Oral Arguments in Father Robinson's Appeal

On St. Patrick's Day the 6th Circuit Court of Appeals in Toledo, Ohio heard oral arguments in the appeal of Father Gerald Robinson's murder conviction. I wasn't going to miss it, and I didn't. But I left with a sinking feeling.

The small courtroom was standing-room-only by the time the judges entered; about thirty people were there to hear arguments on that one case, which in my experience is quite an unusually large crowd.

The three-judge panel, consisting of men who between them have 67 years of experience on the bench - Judges Peter M. Handwork, Mark L. Pietrykowski, and William J. Skow - allowed fifteen minutes per side for argument, as is customary, but which wasn't much time for this factually complex case. They asked only two questions, both directed to defense counsel.

The subject of the exculpatory DNA evidence did not come up - per se. But the prosecutor did make what I thought was a stunning admission in that regard.

During the defense attorney's argument, it was posited that another priest - Father Jerome Swiatecki - may have murdered Sister Margaret Ann Pahl. In rebuttal, the prosecutor pointed out that that the State was able to secure tissue from the late Father Swiatecki. They did a comparison to the DNA (the prosecutor dismisses it as "cellular material") found on the murder victim's clothing, and, stated the prosecutor today, "he was excluded."

It was hard to bite my tongue. If the State of Ohio excluded Father Swiatecki as the murderer because he did not match the DNA, then why wasn't Father Robinson, who also did not match the DNA, also excluded!?

Needless to say the prosecutor swiftly changed the subject. I don't think we'll ever get a straight answer to the question that has bothered me for two years now. Unfortunately the panel asked no questions about DNA. Later, the prosecutor remarked that the "cellular material" "probably" came from one of the men who bagged the victim's body for removal.

But that doesn't explain how the same male DNA profile came to be found underneath the fingernails of both of her hands as well.

And if it were true - if the DNA evidence came from an innocent third party - then how could it exclude Father Swiatecki? The prosecutor tied himself into a knot trying to explain away this DNA.

Judge Skow asked if the errors made by the trial lawyers for Father Robinson weren't "invited" errors. It was quite disheartening to hear this question; will the Court of Appeals actually rule that Father Robinson's trial wasn't fair, but he won't get a new one because his own lawyers were the ones who hopelessly messed up the case?

The only other question posed was again aimed at defense counsel. Judge Handwork asked: What does the defense make of the evidence that the letter-opener owned by Father Robinson fit neatly into a "defect" or hole in the victim's mandible bone? It was a good question reflecting preparation on the judge's part. Unfortunately, the panel may begin deliberations while laboring under the impression that this was objective and irrefutible evidence, rather than the opinion of an expert who "could not exclude" the letter opener as the object that made the hole. As defense counsel pointed out, "If 'it could not be excluded' could be a basis for guilt, God help us all."

I hope that the appellate court will not discount the only truly objective evidence in the case: the unknown male DNA profile recovered from the victim's underwear and fingernails.

"All the evidence is entirely consistent with Robinson being the killer," the prosecutor concluded.

Except, of course, for that pesky DNA.

Comments

[Inspector Winship]

Hopefully one of the judges' aids reads CLEWS, Laura, and some of your questions will be answered. Very odd case as it seems even the prosecutor must have doubts about the DNA by this point.

[Claudia Vercellotti]

I was at the oral arguments for the appeal. I was also at the trial, just about gavel to gavel.

A couple of questions in no order:

Where are you getting this idea that the DNA on the waist band of Sr.Pahl's girdle was the same as what was found under her nails? Is this in a news account? Is this in a brief? A book?

I do not recall that it was proven conclusively that the DNA on the waist band matched anything under her nails. Can you point to where this is?

Isn't it also true that the crime scene was completely contaminated by the Mayhem of rescue workers, police, staff, nuns and Fr. Swiatecki who adminstered last rights? Isn't it possible that the DNA that was recovered was transmitted from someone after she was found dead? Remember her waistband of her girdle was pulled down around her ankles.

Regarding the DNA, isn't it also true that the amount was so tiny that it couldn't be conclusively tested, much like the blood under the medallion of the letter opener that was in exclusive possession of Fr. Robinson? Wasn't there an initial test, but not a conclusive test because of the trace amount?

I listened to Donahue talk about the alleged missing scissors. Isn't it true that we'll never know if the scissors were:
1. never really there or
2. taken by the murderer or
3. swept up in the flurry of rescue workers, clean-up folks?

Their absence doesn't prove anything. Maybe Sister loaned them out? Maybe Sister had one pair and it was in her office? Maybe she pre-trimmed the candle wicks? Maybe someone borrowed them unbeknownst to her? Maybe the murderer took the scissors like the letter opener, with him as a trophy? Who knows -- but none of that conclusively proves anything, does it?

But what about what we do know? Why the elaborate cover-up? If this was really much to do about nothing, why the cover-up and desparate inteference run by top diocesan officials? Why would Fr. Robinson be more of a police target in the 1980's than Fr. Swiatecki if in fact authorities were trying to 'pin' this on someone?

What about State's exhibit 180? -- This was confiscated by the police in 2004, after they executed 2 no knock search warrants on the office of the Toledo Catholic Diocese. Have you read state's exhibit 180? I have. I don't think it's a leap of logic what was going on in that letter.

What about the testimony of Det. Marx and Lt. Kina? What about the involvement of Monsignor Schmidt?

What about the cover-up within highranking Toledo Catholic Diocesan officials (the Vicar, the Bishop even the case manager) regarding this case in 2003 when Jane Doe originally appeared before the review board? If this was really much to do about nothing, why try to coerce the silence of your own board and get them to refrain from contacting the police?

Why would the diocesan lawyer or any lawyer, as an officer of the court, ever advise any body of people to 'not go to police' and LIE to the review board in writing 2 TIMES, advising them that Jane's complaints were already reviewed by the prosecutor a year prior (which was physically impossible as she didn't implicate Robinson until June 11, 2003)?

Why didn't the defense try to exhume Swiatecki's body and prove your DNA claims?

Do you think Donahue was the first to bring out the Swiatecki theory? You'd be mistaken. Did you know the first was the Toledo Catholic Diocesan newspaper, page 5 of the May 7th edition?

What's notable about that is that no other media was reporting this, just the church paper. What's ridiculous about that, is the fact that the diocese publicly maintains this ludicrious policy of 'never identifying dead priests in the rapes and sodomy of kid' because of their 'inability' to harm anyone further and or defend themself. But, now this is the same diocese that loosely pins this on the dead priest? Why?

Laura, this is no JFK conspiracy here. Fr. Robinson is not a patsy for anybody's coup.

In Toledo, the police have been in colusion with the top ranking Diocesan officals for decades. Least we forget, the Chief of police and detectives as evidenced in the 3 part series by the Blade. Least we forget immediately following the arrest of Fr. Robinson, publicly on national televsion the prosecutor's office and police 'thanking the Diocese, particularily Fr. Billian' for all their help --- knowing full well the diocese had been no help but actively hindered the discovery of Jane Doe's letter. Why?

Chief Navarre went out of his way to say 'how helpful' the diocese had been ---- despite knowing that no diocesan offical ever turned over Jane Doe's letter that implicated Fr. Robinson to police or prosecutors -- thus delaying the re-opening for this case by nearly 6 months!

There were aspects of Fr. Robinson's trial, I actually felt sorry for him over -- one of his legal counsel couldn't keep his eyes open after lunch, another actively stumped on the record for his son who was running for office. Another still, draped herself over him, very animated while he basically sat there stoic (in the presence of the jurors), which amplified in contrast, his seemingly indifference to the subject at hand -- his own murder trial.

They're representation seemed far more 'Hollywood' at times than befitting for man on trial for his life (or at least his liberty).

But, none of that explains how Fr. Robinson was in exclusive posession of the murder weapon or the 3 people with seemingly no ax to grind (salt of the earth inasfar as I could tell), who identified Fr. Robinson outside the sacristy when he alleged he was in his room.

Perhaps the real tragedy is the fact that the police failed to secure Fr. Robinson's room after determining that they had recovered the murder weapon. Why didn't they do that? Why was Monsignor Schmit allowed back into an interrogation room to remove Fr. Robinson? Why was he never questioned again? Why was what then was purported to be 'Toledo's most notorious murder' of that time, wrapped up with an unsolved bow inside of 3 weeks? If this is how the most notorious murder is investigated, wouldn't you hate to see how the least notorious murder is investigated?

Are you aware of the sex crimes committed against kids here? Are you aware that to date, not one diocesan official has ever been charged? Did you know that the prosecutor and the diocese signed this toothless 'agreement' to operate in an open, honest and transparent way a year before Jane Doe came before the review board and the diocese still tried to hide this information from police?

If there is really nothing to this, why not allow the process to unfold? Why not cooperate fully to exonerate the cleric?

I would rather see a guilty man go free, than an innocent man convicted of something he didn't do, but I don't think this is the case.

I had absolutely no faith in the police and prosecutor's office going into trial because of the longstanding deference to the Bishop and my church (then and now), its cover-up of those crimes and the post Robinson arrest, comments that we all know were absolutely false.

However, if you had sat through the trial, day in and day out, I wonder if you would feel the way you do now?

[Laura]

Thank you for your questions. I invite them. I wish there were more discussion of the DNA. The prosecution tried to make all sorts of arguments to get the jury to ignore the DNA, and the prosecution was successful at bamboozling the audience into believing the DNA results were somehow not valid. It was malarkey. It had no basis in science. It's the sort of argument typically made by desperate defense attorneys, NOT by prosecutors.

Here are the answers to some of your questions.
1. How many DNA profiles were recovered from the victim's body and/or clothing and/or the scene of the crime?
Answer: Two. One profile belonged to the victim. The other profile was male, and it has never been determined who this male was.

Proof:
a. I watched the trial.
b. I read the defense brief.
c. "Meghan Clement, technical director with LabCorp, a private lab, said she also tested DNA found on an altar cloth placed on top of Sister Pahl's body. She said the DNA was a mixture that came from Sister Pahl and a man who was not Fr. Robinson.... Defense lawyers focused on DNA found on the altar cloth and the nun's underwear and fingernails that did not match Robinson but came from another man."
--WNWO, Toledo Channel 24
d. "Forensic scientist Meghan Clement of LabCorp, testified yesterday that the DNA samples from the underwear and fingernails contained a male chromosome that could not have been from Father Robinson." --Toledo Blade

2. Could the DNA come from contamination?
Answer: Contamination only *adds* DNA. It does not delete or replace DNA. Moreover, everyone who was in the chain of custody was eliminated. Please see this explainer:
http://laurajames.typepad.com/clews/2006/11/more_about_dna_.html

3. Wasn't the DNA test inconclusive?
Answer: Wrong. A DNA test either results in a profile or it doesn't. This one did. Both Father Robinson and Father Swiatecki were non-matches.

The prosecution never explained where this DNA came from. Why is it that for purposes of evaluating the possible guilt of Father Swiatecki, the prosecution posits that the DNA came from the killer, and eliminated Fr. Swiatecki because he did not match? But for purposes of evaluating the possible guilt of Father Robinson, the prosecution posits that the DNA came from someone who bagged her body? They can't have it both ways.

[HolyToledo]

Laura & Claudia Vercellotti,

Was DNA found under Sr. Margaret's fingernails? Or was DNA found with the fingernail sample?

Just curious.

[Laura]

HolyToledo:

I don't know if I can fully answer your question without a transcript, which I don't have (can't afford). Even then, the person who is in the best position to fully answer all questions regarding the fingernail DNA (such as exactly how the DNA was collected and why) is deceased (the doctor who performed the autopsy in 1980).

I can say this with confidence:

-During the autopsy, Dr. Fazekas clipped and preserved the victim's fingernails. Defense brief P. 7, referencing Trial Transcript Vol 9, pp. 291, 2318.

- All other known persons, meaning those men who could have contributed the DNA in 1980, and those men in the chain of custody from 1980 to 2004 (when testing was conducted), were eliminated as the source of the DNA. Defense brief P. 9, referencing Trial Transcript Vol. 9, 2252-2257.

The qualifier of course is "known" persons. At oral argument, the Prosecutor posited that the DNA "probably" came from one of the men who bagged the body for removal. I don't know if this man is (or could be) identified. I would love to know what effort, if any, the prosecutor made to identify and eliminate these men as the source of the DNA.

The question remains: Is there a plausible explanation, consistent with Father Robinson's guilt, for the presence of foreign male DNA in the fingernail clippings?

Given the above, and the redundant result on her underwear, I just don't see it.

[HolyToledo]

Laura,

You would love to know what effort, if any, the PROSECUTOR made to identify and eliminate these men. I'd like to know what effort the DEFENSE made?

However, a lame defense team does not automatically point to a defendant's innocence.

You also asked if there is a plausible explanation consistent with Robinson's guilt, for the presence of the foreign male DNA in the fingernail clippings? I think that the explanation offered by the prosecution might be that Robinson did not act alone. As a matter of fact in both the opening and closing arguments, the prosecutor referenced Sr. Margaret's killer(S). When he did it in the opening argument, I passed it off as nerves. But when he did it again in the closing arguments it stuck with me.

[Laura]

>I'd like to know what effort the DEFENSE made?

An excellent question. A fair guess - Zilch. But remember, the prosecution has the burden of proof, not the defense, and they failed to fill a gaping hole in THEIR case.

>the prosecutor referenced Sr. Margaret's killer(S).

That's purely speculative and an improper argument, and if defense counsel had been doing their jobs, they would have objected to that. But it's an interesting hypothesis. Maybe that's why they compared Father Swiatecki's DNA after they'd already arrested Father Robinson.

[HolyToledo]

So in addition to Swiatecki having an alibi that he was eating breakfast in the cafeteria when the Code (to the chapel) was called ... he was also also eliminated by DNA? How did they get a DNA sample of Swiatecki?

I don't think that the prosecutor was pointing to Swiatecki. The news reports before the trial suggested that they were looking into Fr. Chet Warren as being somehow involved. Word is that he was questioned extensively by the police, but that he had no known connection to the defendant other than the fact that Robinson was the Chaplain at Mercy Hospital and Chet Warren was the Chaplain at St. Vincent Hospital.

I'd love to know what the connection between Fr. Robinson and Warren might have been. I'd also like to know why Fr. Robinson was assigned to hospital chaplaincy. It was well-known that Fr. Swiatecki was a recovering alcoholic with many years of confirmed sobriety and that he was assigned to hosptial chaplaincy because it was considered less stressful than parish work. Fr. Chet Warren was assigned to chaplaincy at St. Vincent Hospital only after numerous complaints that he sexually abused girls while at an East Toledo parish and at St. Pius X Parish.

I heard that the reason for Fr. Robinson's assignment to the chaplaincy at Mercy was detailed in one of the search warrant documents but that a high ranking attorney in the prosecutor's office argued successfully to have it redacted to spare the defendant and the diocese embarrassment.

When you think about it, that's interesting. A high-ranking member of the team assigned to prosecute him was argued to spare Robinson embarrassment of having the reason for his assignment to Mercy revealed when the media petitioned the courts to have the search warrant documents released.

But ... most of all ... how did they get Swiatecki's DNA?

[Reader]

According to Fred Rosen's book on the case, the prosecution subpoenaed tissue samples of Fr. Swiatecki from St. Vincent's (stored from a medical procedure in the mid-1990s).

[Laura]

The prosecutor's own brief shows that Father Swiatecki's alibi had holes on either side of it. The prosecutor contends that the murder took place roughly between 6:45 and 7:50 a.m. Sister Gordon ate breakfast with Fr. Swiatecki "between about 7:15 and 7:30 A.M.", according to the prosecutor, referencing transcript pages 1653-1663. Sister Gordon testified that she discovered the body at about 7:40 a.m., though another witness places that time at 8:10 and 8:15.

That's not to say that I think he did it. But the prosecution could have made just as weak a case against Swiatecki as they did against Robinson. It is my (admittedly subjective) opinion that this was a crime committed for a sexual motive: overkill, disrobing and posing of the victim, missing jewelry - all classic signs of sexual motive.

[HolyToledo]

Laura,

I get that the burden of proof lies with the prosecution.

That being said, it isn't the prosecution's job to argue their case while they simultaneously argue the defense's case. I'm not advocating that it would be legitimate for them to withhold evidence that could exonerate Robinson, but it isn't their job to poke holes in their own case. That is the job of the defense.

Your arguments don't necessarily point to Robinson's innocence. At this juncture, they point to what a lackluster defense Robinson had.

I agree wholeheartedly that the murder had a sexual motive. The original news reports from the 1980s hinted at the possibility of sexual assault. The newer information revealed to the general public indicates that Sr. Margaret was sexually assaulted with some type of object and that there were laceration to her genital area.

Laura, you've not answered a question that I posed a long time ago to you ...

Don't you find it peculiar that the Toledo Diocese never breathed a word about this murder in the decades since Sr. Margaret was killed? Even in her retirement, Sr. Margaret was serving the church. She didn't just die. She was brutally murdered and her body was desacrated.

I've lived in the Toledo area my whole life and I never once heard the leaders of the local church make a plea to the public for help in bringing the murderer of Sr. Margaret to justice. That has always been a cause for at least curiosity to me.