Anatomy of Murder

A murder case has many layers: the victim, the crime, and the investigation. To truly understand it, you need to dissect each piece of a tragic puzzle. Join Anna-Sigga Nicolazzi and Scott Weinberger every Wednesday for an insider’s perspective, as they reveal to you the Anatomy of Murder.

Marion's Legacy - Part 2 (Marion Fye)

Marion's Legacy - Part 2 (Marion Fye)

Tue, 19 Apr 2022 07:00

Nothing is as it seems: A homicide victim spotted alive, an informant with ulterior motives, and a woman who was hundreds of miles away from the murder turns out to be a crucial witness.

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If you're looking for a new show unlike anything you've ever heard before, check out audio Chuck's latest series killed. Each episode of killed covers a story that you may have never read because it was killed before it got published. I'm Justine Harman, who some of you may know from my show OC swingers, and I'm here to bring these dead stories back to life binge killed right now to get the full story. Hi everyone, Ashley Flowers here and I have exciting news to share. My debut novel, all good people here is officially out now. Our fans are blowing up our social talking about it. You do not want to be left out and the worst thing that could happen is for someone else to spoil it for you because there are some wild twists in this book. If you love true crime content, mysteries, and a grown up Nancy Drew style detective work then I have a good feeling you won't be able to put this book down. So what are you waiting for? Grab your copy of all good people here now, wherever books are sold previously on anatomy of murder. Wow, this is amazing. I don't know if you've ever had these in DC before. A missing mother, she had five children. Early in the morning hours, they hear Marion say no, divine no, and they hear a single gunshot. A boyfriend with a dark past. He had a assault with a dangerous weapon conviction. He had a robbery conviction and children living in fear. Underneath that mattress was a large pool of blood. Homicide? You don't have the body. So what happened to the body? Or is it possible that police have it all wrong? No, wait a second. This is crazy. How could she have gotten this successfully paid claim? This is several days after the murder. There's five kids that this is killed that you can bring a little bit of closure to. I'm Scott Weinberger's, investigative journalist and former deputy sheriff. Milazi former New York City homicide prosecutor and host of investigation discoveries true conviction and this is anatomy of murder. Today's episode is a continuation from last week. To bring you up to speed, Marion Phi, a mother of five children, disappeared from her home in Washington DC right after Thanksgiving 2003. Police suspected that if she was missing and something sinister had happened, that that would fall on her boyfriend, Harold Divine Austin, that he would be the one who had something to do with it. His first story was that she had gone to his grandmothers in North Carolina and then started to tell stories. Oh no, she'd gone on a crack binge. She was in Dupont Circle. She called me from a payphone, called her own phone from a pay phone, which is completely illogical. According to statements from Mariano's Kids who heard gunshots in the house, they suspected divine shot and killed Marion on Friday, November 28th. Well, everything is pointing at divine detectives discover something that throws the investigation into question. She was seen well and alive days after they believed she disappeared. When we were digging into Marion Phi we discover, oh, she's been in a car accident because there's this insurance claim and we started tracking it down and and it looked like it was completely legit. They had Marion 5 license who had taken it? The adjuster said yeah, I met with her. I wrote out the check and I handed it to her and blah blah blah, and it all looked on paper completely legitimate. So what is going on? They hear this. It's like, wait, what? Is she alive? This development would appear to turn the tables on what they thought was to be a homicide investigation, but for me, I would be looking at this two ways. First, could it be completely wrong and Marion is the victim of a homicide? Or could the timeline of when she was murdered actually be incorrect? Meaning? Perhaps the murder occurred after this accident, but that really doesn't add up either. We started to realize and wait a second, something's not right here. So of course they investigate it. And it turned out that the Marian 5, the person that the claims adjuster saw who verified that that's who it was through her driver's license, wasn't Marian Phi at all, but an impostor. It all looked on paper, completely legitimate until we started digging in, and then we found the girl who was playing the role of Marian Phi and and then when we found the young lady, about 19 or 20 years old, who told us what had happened, she confessed pretty readily. Like her role was, which was to pretend to be a 36 year old woman, she did it well enough to fool him and get the payment. Here's the real story. What actually happened regarding that car accident? Well, that is honestly one of the most interesting parts of this entire case. Just days after the murder, Devine is behind the wheel of Marion's car, which was rear-ended at a red light by a woman, totally her fault. Divine gets out to look at the damage, they start talking. Divine puts on his fairly well known charm, and this happenstance meaning turns into a brand new romantic relationship. Because at that point, this is now a few days after the murder. And of course, divine has an opening for a girlfriend, and so the two of them become. A couple very quickly. Now in last week's episode we talked about how soon after marrying Disappearance, divine had a new girlfriend who actually helped with getting Marion's children into their new home, while this woman is now that same girlfriend. He actually ends up moving in with her. She buys him a truck. And now this new girlfriend actually becomes his partner in crime. While she did not know anything about the murder, she basically assist him in doing an insurance fraud because once divine got in the accident with Marion Feiss car, he decides, well, I can make some money off this because I'm going to get the insurance money for this person rear ending me where it's totally her fault. But of course he can't collect the money unless he's marrying Phi who's the one who owns the car. So, Long story short, he ends up getting a girl from the neighborhood to pretend to be Marian 5 and ends up getting like a $400.00 check that he ends up cashing. I think this shows a clear pattern that divines actions are brazen, but also chameleon. Like you know, on the outside of good guy he appears to be someone you can trust, but underneath his intentions are just the opposite and he will continue the ruse until it no longer suits him. This is brilliant. He has made it appear as if Marian Phi was still alive after, you know, she's already been murdered. You know, I heard this story. I really had to think to myself, like, is this guy really a mastermind who's thinking everything out? As far as, you know, if he did something to Marian that now he has this car accident and now all of a sudden has this impostor pretend to be Marian. So maybe it's not even easy to prove that that she's no longer alive. Or is he just an opportunist? And I really come out that he is more of an opportunist who really is going to seize every opportunity that he sees to help himself and to how to figure out his way. Around it as he goes. So by now the Marian is still alive. Theory has been basically debunked. Investigators would go back to the theory that the blood on the mattress is their crime scene and see if science could put this case back in gear. We're working the DNA angle to figure out, OK, we think we got this mattress, got blood on it. We knew it was blood. They're basically back where they started, which is that everything in their intuition is telling them that Marian is never coming back because she's been killed. And if she's been killed, their prime suspect, they're real. Only person of interest is going to be the boyfriend, divine Austin. So at this point, Devine Austin is in jail. He's not under arrest for Marion's case, but he is in prison because of a pending unrelated armed robbery. It's not unusual for someone who's incarcerated to talk about their crime. Or even brag about it. Why would they do that? Well, there are several reasons. One of them is they want creds. Creds in jail. They want people to leave them alone. They want to let people believe that they're really tough, even to the point where they may have killed somebody. He fancied himself of making himself into a big shot in front of other people. So I think there was an element of, you know, braggadocio about him and that opened up a whole new investigation because he then started talking to a jailhouse informant who turned around and gave us a wealth of information about divine. Now, we have both encountered jailhouse informants in our careers, and you're always interested to hear what they have to say, but understand it's all about what's in it for them. What are they looking to do for themselves, and are they willing to just say anything to try to help themselves while they're now sitting in jail? And for me, it's always been about quickly judging the value of what it brings. The devil is in the details. Have they told something to someone that is not public knowledge about details of how the crime? Carried out a piece of evidence perhaps only known to the killer, or even further than that, supported by forensics. And they can never be central to your case. And now, while I have used them, it's few and far between. But that means you really have to vet everything that they're saying. That's when Intel like this could be invaluable. So the informant tells federal prosecutors that divine Austin bragged to him about a murder that he claimed he had committed, and it seems to federal prosecutors that he's talking about the murder of Marion. Why? He talks about how he and another guy killed this woman in a house when there's a bunch of kids in the house and then they took the body out and they throw it in the Baltimore Lake. And to those of you who are not driving, you can go ahead and Google right now. Baltimore Lake, by the way, you'll notice it is nowhere near Baltimore. It's in California. For those of you who don't live here, there is no Baltimore Lake. There's a harbor there, but there's no lake. So already it doesn't really seem to add. But there's another side of it too, because some mistakes I've looked at sometimes as the ring of truth. Because if they're getting all their information from, say, a newspaper because the case has been reported, then you almost expect them to get everything right. You know from A-Z because they've read it, the decision is made to have the informant go back and try to verify the details, and it's how they want to proceed, which will show you how being creative and thinking outside of the box in this line of work may make all the difference. In the world, and here's why. We tell the informant, go back and talk to divine again and tell him your lawyer is down for this. Your lawyer thinks this is a good idea. This will help you out, inform it on your cases, and it'll help you get out of prison more quickly. But in order to do that, Devine has to speak to the informants attorneys investigator, because that's the only way we can get the story down. Devine is shipped back to DC for a sit down with the investigator who was working for the informants attorney. But get this, that attorney investigator is actually an undercover homicide detective. So divine now tells a completely different story about the Marian Phi murder. Some of the details of the same, some are different. Doesn't say that he did it, but points says another person did it. It doesn't make sense at all. Because remember, let's go back to what the children told investigators that they heard their mom saying no divine. No, not no, Charles, no, not no frank, no, no divine, no. So right there. It doesn't hold water, but investigators need to figure it out. Better than that, he said. Now this other person, who I will call Darrell, he said Darrell was the murderer and Darrell committed the murder and Darrell disposed of the body. Well, it turns out Darrell's a real person. The twists in this story are clearly not over. Could it be possible that divine Austin is giving at least some partial truth? So maybe this person, for all we know, not only existed, but maybe as connected as divine and maybe did help him with some of the aftermath, and now he's just trying to place culpability on him for it all. Well, it turns out Daryl's DC businessman, outstanding background. He went to Ivy League schools. He was a legit, you know, landlord. And he was someone that divine knew. He had hired him a handful of times, mostly out of pity, to do some work in some apartments that he owned. This still sounded like an unlikely suspect, but showing a definite connection between Darrell and Devine Austin, their phone records, that would confirm more information. And that's something police really had to. Explore further, and when they dig into the phone records, it actually shows that these two had in fact communicated. So yeah, maybe this quote UN quote Darrell did play a role in Marion's murder, but investigators will soon discover the truth about Darrell and they'll uncover that there's more to that jailhouse informant that they didn't know. During a taped undercover operation by investigators looking into the disappearance of Marion Phi, her former boyfriend Devine Austin admitted that she was dead. But someone else named Darrell actually killed her. And when investigators looked at the phone records between Divine Austin and Darrell, it does show that the two communicated, but not during the time that Marian went missing. And based on that, it didn't seem likely that Darrell had anything to do with Marion's disappearance, but it opened up this kind of complete. Goose chase that we had to track this all down because we knew if we were able to get to trial, this story was going to come out and we were going to have to show a jury, hey, this is not the guy who did it. Here's who this person is. Not only was divine Austin lying about Darrell, that was disproven as complete nonsense by investigators, but that jailhouse informant who had led investigators down this rabbit hole in the 1st place, they realized that he was not being truthful either. As it turns out, this informant. Is actually another one of divine Austin's puppets where he can pull the string. And that this informant coming forward was an idea that Austin had concocted. And divine basically told this guy, hey, look, I'm screwed. I got this parole hit, I got this armed robbery. I never getting out of prison. So if I agree to tell you about my crimes, you can then go to the police, you can inform on me, and then you'll get out, because you'll get a break on your charges. And all I ask is, when you get out, can you put some money in my canteen, which has to be one of the stupidest? Plans I've ever heard of. This is yet another thing that when you look below the surface, it just, it makes no sense. I mean, it's pretty much a ridiculous plan. Well, one, are you going to trust this person that you've now befriended in prison and you haven't known for that long too? Why would he do that? Once he's out? What recourse would you have? But also, you know, divine Austin is smart enough to tell these stories in a way that when you look very closely that they're not going to come back at him too hard. So if you can't prove the crime against him, that is it really ever even going to get this? Informant out. It just doesn't make sense when you look too closely at all. At least to me. What do you think, Scott? Well, let me say this. I think in divine Austin's mind, this may actually work. Investigators all along have been a few steps behind him, but perhaps that has been the issue and they really need to catch up. Could also work out Scott. Another way is that if it's enough for investigators to buy it and they let this guy out, well, when they actually go through with now a prosecution of divine Austin for the homicide. Well then the jig is up, because now all of a sudden they find out that this is all ridiculous story and they can never prove the case against him. So in his mind, maybe it's win, win by getting the money and then win win because they can never prove the case against him and it's all awash in the end. Investigators develop a new strategy, shake it up. The plan is to once again interview Divine Austin, but also bring somebody into the room he may recognize. Our detective who had played the undercover role of being our informants investigator, we actually brought him into the room and said, hey, do you Remember Me? To see if divine would react to that and make it very clear that this guy was in fact a homicide detective and divine pretended he didn't know who he was, didn't know what he was talking about. And then very soon after that, divine clammed up and invoked his Miranda rights. At that point we were kind of out of luck. He was not going to talk to us and we decided at that point to go ahead and arrest him. Now that divine Austin has invoked his Miranda rights, his right to remain silent while now that's pretty much a game changer because now police and law enforcement can't speak to him, Tad was still facing many challenges. They did have Marion's blood, but that's not saying a crime had occurred and it does not also point the finger at Divine Austin. They have no body and we've talked about this before, how challenging that is to prove. All he has so far is solid information from the kids. To me, the biggest challenge was, were the kids going to be believed? Because if you believe the kids are just making up some fantastic story, that's my case. So at some point they decide it's time to go to the grand jury. The good thing was they were internally consistent to what each of them said, and we'd put them in the grand jury. So we had that to, you know, impeach them if necessary. In DC, in many jurisdictions, if someone says, oh, I didn't say that in the jury, even though you have the transcript that says they said that you can use that not only to impeach them, that is to show them that they're saying something different than they said before, but it actually comes in as substantive evidence. Part of the reason I love this work is that you learn something new every day, in every case. And this one is no different because, you know, as tad points out in the federal system, different from the state system, once someone has been in the grand jury, if you can't produce that person or if they're unavailable for some reason to testify at court, you can actually just use their grand jury testimony. So again, if something happens with the kids and they're unavailable, he now has that testimony to use as evidence in chief at trial, and that is a. Huge, huge difference between the state system when we can only use it to impeach, and without getting too into the weeds there, that is a big plus. Why, of course you put in all the evidence you can at that stage and then decide what you have and what to use later. It's a powerful tool, which is why we so eagerly put everybody in the grand jury. And I was once told by a colleague of mine is a super, super experienced homicide prosecutor that you can over try a case by putting on too many witnesses and too much evidence. You can never over grand jury a case. There's always someone else you can put in. Once divine Austin invoked his Miranda rights, police are not allowed to continue the questioning. Except if they reinitiate the conversation. If divine ask for information that opens the door and starts the conversation, everything changes and police can have an open dialogue with them and that conversation is all admissible in court. So we were playing very close to the legal line. As we made clear later, we decided, I bet we can get him to reinitiate. So when we arrested him, he immediately said, what am I being arrested for? And we told them and he had a lot of questions. He's a smart guy. He's not a dummy. And he had a lot of questions. And we said, hey, man, we can't talk to you because you invoked your Miranda rights, so we can't talk to you. And he kind of stewed on it and stewed on it. And then he said, can I get a copy of the arrest warrant? And we said, sure, we can give you that. So they gave Devine Austin the warrant and the affidavit, which was super detailed. Was very factual. Had the informant in there, had what the kids had said, you know, all their identities disguised, but he knew who they were. And he did want to look through that, and they gave them the opportunity to have a conversation with them. And we got that all recorded when we set him up in the interrogation room to do the paperwork to process his arrest. And we made it very clear on tape. Hey, remember in the car? You asked for the warrant, so we gave it to him. Well, when he read the warrant, he could see his hands are scratching his head. He's stressed. He's standing up. He keeps reading it, reading it. What you're about to hear is the real audio interview between Detective Chris Kaufman, AKA Rhino, and Devine Austin. Like certainly some police interviews. The quality here isn't great. Ultimately, he says to the detective. Rhino, can we talk about this? To be truthful with you, I really don't feel comfortable talking to you about this. You know, unless we with that whole thing again. You said you wanted to talk to me. OK, because you said I want don't want to talk to you without a lawyer present. I mean I I'll talk to you about it, but you gotta. I got to know that you understand what the deal is. OK? But and like I said, I I really depends with you. That's why I took your card, because it's something to think on. I'm really like when after reading this I'm like, whoa. That you are. Alright, well. But ultimately, he ends up waiving his Miranda. On your knee right there for me, would you? Using the letter of the law to get to the truth, knowing how important this interview will be, and perhaps it may be the last time that divine Austin is willing to talk to them. Preparation is super important and add that divine Austin knows the system and has during this entire investigation worked to manipulate it. And make no promises about what's going to happen in this case. I've never made you a promise. I've never lied to you. I've never said one thing to you that wasn't straight. Now I'm going to tell you what. You tell me what happened in that house that night, you tell me where she's at, and I guarantee I I put my everything I got on. That I will go to the US Attorney's office. And we roll the dice because there's five kids, three or four brothers and sisters and one other lady that this is killing OK that you can bring a little bit of a little bit of closure to and shows that you're not some hard cold blooded killer. So for investigators, could this be the chance when they finally now get that piece of evidence against them that they need to push them over the finish line? Or is it going to be yet another time that divine Austin is going to ultimately give them the runaround? That girl needs to know what happened to her mom. You know what she did. Bought a picture of her mom. Leaving the front porch. You know what did, man? Cry when that girl left the office. I've been a homicide detective going on 12 years. Me and my partner picked up. I can't even count the amount of dudes. Off the street and put handcuffs on Brown in here. Talk to him, this case with me. You know, Kaufman, AKA Rhino, really shows his personal side too, when he talks about how you know that this case actually messes with him. Because I don't think that's a farce just to get this guy to talk. I think that's real because it is exposing the human side of doing this terrible, dark, dark work, that these are the things that keep you motivated. And just like I saw that as being genuine, I think that's certainly divine. Austin read it that way too. What happens? Oh. Really good, right? She grabbed the gun and pulled it on him. OK, then what? She tried to take the gun from you. You tried to take it from her, OK? And it went off. You know now and yet another version of what happened to Marian Phi. He admits that he is the one that caused her death, but he basically goes with. But it was an accident. Divine Austin is clearly setting up a case for self-defense that makes absolutely no sense at all. That the woman who's saying no divine know that her children here a whole floor away now somehow grabs that gun and it goes off accidentally causing her death. To me. It's yet another moment of now he's like, OK, you've got me. They know it's me. But. How can I still try to get under? And he also knows investigators don't have much forensic evidence from the crime scene beside just blood, no murder weapon and no body. So, hey, why not just blame it on Marian? But we still haven't answered the question of what happened to Marion's body. How did he even get it out of the house? Because remember, there are children in that house the entire time. How did you get around the house? He turned around. I grab my legs. When did you do this? School, OK. And at some point it comes out that the next day the kids left the house and went to school. And to me, that's what makes sense as the perfect time to figure out how to get her body out of the house. Did you wrap the body up? Flat. Trash bags. Would you all do that? Whose car? He actually says that his new girlfriend, she helps him tote the bag on the body out of the house. The new girlfriend angle doesn't make sense because he hadn't even met her yet because that car accident happened a few days later. So he hadn't even met her at the time that he now claims that she is helping him move Marion's dead body out of the house. Whether you believe him or not, divine Austin is laying it all out. And then for the first time, divine answers the mystery. That has stumped detectives since day one. Where she's at? He's about to tell them. Where is Marion? What happened? So divine Austin has now confessed that he caused Miriam 5 death, albeit claiming it was an accident. But now he's about to reveal what he did with her body. Early that morning, he ends up putting her into some large black trash bags and that he throws it in the dumpster behind spin Chili Bowl. Ben's Chili Bowl is an iconic neighborhood restaurant in DC that's been around for more than 60 years. Celebrities like Kevin Hart, Bruno Mars and even the 44th president of the United States, Barack Obama has been there and is known to enjoy it. You know, Scott, I have to say that I I've been to Ben's chili bowl and I remember visiting a friend in DC years ago and being a bit of a foodie. This was the place that stood out that I had to get there because it was just like everyone when they go to DC, you have to go to that place and it I have to say it was pretty good. Knowing you the way I do, I could totally see you there and then I could see you going back for seconds for sure, 100%. And I always prefer the the neighborhood spot as opposed to the fancy spot. And that's exactly what Ben's chili bowl is. But now the question is, how plausible is that this is where divine Austin would choose to get rid of Marion's body. Does that make sense? And does that work within the timeline? The restaurants on U Street Northwest while Marion was living on V St Northeast? Now I'm looking at a map of DC showing. And chili bowls locations. So the map is showing me two different routes, but one is 10 minutes and the other ones even quicker, 8 minutes. So it is definitely feasible in the timeline that divine Austin could take her body and bring it to this location and put it in dumpster. It's certainly blocks and blocks away. And when you have this large garbage bag that we know is the size of a human being, you're not just walking it over there. She would have had to get it into his car and get it over to there and then. Figure out that no one's around and no one's emptying their own trash, but I think on its face it wasn't a bad plan as far as a place that was going to regularly have that dumpster picked up and taken to the landfill. Benz does a super high volume of business and they're constantly tossing out black trash bags. And he knows another black trash bag and there's not going to draw anybody's attention and it certainly didn't. We talked to the workers and everything and they said, you know, look, we we grab a black trash bag, we toss it in there, they they probably come, you know, several times a week to empty out the dumpster. But in the end, what we really still don't know is it's just another form of misdirection by divine Austin and all that is swirling through investigators mind. But their primary goal has always been to try to find Marian Phi. So on the off chance that he's telling the truth, they now have a location and a direction. And maybe she's in that landfill. Of course, this is now almost two years later. We went to the landfill to look to see if we could find anything. So when they start to that landfill, they found trash. Two years of trash from one restaurant brought to a landfill, which likely receives hundreds of tons from locations all over the city. During that very same time period, there was more pounds of garbage than anyone could count. And so is she still there? Was she still there? Who knows. Profoundly thing we didn't do a huge search of the land. Focus was very difficult. The records weren't fantastic about where individual things had been dropped. You know, we've heard this before on the podcast, finding a needle in a stack of needles. I mean that's what this is. Think about the amount of trash that is there in over a two year. Is it even realistic to be able to find the body? They try, but to no avail. And you know, we've heard about these cases before that bodies have been found in the landfills. That really comes down to that sheer stroke of luck that just sometimes you get. But they didn't get it here. The fact that Marion's body had not been recovered meant only one thing to move forward with the prosecution, TAD would proceed with a nobody prosecution of divine Austin at that time. Nationally nobody cases were rare and the time period factors in a lot into why they weren't option prosecuted. It was back at a time that a person's digital footprint was not so easily traced. While there were cell phones at the time, there weren't smartphones. You didn't have surveillance footage on every corner. Everything wasn't done via the Internet, where it was tracked every which way that you can find. So back then, it was much harder to use this lack, as we would today, of a person's digital footprint to prove that he or she was dead. You know, we're now in 2005, so we're getting on close to a year and a half, almost two years. No one's heard of her. She left behind her pocketbook, her keys, her credit card or wallet, her cell phone, all of these very personal items. Also led people to say, wait a second, he wouldn't go off on a Bender, she wouldn't go off on her own without these items. That just doesn't make sense. Her accounts were never touched. She was receiving Social Security disability for one of her children, so she was getting a regular automatic payment in her bank account, never touched after November, whereas before it was very clear she was regularly taking money out of the account. And so it was the combination of all these things and really I think the children, this informant story come forward, all of that. There were enough pieces there that we felt like this is really true. This is what happened. The investigation wasn't over for Tad before they indicted Devine Austin. Ted had a list of things to do. I'm a real list maker when it comes to trials and what needs to be done on my investigations and I was famous for giving my detectives these long *** to do lists. That of course they had to do while I sat in my office and waited for them to bring me witnesses. I heard later that some detectives called me Tad to do, probably not in a complimentary way. As soon as he said he did his To Do List I had to laugh because as you know Scott I'm also a big To Do List person. If it's not written on paper it's I'm not gonna remember to do it. I'm looking at copies of two of Tag's To Do List. I just want to tell you guys what I'm reading off the top of each one. The first one says dear Detective Rhinoceros which was we know rhinos full nickname. And the second one you know when I read it all I can think about and I'm probably dating myself here is Chandler from friends you know because the title here is it says the rhino could I be any slacker and you could just picture. Chandler with his arms up as he gives the line. One of the items on his To Do List was to reach out to a woman from Divine Austin's past. I knew she had a relationship with Devine. I knew she had a child in common. Investigators already knew that divine had spent time in North Carolina. He had been accused and charged with robbery crimes in that state. What they were surprised to learn was that he actually fathered a child with a woman that he had met there. They had only dated for about 3 weeks. She got pregnant, but as it turns out, divine Austin. Had not really been involved in their lives since she'd been in New York the whole time. So I don't think she knew anything, but I thought, let's let's call her up. What would be the reason to contact her and see how do you see that? Anyone that your suspect has contact with, you never know. You know, people talk at times, maybe because of their relationship of trust, maybe they still have a good, friendly relationship. It's certainly worth the effort of making that phone call and asking. So I called her on the phone and I introduced myself and I say, hey. Tad, the bias. I'm a homicide prosecutor in DC, and I'm looking into a a murder case involving, I think, the father of your child, Harold Austin, AKA Divine. The assumption was she wouldn't know much, but as it turns out, she knew everything. Literally the first thing the woman says to me is, oh, did he kill that woman? They said, excuse me. And she says, did he kill that woman? He told me he killed that woman. Did that really happen? So they interviewed divine Austin's ex-girlfriend, who's now living in New York, and they end up with a wealth of information. And she says, did he kill that woman? He told me he killed that woman. Did that really happen? Well, I immediately put the phone on speakerphone because Kaufman sitting in my office and I said, could you repeat what you just told me? So this woman proceeds to tell us the following story. She is living in New York with her daughter, and she would occasionally be in touch with him. The daughter had actually stayed with him at some time during the summer of 2003 and had oddly met Marian, 5. And so she says one day divine calls her and says, hey, you need to talk to my woman and tell her that I go hard. Define Austin calls his ex and gets Marion on the phone with the X to talk together. And she's not listening to me and I want you to talk to her to tell her I'm the real deal, Devine says. I have a gun, and I'm showing her my gun just to show her how hard I am. And so you might say, you know, who would do this? Like, who would be bragging about having a gun and tell her how tough I am. And. But it's exactly what a guy like Divine Austin might be expected to do. You know, he prides himself on his reputation, you know, with Scott termed it earlier, his St cred and wanting to show these women that he thinks he's impressing them. And maybe he is to a degree, you know, there are different types of people that are attractive to other people and he is trying to show her like Juan. I'm a tough guy and two trying to impress her by talking to other woman on the phone. This showing the gun incident is just days before she disappeared and the gun just may have been the murder weapon. Divine hands the phone to who we believe is Marion Phi, and Marian Phi starts talking to our witness and says, yeah, I'm dating Harold and he's such a great guy. I really love him and our witnesses like, girl, this dude is crazy. You need to leave. Do not stay with him. He's nuts. And they hang up. This is all corroborated by the cell phone records. I mean, obviously the ex-girlfriend here was trying to do what she can do to help and warn Marian. And there's still more to what the ex-girlfriend had to say, because two days later, which was shortly after Thanksgiving, divine Austin called his ex again. That same time frame after Thanksgiving, divine calls were again and says, hey, you're not going to believe it, I just shot this. She wasn't listening to me. I shot her and she's dead on her bed, the woman, our witness, says. You're ridiculous and never talks to him again after that. And that's really it. It's not a myth. When you say that killers often tell others about what they've done based on his past behavior. I would not put it past him. Remember when he came up with that crazy plan of telling his cellmate he killed Marion, hoping the cellmate would use that information and then put money in the Vine Austin's commissary? Nothing surprises me about the decisions that he makes, but here he's not crying on the phone regretting what he'd done. It's more just, whoa, I killed her. And so there clearly is some level of trust with this ex-girlfriend because they share this child together. And so whether it's excitement or fear or bragging or some combination of the three, something causes him to pick up that phone and blurt it out. She tells us this story. It's all completely corroborated by the times of the phone calls, the length of the calls, the timing, everything. She eventually comes down here and testifies into the grand jury as to this story and we believe that's exactly what happened is after he killed her, he called this woman and told her the whole story and saying. And as we move towards trial, let's talk about what Tad did have instead of what he didn't. First, he had multiple statements with family members who heard the struggle and the gunshot the night that Marion was murdered. And they could easily the family members placed him in the room moments before it happened. Who else could it have been next? Confirming that something happened to her was as easy as it could be, because the amount of blood that had pooled underneath that mattress, no one could have survived that much of a blood loss and the damaging. Payments he made to his ex I killed her, which was backed up by the location of the evidence, the blood evidence. And yes, it's a no body case, but I'd say it's a very strong nobody case. This was my last homicide trial. I tried 20 homicides total. This was in some ways actually one of the strongest cases I had, even though there was no body. But with every case, you just don't know, and there are challenges, and the obvious one is this. There's no body. So he has to conclusively prove that Marian Phi is dead. And we actually talked about that in my opening. We said this is a no body case because he thought nobody would care about her. He really did. And he was almost right. If the Peaches hadn't come forward, nobody would have cared about it. She would have been a missing person. We never would have got the mattress. We would have had an almost impossible time to prove it. On top of which, the main proof of her dying that night in the home relied on the testimony of five traumatized children. The believability of those kids, those children, was key. In addition to this uphill battle, a dramatic moment was unfolding in this courtroom. So our judge, who was pretty impatient, was like Mr Dobias, call your next witness. And so I go out in the waiting room. One of Tad's witnesses, divines ex, was in the waiting room, but when it was time to take the stand, she was nowhere to be found. And I'm like, oh, so I call her on her phone and I'm like, where are you? I need you to come testify, like, get right back here. And she's like, oh, I'm at the Washington Monument. It's beautiful out here. And I'm like, Oh my God, you kidding me? So we had descended Detective to go hustle to the Washington Monument. You know her first time in DC practically. And go pick her up and bring her here from sightseeing to bring her here for her murder trial of her father, of her daughter. When I heard that, it was just the Ouch been there, and it is. Never fun once you're scrambling to explain it to the judge, but with me, I've had it. The person was never sightseeing off looking at the sites of New York City. I've had it they just wanted to leave because they were scared or they just took the opportunity to take off. And then it's a much different beast, if you will, that you have to hopefully convince them to come back and take the stand. He was a phenomenal witness. The jury loved her. I mean, they were just like, couldn't believe her story, but she told it in such a credible way and backed up by the cell phone records and you cannot make this stuff up that that was just one of the last things on my To Do List, called her out of the blue, and that's the first thing she said. In the end, the jury found Harold Devine Austin guilty and he was sentenced to 42 years in prison. I was very proud of this. I was very excited to have had a, you know, nobody murder conviction. It was only the second one in the history of DC. While justice was served in that courtroom, there's still a sadness that looms over this case because not all the questions, the most important question has never been answered, and that is where is Marion Feis body? And that became abundantly clear during divine Austin's sentencing. You know, there's an article that's written in the Washington Post, and you can see if you look on our website, it's listed there, too. And it talks about Mariano's daughter talking at the sentencing and at the first question that she asked. And she is termed as polite and almost pleading is she looks at Divine Austin says, can you tell us where her body is? You stop right there because that really says it all. And the judge too, even turned to him before he sentenced him and said it's not too late to do something right and let these children, this family, know where their mother's body is, what you did with her after her death. And it just really speaks about this sadness and more than a sadness. Just the additional pain and almost torture, if you will, of the unknowing and not being able to have the actual body of your loved one till later rest. You know, I worked with so many homicide, the victim family, you become very close to them and you think, how horrible is it to not even know if for sure that person, you know, died? And for me personally, the last couple of years, my wife died after a very long illness in 2020. And it made me realize even more so that, you know, we were able to have a funeral, we were able to honor her. And for those people who don't, it just made me that much more sympathetic of how terrible is that. That you're so horrible you're not only killed their loved one, but you made it so they never get any closure. There is a story that Tad talked about during our interview with him. That was a unique moment that he shared with Mary and then 11 year old daughter. I recently repeated that story to my own family and you'll see why. Something that always stuck with me. We were on the elevator in my office going to the grand jury, and she was writing something on a card and I said, oh, what are you writing? And she said, oh, I'm writing a note to my mommy. And I just about lost because I didn't used to be a real emotional person. I was kind of a, you know, the classic Harden prosecutor. And that really just choked me up. It is just what that little girl is doing that really tells you everything about the incredible pain and destruction that murder can cause. I mean, this little girl, this connection. She must have missed her mom so much. That she's still writing her a letter as a way of connecting to her and maybe hope upon hope that she's still somewhere out there and going to come back. And that was really difficult and always stuck with me at this poor girl being raised without her mother is just awful because of what this guy did. What happened to Marian and what happened to her kids is horrible. It's horrific. We could say so many things about it. But there is a bright side of this case. It has opened the door for Tad and people like him to proceed with these nobody investigations and these nobody prosecutions and get nobody convictions. When I was looking at my case, trying to figure out that whole piece of how do you prove a nobody murder? And are there any other cases in DC? And I started looking across the country for a case and I just thought, wow, this is really fascinating and I like to keep track of things. And I thought, oh, wouldn't it be cool to keep track of every nobody murder case that went to trial because there's no collection of this. Nobody has looked at all these cases, and I thought it'd be kind of cool to put up a little website. He keeps a database that right now is up to over 500 no body cases in the United States on his website, And so that's actually why I became the no body guy, because when I was at DOJ to put up a website, do all that, had to jump through a bunch of bureaucratic hoops. And I didn't feel like doing that. So I just did it anonymously as the nobody guy. And then when I left the department, I ended up coming out and saying who I was. And it just kind of exploded because I got so many questions from police and prosecutors about the cases. I got so many questions from the press that I ended up creating a class. He gives lectures, he teaches classes and he trains others throughout the country in this field. Just last night I was on the phone for about an hour with a detective from Montana on a case he's working out there that I did a whole write up on over the course of a year, and I'm getting another case from Alabama. So I consult with them, help them. I'm still kind of tapped to do because I sit here and give them a list of things to do and don't do any of the investigating myself. Since that conviction, Tad Tobias has actually become a resource for other prosecutors and investigators handling no body cases. You know, I think back to my days in the DA's office, and a colleague of mine was actually handling a no body case. And I'll never forget the book on her desk, the textbook that she said she had to read to understand exactly how best to proceed with this case. And it was Tad's book that he had written. I went to trial in January 2006 and then really dove into the nobody world after that. And one of the things I think has changed, and I like to think maybe I played a little small role in that, is it is rare to find a prosecutor now who says, oh, I can't try that case because we don't have a body. And I think that that's sort of the legacy of Marion 5 because it led to my interest in this field. It led to certainly some convictions and things on cases that I worked on. Was able to help the prosecutor. In the beginning of the investigation, Marion was a victim that was discounted, even mishandled, by police. It didn't get me the attention, and to them it seemed like perhaps she didn't matter. Looking back now, almost two decades later, she did matter. The thing that we will all remember her for is really her legacy, is that she helped pave the way for nobody victims to get justice. She, in a way, is an unsung hero. TuneIn next week for another new episode of Anatomy of Murder. Murder is an audio Chuck original produced and created by Weinberger Media and Forseti Media. Ashley Flowers and submit David are executive producers. So what do you think, Chuck, do you approve? Umm.