Murder conviction not uncommon even when victim is never found

How can you convict someone of murder without a body?

That's the challenge faced by Benton County prosecutors in the trial of Joel Patrick Courtney, who stands accused of kidnapping, raping and murdering Brooke Wilberger, a 19-year-old college student who disappeared from a Corvallis apartment complex on May 24, 2004.

Though Wilberger is presumed dead, her body has never been found.

But that doesn't mean a murder conviction is out of the question - far from it, legal experts say.

"It's certainly harder if you don't have a body, but not as hard as you might think," said Susan Rozelle, who teaches classes in evidence and criminal law at the University of Oregon School of Law.

Affidavits unsealed this week in the Wilberger investigation offered a glimpse into the kinds of evidence Benton County District Attorney John Haroldson might present at trial.

According to the documents, investigators searched the New Mexico home of Courtney's estranged wife and seized physical evidence that included hair fibers possibly belonging to Wilberger. The documents also cite witness accounts placing Courtney in the area of the Corvallis apartment complex about the time Wilberger disappeared.

Prior to his extradition to Oregon, Courtney was convicted of abducting a young woman near the University of New Mexico campus and raping her at knifepoint.

Haroldson would not comment directly on the Wilberger case, but he noted that Oregon law specifically allows jurors to base their verdict on either direct or circumstantial evidence. In cases where direct evidence is questionable or lacking, he said, circumstantial evidence may prove compelling.

"You could have a body and have a very weak case, or you could have no body and have a strong case," Haroldson said.

Prosecutor Josh Marquis had no physical evidence to work with in a 1993 Deschutes County case, but that didn't prevent him from winning a murder conviction in the disappearance of Carolann Payne. As in the Wilberger case, Marquis had no body to point to, but he did have a suspect: Joel Abbott.

"We had suspected him for some time," recalled Marquis, now the district attorney for Clatsop County. "We wired up … a friend of his with a body wire, and Mr. Abbott made some fairly incriminating statements."

By themselves, those statements might not have been enough to convict Abbott of killing Payne, especially because her body had never been recovered. The situation was further complicated by the fact that Payne was a drifter with no fixed address.

But Marquis was able to persuade the jury that the missing woman must be dead because of the absence of any sign that she was still alive. In court, he showed that Payne had not contacted any of her relatives, there was no record of any run-ins with law enforcement, her Social Security number had not been used and there were no financial transactions involving her.

"I did it by proving the negative," Marquis said.

Steven L. Krasik, the lead attorney for Courtney, did not return a phone call seeking comment on Friday.

Other lawyers, however, said prosecutors face an uphill battle.

"The state has the burden of proving a person died," noted Sam Kauffman, a defense attorney with Garvey Schubert Barer in Portland.

That's true, agreed Rozelle, the UO law professor. One likely strategy in a "no body" homicide case is to cast doubt on the prosecution's theory of the crime by offering alternative explanations for the evidence presented at trial, she said. Courtney's attorneys might also be expected to remind jurors of the absence of direct proof that a murder has occurred.

"That is going to be for the defense the best argument," she said.

But she also noted that convictions have been obtained before, despite such arguments. Jurors simply have to be convinced beyond a reasonable doubt that the defendant is guilty as charged.

"All you need are enough facts that look suspicious enough that the jury is convinced beyond a reasonable doubt," Rozelle said.

"There are lots of definitions of reasonable doubt, but one thing they all agree on is that it doesn't mean the foreclosure of any doubt at all."

Veteran prosecutor Norm Frink said he can't understand what all the fuss is about.

"There's no big deal about prosecuting a homicide when no body is present. It happens all the time," said Frink, chief deputy district attorney for Multnomah County.

In fact, Frink said, his office has successfully handled several such cases, including the slaying of Tim Moreau, an employee of the Starry Night concert hall in Portland who vanished in 1990.

Ten years later, nightclub owner Larry Hurwitz pleaded no contest in the killing after another employee, George Castagnola, testified that he helped strangle Moreau to cover up a ticket-counterfeiting scam.

"The notion that there's some big problem with prosecuting a case just because the remains of the decedent haven't been found is a false notion," Frink said.

"It's just not that big an impediment to a successful prosecution."

Bennett Hall can be reached at

758-9529 or bennett.hall@lee.net.

Related

• Found remains ID’d, not Brooke Wilberger
• Wilberger family says they’ll keep quiet on case
• Three witnesses testify in Courtney hearings