Judge believes accused Bay Area serial killer may not have acted alone; new details revealed
Victims recalled at emotional preliminary hearing in deaths of 2 young women, 9-year-old
In gripping and heartwrenching testimony, the families of three East Bay homicide victims — including a 9-year-old girl abducted and killed — described their final memories of their loved ones from the witness stand and ended a three-decade wait to confront the man accused of murdering them.
One witness, the best friend of the 9-year-old Hayward girl, stared into the eyes of accused Bay Area serial killer David Emery Misch. “They remind me of the kidnapper's eyes,” she testified.
At the end of the two-month preliminary hearing in January for Misch, an Alameda County judge found that there was enough evidence to advance the case to the next stage, giving the green light for prosecutors to proceed to trial. No trial date has yet been set, and Misch — already serving life for murdering a woman in 1989 — has no reason to hurry things along, other than his expressed disgust with the food at Santa Rita Jail.
Misch is charged with three counts of murder. Two related to the Feb. 2, 1986, killings of best friends Michelle Xavier, 18, and Jennifer Duey, 20, whose nude bodies were found in a remote area off Mill Creek Road in Fremont, a grisly scene that suggested a sexual motive and that some sort of struggle had occurred just before Duey was fatally shot and Xavier was stabbed to death.
The third murder charge pertains to a case 21/2 years later, when a 9-year-old girl named Michaela Garecht was abducted in callous fashion by a man who baited her by moving her scooter as she bought candy at a Hayward convenience store, then grabbed her when she went to retrieve it.
But while ordering Misch to stand trial, Judge Paul Delucchi dropped a
bombshell and said he believed that when it came to the killings of Xavier and Duey, he doubted that Misch acted alone. Delucchi homed in on a particular suspect — a former police officer — and said he got “chills up and down my spine” when a retired Fremont investigator recounted his interview with the suspect.
The former officer worked in Fremont and Union City as a reserve in the late 1970s, before brief stints as a lawman in Seaside and Modesto, state records show. His brother was dating a relative of Duey.
“I think he was up to his eyeballs in this thing, I really do,” Delucchi said, referring to the second suspect. He added, “(Xavier and Duey) wouldn't have gone up there with David Misch. They didn't know David Misch from Adam. … They would go up there with somebody they recognized and trust.”
In 1989, Misch was arrested and charged with using a 12-inch knife to fatally stab 36-year-old Margaret Ball. He was ultimately convicted of murder and sentenced to life. It wasn't until 2018 that Misch was charged in Xavier and Duey's killings and, two years later, prosecutors charged him with murdering Michaela. Until recently, he faced special circumstances allegations that made him eligible for life without parole, but newly elected District Attorney Pamela Price, who ran on a platform opposing death or life-without-parole sentences, dismissed them.
The preliminary hearing was akin to an unearthing of a murder mystery time capsule, and it raised almost as many questions as it answered. Dozens of witnesses were called to the stand, most of whom were asked to recall decades-old memories of murder investigations, their final interactions with the victims, or the heart-wrenching process of learning their loved ones had been killed.
“Michelle was becoming my confidant and my best friend,” her mother, Christine Xavier, said on a witness stand, before describing how she learned her daughter had been killed. “I just remember screaming, and neighbors came walking in, just walking in the house, and so I'm kind of blank after that.”
Forensic evidence links Misch to both crimes, prosecutors say. Despite the litany of witnesses, Misch's arrest almost entirely boils down to this: DNA evidence from underneath Duey's fingernails was matched to him by a margin in the quintillions. And partial hand and fingerprints from Michaela's scooter — while initially thought to be unusable evidence — were determined by a technician to have come from Misch as well.
“(Duey) was not docile or someone who would succumb to being sexually assaulted without a fight,” Deputy District Attorney Colleen McMahon, who handled the preliminary hearing, argued in court. McMahon said the evidence indicated Duey fought off her attacker and was making a run for it when she was shot from behind, but that she ended up eventually solving her own murder by fighting back.
Michaela lived on Seneca Street in Hayward, a residential area full of families with children. One day, she went across the street and knocked on the door of a family that had just moved into the area, explaining that she noticed a girl her age lived there and was wondering if they could be friends.
It worked. The two became inseparable, and on Nov. 19, 1988, they decided they were going to be twins for the day. They coordinated their outfits and when they got hungry, decided to ride to the Rainbow Market on scooters. The store was little more than a block away, but they still asked for permission before heading down.
At the store, Michaela wanted to get the most bang for their $5 bill, her friend recalled on the witness stand 34 years later. They left with Mountain Dew, Laffy Taffy and beef jerky, but quickly noticed one of their scooters — Michaela's — was missing. They soon found it in the parking lot. When Michaela's friend heard a scream, she turned and watched in horror as her best friend was dragged, kicking and screaming, into a gold or tan-colored sedan.
At the end of her daylong testimony, she talked about looking into Misch's eyes as he sat a few feet away from her in the courtroom.
“The intensity of the eyes, and the shape of them, they struck me as memorable to that day,” she said. “They remind me of the kidnapper's eyes.”
Despite a widespread search, eyewitnesses, and national media attention over many years, Michaela was never seen or heard from again. Misch was arrested on unrelated charges just days after her abduction, which has led authorities to theorize she was murdered sometime in that time frame.
Duey had “fallen in love with accounting,” her mother said on the witness stand. Xavier got a good job at Nordstrom and hoped to be a buyer for the department store one day. The two met in high school and became so close they'd regularly go on double dates and attend each other's family gatherings. They did both of those things the night they were killed, first to San Ramon for a grandparent's birthday party, then back to Alameda County where they rendezvoused with the men they were dating.
But the foursome couldn't agree on where to go next, so the guys went bar hopping and Duey and Xavier — who wanted to order a pizza and rent a movie — decided to do their own thing. Exactly how they ended up on Mill Creek Road is unclear.
Of all people, it was Mo Sabraw, a longtime Alameda County judge, who spotted the young women's bodies while driving with his wife on Mill Creek Road.
His widow, now in her 90s, recalled in court testimony that day and how other passers-by began stopping along the road too. When police arrived at the scene, they discovered both victims' clothes had been folded on a barbed wire fence.
Misch's attorneys have attacked the forensic evidence. In Duey and Xavier's case, they argued it didn't provide anything beyond the suggestion that Duey and Misch had some sort of interaction sometime before her death.
“We can't even say that he was actually present when these killings occurred. Assuming that he was, we can't say what if anything he did,” defense attorney Paul Feuerwerker argued.
Misch's other lawyer, Ernie Castillo, argued against the Michaela murder charge. His case was much simpler: that there's no evidence Michaela is actually dead, and that the fingerprint analysis was contradictory and “on the verge of being unethical.”
Delucchi said he had a hard time believing Michaela, as a prepubescent girl, simply started a new life for herself after her violent abduction.
“To think that a 9-yearold would somehow volitionally decided to do what? Just disappear? To assume some new identity and never contact (her family) again?” Delucchi said. “That's a conclusion that this court is simply unprepared to make.”
On Friday, Misch pleaded not guilty to the charges and waived time for a speedy trial. He is next due in court on May 19 where Judge Delucchi will hear a motion from defense attorneys to sever the Fremont case from the Hayward case.