9. Prejudicial Effect

Jean grew up. So over the summer, when all three sisters, Heidi, Kirsten and Kim were going to be together at the ranch, I went out there to meet them and have a look at the trove of documents. We climbed into the hayloft and opened a box. It was full of letters the sisters had written to Fred. Heidi pulled one out. It was in her handwriting. Okay, so this is dated April eighteenth, nineteen eighty, or one weeks after he was arrested. Weeks after Dear Dad, how are you? I am fine.

By the way, I'm ten years old to sea. I had a fun time talking to you. I hope you have a happy, happy Easter. I miss you very very very much. Here's a joke. Knock knock, who's there? Boo? Hoo. Why are you crying? I wish you could come out of jail soon. You never did anything wrong. I love you. Where on your side? Love? Heidi? PS? Please right back, I love you. It started raining, one of those afternoons

summer storms you get in Colorado. Heidi pulled out another letter April sixteenth, nineteen eighty one, says, what have you been doing? We can see you Sunday. I love you very very much. You would never do anything so wrong. You're so nice to Mom and Doug. And then it says Muffett and Lady are not getting a long Lady, their beagle, who survived the journey to Bird Rock. She'd gone with the sisters to live with Fred's brother Ron and his wife Elizabeth, who had a Christmas tree farm

far away from Malibu. Yeah. I'm gonna flip that in after you are clearly innocent and the dogs are fighting. Eventually, Lady went to live with Verna's sister Julianne. That must have been heartbreaking to have Lady leave Kie and he Julie took her. But I remember when I pulled into our house and my aunt Elizabeth and I think Kim

were standing in the driveway. And it didn't look good and I was just like, oh no, and they told me lady died of cancer, and so that was just that was like our last link, you know, and I and that was really sad. And I also realized when when Robin Williams passed away. It hit me so hard because we would watch Mork and Mindy with my dad and it took a while to realize, like why so many people, but it was Robin Williams, Michael landon that because that all connected me to Malibu and my dad,

and I think that's when it hit me. I'm like, that's why it's so devastating, because it was just part of our happy times, you know. By now it was pouring. So July seventh, nineteen eighty one, Dear Dad, how are you. I am fine. Sorry, I have not been writing. I love you and miss you very very much. This coming Tuesday, we are going to San Diego. I hope you are out by then. And then it says who has been writing you? I love you and miss you, Love Heidi. Then it is your tops. Yeah, I hope you're out

by next Tuesday. I'm like, next Tuesday? How many tuesdays? I has it been a lot. I'm Dana Goodyear and this is Lost Hells episode nine. Prejudicial effect. Authorities believed that Fred Rayler had conceived the perfect crime, like something out of Hitchcock on a holiday weekend with so many people around, with his own parents on the sailboat nearby,

the next best thing to an alibi. He'd managed to kill Verna and Doug without leaving obvious marks, so that when the three of them were discovered in the frigid water, he'd appeared to be rescuing them. But how to prove it. To do that, the da stan Rodin had to look at every possible angle, stands to nations afterward, fanacity, you know, he was just like a bulldog with his teeth in it. Stan Rodin didn't respond to my request for an interview.

So this is Dempsey Billy, one of Roden's investigators. A lot of times stands say something, what you can find out about this? And I say, stand, you can't do that, no way, So I'd go do it, and sure enough you'd be right. We'd find whatever he was looking for. In a criminal case, the standard jury instructions are that the government must prove the defendant's guilt beyond a reasonable doubt,

but not to a scientific certainty. The case against Fred, the mysterious drownings of his wife and steps on the insurance policies, and in the background the story of another wife who'd also drowned inexplicably. It all looked bad but also potentially like bad luck. Maybe Fred was a Malibu job, pitiable, cursed. That's what his friends thought. Here's Mike Killeen. You have to ask yourself, is it possible for a human being

from day one to be stakementten? You know I use that term, but you know how it applies to various things. Is that possible? He'd turn left, he'd turn right, and things would go wrong. And it was all built up as as circumstance to create this character who really wasn't Fred. There was room for a healthy dose of doubt. Stan Rodin had to try to make his case empirically by presenting the jury with science, because the circumstances, all those

suspicious coincidences, might not be enough. But how could he do that when there was so little physical evidence. That's where doctor Thomas Nagucci, the long time weirdly famous Elle County Coroner, came in. Nagucci was the so called corner to the stars. He'd done Marilyn and RFK and Sharon Tate. He'd also been the coroner when Fred's first wife, Jean had died, and his office signed off on her death

as an accident. Now the Santa Barbaradier wanted Nagucci to help figure out what had caused those bruises discovered in the second autopsies, the ones on the back of Doug's head. He was a cracker jack forensic pathologist. He really knew his stuff. That's Duane Mosay, the criminalist. He worked alongside

Nagucci to recreate the last moments of Doug's life. Together, they designed a series of experiments centered on Fred's Orange Dory, the boat he'd been rowing in with Ferna and Doug, which he said had overturned in the open ocean by

bird rock. Nagucci was eccentric and controversial. Well, He'd walk around the Corner's office waving scalpel and telling people sooner or later, I'll get you on a table, or words to that effect, and people complained about that, so they removed him from his office as La County Corner and sent him to be a pathologist at the County USC Hospital, which is just east of downtown La and doctor Nagucci put a sign on his office door that said corner

in Exile. The experiments didn't take place in doctor Nagucci's lab, No, they happened at Nagucci's apartment building in Marina del Rey. The sheriff would haul down the dory, we'd do some work with it, and they'd haul it back when we were done. Their working theory was that Verna had been struck with an oar, but they didn't have the oars from Fred's dory. They were probably in the middle of the ocean somewhere, so they focused on Doug and the bruises on the back of his head, a linear bruise

and a circular bruise three centimeters apart. That pattern repeated twice. They took a Doug sized dummy with a Doug sized dummy head, and they bashed it on every surface they could think of. One hundred and two times they bashed the dummy head and they found a match. I tested the dory inside and out, from bow to stern. Nothing panned out except one place, and that particular place was the edge of the seat in the middle of the dory where the rower would sit. Stan Rodin liked it,

but Nagucci couldn't testify. He was in disgrace. So Stanley Roden and I had to sit down and figure out what I could testify too and what was out of bounds. Because I'm not a medical doctor, I could not express a medical opinion. And that's how Dwayne Mose criminalist, became stan Rodin's star witness in what would be the longest and most expensive trial in Santa Barbara history. One hundred and five days, four dozen witnesses, and one orange story.

The trial for the murders of Verna and Doug started on December fifteenth, nineteen eighty one, in Santa Barbara's majestic Spanish style courthouse. The courtroom was packed standing room. Fred's family was there, so was Verna's mother. They were supporting Fred. There were journalists and screenwriters and look you loose. The famous mystery writer Margaret Millar was a regular. She lived in Santa Barbara and had made her name writing chilling

tales of marital deceit. This plot line was right up her alley in California. For someone to be sentenced to death or life in prison without the possibility of parole. Their crime must meet certain criteria called special circumstances. In Fred's case, there were three alleged special circumstances. There was more than one victim that was special circumstance number one.

Special circumstances Numbers two and three were the motive of financial gain the insurance payouts from the freshly aanked policies on Verna and Doug. If Fred was convicted and any of the special circumstances were found to apply, he'd be eligible for the most severe sentence. And Stan Rowden, the district attorney, was hoping to send Fred to the gas chamber at San Quentin. Rowden wanted to try a spectacle involving rich people and insurance and made for TV and

that kind of thing. That's a pellet. Attorney Wendy Lasher she attended every day of Fred's trial taking notes because even before the trial started she was laying the groundwork for an appeal. I asked her what she remembered about Rodin Paul then at the time energetic, aggressive, pleasant on the surface, but kind of devious. I wouldn't quite go so far as to say, unscrupulous, but certainly pushing the

envelope in terms of what he could do. A definitely concerned about his reputation and making his way as an aggressive, leading prosecutor in the world, a little bit politicianlike. At the outset, the defense was feeling strong. Fred had been working out every day in jail, and the papers were full of admiring descriptions of his thick, curly hair and athletic physique. At the time of his arrest, he'd worn a full beard. His team didn't think that look would

fly in conservative Santa Barbara County. They thought it made him look resputeinish, like he was hiding something. He came to court with a clean shave. The concerns Fred had about being indicted for killing Verna's first husband and the navy diver who drowned while using Fred's scuba equipment were gone. The DA appeared to have dropped those lines of inquiry. All Fred's prior sketchy insurance history, it might as well

have disappeared too. The judge wasn't going to allow the prosecution to introduce it, and Fred's defense attorney had scored a significant victory on the matter. Of Gene. The judge had ruled to exclude all evidence regarding the death of Fred's first wife from the guilt phase of his trial. The judge said its prejudicial effect would far outweigh its probitive value. In other words, the story of Jean's death wouldn't prove Fred had killed Werna or dug, but it

would almost certainly persuade the jury that he had. The defense also made a motion to quash the results of the Santa Barbara autopsies. They'd been conducted in secret, and then the bodies had been cremated, so Fred's defense couldn't effectively counter their findings. Here's Wendy Lasher. What they found in the autopsies, or said that they found was like

looking at roshock tests. You know, you could see what you wanted in those autopsy results, but you had no opportunity to look and say, preserve evidence that you could later say, see if you look at it this way, it doesn't show any such thing. That motion was denied. The second autopsies would be allowed. In fact, Stan Rodin would call them the lynchpin of the case. Stan Roden spent months arguing motive that Fred was running out of money and that his lifestyle was demanding more and more cash.

Rodin argued Fred wanted freedom and unencumbered, newly flushed life in Malibu with houses and a sailboat and money to burn. Here's a pellet, attorney Wendy Lasher again, people like stories about rich people and rich people doing bad things. You know, this is mythology. If somebody killed got life insurance and killed their wife in a glamorous situation on a yacht

on a holiday weekend, Wow, that's a big deal. And look, we've got this highly technical it's about it because you know, we're such a hot shot prosecution that we can do this. They also had the thing about Fred had thirty thousand dollars in cash and a coffee canon is freezer, and they tried to make that out as you know, clearly he was going to kill these people and escape to Mexico with his cash and live on it, you know,

make a new life for himself. The DA called doctor de Witt Hunter to the stand in January of nineteen eighty two. Hunter was the Santa Barbara pathologist whose autopsy reports indicated trauma to Verna and Doug. The prosecution didn't present evidence about Fred using an oar to strike Verna's head because they had no ore. But Hunter did present a slide that he said showed a crush effect on Verna's scalp, a minor traumatic injury that had happened a minute to a minute and a half before her death.

He said the trauma to Doug had also not been lethal and occurred before Doug's death. In other words, Doug had hit his head or had his head hit before he drowned. The story was there, he said, in a single hair follicle. They had preserved the whole hair, the follicle and the hair itself. This is doctor Michael Boden, who for twenty five years was the chief forensic pathologist for the New York State Police. Fred's family asked him to review his case, and he says the single hair

theory was a misreading of the evidence. He testified that he could look at that hair under the microscope and tell that had been crushed by a blunt object one hair. But Boden says there was a very obvious and benign reason for the damage to Doug's hair, in order to reflect the scalp when it's a cut through the hair and pull up the hair and bruise the hair with rolling trying to lift the scalp tissue off the scowbones,

which causes blood trauma to the hair. Doctor Duncan, who did the first autopsies in Ventura County, says doctor Hunter's findings were a joke. Hunter was unqualified, unqualified to really interpret forensic autopsies, but this was an especially troubling re autopsy case. Eight days after death or thereabouts, seven days

after an initial autopsy. He was totally unqualified to interpret those findings, which changed dramatically, and what he presented the court never should have been allowed to be presented in court. I couldn't get in touch with Hunter. But Duncan contends that Hunter's lack of expertise sent the investigation down a treacherous path because, he says, forensic pathology is an art of exclusion, and Hunter saw a meaning where there was none.

The difference between a non trained pathologist and a forensic pathologist. As a forensic pathologist knows what not to interpret, an untrained pathologist interprets everything. Hunter's biggest error, according to Duncan, was that he failed to account for the passage of time. The bruises and markings that Hunter saw on January ninth, nineteen eighty one, that Duncan had not noticed six days earlier,

on January third. Duncan says that's because the bruises weren't there on January third, he didn't miss the signs of trauma. He says the trauma was post mortem, most likely a result of the first autopsies, accentuated by time as the blood Inverna and Doug's bodies settled and pulled. The marks were artifacts phantoms, not maliciously inflicted wounds. It's more like a photograph of a ghost that wasn't there and now

appears to be there, and it was nothing. Even the bruises on the back of Doug's head that I contend is from post mortem artifact. From the way bodies are stored. The bodies are laid on a head brace and they sit that way for a week. Is just describing artifacts as if they were significant throughout the autopsy. And once you're doing that, you know that's crazy from a forensic pathology point of view. So it's it's kind of clown

car pathology. According to Duncan, the second autopsies served their purpose. They produced evidence for the DA to use against Fred Railer. I contend it was orchestrated to be used as an agenda for the prosecution, and that's not as far fetched as it sounds, because in Santa Barbara County the Coroner's office is part of the Sheriff's department. Hunter was working for law enforcement Detectives Ray and Tuller were present for

the autopsies. They wanted clues, and he produced them. When it was time for Duane mos the criminalist, to testify about the dummy tests, the DA arranged for the orange dory, all one hundred and thirty eight pounds of it, to be delivered to the Santa Barbara Courthouse, and with that prop in place, Mosa demonstrated his experiments to spectacular effect.

One of the exhibits the court was one to one picture of the back of Douglas's head with a scalp pulled back and a transparent overlay of the pattern on the back of the test dummy, and I overlay the transparency from the test dummy on top of Douglas Johnson's head and the patterns match. Nothing was off. Mose had a dummy the same size and weight as Doug. So he acted out the murder as the prosecution imagined it a beating, then a drowning. Here's Fred's friend, Mike Keilleen.

It was very dramatic. He took the dummy and he slammed it against the boat and somehow, I think on his head or something, there was some carbon something that created a pattern. And that pattern was the same pattern they found on Doug's head after the accident. So they said, but it's really been called junk science by so many people. But what it did to the jury was because there was really nothing to counter it, it told him that's what happen. The visual was so powerful and that was

definitely the turning point. Then the jury actually got to participate in a forensic discovery of their own. On one side of the dory, there was a small bump in the fiberglass, which Mosai said corresponded to a little tear shape visible at one end of one of the linear bruises. Fred says it was ridiculous. They ended up having the whole jury parade by and touched the bump. Then it was Fred's turn to testify, and right before he did he got a piece of very good news. Two days

before Fred took the stand. He was acquitted on special Circumstance number three that he had killed Doug for financial gain because Doug's sister Kim and his stepsisters Kirsten and Heidee were the beneficiaries of his policy. The court found that Fred could not have killed him for the money. As for the policy on Verna, the insurance company paid it. It went into the Johnson Railer Trust, but only after Fred had removed himself as trustee. Bill Fairfield, Fred's friend

and lawyer, replaced him as trustee. Bill also testified in the trial. He wept on the witness stand, swearing the insurance had been his idea. Fred's testimony began on March eleventh, nineteen eighty one. Were a dark blue suit and he was calm. A newspaper report from the time says he only broke down when describing his realization that Verna might be dead. He says there was never any question whether he would take the stand. He had unshakable confidence in

his version of events. I said, the only way that they will ever you know, really understand the whole works as if I testify. He never doubted that he would be acquitted of murdering Verna and Doug because even though they basically, you know, cheated doing the second autopsy, in hiding that and all those things, the people that we had who testified basically showed that there was no foul,

there was no harm, there was no murder. You know, in all the legalise that there is about proof beyond a reasonable doubt into a moral certainty, that's basically DS. You know, you're trying to convince twelve people by hook or crook to vote a certain way. During his cross examination of Fred, Stan Rodin made sure the dory was brought back into the courtroom. It hung in front of the jury box, suspended from four ladders seven feet off

the ground. Rodin drilled down on all the things about Fred's story of the drowning that did not make sense. How could a Navy trained scuba diver, a water safety instructor forget all the basic rules. He failed to kick off his sneakers and pants, He swam away from the dory, the perfect flotation device. Why would he undertake the risky and exhausting swim to bird Rock supporting two drowning victims and a dog. Why was he dealing with the dog

at all when his wife and stepchild were dying. At this point, Rodin introduced new evidence People's Exhibit thirty one C A toy bear. He said, your honor, at this time I have an animal. It is certainly not a dog, but it has movable arms and legs, and this is as close as we can come it is a bear.

Then Rowdin asked Detective Ray to put on the float coat Fred had been wearing on January second, nineteen eighty one, and he placed the teddy bear on Detective Ray's shoulders and moved it around as Fred directed from the witness stand. It must have looked absurd, and that was exactly Stan Rowden's point. He didn't think Fred had swum with Lady the dog on his back. He didn't think Lady had climbed the sheer cliff on the north side of Bird Rock. He didn't even think Lady was still in the boat

when it flipped. He thought Fred had dumped her on the eastern end of bird Rock, where there's a nice, gentle ledge which she could have easily climbed up. Saving the dog was just one more aspect of his bogus hero story of vanity or a distraction. It was a fib and Rodin was sure it was a flaw in the lie Fred had been telling on autopilot since the day his wife and stepson died. Fred sat through the trial. You could say stoically, or you could say sullenly. Here's

Wendy Lasher. Fred was his big stoic guy, quiet and kind of dark and brooding looking, kind of dark hair, heavy eyebrows, and I think they really wanted to cultivate a dislike of him. During the trial, the judge instructed the jury in the distinction between direct and circumstantial evidence and told them that there had been no direct evidence of any act of the defendants that caused Verna and

Doug to drown. They were also told that when considering circumstantial evidence, if there were two reasonable interpretations, they had to give the defendant the benefit of the doubt. The jury deliberated for five days. This is Fred's friend Mike Kelleen. When the jury went away to make their decision, I think on day two they asked for information about the dory. They wanted to see the dory again. That dory made all the difference regardless of how they felt about Fred.

That demonstration with the dory and the dummy told him a story. Fred says he didn't see the verdict coming. I was literally stunned when the clerk of the court read the verdict. She had tears in her eyes when she read the verdict because I'm pretty sure she didn't think there was going to be a guilty verdict either. Fred was found guilty of two counts of first degree premeditated murder and special circumstances one and two more than

one victim, and killing Verna for financial gain. According to a newspaper report, Fred's mother gasped when she heard the verdict, and as the spectators were leaving the courtroom, she hissed gossip kills. Fred's defense team thought it was the testimony

of Duane Mosa, the criminalist, that tipped the scales. Appealing the trial verdict in nineteen eighty five, they'd even manage to get all three appellate judges to agree that Mosa's evidence did not follow reliable scientific procedure and should not have been admitted. But Mosa says, much as he would like to take credit for Fred's conviction, he really can't. Several months after the trial was over, Railer had been sentenced. I bumped into one of the members of the jury

and we chatted a little bit about the case. I wanted some feedback, so I asked him what he thought of my testimony, and he smiled and he said, oh, we didn't give that any thought. And he said the guy was lying. It was obvious to us, and we convicted him because he was a liar. In the penalty phase, Vernon's daughter Kim testified on Fred's behalf. So did Fred's daughter's Heidi and Kirsten. Fred's defense attorney asked them to conjure up happy memories to tell the jury in the

hope that it would help spare their father's life. In the hayloft in Colorado, Kim found a letter she'd written on the day she took the stand. She was twelve July seventh. Dere's Dad, today has been a long, hard day. We had fun at the hotel. Dad. I am sorry if I made it sort of hard for you today. I love you so very, very, very very very much

and I miss you. Love Kim, And I wondered then, if this the only time that we were in court was for yeah penalty face, and to tell our little special story or memory mine I talked about I had a white bunny named Snowball, and my dad had made a harness for my rabbit so I could take it for a walk in the backyard and so she'd be on a leash. Kirsten, who had just turned eight, told a story about Fred and Verna making out at the register at a Bob's. Big Boy Hottie was eleven, and

she doesn't remember what she said. I was so scared and like so dizzy. You know, it was just one of the scariest things ever, sitting in this big box with all these people staring at you and the weight of the world on your shoulders. Because I didn't know it was a penalty phase. I thought, if I just said the right thing, he is coming home. And we didn't find out it was years later. You know, of course, that would have been devastating if you found out that

it was the penalty phase. But I just was so nervous and worried that I would say the wrong thing and then he couldn't come home. There's one for me, you know, day, Dear Dad, I miss you very much. I'm tired, but I do not want to go to bed. Do you have to stay for your life? I miss you very very much. I know that you won't like to stay there. Love Kirsten. And then here's another one, Dear Fred, and then Dad in parentheses. I was crying when I heard the news. I miss you so very much,

and I hope you come home soon. Will you write us back if you can. We made chocolate chip cookies with Ann Elizabeth. See you soon, I hope. I am the youngest, but I love you just as much as the big kids. I need to go, even though I hate to love Kirston, I think you are the most wonderful dad in the world. I love you right back. I miss you. Come home soon. On the day Fred was arrested, April third, nineteen eighty one, he left Malibu forever.

But he wasn't the only one. I mean, we didn't get to say goodbye to our friends or our teachers or anything like. I mean, we were kids. So the way that they explained it to us was there's been a huge like misunderstanding and that we're gonna you know, we're hiring these really smart people and they're gonna help and we're gonna like sort it out. But that's what we just kept being told that it was a misunderstanding. And when our uncle picked us up, we never went

back to Malibu. The girls started new lives and didn't tell their new friends the story of Verna and Doug or that Fred was in prison for killing them, but they kept a secret vigil. Here's Kirsten. We weren't told like, Okay, this is your life now, like this is how it is and we're going forward like it was. It was always this. You know, we're going to straighten this out. We're going to bring him home. I mean, even after the conviction and the appeals. I mean, I have memories

of being at school. I'm like, I might go home today and my dad might be there, and I mean

I don't know which appeal it was. But one time, Heidi Stephen and I Stephen is our cousin that we grew up with, made confetti with a single whole punch like punch paper, made all this confetti and then literally practiced throwing it, picking it all up and doing there like welcome home, and then we would throw it on somebody walking through the door, and then we would pick all these tiny pieces of confetti up, put it back in the bag, and then somebody else's turned like literally

practicing his homecoming. We're so excited, and we use that analogy today. My husband will say, like if something like we're hoping for something, He's like, well, let's not make this a confetti incident. And it's it's true because we, like she said, we were so excited. I did, and I was thinking, oh my god, today's the day I'm gonna go home with my dad and my sisters and you know, get our dog back from Annie Julie and just be back together. And it was just disappointment after disappointment.

And I mean, I know Kirston is the sisters were waiting for their dad to come back and make everything okay again, and they're still waiting today for what they believe is justice, Fred's release. But there's someone else in this story who's waiting for justice too, and that person is Heidi and Kirsten's mother, Fred's first wife, Jean. Coming up on the season finale of Lost Hills, a detective visits Bird Rock. I'm looking at that and I see

all the rocks. I'm like, those are all tombstones. That's all death. That's how I look at it, like, I just this is a weird I got a creepy feeling. This whole place is not what I thought it would be. That's next in episode ten. Lifelines Lost Tails is written and reported by Me Dana Goodyear. It's created by me and Ben Adair and produced by Western Sound and Pushkin Industries. Subscribe to Pushkin Plus and you can hear the whole season add free and get early access to the final

two episodes. Find Pushkin Plus on the Lost Hills show page in Apple Podcasts, or at pushkin dot Fm.