| On August 18, 1992, police were called to the home of Michael and Sharri Moore in Fremont, California after they discovered their four-year-old daughter, Mallory, dead in her bed.
The following day, Dr. Paul Hermann performed an autopsy. He concluded that the girl had died of traumatic asphyxiation. He was aware that the girl had asthma, but said that based on petechial hemorrhages, which are ruptures of capillaries, her death did not result from asthma. Dr. Hermann also said that he found healed tears in the girl’s anus.
On August 20, a Fremont police detective filed a report saying that Dr. Hermann said there were signs that suggested the death was other than by natural causes. Dr. Hermann’s disposition on the death was not decided.
Four months later, on Saturday, December 26, 1992, Sharri Moore’s 14-year-old daughter from a previous marriage, Joanna, left the family home in a fit of pique as she had done many times in the past. Acting on impulse, Sharri went to Joanna’s room and picked up a $1.99 diary that had been given as a Christmas gift. Although the slim volume was secured by a lock, Sharri forced open the top and bent back the cover.
On the second page, she saw, written in Joanna’s handwriting:
“Dear Diary, Well, it’s New Years [sic] so I am going to start telling you everything dearest to me. I have something to get off my back. I killed my little sister—”
That was as much as Sharri could see. Panic-stricken, she showed it to her husband, Michael, who ripped off the cover. The rest of the passage said: “I killed my little sister Mallory! I went into her room, got her and took her into my room. I told her I loved her and covered her mouth and suffocated [sic] her. Then I took her back into her room and put her back into bed. You’re the first person I have ever told this to. Well I feel better.”
The couple reached out to their pastor who came to their home and after discussion, the parents called Fremont police. Within hours, Joanna had been located at a boyfriend’s home and taken to the police station. Confronted with the diary and the entry, Joanna denied the journal was hers and denied writing anything in it. She denied harming her sister.
On the morning of December 27, 1992, police went to the Moore home and obtained a copy of a journal—later to be described as “Diary #1”—from Joanna’s room.
Joanna was taken to the juvenile detention center. Police learned that from May to August 1991, Joanna had lived with her maternal grandmother in Carson City, Nevada. During that time, Joanna had alleged that Michael, her stepfather, had sexually molested her. She had later recanted that claim.
On December 29, 1992, the Alameda County District Attorney’s office filed a charge of murder against Joanna. She was charged as a juvenile, and her name, as well as the names of her parents or her sister, were not disclosed publicly.
A newspaper account quoted Elizabeth Loftus, a professor of psychology at the University of Washington [who would later move to the University of California Irvine]. Loftus said there were three possibilities: the diary entry was the truth, the diary entry was a knowing lie, the diary was false, but Joanna believed it. “Hopefully, police won’t assume that only one hypothesis is the one to investigate,” Loftus said.
Sharri tracked down Loftus, who suggested Sharri contact San Francisco attorney Art Wachtel. When Sharri called Wachtel’s office, Wachtel was not there, so she talked to his law partner, Douglas Horngrad. Horngrad said while the firm’s fees could be paid over time, the family would have to come up with $5,000 to $7,000 for retaining experts. Without that kind of money at hand, the conversation was over.
Less than a week later, as a detention hearing approached, the family reached out to 85-year-year-old Melvin Belli, a legendary San Francisco defense attorney. The call was picked up in Belli’s office by Shelley Antonio. After conversing with Belli, Antonio went to the hearing. It was her first criminal case.
In May 1993, Joanna went to trial in Alameda County Superior Court before Judge Sandra Margulies. Because Joanna was being tried as a juvenile, there was no jury.
In his opening statement, prosecutor Matthew Golde cited the autopsy findings and told the judge that the evidence would show that Mallory had been sexually abused not long before her death. He contended that Joanna had accused her stepfather of molesting her and Mallory as well. He said that the house had become so dysfunctional and Joanna so disturbed that she killed Mallory.
Antonio told the jury the evidence would show that Mallory died of an asthma attack and that the diary entry was false.
Dr. Paul Hermann testified that he performed an autopsy. He concluded that Mallory died of traumatic asphyxia caused by someone applying pressure to her body. He said retinal petechiae—tiny hemorrhages—indicated she had suffocated and not been not strangled. He said Mallory’s lungs filled her pleural cavity. He testified that had she had an asthma attack, she would have taken in air, but would have been unable to expel it, so the lungs would be hyperinflated. He also said Mallory’s anus was dilated and there were healed tears internally. He estimated that she had been sexually molested within an hour before she died.
Andrew Wong, a dentist, testified for the prosecution about a time when Joanna and Mallory were in his office and fought over a toy in the waiting room. He said Joanna later told him, “I’m going to kill her.”
The prosecution presented evidence that Joanna had accused her stepfather, Michael, of molesting her. And though Michael had been arrested, the charge was dropped after Joanna recanted.
Police officer Charles Uhler testified that on December 27, 1992, he had driven Joanna from the police station to the detention center. He said that on the way, Joanna said that “her sister would be better off dead.” Uhler said he turned his head and said, “What?”
Joanna responded, “Well, what I mean was, my sister would be better off dead because this is a crummy world and a crummy place to grow up.”
Dr. Martha Warnock, a pathologist, testified for the defense that that there were no petechiae, that Mallory died of an asthma attack, and that there was no evidence of sexual molestation. She said that Dr. Hermann’s autopsy only said that the “lungs filled the pleural cavity.” Warnock testified that she asked defense attorney Antonio to find out from Dr. Hermann whether the lungs were hyperinflated.
During cross-examination, prosecutor Golde focused on that testimony. He asked Warnock what Antonio had reported back. Warnock said that Antonio told her, “I don’t know.”
When Golde asked Warnock if it was reasonable to say that without that information, she really could not reasonably opine that Mallory died of asthmatic asphyxia, Warnock replied, “Yes, essentially that is the case.”
Judge Margulies then asked, “If you had received information that the lungs were not inflated, would that have had an impact as to the cause of death in this matter?”
“I don’t think I would have taken the case in this case,” Warnock replied.
Dr. Paul Berg, a psychologist, testified that Joanna suffered from a conduct disorder, a bi-polar or manic depressive disorder, and a general personality disorder NOS (not otherwise specified). Her symptoms included grandiosity, self-importance, and flight of ideas. He said these could cause someone to falsely confess. The prosecution was able to elicit that Joanna had threatened to burn her mother with a cigarette and portrayed Joanna as aggressive and violent as a result of a dysfunctional household.
Dr. Robert Lawrence, another pathologist, testified that what Dr. Hermann said was evidence of molestation was not. He said that tears were very small and could have been caused by constipation. He also said that what Joanna described in her diary was not traumatic asphyxia which was caused by full body pressure on a victim. Joanna described putting her hand over Mallory’s mouth. Dr. Lawrence also did not see the petechial hemorrhages that Hermann said he saw. Lawrence testified that Mallory died of an asthma attack. He said there was no sign of asphyxiation and no bruises.
“It’s just inconceivable to me that you can do that with a struggling child long enough to cause death without leaving bruises,” he said.
Joanna, who had turned 15 in February 1993, testified and denied killing her half-sister.
She said he remembered writing something about her sister's death but could not remember any details. ''All I did was grab the diary and write and sob,'' she said. ''I don't remember what I wrote.''
Under questioning from defense attorney Melvin Belli, she said that she fabricated the statement in her journal so that her mother would stop asking her whether Joanna, who had discovered Mallory’s body, knew how her sister died.
''I wanted to show my mother some way how I was feeling about her questions,'' she said. ''I knew my mom would be able to get into the diary. She's a very determined person.''
On June 11, 1993, Judge Margulies convicted Joanna of second-degree murder.
Prior to sentencing, Sharri Moore reached out once more to Horngrad. He agreed to review the case, and the sentencing was postponed.
In October 1993, Horngrad filed a motion for a new trial based on the discovery of a prior diary kept by Joanna that had entries that pointed to her innocence and to the falsity of the confession entry. This was Diary #1 which Antonio and Belli had failed to utilize during the trial.
This diary covered October 1989 to September 14, 1992. The entry on August 23, 1992, five days after Mallory’s death read: “sorry I haven’t written in a while! well, I got tuns to tell you. you remember my little sister Mallory she was 4! well on Monday night between midnight Mon. and 7:00 Tues., she died. I woke up, went in there and something was wrong. she wouldn’t move or breath or anything! so I went into my mom’s room and told her so she went in there and she was dead…and the funeral was yesterday and all my friends and family where there it was a beautiful sermon…it was a little pink coffin and everyone cryed…I had to get up in front of about 75 people and do a speech and it was so hard to do!”
Beneath a drawing of a cross, Joanna had written: ''Let [her] rest in peace and remember her family loves her, especially her sister.”
On November 30, 1993, following a hearing, Judge Margulies vacated the conviction and ordered a new trial. The judge concluded that Belli and Antonio had provided an inadequate legal defense by failing to introduce passages from Diary #1.
Judge Margules also faulted the defense for making Antonio the ''de facto lead counsel'' even though she had never handled a criminal trial before. And the judge also noted that Belli and Antonio did not pursue another defense strategy: that someone else in the household could have committed the crime.
Prior to the retrial, Horngrad sought out opinions with two more pathologists. Both concluded that Mallory had died of an asthma attack. The pathologists also said that Dr. Hermann’s autopsy finding relating to the anal tears was “of no medical significance.”
The retrial began in April 1994. Neither of these two additional defense experts were called to testify because on April 27, 1994, at the conclusion of the prosecution’s case, retired Siskiyou County Judge James Kleaver, who had been appointed to preside over the case, acquitted Joanna. By then 16, Joanna was immediately released.
– Maurice Possley
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