Episode 11: Trial Phase Part 2

Alan Baum admits his failures as Jeff’s defense attorney but insists the physical evidence in the case suggests more than one shooter was involved. The final verdict is sure and swift but new characters in the Pelley’s life speak publicly raising even more questions in the case.

Episode Photos

Court Transcript

Transcripts from the Saint Joseph County 2006 court record of Phil Hawley reading a letter from himself and his son, Danny Hawley, during Jeff Pelley’s sentencing.

Episode Source Material

  • “Sister Struggles to Prove Pelley’s Innocence” by Patrick O’Connell for the South Bend Tribune October 15, 2006 via Newspapers.com

Episode Transcript

Delia D’Ambra: This is Episode 11, Trial Phase- Part 2.

Jeff Pelley’s murder trial lasted over a week in July 2006.

Dozens of eyewitnesses and experts for both sides took the stand, but through it all, no forensic or physical evidence directly tied him to the murders.

The state’s case was purely circumstantial.

Because of that, Jeff’s sister Jacque was hopeful a jury would acquit him.

Jacque Pelley: When the trial was going on, I was looking forward to it not hanging over his head anymore. I was hopeful that the system worked, and everything was going to be fine. There wasn’t anything but circumstantial evidence.”

Delia D’Ambra: Alan Baum, Jeff’s lead defense attorney, tried to chip away at the circumstantial evidence against Jeff…mostly, the prosecution’s narrow window of time they claimed he killed his family.

Alan Baum: The biggest question was when did this happen? The reason that that was so critical is because again, we can account for Jeff’s presence or activities, other than for a very short, a very short period of time is when his presence was unaccountable. That there were no independent witnesses that could place him with them or having seen him. So, the DA had to prove beyond a reasonable doubt that the murders occurred during that window of 20 or 25 minutes.

Delia D’Ambra: To help debunk the state’s timeline was a discrepancy in church Sunday school superintendent Dave Hathaway’s testimony.

In 1989 Dave told police that when he saw pools of blood on the carpet around Bob and Dawn’s bodies, it looked wet or fresh.

When he took the stand in 2006, Dave said the blood looked dry.

Now, this might seem like a simple misremembering for someone who isn’t used to seeing large amounts of blood, but remember, Dave was a war veteran. He’d seen plenty of blood.

The difference in his testimony between 1989 and 2006 stuck out to me while reading the trial transcript, and it got Alan’s attention too.

Because if you think about it, this discrepancy could throw the entire timeline off.

If the blood on the carpet on April 30th, at 10:00, am was still wet, as Dave first said, then that indicates the murders occurred shortly before Dave found the victims, not 18 hours earlier, at 5 o’clock the previous evening.

Alan believed Dave’s memory from 1989 was better than his recollection 13 years after the fact, in 2006.

So, according to Alan, if the blood was wet, that should have created reasonable doubt for jurors.

In my investigation, I’ve also found another discrepancy in the details of what Dave said, and the timeline police say Jeff had to have committed the murder.

I told you in a previous episode when I was originally laying out Dave entering the crime scene, whether or not a light was on in the basement was going to be important.

If you remember, Dave’s statement to police was that when the paramedics went into the basement on Sunday morning, they had to turn a light on in order to see…

But Sheila Saunders, the Pelley’s next-door neighbor, told me that she saw light coming from the Pelley’s basement on Saturday night.

She noticed it at 9:15pm and again at 2:00am.

So, my question is, how the heck did a light that got turned on in the Pelley’s basement on Saturday and stay on through the evening and night, get turned off by Sunday morning? Unless there was someone in that house alive able to turn it off.

According to police’s timeline and theory, Jeff did not return to the parsonage after committing the murders.

This discrepancy isn’t something I want to get too hung up on, but I mean when you sit and think about it, it’s clearly one story versus another.

I know that it’s something listeners who get invested in details would pick up on too.

As the trial neared an end, Alan also attacked the state’s suggestion that Jeff cleaned up after the murders.

*SFX of water faucet dripping*

He wanted to prove that three damp wash clothes and a drop of water evidence techs had found inside the Pelley’s upstairs hallway bath but could not have been used by Jeff.

Alan called to the stand a water evaporation expert.

This witness, a man named Roy Otterbein, was a licensed professional air conditioning consultant who testified he’d ran several experiments emulating how wash clothes hung over a tub to dry.

Alan Baum: According to the experts’ testimony, those washcloths would have had to have been dry within 12 or so hours of them being wet, and so, if they’re still wet when the police are investigating the crime scene, some 19 hours after we know Jeff was gone from the house, how can they still be wet? The answer is there had to have been some human activity in that house after Jeff left, but within that 12 hours or so timeframe, otherwise the washcloths would have been dry.

Delia D’Ambra: It was a good point, but under cross-examination, Frank Schafer showed jurors that Otterbein had conducted most of his experiments in Arizona, a completely different climate than rural Indiana.

So, that argument for the defense fell flat.

The biggest point I think Alan should have argued when it came to whether Jeff washed up or not was regarding his blue jeans.

Like I’ve said in previous episodes, no police officers said they removed Jeff’s blue jeans from the washer in the basement.

At trial, they all admitted no one had personally been the one to take the jeans from the washer.

There is information missing in police reports about where the jeans came from and when they were seized as evidence.

On top of that, by 2006, FBI lab results had come back for the blue jeans and showed that they were soiled and had no traces of blood on them.

Still, knowing this, the prosecution argued that those jeans were what Jeff had worn while shooting his family to death.

Again, the logic just isn’t there.

But for some reason, Alan completely missed this.

He didn’t challenge the state about the blue jeans ever being in the washer. He didn’t question them as legitimate evidence.

He didn’t question why there were still coins in the pocket and the receipt that was legible.

He admits now, he should have caught this.

Delia D’Ambra: Did you know whether to really dig hard at that blue jeans point? And did you try and say, “Hey, I don’t think these were washed,” or did you just think that what the prosecution was saying that they were washed was accurate?

Alan Baum: Well, if we look back on how I handled it, we would have to conclude that I didn’t make that factual connection and argument and that I could have questioned that blue Jean issue more or let’s say better. So, it’s hindsight, but hindsight sometimes is 20/20.

I can’t change history. The way it was handled, was the way it was handled. If it was wrong or weak or ill-conceived, so be it. Not so be it like, I don’t care, but that may be one of the areas that I could have hit harder and didn’t.

Delia D’Ambra: Instead of arguing whether the state’s evidence was even legit, Alan said at the time he was more focused on poking holes in the barrage of witness testimony the prosecution threw at the defense.

Alan aggressively went after South Bend forensic pathologist Doctor Rick Hoover for not taking notes at the crime scene or attempting to determine time of death before refrigerating the victims’ bodies.

Alan Baum: Jeff would have had to clean up the crime scene himself and get rid of the guns and then get over to his date’s house all within a very short period of time.

In this case, they didn’t know when the murders occurred. So at least some effort could have been and should have been made to determine time of death.

*SFX of computer keyboard typing*

Delia D’Ambra: I tried to research Doctor Hoover’s autopsy history in Saint Joseph County.

I wanted to find out how many times in his career up until the Pelley murders he’d not taken notes at a crime scene, and not documented livor or rigor mortis before refrigeration

I received no cooperation from Saint Joseph County in answering those questions.

Last September, I submitted a public records request for the total number of homicides the county had documented between March 1st, 1989 and May 31st, 1989.

I then specifically asked how many of those murders Rick Hoover performed the autopsies for. The county replied that staff could not provide answers to either of my questions.

So, just so we’re clear, Saint Joseph County couldn’t even tell me how many murders occurred in spring 1989, or how many times the coroner’s office had contracted Rick Hoover to perform autopsies.

That kind of lack of record-keeping by a taxpayer-funded entity should concern all of you.

It’s part of the reason why we pay municipalities to do their job.

Despite their lack of help, I went around the county and tried another way to get the information I wanted.

I went to the FBI.

With a little digging in the FBI’s crime reporting archives, I found out this:

In 1989, Saint Joseph County had seven murder victims, four of which were the Pelleys.

Before that, between 1987 and 1988 there were only four murders total in the county.

So, if you do the math, and believe Rick Hoover’s sworn testimony that he performed autopsies for many if not all homicides in the county during those years, that means he conducted 11 autopsies of homicide victims in Saint Joseph County between 1987 and 1989. Four of which he took no notes at the crime scene and didn’t measure body temperatures.

Now, maybe that’s common practice, maybe it’s not.

To me, for a county that had so few homicides in three years, I would think attention to detail on stuff like that would be easier to accomplish than say a large caseload where bodies are coming in every day and you’re at multiple scenes a day.

At trial, Alan didn’t know any of the statistics I just told you.

So, he focused more energy on grilling hoover on what he had actually collected after examining the victims’ bodies.

Most notably, Bob’s stomach contents.

According to Bob’s autopsy, he had popcorn kernels in his lower intestines.

Jacque Pelley says the popcorn in her father’s stomach was something she felt proved the police’s timeline of the murders was wrong.

She believes her family was killed later than five o’clock on Saturday, April 29th.

Jacque Pelley: I know that my dad ate popcorn at night every night. He had a routine that he would save a little bit of popcorn in the bowl with the lid on it to eat at night while he was popping fresh popcorn for the night. It wasn’t like he got up in the morning and ate popcorn or did it in the middle of afternoon or something, he always ate it at night.

Delia D’Ambra: And when you say night, do you mean 9:00 to 10:00 or is it more in that-

Jacque Pelley: I mean like around the time the girls would have gone to bed, so like probably 7:30 on. Maybe 7:00 if they were going to have some with him. I think they went to bed like between 7:30 and 8:00 or something, so right around that time would be my guess. After dinner for sure and it may be later at night. It may be watching a movie after the kids have gone to bed.

Delia D’Ambra: So, do you think that the contents of your dad’s stomach means that he was killed later in the night? I mean, is that what you believe?

Jacque Pelley: I think so. Just because the blinds were drawn and he didn’t show up at Crystal’s house on time does not mean to me that he was dead at that time. Nobody could get into the house according to Crystal. The doors were locked and the blinds were pulled, that doesn’t mean they’re dead then.

Delia D’Ambra: Do you think that means they’re home?

Jacque Pelley: Oh, I think that they were probably home, but there could have been someone there with them.

Delia D’Ambra: Like holding them?

Jacque Pelley: Yes. Absolutely

Delia D’Ambra: I’ll just add here that at one point in the police’s crime scene walk-through video, you almost miss it, but sitting on the Pelley’s kitchen counter in 1989 was a small popcorn maker.

Police reports also specifically state that techs found a bowl of popped popcorn on Bob’s desk in the basement.

So, he definitely made the snack and had the opportunity to eat some and take it downstairs to his office in the basement before being killed.

Jeff’s defense used this as a launching point.

Alan told jurors that the evidence clearly showed not only did the murders occur later in the evening on Saturday. Well after Jeff left, but the family was killed by two shooters, not one.

And there was clear-as-day evidence, Alan said, that could prove it…

When Jeff’s defense attorney Alan Baum declared to jurors that firearm evidence in the parsonage conclusively proved Jeff Pelley wasn’t the murderer, but instead two unknown shooters were, that got everybody’s attention.

Alan was basing his claim on number of shots fired and the fact that two different types of shotgun shell wadding were found at the crime scene.

*SFX of gun cartridge racking*

Remember, wadding in a shotgun round is what separates the actual gun powder from the bullet slug.

When a gun fires, the wadding ejects along with the bullet. It’s usually found on the ground near wherever the shooter was standing when they fired.

On both levels of the Pelley home techs back in 1989 had found plastic wadding and paper wadding.

According to an FBI firearms expert who testified at trial…the two kinds of wadding at the crime scene suggested either of the following:

One, if the killer acted alone, he or she used 20-gauge ammunition from two different manufacturers. One brand had plastic wadding in some cartridges and the other brand used paper wadding.

Or two, if there were two killers and two shotguns, one shooter used ammunition that had paper wadding, and the other used plastic wadding and they each would have had to shoot victims on both floors, resulting in the mixture of wadding near all the victims.

Then there was the argument of just exactly how many shots were fired in the parsonage.

The evidence on the victims’ bodies for sure meant at least five shots were fired: two shots to Bob, one to Dawn, one to Janel, and one to Jolene.

But then there’s that strange blast Mark into the wall of the staircase going down into the basement. I mentioned this earlier in the season while going through evidence from the crime scene.

Even Detective John Botich and former trooper Mark Senter believe a picture of a skip or blast Mark into the stairwell was evidence that the killer took a shot at Dawn while coming down the stairs from the kitchen.

John Botich: During the investigation, in my opinion, what I think happened was Jeff confronted his father upstairs. Jeff shot his father upstairs and I believe Dawn was upstairs and I think she ran downstairs to protect the girls…and I think he shot at her as she was running down the stairs…and that’s what the skip was and then he went around the corner and they were there and he shot them.

Delia D’Ambra: So, if the skip Mark is considered a shot, then that means the killer at a minimum had to have fired six shots.

Cold case detective Craig Whitfield came to this determination too before filing charges against Jeff in 2002.

Delia D’Ambra: Do you have any determination in your mind after looking at the case and presenting it to the prosecutors of how many shots were fired?

Craig Whitfield: Yeah. I’m thinking at least six. That’s off the top of my head, but I think at least six.

Delia D’Ambra: Yeah. I mean, one for each victim. I think the one in the hall of the stairwell has got to be a shot.

Craig Whitfield: It’s a miss.

Delia D’Ambra: Yeah.

Craig Whitfield: And she’s running down the stairs trying to get away from him.

Delia D’Ambra: So that would put us at six.

Craig Whitfield: Yeah.

*SFX of gun shell cases*

Delia D’Ambra: Because the killer or killers took the spent shell casings with them after the crime, the FBI expert couldn’t determine for sure how many shots were actually fired.

It was both sides’ assumption that six shots made sense…but no one knew with absolute certainty. It didn’t help that police back in 1989 never removed the wall where the skip Mark was and tried to find bullet fragments behind it.

Without having any potential murder weapon or weapons to compare anything to, the FBI expert also couldn’t say for sure

What brand of ammunition was used…and thus be able to tell jurors the specific length of the cartridge.

And length of cartridge really matters in this case.

The FBI expert testified that if the cartridges were a standard brand then whoever fired six rounds if they shot all six from the same gun, would have had to reload before firing the last shot.

Standard ammunition length would only have allowed five rounds at a time in the family’s Mossberg 500 shotgun, the state’s alleged murder weapon.

But if the cartridges were a less-common brand, the FBI expert said it was possible to fit six rounds into the family 20-gauge without any problems. So, taking six shots in that scenario, the shooter would not have to stop and reload.

There were just too many unknowns, but for Alan, unknowns were a good thing.

He argued because the prosecution couldn’t prove only one gun was used, then that was reasonable doubt.

Alan believes to this day that two shooters murdered the Pelleys with two different brands of 20-gauge ammunition.

Alan Baum: There were two shooters and two different guns. That would explain the difference in wadding. See if there was one shotgun and let’s say it’s one that holds five shells, and they bring in their pocket shells to reload if necessary, most likely they’re going to all be the same shells, same manufacturer, same design, from the same box of shells. So, if it was one shooter in one gun and he emptied the gun and then reloaded, why would there be different shells? Why would there be different wadding? It’s more logical that it was two shooters with two guns and one gun having one type of shell and the other one having a different type of shell, thus resulting in the difference in wadding.

Delia D’Ambra: John Botich and Mark Senter completely disagree.

John Botich: They were all deer slugs.

Mark Senter: Yeah.

John Botich: That’s what we do know.

Delia D’Ambra: The defense saying there’s different wadding indicates there’s two shooters, you don’t agree with that?

John Botich: There wasn’t two shooters.

Delia D’Ambra: Craig Whitfield agrees with John and Mark that Jeff alone used the family’s 20-gauge to kill Bob, Dawn, and the girls. He believes Jeff hid the gun and all the important evidence somewhere only Jeff knows about.

Craig Whitfield: Where’s the gun? Where’s that gun? So, if you find that gun, you’re probably going to find the murder weapon.

That gun was used to kill the family and he got rid of it. And so the fact that it’s missing, that told a lot of people, everything they needed to know in this trial, I would almost bet on it.

Delia D’Ambra: Craig thinks it’s possible if Jeff needed to reload, he could have.

The last witness Alan Baum called to help cast more reasonable doubt on the state’s case was Lois Stansbury.

The woman who told Mark Senter in 1989 that she’d seen Bob Pelley alive around five o’clock on Saturday standing in the parsonage driveway talking to an unknown man in a black truck.

Alan felt her testimony was proof Jeff was innocent.

Alan Baum: In my opinion, it was perhaps one of the most significant witnesses in the whole trial and why it didn’t impress the jury I’ll never understand, she was not relying on her recollection as to what time it was. If you remember, she testified that she had a receipt from Kmart, which had the timestamp of when she checked out there and that was turned over to the police and they lost it. She testified to what time it was and what would have been on that receipt…and, yeah, I agree. She might’ve been wrong in her estimate, but she might’ve been right…and there were as many reasons to believe that she was being accurate on the time as to believe that she was mistaken.

How much more significant could it be than a witness who sees Bob at a time when according to the DA’s timeline that Jeff would have been committing the murders?

She’s an independent witness. She’s got no ax to grind. If anything, she’s shocked and appalled at this murder…and wouldn’t try to help Jeff, wouldn’t consciously try to help Jeff. And she wouldn’t know how significant her time estimate it was. She wouldn’t have known that at the time that she was interviewed.

Delia D’Ambra: Ultimately the one person everyone wanted to hear from, Jeff himself, never testified at his trial.

It’s a standard rule most defense attorneys live by.

Don’t put your client on the stand.

And Alan followed it when it came to the Pelley case.

Delia D’Ambra: Was there a particular reason why the decision was made not to let Jeff testify?

Alan Baum: Oh boy. I was wondering if you were going to ever get around to that question, which is the defense attorney’s nightmare.

We all felt not wanting to be overly optimistic, but we all felt that the case or tried is about as good as it was going to and that Jeff’s attitude and surliness could be emphasized by the DA.

And we decided it wasn’t necessary and it wasn’t worth the risk.

*SFX of judges gavel & courtroom*

Delia D’Ambra: On July 19th, 2006, the case went to the jury.

Three days later Jeff was convicted on all counts.

On October 17th, 2006, the judge sentenced him to 160 years in prison.

On one side of the aisle was Jessica Pelley and all of the police investigators.

They were relieved and elated.

Jessi Toronjo: He wouldn’t even look at me. That’s how I know he’s … Well, I already knew in my heart he did it, but for him not to look at me… If you didn’t do it you’re going to look at someone and be like, “Dude, hey, I didn’t do it.” Nope, kept his head down, didn’t look at me one time.

I was very nervous and scared that he wasn’t going to be because I knew he had done it, and if he was going to be free I was scared for my life and for my family’s life. I even told my husband if he didn’t get convicted I was going to have to leave them to protect them because he’d probably be coming after me because I testified.”

Mark Senter: He’ll be 111 when he walks out of there. I hope it stays that way…just…the jury did the right thing. I think. They spent their time and I truly appreciate what they did.

Delia D’Ambra: Craig Whitfield believes Jeff’s conviction was justice served.

Craig Whitfield: When you look at what happened to these kids and the parents, it’s horrible. I just think that him getting convicted on this is just fitting for what he had done, and he needs to spend the rest of his life in prison.

Delia D’Ambra: Do you think that Jeff is a sociopath?

Craig Whitfield: Yes, I do. Yeah…and so, when I did the search warrant to get his blood, it was like the last thing I did on the case before I got transferred out and moved on, but the one thing I remember when I was talking to him is that his eyes were black. They were so dark that… You could just… I don’t know. Something about him when you talked to him, that is the first time I got to talk to him. I had a search warrant to get his blood. His attorney was there with them and all that, so we didn’t have any conversations, but he was very polite to me, but it was pretty nondescript except he just has these dark eyes. Maybe it’s just because I knew what he had done in my mind and I felt he’s going to be convicted for it someday.

Delia D’Ambra: On the other side of the aisle was Jeff’s wife, Kim, his sister Jacque and numerous friends and family.

The guilty verdict took all of them by complete surprise.

First was Alan Baum…

Alan Baum: There’s no evidence that he committed these murders. And there’s sufficient evidence that he didn’t, to raise a reasonable doubt. I don’t know, as a matter of God is my witness, that Jeff is innocent. I only know that I believe that he’s innocent because of the person that he is and was and because they had no evidence that he did it. And we had evidence that he didn’t with just the little points, the shotgun shells, the wadding, the wash clothes, the Kmart receipt, all of that stuff leads to reasonable doubt. This is just a terrible miscarriage of justice but it’s a jury system, and you pick a jury and you don’t really ever know what you’re getting.

Delia D’Ambra: Then Jacque Pelley…

Jacque Pelley: I was shocked.

Delia D’Ambra: Did you look at Jeff?

Jacque Pelley: I’m sure I did. Yeah. Kim went up there to hug him. And after the judge said whatever he had to say, he did ask for the courtroom to be cleared so that we could say our goodbyes…*cries* I didn’t go right up because I wanted her to have time and they came to get him before I had time to go up.

I just remember puking my guts out. I was just floored. I never dreamed that he would be convicted for something he didn’t do.

Delia D’Ambra: At the sentencing, people for and against the verdict gave statements.

Dawn’s brother and Bob’s sister told Jeff they hated what he took from them but forgave him.

Kim Pelley, Jeff’s wife, who has declined to do an interview with me, spoke up claiming her husband was innocent and she and her uncle, a man named Phil Hawley from Fort Myers, Florida would prove someone else committed the murders.

After Kim, Phil, who’d once owned a private investigation firm, took the podium and read two long letters.

Full transcripts of these letters are on our website and trust me you’re going to want to read them.

One letter was written by Phil’s third eldest son Danny Hawley.

Danny was a friend of Jeff’s and had known Bob Pelley for many years before his death.

According to a police report from 1989, Danny had sold Bob Pelley the handgun he used to purchase the 20-gauge shotgun from Steve Diller in 1987, the gun that Steve told Bob was worth more than the Mossberg shotgun.

Danny said the Hawley family had stayed in touch with the Pelleys after their move to Indiana in 1986 and when Jeff needed a job after the crimes, the Hawleys were there for him.

Danny wrote in his letter to the court that Jeff could not be a murderer, and if by some unimaginable reason Jeff might be, then Danny quote — “would be the first to help him be punished for what he did”–end quote.

Phil stated in his letter that he’d been a friend of Bob Pelleys since Jeff was born—so, 1971.

Phil talked about how he and his five sons took Jeff in after the murders and raised him like one of their own in Fort Myers.

Both Bob and Jeff had worked for Phil and he said both of them were strong Christian men who grew to be outstanding fathers.

At the end of his speech, Phil claimed he’d began his own investigation into the murders and had come across proof that proved Jeff 100 percent was innocent.

Phil didn’t reveal what that proof was though…

Almost immediately after the conviction, this case transitioned to the appeals phase.

And every year for the past decade, one attorney has been fighting bring all of the facts of this case to light…

…researching claims that are almost too unbelievable to fathom.

Frances Watson: There was a whole lot of bad that was going on at that bank that never came to the light of day.

Why do I feel so certain? Toni Beehler…

Toni Beehler: He wasn’t a minister. He had a previous life.

There were people, he didn’t say who, but people were looking for him and if they found him, they would kill him, his wife, his children, and a cat and a dog, they would wipe them out.

Delia D’Ambra: I’ll dive into that right now on CounterClock Episode 12, Guilty Face.