TRACE EVIDENCE: The Hunt for the I-5 Serial Killer (57 page)

“It’s commonly available in places other than a parachute shop?”

“Yeah.”

“Have you ever seen any colored marks, in particular, any red marks, on any 550 cord when it comes from the factory?” Kohn asked.

“It doesn’t come from the factory marked, but it’s common to find the marks on the cordage. It’s done at the factory when they’re manufacturing canopies.”

“What’s the purpose of the markings?”

“They usually string this type of cordage out on a line table and they’ll put out hundreds of yards of cordage at once. And they have a marking grid they use for cutting and sewing canopies. At a couple of parachute factories where I have worked, they used colored-coded markings to indicate where to cut and sew.”

“It doesn’t have to be red?”

“Right. Any color. It’s common to use a bright color, like red or green or blue.”

“And what is that
paint applied with?” he asked.

“Usually felt-tip markers are the easier thing to use,” Farrell said.

Kohn seemed to have gone one question too far, but he recovered. “Can it be spray-painted on?” he asked.

“It can be sprayed on if you’re trying to cover a wider area, such as on a four-line release system—you mark a larger portion of line to indicate which line to pull.”

Farrell held his fingers about 4 inches apart to show how wide an area of line would be sprayed.

On cross, Drossel went for the heart.

“You mentioned that there can be some red substance put on those cords during manufacturing, is that correct?”

“Yes. To know where you are going to cut the line.”

“You mentioned felt-tip marker could be used.”

“Yes, it is pretty common.”

“That is more common than some other types of substance, such as paint?” Drossel asked.

“In my experience, felt markers were the most common used at the factory that I worked in.”

“I have no further questions.”

John Thorton, a professor of forensic science at the University of California, Berkeley, was called next.

He testified to having reviewed the reports of
Faye Springer and
Skip Palenik and to reading their testimony.

“Would you tell us the approximate size of the red paint particles on this exhibit?” asked
Tom Kolpacoff, pointing to the piece of cordage from the crime kit.

“It’s six microns,” Thorton said. “That would be six-millionths of a meter, a meter being a little greater than a yard.”

“To use a real scientific term, it’s an itsy-bitsy particle?”

“It’s a very, very small particle. I would consider this to be at about the lower possible range of size for any forensic examination. If it was any smaller, I don’t think it would have been of any value for forensic purposes.”

Thorton described the ten elements found in the red paint by Skip Palenik to be “expected components of paint,” although he said the sodium and chlorine might well be contaminants as suggested by the prosecution’s expert.

Thorton also agreed that the dark football-shaped particles were
fungal spores.

“Are fungal spores unusual to see?”

“No.”

“Does dirt contain fungal spores?”

“Yes.”

As for the
hair evidence, Thorton said, “In an elimination sense, hair evidence is very useful. If the issue is whether or not a particular hair came from an individual, then it’s my opinion that hair is a miserable form of evidence.”

However, Thorton did state that he believed it possible to compare animal hairs for purposes of identifying the type of animal it came from. He agreed that the animal hairs found on
Darcie Frackenpohl’s dress were cat hairs.

When it came to the nonfunctional
cutting of the victims’ clothing as testified to by
Jim Streeter, Thorton said he believed some of the cuts were tears in the fabric. But whatever advantage that had bought the defense in terms of putting some distance between the
scissors found in Kibbe’s crime kit and the clothes cutting was lost on Kolpacoff’s next exchange with the defense’s own criminalist.

“In your professional opinion, is there any way of telling what type of instrument made those cuts?”

“I think they’re scissor cuts.”

Drossel began his cross-examination by asking Thorton if he had any problems with the methodology used by Faye Springer in her work on the I-5 cases.

“No, I don’t.”

“Do you know Skip Palenik’s reputation in his particular area of microscopy?”

“Yes. Mr. Palenik enjoys immense stature with the forensic science community for his abilities as a forensic microscopist.”

“You never physically examined
fibers or
cordage or
hair or clothing except the pink dress we have in this courtroom?” Drossel asked.

“That’s correct.”

“And the pink dress was first examined by you in court with a magnifying glass just a couple of days ago. Is that correct?”

“Yes.”

“Is it correct that you are suspect of some of Jim Streeter’s analysis?”

“That would be a fair characterization.”

“And you’re testifying without having actually physically looked at the rest of the clothes evidence?”

“Not to be argumentative, but I think I can tell a good egg from a bad one without laying one,” said Thorton.

Drossel went over Thorton’s tears-versus-cuts testimony, highlighting the sizable number of cuts that Thorton confirmed. His testimony had the effect of corroborating most of the cuts found by Streeter, with the added bonus of identifying scissors as the cutting instrument, something Streeter had not done.

“You’re familiar with the terms ‘functional’ and ‘nonfunctional’ cuts?” Drossel asked.

“Yes. I have no quarrel with that concept.”

“Then Mr. Streeter’s definition of ‘nonfunctional’ cutting makes sense to you?”

“Yes, it does.”

Drossel, who decided to quit while ahead, thought Thorton had turned into a pretty fair prosecution witness.

The last defense witness was
Cliffe Harriman, a private investigator and retired FBI agent.

Harriman had been called to critique the physical lineup of September 1, 1988, at which James Driggers had picked out Roger Kibbe. Shown a picture of the lineup, Harriman said, “There is one individual designated as number two whose attire is sufficiently distinguishable from the other four that it tends to automatically direct your attention to that one individual to the exclusion of the others.”

Of course, number two was Roger Kibbe.

Harriman’s reasoning: All five men were wearing gray sweatshirts, but Kibbe’s looked the darkest.

On cross, Drossel asked if Harriman had been at the lineup.

“No, sir, I was not.”

“Have you seen the videotape of the lineup?”

“No, sir, I have not.”

“You are basing your opinion on a photograph of the lineup?”

“That’s correct.”

“Do you know if these shades of coloring are true or whether they may have to do with the film or lighting?”

“No, sir.”

When Harriman stepped down, Judge Finney asked if there would be any further witnesses.

“No further witnesses,” said
Kolpacoff.

“Defense rests.”

“G
OOD
morning, ladies and gentlemen,” Assistant D.A. Bob Drossel said to the jurors. “I thank you for your patience and attention during the course of this trial.

“In my
closing argument, I want to take a look at the law, particularly on murder, and then fit the facts of this case, the evidence, into the law to show you how defendant Roger
Kibbe is guilty of first-degree murder.”

Drossel began a detailed examination of the physical and circumstantial evidence in the
Darcie
Frackenpohl murder case, instructing jurors that one type of evidence had no greater weight than another.

He reminded the jurors it had been proven through fiber evidence that
Frackenpohl had been in
Kibbe’s car. He reminded them that the cordage found at the scene had been judged by microscopic examination to be identical in every measurable way to cordage found in Kibbe’s possession.

“Imagine the scale of justice,” he said. “The People have put evidence of guilt on one side of that scale, and it has come down pretty far beyond a reasonable doubt that Roger Kibbe unlawfully, willfully, deliberately, and with premeditation took Darcie Frackenpohl’s life.

“We have the
testimony of Faye Springer, who did the comparison work on the
trace evidence. The defense’s own criminalist didn’t have any problems with her methodology or procedures. No problems. Her findings? That the two fibers taken off that pink dress”—he pointed to Darcie’s dress, visible atop the exhibits—“were matched to the floor mat of Kibbe’s Hyundai.

“Then we had Skip Palenik. Again, the defense criminalist agreed that he was tops in his field. Skip’s separate findings were actually confirmation
of Faye, and then he went a step further with the fibers. He found them to be unique. They had the same
fungal spores. And one of the fibers recovered from Darcie’s dress had the red
paint from the spill on the rear floor mat. I ask you: How did her dress pick up that fiber if she wasn’t in Roger Kibbe’s car?”

Drossel reviewed the cordage evidence, too.

“It was proven that the cordage from all three locations had been in a similar environment at one time. Springer gave her opinion that the red paint could have gotten on the cordage when someone was spray-painting.”

As for the master parachute rigger’s testimony regarding cordage being marked at the factory when parachute canopies were being cut and sewn, Drossel said, “Does it really matter how those seven pieces of cordage from three locations got contaminated? The fact is that they did. Whether by some manufacturing process or by some overspraying at some other point in time. The fact is it’s still there.”

The prosecutor reminded the jurors of evidence of Kibbe’s black eye around the time of Frackenpohl’s disappearance, and the testimony he’d elicited from one of the pathologists that a black eye can show up minutes to hours after a blow, and last several days to two weeks or more.

“Kibbe gave at least two stories as to how he got that black eye,” Drossel said. “Why? We don’t know. Could the true version be that Darcie Frackenpohl was able to get a blow in? Maybe she was a feisty gal who wasn’t going to be submissive. Maybe she got a blow in with her fist, her elbow, her knee, or her foot. Maybe she wasn’t going to go willingly. The time period is right, and the circumstances are right.”

Drossel looked up from his notes, and moved a step or two closer to the jury.

“What about premeditation? This murder was considered and planned beforehand, based on the evidence. Doesn’t the crime scene say it all?

“Let’s make some reasonable interpretations here. Darcie’s nude body. Obviously, based on the evidence, there is some sexual motive. If you want to discount that evidence, it’s clear that he had hatred toward women. You can see in those exhibits. Darcie was gagged with her own
pantyhose. What’s the significance of that gagging, and the control and manipulation he had over her? Was he saying, ‘Don’t scream. Don’t scream. I won’t hurt you, cunt, bitch’? Was he playing with her? Was he taking the garrote, tightening it as he was walking down the road with her? Tightening it just a little more, ‘I won’t hurt you’? Was he playing with her? Did he receive some sexual arousal? Or did he just want to watch her die? Control and manipulation. Time to be with her. Play with her. Watch her. Tightening
it all the time. ‘Be good and I won’t hurt you.’ Loosening it if she’s good, tightening it when she struggles. Aren’t these reasonable interpretations?

“We know she died at the scene because there was fecal material on her buttocks, none on her clothing. Jim Streeter told us her clothes must have been taken off before she died, but we don’t really need to know that. We also don’t need to know whether the clothes cutting occurred before death or after. We just need to know that it happened.”

There was more to say, about the trace evidence, about the uncharged crimes that helped to show motive in the
Frackenpohl murder, about the items found in the crime kit, about the eyewitnesses, about the defense witnesses, about Kibbe’s automobiles. Drossel said it, then told the jury: “We’ve come full circle from the opening statement through the evidence to
closing argument. We started this trial with a bus tour. Traveling those roads of the San Joaquin and Sacramento areas, the Sierra foothills, the Tahoe basin. We did travel that roadway. The worst human behavior possible. The most repugnant behavior possible of a human being. Compelling evidence to show Roger Kibbe did it. Compelling evidence.

“Ladies and gentlemen, based on the totality of the circumstances, there’s one logical conclusion to be drawn and that is the defendant is guilty. Roger Kibbe is guilty of first-degree murder; the willful, intentional, deliberate, premeditated murder of Darcie
Frackenpohl.

“The People ask you to return a verdict of guilty of murder in the first degree.”

“I
T
’
S NOT
my intent to go through all of the evidence that counsel has just gone through,” said
Phil Kohn as he began the defense’s closing argument.

“The prosecutor this afternoon gave one of the finest charges to the jury I have ever seen or heard. It was also probably the most emotional charge to a jury that I have ever seen. We make no contest of the fact that these were terrible crimes. These were brutal crimes. It was murder. It was murder in the first degree.

“But the fact is that this is a circumstantial evidence case. The law says when you are using circumstantial evidence it is necessary for an inference to be proved beyond a reasonable doubt. So if you take those facts from other cases and you use them to try to convict my client of Darcie Frackenpohl’s murder, which is the only issue you are to decide, you must believe each one of these facts beyond a reasonable doubt, to a moral certainty. That doesn’t mean similar, doesn’t mean close, it means certainty.”

Kohn referred to Carmen Anselmi as “probably the saddest part of this
trial.” He shook his head. “The pain she is going through must be incredible. We all know that. But the facts are she couldn’t identify my client in a
photo lineup or a physical lineup. When she was taken on a tour of storage facilities and was as close to my client as I am to you she didn’t identify him. Then she comes to this courtroom under the pressure she’s under and makes an identification.