No body? Murder case still possible
07/07/2010 2:09 PM
07/07/2010 2:09 PM
The investigation of Adam Herrman's disappearance has gone on for more than two months, and the Butler County prosecutor has said that murder charges are possible.
But so far, no one has uncovered any remains.
This Saturday, Butler County investigators plan to search a fourth time in woods near the Towanda mobile home park where Adam disappeared in 1999 at age 11.
Prosecutors say that even without a body, a case can be made if the state can present enough circumstantial evidence to convince jurors that a person is really dead.
Defense lawyers counter that in a murder case involving a disappearance, it is difficult to show proof beyond a reasonable doubt without a body or bones that can be linked to the victim.
"All they have is a missing person," said Warner Eisenbise, the Wichita attorney representing Valerie Herrman, Adam's adoptive mother.
"They have conjecture. But conjecture doesn't rise to proof beyond a reasonable doubt," Eisenbise said. "For all we know, this young man is living somewhere. We can argue that there's no body, there's no crime. . . .
"And then we can argue there's a body, (but) who did it?"
Unless investigators "are holding a card that we don't know about, they do not have any physical evidence . . . even trace evidence proving that the child was a victim of a homicide," Eisenbise said.
It's possible that Valerie Herrman could be charged with child abuse or not reporting Adam missing - but not murder, he said.
Butler County Attorney Jan Satterfield has said that Doug and Valerie Herrman are suspects in Adam's disappearance and that the investigation could lead to murder charges, with the underlying crime being child abuse.
She could not be reached for comment on what Eisenbise said about the case.
Paul Morrison, former Kansas attorney general and former Johnson County district attorney, indicated there are elements in the Adam Herrman case that could bolster the prosecution.
It is easier to prove that someone who disappeared was murdered if the person led a stable life, Morrison said. And the longer they remain missing, the easier it is to show they were victims, he said.
As the Johnson County prosecutor in 1990, Morrison obtained murder convictions against Richard Grissom in the deaths of three young women who disappeared in June 1989 and whose bodies were never found. According to court records, all three women were known to be reliable. They weren't likely to disappear unless they had been harmed.
Most children lead stable lives, but an exception is a chronic runaway, said Morrison, who now has a private law practice in Olathe.
Adam had a history of running away, Valerie Herrman said in an Eagle interview.
Convictions do happen
Despite the challenges of proving guilt in a bodyless case, it can be done.
At least four Kansas inmates are serving life sentences in bodyless murder cases. A fifth was paroled in January 2007 after serving more than two decades in prison.
Although Eisenbise has never defended someone in a bodyless case, he said his understanding is that such cases often end up with deadlocked juries.
"And for good reason," because the cases are "purely circumstantial," he said.
Butler County investigators have distributed a computer-generated photo of what Adam might look like now. They have conducted interviews and searched the Towanda mobile home park where Adam disappeared, along the nearby Whitewater River and in the manufactured home where he lived and have executed search warrants at the Herrmans' current home in Derby.
While Butler County Sheriff Craig Murphy said he has not ruled out that Adam is alive, he has consistently said that investigators are looking for remains.
Murphy has declined to say whether investigators have obtained physical evidence.
Even if investigators find Adam's remains, "that doesn't prove beyond a reasonable doubt my client or the husband did it," Eisenbise said.
In interviews with The Eagle, some of Valerie Herrman's close relatives have accused her of abusing her adoptive son over the years.
Valerie Herrman told The Eagle that authorities once investigated after she spanked Adam with a belt and someone saw bruises. She said she regretted using a belt.
She said Adam ran away in early May 1999 after she spanked him with a belt and that she didn't report his disappearance after he didn't return because she feared it would cause authorities to remove Adam and his two younger siblings from her custody.
But Morrison, the former prosecutor, said the case raises a question: "Why would any parent not immediately report a missing child?"
Court records show that the Herrmans continued to list Adam as a dependent in court documents years after he disappeared. Valerie Herrman said that they continued to accept $700 monthly adoption subsidy payments for Adam until his 18th birthday in 2005 - six years after he disappeared.
Relatives have said that the Herrmans explained Adam's absence by saying he went back into state custody.
If the prosecutor can successfully argue that the Herrmans lied more than once, it could be used to challenge their credibility, said Morrison, who resigned as attorney general in 2007 after his affair with one of his former district attorney staffers became public.
Would take the Fifth
The Herrmans have suffered since Adam's disappearance and the investigation became known, Eisenbise said.
Because of harassing phone calls from strangers and relatives, the Herrmans have switched to an unlisted phone number, Eisenbise said.
It is possible that Valerie Herrman could receive a subpoena to come in for questioning, under oath, by authorities, Eisenbise said. But so far she has not received a subpoena, he said.
"We would invoke the Fifth Amendment, (for) every question," he said. "We have a right not to say anything. That doesn't mean that we're guilty of anything."
The Herrmans have separate attorneys to ensure each has adequate legal representation, Eisenbise said. Still, they have a joint defense agreement - allowing their lawyers to share information, he said.
Dan Monnat, whose Wichita law firm is representing Doug Herrman, said his client is "innocent of any harm to Adam Herrman."
"Prosecutors and courts should be very cautious in leaping to the conclusion that disappearance cases are murder cases," Monnat said. The risk, he said, is that an innocent person could be convicted.
Monnat said bodyless cases "usually amount to nothing more than ambiguous circumstantial evidence threaded together by sheer speculation."
Monnat helped to defend a couple in a Stanton County murder case involving a man who disappeared in 2005. The man's body hasn't been found. Murder charges in the case were dismissed last year.
Reno County District Attorney Keith Schroeder said defense attorneys typically refer to circumstantial evidence "as if it's a dirty word."
"Circumstantial evidence sometimes can be more powerful than many other types of evidence," Schroeder said. Direct evidence such as eyewitness testimony can sometimes be unreliable, he said.
Courts define circumstantial evidence "as evidence that tends to prove a fact in issue by proving other events or circumstances" and relying on "reasonable inference by the jury."
Schroeder said he uses an analogy when describing circumstantial evidence to potential jurors: "You didn't have to see it snow to know it snowed."
When prosecuting a case based on circumstantial evidence, he said, "You have to put together the pieces of the puzzle so that missing pieces are obvious."