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Caroline prosecutor wins no-body murder conviction

Posted on Wednesday, August 19, 2015 at 10:56 am

It is a rarity for a prosecutor to be involved in a murder case for which there isn’t a dead body to introduce as evidence of the crime.

Caroline Commonwealth’s Attorney Tony Spencer has prosecuted two such cases and secured convictions in both. That places him among no more than a handful of prosecutors in the nation. Spencer said he knows of only one other.

Spencer’s experience in the 2009 conviction of Lawrence Gaudenzi for the 1995 murder of his wife Lisa was a major factor in his selection as special prosecutor in the case against James Todd Kessler, the Northern Neck resident who was found guilty Aug. 4 of the 2014 murder of his girlfriend, Claudine J. Gifford.

Former Assistant U.S. Attorney for the District of Columbia T. A. DiBiase has cataloged no-body murder trials for an upcoming book on how to prosecute them. He has tabulated 444 trials in the 50 states plus Puerto Rico and the Virgin Islands through June 7, 2015. About 88 percent of them have resulted in convictions. The Kessler case will soon be added to that list.

“Now that I have had two no-body murder cases, it is amazing how different they are and also how similar they are,” Spencer said.

Although it certainly helps the prosecution to produce evidence of a body lying on a coroner’s slab and the findings of an autopsy as to cause of death, the Commonwealth only needs to convince the judge or jury beyond a reasonable doubt that there was a victim and that the accused killed the victim, Spencer noted.

It is also unnecessary to prove to the jury’s satisfaction exactly how the accused killed another human being, Spencer added.

“Both cases started out as missing person cases. Gaudenzi went missing in 1995, and her husband was not prosecuted until nearly 15 years later. Kessler almost immediately was the suspect in a homicide,” Spencer said.

Because Kessler was a suspect all along, and this received extensive pretrial publicity in the Northern Neck, the trial was moved to Fredericksburg.

Both cases concerned a man killing his significant other over the fear that she was leaving him that very day, Spencer observed.

Gaudenzi–Marto

Lawrence Gaudenzi was accused of killing his wife Lisa (Marto) Gaudenzi in 1995. For various reasons the case did not come to trial until many years had passed. She was listed as missing when she did not show up for Officer Candidate School at Fort Lee, although her father, Joe Marto, suspected Gaudenzi all along. He badgered law enforcement personnel to keep the case file open.

Marto approached Spencer in January 2008, shortly after Spencer took office as Commonwealth’s Attorney. “He told me his daughter had been missing for 13 years and he was certain that his son-in-law had killed him,” Spencer recalled.

After reviewing the particulars of the case, Spencer agreed, as did several dedicated Virginia State Police investigators. Meanwhile, Gaudenzi had changed identities and was living in California, fueling suspicions that he was hiding something.

At the end of the second day of the trial, Gaudenzi dropped his protestations of innocence and pled guilty in return for a 25-year sentence. “I think he saw the handwriting on the wall,” Spencer said.

After his conviction and incarceration, Gaudenzi eventually told investigators that he cut up his wife in their Lake Land ‘Or home, and that he buried the remains in a remote part of Spotsylvania County.

The shallow grave was discovered and Marto finally was able to bury what was left of his daughter’s remains with full military honors.

Kessler–Gifford

Gifford, 43, was last seen leaving the Pelican Reef Tiki Bar at Windmill Point in the company of her boyfriend, Kessler, 54, on the evening of July 6, 2014. Less than 13 months later, after a grueling seven-day trial held in Fredericksburg following a change-of-venue request, a jury convicted Kessler and recommended a 45-year sentence.

Unlike the Gaudenzi case, Kessler fought hard right up to the jury deliberations, Spencer said.

“It was the most complicated case I’ve had. He [Kessler] had Virginia’s ‘A team’ on defense,” Spencer said, referring to experienced defense lawyer Craig Cooley and his associates. (Cooley previously defended D.C. Beltway sniper Lee Boyd Malvo, among others.)

Spencer said that, despite some similarities between the cases and the motivations of the defendants, Gaudenzi and Kessler were different personalities.

“Gaudenzi had a very difficult childhood and he was afraid his wife would take their daughter away,” Spencer said.

“Kessler had a very privileged upbringing. He and Gifford had only been together about a month and he killed her in a cocaine- and alcohol-fueled jealous rage,” Spencer noted.

Knowing Kessler’s background and temperament, and that he would probably take the stand in his own defense, Spencer did a lot of pre-trial preparation work.

“I consulted with a man named Robert Morton who is a retired supervisory agent with the FBI’s Behavioral Analysis Unit. He and I consulted on what I should do on cross-examination.

“We decided that Kessler is a narcissist, that he wants to tell a story and thinks he can charm the jury. The best technique was to break down everything he said about their relationship history,” Spencer said.

After listening to two hours of testimony from Kessler, Spencer cross-examined him for another three hours, poking holes in Kessler’s story that he let Gifford out of his truck by the roadside and never saw her again.

“I used his own statements and confronted him with simple yes-and-no questions to frustrate him, thinking that his true personality would show. He started getting angry and tried interrupting my questions. It was pretty clear he was a liar,” Spencer said.

In the end, Kessler was caught up in his web of lies.

“A case like this depends entirely on circumstantial evidence,” Spencer said.

Kessler was seen fighting with a drunken and unruly Gifford as they left the bar on the Independence Day weekend. There was blood on Kessler’s shirt, in his truck and in his home. His explanation was that Gifford had snagged a fingernail getting out of the truck.

The defense contention that Gifford had packed a bag in a drunken stupor and simply left town, never to be heard from again, did not wash with the jurors.

“She was an alcoholic, but she was devoted to her daughter. They had been in constant contact with one another,” Spencer said.

The prosecution had to deal with what Spencer called a “phantom sighting” of the victim in this case as well as in the earlier case.

“We depend on citizens trying to help out,” Spencer admitted.

The defense produced a witness who swore he saw Gifford on a flight between Dallas-Ft. Worth and Richmond subsequent to her disappearance.

“He was adamant,” Spencer said. But there were significant height and weight differences between the person that the witness said he saw, and the victim.

Spencer presented the jury with a plausible scenario that had Kessler beating and strangling Gifford, stuffing her body into a large wardrobe, weighing it down with cinderblocks, then taking the suitcase out in his boat and deep-sixing it in one of the area’s many waterways.

Cinderblock residue was found on Kessler’s dock and witnesses saw him power-washing the area two days after Gifford disappeared. The wardrobe, which witnesses testified had been in Gifford’s possession, was never seen again.

After deliberations, the jury of 10 women and two men returned a guilty verdict of murder and disposing of a body, and recommended a 45-year sentence for Kessler.