Delaware County Daily Times - Mar 24, 2000 Article #1

Lawyers: D.A. has tough task

Delaware County Daily Times (Primos - Upper Darby, PA) - Friday, March 24, 2000

Author: KATHLEEN E. CAREY ; Of the Times Staff

Legal experts contend the Delaware County District Attorney's office has a difficult -- but not impossible -- case in convicting Robert Rivera of first-degree murder.

Rivera, 33, of Boothwyn, was charged Wednesday with kidnapping and slaying his 20-month-old daughter, Katelyn Selena Rivera -Helton. Her body has not been found despite extensive searches in five states using lawmen, cadaver dogs, helicopters and heat sensors.

"It used to be you had to have a body," said Geoff Moulton, a professor at the Widener University School of Law.

Without it, he said, proving a homicide becomes challenging. "The absence of a body makes it more difficult for the prosecution," Moulton said. "When there's no body, there's the additional hurdle that a murder has taken place."

Rivera is charged with abducting the baby from her Upper Chichester day care provider on Aug. 10, 1999. She was last seen in his car at a gas station about 7:15 p.m. that night.

Rivera first told authorities he gave her to a couple he met at Longwood Gardens. Since then, he's told a reporter "only God and me know where Katelyn is" and allegedly told a county detective he "would spend the rest of his life in jail" if he revealed her whereabouts.

The D.A.'s office has not said whether it will seek the death penalty against him.

JoAnne Epps, associate dean of the Temple University School of Law, agreed that the burden doubles on prosecutors when no body has been found.

"You have to start with the difficulty that there was a death," she said. "Just because a person is missing doesn't mean they're dead."

The problem, she explained, is it's unknown how the death occurred.

When the cause of death is unknown, it's difficult to determine what can be used as evidence -- as opposed to coincidence. "The standard in America is the jury has to be certain beyond a reasonable doubt," she said.

Any outstanding questions -- even whether or not the person is dead -- gives the defense something to attack. "It clearly gives them more to shoot at," Epps said.

Despite the obstacles, the case can lean in favor of the prosecution. One legal battle changed the courtroom dynamics.

"The famous case is Capano," Moulton said, referring to the wealthy Wilmington, Del., lawyer sentenced to death last year for the murder of Anne Marie Fahey. Prosecutors contended Thomas Capano killed Fahey in a rage Jun 27, 1996, after she tried to end their secret three-year affair and then dumped her body in the Atlantic Ocean. Her body has never been found.

"She may walk through the door tomorrow," Moulton said. "I don't think so."

Epps said the prosecution was helped enormously by the Capano brothers' testimony.

Gerard Capano testified that he was with Thomas Capano when he dumped a body from his boat into the Atlantic a day after Fahey disappeared. Another brother, Louis, testified Thomas put a sofa, some of Fahey's belongings and a gun in a trash bin at a construction site. Louis Capano had the bin dumped.

Thomas Capano himself testified that Fahey was shot to death accidentally – a contention the jury rejected.