Einhorn case front page Gelman interview in oldest US Law Journal
- FW: Empty chair Very interesting front page story on little heard details of
the legal uniqueness of the Ira Einhorn case as the first in abstential
trial in Pennsylvania history, defense evidence and position, etc., as
Norris Gelman, Einhorn's attorney since 1980, resigns due to expected
overwhelming time involvement and lack of money available from Einhorn for
http://www.palawnet.com (below article apparently not yet posted)
Copyright 2001 NLP IP Company - American Lawyer Media
All Rights Reserved.
The Legal Intelligencer
November 26, 2001
SECTION: FRONT PAGE; No. 103; Pg. p1
LENGTH: 2077 words
HEADLINE: The Empty Chair: The Ira Einhorn Absentia Case
BYLINE: By Melissa SeposOf the Legal Staff
Ira Einhorn has 30 days to find a new lawyer because Norris Gelman is
The 58-year-old attorney has not been paid a penny for any work he has
on the case since Einhorn fled in 1981. In addition, Gelman said he couldn't
neglect his current clients to handle the 20-year-old case.
"I gave up the case reluctantly, because this case would require a vast
amount of time," Gelman said.
Einhorn, a fixture of Philadelphia's 1960s counterculture, was charged
first-degree murder after the body of his girlfriend, Helen "Holly" Maddux,
found in a locked trunk in the closet of their Powelton Village apartment in
In April 1979, Einhorn's attorney, Arlen Specter, got Judge William
to release Einhorn on $40,000 bail. Seagram's liquor heirs Charles and
Bronfman posted the $40,000 cash for the bond. Soon after the bail hearing,
Specter relinquished the case because he was within months of becoming a
candidate for U.S. senator.
Gelman had been a defense attorney for five years when Einhorn's friends
chose him to defend Einhorn. Gelman had represented murder suspect Kenneth
Teator and worked on the 1978 Supreme Court case Commonwealth v. Gerrard
McKenna, which relaxed the death penalty waiver doctrine in capital cases.
the time, Gelman was best known for prosecuting Ronald Boelter in the DuBrow
Furniture Store murder when he was a Philadelphia assistant district
position he held from 1968 to 1974.
He knew Einhorn tangentially, having attended Penn Law School while
was there. Gelman had no previous interaction with Einhorn, who was known
his radical ideas and habits, and no significant relationships with his
The case, Gelman recalls, was attractive: a smart client supported
emotionally and financially by prominent people, an interesting prosecution
theory, and the chance to make the front page of local and national
For two years, Gelman compiled evidence to support his theory that
was too smart to leave Maddux's body in his closet for 18 months. He had
character witnesses who praised Einhorn's wit, intelligence and social
responsibility. Einhorn's friends all expressed disbelief that Einhorn, the
founder of Philadelphia's Earth Day, could have physically harmed his
Gelman had two bank tellers and a security guard who would testify they
Maddux in a bank at 40th and Lancaster six months after she reportedly
The clincher, Gelman said, was the forensics evidence from the FBI, the
commonwealth's own experts. The tests showed that fluid found in the trunk
held Maddux was not hers, meaning that she probably was killed elsewhere and
that her decomposed body was later placed in the trunk.
Gelman said, however, that he and Einhorn differed on the strength of the
case. While FBI tests showed that the fluid contained nothing organic - no
or human protein - the District Attorney's Office was "shopping around" for
expert to rebut the FBI tests, Gelman said. Einhorn, he said, viewed the
district attorney's pursuit of forensics lab tests that would support its
as grossly unfair.
Prosecutors had tests run at the National Medical Services lab in Willow
Grove, but the results were the same as the FBI's. Eventually, one
conducted tests that showed that the fluid did contain blood and human
materials. Gelman, however, found MIT experts who panned the testing
said the process provided ammunition for the defense.
As Einhorn continued to express concern to Gelman that he wasn't going to
receive a fair trial, the prosecution sent over an incomplete version of a
report by retired FBI agent J.R. Pierce, hired by the Maddux family to
investigate Holly's death.
The report, Gelman said, seemed disorganized and disjointed as if pages
missing and contained only evidence against Einhorn. Since the report came
pages unnumbered, it was hard to tell. Gelman went to court to secure the
version of the report, which when copied on a home copier had all the
cut off. He received the additional 20-plus pages of the numbered report. It
contained favorable facts to Einhorn's defense, he said.
In 1981, 10 days before his trial was set to begin, Einhorn fled the
so the trial was put on hold.
"I was hurt when he fled," Gelman said. "It wasn't the right thing to
For more than a decade, Gelman would hear reports of Einhorn sightings in
Dublin and Stockholm but gave little more thought to the case. During those
years, he handled major murder cases, such as the case of Catherine Spear
who was acquitted of murdering her husband after three trials, and the
"It was about 13 years since Ira had fled, and I was at my desk, and I
phone call from [Assistant District Attorney] Joel Rosen who said to me,
going to try Ira in absentia.' I said: You're going to do what? And I just
couldn't believe it," said Gelman in a recent Court TV interview.
The Philadelphia District Attorney's Office decided to try Einhorn in
absentia after a 1992 state Supreme Court ruling allowed such prosecutions.
was the first murder case tried in absentia in Pennsylvania. Prosecutors
witnesses were dying, memories were fading and evidence was getting stale,
adding that they had to move forward or risk losing the core of their case.
Gelman opposed the trial on the basis that Einhorn had no notice and that
whole trial was unfair. His objections were dismissed, and the judge refused
allow him to withdraw as Einhorn's counsel because he had been in the past.
"I argued against the absentia trial because not even the major Nazi war
criminals responsible for concentration camps were tried in absentia,"
Einhorn's two-week trial in Philadelphia Common Pleas Court before Judge
Juanita Kidd Stout was like most others, with one exception: the defendant's
chair was empty.
"We had a great judge," Gelman said. "It was as fair a trial as possible
under those circumstances. I had plenty of ammunition. I thought I had a
to good chance of winning."
Several elements of defending an empty chair diminished the edge Gelman
thought he would have.
"Ira couldn't testify, he didn't pick the jurors, and it wasn't his
And Gelman didn't have the tools most attorneys need to win. He had no
client, no family supporters and no emotion for the defense - nothing to
unfavorable characterizations of Einhorn.
Without Einhorn's presence, the jurors did not have to confront a human
being, the person whose life they would forever alter with their verdict,
Every day Gelman walked in to the courtroom, he said, he felt as if he
entering a fight - especially on days when things went wrong, such as when
bank security guard waffled on whether it was Maddux he had seen six months
after she was reported missing.
"Ira wasn't there, and the Maddux family was there. I had no emotional
support, and they had unbridled emotion. I never overcame that," Gelman
But no day felt like more of a struggle than when Rosen brought in the
steamer trunk - the one that had held Holly's body, the one found in
"When Joel Rosen opened the trunk, it was like opening a crypt," Gelman
"I realized then I had a problem. It was a nice move, and it was difficult
Gelman said Rosen was at the top of his game. But the commonwealth's
Gelman's opinion, was not the reason for the guilty verdict - it was the
Still remorseful about his decision decades later, Gelman said, "I picked
bad jury. O.J. Simpson's jury would not have found Ira guilty."
He wanted a jury capable of understanding the physical and forensics
evidence. "I'm afraid I didn't get too many smart jurors," he said.
"If the jurors had listened to the scientific evidence, if they could
realized that if he wanted to get rid of the body, all he had to do was move
body, not the whole trunk - that keeping a dead body was the last thing a
of his intelligence would do."
Gelman appealed the verdict to the Superior Court on the basis that the
used the preponderance of evidence standard instead of reasonable doubt when
convicted Einhorn and on the basis of the absentia trial itself. The
commonwealth opposed the appeal, and the court quashed it because Einhorn
still a fugitive.
Einhorn was found in southern France in 1997, but France refused to
him because he had been convicted in absentia and Pennsylvania had no law
assuring Einhorn a new trial. In Jan. 21, 1998, the Pennsylvania Legislature
enacted an extradition law, dubbed the "Einhorn law," specifically to grant
new trial to a person who is tried in absentia.
The Legislature enacted 42 Pa. C.S.A. Section 9543: "Extradition: If the
petitioner's conviction and sentence [are] from a trial conducted in his
absence, and if the petitioner has fled a foreign country that refuses to
extradite him because a trial in absentia was employed, the petitioner shall
entitled to the grant of a new trial if the refusing country agrees by
this provision to return him, and if the petitioner upon such return to this
jurisdiction so requests. This subsection shall apply notwithstanding any
law or judgment to the contrary."
The challenge of fighting what he believes to be an unconstitutional law
one that Gelman appears to enjoy; the Einhorn law was no different. Gelman
agreed to fight Einhorn's extradition.
Gelman provided limited legal counsel during the extradition fight, but
did help Einhorn find counsel in France. He also petitioned the European
of Human Rights to prevent Einhorn's extradition because Pennsylvania's
extradition statute violates the separation of powers principle and
Pennsylvania's courts have a responsibility to void a law that is repugnant
the U.S. Constitution, he said.
In his brief to the European court, Gelman wrote, "The constitutional
in the Einhorn law render it unenforceable. It is unenforceable because it
violates the constitutional separation of powers principles. The Legislature
cannot grant a new trial. It is as simple as that. The Legislature cannot
impair, alter, amend or vacate the final judgment of a court of law."
"I was philosophically attached to the extradition action," Gelman said.
think the new law is a violation of the separation of powers principle. It
apply to everyone. Do you think the Legislature would give Timothy McVeigh
our own serial killer Gary Heidnick a new trial? No."
Gelman cited U.S. Supreme Court Chief Justice John Marshall's remarks
judicial review of legislation from Marbury v. Madison, the use of judicial
power from the 1958 Pennsylvania Supreme Court case Commonwealth v. Garland,
the violation of the separation of powers principle from the 1977 state
Court case Commonwealth v. Sutley.
Despite Gelman's arguments, the new law and assurances from District
Lynne Abraham that Einhorn would not face the death penalty and would
new trial swayed the French court to extradite him in July 2001.
Gelman's recent decision to stop representing Einhorn was influenced by
approximate $40,000 it cost him for the 1993 trial.
"I am sad, but as an attorney you reach a point where you can't take on
more cases because your other work suffers," Gelman said. "I have given up
case reluctantly. In the best of possible worlds, if Ira's wife could raise
money required for this trial, the legal fees and expert witness fees, and
the court would accommodate my schedule so as to not handicap my other
I'd certainly be back in the case.
"The risk of trial is impairing my ability to service other clients, and
is something that has to be carefully, carefully considered."
Einhorn's next lawyer, Gelman said, should be hardworking, well prepared,
convincing and sincere. Those qualities and the experts will make a good
defense, he said.
"The expert testimony has tremendous potential, especially today. The
are much better than in the late 1970s."
Technical advances aside, whoever takes the case will have it easier than
Gelman: Einhorn will be sitting in the defendant's chair.
LOAD-DATE: November 28, 2001