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Defendant Antonio Wabol (striped shirt) is flanked by defense attorneys Deborah Burdzik (left) and Chris Clayhold (right) as Multnomah County Circuit Judge Alicia Fuchs polls the hung jury Monday.
(Aimee Green/The Oregonian)
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couldn't agree Monday on the fate of a man accused of killing a Plaid Pantry convenience store clerk near Portland State University 33 years ago.
A hung jury in a murder case is highly unusual -- and that's doubly so in cases based on DNA evidence -- often considered particularly credible proof by jurors in criminal proceedings.
In this case, prosecutors argued that DNA on a mask would prove that the Portland defendant was the killer.
Instead, jurors were close to reaching the 10 votes necessary to acquit Antonio Wabol of aggravated murder
shortly before midnight on Jan. 18, 1980. The vote was either 8-4 or 9-3 to acquit -- the judge and defense attorneys came up with different counts -- but the jurors were stuck nonetheless.
Conversely, a guilty verdict requires the agreement of all 12 jurors.
Antonio Wabol
The judge dismissed the jury, and the case will be retried.
Defense attorney Chris Clayhold said he'd never worked on a murder case that resulted in a hung jury in his nearly 22 years as an Oregon lawyer.
The jurors deliberated for nearly two days. Wabol stood calmly as the judge polled them, showing no outward emotion.
Authorities say Cho, 29, moved here from South Korea and was studying to earn his master's degree in engineering at Portland State. He had military training, was a black belt and took his clerk job so seriously that he chased the robber that entered the store almost two blocks, according to prosecutors Chuck Mickley and Tom Cleary.
He was shot at six times. The last bullet, a .38 caliber, killed Cho.
From 12 to 30 Portland police officers scoured the area for the robber that night, but it wasn't until the next day that a passer-by found coveralls, a jacket and a gray wool hat in some bushes about three blocks from the store. The hat had been stretched out, and two eyeholes had been cut out.
At the time, police didn't have the technology to identify suspects by DNA, and the case went cold.
In 2009 or 2010, detectives with Portland's cold-case homicide unit submitted the clothes to the Oregon State Police crime lab. DNA on the mask came back a match to Wabol. His DNA was already in the system because he'd been convicted of repeatedly striking a Washington County man with a hammer. His earliest release date is June 2014.
Sketch of Myong Cho, made after his death because police could not find a photograph of the 29-year-old Portland State University student.
Despite the DNA evidence, defense attorneys Clayhold and Deborah Burdzik argued that there was no reliable proof the clothes were related to the robbery.
None of the witnesses described the robber wearing an actual mask, but they were able to offer descriptions about his race, hair length or the possibility of facial hair, Clayhold said in closing arguments.
And the mask had the DNA of five people on it, a lab hired by the defense showed. Wabol's was the only DNA police could connect with a name, and it was minute -- amounting to 60 to 70 cells, Clayhold said. A flake of dandruff has 500 to 1,000 cells, he noted.
Clayhold contended that Wabol's DNA could have ended up on the mask in any number of ways.
"My advice to you ... is don't try on other people's clothes," Clayhold told the jurors. "Don't try on that hat at the department store. Don't donate your clothes to Goodwill, unless you're going to bleach them."
But prosecutors contended the DNA and other evidence against Wabol was too strong to acquit him.
Wabol, who was 20 at the time, was a PSU student like Cho and lived a block away from the Plaid Pantry.
Although defense attorneys seized on the fact that no witnesses said the robber wore a mask, two witnesses said the robber had something gray or light blue across his face. Prosecutors said it was likely that the robber ripped off the mask -- revealing his face -- as he sprinted from the area so he could see better, breathe easier and not draw attention.
Wabol also fit the general description offered by witnesses: 5-foot-8 or 5-foot-10, of stocky build. Wabol is 5-foot-8 and was stocky in 1980, investigators said.
Witnesses thought the robber was wearing a blue jacket, possibly nylon and down. A jacket matching that description was found with the mask and coveralls.
And finally, prosecutors called upon the testimony of an acquaintance of Wabol's, who said several years earlier he'd been drinking and told her that he'd killed someone and police were looking for him.
"It's not a perfect case," Mickley, the prosecutor, told jurors. "If it were a perfect case, we wouldn't be going to trial."
-- Aimee Green