NEWSMAKINGNEWS.COM

Click. THE MURDER OF PAMELA VITALE

WHY THE MEDIA CAN'T REPORT MUCH ON SUSPECT SCOTT DYLESKI

by Kathryn Joanne Dixon

On October 11, 2005, high profile attorney Daniel Horowitz laid out the evidentiary foundation of his defense of accused murderer Susan Polk by using his laptop computer to PowerPoint the issues and display supporting evidence.  The Contra Costa Coroner’s pictures of 70-year-old Felix Polk were displayed on a big screen in the courtroom.  Horowitz meticulously pointed out each knife wound and questioned whether any caused death.  The Sheriff’s chain of custody log containing Susan diary and emails was displayed as Horowitz pinpointed its lapses.  Horowitz concluded by playing a tape of Dr. Felix Polk, well-known Berkeley psychologist, addressing a 1988 conference on satanic ritualistic child abuse.  Anger and hate spewed from the eerie voice on tape as it blasted through the courtroom.  Felix Polk threatened to murder those he accused of molesting his eldest son:  

Multiple personality.  My son is a multiple personality. He has at least three clear identities.  He's a girl.  Why is he a girl?  Because he was dressed as a girl, professionally made up, then raped on stage in front of an audience.  So he's a girl.  He's a killer.  He has the eyes of a killer...less so now, much less so now.  He has a wonderful therapist and I like to think that he has Susan and I as well. He's a killer because he was looked at by people who were killers.  And he's...he has their glance.  He's also seen killings.  And he has himself.  And he's a wonderful little boy.  I'll forget about some of the other dreams.  About the murder of his mother.  About being taken away.  (Clears his throat)

My rage in omnipresent present.  I wake up with it every morning...every morning.  And my son, Adam, doesn't have to be choking for me to do that.  I am enraged.  My fantasy, of course, is to kill them.  And I'm a rather moral person.  I want to kill them.  You don't hear that too often on television either.  But I won't.  Not now. 

Horowitz projected passionate conviction although speaking very gently and carefully.  He identified Susan Polk as the victim of "the cult of Felix", a cocaine-using paranoid schizophrenic who controlled his family with psychological and physical abuse.  Pamela Vitale, Horowitz's wife of 11 years and the high tech expert for his law firm sat proudly in the audience monitoring what her husband said could be “the case of a lifetime". 

Four days later at 5:53 p.m. on October 15, 2005 a Contra County deputy sheriff heard Daniel Horowitz scream over a phone line, "Help me, she's dead!"  Horowitz had entered his trailer home on a hill in Lafayette and found his wife brutally murdered. 

On October 17, 2005, Judge Laurel Brady declared a mistrial in the Susan Polk case, citing the impact of excessive media coverage on the jury because of the murder. 

On October 19, 2005 a 16-year-old neighbor of the Horowitz's was arrested for Pamela Vitale's murder.  

Unnamed sources in law enforcement and Horowitz' neighbors in-the-know immediately leaked a great deal of information about the young suspect, Scott Dyleski.  Various sources claimed that (1) Dyleski was a member of a satanic cult, (2) the murder was the result of an argument between the victim and the suspect over a stolen credit card scam involving attempted marijuana farming, (3) Dyleski had sex with his teenage girlfriend soon after the murder, (4) Dyleski spent over an hour showering in the Horowitz home after the murder, and (5) Dyleski hid his bloody glove in his mother's vehicle ultimately resulting in her arrest.  Deputy D.A. Hal Jewett charged his mother, Esther Fields with the crime of accessory after the fact.  In exchange for the D.A.’s dropping that charge, she agreed to speak truthfully about her son's conduct.  

The media ate up and spit out every bit of information they could obtain about the sensational case.  Newspapers and audio and video media captured witnesses’ observations and opinions. Day after day Nancy Grace interviewed the grief-stricken Daniel Horowitz as she trudged the obscure trails of the Lafayette hills reporting on the case.  She conducted an exclusive tour of Pamela’s and Daniel's unfinished Italianate dream home, the trailer where Pamela died and the surrounding land.   

Leaks from law enforcement were allowed to continue until much of the reading and viewing public were convinced that the Contra Costa County Sheriff’s investigators and the District Attorney had the sole guilty party behind bars and that party was Scott Dyleski.  The prosecution then announced that he would be tried as an adult thereby removing the specter of a case hidden behind juvenile law rules and regulations.  It was announced that he would face a maximum term of 25 years to life in prison if he was found guilty. 

On November 21, 2005 the other shoe fell. Contra Costa Superior Court Judge David B. Flinn issued a gag order in the case of People v. Scott Edgar Dyleski  (Case No. 3-219113-8)  (Click to read the online file in this "extraordinary case".)

This order states:  

IT IS HEREBY ORDERED AS FOLLOWS: 

The Office of the District Attorney, those investigating the case on behalf of the People, the Defendant, counsel for the Defendant, those investigating the case on behalf of the Defendant, Judicial Officers and Court staff, Sworn Peace Officers and Public Officials, and those who have been advised that they might be material witnesses in the matter or who have appeared and testified at either a preliminary examination or a grand jury investigating the matter, and all agents, attorneys or other representatives of such witnesses, shall refrain from making any out-of-court statement as to any of the following:

1. The nature, source, substance or effect of any purported evidence alleged to have been accumulated or to exist in regard to this matter.

2. The existence, or possible existence, of any document, exhibit or other physical evidence, the admissibility of which may have to be ruled upon by the court.

3. Any opinion or public comment as to the weight, value or effect of any evidence as tending to establish either guilt or innocence.

4. The identification or possible existence of any other person that might be alleged to have committed or participated in the commission of the subject crime.

5. The identification of any potential witness to the crime, or his or her probable testimony. 



Nothing herein shall prohibit any of the following:

1. The defendant, or those acting upon his behalf, from unequivocally asserting his innocence of the crime of which he is accused.

2. Factual statements of an accused person's name, age, residence, occupation, educational status or family identification.

3. The date, time and place of the arrest of an accused.

4. The nature, substance and text of the charge and a description of its parameters.

5. The scheduling and result of any stage of the judicial proceeding held in open court.

6. Any witness discussing any matter in connection with the case with any attorney representing either the People or the Defendant, or investigators on their behalf, or an attorney from whom they might seek legal advice. 

Judge Flinn asserted the rationale for this order is to guarantee the right of Dyleski to a fair trial before a panel of jurors untainted by
extensive publicity.  

Such orders, however, are extraordinary.  The November 22, 2005 Contra Costa Times article by Bruce Gerstman reported:

The county's presiding judge, Thomas Maddock, said last week that a Contra Costa judge has not issued a gag order in at least 40 years.

For example, in the capital trial including the death penalty phase trial of Justin Helzer in Contra Costa Superior Court in 2004 and in the death penalty phase trial of his brother Glenn who pleaded guilty, there was no gag order issued.  Yet the brothers were tried for the brutal murders of Selina Bishop of Woodacre, daughter of a prominent musician, her mother Jennifer Vallarin, a friend of her mother, James Gamble, and Ivan and Annette Stineman of Concord.  Evidence of dismemberment of bodies, a torture-type killing of the elderly Stinemans and the Helzer’s motivations inspired by occultish beliefs was vigorously presented to the juries.  Harold "Hal" Jewett, who is now the deputy D.A. in the Dyleski case argued that Helzers willfully embraced a war on Satan which commanded them to murder the victims.  After an emotional, graphic trial accompanied by daily publicity the jury finally ignored their pleas of mental illness and imposed the death penalty on both Helzer brothers.  

According to the June 25, 2004 San Francisco Chronicle article by reporter Denien Bulwa: 

Just hours before embarking on a vicious killing spree that left five people dead, two brothers from Concord and their former roommate kneeled and declared war on Satan, said the prosecutor trying the murder case.

Contra Costa County prosecutor Harold Jewett emphasized that declaration during his lengthy closing argument Monday in the capital murder trial of one of the brothers, 32-year-old Justin Helzer.  

The pact, made July 30, 2000, had been recounted to the jury two weeks ago by the former roommate, Dawn Godman, who testified for the prosecution. Jewett said the pact proved Helzer made a clear choice, and had a clear motive, to assist in a murder-extortion scheme dubbed "Children of Thunder" that was hatched by his older brother.

"This case comes down to one simple idea: power," Jewett said. "That's what the war on Satan was all about."

In another famous case, People v. James Richard Odle, 32 C3d 932, tried in Contra Costa County in 1982, the California Supreme Court retained venue in Contra Costa County, despite extensive pretrial publicity about the “cop killer” Odle.  No gag order was issued in that case and it was not at issue before the Supreme Court.  However the issue of change of venue utilized one of the same standards used by Judge Flinn to issue the gag in the Dyleski case – “reasonable likelihood of a fair trial.”   In the Odle case, regional publicity was extensive and sensational.  In 1980, James Richard Odle was charged with the stabbing death of Renta Aguila and the shooting death of Floyd Schwartz, a Pinole Police officer who attempted to apprehend Odle three day after Aguila’s murder. Aguilar was attacked and stabbed in her home, placed in a stolen van from which she managed to escape, and she died on the front porch of a neighbor's house.  Schwartz was shot to death he tried to apprehend Odle.  Deceased Officer Floyd Schwartz is the father of Amber Schwartz Garcia who was kidnapped in 1988 and is still missing. 

The Supreme Court noted the extensive publicity in the Odle case:  

In the two weeks following the killing of Officer Swartz, press and other media coverage was extensive. There was television coverage of the manhunt and apprehension of Odle.... Odle submitted over 150 newspaper articles in support of his motions (for change of venue). Because of the number of papers involved, the articles are necessarily repetitive.  Odle points to several facets of the reporting in this case which, he claims, is different from the "run of the mill" murder case. He notes that his name was used in headlines more than 70 times, indicating an expectation of name recognition and establishing him as a notorious person.

Despite such extensive publicity, the Supreme Court upheld an order denying a motion for change of venue from Contra Costa County and stated, in part:

However, despite the fact that the capital aspect of the case is mentioned in almost every article, the reporting is no different in degree or intensity than the usual reporting of other homicides of the kind involved here. While several articles contained information that might be potentially prejudicial, they received very limited circulation, and the reporting on the whole was not inflammatory, sensational, or hostile. As we noted in Martinez, however, the controlling consideration is whether the net effect of the coverage was to suggest to persons who are potential jurors that Odle was the actual killer.”….  It is, however, difficult to envision an eventual capital case which will not receive extensive media coverage, at least for a short period of time. If the early publicity attendant on a capital case alone suffices to raise a doubt as to the likelihood of a fair and impartial trial, a change of venue would perforce be required in every such case. 

In upholding the denial of the motion to change venue, the Supreme Court concluded:  

“Whether ruling on a motion to change venue well before trial or during the voir dire, the standard remains the same -- the reasonable likelihood of a fair trial in view of the pretrial publicity.”

By comparison, in the Dyleski case, Judge Flinn rejected the San Francisco Chronicle's argument that the standard of a “clear and present danger” to a fair trial was the First Amendment Constitutional test regarding any gag order.  Instead, Judge Flinn used the less strict standard used to test change of venue in the Odle case  -- “reasonable likelihood of a fair trial”.  

Judge Flinn stated in his order: 

It is often the case, as it is in the instant proceedings, that there exists a dispute as to just what burden must be met before a "gag order" of any sort is placed by the court. Some urge that a "clear and present danger" must be established while others urge that a lesser standard can be imposed.  In Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, a 5 to 4 majority of the United States Supreme Court upheld the test of "a substantial likelihood of material prejudice" to be adequate, at least as to orders relating to attorneys.

In Younger v. Smith (1973) 30 Cal. App. 3rd 138, 162 the court appears to put this alleged 'difference'  in standards of proof aside, commenting that "a reasonable likelihood of an unfair trial is, in itself, a clear and present danger to the administration of justice."

Why did Judge Flinn issue a gag order in the Dyleski case when to do so was extraordinary given the local Helzer and Odle cases? 

In holding there was "a reasonable likelihood of unfair trial” Judge Flinn made four findings:  

1. The court finds that this matter has generated an extraordinary amount of pretrial publicity; an amount, in fact, that is very rarely seen in the instance of a murder of one individual.

 It is perhaps ironic that in a time when the internet has become for many a primary news source the internet itself, with its extensive indexing capabilities, allowed the parties seeking a protective order to show the geographic depth of interest in this matter. This search indicates publicity throughout both the state and the country as well as coverage on Court TV and MSNBC. Such renders the possible remedy of change of venue to be of minor significance.

2. The atmosphere thus far in this proceeding has been highly charged leading to an environment that, if continued, makes it difficult at best to keep courtroom decorum and preserve a fair trial.

The vast majority of courtroom seats are taken at each hearing with representatives of the media. A reading of the press coverage of the matter, as provided in Exhibit A, shows a general approach to any news on the matter that virtually presumes that the defendant is guilty of the crime with which he is charged.

3. The nature of the case is such that an early termination of this publicity, without court intervention, appears unlikely.

The matter arose in an unusual and interest drawing setting. The husband of the victim, Daniel Horowitz, was at the time of the alleged crime himself in the midst of defending a defendant in a "high profile'' murder trial. That trial, People v. Susan Polk, had just recently commenced in another department of this court and was closely followed by the press. The defendant in that action has chosen to give numerous interviews to the media, publicly acknowledging that she killed her husband and contending that she did so in self-defense and in response to "years of abuse" by him. That case, too, has generated nationwide media interest. Mr. Horowitz has recently indicated that he will continue with his representation of Mrs. Polk. 

4. Although no court proceeding in this matter has yet included any evidence either as to the defendant (other than his age) or as to any motive for the killing, there have been numerous public statements as to both.

Newspaper accounts have described the defendant as a teenager who "wore eccentric, dark Goth clothing”, was "ambitious", lived a "dark life", and was a “non-conformist", wore "a long trench coat" and even was involved in "devil worship".  As to motive it has been reported that the defendant was involved in a "credit-card scam" and that he was buying equipment to "grow marijuana".

Do Judge Flinn’s four findings stand up to legal scrutiny?  That is a question for the court of appeals and Supreme Court.  On January 11, 2006 Attorney Gloria Allred who represents a witness, Scott Dyleski's teenage girlfriend, filed an appeal to the First District, with an appearance by the San Francisco Chronicle.  Her petition for writ of mandate, prohibition and request for stay were denied on January 12, 2006 (Case No. A112615).  On January 23, 2006, Attorney Allred appealed this decision to the Supreme Court of California (Case No. S140816) and on February 15, 2006 her petition for review was denied. Justice Kennard was of the opinion the petition should be granted and Justice George, C. J., was absenta and did not participate. The San Francisco Chronicle did not appeal to the Supreme Court.

The question remains: Do Judge Flinn’s four findings and his protective order stand up to public scrutiny?   

In fact, his order and findings do shed light on some of what’s really going on in the Scott Dyleski case and in the Susan Polk trial.

The gag order obviously makes it very difficult for the media – ranging from the New York Times to the local press and internet bloggers  to obtain any accurate information from authorities such as the District Attorney, law enforcement, defense counsel or from witnesses.  In other words, all those entities that so eagerly sought out the media to make certain that their leaks pointed to the guilt of suspect Scott Dyleski were now conveniently insulated by Judge Flinn's precedent setting gag order. 

In his gag order, Judge Flinn defined “witnesses” as “those who have been advised that they might be material witnesses in the matter or who have appeared and testified at either a preliminary examination or a grand jury investigating the matter, and all agents, attorneys or other representatives of such witnesses”.

Apparently at any time, the trial judge, law enforcement or the District Attorney can just advise someone he or she is a witness and he or she is barred from speaking to the press and to others.  A scenario which could test the parameters of the order is the following:  A person named X has some information about the existence of another perpetrator besides Dyleski.  X calls a TV commentator and gives a tip.  X has not appeared at the preliminary hearing or before the grand jury and has not been advised he or she is a material witness.   Is X now a witness, bound by the gag order?  Can X now be held in contempt by Judge Flinn?  The order may freeze X’s right to free speech and the right to freely speak of a reporter about what X knows. 

This is exactly where murder defendant Susan Polk now finds herself as she awaits trial on February 27, 2006.  She now represents herself.

On January 20, 2006, Susan Polk fired the defense team of Daniel Horowitz and Ivan Golde alleging that Daniel Horowitz revealed information to her in attorney/client discussions that implicate him in the murder of his wife Pamela Vitale.

On a Geraldo At Large broadcast on Monday, January 30, 2006, Susan Polk said that Horowitz made statements that could help Dyleski's defense.  She is a potential defense witness in the Scott Dyleski/Pamela Vitale murder trial.  Her disclosures and her demeanor make it apparent that she has not been made aware of Judge Flinn's gag order or she has chosen to ignore that order.  In either case, why has not Judge Flinn moved to silence Susan Polk and make her comply with his gag order?

It was apparent that Daniel Horowitz was very aware of Judge Flinn's gag order when he said that he had no comment on the Dyleski case and he would not be allowed near the courtroom because he was a potential witness for either the prosecution and/or the defense.  On Geraldo At Large, Ivan Golde, Horowitz’ co-counsel on the Polk case, vigorously proclaimed Horowitz’ innocence in regard to Polk’s allegation that he, by his own statements to her, implicated himself in the death of his wife.  No witnesses appeared on television in defense of the deceased Felix Polk, who had in the past been strenuously defended in national media by Oakland lawyer Barry Morris.  Did he feel inhibited by the Dyleski gag order too?

Speech appears to be frozen in the Dyleski case. Only Susan Polk is speaking out.

The San Francisco Chronicle’s attorney pointed out the danger that Judge Flinn’s gag order could freeze free speech in his November 8, 2005 memorandum:

The Supreme Court in Nebraska Press Association v. Stuart, 427 U.S. 539 set forth the proposition that because a gag order enjoins individuals from uttering words not yet spoken, it is a classic "prior restraint" on speech.  As a prior restraint, a gag order bears a "heavy presumption against Constitutional validity."  Prior restraints are the "the most serious and the least tolerable infringement on First Amendment rights."  As Chief Justice Burger's opinion for the Court in Nebraska Press declared, "A prior restraint . . . has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time.

It is clear that an agenda of Judge Flinn’s order is to preclude the press and others from gathering evidence from other witnesses, ranging from the admission of another perpetrator involved in the offense to some person who may not even realize they are a witness, yet who holds a  piece of the puzzle.  Judge Flinn let that cat out of the bag when he stated in the gag order that the parties and witnesses he names are to refrain from giving extrajudicial statements about:

4. The identification or possible existence of any other person that might be alleged to have committed or participated in the commission of the subject crime.

5. The identification of any potential witness to the crime, or his or her probable testimony.

Someone doesn’t want to generate leads about the identification of other perpetrators, participants or even witnesses. 

Here are some questions potentially gagged by Judge Flinn’s gag order which he may be attempting to prevent from being raised and/or answered.

QUESTION ONE – MOTIVATION

The District Attorney and law enforcement have never revealed the alleged motive of Dyleski in the murder of Pamela Vitale Horowitz. 

To justify his gag order, Judge Flinn expressly cited two possible motives:

Although no court proceeding in this matter has yet included any evidence either as to the defendant (other than his age) or as to any motive for the killing, there have been numerous public statements as to both Newspaper accounts have described the defendant as a teenager who "wore eccentric, dark Goth clothing”, was "ambitious", lived a "dark life", was a “non-conformist", wore "a long trench coat" and even was involved in "devil worship".  As to motive it has been reported that the defendant was involved in a "credit-card scam" and that he was buying equipment to "grow marijuana".

Deputy District Attorney Jewett has not confirmed an occult motive in the Dyleski case.  Jewett is not shy about trying cult cases.  Jewett tried the cult adhering Helzer brothers impressing the jury by fervently turning on a reciprocating saw in front of them to demonstrate how the victims' bodies were destroyed. 

Deputy D.A Jewett and law enforcement have never confirmed that Dyleski's motive in murdering Pamela Vitale was his involvement in a “credit-card same” or buying equipment to “grow marijuana”.  Early press reports indicated that Dyleski fraudulently used a credit card to buy some marijuana equipment and that he had it delivered to Pamela Vitale’s home on the day of the murder and then killed her when he went to retrieve the equipment.  It seems unusual that a 16-year-old would engage in a blood thirsty killing of a woman who discovered his petty crimes.

Deputy D.A. Jewett has not indicated there was a sexual motive behind the murder of Pamela Vitale. On November 17, 2005, the Associated Press reported the released Coroner’s report said that:

“Her body was found wearing a white, short-sleeved T-shirt, black skirt, purple underwear and white socks. The skirt had been pulled up around her hips. Evidence to determine whether she was sexually assaulted was collected, but those results weren't listed in the autopsy report.”

At the trial of Richard Allen Davis for the death of Polly Klaas, Sonoma County prosecutor Greg Jacobs utilized the coroner’s finding that Polly’s skirt was pulled up on her corpse, as part of the circumstantial evidence to convict Davis of murder in the first degree. The prosecutor contended Davis’ motive in committing murder was to engage in an attempted lewd and lascivious act. 

Apparently Deputy D.A. Jewett intends to keep the world in the dark as to what Scott Dyleski’s motivations were, until perhaps there is a preliminary hearing, now set for February 14, 2006, or more likely, when a grand jury indictment issues and is unsealed.  A grand jury has already been convened in the Dyleski case. 

Finally, Jewett, who usually gags himself voluntarily, complicated the issue of Dyleski’s motivation when he explicitly stated in a declaration filed on October 28, 2005 in support of application for modification of protective order that:

On Tuesday, October 25, 2005, in the afternoon, a witness appeared before the grand jury and offered testimony in the above entitled case.  By prior agreement between Ms. Gloria Allred and me, the witness maintained possession of a cell phone during her testimony so that she could consult with her attorney, Ms. Allred, if anything should develop during her testimony that required the assistance of counsel.  The following morning, I advised Ms. Allred of certain aspects of her client's testimony, including extremely material details about the disposition of certain items of physical evidence, and a very, very, dark aspect of the relationship between the witness and the defendant.

It is well-known that this client referred to in Jewett’s declaration is a teenage woman who was involved in a relationship with Dyleski and that she has been called before the grand jury to testify.  As to the "very, very dark aspect of the relationship" between the woman and Dyleski – that is for Jewett to know and for the rest of the world to find out.

QUESTION TWO – IS PAMELA VITALE’S MURDER TIED INTO THE SUSAN POLK MURDER TRIAL?

Was Pamela Vitale killed on Saturday October 15, 2005 because of the aggressive opening argument her husband gave on October 1, 2005 in defense of Susan Polk?   Was there a hit on Daniele Horowitz' wife in order to cause him to drop out of the Polk case?  Was the hit really meant for Horowitz?

On November 17, 2005, even though his wife had been murdered, Horowitz announced to the court that he would continue to represent Susan Polk.

The Contra Costa Times November 18, 2005 article by Bruce Gerstman, reported:

Brady set December 2 (2005) for a hearing on a trial date. At that hearing, the judge will also hear arguments about what Brady described as a potential conflict of interest.  Horowitz's co-counsel Ivan Golde said after Thursday's hearing that some of the same sheriff's pathologists and deputies investigated the killings of both Felix Polk and Pamela Vitale.

Thus, there was some indication by Judge Laurel Brady that there may be some conflict of interest which would bar Horowitz from representing Susan Polk.  What are the conflicts? 

Public and press speculation is made red hot by the fact that Dyleski had some connection to so-called Satanism and Goth.  In his opening argument Horowitz played a tape to the jury of Dr. Felix Polk lecturing an audience about his belief that his 18-month son Adam, was subjected to satanic ritual abuse.

Issues of Felix Polk’s connection to the Dyleski case become radioactive when the questions about the psychology/psychiatry matrix in the Bay Area are raised.  Dr. Felix Polk was touted as an alleged expert in adolescent psychology, who treated many adolescents in both Alameda and Contra Costa County.  Some of his young patients were subjects of the local criminal justice system.  Did Dr. Polk know other psychology practitioners who share or did not share his passionate belief in satanic ritual abuse of children?  Adolescent Scott Dyleski allegedly had some background of acting out in the Goth or Satanic lifestyle?  Was he treated, or treated inappropriately by someone who was connected to Felix Polk? 

Probate and civil cases in Contra Costa County involving the Polks $2 million community property estate contain allegations that Dr. Felix Polk's twin brother John Polk and certain attorneys and other citizens have depleted the estate without court orders and/or accountings.  To obtain a conviction of Susan Polk and jail her for life would remove the last obstacle to raiding the entire estate.

Finally the question of motivation would not be complete without asking the question:  Was Pamela Vitale herself the target of the hit?  She was her husband’s data manager in the Susan Polk case and in other important cases. She had a distinguished career in data management and marketing.  Is it possible that Pamela Vitale had access to crucial data that someone wanted to disappear?  She, after all, was the expert in computer technology.  Isn't it possible that she came across something so important that someone engineered a hit on her to eliminate the disclosure of certain secrets?

QUESTION THREE – HAVE THE COMPUTER CAPERS IN THE SCOTT DYLESKI AND SUSAN POLK CASES, MUDDIED THE WATER TOO MUCH, OR ILLUMINATED LAW ENFORCEMENT’S MOTIVES TOO WELL?

Judge Flinn’s gag order will serve to shield law enforcement from revealing its direct involvement in tainting both the Susan Polk imminent murder trial and the upcoming murder trial of Scott Dyleski.  

Daniel Horowitz raised the first specter of computer confusion in his opening argument in the Susan Polk murder case.  Horowitz disclosed that vital physical evidence was missing.  The computer of Felix Polk had vanished from the Polk home the night of his death or shortly thereafter.  Horowitz also stated that Susan Polk's computer had been tampered with apparently while in the custody of law enforcement.   This brought into question whether or not the device had been maintained in a valid chain of custody.  Experts found it impossible to get the computer to boot up.  The inability to properly access the machine made it impossible to retrieve the diaries, emails and other data Susan Polk had stored on the computer.  This problem denied the defense the ability to show Susan Polk's state of mind just prior to the confrontation between her and her husband severely hampering her ability to present a case of self defense.

The unexpected murder of Pamela Vitale Horowitz complicated the computer issues when Daniel Horowitz's computers were seized by the very same Contra Costa County Sheriff who had possession of the Polk computers.  The glaring conflict of interest that resulted from this seizure could not be ignored.  A good part, if not all, of Susan Polk's defense was contained on the computers belonging to Daniel Horowitz and his wife Pamela Vitale. 

On October 22, 2005, the San Francisco Chronicle reported:  

An Orinda woman (Susan Polk) accused in another high-profile Contra Costa County murder case said Friday that the seizure of two computers from the home of her attorney, Daniel Horowitz, in the investigation of his wife's slaying could compromise her defense.

California Penal Code section 1524 provides that if law enforcement desires to seize the computer of an attorney, it must obtain an order from a judge requesting a special master be appointed to take the computer and be in charge of examining it.  There was no emergency situation at the time when Horowitz’s computer was taken.  A large force of deputies and police cordoned off the Vitale trailer and environs to protect all items.  The crime scene was in an isolated area and well protected.  The situation allowed adequate time for law enforcement to obtain an order authorized by a Contra Costa Judge on duty to request a special master to take control of the Horowitz computers in accordance with the penal code. 

A wiser alternative would have been to obtain a court order from the Contra Costa duty judge and turn over the Horowitz computers to the FBI-controlled Computer Forensic Laboratory located at the foot of the Dumbarton Bridge in Menlo Park.  This facility is available to retrieve computers and analyze their contents upon request by local district attorneys and law enforcement. 

Suspect Scott Dyleski's computer, found in his mother's home was also seized by the same Contra Costa County Sheriff employees.  Early press reports indicate that it may have contained data about illegal credit card transactions he used to obtain hydroponic equipment to grow marijuana. 

To further fuel the speculative fires, Judge Flinn’s gag order in the Scott Dyleski case is based, in part, on a finding directly related to the Susan Polk case.  In Finding No. 3, Judge Flinn states:

The nature of the case is such that an early termination of this publicity, without court intervention, appears unlikely.
The matter arose in an unusual and interest drawing setting. The husband of the victim, Daniel Horowitz, was at the time of the alleged crime himself in the midst of defending a defendant in a "high profile'' murder trial. That trial, People v. Susan Polk, had just recently commenced in another department of this court and was closely followed by the press. The defendant in that action has chosen to give numerous interviews to the media, publicly acknowledging that she killed her husband and contending that she did so in self-defense and in response to "years of abuse" by him. That case, too, has generated nationwide media interest. Mr. Horowitz has recently indicated that he will continue with his representation of Mrs. Polk.

Since Judge Flinn issued his gag order, of course, Susan Polk has fired the Horowitz and Golde legal defense team.  However, the confidentiality of Susan Polk’s data contained on Horowitz’s computer, wherever it may now be located, is still vital to her defense.

QUESTION NO. FOUR  AND QUESTIONS THROUGH AD INFINITUM.

There are so many questions raised now that Judge Flinn’s gag order is in place, that they are difficult to enumerate.  New questions are inevitable until trial commences and even after it ends when everyone will wonders “what was gagged” that the public didn’t hear at the Dyleski trial? 

In the meantime, one of the most obvious questions is:  Did Scott Dyleski have the mental and physical capacity to commit the crime by himself if, in fact, he was involved at all?  Did a 16-year old 130 pound, 5’2” boy have the capacity to inflict the enormous and grievous wounds upon Pamela Vitale, who by every account and especially by the coroner's report put up a valiant defense?  So far, a fair appraisal of Dyleski’s life shows no indication that he is a murderer, other than his current arrest.  He has no prior arrests for violence.  No one came forward to say he beat them up or tried to kill them. 

As for questions ad infinitum, many of these and some answers may be found online.  In fact, Deputy D.A. Hal Jewett’s Exhibit A which he presented to the judge as evidence in order to obtain the gag order was noted on November 16, 2005 at 1:30 p.m. by the Clerk’s minute order and docket, in a handwritten notation:

D.A. submits web search paperwork marked as Ex. A. 

Deputy D.A. Jewett’s submission was successful!  In finding No 1 of the gag order, Judge Flinn states:

It is perhaps ironic that in a time when the internet has become for many a primary news source the internet itself, with its extensive indexing capabilities, allowed the parties seeking a protective order to show the geographic depth of interest in this matter. This search indicates publicity throughout the state and the country as well as coverage on Court TV and MSNBC. Such renders the possible remedy of change of venue to be of minor significance.

Because of the gag order, the press and public cannot ask Deputy District Attorney Hal Jewett if his indexing was that of Google, Yahoo or Dogpile.  So far the public must only speculate. 

WHAT WILL BRING AN END TO DENYING THE PUBLIC THEIR RIGHT TO KNOW?

The San Francisco Chronicle opposed the imposition of the gag order in the Dyleski case, as did attorney Gloria Allred who was gagged as to what her witness might say, but not gagged as to commentary on other matters.  The Contra Costa Times was tellingly absent from the fray.  It appears the Chronicle and Ms. Allred did not appeal Judge Flinn’s gag order.  The gag order is final until sometime after trial when the appellate court may or may not lift it until all appeals are exhausted.  At that time, years from now, it presumably will not matter to as many people.

Beyond the many questions the press and public must now answer in the age of “the internet itself, with its extensive indexing capabilities”, there looms a Constitutional crisis: the public’s confidence in the judicial system.

The history of the courts, so far, in refraining from imposing gag orders goes against the spirit and letter of Judge Flinn’s order.  The Dyleski case is no Michael Jackson case, in which such a gag order was imposed.  The Dyleski case has not been a media circus so far.  In this age of the internet many murder cases will go national.  It is normal to expect national television shows, now including many cable television shows, to be interested.  The first case to be reviewed by the United States Supreme Court in which a gag order was subsequently imposed was the trial of Dr. Sam Sheppard charged in the murder of his wife.  That trial was a media circus.  Finally attorney F. Lee Bailey convinced the court by voluminous evidence that Dr. Sheppard had been convicted in the press, so that there was no possibility that the jury could be impartial. The publicity in the Dyleski case is a far cry from that endured by Dr. Sam Sheppard. 

Judge Flinn had alternatives to imposing a gag order – he could have ensured that a very large panel of jurors was made available from the pool of about one million residents of Contra Costa County.  Not everyone in Contra Costa County knows about Scott Dyleski or follows the case.  Such persons, numb to the press, internet and TV, have been successfully sworn in as jurors in other high-profile cases.  A motion to change venue would have been an option, and it is likely to be pursued in any case by Dyleski’s attorney as a matter of course.

Instead of using less restrictive means of controlling pervasive publicity to ensure an impartial jury, Judge Flinn decided to exercise absolute control over the flow of information.  If the press and public now ask questions about the Scott Dyleski case or questions who else might have been involved in the murder of Pamela Vitale they will receive the same answer from everyone -- “Sorry, I’m gagged” -- essentially denying the public their right to know and Scott Dyleski his right to respond to the leaks that preceded Judge Flinn's gag order. 

It is hard to believe that Dyleski is being protected by this gag order. The heavy-handed gag order makes it next to impossible for the press or citizen-sleuths to find any accomplices Scott might have had, if any, by obtaining answers from the usual reliable sources in-the-know.  The guilt of a minor such as Dyleski can be mitigated to some degree if, in committing a crime, he was under the control or influence of other another dominate party(s) or adult(s).  When the media and the public are unable to uncover other accomplices because of a gag order, how can a teenager in jail and deprived of his gagged parents' assistance hope to find justice?  

It appears the gag order has made the Susan Polk case and Scott Dyleski case into faith-based justice — the media and the public is supposed to just have pure faith that the judge, the District Attorney and law enforcement are keeping information away from them in order to deliver a fair and impartial trial to Scott Dyleski.  At least that is what Judge David Flinn is trying to convince those awaiting justice in these two trials.

But such faith-based and gagged justice is not what the Supreme Court has mandated in the past. Judge Flinn is pushing the envelope of the application of the First Amendment in Contra Costa County.

The Supreme Court, in the case Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555 (1980), upheld the basic right of the public and press to attend public jury trials of a criminal defendant.  In doing so, the court held that that in First Amendment cases of the press and public obtaining access to the court and in cases of the press right to news gathering, there is not only an issue of whether a defendant will have a fair trial, but an issue of whether or not the proceedings will be considered fair by the public. Yes, whether the public considers a trial fair is a matter essential to American society and to civilization, and when the public makes a decision about whether a trial is fair, "seeing (and hearing) is believing".  The court said, in part:  

Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done - or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner. It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's criminal process "satisfy the appearance of justice,” and the appearance of justice can best be provided by allowing people to observe it.

Thanks to Judge Flinn’s gag order, the question from now on will be:  What did he gag, who did he gag and when did he gag it?  And the most important question of all is:  WHY did Judge David Flinn REALLY issue a gag order in the murder trial of Pamela Vitale?  Was it to insure a fair trial for Scott Dyleski or to assure that he would be the only one convicted? 

Kathryn Joanne Dixon © February 2, 2006


THE FINAL OUTCOME OF ATTORNEY GLORIA ALLRED'S APPEAL TO THE SUPREME COURT REGARDING THE DYLESKI GAG ORDER.

Docket (Register of Actions)
ALLRED v. S.C. (PEOPLE)
Case Number S140816
Date Description Notes
01/23/2006 Petition for review filed Gloria Allred & Allred Maroko & Goldberg, petitioners
Michael D. Seplow, counsel
 
02/01/2006 Record requested  
02/17/2006 2nd record request via email
 
02/21/2006 Received Court of Appeal record accordian file
 
02/24/2006 Answer to petition for review filed People, Real Party in Interest Violet M. Lee, counsel
 
03/06/2006 Reply to answer to petition filed Petitioners Gloria Allred, etal
 
03/15/2006 Petition for review denied Kennard, J., is of the opinion the petition should be granted. George, C.J., was absenta and did not participate.