SJC hears arguments in latest bid by Greineder to win a new trial

By Tom Farmer

The Massachusetts Supreme Judicial Courtheard arguments today in Dirk Greineder’s latest bid to win a new trial based on his argument that a DNA expert who did not conduct testing in his case should not have been allowed to testify about the results during his trial.

 Greineder’s attorney, James L. Sultan, and Norfolk County Assistant District Attorney Varsha Kukafka, made their arguments before the seven SJC justices at the John Adams Courthouse in Boston.

Greineder, 71, a highly respected doctor, was convicted in June 2001 of killing his wife, Mabel “May’’ Greineder, during an early Halloween morning walk in 1999 at Wellesley’s Morses Pond. An investigation by State and Wellesley police revealed that the allergist and expert on childhood asthma was leading a secret life with prostitutes, an Internet dating service, and on-line pornography prior to killing his wife.

The SJC affirmed Greineder’s conviction in November 2010, but Sultan, filed a writ of certiorari with the United States Supreme Court in January 2011 arguing that Greineder deserved a new trial because his Sixth Amendment rights to confront an accuser were violated because the Commonwealth did not put on the witness stand scientists from Cellmark Diagnostics who conducted and supervised the DNA testing. Instead, Dr. Robin Cotton, who was the director of Cellmark at the time, testified about the overall testing process and the results which partially matched Greineder’s DNA profile to a knife used to kill his wife and two brown work gloves worn by her killer.

The U.S. Supreme Court did not rule or comment on Greineder’s writ of certiorari, but did vacate the SJC’s affirmation of his conviction and sent the issue of the DNA testing back the Massachusettscourt to reconsider in light of Williams vs. Illinois, a case decided in June by the Supreme Court.

According to the Chicago Tribune, with a splintered 5-4 vote, the justices upheld the conviction of aChicagorapist who was found guilty based on a DNA match also done by Cellmark Diagnostics. The court’s majority said the expert testimony provided by an Illinois State Police lab analyst was sufficient. No one from Cellmark testified about its testing during the trial.

The ruling was a reversal from the Supreme Court’s 2009 decision in Melendez-Diaz vs. Massachusetts in which the justices concluded that a criminal defendant’s right to confront his accusers requires live trial testimony from crime lab analysts who identified him as the culprit.

Sultan argued that Cellmark analyst Wendy Magee should have testified about testing she conducted on Greineder’s fingernails and a hammer, knife and pair of brown work gloves used by his wife’s killer, that Cotton’s testimony during the Greineder trial “parroted’’ Magee’s reports rather than Cotton providing her own opinion and that it amounted to testimonial hearsay in violation of the U.S. Constitution’s Sixth Amendment’s Confrontational Clause.

But Kukafka countered that the Confrontation Clause was not violated by Cotton who reviewed the complete case file and reached an independent conclusion that Greineder was not excluded as a source of DNA on the murder weapons and gloves.

The SJC justices had pointed questions for both attorneys during the 40-minute hearing about their interpretations of the Supreme Court’s Williams ruling and other case law.

The SJC rejected Greineder’s arguments concerning the DNA testing issue when it affirmed Greineder’s conviction in 2010. The court ruled that Dr. Cotton did state her own opinions and that Murphy and Greineder did not object to them.

In fact, the SJC ruled that Greineder and his trial attorney, Marty Murphy, used the Cellmark results as part of his own defense strategy. “Defense counsel gave his opening statement immediately after the prosecutor’s opening,’’ the SJC wrote in its ruling. “In his opening (defense) counsel stated that Cellmark found an unknown human’s DNA on the victim’s blue left-hand glove. He quoted from the Cellmark report, and let the jury know that a significant part of the defense would be the failure of the ‘police and prosecutors’ to ‘conduct a fair and objective search for the truth. They never sought out other suspects.’ He also promised the jury they were ‘going to hear a lot about DNA testing in the course of this case.’’’

The SJC also noted that Murphy “made extensive use of the data prepared by Magee’’ in his cross-examination of Dr. Cotton. “This cross-examination buttressed two pillars of the defense, namely, the unreliability of Cellmark’s testing procedures, which necessarily affected the credibility of Dr. Cotton’s opinion as to the high probability of the defendant being a contributor to the DNA on the knife and brown gloves, and the defense theory that a third party committed the murder,’’

As such, the SJC ruled that “Dr. Cotton’s opinion was admissible, and experienced defense counsel prepared and pursued two effective strategies as a response to a very high likelihood her opinion would be admitted. One strategy was to reduce some of the sting of Dr. Cotton’s opinion; the other was to elicit support for his third-party culprit defense. Both strategies depended entirely on the use of Magee’s data in cross-examination of Dr. Cotton.

“Moreover,’’ the SJC ruling continued, “counsel benefitted from not having Magee testify because it enabled him to frustrate Dr. Cotton’s testimony at points where she simply had no knowledge about analytical choices that Magee made in producing the (data), which probably reflected negatively on Dr. Cotton’s credibility. The data were an integral part of the defense, and it was going to be the subject of inquiry whether Magee testified or not.’’

The SJC concluded that “in the context of this case, there was no prejudice in the admission of Magee’s test results.’’

The SJC is expected to rule on today’s arguments within the next several months and decide whether to uphold Greineder’s conviction or grant him a new trial.

The Commonwealth responds in Greineder’s latest appeal

By Tom Farmer

The Commonwealth has filed its response to the Massachusetts Supreme Judicial Court which will decide an appeal by Dirk Greineder who argues he deserves a new trial because a DNA expert who did not conduct testing in his case should not have been allowed to testify about the results during his trial.

Greineder, 71, a highly respected doctor, was convicted in June 2001 of killing his wife, Mabel “May’’ Greineder, during an early Halloween morning walk in 1999 at Wellesley’s Morses Pond. An investigation by State and Wellesley police revealed that the allergist and expert on childhood asthma was leading a secret life with prostitutes, an Internet dating service, and on-line pornography prior to killing his wife.

The SJC affirmed Greineder’s conviction in November 2010, but the former doctor’s attorney, James L. Sultan, filed a writ of certiorari with the United States Supreme Court in January 2011 arguing that Greineder deserved a new trial because his Sixth Amendment rights to confront an accuser were violated because the Commonwealth did not put on the witness stand scientists from Cellmark Diagnostics who conducted and supervised the DNA testing. Instead, Dr. Robin Cotton, who was the director of Cellmark at the time, testified about the overall testing process and the results which partially matched Greineder’s DNA profile to a knife used to kill his wife and two brown work gloves worn by her killer.

The U.S. Supreme Court did not rule or comment on Greineder’s writ of certiorari, but did vacate the SJC’s affirmation of his conviction and sent the issue of the DNA testing back the Massachusetts court to reconsider in light of Williams vs. Illinois, a case decided in June by the Supreme Court.

According to the Chicago Tribune, with a splintered 5-4 vote, the justices upheld the conviction of a Chicago rapist who was found guilty based on a DNA match also done by Cellmark Diagnostics. The court’s majority said the expert testimony provided by an Illinois State Police lab analyst was sufficient. No one from Cellmark testified about its testing during the trial.

The ruling was a reversal from the Supreme Court’s 2009 decision in Melendez-Diaz vs. Massachusetts in which the justices concluded that a criminal defendant’s right to confront his accusers requires live trial testimony from crime lab analysts who identified him as the culprit.

Sultan cites both Supreme Court cases in his argument to the SJC that Greineder deserves a new trial. He argues that Dr. Cotton’s testimony during the Greineder trial “parroted’’ Cellmark analyst Wendy Magee’s reports rather than Cotton providing her own opinion and that it amounted to testimonial hearsay in violation of the U.S. Constitution’s Sixth Amendment’s Confrontational Clause.

But in a brief filed last week by Norfolk County Assistant District Attorney Varsha Kukafka, she argues the SJC already rejected Greineder’s argument when it upheld his conviction in 2010 and should do so again.

Kukafka argues that the “Confrontation Clause was not violated by testimony of the laboratory director who did not test the samples but reviewed the complete case file and reached an independent conclusion that the defendant was not excluded as a source of DNA on the murder weapons and gloves’’ and that Cotton’s “testimony during direct examination that referenced the underlying data was not ‘testimonial hearsay.’’’

Cotton, Kukafka argued, had worked at Cellmark for 12 years since the lab had started DNA testing for criminal investigations and “had overall responsibility for validation studies and all work done by the laboratory,’’ noting that Cotton has a doctorate in molecular biology and biochemistry and had qualified as a DNA expert in courts “at least forty times’’ at the time of the Greineder trial.

The Supreme Court ruling in the Williams case backs the Commonwealth’s argument, Kukafka continued, noting that the justices concluded that “the Confrontation Clause does not restrict an expert witness from presenting her opinion based on facts made known to her and on which she relied in forming her own opinion although she does not have first-hand knowledge of those facts.’’

Since the Williams case was decided federal and state courts “have concluded that expert DNA testimony based on data prepared by another analyst did not violate the confrontation clause,’’ Kukafka stressed.

Greineder and Marty Murphy, his trial attorney, used the DNA results as part of their trial strategy “that spanned pre-trial to closing arguments,’’ Kukafka noted, adding that “the defendant’s claims that he could not meaningfully cross-examine the Commonwealth’s expert and would have been better off if no DNA evidence had been offered into evidence is just second-guessing of able trial counsel (Murphy) with arguments fully litigated and rejected by the trial judge and this Court.’’

In fact, the SJC ruled in 2010 that Greineder and attorney Murphy used the Cellmark results as part of their defense strategy. “Defense counsel gave his opening statement immediately after the prosecutor’s opening,’’ the SJC wrote in its ruling. “In his opening (defense) counsel stated that Cellmark found an unknown human’s DNA on the victim’s blue left-hand glove. He quoted from the Cellmark report, and let the jury know that a significant part of the defense would be the failure of the ‘police and prosecutors’ to ‘conduct a fair and objective search for the truth. They never sought out other suspects.’ He also promised the jury they were ‘going to hear a lot about DNA testing in the course of this case.’’’

The SJC also noted that Murphy “made extensive use of the data prepared by Magee’’ in his cross-examination of Dr. Cotton. “This cross-examination buttressed two pillars of the defense, namely, the unreliability of Cellmark’s testing procedures, which necessarily affected the credibility of Dr. Cotton’s opinion as to the high probability of the defendant being a contributor to the DNA on the knife and brown gloves, and the defense theory that a third party committed the murder,’’

As such, the SJC ruled that “Dr. Cotton’s opinion was admissible, and experienced defense counsel prepared and pursued two effective strategies as a response to a very high likelihood her opinion would be admitted. One strategy was to reduce some of the sting of Dr. Cotton’s opinion; the other was to elicit support for his third-party culprit defense. Both strategies depended entirely on the use of Magee’s data in cross-examination of Dr. Cotton.

“Moreover,’’ the SJC ruling continued, “counsel benefitted from not having Magee testify because it enabled him to frustrate Dr. Cotton’s testimony at points where she simply had no knowledge about analytical choices that Magee made in producing the (data), which probably reflected negatively on Dr. Cotton’s credibility. The data were an integral part of the defense, and it was going to be the subject of inquiry whether Magee testified or not.’’

The SJC concluded that “in the context of this case, there was no prejudice in the admission of Magee’s test results.’’

The SJC will now hear oral arguments on the matter on Thursday, Nov. 8, at 9 a.m.

A Review in the New York Daily News Books Blog

BY Alexander Nazaryan

On the morning of Oct. 31, 1999, Dr. Dick Greineder and his wife May decided to take a walk. Later that day, trick-or-treaters would arrive. Just then, it was clear and bright. They drove from their home at 56 Cleveland Rd. in the wealthy Boston suburb of Wellesley to Morses Pond, a park that abuts the prestigious women’s college bearing the same name as the town. 

The Greineders, who had been married for 31 years, parked their van where Turner Rd. was blocked from further vehicular traffic. With them was Zephyr, one of their two German shepherds; the other, Wolf, had recently become too aggressive for such leisurely strolls.

What happened next has been in some form of dispute for the past 13 years. Dr. Greineder – then a respected allergist at the Brigham & Women’s Hospital in Boston, today an inmate at a Massachusetts state prison in Norfolk – says he and his wife were walking through a wooded area of the park when she started complaining of a bad back.

He went ahead with Zephyr, doubling back some minutes later. When he returned, Dr. Greineder found his wife lying in the undergrowth, her neck slashed and her chest full of puncture wounds. He says he checked her vitals, ran back to his car (where his cell phone was charging) to call for help and then returned to the side of his already-dead wife. Greineder has always maintained that an unknown assailant had killed May.

That is not what the police would determine, nor what the prosecutors would argue successfully before a jury. Their unwavering position has been that Greineder killed his wife, first by striking her on the head with a hammer, then stabbing her to death. They point to what they claim is DNA evidence from the crime scene, a pair of recovered work gloves that match those Greineder used at home, the blood splatter patterns on Greineder’s clothes and statements he gave after the crime, which range from the contradictory to the bizarre.

Most damningly, they painted for the jury that convicted Greineder of murder in the summer of 2001 the portrait of a man who solicited prostitutes and reveled in hardcore Internet pornography. Prosecutors claimed that May had already discovered her husband’s stash of Viagara and was on the verge of uncovering his entire sordid sex life, which is why he supposedly felt compelled to silence her. Though Greineder’s lawyers have generally maintained that his sex life was extraneous to the case at hand, they are as hard for the reader to disregard as they must have been for the jury.

That conviction came just before 9/11, so it is somewhat understandable that Greineder’s case has receded in the public memory. But, in fact, that case remains in limbo: Just this June, the U.S. Supreme Court ordered Massachusetts’ highest court to reexamine the conviction based on what may have been compromised DNA-based testimony from prosecution experts. That means that Greineder could yet have another day in court to plead his case.

Now we have “A Murder in Wellesley: The Inside Story of an Ivy-League Doctor’s Double Life, His Slain Wife, and the Trial That Gripped the Nation,” by Tom Farmer, who reported on the story for the Boston Herald, and Marty Foley, then a detective with the Massachusetts State Police and one of the lead investigators on the case. The shared authorship is slightly misleading, since it is quite obvious that Foley was less an author than a voluble primary source, along with Belinda Markel, a niece of the Queens-born May who seems to have concluded rather early that Dirk was responsible for her murder and appears to not have been very shy in giving her side of the story to the authors of this book.

Among those, however, who have never believed that Greineder was guilty are his three children, Kirsten, Britt and Colin. Like him, all three are Yale graduates; Kirsten and Colin are also doctors. “My father did not commit this crime. My father did not kill my mother,” Kirsten said confidently during his trial from the witness stand – and there is, after all, no confidence quite like the confidence of a daughter in her father. Her siblings were similarly unwavering.

Farmer and Foley are at the other extreme, certain from the very first that Greineder is their man, a cold fish with a cruel heart. Their is a discomfiting self-assurance about “A Murder in Wellesley,” a certainty that the best true crime knows to avoid. Foley and his colleagues, unsurprisingly, shine with near-impeccable professionalism, while Greineder is made to seem a pervert and a liar, one who is more concerned about his dogs than his dead wife, given to rambling statements about his own innocence before he has been charged with anything and sending naked pictures of himself to potential threesome prospects.

There is plenty here to indict Greineder in the reader’s mind: DNA testing aside, it is hard to square the doctor’s assertion that he had tried to revive his wife with the fact that his hands were clean. The prosecution alleged he used gloves during the murder, then tried to dispose of them, unsuccessfully. As would be noted during the trial, Greineder’s clean hands are “not consistent with the lifesaving effort the doctor had described.” That cleanliness, in the end, was damning.

As far as the reader is concerned, the details dished out by Markel (and, I imagine, her mother Ilse Stark, who is May’s sister), which suggest that Greineder was at best callous, at worst insane. In these pages, he refers to his dead wife as “the body,” and after a funeral that is portrayed as having been done on the cheap, he greets mourners in a mood that is “unusually jovial, even frivolous…almost boisterous,” at one point joking with the Yale swimming coach, as Farmer and Foley tell the tale.

What never becomes clear is just why Greineder would kill his wife, even if, as was alleged, she had discovered his stash of self-prescribed Viagara and was on the cusp of finding out about his hooker trysts and predilection for porn. After all, some men cheat and many look at porn; of these, plenty are discovered by their spouses, but very few – almost none, statistically – resort to murder. Farmer and Foley stay on the surface of the case, almost never mentioning the motive, which leaves you wondering if they ever came up with a good one. They call the doctor “a murderous sociopath,” but that is a match lit in total darkness. The question – why?  – hangs, irksome, in the air. A courtroom does not need a motive, but a good true crime book, like a good crime novel, does. Without motive, you are left with a kabuki theater of victims and villains, moving through time with unstated purpose. 

The Greineder case brings to mind that of Jeffrey MacDonald, who sits in prison for the murder of his wife and two daughters on Feb. 17, 1970 and whose case begat Joe McGinniss’ “Fatal Vision,” Janet Malcolm’s “The Journalist and the Murderer” and, most recently, Errol Morris’ “A Wilderness of Error.” Both men are Ivy League doctors (Greineder: New Haven; MacDonald: Old Nassau) with seemingly happy families and little apparent cause to commit uxoricide. Indeed, both have continued to profess their innocence and both hope to still be freed on appeal. Yet for now, they remain in federal prison.

Why do we read their stories? For one, they are much more interesting than our own, allowing for the katharsis – the release of pity and fear by watching the suffering of another – that Aristotle said was the crux of great tragedy. But there is something else, too. The comedian Chris Rock once said that you have never been in love until you’ve fantasized about killing your significant other, elsewhere describing marriage as “f—-ing boring.” To be yoked to another person, whom you can never completely know, is indeed a frightening enterprise. When you put that ring around your betrothed’s finger, you are buying a stock whose value may rise or dip, just as your own may. You’re going all in, and you could end up broke – and broken. 

Of course, some wing the whole matrimony business, which is possible with enough prime-time television. Others simply divorce. But then there are those troubled few whom “till death do us part” takes on an especially gruesome connotation. They seem unable to accept either the essential illusion of happiness that undergirds most marriages nor the admission of misery that is suggested in all divorce. And so, what Rock says in jest, they do in earnest.

“True crime,” though, is something of a misnomer. The murder of a 19- year-old black male in Dayton is certainly, tragically “true,” but you are unlikely to find his story on the shelves. His story, sadly, is too true, too common – the opposite of Greineder’s story or MacDonald’s. While “true crime” may be merely a form of classification, it is more than that, suggesting an anxiety that some might perceive the tale as fiction. There is a desperate need, then, to emphasize that this happened, it really did, which would make “This-really-is-true crime” a more accurate name for the genre. At one point, an acutely anxious Greineder tells his family members, “This isn’t real. This is a movie.” The rich irony is that it is, in fact real, though it also has the benefit of being cinematic – even though that benefit, of course, is one only the reader can enjoy.

It is a curiosity of history that both Google and Viagara were introduced in 1998, the year before the events described in “A Murder in Wellesley.” No two products have done more to either save or damn masculinity. In 1999, when May Greineder was murdered, both were still novelties; today, there are some who pop Viagara for pleasure, while only the dullest naif doesn’t know what Google’s “private browsing” window is for.

If Greineder and MacDonald did kill their wives, then there is an obvious madness to their thought – the same rage that had Clytemenstra stab Agamemnon so many centuries ago. I imagine the rage of a febrile animal, trapped and running out of ideas – until he hits upon the most gruesome one. This is tragedy. Pass the popcorn.

 

Remembering May Greineder Today

Thirteen years ago, Dirk Greineder perpetrated an unspeakable act of domestic violence on his wife, May, at Wellesley’s Morses Pond. Since May’s senseless death that Halloween morning, many thousands of other innocent victims have died by the hands of their domestic partner. As we mark the final day of Domestic Violence Month, May Greineder and every victim of domestic violence is in our thoughts and we hope this epidemic will end one day soon.