LONG DELAY UNDERMINED ROHRER CASE

Author: Jane M. Von Bergen, Inquirer Staff Writer

The night before Mimi Rohrer's murder trial began, Anthony J. Zarrillo stayed up until 4 a.m., drinking tequila and talking to his law partner.

Knowing that a long and grueling trial lay ahead, the state prosecutor wanted a last break from thinking about child abuse and studying photograph after photograph of the badly bruised body of a dead little boy.

And besides, Zarrillo figured, the next morning might mark the start of the first murder trial he had ever lost.

Mimi Rohrer, 43, the estranged wife of Haddon Township Mayor William G. Rohrer, was accused of killing the couple's adopted son, Billie, through a pattern of child abuse that culminated in his death on May 28, 1975.

As it turned out, Zarrillo did not lose his first murder trial - but he didn't win it, either. On Monday, a Camden County jury, after voting 10-2 in favor of acquittal, announced it could not reach a verdict. The jury's foreman told reporters afterward that the prosecution had failed to prove that Rohrer had intended to kill her child.

The jury's vote reinforced what some New Jersey prosecutors had believed for years, that the state's case against Mimi Rohrer was riddled with problems. A succession of state prosecutors blamed those problems for the five-year delay in taking the case to a grand jury.

And now, in the wake of the jury's inability to return a verdict, the Division of Criminal Justice in the New Jersey attorney general's office must weigh those problems again and decide whether to spend the money and expend the effort to retry the case.

Zarrillo, who has returned to private practice in Cherry Hill, said he hoped his former bosses decided to retry. "The case should have a resolution one way or another," he said.

But if the state listens to the Rohrer jury, it may decide that it is too late to win a case against Rohrer. Indeed, members of the jury criticized the state for waiting too long to prosecute Rohrer the first time, allowing the statute of limitations on manslaughter to elapse on May 28, 1980 - two and a half years before Rohrer was indicted on Dec. 3, 1982.

"We felt if it hadn't been for the statute of limitations running out, manslaughter would have been more in order," foreman Brenda Sabella said after the jury was dismissed.

Over beer and pepperoni pizza at a party later, several jurors said they agreed with Sabella that Rohrer probably had abused the child, and might even have contributed to his death. They said, however, that only two jurors had been convinced that Rohrer was guilty of intent - one of the conditions that must be present for a murder conviction.

"I think we would have been more in the ball game with manslaughter," Sabella said. "Nine years went by. Why did the state drag its feet? I put the blame on the state."

 "There were a lot of problems with the case," said Donald Belsole, director of the Division of Criminal Justice. "In the next month or so, we'll make a decision."

Internal division memoranda chart some of the legal and evidentiary problems that prosecutors cited to explain why they had not taken the Rohrer case to a grand jury before 1982.

The problems generally fell into two categories: a lack of witnesses to the death of the boy and the reports and testimony of doctors.

To overcome the lack of witnesses, the state had to build a circumstantial case against Rohrer. Prosecutors had to prove that she had exclusive control of the child and that she, and only she, could have been the one to cause the child's death.

They based their case on the testimony of witnesses who said they saw Rohrer beat the child. And they produced photographs that showed bruises on Billie's body, including several circular bruises that a forensic dentist identified as bite marks.

But the medical evidence in the case also posed problems, beginning with the doctor who conducted the autopsy on the day of Billie's death, Camden County Medical Examiner William T. Read.

Pathologists who testified for both the state and the defense during Rohrer's trial criticized his work as being incomplete - key measurements, photographs and microscopic sections were not taken.

Read recently said the bruises on Billie's body had disturbed him, but he said he simply did not associate child abuse with an upper-class family like the Rohrers.

He said he considered statements by Mimi Rohrer, who told police the boy was a head-banger. And so, while not completely satisfied with his opinion, he wrote in his autopsy report that Billie had died of self-inflicted head injuries. His autopsy prompted Camden County prosecutors in 1975 to determine that the death was accidental and to close the file.

The second medical problem involved the testimony of the family psychiatrist, Dr. Elliot Gursky, who interviewed the entire Rohrer family before Billie died. For several years, prosecutors believed that Gursky's testimony might be inadmissible in court, protected by physician-patient confidentiality.

According to prosecutors, Gursky could testify that Mimi Rohrer thought Billie wanted to have sex with her, and that she viewed him as "bad seed" who hated his mother. The doctor's testimony was considered crucial to establish intent.

Zarrillo said Gursky wanted to help the prosecution's case but feared he could face a lawsuit from the Rohrers if he violated their confidence. Deputy Attorney General Martin J. Milita, the prosecutor who finally presented the case to a grand jury, decided after researching the issue intensely that Gursky's testimony probably would be admitted.

Ironically, Gursky finally took the stand at Rohrer's trial because the defense waived the physician-patient privilege.

The third problem with medical evidence involved the work of pathologist Edwin H. Albano, who did the autopsy when Billie's body was exhumed from the Locustwood Memorial Park Cemetery in Cherry Hill on Jan. 25, 1979.

"It is my opinion, based upon reasonable medical probability, that the numerous contusions found on the scalp and skull of the subject at the time of the initial autopsy in 1975 were inflicted by another individual prior to demise," he wrote.

Albano's use of the word "probability" instead of "certainty" evoked a storm of confusion among prosecutors, who blamed his choice of words for still another delay in prosecuting the case. Yet later, according to division memos, Albano said he used the two words interchangeably and would be willing to testify to that.

The contradiction between the two autopsy reports presented still another prosecutorial problem. "Read, when he made his initial determination, could not distinguish self-inflicted from non-self-inflicted wounds . . . yet Albano concludes it was definitely inflicted by another party," according to an April 27, 1979, memo by Deputy Attorney General John J. Sheehy. And at that point, according to the internal memos, the office decided to close the case.

Nevertheless, on May 29, 1980 - the day after the statute of limitations ran out on manslaughter, the case was re-opened, and in December 1981, it was assigned to Milita. In four months, he persuaded his superiors to let him take the case to a grand jury. And in December 1982, the grand jury returned a murder indictment against Mimi Rohrer.

Ultimately, though, the greatest problem that faced Zarrillo during the Rohrer trial was the passage of time - and the lapse of the statute of limitations against manslaughter.

"It would have been easier to get a conviction for manslaughter," a disappointed Zarrillo said after the jury could not return a verdict Monday.

Edwin H. Stier, who preceded Belsole as director of the Division of

Criminal Justice, agreed with Zarrillo. "Manslaughter is an easier crime to prosecute because the elements are less," he said in a recent interview.

But Stier also said he was not second-guessing the decision not to proceed against Rohrer until 1982.

"I seriously considered telling people to stop it," he said. "But each time, the nature of the case bothered me enough to have me look for something. Even though there was a greater risk, we went ahead.

"Obviously, it was very close to the line, and there were disagreements about it," he said. "At any point, the department of Criminal Justice would have been justified in closing the book on it."