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Einhorn case front page Gelman interview in oldest US Law Journal

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  • David Crockett Williams
    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
    Message 1 of 1 , Nov 30, 2001
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      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
      his defense.

      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
      attorney, a
      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
      methods. He
      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

      In Absentia

      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
      Scarfo murder.

      "It was about 13 years since Ira had fled, and I was at my desk, and I
      got a
      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
      Gelman said.

      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
      case, in
      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
      virtue of
      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
      receive a
      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
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