September 12, 1993No surrender
Ira Einhorn, has been on the lam for 12 years. But that hasn't stopped the D.A. from putting him on trial.
Susan Caba
Inquirer Sunday MagazineCOURTROOM 513 AT CITY HALL is a businesslike, wood-paneled space, nondescript except for two narrow, sashed windows that soar from floor to ceiling to the left of the judge's raised bench. Below that high platform are two tables, the one closest to the jury for the prosecution and the other, nearer the windows, for the defense. There is little else in the courtroom in the way of furnishings, except for chairs. Two rows of sober wooden armchairs fill the jury box. Similar, armless, chairs are arrayed for spectators. Chairs for the prosecution and for the defense are tucked under the tables.
One of those chairs is reserved for Ira Einhorn, the one-time Philadelphia guru who will be tried next week for the murder of his girlfriend, Helen ''Holly" Maddux. Her partially mummified body was found in Einhorn's closet in March 1979, packed into a trunk with air fresheners, 18 months after she disappeared. Her skull was so thoroughly fractured, the medical examiner couldn't say for sure how many times she had been struck in the head. In early 1981, Einhorn fled the city - and the country - as the time for his murder trial drew near. Einhorn flew first to England, then traveled to Dublin, where he set up a new life. In recent years, he has vanished from Ireland, too.
For 12 years, his absence effectively prevented his trial. But no longer.
When the trial begins next week, many of the chairs in Courtroom 513 will be occupied. Those ruddy, butterscotch-colored oak chairs, with dark grain running through the flesh, will no doubt quickly fill up with spectators.
But one chair, the defendant's chair - the chair reserved for Einhorn - will remain empty.
At the defendant's table, in front of the judge's bench, defense attorney Norris E. Gelman will sit alone. He will assess prospective jurors, alone. Without benefit of conferring with the defendant, he will cross-examine witnesses. When the time comes to present a defense, he will not be able to call his client to the stand. And, at the end, he will have to argue against the legally permissible assumption that Einhorn's absence is a sign of guilt.
Under these circumstances, can Ira Einhorn be fairly tried?
And, if not, does it matter?
EARLIER THIS YEAR, acting under a recent ruling by the Pennsylvania Supreme Court, District Attorney Lynne M. Abraham decided on the unorthodox route of trying Einhorn in absentia.
Arguments by Assistant District Attorney Joel Rosen in the motion to prosecute Einhorn - granted in March - are compelling:
"The evidence against the defendant is overwhelming (the victim's body having been found in his closet!). However, after 13 years, many witnesses have retired from the police force, moved to other states or passed away. The criminal prosecution has already been hampered by the passage of time. But it is still viable.
"If the defendant is allowed to continue to benefit by his absence, then more witnesses will die or move to parts unknown. The end result will be that the defendant will be able to return to Philadelphia, and no case will exist against him. It is imperative that the commonwealth proceed with this case as soon as possible regardless of the defendant's presence. He should not be able to avoid justice and get away with the murder of a young girl by fleeing before his trial."
In Einhorn's case, those arguments are strengthened by the facts that he had been arraigned, a preliminary hearing held, and evidentiary rulings made. All that remained was the trial. And, Rosen pointed out in the hearing that eventually allowed the trial to go forward, the rights of Holly Maddux's family to have the case resolved must be considered. Already, her parents have died, never having gotten an accounting of their daughter's death.
"If he isn't tried, he's going to get away with it," says former homicide prosecutor Carolyn P. Short, now a defense attorney and partner in the firm of Reed, Smith, Shaw & McClay. "If you don't try somebody simply because they're on the lam, you encourage that behavior, and the defendant gets away with murder."
Still, she shudders at the idea of defending a client present only in the form of an empty chair. "There would be that constant emptiness there next to you. You'd just be sort of pulled into it, listing into the abyss," she says, leaning almost involuntarily to one side. "It may as well be a hole to hell."
The visual impact of Einhorn's empty chair cannot be overestimated. Every good lawyer knows that appearances in a courtroom are often as important as fact, or even law. That's why jurors are not allowed to see imprisoned defendants wearing handcuffs, and why some judges keep a spare suit in their courtroom for defendants who don't have suitable clothing.
"That chair symbolizes your client," says Short. "The influence on the jury would be enormous. It's like putting a placard up, saying, 'I'm guilty.' ''
Gelman may decide that Einhorn's empty chair would be so inflammatory that it should be removed from the defense table.
It would be only one in a series of lonely decisions for Gelman.
IN SOME WAYS, NOTHING COULD be more appropriate than trying a chair in place of Ira Einhorn. It is exactly the kind of nose-thumbing performance art Einhorn was fond of staging at the expense of the establishment.
Except that Einhorn rarely relinquished center stage in his own productions.
Einhorn - who, if he is alive, is 53 - embodied the free-love, tune-in, turn-on, drop-out, love-bead '60s in Philadelphia. In a 1976 Interview in Inquirer Magazine, Maralyn Lois Polak called him a "one-man consumer-testing bureau for whatever fads come along - drugs, hippiedom, ecology, alternative education, ESP and Uri Geller."
"So what?" he responded. "Is there any difference between fads and cultural change in the electronic age? . . . I'm the advance man for almost anything I think will be popular, sure. You gotta have early-warning systems. That's what I am. Corporations usually have a near-watcher and a far-watcher. That comes from Babylonian times. I'm a far-watcher. I see things before they become visible. How? I'm an intuitive."
Einhorn was burly and favored the uniform of the times - dirty jeans, long unruly hair and a full, scraggle-edge beard flowing from his broad jaw (although just before he fled, Einhorn turned up with a haircut and neatly trimmed beard). He had wide-set, dark eyes and a full-toothed smile.
His upbringing hardly forecast his future. His mother once described their family as "a typical Jewish family, not excessively religious, or excessively anything else." His only sibling, a younger brother, became a stockbroker. The family lived in Mount Airy, and Ira attended Central High School. There, he was a crewcut jock with a testosteronic swagger, as well as a keen intellect. He enrolled at the University of Pennsylvania and graduated with a degree in English during the dawn of the Aquarian Age.
The decade that would define him had arrived.
Sex, drugs and the rock-and-roll of '60s consciousness intoxicated Einhorn for much of the next 16 years. During one two-year period, he took LSD almost every week, and he once tried to organize a flood of marijuana distribution to get the drug legalized. He helped found the University of Pennsylvania's Free University and lectured there on everything from psychedelics to Nietzsche. He described himself as a "planetary enzyme."
"I've discovered I have a very good aesthetic sense for anything," he told Polak. "I can walk into a roomful of pictures and pick out the top five. I'm the same way with women. The same way with wine. I can sense where things are at."
By then, he had given up drugs and embraced the idea of paranormal phenomena - "experiences that, like LSD or grass, stretch our conception of reality, expanding the limits that had previously enclosed us, breaking boundaries."
And, always, there were women.
"So much of my energy is sexual - I rarely overlook any opportunity to explore new dimensions of this energy," he wrote in a 1972 interview with himself.
Holly Maddux was one of Ira's women. Blond, ephemeral and so self-effacing no one could pinpoint the moment of her arrival, Maddux moved into Einhorn's barely furnished, book-strewn Powelton apartment soon after they met in the early 1970s. She was seven years younger than he, a native of Tyler, Texas, who graduated from Bryn Mawr College, also with a degree in English. Maddux was, in some ways, the Sixties' version of the Fifties' oppressed suburban housewife, baking bread in the shadow of Einhorn's more dominant persona.
Neither Maddux nor Einhorn held regular jobs. Maddux worked part time as a teacher, put in her hours at the food co-op, and, in early 1977, inherited nearly $40,000. Ira taught sporadically, relied on stipends from friends, and benefited from an extraordinary arrangement with Bell of Pennsylvania, in which he kept officials there up to date on developments from the intellectual edge, and they, in turn, bought him books and covered the costs of his worldwide newsletter network. The pair traveled, and Einhorn was awarded a fellowship to Harvard in 1976-77.
Polak asked him what he would do when he'd achieved his intellectual goals and had grown old. There were, he replied, "a lot of cultural paradigms" he could follow: "When my usefulness to society comes to an end, I might do as the Eskimos do - wander out into the snow, and die."
But in the late summer of 1977, it was Holly Maddux who vanished.
THE LEGAL PROPRIETY OF trying a defendant in absentia was explored in two different decisions in the past year - in the U.S. Supreme Court and the Pennsylvania Supreme Court. The courts reached diametrically opposed conclusions.
The federal decision came in the case of Michael Crosby, who was indicted in April 1988 in Minnesota on several counts of mail fraud. Crosby was told his trial would begin on Oct. 12, 1988, and he was released on $100,000 bail.
When the time came for trial, everyone except Crosby showed up in U.S. District Court. As the week wore on and Crosby still couldn't be found, the prosecutor argued that several witnesses couldn't return for another trial, the judge fretted that 54 potential jurors were growing irritable waiting, and valuable court time wasted away.
Finally, the judge concluded that Crosby had voluntarily waived his constitutional right to be present and ordered the case tried. Crosby was convicted, subsequently arrested and sentenced to 20 years in prison. His court-appointed lawyer, Mark D. Nyvold, appealed it all the way to the U.S. Supreme Court.
Decades ago, the high court - along with most, if not all, state courts - decided that a trial in progress may continue even if the defendant skips out in the middle of the proceeding. At that point, the court reasoned, the fleeing defendant did voluntarily waive the right to be present and to confront his accusers. A similar decision in the Crosby case would merely extend the waiver to defendants who knew their trial dates and chose not to attend.
Nyvold argued two points: that the U.S. Constitution guarantees the right to due process (which has historically meant the right to be present at a trial and the right to confront and cross-examine witnesses) and that Rule 43 of the Rules of Criminal Procedure explicitly forbids trials in absentia, with a few specific exceptions.
The Supreme Court agreed in January and drew a line between continuing a trial in progress and starting a trial without a defendant.
But because the high court did not look at the constitutional issues in Crosby's case - it was enough that Rule 43 prevented trial in absentia - the ruling was limited. It left the state courts free to reach their own decisions on the empty-chair issue.
Just two months earlier, Pennsylvania's high court had done just that - and had come to the exactly opposite conclusion. In an Erie County case against Dominick W. Sullens, the state court announced in November that trials could begin without the defendant, so long as the defendant had been formally notified of the trial date before disappearing.
Justice John P. Flaherty, in the majority opinion, quoted his late colleague Justice James McDermott: "No society on earth offers more than we do to preserve and protect the rights of those held for trial. It is more than simple discourtesy not to attend. It is an anarchical contempt of everything that so many have died to preserve."
One person disturbed by the state decision was Jules Epstein, for 12 years a lawyer doing trial and appeals work for the Philadelphia Defenders Association. He is now in private practice and an instructor at the University of Pennsylvania. "People don't know that trials in absentia are allowed. I don't think anybody knows it," Epstein said. "When you give up your right to a trial, when you give up your right to remain silent, when you give up your right to have an attorney - there has to be a 'knowing and intelligent waiver.' The judge has to go through a formal process, a colloquy, to ensure that you understand what you are doing."
It is not enough, in his mind, for a defendant to have had notice a trial would begin. "Are they going to conclude that he's also waived his right to appeal?" Epstein asked. "How can that be, when he hasn't been informed of his right to appeal?
"That boggles the imagination."
WEARING HIS ROBE, IRA EINHORN met the police on the steps leading to his Powelton apartment. Detective Michael Chitwood, armed with a search warrant and the suspicion that Holly Maddux's body was in a closet on the enclosed porch, allowed him to get dressed before beginning the search. The porch was separated from Einhorn's living area by a heavy maroon blanket, which hung across the door and windows. Chitwood pulled the blanket aside and stepped directly to the closet.
It was padlocked. Chitwood asked for the key, but Einhorn said he didn't know where it was. "I'm going to have to break it," Chitwood told him. "We got a warrant and we are going to search." Chitwood broke the padlock with a crowbar. Methodically, the detective worked his way through the closet, sorting through boxes and bags and a green suitcase tagged with Maddux's name. The suitcase - one her parents had given her as a high school graduation gift - held clothing, shoes and four or five pieces of Maddux's mail. A handbag yielded Maddux's driver's license and Social Security card.
Finally, Chitwood reached a steamer trunk. It was locked. Chitwood asked for the key. For the second time, Einhorn said he didn't have one. Again, Chitwood broke the lock. He lifted the lid, releasing a foul odor that the detective immediately recognized as the smell of a decaying body.
Beneath copies of the Evening Bulletin, dated Sept. 15, 1977, and a New York Times Book Review of Aug. 7, 1977, he found pieces of packing foam and plastic dry-cleaning bags. He reached into the material, moving it to one side. He felt an arm, dug further and saw a hand, the flesh shriveled. Chitwood straightened and went to the kitchen to call the medical examiner.
"We found a body," he said to Einhorn, who was in the kitchen. "It looks like Holly's body."
"Well," Einhorn replied, "you found what you found."
Chitwood noticed a ring of keys on a hook in the kitchen and reached for them. But Einhorn's hand beat him to it. Einhorn handed the keys to the detective. "Try these," he said, singling out two keys from the assortment. ''They probably fit." One key fit the closet padlock, the other the lock on the trunk.
"Do you want to tell me about it?" Chitwood asked.
"No," Einhorn replied. He preferred to remain silent, he told Chitwood as the detective read him his Miranda rights.
An autopsy revealed at least 10 or 12 major skull fractures, some so large it was impossible to tell how many times Maddux had been struck in a particular area. The medical examiner speculated she had been hit with more than one blunt object. And because of the placement of her injuries, he determined that whoever beat Maddux was able to look into her eyes as the blows were struck.
Two days after his arrest, Einhorn declared in an Inquirer interview that he had not killed Maddux. His arrest was a "setup," he said, linked to his work with psychic phenomena. "I want to be very direct about this. I did not kill whoever it was supposed to be in there. I am not a killer. I do not know how a body got in there - if it was a body."
Maddux had left one morning, Einhorn told the reporter, and he never saw her again. "After that, she told me in a phone call to let her alone. And I did. She said, 'Look, I'm OK. I want to live my own life.' I said, 'All right.' I said to myself that I was going to keep my eyes and ears open in case she needs help. Then I never heard a word from her. I heard nothing but silence.
"She had been into some odd things, and I can't talk about some of the ideas she was involved in," Einhorn said. "I would not want to smear her, although I am sure some of this will come out in the trial.
"I still have a great deal of love for her and concern for her and hope it was not her in the box."
WHAT IS NORRIE GELMAN TO do?
Norris E. Gelman, 50, a racehorse owner whose office is hung floor-to- ceiling with thoroughbred portraits, is one of the best appellate lawyers in the state. Last year, he succeeded in having Nicodemo Scarfo's murder conviction in the killing of Frank "Frankie Flowers" D'Alfonso overturned, and expects to be backup attorney in a new trial for Scarfo. And Gelman is nothing if not dogged - his victories this year include the acquittal of Catherine Spear Fried, charged with murdering her husband - after three trials, two guilty verdicts and two appeals trips to the state Supreme Court over a 12-year period.
Einhorn retained Gelman in 1980, after Arlen Specter withdrew as attorney for unexplained reasons. Bernard L. Segal, Einhorn's good friend and first choice to represent him, had already moved to California. Last spring, a Common Pleas Court judge ordered Gelman, who had been paid through a defense fund organized by Einhorn's friends, to continue representing Einhorn.
By virtue of the empty chair, Joel Rosen, 37, has the clear advantage in the courtroom. Rosen is fresh-faced but by no means inexperienced; he's been prosecuting homicide cases for seven years, the last two focusing on killings within the Junior Black Mafia drug gang. His style is smooth, flavored with a dose of superciliousness and lightly laced with acidity.
Neither Gelman nor Rosen would agree to an interview before the trial, for fear of influencing potential jurors. But Epstein reviewed some of the issues Gelman will face.
"Rule one for competent representation is that the lawyer conduct himself with the thoroughness and preparation needed for trial," Epstein said. "I might, if I felt I had legitimate grounds, file a motion seeking permission to withdraw. I cannot legitimately prepare a case without the cooperation of my client. I can't consult with him on the issue of whether to plead guilty. I can't consult with him on the issue of whether to testify. I can't consult with him on the issue of whether to waive the right to a jury trial," Epstein said. "By law, these things are left completely in the hands of the client."
It's unlikely, Epstein admitted, that Common Pleas Court Judge Juanita Kidd Stout - who is to preside over the case - would grant such a motion to withdraw. "I can refuse to participate," he suggested. "I say, 'Your Honor, respectfully, I cannot in good conscience proceed.' And the judge says, 'Go to jail.' "
Einhorn's adamant denial raises another series of questions for Gelman. ''Can Norrie plead the insanity defense?" Epstein asked. "Norrie cannot - because an insanity defense is tantamount to a guilty plea. Even if there is a legitimate insanity defense, Norrie can't do it.
"If it's the client's choice to admit to all, some or none of the crime, can Norrie argue that it was third-degree murder, not first? Or can his position only be that he can only argue innocence?"
Segal, now a professor of law at Golden Gate University in San Francisco, but who proudly holds on to the appellation of "Philadelphia lawyer," suggests a counter-visual to the empty-chair problem. Except for brief addresses to the judge and jury, he would sit nearly silent himself. "I think that a lawyer might say, 'I don't have to validate what is clearly in my mind a suspect procedure. I'm not interested in giving substance to the appearance of fair representation.'
"On the other hand," said Segal, who refused to elaborate for fear of tipping Gelman's hand, "I see the possibility of some wonderful things that could be done that the prosecutor hasn't even begun to think about."
Prosecutor Rosen may have the advantage at trial, but that doesn't mean his job is pressure-free, said Michael McGovern, a colleague in the homicide division at the District Attorney's Office.
"Joel's got to keep it simple, stick to the nuts and bolts," McGovern said. "The other guy's got to conjure up a lot of smoke. The defense is going to have to portray what manner of man Einhorn was. You can't get a jury to convict unless they think a guy's evil. Whoever is able to define his character, wins.
"He was our Ken Kesey, the leader of Earth Day, our icon of the Sixties and Seventies, which were more simple, carefree days. Gelman is going to have to portray that side of him," said McGovern, a lifelong Philadelphian. "Joel is going to have to explore the dark underside. It's going to be kind of like a sociology lesson as well as a character portrait.
"The nightmare scenario is: What if the jury finds him not guilty? Then the guy comes walking back into town. Joel's got to win it because if he doesn't, if Einhorn gets acquitted, the guy comes walking back the next day.
"Delay always helps the defense. Witnesses get old. Witnesses get dead. Witnesses get memory loss," said McGovern. "You can't wait to get lucky and find him. If you get the verdict, it still may not mean anything . . . except that you've banished him from your kingdom."
IN THE END, EINHORN'S TRIAL may mean less to him than it does to the system.
"It has always been my view that the law is fair and impartial, favoring neither the prosecution nor the defendant," Pennsylvania Supreme Court Justice Steven A. Zappala wrote in his dissent from the Sullens opinion. ''But, today, the majority fosters injustice by holding that an accused who is absent without cause on his date of trial may be tried in absentia.
"It has always been said that, although we strive to achieve a perfect trial, the most that we can hopefully obtain is a fair trial," he continued. ''If the process is not fair, however, then the exercise has been futile."
"The whole purpose is to have that person at the trial," said Jules Epstein. "It's his trial - the defendant has the right to face his or her accusers. How do you preserve evidence? I don't have a good policy answer to that, I'll admit it. I can't satisfy all the concerns of society. My concern is not whether the result is wrong, but whether the process is wrong. . . . You can't look at the reliablity of the evidence if you don't look at the reliablity of the process.
"Justice," he said, "is determined by the procedure as well as by the outcome."