Can there be justice for the Lyon sisters 40 years later?

Indictment issued in 1975 Lyon sisters' cold case
Indictment issued in 1975 Lyon sisters' cold case

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Indictment issued in 1975 Lyon sisters' cold case 01:13

Story highlights

  • Officials announced Lloyd Welch Jr.'s indictment July 15 for 1975 murders
  • Paul Callan: It will be a tough road for the prosecution, but a conviction is possible

Paul Callan is a CNN legal analyst, a former homicide prosecutor and media law professor. He is "of counsel" to two law firms: Edelman & Edelman, PC and Callan, Koster, Brady & Nagler, LLP. The opinions expressed in this commentary are his.

(CNN)Forty years ago, the disappearance of two innocent little girls shook the town of Kensington, Maryland, to its core.

On March 25, 1975, Katherine and Sheila Lyon walked to a neighborhood shopping center for pizza and a look at an Easter exhibit. They never returned home.
Paul Callan
Kensington's fears would later spread to the Washington Metropolitan area -- and the nation. The heavily publicized disappearances of the 10- and 12-year-old Lyon sisters in Maryland, of Etan Patz in New York and of other children in that era helped build a wave of fear that the America of unlocked doors and unsupervised kids playing in safe neighborhoods was over.
    The fear that some stranger might kidnap and kill an innocent child propelled mothers throughout the country into a protective mode that would morph into "helicopter parenting" in the years to followed.
    Remarkably, after 40 long years, Bedford County, Virginia, Sheriff Mike Brown finally announced on July 15 an indictment of the alleged murderer, Lloyd Welch Jr. Welch's aunt, Patricia Welch, was also accused of perjury in December -- and indicted this month -- for lying to a grand jury investigating the case. Lloyd Welch denies murdering the two girls. Patricia Welch has declined to comment.
    "Cold cases" such as this one present extraordinary challenges for prosecutors. The recent New York trial in the disappearance of 6-year-old Etan Patz resulted in a hung jury in late May, demonstrating the problems cold case prosecutors often face.
    Court affidavits in the Lyon sisters' case suggest a tough road ahead for the prosecution. The documents show that Lloyd Lee Welch Jr. -- a 58-year-old former carnival worker and child sex offender now serving a lengthy prison stretch in a Delaware prison -- has told a story which, if true, could be straight out of a horror movie.
    He admits to being with the girls along with his uncle, Richard Welch Sr. (now 70), and a 10-year-old cousin, Thomas Welch Jr., on the day they disappeared. Though proclaiming innocence, Lloyd recently told investigators (as cited in court papers) that he later witnessed the uncle sexually abusing one of the girls at the uncle's Virginia home. Richard Welch has declined to comment, and his daughter, Patricia Ann Welch, said he has done nothing wrong.
    Break arises in 1975 Maryland cold case
    Break arises in 1975 Maryland cold case

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    Break arises in 1975 Maryland cold case 01:57
    Two other relatives, Connie Akers and her brother, Henry Parker, claim to have seen Lloyd Welch with two bloody duffle bags at the family's Taylor's Mountain property in Virginia around the time of the girls' disappearance. Welch claims the blood came from raw meat, and had nothing to do with the missing girls.
    Putting this story together in a compelling presentation that points "beyond a reasonable doubt" to the guilt of a specific member of the Welch clan will not be easy. For one, the jury will probably not be told that Lloyd Welch is a convicted sex offender, because evidence of prior convictions is generally inadmissible unless the defendant testifies.
    Lloyd Welch will probably never testify, because doing so would reveal his sex-crime history and likely result in a conviction -- however weak the evidence. No sane defense attorney would recommend such a suicidal strategy.
    The elderly uncle will also undoubtedly deny all participation in the crime and point the finger of guilt right back at Lloyd. Whether or not the aunt and then-young cousin, Thomas Welch Jr., will testify is not yet known, although the cousin told authorities earlier this year he was not in the car that day and has no knowledge of the crime.
    Compounding the difficulties, neither Patricia Welch nor the uncle, Richard Welch Sr., can be compelled to testify against Lloyd Welch (under the Fifth Amendment) unless they are granted immunity from prosecution. Granting immunity is a major prosecutorial gamble that is never taken lightly, as it sometimes results in a miscarriage of justice if the guilty are freed. A prosecutorial deal with these two could easily backfire, and jurors dislike deals -- particularly in child murder cases.
    (Of course, should sufficient, independent evidence point to their complicity, they can be prosecuted without their testimony).
    Law enforcement has been scouring potential burial sites with heavy equipment and cadaver-smelling dogs to recover forensic evidence. Recovery of the bodies and crime scene DNA could provide a link sufficient to convict the killer (or killers). However, given the age of any burial site, the prospect of finding it is poor, and by now most of the physical evidence has deteriorated to a point where it might not be particularly useful.
    In addition, witness memories tend to fade and become unreliable over the course of time. Defense attorneys -- through skilled cross examination -- might easily undermine the reliability of old and frayed memories, and could even suggest alternative crime theories.
    To prove a murder case, prosecutors can sometimes contrast reliable physical evidence from an undisturbed crime scene with the fabricated story of a lying defendant. But this is often not possible in a "cold case," where any physical evidence is unreliable as a result of the deterioration and possible disturbances to the crime scene over the years.
    The fact that the bodies of the Lyon sisters have not been recovered will not bar a prosecution. In fact, many convictions have been obtained throughout the U.S. without the recovery of the victim's body. The "corpus delicti" can be proven with circumstantial evidence as the jury looks at the totality of the evidence.
    Even very old "cold cases" can be won. A particularly interesting example was a trial for the murder of a 7-year-old girl in 1957. In 2012, a jury convicted Jack Daniel McCullough of murder 55 years after the crime, based in part on his own mother's death bed declaration.
    Although the Lyon sisters case is ancient and cold by legal standards, there is no statute of limitations in murder cases. We can only hope that the skill and determination of the law enforcement team in the Lyon's case will finally find justice for Sheila, Katherine and their family after so many heart-breaking years.