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What Was Gagged - Computers

The Contra Costa Times November 18, 2005
by Bruce Gerstman, reported:


Brady set December 2 (2005) for a hearing on a trial date. At that hearing, the judge will also hear arguments about what Brady described as a potential conflict of interest.  Horowitz's co-counsel Ivan Golde said after Thursday's hearing that some of the same sheriff's pathologists and deputies investigated the killings of both Felix Polk and Pamela Vitale.

Thus, there was some indication by Judge Laurel Brady that there may be some conflict of interest which would bar Horowitz from representing Susan Polk.  What are the conflicts?

Public and press speculation is made red hot by the fact that Dyleski had some connection to so-called Satanism and Goth.  In his opening argument Horowitz played a tape to the jury of Dr. Felix Polk lecturing an audience about his belief that his 18-month son Adam, was subjected to satanic ritual abuse.

Issues of Felix Polk’s connection to the Dyleski case become radioactive when the questions about the psychology/psychiatry matrix in the Bay Area are raised.  Dr. Felix Polk was touted as an alleged expert in adolescent psychology, who treated many adolescents in both Alameda and Contra Costa County.  Some of his young patients were subjects of the local criminal justice system.  Did Dr. Polk know other psychology practitioners who share or did not share his passionate belief in satanic ritual abuse of children?  Adolescent Scott Dyleski allegedly had some background of acting out in the Goth or Satanic lifestyle?  Was he treated, or treated inappropriately by someone who was connected to Felix Polk?

Probate and civil cases in Contra Costa County involving the Polks $2 million community property estate contain allegations that Dr. Felix Polk's twin brother John Polk and certain attorneys and other citizens have depleted the estate without court orders and/or accountings.  To obtain a conviction of Susan Polk and jail her for life would remove the last obstacle to raiding the entire estate.

Finally the question of motivation would not be complete without asking the question:  Was Pamela Vitale herself the target of the hit?  She was her husband’s data manager in the Susan Polk case and in other important cases. She had a distinguished career in data management and marketing.  Is it possible that Pamela Vitale had access to crucial data that someone wanted to disappear?  She, after all, was the expert in computer technology.  Isn't it possible that she came across something so important that someone engineered a hit on her to eliminate the disclosure of certain secrets?

QUESTION THREE – HAVE THE COMPUTER CAPERS IN THE SCOTT DYLESKI AND SUSAN POLK CASES, MUDDIED THE WATER TOO MUCH, OR ILLUMINATED LAW ENFORCEMENT’S MOTIVES TOO WELL?

Judge Flinn’s gag order will serve to shield law enforcement from revealing its direct involvement in tainting both the Susan Polk imminent murder trial and the upcoming murder trial of Scott Dyleski.  

Daniel Horowitz raised the first specter of computer confusion in his opening argument in the Susan Polk murder case.  Horowitz disclosed that vital physical evidence was missing.  The computer of Felix Polk had vanished from the Polk home the night of his death or shortly thereafter.  Horowitz also stated that Susan Polk's computer had been tampered with apparently while in the custody of law enforcement.   This brought into question whether or not the device had been maintained in a valid chain of custody.  Experts found it impossible to get the computer to boot up.  The inability to properly access the machine made it impossible to retrieve the diaries, emails and other data Susan Polk had stored on the computer.  This problem denied the defense the ability to show Susan Polk's state of mind just prior to the confrontation between her and her husband severely hampering her ability to present a case of self defense.

The unexpected murder of Pamela Vitale Horowitz complicated the computer issues when Daniel Horowitz's computers were seized by the very same Contra Costa County Sheriff who had possession of the Polk computers.  The glaring conflict of interest that resulted from this seizure could not be ignored.  A good part, if not all, of Susan Polk's defense was contained on the computers belonging to Daniel Horowitz and his wife Pamela Vitale.

On October 22, 2005, the San Francisco Chronicle reported:  

    An Orinda woman (Susan Polk) accused in another high-profile Contra Costa County murder case said Friday that the seizure of two computers from the home of her attorney, Daniel Horowitz, in the investigation of his wife's slaying could compromise her defense.

California Penal Code section 1524 provides that if law enforcement desires to seize the computer of an attorney, it must obtain an order from a judge requesting a special master be appointed to take the computer and be in charge of examining it.  There was no emergency situation at the time when Horowitz’s computer was taken.  A large force of deputies and police cordoned off the Vitale trailer and environs to protect all items.  The crime scene was in an isolated area and well protected.  The situation allowed adequate time for law enforcement to obtain an order authorized by a Contra Costa Judge on duty to request a special master to take control of the Horowitz computers in accordance with the penal code.

A wiser alternative would have been to obtain a court order from the Contra Costa duty judge and turn over the Horowitz computers to the FBI-controlled Computer Forensic Laboratory located at the foot of the Dumbarton Bridge in Menlo Park.  This facility is available to retrieve computers and analyze their contents upon request by local district attorneys and law enforcement.

Suspect Scott Dyleski's computer, found in his mother's home was also seized by the same Contra Costa County Sheriff employees.  Early press reports indicate that it may have contained data about illegal credit card transactions he used to obtain hydroponic equipment to grow marijuana.

To further fuel the speculative fires, Judge Flinn’s gag order in the Scott Dyleski case is based, in part, on a finding directly related to the Susan Polk case.  In Finding No. 3, Judge Flinn states:

    The nature of the case is such that an early termination of this publicity, without court intervention, appears unlikely.

    The matter arose in an unusual and interest drawing setting. The husband of the victim, Daniel Horowitz, was at the time of the alleged crime himself in the midst of defending a defendant in a "high profile'' murder trial. That trial, People v. Susan Polk, had just recently commenced in another department of this court and was closely followed by the press. The defendant in that action has chosen to give numerous interviews to the media, publicly acknowledging that she killed her husband and contending that she did so in self-defense and in response to "years of abuse" by him. That case, too, has generated nationwide media interest. Mr. Horowitz has recently indicated that he will continue with his representation of Mrs. Polk.

Since Judge Flinn issued his gag order, of course, Susan Polk has fired the Horowitz and Golde legal defense team.  However, the confidentiality of Susan Polk’s data contained on Horowitz’s computer, wherever it may now be located, is still vital to her defense.

QUESTION NO. FOUR  AND QUESTIONS THROUGH AD INFINITUM.

There are so many questions raised now that Judge Flinn’s gag order is in place, that they are difficult to enumerate.  New questions are inevitable until trial commences and even after it ends when everyone will wonders “what was gagged” that the public didn’t hear at the Dyleski trial?


In the meantime, one of the most obvious questions is:  Did Scott Dyleski have the mental and physical capacity to commit the crime by himself if, in fact, he was involved at all?  Did a 16-year old 130 pound, 5’2” boy have the capacity to inflict the enormous and grievous wounds upon Pamela Vitale, who by every account and especially by the coroner's report put up a valiant defense?  So far, a fair appraisal of Dyleski’s life shows no indication that he is a murderer, other than his current arrest.  He has no prior arrests for violence.  No one came forward to say he beat them up or tried to kill them.

As for questions ad infinitum, many of these and some answers may be found online.  In fact, Deputy D.A. Hal Jewett’s Exhibit A which he presented to the judge as evidence in order to obtain the gag order was noted on November 16, 2005 at 1:30 p.m. by the Clerk’s minute order and docket, in a handwritten notation:

    D.A. submits web search paperwork marked as Ex. A.  

Deputy D.A. Jewett’s submission was successful!  In finding No 1 of the gag order, Judge Flinn states:

    It is perhaps ironic that in a time when the internet has become for many a primary news source the internet itself, with its extensive indexing capabilities, allowed the parties seeking a protective order to show the geographic depth of interest in this matter. This search indicates publicity throughout the state and the country as well as coverage on Court TV and MSNBC. Such renders the possible remedy of change of venue to be of minor significance.

Because of the gag order, the press and public cannot ask Deputy District Attorney Hal Jewett if his indexing was that of Google, Yahoo or Dogpile.  So far the public must only speculate.

WHAT WILL BRING AN END TO DENYING THE PUBLIC THEIR RIGHT TO KNOW?

The San Francisco Chronicle opposed the imposition of the gag order in the Dyleski case, as did attorney Gloria Allred who was gagged as to what her witness might say, but not gagged as to commentary on other matters.  The Contra Costa Times was tellingly absent from the fray.  It appears the Chronicle and Ms. Allred did not appeal Judge Flinn’s gag order.  The gag order is final until sometime after trial when the appellate court may or may not lift it until all appeals are exhausted.  At that time, years from now, it presumably will not matter to as many people.

Beyond the many questions the press and public must now answer in the age of “the internet itself, with its extensive indexing capabilities”, there looms a Constitutional crisis: the public’s confidence in the judicial system.

The history of the courts, so far, in refraining from imposing gag orders goes against the spirit and letter of Judge Flinn’s order.  The Dyleski case is no Michael Jackson case, in which such a gag order was imposed.  The Dyleski case has not been a media circus so far.  In this age of the internet many murder cases will go national.  It is normal to expect national television shows, now including many cable television shows, to be interested.  The first case to be reviewed by the United States Supreme Court in which a gag order was subsequently imposed was the trial of Dr. Sam Sheppard charged in the murder of his wife.  That trial was a media circus.  Finally attorney F. Lee Bailey convinced the court by voluminous evidence that Dr. Sheppard had been convicted in the press, so that there was no possibility that the jury could be impartial. The publicity in the Dyleski case is a far cry from that endured by Dr. Sam Sheppard.

Judge Flinn had alternatives to imposing a gag order – he could have ensured that a very large panel of jurors was made available from the pool of about one million residents of Contra Costa County.  Not everyone in Contra Costa County knows about Scott Dyleski or follows the case.  Such persons, numb to the press, internet and TV, have been successfully sworn in as jurors in other high-profile cases.  A motion to change venue would have been an option, and it is likely to be pursued in any case by Dyleski’s attorney as a matter of course.

Instead of using less restrictive means of controlling pervasive publicity to ensure an impartial jury, Judge Flinn decided to exercise absolute control over the flow of information.  If the press and public now ask questions about the Scott Dyleski case or questions who else might have been involved in the murder of Pamela Vitale they will receive the same answer from everyone -- “Sorry, I’m gagged” -- essentially denying the public their right to know and Scott Dyleski his right to respond to the leaks that preceded Judge Flinn's gag order.

It is hard to believe that Dyleski is being protected by this gag order. The heavy-handed gag order makes it next to impossible for the press or citizen-sleuths to find any accomplices Scott might have had, if any, by obtaining answers from the usual reliable sources in-the-know.  The guilt of a minor such as Dyleski can be mitigated to some degree if, in committing a crime, he was under the control or influence of other another dominate party(s) or adult(s).  When the media and the public are unable to uncover other accomplices because of a gag order, how can a teenager in jail and deprived of his gagged parents' assistance hope to find justice?  

It appears the gag order has made the Susan Polk case and Scott Dyleski case into faith-based justice — the media and the public is supposed to just have pure faith that the judge, the District Attorney and law enforcement are keeping information away from them in order to deliver a fair and impartial trial to Scott Dyleski.  At least that is what Judge David Flinn is trying to convince those awaiting justice in these two trials.

But such faith-based and gagged justice is not what the Supreme Court has mandated in the past. Judge Flinn is pushing the envelope of the application of the First Amendment in Contra Costa County.

The Supreme Court, in the case Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555 (1980), upheld the basic right of the public and press to attend public jury trials of a criminal defendant.  In doing so, the court held that that in First Amendment cases of the press and public obtaining access to the court and in cases of the press right to news gathering, there is not only an issue of whether a defendant will have a fair trial, but an issue of whether or not the proceedings will be considered fair by the public. Yes, whether the public considers a trial fair is a matter essential to American society and to civilization, and when the public makes a decision about whether a trial is fair, "seeing (and hearing) is believing".  The court said, in part:  

    Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done - or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner. It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's criminal process "satisfy the appearance of justice,” and the appearance of justice can best be provided by allowing people to observe it.

Thanks to Judge Flinn’s gag order, the question from now on will be:  What did he gag, who did he gag and when did he gag it?  And the most important question of all is:  WHY did Judge David Flinn REALLY issue a gag order in the murder trial of Pamela Vitale?  Was it to insure a fair trial for Scott Dyleski or to assure that he would be the only one convicted?