“… a perverse injustice has been done.” — Attorney Noah Geary
By Bill Moushey
bmoushey@pointpark.edu
PITTSBURGH, Pa. — From the time he was implicated in a 1977 drug-related double-murder, David Munchinski has claimed innocence and that he was framed by a lying, double-dealing informer who later hanged himself in an Oklahoma jail.
He maintained that stance during his first trial that ended in a hung jury in the case that became known as the “Bear Rocks Murders” for the mountainous location where Raymond Gierke and James Peter Alford were found dead.
Since his conviction with another man during a second trial in 1986, Munchinski, 58, has discovered a wide assortment of misconduct and hidden evidence that caused one judge to reverse his conviction and order his release until the Pennsylvania Superior Court reversed the reversal, and the state’s highest court upheld the decision, leaving him locked up forever until a federal court reopened the case.
On July 21, 2010 the former Latrobe man’s lawyer argued before a federal judge he should be freed because so many instances of egregious misconduct and official corruption have permeated the case, his constitutional rights have been forever damaged.
Attorney Noah Geary argued the sickly Munchinski, who suffers from Parkinson’s Disease and other ailments — should be immediately freed on bond, the case should be retried again or dismissed, and that the Fayette prosecution team responsible for what he characterized as a miscarriage of justice should be charged under a law that could bring them the same sentence Munchinski got — life without parole.
“The decision is fairly clear; a perverse injustice has been done. It offends me personally and professionally,” Geary told U.S. District Judge Lisa Pupo Lenihan. ”You have overwhelming factual evidence to correct this injustice. Mr. Munchinski has waited over a quarter of a century for justice. I think it is time,” said Geary during three hours of arguments.
In response, Deputy Pennsylvania Attorney General Gregory J. Simatic not only contested Geary on every point, but argued Munchinski is doing nothing more than trying to resurrect issues already ruled on in numerous state and federal tribunals.
Judge Lenihan is expected to separately consider a soon-to-be filed motion for bail before she considers the larger issues that have embroiled the case since its beginning. She will sift through evidence of what another judge deemed prosecutorial misconduct so egregious in the Fayette County double murder case that he reversed the convictions and vowed to release Munchinski if prosecutors did not turn over a witness statement they insist does not exist.
Wrongful Conviction?
In a sweeping ruling, Visiting Judge Barry Feudale of Northumberland County also accused three Fayette prosecutors–two of whom are now judges– of “seeking and maintaining convictions to the detriment of the search for the truth” in the case of a grisly murder of two men in a rural Laurel Mountains cabin in 1977.
“We rely on our findings of fact and conclusions of law to state without equivocation that Munchinski was wrongly convicted because of patent and ongoing prosecutorial misconduct,” wrote Feudale, who was appointed to the case in 2002 when Fayette prosecutors removed themselves from it over conflicts of interest. He said it was the first such reversal he had granted in17 years on the bench.
After the Pennsylvania Superior court reversed Feudale’s ruling and the Pennsylvania Supreme Court upheld it, the now 33-year-old case wound its way into federal court, where it eventually landed in Pupo Lenihan’s courtroom.
Murder Charges Five Years Later
Munchinski, the son of a Latrobe cop, was a drug dealer and Westmoreland County tough guy in December 1977 when Gierke and Alford were brutally slain in Gierke’s cabin in the mountainous Bear Rocks area of Fayette County, just miles from Seven Springs resort.
Police believed from the beginning that drugs were the reason the two men met their demise, whether it was buying or selling or both. While there were numerous suspects, the case remained unsolved for almost five years until a vagabond, drug- and alcohol-addled misfit from Greensburg was caught in some petty burglaries and immediately offered evidence in the Bear Rocks slaying for a deal.
In his September 1982 statement which would not surface for many years, Richard Bowen told police he met Munchinski and the now deceased Leon Scaglione in a Greensburg bar where they drank shots of whiskey chased with beers and smoked marijuana before Bowen says he was hired to be the getaway driver in a drug rip off.
Despite his heavy intoxication and the fact that blizzard-like conditions existed, Bowen initially told police he drove the two men to Gierke’s cabin where he sat in Scaglione’s lime green Ford while they committed the crimes. Among many subsequent changes in his stories, Bowen later said he left the car, walked down a driveway and watched through a window as Munchinski and Scaglione anally raped and murdered the victims during a cocaine heist.
He told police Scaglione tossed the murder weapons into a pond as they drove back to Greensburg. Despite Bowen’s background as a burglar and thief who was caught lying on numerous occasions, police used his singular statement to charge Munchinski and Scaglione with the murders.
Questionable Testimony and Egregious Misconduct
Bowen’s testimony changed repeatedly from his first statement to the last. Along with the changing eyewitness testimony, Bowen claimed he drove a car Scaglione didn’t purchase until after the killings. Bowen’s eventual testimony of watching the actual killings through a window did not jibe with the death of Alford. While the bullet wound Alford suffered caused a forensic pathologist to testify he would have collapsed immediately, Bowen could not explain how Alford managed to walk almost 100 yards to a neighboring home before he collapsed and died.
The guns were never found in the pond he said Scaglione tossed them into.
Despite Bowen’s constantly changing testimony, both of them were convicted in separate trials in 1986, but not before numerous other issues with Bowen’s statements emerged in investigations by Munchinski from prison, his daughter Raina of Florida and the Innocence Institute of Point Park University.
First, a police report was discovered in another case suggesting Bowen was in Oklahoma on the exact day of the killings. Then they learned Bowen recanted his testimony at least four times, once to an FBI agent and another time under oath. They discovered documentation Bowen received money and other deals from prosecutors in exchange for his testimony that juries never knew about. Most importantly, Munchinski discovered a police report stating Bowen’s first statement was taped. Under evidentiary rules in criminal cases, commonly called ‘discovery,’ a prosecutor is supposed to turn over any evidence it has that would tend to benefit a defendant.
During a hearing, Geary, his new lawyer, got the lead prosecutor who is now Fayette County Common Pleas Judge Ralph Warman, to admit that he removed two paragraphs from the original Bowen police report which stated a tape was made. He said he did it with the approval of Fayette County District Attorney Gerald Solomon, another Fayette County Judge. While he said he removed the paragraphs because no tape was made, other reports and testimony suggested that critical interview was recorded.
All of that misconduct became the basis for Feudale’s scathing opinion where citing intentional prosecutorial misconduct, he reversed the convictions against Munchinski and ordered the tape of Bowen turned over within 10 days or he would dismiss the case. He also referred the Fayette prosecutors for criminal prosecution.
Reversal of Fortune
Munchinski was never released because the state attorney general’s office, which had taken over the case because Fayette officials were removed from it, filed an immediate appeal to the Pennsylvania Superior Court, arguing the misconduct did not affect the case, that Munchinski was simply re-litigating issues he already lost and that despite Bowen’s constantly changing testimony, there was still enough evidence to bring a conviction.
A year later, a three judge panel of the Superior Court reversed Feudale’s reversal and reinstated Munchinski’s conviction. After the Pennsylvania Supreme Court affirmed the lower court action, Munchinski filed an appeal in federal court. It started a protracted legal argument on technicalities that saw the case go the Third U.S. Court of Appeals before it was sent back to Judge Lenihan, who now is considering whether the case should end with Munchinski’s release, if he should be retried, granted bail, or imprisoned until he dies.
Final Argument
During three hours of arguments July 21, Geary methodically plodded through a litany of previously discovered misconduct, arguing that intentional misconduct not only forces the judge to reverse Munchinski’s conviction, but to bar retrial.
Along with the reports documenting questions about whether Bowen was telling the truth (or even in Pennsylvania on the night of the murder) and the admissions about the altered police report, Geary documented for the court another report hidden from Munchinski where a woman told police her then boyfriend Edgar Wiltrout confessed to the killings. Geary argued that evidence such as that would have turned the case in Munchinski’s favor. ”It doesn’t get more exculpatory than that,” he argued.
Geary argued that a hidden addendum to an autopsy report discovered long after Munchinski’s trial could have cleared him. That report showed the blood type of the sperm found in Alford’s rectum not only did not match Munchinski but was suspected to be as much as a day old when he was killed.
All of the hidden evidence deprived Munchinski’s trial lawyers from cross examining witnesses about bias and “flies in the face of United States Supreme Court law,” Geary argued.
For years, prosecutors in this matter have argued that the time for Munchinski to deal with all of those issues was at trial and that court rules bar reopening a case over evidence it either had access to or should have found prior to trial.
“They hid this evidence. He did not have it. How can it possibly be fair to any human being to hold that human being to a higher standard when the reason he didn’t have it was because they hid it,” Geary argued.
He also argued by tampering with police reports, “prosecutors have committed crimes to achieve convictions.” Geary quoted an obscure Pennsylvania law which states such misconduct could cause officials to serve the same sentence given a defendant in case.
“There is nothing worse in our system or in life than a corrupt prosecutor. What they did was outrageous and it is criminal,” he said, also asking the judge to appoint a special prosecutor to probe those activities.
Under the law, he also demanded the judge bar retrial. ”It is certainly intentional misconduct. It is mindboggling. They did it, I proved it and the barring of a retrial is the only appropriate remedy,” he argued.
In his brief response, Deputy Attorney General Simatic argued Geary was overdramatizing the actions of prosecutors and suggested none of the hidden documents, or questionable issues involving witnesses like Bowen would have caused a jury to rule differently.
Simatic argued the federal judge was obliged to follow the rulings from Pennsylvania’s higher courts over Feudale’s opinion based days and days of testimony. Simatic characterized the visiting judge as “just sort of off on a tangent and we think the findings appear to be lacking support from the record.”
He also argued that the federal court is obliged to allow state courts to determine remedies in state courts and that if a federal judge intruded in the matter, the court is obliged to rely on the Superior Court opinion reinstating Munchinski’s conviction because it is the final determination in the state matter.
Bill Moushey is an Associate Professor in the School of Communication at Point Park University and Director of the Innocence Institute, an investigative reporting program at Point Park where graduate and undergraduate students research and write about allegations of wrongful convictions. He can be reached at Bmoushey@pointpark.edu or 412-765-3164.