WEBVTT

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<v Speaker 1>You're listening to Killer in the Code, solving the Black

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<v Speaker 1>Dahlia and Zodiac cases. I'm your host, Michael Connolly. This

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<v Speaker 1>is Chapter 12, and today we are going to go

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<v Speaker 1>from the trenches to the benches. And by that I

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<v Speaker 1>mean we are going to speak with two men who

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<v Speaker 1>have served for many years on the bench. Two judges

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<v Speaker 1>who have handled literally thousands and thousands of criminal cases

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<v Speaker 1>between them in both federal and state courts. and who

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<v Speaker 1>you could say started out in the trenches of the

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<v Speaker 1>justice system. That is, one as a prosecutor and one

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<v Speaker 1>as a cop. Each's lifelong dedication to the law certainly

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<v Speaker 1>qualifies them to study the investigation headed by Alex Baber

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<v Speaker 1>and tell us where we would stand if the suspect

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<v Speaker 1>Baber has identified Marvin Margolis, a.k.a. Marvin Merrill, were still

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<v Speaker 1>alive and able to be brought to justice. Veteran homicide

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<v Speaker 1>investigator Rick Jackson, who is part of the Baber team,

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<v Speaker 1>joined me for these interviews so that I could have

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<v Speaker 1>on hand an experienced detective who countless times has worked

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<v Speaker 1>with prosecutors and testified in front of judges. We asked

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<v Speaker 1>these jurors to study the investigation, ask questions, and render

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<v Speaker 1>an unbiased opinion on the case and its evidence. While

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<v Speaker 1>Marvin Margolis died in 1993 and is beyond the reach

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<v Speaker 1>of judgment, in this life at least, we wanted to

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<v Speaker 1>know what we have and what we would still need

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<v Speaker 1>if we were to take a living Marvin Margolis to trial.

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<v Speaker 1>Our first interview was with the honorable Stephen S. Trott,

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<v Speaker 1>who is a former Associate Attorney General of the United

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<v Speaker 1>States who left the Justice Department for a seat on

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<v Speaker 1>the U.S. Court of Appeals for the Ninth Circuit. which

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<v Speaker 1>includes the entire west coast of the nation, plus Hawaii

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<v Speaker 1>and Alaska. Before all that, Trott spent 15 years as

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<v Speaker 1>a deputy district attorney in Los Angeles County before being

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<v Speaker 1>appointed U.S. attorney for the Central District of California, which

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<v Speaker 1>includes Los Angeles. It's clear that Judge Trott has long

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<v Speaker 1>experienced filing, prosecuting, and judging criminal cases. What we were

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<v Speaker 1>most interested in discussing with him was probable cause, which

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<v Speaker 1>is the legal standard or threshold of evidence that must

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<v Speaker 1>be reached for authorities to arrest and charge a suspect

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<v Speaker 1>with a crime. There must be sufficient probable cause for

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<v Speaker 1>a judge to then order a suspect to stand trial.

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<v Speaker 1>And of course, the threshold is higher for a conviction.

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<v Speaker 1>A judge or jury must find the suspect guilty beyond

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<v Speaker 1>a reasonable doubt. So the first question put to Judge

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<v Speaker 1>Trott after he reviewed the evidence accumulated by the Baber

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<v Speaker 1>team was whether the evidence met the legal standard of

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<v Speaker 1>probable cause. This is what he told us.

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<v Speaker 2>I was in that business for 23 years, and this

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<v Speaker 2>is just the easiest case I've ever seen in terms

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<v Speaker 2>of probable cause. It's overwhelming. It's overwhelming. But let me

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<v Speaker 2>tell you, no good prosecutor either arrests somebody or takes

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<v Speaker 2>the case to a preliminary hearing unless and until that

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<v Speaker 2>prosecutor believes that the evidence is sufficient to convict somebody

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<v Speaker 2>beyond a reasonable doubt in a jury trial. And I

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<v Speaker 2>think this case has that already. So probable cause is

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<v Speaker 2>real simple.

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<v Speaker 1>We then asked the judge what he believed were the

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<v Speaker 1>key pieces of evidence against Marvin Margolis.

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<v Speaker 2>Well, it's a combination of things. And you start, of course,

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<v Speaker 2>with Alex's ability to break the code. And I've gone

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<v Speaker 2>over the code quite a lot up and down. And

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<v Speaker 2>I think the code itself that zeroes in on him

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<v Speaker 2>would be sufficient for probable cause. But you add to

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<v Speaker 2>that the handwriting exemplars, the handwriting experts, and especially his

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<v Speaker 2>son taking a look at the handwriting and saying, that's

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<v Speaker 2>my father's handwriting. I mean, right there, that's already like,

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<v Speaker 2>you have to be kidding me. That's really, really good.

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<v Speaker 2>So those kinds of things. Then the composite matches are

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<v Speaker 2>also important, but those are the key things. I think

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<v Speaker 2>it's the code, it's the handwriting with respect to the zodiac. Now,

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<v Speaker 2>if you're talking about Elizabeth Short, then it's a lot

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<v Speaker 2>of things in addition to that. like the sketch, for example,

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<v Speaker 2>especially the Glasgow smile. Of course, the question there is

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<v Speaker 2>how much of that information might have been out in

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<v Speaker 2>the ether that he could have drawn that picture just

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<v Speaker 2>from stuff that he read in the newspapers or books

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<v Speaker 2>or whatever, because the thing is dated, as you well know, 1992,

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<v Speaker 2>which is well after 1947. So a good defense attorney

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<v Speaker 2>would attack that and say, well, how do you know

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<v Speaker 2>he just didn't do this picture on the basis of

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<v Speaker 2>what he's read in the newspapers? But the picture is

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<v Speaker 2>also very important because But he lived with Elizabeth Short

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<v Speaker 2>for 12 days. He lied when he was first confronted

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<v Speaker 2>and asked about her. Then he disappeared, changed his name,

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<v Speaker 2>hit his identity. So all these things just sort of

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<v Speaker 2>pile up. And of course, then his personal profile suggests

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<v Speaker 2>that he's the right type of guy. You know, as

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<v Speaker 2>Bill Mann told you, it's a question of how and

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<v Speaker 2>why equals the who. And we know that if you

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<v Speaker 2>look at his profile, he was in Okinawa as a

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<v Speaker 2>corpsman dealing with all kinds of bodies. And he was

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<v Speaker 2>a pre-med student at USC. So the idea is that

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<v Speaker 2>he quite possibly had the capacity to sever her in

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<v Speaker 2>two and drain her blood. You have to have somebody

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<v Speaker 2>that has that capacity, and he certainly did, unlike many

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<v Speaker 2>of the other suspects. We just keep going on down

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<v Speaker 2>the list. But the key thing on the sketch to me,

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<v Speaker 2>maybe the uncovering of the word zodiac on the sketch,

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<v Speaker 2>because that sort of links the two together and sort

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<v Speaker 2>of stands out to me as a something quite different.

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<v Speaker 2>Of course, I would want to know if, as a

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<v Speaker 2>trial lawyer, I'd spend a hell of a lot of

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<v Speaker 2>time to find out whether any kind of information was

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<v Speaker 2>out there on the web so that you could have

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<v Speaker 2>drawn this sketch. Was the Glasgow smile out on the web?

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<v Speaker 2>Probably not. You know, a good, Rick knows this, a

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<v Speaker 2>good police officer holds back details that only the killer

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<v Speaker 2>could know. That way you can sort out people who

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<v Speaker 2>can make false confessions. I mean, I think you had

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<v Speaker 2>300 suspects back then, 19 confessions, and they whittled it

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<v Speaker 2>down to 22 suspects. Well, so you want to hold

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<v Speaker 2>back the details. So all these confessions, I had a

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<v Speaker 2>bunch of these cases, false confessions. You know, you start

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<v Speaker 2>checking the confession and there's a lot of stuff in

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<v Speaker 2>there that doesn't make sense or he doesn't know things

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<v Speaker 2>that he ought to know if he were the real killer.

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<v Speaker 2>So again, you go all over these things, but just

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<v Speaker 2>keep going down the list. And then you get to

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<v Speaker 2>the Phillips 66 map and you find out that she's

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<v Speaker 2>buried in plot 66 in the cemetery up on the

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<v Speaker 2>hill in Oakland. Um, All of these things just sort

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<v Speaker 2>of keep piling on as layer on top of layer

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<v Speaker 2>to suggest not only probable cause, but sufficient evidence to

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<v Speaker 2>convince a reasonable jury beyond a reasonable doubt that this

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<v Speaker 2>was the guy who did both.

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<v Speaker 1>Let me clarify a few things here. The judge references

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<v Speaker 1>Bill Mann. He would be William Mann, the author of

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<v Speaker 1>Black Dahlia, Murder, Monsters, and Madness in Mid-Century Hollywood. Mann's

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<v Speaker 1>book was published earlier this year, and we talked to

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<v Speaker 1>him in the first season of the podcast because his

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<v Speaker 1>own research and investigation of Elizabeth Short's murder also concluded

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<v Speaker 1>that Marvin Margolis was the most likely suspect. And being

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<v Speaker 1>the former prosecutor, Trott kept a keen eye out for

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<v Speaker 1>how a defense attorney might attack the investigation. His concern

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<v Speaker 1>was that the so-called Elizabeth sketch by Marvin Margolis and

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<v Speaker 1>turned over to Baber by his son, might have been

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<v Speaker 1>informed or influenced by details of the Black Dahlia murder

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<v Speaker 1>that were publicly known rather than from his being present

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<v Speaker 1>at her murder. While the police did hold back many

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<v Speaker 1>of the details of her murder in the early years

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<v Speaker 1>of the investigation, the details and crime scene photos were

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<v Speaker 1>indeed revealed as early as 1984 in a book called

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<v Speaker 1>Kenneth Anger's Hollywood Babylon II. Elizabeth Short's body and wounds

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<v Speaker 1>are on full display in an eight-page spread titled Nightflower's Nightmare.

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<v Speaker 1>The photos include the so-called Glasgow smile cut into her face.

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<v Speaker 1>This would appear to make the word Zodiac hidden in

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<v Speaker 1>the shading of the sketch the most important detail as

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<v Speaker 1>it serves as a link between the Zodiac and Black

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<v Speaker 1>Dahlia cases. Let's go back to the interviews. The investigation

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<v Speaker 1>has accumulated an extraordinary amount of what would be called

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<v Speaker 1>circumstantial evidence that points strongly at Marvin Margolis, aka Marvin Merrill,

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<v Speaker 1>as the killer in both cases. Some critics, I would

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<v Speaker 1>say misinformed critics, of the investigation seem to dismiss circumstantial

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<v Speaker 1>evidence as inconclusive or questionable. So we asked Judge Trott

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<v Speaker 1>to clarify what the value of circumstantial evidence is in

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<v Speaker 1>a case. as opposed to direct evidence.

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<v Speaker 2>As a matter of fact, a jury is instructed, a

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<v Speaker 2>jury is instructed there is no difference between circumstantial evidence

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<v Speaker 2>and direct evidence as a means of truth. It's all

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<v Speaker 2>a question of what the circumstantial evidence means. So the

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<v Speaker 2>law regards both as equally strong. As a matter of fact,

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<v Speaker 2>I like circumstantial evidence better than some direct evidence. The

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<v Speaker 2>key direct evidence, of course, is eyewitness identification. And we

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<v Speaker 2>all know that eyewitness identification is very faulty. But you

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<v Speaker 2>start lining up circumstantial evidence and all of a sudden

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<v Speaker 2>it can be quite interesting. And as a trial lawyer,

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<v Speaker 2>you use that sort of as an Agatha Christie approach

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<v Speaker 2>to things. You just keep piling these circumstances on top

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<v Speaker 2>of circumstances. And pretty soon one plus two plus three

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<v Speaker 2>and it points to this guy. I would have a

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<v Speaker 2>ball with this as a jury. But I'll tell you

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<v Speaker 2>another part of the circumstantial evidence that I think is

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<v Speaker 2>really important. It's the elimination of all the other possible suspects. Now,

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<v Speaker 2>the Supreme Court quite a while ago said it's okay

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<v Speaker 2>for a defense attorney to attack the integrative investigation by

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<v Speaker 2>showing that the police focused on one person and one

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<v Speaker 2>person only to the exclusion of all other possible suspects. Well,

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<v Speaker 2>as a prosecutor, that means I would have a ball

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<v Speaker 2>because I would put the investigating officer on the stand

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<v Speaker 2>and I'd say, all right, officer, you investigated this case

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<v Speaker 2>for a certain period of time. How many suspects did

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<v Speaker 2>you identify? X, 22, for example. And then I'd have

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<v Speaker 2>a big chart with all these names and I'd go

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<v Speaker 2>through them one by one, all through the suspects. Now,

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<v Speaker 2>why is this person a suspect? And why did you

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<v Speaker 2>eliminate him? And why was this person? And pretty soon

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<v Speaker 2>you'd get to the bottom and it's like Bill Mann says,

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<v Speaker 2>last man standing. And all of a sudden it's Marvin Merrill,

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<v Speaker 2>who you track back to Marvin Margolis. So circumstantial evidence,

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<v Speaker 2>to go back to your original question, is killer. So

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<v Speaker 2>circumstantial evidence, I loved it. I absolutely loved it. Then

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<v Speaker 2>your final argument, you begin to put all those pieces

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<v Speaker 2>together and it fits like a hand in a glove perfectly.

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<v Speaker 2>Not to use an OJ example, but this glove fits.

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<v Speaker 2>And if it fits, guess what? I tried cases in

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<v Speaker 2>state and federal court for a long time.

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<v Speaker 1>I loved it.

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<v Speaker 2>I think it's fascinating. And I'd love to have a

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<v Speaker 2>case like this. To me, the Cases like this load

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<v Speaker 2>with circumstantial evidence, they're just wonderful, wonderful cases. I'd rather

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<v Speaker 2>have that than a case with only five eyewitnesses. Those

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<v Speaker 2>are a mess. But lots of circumstantial evidence, it's great.

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<v Speaker 2>And jurors love this stuff. As I said, I presented

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<v Speaker 2>to them like they're solving the case. That's the way

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<v Speaker 2>I put it together. So they're solving the case. And

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<v Speaker 2>it works. It just works.

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<v Speaker 1>We asked the judge where the weaknesses were in the cases.

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<v Speaker 1>and the evidence we could present. I particularly wanted to

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<v Speaker 1>know if, as a prosecutor, he would split the cases

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<v Speaker 1>into two trials because the Dahlia case, by virtue of

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<v Speaker 1>it being a provable fact that Margolis knew the victim,

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<v Speaker 1>was the stronger of the two with a better chance

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<v Speaker 1>of conviction.

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<v Speaker 2>Here's what you do as a prosecutor. You cannot become

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<v Speaker 2>a really good prosecutor unless you're also already a good

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<v Speaker 2>defense attorney. Because it's just like football. You can't just

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<v Speaker 2>play offense. You have to play defense. And so what

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<v Speaker 2>I used to do is after I would put my

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<v Speaker 2>case together and say, all right, here's the way I'm

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<v Speaker 2>going to, here's the evidence that I'm going to put in,

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<v Speaker 2>the arguments that I'm going to make to prove my case.

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<v Speaker 2>Then I would step back and say, all right, now

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<v Speaker 2>I know what the case looks like. And then I

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<v Speaker 2>would hire myself as the defense attorney. And I would say,

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<v Speaker 2>now I'm going to take a look at this guy's

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<v Speaker 2>case and see how I'm going to take it apart.

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<v Speaker 2>And I would immediately identify all the vulnerabilities. in the

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<v Speaker 2>evidence in the case, and then would figure out which

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<v Speaker 2>vulnerabilities to attack and how. And the only way you

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<v Speaker 2>learn that, you don't get that in law school. You

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<v Speaker 2>have to try a whole lot of cases against really

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<v Speaker 2>good defense attorneys. And then you begin to develop your

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<v Speaker 2>own second sense of looking at evidence from two ways.

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<v Speaker 2>You say, what does this prove and what are its

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<v Speaker 2>vulnerabilities at the same time? And so in the code,

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<v Speaker 2>for example, you've got Alex. Now, Alex is going to

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<v Speaker 2>be a handful because as you know, and you've discussed

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<v Speaker 2>on the on the podcast, he's got a bit of

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<v Speaker 2>a personality and everybody under the sun has attacked him.

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<v Speaker 2>If I were the defense attorney, I would attack Alex

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<v Speaker 2>like crazy, because if you can crack Alex, then you

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<v Speaker 2>can raise the doubt as to hold this whole code thing.

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<v Speaker 2>And so, so I would talk to, to Giorgio and

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<v Speaker 2>Henry and Wisniewski, and I would learn the, almost the

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<v Speaker 2>code thing as well as Alex did, although I realized

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<v Speaker 2>that's impossible. But then I would ask them, all right,

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<v Speaker 2>if you were hired, to take the stand in this

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<v Speaker 2>case and say this is baloney, both method and result,

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<v Speaker 2>what would you attack? And I'm looking for the vulnerabilities. Now,

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<v Speaker 2>I don't see any so far. I haven't talked to them.

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<v Speaker 2>But Giorgio and Henry and Wisniewski did a tremendous job

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<v Speaker 2>in looking at these things. So I think the code

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<v Speaker 2>is going to hold up. And if the code holds

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<v Speaker 2>up and if Alex– and I think I could make

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<v Speaker 2>Alex hold up. I think that I can make a

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<v Speaker 2>jury like Alex a lot. This whole business about being–

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<v Speaker 2>incited to get into this game in the first place

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<v Speaker 2>by Sherlock Holmes and Alan Turing, that's good stuff. Now,

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<v Speaker 2>before you could put Alex on on something like this, though,

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<v Speaker 2>you'd have to have him qualified as an expert under

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<v Speaker 2>what we call the Dobert rule. And that could be

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<v Speaker 2>a problem because he doesn't have any background. He's a

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<v Speaker 2>self-taught guy. So I would have a hearing beforehand in court,

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<v Speaker 2>preliminary to the actual trial itself, to have him qualify

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<v Speaker 2>as an expert. And I would use Giorgio and Henry

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<v Speaker 2>and Wisniewski to qualify him as an expert to set

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<v Speaker 2>him up. but I'd also get a really good sense

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<v Speaker 2>of how he would play as a witness under those

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<v Speaker 2>circumstances too. So I think the Zodiac case is strong

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<v Speaker 2>because that coat looks to me like it's really strong.

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<v Speaker 2>And I don't see anything yet where anybody with any

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<v Speaker 2>qualifications has come forward and questioned either the method or

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<v Speaker 2>the result. And as Rick and Mitzi have pointed out,

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<v Speaker 2>the fact that he's a little distant, well, that's not

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<v Speaker 2>all unusual. I mean, you're not going to go kill

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<v Speaker 2>people in your backyard. You're going to go a little

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<v Speaker 2>bit from your house. And this business where he shows

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<v Speaker 2>up at the payphone, within a line of sight from

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<v Speaker 2>where she used to live, that's kind of tricky too.

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<v Speaker 2>And this plot 66 with a Phillips 66 map with

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<v Speaker 2>a Zodiac sign on it, I mean, this is really

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<v Speaker 2>good circumstantial evidence stuff. And see, I would have all

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<v Speaker 2>of these stuff recreated in front of a jury. In

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<v Speaker 2>other words, the jury would watch how somebody would take

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<v Speaker 2>that map and superimpose the Zodiac with a small circle

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<v Speaker 2>and the radians and the inches and And I would

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<v Speaker 2>bring it alive. And I present this case as an

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<v Speaker 2>Agatha Christie whodunit. And I'd be asking the jury to

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<v Speaker 2>solve it with me along. And I think it's just

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<v Speaker 2>really good evidence for that kind of thing. So I'm

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<v Speaker 2>equally strong about both cases. When you're looking at a donut,

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<v Speaker 2>my grandmother used to say, evaluating a donut, don't just

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<v Speaker 2>look at the hole, H-O-L-E. Don't look at what's not there.

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<v Speaker 2>Look at what's there. And that's what's going to tell

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<v Speaker 2>you whether it's a good donut or not. And so

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<v Speaker 2>then you pile all this stuff, these little things that

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<v Speaker 2>might be missing here or there, they're irrelevant. You know,

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<v Speaker 2>the fact that he lives far away, all these kinds

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<v Speaker 2>of things. The stuff that's not there, I think, is

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<v Speaker 2>absolutely irrelevant. Mitzi and Rick are right about that. But, yeah,

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<v Speaker 2>it all just piles on, and there's nothing that comes

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<v Speaker 2>in there and says, no, this is not the guy.

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<v Speaker 1>Little known fact about Stephen Trott. He may be the

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<v Speaker 1>only ex-prosecutor and federal judge who has a number one

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<v Speaker 1>hit record on his resume. It's true. Before he went

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<v Speaker 1>off to Harvard Law School as a young man, he

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<v Speaker 1>was in a folk group called the Highwaymen. And they

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<v Speaker 1>had a number one hit with the song, Michael, Row

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<v Speaker 1>Your Boat Ashore. All right. We still have more for

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<v Speaker 1>you from the bench. Rick Jackson and I also spoke

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<v Speaker 1>to retired California Superior Court Judge Arthur Wick, who presided

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<v Speaker 1>in Sonoma County in Northern California. But he started his

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<v Speaker 1>career in the law as a Los Angeles County Sheriff's deputy,

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<v Speaker 1>serving for seven years and going to law school at

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<v Speaker 1>night before starting his career as an attorney and eventually

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<v Speaker 1>being appointed to the bench by Governor Arnold Schwarzenegger. He

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<v Speaker 1>now has retired and has come full circle. He's a

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<v Speaker 1>volunteer consultant on the cold case team with the Sonoma

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<v Speaker 1>County Sheriff's Department. When Rick and I talked to him,

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<v Speaker 1>He was working on the unsolved murders of seven young

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<v Speaker 1>women in the early 70s by an unknown serial killer.

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<v Speaker 1>These occurred at the same time that the Zodiac Killer

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<v Speaker 1>held the nearby Bay Area in the grip of fear

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<v Speaker 1>because of his random killings as well as the taunting

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<v Speaker 1>and threatening letters and ciphers he sent to local newspapers.

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<v Speaker 1>As a Superior Court judge, Wick handled nearly 20,000 cases

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<v Speaker 1>in a long career. most of them criminal. He also

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<v Speaker 1>was a judge who local investigators came to with search warrants.

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<v Speaker 1>He signed off on them, or didn't, based on probable cause.

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<v Speaker 1>We asked him the same thing we asked Judge Trott.

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<v Speaker 1>Has the Alex Baber and team's investigation gathered enough probable

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<v Speaker 1>cause to warrant the arrest, search, and prosecution of Marvin Margolis?

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<v Speaker 1>Were he still alive?

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<v Speaker 3>You're way past probable cause standard. As an example, could

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<v Speaker 3>you get a search warrant for his belongings or his

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<v Speaker 3>son's belonging? Unquestionably. In fact, you'd get a search warrant

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<v Speaker 3>that would withstand scrutiny at the appellate level. There's no

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<v Speaker 3>doubt in my mind. And then the question becomes, of course,

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<v Speaker 3>you go to a preliminary hearing. Now, mind you, we

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<v Speaker 3>don't have a defense here, but I've reviewed... watched your

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<v Speaker 3>podcast three times in its entirety thus far to make

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<v Speaker 3>certain that I have some command of the fact and facts.

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<v Speaker 3>And I believe you would be able to file a complaint,

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<v Speaker 3>as it's called. In California, you would be able to

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<v Speaker 3>file a complaint, go forward on a preliminary hearing, and

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<v Speaker 3>produce enough evidence. Now, I'm kind of limiting the comments

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<v Speaker 3>for the moment, Michael, to Black Dahlia case. I think

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<v Speaker 3>it goes beyond that, but let's be very specific about

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<v Speaker 3>what we're discussing. And so you file a complaint that

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<v Speaker 3>lists first-degree murder charge against your prime suspect, listing his

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<v Speaker 3>known aliases, and whether it's Merrill or Margolis, I think

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<v Speaker 3>you surpass that. You reach that bar rather easily. He's

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<v Speaker 3>going to be held to answer as to the charge

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<v Speaker 3>in the complaint. and I'm going to permit you to

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<v Speaker 3>file an information charging an individual with a very serious

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<v Speaker 3>felony offense. that is likely to have several enhancements attached

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<v Speaker 3>to it, lying in wait comes to mind, and I'm

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<v Speaker 3>not the suggester of death penalty, etc., but you have

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<v Speaker 3>a rather serious matter here, obviously well-planned, well-thought-out, So you're

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<v Speaker 3>talking first degree murder case, possibly with death sentence attached

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<v Speaker 3>there too, that enhancement and others. And then you go

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<v Speaker 3>forward on the information. And as I mentioned to Detective

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<v Speaker 3>Jackson along the way, after the information is filed, you

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<v Speaker 3>automatically receive a motion for 998 that says, please throw

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<v Speaker 3>the case out. I have no qualms about that since

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<v Speaker 3>I heard the preliminary hearing. It might have to go

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<v Speaker 3>to another judge for the determination, but that's not a

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<v Speaker 3>difficult issue. And the enhancements can be attacked. I think

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<v Speaker 3>you're going to have several enhancements that will withstand scrutiny.

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<v Speaker 3>You get into the murder case, jury's picked, you start

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<v Speaker 3>presenting evidence, and the question always becomes, okay, now that

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<v Speaker 3>the prosecution has finished, have you reached the level necessary

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<v Speaker 3>to submit the case to a jury? I think you've

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<v Speaker 3>probably surpassed that level. You have a serious, I mean,

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<v Speaker 3>I'm going to be blunt here for a second. I

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<v Speaker 3>don't see holes in the arguments that I've seen thus far.

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<v Speaker 3>I have not been presented with credible evidence that would

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<v Speaker 3>allow someone to argue someone else did it.

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<v Speaker 1>Judge Wick also sought to clarify the importance of circumstantial evidence.

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<v Speaker 3>People mischaracterize the value of circumstantial evidence, and it's argued

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<v Speaker 3>in almost every single case I've ever handled. And, Michael,

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<v Speaker 3>that's not only at the trial court level. That's at

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<v Speaker 3>the appellate court level. Because the classic argument by the

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<v Speaker 3>criminal defense attorney is, that's only circumstantial evidence. Yeah? Well,

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<v Speaker 3>let's go to the law. Read Calcrim 223. Circumstantial evidence...

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<v Speaker 3>doesn't mean it's below direct evidence. It means it is

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<v Speaker 3>on the same level as direct evidence, and the fact finder,

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<v Speaker 3>whether court, meaning the judge or the jury, gets to

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<v Speaker 3>decide how much weight you give it.

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<v Speaker 1>Judge Wick agreed with Judge Trott that a key part

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<v Speaker 1>of the case is the elimination of the other suspects

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<v Speaker 1>by both the original investigation dating back to 1947 and

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<v Speaker 1>as well as the present team's work on the case.

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<v Speaker 1>Investigative tunnel vision is a trap that often pays dividends

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<v Speaker 1>for the defense at trial.

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<v Speaker 3>But one thing I find very persuasive, Michael, at this

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<v Speaker 3>stage is, and I would even put this in a

397
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<v Speaker 3>search warrant if I was asked for a search warrant,

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<v Speaker 3>there may be 20 other suspects, or what did he say,

399
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<v Speaker 3>24 or something like that, those suspects have been eliminated

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<v Speaker 3>for a variety of reasons. That's critically important, not only

401
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<v Speaker 3>to the beginning stages of a case, but to the

402
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<v Speaker 3>final stages when the defense is standing there before the

403
00:23:09.440 --> 00:23:14.700
<v Speaker 3>jury arguing, you know, insufficiency of evidence. Somebody else did this. Well,

404
00:23:14.980 --> 00:23:17.279
<v Speaker 3>you don't get to make that argument unless there's credible

405
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<v Speaker 3>evidence to that. That's always the claim. It wasn't me. Yeah,

406
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<v Speaker 3>doesn't carry a lot of weight. And by the way,

407
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<v Speaker 3>you don't just get to make that statement in front

408
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<v Speaker 3>of the jury. Defendant can. He can take the stand. Risk, cross-examination,

409
00:23:32.670 --> 00:23:35.619
<v Speaker 3>all of those issues that come with that. But the

410
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<v Speaker 3>defense doesn't just get to stand up and say, what

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<v Speaker 3>about anybody else who could have committed a crime? I

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<v Speaker 3>need credible, reliable, legally sufficient evidence. It's been reviewed and

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<v Speaker 3>possibly admitted in court. And I have yet to see

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<v Speaker 3>something that suggests your team is on the wrong path.

415
00:23:58.529 --> 00:24:00.829
<v Speaker 1>When it came to the Zodiac case, the judge was

416
00:24:00.910 --> 00:24:05.170
<v Speaker 1>more circumspect about the evidence. The case against Margolis Merle

417
00:24:05.670 --> 00:24:09.089
<v Speaker 1>largely balances on the identification of the suspect through the

418
00:24:09.150 --> 00:24:13.349
<v Speaker 1>code breaking by Alex Baber and the confirmation from experts

419
00:24:13.690 --> 00:24:18.210
<v Speaker 1>in the field of cryptanalytics. Judge Wick said Alex Baber

420
00:24:18.250 --> 00:24:20.990
<v Speaker 1>would need to explain his work and make clear how

421
00:24:21.029 --> 00:24:23.839
<v Speaker 1>he identified Marvin Merle as the Zodiac.

422
00:24:24.630 --> 00:24:27.019
<v Speaker 3>I concur with the fact that you would present him

423
00:24:27.839 --> 00:24:30.640
<v Speaker 3>as a lay witness, so to speak. But once you

424
00:24:30.680 --> 00:24:34.859
<v Speaker 3>lay a foundation, even a lay person can become an

425
00:24:34.960 --> 00:24:38.500
<v Speaker 3>expert in a given topic. And I believe you probably

426
00:24:38.559 --> 00:24:42.180
<v Speaker 3>laid enough foundation that he would be qualified as an expert.

427
00:24:42.940 --> 00:24:44.480
<v Speaker 3>Let him attack his credibility.

428
00:24:44.559 --> 00:24:45.039
<v Speaker 1>So be it.

429
00:24:45.400 --> 00:24:50.259
<v Speaker 3>We're talking about qualifications. And what he's done to cross

430
00:24:50.400 --> 00:24:56.920
<v Speaker 3>over from Black Dahlia to Zodiac is incredible. no less

431
00:24:56.940 --> 00:25:00.980
<v Speaker 3>than astonishing. The work that your team has done and

432
00:25:01.039 --> 00:25:07.309
<v Speaker 3>what you have uncovered is monumental. And the crossover is easy.

433
00:25:07.410 --> 00:25:11.309
<v Speaker 3>The question becomes, how many of the cases do you

434
00:25:11.349 --> 00:25:14.910
<v Speaker 3>have a direct link to? And that's where it gets

435
00:25:14.970 --> 00:25:18.789
<v Speaker 3>difficult now. You don't just say, well, he's going to

436
00:25:18.809 --> 00:25:22.289
<v Speaker 3>be charged with five murders. You're going to have to

437
00:25:22.329 --> 00:25:26.019
<v Speaker 3>be very particular as to how you get there. So, Michael,

438
00:25:26.039 --> 00:25:30.680
<v Speaker 3>there are Strong crosshombers, great indicators. Could he be charged

439
00:25:30.759 --> 00:25:31.839
<v Speaker 3>in some of those cases?

440
00:25:32.140 --> 00:25:38.799
<v Speaker 1>Perhaps yes. I talked about this with Rick Jackson and

441
00:25:38.819 --> 00:25:43.400
<v Speaker 1>Mitzi Roberts, another veteran homicide investigator on the Baber team.

442
00:25:44.200 --> 00:25:47.299
<v Speaker 1>They agreed that while the Zodiac Killer is credited with

443
00:25:47.380 --> 00:25:50.180
<v Speaker 1>five murders in the Bay Area, each case would be

444
00:25:50.240 --> 00:25:54.119
<v Speaker 1>evaluated individually in terms of charges. because each of the

445
00:25:54.160 --> 00:25:57.400
<v Speaker 1>cases will have a different level and quality of evidence.

446
00:25:58.160 --> 00:26:01.789
<v Speaker 1>They said that in serial killer cases in particular, it

447
00:26:01.849 --> 00:26:05.109
<v Speaker 1>is not unusual for prosecutors to zero in on the

448
00:26:05.170 --> 00:26:11.160
<v Speaker 1>cases with the strongest evidence while leaving others unprosecuted. Before

449
00:26:11.220 --> 00:26:15.279
<v Speaker 1>retiring as Los Angeles Police Department cold case detectives, Roberts

450
00:26:15.339 --> 00:26:19.039
<v Speaker 1>and Jackson were at one point on the cross-country trail

451
00:26:19.160 --> 00:26:22.950
<v Speaker 1>of Sam Little, a serial killer who was later classified

452
00:26:23.009 --> 00:26:26.920
<v Speaker 1>by the FBI as the most prolific on record in

453
00:26:26.960 --> 00:26:30.619
<v Speaker 1>the United States. While he may be credited with nearly

454
00:26:30.619 --> 00:26:34.319
<v Speaker 1>90 murders, including at least a dozen in Los Angeles,

455
00:26:35.019 --> 00:26:38.259
<v Speaker 1>he was convicted of only three murders as prosecutors in

456
00:26:38.299 --> 00:26:42.319
<v Speaker 1>Los Angeles chose the cases they believed were the strongest

457
00:26:42.400 --> 00:26:46.759
<v Speaker 1>in terms of evidence and likely conviction. Once Little was

458
00:26:46.819 --> 00:26:51.049
<v Speaker 1>found guilty in those cases by a jury, He confessed

459
00:26:51.069 --> 00:26:54.730
<v Speaker 1>to the other murders before dying in prison of COVID.

460
00:26:56.089 --> 00:26:58.609
<v Speaker 1>This is Missy Roberts, followed by Rick Jackson.

461
00:26:59.529 --> 00:27:01.509
<v Speaker 4>In the case with Sam Little, we had those three

462
00:27:01.549 --> 00:27:05.599
<v Speaker 4>very strong DNA hits. But we also had evidence that

463
00:27:05.799 --> 00:27:12.220
<v Speaker 4>he had engaged in similar activity for decades. And we

464
00:27:12.259 --> 00:27:17.410
<v Speaker 4>had identified prior victims previously. And cases that we wanted

465
00:27:17.430 --> 00:27:20.839
<v Speaker 4>to investigate further, but with the prior victims, they hadn't

466
00:27:20.880 --> 00:27:23.279
<v Speaker 4>been charged cases or in some cases they had been

467
00:27:23.319 --> 00:27:25.799
<v Speaker 4>charged and didn't go.

468
00:27:25.720 --> 00:27:26.599
<v Speaker 1>Further in court.

469
00:27:27.460 --> 00:27:31.700
<v Speaker 4>And then it's a real strategic plan there because they're

470
00:27:31.740 --> 00:27:33.900
<v Speaker 4>not the strongest cases and you don't want them to

471
00:27:33.960 --> 00:27:35.849
<v Speaker 4>taint your case, but you also want to bring in

472
00:27:35.890 --> 00:27:40.509
<v Speaker 4>that evidence. That's how we decided strategically to do it

473
00:27:40.549 --> 00:27:43.869
<v Speaker 4>in Sam Little in order to protect the three really

474
00:27:43.930 --> 00:27:44.990
<v Speaker 4>solid cases we had.

475
00:27:45.579 --> 00:27:49.079
<v Speaker 5>Juries start looking at evidence and they see strong cases

476
00:27:49.200 --> 00:27:55.839
<v Speaker 5>and then they see weaker cases. And sometimes a juror

477
00:27:55.859 --> 00:27:58.880
<v Speaker 5>or multiple jurors or a full jury will start to

478
00:27:58.960 --> 00:28:03.599
<v Speaker 5>look at a prosecutor like they're trying to pull something

479
00:28:03.740 --> 00:28:07.440
<v Speaker 5>over them as a jury. And it could have a

480
00:28:07.519 --> 00:28:12.539
<v Speaker 5>detrimental effect on decisions sometimes, trying to sneak cases by them.

481
00:28:12.599 --> 00:28:16.000
<v Speaker 1>If you will. Judge Wick was clearly suggesting that sort

482
00:28:16.039 --> 00:28:19.579
<v Speaker 1>of strategy in the approach to the Zodiac cases. Pick

483
00:28:19.619 --> 00:28:23.009
<v Speaker 1>the one with the strongest ties to Margolis Merrill to

484
00:28:23.049 --> 00:28:25.109
<v Speaker 1>get the best result at trial.

485
00:28:26.349 --> 00:28:30.750
<v Speaker 3>I would continue the investigation as outlined. Keep going down

486
00:28:30.809 --> 00:28:31.430
<v Speaker 3>that road.

487
00:28:32.789 --> 00:28:36.690
<v Speaker 1>Baber and company are doing just that. I don't think

488
00:28:36.730 --> 00:28:40.490
<v Speaker 1>we could conclude this discussion and episode without addressing one

489
00:28:40.529 --> 00:28:44.849
<v Speaker 1>more thing. Granted that Marvin Margoa slash Merrill is dead,

490
00:28:44.970 --> 00:28:47.769
<v Speaker 1>and this has been an exercise in speculation of whether

491
00:28:47.809 --> 00:28:51.109
<v Speaker 1>he could be charged where he's still alive. While these

492
00:28:51.190 --> 00:28:54.289
<v Speaker 1>judges easily say the answer is yes, the question of

493
00:28:54.369 --> 00:28:57.420
<v Speaker 1>whether a jury would convict him is not as much

494
00:28:57.460 --> 00:29:00.779
<v Speaker 1>a given. The star witness in any trial would have

495
00:29:00.819 --> 00:29:03.539
<v Speaker 1>to be Alex Baber, and it would be a question

496
00:29:03.599 --> 00:29:07.140
<v Speaker 1>as to whether 12 jurors would like him and believe him.

497
00:29:08.279 --> 00:29:11.019
<v Speaker 1>Baber is on the autism spectrum, and what makes him

498
00:29:11.079 --> 00:29:15.059
<v Speaker 1>a good investigator also works against him sometimes in terms

499
00:29:15.119 --> 00:29:19.839
<v Speaker 1>of personality. He freely admits he speaks bluntly, quickly, and

500
00:29:19.920 --> 00:29:24.839
<v Speaker 1>sometimes lacks social filters. He doesn't sugarcoat anything, and that's

501
00:29:24.900 --> 00:29:28.819
<v Speaker 1>sometimes as perceived as arrogance. It's very clear in this

502
00:29:28.880 --> 00:29:32.269
<v Speaker 1>investigation that those who don't like the message want to

503
00:29:32.309 --> 00:29:36.069
<v Speaker 1>kill the messenger. to use the figure of speech. And

504
00:29:36.089 --> 00:29:39.630
<v Speaker 1>the messenger here is clearly Alex Baber. He has become

505
00:29:39.650 --> 00:29:44.039
<v Speaker 1>a light rod for unfounded attacks and accusations. He no

506
00:29:44.099 --> 00:29:47.119
<v Speaker 1>doubt strikes a nerve, and we asked Judge Trott if

507
00:29:47.160 --> 00:29:49.759
<v Speaker 1>he would even put him on the witness stand in trial,

508
00:29:50.180 --> 00:29:53.140
<v Speaker 1>and if so, how he would handle his biggest witness

509
00:29:53.299 --> 00:29:56.269
<v Speaker 1>also being perhaps his biggest vulnerability.

510
00:29:57.250 --> 00:29:59.250
<v Speaker 2>I think I could make a jury really like Alex

511
00:29:59.309 --> 00:30:02.230
<v Speaker 2>because I would start at the very beginning, his interest

512
00:30:02.269 --> 00:30:04.049
<v Speaker 2>in this thing, and I would take him through all

513
00:30:04.069 --> 00:30:07.240
<v Speaker 2>of his mistakes and his blind alleys and his errors

514
00:30:07.339 --> 00:30:09.660
<v Speaker 2>and his picking people that weren't the right guy. I'd

515
00:30:09.700 --> 00:30:12.259
<v Speaker 2>take him through all of that. And the jury would

516
00:30:12.319 --> 00:30:15.380
<v Speaker 2>begin to see how intense he was at getting to

517
00:30:15.420 --> 00:30:17.200
<v Speaker 2>the right answer. And all of a sudden, he comes

518
00:30:17.259 --> 00:30:19.420
<v Speaker 2>out at the end. But is it just Alex Baber?

519
00:30:19.460 --> 00:30:19.849
<v Speaker 1>Hell no.

520
00:30:19.900 --> 00:30:23.430
<v Speaker 2>It's Giorgio Henry and Wisniewski, you know, the top code maker,

521
00:30:23.529 --> 00:30:26.130
<v Speaker 2>the top code breaker at the National Security Agency.

522
00:30:26.269 --> 00:30:29.180
<v Speaker 1>Holy cow. I asked Baber if he would be up

523
00:30:29.220 --> 00:30:33.319
<v Speaker 1>to the task of testifying about the findings of his investigation.

524
00:30:34.039 --> 00:30:35.920
<v Speaker 1>So this should never have been about me. It was

525
00:30:35.940 --> 00:30:38.460
<v Speaker 1>always about Elizabeth and the other victims and seeing justice

526
00:30:38.480 --> 00:30:38.819
<v Speaker 1>for them.

527
00:30:39.460 --> 00:30:42.269
<v Speaker 6>It's a profound tragedy that their killer actually left this

528
00:30:42.369 --> 00:30:44.240
<v Speaker 6>life without ever being identified.

529
00:30:44.960 --> 00:30:47.410
<v Speaker 1>And whether people like me or not, Michael, it doesn't matter.

530
00:30:47.430 --> 00:30:48.410
<v Speaker 1>It's irrelevant to my work.

531
00:30:48.990 --> 00:30:52.589
<v Speaker 6>I'm not interested in appeasing internet trolls or critics that

532
00:30:52.630 --> 00:30:55.769
<v Speaker 6>don't read into our evidence or take the time to.

533
00:30:56.160 --> 00:30:58.619
<v Speaker 6>With that being said, you know, I think that if

534
00:30:58.700 --> 00:31:01.109
<v Speaker 6>I was given the opportunity, I would take the stand

535
00:31:01.130 --> 00:31:03.970
<v Speaker 6>in an instance, raise my hand, take an oath and

536
00:31:04.329 --> 00:31:07.829
<v Speaker 6>testify the evidence we've uncovered. And I think if we

537
00:31:07.869 --> 00:31:12.390
<v Speaker 6>do that, you know, in a public court of opinion

538
00:31:12.990 --> 00:31:15.289
<v Speaker 6>and people are willing to see what we have and

539
00:31:15.329 --> 00:31:19.069
<v Speaker 6>keep their eyes on the prize, I think that we

540
00:31:19.089 --> 00:31:22.009
<v Speaker 6>have an opportunity to show the people exactly how deep

541
00:31:22.029 --> 00:31:25.140
<v Speaker 6>this investigation went. and how we're advancing it further than

542
00:31:25.160 --> 00:31:26.400
<v Speaker 6>anybody else has ever advanced it.

543
00:31:29.509 --> 00:31:31.829
<v Speaker 1>You have been listening to Chapter 12 of Killer in

544
00:31:31.849 --> 00:31:36.089
<v Speaker 1>the Code, Solving the Black Dahlia in Zodiac Cases. This

545
00:31:36.150 --> 00:31:39.549
<v Speaker 1>episode was written and produced by me, Michael Connolly. It

546
00:31:39.589 --> 00:31:43.150
<v Speaker 1>was edited by Terrell Lee Lankford with music and post-production

547
00:31:43.210 --> 00:31:48.319
<v Speaker 1>services provided by Mark Henry Phillips. We'll be back soon

548
00:31:48.339 --> 00:31:51.279
<v Speaker 1>with Chapter 13. Thank you for listening.