’s suicide,” he told the Post-Gazette of Pittsburgh in November 1998, calling the pressure from two Congressmen and the local prosecutor “cockamamie.”
 
Meanwhile, investigators in Belmont County left the autopsy issue far behind and were pursuing the case as a murder investigation. They had already traveled to Germany and Mexico to track down leads and spent hundreds of hours investigating the case in other ways. The break that would eventually crack the case came in March 1999 when an inmate in a Pennsylvania jail contacted his local prosecutor with information.
 
That tip from Richard Marz, a heroin dealer serving a 1 to 3 year sentence, led investigators to Douglas Main and Marlene “Slim” Smith. Main and Smith were married at the time and had been part of the heroin ring with Marz and Charles Dailey Jr.
 
Marz, who ended up in jail because Main and Smith had agreed to cooperate with authorities as they cracked Dailey’s drug gang, said the couple had been “pulling this sex-robbery shit for years,” in his letter to the prosecutor.
 
He said Main told him that Smith met Proviano in a St. Clairsville restaurant, lured him back to the hotel with the promise of sex and had robbed and killed him.
 
“Main said he shot killed a guy in Belmont County, Ohio St. Clairsville area with the guy’s own gun. The guy had x-mas gifts in his car. Deserted area by a motel, and no money or gifts were taken,” Marz’s letter read.
 
Dailey – who was also taken down by Main and Smith’s cooperation – provided additional support for Marz’s allegations. He told investigators that he and Main were in St. Clairsville on a shoplifting trip and Main was concerned about getting arrested. Main told Dailey that he had tried to rob a man in St. Clairsville once and ended up shooting him with his own gun.
 
“Me and Slim was gonna rob this guy and I shot him with his own gun,” Dailey quoted Main as saying.
 
Dailey went on to say that Main told him that “he hit the guy so hard he knocked him out of his shoes.”
 
However, all of those details: that the gun used to kill Proviano was his own, that he was found without one shoe, and that his car filled with presents was untouched had all previously been made public through the media.
 
In August 2001, Belmont County Coroner Gene Kennedy, who ran against Villaverde based on his conduct in the Proviano case and who trounced the coroner in the November 2000 election by a 2-1 margin, again altered Proviano’s death certificate – this time ruling that the manner of death was homicide.
 
While that boosted the spirits of the Proviano family, merely changing the words on a certificate did not advance the case much. The fact remained that the only evidence in the case came from a pair of convicted drug dealers with grudges against the chief suspects.
 
In December 2002, a Belmont County grand jury heard two days of testimony and evidence in the case and declined to hand up indictments.
 
Frustration abounded and finger pointing began. In 2004, the police chief in Baldwin, Chris Kelly, told the Post-Gazette that prosecutors in Ohio were doing absolutely nothing to bring the matter to closure. He complained that the prosecutors were ignoring leads that he and a retired homicide investigator had presented. Kelly said he thought there was enough evidence to bring charges.
 
“With all due respect to Chief Kelly, he has not tried a case in a courtroom,” deputy prosecutor Dan Fry responded. “I have for 25 years.”
 
The Baldwin police uncovered a videotape of Slim Smith in a Washington, Pennsylvania pawn shop discussing Proviano’s murder. In the tape, she admits playing a role in the killing.
 
“Me and Doug robbed a guy,” she said. “Doug shot him and left him for dead. We were so scared we left all the Christmas presents in the car.”
 
Douglas Main, Slim Smith’s then-husband took a lie-detector test and failed it, Kelly told the media.
 
Fry responded that his office did take all of the evidence seriously, but said the case wasn’t as open-and-shut as Kelly liked to believe. The witnesses all had credibility problems, he said. Not to mention that there was absolutely no forensic evidence linking Main and Smith to Proviano’s killing.
 
Finally, in late 2004, Belmont County authorities took the case back to the grand jury. This time, they were more successful and received indictments against Main and Smith.
 
Several details helped bring the indictments. In August 2004, Baldwin police found earmuffs linked to Main and Smith in the woods near the murder scene. That, along with a key chain that included a key to the room Proviano had rented so many years ago in St. Clairsville, was turned over to authorities and linked to the couple.
 
Investigators also found the registration Proviano received from the hotel in a car once owned by Main and Smith.
 
But justice was still to be some time off for the Proviano family.
 
In May 2005, shortly before the trial was to begin, Douglas Main was ordered released on bond after a special prosecutor appointed in the case asked for additional time to investigate new developments. Six months later, the prosecutor, citing the state’s speedy trial requirements, dropped the charges against Main. They can be reinstated at a later date.
 
“Based in part upon things we have learned quite recently, it’s best for the state, it’s best for the interests of justice and best for the family of the victim that we try Marlene Smith first,” prosecutor Thomas Hampton said in November 2005.
 
Marlene “Slim” Smith went to trial in February 2006. During his opening statement, Hampton said Proviano and Smith had rented the hotel room for the purpose of taking drugs and having sex.
 
“The things that have slipped out over the years, these things indicate that Marlene Smith was responsible for the death of Anthony Proviano,” Hampton told jurors.
 
Charles Dailey Jr., the head of the heroin ring that Smith once worked for, testified that Smith took a gold bracelet from Proviano’s car and traded it to him for heroin. He also explained that the videotape of her confession came about after she came to his pawn shop and threatened one of his employees.
 
“You don’t want Doug and me to do what we did to Proviano,” he recalled that she said.
 
Richard Mraz, whose letter had helped unravel the case, also testified that Smith was worried about forensic evidence after the murder.
 
“What if they fingerprint that whisky bottle, Doug?” he said she asked over and over one day shortly after the killing.
 
The key witness against Smith, however, was Leslie Long. She was Smith’s cellmate in Belmont County, where she was awaiting trial on attempted murder charges. She took the stand against Smith and said her bunkie had referred to Proviano as “a trick that had gone bad.”
 
Long was the only witness who could provide any details about how Proviano had been killed.
 
According to Long, Smith told the unlikely story that she hooked up with Proviano and that they traveled from “somewhere in Pennsylvania” through Pittsburgh to St. Clairsville in search of drugs.
 
After Proviano failed to procure drugs for her and they began quibbling about the price of sex, Smith hit him three times with his own handgun and then shot him.
 
In the end, it was Smith’s own words that led the jury to convict her. She made a telephone call to a Baldwin County detective and during the course of that phone call began arguing with a heroin dealer she was living with at the time. Unbeknownst to her, the detective was not in and her voicemail had picked up.
 
“I’m a murderer,” Smith shouted at the heroin dealer. “You heard that? I’m a murderer.”
 
After a day and a half of deliberations, a Belmont County jury agreed with her and returned a guilty verdict.