Zodiackiller.com Message Board: Arthur Leigh Allen: District Attorney: "I Could Convict Allen Easily!"

I'm posting this on behalf of an attorney who prefers to remain anonymous.

Hey all,

That's a pretty inflammatory subject line, but I'm quite confident that I could convict Allen of several of the Zodiac murders.

Having tried TONS of cases with pure circumstantial proof, this case would NOT be a big challenge. Trust me, when you line up this many facts that point to someone's guilt of crimes this horrific, a jury convicts. A smoking gun is NOT necessary. Cops in general (and in SF in the 60's and 70's in particular) felt a huge need to bury someone with proof before they pushed hard for a conviction, and DA's were the same way. The key is "reasonable" doubt, and when you put 100 or so facts forward that show guilt, 100 separate explanations don't work as a defense. Add to this that Allen made everyone who talked to him about this nervous or scared, a jury would punt him into prison in no time.

Believe it or not, smart defendants are often their worst enemy in court. A jury doesn't like to see someone who is too clever working too hard to defend themselves. They think innocence makes its own case; if someone has a million explanations for everything, they look guilty. The summation goes like this:

"ladies and gentlemen, the defendant would have you believe these facts are all explicable by different excuses: The bombs were left by a friend. The watch was a random gift from his mom. He was going to Berryessa on the day of the Shepard/Hartnell attack but changed his mind. That his mechanical skills and the disabling of cars of victims was a coincidence. That his unusual use of language (Trigger mech, xmass, etc) in an identical manner to Zodiac is also a coincidence. That his forged exonerating letter allegedly from the Justice Department is authentic. That all witnesses who claim to have had Allen confess to them are lying, but he's telling the truth. That his own family never saw the evidence they told police they saw. The access to identical cars, connection to Darlene Ferrin, ownership of a bloody knife used "to kill some chickens", ownership of matching weapons, shoes, his build, and on and on were all nothing more than coincidence. That a witness picked him out of a photo lineup in error. All these incongruous and unlikely explanations on one side, and on the other, the single reasonable explanation to all these facts: Arthur Leigh Allen is the Zodiac!" etc...

Allen blabbed way too much and has far too many lame excuses to escape a jury. His defense lawyer would be heavily limited by Allen's previous tales and explanations. If the guy had shut up, never talked to anyone, and didn't come up with any excuses before trial he'd be far tougher to get. But he left so much to work with.

I just can't believe the police and DA's didn't go for the jugular. I've never seen a prime suspected treated with such respect. Look, they could EASILY have threatened sending him back to Atascadero on a parole violation for just looking at the parole officer wrong. The burden of proof for a PV is very low, evidentiary rules are relaxed in favor of the state, and a judge is always going to go with the parole officer on any decent set of facts. I just can't figure it out.

And all this business of it being impossible to get a search warrant across county lines is absurd! I know Toschi was the man, but they were all WAY too respectful of Allen's rights as a suspect. I've walked through DOZENS of warrants out of county with way less than they ever had.

They should have played rough with him, hooked him up for a PV or weapons violation, or as a suspect. Then let him sweat it out in custody while you bring charges, and squeeze a confession out of him in exchange for not putting him to death. Force him to cough up some hard evidence of his guilt, of course, but he'd be blabbing his guts in no time rather than spending another few years at Atascadero getting the worst possible treatment from the guards. Meanwhile, take your sweet time searching every square inch of every piece of property you can connect to him or a friend. Force the family to testify before a grand jury, depose Belli so that:

1) he couldn't defend Allen and
2) get all the birthday confession phone call evidence in.

I just don't get it. Usually cops and DA's are itching to find an excuse to arrest a prime suspect, here it seems that they did everything they could to avoid it.

It really isn't that tough to convict a guilty man, all this micro analysis of the case makes it seem much harder to prove guilt in a criminal court than it is in reality. Allen would be toast if they'd charged him, and he would have chickened out and plead rather than face poor treatment in the prison system, and possibly the death penalty. He would have provided specifics in his confession, or at least festered in prison for the rest of his years, and the victims would have some measure of closure. The fact that this man lived out his life in freedom is an affront to justice and to the memories of those whose life he ruined.

Anon

I wrote in another thread, "If you really take a good hard look at Allen and then check your bases from the pov of a prosecutor, you'll clearly see that any number of prosecutors would be willing to put Allen on trial. From my point of view -- btw, I'm not a lawyer, nor do I claim to be -- and assuming I was a prosecutor, I'm confident that I could nail Allen for Presidio Heights. Everything from there is a no-brainer."

It's good to see that somebody with a degree in law was willing to corroborate my assertions. I am wondering, however, if this anonymous DA feels the same way about any of the other suspects?

Scott

"I just don't get it."

Res Ipsa Loquitur, counsel.

"Res Ipsa Loquitur, counsel."

Because it lacks logic? Just a guess Peter, I've never studied Latin. How close am I?

"The fact speaks for itself". He knows what it means. That Allen was never busted even in 1991 (long after the era in which learned counsel claims SF prosecutors needed to pile on evidence to get a conviction) belies his boast that it would be "easy" to get a conviction on the circumstantial evidence against Allen. Apparently this guy didn't follow the OJ or Rodney King cases. Depose Belli to conflict him out and get the apocryphal birthday call in. Sure. And get Mark Furman to do the search. Belli would have had "anon" for breakfast.

BTW, Scott, just how would you get Allen for PH? Now, that I just don't get. (Diff thread?)

I'm inclined to think that given today's judicial environmental, anyone who becomes a plaintiff in a criminal proceeding, no matter what the evidence, stands a 50/50 chance of being convicted.

I agree 100% with Anon. Whoever this person is, that's the way it lays out. Even without a smoking gun, I just don't see the logic in turning one's back on Allen. Of course, if there was a smoking gun against another suspect, then fine. But there's not. Any investigator will tell you that eventually the circumstantial evidence tells you where you need to focus your investigation. In this case, it's a veritable roadmap to 32 Fresno St.

"The fact speaks for itself".

Now I'm up to speed. I've asked this before and I'll continue asking it until someone can provide a completely fair and easy answer: How much circumstantial evidence does one have to compile before it becomes something other than circumstantial?

I'm going with Anon. and Ray on this one; Res Ipsa Loquitur indeed, Peter.

Scott

Peter:
"That Allen was never busted even in 1991 (long after the era in which learned counsel claims SF prosecutors needed to pile on evidence to get a conviction) belies his boast that it would be "easy" to get a conviction on the circumstantial evidence against Allen."

Peter, after the 1991 search at Allen's residence the Vallejo Police Department had enough to put him away for the rest of his life. It was a no-brainer; a convicted felon in possession of a multitude of guns, bombs and ammo. (Not to mention his sex-offender status and the fact he was in possession of alleged child porn.) They chose not to even issue a citation.

With the VPD it's not a matter of "not having enough hard evidence"; rather, it's a matter of incompetence.

Scott:

Simple answer: A finding of guilt, whether by direct or circumstantial evidence, requires proof beyond a reasonable doubt.

That's all. Nothing special. Its not how much evidence, its how good.

First, however, you need to understand what circumstantial actually means. It doesn't mean doubtful or weak or uncertain. Circumstantial evidence requires some intermediate inference to be drawn in order to prove a given fact. You look out the window and you see rain. That's as direct as evidence gets that it is raining. You look out a window and you see a dozen people pulling out their umbrellas. You don't see any rain, but you infer that the people in the street feel it. You conclude it must be raining, even though you can't see it. The pulling out of the umbrellas is circumstantial evidence that it is raining.

Second, circumstantial evidence never "amounts to" anything other than circumstantial evidence. That's not how it works. More evidence does not make it less circumstantial. In fact, most evidence is circumstantial to a degree, and arguably all is. I saw Z pull out a gun and shoot Paul Stine. Is that direct or circumstantial? Well, I saw him pull the gun and operate the trigger mech, I heard the report and I saw blood explode all over the cab. Pretty direct. But the conclusion is that Z shot Paul. I didn't see the bullet, but there must have been one. That requires the inference that when I saw him pull the trigger and heard the report, it wasn't a blank and a bullet was actually fired into his head. Didn't see the bullet, but I sure saw its effects. That's circumstantial, if only slightly. Got it?

OK, so you want an easy answer? If there were an easy answer, there would be no need for judges, for juries, for cops, for witnesses, for due process, for the rules of evidence, for the burden of proof or the standard of proof. Just send in Mark Furman. As Justice Black said: It's not supposed to be easy. The whole point of 4th, 5th and 6th amendments is that it is supposed to be difficult. That's because it has to be fair. Not perfect. Fair. And fair is never easy. That's why this is America and no place else is.

As for what's fair: that's easy. The circumstantial evidence, or any other evidence, required to convict, is proof beyond a reasonable doubt.

That's all.

It means that there is no other explanation that a reasonable mind could accept. It does not mean that guilt is the best explanation, or the more likely explanation or even the overwhelmingly more likely explanation, or the one on which most reasonable minds agree. It does not mean that guilt is the explanation that you believe. It does not mean that no one has proven it untrue. It means that guilt is the only explanation that any reasonable person could believe. It means that guilt is the only explanation, because you have eliminated all the others.

It means, Scott, that you have the syringe in your hand, and the needle is in the vein of Arthur Lee Allen, strapped to the table there in front of you. It means that you are so certain that Arthur Lee Allen and only Arthur Lee Allen could have committed these crimes, that you will personally push the plunger. The decision is yours, and yours alone. It means that you will take responsibility for that decision before all the world, your Creator and yourself as long as you live, at least.

It means, by the way, that in preparing your case on PH, you have considered and fully explained such things as the following. There is no reasonable doubt that Z mailed Paul's bloody shirt in that letter. There is no reasonable doubt that Z is connected to the other crimes by the letters. There is no reasobable doubt that Sherwood Morrill made this connection by concluding that the same person prepared the letters. That's why given a conviction for PH, the rest is a no-brainer, right? There is also no doubt that Morrill examined Allen's handwriting exemplars, compared them to the Z letters, and concluded "they were not prepared by the same person". Not that there were differences, not "unless ALA was ambidextrous", not "unless the handwriting could have been disguised". T

They were not prepared by the same person.

Full stop.

Sherwood Morrill, the key witness who connects the PH perp to the other Z crimes through the letters has taken the stand and sworn on oath that in his professional opinion, Arthur Lee Allen did not prepare the Zodiac letters.

And when you have fully explained this little anomaly to your satisfaction, be prepared for ten, or a hundred more.

No reasonable doubt?

Push the plunger.

Excellent analysis, Peter. It's why I wouldn't vote to convict "my guy" (as Howard would say) on the basis of the available evidence, despite the fact that I feel strongly that he was involved.

Peter... I concur with Doug... I could almost hear you standing in front of a jury posing this as your closing argument! Great job!

IF, and it is indden big, IF all the 'facts' Anon lists in the post could be documented, it would indeed sound like a strong case. However, a number of bits of the 'circumstantial evidence' cited is open to hot debate for even existing. For examble, the 'birthday phone call to Mr. Belli'. A number of posters here have searched to find documenting evidence that it did occur on that date, but so far no one has posted such documentation. The 'connection to Darlene Ferrin, also has TONS of conflicting testimony. For every witness Anon puts on the stand testifying it was Allen stalking her the defense can put on somone who swears it wasn't. Numerous posters here, interviewing various 'witnesses' have already encountered this. "Ownership of matching weapons", WHAT matching weapons? I have never read any report which indicates other than all guns found in Allen's posession did NOT match ballistics. So what if he owned a .22, it was not
the same type used per police reports! Great circumstantial evidence all right, for the DEFENSE! "That a witness picked him out of a photo lineup in error", well, if you mean Mageau, picking him out 20+ years later after almost that many years of alcohol and drugs, an average defense attrorney would have a field day in cross examination.
As I said at the beginning, IF all the 'facts' of circumstantial evidence mentioned by anon were not in dispute, the case might be good. But such is not the case to date.

Well, Peter is missing the point and getting some of you to follow. First off, Res Ipsa is a term of civil law, and has no applicability at all to criminal proceedings, the term is useless in the context of this conversation. A little knowledge is a dangerous thing... Peter, I'm guessing you are a law student or paralegal, am I correct?

Whether criminal charges are or are not filed is subject to the same vague standards that any other decision is subject to. Mistakes get made all the time, usually NOT charging aggressively enough IMO. There was some crazy stuff going on in Vallejo to not have brought charges, that's my opinion based on my experience convicting people with FAR less evidence than present here.

To say that Allen not being charged proves that there wasn't enough evidence (I think this is your point in saying 'res ipsa...'), this is just absurd. I've had dozens of convictions in cases where a defendant was subject to multiple jurisdicitons and the other agency didn't think there was enough to go by. Just like being charged doesn't prove guilt, NOT being charged doesn't prove innocence or lack of evidence.

And a few other things. Circumstantial evidence is NO less reliable than direct evidence. COmes down to quality. DNA and fingerprints are both circumstantial evidence. There is never a need for direct evidence, circumstantial does the job just fine.

But I was trying to make two big points: 1) there is too much evidence to explain away, and 2) the authorities were WAY too polite to Allen. Fine, you can explain away one or ten of the individual facts, but not all of them, and not all of them combined. That's the real leverage you have prosecuting a case like this: things add up to only one result, guilt. You really think there are other reasonable explanations for EVERYTHING, and the fact that they ALL point to Allen? Gawd, the watch, the build, the language, the confessions to friends... WAY more evidence than you'd ever need when you add it up and see who it points to.

And you know what? Even if Allen were to be acquitted, you HAVE to try him. If a jury wants to walk him, fine, that's the will of the community, but as a DA you have to do the right thing by the victims. The truth is that Allen should have been in custody from the start, should have been charged with PV's within weeks of his release from Atascadero, and should have been pressured into a confession from prison. Convicted child rapist that he was, he should NOT have been given the breaks he was given.

Anon

Peter, you wrote, "A finding of guilt, whether by direct or circumstantial evidence, requires proof beyond a reasonable doubt."

Yes Peter, I understand that, and I believe that there is enough circumstantial evidence to convict Arthur Leigh Allen for the Zodiac crimes.

"Its not how much evidence, its how good."

I would say that the circumstantial evidence against Allen is good and plentiful. BTW, I know what "circumstantial" means.

". . . circumstantial evidence never 'amounts to' anything other than circumstantial evidence."

By your own admission, it amounts to a conviction if it is good enough.

"It means that guilt is the only explanation that any reasonable person could believe."

In the hands of the right DA, I'm positive that a jury would find Allen's guilt as the only reasonable explanation.

"It means that you are so certain that Arthur Lee Allen and only Arthur Lee Allen could have committed these crimes, that you will personally push the plunger."

Yep, that's right, and I would.

"There is also no doubt that Morrill examined Allen's handwriting exemplars, compared them to the Z letters, and concluded 'they were not prepared by the same person'."

That's right, he did come to that conclusion. However, you and I both know that handwriting analysis is not an exacting science and, as a DA, I'm not obligated to put Morrill on the stand; I'll leave his testimony for the defense and see if I can find a handwriting expert that can counter Morrill's conclusions. Besides, Morrill's analysis is not needed to connect the Zodiac to LHR, BRS, or PH, only Lake Berryessa.

Doug, you wrote, "Excellent analysis, Peter. It's why I wouldn't vote to convict 'my guy' (as Howard would say) on the basis of the available evidence . . ."

I wouldn't vote to convict TK either, Doug; especially given the amount of evidence that points away from him.

Linda wrote, in reference to Peter's last post, "I could almost hear you standing in front of a jury posing this as your closing argument! Great job!"

Maybe so, but if I'm sitting in the jury box I'm not buying it; my vote still goes for Allen's conviction.

Plunge away!

Scott

Anon,

Right. So, in the absence of a confession, you just don't charge him with LB and that way he only gets death or four life sentences.

Scott: Can you list your key points that point towards conviction of Allen. And then can you list the key points of evidence you feel would point away from Kaczynski?

Thanks. Linda

Linda, how about in a different thread...

Good idea, Tom, but when I move it, I think I'm going to change the question slightly and present it on two separate threads... One for Allen and one for Kacyznski and ask both Scott and Doug to prepare a listing each item of evidence (circumstantial or otherwise) as if they were both prosecutors presenting their opening statements to the jury for their respective suspects.

Hope this idea sounds OK to you.

Board:

I'd like to clarify my position on this. Maybe the point we're missing is that there is a distinctive difference between maybe having enough circumstantial evidence to convince a jury to convict, vs. getting a conviction of the right guy based on the available evidence. There is such a thing as blind justice. Only thing is, I don't think any suspect would be getting any of that from anyone on here. Point being, just because a case can be made, it doesn't mean that case should be made. Some people think a comparable case can be made against TK. Does that mean we should charge them both and see which one the jury convicts? What if two juries both convict? Does that mean the two defendants were ipso facto partners? I think not. Personally, I'm not particularly in favor of capital cases being built on circumstantial evidence alone, particularly when much of it has been willed into being with intros like, "there was a report that..." or "it is commonly held." I agree that the circumstantial facts against Allen are strong, but on the other hand, The Innocence Project exists for a reason. We are talking about killing a person here. I'm afraid we'll need DNA or something of that caliber before I'll consider doing any plunging. So while I still agree 100% with Anon that he could win the case, it seems to me from his tone that he would be more than willing to just "give it a go." Of course, that's easy for a prosecutor to do, because he isn't the one who makes the freedom/death decision. Whatever the jury decides, the attorney retains a plausible rationale of non-responsibility in that all they did was present the "facts" to the jury.

Ray

I would like to know how much knowledge the DA read in the police files. Reading his post,it looks like he got most of the info from this board. The problem with that is,not everything about Allen is carved in stone. The lake B boots? Allen did not have them, yet we have read on this board that VPD found them at Allens. I heard "Graysmith" on Chan.2 say that the police found size 10 1/2 wingwalkers at Allens.That was one big lie,to sell his book,and make Allen look more like zodiac! Davis, Kane,and Phillips, are much better suspects when you look at what they have done, and how they looked in 69.We have far more witness's saying Z was a short man about 5ft 8, than one very traumatized young man looking at someone with a tall head piece on. In 69 Mike M said the shooter was a head taller than Darlenes car,again that makes him short.

Sandy, the story of Allen owning size 10.5 Wing Walkers came from me. I read it in a report at the Hall Of Justice in San Francisco.

Also, Allen wasn't a giant; he was under six-feet tall.

One more point on this subject... Peter is misstating the burden of proof.
The standard is NOT as he states:

"It means, Scott, that you have the syringe in your hand, and the needle is
in the vein of Arthur Lee Allen, strapped to the table there in front of
you. It means that you are so certain that Arthur Lee Allen and only Arthur
Lee Allen could have committed these crimes, that you will personally push
the plunger. The decision is yours, and yours alone. It means that you will
take responsibility for that decision before all the world, your Creator and
yourself as long as you live, at least."

Again, a little knowledge is a dangerous thing. There is no 'Moral
certainty' jury instruction. All that is required is that there be no
REASONABLE doubt of the guilt of the accused. Not that you would personally
be willing to squeeze the life out of the defendant. Not that you'd
personally be ok with pulling the trigger, flipping the switch, pushing in
the plunger... This is a VERY misguided argument and one that no judge would
allow in court. Please don't confuse the ability to personally carry out the
eventual sentence with the initial finding of fact! The jury is there to do
one thing only, to determine whether the elements of a crime were committed.
Not to decide whether this is enough evidence to lead them to personally
execute someone. Peter once again shows limited knowledge of the law and how
it applied at trial.

Ray, I get your point loud and clear, but this is not the case with me at least. I am CERTAIN that Allen is the guy, you just don't get this much evidence and not find a guilty man. There is a SPECIFIC jury instruction that FORCES a jury to reason that circumstantial evidence deserves no more or less weight than direct evidence on the basis that it is circumstantial; it comes down to quality and quantity, and in this case there is an abundance of both. Don't get pulled into this 'we can't put a man to death with only circumstantial evidence' ploy...

Anon

And I, along with a lot of other people, are quite CERTAIN that Allen is not the guy. When you say "this much evidence", perhaps you should be more specific. What evidence is that? Name 5 things that, when added together, would be very hard to explain away, and would convince me or anyone else that Allen and no one else is the Zodiac. I haven't even seen one piece of really powerfull evidence on Allen. So, he wears a Zodiac watch. This only suggests he could be Z, not that he is. Thousands of people wear Zodiac watches. So, just pretend like we're all the jurors, and convince us.

Signed,

The Juror

Anon,

Thanks for your reply. I had no idea that circumstantial evidence and direct evidence cannot be viewed with different weight. You obviously have a lot of experience in this area. That would seem to say you might well be right about the outcome of an Allen trial.

Still, something about your argument makes me uncomfortable. I am one of the most dyed in the wool Allen advocates on here, and yet if I had to make a reasonable doubt decision based on the evidence that is available on this site, and whatever else I know and/or believe to be in the police files, I would still vote to aquit Allen. That's after a long time looking at and studying this evidence.

You've obviously made up your mind about Allen's guilt beyond a reasonable doubt. But your job would not be to convince us to reach the same conclusion by a show of your personal level of satisfaction, although that might be a technique you could use. Rather, we would have to be convinced by the evidence that you describe and present, irrespective of any showmanship. I don't know how much time you've spent reviewing the evidence in this case. I'd wager that it's less than the collective efforts of this board. What I'm leading up to is that the strength of your conviction in this case seems to lie in what you perceive as an established pattern of evidence and guilt. In other words, your past experience tells you when there's this kind of evidence, there's guilt. But what kind of guilt? Judicial or factual? I submit there's no real way for you to know! Still, I'll stipulate that the argument you make is probably true most of the time. In the justice system, however, it would have to be true all of the time in order to pass muster. Then we could just skip the formality of a trial. Past case verdicts have no bearing on anything. The only thing that matters is the evidence in this case against this suspect. The only jury that would convict Allen based on the evidence I described above would be a jury who didn't already know all of the facts. Just the kind of jury you'd get out of the pool. But if you tried it with a jury picked from this board, Allen would have gotten away with murder, because the whole body of facts, not just those facts you would present, leave plenty of doubt.

Your opinion is very thought provoking, and it's very nice to have a real prosecutor come on here and give his views and legal opinions. It's my true hope you will stick around. Your expertise will be drawn on many times in future discussions should you so decide. Welcome to the board.

Ray

Tom,
to say that Allen was under 6' is pure spin.
Okay, he was 5'11 and 11/12th.
This should be a no spin zone.

Sylvie, go outside and lay on the ground in the dark. When you are comfy I want you to guess how tall people are who attempt to shoot you.

Allen wasn't a six footer. Big deal.

Ray,

Wonderful post, I totally understand your position. One of the paradoxes of trial is that you don't want Jurors who have all made dilligent investigation of the facts independently. Too many things in these scenarios are "off the record". Facts presented by neither the prosecution or defence play a role in the decision, and this presents a serious threat to the rights of the accused. Sort of a secret trial, because everything isn't on the record, and nobody agrees to what the case is or isn't about...

I'd personally LOVE to have an expert jury if I were to try this case. But it wouldn't be fair to a defendant, and he would have NO appelate rights at all in this scenario.

As far as why _I_ am so confident that Allen is Zodiac, just too many reasons to have time to type in. Take a look at "Unmaksed", in the back, Graysmith enumerates all the circumstantial evidence against Z. Too much stuff! Seriously, if only one or two of them were believed (like his conversation predicting that he'd kill as Zodiac), he's guilty. And while each individual item can always be explained away, its the aggregate picture that shows guilt.

That's why I'm so sure he's the man. Why would an innocent guy happen to have discussed killing in this fashion, wearing a matching watch, living in the same area, driving the same roads, with matching build and personal skills, storing bombs like those described by Z, etc. etc. etc. etc. and that it NOT be Z? And this is a guy with known sexual hangups and previous convictions for mollestation!

Just add up everything in Zodiac Unmasked's appendix that points to Allen and then say that there is a reasonable explanation other than guilt... I don't see it, not even close.This much evidence is a DA's dream case, I really don't get why they didn't slam him so hard that he BEGGED to give up all the details. You should go to a law library (or sit in on a local case in your area) and read through the jury instructions for murder and circumstantial evidence. GIven what it takes to prove the legal standard, and what we've got on Allen, he'd get crushed in trial. Plus he'd invariably want to speak in his behalf, and he'd scare the hell out of the jury. This is not a meek looking charming guy... Ohhhhh what I'd PAY to have him on the stand. M.

Sorry this is so rambling, gotta get to sleep

Anon

The idea that one could "convict Allen easily" is predicated on two premises the validity of which are, to my mind, doubtful. The first is that you can assemble a jury of twelve easily-swayed ignoramuses who can be led about at will by a skillful rhetorician; the second is that the case would be tried by the prosecution alone, with no defense involved. Apart from that, why yes; it could be quite easily accomplished.

anon:

You know I was using res ipsa colloquially as a comment on your take ("I just don't get it"), not asserting that it has anything to do with proving the case.

No the fact of no charge doesn't prove that there wasn't enough evidence to convict. It does tend to prove that people close enough to the case to know thought there was not enough even to arrest. A lot of people. With a lot better grasp of the facts than you have. See Mike's post, just for starters. The police put all that was available together in 1991. Look at Bawart's report. Which itself overstates the case. And there wasn't one of our brothers or sisters in SF, Vallejo, or Napa willing to take it to the GJ. So just what is your explanation of why there was never an arrest. Incompetence? that's a pretty broad brush. We are aware of a lot of incompetence in not collecting or seeking evidence, but in not prosecuting on what was known? Come on.
Also look at Scott's answer to the Morrill dilemma. The circumstantial evidence you cite accumulates accross four separate incidents. And A couple dozen letters. You can't tie them all to Allen unless you can tie them all together. And the only way to do that is through handwriting. Through Morrill. You need Morrill to tie any more than even a few of the circumstances to Allen. And Morrill said Allen didn't write the letters. You cant throw away handwriting without throwing away the only means by which you can add up all the cirmcumstances. You don't get them all in one crime, so you have to tie the crimes together.

Scott: I'm still curious to see: How do you get Allen for PH? How do you get him without Morrill? Then, after PH, how do you get him for anything else? Without Morrill?

Marcia and Chris couldn't get OJ with a bloody glove and DNA. We're going to get Allen with a bloody knife no one ever saw and ciphers no one ever found?

Tom: Of course he could have been busted for the bombs. And maybe the weapons. That's a far cry from proof beyond a reasonable doubt on the Z crimes, which is all I am debating here. BTW I am still not sure Allen was a convicted felon. As was discussed in another thread, a defendant gets sent to Atascadero under a particular designation as a Mentally Disorderd Sex Offender. Unless you have an explicit record of a conviction, it is possible that it was never entered. It seems more likely that a conviction would have landed him in prison. He didn't, which means he may never have been on probation or parole to violate. If he was convicted, there must be some record of who his PO was, a possible source of insight as to why he was never busted for the z crimes.

"The first is that you can assemble a jury of twelve easily-swayed ignoramuses who can be led about at will by a skillful rhetorician; the second is that the case would be tried by the prosecution alone, with no defense involved."

So what are you saying, Doug? That sounds like a very surreptitious way of calling people such as myself, Tom, RG, and other advocates of "Allen as the Zodiac" theory, "ignoramuses" who haven't explored any other side of the issue. If that is what you are implying then you are not only extremely arrogant but also seriously misinformed. Granted, I don't honestly believe that the hypothetical criminal proceedings against Allen would be "easy," but I do believe a conviction against him as the Z is attainable and well within the realm of reason.

Further to Anon:

Be forwarned: The following is strictly an nunabashed ad hominem attack:

When the only tool you have is a hammer, you tend to treat every problem as if it were a nail;

There, I feel much better.

Now, will you please understand that I am not and have never tried to give a purely legal definition of the standard (not burden, Counselor) of proof, aside from saying that it is proof beyond a reasonable doubt. Scott shows an interest in a little broader and deeper understanding of what is reasonable doubt than any jury instruction can provide. Of course I know there is no moral certainty instruction. I was trying to give him a feel of what "beyond a reasonable doubt" might mean to someone exercising it conscienciously. Of course it doesn't mean that the juror must be willing to do the deed. Duh. But the juror must be certain enough to know that the deed will be done based on his decision, and for Scott, who is not a juror, to say that he his certain beyond a reasonable doubt means something like putting himself in the position of a juror, who better be morally certain, because if the State acts based on his belief and decision, someone dies.

Wait a minute. Who am I talking to here? I just reread the last post. This DA is a guy who thinks Graysmith's list of supposed circumstances is the same thing a s "this much evidence".

Yes, Anon, like a zillion people have said, if its all true, its a little tough to conclude that Allen wrote the Zodiac scenario six months before Zodiac surfaced but was not Zodiac. Duh. If Bif fat if. Graysmith's list is not evidence. Its assertion. it barely even refers accurately to evidence. You might just want to take a peek at some of this evidence itself instead of accepting Graysmith's characterization of it as gospel. The evidence is Cheney's account of the conversation, and that account is no DA's dream. You just take a look at Tom's transcript and tell me if you want Cheney on the stand. If you didn't alrady know the details of Cheney's first statement to the police, you wouldn't even know what he was talking about with Tom.

And BTW, Allen had no priors. The molestation rap, singular, was years after the last Z killing, and he went to Atascadero as an MDSO. I havn't seen a conviction record, although I have asked any number of times if anyone has.

Sorry, one last shot:

"The jury is there to do one thing only, to determine whether the elements of a crime were committed. "

Very telling comment.

New entry in CALJIC: You are instructed that because this case was brought by A.D.A. M. Anon., you can be sure the right defendant is sitting before you. Your only job is to decide whther a crime has been committed.

I thought they were also there to connect the lements of the crime with the guy who actually did it. I think I understand your posts -- and why they are anonymous -- a little better now. Thanks.

Peter, I don't know what you mean by a "conviction record". However, Allen definitely had a probation officer. His name is Bruce, and I talk to him often. (He's also at a loss to explain why Allen wasn't arrested in 1991 after the search.)

Thanks, that clears that up, at least in part. the record of a conviction is a document in the court records entering the verdict. Convicted of a crime means found guilty, and carries with it all of the cosequences of being a con or an ex-con. Loss of votng priveleges, etc. Probation could just be a condition of release from Atascadero on MDSO status.

How long was Allen on probation? Still in 1991? If not, then he would have had to be charged with a crime, not a PV. What would that have been? Possession of a pipe bomb, maybe. If he was just an MDSO and not convicted, the weapons may not have been a crime in and of itself. Maybe Bruce could clear this up nect time you talk. Was a conviction entered? Suspended sentence? Continued without a finding pending successful probation? Was Bruce ever in position to violate him? Maybe these would cear things up a little for DA Anon, too. He suggests that Allen should have been leaned on with a PV. If Allen was clean from 74 ubtil the end of his probation, that does not seem practical.

"Scott: I'm still curious to see: How do you get Allen for PH? How do you get him without Morrill? Then, after PH, how do you get him for anything else? Without Morrill?"

Peter: Surely you are not asking me to convict Allen in a single post, are you? Trust me, I'm working up a legitimate theory against Allen that does focus on Presidio Heights. When the time is right, I'll make it available to those who are interested and I'll gladly discuss it here on the message board without fear of ridicule; theories hold their weight or they don't with the passage of time, not in the instant they were created.

Having said that, consider some of these possibilities and realities:

Any handwriting expert worth his salt, which Morrill certainly was, is going to be able to tell if the letters were prepared by the same person. That alone is going to connect the Zodiac, via the letters, to LHR, BRS, and PH, and via the car door to Lake Berryessa.

I think it's very possible that other handwriting experts, especially with modern technology at their disposal, might come to the opposite conclusion that Morrill did. After all, why would I allow my entire case to hinge on one conclusion from an extremely good man working in an unexacting science? I'd at least want to have his conclusions independently verified which, to my knowledge, still has never happened.

Having discussed this topic at length with a forensic scientist who works for the CA DOJ, it is not unreasonable to speculate as to whether or not Morrill simply came to the wrong conclusion, especially in light of the fact that any independent verification is missing. It's entirely possible that a different handwriting expert could take the stand and say, "Yes, the letters were not only prepared by the same person, but in my professional opinion, they were also prepared by Mr. Arthur Leigh Allen."

Why shouldn’t a handwriting expert's findings be subjected to the same scientific standards as the other members of his/her forensic team? It apparently didn't happen in this case in the early '70s, but I bet it would happen that way now.

Unlike any of the other known suspects, I can establish a motive for Allen as the Zodiac to commit the murder at Presidio Heights. I've already laid that concept out in a couple of other threads so I shan't take the time to do it here.

Also unlike any of the other known suspects, with the possible exception of Davis, I can get numerous people who were close to Allen to take the stand against him. These include, of course, Don Cheney, but also Ron and Karen Allen, ALA's psychologist at Atascadero, ALA's parole officer, and Allen's buddy who heard Allen say he was going to "go to SF to kill a cabbie" a mere week or two before Stine was killed. And there are more, a lot more. Can this be said of any other suspect?

What more can I say at this point? If that line of reasoning isn't worth serious scrutiny then what is?

Peter hard at work getting the law wrong again... You are seriously off
kilter legally, and should premise your arguments on something OTHER than
your very weak grasp of criminal law. You still haven't told us whether you
are a paralegal or a 1L, which is it?

You still can't explain your use of the civil term "res ipsa loquitur". If
you didn't mean that not charging proves innocence, what was your point in
raising it at all? Experience will teach you that legal terminology has
meaning, and using a term from a different branch of law will only
demonstrate a lack thereof. As a word of free advice if you ARE a lawyer
(which I doubt), don't use legal terms 'colloquially'. Don't mix the two in the context
of discussion about a criminal matter, you'll just look uninformed.

And you even restated your error with the "reasonable doubt" standard. It is
NOT to a moral certainty. Repeat, NOT! The People have the burden (yes,
burden) of proving the guilt of the defendant of the elements of the crime
beyond a reasonable doubt. It is asinine to say you understand this and then
say that you were merely using the inflammatory moral certainty language to
describe how a 'conscientious" juror would (or should) think. Just plain
wrong! Go back and reread my previous post on the subject: a jury's job is
as a finder of fact, not 1) as a moral judge, or 2) as an executioner. A
conscientious juror follows the law, and your argument would have them go in
another direction entirely. Surely you realize that you'd get a mistrial and
probably sanctioned for making this argument at trial?

I'll ignore your inability to understand context vis a vis the fact that
elements must be proven that were committed by the Defendant. Sorry, I
assumed you had a shred of legal knowledge and didn't think I needed to
explain that the elements need to apply to the Defendant, need to be based
on admissible evidence, need to be brought in correct jurisdiction, etc. Did
I mention that the Defendant is the one charged with the crime and the judge
is the person with the black robe in the highest seat? Boy this will be an
inane discussion if you read my last post as me thinking that nothing needed
be related to the Defendant. Of course I recognize that you are being obtuse
to make an ad hominem, but not a strong enough ad hominem to look like that
poor a reader, IMO. Hey, at least you know what a caljic is, that shows some
knowledge and promise.

Bottom line is that IN MY OPINION there is no reasonable doubt. I think,
based on my experience, that I would be able to attain a conviction based on
the evidence I've read over the years.

Yes, my
opinion is based on what other people have researched on the subject,
Graysmith, Tom, and others. Yes, I recognize that not all assertions are
true. To an extent, that's what trials are for. I still believe that there are too many people and too much evidence
pointing the finger at Allen.

But Peter, as someone who has CLEARLY never
tried a case, please don't try to argue using this through bad first year
law student legalese. I'd love to hear you give factual opinion, that is
always productive, but your lame usage of legal terminology, reliance on
Allen not having been charged, and half-baked ideas on moral certainty miss
the mark and do your position no good.

The fact that Allen wasn't charged in light of the evidence against him
shows in my opinion 1) that bad decisions were made and 2) that information
wasn't shared adequately. Plenty of bad decisions get made all over the
country to not arrest or prosecute people who are guilty and who should be
brought to trial... Not searching homes, not arresting, not keeping him in
custody pending the discover of the smoking gun were all in retrospect bad
decisions in my opinion. Police and DA's don't make cases that they should
sometimes, just like any other profession makes mistakes. Once a case gets
some notoriety and media frenzy starts, this goes double.

If I had to guess why some peole like Peter get so bent out of shape when someone suggests that Allen is the guy and that's the end of the story, I'd say that some people hate to see a mystery like Zodiac solved. Its a great mystery and some people like unresolved questions to stay that way. I agree in general with this attitude, but in this case I feel that there mystery is in the detail of how and why, not who.


Anon

Two points:

First, I didn't say its not worth serious scrutiny. It just doesn't hold up under serious scrutiny. That's in large part due to point two:

It's not a line of reasoning. It's a listing of the same facts (maybe) that supposedly add up if you believe them all. That doesn't nail anything.

If you are to nail Allen on PH, you need a theory, a complete line of reasoning, so we can see HOW it adds up. I am glad you are working on one. (And no, I don't expect it all in one post). Even Tom, who has compliled more info on Allen than the rest of the world combined, has never put forth a complete theory, at least not on this site. A conclusion, a general proposition that there is a pile of circumstantial case against Allen, but not a theory. This is no criticism, as putting together a theory is an awesome undertaking. It is essentially writing the summation, the closing argument, as Anon has suggested elsewhere.

As for the handwriting. I raised it in part because of your fairly summary dismissal of Morrill's conclusions on the Allen exemplars. Mighta maybe's aren't going to cut it. Sure, another handwriting expert might say somethng else, but until someone hires one,or a panel, we have Morrill alone.

"Any handwriting expert worth his salt, which Morrill certainly was, is going to be able to tell if the letters were prepared by the same person.

Exactly the problem. He is going to be able to tell, and what he could tell is that ALA didn't prepare them.

"That alone is going to connect the Zodiac, via the letters, to LHR, BRS, and PH, and via the car door to Lake Berryessa".

Correct again. There is absolutely nothing but the writng that positively connects the four scenes. Only Morrill provides that connection. You have to rely on him completely to connect the four, and dismiss his one direct finding on Allen, that he didn't prepare the Z letters. This is not just a legal evidentiary problem or a jury problem, Scott, it is a problem of the the fundamental logic of the case.

But as I appreciate your theory, what you have said of it, it basically begins with PH, and the rest falls out of that. So I take it the proof of PH does not depend on proving any other crime, or connecting ALlen with the bloody shirt letter itself. If that is the case, you at least don't need to rely on Morrill for PH. But you do have to contend with the fact that he said ALA didn't prepare the bloody shirt letter.

Truly looking forward to the PH analysis.

Anon, you may understand the scepticism expressed by many posters regarding your confience at convicting ALA if you consider this:
Several of us, myself included, infer you are drawing most of your information from Graysmith's works (correct me if I am wrong on this or other inferences). If so, much of your circumstantial evidence my be less than circumstantial, it may be nonexistent! A couple of months ago, I proposed a theory regarding a possible witness to the Lake Berryessa crime. It was a nice, solid theory, and I was oh so proud of it. However, Webmaster Tom informed me That the central indicent on which my idea was based has no independent documentation whatsoever and appears to habe been pure 'literary liscense'. I read that information in Greaysmith's first work on the subject, Zodiac.
When I express scepticism at your reasoning, it is not intended as an insult, but as a warning. Because for me, been there, done that, got burned.
Just because Greysmith's long list of enumerated circumstaltial evidence looks solid, that does not mean it is solid. When I got burned the 'incident' I quoted looked solid. It specified a certain type of behavior, by a specific individual, at a specific place and time and told who the 'witness' was (not by name but in a clearly identifiable manner). If a detailed indicent like this turns out to be fiction, ANYTHING else can, without solid independent verification.
Another example, quoted by Webmaster Tom, is the tale of how police were investigating a road leading to a crime scene (a non-Zodiac murder) when who should walk down the road but ALA!. Very damaging circumstantial evidence, except is is pure fiction!

Anon:

Why are we still on res ipsa? I have already explained a couple of times that I meant it as a comment on "I just don't get it", not that it has one freaking thing to do with either the standard or burden of proof of the criminal case. OK? Anybody still not understand this?

As for the implications of Allen's not being charged: again, not for an inference to be drawn by a jury, but it indicates to me NOT THAT ALLEN ISN'T THE GUY, OK? but that people a lot closer to the case and with a lot better grasp of the evidence did not think an arrest, much less a conviction, was happening.

Experience will teach you that I can use a latin term any dam way I like in a context such as this without it being crammed into a narrow legal context. Even most lawyers get it when I do so in conversation or correspondence outside the courtroom. Which is where we are. So put down the hammer, will you? Try to understand that there are tapes and levels and compasses and chalklines in the toolbox as well.

Factual opinion? OK, the Hemingway version:

I think the strongest evidence aginst Allen is Cheney. I think Cheney is a sincere guy whose memory generally has more holes in it than his Allen story. Which are considerable. I think if his memory was triggered at all, it would have been triggered when he first heard the name Zodiac in the press or in conversation, not months (or years)later when he heard the bus part of the story. I think if there were a profile composite that looked like Allen, Tom would have it. I think he did have some kind of conversation with Allen about Z, after Allen became aware of the details and before Cheney did. Like 1/1/70.

T: And when you saw the name Zodiac, did that ring any bells?

D: No. No, when I read the, uh, the quote that came out of one of the letters about the school bus thing, then, then I began to think, not only it looked like Leigh, it must be him.

T: Do you remember an approximate date, when you came into this revelation?

D: No, I have no idea.

Right. they have this heated discussion about the name Z, Cheney calls it childish and ALA gets ticked, and Cheney doesn't remember that, just the school bus bit. And Allen's driver's license number.


Oh, and he's got a motive, too:

T: Were you scared about coming forward?

D: No, I wasn’t, I wasn’t afraid about that, I wasn’t, I wasn’t even afraid of Leigh making any kind of a, a, attack on me, at that time. I was more worried about making a living. And here I had this scruffy job in the paper mill and didn’t know what I was going to do next and, uh, after, uh, a couple of changes in my career plan, why I started working in Torrance with Panzarella. And we discussed this and then we contacted Armstrong.

Uh-huh.

I think Allen was a sick guy, who liked toying with the Z idea, being associated with Z. I think he liked toying with Cheney on something Cheney knew nothing about. I don't think it took even VPD 2, 2 1/2 years to get a warrant based on Don's story to Pomona (or was it Torrance? or Manhattan Beach?). I think his time line is off by a year, maybe even two. (BTW Tom: did Don's profile pictures that looked like Allen ever turn up?)

I think the chicken knife, the Berryessa and Treasure Island stories (not in Lynch's report, BTW) the supposed confession to the Atascadero shrink and the like were all very safe ways for an innocent Allen to toy, and very stupid, implausible ways for a guilty man to act.

I think Spinelli had it in for Allen. He comes forward 20 plus years later and remembers the exact date that Allen said he was going to SF to kill a cabbie. Sure.

One of a number of possibilities:

Allen:

Hey Don, you read about this killing and these letters to the Chronicle? No? Boy, I'd like to do that. I think I will, I think I'LL do this stuff, call myself Zodiac, play the most dangerous game. What do you think?

Hey Ralph, don't mess with me: I'm as bad as this Zodiac guy. You read about this cabbie he offed? Yeah? You don't think so? Well just to prove it, I think I'LL go to San Fran and kill ME a cabbie, too".

Bragging. You recognize it?

And that's just one possibility.

That's what I think.

Consider also that the SFPD either has faith in the handwriting analysis and fingerprints, or they have no faith in the handwriting and fingerprints. If the former, Allen should be exonerated. If the latter, no other suspect should have been eliminated on the basis of handwriting and fingerprints alone.

Anon,
whether you are actually an attorney or not, you certainly are knowledgeable enough to know that it only takes 1 out of the 12 to blow your conviction. From all that you have presented, I can tell you without any doubt, I would be that one. As a former juror in a criminal case, I can tell you we would have ripped your case to shreds in deliberations.
But naturally it would never have gotten that far.
You could not even get an arrest on probable cause.
Scott wrote: "It's entirely possible that a different handwriting expert......",
yes a lot of things are possible. A different handwriting expert could also have said that all the letters that Morrill connected were written by different people. If you want to start dealing with "What if's" then that is a whole different ballgame.
Come on, are we not dealing with what is?
Obviously "what is" does not add up to a hill of beans, so we have to start moving to a bunch of "what if's."

Mr.District Atty. better think fast when it comes to no handwriting match,no fingerprint match,no DNA match etc.If that doesn't eliminate ALA then it dosen't eliminate 2000 other guys.
Allen being a mechanic proves he sabotaged cars?
When did Zodiac do that?O.K.then you'd better explain why Ms.Johns saw a slim crewcut guy sitting next to her for 2 hours instead of a bald fat man.And lets not even start on Cheri Jo....
And those so called witnesses!Cripes any 1st year law student would love to have at them.
"Lets see you think Leigh molested your child and 2 yrs.later you remember intimate details of conversations w/my client that match word for word what Zodiac wrote in letters published for all the world to see.Hmmmm."
You say your a convict and you just remembered ALA told you he was going to Sf to take out a cabdriver?And now you think of it just in time to show the parole board what a good boy you are.
Bombs under ALA's house.Who cares!Lots of people make bombs.Do they match exactly what Z described?
Knew darlene Ferrin?So bloomin what. She knew lots of creeps.Not ncessarliy the one that killed her.
If the DA is right and he could convict Allen on shoddy circumstatial evidence its a sad day for us all....
I was the lone juror for acquiting Bates boyfriend
guess I'll have to do the same for ALA.

P.S. to the last post.If ALA made incriminating statements so have a lot of other poor lonely slobs desperate for attention and a feeling of importance.As I'm sure any criminal psychologist will tell you.Theres even a book on it called the urge to confess.It's called False Confesssion Syndrome by shrinks by-the by..

"District Attorney"

We know that Peter is an attorney -- we don't even know your name. To learn that Peter is an attorney, all one must do is: (1) read his posts, or (2) look at his e-mail address and take a quick trip to http://www.martindale.com. While Peter's style is occasionally abrasive, it is usually entertaining, and always though-provoking -- yours is irritating, illogical, and offers nothing new to this discussion.

If your point is to impress us with your claimed title and regurgitation of Graysmith, you've got a lot to learn . . .

Spencer

P.S. Lay off on the law student bashing -- I'm starting to take it personally.

Isn't this list everyone keeps mentioning actually the list prepared by George Bawart of the Vallejo PD in 1992? If so, it wasn't pulled out of thin air.

Spencer, it looks like my thoughts are at least thought provoking, based on the 40 or so responses in this thread in the last week or so...

Agree or not, I'm just trying to add my voice to the discussion, and I'm sorry if my agreeing with most of the Z investigators (specifically that if they'd known then what they know now about ALA they'd have arrested him) offends anyone here. I thought I'd share my experience with you all, and give my perspective as someone who has tried people in criminal courts... Not gospel, I'm sure many more learned fellows would disagree with me, it is a human process.

I do think that many people like preserving a mystery, and that many of you would be dissapointed if the case were closed based on overwhelming circumstantial evidence. Perhaps to some extent I would also. I'm trying to call it like I see it, and I really do think that Allen would get convicted quickly in front of an impartial jury.

Who knows what is and isn't true. All I know is that there is (in my opinion) an abundance of strong evidence against Allen. If it were my job to make the decision, I'd have charged him. If you differ in opinion, hey, that's what trials are for, right? To argue that it would be a miscariage of justice to charge him seems like an untenable position, and to believe that there wasn't enough evidence (in retrospect anyways) to arrest him seems crazy to me.

Like I said, when cases stimulate media frenzy and crimes become legend, nothing seems normal, that's part of what makes celebrity criminals so hard to convict. I certainly respect the opinions of those of you (most of you) who are better informed than I, I just don't necessarily agree.

You don't need to answer each and every question that arises in a case (handwriting, etc) to convict Allen. Just show that beyond a reasonable doubt that he committed the elements of the crimes.

I thought it might be interesting to focus a thread on the topic of what is actually required to obtain a conviction, not what is required to fit every piece together and solve the case sherlock holmes style. That just isn't the way (in my experience reading thousands of police reports anyways) that cases resolve in real life.

A silly analogy often used at trial is this: Say you are building a puzzle, and you have most of it built. And clearly, it is a puzzle depicting the golden gate bridge. But a few pieces of the puzzle are missing, say a few tiles of the sky, one of the deck, one of Hawk hill in the background. No question that SF looms in the background, or that the span has the unique "GG Bridge" shape and color. Does that mean you can never say, "that is a puzzle of the GG bridge"? No, you don't need EVERY PIECE to remove REASONABLE doubt about what the picture shows. At a certain point, you just know.

Many of our discussions here center on beautifully subtle aspects of the case; not all of these questions need be answered for a conviction.

Sorry if I've offended any of you, just thought it might be interesting to share my opinion. Since I'm discussing the case hypothetically, feel free to take it all with a big fat grain of salt! The words and theories we share on this fascinating case make little difference in the big picture, so if not stimulating, let's let this thread die.

Anon

"Sure, another handwriting expert might say somethng else, but until someone hires one,or a panel, we have Morrill alone."

IMO, that's half the problem: Only one expert opinion in an unexacting science. I'm sure that Morrill came to the right conclusion given the information that he had, but there are other things which need to be taken into consideration: Allen's exemplars were acquired "unnaturally" and handwriting can be disguised (I have confirmation of this assertion from a scientist who works for the CA DOJ). Even if all one does is consciously think of the act of writing, his/her handwriting will be different than normal. Another thing to consider: How do we know that the Zodiac wasn't disguising his handwriting when he wrote the letters or the message on Hartnell's car door? How do we know that he wasn't writing them while under the influence of drugs or while drunk? Any one of these factors could throw Morrill's conclusion off.

I respect Morrill but there are things that make me question some of his conclusions. In addition to the factors stated above, consider the Riverside desktop poem. That's not handwriting, it's etching. How in the world did he conclude that the same person that prepared the letters wrote the poem? How do you compare handwriting with something that was etched? I'm sorry, but that makes very little sense.

"Exactly the problem. He is going to be able to tell, and what he could tell is that ALA didn't prepare them."

What I was referring too was the idea that a handwriting expert could examine two documents prepared by the Zodiac and determine that they were both prepared by the Zodiac. IMO, it's quite a different matter when you have in one hand a Zodiac missive and in the other samples written by a guy who was under duress at the time they were written. Even if the samples taken from Allen were normal samples written in his normal hand, that still doesn't prove a thing when one considers that it is unknown if the Zodiac was altering his handwriting or not. Seriously, how do we know that the Zodiac missives were written in the Zodiac's normal handwriting?

Besides, it is not going to be the handwriting that makes or breaks this case, especially in a courtroom. Allen, as far as I can tell, is the only suspect to have a motive for Presidio Heights. Additionally, there are many people who would be willing to take the stand against him. Perhaps Cheney can be discredited and perhaps not. However, I doubt that every witness for the prosecution would suffer the same fate.

Some thoughts.

Scott

Keep in mind that the prosecutor is under no obligation whatsoever to prove or provide motive, so if I were trying Allen I think I'd let that one go, since apparently all the other Z crimes were motiveless. A serial killer by very nature has no motive, other than the joy of the kill.

Sylvie: that is a motive, and I'd suggest that the Z crimes were by no means motiveless. Just because one cannot divine the motive doesn't mean that one didn't exist.

I think we'd need something solid to convict anyone of being Z. Like Ed, said at the task force meeting. We'd need to find Stine's wallet, car keys and the rest of his shirt in Allen's trailer or locker somewhere. We'd need ballistics tests matching a gun to a bullet from the crime scenes. We'd need the knife from the Lake Berryessa attacks with Hartnell's and Cecelia's blood on it. We'd need Z's executioner's garb and clip ons. All matched or tied to Allen somehow.
The prosecution has the burden of proof and to also prove beyond a reasonable doubt. Anything less than solid hard evidence is pure conjecture and/or hearsay.

No, this is incorrect. If you need a smoking gun, you aren't applying the law correctly, that's what I've been trying to point out. Many (if not most) cases are made on circumstantial evidence, this is NOT a defect in a case.

You may believe that there isn't enough evidence to convict, but the overwhelming sense I get is that nobody would convict anyone without "solid" (i.e. direct smoking-gun type evidence) evidence. This is not the way it works in court, and when a jury is instructed in the law, convictions are routinely obtained without a bloody shirt.

Anon

Then why no arrest of Allen based on this circumstantial evidence? Allen himself says thay
"They haven't arrested me, because they can't prove a thing."
And no matter what, you have to prove Allen committed the murders "beyond a reasonable doubt" to 12 voir dired jurors.
All a good defense attorney has to do is poke holes in all the circumstance and hearsay, and to plant the doubt in the jurors minds. This is harder to do with solid evidence, but not impossible. Just think if the prosecution had the murder knife in the OJ trial with Simpsons blood and hair on it plus the receipt he paid for it with, along with Ron and Nicole's DNA.

"All a good defense attorney has to do is poke holes in all the circumstance and hearsay, and to plant the doubt in the jurors minds."

With the number of witnesses that'd be willing to take the stand for the prosecution, that would be an immense undertaking on behalf of the defense. Is it reasonable to think that every witness against Allen is full of BS and that their testimony would be summarily disregarded by the jury? I highly doubt it.

And PLEASE don't assume that OJ represents a normal trial. If you have an OJ scenario, you can't expect to prosecute ANYONE successfully. But convictions are obtained DAILY with less evidence than exist towards Allen. While this may make some of you uneasy, society does NOT have the burden of proving EVERYTHING in a case. Just the elements of the crime, and only beyond REASONABLE doubt.

I think a defense would have a real hard time explaining away EVERYTHING. Lacking a cohesive 'theme' defense (like mistaken identity, single victim vendetta against Defendant, etc), you can't just do like Peter and others try to do here and fight everything separately. TO go back to my 'puzzle' analogy, he's arguing each tile, rather than arguing what the ENTIRE PUZZLE represnets.

And of course the reasonable doubt instructions state that the evidence must be viewed AS A WHOLE, not piece by piece.

THink of it this way as an extreme illustration: if 100,000 separate people say that they saw mr. X do crime Y, and the defense attorney shows that you can only believe each witness 80% by cross examining each separate witness (and in my opinion 80% likely = reasonable doubt), there is still NO reasonable doubt. If you can show that the 100,000 people got together and conspired, are part of a coordinated effort to wrongly convict based on some reason, or that they merely are confusing Defendant with his twin brother, fine. But a separate reason for each doesnt work. (i.e. witness 1: isn't it true that you didn't have your glasses on? witness 2: weren't you scared and not really looking at D? 3: isn't it a fact that D mollested your daughter two years ago? 4: didn't you say the killer's hair was blonde initially and now you say its brown because you really weren't there at all?).

But separate explanations for this and that (which gets done here all the time) won't cut it at trial. This is why there is NOTHING like seeing a great defense lawyer at work. They don't chip away at a case, they cut its guts out. THey have, practically speaking, more need to create a theme, motive, and context than the DA. THey have, in short a theory of the case that makes a wholistic attempt to explain why so much indicates their defendant is the guy.

What Peter and others do here just doesn't work, its amateur defense lawyer stuff; you just can't explain away each of a thousand items and say that therefore none of it exists. Effective lawyers don't do this because it does NOT work.

The beauty of a trial is that this tactic rarely works. Unless the defense attorney comes up with a REASONALBE theory of the case, with this much evidence against Allen, their client would be convicted. The great ones don't play the negative games that Peter is playing, they build a case of their own against the BIG PICTURE. THis is subtle art that I admire greatly and enjoy seeing come together at trial. But its far more common to see innefective chipping at details without addressing the multiplier effect of multiple separate facts and witnesses... and almost always to no effect.

Anon

"Any one of these factors could throw Morrill's conclusion off."

Throw out Morrill's conclusions on Z's writing, or any other expert, and you have zero connection among any of the crimes. Zero. To prove any one of them separately, you then have to look at the evidence against Allen that connects only with that crime. The question then becomes not "Who is tis guy that did al the Z crimes" but "who did PH. And that knocks out the following "evidence" with respect to PH:

Cheney
Tucker
the whole Berryeessa connection: supposed knife, supposed going up the coast story, supposed Treasure Island story
the Mikado connection
every connection in every letter except the bloody shirt
etc etc etc

"I respect Morrill but there are things that make me question some of his conclusions. In addition to the factors stated above, consider the Riverside desktop poem. That's not handwriting, it's etching."

I have the same doubts about Morrill, especially the absurd conclusion of the desktop poem. But etching isn't one of them. it was written with a blue ballpoint pen.


"Besides, it is not going to be the handwriting that makes or breaks this case, especially in a courtroom."

Really? Then how do you get more than one crime at a time?

"Allen, as far as I can tell, is the only suspect to have a motive for Presidio Heights. "

I am dying to hear what this motive is. To prove to Spinelli that he was Z? Or just that he could kill? Come on, folks. Does anyone actually believe that Allen was motivated to prove to his old enemy, or anyone else that he was this serial killer? Two weeks after he supposedly fabricated this up the coast with the mystery man from Treasure Island ruse to throw Lynch off? Pulleeeeeze. I can hear the thought process "Whew. That was close. Lynch really thinks its me. But he fell for the Treasure Island bit. Now no one will think I'm Z. Wait a minute, why would I want that? I want everyone to know. Or at least spinelli. Yeah, that's it! I'll just tell Spinelli! I'll prove it to him! But he'll tell everyone. No he won't, it'll be our little secret, I know I can trust him."

"Additionally, there are many people who would be willing to take the stand against him. Perhaps Cheney can be discredited and perhaps not."

Perhaps Cheney would be thrown out of the courtroom. Even if Cheney has the credibility of a saint, he can't provide one jot of info that connects Allen with PH. Nor can anyone else but Spinelli.

"However, I doubt that every witness for the prosecution would suffer the same fate."

I don't.

Tom:

I believe it is the "Bawart report", and I alluded to it in a post here. The problem with it is not that it was pulled out of thin air, exactly, but that it presents a list of supposed facts (some patently and comically incorrect, others highly questionable) which I suppose by their sheer weight are supposed to convict Allen.

Good examples:

Comically incorrect: THE CONFESSION letter was signed "Enterprise"

Highly questionable:
The assertion that Allen told Lynch he was going to Berryessa but went up the coast instead. Where does this come from? It's not in Lynch's report of his Allen interview. Tom's treatment of it is that "Allen later admitted" he said that to Lynch. Bawart's rendition is that Allen "confirmed this same conversation" to Bawart and Conway in 1991. So is the only record of this comment that Allen made the statement to Bawart and Conway in 1991? Does anyone know the original source of this. Or the knife comment? Or Treasure Island? Those don't appear in Lynch's report either.

Bawart reports all these things completely uncritically, as if they were gospel.

Are they?

I am somewhat of a newbie to this board, so I have missed a lot of the earlier posts, and have gone back and re-read some of Anon's and other's posts.
I am glad he is here and is giving a prosecutor's angle to to this case.
I am not ruling out Arthur Leigh Allen as the Zodiac, as well as I am not ruling out other suspects. But for me personally, if I were a DA and needed to bring charges against Allen as the Zodiac, I would definately feel more comfortable with more concrete evidence. Sure the OJ case isn't a "normal" case...but this case isn't "normal" as well. One thing I'd be terrified of, is the defense bringing Officer Foukes to the stand and asking him (by photo,of course) if Allen was the man he saw walking east on Jackson that night. Was it Allen? What if Foukes denies it? Has anyone shown Allen's (or any other suspect's)picture to Foukes? Tom? Ed?
For me personally and my self gratification, and just because the Zodiac has been more "slippery" and evil than most criminals, I'd need something conclusive.
**recommended viewing** The Star Chamber- starring Michael Douglas.

"Throw out Morrill's conclusions on Z's writing, or any other expert, and you have zero connection among any of the crimes."

Peter: Yes, I know that already. But Morrill's conclusions are possibly flawed for the numerous reasons I stated in my earlier post. I don't want to throw out the conclusions of any handwriting expert, just Morrill's. Why? See above. Therefore, all that testimony that you threw out? Throw it right back in.

I don't need Morrill's testimony; I just need the testimony of a handwriting expert who'll conclude exactly the opposite of Morrill; based on better information and better exemplars from Allen. Come on, Peter. Who are you fooling? I know you know what I'm saying.

Besides, if the jury has not only a doubt about Morrill's conclusions, but also an understanding that it's impossible to determine what mental state or, "what hand," Zodiac was using while writing the letters, a sensible jury, in my opinion, isn't going to put a lot of weight into the testimony of one man whose science is anything but exacting.

"Really? Then how do you get more than one crime at a time?"

Yes, to nail Zodiac for his known crimes, you need, at the minimum, any one of the Z missives that was included with the 3-part cipher, Hartnell's car door, and the October 13th, 1969 letter that was mailed to the Chronicle. You also need a Questioned Documents Examiner who can link the three together. However, said examiner can essentially conclude whatever he/she wants about whether or not they were prepared by Allen and it's not going to matter. Why? Because we don't know if Allen altered his handwriting while giving samples to Toschi and Armstrong, first of all. Secondly, and perhaps more importantly, we don't know if the Zodiac altered his handwriting while writing the letters. For that matter, how do we know that Zodiac didn't ritualistically drop 5 hits of LSD before writing every letter, or that he didn't pay some homeless guy to write them for him? And the list goes on and on . . .

In my mind, it's more important to link Allen to the crime, Presidio Heights or otherwise, than to link Allen to the letters. If the jury believes that Allen committed any of the crimes, they'll certainly believe that he also prepared the letters, whether his handwriting matches the Zodiac's or not.

"I am dying to hear what this motive is. To prove to Spinelli that he was Z? Or just that he could kill?"

Neither. As I've already stated on more than one occasion elsewhere on the board, Allen's motive was to determine if he was being monitored by VPD. Lynch's interview with Allen on October 6th, 1969, really put the bug in Allen's head. Just how safe was he to move around and go about his thing? He honestly has no idea and it's bugging the crap out of him; making him jump at shadows and hear nonexistent voices. So, what does he do to quiet the voices and make the shadows disappear? He devises a new murder; one that will take place in a different city that hasn't been used before, and will be pulled off using an entirely different MO so that it won't be readily attributed to the Zodiac.

By doing this Allen knows that in a very short amount of time either one of two things will happen: The police will be knocking on his door, or they won't. If they do, it means that he was being watched/tailed and he'll be prepared to fight to the death in a shoot-out with the police. If not, he'll lay low, dispose of all the physical evidence linking him to any of the crimes, and wait to see how long it will be before the police come asking for another interview. Well, we know the answer to both of those questions, don't we? And so did Allen. No, the VPD wasn't putting a tail on him, and it was better than 2 years before he was next approached by the police: Toschi and Armstrong.

I know what you're thinking, "But what if Allen successfully eluded VPD on the night Stine was killed, wouldn't that derail the entire theory?" Nope, because he also mailed a letter to the Chronicle taking credit for the crime as the Zodiac. If VPD had an inkling that Allen was the Zodiac, which obviously they didn't, they would have been knocking on his door, or busting in down, within days of learning about the latest Zodiac murder. When that didn't happen, Allen knew he was able to move freely with little or no worry about being connected to the crimes.

Gregusjay: Welcome to the board! Very good point about Foukes witnessing the Zodiac. It's also a very tough question to answer. There are entire threads devoted to the credibility of eyewitness testimony. Give them a read, they, like most threads on this board, are very interesting. If you want my opinion though, there'd be plenty of reason to question Foukes' and Zelms' testimony if the need presented itself; the least of which is that there's no guarantee that they actually saw the Zodiac. Enjoy!

Scott

OK before I get flamed for not reading enough before shooting off my post;

The earliest mention of the knives, chicken blood and Treasure Island appear to be in the Mulanax, Armstrong interview of 8/71. Correct? The earliest mention of going up the coast instead of Berryessa is still Bawart in 1991. OK.

So by the time Toschi, Mulanax and Armstrong are through with Allen, they have 99 and 44/100ths of everything we now know, or think or have ever heard about Allen. What they don't have is Saint Ralph's claim of of an admission, the "going up the coast" comment, the Mageau ID and the goodies from the 1991 and 92 searches, all 20 years afer the fact.

Does Anon think any of the 20-years-later stuff is necessary to his conviction? Does he think he could get the conviction with what Armstrong and toschi had as of the 72 search? The 71 interview?

How bad did Toschi want Z? Was he motivated? Would he have reveled in a conviction? Would it have made him the biggest celebrity cop SF had ever produced? Do ya think?

Did Toschi think he could get a conviction? No.

Incompetence?

Scott:

OK, thanks. At least its a theory. Now.

I would like you closely examine one question:
what is the difference between stating a theory and proof of a theory? Put another way, do you appreciate the difference between assuming a conclusion and proffering a set of facts that may explain the conlusion, and a proof of a conclusion that begins with no assumptions, but proceeds from what is actually known?

Your theory comes down on the wrong side of this important distinction in two ways: first in addressing the handwriting evidence, and second in addressing a motive for PH.

First, the handwriting:

" I don't want to throw out the conclusions of any handwriting expert, just Morrill's.

"I don't need Morrill's testimony; I just need the testimony of a handwriting expert who'll conclude exactly the opposite of Morrill; based on better information and better exemplars from Allen."

But you don't HAVE any one else. Doesn't that mean something? You think you have Allen beyond a reasonable doubt on evidence that you maybe might be able to get some expert to provide? That's right up there with the old joke about how an economist would have saved the Titanic passengers: assume sufficient lifeboats.

And you do NOT want someone to conclude the opposite of Morrill: you want someone to cherry-pick his conclusions that fit your conclusion:and conclude the opposite of the inconvenient ones: yes the same guy wrote all the Z letters, connecting all four crimes, but no, the Z letters and Allen's exemplars were not prepared by different people. But by Allen, who was a genius at disguising his writing. Gimme a break: there is no such evidence, and as Tom told Don "I wonder how, cause his handwriting was tested and tested and tested."

"[The jury] in my opinion, isn't going to put a lot of weight into the testimony of one man whose science is anything but exacting."

Including the expert you don't have who is going to refute some of Morril's findngs.

"You also need a Questioned Documents Examiner who can link the three together. However, said examiner can essentially conclude whatever he/she wants about whether or not they were prepared by Allen and it's not going to matter. ... we don't know if Allen altered his handwriting ... and ... we don't know if the Zodiac altered his handwriting while writing the letters."

Actually we do. You need to learn more about the difference between handwriting comparison and handwriting analysis. The former actually is quite an "exacting" science. You need to know the science in order to fool it. Not just talk about the possibility with someone like Don Cheney, you need to know the art.

I suggest you deal with what we have. Sherwood Morrill said Z and Allen are not the same guy. "Tested and tested and tested". Sherwood Morrill said all the Z letters ARE the same guy. Everything else is speculation, not evidence.

OK motive.

You don't have one. You assume one. You assume that IF Allen is Z, he would be thinking in a particular way. But you have absolutely no evidence that this could be his motive ASIDE from the assusmption.

"Allen's motive was to determine if he was being monitored by VPD. ..."

And your evidence of that is what? Zippo. An assumption.

Come on. His entire interview with Lynch consists of two or three statements about going to Salt Point Ranch and where he eas going to school. No knife, no Treasure Island, no Berryessa detour, no chicken blood, nothing. As far as we know, Allen didn't even know what the interview was about, and Lynch doesn't remember it even happened. But this chilling episode is enough to make him kill again, just to see if VPD is on to him.

" So, what does he do to quiet the voices and make the shadows disappear? He devises a new murder; one that will take place in a different city that hasn't been used before, and will be pulled off using an entirely different MO so that it won't be readily attributed to the Zodiac. "

Again with the lifeboats. Now I know you're kidding. In order to make sure its not readily attributed to Z, he tells Spinelli that he's Z and is going to prove it, and he sends the shirt piece in two days later. With a letter in his Z mode.

"By doing this Allen knows that in a very short amount of time either one of two things will happen: The police will be knocking on his door, or they won't. If they do, it means that he was being watched/tailed and he'll be prepared to fight to the death in a shoot-out with the police."

And your evidence of THIS is what? Actually one of at least three things: If he's being tailed, the plain wrappers and about 50 backup cruisers move in as soon as he shoots Stine. Is this the answer he is so desperately looking for? And after this high stakes experiment, either he's dead or he knows he has carte blanche from VPD.

" If not, he'll lay low, dispose of all the physical evidence linking him to any of the crimes, and wait to see how long it will be before the police come asking for another interview. Well, we know the answer to both of those questions, don't we? And so did Allen. No, the VPD wasn't putting a tail on him, and it was better than 2 years before he was next approached by the police: Toschi and Armstrong."

Actually, a little less than 2 years.

"I know what you're thinking"

Apparently not. He doesn't dispose of anything: he starts sending pieces of it to the papers.

"But what if Allen successfully eluded VPD on the night Stine was killed, wouldn't that derail the entire theory?" Nope, because he also mailed a letter to the Chronicle taking credit for the crime as the Zodiac."

OK, I get it. He had to make it look like a non-Z crime to see if VPD was tailing him, then later make it a Z crime to see if they just suspected him but had no tail. What, they wouldn't tail him to a Z crime?

"If VPD had an inkling that Allen was the Zodiac, which obviously they didn't,"

Except for Lynch, who grilled him relentlessly about Berryessa.

"they would have been knocking on his door, or busting it down, within days of learning about the latest Zodiac murder. When that didn't happen, Allen knew he was able to move freely with little or no worry about being connected to the crimes."

So he continues his Z spree, running up the number to the known 37 confirmed Z hits. And continues sending letters for years after his SFPD interview and the trailer search do actually establish him as the No. 1 suspect. But that's just to see if Toschi has figured out his handwriting disguise machine.

Well, at least it qualifies as a theory. The problem is that it assumes Allen is Z and proffers an explanation for why he might have done PH. It is as far from a proof that he did do it as you can get. How you think you can prove it is still beyond beyond me.

One last point: the only things in the entire Bawart/Graysmith lexicon that could tie Allen to PH are the handwriting and Spinelli. And you ignore or refute both.

Amazing.

Thank God we have an actual litigator on this Board.

Thanks Scott..I am trying to be as objective as I can on this board/site, and all that you've mentioned is part of the reason this case is so intriguing. Was it Zodiac Foukes and Zelms saw that night in PH? Probably, but possibly not. I used to live in SF in 1992/93 near the presidio and after I read Graysmith's Zodiac, I drove over to the crime scene on a scooter. My first impression as to why Zodiac picked this area was that he more than likely parked over the retaining wall on Pacific St. as it gave him a straight shot to Lyon street and freedom to either the Golden Gate bridge or to downtown SF depending on which escape route he took. I doubt he stayed in the playground like he says he did and watched the police race around. I am almost positive he observed from a
greater distance possibly driving back to the crime scene or close to it. Another reason to move up one block from Maple is he wanted to be closer to his escape vehicle (if indeed he had one). One thing I noticed is that the trees in the Presidio near the park get denser as you travel west on Washington. Z could have used the trees as a marker to escape to his car. I do know that you can't see the crime scene from Pacific street it is recessed. Foukes in his statement said they searched over the wall but found nothing. I am sure Z was at least to Lyon street by the time they looked. Wow I am getting way off base..
I sure wish I knew more about Zodiac back then. It wasn't as much of the obsession it is now...
lol (one other note..forgive me if it's been brought up...was Z wiping the cab?? .. or sopping up blood with Stine's shirt??)
In sum, that's why this case is so fascinating..
there is so much more than meets the eye.
Also there is the Presidio Terrace just beyond Arguello, a gated community of rich and famous people and politicians..could Z have intended to shock them by killing so close to high profiled peoples homes? I think that was part of the motivation.

"was Z wiping the cab??...or sopping up blood with Stine's shirt??"

No, Z was wiping the windshield down with a smelly diaper.

Well Peter, I'm glad you've got it all figured out. You're right; Allen couldn't possibly have been the Zodiac so why continue arguing about it. What's more, you've got Sylvie in agreement with everything you say without her having to expend an ounce of thought.

Good job guys! I'm finally convinced that Allen had nothing to do with these crimes so, by all means, refocus your energies on TK or Bruce Davis; my presence here on the message board is no longer needed.

I have to agree with Scott regarding Sylvie; I can't recall her ever explaining why she believes it so preposterous for Allen to be the Zodiac, except for the weak Mageau-described-the-shooter-as-5'8" argument.

Sylvie, I think you've lost me on that one..

Gregusjay,

I'll explain it to you in simple terms. Sylvie is being rude. Best bet would be to ignore her posts, that's what I do.

Well Peter,
Would you call Morrill as a witness if you were Allen's attorney? If so, how do you reconcile your personal beliefs regarding LB with Morrill's authentication of the handwriting on the car door as Z's? Is'nt that an example of what you so eloquently call "cherry picking"? You can't "eat your cake and have it, too", especially in a courtroom.

Geez,
some people have ZERO sense of humour. I do. Let's not take this all that seriously. It does not hurt to laugh a little.

Tom, Scott, in our wonderful American system it would NOT be for me (or the defense) to prove why
Allen is NOT Zodiac, au contraire, the prosecution must prove, beyond any reasonable doubt that he is. And that is quite a difficult standard. Hey, for all I know he might have been, but you gotta prove it and I have not seen anything as of yet that would not give at least a few of the 12 a pause.
Remember another thing, being found "not guilty" does not mean innocence, it simply means the People have not met the burden. That is where we are here.
So that would not be my job, and I would not want to wrongfully usurp Anon's responsibility.
As I worked as a Court Translator quite a bit, I've seen many a case tried. Just one reason why I can tell the pros from the ams.

SCott:

On rereading my last post, I think I should apologize for the tone. Sometimes I get carried away making fun rather than having fun. Gotta watch that. Sorry.

As for substance, however:

I am not saying that it is preposterous or impossible for Allen to have been Z. To attribute that to what I have said is a pure straw man argument, and unworthy of either one of us. I will not be painted with that brush.

What I have said, and which your PH theory confirms, is that there is at least a reasonable doubt as to Allen. Actually my assessment is that it is somewhere between reasonable doubt and preposterous, but the present discussion is limited to getting a criminal conviction. Beyond a reasonable doubt. I don't have to prove or even believe it is impossible to establish a reasonable doubt.

The reason your PH theory does nothing to remove reasonable doubt is simply that it assumes Allen is Z. When you introduced it, you said you could prove PH and everything falls out from that. A no-brainer, I think you said.

But you have done the opposite. You present an explanation for as set of facts which includes the unproven assumption that Allen did the three previous crimes. It presents a bootstrap theory, because it assumes that Allen is Z without proving it. Allen has the motive you ascribe to him only if he is Z. There is absolutely no independent evidence that he wanted to test whether VPD was tailing him, other than the assumption that he is Z. But that very assumption is what you are trying to prove. That inherently leaves reasonable doubt, because you have not proven your own major premise; that Allen's guilt gives him a reason to do PH.

Now, you can try to prove the first three crimes. Then the question might come up, so why would Allen do PH two weeks after Berryessa, in which case a possible explanation becomes "to test VPD". But if you prove the first three, you have already established a zillion much more direct explanations for PH, among which are "it's what he does" and "another male survived, and he wanted to prove he could kill a man". If Allen is Z, the need for your much more complex PH theory disappears. We've got the shirt. Besides, its just one of many possible explanations, and I think a highly vulnerable one at that.

Put in legal terms, you have assumed facts not in evidence. How are you going to present this to a jury? In order to even present evidence that Allen went to SF to test whether VPD was on to him, you have to establish that he had a reason the think that they were. The mere fact of Lynch's interview is not enough. If Allen is not Z, he's sure as heel not going to do anything like what you suggest. If you say, OK, let's suppose for a moment that Allen is Z; wouldn't he be nervous after the Lynch interview? Bzzzzzzt. I'm sorry, but thank you for playing. Objection: assumes facts not in evidence. Bottom line is: you can't even get in the suggestion of your motive until you have pinned something on Allen.

And, please, this is not just some legal technicality. It is a rule of evidence BECAUSE it is a rule of logic, of reasoning. You simply cannot use an unproven assumption in this way. Back to the lifeboats.

Perry:

Damm straight I would put Morrill on. My own views of his error on CJB has nothing to do with it. He was so quick to find similarities with Z's writing, incuding CJB, the 1974 letter and possibly the Ghis, that the one case in which he did not fnd the preparers were the same becomes stronger, not weaker. If he errs on the side of fnding similarities, then when he concludes that it is not the same guy, that's pretty convincing.

So, he correctly connects all the Z letters through 1974. That takes care of LHR, BRS and PH. There have been third-hand reports that he also ties in LB. (The reason for my skepticism there has nothing to do with Morrill's credibility, but the fact is that we have never seen direct evidence that Morrill actually tie in LB.) If he did, great.

So I now haveon the stand the leading available questioned documents examiner, a guy who almost never saw a Z exemplar he didn't like. The one exception he made was Allen. This stands up.

Even if he is wrong where I tink he is wrong, that helps, because they are allerrors of being too inclusive.

Please understand my LB hypothesis. I do not discount Morrill's anaylsis because I have a pet theory that contradicts it. the primary reason I began to develop my LB hypothesis is BECAUSE I discovered two things: (1) the only direct and conclusive link between LB and the others, comparable to the letters and the stine shirt, is the Ghhia tag. (2) I have never seen definitive evidence that Morrill actually did a comparison of the Ghia writing and concluded it was the same. That is what got me thinking, and looking in to MO, personation and signature, which set LB apart all the other Z crimes. Show me Morrill's report on LB (yes, I have looked) and I'll rethink it. But for now, for me, at least 50/50 its a bad copycat.

But I digress. The lack of evidence, not contradicting Morrill, is the foundation of my LB hypothesis.

Scott,
I sincerely hope that was not a resignation you made there.Your presence is needed,stick with it.
Peter,
I noticed you just posted in the cipher thread(you must be bored).Like to ask you a question about comments in your last post.Appropriate thread..LB Zodiac crime?

Scott, don't let the manic ramblings get to you. Stick around please, I like reading your posts... Boy, with the ranting Peter is doing, you'd think WE were crazy for thinking Allen did it, not the other way around Geee, I seem to have read from almost EVERY expert and investigator that Allen is the man, I'm not sure why they are so confused. I guess Peter hasn't set them straight yet

and remember this: a trial is a final determination of the facts. All this theory, all these lame arguments why Allen had nothing to do with the case, all the focus on one or two unpersuasive pieces of evidence and a novel explanation for every single other item that points to Allen... It doesn't fly in court.

Trials come down to THEMES and the TOTALITY of the evidence. Not motive, not a need for direct evidence (or smoking gun), not "if you can't explain the handwriting you can't convict". No. Wrong. Incorrect. False. If Peter is in fact a lawyer (and if he is I'd bet my savings that he's never been a criminal lawyer in a real case), maybe he'll get a DA to come on the board and confirm what I've been saying.

I'm telling you, Allen looks good. I would gladly try him. I think justice would prevail, and Allen would be convicted. In fact, I don't even think it would go to trial, I think (if offered) he'd plead to at least one murder and provide details that would answer all your questions. Too late now, of course...

I think what we are seeing is frustrating to me because it is the typical 'analysis paralysis' issue. While supposed 'experts' speculate as to whether a bridge can be built, engineers do the basic math, get out there and build them. A DA would build a strong case with these facts, despite the academic points Peter and Sylvie make from time to time. I'm convinced of his guilt, and unpersuaded by Peter et al's tactics. Hasn't given me any doubt that he'd be convicted. Don't confuse a complex case with missing evidence with a weak case.

Anon

In all this discussion I have read few posts discussing evidence the defense might present. While I still doubt the reliability of some of the specifics of the prosecution's circumstantial evidence,that is not the main reason that today, with the availible evidence (not speculation or possible future testimony) I would have to vote for acquittal of Allen. My reasons? The defense could present this case: The handwriting experts on the case did not match the writing to Allen, and they tried. The fingerprints on the cab were not Allens. The sketch by a police artist based on eyewitnesses looks nothing like Allen. Fingerprints on at least one letter don't match Allen. The searches of Allen's home yielded no physical evidence definitely linking him to any crime. These bits of evidence are plenty to give me a reasonable doubt. Not a certainty that it was not Allen, just the much debated reasonable doubt, and that's what we are talkinbg here. I know the people ready to convict Allen assume these bits of evidence can be discretited (he got someone else to write the letters, it was someone elses bloody prints, the witnesses were intoxicated, etc.) but as of this date such discrediting is only speculation, it has not been done. Until this evidence I describe above is adequately, not speculatively, discredited, or until additional reliable evidence for the prosecution comes to light I will have a reasonable doubt in my mind.
One aside, I am not a firm believer in any of the main suspects and would love for this case to be solved. The mystery is fun, but a true final finding, as in the Green River case, would be much more satisfying.

Anon,
even though this is quite fun, the problem is this is simply way too hypothetical.
Would Allen take the stand? Given what we know of Allen, he might insist. What would he say?
How can we possibly guess at the outcome with so
many blanks?
And at the end of the day, it all boils down to what a jury wants to decide.
Actually I am inclined to agree with Doug, knowing CA juries, most cases could go either way.
I recently worked on a rape trial where there was no evidence whatsoever. It was merely the 14 yr.
victim's word against the stepfather. Basically, a she said/he said. Oh and get this, the girl still had an intact hymen. And guess what? The guy was convicted on all counts.
The flip side is a defendant we all realize is guilty and walks.
So far from being confrontational, I'll just say - who knows, you may be right.
I certainly hope in this hypothetical case of ours here that minus any hard DNA type evidence, they would not have sought the death
penalty. What do you say when you finally get someone else talking and they produce a piece of Paul Stine's shirt? WHOOPS.

OK, Anon, build the bridge and I'll walk across it. Honest. I'm willing to be convinced. All I have seen from you is these general boasts that it would be easy, on the cumulative effect and you gotta have a theme, all generalizations. Can you get specific?

First, what DO you do with Morrill? There is nothing but the writing to positively connect the crimes, and Morrill said it wasn't Allen's. You leave the connection out and just get him on one crime? Which one? I think you know that this mountain of evidence on Allen is spread out over all four crimes, each one of which is maybe a hill of beans. If you don't connect the crimes, how do you get the whole mountain in? Am I correct in supposing you have to connect the crimes before you can either try them all at one time or bring them all in the trial of any one of them?

If you only go after one crime, without connecting, do you have enough on just one crime?

Then you have a related problem. A lot of your evidence relies on supposed similarities between ALA traits and references in the letters; titwillo, misspelling, ciphers,
bus bombs, most dangerous game, etc. Does that come in without raising the problem of Morrill's conclusion?

Another suggestion. I bet you know someone say in your local PD office who would take my view and who also knows the game in your jdx. Why don't you bring a voice like that in the debate? then at least we could see how the evidentiary issues get thrashed out.

How about it?

Board:

Of the posts written on this thread in the last few days, I feel that Mike's last post was perhaps the most poignant. Therefore, because he cleanly touched on a number of points that directly pertain to this entire discussion, I'll format this post as a response to his, but keep in mind that I'm also addressing the discussion in general.

Peter: Cool. Let he who hath not sinned cast the first stone, right?

Mike, your last post was very interesting and you made some very valid points. You are right for not wanting to convict a man to prison or death if the slightest doubt exists within your mind. Having said that, not all of the things that you mentioned are being discredited simply because of wild speculation, a lot of it has to do with simple logic. Examples:

"The defense could present this case: The handwriting experts on the case did not match the writing to Allen, and they tried."

Experts? Don't you mean "expert," as in Morrill? A few morsels to chew on with regard to Morrill and his conclusions: 1) Morrill didn't believe that "mental states" could alter ones handwriting. However, Pascoe (sp?), and other contemporaries to Morrill believed exactly the opposite, and it's now generally accepted as fact among modern handwriting experts. 2) Two factors that can't be accounted for in Morrill's conclusion: was Allen writing in his "normal hand" when giving samples to Toschi and Armstrong? And, was the Zodiac writing in his "normal hand" when he authored his missives? 3) Morrill's statement, which I'll paraphrase here because the material isn't in front of me, in which he finally acknowledged that Allen was using a handwriting style that was not natural to his own when he provided samples for Toschi and Armstrong.


The above points are factual, not speculative. For me, it's not a matter of "how can I show that Morrill's conclusions regarding Allen were wrong" but rather, "Morrill couldn't possibly have known if his conclusions were correct given the information he had." This doesn't mean that Allen was the Zodiac. What is does mean, however, is that Allen can't be excluded, and neither can anyone else, because it assumes that the Zodiac missives were written in Z's "natural hand" which is speculative and not representative of the known facts. Therefore, while we can rely on Morrill's conclusions with regard to Zodiac-to-Zodiac comparisons, the same cannot be said of his Zodiac to Allen comparisons.

"The fingerprints on the cab were not Allens."

Nope, they sure weren't. But we also can't say that the print's belonged to Zodiac either, not without assuming facts that are unknown.

"The sketch by a police artist based on eyewitnesses looks nothing like Allen."

There are already numerous threads on this topic and I'll gladly continue discussing this subject in any one of them. But to put it briefly: First of all, please have a look at Presidio Heights for yourself; you'll be amazed by what you don't see. Secondly, for what it is worth, Mageau ID'd Allen, and Hartnell's description of what he was able to see of Z most closely describes Allen. Also, see the thread I started regarding the validity of the SFPD composite here: SFPD Composite: Useful or Useless Tool.

"Fingerprints on at least one letter don't match Allen."

As stated earlier, we also don't know if they match the Zodiac's without having to assume that they do. How is the defense going to be able to introduce that into evidence without a multitude of objections? Examine the facts for yourself; which side do you think the judge is going to rule in favor of? Remember, as a juror, you can only examine the evidence that the judge deems permissible. IMO, I seriously doubt that he is going to allow the bloody fingerprints and the prints on the missive to be entered into evidence, what do you folks think? And as already mentioned, a lot of doubt can be placed on the way in which Morrill derived his conclusions about Allen.

"Until this evidence I describe above is adequately, not speculatively, discredited, or until additional reliable evidence for the prosecution comes to light I will have a reasonable doubt in my mind."

You tell me, have I adequately or speculatively stated my case in this post? I feel I can do a pretty good job of stating the position that Allen was the Zodiac without the smoke and mirror number that you and Sylvie seem to be suggesting.

Finally, it seems strange to me that so much time has been spent trying to discredit such people as Cheney and Mageau. In my opinion, a lot of it has to do with the fact that if you look at their testimony it is very damaging to Allen. Therefore, if you don't believe that Allen was the Zodiac, you are forced to discredit Cheney and Mageau.

Nevertheless, many of their statements are pretty provocative when you consider that Mageau saw Zodiac and lived to tell about it, and later fingered Allen as the guy who shot him, and Cheney participated in a polygraph that was arranged by Bawart and conducted by the Washington State Police and passed. How can these facts be explained away without being "hypothetical" or "speculative"? Do you agree that a judge is going to allow Cheney and Mageau to testify against Allen? If so, then it comes down to what you believe after the case has been fully presented.

Scott

Scott,
As you know I have kind of softened my stance on conviction vs. aquittal as given what I know about juries, really anything could happen if it actually got that far.
Quick question:
If you were the D.A. trying the case against Allen,
with exactly what we have on him thus far, would you feel comfortable seeking the death penalty?

What about you Tom? And you Anon?
Are you confident enough to have given Allen the death penalty?

"How can these facts be explained away without being "hypothetical" or "speculative"?"

As was done in threads concerning these very points, a good defense attorney would have a field day shooting holes through the testimony. I just can't imagine a conviction based on known facts. You don't have to go past this board to find excellent rebuttals on virtually all aspects of the case against Allen, pro or con. I have to believe law enforcement and the prosecution would have loved to bring Allen to trial even late in Allen's life. They didn't because they probably felt they couldn't get a conviction.

"If you were the D.A. trying the case against Allen, with exactly what we have on him thus far, would you feel comfortable seeking the death penalty?"

If Allen were actually brought to trial for first degree murder then yes, I would seek the death penalty. I feel the same way regarding anyone who is convicted of first degree murder.

"[A] good defense attorney would have a field day shooting holes through the testimony."

Now that's speculative.

A cite from a recent Supreme Court Ruling in regards to circumstantial evidence and it's application as a matter of law.

"The Supreme Court held that it was well settled that in a case of circumstantial evidence, the prosecution should establish different circumstances beyond reasonable doubt and all those circumstances taken together must lead to no other inference except that of the guilt of the accused. To justify an inference of the guilt, the circumstances from which such inference is sought to be drawn must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt."

Sylvie, I don't have anything to add.

Gregusjay: Exactly. Very good work. the key phrases are "no other inference" and "incapable of explanation ... other ..than ..guilt".

Scott: Thanks. I was thinking more like "the proof of the pudding".

"a lot of it has to do with the fact that if you look at their testimony it is very damaging to Allen." Honi soit qui mal y pense, pal. This is your filter coloring our arguments. I for one do not proceed from my conclusion to an evaluation of the individual facts, but the opposite. In order to either accept or reject Cheney's story, you first have to evaluate his credibility and reliability. Most of the people, especially Bawart, who accept it, do not even discuss elements of reliability or credibility. They skip that part and go directly to acceptance. Same with Mageau. There are a zillion things wrong with Cheney's story, not the least of which is his supposed recognition of Allen from the Grass Valley story, and his failure to connect Allen with "Zodiac" after supposedly having a very pointed discussion with him on that subject.

I could go on, and will sometime in another thread. I would ask you to drop your filter for a while and realize that some of us who do not embrace Allen (yuck!) look at things like this first and then reach a conclusion, rather than to blindly adopt a conculsion and go looking for things to support it.

Case in point: you yourself have said its Allen beyond a reasonable doubt, but have not made the case beyonng the same kind of sweeping generalizations Anon has made about it all adding up to such a mountain of circumstantial evidence. Take a look at Gregusjay's quote (BTW: Gregusjay, could we have the case citation to verify it?) "the prosecution should establish different circumstances beyond reasonable doubt". You think there is no reasonable doubt about Cheney's story? The "Up thecoast/treasure Island/chicken blood quotes? Spinelli's yarn? Misspellng? You name it? Anon syas you don't have to explaneverything. Maybe, but wehat you don't explain cannot rasise a reasonable doubt, and what you do explain has to be established beyond a reasonable doubt, THEN what is established beyond a reasonable doubt has to amount to one sole exclusive inference of guilt. that's what Gregusjay's quote means.

Gregusjay:

Never mind. your quote is 100 percent accurate and genuine. But it is from the Supreme Court of India, so while it is completely sound, it may not carry the weight it ought to with the Board. BTW, it is completely sound because it reflects fundamental principles of Anglo Saxon jurisprudence common to most parts of the English speaking world.

Let me provide a link to the American Version. This is a pdf file, so you will need Acrobat reader or Acrobat.

The point is this (quoting from the New York instruction: "After you have determined what facts, if any, have been proven beyond a reasonable doubt, then you must decide what
inferences, if any, can be drawn from those facts".

You don't add up a bunch of circumstantial evidence and then argue you have proven beyond a reasoanble doubt. A correct circumstantial evidence instruction will require two things: (1) proof of each of the circumstances beyond a reasonable doubt, and THEN (2) that the only reasonable inference from these circustances is guilt.

In other words, you run down Bawart's list and prove each of the points you need to make your case, and prove tyhem each with certainty. Then you show how the only reasonable explanation for the existence of each of these circumstances is guilt.

Anon: This is how they do it in New York. CJI 2d "Circumstantial Evidence: Entire Case": You got a different blueprint in your jdx? They teach a different instruction at The University of Churnham and Burnham?

"You tell me, have I adequately or speculatively stated my case in this post? "

Excellent question and one worth examining, because it is at the heart of the analysis of circumstantial evidence. In the two-step test used in our jurisprudence, the second is to ask what inferences may be drawn from the facts once they are proven beyond a reasonable doubt. It is essential that these inferences be rational as opposed to speculative. The difference is often articulated as follows. A rational inference is one we would expect to result based on common sense and ordinary human experience. Speculation is that which we suppose may have occurred but which is EITHER not supported BY PROVEN FACTS OR IS NOT INFERRED ON THE BASIS OF COMMON SENSE OR ORDINARY HUMAN EXPERIENCE. In other words, an inference that is conceivable but no more likely to have resulted from known facts than another is speculative.

So, let's look at the case you laid out in your last post.

1: "1) Morrill didn't believe that "mental states" could alter ones handwriting. However, Pascoe (sp?), and other contemporaries to Morrill believed exactly the opposite, and it's now generally accepted as fact among modern handwriting experts. 2) Two factors that can't be accounted for in Morrill's conclusion: was Allen writing in his "normal hand" when giving samples to Toschi and Armstrong? And, was the Zodiac writing in his "normal hand" when he authored his missives? 3) Morrill's statement, which I'll paraphrase here because the material isn't in front of me, in which he finally acknowledged that Allen was using a handwriting style that was not natural to his own when he provided samples for Toschi and Armstrong."

The nferences you draw are almost pure speculation. First, there is no evidence whatever that either Z or ALA was in an altered state when writing. Morrill's belief on the subject is therefore meaningless. To suggest otherwise is pure speculation. Second, you acknowledge that we don't know about Z's state. Therefore no inference may be drawn: it is speculation to suppose that Z C'ould have been" in such a state. Third: Allen's non-normal hand. What is the inference? That it could have fooled Morrill? Speculation for two reasons. First, it is contrary to logic and common sense. Morrill knew it was "altered" and still concluded that the two preparers were different. Second, there is absolutely no evidence that Allen did or could alter his handwriting sufficiently to fool an expert. Remember, handwriting comparison is not done exclusively or even primarily on the basis of gross configuration of the letters. there is a tremendous amount of microscopic work done with respect to pressure, speed, etc. So the facts you cite do not support the inference that Morrill was fooled.

"What is does mean, however, is that Allen can't be excluded, and neither can anyone else, because it assumes that the Zodiac missives were written in Z's "natural hand" which is speculative and not representative of the known facts. " On the contrary: your dismissal of it speculates that there was some additional circumstance that sucessfully disguised the writing, either an altered state or expert technique. This, and especially the assertion that it is not "representative" of known facts, is the purest speculation. What known facts indicate to the slightest degree that either Z or ALA had any such expertise or was in fact in a sufficiently altered state to disguise the writing. None. Zero. Zippo. What does common sense and ordinary human experience tell us about handwriting? It tells me that people do not ordinarily achieve either one of these extraordinary circumstances. It is therefore a permissible, rational inference that ALA did not write the letters because the writing does not match. It is speculation to suppose that ALA did or could write the letters because either Z or ALA could have "altered" his writing.

"But we also can't say that the print's belonged to Zodiac either, not without assuming facts that are unknown. "

Wrong again. We know that the cab print was partially bloody, therefore would have been laid down after the shooting. Very few people could have done that, and one, perhaps the only one, was Z. It is therefore an allowable inference that it was Z'z. Sure, prints are almost never positively exculpatory. Sure, there will be a contest, but if it comes in, a juror could conclude that based on all the circumstances, it is more likely than not it was Z's.

"please have a look at Presidio Heights for yourself; you'll be amazed by what you don't see." It may not be light enough to identify ptosis, but the guy in the sketch has a full head of hair, horn rims, and a slim face. He sure aint 5-11 plus and 225-250. Again, based on what is known that the kids COULD see, a reasonable inference that ALA is not a match. To assert that they could not have seen the gross features is speculation: they described them.

"Hartnell's description of what he was able to see of Z most closely describes Allen." "Most" compared to what? Most out of all the AWMs in the BAy are? Most out of the sorry lot of suspects we have? Brown, curly, greasy hair, which Hartnell certainly saw, does not describe ALA. And don't even mention a wig. Pure specualtion.

"we also don't know if [the letter prints] match the Zodiac's". OK, based on common sense and ordinary human experience, whose are they most likely to be? The writer's. Reasonable inference. They could be somebody elses? Sure. Speculation.

Now let's take the prints together. We have TWO good possibles, and neither are Allen's. No, they don't elimnate him. That's not the object. Do they tend to raise a reasonable doubt? Oh, yes.

"I feel I can do a pretty good job of stating the position that Allen was the Zodiac "

Then let's see it: each fact proven beyond a reasonable doubt and inference drawn therefrom without speculation. Read the link in my last post above for specific instructions. they are from the State of New York criminal jury instructions on circumstantial evidence. If they are not clear, ask Anon for guidance: he's done "a ton" of them.

Finally, this is off the subject of speculation, but I just noticed on on rereading your post:

"Therefore, if you don't believe that Allen was the Zodiac, you are forced to discredit Cheney and Mageau"

First, you don't have to discredit them to rip them a new one on the stand. They could both actually believe their after the fact testimony. (BTW: Scott I would have thought you knew the Cheney's lie detector test is inadmissible). Reliability, which is the problem with both of them, is very different from credibility. You really believe Mageau piced Allen out from his drivers license ID 20 years later? But the kids at PH couldn't see jack? And Cheney can't get his dates within a year. "Discredit" Mageau and Cheney? Short work. Absolutely nothing hypothetical or speculative about it. Lighting conditions, to say nothing of the personal dynamic at BRS, and Mageau's personl history since then. Nothing speculative about that. Cheney's timing in coming forward, ALA's molesting his daughter, his need to move up to a better job at the time when he did come forward, and his total confusion of everything from the Grass Valley reports to the year he had this supposed converstion with ALA. No speculation: just facts, the man was confused in a casual sit down with Tom. Can you imagine him after ten minutes with Johnny Cochrane?

Oops! It was late and I did a basic search engine search using the key words "circumstantial" and "evidence". I thought the cite hit the nail on the head as far as explaining the rule for applying circumstantial evidence in a court of law. My Bad. India's law, like ours, is derived from English common law so at least there's a parallel. The good news for Anon and others, if Allen were tried in certain providences in China and or Russia, his head would have more than likely rolled a long time ago. =)

Recently quite a few inmates convicted of capitol murder have been released due to new DNA evidence. I am not against the death penalty when it is a certainty (cut Alejandro Avila up in 1,000 peices), but this Zodiac case is way too indefinite to say the least.
Scott, if you still have my address, could you e-mail me. I want to ask you if you know a certain sound mixer (old friend of mine.)
Sorry Tom, back to Allen's day in court.

Scott and Anon:

I have surmised that Anon, if he is indeed a prosecutor, is in California. To further this discussion, and in the hope of getting some specifics from Anon I provide the following jury instruction. Anon has referred to what is and is not in jury instructions, such as a "moral certainty" standard. Actually New York used to have such an instruction but has substituted the instruction linked above. Guess what? Turns out California has precicely the same standard. I therefore offer the following CALJIC (California Jury Instructions, Criminal):

"CALJIC 2.01. This instruction is called "Sufficiency of Circumstantial Evidence Generally." It provides as follows:

"However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.

"Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.

"Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the defendant’s guilt and the other to innocence, you must adopt that interpretation which points to the defendant’s innocence, and reject that interpretation which points to guilt.

"If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."

Simple, huh?

1. Each fact on which the inference of guilt is based must be proven beyond a reasonable doubt. Doubt as to any of these circumstances, and it goes out of consideration.

2. Then, with what's left, look at the reasonable explanations. If the set of circumstances is not inconsistent with innocence, the defendant walks.

Note something very important to this process. This is not, as Anon has suggested, a matter of the defense "explaining away" so many facts. It is a matter first of simply raising a reasonable doubt as to any or all of them. This is important beacuse it shows that there is no burden of coming up with an explanation of each of the facts. It requires only raising doubt as to whether any given fact is true.

Second, the defense then looks at what facts may be left, proven beyond a reasonable doubt. It requires examining whether these remaining undoubted facts could reasonably add up to some thing other than guilt. Not wheter they are more likely to, or whether one conclusion is more reasonable or likely than the other. The sole inference standard of the second step of the instruction requires that this set of facts be inconsistent with innocence. That there is no reasonable way these facts could be true and the guy the guy didn't do it. Not a less reasonable way: NO reasonable way. That's a tough standard for the prosecution. Not that the facts are consistent with guilt, or even more consistent with guilt, but they are inconsistent with innocence. If these things are all true, the guy can't be innocent.

This, Scott, is precisely why your PH theory, as you have articulated it, doesn't hold water. The known facts you rely on: the Lynch interview, the timing of LB, etc. Are all at least as consistent with innocence as with guilt. The only "fact" I can think of that is inconsistent with innocence of PH (taken alone) is Spinelli's statement. If the day of PH anyone actually said "I am Z and I am gong to San Fran to kill a cabbie to prove it", that alone would very difficult to explain as consistent with innocence. But how likely is ti that Spinelli's story, 20 years late and probably motivated by revenge a need to feed law enforcement something, is true. Anybody here buy Spinelli's story? Anybody think there isn't at least a reasonable doubt about it? In order to comply with CALJIC 2.01, you hvae to go through this with every circumstance you want to rely on to convict. That I would like to see in tis case.

I just reread all of Anon's posts and sure enough, he [she?] doesn't identify one single fact that can be proven beyond a reasonable doubt, let alone a set of such facts that points to guilt and only guilt. Can s/he do it? I am willing to be convinced. I would like to see a simple list of such facts, how each can be proven beyond a reasonable doubt, and then the reasoning why those facts taken as a whole can ONLY be explained by Allen's guilt.

Come on guys. this is YOUR game on YOUR court with YOUR rules. Wanna play?

Scott, thaks for your response to my post of 8/10. I must say, however, I still don't believe the defense evidence I referred to has been disputed beyond speculation. For example:
"Morrill's statement, which I'll paraphrase here because the material isn't in front
of me, in which he finally acknowledged that Allen was using a handwriting style that was not natural to his own when he provided samples for Toschi and Armstrong." You are correct, but this only SPECULATES that had Allen not altered his writing they would have matched. Many samples of Allen's writing have since been found (including on this site) and never, to my knowledge, has any person recognized as an expert witness in handwriting stated 'These were made by the same person'. If they ever do, I will reconsider my position.
" But we also can't say that the print's belonged to Zodiac either, not without assuming facts that are unknown.' Also true, but not knowing who the prints belonged to does not strengthen the posecution's case. If there were prints in blood of several other people at the crime scene that would provide evidence of contamination. But to my knowledge they were not. No, the defense can't prove they were the killers. But the only prints in blood, at approximately the same place eyewitnesses saw the perp pouch the cab? What do you think the jury is likely to think? Convincing me they were not the perps would take clear, unambiguous evidence the crime scene was contaminated.
"we also don't know if they [prints on letter-Mike] match the Zodiac's without having to assume that they do. How is the defense going to be able to introduce that into evidence without a multitude of objections? Examine the facts for yourself; which side do you think the judge is going to rule in favor of?"
First, the judge isn't supposed to be on one side or the other. It it looks too much like they are, of if the judge prohibits too much defense evidence, we are headed for a strong appeal even if there is a conviction. The defense does not have to prove or even assume the fingerprints on the letter are Zodiac's All they have to argue is the facts; here is a letter, handwriting experts state it was written by the same author as other Zodiac letters, fingerprints of an unknown person are on the letter and they are not the defendant's. The defense can admit they don't know for sure if they are the killers, they might not be, but if they are, the defendant is innocent.

Regarding eyewitness testimony, Mageau vs. the teenagers. One identification of a person seen 20 years before from behind muzzle flashes and much alcohol and drub abuse in the meantime vs. several witnesses who saw the perp for several minutes and worked with a police artist within days of the event. If this were not the Z case, and you were on the jury, be honest. Which description would you give more credence to?
With what I say above, I must remain in the reasonable doubt column and vote to acquit.
Not trying to dump on you, just a friendly, and fun debate. BTW, I hope you never seriously think of leaving the board, I've gotta have at least on other gun lover on the board!

Peter, you aren't looking at the jury instruciton correctly. Not to attack you, but you really should sit through a few trials and see how it works in real life. Your reading is incorrect.

The fact is that each element of circumstantial evidence needs to be established beyond a reasonable doubt, but IN TOTAL, not isolated with a separate and inconsistent explanation for each one. That would be hypothetical doubt, not reasonable doubt. Study up on Witkin, I had a hard time with the concept as both a defense AND prosecuting attorney, but it clears up quickly when you get in front of a jury and judge. You are confusing, I believe, reasonable doubt with possible doubt. Not the same thing.

Here's an example. I want to prove you have a double-heads coin. My evidence is entirely circumstantial: you have tossed the coin 100,000,000 times, every time it came up heads.

By your logic, I could never prove my case since each toss, you could argue, doesn't prove anything. After all, it could just have been the 50/50 result was heads. Reasonable doubt as to that toss, right? But add up 99,999,999 more of the same result, a reasonble person would NOT accept the 'random' explanation. When viewing the evidence AS A WHOLE, the defense explanation that each was a random event doesn't fly. Each item of evidence therefore, when viewed in context of all the other items of evidence, WOULD be proven beyond a reasonable doubt to most reasonable jurors. I would meet the beyond a reasonable doubt burden in most people's minds. Is it POSSIBLE that it was just luck that had heads come up that many times in a row? Yes, it is possible, just not reasonable.

Get it? Hope this makes sense, its more logical and common sensical than it would seem. You get lost in the language, but this is how we reason every day...

As a final point, juries in my experience do NOT throw out cases because of mysteries like the handwriting. If they see enough evidence (which I think is present), I don't think the handwriting evidence would exonerate Allen. More likely a jury would realize that Allen had some clever trick and still convict. That'd be my hope, anyway.

Bottom line is that I think Peter and Sylvie have your minds made up, which is fine. Others of us think the opposite and OUR minds are also made up. THis is fine, that's what makes for a good trial. I'm just puzzled that law enforcement didn't at least try SOMETHING to pressure Allen into a confession. Many killers have been persuaded to come clean on WAY less evidence. And yes, I do think this is due in part to incompetence. Part to laziness, part to the times the crimes were committed, part due to the epic and unprecedented media attention and pressure on the relevant agencies. I think plenty of bad decisions were made, but this happens all the time.

Anon

Anon, I realize you want to stay anonymous, (why, I am not sure) but any way you could provide a published case that was decided on less circumstantial evidence than this case? Preferably one that you prosecuted or had a hand in.
I realize that this may blow your cover since both defending and prosecuting attorneys are listed in the case cites, but I am like one of those people from Missouri..it'd be nice if you could "show me"...so i could read it for myself.
I don't intend to make you uncomfortable, but I am intrigued by what you are bringing to the board.
It's unfortunate we can't e-mail you privately.
I think we are all just simply looking for the truth in this case.

Cheers..!

Peter, you wrote, "A rational inference is one we would expect to result based on common sense and ordinary human experience. Speculation is that which we suppose may have occurred but which is EITHER not supported BY PROVEN FACTS OR IS NOT INFERRED ON THE BASIS OF COMMON SENSE OR ORDINARY HUMAN EXPERIENCE."

Okay, let's examine your rebuttal to my post to determine if you are measuring up to the same standards that you are applying to me:

"The nferences you draw are almost pure speculation. First, there is no evidence whatever that either Z or ALA was in an altered state when writing. Morrill's belief on the subject is therefore meaningless. To suggest otherwise is pure speculation."

Morrill stated himself, after the fact by the way; that he had to finally reconcile that Allen was not writing in a style natural to his own. What's speculative about that?

"Therefore no inference may be drawn: it is speculation to suppose that Z C'ould have been" in such a state."

No, it's speculative to assume that Zodiac wasn't. How can you say that he "was" or "wasn't" without speculating? How is it speculative to point out the possibility?

"Morrill knew it was 'altered' and still concluded that the two preparers were different. Second, there is absolutely no evidence that Allen did or could alter his handwriting sufficiently to fool an expert."

Morrill didn't admit that Allen was using an unnatural handwriting style until after he'd done his analyses. Also, there are handwriting experts that disagree with Morrill's conclusions.

"What known facts indicate to the slightest degree that either Z or ALA had any such expertise or was in fact in a sufficiently altered state to disguise the writing. None. Zero. Zippo."

It wouldn't be hard for Zodiac to disguise his writing when we have no idea as to what his true handwriting looks like. What do we have to compare it with? Do you know if the Z was righting in his normal hand or not, was in an altered state, or under the influence of drugs? Of course not, how could you? Therefore, it is speculative to assume that he was using his natural style. Is it reasonable to conclude that Zodiac was writing with his normal hand, wasn't on drugs while writing, or didn't have someone else prepare the missives for him? No, it isn't. Therefore you can't hold up one of the Z' missives and proclaim, "This is an example of the Zodiac's writing" without such a statement being speculative.

"We know that the cab print was partially bloody, therefore would have been laid down after the shooting. Very few people could have done that, and one, perhaps the only one, was Z."

Okay, sure, that seems reasonable. However, the fingerprints aren't going to be allowed into evidence because there are not enough points of comparison to include or exclude anyone. Therefore, what good are they? Are you going to say, "It couldn't possibly have been Allen because his prints don't match those found on the cab"? Balderdash.

"the guy in the sketch has a full head of hair, horn rims, and a slim face. He sure aint 5-11 plus and 225-250. Again, based on what is known that the kids COULD see, a reasonable inference that ALA is not a match."


The SFPD composite says nothing about weight; it simply states that the Z had a "heavy build" which is curiously not represented in the drawing. The composite states, with regard to height, "approximately 5'8"." Allen was 5'10", which happens to be the height that Foukes described Zodiac to be. Why is it unreasonable to infer that the horn-rimmed glasses and the short hair were a part of Zodiac's disguise? We do have him on record saying that he wore one while committing his crimes, right?

"Brown, curly, greasy hair, which Hartnell certainly saw, does not describe ALA."

It's not at all unreasonable to infer that Hartnell was describing Allen. To say it couldn't have been Allen because of Hartnell's description of the hair is completely unreasonable. Also, of the known suspects, Hartnell's description does match that of Allen most closely, IMO.

"OK, based on common sense and ordinary human experience, whose are they most likely to be? The writer's."

Without knowing where the piece of paper was taken from or from where it originated, it's unreasonable to assume that the prints belonged to Zodiac."

Finally, for now at least, with regard to your post about jury instruction, you've got to be kidding. The members of this board know way too much about this case to be burdened by such limitations and would never qualify as jurors in this case to begin with. What is the point your trying to make by introducing that? Do we have a judge that we can refer our questions too, or to sift through the heavy-handedness of yours and Anon's presentations as to what is admissible and isn't? No, we don't. This isn't a courtroom; it's a message board. How is it reasonable to try and act as though we are in a courtroom receiving instructions from a judge?

"By your logic, I could never prove my case since each toss, you could argue, doesn't prove anything. After all, it could just have been the 50/50 result was heads. Reasonable doubt as to that toss, right? "

Wrong. Dead wrong. This is NOT my analysis or my logic or my approach. This is not my "reading". It is you who have the algorithm backward. You are confusing and mixing the reasonable doubt and rational explanation steps of the instruction, or at least attributing that confusion to me.

"Reasonable doubt" applies to establishing whether each of the incriminating circumstances exists.

"Rational explanation" applies to whether the proven circumstances, taken as a whole, add up to guilt and only guilt.

In your example, you have posited that I would argue there is some explanation other than double-headedness for each given toss. I would not. That's wrong and that's not my approach. The only question as to each toss is the fact: whether it turned up heads or tails, beyond a reasonable doubt, not what it means or could mean.

Instead of putting words in my mouth, er, post, let me do it MY way.

Here is how it plays out using your example.

Step 1: establish all the facts beyond a reasonable doubt:

The coin is tossed. It's heads. We all saw it, it landed smack in the middle of the table. No doubt about it. Fact 1.

Repeat this process a couple hundred times. Same result every time.

On the 201st try, the coin takes an odd bounce and lands under the table. You retrieve it and everyone asks "what was it"? You say, I'm not sure, but I think it was heads. I couldn't see very well." Hmmm. OK. Let's move on.

Then you go on for the rest of your thousand or hundred thousand or million tosses. (your statistical expert would tell you that 100 or 1000 would be plenty) Each one is perfect and each one is heads. No reasonable doubt except as to that 201st try.

The facts now established beyond a reasonable doubt are:

Fact 1. there were 100,000 tosses, the results of 99,000 being known.

Facts 2. through 100,000. Heads.

Step 2: Reasonable inferences: So what do we have? The totality of the results are that of the 99,000 known tosses, every single one was heads. Based on common sense and odrdinary human experience this is totally consistent with double headedness. Duh. Other possibilities? It would be stupendously irrational to suppose that it could occurr by chance. Magnetic mechanism of some kind? Well, I can't think of any other technology that is that reliable, hard to imagine it here. Pure speculation.

Nope, there is no other reaaonable explanation for it; must be a double headed coin.

See? Under my construct (and I am completely confident, a correct reading of CALJIC2.01) each fact is proven beyond a reasonable doubt, except for that pesky 201st toss. Nobody offers any explanation for each toss, other than it happened or it didn't. I don't say well it coulda been chance as to each toss to knock out each toss. The toss happened. It comes in. THEN I look at all 99,000 of the proven facts and try to come up with some rational explanation.

Likewise: I cross Cheney to raise a reasonable doubt as to whether his story is true. NOT TO EXPLAIN ITS IMPLICATIONS. I don't speculate that Cheney could be lying or forgetful or hallucinating; I set out to prove that he hated Allen for the incident with his daughter, that he can't remember what day of the week it is let alone what hungover New Years day he spent with Allen, that he can't tell a Grass Valley profile from Berryessa full-face; that Pomona blew him off becasue they could see right through him; that he recruited the ambitious Sandy to get in with him. I show that Toschi and Armstrong and Mulanax were about as hot and ambitious to nail Z as you could imagine, that they ran Cheney through two polygraphs to try him out (think I can get the fact of the test in but keep the results out?), that they flew him up to talk to him, that the three people in the world who had the most to gain from his testimony sent him on his way with "don't call us, we'll call you" (OK, I got hearsay problems with some of this but that applies to about 90 percent of what we do know about ALA so I'm disregardig that for present purposes)

I do this by proof, counsel, not by speculating that it coulda been random coincidence or he's so old MAYBE he can't remember, etc etc etc. So the jury has reasoaable doubt WHETHER THIS CONVERSATION TOOK PLACE, OR WHEN IT TOOK PLACE, OR WHAT IT REALLY CONTAINED. NOT why it took place or what else it could mean or what could account for it.

I cross Lynch to establish that Allen didn't come up with the Berryessa/up the coast instead/Treasure Island story untill 20 years later, NOT to EXPLAIN ITS IMPLICATIONS.

I cross Morrill, or put him on, to establish that Allen can't be connected with the letters, NOT TO EXPLAIN THEIR CONTENTS.

And so on. So if Cheney and Mageau and Spinelli and Tucker and Lynch are left standing at the end of the day (which I doubt) then the jury can decide how much of their testimony is beyond a reasonable doubt and draw their conclusions from that.

I don't "explain" anything away as I go along: I disprove it. Then when the facts such as they are are all in I explain what is left; we got a big fat loser pervert who got his rocks off with little boys and a little attention, a little association he created with Z.

Are you ever gong to honor us with what facts you think you have beyond a reasonable doubt that add up to guilt?

Just for the record, Peter, I like your argumentation better than Anon's. Be that as it may, might I observe that rhetorical exchanges and scenarios such as we see between the two of you are at least partially responsible for the sad state of confusion amongst the laypeople who actually sit on juries? Is it any wonder that their verdicts are sometimes out of all proportion to what reason would demand?

"Morrill stated himself, after the fact by the way; that he had to finally reconcile that Allen was not writing in a style natural to his own. What's speculative about that? "

Your conclusion. First: Unnatural style and altered mental state are two completely different things. You have combined them in your reasonaing. So any conclusion about an altered mental state is specualtive: it not supported by the altered style. Also as to the altered style itself: If you have studied it, you know that disguising one's writing from detenction by an expert requires a lot more than deliberate alteration of the style. I said that in the last post, but you ignored it. So you can't conclude that Allen successfully disguised his writing by adopting an unnatural style. it doesn't follow.


"Therefore no inference may be drawn: it is speculation to suppose that Z C'ould have been" in such a state."

No, it's speculative to assume that Zodiac wasn't. How can you say that he "was" or "wasn't" without speculating?"

I already explained this. We have the writing. It is consistent through all the letters. In common sense and human experience, which is the more likely? AN altered state that is achieved so consistently over a period of years that it successfully disguises a couple of dozen sampls, but makes them recognizable as the work of a single author, or normal writing? Please.

"Morrill didn't admit that Allen was using an unnatural handwriting style until after he'd done his analyses."

So did he change his conclusion?

" Also, there are handwriting experts that disagree with Morrill's conclusions."

What other experts did the Allen comparison" the only disagreement I know of is on the 1978 letter, which Morrill said was authentic. If anything, he erred on the side of inclusiveness. that strengthens the reliability of his rejectio of a sample.

"It wouldn't be hard for Zodiac to disguise his writing when we have no idea as to what his true handwriting looks like."

First, that dcomment confirms that the argument that he might have done so is pure speculation. second, it is wrong. It takes knowledge of the detection art to fool it.

" Is it reasonable to conclude that Zodiac was writing with his normal hand, wasn't on drugs while writing, or didn't have someone else prepare the missives for him? No, it isn't."

It most certainly is. For the reasons stated. Also, if someone else was writing, then you have a conspiracy. Which compounds your problems of proof.

Come on: if I say to a jury "he could have been straight" and you say "he could have been on mind altering drugs or an expert in writing disguise or a conspirator" which one sounds like speculation?

"Therefore you can't hold up one of the Z' missives and proclaim, "This is an example of the Zodiac's writing" without such a statement being speculative."

Wrong. The circumstances of the letters allow, if not compel, the inference that Z wrote the letters.

"We know that the cab print was partially bloody, therefore would have been laid down after the shooting. Very few people could have done that, and one, perhaps the only one, was Z."

"Okay, sure, that seems reasonable."

Now that's refreshing.

"Are you going to say, "It couldn't possibly have been Allen because his prints don't match those found on the cab"?

Don't you get it yet? I don't have to say or prove that it could not possibly have been Allen! YOu and Anon have top prove that it couldn't have been anyone else! If the prints come in all I need is to say this raises a reasonable doubt as to whether it was Allen.

" Why is it unreasonable to infer that the horn-rimmed glasses and the short hair were a part of Zodiac's disguise?"

Because its speculation; you have any idea how hard it is to fake short hair? You know what a liar Z was?

"Brown, curly, greasy hair, which Hartnell certainly saw, does not describe ALA." It's not at all unreasonable to infer that Hartnell was describing Allen. To say it couldn't have been Allen because of Hartnell's description of the hair is completely unreasonable."

You really don't get this, Scott, you need to study the analysis of burden of proof and the circustantial evidence instruction again. Hartnell described long brown greasy hair. That raises a reasonable doubt as to whether he was describing Allen BECAUSE ALLEN DID NOT HAVE LONG BROWN GREASY HAIR. The only possible rebuttal to this is "he could been wering a wig". And that is speculation. It's also unreasonable because he was already wearing the damm hood and glasses.

"Also, of the known suspects, Hartnell's description does match that of Allen most closely, IMO. "

What the Sam Hill do "all the known suspects" have to do with it? It is not a given that one of them is Z. Sorry, but the nest of a bad lot leaves more than reasonable doubt.

"Without knowing where the piece of paper was taken from or from where it originated, it's unreasonable to assume that the prints belonged to Zodiac."

I won't even try to fathom the logic of that statement. I said the prints are reasonably likely to be the writer's. And I will also say the writer is reeasonbly likely to be Z. what the origin of the paper has to do with it is beyond me.

"Finally, for now at least, with regard to your post about jury instruction, you've got to be kidding. The members of this board know way too much about this case to be burdened by such limitations and would never qualify as jurors in this case to begin with. What is the point your trying to make by introducing that? Do we have a judge that we can refer our questions too, or to sift through the heavy-handedness of yours and Anon's presentations as to what is admissible and isn't? No, we don't. This isn't a courtroom; it's a message board. How is it reasonable to try and act as though we are in a courtroom receiving instructions from a judge? "

What are you talking about? This whole thread is about whether this Anon character could get a conviction. Did you miss that somewhere? Scroll up to the top of this page and take a peek. Anon first raised the question of jury instruction by saying ther aint no "moral certainty" in it. Which was in response to my answer to YOUR question on what proof beyond a reasonable doubt is. We lose you after that?

Beyond that, CALJIC 2.01 is based in fundamental logic and deduction, and applies the standard of proof beyond a reasoanble doubt to circumstantial evidence. Now as MBers, we certainly don't have to base our beliefs and conclusions on that standard, but in order to understand Anon's boast that he could get a conviction, we certainly do. And before we spout off about we are individually certain beyond a reasonable doubt of anything, we would all be well advised to run our theories through the 2.01 analysis. You do it rigorously and candidly and you might be surprised with the results. Try it with your PH theory for starters.

Douglas:

The juries never see or hear this kind of exchange, at least they aren't supposed to. What they get is the result: what evidence comes in, etc, the summation of the case, and and the jury instruction itself.

And out of proportion verdicts are subject to something called remittitur: the Judge can knock them down. I think you are referring to a much overstated problem that insurance companies love to use to jack up our rates. Juries are rarely confused and get it right most of the time. As i hvae stated in the past, even the OJ jury got it right on the case they were presented. It was Marcia and Chris and especially Mark who mucked it up.

"This, Scott, is precisely why your PH theory, as you have articulated it, doesn't hold water."

Actually Peter, I may have misled you. I've only offered you the thesis statement for the PH theory, not the theory itself. Like I've said before, once the essay is prepared, I'll let you know. Suffice it to say, however, ALA is the only suspect that I know of whom reasonably had a motive for Presidio Heights. Can you name another? Furthermore, I've yet to see evidence to the contrary.

Remember, I'm not a lawyer, I'm just some schmo who happens to be convinced that Allen was the Z. Therefore, from where I sit the burden of proof is on the Allen detractors. Here's a question for you, Peter: If the evidence in the Zodiac case doesn't lead to Allen then, in your view, where does it lead? And why?

Personally, I happen to think that much of the legal jargon and technicalities you are providing is often part of the reason that a good amount of the guilty walk while more than a few innocents sit in jail. We've all seen it in action Peter, some of us in more ways than one. Do the letters "O" and "J" ring a bell? I've fallen victim to it myself, Peter. Have you? Has anyone else on the board?

But I digress. I just don't understand how all of the evidence on a cumulative level, even that which is only deemed admissible by the court, points to anyone but Allen. Where does it point? I know where Tom thinks it points, and Howard, Doug, Ed, Sandy, Ray, Lapumo, Esau, et. al., but what about you? Where do you think it points? Come on Peter; allow us to hurl 52,345,674 reasons at your theory and why it simply has to be wrong.

That's what kills me about people who say, in essence, "I don't know who the Zodiac was but it certainly wasn't any of the suspects in the lot": They'll think of every reason in the world why your theory can't be right but when you turn and ask them what their theory is, they seem to turn tail and run. The role of Devil's advocate that you incessantly play has become overbearing to the point of being beyond pastiche. As you've pointed out on occasion, "the proof is in the pudding." Well then, once and for all, let's see it.

Scott

Peter, climb down off your soapbox for a minute and listen.

"If you have studied it, you know that disguising one's writing from detenction by an expert requires a lot more than deliberate alteration of the style. I said that in the last post, but you ignored it. So you can't conclude that Allen successfully disguised his writing by adopting an unnatural style. it doesn't follow."

Deliberate alteration of the style? What are you talking about? Allen had no need to alter his handwriting when giving samples; the alteration was done in the letters. Duh.

"We have the writing. It is consistent through all the letters. In common sense and human experience, which is the more likely? AN altered state that is achieved so consistently over a period of years that it successfully disguises a couple of dozen sampls, but makes them recognizable as the work of a single author, or normal writing? Please."

Yes, we have the writing. Are you telling me that a jury has to unequivocally accept that the handwriting in the known Zodiac missives was penned beyond a reasonable doubt by Zodiac and only Zodiac because there is no other reasonable explanation in the realm of human experience that isn't just as rational? Now I know you are kidding. Gee, imagine an intelligent killer successfully disguising his handwriting while writing letters for public consumption. Naw paw, I guess that couldn't happen. Hell, it ain't even reasonable. Explain again why it isn't more likely that said criminal would want to disguise his writing? Please.

"It takes knowledge of the detection art to fool it."

Yeah, so. I suppose it's not within the realm of human experience to take up a hobby?

I wrote, "Is it reasonable to conclude (beyond a reasonable doubt)* that Zodiac was writing with his normal hand, wasn't on drugs while writing, or didn't have someone else prepare the missives for him? No, it isn't."

Peter responded, "It most certainly is. For the reasons stated. Also, if someone else was writing, then you have a conspiracy. Which compounds your problems of proof."

No, it isn't. For the reasons stated.

"Come on: if I say to a jury 'he could have been straight' and you say 'he could have been on mind altering drugs or an expert in writing disguise or a conspirator' which one sounds like speculation?"

I would tell the jury that it is completely unreasonable to believe that the Zodiac killer would send letters, which he knew would be run through the cop-shop, to the newspapers in his own handwriting. What is the jury more likely to believe? Z had incentive to disguise his handwriting or he didn't? I can hear the defense now, "Oh, well, gee . . . I mean, why wouldn't he write in his normal hand? That's not playing fair. Besides, it's not within reason because such a notion is outside the realm of reasonable human experience." Give me a break.

"Wrong. The circumstances of the letters allow, if not compel, the inference that Z wrote the letters."

Bullsh*t, for reasons already stated. Do you really believe that a juror is going to find it inconceivable that the writing wasn't Zodiac's natural handwriting? The real question is, why would anyone think differently? See above . . . good God.

"Don't you get it yet? I don't have to say or prove that it could not possibly have been Allen! YOu and Anon have top prove that it couldn't have been anyone else! If the prints come in all I need is to say this raises a reasonable doubt as to whether it was Allen."

No, you don't get it yet. To hell with the bloody bloody prints. I'm not going to introduce them into evidence. They are of absolutely no value to me, or anyone for that matter, because they're only partials to begin with.

"Hartnell described long brown greasy hair. That raises a reasonable doubt as to whether he was describing Allen BECAUSE ALLEN DID NOT HAVE LONG BROWN GREASY HAIR."

Peter, if you know something I don't please let me know. What exactly do you know about the length of Allen's hair and how much grease was in it? Were you his personal barber or something? NEWSFLASH: YOU CAN BE BALDING, AND WHAT IS LEFT OF YOUR HAIR CAN STILL BE LONG, ESPECIALLY IF UNCOMBED AS IT PROBABLY WAS IN THE HOOD.

"I won't even try to fathom the logic of that statement. I said the prints are reasonably likely to be the writer's. And I will also say the writer is reeasonbly likely to be Z. what the origin of the paper has to do with it is beyond me."

Because the prints may have already been on the fuc*ing paper before Zodiac touched it. Not every single piece of paper in the world is fresh off the stack. Peter, you are not really this obtuse are you. There is reasonable doubt as to all of the prints. It's true, which can be established, deal with it.

"Anon first raised the question of jury instruction by saying ther aint no 'moral certainty' in it. Which was in response to my answer to YOUR question on what proof beyond a reasonable doubt is. We lose you after that?"

Nope, I've been following along just fine.

Scott

*Added for this post.

"Actually Peter, I may have misled you. I've only offered you the thesis statement for the PH theory, not the theory itself."

Ah. Point taken, i look forward to the full version.

"ALA is the only suspect that I know of whom reasonably had a motive for Presidio Heights. Can you name another?"

Just like Hartnell's description, however, a comparison among suspects does not help convict him. We can't assume Z is any of them. But to answer your question:

Bruce Davis was sick of being ridiculed and needed to prove he could go mano a mano with a man. He also wanted to work closer to the Haight, because Charlie was beginning to be suspicious, and Squeaky missed him.

TK though it was time to move up the food chain from couples to someone a step closer to the technology he was beginning to focus his hatred on. He was also trying to turn the focus away from the east Bay to the City.

Kane needed to practice his stalkig skills in an urban environment, becuase he was beginning to think Sandy was on to him.

Rick Marshall needed to work a little closer to home. His absences from the theater were beginning to draw attention.

All of the above just needed to kill again. LB was too frustrating.

"Furthermore, I've yet to see evidence to the contrary. "

See, the problem here is that there is no evidence that Allen had a motive, independent of the assumption that he was Z. If he was Z, then sure he could have been testing VPD. But then Z had plenty of other motives for PH as well. Killing a male. Just killing again.

"Remember, I'm not a lawyer, I'm just some schmo who happens to be convinced that Allen was the Z."

Who are you kiddn? You're no schmo. A little unduiwsciplined, maybe, but you have a mind and ytou're not afraid to use it.

"Therefore, from where I sit the burden of proof is on the Allen detractors."

The law aside, where the help does that burden come from? "I believe this so you hvae to prove that"? I don't tink so. In any form, scientific, philosophical, political, you name it the burden of proof is always on the proponent of any idea. And in this thread in particualr, it is on Allen proponents: remember, we started with Anon's boast that he could convict Allen. so far, we haven't seen even one fact that he says he can prove.

"Here's a question for you, Peter: If the evidence in the Zodiac case doesn't lead to Allen then, in your view, where does it lead?"

Nowhere. Again, it doesn't have to lead anywhere, just because therer are anumber of identified suspects. None of the above is the present answer.

And why? Because there isn't enough evidence even to support probable cause for any of them. I don't care what Anon says on this particular point: if Toschi, Armstrong and Mulanax didn't like Allen enough to get some hot DA to tke him him to the GJ, that speaks volumes. There is no doubt in my mind that the single strongest piece of evidence against Allen is Cheney's story. if it holds up, dates and all, how could Allen not be Z? Or at least know Z very well. Toschi, Armstrong and Mulanax had that on a silver platter, and took a pass.

"Personally, I happen to think that much of the legal jargon and technicalities you are providing is often part of the reason that a good amount of the guilty walk while more than a few innocents sit in jail".

You need to check some facts. You know how often the justice system gets it right? Try 95-98 percent. You ask Anon. You know of any other institution of any kind anywhere in the world with numbers like that? Medicine? Manufacturing industry? Insurance? Education? The Church? Poltics for cryin out loud? Congress? Any President? The kind of banter and debate you hear from Anon and me is one good reason it works as well as it does, because lawyers like us are allowed -- expected -- to engage in vigorous, passionate debate airing out every possible implication of a question before judges who also get it right most of the time.

"We've all seen it in action Peter, some of us in more ways than one. Do the letters "O" and "J" ring a bell? I've fallen victim to it myself, Peter. Have you? Has anyone else on the board?"

As I said before, the jury got OJ's case right on what was presented. that case turned on the presntation and rebuttal of evidence, not on any legal point of jury instructions, evidentiary rulings or legal theory. You read Jerry Spence's book on that case before you even pretend top know what happend there. Chris and Marcia had a star witness who was a liar. they had an FBI lab and expert who were in deep do-do on methodology, and they had the uncanny stupidity to ask OJ to particiapte in a bit of demostrative evidence without any clue as to how it would turn out. They did a bad job. It happens. You take the advice Anon has given me so often and sit in on a few dozen criminal trials and see how many OJs happen in the system.

But I digress. I just don't understand how all of the evidence on a cumulative level, even that which is only deemed admissible by the court, points to anyone but Allen. Where does it point? I know where Tom thinks it points, and Howard, Doug, Ed, Sandy, Ray, Lapumo, Esau, et. al., but what about you? Where do you think it points? Come on Peter; allow us to hurl 52,345,674 reasons at your theory and why it simply has to be wrong.

That's what kills me about people who say, in essence, "I don't know who the Zodiac was but it certainly wasn't any of the suspects in the lot": They'll think of every reason in the world why your theory can't be right but when you turn and ask them what their theory is, they seem to turn tail and run. The role of Devil's advocate that you incessantly play has become overbearing to the point of being beyond pastiche. As you've pointed out on occasion, "the proof is in the pudding." Well then, once and for all, let's see it.


Jargon, my asterisk. jury instructions are for jurors. your peers. My peers. you read CALJIC 2,02 again and tell me, just which part of "each fact must be proven beyond a reasonable doubt" do you not understand? Which part of "if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the defendant’s guilt and the other to innocence, you must adopt that interpretation which points to the defendant’s innocence" is hard to understand? Jargon, shmargon. this is a judge talking to a jury in plain English. I am only asking you to do what any ordinary juror does a thousand times a day in this country. Decide which facts are proven beyond a reasonable doubt and look at whether they are consistent with innocence.

I am only asking Anon to do what a thousand prosecutors do: show me how any facts he chooses are proven beyond a reasonable doubt, and show me why those facts are consistent only with guilt.

So far, all I hvae heard is quibbles about legal jargon and mountains of cicumstantial evidence.

Enough. Show me the money.

"Peter, climb down off your soapbox for a minute and listen. "

I need to stand up here to see eye to eye with you. OK, man, I'm sittin right here beside you. What?

"Deliberate alteration of the style? What are you talking about? Allen had no need to alter his handwriting when giving samples; the alteration was done in the letters. Duh."

But he did. In his sample for Armstrong and toschi. You said so. You said Morrill said so. Fact. The alteration waas done in the letters? How do you know that? Speculation?

"Yes, we have the writing. Are you telling me that a jury has to unequivocally accept that the handwriting in the known Zodiac missives was penned beyond a reasonable doubt by Zodiac and only Zodiac because there is no other reasonable explanation in the realm of human experience that isn't just as rational?"

No. Geez, will you listen? First, the prosecution needs to prove something like that to tie the crimes together. It was the same guy. Second if the writer wasn't Z, then you have a conspriacy, which complicates your case. It is in the prosecution's interest to establish that the killer wrote the letter. Third, if I were rying to disprove either of those things I DON'T HAVE TO PROVE THAT THE PROSECUTIONS THEORY IS NOT RATIONAL. I only have to prove that there is another rational theory. that creates reasonable doubt as to the prosecutor's proof of that fact, and the jury doesn't consider it in the montain of circumstantial evidence.

"It takes knowledge of the detection art to fool it." Yeah, so. I suppose it's not within the realm of human experience to take up a hobby?"

Again, there is no evidence that the writng was faked or that Allen took up any such hobby. As anon has pointed out, the common sense/human experience analysis applies to the evidence as a whole, not each individual part. So if that is your reasonaing, then it is part of the theory that the total evidence implicatesd Allen because the writng could have been disguised. Fair enough. Since there is no evidence of faking, that kind of expertise would have to be within the realm of common sense or human experience. An attempt at faking may be ususal, but that kind of expertise is unusual. But more to the point, the absence of that expertise, especially in Allen, is just as reasonable. Look at the second step, where there is a reasonable explanation that points to innocence, you must adopt it.

"I would tell the jury that it is completely unreasonable to believe that the Zodiac killer would send letters, which he knew would be run through the cop-shop, to the newspapers in his own handwriting. "

And you would be wrong. He was crack=proof, remember? That alone makes it reasonable

"Wrong. The circumstances of the letters allow, if not compel, the inference that Z wrote the letters." "Bullsh*t, for reasons already stated. Do you really believe that a juror is going to find it inconceivable that the writing wasn't Zodiac's natural handwriting?"

Are you stoned when you read my stuff? I said the jury could believe that Z wrote the letters. Your reply asks if I really believe the writing couldn't be disguised. I really am about to give on you, Big Mon.

"The real question is, why would anyone think differently?"

Because there is absolutely no evidence other than conjecture that it was disguised, and because Z thought he was crack-proof, he had no reason to disguise.


"To hell with the bloody bloody prints. I'm not going to introduce them into evidence. "

Of course not: I am.

"Peter, if you know something I don't please let me know."

Good straight line, but I won't touch it. If there is anthing we know about Allen its how he looked. Long brown hair that Hartnell could see through the eyeholes? Come on.


"Because the prints may have already been on the fuc*ing paper before Zodiac touched it."

So he was careful to keep his own prints off, or wiped them, and missed one single print that someone else left? Yeah, could happened, but a gain the standard is whether it is reasonable that the print was Z's, not that every other possibility is unreasonable.

"Nope, I've been following along just fine."

Then you understand the importance of the jury instruction. Good. Don't let us lose you. Really.


*Added for this post.

You know for those that think the "burden of proof" lies with the defense, I believe that is still the system in North Korea. If you like it that way, you may want to consider moving there.
As for myself, I kind of like what the Founding Fathers had to say in the U.S. Constitution.

There is no doubt in my mind that the single strongest piece of evidence against Allen is Cheney's story. if it holds up, dates and all, how could Allen not be Z?

I happen to agree. Don't you Doug? If Cheney had a tape recorder with DATE, for this conversation, I say, case closed, its Allen. I can see two possible ways however whereby the Cheney story doesn't hold up:

1.) Cheney is just an out and out liar and made up the story, after being convinced Allen was Z, to put him behind bars. Tom V.'s interview of Cheney does not hint that this is the case.

2.) Allen was sufficiently wacked that he COULD have gone around telling people he was Z even if he wasn't. (didn't he volunteer the info about the Bloody Knife after LB?) Its quite plausable in my mind that ALA committed murder(s), ie Santa Rosa coeds, not linked to Z which were getting much less attention than Z's crimes, so he wanted to link himself to the sensation of the Z story. (see below). If so its possible that Allen told Cheney "Hey I've got a Zodiac watch & I like killing people in the Forrest" AFTER the Z crimes started, but Cheney innocently misremembered WHEN this conversation took place.

In any case the Cheney angle is well worth further investigation. What do you say the readers here all pool some $ together to get Tom to re-interview Cheney under a lie detector?!

(*) Here's a wacky hypothesis which is likely wrong: What if Lake B. was not done by Zodiac, but done by Allen? Ie, a very disturbed ALA seeing the noteriety of Z, dresses up in Z costume (making sure his facial features can't be compared with those of Z) & goes on a rampage? The only Z letter to take credit for LB was the same one in which he, according to some, took credit for 2 other murders he didn't commit (in San Jose, "Aug") right?

If you think about it '70 SF bay area was the perfect place to get away with murder. You just have to have make your crime have some Zodiacal elements to it and the cops instantly suspect someone else. Z himself might have been offended since "it just doesn't do to move in on someone elses territory" (perhaps this was a reference to LB!), but he was too egotistical to retract any of the deeds attributed to him.

I happen to agree. Don't you Doug? If Cheney had a tape recorder with DATE, for this conversation, I say, case closed, its Allen.

I guess that would all depend on precisely what was said and when. If the datestamp was prior to the Zodiac events, I'm inclined to agree.

However, I'm not too sure about scenarios that paint the perpetrator at LB as someone other than Zodiac. I think, once again, it's a matter of playing the percentages. It's essentially the same kind of crime as BRS and LHR. In order to account for a copycat you've got to have two unique individuals working in the same general locality getting off on the same things. I'm more of the opinion that the reason LB didn't get more acknowledgement from Zodiac was that it ended up revealing too much about him--hence the change of victimology with the Stine event.

Well now.. I'm just a country bumpkin' on the jury, an I see this handwritin' of some checks that one Leigh Allen wrote, and I'm told the EXPERT said it does not match the Zodiac. They showed me some other letters too from this individual. GOLLY!... Well I can see all types of similarities. Whats wrong with this Morrill guy? Could be he was fooled from the description like that one inspector...was it 'Lynch'... I think that's his name. Oh... and you found some pipe bombs in his basement along with a whole lot of weapons & ammo, people screamin' bloody murder on audio tape, and the family's telling me he carried around these cryptic symbols for years that look just like this Zodiac guy's.Oh... and that's just the begging of your circumstancial case?... PUT THE GUY AWAY,... PLEASE!!!

Tony, we have to remember that the advantage Morrill had over anyone else trying to analyze Z's writings is that he had the "real mccoys" to scrutinize and microscopically examine.
Some other things come into play other than just the appearance of the writing, are pen pressure, smears from the hand, and other points I am sure I am missing.. For me, I am left handed, and it hurts my hand like hell to attempt a cursive "d" with the slant like Z does..Does that mean Z is right handed?? No..and I am by no means a handwriting analyst, but my point is Morrill had access to the actual Z letters.
What I'd like to know is there a summary of why or how Morrill came to his conclusions??
And as for Allen, I agree with you Tony, Allen should have been put away for possessing fire arms and pipe bombs, but carrying cryptic symbols isn't a probation violation or prohibited from convicted felons..(as far as I know).
cheers!

Boy Peter, you really DO need to take the cork out... Please don't represent the legal system as being filled with people having the kind of debate you and I are having. I wouldn't practise in such a system. And I"m sorry, but you wouldn't last one day against a competent experienced criminal trial lawyer in a criminal trial. You have a formalistic manner and argue EVERY POINT TO DEATH rather than trying to actually build aa theme. That's why you'd get demolished in court (IMO). Trust me, if you come with this kind of formalistic nit-picking agaisnt a lawer (prosecution or defense if you were prosecuting) who painted a vivid picture, put up a strong theme, and argued the common-sense facts rather than trying to muddy the waters, you'd alienate every juror and loose no matter the facts.

I can tell you, a jury would be SO MAD at the brutality of the crime, they aren't going to be persuaded by ANY of your 'well, the absence of that expertise, especially in Allen, is just as reasonable. Look at the second step, where there is a reasonable explanation that points to innocence, you must adopt it' arguments. I'm telling you, you'd be looking puzzled at the van that leads your client off to prison in no time with that stuff.

Take all the separate pieces of circumstantial evidence in this case that you AGREE are true. Where Allen lived, where the crimes occurred. His similarity to FBI profile of the killer. When the letters stopped, when the crimes ended and where Allen was at that time. The bombs similarity to the ones described in Z's letter, and their location. And his family's suspicions, and those of friends. Man, just go though ALL the facts that have been compiled against Allen that you don't have a problem with. All of 'em... I guess these would be like clear instances of "heads" coin toss, right? From my study, I think enough of this evidence alone exists to support a conviction.

Then consider the fact that in front of a jury, EVERY witness to Z's confession, or the ID of Allen, could END THE CASE and get Allen convicted. Comes down to whether the jury believes them, and since many of them were deemed highly credible by law enforcement, there is a possibility that this would be all that was needed.

That's why I feel he should have been tried.

But tell me this, Peter: if you were in charge, would you have charged Allen with a PV violation for showing up at his Parole officer's house holding his young family member's hand? I'm telling you, you wouldn't want to try to intimidate most of the badass parole officers I've dealt with, it would end badly for you. Or that he should have been charged for the explosives? You find explosives in the guy's basement, he's a CHILD MOLESTER, and you'd probably give him the benefit of the doubt also, I assume...

Bottom line is that are people who have a story to tell (defense OR prosecution), they do well and persuade jurors. THen there are armchair lawyers, who nitpick and think that trial work is a matter of making formal arguments, not presnting a powerful theme and story. They tend to not set foot in courtrooms, at least not twice. No force of argument, no theme, no persuasion.

At least that's my opinion. Occasionally when you are considering charging a case, a defense attorney gets ahold of you and asks if you'll consder talking to him before you file. Sometimes they even persuade you not to file. In this case, that wouldn't happen if I were charging. I find NONE of your reasoning at all persusasive, and in my experience a jury with no predisposed notions wouldn't either.

Anon.

Hartnell, one of the only surviving Z victims, clearly remembers dark brown, sweaty hair. This cannot be ignored or rationalized away. He was able to see it through the eye holes. There is no way this could have been Allen, combing his hair sideways or not. Unless, of course, you believe he had a wig under there, which is pretty darn unlikey (especially when you consider wig's don't 'sweat'). Allen's hair wasn't dark, and what little he had wasn't enough to be seen down to his eyes, no matter how hard one tries to make the square peg fit into the round hole. THIS ALONE is enough, in my mind, to completely rule out Allen. It doesn't take a brilliant legal mind to understand this. It only takes one small fact like this to blow the entire "Allen did it" theory out of the water, although there are PLENTY more just like this. Give it up on Allen, he was worth looking at, but I think you "Allen did it" folks are going down a blind alley.

Kevin, based on Hartnell's description of Zodiac's hood it's rather confusing to me how he could see Zodiac's hair in the first place. "Eye slits with clip-on sunglasses over them."
Regardless, if Zodiac could fashion a hood he could include a wig. Why? Well...why not?

Additionally, eyewitness testimony can be way off. I'm reminded of how the then-unidentified Ted Bundy at Lake Sammamish was described as having a British accent...

Well Tom...We've been going 'round & 'round about this wig thing in several other threads for years. It's nice to hear you ask..."Why Not"! It's an easy disguise & you can dump it immediatly. I bought some wigs through the Mail Order 'cause they were banned in my state.(-: Mahalo, Tony

Anon:

"Please don't represent the legal system as being filled with people having the kind of debate you
and I are having."

Do you actually read what I write? I was pointing out that very fact: that juries never hear this stuff. It goes on -- obviously to a severely limited extent -- in sidebars, chambers and appellate argument. What? You never argue a jury istruction?

You have a formalistic manner and argue EVERY POINT TO DEATH rather than trying to actually build aa theme.

My formalistic manner is largely in respnse to Scott, who asked quite intelligently for a little insight into the treatment of ciocumstnatial evidence and what beyond a reasonable doubt means. Geez, man, you flame me for waxing poetic about moral certainty because its not in a jury instruction and then you b&m when I find two jury instructions and parse them out for the benefit of those interested. When are you going to quit nitpicking me and step up to the plate with this slam dunk prosecution thee you keep railing about? I ain't seen it yet.

As for building a theme. I'll start doing that when I see a prosecution case worth defending. At this point I'm seeing dismassal at the close of the People's case.

For now, I'm talking about the subject of this thread, which amounts to whether you even have a prima facie case. Which we have not seen.

"Take all the separate pieces of circumstantial evidence in this case that you AGREE are true. Where Allen lived, where the crimes occurred. His similarity to FBI profile of the killer. When the letters stopped, when the crimes ended and where Allen was at that time. The bombs similarity to the ones described in Z's letter, and their location. And his family's suspicions, and those of friends."

That's it? That's what you have? You don't thnk that can be reasonably reconciled with innocence? YOu've been a defense attorney, as a defense lawyer, are you telling me you couldn't make out a reasonable explanation for the above. What, do you shoot the defendant on the courthouse steps where you practice? Anything else you want to throw in before I get started on it? And come on, "families suspicions"? a suspicion is admissible in your jusrisdiction? The Judge keep a rope behind the bench, too? You also need to look a little closer at these "facts". For example, the timing issue. It doesn't match up with Allen's Atascadero stint as close as you apparently think.

Man, just go though ALL the facts that have been compiled against Allen that you don't have a problem with. All of 'em... [Really? I get to choose?] I guess these would be like clear instances of "heads" coin toss, right? [Yup, in principle]

Then we get to the star witnesses Spinelli, Tucker, Cheney, et al:

" Comes down to whether the jury believes them, [yup] and since many of them [like who?] were deemed highly credible by law enforcement, there is a possibility that this would be all that was needed."

Wait a minute. I agree that Cheney at least, could be a lock, if believed. Big if. Huge. I happen to think he would be the one carried out in the van, but putting that aside, you remember back in our "res ipsa" discussion when you slammed me for drawing an inference from the fact that these same experts never charged Allen? Now you're saying that the assertion that they thought the witnesses were credible means something? Which is it? And what makes you think they thought they were so credible? That they got PC for a search warrant? You know damm well all that means is that they told a judge they thought they were credible. And if they were so credible, how come they were only good enough for PC in the warrant but not even a prelim? Cheney? Credible? Is that why Toschi and Armstrong and Mulanax took a year to get a warrant? And never called or sent flowers? Ditto Spinelli 20 years later?

"But tell me this, Peter: if you were in charge, would you have charged Allen with a PV violation for showing up at his Parole officer's house holding his young family member's hand?"

Why don't you ask Bruce about that one? Tom is in touch with him? And what the help does it have to do with the case against hima s Z?

"I'm telling you, you wouldn't want to try to intimidate most of the badass parole officers I've dealt with, it would end badly for you."

But it didn't for Allen. Hmmmm. Must be they didn't want to mess with Z.

"Or that he should have been charged for the explosives? You find explosives in the guy's basement, he's a CHILD MOLESTER, and you'd probably give him the benefit of the doubt also, I assume... "

There you go again. Ascribing attitutdes to me with no foundation at all. What the hepl does this have to do withe provinf the case? Must be cause you are beginnig to realize you can't answer the direct question? What is this case you have? Cause if all it is what you laid out above . . .

"Bottom line is that are people who have a story to tell (defense OR prosecution), they do well and persuade jurors. THen there are armchair lawyers, who nitpick and think that trial work is a matter of making formal arguments, not presnting a powerful theme and story. They tend to not set foot in courtrooms, at least not twice. No force of argument, no theme, no persuasion."

Really. No kidding. I had no idea. Never took trial ad so I guess I missed something pretty basic. So where's yours? Your force of argument, your theme, your persuasion? All I've heard from you is "I could do this easy, there's a mountain of evidence, believe me a jury would do this in a minute."

"I find NONE of your reasoning at all persusasive, and in my experience a jury with no predisposed notions wouldn't either"

You haven't even heard my reasoning. All you have heard is my behind the scenes sort of explanation to Scott, as well as my usual whining about you not putting your money where your mouth is. Come on: I'll show you mine if you show me yours. If you have one.



Anon.

Kevin,

Eyewitness testimony is not fact, rather it is one individual's perception, which is subject to all human fallacies, particularly when under duress. An investigator might be persuaded to also look elsewhere with a report like this, but to "completely rule him out" on this basis alone? That is not logical, nor would any competent investigator be persuaded to that extent by this detail. After all, the suspect was wearing a costume. It was daylight. He might have planned on being seen in the area without the hood. Is that reasonable or is it just rationalization?

This brings up your other point. I see we still have a general feeling that Allen proponents are deliberately trying to force the evidence to implicate him. Nothing is being rationalized away. We are trying to look at all the evidence. There is, at this time, no "smoking gun" to implicate Allen, but there is plenty of other evidence to implicate him. I think some do go too far in interpreting some of this evidence as inculpatory for Allen, but no one is doing any rationalizing that I have seen, apart from Graysmith. In stark contrast, there is almost no discussion about what is wrong with the evidence as it relates to other suspects, say Bruce Davis or Ted Kaczynski. In all fairness, this is the likely result of many board members not being so intimately familiar with the details of the cases against these suspects (myself included). That is because these cases were not vigorously pursued by the police, but rather by private investigators who had come to the conclusion that they had their man - exactly the behavior "Allenistas" are repudiated for. The fact of the matter is, because law enforcement didn't deem it worthy, we don't have police reports on interviews on interviews of them, search warrants against their properties, a handwriting or fingerprint or DNA comparision with these suspects (do we?), nor do we have any circumstatial evidence that they were involved in the crimes, only that they were in or around the areas where the crimes took place during the appropriate periods and might have been the kinds of individuals who would do such things. Next invariably follow the manufactured code solutions implicating them, e.g. Kaczynski, Kane. What I see is that the people who either don't want this tantalizing mystery solved or who for some reason are holding out hope to eventually be proven to have been right all along about some long shot suspect are doing plenty of rationalizing themselves. This usually takes place along the lines of something like handwriting not matching - the power of this argument stemming from the assertion that Morrill had possessed "talent on loan from God" and could not have been wrong even with an unusually skilled and ambidextrous penman. This argument is still being made in the face of newer evidence that Morrill was wrong (or at least that his conclusions were questionable) on more than one occassion. Add to this the fact that we only have a statement of Morrill's conclusions and that his actual full report is being actively suppressed even in the face of the FOIA. Other such evidence is in the form of eyewitness descriptions that are either ambiguous or not significantly out of the realm of what would be expected for just about any large WM. Of course, these examples do not exhaust the list, but those who are quick to mention the lack of a "smoking gun" on Allen never quite seem to get around to admitting that neither is there a "smoking alibi". In point of fact, all of the evidence appearing to let Allen off the hook is unfortunately of a kind subject to individual opinion or perception. Once this pattern is recognized, the waters get a little less muddy, at least with respect to evidence that many view as contradictory. Surely, if the DNA ever came back a positive match for Allen, no one would bring up a description of a lock of "sweaty brown hair" protruding from the hood or Morrill's unfaltering skill as a document examiner. Or would they?

Is the investigation into Allen a blind alley? I don't know. What I do know is that having preconceived notions is a recipe for failure in criminal investigations. Here we have an admonision that we are going down a blind alley before we even get to the end of the alley. I'm not quite ready to give up until I physically run into the wall that I'm being assured is out there somewhere in the distance. Keep in mind also that all of the evidence pertaining to this case is not available "online". You are all aware of this, are you not? There are facts relating to this case that have not been made public. I am confident that new information and new evidence will eventually surface and solve this case.

None of the above means that I would convict Allen based on the evidence that Anon describes and would present in court. This is what's so curious to me about the concept of selecting a jury from this board. I still think the only jury that would convict Allen would be one that did not have knowledge of the case.

Anon:

I can't resist this. There is an old sailor's addage that goes, "If you can't tie good knots, then tie lots of them." As you have discovered, Peter gets plenty of mileage out of the lawyer's version of it: "If you can't make good arguments..."

Ray

First of all, Zodiac's hair according to Bryan Hartnell as related to Sgt. John Robertson on September 28, 1969:

Hartnell: "I looked through his hair. I[t] kind of looked like it was combed, you know, like this . . . it was a brownish, you know, dark brown hair."

Later, Sgt. Robertson asks, "You said his hair looked dark brown. How could you see his hair?"

Bryan replies, "'Cause I saw it from where those goggles fit. I looked so closely to find out. And when he turned you know they kind of flittered . . . I could see his hair. It looked kind of greasy."

Gee, I suppose there's no way in hell that could be Allen. Give me a break with the hair already. Allen had hair, he combed it, it was brown, and it's just as likely to have been as "greasy" or sweaty as anyone's.

Secondly, in the same interview, Bryan describes the Z as weighing between 225 and 250 pounds, and describes Z's height as being, "Maybe 5'8" or maybe 5'10", 6 feet, somewhere in there."

Sure, with regard to height, Bryan is all over the board. However, I'm of the opinion that this can still be resolved if the interview is read carefully enough: At one point Hartnell asks Sgt. Robertson how tall he is to which the Sgt. replies, "I'm about five eleven." Then, later on in the interview, Robertson asks, "[Zodiac] was a much smaller man than you?" and Bryan replies, "Not much. About your [Sgt. Robertson's] height I guess. I don't know."

What is the reasonable inference, therefore, regarding Zodiac's height? Personally, I think it's unreasonable to say Zodiac was 5'8", despite what it says on the SFPD composite. The reasoning? Hartnell describes the Z as comparable to Sgt. Robertson who is roughly 5'11", Z was somewhat, but "not much" shorter than Hartnell, and Foukes also described Zodiac as approximately 5'10". Likewise, I think it's unreasonable to say that the Zodiac was 6' tall for the same reasons I just stated. So, what are we left with according to Hartnell and Foukes who are, in my opinion, the two best witnesses in the case? [I'll leave out Mageau because everyone, somewhat curiously, seems to cry "foul" when his name is mentioned.]

Is it unreasonable to say that the Zodiac was approximately 5'10", heavy build, 35-45 years old, 225-250 pounds, with short, combed, dark brown hair? No, it isn't; not unless the trial is taking place in New York or California where the juries have been instructed that all reasonable doubt must fall in favor of the defendant.


However, if we must examine each piece of evidence to determine if it's evidentiary value meets this instruction "beyond a reasonable doubt" instruction, and I'm a juror looking at this particular piece of evidence while staring at Allen, I'm certainly going to be saying, "Yep, he definitely matches that description beyond a reasonable doubt to me" and move on. You see, there is no reasonable doubt in the information that I, the juror, have to contend with. Therefore, in my opinion, Allen meets the reasonable and general description of the Zodiac, and cannot be excluded based on said description because there isn't any reasonable doubt that Allen matches it.

Okay Peter, I think I've got it now. And we have to do this with everything that is allowed, by the judge, into evidence, correct? From my perspective, Zodiac's general description has been allowed into evidence, and as a juror I know that Allen matches this description beyond a reasonable doubt. Let's move on, what should we examine next?

Scott

Scott: You don't quite have it. But we're gettin there.

First, "Yep he matches the description" is pretty general, and could imply that the match is detailed and comprehensive, which it is obviously not. I think it would be fairer to say that the facts beyond a reasonble doubt are "Allen and Z at LB match the same general description as to height weight and hair." Or Such specifics as "Hartnell saw brown combed greasy hair", and Hartnell put Z in the range of 5'8'' to 6' around there". Or Z was 5'8", or Z weighed 225 etc etc etc are the specific facts you might prove. To quote Joe Friday: just the facts, ma'am. Wait up on the inferences and conclusions untill you have assembled all the proven facts.

"Is it unreasonable to say that the Zodiac was approximately 5'10", heavy build, 35-45 years old, 225-250 pounds, with short, combed, dark brown hair? "

Sure, its reasonable, again, that ain't the issue. The issue is whether these things are beyond a reasonable doubt. If any other description is aLSO REASONABLE (NOT BETTER, JUST REASONABLE) THEN YOUR DESCRITION HAS NOT BEEN ESTABLSISHED BEYOND A REASONABLE DOUBT.

Sorry about the caps. Don't mean to shout, but too lazy to reformat.

"What is the reasonable inference, therefore, regarding Zodiac's height?" Still not quitte the right question. Z's height is one of the FACTS you may use to draw inferences as to whether Allen is Z. You don't draw inferences as to height, weight, etc. You have direct evidence of that, so it goes in the first step: you must prove his height beyond a reasonabl;e doubt if you want to use it. If there is a reasonable doubt that Z was 5'8" rather than 6' you can't rely on it for an inference that Z was Allen, if you also intyend to prove that Allen wasa 5'11". See?

Don't bother so much with what is allowed in by the judge: Anon and I could go on for days about that. Just try it with the facts you would rely on. Remember: two easy steps: facts proven beyond a reasonable doubt, then the necessary inferences or conclusions that explain that set of facts.

But be careful: your burden is not to prove that it is a reasonable inference: Why is it the ONLYreasonable inference.

Gentlemen, start your summations

Ray: You don't think the jury instruction that Anon must have heard a zillion times in all his "tons" of circumstantial cases is a good argument? Trying to explain it to certain people seems to require coming at it from a bunch of different angles, but its only one argument: In order to prove this case you have to explain why all the provable facts can add up only to guilt.

So far, no one has performed this simple exercise, including Mr. Vivid Picture Compelling Story Theme Anonymous Prosecutor.

We have another saying down here: Sayin it's so don't make it so.

Scott wrote: "not unless the trial is taking place in CA or NY...."
Uh, it's would be taking place in CA.
You do know that murder is not a federal crime, it is a State offense.

Sylvie:

Zodiac would likely be facing a variety of charges on both the state and federal level, in that he used the US Mail to accomplish extortion and make terroristic threats, in addition to the murder/attempted murder/weapons charges.

Peter:

I don't think Anon has as airtight a case as he thinks he does. If he did, we would have already put it together on the message board. The case on the evidence is there, however, and all he appears to be saying (at least from the way I read it) is that from his experience, he thinks he would get a conviction. I agree that this is possible, although I wouldn't vote guilty on the evidence he has listed, not matter how flamboyantly presented. You, on the other hand, seem to be arguing that the case is not that strong. So you two are arguing two different points it seems - he that a conviction is possible, and you that the case isn't as cut and dried as the list of "evidence" suggests on its face. In reality, I think both of you are correct. Picking the jury would be of paramount importance for both sides in this case.

Ray

I see the San Diego case is STILL in deliberation after, what, a week? Please note: blood samples of the little girl were found on the defendants jacket, RV, and God knows where else. Anyone still think Allen would get convicted in California? Whether he could get convicted or not is not the real question. The real question should be: Is he actually the Zodiac?

Sylvie, why don't you read the entire thread before attempting to point out errors. The point I was making is that the particular jury instruction we are discussing is used in California and New York. It hasn't been established if such instruction is used anywhere else other than those two states. Geez.

How many strikes do girls get? Isn't Sylvie at about # 300?

Ray,
that is correct but the 1st line of this thread is "I'm quite confident I could convict Allen on several of the Zodiac murders." So I presume in this fantasy Allen trial, we are only talking about murder here.
Scott, that's fair.
Kevin, I think the Van Dam deliberation is dragging on due to the fact that the State is trying to kill this man and their decision will likely be his death warrant, which goes back to what I brought up about executing Allen should he be found guilty (in our mock trial here.) I think absent any DNA, it would be crazy to put any of the suspects to death for Z murders were they to be tried.
Honestly, although I do believe that Westerfield is guilty, I hope he will be spared the death penalty. That bug evidence is bugging me.
(I have to hand it to Feldman, he won that round.)

Ray, I think you characterize the discussion well.

I never intended to put a case on here in a discussion group. Just opine that based on my reading, it seems to me that a conviction would be obtained against Allen. That's it...

My first post pointed out that I can't understand why the autorities seemed to take it easy on Allen, for PV's, for the bombs, and for the murders. They didn't aggressively go after him, and in retrospect, they should have. This doesn't seem like such a fringe stance; most experts I've read on agree that Allen is the man. And most people apply a MORE STRINGENT standard of guilt than is applied in court, IMO. Furthermore, a high percentage of cases get resolved at an arrest/charging/pre trial level. That's why you go after Allen. He'll likely confess and cough out details before you ever think about talking to a jury.

That's why I repeat my questions to Peter H: would you have charged a PV if you were his parole officer, based on what you've read about Allen's interaction with him? Would you have sought search warrants more aggressively if you were investigating him back then? Would you have charged anything for the bombs were you the DA? Please answer whether or not you think this is 'on point'.

I'm not hear to type in a full court strategy and openign statement. I don't do that unless I get paid... I suspect that your attitude on these will mirror your attidue generally, please surprise me. Are you a 'true believer' defense type who thinks no case should be charged? Are you soft on all crime, do you have some misplaced affection for Allen? If not, you'd actually be charging him and then I'll as you to defend a positive proposal (i.e. to charge him for any of these offenses) as opposed to just attacking everyone elses, of course Your problem is that you just enjoy being a PITA and questioning everything, no matter how small a point. Pick your themes, my man, it'll serve you well in life.

You seem like a guy who has spent a ton of time on this case, surely you've read dozens and dozens of facts that implicate Allen. If you feel that they'd all fall apart at trial, great, write a book. Graysmith, Tom, and others are not in agreement, let's see if the marketplace of ideas appreciates your brilliance as much. The truth is you do NOTHING but nitpick and obfuscate. Easy target in court, obfuscators...

How about you start by writing a web page refuting some of this: http://www.zodiackiller.com/AllenFile.html. Tom is admirable in that he is spending time and energy putting forth ideas and facts. Not just saying 'no' to whatever anyone says, like you do.

Now stop being such an argumentative pain and stop pretending to know criminal law. Take a trial ad class or two, I don't see how you missed Moot Court and trial ad if you are a lawyer...

Your squirming around any request to contribute a positive idea or explanation rather than just nitpicking is telling. I'm saying that with the facts I've READ, I think there is enough. Do you get that? Have you READ any of the details compiled on this issue? Do you really want to play dumb and say, 'well since Anon didn't list anything, there is no case against Allen'? That me not repeating everythign I've seen in a discussion board means I'm 'avoiding' a lack of proof?

Stop being an idiot and try to contribute to the conversation instead of dragging it to a snail's pace by pretending not to understand what we are talking about. Kick it into gear and stop kidding yourself that you are making points about the 'Law'. Have you EVER argued a suppression motion? Any motion in trial? Ever been IN trial?

What I'd love to hear is 'Hey Anon, I think I could show that most of the case against Allen is coincidence or actually flat-out false.' Fine, I haven't seen anyone shoot down any number of the points made in the Allen File. I'd love to see what you got, or where you read it. That's productive. But you'd rather make pedantic petty arguments that cloud the issue. Why you take offense at my opinion (that I could convict him based on what I've read of the facts) is beyond me. I think you are (if at all) a lawer in a VERY boring area (maybe tax, real estate?), and an armchair criminal lawyer wanna be. So you get offended at my expresing confidence in my opinion. Sounds like frustration more than anything else.

Citing 'res ipsa', making horrendous arguments about the reasonable doubt instruction, what would be suppressed, the 'fact' that there is no direct evidence in this case, that jurors have to be decided to a moral certainty (to an executioners certainty in fact), stating that I would have no requirement for ID in a conviction in your usual weak disingenuous manner, and now trying to hijack my thread by insisting that I put on a case... Please give it a rest, you are making no progress and clearly have a hard time relating to people.

Gawd, there is direct evidence through multiple confessions and one positive ID in a photo LINEUP. Believe ONE of them and you've got a conviction in all probability.

Anon, you stated:
"here is direct evidence through multiple confessions and one positive ID in a photo LINEUP. Believe ONE of them and you've got a conviction in all probability."
While I agree with your statement, I remain a sceptical voice on conviction as your argument seems to assume no weaknesses in such testimony and no defense testimony to counteract it. Such is not the case. As others have mentioned, both confessions can be called into question re: the witnesses have possible secondary motives. As you have said about the prosecution, it is not necessary to prove every single point, just convince the jury of the whole case beyond a reasonable doubt. But the sword of justice cuts both ways (sorry, got carried away) as the defense does not need to disprove every prosecution point or to prove every one of it's points. All that is required is reasonable doubt in the mind of one juror. What about the points the defense is sure to raise? Mageau picked him out of a photo lineup, but kathleen johns looked at his picture and said "That is not the man who kidnapped me". The teenage witnesses (multiple witnesses) had him in view for several minutes from about 50 ft. away and said he looked right at them. Their sketch, done by the police artist, looks nothing like Allen. IT would come down to who the jury would believe. Do you really think with certainty the jury will believe an alcoholic who saw the killer behind gun flashes 20 years ago over multiple witneses (including one police officer) whose description did not match the defendants?
I am not an attorney, and it is true you never know what a jury will decide, but as you said about prosecution evidene, if a jury believes ONE of the defense points above, you've got a heck of a lot of reasonable doubt.

Well thank you Tom, I'll take that as a compliment.
Anon, why don't you give us your name, some credentials. We don't know a thing about you.
Man, woman, in between?
Seriously, I give someone like Scott B. for example, alot of credit for putting himself out there, like him or not. Most of us on this Message Board are extremely honest about who we are and what we do. It gives at least some creedence. As Spencer said we know PeterH is an attorney, we know he is a litigator, so your comments questioning his credentials look ridiculous. We don't know a thing about you, for all we know you bagged my groceries last week.

Mike,

Great post... I think there are reasons the witnesses might not do well on the stand. My point is that with ALL the evidence against Allen, trying him is the right thing to do. If, and I agree that its a big 'if', the jury believes Mageau alone, you've got Allen for life. If the other witnesses raised doubts about the other crimes, he'd be found not guilty of THOSE crimes, but still in prison.

Did you prove he is Z? No, but no need to prove that in the context of getting Allen locked up. Proving the whole thing would be preferable, but Allen off the streets would have been a positive result.

And I'd trot out all those witnesses whose recollection or description was different than Allen and have multiple lineups done. Description is not a strong a tool as picking someone out. Maybe something else would break loose...

Anyways, this direct evidence would supplement all the circumstances that show Allen as the killer.

Anon

Mike, you've raised some good points but they are not entirely accurate. I hope you don't mind a little critique?

"What about the points the defense is sure to raise? Mageau picked him out of a photo lineup, but Kathleen johns looked at his picture and said 'That is not the man who kidnapped me'."

The Zodiac attacked Mageau, beyond a reasonable doubt. Sorry folks, but Kathleen Johns wasn't, not beyond a reasonable doubt: no, no, no. Therefore, based upon the fact that Mageau is a confirmed Zodiac victim and Kathleen Johns isn't [Look at her; God rest her soul; can you honestly tell me, beyond a reasonable doubt, that KJ never did drugs or consumed alcohol?], Mageau's testimony will obviously be allowed into evidence whereas KJ's will not. [How am I doing, Peter?]

"The teenage witnesses (multiple witnesses) had him in view for several minutes from about 50 ft. away and said he looked right at them. Their sketch, done by the police artist, looks nothing like Allen."

Maybe, maybe not. But one thing is certain, the SFPD composite has flaws: How do you reconcile the fact that the composite says "approximately 5'8"" when it's much more likely and reasonable to put Zodiac's height at "approximately" 5'10" based upon the testimony of at least 2 extremely credible witnesses, including that of Foukes, the police officer you've mentioned?

Furthermore, and more directly to the point, what is more reasonable: That many witnesses described the Zodiac as having "a heavy build," including the 3 teenagers, and the composite artist (mistakenly perhaps) failed to compensate for this "fact which can be shown beyond a reasonable doubt" or, beyond a reasonable doubt, that the composite artist, having never actually seen the Zodiac, was able to depict a more accurate representation than the eyewitnesses using nothing more than artistic ability and intuition?

Also, isn’t also more reasonable to describe the Zodiac's hair as "short" rather than worn in a "crew cut"? Look at the facts, which can be shown beyond a reasonable doubt, and the "crew cut" myth will quickly evaporate. [Perhaps the teens originally misinterpreted a head with short hair and a receding hairline as a crew cut? Otherwise, and within reason, why was the amended composite revised to say "short brown hair" instead of "crew cut"?]

"Do you really think with certainty the jury will believe an alcoholic who saw the killer behind gun flashes 20 years ago over multiple witnesses (including one police officer) whose description did not match the defendants?"

What are you saying here; it is a "given" that an alcoholic and/or drug addict will unequivocally and without a doubt forget the night he/she was attacked by one of the most infamous serial killers of all time? What do you think led him to drink in the first place? Not only did Mageau not forget, he pointed to his attacker in a blind photo lineup over 2 decades after the fact, as I'm sure almost anyone could, given his circumstances.

Seriously, that argument isn't even applicable here, and probably isn't anywhere else either. What your saying is that only one of two things is reasonably possible: 1) It's inconceivable that an alcoholic/drug addict could remember one of the most significant moments in their life just because they are substance abusers or 2) The alcohol/drugs themselves insinuates and assures that such memories are automatically impossible. That's purely speculative.

When you compare that with the fact that Mageau, beyond a reasonable doubt, was A) attacked by the Zodiac killer, and B) picked Allen out of a blind photo lineup 2 decades after the fact [despite the alleged use and assumed affects of alcohol and/or drug abuse], which of the explanations seems most reasonable?

Granted, as you eloquently stated, 1 of 12 will spoil the pot. That is why I don't believe that this argument/thread can be resolved on the message board: Where are the 12 impartial jurors who can decide this case beyond a reasonable doubt? They don't exist right here, on this message board, that's for certain.

Scott

Scott, thanks for your reply. A couple of quick points: I have no argument with the descriptions of Zodiac's general body build (which are fairly uniform among witnesses) and the fact that it is consistent with Allen's build. And I don't quibble over a height difference of 2 inches, to me "approximately 5ft.-eight" and 5'10" are the same(thus the 'approximatee) I've seen other people quibble over differences of an inch or two and 20 lbs or so, but if the subject in question is a big guy (like you and sorta like me, 5'11 and 205) any variation within 5% is accurate enough.
As to Mageau's id, No, I'm not saying it is impossible for someone to remember the face of an attacker 20 yrs. and a history of alcoholism later. What I AM saying is that Mageua's eyewitness testimony is not the ONLY eyewitness testimony, and some of the other contradicts his. That does not automatically prove him wrong, but nor does it prove the others wrong. Katlenn Johns' allowed to testify? Maybe, maybe not, but not impossible. But the composite made from the other eyewitness testimony certainly would be allowed as evidence, it was an official police publication! My point is that the jury will hear CONFLICTING eyewitness 'identification". Who will they believe? Unknown until we try (which we unfortunately never will!), but the conflicting testimony leaves the door wide open for that reasonable doubt in the minds of jurors. And if they happenes, either qcquittal or hung jury.
Please, I am not trying to insult Mike Mageau for his problems (which, lets be honest, of which we really have no idea of the true nature). I only mentioned that because any defense attorney would be sure to raise the issue with his testimony.

" Peter H: would you have charged a PV if you were his parole officer, based on what you've read about Allen's interaction with him?"

I haven't focussed much on Allen's interaction with Bruce, and have no idea whether there were grounds to violate him. If there were, sure I would have, Also if there were the question ought to be put to Bruce as to why he didn't. Betcha there's a reason. I mean a good one. BTW, Armstrong/Toschi/Mulanax were all set with him long before he was even on parole. It's great to say in hindsight now, but after the 72 search what's the point as of say 76? What more is to be gained in 76. Absolutley no physical evidence, Cheney is history and ALA is going to fold because of a PV? I don't know. So many cops had a shot at him and no one took it? Seriously, for a moment, that doesn't mean anything to you? If we knew then what we know now, maybe. But at the time?

"Would you have sought search warrants more aggressively if you were investigating him back then?"

Back when, exactly? I don't know of any warrant that was sought but not granted. The only snafu I know of in that regard was searching the trailer and not 32 Frsno, but I betcha by the time that happened there was nothing to find anyway. I believe it happened long enough after the Armstrong/Toschi/Muanax interview that ALA had plent of warning.

"Would you have charged anything for the bombs were you the DA? Please answer whether or not you think this is 'on point'. "

Sure, I don't see why it wouldn't stick, even though it wasn't what they were looking for. What is possession of an exposive device in Cal? Class 2 or 2d degree felony? If it wasn't a biggie, maybe an ambitious cop with Z on his mind doesn't want to look like a jerk for going after the big fish and charging a grade z misd. Kinda like having to write John Gotti a speeding tivket, isn't it?

"Are you a 'true believer' defense type who thinks no case should be charged? Are you soft on all crime.

Absolutely not. Just for background, I did my clinical internship in the LA City Attys office under Ira Rreiner. Criminal enforcement, environmental crimes. Look up Hope Plastics some time. When I was in enforcement for a major federal regulatory agency, the GC asked in the intake interview what my "enforcement philosophy" was. My answer was that if there's a case that you believe you can make, that is usually enough to say you should try to make it. Its not to say you should try to make one you don't reeally believe in just to leverage some other result.

"Do you have some misplaced affection for Allen?"

Yeah, I love the way he looked at my butt that day he was the guest speaker in my crim pro class. What is that supposed to mean? All I have is misplaced disaffection for blowhard extremist types on both sides of a case who don't realize they are a part of a system that's supposed to reach the truth, not satisfy either the jury's or societies blood lust for punishment as long as SOMEBODY ANYBODY pays, OR to walk em all as some kind of political vindication for all the ignorance and abuse ever heaped on anybody in all of history. I believe Mumia got screwed at trial, but I believe he did the crime. Same for Bruno Hauptmann. Same would have happened to OJ if Furman had his way. (As soon as I heard the report that Furman had gone over the wall on his own hook ("exigent circumstances" my asss) I told my wife "That guy is going to torpedo this case".)

"You seem like a guy who has spent a ton of time on this case, surely you've read dozens and dozens of facts that implicate Allen."

Actually the facts that I believe are not in reasonable doubt are pretty weak. You summed them up in your previous post: where he lived, general physical desription, timing of the lettters and ALA incarceration, etc. Like a Ray said about the sailrs and the knots. Sure there are a lot of them, but none are very good. Like the knots.

If you feel that they'd all fall apart at trial, great, write a book.

Make up your mind: should I write a book or shut up. I think this MB is the happy medium.

The truth is you do NOTHING but nitpick and obfuscate. Easy target in court, obfuscators...

Easy accusation to make. YOu call CALJIC 2.01 nitpicking? I don't think straightening you out on your strawman take on my approach to your coin toss hyptthetical was nitpicking. You had me 180 degrees wrong, and haven't had the good manners to acknowledge that my actual approach is exacty the correct analysis of the coin toss hypothetical.

" Tom is admirable in that he is spending time and energy putting forth ideas and facts. Not just saying 'no' to whatever anyone says, like you do."

Yes he is. ANd I don;t say no to you: I say showme. You bragged it would be easy to convict Allen and all I ask is how? When I point out the syllogism that the court will require the jury to apply to all this circumstantial evidence, all you can say is no it wouldn't, it doesn't work that way and on and on.

I contributed the NY and Cal jury instructions, I contibuted a step by step procedure for running the facts of this case through them, which I think Scott may be about to do.

What is it exactly you have contributed? Remind me: all I see is the unsupported boast that you could do "easily" what no one else in the profession has been able or even though it worth while to try to do for 30 years. I think that warrants a "show me", and a direct response.

" I don't see how you missed Moot Court and trial ad if you are a lawyer... "

Geez, and work on that sense of humor, too, will ya? I was kidding about trial ad. I was the TA and tutor in it third year. I passed on moot court because its all appellate argument and briefing. Big mistake. I took the law review spot. Edited George Fletcher's brilliant piece on felony-murder. My editors in chief were named Petrocelli asnd Goldblum, ever heard of them?

"Your squirming around any request to contribute a positive idea or explanation"

AS I said, I think the ground rules for the burden of poof in a circustantial case was a pretty decent contribution. I'd be gald to outline a defense when I have heard the prosecution's case. Someone onnce told me that's even the way real trials do it. I obviously wouldn't know. What was your contribution again? Your theory is what exactly?

"I'm saying that with the facts I've READ, I think there is enough. Do you get that?"

Yeah, I get it. "That's my story and I'm sticking to it. I'm a successful prosecutor, and I know what I'm talking about: I don't have to explain anything: I am my own authority."

"Have you READ any of the details compiled on this issue? Do you really want to play dumb and say, 'well since Anon didn't list anything, there is no case against Allen'? "

Actually, if you read what I am saying, its, "Since Anon didnt list anything, he's got a lot of nerve claiming he has the case against Allen"

"That me not repeating everythign I've seen in a discussion board means I'm 'avoiding' a lack of proof"?

Actualy its not a lack of proof, its just that we don't know what proof you would rely on. And no its not obvious and no you can't assume that everyone here would know. I mean try it out, We still have people who think Allen was spotted at the scene of the Santa Rosa killiongs, or the dump, or got got speeding ticket at Berryessa or that Z called Belli on Allen's birthday. You want us to include that? I don't think even you believe that everything you've read on this board, much less the site, is included in the list of facts you would atgue to the jury have been proved beyond a reasonable doubt.

What I'd love to hear is 'Hey Anon, I think I could show that most of the case against Allen is coincidence or actually flat-out false.'

Hey, Anon, I think I could show that the strongest case against Allen is a couple of indirect and one direct confessions that never happend or didn't happen when the witnesses said they did, and the rest is matter of a pathetic pedophile loser playing what he sees as dangerous games by associating himself with the Z case from a safe distance.

"Fine, I haven't seen anyone shoot down any number of the points made in the Allen File. '

You haven't? Which Ones? What have you been reading? Ever see Douglas or Howard or Jake's stuff on this site? Probably isn't a single assertioon at that page that doesn't have powder burns.

"I'd love to see what you got, or where you read it. That's productive."

Same back atcha. I got what you got: everything at this site, and Jake's and a couple more, plus Graysmith etc. That was helpful, huh? Now you understand my defense theory conpletely, let's go on to rebuttal. You can't just point to the whole borad or site and say "See? Its all there?" If you want to sculpt an elephant from a block a granite, you got to cut away the parts that don't look like the elephant. I'm not gonna do that for you, and then do my own work as well.

But you'd rather make pedantic petty arguments that cloud the issue. Why you take offense at my opinion (that I could convict him based on what I've read of the facts) is beyond me.

Because you haven't backed it up with jack, Jack. When you started this thread, you called your opener inflammatory. Well guess what, you were right. Its not your opnion, its the lack of support. What, Tom didn't warn you that there were peoeple out here who would really like to know HOW you would make the case? Fer cryin out loud, if we knew there was a case aganst ALA beyond a reasnable doubt we could all drop this, Ray could go back to work and we could get on with our lives.

I've been wanting you to state this case, because I'm not about to put on a defense against a case I havne't heard. Maybe that's how you get so many convictions in cases like this: the defense opens. Great idea!

"So you get offended at my expresing confidence in my opinion."

Nope I get offended at you stating your opinion and nothing else.

Citing 'res ipsa', making horrendous arguments about the reasonable doubt instruction, what would be suppressed, the 'fact' that there is no direct evidence in this case, that jurors have to be decided to a moral certainty (to an executioners certainty in fact), stating that I would have no requirement for ID in a conviction in your usual weak disingenuous manner, and now trying to hijack my thread by insisting that I put on a case...

Hey, we've been through all this? (I don't think I argued what would be suppreswsed: I actually asked for your opinion on a coupla those) you still don't understand the concept of a metaphorical use of a term of art. And "Hijack your thread". You're kidding. Without some discussion of HOW you would convict, THERE IS NO THREAD! Seriously, what did you expect? I can see the thread:

ANON: "Hey, everybody, I know you'll be shocked to hear this, but I could convict Allen easily. There's enough circumstantial evidence that I could have the jury b---ing me."

POSTR: Gee, that's impressive, how would you do it?

ANON: Sorry, I could tell you easily but you'd have to pay me.

POSTER: OK, Thanks anyway.

End of thread.

Fine: Take your thread back. No discussion of what your case would consist of. Have fun.

"Gawd, there is direct evidence through multiple confessions [Spinelli was direct but bogus. CHEney and Tucker were both highly circumstantial and almost as bogus. Got anyone else?] and one positive ID in a photo LINEUP [by a somewhat problemed individual shall we say 20 years after the fact with plenty of time to become acquainted with most of the information we have including photo ID. Let me at that witness. What does he say now? He is avaialable, you know]

"Believe ONE of them and you've got a conviction in all probability."

Correction: In all certainty. Except for Tucker.

OK Show of hands on the board: Who believes Cheney, Spinelli or Mageau's 1991 ID of ALA without any reasonable doubt?

No, no, Mr. Toschi, you've already voted with your feet, Armstrong, Mulanax, Lynch, Lundblad, Morrill you too. Anyone else?

Sorry about the typos in the last post. I hit "Post" before I had edited. I hope y'all can pick out the Anon quotes from my comments. If not let me know, I'll repost and ask Tom to delete the old one.

OK Show of hands on the board: Who believes Cheney, Spinelli or Mageau's 1991 ID of ALA without any reasonable doubt?

Cheney's story is ridiculous on its face; Spinelli was a convicted felon looking for brownie points and Mageau would have to explain why his I.D. of Allen is so completely at odds with the descriptions he gave out at the time of the incident. Other than that, I find them perfectly credible.

I'll second Doug.

"Scott, thanks for your reply."

Hey, you too, Mike. You always contribute to the discussions in a positive way; keep up the good work.

"What I AM saying is that Mageau's eyewitness testimony is not the ONLY eyewitness testimony, and some of the other contradicts his."

Could you be more specific? Which eyewitness described Zodiac so differently than Mageau did? It all looks pretty uniform to me; generally speaking that is.

"Katlenn Johns' allowed to testify? Maybe, maybe not, but not impossible."

Unfortunately, I'll have to let this one go. That is why, IMO, we'd need a judge to fully understand much of which is happening in this thread: Of course the defense would want her to testify on behalf of Arthur Leigh Allen, but the real question is, would she be allowed? IMO, that is something that Anon and Peter can't answer; not when they are as divided on the issue as they are. Only an impartial judge could make a ruling on that, but I'm inclined to believe that her testimony wouldn't be allowed into evidence for reasons already stated.

"I am not trying to insult Mike Mageau for his problems . . . I only mentioned that because any defense attorney would be sure to raise the issue with his testimony."

Point taken. There's little reason to even doubt that. Nevertheless, if the prosecution decides to use his testimony it will be allowed into evidence; that the same cannot be said for Kathleen Johns is the point I'm trying to make.

Doug wrote, "Mageau would have to explain why his I.D. of Allen is so completely at odds with the descriptions he gave out at the time of the incident."

Since Mageau's testimony is starting to become a theme here, let's revisit exactly what Mageau did have to say about his attacker back in July of 1969.

From Ed Rust's police report: "Subject appeared to be short, possibly 5'8", was real heavy set, beefy build. Stated subject was not blubbery fat, but real beefy, possibly 195 to 200, or maybe even larger. Stated he had short curly hair, light brown, almost blond . . . States there was nothing unusual about his face, other than it appeared to be large . . . He could not recall anything unusual except that [his attacker] had a large face."

Yeah, I guess you're absolutely right; Mageau's description back in '69 couldn't possibly have been Allen. Seriously Doug, you know the case material better than that. Are you really saying that Mageau's description in 1969 and his blind ID of Allen in 1991 are so at odds with one another as to be inconceivable? The only thing I don't fully understand yet is the height issue. However, there are tangibles that haven't, and in some cases never will be, accounted for: The height listed on Allen's driver's license for instance. It says 6'0" but, as far as I know, you are not measured for height by the DMV, so who knows if ALA was exaggerating or not? Also, were Mageau and Hartnell taller than the Zodiac? If so, this could be a reasonable explanation for their use of the word "short" to describe Zodiac's height.

Another thing to consider, the conditions in which Bawart received the ID from Mageau: First of all, the lineup was done blindly. Bawart had even told Mageau that he was under no obligation to pinpoint any of the pictures; that Mageau's attacker may or may not even be in any of the photos. Nevertheless, sure as stink on sh*t, Mageau points to Allen's 1968 driver's license photo and exclaims, "That's him! That's the man who shot me!" Perhaps Obiwan can figure out a way of determining the odds of that happening by random chance?

This whole thing about Mageau's ID of Allen, it could be argued, is bogus to begin with: There is no question that it must be discredited if you don't believe Allen was the Zodiac, same with Spinelli's and Cheney's testimonies. If their testimonies can't be discredited then, in all probability, it's going to be difficult for a jury to come back with anything other than a guilty verdict.

Scott

Scott:

I know I'm not the moderator here, but I do like trading views with you and I think I have something to contribute on the rules of engagement. For clarity's sake.

Let me make a suggestion that I believe could make this and many other discussions you participate in a little more cogent, and help us understand your reasoning better. When you use language like "inconceivable" and "couldn't possibly", you pin a standard on the argument that you are answering that just doesn't apply. Doug didn't say it was impossible: he only said that the differences would have to be explained. The only one with a burden to prove beyond a reasonable doubt is a prosecutor in a criminal case. The rest of us usually deal in less black and white terms than that. Anything is conceivable; that's not the point. Allen was NOT perhaps 5'8", he did not have curly hair, he was not 195-200 MAYBE larger, he was 225-250. DEFINITELY larger. He did not appear short to most observers. Lynch has him at 6'1". Also of note is that Mageau aid the face was large, but didn't offer one other detail about it. Rounded features? Chubby cheeks? UCte little nose? Noting. Not one facial detail. He saw the height, stance, build, weight, size of the face in relation to all that, and he picks him out from a head shot. Come on: until you realize that these discrepancies, these significant differences, these degrees of difference exist, ad deal with them discussions like this just bog down in semantics.

Geez, people accuse me of draggin arguments out over minutiae and the like. How abot dragging them out over standards such as impossibility? I happen to think it is the details and degrees of accuracy that make the real differences. Even if they don't, they are there and deserve to be acknowledged. Not evry argument comes down to the differecne between certainty and impossibility. There are deegrees of likelihood.

BTW the likelihood that Mageau picked Allen by chance is probably 1 in 6. A typical photo lineup is a panel of six frames of identical sizes. Several panels may be used, but often are not. Keep in mind that we don't know all the details of Bawart's lineup, but one thing I do know is that there are all kinds of techniques used to direct the choice either to or away from the suspect. I have used them, with some success. For example, there is one position on the six frame lineup, I think its the top right, that is more likely to be picked than any other. You can do all kinds of things with scale, pose, color etc to skew the results. ALl that would be subject to minute examination in the presentation of the lineup evidence.

OK folks, let's continue this in District Attorney: "I Could Convict Allen Easily!" Part II. This current thread is taking a long time to load now...