After Brian R. Walshe allegedly killed his wife, Ana Walshe, in their Cohasset home, prosecutors say he made a number of online searches related to bodily dismemberment and decomposition, including “Can you be charged with murder without a body?”
The answer, legal experts say, is an unequivocal yes.
“There have been many cases of convictions in instances of no body [murder] cases,” said Mark J. Geragos, a criminal defense lawyer based in Los Angeles. “The surrounding circumstances of the disappearance and the actions of the accused take front and center.”
On Wednesday, prosecutors presented an array of evidence against Walshe, alleging he dismembered his wife after killing her early on Jan. 1 and then discarded her body at various locations. Among them are a series of search terms he allegedly entered on his son’s iPad, including “10 ways to dispose of a dead body if you really need to,” and “Is it better to throw crime scene clothes away or wash them,” First Assistant District Attorney Lynn Beland said at Walshe’s arraignment in Quincy District Court.
Days before the murder, Walshe had Googled what was the “best state” for getting a divorce, Beland said.
Investigators have also found blood in the basement of the couple’s home, as well as a bloodied, damaged knife, a second knife, and DNA evidence from items Walshe discarded, prosecutors said.
Electronic evidence, such as the searches, can be particularly important in so-called no body cases, said Martin G. Weinberg, a prominent Boston defense attorney.
“A ‘no body’ murder charge elevates the centrality of circumstantial evidence,” Weinberg said. “Prior to the era of iCloud and e-mail seizures, that evidence ordinarily depended upon witnesses providing information establishing motive and opportunity; today it’s often the defendant’s own words or Internet archives.”
Rosanna Cavallaro, a Suffolk Law professor and former assistant attorney general in Massachusetts, pointed to one key element in the Walshe case: that Ana Walshe’s co-workers in Washington, D.C., reported her missing on Jan. 4, not her husband.
“That, I think, combined with the cleaning supplies, is pretty hard [for the defense] to get over,” said Cavallaro, who teaches courses on criminal law and evidence. “Not impossible, but pretty tough.”
Authorities said that on Jan. 2, Walshe went to a Rockland Home Depot and bought $450 worth of cleaning supplies. He wore gloves and a mask at checkout, video from the store showed, and paid cash.
“Why is this man buying $400 worth of cleaning supplies?” Cavallaro said. “Why is he lying to police? So I don’t think it’s impossible to get a guilty verdict.”
Still, the lack of a body gives defense lawyers more “wiggle room” in their effort to establish reasonable doubt, said Daniel S. Medwed, who teaches criminal law at Northeastern University School of Law.
“These ‘no body’ cases are challenging in part because of an ancient legal concept known as ‘corpus delicti,’ which posits that the government needs to prove that a crime has occurred before charging anyone with it,” Medwed said by e-mail. “That sounds simple enough, but what about cases like Ana Walshe where everything points to foul play, and to the husband’s involvement, but there’s no body?”
Tracy Miner, a lawyer for Walshe, said in a statement Wednesday that she intends “to win this case in court.”
It’s “easy to charge a crime and even easier to say a person committed that crime. It is a much more difficult thing to prove it, which we will see if the prosecution can do,” said Miner, who noted that she has yet to see the evidence prosecutors have collected.
Moreover, Miner said, in her experience, when “the prosecution leaks so-called evidence to the press before they provide it to me, their case isn’t that strong. When they have a strong case, they give me everything as soon as possible. We shall see what they have and what evidence is admissible in court, where the case will ultimately be decided.”
Once prosecutors obtain a grand jury indictment in the coming weeks, Walshe’s case will shift to Norfolk Superior Court in Dedham, the same courthouse where Joseph D. Romano Jr. was prosecuted for beating his wife to death with a baseball bat inside their Quincy home in 1998, although her body was never found.
Legal experts described Romano’s trial in 2002 as the first time in modern Massachusetts history that someone was tried for murder without the victim’s body. The standard foundation for murder prosecutions is an autopsy by the medical examiner’s office, which determines whether a person’s death was natural, an accident, or due to act of violence.
But in the Romano trial, there was no autopsy and the only biological evidence that Katherine Romano was dead were bits of tissue and bone discovered on a chainsaw Romano borrowed from a neighbor. DNA testing showed the material belonged to Katherine Romano, and family and friends testified that she had disappeared and must have been killed.
Yet while prosecutors charged Romano with first-degree murder, which carries an automatic sentence of life without parole, jurors convicted him of second-degree murder, which allows him to seek release from state prison someday.
Three jurors in the trial told the Globe that while they were convinced Romano killed his wife, they did not believe he planned it in advance, one of the key factors required for a first-degree murder conviction.
“The general consensus was it was probably committed in the heat of the moment and he didn’t take a long time to think about it,” one juror said in a news story at the time.
Larry Tipton, who represented Romano at trial, said that 20 years on, prosecutors may have an easier time in a no body murder case, owing to advances in DNA technology, forensics, and the collection of electronic evidence.
Meanwhile, for the defense, Tipton said the challenge is to “educate the jury completely about the limitation of what appears to be this overwhelmingly [powerful] forensic evidence, if they never find the actual body.”
In another Massachusetts case, William H.J. Douglas, a former associate professor at Tufts Medical School, pleaded guilty in 1984 to manslaughter in the bludgeoning death of Robin N. Benedict. Douglas discarded her body, which has never been found.
Douglas was sentenced to 18 to 20 years in state prison after pleading guilty the day his murder trial was scheduled to begin, telling State Police he had left Benedict’s body in a dumpster in Providence. Authorities said at the time that any efforts at excavation would be “foolhardy, fruitless, prohibitively expensive, and in fact, impossible.”
Neama Rahmani, a former federal prosecutor who also served as enforcement director of the Los Angeles City Ethics Commission, acknowledged that prosecuting a murder case without a body isn’t ideal. Moreover, with the prosecution expected to present so much circumstantial evidence, Rahmani said, Walshe essentially has two defenses available to him.
One is that Ana Walshe, a mother of three young children with a high-end real estate job in Washington, “up and left her family,” but that’s “not consistent with the evidence,” she said. An alternative defense could be to assert that Walshe was the victim of an “elaborate frame job” in which someone else entered the search terms on his son’s iPad browser.
“That kind of defies all logic and credibility,” Rahmani said. “Any doubt [for an acquittal] has to be reasonable.”
Jeremiah Manion of the Globe staff contributed to this report.