Prosecutors say Brian Walshe searched online for, ‘Can you be charged with murder without a body?’ The law says you can
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By Alisha Ebrahimji, CNN
Ana Walshe — a Massachusetts mother of three who hasn’t been seen since the new year — is still missing, even as her husband was charged this week with her murder.
Getting a murder conviction without a body may seem next to impossible. But with strong evidence — as prosecutors have argued they have against Brian Walshe — it’s not that rare, legal experts told CNN.
Some 86% of more than 500 so-called “no-body murder cases” that made it to trial from the 1800s to 2020 resulted in convictions, said Tad DiBiase, a former Assistant US Attorney for the District of Columbia who’s tracked such cases for years.
Among them is a former New York City plastic surgeon serving life in prison after killing his wife and dumping her body from a plane. A mother and son also were convicted of murdering a Manhattan socialite whose body never was found. And a jury last year convicted a man of murdering Kristin Smart, whose body hasn’t been seen since she went missing in 1996.
“Among prosecutors, the old adage was: no body, no murder. You had to have a body to prove that someone was actually killed. That has changed a lot over the years,” CNN Chief Law Enforcement and Intelligence Analyst John Miller told “CNN Tonight.”
“We know this can be done. And in (the Walshe) case, with DNA, blood evidence, cell phone, you know, E-ZPass, all of the things that string together for circumstantial evidence that didn’t exist just a short while ago, it’s not what defense lawyers used to have the advantage on.”
Walshe, 47, has pleaded not guilty in state court to charges of murder and disinterring a body without authority, as well as misleading investigators who were searching for his wife, for which he was jailed January 8. He is being held without bail.
“It is easy to charge a crime and even easier to say a person committed that crime. It is a much more difficult thing to prove it, which we will see if the prosecution can do,” his defense attorney Tracy Miner said Wednesday in a statement.
“We shall see what they have and what evidence is admissible in court, where the case will ultimately be decided.”
Suspect looked online for ‘murder without a body’
Corpus delicti — Latin for “body of the crime” and a common American law principle — holds that sufficient evidence a crime occurred must be shown before someone can be convicted of it.
But that doesn’t necessarily mean a physical body, DiBiase said.
A murder conviction without a body can be relatively easy to prove when “circumstantial evidence is overwhelming,” criminologist Casey Jordan told “CNN Newsroom” on Wednesday.
And it seems to be in the Walshe case, she added.
A central example may be a key question Googled by Brian Walshe just days after he said he last saw his wife — “Can you be charged with murder without a body?” — according to prosecutors who cited his online browsing history.
Indeed, in the days after 39-year-old Ana Walshe’s disappearance, Brian Walshe allegedly made a series of Google searches: “dismemberment and the best ways to dispose of a body,” “hacksaw best tool to dismember” and “can you identify a body with broken teeth,” according to prosecutors, including Lynn Beland on Wednesday in court.
Brian Walshe’s phone data also shows he traveled to apartment complexes in nearby towns, where prosecutors accuse him of disposing of evidence in dumpsters, they’ve said. Surveillance video from two complexes shows his Volvo and a figure fitting his description throwing bags into the dumpsters, Beland alleged.
Ten trash bags of evidence found at a garbage collection station contained apparent blood stains, a hacksaw, hatchet, towels, rags, gloves, a heavily stained rug and a full-body hazmat suit, Beland said. In the bags, investigators also found Ana Walshe’s Covid-19 vaccination card, a Prada purse she carried and part of a necklace consistent with one she can be seen wearing in photos, she said.
DNA from Ana and Brian Walshe was found on some bloody items in the bags, she said.
A search of the couple’s home uncovered blood stains and a bloody knife in the basement, prosecutors have alleged. And blood was found in Brian Walshe’s car, Beland said.
Prosecutors also have listed items Brian Walshe allegedly bought that they believe are tied to his wife’s killing. At a Home Depot on January 2, Walshe wore a face mask and rubber gloves as he bought mops, brushes, tape, a Tyvek hazmat suit with boot covers, buckets, baking soda and a hatchet, they’ve said.
Key components of a no-body murder case
No-body murder cases typically don’t feature witnesses but have at least one of three key types of evidence, said DiBiase, who in 2006 prosecuted the second such case in Washington, DC, according to a news release from that federal prosecutor’s office.
The types, he said, are:
• Forensic evidence — the gold standard and most common — can be DNA from blood or hair fibers or cell records placing a person in a particular place.
• Specific evidence can include a defendant’s confession to friends and relatives or simply their retelling to someone of the crime.
• Confessions to law enforcement usually come when a criminal’s conscience overwhelms them.
The law treats confessions to friends and family very differently than confessions to law enforcement, DiBiase said, because police must advise a suspect of their rights before getting a statement, whereas friends and family don’t have to.
Confessions to people who aren’t police — including jailhouse informants — also typically not recorded or written down, while most police confessions are, he said.
In the Walshe case, prosecutors have not obtained a confession, but what they’ve said so far offers “a map of forensic evidence and placing Brian Walshe in the locations where that forensic evidence was found,” defense attorney Misty Marris told “CNN Newsroom” on Wednesday.
“This all under the guise of those very, very damaging social media searches that really was that blueprint of his actions, according to prosecutors,” she said. “This really put the puzzle together to show the story, which is what was needed in a circumstantial evidence case to establish probable cause.”
How evidence played a role in other no-body cases
Over time, the notion a body is needed prove someone was killed has changed a lot, Miller said.
It wasn’t until nearly 40 years after the infamous disappearance of 6-year-old Etan Patz that prosecutors in 2017 — using the suspect’s own words to investigators and mental health experts — secured a murder conviction. The case lacked forensic evidence tying the suspect to the crime, and Patz’s body was never found.
To convict Smart’s killer some 26 years after she vanished, prosecutors relied on soil samples from the suspect’s father’s home that tested positive for human blood, photos of the suspect’s dorm room and the detail that cadaver dogs had been alerted to the smell of human remains while searching the building, CNN affiliate KSBY reported.
And a New York City plastic surgeon was convicted in 2000 based entirely on circumstantial evidence — with no forensics or eye witnesses — of killing his wife, Gail Katz, whose body was never found, CNN affiliate WABC reported. The widower was serving to up life prison sentence when he made a chilling confession to the crime during a 2020 parole board hearing.
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