WEBVTT - The Real Killer Season 3: Ep. 10, Please Accept My Prayers 0:00:00.600 --> 0:00:05.519 A warning. This episode contains depictions of violence and conversations 0:00:05.519 --> 0:00:10.200 about suicide that may be disturbing and triggering for some listeners. 0:00:11.080 --> 0:00:14.880 If you are struggling with suicidal thoughts, please fast forward 0:00:14.880 --> 0:00:17.120 to the end of this episode to find out where 0:00:17.120 --> 0:00:18.080 help is available. 0:00:21.239 --> 0:00:25.440 I'm confident that our team knows more about the murder 0:00:25.480 --> 0:00:28.920 of Anastasia Whipples Fugen and the prosecution of Byron Case 0:00:28.960 --> 0:00:33.519 than anybody, which sometimes scares me to think how quickly 0:00:33.560 --> 0:00:38.800 Byron was convicted and how little work anybody did before 0:00:38.800 --> 0:00:40.240 they sent them to prison forever. 0:00:42.520 --> 0:00:46.200 Are the other people who also know this case fine 0:00:46.520 --> 0:00:50.360 with leaving it done and decided, or will their minds 0:00:50.440 --> 0:00:54.560 change after hearing what Byron's legal team says they've uncovered. 0:01:04.680 --> 0:01:09.360 I'm Leah Rothman. This is the Real Killer, Episode ten, 0:01:10.160 --> 0:01:20.520 Please accept my prayers. In the spring of twenty twenty three, 0:01:20.920 --> 0:01:24.520 Byron Case's legal team reaches out to doctor Thomas Young, 0:01:25.000 --> 0:01:28.920 the medical examiner who conducted the autopsy just hours after 0:01:28.959 --> 0:01:34.040 Anastasia's body was discovered in Lincoln Cemetery. Here's Nicole Gordon, 0:01:34.280 --> 0:01:35.680 one of Byron's attorneys. 0:01:36.160 --> 0:01:40.480 We wrote to doctor Young. We talked to him briefly 0:01:40.560 --> 0:01:44.640 and planned to meet him. We sent him the investigation 0:01:45.280 --> 0:01:48.840 that we'd done so far or that part in the process, 0:01:48.960 --> 0:01:51.400 and scheduled meeting with him. He comes into the room, 0:01:51.480 --> 0:01:54.760 he sits down, and we said, well, what did you think? 0:01:54.840 --> 0:01:57.600 And the first thing that doctor Young said that everything 0:01:57.600 --> 0:02:01.760 that Kelly said after two thousand was a lie. Her 0:02:01.880 --> 0:02:05.600 story cannot be true. And he was insisted on that. 0:02:05.640 --> 0:02:07.680 I was the first thing out of his mouth about 0:02:07.680 --> 0:02:08.160 this case. 0:02:09.760 --> 0:02:14.160 On May tenth, twenty twenty three, doctor Young writes an affidavit. 0:02:14.600 --> 0:02:17.239 We hired an actor to read some of what he wrote. 0:02:18.600 --> 0:02:21.079 I was neither deposed nor called as a witness to 0:02:21.160 --> 0:02:26.000 trial regarding my autopsy of Miss Whippleshugen. Doctor Chase Blanchard 0:02:26.040 --> 0:02:30.080 testified in deposition and a trial based on my autopsy report. 0:02:30.880 --> 0:02:34.320 Doctor blanche was not present at the autopsy of Miss Whippleshugen. 0:02:35.840 --> 0:02:38.040 Here's Byron's attorney, Sean O'Brien. 0:02:38.840 --> 0:02:44.359 Doctor Chase Blanchard had just graduated from medical school, did 0:02:44.400 --> 0:02:47.720 not have much experience as a medical examiner, but they 0:02:47.760 --> 0:02:53.400 substituted her for doctor Young. They did that before depositions 0:02:53.440 --> 0:02:58.480 were taken, and they said to judge Otwell, well, doctor 0:02:58.480 --> 0:03:01.440 Young's out of town. We have to use doctor Blanchard. Well, 0:03:01.440 --> 0:03:03.160 he would not have been out of town for that 0:03:03.240 --> 0:03:07.160 whole period of pre trial discovery and the trial, and 0:03:07.160 --> 0:03:09.280 in fact he doesn't remember it when we talked to 0:03:09.360 --> 0:03:13.120 him being out of town or unavailable. But they used 0:03:13.120 --> 0:03:17.760 doctor Blanchard to testify in lieu of doctor Young, and 0:03:17.840 --> 0:03:25.080 doctor Blanchard's testimony generally was supportive of what Kelly moffittt said. 0:03:26.440 --> 0:03:28.399 Back to Dr Young's affidavit. 0:03:28.720 --> 0:03:32.200 Based on my review and my direct observation at autopsy, 0:03:32.480 --> 0:03:36.800 it's my opinion to a reasonable degree of medical certainty 0:03:36.920 --> 0:03:40.520 that Miss Moffatt's story and implicating Byron Case is not 0:03:40.680 --> 0:03:44.560 consistent with the physical evidence. Ms Moffatt claimed that Byron 0:03:44.640 --> 0:03:47.280 Case shot Miss Whipplesfugen from five feet away. 0:03:47.760 --> 0:03:49.520 This is impossible. 0:03:49.960 --> 0:03:54.000 Any assertion that the contact gunshot wound in Miss Whipplesfugen's 0:03:54.000 --> 0:03:57.400 face is a wound from five feet away is false 0:03:57.480 --> 0:04:00.600 and not consistent with the evidence. Abes her of the 0:04:00.680 --> 0:04:03.840 mis Wibbleshugen had a contact gunshot wound to the tip 0:04:03.840 --> 0:04:06.120 of her nose. This means that the gun used on 0:04:06.160 --> 0:04:09.320 Miss Whibbleshugen was touching her nose when it was fired. 0:04:09.760 --> 0:04:12.400 I know this to be true because, in addition to 0:04:12.440 --> 0:04:16.880 whether wound characteristics typical for a contact gunshot wound I 0:04:16.960 --> 0:04:21.800 found through a dissecting microscope, gunpowder particles and soft tissues 0:04:21.839 --> 0:04:25.040 in the wound track beneath her skin. Ms Moffett also 0:04:25.080 --> 0:04:29.320 described Miss Whipplefhugen's body being blown backwards by the gunshot. 0:04:29.760 --> 0:04:33.719 This is also not possible. A gunshot would not push 0:04:33.720 --> 0:04:38.200 her body backward, but instead rapidly perforate her head. Without 0:04:38.279 --> 0:04:41.520 such a push, a person being blown backwards by a 0:04:41.560 --> 0:04:47.039 gunshot is entirely Hollywood style fiction. The physical evidence also 0:04:47.240 --> 0:04:50.160 does not support a claim that a shotgun was used 0:04:50.160 --> 0:04:54.719 to kill Miss Wibbleshugen. The bullet fragment I recovered also 0:04:55.160 --> 0:04:57.880 was not consistent with a shotgun. 0:04:57.360 --> 0:05:02.479 Slug, which is different than what doctor Chase Blanchard said 0:05:02.480 --> 0:05:06.159 on the stand. She testified that the gun used could 0:05:06.400 --> 0:05:10.400 have been a rifle, a high powered handgun, or a shotgun, 0:05:10.960 --> 0:05:14.000 but she said if it were a shotgun, quote, there 0:05:14.120 --> 0:05:17.760 was a fragment found in the back, and that's consistent 0:05:17.839 --> 0:05:21.560 with a shotgun slug. Doctor Blanchard is referring to the 0:05:21.600 --> 0:05:27.120 bullet fragment found matted in Anastasia's hair. Here's Sean again. 0:05:27.560 --> 0:05:32.279 And and that's the same ammunition that Justin used to 0:05:32.360 --> 0:05:36.040 kill himself with. And so they actually argued to the jury, 0:05:36.360 --> 0:05:39.680 wouldn't that be a coincidence? But doctor Young said this 0:05:39.760 --> 0:05:42.719 was not a deer slug. I mean, and frankly, I've 0:05:42.760 --> 0:05:46.120 done deer slug homicides. I could have told you this 0:05:46.240 --> 0:05:47.360 was not a deer slug. 0:05:47.640 --> 0:05:50.720 Well, you just look at the crime scene. I mean, 0:05:50.760 --> 0:05:55.480 the photos from the scenes, justin what happened to Justin. 0:05:55.640 --> 0:05:57.760 With half his head is missing. 0:05:58.120 --> 0:06:01.560 I mean, it's versus Anastasia. I mean, they don't even 0:06:01.760 --> 0:06:04.520 I don't know anything about ballistics or any I can 0:06:04.560 --> 0:06:07.640 tell just as a layman that these are not the 0:06:07.680 --> 0:06:08.480 same type of thing. 0:06:08.480 --> 0:06:10.479 It's not at all the same. I mean, it's an 0:06:10.560 --> 0:06:14.000 unrifled chunk a lead that comes out at high velocity 0:06:14.600 --> 0:06:19.200 that's typically blunt, and it just you know, those, frankly, 0:06:19.200 --> 0:06:21.920 are the worst crime scene photographs I've ever had the view. 0:06:22.120 --> 0:06:23.840 I agree, I think it's one of the worst things 0:06:23.839 --> 0:06:24.480 I've ever seen. 0:06:24.640 --> 0:06:28.200 Yeah, and it is Justin's Yeah, this was not that. 0:06:28.520 --> 0:06:29.159 This was not that. 0:06:29.240 --> 0:06:32.880 So doctor Young concludes his affidavit by saying, had he 0:06:32.960 --> 0:06:36.360 been called to testify at Byron case's trial, he would 0:06:36.360 --> 0:06:40.800 have answered consistently with his affidavit. Among the many questions 0:06:40.880 --> 0:06:44.800 I sent to Prosecutor Teresa Craon was why didn't they 0:06:44.880 --> 0:06:47.839 call doctor Young to testify? I also asked what she 0:06:47.920 --> 0:06:52.560 thought about doctor Young's APFA David Remember. Her office issued 0:06:52.600 --> 0:06:56.400 the following statement quote, the office has decided that until 0:06:56.480 --> 0:06:59.760 all litigation is complete on this matter, it isn't a 0:06:59.800 --> 0:07:04.560 pro for a potential witness I e. Teresa to participate. 0:07:05.520 --> 0:07:08.880 But there might be a small hiccup when it comes 0:07:08.880 --> 0:07:12.840 to doctor Young. To Byron's current legal team, and in 0:07:12.880 --> 0:07:16.120 his affidavit, doctor Young says the way Kelly said Byron 0:07:16.160 --> 0:07:20.880 shot Anastasia is not consistent with the physical evidence. But 0:07:21.320 --> 0:07:25.160 doctor Young is interviewed for the twenty sixteen MTV show 0:07:25.440 --> 0:07:29.960 Unlocking the Truth, which looked at cases of possible wrongful convictions, 0:07:30.400 --> 0:07:35.280 Byron's being one of them. There, doctor Young says something 0:07:35.880 --> 0:07:38.200 very different, Kevin Maffin is. 0:07:38.200 --> 0:07:39.360 A witness the King. 0:07:39.920 --> 0:07:44.400 Later on everything she says fitstiavis. 0:07:45.080 --> 0:07:48.360 Unlocking the Truth is hosted by Ryan Ferguson, who was 0:07:48.400 --> 0:07:52.320 wrongfully convicted of a two thousand and one murder in Columbia, Missouri. 0:07:52.960 --> 0:07:55.680 He spent almost ten years in prison for the crime. 0:07:56.480 --> 0:07:59.840 By the way, Ryan Ferguson was convicted largely based on 0:08:00.080 --> 0:08:04.800 false eyewitness testimony. Okay, back to doctor Young talking with 0:08:04.920 --> 0:08:06.360 Ryan about Kelly. 0:08:07.400 --> 0:08:10.520 But there's a witness account in this case. She describes 0:08:10.560 --> 0:08:11.040 a rifle. 0:08:13.240 --> 0:08:16.200 Witnesses have been highly suspect in many cases. 0:08:16.440 --> 0:08:18.200 You don't pass judgment. 0:08:17.840 --> 0:08:20.200 On a witness accountanteam or what they have to say 0:08:20.240 --> 0:08:21.000 and compare. 0:08:20.720 --> 0:08:23.360 It to the evidence. It's called thinking dirty. 0:08:23.400 --> 0:08:27.320 Thinking dirty doesn't work no matter what kind of character 0:08:27.400 --> 0:08:28.200 this person is. 0:08:28.760 --> 0:08:30.560 You put that all aside and you look at the 0:08:30.600 --> 0:08:31.720 content of what they're saying. 0:08:32.720 --> 0:08:36.040 Witnesses observe things. The fact that there's something that is 0:08:36.080 --> 0:08:38.400 observed makes it a fact. 0:08:38.920 --> 0:08:42.080 Could they be lying? Maybe you test. 0:08:41.880 --> 0:08:45.480 It with the evidence, but that's still a fact. It's 0:08:45.559 --> 0:08:47.800 like a jigsaw puzzle. You know, you got a piece, 0:08:48.720 --> 0:08:51.360 you got a context here, you put the piece in. 0:08:51.400 --> 0:08:53.600 It'll fit or it doesn't fit. 0:08:55.559 --> 0:08:59.000 As you can imagine, doctor Jung's assessment of eyewitness testimony 0:08:59.360 --> 0:09:03.199 doesn't sit too well with Ryan. Doctor Young is then 0:09:03.280 --> 0:09:08.640 asked what in Kelly's testimony is consistent with his medical findings. 0:09:09.440 --> 0:09:12.560 She mentions that as she's sitting in the backseat, Byron 0:09:12.600 --> 0:09:13.400 gets the keys out of. 0:09:13.360 --> 0:09:16.040 The ignition, opens the trunk, pulls out. 0:09:16.480 --> 0:09:19.760 She says, I think it's a Honting rival and he 0:09:19.840 --> 0:09:21.199 puts the thing in her face. 0:09:20.920 --> 0:09:25.160 And fires it. All of that fips. 0:09:26.440 --> 0:09:30.800 Does that fit the physical evidence? Again? Kelly said Byron 0:09:30.960 --> 0:09:33.800 was five feet or more away from Anastasia when he 0:09:33.920 --> 0:09:37.640 shot her, So how does that fit his medical findings 0:09:37.760 --> 0:09:41.880 of it being a contact wound? Doctor Young continues. 0:09:41.480 --> 0:09:44.800 Past events are so complex. If somebody basically gives a 0:09:44.840 --> 0:09:50.040 past event account and everything lines up with evidence, that's remarkable. 0:09:50.520 --> 0:09:52.679 Somebody to just simply make. 0:09:52.640 --> 0:09:58.480 Up a witness account, align account and have everything line 0:09:58.520 --> 0:10:00.960 up with the evidence like that. They have to be 0:10:00.960 --> 0:10:02.240 aligned TVs to do that. 0:10:05.800 --> 0:10:09.560 I asked Byron's investigator, Quinn O'Brien what she makes of 0:10:09.640 --> 0:10:14.360 doctor Young's MTV interview and how it's in complete contradiction 0:10:14.920 --> 0:10:17.280 to his affidavit seven years later. 0:10:17.480 --> 0:10:20.040 Yeah, it is, And I think what happened was that 0:10:20.080 --> 0:10:24.840 the MTV people didn't give him the same things that 0:10:25.520 --> 0:10:28.760 we gave him. I think MTV gave him his old report, 0:10:29.520 --> 0:10:32.520 and based on his old report, he discussed these things. 0:10:32.520 --> 0:10:35.520 But we gave him Kelley mo off its transcript and deposition, 0:10:35.920 --> 0:10:38.200 We gave him the prosecutor's closing, and we gave him 0:10:38.200 --> 0:10:42.880 a few other documents. And with more information and with 0:10:42.960 --> 0:10:45.360 more context, doctor Young was able to come to a 0:10:45.400 --> 0:10:50.480 better decision. More information means a more accurate assessment. Right, 0:10:50.960 --> 0:10:53.360 Your expert is only as good as what you give them. 0:10:53.480 --> 0:10:56.040 I don't think he had the information that he needed 0:10:56.640 --> 0:11:00.480 to make a good assessment, because yeah, we saw that 0:11:00.600 --> 0:11:03.480 MTV thing too and went, huh, what's that about? You know, 0:11:03.559 --> 0:11:06.800 then when we gave him his report, we also gave 0:11:06.880 --> 0:11:10.160 him these other things, and he said, in context, here's 0:11:10.160 --> 0:11:13.400 how I came to my decision, Like I looked at 0:11:13.440 --> 0:11:17.080 Kelley Moffitt's testimony, and I looked at like, is what 0:11:17.200 --> 0:11:23.120 Kelly's saying? Is that true? According to what the evidence 0:11:23.200 --> 0:11:26.560 is showing me. He said that the gun was pressed 0:11:26.600 --> 0:11:29.120 up against the tip of Anastasia's nose. It could not 0:11:29.160 --> 0:11:32.040 have even been an inch away. It could not at 0:11:32.040 --> 0:11:34.240 all have been like, you know, a foot away or 0:11:34.240 --> 0:11:36.360 five feet away. It was. 0:11:36.559 --> 0:11:40.480 Doctor Young declined my invitation to be interviewed. In episode eight, 0:11:40.640 --> 0:11:43.600 I shared that I emailed doctor Young asking why he 0:11:43.640 --> 0:11:47.199 wrote in his autopsy report that Anastagia's corneas were clear, 0:11:47.760 --> 0:11:50.440 hoping to learn more about her time of death. He 0:11:50.520 --> 0:11:53.560 never responded to that question. I email him again to 0:11:53.600 --> 0:11:56.160 see what he has to say about his MTV interview 0:11:56.280 --> 0:11:59.160 and how it's very different from his twenty twenty three 0:11:59.200 --> 0:12:04.760 out of David, but he hasn't responded. So Byron's legal 0:12:04.800 --> 0:12:08.319 team feels good having doctor Young's affidavit in their pocket 0:12:08.520 --> 0:12:13.040 and they are just getting started. Turns out, Horton Lance, 0:12:13.280 --> 0:12:17.839 Byron's trial attorney, has a lot to say too, again 0:12:17.920 --> 0:12:20.480 not to me. Although he initially said he might agree 0:12:20.520 --> 0:12:22.720 to an interview. He asked me to call him back 0:12:22.760 --> 0:12:25.839 in a few weeks, which I did several times. He 0:12:25.920 --> 0:12:28.400 never returned to any of my calls, but in his 0:12:28.520 --> 0:12:32.320 July third, twenty twenty three affidavit he doesn't hold back. 0:12:32.920 --> 0:12:36.400 We hired another actor to read from Horton Lance's affidavit. 0:12:36.760 --> 0:12:38.120 Here are some of what he said. 0:12:39.240 --> 0:12:42.200 When I was assigned to Byron's case, very little work 0:12:42.240 --> 0:12:44.200 had been done due to the high case load of 0:12:44.200 --> 0:12:48.600 the public defender. Byron wanted a speedy trial because he 0:12:48.720 --> 0:12:51.559 was certain of his innocence and was held in pre 0:12:51.679 --> 0:12:56.120 trialed attention in the Jackson County Jail. These circumstances gave 0:12:56.160 --> 0:12:58.840 me less than six months to prepare for trial. 0:12:59.480 --> 0:13:02.959 Horton goes on to talk about his process for receiving discovery, 0:13:03.360 --> 0:13:06.800 how he maintained his files, and then he says this. 0:13:07.280 --> 0:13:09.920 I remember reading the state's response to my request for 0:13:10.000 --> 0:13:13.600 the criminal records of the state's witnesses. Their April third, 0:13:13.679 --> 0:13:17.360 two thousand and two response was that no witnesses had 0:13:17.400 --> 0:13:21.760 a felony or misdemeanor conviction. I am certain that I 0:13:21.880 --> 0:13:25.480 was never informed of Kelley Moffatt's criminal conviction. I have 0:13:25.559 --> 0:13:28.839 since reviewed the documents related to Ms Moffatt's April third, 0:13:28.880 --> 0:13:31.800 two thousand and one conviction of a Class A misdemeanor 0:13:31.880 --> 0:13:35.960 in Cooper County, Missouri. I was completely unaware that Miss 0:13:36.000 --> 0:13:38.520 Moffatt was on probation at the time of her March eighth, 0:13:38.559 --> 0:13:42.120 two thousand and two deposition. I would have used Miss 0:13:42.120 --> 0:13:46.120 Moffatt's criminal record and contacts with law enforcement to impeach 0:13:46.120 --> 0:13:50.600 her had the state disclosed that information, especially given the 0:13:50.640 --> 0:13:53.680 timing of her arrest and prosecution to when she gave 0:13:53.720 --> 0:13:59.559 her September two thousand statements implicating Byron. In her deposition, 0:13:59.640 --> 0:14:03.400 Kelly stated that she had never pled guilty to or 0:14:03.600 --> 0:14:08.280 been convicted of a felony or misdemeanor in state or 0:14:08.440 --> 0:14:13.640 federal court. The deposition was under oath, which means that 0:14:13.760 --> 0:14:18.160 miss Moffatt committed perjury by denying she pled guilty to 0:14:18.240 --> 0:14:22.440 a misdemeanor in state court. Had I known Kelly Moffatt 0:14:22.480 --> 0:14:25.560 lied under oath, I would have moved to exclude her 0:14:25.600 --> 0:14:29.880 testimony entirely, and if that was not successful, I would 0:14:29.920 --> 0:14:33.840 have cross examined her about having lied under oath. Kelly 0:14:33.880 --> 0:14:37.320 Moffatt was essential to the state's case. A first set 0:14:37.360 --> 0:14:40.440 of interviews by police cleared Byron of any involvement in 0:14:40.520 --> 0:14:46.800 Anastasia's death and corroborated Byron's persistent assertions of innocence. Then 0:14:46.920 --> 0:14:50.080 she changed her story to claim that she saw Justin 0:14:50.120 --> 0:14:55.320 Bruten kill Anastasia, until she changed her story again to 0:14:55.400 --> 0:15:00.720 accuse Byron. There was no evidence whatsoever implicating Byron in 0:15:00.840 --> 0:15:05.560 Anastasia's death. Without her testimony, the state could not have 0:15:05.640 --> 0:15:06.960 gotten the case to a jury. 0:15:07.920 --> 0:15:09.120 He goes on to say. 0:15:09.840 --> 0:15:12.560 Whether Anastasia got out of Justin's car that night was 0:15:12.600 --> 0:15:16.440 a significant point of contention at trial. If she got 0:15:16.480 --> 0:15:18.440 out of the car at Truman Rode and I four 0:15:18.600 --> 0:15:22.200 thirty five, then Byron is innocent and he would have 0:15:22.200 --> 0:15:28.640 a corroborated alibi. An independent witness, mechanic Don Rand, saw 0:15:28.680 --> 0:15:31.560 Anastasia get out of the car and walk across the 0:15:31.600 --> 0:15:34.200 parking lot of the service station where he worked on 0:15:34.240 --> 0:15:38.280 Truman Road near I four thirty five. Despite this, the 0:15:38.360 --> 0:15:42.360 prosecutors argued that Byron lied about Anastasia getting out of 0:15:42.400 --> 0:15:47.280 the car. Kelly Moffatt's testimony was the only evidence supporting 0:15:47.320 --> 0:15:52.400 that argument. Accepting Miss Moffatt's story and ignoring Rand's testimony, 0:15:52.800 --> 0:15:56.600 the state argued that Byron pressured Miss Moffatt into giving 0:15:56.600 --> 0:15:57.840 the police a false story. 0:15:58.680 --> 0:16:01.960 Horton Lands then goes on to write about meeting Byron's attorney, 0:16:02.200 --> 0:16:06.360 Brian Russell and being shown some emails Anastasia's dad sent 0:16:06.520 --> 0:16:10.520 to Sergeant Kilgore. Horton paraphrases the emails. 0:16:11.080 --> 0:16:14.120 When meeting with mister Russell at his office, I was 0:16:14.160 --> 0:16:18.480 shown several emails between Robert Whitbulls Fugen and the lead investigator, 0:16:18.560 --> 0:16:22.280 Sergeant Gary Kilgore. This was the first time I'd seen 0:16:22.320 --> 0:16:26.120 these emails, and several of them contained evidence that Anastasia 0:16:26.120 --> 0:16:30.840 Whitbulls Fugen returned home after being picked up at Dairy Queen, 0:16:31.280 --> 0:16:36.120 but before her death. Specifically, I never saw a January second, 0:16:36.400 --> 0:16:40.600 nineteen ninety eight email about Anastasia's genes being found in 0:16:40.640 --> 0:16:44.560 a dryer or Anastasia's underwear being found soaking in a 0:16:44.640 --> 0:16:48.320 sink in her home. I also do not recall seeing 0:16:48.320 --> 0:16:52.000 a January eleventh, nineteen ninety eight email about Anastasia's father 0:16:52.160 --> 0:16:55.520 finding her purse at the family home, which included a 0:16:55.560 --> 0:16:59.400 photograph of the purse. I also do not recall seeing 0:16:59.400 --> 0:17:03.000 a January twenty two, nineteen ninety eight email that mentioned 0:17:03.000 --> 0:17:06.800 witnesses seeing a young woman use a payphone. Because I 0:17:06.840 --> 0:17:09.240 did not have these emails, it never occurred to me 0:17:09.320 --> 0:17:13.520 that Anastasia went home before she died. If evidence demonstrating 0:17:13.560 --> 0:17:17.080 that Anastasia went home before she died had been produced 0:17:17.080 --> 0:17:20.240 to me, I would have used that to effectively cross 0:17:20.280 --> 0:17:24.560 examine Kelly Moffatt and corroborate Byron's innocent account of what 0:17:24.680 --> 0:17:28.560 he did that evening. It is now my understanding that 0:17:28.680 --> 0:17:32.639 mister Whitbull's Fugen and Sergeant Kilgore exchanged over one one 0:17:32.720 --> 0:17:37.680 hundred and forty emails related to the investigation. Less than 0:17:37.920 --> 0:17:41.439 ten of those emails were produced to me by the 0:17:41.520 --> 0:17:45.560 Jackson County Prosecutor before trial, none of which indicated that 0:17:45.600 --> 0:17:49.439 Anastasia returned home. If I had those emails and the 0:17:49.480 --> 0:17:52.919 photograph of the purse that mister whitbulls Fugen sent to 0:17:52.960 --> 0:17:55.719 the Jackson County Sheriff, I would have used them to 0:17:55.760 --> 0:17:59.680 examine Don Wright, the Dairy Queen employee who saw Anastasia 0:17:59.720 --> 0:18:04.160 in the hours before her death. Miss Wright provided Anastasia 0:18:04.160 --> 0:18:07.560 with an emergency tampon when Anastasia's period began in the 0:18:07.640 --> 0:18:10.199 Dairy Queen. I would have asked miss Wright if it 0:18:10.240 --> 0:18:13.920 was likely that Anastasia had soiled her underwear and jeans 0:18:14.000 --> 0:18:17.320 when she began her period at Dairy Queen. I would 0:18:17.320 --> 0:18:20.280 have asked her to confirm that she told investigators that 0:18:20.320 --> 0:18:24.879 Anastasia was wearing light colored blue jeans and sandals with 0:18:25.000 --> 0:18:28.320 socks at the Dairy Queen. I also would have asked 0:18:28.400 --> 0:18:31.399 miss Wright if the purse in the photograph that mister 0:18:31.480 --> 0:18:36.040 Whitbull's Fugen email to Detective Kilgore resembled the purse she 0:18:36.200 --> 0:18:40.280 saw Anastasia carrying. I would have used the emails to 0:18:40.320 --> 0:18:43.280 show that the clothing and purse were in the Whitbulls 0:18:43.359 --> 0:18:47.720 Fugen home, which meant that Anastasia returned there after leaving 0:18:47.800 --> 0:18:52.280 Dairy Queen and before her death. When Anastasia's clothes were 0:18:52.320 --> 0:18:56.960 examined by Robert Frank Booth of the KCPD Crime Lab, 0:18:57.359 --> 0:19:00.879 he reported the black jeans and underwear had no blood 0:19:00.920 --> 0:19:04.280 on them and that Anastasia had a clean sanitary pad, 0:19:04.800 --> 0:19:07.960 not a tampon. I could have used this to cross 0:19:07.960 --> 0:19:11.560 examine Miss Moffatt to further highlight that Anastasia went home, 0:19:12.160 --> 0:19:17.880 disproving Miss Moffatt's story. I would have reconsidered my decision 0:19:17.960 --> 0:19:22.040 not to call Sergeant Kilgore and or mister Whitbulls Fugen, 0:19:22.119 --> 0:19:25.520 so that I could prove that Anastasia did in fact 0:19:25.760 --> 0:19:28.800 get out of the car, call someone on the telephone, 0:19:29.119 --> 0:19:33.240 and go home after leaving the Dairy Queen and Mount 0:19:33.359 --> 0:19:38.080 Washington Cemetery. Mister Russell also played for me a recorded 0:19:38.160 --> 0:19:42.680 phone interview of mister Whitball's Fugen taken on January twenty second, 0:19:42.840 --> 0:19:47.320 nineteen ninety eight, by Sergeant Kilgore. This recording was not 0:19:47.520 --> 0:19:52.280 produced to me before trial. In that recording, mister Whitball's 0:19:52.320 --> 0:19:55.720 fugen states that he spoke with a father daughter couple 0:19:55.800 --> 0:19:59.320 at a Phillips sixty six gas station on Truman Road 0:19:59.440 --> 0:20:02.959 and I four thirty five that saw a girl matching 0:20:03.000 --> 0:20:08.080 Anastasia's description used the nearby payphones just before dark. The 0:20:08.119 --> 0:20:11.679 corresponding report of his interaction was produced to me before trial, 0:20:11.840 --> 0:20:15.919 attached as Exhibit F. However, that report does not state 0:20:16.080 --> 0:20:19.639 the interview was recorded, nor does it include mister Whitball's 0:20:19.680 --> 0:20:24.280 fugen's statement regarding these two additional witnesses. Had I known 0:20:24.359 --> 0:20:27.639 that two others claimed to have seen Anastasia use the payphones, 0:20:28.080 --> 0:20:30.760 I would have attempted to find them to corroborate that 0:20:30.840 --> 0:20:35.040 Anastasia got out of the car as don Rand justin Bruton, 0:20:35.359 --> 0:20:41.000 Ms Moffatt and Byron said, I recalled Teresa Crayon telling 0:20:41.040 --> 0:20:44.199 me via telephone that she would not be calling Sergeant 0:20:44.280 --> 0:20:48.159 Kilgore a trial. Miss Crayon said that the relationship between 0:20:48.200 --> 0:20:51.560 Sergeant Kilgore and one of the families involved, either of 0:20:51.560 --> 0:20:56.160 the Moffitts or the Whitball's fugens, had grown contentious. Miss 0:20:56.240 --> 0:20:59.119 Crayon asked if I'd like her to make Sergeant Kilgore 0:20:59.160 --> 0:21:03.240 available to me or subpoena's service or testimony. I declined. 0:21:04.000 --> 0:21:06.240 I believed at the time that Miss Crayon was doing 0:21:06.280 --> 0:21:08.760 me a favor by not calling the lead investigator to 0:21:08.800 --> 0:21:12.399 testify in this case. I was also one aware of 0:21:12.440 --> 0:21:17.159 the full extent of communications between mister Whitball's FUGEN and 0:21:17.320 --> 0:21:21.359 state's witness Kelly Moffatt. If I had known mister Whitball's 0:21:21.400 --> 0:21:25.120 fugen's level of involvement in the investigation into his daughter's death, 0:21:25.600 --> 0:21:27.959 I would have considered calling him as a witness for 0:21:28.000 --> 0:21:32.360 the defense. Knowing what I know now about mister Whitball's 0:21:32.400 --> 0:21:37.639 fugen's involvement in the investigation, his contact with other testifying witnesses, 0:21:38.000 --> 0:21:41.879 and his frequent contact with Sergeant Kilgore, I would have 0:21:41.920 --> 0:21:46.040 accepted Miss Crayon's offer to help place Sergeant Kilgore under 0:21:46.080 --> 0:21:49.919 subpoena to testify for the defense. At a minimum, I 0:21:49.960 --> 0:21:54.160 would have deposed him. Miss Crayon also told me that 0:21:54.359 --> 0:21:58.119 doctor Thomas Young, the medical examiner who conducted the autopsy 0:21:58.119 --> 0:22:01.919 of Anastasia, was not available for trial, and the doctor 0:22:02.000 --> 0:22:05.920 Chase Blanchard, who was not present for the autopsy would 0:22:05.920 --> 0:22:10.199 be testifying in doctor Young's place. I took Miss Grayon 0:22:10.280 --> 0:22:12.560 at her word and did not inquire with doctor Young 0:22:12.600 --> 0:22:16.920 about his availability. I have reviewed his affidavit of May tenth, 0:22:17.000 --> 0:22:21.040 twenty twenty three, where he opines that Kelly Moffatt's description 0:22:21.160 --> 0:22:25.960 of the shooting is wholly inconsistent with his autopsy findings. 0:22:26.880 --> 0:22:28.840 It would have been important for the jury to know 0:22:28.960 --> 0:22:32.960 that doctor Young's autopsy definitively established that the barrel of 0:22:33.000 --> 0:22:36.880 the gun that caused Anastasia's death was physically touching her 0:22:37.000 --> 0:22:40.040 nose when it fired, and that it is impossible that 0:22:40.119 --> 0:22:43.240 the gun was fired from three to five feet away, 0:22:43.600 --> 0:22:48.080 as Miss Moffatt testified. Had I known that would have 0:22:48.119 --> 0:22:50.879 been his testimony, I would not have consented to doctor 0:22:50.920 --> 0:22:53.800 Blanchard testifying in his place and would have called for 0:22:53.880 --> 0:23:01.640 doctor Young in Byron's defense. I remember Byron's trial steadfastly 0:23:01.680 --> 0:23:07.199 maintained his innocence throughout and following the trial proceedings. I 0:23:07.240 --> 0:23:12.840 remember Kelly Moffittt's testimony a trial. I recall her being emotionless, 0:23:13.400 --> 0:23:18.680 almost bored when answering questions the prosecutor's assertion in closing 0:23:18.720 --> 0:23:22.800 that Ms. Moffatt was emotional during her testimony rings false 0:23:22.840 --> 0:23:23.080 to me. 0:23:24.520 --> 0:23:28.320 Then Horton talks about the June fifth should or shouldn't 0:23:28.600 --> 0:23:31.000 record a call between Kelly and Byron. 0:23:31.760 --> 0:23:34.520 I remember the state using a transcript to a company 0:23:34.600 --> 0:23:38.120 the recordings of two phone calls between Kelly Moffatt and Byron. 0:23:39.080 --> 0:23:42.840 I do not recall where the transcripts came from. I assumed, 0:23:42.880 --> 0:23:47.840 without scrutiny that the transcripts were accurate. The recorded conversations 0:23:47.840 --> 0:23:50.200 were difficult to hear at times, and I believe we 0:23:50.240 --> 0:23:52.960 relied heavily on the transcripts to determine what was said 0:23:53.000 --> 0:23:56.399 on the tapes. I have since listened to the clear 0:23:56.600 --> 0:24:00.439 audio of the June five, two thousand recording, and it 0:24:00.520 --> 0:24:05.439 is apparent that Byron tells Miss Moffatt quote we should 0:24:05.480 --> 0:24:10.600 talk about this, not quote we shouldn't talk about this 0:24:11.440 --> 0:24:16.760 as the state and transcript represented as strengthens the argument 0:24:16.800 --> 0:24:19.400 I made to the judge that the transcript, the recording, 0:24:19.440 --> 0:24:22.400 and the conversation should not have been admitted because the 0:24:22.480 --> 0:24:28.320 foundation for a tacit admission is not satisfied. In my opinion, 0:24:28.480 --> 0:24:31.960 the false transcript was damning to the defense because the 0:24:32.040 --> 0:24:36.080 prosecutor used it as a tacit admission and also suggested 0:24:36.119 --> 0:24:40.000 in closing argument that Byron steered the conversation away from 0:24:40.000 --> 0:24:43.880 the subject by talking about Loose Park. In fact, Byron 0:24:44.040 --> 0:24:47.159 was giving Kelly Moffatt directions of where to meet to 0:24:47.200 --> 0:24:50.439 discuss the matter. Further, I felt at the time that 0:24:50.480 --> 0:24:52.960 the state could not lay a proper foundation for the 0:24:53.000 --> 0:24:56.919 statement as a tacit admission, and I argued accordingly. The 0:24:56.960 --> 0:24:59.600 better audio makes this argument even stronger. 0:25:02.240 --> 0:25:04.840 I don't know why Horton Lance doesn't want to talk 0:25:04.840 --> 0:25:07.679 with me. Maybe it's as symbol as he's just busy, 0:25:07.920 --> 0:25:11.879 he's an overworked public defender with not a moment to spare, 0:25:13.040 --> 0:25:15.760 or maybe he doesn't want to answer questions about what 0:25:15.840 --> 0:25:19.600 he did or didn't do while representing Byron, because it 0:25:19.640 --> 0:25:22.359