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THE SCOTT DYLESKI SENTENCING – WHY? WHY? WHY?
by Kathryn Joanne Dixon
 

On September 26, 2006 Judge Barbara Zuniga sentenced Scott Edgar Dyleski to life in prison without the possibility of parole for the bludgeoning murder of Pamela Vitale.  Before sentencing, the judge, the Contra Costa community, the family of the victim, and the defendant’s family were facing one issue – should Dyleski be sentenced to 25 years to life without possibility of parole for the offense?  Because he had been convicted of a special circumstance, residential burglary in the commission of a felony, that sentence was on the table.  However, because he was 16-years-old at the time of the offense, the Judge had the discretion to impose a term of 25 years to life, which meant that in 25 actual years he would go before the parole board and apply for release from prison.

One word summed up the horrible day – why?

At 9:30 a.m., Judge Zuniga started by letting the record reflect that she read and reviewed the following documents received by the court:

Probation Report and Recommendation
Letters from Jurors numbers 6 and 8
Letter from Linda Sutton
Letter for Viola Bolick
Letter from Debra Groves
Letter from Calence Ethan
Letter from Barbe Stamps
Letter from Ruth Ketvirtis
Letter from Carol Dutcher
2 letters from Esther Fielding (mother of Scott Dyleski)
Sentencing memorandum by Ellen Leonida, deputy public defender

Hal Jewett, deputy district attorney, stated he had no sentencing memorandum to file.

He pointed out the letters attached to the probation report which the judge then listed as read and reviewed letters from Karol Dondero, Susan Lane, Roger Nicholson and from Pamela Vitale’s mother, father, son, daughter and sister and Pamela's husband Daniel Horowitz.

The DA stated he would call six family members as witnesses.

First to testify was Daniel Horowitz, known in California as one of its most talented attorneys.  The packed courtroom fell silent.  Horowitz’s words came from some place where the heart and mind are ripped apart.  His words were jagged, not the usual soft-spoken voice of a counselor-at-law.

He condemned Dyleski to his face.  He described discovering his wife’s lifeless body inside the doorway of their home.  He said “What I thought and what I felt when I walked into that house was almost a party in blood.  You took such a pleasure in killing.  It was clearly something you wanted.  You can’t be honest.  You have a complete absence of remorse.  I never had a client who took such complete pleasure in the act of killing."

“Pamela would have screamed ‘I don’t believe this is happening!’  She would have said, ‘Stop!’  But you did not stop.  She probably cried and asked for mercy.  You kept on hitting her, striking her at least 26 times in the head with a rock, causing her brain to bleed, breaking her nose, fingers, knocking out some teeth, bruising and cutting almost every part of her body.”

Horowitz told the judge, “He took pleasure in the killing as engaged in it.  He beat her again and again and he took pleasure in it.  It was horrible to listen to Dyleski’s foolish teachers describe his good character during the trial and to watch Dyleski flirt with his defense attorney during the preliminary hearing.  I had to take a phone call from his mother who wanted to give me a soufflé as she was destroying the evidence of the crime.”

Horowitz asked the judge, “Do not let Pamela’s family have to go into the parole board in 25 years and have to testify to keep him in prison for more time.  I ask you to show Dyleski the same lack of mercy and humanity that he showed to my wife, Pamela.  I am asking you to take him out of my life and my family’s life forever.”

In his speech, Daniel Horowitz answered the question “Why did Dyleski take Pamela’s life?”  He viewed Dyleski as a man who wanted the sick pleasure of sadistically and brutally killing Pamela.  Horowitz wanted Dyleski out of his family’s life forever.  Horowitz did not ask why Dyleski chose to kill Pamela rather than some one else, nor did he ask him what exactly happened when Pamela was murdered.   Horowitz appeared to have the answers after his many months of anguish without his beloved wife.

Next to speak was Pamela’s son Mario Vitale, 31.  His voice was very strong and filled the courtroom.  He said he got the worst phone call of his life on October 15, 2005, when Daniel Horowitz called him from the back of a squad car and described a nightmare – Pamela was dead. “Blood everywhere, dead, dead. Not sick, but dead and gone.”  Then Mario experienced the second worse phone call of his life.  He called his sister Marissa and told her “Mom is dead.”  The Vitale children tried to book the next flight out of Los Angeles.  They could not.  So Mario and Marissa immediately drove the long night through from Los Angeles to Lafayette, California.

Mario then addressed Dyleski to his face, “For long days I have been agonizing. You cut a symbol in Mom’s back.  You killed a woman who had every right to live.  She would have helped you.  She was the quintessential humanitarian.  She would have bent backward to help you. But you snuffed her.  She will not see her kids get married or see her grandchildren or the fruits of her labor, her dream house.  She never had a house of her own.  This has been horrible for my grandparents, for her not to come back – her laugh, her huge smile.  Scott, you robbed us of a mother, a daughter, a wife."

Then Mario addressed the question “why”.  He said, “I don’t know exactly why you did what you did."  Suddenly Mario’s anger seemed to sink, and he spoke softly with compassion. Perhaps the spirit of his mother was on his lips.  He said to Dyleski, “We have a lot in common. We were both raised by a single mother.  We wanted to go to music recording school.  We were considered weird when we were growing up.  Now I have a music recording job.  But somewhere you got lost.  Plenty of others had living circumstances worse than yours and did not become murderers.”

Mario addressed the judge, “Scott Dyleski is now asking for leniency. But the time for leniency is when he pleaded and said he didn’t do it. He wanted to get away with it. Now he wants mercy. He should be given the maximum. Now Scott feels this is inconsistent with his character – he played on the Frisbee team and was well-liked.”

Mario turned to Dyleski, “No, you went the way of Ted Bundy and Scott Peterson and John Wayne Gacy and you killed a woman out of greed and malice.  Then there's Scott Dyleski, loved by Frisbee coaches and art teachers alike.  You messed up.  You made your bed; lie in it! This is not a crime of passion, or self-defense.  You had no reason to hate her.  Yet you beat and stabbed her to death.  Your carving a symbol in her back is despicable.  You only felt self preservation.  You took her life.”

Mario addressed the judge and asked that Dyleski be sentenced to life without the possibility of parole.

Why?  Mario could not believe a woman as wonderful as his mother was killed by someone whom she could easily have helped.  Throughout his speech, Mario waited for Scott to break down – to cry -- to even bow his head in shame.  He did not.  He maintained the same expressionless mask – his own face.  Mario mentioned that Dyleski could have pleaded guilty and sought leniency.  Dyleski did not react.  For Mario, the question – why did his good mother have to die at the hands of this merciless 16-year-old killer – would not be answered.  Dyleski would admit nothing, not even to obtain leniency.  Nor would he protest that he was innocent.

Next, DA Jewett called Marisa Vitale, 29, the daughter of Pamela as a witness.

Marisa addressed the judge, “How can I address a person who killed my mother?  Usually I can relate to people on some plane of understanding. But if he did it, I do not know how to relate to him."

“It is unbearable pain."

“I know Dyleski felt pain – his sister was killed in a car accident. His parents separated. He knows how it feels to lose someone.”

Marissa turned to Dyleski. “How could you do this?  Your sister’s death was an accident.  My mother’s death was planned.”

She spoke to the judge, “My mother would have helped Scott.  She was a role model.  She improved lives.  Warm and tender.”

Marissa was almost crying.  “I wish you could have felt the unconditional love,” she said to Scott, "It was a great person you destroyed. She would have gone out of her way to help you."

“Just weeks before she died, she saved a man’s life.  A contractor had been left to die by his doctors.  My mother researched his symptoms and took him to a different hospital.  He regained his health.  So why?"

“This was not a passion killing.  It was calculated.  You didn’t offer her leniency.  Why?  Why?  Tell us why.  Why at a young age did you do something like this?  I beg you.  Explain exactly what happened.  Do one good thing – tell us about the last moments of my mom’s life.  Give us peace of mind!”

Dyleski did not respond.  He did not even turn his head to acknowledge Marisa’s presence.  Was this the “kind and gentle” Dyleski his friends knew or another man?

She said in complete and utter despair, “Remember our faces – those faces you ruined.  You just didn’t kill mom, you killed a huge piece of all of us as well.”

Marissa asked the judge that Dyleski be sentenced to life in prison without the possibility of parole.

Why? Marissa put Dyleski on the spot. She asked why he did it and wanted to know about the last moments of her mother’s life.

If Dyleski did not commit this crime, why did he not tell Marisa Vitale right then and there, “I didn’t kill your mom."  Or if he committed the crime, why didn’t he answer her questions and tell her why?  After all, he was seeking the mercy of the court, according to his attorney’s sentencing memorandum, in which she said repeatedly and shockingly, by implication, that he was guilty of the crime.  Didn’t Dyleski realize that this was his last chance, that he could have answered Marissa and Mario?  He could have asked them for mercy.  No.  Instead, he followed his mind already made up by himself or perhaps by his attorney.  He would follow the script and plan his attorney laid out.

His attorney had brought in some kids and teachers to testify at trial that he was a good boy; she would do that again.  And his defense was at trial, that “I am a good boy”. That would also be his defense at sentencing.  Well, perhaps all his life he was viewed as a good boy.  But not now.  This was Judge Barbara Zuniga’s courtroom.  This was the end of this road.  Didn’t Dyleski see the difference?

Next, DA Jewett called as a witness, Pamela’s father, Verne Ludtke.

Mr. Ludtke told the judge, "Children are always children to a parent no matter what their age.  The murder of Pamela by this human predator was the greatest shock.  That Pamela was beaten and stabbed was devastating to us, her family and friends.  It was like an emotional tsunami.  Everyone asked why?  Why did he do this to such a wonderful person?  She saved a friend’s life just before she died.”

He turned to Dyleski in anguish, “Dyleski, you took a valued life!"

Mr. Ludtke described his own physical and mental pain and suffering caused by the loss of his daughter.  Then he recalled a happy time.  He described how he and Pamela played piano duets – classical and contemporary. “Our family has musical talent.”

He said to Dyleski very, very slowly, “As a Christian man, I try to forgive.  I try to forgive you for this vicious attack and murder.  But, I see no remorse.  If I see remorse, I hope I can forgive.”

Dyleski said nothing to Mr. Ludtke.  Didn’t he know Mr. Ludtke was ready to forgive – that he wanted to as a Christian man?  Dyleski did not even show pain.  Many of the people in the audience were reduced to tears as Mr. Ludtke talked about forgiveness.  Dyleski did not cry, or would not cry.  He seemed programmed to be a stone – no expression allowed.

Next, DA Jewett called Carol, Pamela’s mother to the stand.

Mrs. Ludtke told the judge, “The death of a child is devastating. This savage butchery is something from which I will never recover.  The loss of Pamela in this horrible way is stunning."

Mrs. Ludtke said her family was small – just two daughters and Vern and herself. Now, she said, “We are reduced to only three --completely shattered.  This has broken my heart.  I miss her vibrant presence, her intelligence, loyalty and larger than life personality.  I shall miss her forever."

“At 10:30 p.m. on October 15 I got a phone call. It was unbelievable.  I was expecting a return call from Pam.  When I heard she was dead. I fainted, screamed.  This can’t be happening!  Not my beautiful Pamela!  We flew to California immediately.  Still I felt it can’t be happening! The funeral took place.  I did not have time to say good-bye.  My heart was broken.”

Mrs. Ludtke described the physical and mental pain and suffering caused by the loss of her daughter.  She described having to go to emergency rooms in several hospitals.

“I could not live without my Pamy-girl.  He has condemned us to a lifetime without her.  I am completely exhausted.  I ache when I think of her last moments.  I want to protect her from Scott.  I play it over and over in my head—her scream, her cries for help when there is no help available.”

Then Mrs. Ludtke described the brutal savage attack on her daughter in detail.  After that, she said, "When I first saw Dyleski in court, I felt like a blow to my body – I was physically ill.”

She said to Dyleski, “You have just begun life, yet you chose to be a murderer.”

Mrs. Ludtke addressed the judge, “It disgusts me how he planed the crime and that it was butchery.  I believe the only justice is a life sentence without possibility of parole.  Let his life be taken, as he as took Pam’s life and as he effectively, if not literally, took our lives away.”

Why?

Mrs. Ludtke did not have to ask why.  The picture of her daughter’s death and screams for help played out in her own mind.  She knew intuitively how Pam died.  Thus, for Mrs. Ludtke, the question was not why – but rather, what is justice for my dearly beloved?  And she asked Judge Zuniga for justice plain and simple.

Finally, DA Jewett called Tamara Hill, Pamela’s only sibling as a witness.

Tamara recounted to the judge the pain and suffering of her sister as she was murdered, “Pamela suffered 26 blows to the head, and every surface of her brain bled.  The official cause of death was blunt force trauma to the brain.  She had a broken nose, broken finger, a gaping wound to her abdomen exposing her intestines, a carving on her back and injuries to all her limbs."

“She was only 52-years-old."

“I felt shattered and broken. How her life is part of what was, might have been and never will be again."

“It is overwhelmingly sad. Nothing can bring my sweet sister back to me. I have to face another day without her and it hurts."

“Pamela was a gentle caring sister, daughter and mother, and wife. She saw good in others and was trusted. Her smile would literally light up a room --her infectious laughter that caused tears to run down her face.  Her strength and intelligence. Her brilliant talent.  She played the piano since age seven.  When I heard her fingers were broken – I recoiled in anger."

“She had astounding mental capabilities. Scott Dyleski slowly and painfully destroyed her incredible mind with blow after blow to her head."

“This is a great loss to my family.  Who knows what she would have contributed if she had lived?  She had a vulnerable, tender heart.  She liked to listen to the sound of the waves of the ocean, and to the falling rain and to the sounds of a storm in the Midwest.  She liked life’s quite and ordinary moments. To hold her children. A child playing in the sand.  A couple holding hands. She wanted to live in her house.  She had a window seat designed to so she could sit there and hold her grandchildren.  To Pam, all things were possible.  Like a mother lion, she protected those she loved.  She even fought off this monster.  She had no judge and jury. She was sentenced to death by him.  He sentenced our family to a lifetime of pain.  We cry every day."

"She was looking forward to having time with her husband, family and friends in her new home."

"When I heard she was murdered, I fell to the floor as though hit.  I became the only child.  I lost the only one who shared childhood memories with me."

Then Tamara described the physical pain and suffering caused by the loss of Pamela.  She said her own husband had suffered too.

She condemned Dyleski, “He knows nothing about love and family.  He felt pleasure as he carried out his check list.  I heard his girlfriend testify about how he inflicted pain."

“To watch my parents and Pamela’s kids suffer is unbearable, shocking and unbelievable.  The stress affected my parents’ health.  Pam’s kids will not have a mother to see their marriages, and the births of their children.  Pamela and Daniel will never spend their lifetime together. Daniel will live with the image of finding his wife dead in his doorway."

Then Tamara addressed Dyleski, “All of our lives changed forever because of you, Scott.  I will love her every day of my life. This monster from the depth of hell took a life! He no longer deserves to be called human!  Who can take a life with his own hands as he heard her screams to stop?  He watched her die.  He has lifeless shark eyes.  He was there at her last moment of life.  It was her family’s right, not his, to be there at her last moment of life.  He murdered our hopes for the future.  How dare he?  How dare he hope he can change in the future? He could have stopped, given her a chance to life, called 911 and left the phone off the hook.  He deserves to spend the rest of his life behind bars.  His leniency is in his not getting the death penalty.  He doesn’t deserve parole.  The citizens of California deserve to be protected. He needs to go away forever.  He gave inhuman and cruel punishment to her family.  I saw you Scott with your smug face and little smile.  You will experience this unforgiving pain.  I want no other family to have to experience this pain."

Tamara addressed the judge, "I request this – a sentence of life without possibility of parole. There is nothing more I can do. I request this sentence -- for Pamela."

Why?  Tamara perhaps found the answer to this question in what she described as Dyleski’s “shark eye”.  She said she saw Dyleski’s “smug face and little smile”.  Did that tell her all she needed to know?  For Tamara and for her mother, the question was not why, rather the question was “Is there justice for Pamela?"  They requested that Judge Zuniga impose a just sentence.

Judge Zuniga asked DA Jewett if he had any more witnesses.  He had none.  Ms. Leonida began her presentation.  Her first witness was Lyn Dyleski, the ex-wife of Kenneth Dyleski who is Scott Dyleski’s father.

Lyn Dyleski described Esther and Ken in their youth.  Esther was a hippie in San Francisco's Haight Ashbury.  Ken was a draft dodger who obtained a bachelor and masters degree in psychology at the University of Texas as he participated in the anti-war movement.  He believed the government had a file on him.  Ken boasted that he and his friends helped stop the Vietnam war.  Lyn said Ken analyzed everyone and frequently found others had problems.

Lyn met Ken in 1994 when he was living in Castro Valley.  He had lost custody of his daughter, and saw his son on Fridays because Esther had custody of Scott.  He worked two jobs and paid child support to his ex-wives, $300 per month for his daughter and $400 per month for Scott.

According to Lynn, Ken didn’t control his children’s behavior and blamed others when the kids misbehaved.  He did not take responsibility for them.  He fed Scott fast food.  She said Ken and Esther had a history of domestic violence and sometimes the police were called.  Ken took his children on vacations, but did not interact with them much.  He was obsessive compulsive and lacked social skills.  He talked about himself a lot and engaged in repetitive behavior, regarding matters such as food preparation.

At this point, DA Jewett objected on grounds that the testimony was irrelevant. “This is about Scott Dyleski. Attacking Dyleski’s father is irrelevant.”

The judge overruled the objection and nodded to the witness, “You may proceed.”

Lyn continued, her voice rising with anger as old memories flooded back. “Ken could not carry on two-way conversations.  I learned not to socialize with him.  Scott and his sister survived vacations with their dad by talking with each other because Ken seemed to ignore them.  Yet Scott was so nice to his dad, so unfailingly respectful.  He believed his father deserved respect because he is his father. But Ken abandoned Scott as a teenager."

“Esther married and moved to Petaluma and Ken saw Scott less often.  Then Esther moved to Lafayette and lived on unimproved land.  In my opinion it was uninhabitable."

“I visited them in Lafayette.  The Curiels and Esther liked to live off the grid.  They had a port-a-potty.  There was a trailer that was attached to the back of a truck.  There were beer bottles around.  They had parties on weekends.  Esther and Scott lived in a lean-to during about a year of Scott’s early adolescence. The Curiels had a relative in Concord, and they went there for showers."

“When Scott was a toddler in pre-school, he spent time in Esther’s Costume Shop. Esther made him costumes such as dinosaur costumes; I believe Scott created a uniform to hide. He could not compete with kids in the rich Lafayette school district, so he had a different wardrobe. He may have dressed in black, because it was an artistic avenue available to him. Scott talked about his friends he socialized with on the Curiel property. I suspected they were adult friends of the Curiels and Esther."

“Scott was a Boy Scout and played in Little League. He was a good catcher. If Esther knew that Scott was teased in school, she never told Ken. Ken asked Scott after he was arrested if he had been bullied at school and he admitted it."

“According to Ken, Esther didn’t like to hear that she was less than the perfect mom."

“I wanted Scott to live with us. I owned a big house. But Ken didn’t like the idea. He said Scott could choose where to live, and he chose to live with his mother. I don’t think Ken wanted to pay for the custody of Scott. Ken stashed money away for his retirement. He said, he wanted to “get out from under Scott."

“I knew I would be the one who would have to spend time with Scott if he were to live in my home."

“At some time the Curiels owned a deli shop. Esther may have had an interest in it. Scott got up at 4:00 a.m. to work at the shop before going to school.  I believe he had sleep deprivation.  Ken would not help Scott more financially."

“After Scott’s sister was killed, Scott visited Ken and me.  I didn’t want to interfere with Scott’s time with his dad.  They went to a Chinese restaurant and talked.  At that time Ken was taking classes at Diablo Valley College and he took Scott with him.  Ken liked to walk trails and they walked trails together.  Ken didn’t show interest in things Scott did.  I asked Scott to bring his GED certificate and he was happy when I praised him.  Sometimes I went with Ken on his visits with Scott."

“I want to tell you about the Scott that I love.  He knew all the names of all the dinosaurs.  He liked baseball, and went to Oakland A’s games.  He joined Little League and became a catcher even though he took up baseball later than the other boys.  He joined Boy Scouts and wanted to be an Eagle Scout."

“I raised two teenage girls.  I know teenagers.  Scott was the most polite and respectful teenager I knew.  He was considerate to everyone. He was always respectful to his father.  He was concerned about his mother.  After he was imprisoned, he was glad I was talking to his mother.  He had selfless concern for his mother.  He was interested in animal rights.  He made a full time commitment to being a Vegan. Scott has met many goals he set for himself.  He showed no self pity.  He did not get in trouble.  He did not trouble his parents with his own struggles.  He obtained his high school degree early and went to college.  He wanted to be a sound engineer and found a college he would attend for that purpose.  Now that he is in prison he has not lost his focus.  He has no self pity at juvenile hall.  He can only get high school courses at juvenile hall and wanted his Diablo Valley College texts.  I helped him with that.  He wants to obtain a bachelor degree in prison."

“Scott shows grace under pressure.  He maintained a pleasant attitude during his year in juvenile hall."

“Scott loved his sister.  However they did not see each other much.  Esther was afraid his sister would harm him.  Scott rose above this situation, however, and loved his sister."

“Scott’s letters to me from prison are delightful.  He is well-spoken and has good communication skills."

Then Lyn Dyleski stopped praising Scott and suddenly she launched into a different topic – her own distress.  She said the media hounded her and subjected her to rude comments and she spent thousands of dollars to move out of the Bay Area.  For months she was in shock and had to put a new life together at age 59.  She is not bitter or negative to Scott because of this and still loves Scott and can forgive what happened to her.  She said, “I will continue to love him and get to know him better through letters and visits. I will support his efforts, even financially if he needs that.”

Why?  Why did Scott murder Pamela if, in fact, he did?  Lyn Dyleski did not get to that question.  She was called as a witness to corroborate the Sentencing Memorandum that Ellen Leonida had filed.  In her memorandum, Leonida asserted that both of Scott Dyleski’s parents were emotionally abusive to him.  So Lyn Dyleski dredged up her memories about Ken and Esther and their children and recounted those memories which depicted Scott’s difficult life.  She also talked about his achievements – obtaining a high school degree early, and attending college, participating in Boy Scouts and Little League.  He did obtain $400 per month in child support from his father.  Was the abuse of Dyleski so bad that it could drive him to commit a brutal murder filled with rage?  He seemed to have overcome the effects of any abuse at least to the extent that he had participated in activities and achieved scholastic goals which were normal for his age.  There was no testimony from Lyn Dyleski that he suffered physical or sexual abuse.

Next, Leonida called witness Carl Brown, the leader of Dyleski's Boy Scout Troop.

Mr. Brown said, “I knew Scott since age 11.  He is a kind honorable person.  This is a tragedy.  I don’t want a double tragedy.  This issue has been tried emotionally in the papers.  Why has he done it?  I don’t believe I could misjudge his character to such an extent, that I could say he did it.  I don’t believe he did it.  He was always outside – different.  But he handled himself well. In spite of the fact he was short and small and easy to pick on, he was very tolerant of people.  I don’t believe he would have done this."

“Step aside from emotions.  Get to the facts of the trial.  This doesn’t make sense.  Don’t let it be two tragedies!”

Why?  Carl Brown simply didn’t believe Scott Dyleski committed the crime, because he felt he knew Scott’s character.  This testimony matched the theme Ellen Leonida tried to use at trial in Dyleski’s defense – the “good boy” defense.  She put several students and teachers on the stand to testify that it was not in Scott’s character that he could kill someone.  Obviously, the jury didn’t believe it.  It didn’t work.  Did Leonida think it might work this time.  The good and sincere Boy Scout leader Carl Brown testified as to what he believed to be true.  Why? Carl Brown didn’t have to even ask that question.  Scott was of good character.  He knew it.  That was it.

Next, Carl Brown’s wife, Linda testified.

She said, “Today is not about guilt or innocence. I have known Scott since age eleven. He is kind and gentle. He did not fit into Lafayette. Please give him a chance.”

Why? Linda Brown said so little that the question hung in mid air.

Next, Viola Bolick testified. She appeared to be a teenager.  She said, “I met Scott in first grade and we attended Stanley Middle School. He was good to me.  He did not lose his temper in the face of insults and harassment.  He was gentle and cared deeply.  He and I hung fliers at the mall regarding animal rights.  If he is offered parole he will remain kind and gentle.”

Why?  Well, Scott never harmed this beautiful young girl.

Leonida said she had no more witnesses.  Once again the black hole of no evidence appeared!  After Jewett presented his case in chief at the trial for approximately four weeks, Leonida presented her defense case which lasted eight hours and consisted only of character witnesses.  When Leonida finished interviewing her last character witness at the trial, one of the jurors blurted out “Wow!”  The audience and media could not believe that she had no expert witnesses to present.  That was it?  The black hole of no evidence had appeared!  There was essentially no defense, except the “good boy” defense.  And it didn’t work.  Now on the day of sentencing she did the same thing – she presented just four character witnesses and brief testimony, this time using the “good boy” defense and the testimony of an ex-wife of the father to establish Dyleski was somehow abused emotionally.  No expert testimony.  No explanation of why Dyleski did what he did or did not do.

It was time for Judge Zuniga to impose sentence. She asked counsel to argue.

DA Jewett said, “This is an emotional tragedy.  But today is not about compassion but about justice.  The death he caused goes beyond Pamela. He deceived others.  There was no mercy shown by Scott Dyleski. No mitigation.  This murder was not because of a drug transaction or a crime of passion – it was a cold premeditated act.  He left his mark or signature – the sign of the fruit of his labors (the “H” or “T” carving on Pamela Vitale’s back). This goes beyond the killing itself."

“Mrs. Lyn Dyleski seems to say the sins of the father are visited on the son.  But some parts of Scott are only from him – his art, costumes, his look.  Mrs. Lyn Dyleski can’t have her cake and eat it too. The other shoe has to fall.  If good seeds are bad seeds as well?"

“As for lack of remorse, identification was the defense. It is understood that there could be a compromise of rights on appeal with an admission."

“However at trial, there was testimony by Kim Curiel that two days after the murder, Scott said to her regarding Pamela’s death, “Those things happen." 

Jewett concluded by saying that because of his age, Scott Dyleski is getting mercy in that he is not eligible for the death penalty. “He committed a truly depraved act, with a complete disregard for life.  There is plenty of aggravation in this case and the result could be a death penalty if he were eligible by age.  However, the District Attorney's office acknowledges that the death penalty does not apply to persons under age 18.”

Jewett stated that the case is about justice, not about the hope of rehabilitation.  The Vitale family and Dan Horowitz were stripped of hope. Jewett recounted Mario Vitale’s letter.  He said, “Where is justice if 25 years from now, the family must re-visit October 15 by attending a hearing of the Board of Prison terms and revisit that and say he should not be released. Your Honor, let them leave today with the certainly that he will never see a free day again. It is the People who ask for Justice – and the only judgment consistent with the ends of justice is life without the possibility of parole.”

Leonida then rose and addressed the court. “I ask for mercy, not that he not be punished, but that the sentence not be life without the possibility of parole.  We are asking that after 25 actual years he can appear before the parole Board.  There is remote possibility he could be released after the parole board hears from everyone.  In 2002, only six persons convicted of first degree murder were on parole in California.  We are asking for the slimmest possibility.  I do not intend the court have sympathy for Scott Dyleski rather than for Pamela Vitale."

"Your Honor, It is just that the court can make a decision to allow the possibility of parole in the context of this being a special circumstance case regarding a juvenile.  At age 16, Scott Dyleski was not as responsible as an adult."

"The Supreme Court of the United States has held here can be no death penalty for juveniles" At this point, Leonida read from the case out loud and it is quoted here in this article, directly from the case text:

It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg & Scott 1014—1016. As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 701—706 (4th ed. text rev. 2000); see also Steinberg & Scott 1015. If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, we conclude that States should refrain from asking jurors to issue a far graver condemnation–that a juvenile offender merits the death penalty. When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. Supreme Court of the United States, Roper v. Simmons, No. 03-633

Leonida asked the judge to find that the minor’s character can be reformed.  She urged the judge to look at the circumstances of his life. She said, “There is more to this kid than the worse thing he’s ever done.”  She also said, "Scott Dyleski made a terrible mistake.  There is always the possibility that he can mature into a responsible, productive citizen."

Suddenly Leonida was actually again implying Dyleski was guilty, just as she had done in her Sentencing Memorandum!  Was this a tactic to obtain mercy at sentencing or her sincere conviction?

Leonida continued, “Mrs. Dyleski flew down from Seattle and explained Scott’s circumstances.  There is a letter to the court from a student who said Scott is the only boy who did not tease or hurt her.  A mother who has known him since age 5 says he can turn himself around. There are letters from two jurors who ask for the parole option.  Juror No. 8 said Dyleski is a teenager and not accountable as an adult, has talent, could mature and should be given a second chance."

“In juvenile hall, Dyleski took advantage of educational opportunities and tutors others.  He did not get into trouble.  He is bright, and talented, with no history of violence.  He has never been arrested.  It is impossible to say at age 17 that he is completely unredeemable.  There is no guarantee he would even be released from prison."

DA Jewett rebutted: “Two things: First, the purpose of sentencing is punishment not rehabilitation. The focus of the penal statutes is punishment. Second, justice is not giving hope and the slimmest of opportunities to Dyleski. It is not justice to give Dyleski hope when he gave no hope to Pamela and so many people.”

Leonida replied, "The Department of Corrections and Rehabilitation is also a department of Rehabilitation.  His will not be a determinate sentence.  There is no release date.  He would have to prove to the parole board that he should be released.  Only six first degree murderers have been released by the board.”

The Judge called a brief conference with the lawyers, and then took the bench again.

First Judge Zuniga gave the reasons for her sentence choice.  She noted that the community was concerned about giving a life sentence without parole to a person who committed this crime at age 16.  She said these people did not hear the trial and hear all the evidence. They  didn’t realize that at trial it was proved that “This was a deliberate planned murder.  Dyleski concealed his identification, by using a mask, gloves and a coat.  There was a scene of horror for Mr. Horowitz to see his wife dead at the doorway.”

The judge directed her comments to Dyleski, “You planned this, Sir.  A very brutal murder.  Any murder is brutal.  But this case was very brutal and shown by the autopsy and photographs.  This killing was full of rage and hatred and very personal.  It takes lots of personal animosity and rage to kill as you did.  While dying at your feet, you stabbed her and added to her pain."

“Photos of the wounds showed you live out your fantasies, like one of your idols Jack the Ripper.  You carved a symbol into her back, proud of your work."

“I understand how two jurors ask that I show you mercy.  It is hard for jurors and the audience to reconcile your appearance and demeanor in court with killing.  You went to some of the best schools in an affluent community in Lafayette.  Although you were teased, you had friends and we heard you were intelligent, artistic and kind.  Letters to the court state you had intelligence and maturity.  I can understand why people struggle to understand what it is that caused you to do this.  I understand the focus on your age and immaturity.  They look for justifications—to blame others, your father, your life style."

“Sir, I understand the need to find justification for what you did."

“People don’t want to understand and accept that people who look like you, the man living next door, can be so evil."

“Why in this day and age does our society produce someone like you?"

“You inflicted terrible pain on this family and on Pamela Vitale. You destroyed this family."

“I was appalled your former stepmother (who has lot of animosity toward her ex-husband) who equated her position with that of the Vitales and Daniel Horowitz -- that she has forgiven you.  She is not in the same position as Daniel Horowitz or the Vitales (to grant forgiveness). Shame on her!"

“Yes, we are products of our environment. We have free will. We make choices. You made the choice to murder Pamela Vitale."

“There is a concern of this court – I don’t think any attorney or jurors saw it.  You had a lack of affect during the course of the trial.  The only time you had any emotion was only when the autopsy photographs were shown and Dr. Peterson described the injuries to Pamela Vitale.  You leaned forward and your mouth fell open while the photographs were on the wall.  Absolutely fascinated by your handiwork."

"Sir, you do not deserve to live among decent people. Your commitment is going to be for life.”

“Mr. Jewett and Ms. Leonida, do you incorporate your statements into the record?"

Mr. Jewett agreed. Ms. Leonida, added, Lyn Dyleski did not state her experience was in any way comparable to that of the Vitale family or Mr. Horowitz.

The judge replied curtly, "Ms. Leonida, that is not what the witness testified."  Leonida then incorporated her statements into the record.

The judge continued, "Arraignment for judgment and sentence is waived and there is not legal cause why judgment should not now be pronounced.  The court's judgment is now imposed.  Count One - Penal Code 187 Murder in the first degree, with enhancements of Penal Code 190.2(a) (17) and Penal Code 12022(b) (1) found true -- the sentence is life without the possibility of parole.  For the enhancement of Penal Code 12022(b) (1) -- one additional year sentence imposed.  Regarding Count Two, Penal Code 459/460(a) residential burglary -- the middle term of 4 years is imposed and is stayed and will become permanent upon completion of the life sentence.  Pursuant to Penal Code Section 296 defendant is to provide samples, specimens and fingerprints.  Defendant is to pay restitution to the victim fund and/or restitution fund.   The court retains jurisdiction over restitution.  A restitution fine of $200 is imposed.  The defendant has 342 days credit for time served with no good conduct time because this is a life sentence."

“Mr. Dyleski you have a right to file a Notice of Appeal within 60 days. Mrs. Leonida will take care of that?"

“Yes, Your Honor.” Leonida replied.

The judge concluded: “You are remanded to the custody of the Sheriff to be transported forthwith to the Department of Corrections and Rehabilitation.”

A sheriff took Dyleski’s arm.  Scott Edgar Dyleski walked with a long stride out of the courtroom.  He looked straight ahead and did not look at his parents who sat in the front row.  His next stop will be San Quentin’s processing center.

But, why?

DA Jewett did not delve into the question, although he probably thought about it many times.  At trial he argued that Dyleski committed the crime out of rage or because he mistakenly thought he was attacking Karen Schneider, against whom he committed identify and credit card fraud.  Now DA Jewett spoke only about justice for the family of Pamela Vitale.  And his six witnesses made powerful, classy, compassionate presentations

Why?

Deputy public Defender Leonida wanted to blame Scott’s parents.  She presented three witnesses who said Dyleski was a “good boy” who couldn’t have killed anyone and the ex-wife of Ken Dyleski who recounted what she knew.  Her knowledge was limited because information about Scott’s life with his mother was not presented.  Esther Dyleski wrote two letters to the court, presented over Leonida’s objection.  She wanted to testify, but Leonida barred her from testifying and shouted at her the day before sentencing, “Anything that comes out of your mouth hurts your son”, and “Judge Zuniga does not like you”, and “I do not want you saying Scott is innocent.”  Esther Dyleski was crushed she could not speak out for her son. For Esther, the question “why” is important.  She wants to know everything that happened that day and why.  Still she does not know.  She wants to help her son on appeal.  Because of the gag order imposed upon witnesses she could not see her son for a year. Since the trial ended and the gag order was lifted, she visited with him frequently.

As for Judge Barbara Zuniga, she sensitively explored the question "why".  She noted that the community and two jurors were concerned about the sentence of life without possibility of parole and about the question "why".  She had no answer to the question in terms of any type of psychological analysis.  However, she had the power to answer the question why by giving a judgment that gave justice.  Not hope. So much hope died with Pamela.  Not mercy.  The judge stated the killer gave Pamela no mercy.  For many, the question "why" transformed itself into a cry for justice.  Judge Zuniga gave the maximum sentence in response.

Only Scott Dyleski knows the answer to the question – why?  If he did not commit the crime, he either lacked the courage to testify or his attorney controlled him and demanded he not testify because she felt the cross-examination of DA Jewett would devastate him anyway.  There is also the possibility he was afraid to testify because of some other pressure upon him.  If he did commit the crime, then given the total lack of defense as presented by Leonida, it seems Dyleski would have been better off throwing himself on the mercy of the court, telling the truth, and asserting any mental defense he had, given his youth.  Dyleski had a psychiatric history and used marijuana and absinthe.

According to Jason Dearen, in his article of September 26, 2006, Dyleski sentenced to life without parole, the probation report stated:

According to the probation report prepared for his sentencing, Dyleski's father notified Alameda County Child Protective Services twice — once in 1994 and again in 1995 — that Scott Dyleski was neglected and emotionally abused when in his mother's care. No action was taken on either claim, according to the report.

Dyleski told a juvenile probation officer that between the ages of 10 and 12 he smoked heroin and marijuana regularly. "Maybe once or twice a week for a couple of months," the report states.

Before this acknowledgment, Dyleski was believed only to have dabbled with pot and absinthe, a liquor-like spirit made from the herb wormwood. Dyleski also admitted he had experimented with cocaine, ecstasy and LSD.

Dyleski also claimed his stepfather abused him when he was between the ages of 6 and 9. Neither his mother, Esther Fielding, nor his father, Kenneth Dyleski, ever admitted any physical abuse.

Despite this history of abuse and drug use, no mental defense was ever presented by Leonida.  She only presented the “he’s a good boy” defense.  Her alibi defense, which she promised to the jury in her opening statement, was based on the testimony of Fred Curiel . That alibi crumbled when, on the day of trial, Fred Curiel abruptly stated he couldn’t remember if he saw Scott Dyleski at all during the morning of the murder, let alone give an exact time that Dyleski was in his home, and not at Pamela Vitale's home.  Leonida apparently did not pin Fred Curiel’s testimony down, one way or the other, with declarations or tape recordings before she embarked on a defense almost totally based upon the alibi.

Leonida’s only remaining defense, promised in the opening argument, was that there was third-party DNA inside the bloody glove found in Dyleski’s duffel bag.  Yet she never presented one DNA expert to explain that contention or to rebut any DNA testimony presented by the prosecution.  She never showed that some of the statistics presented were actually meaningless in their import.  She never presented an expert to rebut the shoe imprint found at the scene and on Pamela Vitale’s shoulder.  That partial print of a Land’s End shoe, according to the prosecution’s expert, could not be matched with certainty.  Yet, it was the basis of the conviction.

Leonida did not interview the jurors.  Why?  She never filed a motion for new trial. (Note and compare: Susan Polk, briefly represented by Daniel Horowitz and convicted of second degree murder for the death of her husband while representing herself, has been given a six month continuance, a transcript of the trial and the appointment of a prominent lawyer, in order to file a motion for new trial in January 2007.)

According to the Contra Costa Times, Leonida had conducted the defense of only one murder case before the Dyleski case.  However, she did win a drunk driving case wherein it turned out the victim was driving on the street the wrong way.  Yet, the public defender’s office put the inexperienced Leonida up against one of the top homicide DAs in California.  She simply could not or did not present a defense.  Her cross-examinations consisted of just a few questions.  Time of death was never established, for example, through her cross-examination of the coroner.  Testing of third-party DNA was not conducted, even though blonde hair was found on the back of the deceased.  Leonida abandoned all expert testimony in favor of character witnesses in a defense that was fatally flawed.

However, it is apparent that in order to defend Dyleski, Leonida adopted a more or less Goth appearance.  See a current photograph above and compare it to the photograph of her on the Contra Costa Public Defender’s website seen here on the left side of this paragraph. Why did she go so Goth in appearance when there was only testimony at trial that her client Scott Dyleski gave up Goth about a year before the murder?  Her appearance reminded the jury daily of Goth as she sat at the defense table next to her clean cut client.  And DA Jewett referenced Goth practices and lifestyle as a context for Dyleski’s motive to murder.  This was a trial----- not a costume ball!

The September 28, 2006, the Contra Costa Times in an article by Bruce Gertsman announced that just three days after the sentencing of Scott Dyleski to life in prison without parole Ellen Leonida resigned from the Contra Costa Public defender's office to "move on" (Click to article.).

One more why!

Everyone has a why question that is most important to him or her.

Someday sitting behind bars, age 17 or 45 or 70, even if his appeals succeed, Scott Edgar Dyleski will have to ask himself the question "why?".  It is a question that will haunt him -- the one question that he could not or would not answer when he had the opportunity to speak up for himself at a time that could have helped those who suffered the most by this act of unspeakable horror.


Dyleski's attorney accepts new job

Leonida leaves Public Defender's Office to join private firm

By Bruce Gerstman

Contra Costa Times September 28, 2006

The attorney who defended Scott Dyleski on murder charges said Wednesday that she has resigned from the Contra Costa Public Defender's Office to join a private practice.

"This is a really great job, but I did it for long enough. I wanted to leave while I still love it," said Ellen Leonida.

Her last day is Friday, three days after 17-year-old Dyleski, in one of the highest-profile cases ever prosecuted in the county, was sentenced to life in prison without parole.

Leonida said she made her decision without regard to the outcome of Dyleski's trial.

She is joining a San Francisco-based firm founded by two other former Contra Costa County public defenders, Maitreya Badami and Tala Hartsough.

Leonida said she decided to leave her job in January but wanted to work with Dyleski all the way through trial.

"I really like Scott. I know that he's been convicted of this murder, but I very strongly believe that a person is not reducible to the single worst thing they've ever done," Leonida said.

The 36-year-old deputy public defender stood out in the conservative courtroom with her hair dyed jet black and often wearing brightly colored shirts under dark suits.

Contra Costa County Public Defender David Coleman said he selected Leonida to take the Dyleski case so jurors could see her seriousness amid the media frenzy that surrounded the case.

"I thought that her credibility would be enhanced for this reason," Coleman said. "Ellen exudes qualities of professionalism and appreciation for subtlety and emotional maturity."

Leonida started working at the office in 1997 as a law clerk after she graduated from UC Berkeley's Boalt School of Law.

Url: http://www.contracostatimes.com/mld/cctimes/news/local/15627779.htm