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Reasonable Doubt and Other Suspects

The Politics of Fear and Demonizing Scott Dyleski

Daniel Horowitz's Bizarre Claims and Untruths
 



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Scott Dyleski Case - Evidence


Do these pictures look scary? Of course not!


Scott Dyleski's Rain Coat    Scott Dyleski's Raincoat
Diagram of Scott Dyleski's TravelSmith Raincoat

The trench coat was really a TravelSmith raincoat. Harold Hal Jewett, the Deputy DA who prosecuted this case presented a picture of the suspect being covered up at the scene by a long trench coat, a ski mask, and gloves.  Lisa Sweetingham wrote an article for CourtTv during Scott's trial that claimed, "
Dyleski disguised himself in a black ski mask, gloves and trench coat before allegedly entering Vitale's home...(July 27, 2006) " The ski mask was not black and Sweetingham did not seem to know only one glove was found. After Dyleski was convicted, Deputy DA Jewett corresponds with a woman concerned about the fairness Dyleski received and he tells her "Nobody suggested the trench coat was worn at the time of the murder." One has to wonder if Judge Barbara Zuniga followed the evidence presented at trial because she still had Dyleski wearing the 'trench coat' to commit the murder at sentencing.

Scott
                                    Dyleski's BLUE ski mask from
                                    evidence photo Exhibit A habeas
                                    corpusPetition Sweetingham (Aug 3, 2006) also claimed that in court on August 2nd...
False Reporting - "An investigator testified Wednesday about a black trench coat, long black glove, and black balaclava he found in the duffel bag. He held the balaclava up for jurors to view. It was made of a thin black fabric, and exposed only the wearer's eyes, like a ski mask, or a ninja-style head covering..."
It wasn't like a ski mask, it was a ski mask and the ski mask was blue (photo from Habeas Corpus Appeal Exhibit A Dec 2011) and an investigator did not testify it was black. The investigator said it was 'dark' because obviously blue does not sound as ominous.

Judge Barbara Zuniga also claimed at sentencing she knew Scott was guilty by the look on his face during certain evidence presentation,  "You leaned forward and your mouth fell open. ... You were absolutely fascinated by your handiwork. " How unethical for a judge to claim she knew a defendant was guilty when she saw a reaction on his face during the trial, while at the same time she mischaracterizes very basic evidence.  Or was Zuniga just engaging in her own demonization of Dyleski to justify her decision?

The blue ski mask contained third party DNA. Notable is that the prosecution claimed a gouge on Dyleski’s nose occurred during the murder of Vitale, but Scott’s blood was not found in the nose area or anywhere else on the ski mask. His DNA was found around the mouth area and, logically, was from sweat or saliva, not blood. You, and the jury, were supposed to surmise that the minute DNA evidence on Vitale's foot was not only Scott Dyleski's but came from blood on his nose. Obviously this conflicts with there being no DNA of Pamela Vitale around the nose and mouth area of the ski mask.

The shirt and the raincoat did NOT have Vitale's DNA on them. Although it was reported they did by Lisa Sweetingham after Scott's trial was over, "A black face mask, gloves, shirt and trench coat which were later found in Dyleski's duffel bag were stained with a mixture of his and Vitale's blood
(CNN via CourtTV)". And, again, there was only one glove.

Scott Dyleski's DNA was NOT found in the glove but third party male DNA was. Had Dyleski even worn this glove, his DNA would have been in the glove. There was third party male DNA found in the glove. The table below shows several samples with third party DNA. Another question arises. Did that ladies evening glove even fit Dyleski? 
 


DNA Analyses of Duffel Bag & Items found in Van
Item
Samples
Dyleski as Source
Other Source
Duffel
Bag Exterior
* two bloodstains (13-9-1 & 13-9-2) contain Vitales' DNA, contain one allele that does not belong to Dyleski or Vitale No Dyleski's DNA Third Party DNA
Black Right-Hand Glove * three samples (13-9B1,2,&3) all contain Vitale's DNA and at least one sample has male DNA, No Dyleski's DNA Third Party DNA
Blue Ski Mask * four samples (13-9C1,3,4,5) probably contact transfer from the bloody Glove, all contain Vitale's DNA - none of these stains are located below the eye opening, e.g, not near the nose, mouth, or neck area
No Dyleski's DNA


* one stain (13-9C2) around the mouth area (saliva) is from a single source, possibly Dyleski but the statistics do not show a strong match, No Vitale DNA


* one stain (13-9C6, top of eye opening) was very fragmented and degrade with a mixture of DNA,  Vitale and Dyleski cannot be ruled out, but three alleles belong to someone else.
Third Party DNA

* reddish hairs on the inside of the mask
Not
Dyleski's 
Third Party DNA
Black Long Sleeve Shirt * No Vitale DNA: stain (13-9D3) with Dyleski as the only source,


Black Rain Coat * No Vitale DNA, no further testing










Neither the glove nor the rain coat appear in police photographs. The contents of the duffel bag were absent these items when laid out on the Curiel porch and photographed. In the photograph only two of the four articles purported to be in the bag are shown no one reported that a glove was part of the contents...

"At the scene, no one reported seeing a glove, and a picture of the bag and its contents was taken with the items haphazardly laid out on the porch of 1050 Hunsaker. However, this image only shows two items of clothing, not the four items as later reported (Dec 2011 Habeas Petition, Exhibit A) ...

In fact, nobody mentioned the glove. Mr. Collins' handwritten field notes state: 'Kovar reported finding a black duffel bag, containing dark clothing, a ski mask, and a clump of loose reddish hairs' (Exhibit AA, Field Services Information).

Although Mr. Kovar did not report finding a glove, he was permitted to authenticate the glove at trial...he directly contradicts himself during his testimony, both at trial and preliminary hearing, as to whether or not he actually saw the glove at the scene (9 RT 2322.) (CT 1 151-152.) (1 CT 154.) "


No one reported seeing the glove in the duffel bag or on the porch.

Needless to say, this treatment also makes contamination of evidence a key concern as well as raising chain of custody issues and possible planting of evidence. How is it that a volunteer Deputy, Rick Kovar, who does not have the proper training in evidence collection, finds the majority of evidence that convicted Dyleski?  It seems probable that Kovar also contaminated the evidence upon inspecting it when he placed the contents unbagged on the Curiel porch, did not maintain the chain of custody, and did not wear gloves when handling evidence (there was no testimony he had on gloves nor was he asked about it).



Third Party DNA, Fiber, and Fingerprint Evidence

* Vitale's back had numerous longer blondish or light brown hair on it

* Reddish Hair inside the ski mask that did not match Dyleski

* DNA inside the glove that did not match Dyleski, the glove did not have Dyleski's DNA in it

* Unknown fingerprints were found on the To-Do list and other notes. Again, Dyleski's fingerprints were not on the To-Do list

* Unknown fingerprints were found on a diet coke in the Master bedroom, a Whiskey bottle in the Master bedroom, and on the printer.

* There was unidentified DNA on the bottom of the shoes - there are also chain of custody issues with the shoes and it was never established they had ever been worn by Dyleski - the inside cuttings taken from the shoes were never tested for DNA.


Evidence Not Tested

* A single passive drop of blood on a paper lying on the floor in front of the loveseat. An officer noted it was of interest even because it was possibly from t he perp. There was also blood on the laptop computer cord and around that general area that was not from spatter. Note, this area is quit a ways away from the main area of the struggle and near the landline phone.

* A tissue in the kitchen garbage that had apparent blood on it

* Blood on the back of the shower

* Blood on hot water knob

* Hair from the shower

* Cord with apparent hairs near the doorway

* Saliva from Lance Burton mug, Art Inst of Chicago mug


* Blood from inside of Vitale's Mercedes door

* Hairs from tape lift of bathroom floor mat, top and bottom surfaces as well as a tape lift from a  bathroom towel


* The rest
is a fairly long list of evidence that was not tested including blood evidence not tested, fingerprints (van, notes, crime scene), fabric evidence in the trailer, hair evidence (hair band, left lens of Vitale's eyeglasses, moldings, metal post, boxes, flashlights, water bottle ), taking prints from all shoes on the Horowitz/Vitale property, fingerprints in the Mansion, hair and fibers from pottery shard, and other third party DNA that was not analyzed or at least that testing was not introduced in court by either side or was not compared to other possible suspects, e.g., evidence from the shower drain. Not all third party DNA is going to be relevant, connected to the perpetrator, but certainly some of this DNA is relevant. Third party DNA would also be relevant to possible contamination of evidence.


DNA Foot Evidence - Item 3-10

"Petitioner seeks to retest item 3-10, the only forensic evidence that purportedly placed him at the crime scene, and to have tested - for the first time - bloody paper products found in the kitchen trash, that would provide critical evidence tending to identify the actual perpetrator (item 1-113). (See Exhibit 1, Motion for DNA Testing, at 11.)

The testing of item 3-10 was problematic. Mr. Stockwell processed and conducted the initial analysis on behalf of the Contra Costa County Sheriff’s Department. He later sent a portion of the sample from item 3-10 to the Serological Research Institute (SERI), for Y-STR DNA analysis. (See Exhibit 1, Motion for DNA Testing, at 8.)

At least four distinct issues pertaining to item 3-10 raise concern as to the validity of the results:

(1) A contaminant identified as male DNA was present during the preliminary testing of item 3-10. There was no effort to determine the source of the contaminant, as time was of the essence. Instead, Mr. Stockwell simply replaced the kit. This was not the first instance of contamination at this laboratory. (See Exhibit 1, Motion for DNA Testing, at 8.)

(2) The replacement kit Mr. Stockwell used was beyond its expiration date. He explained: “[W]e typically would not use a kit past its expiration date. However, it’s fine for research purposes, and is why we don’t just dispose of them. They are expensive. Each kit costs about $1,000. In this case, I went back and did additional testing to revalidate that kit, even though it was past its expiration date. It was still capable of performing minimally for the purpose intended. (See Exhibit 1, Motion for DNA Testing, at 9.)

(3) There were inconsistencies in the quantity of DNA reported in the sample. At SERI, Mr. Harmor obtained a result that was substantially different than that reported by Mr. Stockwell, and was concerned. Upon contact, Mr. Stockwell said that he was pressed for time and “pushing through as many samples as possible.” (See Exhibit 1, Motion for DNA Testing, at 8.)

(4) There was evidence of “saturation,” which can create “false peaks” or “artifacts” and may lead to unreliable and subjective data. Mr. Stockwell denied saturation at the preliminary hearing, then conceded it at trial. (See Exhibit 1, Motion for DNA Testing, at 9.)
(
PETITION FOR WRIT OF MANDATE After Denial of Motion for DNA Testing Jan 2013)



Time of Death - TOD

The prosecution claimed Vitale was found less than eight hours after her murder, but there was NO Medical Time of Death (TOD) estimated by the coroner and no real testimony presented by the responding officer about Vitale's appearance - color, temperature, signs of rigor, or lividity.

Vitale Autopsy

Lividity was noted as dorsal even though it was claimed she had to have been lying on her side from near the time she was murdered. Neither lateral lividity nor dual lividity were noted in the autopsy. Furthermore, the coroner noted there was rigor mortis in her legs but it was easily overcome. Rigor mortis is only easily overcome is the victim has been dead less than 8-12 hours or more than 24-36 hours. The clock on this timing would have started supposedly when Vitale's body was put in the morgue. That was at ~ midnight on the night she was murdered. While this is not an exact science, it could provide some proof Vital was murdered the afternoon of Oct 15, 2005 and not at 10:12 am in the morning. The coroner, Brian Peterson, was not questioned about TOD at the trial nor does it seem anyone else was - the first responding officer, Hoffman, did not even testify at trial.

There were no stomach contents listed in the autopsy except for 'mucoid fluid" even though there were indications Vitale ate breakfast (gallon of milk on the counter, two bowls/spoons - one in the sink and one on the counter).

Other tests and evidence that could have helped determine Time of Death were not conducted, e.g., liver or rectal temperature taken at the scene, potassium eye fluid, more than a cursory examination of lividity, noting environmental conditions at the crime scene.


Mike McKeirnan lived on Horowitz's property near the gate in the barn. He told the media that officers thought the murder took place between noon - 3 pm, but the prosecutor claimed Vitale was murdered in the morning, suffering the first blow at or near 10:12 am. This TOD was set by a computer forensics expert based on the Vitale's Toshiba laptop clock and computer inactivity. The prosecutor's expert who examined Vitale's computer said the clock on the computer could not be verified. It appears actual use of Vitale's computer the morning of the murder was not thoroughly verified and, of course, there was no verification it was Vitale on her computer. 


Vitale's cell phone had no calls on it after ~ 6:30 pm the night before she was murdered.

Daniel Horowitz said Vitale was meeting a friend at the Kirov Ballet - Sleeping Beauty at Zellerbach Hall in Berkeley, California that on October 15, 2005, the day she was murdered. Horowitz said he thought Vitale should have left home around 4:30 pm to have dinner before the ballet. However, no 'friend' was ever identified or interviewed. No other evidence that Vitale was going to the ballet was presented such as tickets, tickets charged to a credit card, dinner reservations, or other preparations. Wouldn't Vitale's friend have called to verify or solidify plans? Have already called because she was late for dinner?

Daniel Horowitz claimed Vitale was still in bed when he left the morning of the 15th. Computer analyses showed that Daniel Horowitz logged out of his computer one minute after Pamela Vitale logged onto hers. Horowitz's computer was turned on at 6:10 am and it showed activity, but he claimed he did not get out of bed until 7 am - that his alarm went off twice around 6:45 and Vitale told him to shut it off. Horowitz said he called Vitale several times during the day and there was no answer, but he could not have called her cell phone. To date, no one has claimed evidence of any messages Horowitz left for Vitale as a result of the calls he claims he made to her.



Other Forensic Evidence

There was third party DNA evidence found in several places including, but not limited to, blonde hair on Vitale's back, the shoes, the glove, and hair in the ski mask. Blood on various items in the kitchen did not match Dyleski. There was blood in the bathroom shower and Daniel Horowitz claimed the killer had taken a shower, yet the drains were not examined to investigate any possible DNA evidence there as far as we know - that evidence was not presented in court.

Expert forensic witnesses were NOT called for the defense and many of the tests were merely presumptive tests for blood, even though in testimony Hal Jewett has to be reprimanded several times for calling these 'tests for blood' instead of 'presumptive tests for blood.' Presumptive tests only show the possibility that blood is there, they do not show that blood is there. There was NO confirmatory blood testing conducted on any of the evidence.  Here is an explanation of some presumptive blood tests.


Luminol and phenolphthalein are imprecise and indiscriminate presumptive “screening” tests conducted to detect the possible presence of blood. The tests are so non-specific and non-selective that they can produce a positive reaction to an iron or copper bearing substance, a cleaning agent, vegetable matter, even pollen, horseradish, urine and fecal matter, and they cannot distinguish between animal and human blood. Consequently, if a positive presumptive result is obtained a scientifically precise test must be conducted to confirm if the substance is human blood, one of the other many common substances that can cause a positive luminol and phenolphthalein result, or if the test returned a false positive.

The following is an example to illustrate the relationship and difference between a presumptive screening test and a precise confirmatory test. Imagine that a photograph taken at a particular location on a particular day shows a person at a distance that to an observer looks like it possibly could be Joe. That is the equivalent of a presumptive test. To determine if the person in the photo is Joe the observer has the picture enlarged to show facial details, which unmistakably reveals the person is not Joe. That is the equivalent of a negative confirmatory test.  (Justice Denied)



Police investigators never looked at Horowitz body to see if he had wounds, this is even stated to the media by Horowitz.



Shoes and Shoe prints


Scott Dyleski had not worn the Land's End shoes for about a year, switching to vegan Moo shoes. His Land's End shoes were stored outside on the Curiel's porch along with some of the other children's shoes. When Scott Dyleski came home in the morning, he was wearing canvas lace up boots. No one disputed this. Pertaining to the sample below from the bottom of the soles of the Land's End shoes, amazingly Pamela Vitale blood is not found in the crevices of the soles even though Daniel Horowitz had described the scene as a blood bath and Vitale's body was surrounded with a pool of blood.

DNA Analyses of Land's End Shoes
Item
Samples
Source

Bottom of Shoe

* one sample from the bottom of one shoe (22-1I) showed a degraded profile with at least three donors. Neither Vitale nor Dyleski's DNA could be completely excluded as donors, but the statistics are so small they are meaningless, e.g., 1 of every 6 Caucasians, 1 of every 9 Hispanics, and 1 of every 13 African Americans

* no other swabs were subsequently sent for DNA analysis although ~ 7 were taken from the soles mostly in recessed areas

Unknown




Back Lower Sides of Shoes

* two samples (22-1H, 22-1P) contain Vitale's DNA and only her DNA

Vitale

Top of Shoe

* no result (22-1N) -  no other samples from the top of the shoe were sent for DNA analysis

Shoe Interior
* although several cutting were taken, none were sent for DNA analysis

N/A



N/A




All of the data above was testified to by Mr. Stockton, there were no independent analyses of the shoes by defense and no defense expert questioning the procedures or results. Deputy District Attorney Hal Jewett tries to plant in the jury's mind that Dyleski had the Land's End shoes on the day after Vitale was murdered when he went to a Renaissance Faire with Jena Redding. He's hoping this explains the painful fact that
Vitale's blood could not be found in the crevices of the soles.

Hal Jewett
when questioning Mr. Stockton (Trial p. 3653):

       7   Would it be unusual if a person were walking around, I

      8   don't know, maybe at a Renaissance Faire, for instance, in a

      9   pair of shoes like a pair of shoes that this sample was

     10   collected from, that they might step on something that in and of

     11   itself contained human DNA?


But this is not true. Jewett is also trying to connect Scott to recent or habitual wearing of the Land's End shoes, but if he wanted to nail it down then why were cuttings from inside the shoes not sent for DNA analysis?

Scott's Land End shoes had been previously stored on a porch outdoors, they were in the possession of Scott Dyleski's girlfriend, Jena Reddy, for many days (starting after Vitale's murder and before Scott was arrested) then Dyleski's belongings were handed over to his mother, Esther Fielding, who was staying at her sister's house, Marjorie. Scott's mother left her house, leaving Scott's belonging there in storage and not in her possession. She later went back and picked up his belongings then handed them over to a PI for the defense who handed them over to the prosecutor where they were then supposedly laid out on a table with other evidence and subsequently taken into custody by LE investigators. These shoes were on the porch, outside in a pile up until the Sunday after the murder. They were also the only pair of men's shoes in the pile. The chain of custody was never established in court. This would have been the responsibility of Scott's attorney, but the PI, John Beauden, was never asked to testify in the trial.
"At a minimum, the nature of the evidence is peculiar because the DNA sample linked to Ms. Vitale was found on the side of the shoe, not the bottom.  Moreover, there was no visible blood on the shoes, and thus, bottom.  Moreover, there was no visible blood on the shoes, and thus, necessarily, they must have been thoroughly washed, had they in fact been used in this bloody murder.  And yet, confoundingly, they are dirty, muddy and stained, and notably unwashed. (US District Court Northern California Petition Oct 2012)

Shoe Prints

There was a partial shoe print inside the house on a plastic box lid within a few feet of Pamela Vitale's body (which was lying in a pool of blood radiating out 6 feet), yet no other shoe prints were found on the interior floors even though the murderer was in the living room, kitchen, and bathroom. How did the killer make it through all this blood and only leave one very partial print on a moveable object? The partial prints was said to be 'similar' not a 'match' to the Land's End shoe, but no analyses was conducted to compare any individual shoe characteristics to the characteristics seen in the print.
"...upon additional examination and consultation, the “consistent” tread pattern is in fact discernibly dissimilar.  Moreover, there is reason to believe that the shoes seized were of a different size than that which left the “tread pattern” on the white lid.  Counsel are still investigating the “pattern evidence,” including an apparent bloody shoe  print on the left shoulder of the T-shirt worn by Ms. Vitale.  It may be that  the most “consistent” tread pattern is that of the shoes Mr. Horowitz provided to the detectives, which he had worn to the Sheriff’s station.

Indeed, according to a report by Mr. Kwast, turned over in discovery to Ms. Leonida, the tread pattern “did not align with the fine lines present in the arrowhead shape on the lid.”  Mr. Kwast acknowledged that “[a] different shoe” could also account for the dissimilarity.  (See Exhibit UU, Report of Jason Kwast, Dated 12/14/05, at 765.) (
US District Court Northern California Petition Oct 2012)"
In a a long report (Jan 2006) and at the Preliminary Hearing (Feb 2006), criminalist Alex Talfya not only claimed there were three unidentified shoe prints on the deck of the trailer, but that those prints were similar to the print on the plastic box lid. Nothing was said about the prints on the deck at trial.

At trial, Talfya testifies that there are three prints that match the shoe that did not match anyone else (shoulder, door, plastic box lid) (Trial p. 1993). He says he didn’t immediately see anything that looked like a print on Vitale’s shoulder but noticed it later. When Jewett asks… “Q. Other than those three shoe prints, were you able to account for all of the shoe prints located both inside and outside on the deck?”, Taflya just describes the pattern that is finally attributed to the carpet and Officer Henriquez shoes. The prints on the deck are never raised.

Whatever was on Vitale's shoulder was hardly proven to be a shoe print, let alone match the print on the plastic box lid.

The prints on the door do not match the plastic box lid nor the Land's end shoes. So who belongs to the mystery prints on the door?

Nothing was presented about all the shoes present at the Vitale Horowitz house except they claimed to had excluded Horowitz's shoe prints. Visible on the porch are at least 7 pairs of what looks like Daniel Horowitz' shoes. It's doubtful each of these was taped for prints. There is also a piece of paper found in an outside trash can, along with other pieces of paper, that appears to have a footprint on it. This was not presented in court and possibly the evidence was only photographed.



Alibi

Scott Dyleski was actually home at the time period the prosecution claims the murder occurred. Two household members testified to this early on, Fred and Kim Curiel, saying Scott arrived home at 9:26 and 9:30 respectively. Kim Curiel's testimony was changed to over an hour later, literally months after they were first interviewed and after the Preliminary Hearing. It was painfully stretched to 10:45 am. Scott Dyleski had an alibi for the rest of the day.

The prosecution claimed that somehow Dyleski committed this crime in less than 33 minutes - that is given that Pamela Vitale was attacked at almost exactly the time her computer ceased being active (10:12:46 am) with at least 6 different kinds of weapons constituting at least 10 different objects; two flashlights (one was large and heavy) a vase, at least three pieces of crown molding, a long cylindrical metal post/metal banister railing cast (we assume this means a metal mold for an cast porch baluster), a knife (or knives - not found), and some unknown objects causing blunt trauma (the prosecution claimed this was fist sized rocks and that those rocks dealt the death blows - not found).

Dog scent evidence, that was excluded by Dyleski's attorney, could have also been used to show the killer or killers tracked around the Mansion under construction, out a cattle gate and a pedestrian gate by the Mansion, and towards Wheeler's/Lynch's residence at 1571 Hunsaker Canyon Rd and one tracked to another the house near Wheeler's which was occupied by Fred Blodgett (whose name does not appear in any testimony).  If the dogs are correct, then Dyleski would have had to spend time walking around also, shaving even more time off the 33 minutes. The dogs did not track further than the property next door, making it problematic to claim Dyleski made it from this property to his home without leaving a scent.

Further, the prosecution claimed that Dyleski also picked up and stacked boxes (as well as evidence of rummaging through them), moved the television set in front of the bedroom door without getting blood on it then neatly placed her glasses on top (they were bloody, but not damaged), went into the kitchen where he supposedly drank from a water bottle and handled at least two cups and a bowl, went into the bathroom and cleaned up possibly taking a shower, got out of the trailer which was a veritable blood bath leaving only a partial footprint on top of the plastic storage container lid, hiked 10-15 minutes to a van on the Curiel property somehow disposing of at least two kinds of murder weapons (a knife and fist sized rocks) and a glove along the way (the murder weapons nor the second glove were ever found), changing clothes and even putting on lace up boots, stashing some of the so-called murder scene clothes (that also did not seem to be covered in blood), and then walking to his house where upon arrival he did not seem to be out of breath, sweating, dirty, or upset/excited. A prosecution witness claimed they timed how long it would walk to the Curiel property from the Horowitz property saying it was 10 minutes. However, new declarations estimate it at closer to 15-20 minutes. It is a mile away and on hilly terrain. No defense witness or estimate was given at trial.

Although an enhanced charge based on burglary was placed on Dyleski, it does not appear anything was stolen except that Daniel Horowitz claimed he was missing a pair of blue jeans.

In testimony, Daniel Horowitz claims he never even looked at Pamela's bank accounts.

Many papers and such at the scene were not treated as important evidence because they did not have blood on them even though boxes had been rifled through, opened, and some restacked. There was no public testimony concerning the contents of many of these boxes.

There are further problems with the prosecution's timeline and ridiculously setting the TOD based on computer activity.




Excluded Evidence


Dog Scent and Cadaver Dog

Scott Dyleski's attorney, Ellen Leonida, requested that all of the dog scent evidence be excluded. Her request was granted. However, the initial evidence is very compelling and very strong in favor of Scott - several different dogs (including at least one cadaver dog) did not track to Scott's home or even up the trail or road any significant distance. They do, however, track to what Leonida termed an abandoned trailer (assuming this is actually the fifth wheel Anthony Roderick lived in - just 20 feet or so from the trailer), near the mansion, a pedestrian gate, and several to Gerald Wheeler's house (4.04 acres of Horowitz owned property, purchased from Joseph Lynch, that adjoins his 13 acres at 1901 Hunsaker Canyon). That's where the trail seems to end.


Pedestrian Gate


The dogs also tracked near the Mansion under construction that is going away from any path toward Scott's house. The dogs also tracked to an abandoned trailer (South of the Mansion) and a second cabin on the 4 acres that had been rented out to a man named Fred Blodgett. At least three people were living on that adjoining 4 acre plot. It could also be argued that this evidence shows Vitale’s killer could not have met the strict timeline.


911 Call

Daniel Horowitz walked into the house after finding Vitale dead and used the home phone to dial 911. He did not talk to the operator, but instead threw the phone down, leaving the line open. The 911 call Horowitz placed at approximately 5:56 pm the night of the murder was excluded also. Scott's lawyer claimed it was prejudicial to Scott. The public has never heard it. However, it appears that at least 12-13 minutes of that call was recorded and, in addition to his verbal noises, he can be heard moving around in the house, toward and away from the phone. This could have significant connections to any crime scene changes that occurred before LE arrived or other claims that Mr. Horowitz made. He did knowingly or unknowing tamper with and taint the crime scene. Daniel Horowitz proceeded at some point to use his cell phone to call a law enforcement number that he knew and report Vitale's murder. Horowitz was placed in the back of a squad car at some point after law enforcement arrived and was allowed to keep his cell phone and he continued to make and receive calls. In addition, Horowitz told details of the crime to the media. He claimed he would never give up any crucial information, but was criticized by law enforcement and commentators.


The Infamous 'To-Do' List


There were no forensics or credible testimony showing this infamous 'To-Do' list was written by Scott. The only witness to claim this was Scott's handwriting, David Curiel, had huge credibility problems himself.
For David Curiel to claim he knew this was Scott's handwriting was ludicrous as he had only lived in the home on the couch for two weeks at the Curiel residence, 1050 Hunsaker Canyon Rd.  (or was that two months or was it three months since each time period was claimed by Mr. Curiel).

Scott Dyleski's fingerprints were not on the  'To-Do' list nor were they on two other of the five notes that David Curiel claimed he magically found in a dresser three months after Scott was arrested (there were, however, nine unidentified prints on the notes). David Curiel claims he found them in his underwear drawer when he was looking for scrap paper, passing up any of the scrap paper in the living room and kitchen on his way to the bedroom. The dresser had been cleaned at least twice and searched by LE.

In spite of the actual evidence concerning the 'To-Do' list, Justices Moreno, Corrigan, and Marchiano, The Petition Response California State First Appellate District Court of Appeal, wrote in 2009 ...

"A fifth piece of paper, in defendant’s handwriting, had a vertical, unnumbered list of five bullet points (P. v. Dyleski CA1/1)"

T
he opinion of the three Justices is riddled with inaccuracies and promotes many of the same myths that have been passed around in the media. It's astounding that a young man's life is placed in their hands, yet they do not seem to know the real evidence in this case.

Hal Jewett Letter
                    About Scott Dyleski CaseIn a series of back-and-forth correspondences with a concerned citizen written on official letterhead. Hal Jewett, the prosecutor, even went so far as to claim that Scott's attorney had taken pictures of the dresser drawer, but chose not present them in court. He presents this as a little known secret about the case and implies that meant those notes could have been lodged in the dresser and neatly fallen out months later with the notes being undamaged and that Scott's attorney did not want that known in court. The dresser was returned to Scott's mother and has been examined by a professional investigator. There is no way these notes were lodged in the dresser and fell, unblemished, into the drawer only to magically be discovered by David Curiel. (more on DDA Hal Jewett)

No handwriting expert was called as an expert witness for the prosecution concerning the  'To-Do' list, yet the jury and the press used this as a damning piece of evidence against Scott Dyleski. An entry that appears or appeared on Wikipedia and, hence, about.com pages (and other viral replications on the internet) emphatically claims that “A chilling to-do list in Dyleski's handwriting was also compelling evidence according to jury spokesperson, Peter De Cristofaro”. How could a jury find this to be compelling evidence? It was not chilling, but looked amateurish and childish with the step-wise procedure outlined not even fitting the crime of murdering Vitale. In addition, there were nine third party fingerprints found on the notes that were not Scott Dyleski's and no effort was made to determine to whom those fingerprints belonged, even on the "To-Do" list.





Motive

It also appears that the Justices opinion follows one of the same strategies as prosecutor Hal Jewett at trial, that being  the strategy of obfuscation, serving to claim Dyleski looks guiltier because of the way evidence or events are presented or obscured. Whether that is on purpose in the written opinion or just sloppiness is difficult to know.

Excerpt from Opinion

The caller called back at 3:54 p.m. Eastern Standard Time on the 14th.  This time, he asked if the merchandise could be shipped to the billing address on the orders.  In the second call, Jahosky told him the credit card company had declined the charges and he would need to contact the credit card company.  He accepted that information and did not make further contact with Jahosky.  According to telephone records, both calls originated from the Curiels’ telephone number.

On October 14, defendant called Robin after school and told him that “some of it hadn’t gone through and he was going to try to find a way to make it work.”


Both of these events are on October 14th, 2005, in the afternoon, but should read more like this:

On October 14, defendant called Robin after school and told him that “some of it hadn’t gone through and he was going to try to find a way to make it work." After that, defendant did attempt to make it work one more time by calling the credit card company and asking "if the merchandise could be shipped to the billing address on the orders (the billing address would be Karen Schneider) ... Jahosky told him the credit card company had declined the charges and he would need to contact the credit card company.  He accepted that information and did not make further contact with Jahosky."

By inverting these events in the text of the Opinion, it makes Dyleski look as if he was still going to pursue getting the equipment delivered after having talked with Jahosky at 3:54 pm instead of this being in Dyleski's favor because he had already made his last attempt to 'make it work'. One also has to ask, again, why wasn't the credit card fraud fully investigated when Dyleski was not sophisticated enough to have obtained all the personal financial information even presented at trial. The Justices go out of their way to discuss how unsophisticated Dyleski was in committing credit card fraud.


Jury

There were 2-3 incidents with Peter DeCristofaro who is a native of Queens, NY who lived in Concord, CA. He was referred to in court records as juror number 7 and the only juror to interview after the trial (interview with Nancy Grace). Mr. DeCristofaro admitted the use of a magnifying glass. However, he also stated that the defense was weak and that he personally would have liked to see an alternative theory from the defense on who else could have committed the crime - none was offered even though Ellen Leonida had such evidence.



Crime Scene and Initial Facts

On Saturday October 15th, 2005 Daniel Horowitz arrives home from a day he describes as mostly work on legal cases and several hours after spent getting coffee, working out at the gym, and checking out at the Safeway store in Lafayette, California at 5:39 p.m. Horowitz gets in his car at Safeway and drives home, opens the gate at the end of the driveway, drives up to a nd parks near the trailer, sees dark brown stains on the door, thinks Vitale should be gone to the Ballet, then gets his groceries and laptop out of the car. He says he opens the door and discovers Vitale's body, then calls 911 at 5:53 p.m. from the land line inside the house, but never talks to that operator. The line is left open for about 13 minutes and at some point later from his cell phone and out of earshot from the 911 operator, Horowitz calls a different law enforcement number to report his wife is dead. Horowitz calls that number two more times to say he is trying to 'logic out' the murder. His private investigator on the Susan Polk case, Rick Mosier, calls them also shortly after 6 p.m. to say that Horowitz was with him all day in meetings.

Sergeant Daniel Hoffman is the first to arrive at 1901 Hunsaker Canyon, but he cannot get the gate fully open so must ask dispatch to get the code from Horowitz.

"I asked  dispatch to see if they could get a gate code.  That response did not come very quickly"

(all quotes of Sergeant Hoffman are from his prelim testimony as he did not testify at trial)

As the second officer, Henriquez, is arriving Hoffman receives the code and and they both drive up to the trailer where Horowitz and Vitale lived. The officers find Horowitz on his phone walking between the vehicles parked in front of the trailer and, shortly after, Horowitz was place in Officer Henriquez'  patrol car.. As he is putting Horowitz in the vehicle Henriquez state that:

"The first thing that he told me was that he was with a bunch of retired police officers that day.  And my next question for him was -- was, 'Are you a police officer?'  And he told me no, that he was an attorney. "  

Hoffman noticed Horowitz had on a "short-sleeved shirt, and on the front side of his shirt near the left shoulder it was wet." Horowitz told him he had knocked over a dog bowl on the porch and that is why the porch, near the entryway, is wet. Hoffman is a canine handler and says he was keenly aware he did not see any dog and only heard one in the distance. Before closing the patrol car door, Horowitz makes sure Hoffman knows he just brought the two bags of groceries at the entryway, on inside the doorway and one out. Horowitz insists Hoffman directly quote these words for his report  "Oh, oh, the grocery bags are mine.  I dropped those.  I can't believe this."   

Hoffman testifies that the front door was wide open when they approached the trailer, as wide open as it could be, In addition to the two grocery bags, a laptop computer and case are lying in front of the entryway. Inside the trailer, they find Pamela Vitale lying in a fetal position with her head nearest the door. She is positioned somewhat diagonally and in crime scene photos it appears her head would be in the way of opening or closing the door. Vitale has obvious trauma to her head and a great deal of blood loss. Hoffman says "due to the coloration of her skin that she was obviously deceased." He also "noticed that she was wearing a black skirt.  This black skirt was not very obvious to me at first with  -- you know, what it was because it was bunched all the way up at her waistline." In his estimation, he thought she had been deceased a few hours. The residence looked very cluttered and there was a large big-screen TV in the living room that was pushed in front of and covering the master bedroom doorway. Officers moved it out of the way in order to see if there were any additional victims or any suspects. Hoffman says they quickly cleared the scene and cordoned off so that no one could make enter or exit without consent of the investigators and signing a log. 

Hoffman returns to speak with Horowitz who has been on his phone in the patrol car to various friends, colleagues and the media.

"My  intention in speaking to him was to get Pamela Vitale's personal information so that we knew who the deceased victim was, and that's when Mr. Horowitz began speaking to me about who he believed might have been responsible."   That person was Joseph Lynch who lives on an adjoining property that Horowitz and Vitale recently purchased from him. 'He told me that Mr. Lynch was supposed to be coming by the residence to drop off a check."   

As the daylight hours are ending, other officers arrive to help search the property grounds and Horowitz continues calling people on his cell phone until Officer Dan Vargas takes him in for a formal interview to the Field Operations Bureau of the Sheriff's Department in Martinez. It appears Horowitz was allowed to keep his phone through the entire formal interview process and often makes or answers calls. Also, Daniel Horowitz is allowed to have a friend, former San Francisco policeman Andrew Cohen, join him in the interview room.

The trailer was , in fact, very cluttered and most of it was not a result of the crime. One room had books, papers, household stuff, and so on, stacked several feet high and more feet wide. Two trash bags were nearly blocking the dryer in the back room along with pantry food such as canned goods and beverage bottles piled on the floor, the back door being inaccessible. The kitchen table and chairs were unusable, covered with more stuff and papers stacked a couple of feet high. The fridge was overflowing and already contained five or six bags of lettuce, even though Horowitz had just stopped and purchased more. There are many boxes, empty wine bottles, stacks of papers, and household items lying around the house. Several boxes were overturned in the struggle and lying about in different locations in the living room. Some had bloody glove prints inside the boxes or lids. One plastic bin containing Horowitz' 'ranch clothes', clothes he supposedly wears to feed the dogs because  of Vitale's allergies, was found near the entryway overturned, broken. Another  box, a few feet inside had bloody items inside such as sample tiles and molding. Notable is that the box had the plastic lid placed on top of it from the 'ranch clothes' bin.

When criminalist Alex Talfya arrives three hours after the initial officers, he chased a couple other officers out of the trailer, but could not name them. He states he saw three footprints on the wood porch that matched a footprint on the plastic bin lid (prelim testimony) after discounting all other footprints from officers and Mr. Horowitz. However, at trial, he does not note the three footprints on the porch. Horowitz had told officers he only touched the phone (land line) in the house to call 911 and touched his wife's neck but nothing else.  In order to make that 911 call, Horowitz had to walk over  a over grocery bag whose contents have spilled into the living room - the half and half lying about six inches from  Vitale's body. From there he walked between Vitale's body and a huge metal balustrade  to the left,  navigated between a large, bloodied cardboard box on the left with books on the floor and another cardboard box on the right , then along a path past the coffee table and then around the end of it where her laptop sat.  Finally,  he gets to the land line phone found perched on the furthest arm of the loveseat.