Criminal defense attorney Jeremy Loew is skeptical of the circumstantial case prosecutors have built, so far, against Donthe Lucas–who is accused of murdering his pregnant girlfriend, Kelsie Schelling, back in 2013.
"I have actually never seen in the 10 years I’ve been practicing, a case where they don’t have a body, they don’t have blood spatter, they don’t have a murder weapon," Loew told News5.
"When I first heard about the arrest, I heard that his mother was also in custody. And my immediate
assumption was, ‘she must have said something on a recorded jail phone line.’ Beyond that, I can’t figure out
why they would move forward," he added.
KOAA viewers wrote in to News5, wondering the same thing–especially considering there’s been no such confession submitted into evidence.
"The problem with this case specifically is there’s so much public pressure that if the judge threw out
this possible suspect as a defendant in the case, people would be up in arms," Loew explained.
He says he wasn’t surprised the case made it past a preliminary hearing, though.
"All of the evidence is viewed in the light most favorable to the prosecution and hearsay is allowed. So, literally, if they can show just a little bit of evidence that a crime was committed, they make it through preliminary hearing and that buys the defendant a seat at the defense table."
But as far as the actual trial–he questions how prosecution will be able to prove Lucas is guilty beyond a reasonable doubt.
"The defense attorney can literally walk in and say, ‘how do you know she is even dead?’ How do you know she didn’t run away?’ How do you know she wasn’t kidnapped?’ There are so many other possibilities here that to prove that this gentleman committed murder, beyond a reasonable doubt, is going to be very difficult for the prosecutors."
National data of murder trails–without a body–heavily favors prosecution, though.
Former Federal prosecutor Tad DiaBiase has documented 500 such cases, dating back to the early 1800’s.
He says 86% of the defendants who went to trial were found guilty.
Four of those cases are listed in Colorado, and all four defendants were convicted.
Loew suspects detectives are still in search of important pieces of evidence.
"I’m sure they would love to plea bargain this case out so he admits guilt and he’s done. I sure they would love, if he is guilty, to know where the body is, or any kind of murder weapon," he explained.
And with Lucas and several other family members currently serving time in jail, he says additional evidence could come in the form of phone calls.
"People say stupid things on recordings to their parents or their girlfriends. And detectives are listening to all of those calls because at that point they can go and find the evidence they need."
In theory, it is possible prosecution could have some sort of confession or damning evidence that they chose not to introduce during the preliminary hearing–but it’s not likely.
Loew says in a case relying on circumstantial evidence, "you want to put all your cards on the table right away."
Lucas’s arraignment is scheduled for August 28th.