San Diego — To convict a man of murder, jurors need only be certain of his guilt beyond a reasonable doubt. One thing, however, is usually metaphysically certain; that the victim is dead. Yet on August 29, 2001, a former Santee man named James Edward Dailey was found guilty of the murder of his wife, Guadalupe Dailey, though such certainty of her death was impossible.

The body of Guadalupe -- called "Lupe" by those who knew her -- has never been found. A murder weapon was never found. Dailey never confessed to killing her. No new evidence was ever produced since the district attorney's office decided not to pursue the case in 1997 and 1998. Still, after a trial that both prosecutor and defense attorney describe as unique and challenging, Dailey was convicted. "It was a no-body homicide," deputy district attorney Dan Goldstein recalls, "and that makes the case unique. We don't do a whole lot of those. And often in no-body homicides you have a part of the body or something like that. But in this case, you have her basically vanished."

"Well, the Dailey case was really interesting and challenging," deputy public defender Michael Begovich recalls, "because it was the first murder trial that I ever had in which there was never a body recovered and there were no body parts recovered. That is very, very rare. Because one of the things you have to prove as a prosecutor is that there is a body, a dead body. Corpus, they call it. Therefore, the defense has to prove a negative. If the D.A. can't find the body, then the defense tries to prove that maybe she is not dead. And it's difficult to prove a negative.

"Under the law," Begovich continues, "the defense doesn't have to prove anything. Your client is presumed innocent and the D.A. has the burden of proof. But several studies show that you really have to prove someone innocent. In this case, one way to do that is to prove she may still be alive."

James and Guadalupe Dailey married in 1995. James was just finishing a five-year stint as a corrections officer at the Donovan Correctional Facility. Lupe's sister, Rosa Keene, was also a corrections officer at Donovan during that time. In early 1997, James, 31, was working in security at Viejas Casino. Lupe, 26, was the director of a Santee daycare center called La Petite Academy. At that point, only two years into their marriage, the Daileys separated and hired a paralegal to work out a noncontested divorce. For four months, they lived in separate apartments in Santee. Their two young children, then four and two, spent most of the time with Lupe. The divorce was expected to be finalized sometime that September.

As Labor Day weekend 1997 approached, Lupe made plans to take a road trip to Las Vegas with Allen Thompson, a man she had worked with at SeaWorld a couple of years earlier. They had lately rekindled their friendship, and it had become sexually intimate. Court documents continue the story: "Thompson testified that on the morning of August 31, 1997, he and [Lupe] finalized plans for their trip to Las Vegas. They were to leave that afternoon between 2:00 and 3:00 p.m. They had decided that [they] would drive in Dailey's truck. Thompson explained that [Lupe] seemed to be looking forward to their trip when he talked to her that morning but [she] needed to take care of a few matters before she could leave. [Lupe] said that she had to go to the bank, and then go over to James Edward Dailey's apartment to drop off her kids."

That day, around noon, Lupe drove to the apartment of Eric Cameron, an active-duty sailor whom she had met at the Driftwood Lounge, a bar on Mission Gorge Road in Santee, which they both frequented. The two were involved in an ongoing, sexual relationship. She borrowed a blue nylon overnight bag from Cameron to use on her Las Vegas trip. As Cameron and Lupe talked outside by her car, one of Cameron's roommates, Tommy Tucker, another sailor, who had very recently ended a sexual relationship with Lupe, "heckled" them from inside the apartment.

Around 2:00 that afternoon, according to court documents, Thompson paged Lupe but received no response. He later told sheriff's detectives that was very unusual. "He paged her several times through the day," court papers relate, "as well as tried to call her at home. Around 5:00 p.m., Thompson actually drove by Dailey's apartment but to no avail. Both [Lupe] and her truck were not there."

From Lupe's apartment, Thompson went to the Driftwood Lounge but didn't see her truck in the parking lot. Thompson again paged her, again it wasn't returned. Thinking he'd been stood up, he went home and tried to drink away his disappointment.

Earlier that day, Lupe's sister, Rosa Keene, had also paged her and gotten no response. Like Thompson, she later told detectives that was uncharacteristic. Around 6:30 that evening, she called James Dailey and asked whether he'd seen Lupe. "He stated that he saw [Lupe] when she showed up around 1:30 p.m.," court documents say, "but that she had left around 6:30 p.m. He further explained that they had fought about rent money that she felt he owed her, and money for [Lupe] to go to Las Vegas."

During that phone conversation, James Dailey asked Keene if she could baby-sit his children because he was stressed out and wanted to go out. Keene pleaded exhaustion and suggested that Dailey call and ask another sister, Mary Mena, which he did at about 7:30 p.m. She agreed and Dailey picked her up at her parents' house and returned to his apartment at about 8:45 p.m. Around that same time, Thompson, now drunk, made a second trip to Lupe's apartment. Finding her absent, he returned to his pickup, where he fell asleep.

Between 10:30 and 11:00 p.m., Dailey left his apartment. He later told police that he then trailered his small boat to Mission Bay, where he launched it thinking a midnight cruise on the water would help him unwind. However, he had problems with engine cables so he retrailered the boat and, stopping at a Vons in Pacific Beach, he returned to his apartment three to four hours after he had left it.

When Allen Thompson woke up in his pickup the next morning, September 1, Lupe's truck still wasn't at her apartment. "He returned home," court documents state, "and began to page [Lupe] as well as call both her home and her work. He explained that he didn't know how to contact any of [Lupe's] family."

Lupe's family celebrated Labor Day with a potluck picnic. James Dailey attended the picnic with his two children. "According to Keene," court papers say, "he seemed 'not all there.' "

September 2, 1997, dawned and Thompson still hadn't heard from Lupe. Court documents continue, "Around 8:00 a.m., Thompson called La Petite Academy and contacted Patricia Urbanski. Urbanski verified that [Lupe] had not come to work that day, and they both decided that something was obviously wrong. At that time, Thompson called the police and filed a missing-persons report."

Sheriff's detectives spoke to Dailey, without an attorney present, on September 2 and September 4, 1997. On the former date, with Dailey's permission, detectives searched his apartment, finding no evidence.

Police also questioned Thompson, Cameron, and Tucker as suspects in Lupe's disappearance. All three were cleared of suspicion. Dailey was not. Upon interviewing Dailey's co-workers at Viejas, they found that he had repeatedly mused on the idea of killing his wife in the presence of several of them. Detective Sharon Lunsford's declaration in support of arrest, filed with the court in February 1998, reads, "Co-worker Peter Dwyer stated that Dailey would talk about killing Guadalupe. He talked of his dislike for Guadalupe and how he wanted to kill her and dump her body. Dailey talked about how he could get a boat and take Guadalupe's body to Catalina Island and dump it in the 'Navy Dump,' which he described as a deep water location.... Co-worker Robert Jeffery stated he had a number of conversations with Dailey which incorporated details about how Dailey could kill Guadalupe.... Dailey talked about how he would 'slit the bitch's throat' if he caught her with another man.... Dailey told [co-worker Timothy Rowen] that if Guadalupe was out of his life, he would not be having the problems he had. Dailey blamed Guadalupe for his financial problems and marital difficulties. Dailey often referred to Guadalupe as the 'Bitch' or the 'Whore.' Dailey talked about knowing Guadalupe had men spending the night. Dailey stated his daughter had told him about men spending the night with Guadalupe. Dailey said it was an improper lifestyle for the children. Coworker Linda Stone stated that James Dailey often talked about how he would kill Guadalupe if she deprived him of his kids. Dailey had said he would 'break her neck' and dump her on the Viejas Indian Reservation 30 miles from where he lived. Stone felt Dailey was serious when he made these statements about killing Guadalupe. Dailey told Stone that sometime when Guadalupe was at his house alone 'opportunity would knock.' He stated he would take Guadalupe to bed, because she was an 'easy woman,' and there he would 'strangle the bitch' in the process of 'making love' to her. Dailey said he had killed before and it was something he could do again."

Based on the above testimony, a search warrant was issued for Dailey's apartment and a search made on September 12, 1997. His car and boat were impounded. Three days later, during an examination of the boat, Lupe's checkbook was found wedged in between a seat cushion and the boat's hull. The checkbook contained a receipt from a Mailboxes Etc. on Mission Gorge Road in Santee, dated August 30, 1997.

Despite this evidence, the district attorney's office twice decided not to prosecute the case.

Early in 1998, James Dailey took his two children and moved to Muncie, Indiana, where he enrolled at Ball State University. He lived there until March 1, 2001, when he was arrested and charged with murdering his wife. In the interim, the sheriff's detectives most intimately connected with the Dailey case, Lunsford and Russell Moore, had approached Dan Goldstein with the idea of trying the case against James Dailey. Goldstein accepted and got permission to pursue the case.

At the trial that began August 6, 2001, and ended August 29 -- after four days of jury deliberations -- Goldstein hammered on two themes. "Well, first of all," Goldstein recalls, "you had a guy that was telling people at work that he was going to kill her. Then, you have the fact that his boat was searched a week or two after her disappearance and inside his boat was her checkbook with a receipt in the checkbook from a day before she had disappeared. That was like a smoking gun to me. First of all, she [had told people she] was afraid of the water. Secondly, the checkbook went with her wherever she went; thirdly, there was a receipt in the book from 8/30/97, and she disappears on 8/31/97. So the checkbook was pretty powerful."

Michael Begovich, Dailey's defense attorney, countered that "mouthing off does not equal murder. And I argued that, if this guy really intended to kill her, why would he tell so many people? Why would he set himself up for failure? It doesn't make sense. And then, the witnesses who testified to the threats admitted on cross examination that they didn't really take it seriously, and that's why they didn't call the police or report it to their supervisors. It was just some guy going through a divorce, frustrated and upset like everybody else. And one witness, called by the prosecution, testified that he himself had threatened to kill his wife while he was going through a divorce."

Regarding the checkbook, Begovich argued that the boat sat uncovered for 12 days in an unsecured location where anybody could have tampered with it or planted evidence. Then he pushed the possibility that Lupe was still alive. "There was evidence," he says, "that on at least two occasions, someone had used her Social Security number in order to get credit. Also, there were still telephone calls being generated on her phone bill in that final month supposedly after her death. Then, the third thing that we presented to the jury was one witness who had observed her in Santee about two weeks after she was reported to be missing. It was a security guard who lived in Santee. She was working one afternoon when she saw Lupe come up. I called her as a witness, and she testified that she saw her in Santee in the parking lot of a shopping mall."

Begovich also offered alternative death scenarios to the one offered by the prosecution. He stressed that Lupe was simultaneously sexually involved with three men other than Dailey, two of whom were roommates, all of whom thought they were dating her exclusively. He also brought out that Lupe had confessed to a coworker the night before she disappeared that she thought she might be pregnant with Thompson's baby and that, if she were, she would have to go out of town to have the baby. "How interesting," Begovich says. "She also had several family members throughout Mexico. She was born in Tijuana and had family in Tijuana and Guadalajara, and she could have easily gone down below the border to get away from it all."

Begovich's efforts were to no avail. The prosecution sent investigators to interview Lupe's family in Mexico. They cross-referenced the names of two women who had used Lupe's Social Security number with Department of Motor Vehicle records, and the pictures didn't match Lupe's. They explained that the phone call placed from Lupe's apartment after her disappearance was to Victorville, which happened to be where the man painting her apartment was from, though he denied making it. And, as for the witness who said she saw Lupe, Goldstein says, "She was completely unbelievable. You always have that...in high-profile murder cases, you have Elvis witnesses."

In the end it boiled down to Lupe's checkbook and Dailey's big mouth and maternal instinct. "The thing that was most powerful in the minds of the jury," Begovich says, "and I spoke to nine of them right after the verdict, were: number one, he made numerous threats; number two was the fact that there was a checkbook of hers found in his boat 12 days after she had disappeared. And, three, they felt she wouldn't have abandoned her children. Even though they didn't know when he killed her, where he killed her, and how he killed her, they felt that those things were proof beyond a reasonable doubt."