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Comment on Judge Barbara Zuniga's Denial of Habeas Petition

October 2011
by Chris Lawrence




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...


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?

Pamela Vitale in 2005
Pamela Vitale Eye Glasses Crime Scene Photo

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.


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)
Pamela Vitale in 2005



 
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