Missing-body trial has precedents

Prosecutors decided to charge Schubert with his missing wife’s murder in the wake of a civil jury’s 1998 verdict finding him liable for her wrongful death. He has pleaded innocent and insists his wife simply walked away from her life, abandoning her car, cash and two sons, then ages 6 and 8.

Missing-body murder trials can lead to convictions because jurors are instructed to view circumstantial evidence as having the same weight as other forms of proof. The 1964 case of murderer Joel Lung established the legal precedent.

Lung, of Everett, confessed to shooting his wife and dumping her body in the river after police found her bloody, bullet-riddled coat. He challenged his conviction, however, arguing it shouldn’t stand because her body hadn’t been found.

The state Supreme Court in 1967 held that notion would lead to "absurdity and injustice" and afford a killer "absolute immunity if he were cunning enough to destroy the body or otherwise conceal its identity."

The ruling in the Lung case was a factor in Nelsund’s trial nearly 20 years later. A jury found that Neslund shot her husband and disposed of his remains in a burn barrel. They heard evidence that she had told numerous friends and relatives about the killing. Investigators also found human blood in the house and spattered on a handgun in a pattern uniquely caused by a bullet striking flesh.

On appeal, Neslund challenged her first-degree murder conviction, saying there wasn’t any evidence of premeditation. But to prove the murder was planned, all prosecutors needed to show was sufficient circumstantial evidence that she’d made past threats and had taken steps to acquire the handgun used in the killing, the state Supreme Court ruled.

Neslund’s trial was presided over by then-Snohomish County Superior Court Judge Robert Bibb, who was recruited by San Juan County officials to handle the case. Now retired from the bench but still practicing law, Bibb, of Everett, said this week that Neslund’s trial was memorable for a number of reasons, including its unique facts and cast of characters, which included several Lopez island eccentrics, ship captains and a key witness who drank a pint of whiskey every day.

There was plenty of proof a murder had occurred in the Neslund home, but it was a tough case, Bibb said.

"It still depends on evidence," he said. "Mainly, it’s a tough sell to put it over to the jury unless you have some pretty strong evidence."

Appreciating the difference between strong suspicion and hard evidence is critical to a fair trial, said Lenell Nussbaum, who is handling Sherer’s appeal of his conviction and 60-year prison sentence.

"A good chance he did it is not a basis for locking people up for the rest of their lives," she said. "If there are reasons to doubt whether he did it, then he is not guilty."

Nussbaum is a lawyer whose appellate work has changed state law. In 1993, she convinced the state Supreme Court that Andy Janes, a Mountlake Terrace teen-ager sentenced to 10 years in prison for killing his mother’s abusive live-in boyfriend, deserved another shot at justice. The precedent-setting decision cleared the way for lawyers to argue that battered child syndrome is a factor in self-defense claims raised by children who strike back at their abusers.

Sherer’s trial focused heavily on allegations of domestic violence involving his missing wife and other women. Nussbaum said she believes that cases like the one brought against her client hinge on the perception there is a strong link between domestic violence and homicide.

Sherer was barred in his trial from offering alternate explanations for his wife’s disappearance, including the suggestion that she may have been the victim of serial killer Robert Yates Jr. of Spokane, who has admitted killing at least 13 people in Washington state starting in 1975.

Nussbaum said that isn’t fair, because there are many possible explanations for a mysterious disappearance. One example is the May 1985 disappearance of Jody Roberts, a former newspaper reporter from Tacoma who developed amnesia and resurfaced 12 years later in Alaska, living under a different name.

"These things actually do happen, and even though our newspapers more actively cover cases of husbands who kill their wives" it does not mean that all missing people are victims of a murderous spouse, she said.

Prosecutors in the Schubert case say detectives searched around the world for signs of the missing woman and came up empty-handed. They allege Juliana Schubert’s disappearance in June 1989 was the final, fatal chapter in a failed nine-year marriage.

You can call Herald Writer Scott North at 425-339-3431

or send e-mail to north@heraldnet.com.