Speaker 1: You're listening to Killer in the Code, solving the Black
Speaker 1: Dahlia and Zodiac cases. I'm your host, Michael Connolly. This
Speaker 1: is Chapter 12, and today we are going to go
Speaker 1: from the trenches to the benches. And by that I
Speaker 1: mean we are going to speak with two men who
Speaker 1: have served for many years on the bench. Two judges
Speaker 1: who have handled literally thousands and thousands of criminal cases
Speaker 1: between them in both federal and state courts. and who
Speaker 1: you could say started out in the trenches of the
Speaker 1: justice system. That is, one as a prosecutor and one
Speaker 1: as a cop. Each's lifelong dedication to the law certainly
Speaker 1: qualifies them to study the investigation headed by Alex Baber
Speaker 1: and tell us where we would stand if the suspect
Speaker 1: Baber has identified Marvin Margolis, a.k.a. Marvin Merrill, were still
Speaker 1: alive and able to be brought to justice. Veteran homicide
Speaker 1: investigator Rick Jackson, who is part of the Baber team,
Speaker 1: joined me for these interviews so that I could have
Speaker 1: on hand an experienced detective who countless times has worked
Speaker 1: with prosecutors and testified in front of judges. We asked
Speaker 1: these jurors to study the investigation, ask questions, and render
Speaker 1: an unbiased opinion on the case and its evidence. While
Speaker 1: Marvin Margolis died in 1993 and is beyond the reach
Speaker 1: of judgment, in this life at least, we wanted to
Speaker 1: know what we have and what we would still need
Speaker 1: if we were to take a living Marvin Margolis to trial.
Speaker 1: Our first interview was with the honorable Stephen S. Trott,
Speaker 1: who is a former Associate Attorney General of the United
Speaker 1: States who left the Justice Department for a seat on
Speaker 1: the U.S. Court of Appeals for the Ninth Circuit. which
Speaker 1: includes the entire west coast of the nation, plus Hawaii
Speaker 1: and Alaska. Before all that, Trott spent 15 years as
Speaker 1: a deputy district attorney in Los Angeles County before being
Speaker 1: appointed U.S. attorney for the Central District of California, which
Speaker 1: includes Los Angeles. It's clear that Judge Trott has long
Speaker 1: experienced filing, prosecuting, and judging criminal cases. What we were
Speaker 1: most interested in discussing with him was probable cause, which
Speaker 1: is the legal standard or threshold of evidence that must
Speaker 1: be reached for authorities to arrest and charge a suspect
Speaker 1: with a crime. There must be sufficient probable cause for
Speaker 1: a judge to then order a suspect to stand trial.
Speaker 1: And of course, the threshold is higher for a conviction.
Speaker 1: A judge or jury must find the suspect guilty beyond
Speaker 1: a reasonable doubt. So the first question put to Judge
Speaker 1: Trott after he reviewed the evidence accumulated by the Baber
Speaker 1: team was whether the evidence met the legal standard of
Speaker 1: probable cause. This is what he told us.
Speaker 2: I was in that business for 23 years, and this
Speaker 2: is just the easiest case I've ever seen in terms
Speaker 2: of probable cause. It's overwhelming. It's overwhelming. But let me
Speaker 2: tell you, no good prosecutor either arrests somebody or takes
Speaker 2: the case to a preliminary hearing unless and until that
Speaker 2: prosecutor believes that the evidence is sufficient to convict somebody
Speaker 2: beyond a reasonable doubt in a jury trial. And I
Speaker 2: think this case has that already. So probable cause is
Speaker 2: real simple.
Speaker 1: We then asked the judge what he believed were the
Speaker 1: key pieces of evidence against Marvin Margolis.
Speaker 2: Well, it's a combination of things. And you start, of course,
Speaker 2: with Alex's ability to break the code. And I've gone
Speaker 2: over the code quite a lot up and down. And
Speaker 2: I think the code itself that zeroes in on him
Speaker 2: would be sufficient for probable cause. But you add to
Speaker 2: that the handwriting exemplars, the handwriting experts, and especially his
Speaker 2: son taking a look at the handwriting and saying, that's
Speaker 2: my father's handwriting. I mean, right there, that's already like,
Speaker 2: you have to be kidding me. That's really, really good.
Speaker 2: So those kinds of things. Then the composite matches are
Speaker 2: also important, but those are the key things. I think
Speaker 2: it's the code, it's the handwriting with respect to the zodiac. Now,
Speaker 2: if you're talking about Elizabeth Short, then it's a lot
Speaker 2: of things in addition to that. like the sketch, for example,
Speaker 2: especially the Glasgow smile. Of course, the question there is
Speaker 2: how much of that information might have been out in
Speaker 2: the ether that he could have drawn that picture just
Speaker 2: from stuff that he read in the newspapers or books
Speaker 2: or whatever, because the thing is dated, as you well know, 1992,
Speaker 2: which is well after 1947. So a good defense attorney
Speaker 2: would attack that and say, well, how do you know
Speaker 2: he just didn't do this picture on the basis of
Speaker 2: what he's read in the newspapers? But the picture is
Speaker 2: also very important because But he lived with Elizabeth Short
Speaker 2: for 12 days. He lied when he was first confronted
Speaker 2: and asked about her. Then he disappeared, changed his name,
Speaker 2: hit his identity. So all these things just sort of
Speaker 2: pile up. And of course, then his personal profile suggests
Speaker 2: that he's the right type of guy. You know, as
Speaker 2: Bill Mann told you, it's a question of how and
Speaker 2: why equals the who. And we know that if you
Speaker 2: look at his profile, he was in Okinawa as a
Speaker 2: corpsman dealing with all kinds of bodies. And he was
Speaker 2: a pre-med student at USC. So the idea is that
Speaker 2: he quite possibly had the capacity to sever her in
Speaker 2: two and drain her blood. You have to have somebody
Speaker 2: that has that capacity, and he certainly did, unlike many
Speaker 2: of the other suspects. We just keep going on down
Speaker 2: the list. But the key thing on the sketch to me,
Speaker 2: maybe the uncovering of the word zodiac on the sketch,
Speaker 2: because that sort of links the two together and sort
Speaker 2: of stands out to me as a something quite different.
Speaker 2: Of course, I would want to know if, as a
Speaker 2: trial lawyer, I'd spend a hell of a lot of
Speaker 2: time to find out whether any kind of information was
Speaker 2: out there on the web so that you could have
Speaker 2: drawn this sketch. Was the Glasgow smile out on the web?
Speaker 2: Probably not. You know, a good, Rick knows this, a
Speaker 2: good police officer holds back details that only the killer
Speaker 2: could know. That way you can sort out people who
Speaker 2: can make false confessions. I mean, I think you had
Speaker 2: 300 suspects back then, 19 confessions, and they whittled it
Speaker 2: down to 22 suspects. Well, so you want to hold
Speaker 2: back the details. So all these confessions, I had a
Speaker 2: bunch of these cases, false confessions. You know, you start
Speaker 2: checking the confession and there's a lot of stuff in
Speaker 2: there that doesn't make sense or he doesn't know things
Speaker 2: that he ought to know if he were the real killer.
Speaker 2: So again, you go all over these things, but just
Speaker 2: keep going down the list. And then you get to
Speaker 2: the Phillips 66 map and you find out that she's
Speaker 2: buried in plot 66 in the cemetery up on the
Speaker 2: hill in Oakland. Um, All of these things just sort
Speaker 2: of keep piling on as layer on top of layer
Speaker 2: to suggest not only probable cause, but sufficient evidence to
Speaker 2: convince a reasonable jury beyond a reasonable doubt that this
Speaker 2: was the guy who did both.
Speaker 1: Let me clarify a few things here. The judge references
Speaker 1: Bill Mann. He would be William Mann, the author of
Speaker 1: Black Dahlia, Murder, Monsters, and Madness in Mid-Century Hollywood. Mann's
Speaker 1: book was published earlier this year, and we talked to
Speaker 1: him in the first season of the podcast because his
Speaker 1: own research and investigation of Elizabeth Short's murder also concluded
Speaker 1: that Marvin Margolis was the most likely suspect. And being
Speaker 1: the former prosecutor, Trott kept a keen eye out for
Speaker 1: how a defense attorney might attack the investigation. His concern
Speaker 1: was that the so-called Elizabeth sketch by Marvin Margolis and
Speaker 1: turned over to Baber by his son, might have been
Speaker 1: informed or influenced by details of the Black Dahlia murder
Speaker 1: that were publicly known rather than from his being present
Speaker 1: at her murder. While the police did hold back many
Speaker 1: of the details of her murder in the early years
Speaker 1: of the investigation, the details and crime scene photos were
Speaker 1: indeed revealed as early as 1984 in a book called
Speaker 1: Kenneth Anger's Hollywood Babylon II. Elizabeth Short's body and wounds
Speaker 1: are on full display in an eight-page spread titled Nightflower's Nightmare.
Speaker 1: The photos include the so-called Glasgow smile cut into her face.
Speaker 1: This would appear to make the word Zodiac hidden in
Speaker 1: the shading of the sketch the most important detail as
Speaker 1: it serves as a link between the Zodiac and Black
Speaker 1: Dahlia cases. Let's go back to the interviews. The investigation
Speaker 1: has accumulated an extraordinary amount of what would be called
Speaker 1: circumstantial evidence that points strongly at Marvin Margolis, aka Marvin Merrill,
Speaker 1: as the killer in both cases. Some critics, I would
Speaker 1: say misinformed critics, of the investigation seem to dismiss circumstantial
Speaker 1: evidence as inconclusive or questionable. So we asked Judge Trott
Speaker 1: to clarify what the value of circumstantial evidence is in
Speaker 1: a case. as opposed to direct evidence.
Speaker 2: As a matter of fact, a jury is instructed, a
Speaker 2: jury is instructed there is no difference between circumstantial evidence
Speaker 2: and direct evidence as a means of truth. It's all
Speaker 2: a question of what the circumstantial evidence means. So the
Speaker 2: law regards both as equally strong. As a matter of fact,
Speaker 2: I like circumstantial evidence better than some direct evidence. The
Speaker 2: key direct evidence, of course, is eyewitness identification. And we
Speaker 2: all know that eyewitness identification is very faulty. But you
Speaker 2: start lining up circumstantial evidence and all of a sudden
Speaker 2: it can be quite interesting. And as a trial lawyer,
Speaker 2: you use that sort of as an Agatha Christie approach
Speaker 2: to things. You just keep piling these circumstances on top
Speaker 2: of circumstances. And pretty soon one plus two plus three
Speaker 2: and it points to this guy. I would have a
Speaker 2: ball with this as a jury. But I'll tell you
Speaker 2: another part of the circumstantial evidence that I think is
Speaker 2: really important. It's the elimination of all the other possible suspects. Now,
Speaker 2: the Supreme Court quite a while ago said it's okay
Speaker 2: for a defense attorney to attack the integrative investigation by
Speaker 2: showing that the police focused on one person and one
Speaker 2: person only to the exclusion of all other possible suspects. Well,
Speaker 2: as a prosecutor, that means I would have a ball
Speaker 2: because I would put the investigating officer on the stand
Speaker 2: and I'd say, all right, officer, you investigated this case
Speaker 2: for a certain period of time. How many suspects did
Speaker 2: you identify? X, 22, for example. And then I'd have
Speaker 2: a big chart with all these names and I'd go
Speaker 2: through them one by one, all through the suspects. Now,
Speaker 2: why is this person a suspect? And why did you
Speaker 2: eliminate him? And why was this person? And pretty soon
Speaker 2: you'd get to the bottom and it's like Bill Mann says,
Speaker 2: last man standing. And all of a sudden it's Marvin Merrill,
Speaker 2: who you track back to Marvin Margolis. So circumstantial evidence,
Speaker 2: to go back to your original question, is killer. So
Speaker 2: circumstantial evidence, I loved it. I absolutely loved it. Then
Speaker 2: your final argument, you begin to put all those pieces
Speaker 2: together and it fits like a hand in a glove perfectly.
Speaker 2: Not to use an OJ example, but this glove fits.
Speaker 2: And if it fits, guess what? I tried cases in
Speaker 2: state and federal court for a long time.
Speaker 1: I loved it.
Speaker 2: I think it's fascinating. And I'd love to have a
Speaker 2: case like this. To me, the Cases like this load
Speaker 2: with circumstantial evidence, they're just wonderful, wonderful cases. I'd rather
Speaker 2: have that than a case with only five eyewitnesses. Those
Speaker 2: are a mess. But lots of circumstantial evidence, it's great.
Speaker 2: And jurors love this stuff. As I said, I presented
Speaker 2: to them like they're solving the case. That's the way
Speaker 2: I put it together. So they're solving the case. And
Speaker 2: it works. It just works.
Speaker 1: We asked the judge where the weaknesses were in the cases.
Speaker 1: and the evidence we could present. I particularly wanted to
Speaker 1: know if, as a prosecutor, he would split the cases
Speaker 1: into two trials because the Dahlia case, by virtue of
Speaker 1: it being a provable fact that Margolis knew the victim,
Speaker 1: was the stronger of the two with a better chance
Speaker 1: of conviction.
Speaker 2: Here's what you do as a prosecutor. You cannot become
Speaker 2: a really good prosecutor unless you're also already a good
Speaker 2: defense attorney. Because it's just like football. You can't just
Speaker 2: play offense. You have to play defense. And so what
Speaker 2: I used to do is after I would put my
Speaker 2: case together and say, all right, here's the way I'm
Speaker 2: going to, here's the evidence that I'm going to put in,
Speaker 2: the arguments that I'm going to make to prove my case.
Speaker 2: Then I would step back and say, all right, now
Speaker 2: I know what the case looks like. And then I
Speaker 2: would hire myself as the defense attorney. And I would say,
Speaker 2: now I'm going to take a look at this guy's
Speaker 2: case and see how I'm going to take it apart.
Speaker 2: And I would immediately identify all the vulnerabilities. in the
Speaker 2: evidence in the case, and then would figure out which
Speaker 2: vulnerabilities to attack and how. And the only way you
Speaker 2: learn that, you don't get that in law school. You
Speaker 2: have to try a whole lot of cases against really
Speaker 2: good defense attorneys. And then you begin to develop your
Speaker 2: own second sense of looking at evidence from two ways.
Speaker 2: You say, what does this prove and what are its
Speaker 2: vulnerabilities at the same time? And so in the code,
Speaker 2: for example, you've got Alex. Now, Alex is going to
Speaker 2: be a handful because as you know, and you've discussed
Speaker 2: on the on the podcast, he's got a bit of
Speaker 2: a personality and everybody under the sun has attacked him.
Speaker 2: If I were the defense attorney, I would attack Alex
Speaker 2: like crazy, because if you can crack Alex, then you
Speaker 2: can raise the doubt as to hold this whole code thing.
Speaker 2: And so, so I would talk to, to Giorgio and
Speaker 2: Henry and Wisniewski, and I would learn the, almost the
Speaker 2: code thing as well as Alex did, although I realized
Speaker 2: that's impossible. But then I would ask them, all right,
Speaker 2: if you were hired, to take the stand in this
Speaker 2: case and say this is baloney, both method and result,
Speaker 2: what would you attack? And I'm looking for the vulnerabilities. Now,
Speaker 2: I don't see any so far. I haven't talked to them.
Speaker 2: But Giorgio and Henry and Wisniewski did a tremendous job
Speaker 2: in looking at these things. So I think the code
Speaker 2: is going to hold up. And if the code holds
Speaker 2: up and if Alex– and I think I could make
Speaker 2: Alex hold up. I think that I can make a
Speaker 2: jury like Alex a lot. This whole business about being–
Speaker 2: incited to get into this game in the first place
Speaker 2: by Sherlock Holmes and Alan Turing, that's good stuff. Now,
Speaker 2: before you could put Alex on on something like this, though,
Speaker 2: you'd have to have him qualified as an expert under
Speaker 2: what we call the Dobert rule. And that could be
Speaker 2: a problem because he doesn't have any background. He's a
Speaker 2: self-taught guy. So I would have a hearing beforehand in court,
Speaker 2: preliminary to the actual trial itself, to have him qualify
Speaker 2: as an expert. And I would use Giorgio and Henry
Speaker 2: and Wisniewski to qualify him as an expert to set
Speaker 2: him up. but I'd also get a really good sense
Speaker 2: of how he would play as a witness under those
Speaker 2: circumstances too. So I think the Zodiac case is strong
Speaker 2: because that coat looks to me like it's really strong.
Speaker 2: And I don't see anything yet where anybody with any
Speaker 2: qualifications has come forward and questioned either the method or
Speaker 2: the result. And as Rick and Mitzi have pointed out,
Speaker 2: the fact that he's a little distant, well, that's not
Speaker 2: all unusual. I mean, you're not going to go kill
Speaker 2: people in your backyard. You're going to go a little
Speaker 2: bit from your house. And this business where he shows
Speaker 2: up at the payphone, within a line of sight from
Speaker 2: where she used to live, that's kind of tricky too.
Speaker 2: And this plot 66 with a Phillips 66 map with
Speaker 2: a Zodiac sign on it, I mean, this is really
Speaker 2: good circumstantial evidence stuff. And see, I would have all
Speaker 2: of these stuff recreated in front of a jury. In
Speaker 2: other words, the jury would watch how somebody would take
Speaker 2: that map and superimpose the Zodiac with a small circle
Speaker 2: and the radians and the inches and And I would
Speaker 2: bring it alive. And I present this case as an
Speaker 2: Agatha Christie whodunit. And I'd be asking the jury to
Speaker 2: solve it with me along. And I think it's just
Speaker 2: really good evidence for that kind of thing. So I'm
Speaker 2: equally strong about both cases. When you're looking at a donut,
Speaker 2: my grandmother used to say, evaluating a donut, don't just
Speaker 2: look at the hole, H-O-L-E. Don't look at what's not there.
Speaker 2: Look at what's there. And that's what's going to tell
Speaker 2: you whether it's a good donut or not. And so
Speaker 2: then you pile all this stuff, these little things that
Speaker 2: might be missing here or there, they're irrelevant. You know,
Speaker 2: the fact that he lives far away, all these kinds
Speaker 2: of things. The stuff that's not there, I think, is
Speaker 2: absolutely irrelevant. Mitzi and Rick are right about that. But, yeah,
Speaker 2: it all just piles on, and there's nothing that comes
Speaker 2: in there and says, no, this is not the guy.
Speaker 1: Little known fact about Stephen Trott. He may be the
Speaker 1: only ex-prosecutor and federal judge who has a number one
Speaker 1: hit record on his resume. It's true. Before he went
Speaker 1: off to Harvard Law School as a young man, he
Speaker 1: was in a folk group called the Highwaymen. And they
Speaker 1: had a number one hit with the song, Michael, Row
Speaker 1: Your Boat Ashore. All right. We still have more for
Speaker 1: you from the bench. Rick Jackson and I also spoke
Speaker 1: to retired California Superior Court Judge Arthur Wick, who presided
Speaker 1: in Sonoma County in Northern California. But he started his
Speaker 1: career in the law as a Los Angeles County Sheriff's deputy,
Speaker 1: serving for seven years and going to law school at
Speaker 1: night before starting his career as an attorney and eventually
Speaker 1: being appointed to the bench by Governor Arnold Schwarzenegger. He
Speaker 1: now has retired and has come full circle. He's a
Speaker 1: volunteer consultant on the cold case team with the Sonoma
Speaker 1: County Sheriff's Department. When Rick and I talked to him,
Speaker 1: He was working on the unsolved murders of seven young
Speaker 1: women in the early 70s by an unknown serial killer.
Speaker 1: These occurred at the same time that the Zodiac Killer
Speaker 1: held the nearby Bay Area in the grip of fear
Speaker 1: because of his random killings as well as the taunting
Speaker 1: and threatening letters and ciphers he sent to local newspapers.
Speaker 1: As a Superior Court judge, Wick handled nearly 20,000 cases
Speaker 1: in a long career. most of them criminal. He also
Speaker 1: was a judge who local investigators came to with search warrants.
Speaker 1: He signed off on them, or didn't, based on probable cause.
Speaker 1: We asked him the same thing we asked Judge Trott.
Speaker 1: Has the Alex Baber and team's investigation gathered enough probable
Speaker 1: cause to warrant the arrest, search, and prosecution of Marvin Margolis?
Speaker 1: Were he still alive?
Speaker 3: You're way past probable cause standard. As an example, could
Speaker 3: you get a search warrant for his belongings or his
Speaker 3: son's belonging? Unquestionably. In fact, you'd get a search warrant
Speaker 3: that would withstand scrutiny at the appellate level. There's no
Speaker 3: doubt in my mind. And then the question becomes, of course,
Speaker 3: you go to a preliminary hearing. Now, mind you, we
Speaker 3: don't have a defense here, but I've reviewed... watched your
Speaker 3: podcast three times in its entirety thus far to make
Speaker 3: certain that I have some command of the fact and facts.
Speaker 3: And I believe you would be able to file a complaint,
Speaker 3: as it's called. In California, you would be able to
Speaker 3: file a complaint, go forward on a preliminary hearing, and
Speaker 3: produce enough evidence. Now, I'm kind of limiting the comments
Speaker 3: for the moment, Michael, to Black Dahlia case. I think
Speaker 3: it goes beyond that, but let's be very specific about
Speaker 3: what we're discussing. And so you file a complaint that
Speaker 3: lists first-degree murder charge against your prime suspect, listing his
Speaker 3: known aliases, and whether it's Merrill or Margolis, I think
Speaker 3: you surpass that. You reach that bar rather easily. He's
Speaker 3: going to be held to answer as to the charge
Speaker 3: in the complaint. and I'm going to permit you to
Speaker 3: file an information charging an individual with a very serious
Speaker 3: felony offense. that is likely to have several enhancements attached
Speaker 3: to it, lying in wait comes to mind, and I'm
Speaker 3: not the suggester of death penalty, etc., but you have
Speaker 3: a rather serious matter here, obviously well-planned, well-thought-out, So you're
Speaker 3: talking first degree murder case, possibly with death sentence attached
Speaker 3: there too, that enhancement and others. And then you go
Speaker 3: forward on the information. And as I mentioned to Detective
Speaker 3: Jackson along the way, after the information is filed, you
Speaker 3: automatically receive a motion for 998 that says, please throw
Speaker 3: the case out. I have no qualms about that since
Speaker 3: I heard the preliminary hearing. It might have to go
Speaker 3: to another judge for the determination, but that's not a
Speaker 3: difficult issue. And the enhancements can be attacked. I think
Speaker 3: you're going to have several enhancements that will withstand scrutiny.
Speaker 3: You get into the murder case, jury's picked, you start
Speaker 3: presenting evidence, and the question always becomes, okay, now that
Speaker 3: the prosecution has finished, have you reached the level necessary
Speaker 3: to submit the case to a jury? I think you've
Speaker 3: probably surpassed that level. You have a serious, I mean,
Speaker 3: I'm going to be blunt here for a second. I
Speaker 3: don't see holes in the arguments that I've seen thus far.
Speaker 3: I have not been presented with credible evidence that would
Speaker 3: allow someone to argue someone else did it.
Speaker 1: Judge Wick also sought to clarify the importance of circumstantial evidence.
Speaker 3: People mischaracterize the value of circumstantial evidence, and it's argued
Speaker 3: in almost every single case I've ever handled. And, Michael,
Speaker 3: that's not only at the trial court level. That's at
Speaker 3: the appellate court level. Because the classic argument by the
Speaker 3: criminal defense attorney is, that's only circumstantial evidence. Yeah? Well,
Speaker 3: let's go to the law. Read Calcrim 223. Circumstantial evidence...
Speaker 3: doesn't mean it's below direct evidence. It means it is
Speaker 3: on the same level as direct evidence, and the fact finder,
Speaker 3: whether court, meaning the judge or the jury, gets to
Speaker 3: decide how much weight you give it.
Speaker 1: Judge Wick agreed with Judge Trott that a key part
Speaker 1: of the case is the elimination of the other suspects
Speaker 1: by both the original investigation dating back to 1947 and
Speaker 1: as well as the present team's work on the case.
Speaker 1: Investigative tunnel vision is a trap that often pays dividends
Speaker 1: for the defense at trial.
Speaker 3: But one thing I find very persuasive, Michael, at this
Speaker 3: stage is, and I would even put this in a
Speaker 3: search warrant if I was asked for a search warrant,
Speaker 3: there may be 20 other suspects, or what did he say,
Speaker 3: 24 or something like that, those suspects have been eliminated
Speaker 3: for a variety of reasons. That's critically important, not only
Speaker 3: to the beginning stages of a case, but to the
Speaker 3: final stages when the defense is standing there before the
Speaker 3: jury arguing, you know, insufficiency of evidence. Somebody else did this. Well,
Speaker 3: you don't get to make that argument unless there's credible
Speaker 3: evidence to that. That's always the claim. It wasn't me. Yeah,
Speaker 3: doesn't carry a lot of weight. And by the way,
Speaker 3: you don't just get to make that statement in front
Speaker 3: of the jury. Defendant can. He can take the stand. Risk, cross-examination,
Speaker 3: all of those issues that come with that. But the
Speaker 3: defense doesn't just get to stand up and say, what
Speaker 3: about anybody else who could have committed a crime? I
Speaker 3: need credible, reliable, legally sufficient evidence. It's been reviewed and
Speaker 3: possibly admitted in court. And I have yet to see
Speaker 3: something that suggests your team is on the wrong path.
Speaker 1: When it came to the Zodiac case, the judge was
Speaker 1: more circumspect about the evidence. The case against Margolis Merle
Speaker 1: largely balances on the identification of the suspect through the
Speaker 1: code breaking by Alex Baber and the confirmation from experts
Speaker 1: in the field of cryptanalytics. Judge Wick said Alex Baber
Speaker 1: would need to explain his work and make clear how
Speaker 1: he identified Marvin Merle as the Zodiac.
Speaker 3: I concur with the fact that you would present him
Speaker 3: as a lay witness, so to speak. But once you
Speaker 3: lay a foundation, even a lay person can become an
Speaker 3: expert in a given topic. And I believe you probably
Speaker 3: laid enough foundation that he would be qualified as an expert.
Speaker 3: Let him attack his credibility.
Speaker 1: So be it.
Speaker 3: We're talking about qualifications. And what he's done to cross
Speaker 3: over from Black Dahlia to Zodiac is incredible. no less
Speaker 3: than astonishing. The work that your team has done and
Speaker 3: what you have uncovered is monumental. And the crossover is easy.
Speaker 3: The question becomes, how many of the cases do you
Speaker 3: have a direct link to? And that's where it gets
Speaker 3: difficult now. You don't just say, well, he's going to
Speaker 3: be charged with five murders. You're going to have to
Speaker 3: be very particular as to how you get there. So, Michael,
Speaker 3: there are Strong crosshombers, great indicators. Could he be charged
Speaker 3: in some of those cases?
Speaker 1: Perhaps yes. I talked about this with Rick Jackson and
Speaker 1: Mitzi Roberts, another veteran homicide investigator on the Baber team.
Speaker 1: They agreed that while the Zodiac Killer is credited with
Speaker 1: five murders in the Bay Area, each case would be
Speaker 1: evaluated individually in terms of charges. because each of the
Speaker 1: cases will have a different level and quality of evidence.
Speaker 1: They said that in serial killer cases in particular, it
Speaker 1: is not unusual for prosecutors to zero in on the
Speaker 1: cases with the strongest evidence while leaving others unprosecuted. Before
Speaker 1: retiring as Los Angeles Police Department cold case detectives, Roberts
Speaker 1: and Jackson were at one point on the cross-country trail
Speaker 1: of Sam Little, a serial killer who was later classified
Speaker 1: by the FBI as the most prolific on record in
Speaker 1: the United States. While he may be credited with nearly
Speaker 1: 90 murders, including at least a dozen in Los Angeles,
Speaker 1: he was convicted of only three murders as prosecutors in
Speaker 1: Los Angeles chose the cases they believed were the strongest
Speaker 1: in terms of evidence and likely conviction. Once Little was
Speaker 1: found guilty in those cases by a jury, He confessed
Speaker 1: to the other murders before dying in prison of COVID.
Speaker 1: This is Missy Roberts, followed by Rick Jackson.
Speaker 4: In the case with Sam Little, we had those three
Speaker 4: very strong DNA hits. But we also had evidence that
Speaker 4: he had engaged in similar activity for decades. And we
Speaker 4: had identified prior victims previously. And cases that we wanted
Speaker 4: to investigate further, but with the prior victims, they hadn't
Speaker 4: been charged cases or in some cases they had been
Speaker 4: charged and didn't go.
Speaker 1: Further in court.
Speaker 4: And then it's a real strategic plan there because they're
Speaker 4: not the strongest cases and you don't want them to
Speaker 4: taint your case, but you also want to bring in
Speaker 4: that evidence. That's how we decided strategically to do it
Speaker 4: in Sam Little in order to protect the three really
Speaker 4: solid cases we had.
Speaker 5: Juries start looking at evidence and they see strong cases
Speaker 5: and then they see weaker cases. And sometimes a juror
Speaker 5: or multiple jurors or a full jury will start to
Speaker 5: look at a prosecutor like they're trying to pull something
Speaker 5: over them as a jury. And it could have a
Speaker 5: detrimental effect on decisions sometimes, trying to sneak cases by them.
Speaker 1: If you will. Judge Wick was clearly suggesting that sort
Speaker 1: of strategy in the approach to the Zodiac cases. Pick
Speaker 1: the one with the strongest ties to Margolis Merrill to
Speaker 1: get the best result at trial.
Speaker 3: I would continue the investigation as outlined. Keep going down
Speaker 3: that road.
Speaker 1: Baber and company are doing just that. I don't think
Speaker 1: we could conclude this discussion and episode without addressing one
Speaker 1: more thing. Granted that Marvin Margoa slash Merrill is dead,
Speaker 1: and this has been an exercise in speculation of whether
Speaker 1: he could be charged where he's still alive. While these
Speaker 1: judges easily say the answer is yes, the question of
Speaker 1: whether a jury would convict him is not as much
Speaker 1: a given. The star witness in any trial would have
Speaker 1: to be Alex Baber, and it would be a question
Speaker 1: as to whether 12 jurors would like him and believe him.
Speaker 1: Baber is on the autism spectrum, and what makes him
Speaker 1: a good investigator also works against him sometimes in terms
Speaker 1: of personality. He freely admits he speaks bluntly, quickly, and
Speaker 1: sometimes lacks social filters. He doesn't sugarcoat anything, and that's
Speaker 1: sometimes as perceived as arrogance. It's very clear in this
Speaker 1: investigation that those who don't like the message want to
Speaker 1: kill the messenger. to use the figure of speech. And
Speaker 1: the messenger here is clearly Alex Baber. He has become
Speaker 1: a light rod for unfounded attacks and accusations. He no
Speaker 1: doubt strikes a nerve, and we asked Judge Trott if
Speaker 1: he would even put him on the witness stand in trial,
Speaker 1: and if so, how he would handle his biggest witness
Speaker 1: also being perhaps his biggest vulnerability.
Speaker 2: I think I could make a jury really like Alex
Speaker 2: because I would start at the very beginning, his interest
Speaker 2: in this thing, and I would take him through all
Speaker 2: of his mistakes and his blind alleys and his errors
Speaker 2: and his picking people that weren't the right guy. I'd
Speaker 2: take him through all of that. And the jury would
Speaker 2: begin to see how intense he was at getting to
Speaker 2: the right answer. And all of a sudden, he comes
Speaker 2: out at the end. But is it just Alex Baber?
Speaker 1: Hell no.
Speaker 2: It's Giorgio Henry and Wisniewski, you know, the top code maker,
Speaker 2: the top code breaker at the National Security Agency.
Speaker 1: Holy cow. I asked Baber if he would be up
Speaker 1: to the task of testifying about the findings of his investigation.
Speaker 1: So this should never have been about me. It was
Speaker 1: always about Elizabeth and the other victims and seeing justice
Speaker 1: for them.
Speaker 6: It's a profound tragedy that their killer actually left this
Speaker 6: life without ever being identified.
Speaker 1: And whether people like me or not, Michael, it doesn't matter.
Speaker 1: It's irrelevant to my work.
Speaker 6: I'm not interested in appeasing internet trolls or critics that
Speaker 6: don't read into our evidence or take the time to.
Speaker 6: With that being said, you know, I think that if
Speaker 6: I was given the opportunity, I would take the stand
Speaker 6: in an instance, raise my hand, take an oath and
Speaker 6: testify the evidence we've uncovered. And I think if we
Speaker 6: do that, you know, in a public court of opinion
Speaker 6: and people are willing to see what we have and
Speaker 6: keep their eyes on the prize, I think that we
Speaker 6: have an opportunity to show the people exactly how deep
Speaker 6: this investigation went. and how we're advancing it further than
Speaker 6: anybody else has ever advanced it.
Speaker 1: You have been listening to Chapter 12 of Killer in
Speaker 1: the Code, Solving the Black Dahlia in Zodiac Cases. This
Speaker 1: episode was written and produced by me, Michael Connolly. It
Speaker 1: was edited by Terrell Lee Lankford with music and post-production
Speaker 1: services provided by Mark Henry Phillips. We'll be back soon
Speaker 1: with Chapter 13. Thank you for listening.