One of the three claims in the Rebecca Zahau wrongful death lawsuit — a minor issue involving misuse of her property — was dismissed in court Tuesday.
San Diego Superior Court Judge Katherine Bacal left in place the two most serious causes of action, wrongful death and battery.
The judge also agreed to replace one of the jurors, who has pre-paid tickets for a vacation in Japan next week, with an alternate. The lawyers said they would not finish with time for jury deliberations before that juror would need to leave.
The dismissal of part of the lawsuit came at the request of defense lawyers for Adam Shacknai, who is accused of strangling Zahau in 2011 and trying to make it look like a suicide by hanging her off the balcony of her boyfriend’s Coronado mansion.
Sheriff’s homicide investigators and the county Medical Examiner’s Office found no evidence of foul play and determined Zahau’s death to be suicide.
Her family sued Shacknai, saying he was the only other person at the mansion at the time, and may have sexually assaulted her before killing her. She was naked, bound and gagged while hanging from a red rope.
Defense attorneys have noted that Shacknai’s DNA and fingerprints were not found on any pertinent pieces of evidence.
Plaintiff’s attorney C. Keith Greer rested his case on Monday, after Shacknai testified for several hours and denied harming or killing Zahau.
The defense then filed a 13-page motion for nonsuit, claiming that Greer had failed to present any eyewitness, law enforcement, scientific or documentary evidence linking Shacknai to the death.
Bacal disagreed in part, saying there were inferences a jury could draw from testimony presented by various expert witnesses called by Greer to talk about knots used on the ropes that bound Zahau and handwriting analysis of a message painted on a bedroom door.
However, the judge dismissed a cause of action for conversion, that Shacknai “intentionally and substantially interfered with Zahau’s personal property.”
Greer told the judge the property he was referring to included the long-sleeved blue T-shirt used to gag Zahau's mouth. He admitted he had no evidence that the shirt was hers.
A second piece of clothing that supposedly had disappeared — a sparkly striped dress she wore the afternoon before her death — could be seen in a sheriff’s crime scene photo presented to jurors. The dress and her light gray jacket were plainly part of a heap of laundry on the floor of the mansion’s master bedroom closet.
The photo was shown to the sheriff’s lead forensic evidence technician, Denys Williams, now retired. The defense called her to the stand Tuesday because she had taken the crime scene photos at the mansion.
The mansion was then owned by Zahau’s boyfriend, Jonah Shacknai, a billionaire in the pharmaceuticals industry and Adam Shacknai's brother.
Adam Shacknai called 911 on July 13, 2011 to report finding Zahau hanging from the balcony. He cut her down and started CPR, but testified that he believed she already was dead.
Williams estimated she shot 1,200 to 1,300 photos inside the mansion and outside, working about 24 hours non-stop.
Williams said she also collected and bagged evidence, including several knives. One, found outside, was used by Shacknai to cut the rope.
Two others were found inside, and Zahau’s blood was found on the end of the handle of one of those knives.
While Greer presented evidence that the only blood present was from Zahau’s menstrual flow, Williams noted that a small wound on one of Zahau’s middle fingers was oozing blood.
“I believe it would explain” the blood on the handle, she said.
She testified that she also collected fingerprints and took DNA swabs from various surfaces. Defense attorney Krista Enns asked Williams if some surfaces are better than others for retaining prints.
“The trouble is, they’re a thing of chance,” Williams answered, saying it may depend in part on the hands of the one who touches the object.
Sheriff’s criminalist Michael Macceca also testified, saying he collected evidence at the mansion, too. He said his specialty is trace evidence, including footprints, shoe prints, chemical traces, fibers, hair and fire debris.
He said he clearly saw two sets of bare footprints on the balcony, and a boot print left by a Coronado police officer.
Investigators have said the prints were Zahau’s, where she stepped, then balanced on her toes before tipping herself over the edge of the balcony to hang herself. Plaintiffs allege Shacknai balanced her, then dropped her over manually.
A taped deposition of Zahau’s former husband, Neil Nelapa, was played for the jury. He described how she had a series of short affairs while they were married, and that money was important to her because she was raised poor.
“She was not really too happy with the choices she was making,” said Nelapa, who had met Zahau when they attended a Bible college in Austria.
Testimony was to continue in the case on Wednesday. Attorneys said they may finish with the trial as soon as Tuesday.