No body crime: Can a person be charged with murder if police don't find a body?

Since the disappearance of Ana Walshe earlier this month in Cohasset, her husband, Brian, has been increasingly suspected of foul play and charged with the crime of misleading the police. The available evidence raised some critical legal questions, including whether a person can be charged with homicide when the victim's body hasn't been found. Northeastern law professor and GBH legal analyst Daniel Medwed joined Morning Edition co-hosts Paris Alston and Jeremy Siegel to discuss. This transcript has been lightly edited.

Paris Alston: Ana Walshe's disappearance has made headlines across the country — around the world, in fact. What do we know about this case so far?

Daniel Medwed: Here's the backdrop: Ana is a 39-year-old Serbian native who came to the United States and met her husband, Brian, a local man. They got married in 2015, and they have three kids and live in Cohasset. Now, according to everything that we know, she was last seen on New Year's Day morning, and she was supposed to catch a rideshare service to Logan. She commutes to Washington, D.C., where she works for a high end real estate company. But apparently she never caught a ride, nor did she ever board a plane to D.C., which is what led to this investigation. And almost immediately, the husband, Brian, emerged as a suspect.

Jeremy Siegel: How did her husband become a possible suspect in this case?

Medwed: Well, things didn't add up almost from the get-go. First of all, Brian is on home confinement due to a federal wire conviction for selling some fake Andy Warhol paintings back in 2016. And as a condition of his home confinement, he has to let the authorities know about any activities on the road, any car trips. And so apparently he took several unauthorized trips around the days of his wife's disappearance, including to a Rockland Home Depot, where he apparently used $450 in cash to pay for some cleaning supplies. Also, his Internet search history was quite alarming. Apparently, he queried how to dispose of a body. Second, after he was arrested for misleading investigators on January 8, the police executed a search warrant of his home. They apparently found some blood and a damaged knife in the basement. And later they found, at a Peabody transfer station, some additional physical evidence. So the case is building.

Alston: That's some disturbing evidence there. Daniel, it was interesting, earlier I was seeing on NECN — they had a headline about more and more missing women coming up because, of course, we have this case, and then there's also Brittany Tee, who's missing, and Central Mass. folks are looking for her there. And I'm wondering, before we get deeper into the legal implications, why do you think this case has received so much attention?

Medwed: A couple of thoughts on that, Paris. So on the one hand, it does have all the attributes of a made-for-TV movie: Attractive young woman emigrates from Eastern Europe to fulfill the American dream, meets a local man, has three children, and seems to be having a very successful professional life at this real estate company. But behind that dream may lie a nightmare, a potentially abusive and controlling husband. With all of those salacious details, of course, it has that sort of melodramatic component to it. On the other hand, there's a well-documented and disturbing phenomenon that social scientists have pinpointed known as missing white woman syndrome, which is that the public and the media, and I guess to some extent we're complicit in this today, pay a lot of attention to white women when they go missing and give benign neglect, or just neglect when it's a woman of color, who tend to go missing with alarming frequency as well. I think the racial component of this cannot be, or should not, be ignored.

Siegel: That makes me think of some of the conversations even our team was having as this case was coming about: At what point you begin covering something, how much you cover something, especially thinking about other missing person cases that were happening at the same time of this that new stations weren't necessarily covering. But to get to the legal consequences here, Daniel, her husband, has already been charged with the crime of misleading investigators. Let's assume for a moment that her body is never found in this case. Could he be charged with some type of homicide even without the body? How does that work?

Medwed: The short answer is, yes, he could be charged. The longer answer is much more nuanced and complicated. And here's why: There's a longstanding principle in American law known as corpus delicti, which says that you have to first prove the existence of a crime before charging someone with the crime, which sounds simple enough. For instance, back in 1819, two brothers in rural Vermont were charged with killing their brother-in-law over a farmland dispute and a dispute with their sister. Some bones were found in the property. There was all of this evidence. While they're waiting to be executed in Vermont, the brother-in-law returns from his sojourn to New Jersey. He had never died. I guess that's a form of purgatory, going to New Jersey. But he had never died. It's known as a no body crime. And so the problem is, yes, you can find significant circumstantial evidence to build a case, but that case could unravel without the body.

Alston: So, lastly, Daniel, has anyone in the Commonwealth of Massachusetts ever been convicted of murder without a body being discovered?

Medwed: Yes, it's very rare. But there was a 1983 case where a man was charged and convicted of second degree murder for killing a sex worker named Robin Benedict in the Sharon area. And the police theory was that he killed her in his home and then deposited her body somewhere in Rhode Island. But the body was never located. Nevertheless, because of compelling circumstantial evidence — he had a strong motive to kill her because they had had a preexisting sexual relationship, which she wanted to cut off — he was charged and convicted, and spent several years in prison. So it's possible, but it's not ideal from the perspective of law enforcement.