(JULY 27, 2006)

by Kathryn Joanne Dixon

The high-profile trial of Scott Dyleski for the murder of Pamela Vitale, wife of attorney Daniel Horowit, commenced in Contra Costa Superior Court on July 27, 2006 with opening arguments before Judge Barbara Zuniga.  Deputy District Attorney Harold Jewett, the top murder trial man in District Attorney Robert Kochly’s office gave the opening statement for about two hours.  It was powerful.

But afterwards, a shock greater than Jewett delivered, occurred.

The speech was short and sweet – 15 minutes.  It was a fast hard move only a young, bold defense attorney or a very wizened, old pro would try.  The pretty dark haired woman who stood at the defense table gave a brief address that might decimate the District Attorney's entire case against teenager Scott Dyleski. 

Ellen Leonida, deputy public defender, urged the jury to consider that the person who left DNA in the glove allegedly used to wield a knife that viciously stabbed Pamela Vitale, did leave DNA inside the glove.  However, the DNA left behind was not that of Scott Dyleski.  There was zero DNA from Dyleski in the glove soaked with Vitale’s blood.  Listener's in the courtroom could hear the ghostly voice of Johnny Cochran saying,  "If the glove doesn’t fit, you must acquit."

Next, Leonida told the jury Dyleski had the iron clad alibi.  Fred Curiel, owner of the home where Scott and his mother, Esther Fielding lived, said Dyleski came home at 9:26 a.m. on Saturday morning.  Jewett, in his opening argument, said that Pamela Vitale was sitting in her trailer working on her computer  Saturday morning, October 15, 2005.  She was searching key words regarding her husband and his current defense of Susan Polk for the first degree murder of her psychologist husband Felix Polk.  She was also looking up some of his other cases.  Before she could click on a keyword sequence she had pulled up, at exactly 10:12 a.m., she was interrupted, and Jewett said, Scott Dyleski appeared at her trailer door.  It was alleged that he entered and murdered her, despite her valiant struggle to survive.  But Fred Curiel's testimony proves that Scott was home at the time of the murder.

Let's look at the history of the third-party DNA found inside the bloody glove.

At the preliminary hearing in February 2006 David C. Stockwell, the senior criminalist in the Contra Costa County Sheriff's lab in Martinez, testified that he obtained two stains from the exterior of the glove found in the duffel bag and two stains from the interior of the glove.  Blood had saturated through the glove's fabric.  The two exterior stains and one interior stain contained Pamela's genetic material.  The fourth swab taken from  the inside of the glove was a mixed sample. The major genetic contributor was Vitale, and there were two alleles which indicated there was genetic material which was neither Dyleski's nor Vitale's.  Defense counsel Leonida raised the question about the third person whose stain had been found on the interior of the glove.  Further questions, not raised, were: (1) Who wore or touched that glove other than Dyleski at the time it was saturated with Vitale’s blood? (2) Is law enforcement going to attempt to match that DNA to any other source?  (3) Should this case EVEN GO TO TRIAL if this third-party source is not identified? 

It can be alleged that this case should not have been brought to trial because of the prosecution's failure to reveal potentially exculpatory evidence by either being unable, incapable or unwilling to thoroughly investigate the source.  It could be bad luck, incompetence or Brady error but the evidence introduced from this glove currently raises more questions then answers.  Did the experts used by the District Attorney's office test for sweat, skin or hair root samples from the interior of the glove?  If not, why not?  Moreover, if this glove with third-party DNA was found in the duffel bag in the van parked a distance from the Curiel home the questions becomes, "Could the duffel bag and its contents have been planted?"

At the preliminary hearing, Esther Dyleski testified that  a week before the Vitale murder she had made arrangements to have an old van she had abandoned removed from the Curiel's property.  On Monday, two days after the murder, Esther Dyleski and a neighbor Joe Lynch were clearing brush on the property to meet a clear away deadline imposed by local fire department.  In the course of this work, she decided to make sure there was nothing of value in the van.  A short woman, she opened a front door and peered into the back of the van.  She testified she saw a black tote canvas bag in the backseat of the van.  She reached inside it and pulled out a long black rain coat.  She testified she didn't see anything else in the bag.  She later asked Scott if the bag was his, and she testified, "He said something about old clothes." Jewett then asked Esther if, in fact, she had told a deputy sheriff that Scott said, "It was old anyway and I just left it up there."  Esther denied saying this and said everything she said should be on video tape.  It all was videotaped because she had told the deputy she wanted it videotaped. Jewett didn't produce the video tape.  Instead, he went ballistic.

He moved the court that Esther be declared a "hostile witness".  The judge at the time, Mary Anne O’Malley, denied the motion.  Esther wouldn't budge.  She would not say that the duffel bag belonged to Scott or that she saw any of the contents other than the long coat.  She would not say that Scott said the duffel bag or any of its contents were his.  With the prosecution failing to prove Scott placed the duffel bag and its content in the van, the question remains unanswered.  Who put the duffel bag in the abandoned van belonging to Esther Fielding?  

Jewett plowed on to other matters regarding the duffel bag.  Members of law enforcement had testified earlier that they found the duffel bag and its contents during a search of the Curiel property sometime after Esther Fielding an Joe Lynch saw it is in the van on Monday.  Prior to Esther's testimony Jewett had shown through the testimony of Fred Curiel that members of the household shared bags and clothing at times.  However, Fred Curiel would not identify the duffel bag or its contents as definitively belonging to Dyleski.  Apparently the bag has a name label on it stating "Scott Dyleski".  

Returning to the opening statement by Hal Jewett.

Apparently acknowledging the serious problems with the DNA Jewett retreated from his strong support of the DNA findings that he tooted in the preliminary hearing.  In his opening statement he let the jury know this case was not about "CSI Miami", a topic of numerous inquiries during jury voir dire.  Now Jewett stated, "This is not a case about DNA, although it is relevant."   He continued. "You're going to hear about clothing ... footprints. But ladies and gentlemen, this is not a DNA case, it's about good old-fashioned gum-shoe work."

What about the other DNA evidence in the duffel bag and van?  Can it save the DA’s gum-shoe circumstantial evidence case?

There was a ski mask found in the duffel bag that also contained DNA.  The fact that the DNA from the background sample taken around the mouth opening of the ski mask matches Scott Dyleski's DNA is can be damning.  Additionally, four blood stains on the ski mask only match Pamela Vitale.  However, the genetic material around the eye opening is that of at least one other person and was not contributed by either Vitale or Dyleski. 

There were also shoes found that  contained genetic material of at least one other third-party.  Who was this person?  Was the individual male or female?

The long black rain coat  pulled out of the bag by Scott's mother showed no DNA stains from either Vitale or Dyleski.  The knife discovered also did not contain any blood stains linked to Vitale.

Whether Dyleski used the items in the duffel bag during the time he allegedly killed Vitale is another issue can  allegedly be proven by circumstantial evidence, the existence of Vitale's blood.  Of course, the jury could  also infer that a third-party used them and then planted them in the duffel bag discovered in the van.

Will theories of "planting" and "staging" and DNA contamination such as transference be used to explain away the third-party DNA? Jewett didn’t address these issues in his opening statement.

It is, of course, possible that  the judge may allow Jewett to try to prove Dyleski cannot be excluded as a male Y chromosome contributor to a blood stain on Vitale's right foot.  But another problem would arise from using this approach.  A drop of blood unrelated to Vitale was found on her foot. Jewett made much of the fact Vitale wore a sock that Saturday morning which was torn about her toes.  The seasoned prosecutor is laying a foundation for future allegations. 

During the preliminary  hearing Criminalist  Stockwell testified that the drop of blood  found on Vitale's foot cannot be tied to Dyleski by traditional DNA analysis through the FBI Codex.  Undeterred, Contra Costa County contracted the  analysis of this blood  spot to Gary C. Harmer, a Senior Forensic Serologist employed by the Serological Research Institute in Richmond, California.  He is an expert in YSTR - "Short Tandem Repeat of the Y chromosome" – a new scientific methodology.  He used his Yfiler machine to locate matches on the Y (male only) gene and compare it to various Y only data (For in-depth reportage on this issue: Click. A Killer on the Loose by Kathryn Dixon. This page includes accompanying links to Kelly-Frye motions filed in the Dyleski case.)  

In the July 15, 2002 trial for the murder of Samantha Runnion in Orange County, prosecutors used YSTR to try to link DNA material found under a fingernail on Samantha's left hand to Alejandro Avila, 29.  Superior Court Judge William Froeberg allowed the evidence. Avila was convicted.  The California Supreme Court has yet to rule on the Avila case where YSTR was accepted as evidence passing the factors for reliability established by the court’s own Kelly-Frye test.

Deputy public defender Leonida filed a Kelly-Frye motion to test Serologist Harmor’s YSTR test before Judge Barbara Zuniga in the Dyleski case.  Judge Zuniga has yet to rule on the motion. 

When Deputy Public Defender Leonida gave her opening statement she addressed the background of the Scott Dyleski's iron clad alibi, the time-line testimony of Fred Curiel.

At the preliminary hearing, Fred Curiel testified that he looked down at his pager when Dyleski came into the house on Saturday morning because he was concerned about he and his wife being late for a planned shopping trip.  Curiel, whose thought processes are those of a precision-oriented engineer, clocked Dyleski as entering the house at 9:26 a.m.   Prosecutor Jewett alleges Pamela Vitale was interrupted by intruder Dyleski at precisely 10:12 a.m., the date shown on her computer.  He then proceeded to murder her.

Is Dyleski's alibi ironclad?  Did Curiel keep an eye on Dyleski for the next fifty minutes?  Did his wife?  Would they or someone in the house have seen Dyleski leave in that interval to go out to Vitale’s home?  It has been estimated the walk from Curiel’s home to Vitale’s home would take about 20 minutes.  Dyleski had no driver’s license or access to any car if, in fact, he knew how to drive.  Did someone drive him?

When Dyleski returned  home at THAT time, at least one witness observed a mark on his face and his injured wrist. Dyleski claimed he was injured by tree branches while walking.

Can Jewett perhaps prove that Fred Curiel was biased in favor of Dyleski?  It is apparent that Curiel cared about Dyleski because he allowed him to live in his home for years.  However, Curiel took quick, effective disciplinary action against Dyleski when a neighbor told him Dyleski ordered pot equipment charged to her credit card.  The equipment was to be delivered to Esther Dyleski’s home.  The Curiels and their neighbors conducted their own investigation reported their findings to the Contra Costa Sheriff's department.  Curiels' reward was to have their home ransacked and their family members held at gunpoint by the sheriff's they had assisted.  The Curiels have The Curiels have filed a civil lawsuit in the Contra Costa Superior Court over the physical and emotional injury their family suffered.

Although public defender Leonida has stated that she wants an acquittal based on the third-party DNA inside the glove and the alibi that Dyleski was home when Vitale was murdered, Jewett may not confront these issues head-on.  Jewett's opening statement indicated that his argument relies much more upon a character assassination of Dyleski based on his Goth habits and  the defendant's writings about evisceration and murder.

Jewett’s theory of the murder is that Dyleski was afraid Pamela Vitale had found out about his credit card theft and he murdered her to cover up the scheme. The proof of this credit card theft plan by Dyleski and his immunized cohort, the confessing ex-friend Robin Croen,  is simple.  It is, however, a giant leap to believe a 16-year-old facing a potential marijuana charge for delivering pot equipment to Vitale’s house would kill her to cover it up.  After all, in California the first-time penalty for such a pot scheme would likely be probation.  Dyleski had no history of violence, crime or psychosis.  He was carrying a full load of courses at Mt. Diablo Junior college when the murder occurred.  He had friends and girlfriends.  He got along with his mother and frequently visited his father. He babysat neighbors' children. Scott Dyleski was responsible and he was trusted.

But the shock of gruesome murders makes cases easier for a prosecutor to prove.  Juror's may take hours, days, weeks, or years to forget the vivid courtroom descriptions of such a vicious murder.  Some jurors may not be able to separate the foul from the presumed-innocent-now- accused defendant, because of the shock imposed upon them as jurors..

Hard-hitting Hal Jewett wasted no time in explaining to the jury that the Contra Costa Coroner will show that Vitale, 52, suffered 26 "devastating" head wounds.  The cause of death was bleeding brain injury.  Just when the jury, family, public and press could hardly bear to hear more, Jewett delivered an even bigger shock.  He said Vitale was eviscerated – the killer cut her abdomen open to expose her intestines.  Then after she was dead, he carved an H-shaped symbol with an extended T-bar on her back with his knife.  Jewett said he would produce Dyleski’s signature on his writings and art work – a similar cross.

Yet the fact remains that in this brutal murder the accused was charged when he was just a frail 16-year-old boy, just three weeks shy of 17.  There was no evidence of sexual assault and it is not mentioned as a possible motive.  There has been no testimony of any prior violent dispute or altercation between neighbors Vitale and Dyleski.  There is just his petty identity credit card fraud involving a potential pot growing operation.

None of these issues bothered the consummate prosecutor as Hal Jewett thundered on.  Trying to explain how Dyleski got into a state of such psychosis that he would engage in a rage killing of pretty Pamela Vitale, Jewett ventured to explain Dyleski’s psychology.  Jewett explained that Dyleski was upset because his sister had died in a car accident about three years before the murder.  He subsequently experienced a personality change and adopted Goth dress and mannerisms at home and high school.  The prosecutor opined that this grief-stricken Goth-type behavior and maybe even the death of a family dog just before the murder resulted in Dyleski planning his credit card theft scheme.  Then, when faced with discovery of the scheme, he butchered and bludgeoned Vitale to death with a heavy piece of molding found in or near her trailer.  Jewett's cause and effect reasoning appeared to stretch the facts in the case to justify the charges.   What psychology is this?  It is not known whether Jewett will call psychologists or psychiatrists or if defense counsel Leonida will do so.  Witness lists are not yet available for public view, if they ever will be, given the gag order. 

Moving beyond the psychological issues Jewett, appearing relieved, turned his attention to the to Pamela Vitale's husband, high profile attorney Daniel Horowitz. 

Finally, empowering his opening statement Jewett, a huge man with a booming voice, re-enacted the scene when  Horowitz discovered his wife murdered.  “No, Pamela, no! No, please, no!"  Jewett yelled, startling the onlookers.  Jewett added that neighbors a half-mile away, later questioned by police, described a sound similar to a wounded animal.  That sound was the agonized cries of Daniel Horowitz as he described his wife's lifeless body.

"It wasn't Goth, it wasn't even death, it was murder," prosecutor Harold Jewett shouted.

Jewett’s argument was strong, filled with his own strength, moving fast over the inconsistencies and weaknesses of the arguments, and shouting out the facts he felt were most damning.

When Leonida rose from counsel table, and took her turn to argue after Jewett’s long opening, she said in a too cold and uninvolved way,  "Scott is not a killer. He is a kind, gentle and conscientious kid.” She noted his interest in saving animals as a member of People for the Ethical Treatment of Animals  "People who know this kid know he's not a killer.  He's kind, gentle, good with children and loyal to his friends."  

How will these opening statements play out at trial?

To save the prosecution’s case from its obvious DNA breakdown, and from a possible iron clad alibi, it is likely Jewett will try to rely heavily on the testimony of Esther Fielding, Dyleski’s mother.  Jewett arrested her for being an accomplice after the fact because she destroyed potential evidence.  Then he dropped the charges after he obtained a cooperation agreement from her.  She is on a short legal leash.  Jewett says she burned her son’s hard drive and pieces of paper with other people’s credit card account information.  She first testified that information included Vitale's, but then retracted.  Jewett will try to pin her statement down with a contradictory statement she allegedly gave to a deputy sheriff.  Esther Fielding making the statement to the deputy sheriff. 

Finally, there is the evidence which was found in January 2006, two and a half months after the murder by a man who moved into Dyleski’s room at the Curiel’s house.  He opened a dresser drawer and found paper stuck in it.  Jewett said the handwriting has been identified as Dyleski’s.  Four pieces of paper stated account information. The fifth paper contained words which Jewett read as saying, "Knock out/kidnap? Keep captive to confirm PINs. Dirty work. Dispose of evidence. Cut up. Bury."

Did Dyleski write the note found in the drawer at someone's direction?  Who, if anyone, gave him the identify card theft idea?  Was a third person present at the murder scene?  Is Dyleski sitting in jail now, a patsy, afraid to talk, in fear of his own life or threatened with the death of his love ones? 

Who really killed Pamela Vitale?  One, two or more?  Ah...conspiracy!  That third party DNA inside the bloody glove can nag even a prosecutor.

There is always another last argument, last word, last ordeal in a courthouse.  After all, trials are surprising events, as the evidence is discovered or made up as the days go by and the careers of the attorneys and law enforcement are at stake and all else can seem,  at times, to pale by comparison. 

For his finale, Jewett may call Dyleski’s young girlfriend, whom he apparently met the night after the murder.  In statements made in the press shortly after the murder it was stated that this young girl would reveal as Jewett has said, “Dyleski’s dark side.”  Fortunately, to illuminate the girlfriend's plight and protect her rights as a witness, Gloria Allred, the great civil rights attorney, will be by her side.  Unfortunately, attorney Allred has been gagged by the court, and cannot talk to the media and the public about this potential dark finale to the prosecution’s case.

Will justice be served?  If her warriors be bold, her cause occasionally triumphs .....even in a court of law and in spite of the best lawyers and judges.  In this case, as in many others, Justice can only be served by the jury.

Kathryn Joanne Dixon © July 27, 2006