The jury watched a simulated strangulation yesterday during closing arguments in the trial of James R. Cruz Jr. as Centre County District Attorney Ray Gricar attempted to demonstrate how a 17-year-old runaway might have been killed.
After wrapping and knotting a stiff, yellow rope around a dummy's neck, Gricar set a timer in front of the jury and let it count down four minutes.
The packed courtroom was silent except for the whirring of the air conditioner and the soft beeping of the timer, which marked the amount of time Gricar said it would take to kill a person by stangulation.
"That's a long time to change your mind," Gricar said.
As the trial entered its sixth day, the defense and prosecution called final witnesses and presented closing arguments. Cruz, his wife and mother -- wearing a gold "#1 Mom" necklace -- sat unflinching throughout the arguments, speaking softly about their family during breaks.
Cruz, a 36-year-old truck driver from New Waterford, Ohio, is charged with kidnapping, raping and murdering Dawn Marie Birnbaum of Maine. Her partially clad body was found in a snowbank near state Route 26 in Spring Township on March 24, 1993.
Cruz has pleaded not guilty. Gricar has said in the past he is pressing for the death penalty.
George Lepley, co-counsel to First Assistant Public Defender Deborah Lux, presented the defense's closing argument. Lepley and Centre County Judge David E. Grine both stressed that Gricar had to prove Cruz was guilty beyond a reasonable doubt.
"You must hold the Commonwealth to that burden," Lepley said. "If you don't, there are dire consequences."
He explained that proving someone guilty beyond a reasonable doubt is based on an assumption it is better to let 10 guilty men go free than to punish one innocent man.
Lepley cited the prosecution's main evidence linking Cruz and Birnbaum, saying it did not stand up to scrutiny. The prosecution had searched for evidence because it needed a conviction, not because it was acting in "the right way," Lepley said.
"They're asking you to sit in this case and ultimately decide whether a man lives or dies," Lepley said.
A forensic scientist testified last week that DNA found in Birnbaum's underwear matched DNA taken from Cruz. Lepley and Gricar both said a one in 72 million chance existed that the DNA could have come from another Hispanic.
But Lepley emphasized that the sample might not have come from Cruz, and Gricar cited testimony that "DNA is, with the exception of identical twins, unique to an individual."
Lepley and Gricar also gave varying interpretations about testimony concerning hairs found on Birnbaum's body. Gricar said Cruz's hair was "consistent microscopically" with the hairs, but Lepley said it did not prove anything beyond a reasonable doubt.
Lepley also set a hypothetical scenario suggesting Birnbaum may have left Maine with, and been killed by, a truck driver she ran away with in 1992. Last week, some of Birnbaum's school friends testified she had mentioned running away with that man.
Other witnesses last week testified seeing someone around the time Birnbaum was murdered who looked similar to a police mug shot of the man.
"Look at the coincidences," Lepley said.
Investigators initially suspected that truck driver in Birnbaum's murder, but Gricar said Cruz and Birnbaum could be linked by DNA, phone calls made by Birnbaum at a truck stop where Cruz refueled, the dark hairs found on Birnbaum and a blond hair found in Cruz's truck and the tire tracks, made by tires matching the ones on Cruz's truck.
Gricar also said Cruz lied during interviews with police when he said he had never met Birnbaum, he had doctored travel logs and he did not react when police told him what had happened to Birnbaum.
"He wasn't surprised to hear she was murdered," Gricar said. "If he's innocent, he should have been stunned."
Cruz did not take the stand, but Grine instructed the jury before they left for deliberation not to infer he was guilty because he did not testify in his behalf.
