No body makes murder tough sell
By JAMIE JONES, Times Staff Writer
BROOKSVILLE -- The search for a little girl's grave will continue in a field west of Brooksville on Monday with one of the most respected cadaver dogs in the country.
Authorities hope to find the remains of Megan LeeAnn Pratt, a 3-year-old they believe was killed by her stepfather in 1991 and then buried behind a trailer off Pointview Road. Their investigation began last month after Megan's grandmother called with details about the girl's alleged killing.
If the search is unsuccessful, the State Attorney's Office will have to decide whether to press charges against Jesse James Schober or his wife at the time, Vickie.
To detectives, the case seems simple. They say Schober, of South Carolina, recently admitted to inflicting the abuse that led to Megan's death and therefore should face charges. So far, he has not been arrested.
To prosecutors, the case appears problematic.
"This is a complicated case with some novel legal issues," said assistant state attorney Don Scaglione. He is awaiting a full review of the evidence before deciding how to proceed.
Among prosecutors' top concerns is whether they can win a murder conviction without a body.
Building a circumstantial case
Scaglione and his colleague, Bill Catto, have worked only one bodyless homicide case -- that of Kenneth Ezell, accused of killing a Hernando man who disappeared in 1996.
Catto said it was the most difficult homicide he had ever tried because he had no body or murder weapon.
The situation could be the same if Megan's case goes to court.
Without her remains, prosecutors would have virtually no forensic evidence to prove that she was dead, much less that she had been killed.
They would have to show, and make a jury believe, that the little girl was born and then vanished, and that her parents most likely killed her.
In essence, they would build a circumstantial case.
That's not necessarily a bad strategy, attorneys say.
"There is no magic difference between direct and circumstantial evidence," said Mark Dwyer, an assistant district attorney in New York City. "Every case has circumstantial evidence, and it can be overwhelming."
Dwyer is working on the appeal of a case built almost entirely on circumstantial evidence -- that of Dr. Robert Bierenbaum, whose wife disappeared from their Upper East Side apartment in 1985.
Authorities long believed that Bierenbaum killed his wife in a jealous rage, rented a plane and dumped her body in the Atlantic Ocean. But they had little evidence.
"There was no body, nobody saw him do it, nobody heard him do it, no one saw him get rid of the body," Dwyer said.
The case languished for years until prosecutors decided to go with what they had: circumstantial evidence that Bierenbaum's wife feared her husband and that no one else in the world appeared to have a motive for killing her. They also proved Bierenbaum had rented a plane about the time of her disappearence, which he had lied about for years.
The jury bought it.
Bierenbaum, a remarried plastic surgeon, was convicted in October 2000 of second-degree murder.
In Megan's case, prosecutors appear to have much more than they did in the Bierenbaum case, Dwyer said. Namely, the statements from Schober.
Authorities say Jesse Schober admitted to inflicting the abuse that killed Megan and that neither Schober nor the girl's mother called for medical help after Megan had been hurt. Authorities said the Schobers left the girl in a bedroom for several days before burying her in the woods.
Authorities will not say whether Schober gave a written statement, but said they typically tape their interviews.
"The statements give the prosecution something to work with, but you want to see how reliable and how consistent they are," said Brooksville defense attorney James Brown.
They may not be in this case.
Both of the Schobers have given conflicting statements. At different times, both have accepted and denied blame for the girl's death, prosecutors said.
Which statements would they use? And which words would jurors believe?
Statutes limit the possible charges
Statutes of limitations pose another hurdle for the State Attorney's Office in Megan's case.
Because she is believed to have died in 1991, prosecutors cannot consider potentially applicable charges such as second-degree murder, manslaughter and aggravated child abuse.
They have only one choice: first-degree murder.
It is tough to prove because, in this instance, prosecutors would have to show premeditation or aggravated child abuse.
Premeditation does not appear to apply from the statements the Schobers have given. And proving any kind of child abuse is difficult because parents do not typically abuse their kids in front of witnesses.
The lack of a body poses definite problems for a first-degree conviction, Brown said.
For such a conviction, juries typically want to feel that someone has in fact been killed. Prosecutors usually prove that with a body or forensic evidence.
"If they don't come up with some forensic evidence, I think it's just a tragedy that will never wind up in court anywhere," Brown said.
Spousal testimony problematic
Spousal privilege is another issue prosecutors are contemplating.
Under Florida law, a spouse cannot testify about private conversations inside the marriage if either side objects.
However, the law says the privilege does not apply when the alleged crime was committed against one of the spouse's children.
Nonetheless, attorneys agree the issue is a legal can of worms that provides fertile ground for appeals.
One of the best examples of spousal privilege problems involves convicted serial killer Oscar Ray Bolin Jr., who has been sentenced to death seven times for the murders of three women in 1986, including a bank clerk who was killed as she went to a post office in Land O'Lakes.
Six times, the Florida Supreme Court reversed the decisions, in many cases because it believed testimony from Bolin's ex-wife should not have been allowed because Bolin did not waive his spousal privilege.
"With spousal privilege, you're asking for problems," Brown said.
Search dog will hold the key
For now, Scaglione said he is not certain what will happen.
He is waiting to see whether the Michigan search dog arriving in Brooksville on Monday can sniff out any evidence of Megan's remains and provide a better glimpse of what happened to the blue-eyed girl who vanished 11 years ago. The dog will will arrive with Sandra Anderson of Canine Solutions Inc., a company that trains dogs for tracking and cadaver searches.
One of Anderson's dogs once found dozens of bodies and artifacts on an old Michigan battlefield and also found undetected Indian burials in the center of a Michigan town. The dogs apparently can detect small traces of gas given off by bone.
Sheriff Richard Nugent has promised to buy Anderson's dog a steak at Outback Steakhouse if it finds Megan's remains.
"Right now, we're banking on wonder dog," said Lt. Joe Paez of the Sheriff's Office.
Megan's grandmother, Sarah Mowery of South Carolina, hopes they find something. Not just for the sake of the prosecution, but for Megan.
"After all this," Mowery said, "she deserves a proper burial."
-- Information from Times files was used in this report. Jamie Jones covers law enforcement and courts in Hernando County and can be reached at 754-6114. Send e-mail to firstname.lastname@example.org.
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