Friday, November 1, 2013


Yesterday I ran across an interesting blog post about a case I helped to try in 1984. It was variously known as the Austin Gay Murder Case, the Domberg Case, and the Wrong Man Murder. The post was written by a lady who had served on the jury, and the experience obviously had a profound effect on her. I found her comments quite interesting. It's a six part blog. Here are hyperlinks to each of the parts:

Before You Judge, Part 1;

Before You Judge, Part 2;

Before You Judge, Part 3;

Before You Judge, Part 4;

Before You Judge, Part 5;

Before You Judge, Part 6.

The lady made some pretty shrewd observations about the trial and its participants, and gave me a belated view into the jury room in the case which I'll always remember as "The Case We Lost But Nobody Noticed."

Our objective in this case was to convict the defendants of murder, but we knew that we had a weak case. We decided to try to prop the case up with additional charges which were easier to prove: Racketeering, Kidnapping; Conspiracy to Murder.

Our case theory went something like this: The Domberg Gang hired Joe Sallas to go to Florida and kill an Agricultural Inspector (Leonard Pease). While Sallas was in Florida, another Agricultural Inspector (Austin Gay) was murdered. Because Sallas was the only person we knew of who had gone to Florida to kill an Agricultural Inspector, he must be the one who killed Austin Gay.

I believe that we severely weakened our case because we indicted one man too many. Here's how it happened:

According to the gang members whom we "flipped" to testify, Sallas recruited a friend who had just gotten out of prison in Oklahoma to go to Florida and help him. The helper was a former paratrooper and the crime he was serving time for was murder. The only man who had just gotten out of prison in Oklahoma on a murder charge was Billy Jim Cherry, and Cherry was a former paratrooper to boot. Cherry appeared in a lineup and took a polygraph. He was identified in the lineup and he flunked the polygraph. We had enough to indict Cherry, but just barely. Of course, the polygraph results weren't admissible in court, and our eyewitness identification was made by the least credible of our "flipped" witnesses. Viewing the case with 20/20 hindsight, it is easy to say we should not have indicted Cherry.

To add to our woes, our star witness died of a heart attack just before the trial began. We quickly plea bargained with two more members of the Domberg Gang and "flipped" them as well. It wasn't enough.

Of the four men we eventually tried, Cherry was acquitted of all charges; Sallas was acquitted of Murder but convicted of Conspiracy to Murder; Ed McCabe was acquitted of Murder but convicted of Racketeering and Conspiracy to Murder; and the kingpin, Robert David Domberg was acquitted of Murder but convicted of Racketeering, Kidnapping, and Conspiracy to Murder. As far as I was concerned, we had lost the case.

When sentencing time came, each man was sentenced to the maximum sentence allowed by law. Sallas got 30 years and Domberg got 90, with McCabe getting a sentence somewhere in the middle. After it was all over, we were universally congratulated for a job well done. Apparently nobody, least of all the defendants, noticed that we had lost the case.

The Domberg Case exemplifies a peculiar type of case that prosecutors sometimes confront--The Case That Has To Be Tried. This type of case is one where:

1. You are satisfied that the defendant(s) are guilty of a horrific crime.
2. You have marginal evidence which is not going to get any better.
3. You stand a fair chance of winning, but a bigger chance of losing.
4. If you are going to have any hope of doing justice, you are going to have to try the case.

Over the years I've tried a number of homicide cases (and other serious cases) that "had to be tried." I won some, and I lost some. I don't regret trying any of them.

A few parting thoughts about cases that have to be tried: If you have any reasonable doubt about the defendant's guilt, you do not file charges. If your chances of winning are slim to none, you do not file charges. You only file when you firmly believe the defendant to be guilty and firmly believe that you have a chance to convict. Public outcry about the case, no matter how loud it may be, must not figure into the decision making process.