After many months, Contra Costa County Judge Barbara Zuniga responded
to the Petition
for Writ of Habeas Corpus for Scott Dyleski. It comes as no
surprise that the writ was denied, especially given Zuniga was the
judge in the original case. However, what is surprising is her cavalier
response that often proclaims information to be true about the case
that is not true or is grossly twisted to make the evidence against
Dyleski seem more concrete.
Zuniga even states that “DNA testing determined Vitale’s blood was not
only on the bag but also on the glove, mask, and shoes.” She fails to
mention that...
- Dyleski’s DNA is not on the glove or inside the glove, yet
another male’s DNA is inside of the glove.
- There is third party DNA found inside the mask in the form of
hair and the DNA relating to Scott matches natural areas where sweat or
saliva would be and there is no DNA from Scott's blood even though they
claimed he was kicked in the face (mouth or nose). He had no connective
tissue damage in his mouth and have a gouge on his nose (from a twig).
- The shoes were never linked directly to Dyleski via DNA even
though they took cutting inside of them.
This is all problematice. Zuniga continually dismisses a forensic
criminology report by Brent Turvey,
who claims that there was a lot of evidence at the crime scene that was
not analyzed. Discarded also are claims by both Mr. Turvey and Dr.
Michael Laufer that Vitale's murderer felt a certain amount of comfort
in the
house and with the killer - that the crime seemed personal and rageful
(not due to a burglary). She calls their expert opinions speculative
although one has to wonder how the evidence that a key was used to
enter or re-enter the house, leaving significant marks in blood on the
deadbolt, can be explained.
And, why was this evidence not introduced at Dyleski's trial? Laufer
also thinks that a key was possibly used to make the marks on Vitale's
back.
On October 15, 2005, police investigators found the large screen
television set in the Horowitz/Vitale mobile home had been moved to
block off the master bedroom doorway. Soon after Vitale’s murder,
Daniel Horowitz had asked about the guns that were kept under the bed
in the master bedroom, the implication being that someone knew the guns
were there and kept Vitale from getting access to them. Who would know
there were guns in the bedroom? Certainly not Scott Dyleski.
On top of the large television and carefully placed were a pair of
bloody, undamaged glasses that had always been referred to as being
Vitale’s. Shockingly, in the denial Zuniga dismisses Brent Turvey’s
crime scene analysis by claiming the pair of glasses were never proven
to be Pamela Vitale’s! Scratching your head on that one, me
too. Why would Zuniga claim that no one knows those were actually
Vitale's
glasses? Isn’t Zuniga just making the case for ineffective counsel or
sloppy police investigative work? Is she just nit picking
anywhere she
can?
It would have been simple to
check the prescription and Pamela Vitale’s records at the time, but
even by comparing pictures of Pamela Vitale to the glasses here shows
they are basically a match. Furthermore, photos from the crime scene
show the glasses on the television were for someone who had fairly bad
eyesight as with Vitale. Vitale's sister said she wore the glasses
nearly all the time and would only take them off when awake if she were
sitting down to talk with someone on the phone. Perhaps she also took
them off if she were sitting and talking with someone for a long time
and when she was sleeping. How was Vitale atacked but there is no
damage to her glasses and how did they end up on the television set
neatly placed and folded with blood on them?
Zuniga goes on to state that, “Specifically testing of the soles of the
shoes indicated there were three contributors, two of them being Vitale
and Dyleski.” This is an untrue statement unless you read the word
'indicated' as meaning "could not exclude". The blood on the soles of
the shoes is important because
at trial, it was claimed a shoeprint was found on a plastic box lid at
the crime scene – only a few feet inside the door and placed,
conveniently it appears, on top of another box. Anyone walking around
that house should have had blood in the crevices of the soles. There
was no claim nor evidence the shoes introduced as Scott's Lands End
shoes had been cleaned in any way. Only one sample from
the soles of the shoes was
ever sent in for DNA testing, but one
wonders why when the results were simply that Vitale and Dyleski could
not be excluded as two of the donors, not that they were donors. There
was also another DNA profile in there that could defintiely not have
been Vitale or Dyleski. The
sample was so degraded that a high
percent of your neighbors would not
have been excluded.
It’s sad that a young man’s life is at stake as well as justice for
victim Pamela Vitale. Judge Zuniga even dismisses the original
interview with Vitale’s sister, Tamara Hill, as not only unimportant
but implies Tamara had some other agenda against Daniel Horowitz.
Zuniga also dismisses Phil Hill’s brief exchange with investigators,
claiming it was hostile. Although it was not revealed in Dyleski's
trial and only some of it revealed in his latest petition, Phil Hill
had called police shortly after the murder and told them Daniel
Horowitz should be considered a suspect and that there was an incident
of physical, domestic violence just a month prior to Vitale's murder.
Tamara also says there was an incident in the past two-three months.
Phil Hill was or is in law enforcement. He had
more to say, as did Tamara, but the two were not interviewed further as
is indicated in the petition.
The day they were interviewed they felt rushed since they were planning
Vitale's funeral. In essence, Zuniga sees Daniel Horowitz as a victim,
but not Pamela
Vitale’s sister and brother in law, Tamara and Phil Hill.
Zuniga
dismisses several different potential witnesses’ statements, in
addition to those of
Tamara and Phill Hill, that indicate Daniel Horowitz flew into rages,
indicating
that Pamela Vitale was the victim of domestic abuse, and/or that Daniel
Horowitz was vengeful and threatened them or others. Zuniga dismisses
the maid’s interview, she said Vitale had a black eye
the Summer before her murder (two-three months before) and her glasses
were broken. Perhaps this
is in the same time frame the Hills say there was physical violence or
they are separate incidents within a fairly short time frame. Zuniga
disturbingly claims this is
basically unimportant since Vitale told the maid she had “an accident”
and because Vitale said Horowitz was the “love of her life.” Evidently,
Judge Zuniga doesn’t know much about domestic abuse and it’s
dysfunctional dynamic.Another potential witness, who
was never heard at Dyleski’s trial indicated Horowitz had a vengeful
nature and threatened to make sure her
children were taken away from her if she did not back away from a
friendship with Dr. Brenda Abbley. Zuniga dismisses the woman's claims
along with the others. The point is that Daniel Horowitz and these
sorts of claims should have been investigated, if not by law
enforcement then by Ellen Leonida, Scott's trial attorney.
No one seemed to really investigate what was going on in Pamela
Vitale’s life. It still seems a mystery as to whether Vitale was
really going to the ballet in Berkeley the fateful night of her murder
– if so,
with who? When had that person last talked with her? Where were the
tickets?
The last call on Pamela Vitale's cell phone was about 6:30 the night
before, October 14th. It was claimed this caller was the last person to
talk with her
although Nancy Grace claimed she talked with her much later that
evening. In trial testimony, Daniel Horowitz claimed he never even
looked through Vitale's financial records.
“Dyleski has not presented competent evidence establishing a reasonable
belief additional investigation into Horowitz’s activities on the day
of the murder would have unearthed anything to incriminate Horowitz”,
writes Zuniga. Daniel Horowitz’s alibi for October 15, 2005, the day of
the murder has gaping holes. He gave varying times for when he awoke,
left the house, met Bob Massi at Millies, how long that meeting lasted,
if anyone saw him from 9:00 am until 10:45 am that
morning. In essence, his activities have huge gaps of up to 1
½-2
hours
until he had a team meeting on the Susan Polk case between 11 am and
2/2:30 pm. He gave a grocery receipt showing groceries were purchased
at Safeway about 17 minutes before his 911 call. Why wasn’t his alibi
verified between 2:30-5:30 pm? Maybe it couldn’t be. Dyleski's could be
as he was with others the rest of the day.
Fred Curiel, when originally interviewed, was certain Scott Dyleski
came home at about 9:26 am. Kim Curiel agreed it was around that time
also. The prosecution went to great
lengths to stretch the morning timeline to say Dyleski arrived back
home at 10:20 am, let alone
at 10:45 am as Zuniga claims in her denial. Mike McKeirnan told ABC
news
that police had told the neighbors Vitale was murdered between noon and
3
pm.
Neither the deputy coroner, nor the coroner established a medical time
of death even though it is possible Vitale died within a few of hours
of being found, not eight hours as was claimed by the prosecutor. It's
also possible Vitale was murdered early in the morning, before
Horowitz left home. Judge
Zuniga has the audacity to continue the farce that Vitale’s time of
death occurred at 10:12 am, that time set by when her computer became
inactive. She supports the conclusion that Dyleski had no alibi by
citing Michael Sikkema’s testimony of when Dyleski came home. His
testimony conflicts with Fred Curiel’s testimony, who was not cited at
all by
Judge Zuniga. Curiel also directly said in court that his computer
activity and clock could be checked out to support his testimony during
the original trial – no one bothered to check it out at the time.
Regarding that 911 call, never heard in court. Let’s hear it. What was
recorded during that 911 call other that Horowitz screaming? Why did
Deputy District Attorney Harold ‘Hal’ Jewett seem to think it was as
damning against Horowitz if it was not (Trial Transcripts Day 1).
Further obscuring the real evidence and ignoring any scientific
perspective, Zuniga claims the supposed TO-DO list, found in Scott
Dyleski’s dresser drawer was written “in Dyleski’s handwriting (pg
30).” David Curiel claims to have found this several months after
Dyleski was arrested and after a thorough examination of the dresser by
law enforcement, as well as others, had not turned up these notes.
- Dyleski’s fingerprints were NOT on the “To-Do” list, but
fingerprints belonging to someone else were. In fact, there were many
unidentified fingerprints on the notes.
- No handwriting
expert was called in to examine it the printing.
- The only person claiming it was
Scott’s handwriting was the finder, David Curiel. Curious, since David
Curiel had just moved into the house and was sleeping on the couch two
weeks prior to Vitale’s murder (or two months, depending on which
version of his story you read).
Accepting Zuniga’s claim that Scott Dyleski told several different
stories about a woman in a car the morning of Vitale’s murder is to
accept an erroneous argument, but one who’s intent is to make Scott
Dyleski look more guilty. Scott Dyelski never testified as to what he
said or saw. Those relaying the stories are claiming this is what they
heard. One of those people did not even relay enough details of any
story to claim it was different from the other versions. (Note:
in the more recent petition, Dyleski's declaration says he made that
story up hoping it would somehow help deflect attention in the credit
card scam so the whole woman in the car story business is moot)
Picture of Vitale said to be from 2005 - credited to Andrew
Cohen, former SF Policer Officer and the SF Chronicle
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/10/22/HOROWITZ.TMP