Zealous defense will peck at Horowitz's actions after wife's death.

On Saturday, Oct. 15, renowned criminal defense attorney Daniel Horowitz had been working since 7 a.m. on the trial of his latest high profile client, Susan Polk.

Around 6 p.m., Horowitz was heading home, having first made a stop to pick up some groceries. As the attorney wrestled plastic bags from the trunk, he noticed the car belonging to his wife, Pamela Vitale, still parked in the driveway--even though she was supposed to be someplace else.

Their new house was under construction. Once completed, it would be a 7,000-square-foot dream home, overlooking a canyon in Lafayette, an exclusive suburb of San Francisco. Meanwhile, the couple was living in a temporary trailer home.

When Horowitz opened the front door of the trailer home, he discovered his wife's dead body. She had been brutally beaten, 39 times, with a piece of crown molding from the construction work. The official cause of death: blunt force trauma to the head.

Chillingly, a religious symbol was carved into Vitale's back. It was a "Lorraine Cross," with two crossbars, one above and one below its midpoint.

At first, police admitted the investigation was "wide open" (that's code for "We're clueless"). Observers wondered whether the perpetrator might have been one of Horowitz's present or past clients, or even Horowitz himself.

But five days later, on Oct. 20, police arrested a skinny, 16-year-old kid from the neighborhood, Scott Dyleski. At a Contra Costa County courthouse, Dyleski will face a first-degree murder charge in connection with Vitale's death. Prosecutors intend to try him as an adult.

Is this the end of the story? Not likely.

In this column, I will examine how events during the critical "first 48 hours" of the investigation may shape the outcome of this brutal murder case. I will also discuss why police may not be confident in their ability to convict Dyleski.

Clues From the Scene

No witnesses except Horowitz have come forward, as of yet, so the relevant evidence, other than Horowitz's account, is forensic.

The scene provided some clues that suggest Vitale either knew her attacker well, or was surprised by him.

Vitale was wearing only a T-shirt and underwear when she was killed. That suggests that the crime likely occurred in the morning, before she had a chance to dress for the day. Consistent with this theory, Horowitz suggests that by the time he reached the scene in the evening, there were no signs of life left.

Vitale's attire also suggests that she either felt close enough to the perpetrator to comfortably appear in a state of semi-undress, or that she was surprised or overcome.

Which was it? It depends how one interprets the fact that there was blood-spatter evidence--the blood being Vitale's--on the outside of the trailer home door.

This evidence could mean that Vitale opened the door to a trusted person and was killed in her doorway. It would have to be a very trusted, close person indeed: I think most women would pull on a robe before speaking with anyone but a husband, lover, or female relative, unless the person at the door suggested the situation was very urgent.

Or it could mean that a stranger broke in, and perhaps Vitale tried to escape but was dealt blows on her threshold or just outside the trailer home. (In a usual case, it might also mean that a departing accuser transferred blood as lie left, but in this case, the accuser actually showered before he left!)

Certainly, whether the perpetrator was an intimate or a stranger, the evidence indicates a brutal struggle ensued. The large, heavy television was moved several feet, prompting Horowitz to comment, "She fought like hell."

Afterward, in addition to leaving the "Lorraine Cross" mark, the perpetrator apparently helped himself to a glass of water, washed his hands and took a shower before he left.

This is the kind of evidence that moves a jury to give a suspect the death penalty--although Dyleski, as a minor, cannot constitutionally be executed.

No DNA Match?

The photos of suspect Scott Dyleski on the Internet and television seem to scream, "teen in crisis." "The young man is portrayed in yearbook photos up until 2004 as a clean-cut--dare I say, happy--kid. But his most recent photograph, on the other hand, shows a youth with a definite "goth" propensity and a serious manner.

Dyleski has been described also as having a fascination with Satanism. That may be significant, for the Lorraine Cross is associated with Satanism. Indeed, along with a "lazy eight" sign, the Lorraine Cross is thought to symbolize brimstone. This symbol thus evokes the "fire and brimstone" that the Bible says God rained down on Sodom and Gomorrah; also, Satan, cast into Hell, is thrown into a lake of fire and brimstone.

Dyleski reportedly had scratches on his arms and legs, consistent with the kind of fierce struggle it seems Vitale engaged in. If skin and/or blood has been scraped from underneath Vitale's fingernails, and there's a DNA match, the case may be open-and-shut.

If not, this case may be a weak one. Reportedly, police believe Dyleski ordered merchandise with a stolen credit card and had it delivered to the Horowitz home; when he went to retrieve it, it wasn't there, and" in his anger, he killed Vitale. Truth may be stranger than fiction, but this narrative of events seems absurd. It says that Dyleski morphed from committing petty fraud into being a satanic ritual killer.

If Dyleski tests positive for drugs, especially hallucinogens, or if he has a history of impulse-control problems and/or uncontrollable rage that might give some explanation of why he might have behaved so bizarrely.

But if there is no DNA evidence and Dyleski's blood tests--and psychiatric history--are clean, jurors may find themselves hard-pressed to believe the official story.

The First 48 Hours

Might the perpetrator, instead, have been Horowitz himself?

As noted above, a husband would be among the few people a woman might let into her house while wearing only a T-shirt and underwear. And Horowitz conveniently had an alibi for much of the day, even though it was a Saturday.

Statistically, as many as one in every three women murdered in the United Sates are killed at the hands of their spouse or other "intimate partner." Jurors may not know this precise statistic, but they do know that when women die, it's often their husband who is the murderer So at a minimum, police should have treated Horowitz, at least initially, as a suspect--if only so they could definitely rule him out and successfully prosecute the true perpetrator.

Instead, in the minutes, hours and days following the brutal slaying--to hear Horowitz tell it--police handled him with kid gloves. This was a mistake, and it could come back to bite police, prosecutors, and ultimately, Horowitz.

Don't get me wrong: Personally, I think Horowitz is absolutely innocent. He is loved in his community, and respected in his field, with plenty of good reason. He seems to be a man of high moral fiber.

But if the defense of Dyleski ends up in the hands of a talented defense lawyer, that lawyer may be able to paint Horowitz as a strong alternative suspect--and use him to try to establish reasonable doubt about Dyleski's guilt.

Again, DNA evidence from under Vitale's fingernails may moot the issue and solve the case. But if it doesn't, police may come to regret the way they've conducted themselves thus far.

Dyleski--Reasonable Doubt

How might a talented defense attorney suggest that Horowitz, not Dyleski, could have been the killer--or, at least, that Horowitz's possible guilt was never sufficiently considered to eliminate reasonable doubt?

Easily. The attorney would start with the suggestion that police gave Horowitz preferential treatment. Police allowed Horowitz to sit in the "juvenile room" at the police station, not a standard interrogation room. And at one point, when Horowitz had to use the restroom, he was allowed to wash his hands, but were they examined for possible evidence first? It seems not, meaning crucial evidence might literally have gone down the drain.

Finally, there is no evidence that police asked Horowitz to take a lie detector test, as is often standard procedure in murder investigations involving a spouse.

And then, in addition to the suggestion of preferential treatment by the police, there is Horowitz's own odd behavior--which he himself described in interviews. (In the hours and days following Vitale's murder, Horowitz seemed to be an ever-present staple on some of the heavier hitting legal talks shows.)"

Horowitz said that lie touched his deceased wife's neck at least twice, and spent time at the scene holding her and telling her she was beautiful. Grief takes strange forms, but Horowitz's actions may have tainted the crime scene.

If so, that might raise reasonable doubt. What if Dyleski's prints aren't found on Vitale's body, but Horowitz's are? In the absence of DNA evidence, that fact alone might get Dyleski acquitted.

Horowitz held his wilt, fox" a long time--rather than searching the trailer home and adjoining construction site for her killer. Did that suggest that he knew the perpetrator wasn't in the house or nearby?

Moreover, Horowitz did not immediately alert the police. Rather, he says, he started to call 911, threw the phone down, mid shortly afterward, dialed the non-emergency police number.

A sharp defense lawyer will make much hay with facts like these. How could he know there was no longer an emergency, unless he knew that he himself was the perpetrator and thus the perpetrator was not at large? How could one dial the non-emergency police number if one knew a satanic ritual killer was at large?

Cooperate, Yes--TV, No

Horowitz's opting to go on talk shows. may also, in itself, alienate jurors. Jurors expect bereaved spouses to cooperate with police to the greatest extent possible; Scott Peterson's seeming failure to do so was held against him. But Horowitz went far beyond cooperation. Jurors who would have kept their own grief more private, may distrust him for sharing his with the public.

Essentially, the talented defense attorney Daniel Horowitz, in the days that have passed since his wife's horrible death, did everything a defense lawyer tells his own clients not to do!

He talked. And talked. Mid went on television. And did so without a lawyer by his side.

Why do we lawyers forbid our clients from doing what Horowitz did? Usually it's out of fear a client may incriminate himself.

In Horowitz's case, the corollary could come true. It may turn out that his words have created reasonable doubt that might not otherwise have existed. It jurors think there's a possibility Horowitz could have been the culprit " or that it might have been neighbor Joseph Lynch, against whom Horowitz had obtained a restraining order following a dispute--they may feel compelled to acquit Dyleski. A defendant need not just be the most likely choice among, three possible suspects, after all; he must be proven guilty beyond a reasonable doubt.

Jonna M. Spilbor--an attorney and legal analyst on Fox News Channel's "Kendall's Court" as well as a former San Diego city prosecutor and former federal prosecutor--wrote this commentary for FindLaw.com, where it, first appeared.