Speaker 1: A warning. This episode contains depictions of violence and conversations
Speaker 1: about suicide that may be disturbing and triggering for some listeners.
Speaker 1: If you are struggling with suicidal thoughts, please fast forward
Speaker 1: to the end of this episode to find out where
Speaker 1: help is available.
Speaker 2: I'm confident that our team knows more about the murder
Speaker 2: of Anastasia Whipples Fugen and the prosecution of Byron Case
Speaker 2: than anybody, which sometimes scares me to think how quickly
Speaker 2: Byron was convicted and how little work anybody did before
Speaker 2: they sent them to prison forever.
Speaker 1: Are the other people who also know this case fine
Speaker 1: with leaving it done and decided, or will their minds
Speaker 1: change after hearing what Byron's legal team says they've uncovered.
Speaker 1: I'm Leah Rothman. This is the Real Killer, Episode ten,
Speaker 1: Please accept my prayers. In the spring of twenty twenty three,
Speaker 1: Byron Case's legal team reaches out to doctor Thomas Young,
Speaker 1: the medical examiner who conducted the autopsy just hours after
Speaker 1: Anastasia's body was discovered in Lincoln Cemetery. Here's Nicole Gordon,
Speaker 1: one of Byron's attorneys.
Speaker 3: We wrote to doctor Young. We talked to him briefly
Speaker 3: and planned to meet him. We sent him the investigation
Speaker 3: that we'd done so far or that part in the process,
Speaker 3: and scheduled meeting with him. He comes into the room,
Speaker 3: he sits down, and we said, well, what did you think?
Speaker 3: And the first thing that doctor Young said that everything
Speaker 3: that Kelly said after two thousand was a lie. Her
Speaker 3: story cannot be true. And he was insisted on that.
Speaker 3: I was the first thing out of his mouth about
Speaker 3: this case.
Speaker 1: On May tenth, twenty twenty three, doctor Young writes an affidavit.
Speaker 1: We hired an actor to read some of what he wrote.
Speaker 4: I was neither deposed nor called as a witness to
Speaker 4: trial regarding my autopsy of Miss Whippleshugen. Doctor Chase Blanchard
Speaker 4: testified in deposition and a trial based on my autopsy report.
Speaker 4: Doctor blanche was not present at the autopsy of Miss Whippleshugen.
Speaker 1: Here's Byron's attorney, Sean O'Brien.
Speaker 5: Doctor Chase Blanchard had just graduated from medical school, did
Speaker 5: not have much experience as a medical examiner, but they
Speaker 5: substituted her for doctor Young. They did that before depositions
Speaker 5: were taken, and they said to judge Otwell, well, doctor
Speaker 5: Young's out of town. We have to use doctor Blanchard. Well,
Speaker 5: he would not have been out of town for that
Speaker 5: whole period of pre trial discovery and the trial, and
Speaker 5: in fact he doesn't remember it when we talked to
Speaker 5: him being out of town or unavailable. But they used
Speaker 5: doctor Blanchard to testify in lieu of doctor Young, and
Speaker 5: doctor Blanchard's testimony generally was supportive of what Kelly moffittt said.
Speaker 1: Back to Dr Young's affidavit.
Speaker 4: Based on my review and my direct observation at autopsy,
Speaker 4: it's my opinion to a reasonable degree of medical certainty
Speaker 4: that Miss Moffatt's story and implicating Byron Case is not
Speaker 4: consistent with the physical evidence. Ms Moffatt claimed that Byron
Speaker 4: Case shot Miss Whipplesfugen from five feet away.
Speaker 6: This is impossible.
Speaker 4: Any assertion that the contact gunshot wound in Miss Whipplesfugen's
Speaker 4: face is a wound from five feet away is false
Speaker 4: and not consistent with the evidence. Abes her of the
Speaker 4: mis Wibbleshugen had a contact gunshot wound to the tip
Speaker 4: of her nose. This means that the gun used on
Speaker 4: Miss Whibbleshugen was touching her nose when it was fired.
Speaker 4: I know this to be true because, in addition to
Speaker 4: whether wound characteristics typical for a contact gunshot wound I
Speaker 4: found through a dissecting microscope, gunpowder particles and soft tissues
Speaker 4: in the wound track beneath her skin. Ms Moffett also
Speaker 4: described Miss Whipplefhugen's body being blown backwards by the gunshot.
Speaker 4: This is also not possible. A gunshot would not push
Speaker 4: her body backward, but instead rapidly perforate her head. Without
Speaker 4: such a push, a person being blown backwards by a
Speaker 4: gunshot is entirely Hollywood style fiction. The physical evidence also
Speaker 4: does not support a claim that a shotgun was used
Speaker 4: to kill Miss Wibbleshugen. The bullet fragment I recovered also
Speaker 4: was not consistent with a shotgun.
Speaker 1: Slug, which is different than what doctor Chase Blanchard said
Speaker 1: on the stand. She testified that the gun used could
Speaker 1: have been a rifle, a high powered handgun, or a shotgun,
Speaker 1: but she said if it were a shotgun, quote, there
Speaker 1: was a fragment found in the back, and that's consistent
Speaker 1: with a shotgun slug. Doctor Blanchard is referring to the
Speaker 1: bullet fragment found matted in Anastasia's hair. Here's Sean again.
Speaker 5: And and that's the same ammunition that Justin used to
Speaker 5: kill himself with. And so they actually argued to the jury,
Speaker 5: wouldn't that be a coincidence? But doctor Young said this
Speaker 5: was not a deer slug. I mean, and frankly, I've
Speaker 5: done deer slug homicides. I could have told you this
Speaker 5: was not a deer slug.
Speaker 1: Well, you just look at the crime scene. I mean,
Speaker 1: the photos from the scenes, justin what happened to Justin.
Speaker 5: With half his head is missing.
Speaker 1: I mean, it's versus Anastasia. I mean, they don't even
Speaker 1: I don't know anything about ballistics or any I can
Speaker 1: tell just as a layman that these are not the
Speaker 1: same type of thing.
Speaker 5: It's not at all the same. I mean, it's an
Speaker 5: unrifled chunk a lead that comes out at high velocity
Speaker 5: that's typically blunt, and it just you know, those, frankly,
Speaker 5: are the worst crime scene photographs I've ever had the view.
Speaker 1: I agree, I think it's one of the worst things
Speaker 1: I've ever seen.
Speaker 5: Yeah, and it is Justin's Yeah, this was not that.
Speaker 5: This was not that.
Speaker 1: So doctor Young concludes his affidavit by saying, had he
Speaker 1: been called to testify at Byron case's trial, he would
Speaker 1: have answered consistently with his affidavit. Among the many questions
Speaker 1: I sent to Prosecutor Teresa Craon was why didn't they
Speaker 1: call doctor Young to testify? I also asked what she
Speaker 1: thought about doctor Young's APFA David Remember. Her office issued
Speaker 1: the following statement quote, the office has decided that until
Speaker 1: all litigation is complete on this matter, it isn't a
Speaker 1: pro for a potential witness I e. Teresa to participate.
Speaker 1: But there might be a small hiccup when it comes
Speaker 1: to doctor Young. To Byron's current legal team, and in
Speaker 1: his affidavit, doctor Young says the way Kelly said Byron
Speaker 1: shot Anastasia is not consistent with the physical evidence. But
Speaker 1: doctor Young is interviewed for the twenty sixteen MTV show
Speaker 1: Unlocking the Truth, which looked at cases of possible wrongful convictions,
Speaker 1: Byron's being one of them. There, doctor Young says something
Speaker 1: very different, Kevin Maffin is.
Speaker 6: A witness the King.
Speaker 7: Later on everything she says fitstiavis.
Speaker 1: Unlocking the Truth is hosted by Ryan Ferguson, who was
Speaker 1: wrongfully convicted of a two thousand and one murder in Columbia, Missouri.
Speaker 1: He spent almost ten years in prison for the crime.
Speaker 1: By the way, Ryan Ferguson was convicted largely based on
Speaker 1: false eyewitness testimony. Okay, back to doctor Young talking with
Speaker 1: Ryan about Kelly.
Speaker 6: But there's a witness account in this case. She describes
Speaker 6: a rifle.
Speaker 7: Witnesses have been highly suspect in many cases.
Speaker 6: You don't pass judgment.
Speaker 7: On a witness accountanteam or what they have to say
Speaker 7: and compare.
Speaker 6: It to the evidence. It's called thinking dirty.
Speaker 7: Thinking dirty doesn't work no matter what kind of character
Speaker 7: this person is.
Speaker 6: You put that all aside and you look at the
Speaker 6: content of what they're saying.
Speaker 7: Witnesses observe things. The fact that there's something that is
Speaker 7: observed makes it a fact.
Speaker 6: Could they be lying? Maybe you test.
Speaker 7: It with the evidence, but that's still a fact. It's
Speaker 7: like a jigsaw puzzle. You know, you got a piece,
Speaker 7: you got a context here, you put the piece in.
Speaker 6: It'll fit or it doesn't fit.
Speaker 1: As you can imagine, doctor Jung's assessment of eyewitness testimony
Speaker 1: doesn't sit too well with Ryan. Doctor Young is then
Speaker 1: asked what in Kelly's testimony is consistent with his medical findings.
Speaker 7: She mentions that as she's sitting in the backseat, Byron
Speaker 7: gets the keys out of.
Speaker 6: The ignition, opens the trunk, pulls out.
Speaker 7: She says, I think it's a Honting rival and he
Speaker 7: puts the thing in her face.
Speaker 6: And fires it. All of that fips.
Speaker 1: Does that fit the physical evidence? Again? Kelly said Byron
Speaker 1: was five feet or more away from Anastasia when he
Speaker 1: shot her, So how does that fit his medical findings
Speaker 1: of it being a contact wound? Doctor Young continues.
Speaker 7: Past events are so complex. If somebody basically gives a
Speaker 7: past event account and everything lines up with evidence, that's remarkable.
Speaker 6: Somebody to just simply make.
Speaker 7: Up a witness account, align account and have everything line
Speaker 7: up with the evidence like that. They have to be
Speaker 7: aligned TVs to do that.
Speaker 1: I asked Byron's investigator, Quinn O'Brien what she makes of
Speaker 1: doctor Young's MTV interview and how it's in complete contradiction
Speaker 1: to his affidavit seven years later.
Speaker 8: Yeah, it is, And I think what happened was that
Speaker 8: the MTV people didn't give him the same things that
Speaker 8: we gave him. I think MTV gave him his old report,
Speaker 8: and based on his old report, he discussed these things.
Speaker 8: But we gave him Kelley mo off its transcript and deposition,
Speaker 8: We gave him the prosecutor's closing, and we gave him
Speaker 8: a few other documents. And with more information and with
Speaker 8: more context, doctor Young was able to come to a
Speaker 8: better decision. More information means a more accurate assessment. Right,
Speaker 8: Your expert is only as good as what you give them.
Speaker 8: I don't think he had the information that he needed
Speaker 8: to make a good assessment, because yeah, we saw that
Speaker 8: MTV thing too and went, huh, what's that about? You know,
Speaker 8: then when we gave him his report, we also gave
Speaker 8: him these other things, and he said, in context, here's
Speaker 8: how I came to my decision, Like I looked at
Speaker 8: Kelley Moffitt's testimony, and I looked at like, is what
Speaker 8: Kelly's saying? Is that true? According to what the evidence
Speaker 8: is showing me. He said that the gun was pressed
Speaker 8: up against the tip of Anastasia's nose. It could not
Speaker 8: have even been an inch away. It could not at
Speaker 8: all have been like, you know, a foot away or
Speaker 8: five feet away. It was.
Speaker 1: Doctor Young declined my invitation to be interviewed. In episode eight,
Speaker 1: I shared that I emailed doctor Young asking why he
Speaker 1: wrote in his autopsy report that Anastagia's corneas were clear,
Speaker 1: hoping to learn more about her time of death. He
Speaker 1: never responded to that question. I email him again to
Speaker 1: see what he has to say about his MTV interview
Speaker 1: and how it's very different from his twenty twenty three
Speaker 1: out of David, but he hasn't responded. So Byron's legal
Speaker 1: team feels good having doctor Young's affidavit in their pocket
Speaker 1: and they are just getting started. Turns out, Horton Lance,
Speaker 1: Byron's trial attorney, has a lot to say too, again
Speaker 1: not to me. Although he initially said he might agree
Speaker 1: to an interview. He asked me to call him back
Speaker 1: in a few weeks, which I did several times. He
Speaker 1: never returned to any of my calls, but in his
Speaker 1: July third, twenty twenty three affidavit he doesn't hold back.
Speaker 1: We hired another actor to read from Horton Lance's affidavit.
Speaker 1: Here are some of what he said.
Speaker 9: When I was assigned to Byron's case, very little work
Speaker 9: had been done due to the high case load of
Speaker 9: the public defender. Byron wanted a speedy trial because he
Speaker 9: was certain of his innocence and was held in pre
Speaker 9: trialed attention in the Jackson County Jail. These circumstances gave
Speaker 9: me less than six months to prepare for trial.
Speaker 1: Horton goes on to talk about his process for receiving discovery,
Speaker 1: how he maintained his files, and then he says this.
Speaker 9: I remember reading the state's response to my request for
Speaker 9: the criminal records of the state's witnesses. Their April third,
Speaker 9: two thousand and two response was that no witnesses had
Speaker 9: a felony or misdemeanor conviction. I am certain that I
Speaker 9: was never informed of Kelley Moffatt's criminal conviction. I have
Speaker 9: since reviewed the documents related to Ms Moffatt's April third,
Speaker 9: two thousand and one conviction of a Class A misdemeanor
Speaker 9: in Cooper County, Missouri. I was completely unaware that Miss
Speaker 9: Moffatt was on probation at the time of her March eighth,
Speaker 9: two thousand and two deposition. I would have used Miss
Speaker 9: Moffatt's criminal record and contacts with law enforcement to impeach
Speaker 9: her had the state disclosed that information, especially given the
Speaker 9: timing of her arrest and prosecution to when she gave
Speaker 9: her September two thousand statements implicating Byron. In her deposition,
Speaker 9: Kelly stated that she had never pled guilty to or
Speaker 9: been convicted of a felony or misdemeanor in state or
Speaker 9: federal court. The deposition was under oath, which means that
Speaker 9: miss Moffatt committed perjury by denying she pled guilty to
Speaker 9: a misdemeanor in state court. Had I known Kelly Moffatt
Speaker 9: lied under oath, I would have moved to exclude her
Speaker 9: testimony entirely, and if that was not successful, I would
Speaker 9: have cross examined her about having lied under oath. Kelly
Speaker 9: Moffatt was essential to the state's case. A first set
Speaker 9: of interviews by police cleared Byron of any involvement in
Speaker 9: Anastasia's death and corroborated Byron's persistent assertions of innocence. Then
Speaker 9: she changed her story to claim that she saw Justin
Speaker 9: Bruten kill Anastasia, until she changed her story again to
Speaker 9: accuse Byron. There was no evidence whatsoever implicating Byron in
Speaker 9: Anastasia's death. Without her testimony, the state could not have
Speaker 9: gotten the case to a jury.
Speaker 1: He goes on to say.
Speaker 9: Whether Anastasia got out of Justin's car that night was
Speaker 9: a significant point of contention at trial. If she got
Speaker 9: out of the car at Truman Rode and I four
Speaker 9: thirty five, then Byron is innocent and he would have
Speaker 9: a corroborated alibi. An independent witness, mechanic Don Rand, saw
Speaker 9: Anastasia get out of the car and walk across the
Speaker 9: parking lot of the service station where he worked on
Speaker 9: Truman Road near I four thirty five. Despite this, the
Speaker 9: prosecutors argued that Byron lied about Anastasia getting out of
Speaker 9: the car. Kelly Moffatt's testimony was the only evidence supporting
Speaker 9: that argument. Accepting Miss Moffatt's story and ignoring Rand's testimony,
Speaker 9: the state argued that Byron pressured Miss Moffatt into giving
Speaker 9: the police a false story.
Speaker 1: Horton Lands then goes on to write about meeting Byron's attorney,
Speaker 1: Brian Russell and being shown some emails Anastasia's dad sent
Speaker 1: to Sergeant Kilgore. Horton paraphrases the emails.
Speaker 9: When meeting with mister Russell at his office, I was
Speaker 9: shown several emails between Robert Whitbulls Fugen and the lead investigator,
Speaker 9: Sergeant Gary Kilgore. This was the first time I'd seen
Speaker 9: these emails, and several of them contained evidence that Anastasia
Speaker 9: Whitbulls Fugen returned home after being picked up at Dairy Queen,
Speaker 9: but before her death. Specifically, I never saw a January second,
Speaker 9: nineteen ninety eight email about Anastasia's genes being found in
Speaker 9: a dryer or Anastasia's underwear being found soaking in a
Speaker 9: sink in her home. I also do not recall seeing
Speaker 9: a January eleventh, nineteen ninety eight email about Anastasia's father
Speaker 9: finding her purse at the family home, which included a
Speaker 9: photograph of the purse. I also do not recall seeing
Speaker 9: a January twenty two, nineteen ninety eight email that mentioned
Speaker 9: witnesses seeing a young woman use a payphone. Because I
Speaker 9: did not have these emails, it never occurred to me
Speaker 9: that Anastasia went home before she died. If evidence demonstrating
Speaker 9: that Anastasia went home before she died had been produced
Speaker 9: to me, I would have used that to effectively cross
Speaker 9: examine Kelly Moffatt and corroborate Byron's innocent account of what
Speaker 9: he did that evening. It is now my understanding that
Speaker 9: mister Whitbull's Fugen and Sergeant Kilgore exchanged over one one
Speaker 9: hundred and forty emails related to the investigation. Less than
Speaker 9: ten of those emails were produced to me by the
Speaker 9: Jackson County Prosecutor before trial, none of which indicated that
Speaker 9: Anastasia returned home. If I had those emails and the
Speaker 9: photograph of the purse that mister whitbulls Fugen sent to
Speaker 9: the Jackson County Sheriff, I would have used them to
Speaker 9: examine Don Wright, the Dairy Queen employee who saw Anastasia
Speaker 9: in the hours before her death. Miss Wright provided Anastasia
Speaker 9: with an emergency tampon when Anastasia's period began in the
Speaker 9: Dairy Queen. I would have asked miss Wright if it
Speaker 9: was likely that Anastasia had soiled her underwear and jeans
Speaker 9: when she began her period at Dairy Queen. I would
Speaker 9: have asked her to confirm that she told investigators that
Speaker 9: Anastasia was wearing light colored blue jeans and sandals with
Speaker 9: socks at the Dairy Queen. I also would have asked
Speaker 9: miss Wright if the purse in the photograph that mister
Speaker 9: Whitbull's Fugen email to Detective Kilgore resembled the purse she
Speaker 9: saw Anastasia carrying. I would have used the emails to
Speaker 9: show that the clothing and purse were in the Whitbulls
Speaker 9: Fugen home, which meant that Anastasia returned there after leaving
Speaker 9: Dairy Queen and before her death. When Anastasia's clothes were
Speaker 9: examined by Robert Frank Booth of the KCPD Crime Lab,
Speaker 9: he reported the black jeans and underwear had no blood
Speaker 9: on them and that Anastasia had a clean sanitary pad,
Speaker 9: not a tampon. I could have used this to cross
Speaker 9: examine Miss Moffatt to further highlight that Anastasia went home,
Speaker 9: disproving Miss Moffatt's story. I would have reconsidered my decision
Speaker 9: not to call Sergeant Kilgore and or mister Whitbulls Fugen,
Speaker 9: so that I could prove that Anastasia did in fact
Speaker 9: get out of the car, call someone on the telephone,
Speaker 9: and go home after leaving the Dairy Queen and Mount
Speaker 9: Washington Cemetery. Mister Russell also played for me a recorded
Speaker 9: phone interview of mister Whitball's Fugen taken on January twenty second,
Speaker 9: nineteen ninety eight, by Sergeant Kilgore. This recording was not
Speaker 9: produced to me before trial. In that recording, mister Whitball's
Speaker 9: fugen states that he spoke with a father daughter couple
Speaker 9: at a Phillips sixty six gas station on Truman Road
Speaker 9: and I four thirty five that saw a girl matching
Speaker 9: Anastasia's description used the nearby payphones just before dark. The
Speaker 9: corresponding report of his interaction was produced to me before trial,
Speaker 9: attached as Exhibit F. However, that report does not state
Speaker 9: the interview was recorded, nor does it include mister Whitball's
Speaker 9: fugen's statement regarding these two additional witnesses. Had I known
Speaker 9: that two others claimed to have seen Anastasia use the payphones,
Speaker 9: I would have attempted to find them to corroborate that
Speaker 9: Anastasia got out of the car as don Rand justin Bruton,
Speaker 9: Ms Moffatt and Byron said, I recalled Teresa Crayon telling
Speaker 9: me via telephone that she would not be calling Sergeant
Speaker 9: Kilgore a trial. Miss Crayon said that the relationship between
Speaker 9: Sergeant Kilgore and one of the families involved, either of
Speaker 9: the Moffitts or the Whitball's fugens, had grown contentious. Miss
Speaker 9: Crayon asked if I'd like her to make Sergeant Kilgore
Speaker 9: available to me or subpoena's service or testimony. I declined.
Speaker 9: I believed at the time that Miss Crayon was doing
Speaker 9: me a favor by not calling the lead investigator to
Speaker 9: testify in this case. I was also one aware of
Speaker 9: the full extent of communications between mister Whitball's FUGEN and
Speaker 9: state's witness Kelly Moffatt. If I had known mister Whitball's
Speaker 9: fugen's level of involvement in the investigation into his daughter's death,
Speaker 9: I would have considered calling him as a witness for
Speaker 9: the defense. Knowing what I know now about mister Whitball's
Speaker 9: fugen's involvement in the investigation, his contact with other testifying witnesses,
Speaker 9: and his frequent contact with Sergeant Kilgore, I would have
Speaker 9: accepted Miss Crayon's offer to help place Sergeant Kilgore under
Speaker 9: subpoena to testify for the defense. At a minimum, I
Speaker 9: would have deposed him. Miss Crayon also told me that
Speaker 9: doctor Thomas Young, the medical examiner who conducted the autopsy
Speaker 9: of Anastasia, was not available for trial, and the doctor
Speaker 9: Chase Blanchard, who was not present for the autopsy would
Speaker 9: be testifying in doctor Young's place. I took Miss Grayon
Speaker 9: at her word and did not inquire with doctor Young
Speaker 9: about his availability. I have reviewed his affidavit of May tenth,
Speaker 9: twenty twenty three, where he opines that Kelly Moffatt's description
Speaker 9: of the shooting is wholly inconsistent with his autopsy findings.
Speaker 9: It would have been important for the jury to know
Speaker 9: that doctor Young's autopsy definitively established that the barrel of
Speaker 9: the gun that caused Anastasia's death was physically touching her
Speaker 9: nose when it fired, and that it is impossible that
Speaker 9: the gun was fired from three to five feet away,
Speaker 9: as Miss Moffatt testified. Had I known that would have
Speaker 9: been his testimony, I would not have consented to doctor
Speaker 9: Blanchard testifying in his place and would have called for
Speaker 9: doctor Young in Byron's defense. I remember Byron's trial steadfastly
Speaker 9: maintained his innocence throughout and following the trial proceedings. I
Speaker 9: remember Kelly Moffittt's testimony a trial. I recall her being emotionless,
Speaker 9: almost bored when answering questions the prosecutor's assertion in closing
Speaker 9: that Ms. Moffatt was emotional during her testimony rings false
Speaker 9: to me.
Speaker 1: Then Horton talks about the June fifth should or shouldn't
Speaker 1: record a call between Kelly and Byron.
Speaker 9: I remember the state using a transcript to a company
Speaker 9: the recordings of two phone calls between Kelly Moffatt and Byron.
Speaker 9: I do not recall where the transcripts came from. I assumed,
Speaker 9: without scrutiny that the transcripts were accurate. The recorded conversations
Speaker 9: were difficult to hear at times, and I believe we
Speaker 9: relied heavily on the transcripts to determine what was said
Speaker 9: on the tapes. I have since listened to the clear
Speaker 9: audio of the June five, two thousand recording, and it
Speaker 9: is apparent that Byron tells Miss Moffatt quote we should
Speaker 9: talk about this, not quote we shouldn't talk about this
Speaker 9: as the state and transcript represented as strengthens the argument
Speaker 9: I made to the judge that the transcript, the recording,
Speaker 9: and the conversation should not have been admitted because the
Speaker 9: foundation for a tacit admission is not satisfied. In my opinion,
Speaker 9: the false transcript was damning to the defense because the
Speaker 9: prosecutor used it as a tacit admission and also suggested
Speaker 9: in closing argument that Byron steered the conversation away from
Speaker 9: the subject by talking about Loose Park. In fact, Byron
Speaker 9: was giving Kelly Moffatt directions of where to meet to
Speaker 9: discuss the matter. Further, I felt at the time that
Speaker 9: the state could not lay a proper foundation for the
Speaker 9: statement as a tacit admission, and I argued accordingly. The
Speaker 9: better audio makes this argument even stronger.
Speaker 1: I don't know why Horton Lance doesn't want to talk
Speaker 1: with me. Maybe it's as symbol as he's just busy,
Speaker 1: he's an overworked public defender with not a moment to spare,
Speaker 1: or maybe he doesn't want to answer questions about what
Speaker 1: he did or didn't do while representing Byron, because it
Speaker 1: seems even with everything that he wrote in his affidavit,
Speaker 1: there may also have been some missteps or missed opportunities
Speaker 1: on his part that he'd rather leave in the past.
Speaker 1: As Byron's legal team is racking up affid davits, they
Speaker 1: decide to approach Judge Charles Atwell, the judge who presided
Speaker 1: over Byron's trial. Here's Byron's attorney Sean O'Brien.
Speaker 5: I could say I met Judge at Well forty six
Speaker 5: years ago. He's been a prosecutor, he's been a defense lawyer,
Speaker 5: he's been an assistant US attorney, and he went back
Speaker 5: to being a defense lawyer, and that's what he was
Speaker 5: when he became a trial judge. Loads of integrity, a
Speaker 5: good trial judge, good lawyer, highly ethical.
Speaker 1: And Byron's lawyers play the June fifth should or shouldn't tapes,
Speaker 1: the lesser quality one and the seemingly clearer one to
Speaker 1: see what Judge Atwell hears and what he remembers from trial.
Speaker 1: Here's Byron's attorney, Brian Russell.
Speaker 2: And we could tell by the trial transcript or pre
Speaker 2: trial transcript he put a lot of thought and effort
Speaker 2: into deciding whether to admit these tapes. And he's a
Speaker 2: good judge both by reputation and you know, you can
Speaker 2: tell he has a conscience. But yeah, so once we
Speaker 2: kind of were confident that there is a should and
Speaker 2: shouldn't and the transcript was an error, and we had
Speaker 2: multiple copies of the tape, we wanted to see if
Speaker 2: Judge at Well could remember which version of the tape
Speaker 2: we had sounded more like what was at trial, and
Speaker 2: so we played it for him. Had a bluetooth speaker
Speaker 2: that was higher quality, and we played the low quality
Speaker 2: tape for him first, and he asked if he could
Speaker 2: read the transcript while he was leader while he was listening,
Speaker 2: and I respectfully, your honor, and he was he's a
Speaker 2: retired judge now he does mediations and things like that,
Speaker 2: so there's no conflict with the pro he's a witness
Speaker 2: at this point. So we played it for him. He
Speaker 2: asked if he could see the transcript, and I was like, judge,
Speaker 2: just if you could just listen to it for now
Speaker 2: and then and then you can have a transcript after
Speaker 2: you've listened to him. He's like, okay, that's fine, and
Speaker 2: so he listens to the first version and then he
Speaker 2: was like, I mean, that sounds kind of like what
Speaker 2: it was at trial. And then he listens to the
Speaker 2: second one and he's like, yeah, no, the first, the
Speaker 2: lower quality one is what I remember it sounding like
Speaker 2: a trial. And then he listened to the second tape
Speaker 2: and he's listening to it and I'll never forget he's
Speaker 2: listening to the higher quality version and he's he's, you know,
Speaker 2: leaning his ear in and he goes, well, he says,
Speaker 2: we should talk about this. Well, what did the transcript say?
Speaker 2: And I handed him the transcript and he looked at
Speaker 2: it and his face just sunk and he just said,
Speaker 2: this is that is troubling. And he doesn't know, just
Speaker 2: like we don't know. We don't know how this came about.
Speaker 2: We just know that it did can't come about, and
Speaker 2: that Byron. That was half of the evidence they used
Speaker 2: to convict Byron.
Speaker 1: On July eighteenth, twenty twenty three, Judge Charles Atwell writes
Speaker 1: an afpid David about the June fifth tapes and more.
Speaker 1: We hired another actor to read from Judge Atwell's apphad David.
Speaker 1: Here are some of what he wrote.
Speaker 10: One of the major pre trial issues in this case
Speaker 10: was the admissibility of a June five tooth thousand and
Speaker 10: one phone call between the state's sole witness, Kelly Moffatt,
Speaker 10: and the defendant, mister Case. Mister Horton Lance represented mister
Speaker 10: Case and objected to the admission of the tape into
Speaker 10: evidence on the basis that the tape was not relevant
Speaker 10: and was not sufficiently accurate and reliable. For my consideration
Speaker 10: of this issue. The State provided me with a copy
Speaker 10: of a tape of the June five telephone call and
Speaker 10: a purported transcript of the tape. The state represented at
Speaker 10: the April nineteen, two thousand and two pre trial hearing
Speaker 10: that many parts of the tape were inaudible and the
Speaker 10: transcripts don't try to put forth anything that you can't
Speaker 10: hear on the tapes. With the aid of the transcript,
Speaker 10: at the April twenty five, two thousand and two pre
Speaker 10: trial conference, I noted Ms Moffatt's voice is very clear
Speaker 10: and distinct. Mister Case's voice is not as clear, is
Speaker 10: much softer and harder to understand. Although I was able
Speaker 10: with the aid of the transcript, I was able to
Speaker 10: understand what he said. I believed the transcript was accurate.
Speaker 10: The transcript represents that mister Case twice said to Miss Moffatt,
Speaker 10: we shouldn't talk about this. I ruled that the tape
Speaker 10: would be admissible as a tacit admission, assuming a proper
Speaker 10: foundation could be laid, including a chain of custody, and
Speaker 10: that the tape was not altered. The State said that
Speaker 10: the tape I listened to had been altered by a
Speaker 10: company in Springfield, Missouri, in an attempt to make it
Speaker 10: easier to hear the state represented to me that the
Speaker 10: alteration really didn't help, and we were left with the
Speaker 10: same thing we had before. They weren't able to enhance them.
Speaker 10: At trial, mister Lance renewed his objections to the quality
Speaker 10: of the tape and to its relevance, that the conversation
Speaker 10: did not reflect a tacit admission by mister Case. I
Speaker 10: overruled those objections. The jury was provided with the transcript
Speaker 10: to read as I listened to the tape. The trial
Speaker 10: transcript reflects that I orally instructed the jury as follows.
Speaker 10: The sole purpose for these transcripts is to aid you
Speaker 10: in listening to what's on the tape. The transcripts themselves
Speaker 10: are not evidence. They're only given to you to aid
Speaker 10: you to listen to what is on the tape. The
Speaker 10: tape is the evidence. If you feel that there is
Speaker 10: a conflict between the tape and the transcript, you should
Speaker 10: rely upon your memory of what the tape said. During deliberations,
Speaker 10: the very first thing the jury asked for was the
Speaker 10: June five tape and the transcript. Mister Lance objected again repeatedly.
Speaker 10: I allowed the jury to listen to the tape with
Speaker 10: the transcripts again. During deliberations, I was asked by mister
Speaker 10: Case's current counsel, Brian Russell and Sean O'Brien to listen
Speaker 10: to two digital versions of the June five, two thousand
Speaker 10: and one tape without the aid of a transcript. The
Speaker 10: first version was very hard to hear and sounded very
Speaker 10: much like what I remember the tape sounding like at
Speaker 10: mister Case's trial. The second version of the tape was
Speaker 10: somewhat clearer. I listened to that recording without the aid
Speaker 10: of a transcript, and while mister Case's voice was still soft,
Speaker 10: I was able to understand him. In response to Miss
Speaker 10: Moffatt's question asking why mister Case killed Anastasia Whitbol's fugen,
Speaker 10: mister Case clearly answers twice we should talk about this.
Speaker 10: Having listened to both tapes, it is apparent to me
Speaker 10: the transcript provided by the state as it relates to
Speaker 10: what mister k said was not a fair and accurate
Speaker 10: representation of the June five, two thousand and one phone call.
Speaker 10: I recognize that an inaccurate transcript creates the risk that
Speaker 10: the jury could be unfairly influenced I do not know
Speaker 10: whether the tape presented to me a trial was of
Speaker 10: lesser quality, or whether the device used to play the
Speaker 10: tape created distortion. If a clearer version of the June
Speaker 10: five recording was available at trial, that version was not
Speaker 10: presented to me. If I had known a trial that
Speaker 10: the audio could be played more clearly, I would have
Speaker 10: insisted on listening to the tape in the clearest version
Speaker 10: possible before making any ruling.
Speaker 1: Judge Outwell goes on to write about learning of Kelly's
Speaker 1: previous conviction.
Speaker 10: Mister Case's current council also showed me the state's discovery
Speaker 10: responses from April three to two thousand and two, where
Speaker 10: the state claims to have no information at this time
Speaker 10: with respect to any felony or misdemeanor convictions which the
Speaker 10: state's witnesses may have. Mister Case's current council also showed
Speaker 10: me that miss Moffatt was in fact convicted of a
Speaker 10: Class A misdemeanor in Cooper County, Missouri, on April three,
Speaker 10: two thousand and one, where she was sentenced to forty
Speaker 10: eight hours of shock time and two years probation, with
Speaker 10: the suspended execution of thirty days in jail. Mister Case's
Speaker 10: current council also showed me Kelly Moffatt's deposition transcript from
Speaker 10: March eight, two thousand and two, where she denied having
Speaker 10: any falony or misdemeanor convictions in state or federal court,
Speaker 10: or having any arrests. Mister Case had the right to
Speaker 10: impeach Miss Moffatt with this prior conviction. The defense also
Speaker 10: could have used Miss Moffatt's active probation status as evidence
Speaker 10: of interest, bias, or prejudice in favor of the state.
Speaker 10: In the affidavit, mister Land said that his motion for
Speaker 10: the criminal records of the state's witnesses was answered with
Speaker 10: the assertion that no such records exist.
Speaker 1: Judge Otwell goes on to say that mister Case's conviction
Speaker 1: was affirmed by the Missouri Court of Appeals. When he
Speaker 1: read the two thousand and four opinion, he said he
Speaker 1: believed there were important constitutional issues that were raised that
Speaker 1: he had not considered at the time of the admission
Speaker 1: of the tape recording at TRU. These issues were considered
Speaker 1: by the appellate court and did not result in a reversal.
Speaker 1: I write a Judge at Well, hoping he would speak
Speaker 1: with me, but he never responds interestingly enough. Evelyn Case,
Speaker 1: Byron's mother says back in twenty twenty two, Judge Atwell
Speaker 1: wrote her here she is talking about that.
Speaker 11: I would run into the judge. He doesn't live far
Speaker 11: from here. Actually, I would run into him at the
Speaker 11: grocery store and I corner him with my cart and
Speaker 11: I said, Judge, yet, well, cap, you got a minute.
Speaker 11: I was always polite, and I just told him, I says,
Speaker 11: Byron didn't do this, and.
Speaker 1: He didn't really know what to say.
Speaker 7: But that was.
Speaker 11: The start of me. I wasn't hounding him, No, I wasn't.
Speaker 11: I was very, very, very polite. But I would send
Speaker 11: him things like the book or the flyers, just to
Speaker 11: show him that we are busy with this. And then
Speaker 11: one day he sent me a letter, the judge, and
Speaker 11: I was so elated.
Speaker 1: What does it say right here? You want to read
Speaker 1: it for me?
Speaker 8: Yeah?
Speaker 11: You want me read it? Yeah, it's a good one.
Speaker 11: That came in twenty two March twenty third, twenty twenty two.
Speaker 11: Dear miss Case, Over the years, I have seen you
Speaker 11: on occasion, oftentimes at some MIP events. That's the Midwest
Speaker 11: Innocent Project, and I went for every one of them,
Speaker 11: you pay one hundred and twenty five dollars. And the
Speaker 11: first time I saw him there with his wife, I
Speaker 11: was like. I went up to him and I says,
Speaker 11: what are you doing here? And his wife looked at
Speaker 11: me very scared because you know, but I was like,
Speaker 11: this is the innocent project, what are you doing here. Also,
Speaker 11: over the course of years, I received correspondence from you
Speaker 11: and from others who I believe to be friends or acquaintances.
Speaker 11: I have decided it is time to write you back.
Speaker 11: I think I simply cannot imagine the pain a parent
Speaker 11: must feel if there is a son or a daughter
Speaker 11: in prison for a crime they did not commit. I
Speaker 11: know that you steadfastly believe in your son's innocence. As
Speaker 11: we all know, I was a trial judge to preside
Speaker 11: over your son's case and impose the sentence. Over my career,
Speaker 11: I have been involved or touched several cases involving there's
Speaker 11: some mistakes in here too, involving the issue of innocence.
Speaker 11: I have done so both as a prosecutor and as
Speaker 11: a defense lawyer. Providing innocence after conviction can be very
Speaker 11: difficult and very frustrating for the innocent who are seeking relief.
Speaker 11: I have long ago recognized that your son could be innocent.
Speaker 11: I remember how he was taken back when the wordict
Speaker 11: was read in the court room. So know that you
Speaker 11: have continually been his champion, believing totally in his innocence.
Speaker 11: As a retired judicial officer, I cannot and should be
Speaker 11: directly involved in Byron's case. Candidly, I am not fully
Speaker 11: aware of what has transpired since his conviction. However, please
Speaker 11: accept my prayers for you and him. I would encourage
Speaker 11: you to continue to seek any relief that is possible
Speaker 11: on behalf of your son. If there are any lawyers involved,
Speaker 11: I am happy to talk with them and give them
Speaker 11: my insight yours very truly. Charles e Edwell, that meant
Speaker 11: so much to me because I thought, oh, I did
Speaker 11: so much. I send him the books, I send them
Speaker 11: letters and kind of always just things about the progress,
Speaker 11: if it was progress or whatever, or.
Speaker 1: Something new or whatever. That's kind of a big deal.
Speaker 11: Yeah, that was a big deal to me. You know,
Speaker 11: I have three brothers and one brother. It's the same thing,
Speaker 11: you know, family. You don't know why people turn out
Speaker 11: like this. But he said it was falsified. Like, what what?
Speaker 1: That's right? One of Evelyn's brothers wondered if the Judge
Speaker 1: Atwell letter is a fake? Is it? I reach out
Speaker 1: to Judge at Well again to ask if he in
Speaker 1: fact wrote that letter to Evelyn, and he responds with quote,
Speaker 1: I would need to see the letter. I immediately send
Speaker 1: it to him. No response. I write him again, Still nothing.
Speaker 1: I'm going to post a photo of the letter on
Speaker 1: the Real Killer Podcast Instagram page. Does it look real
Speaker 1: to you? Byron's legal team now has affidavits from the
Speaker 1: medical examiner, the defense attorney, and the judge. Here's attorney
Speaker 1: Brian Russell.
Speaker 2: So one of the things that always bothered me about
Speaker 2: this case was, you know, Kelly says, Byron got a
Speaker 2: gun out of the trunk. I can't tell you what
Speaker 2: it looks like. It's just a gun. And he walks
Speaker 2: over to her from five feet away and lifts it
Speaker 2: to his shoulder and shoots her in the face and
Speaker 2: then she's blown backwards. But when you look at the
Speaker 2: autopsy photos, and you know, bullets they passed through you, right,
Speaker 2: they passed through, Especially a high powered bullet, it doesn't
Speaker 2: typically lodge in your body. If it's a rifle bullet.
Speaker 2: It goes through, it goes through you. All the damage
Speaker 2: that's done is the shockwave from the bullet and the energy,
Speaker 2: but most of the energy keeps going with that bullet
Speaker 2: far far away. And so if he shoots her while
Speaker 2: she's standing up, if there is a bullet fragment left,
Speaker 2: it's going to be somewhere inside her skull, and there
Speaker 2: are you can when you look at the X ray
Speaker 2: there are little tiny fragments inside of her skull, but
Speaker 2: there's a sizeable bullet fragment found on the other side
Speaker 2: of the exit wound matted in her hair. And it
Speaker 2: always bothered me because if a bullet has enough force
Speaker 2: to go through your skull, I just don't understand how
Speaker 2: your hair could stop it unless something was behind your
Speaker 2: hair to stop it. And so when we got the
Speaker 2: bullet and looked at it, you know, no one had
Speaker 2: ever analyzed it other than the crime lab initially to
Speaker 2: see if they could identify what type of bullet it was.
Speaker 2: And it's just a lead fragment. There's no jacket, or
Speaker 2: no jacket was found in the scene or anywhere around it.
Speaker 2: That kind of helps in some ways narrow down what
Speaker 2: type of bullet this might have been. It clearly rules
Speaker 2: out a shotgun.
Speaker 9: No.
Speaker 2: I mean, the fact that she still had a head,
Speaker 2: as gruesome as that is, tells you this wasn't a shotgun.
Speaker 2: And so, you know, trying to figure out what type
Speaker 2: of bullet this might have been, the crime lab could
Speaker 2: never figure it out. They still can't figure it out today.
Speaker 1: I posted photos of the bullet fragment on Instagram.
Speaker 2: So like half of the bullet that went through her
Speaker 2: head is found lodged in her hair. And so we
Speaker 2: turned that over to the crime lab with all of
Speaker 2: these pictures and asked them several questions, and one of
Speaker 2: those questions was isn't more like, based on the physical evidence,
Speaker 2: is it more likely than Anastasia was standing up or
Speaker 2: laying down when she was shot? And they gave us
Speaker 2: a report. And this is the Kansas City Regional Crime Lab,
Speaker 2: not some other you know yahoos that we hired to
Speaker 2: say whatever we want. And they said, I'm going to read.
Speaker 1: From the Kansas City Police Crime Labs No. November eighth,
Speaker 1: twenty twenty three blood Stain Pattern Analysis Report, which was
Speaker 1: written by Nicole Blackwell, the blood Stain Pattern Analysis technical
Speaker 1: leader like Brian mentioned for the crime labs examination. They
Speaker 1: sent the crime scene photos. They also shared the autopsy report,
Speaker 1: cranial X rays and other reports and more. Nicole Blackwell
Speaker 1: does note at the beginning of her report that the
Speaker 1: images provided were of relatively low resolution. She writes there
Speaker 1: are limitations surrounding the examination of bloodstains from only photographic evidence.
Speaker 1: Despite that, here is some of her opinion quote, there
Speaker 1: is no bloodstain evidence to suggest that Anastasia Whitwell's fugen
Speaker 1: was upright after bloodshed commenced. Therefore, the evidence and my
Speaker 1: observations below provide more support that she was shot while
Speaker 1: lying on the ground than in an upright position. She
Speaker 1: goes on to write, quote, there are no blood stains
Speaker 1: on or around her body that indicated any movement after
Speaker 1: bloodshed began. No dripstains or flow patterns were observed on
Speaker 1: Anastasia's clothing or face that would indicate an upright position,
Speaker 1: or any position other than the one in which she
Speaker 1: was found, which was on her back. The fanning of
Speaker 1: Anastasia's hair above her head does not support that she
Speaker 1: quote must have been standing when the gunshot was received.
Speaker 1: That last part about Anastasia must have been standing. Blackwell
Speaker 1: is quoting from a senior criminalist initial report back from
Speaker 1: around the time of the murder. Blackwell goes on to
Speaker 1: say her hair position and the gunshot could be completely
Speaker 1: unrelated events. Here's Byron's investigator. Quinno'brien.
Speaker 8: The blood splatter analyst said that gravity works in a
Speaker 8: certain way and that it is very possible, if not likely,
Speaker 8: that Anna's Stasia was laying down when she was shot.
Speaker 8: There's no blood on her shirt and if she had
Speaker 8: been upright gravity, according to the expert, gravity would have
Speaker 8: pulled at least some of that blood down at some
Speaker 8: point even before she fell down, but there's no blood
Speaker 8: on her shirt.
Speaker 1: It also makes you wonder if the ground stopped the bullet.
Speaker 1: I have wondered that because especially if it's sort of smashed.
Speaker 8: Yeah, and it does look smashed, and.
Speaker 1: If she were standing, then what it potentially would have
Speaker 1: just passed through?
Speaker 8: Right, And doctor Young says that what we're doing now
Speaker 8: is part of the Sherlock effect. Doctor Young, he talks
Speaker 8: about the Sherlock effects and how too many people get
Speaker 8: wrapped up and that like armshair detective kind of thing
Speaker 8: where they make theories and you know that it's just theories,
Speaker 8: he said. The big test is is the testifying witnesses
Speaker 8: testimony possible or is their story possible given the evidence
Speaker 8: in front of us.
Speaker 6: This is fun.
Speaker 12: It's fun to like pose it and think about these things,
Speaker 12: especially when you're removed from it, like we are like
Speaker 12: just the mechanics of things and the physics and the science.
Speaker 8: But first this is a real person. Yeah, And I know,
Speaker 8: and I always get away from that sometimes, like not always, and.
Speaker 1: Actually yeah, also trying to you know, figure out Yeah.
Speaker 1: By the way, doctor Jung wrote a book called The
Speaker 1: Sherlock Effect, How Forensic doctors and investigators Disastrously reason like
Speaker 1: the Great Detective. In it, he examines the Sherlock home
Speaker 1: style of reasoning, why it doesn't work, and how it
Speaker 1: can and does lead to wrongful convictions. So how much
Speaker 1: of this case has become about the Sherlock effect and
Speaker 1: how much of it is about hard, cold evidence. I
Speaker 1: asked Brian Russell what the blood stain analysis report means
Speaker 1: in terms of Kelly's story and the actual evidence.
Speaker 2: It's just one more thing that blows her story completely
Speaker 2: out of the water. I mean, I don't know why
Speaker 2: she made this up. I don't know who helped her
Speaker 2: make this up, but it is so clear that her
Speaker 2: story is made up.
Speaker 1: I do wonder, though, if Anastasia had been lying down
Speaker 1: when she was shot, then how was a piece of
Speaker 1: her skull found up to two feet away. Back to
Speaker 1: Nicole Blackwell's report, she also gives an opinion about the
Speaker 1: tire marks and car parts found at the scene. She writes, quote,
Speaker 1: no physical evidence has been provided that can position both
Speaker 1: the vehicle and Anastasia's body in the same place and time.
Speaker 1: So basically the tire marks, car paint, and headlight glass
Speaker 1: could have been left there at a different time, altogether
Speaker 1: completely unrelated to Anastasia's murder. Blackwell concludes her report with quote,
Speaker 1: no opinion can be rendered regarding the exclusion of the
Speaker 1: possible of suicide. There is no bloodstain evidence that can
Speaker 1: either support or refute a homicide or suicide claim. It
Speaker 1: is reasonable that a contact gunshot wound to the face
Speaker 1: may be carried out by oneself or another person. No
Speaker 1: gun was recovered from the scene. This in and of
Speaker 1: itself does not support or refute that Anastasia committed suicide.
Speaker 1: A gun was removed from this scene, regardless of if
Speaker 1: it was ruled a homicide or a suicide. By the way,
Speaker 1: no testing was performed on Anastasia's hands for trace metals.
Speaker 1: A few months before Nicole Blackwell's report came out, the
Speaker 1: team sent the actual bullet fragment to the Kansas City
Speaker 1: Police Crime Lab for the purpose of examining for the
Speaker 1: presence of apparent soil. On August twenty eighth, twenty twenty three,
Speaker 1: the trace report, written by Chief Criminalist Patrick Jones, comes out.
Speaker 1: While no apparent soil was detected on the bullet fragm
Speaker 1: Brian and the team are stunned by what is observed.
Speaker 2: Blue fibers were found and she was not wearing anything
Speaker 2: that was blue. There's a few different explanations and theories
Speaker 2: that we have for that, some of them innocent, some
Speaker 2: of them maybe not so innocent.
Speaker 1: Can you give me sort of an overview of.
Speaker 2: Sure, Depending on what type of gun this was, there
Speaker 2: are some bullets that could be packed packed with having
Speaker 2: a you know, like an antique type rifle or handgun.
Speaker 2: You know, I shouldn't call it a rifle, so like
Speaker 2: civil war type guns. There was something called there's something
Speaker 2: called wadding that is like a little piece of cloth.
Speaker 2: That is, you pour the gunpowder in, then you put
Speaker 2: this piece of piece of cloth in, then you put
Speaker 2: the bullet in, and so that could have been hit,
Speaker 2: you know. But also Anastasia's bed sheets were blue, so
Speaker 2: there could have been some at some point maybe she
Speaker 2: had had blue fibers in her hair that the bullet
Speaker 2: picked up when it after it went through her skull.
Speaker 2: There's yeah, we had that. That's still an open question
Speaker 2: in our investigation is where a blue fiber came from.
Speaker 1: That's here's Quinn again.
Speaker 8: The Kansas City Crime Lab has infinite patients with us,
Speaker 8: like non scientific idiots, you know, asking questions like what
Speaker 8: kind of fiber is it? What does this mean? It's like, well,
Speaker 8: it looks you know, it's a fiber, which means it's
Speaker 8: fiber us and it's blue. But you know, you'd have
Speaker 8: to have it tested to know if it was paper
Speaker 8: or wood, pulp or fabric or and it would still
Speaker 8: not be super decisive because it's so small. And when
Speaker 8: the police went to the house to look at the house,
Speaker 8: when they found a taser just sitting on I don't
Speaker 8: know what to make of that. All I have are
Speaker 8: like theories and my imagination. But yeah, that's what makes
Speaker 8: this part of the story so hard. There are still
Speaker 8: a couple of things that I don't know about. Damn.
Speaker 8: Those bed sheets are blue, and there's a taser on them,
Speaker 8: and there's a blue fiber on that lead fragment, and
Speaker 8: I don't know what to do with that.
Speaker 1: Okay, I don't have any police reports or photos that
Speaker 1: show Anastasia's bed sheets were blue, so this is not
Speaker 1: yet confirmed. All I have is a case related memo
Speaker 1: that says Sergeant Kilgore did, in fact have Anastasia's linens.
Speaker 1: There's no mention of what color they are, and there's
Speaker 1: no mention of Anastasia's bed sheets in any of the
Speaker 1: evidence logs I have. Quinn and the others are looking
Speaker 1: through their files for documentation that proves Anastasia's bed linens
Speaker 1: were blue. But since we don't have that, is this
Speaker 1: the perfect example of the Sherlock effect without any evidence
Speaker 1: of what the blue fibers actually are. Isn't this pure
Speaker 1: speculation that Anastasia's bed sheets are somehow tied to the
Speaker 1: blue fibers on the bullet and ultimately her murder. The
Speaker 1: last affidavit we are going to talk about in this
Speaker 1: episode was written by a friend of Kelly's. Her name
Speaker 1: is Angie Giannino. She and Kelly were close friends starting
Speaker 1: around nineteen ninety nine. Two thousand, Angie was driving when
Speaker 1: Kelly threw that bottle of alcohol out of the car
Speaker 1: window in Cooper County, which resulted in both of them
Speaker 1: getting arrested. Remember, Kelly was charged with littering. There was
Speaker 1: a warrant out for her arrest. She eventually pled guilty
Speaker 1: and was given two years probation and forty eight hours
Speaker 1: of shock time in jail. Anyway, on February twenty second,
Speaker 1: twenty twenty three, Angie writes an affi David. Besides discussing
Speaker 1: the days she and Kelly got arrested, she also talks
Speaker 1: about how she was at Kelly's house for the June
Speaker 1: fifth recorded phone call with Byron. I'm going to read
Speaker 1: what she wrote about that quote. I was present on
Speaker 1: June five, two thousand and one, when Kelly Moffatt called
Speaker 1: Byron Case on behalf of the Jackson County Prosecutor's office
Speaker 1: in an attempt to have Byron Case confess to the
Speaker 1: murder of Anastasia Whitpolsfugen. When I arrived at Kelly's house
Speaker 1: the day of the phone call. A woman I assumed
Speaker 1: was law enforcement was already there. Kelly told me she
Speaker 1: needed me to come over for emotional support. Kelly had
Speaker 1: been drinking heavily and drank up until the phone call.
Speaker 1: I did not hear the actual conversation Kelly had with Byron.
Speaker 1: I assumed the woman who was present for the call
Speaker 1: was law enforcement, even though she was not in a uniform.
Speaker 1: I do not remember the name of that female officer.
Speaker 1: I'm sure the officer told me her name, but I
Speaker 1: don't remember what it was. This person was not part
Speaker 1: of Kelly's family, and I assume this woman listening in
Speaker 1: on Kelly's call was law enforcement. Kelly was in a
Speaker 1: chair by the sliding glass door while I was there.
Speaker 1: I sat on the couch. I believe the woman was standing.
Speaker 1: So who is this woman? Angie is describing. Quinn and
Speaker 1: the rest of Byron's legal team think they know.
Speaker 8: The very first prosecutor who was looking into this case,
Speaker 8: who was assigned to this case, was Amy mcgallan. Even
Speaker 8: with Kelly's statement, They're like, this just isn't enough. There's
Speaker 8: not enough here. We don't think we have what we
Speaker 8: need to get a conviction for Byron case. They need
Speaker 8: a confession. They know that they need a confession, and
Speaker 8: so Kelly volunteers to get that confession for them. Months
Speaker 8: go by, months go by, nothing, There's no call to Byron.
Speaker 8: Kelly hasn't been able to reach Byron. They haven't talked.
Speaker 8: It's not clear that Kelly is even trying at this point.
Speaker 8: And that's when she gets picked up on the warrant
Speaker 8: down in Boonville in Cooper County. Now, the problem that
Speaker 8: I have with some of this is that she gets
Speaker 8: Byron on the phone. Kelly gets Byron on the phone twice.
Speaker 8: The second time, it's documented that a lieutenant, a female
Speaker 8: lieutenant from the Jackson County Sheriff's Department, is there. The
Speaker 8: first time, there's no documentation of anyone being there except
Speaker 8: Angie g Andino, and we know Angie was there because
Speaker 8: we can hear Angie talking in the background before the
Speaker 8: call starts. There are no other documented members of law
Speaker 8: enforcement who are women on this case except for Amy
Speaker 8: McGowan and the lieutenant who's there for the second call.
Speaker 8: So we have pretty good reason to believe that Amy
Speaker 8: McGowan was there. Pressuring Kelly into making this call. We thought,
Speaker 8: for a minute, Wait a second, what if Angie's confused
Speaker 8: and she's remembered the deputy that was there. Well, first
Speaker 8: of all, we think the deputy was uniformed. And second,
Speaker 8: that night, Angie's voice isn't on the tape. She's not there.
Speaker 8: Her voice shows up at the beginning of the June
Speaker 8: fifth call when Kelly is testifying on the stand. Kelly says,
Speaker 8: that voice belongs to my friend Angie.
Speaker 1: What difference would it make if Amy McGowan were there
Speaker 1: or not? I mean, like, why would that matter.
Speaker 8: I'm not sure that Kelly Moffatt would have made these
Speaker 8: phone calls if it weren't for the pressure of Amy McGowan,
Speaker 8: or if it weren't for the pressure of a potential
Speaker 8: deal or a potential charge over her head. I don't
Speaker 8: think that Amy McGowan was being honest when she told
Speaker 8: her colleagues that there's no you know, no other deal
Speaker 8: with Kelly. You know, Kelly was offered immunity for her testimony.
Speaker 8: I think there were other coercive measures taken to to
Speaker 8: get Kelly's testimony. I think Kelly was a vulnerable young
Speaker 8: woman and an addict who was doing things in service
Speaker 8: to her addiction. We know Kelly had contact with law
Speaker 8: enforcement and that the prosecution didn't disclose that, and it
Speaker 8: might not seem like a big deal, you know, it's like, oh,
Speaker 8: it's maybe like, you know, a night in jail, two
Speaker 8: nights in jail, it's just a misdemeanor charge. Well, you
Speaker 8: try spending seventy two hours in a cell detoxing from
Speaker 8: whatever drugs you're on. It's not pleasant. You know, she
Speaker 8: could be facing more time because at this point she's
Speaker 8: got drugs on her. You know, she's she's looking for drugs.
Speaker 8: There's no doubt in my mind that there is more
Speaker 8: to Kelly's story of being picked up on that warrant
Speaker 8: and taken back down to Boonville in Cooper County. What
Speaker 8: it is, I don't know. I don't know if the
Speaker 8: rumors are right that she was caught with even more
Speaker 8: drugs and then taken down to Cooper County because she
Speaker 8: had that warrant. I don't know if the prosecutor called
Speaker 8: and said, hey, this person isn't cooperating with us. She
Speaker 8: won't get the guy we think is the purp on
Speaker 8: the phone, and we need her to get on the
Speaker 8: you know, get on the horn and get this guy's confession.
Speaker 8: She's not doing it. Let's let her know that she
Speaker 8: needs to be doing this. You know, I just I
Speaker 8: would not put it past to Amy McGowan to be
Speaker 8: that kind of threatening and coercive. I freed people that
Speaker 8: Amy McGowan has put in prison before.
Speaker 1: You know, I don't.
Speaker 8: I'm not putting it past her to have really pressured
Speaker 8: Kelly into calling Byron and trying to get that confession,
Speaker 8: or pressured Kelly into testifying this way.
Speaker 1: I mean, these are some big, big allegations. We have
Speaker 1: no idea if Amy McGowan was even there, let alone
Speaker 1: pressuring Kelly to make the call. It is fair to
Speaker 1: say that Amy McGowan has been accused of some prescatorial
Speaker 1: misconduct during her career. Though. In twenty nineteen, Ricky Kidd,
Speaker 1: who both Quinn and Sean O'Brien represented, was released from
Speaker 1: prison after spending twenty three years behind bars for a
Speaker 1: nineteen ninety six double murder. It seems Amy McGowan withheld
Speaker 1: evidence of an alternate suspect in his case. Once that
Speaker 1: came out, other evidence that pointed to Ricky's innocence surfaced,
Speaker 1: the state's Office of Chief Disciplinary Council asked for Amy
Speaker 1: McGowan's law license to be suspended. In October of twenty
Speaker 1: twenty two, the Missouri Supreme Court said there wasn't enough
Speaker 1: evidence to support taking that action. She has since retired.
Speaker 1: I asked Brian why Amy McGowan didn't stay on Byron's case.
Speaker 2: We don't know why Amy McGowan didn't take this case
Speaker 2: to trial, or why we know that she filed it.
Speaker 2: We know that she was Kelly Moffatt's point of contact
Speaker 2: while the investigation was still going on. We know that
Speaker 2: she knew about the tape being made before Sergeant Kilgore
Speaker 2: knew about the tape being made. And so there's probably
Speaker 2: an innocent explanation for why she didn't try this case.
Speaker 2: Maybe it's because she was too busy preparing for Richard
Speaker 2: Buckley's case, which happened a couple months after this, which
Speaker 2: was another wrongful conviction of hers, where she helped conceal
Speaker 2: exculpatory evidence. After she left Jackson County, she went to
Speaker 2: Douglas County, Kansas, and there's at least three other wrongful
Speaker 2: convictions over there. As clear she has a pattern of
Speaker 2: not taking her ethical duties as an attorney seriously. And
Speaker 2: I don't know if that's because, you know, what's the saying,
Speaker 2: be careful when you go chasing monsters unless you become
Speaker 2: one yourself. I don't know if that's I don't know
Speaker 2: if that explains it, or if she just doesn't care,
Speaker 2: or or she just has several missunderstandings.
Speaker 1: Kelly Moffatt's friend Angie Giannino, never positively identified Amy McGowan
Speaker 1: as the female plane closed officer at Kelly's house on
Speaker 1: June fifth. I try to speak with Amy McGowan, but
Speaker 1: am unsuccessful at finding a working email or phone number
Speaker 1: for her. So I FedEx a letter to where I
Speaker 1: believe she might live, asking if she'd be willing to
Speaker 1: speak with me, but she never responds. I'm not even
Speaker 1: sure she got it. I am able to find the
Speaker 1: uniformed officer who was there for the second recorded phone
Speaker 1: call between Kelly and Byron. She's no longer working in
Speaker 1: law enforcement, so I'm not going to reveal her name,
Speaker 1: but via Facebook Messenger, she wrote, quote, I really do
Speaker 1: not recall this case. I doubt I'd be much assistance,
Speaker 1: So then I offered to send her her reports to
Speaker 1: refresh her memory. She said she wasn't interested, but she
Speaker 1: wishes me the best with my work. I then write
Speaker 1: her one last question, asking quote, around that time in
Speaker 1: your career, would you wear a uniform on a regular basis?
Speaker 1: She never responds to that. So maybe the unknown woman
Speaker 1: Angie described seeing on June fifth was Amy McGowan, or
Speaker 1: maybe she was this former officer, although when this officer
Speaker 1: was present, she wrote a report about it, and I
Speaker 1: don't have any police reports from this officer saying she
Speaker 1: was there on June fifth. Before I get back to
Speaker 1: Angie Ginino, I want to let you know that this season,
Speaker 1: for the first time in our three seasons, the story
Speaker 1: is still unfolding. As the episodes are dropping, new discoveries
Speaker 1: are being made, and new interviews are taking place as
Speaker 1: we speak, which brings me to Kelly. She's been listening
Speaker 1: to the podcast and emailing me to share some of
Speaker 1: her feelings about what she's hearing. As you can imagine,
Speaker 1: there has been a range of emotions. After episode six,
Speaker 1: Kelly writes, quote, I'd like to set some things straight
Speaker 1: and also get the message out there for people to
Speaker 1: not quit fighting for genuine, wrongful convictions because of people
Speaker 1: like Byron. But I need honesty from you before I
Speaker 1: feel comfortable doing So what is your angle on all this?
Speaker 1: She goes on to write, quote, I need you to
Speaker 1: tell me exactly what your conclusion is going to be
Speaker 1: about Byron's claims of innocence. I will absolutely not be
Speaker 1: involved in anything that paints him as innocent or even
Speaker 1: hints at it. He's not innocent, and he knows it
Speaker 1: and is taking valuable resources and time away from those
Speaker 1: who are. I need your complete honesty and will get
Speaker 1: a lawyer involved so you can't suddenly spin it after
Speaker 1: getting the interview. So I respond to Kelly saying, I'm
Speaker 1: proud of the journalistic work we are doing the season,
Speaker 1: which is not advocacy journalism. We make no determination on
Speaker 1: Byron's guilt or innocence, and I suggest Kelly listened to
Speaker 1: all of the episodes before making her decision on whether
Speaker 1: to sit down for an interview or not. Then, after
Speaker 1: episode eight drops, Kelly writes again asking me to forward
Speaker 1: her contact info to Byron's legal team because quote, they
Speaker 1: have so much information wrong that it is absolutely ridiculous
Speaker 1: and it's what they are basing all their theories on.
Speaker 1: It's insane how much they have wrong. Per Kelly's request,
Speaker 1: I forward her contact info to Byron's team. I hope
Speaker 1: Kelly agrees to talk with me. I'll keep you posted, Okay.
Speaker 1: Back to Angie Giannino, who said a lot in her affidavit,
Speaker 1: she also says a lot to me. Since this happened
Speaker 1: more than two decades ago, there are some details that
Speaker 1: are a bit fuzzy for Angie, but she can very
Speaker 1: clearly recall one day in particular, when Kelly made a
Speaker 1: devastating and shocking confession before ever coming forward to police.
Speaker 13: And she's bawling and freaking out, and I was like,
Speaker 13: my friend gives them a lot of pain.
Speaker 1: What did Kelly tell you?
Speaker 13: Oh my god, she told me that she witnessed Byron
Speaker 13: murder Anastasia.
Speaker 1: Next time on the Real Killer.
Speaker 13: It just felt like a very dark horse, Like I
Speaker 13: just felt a very dark energy in the home.
Speaker 1: Two friends, two stories.
Speaker 9: My friend's really about the least violent person I ever knew,
Speaker 9: So the idea that he'd be involved.
Speaker 6: With let alone, like, you know, the primary actor in
Speaker 6: such a place, because it didn't seem believable to.
Speaker 1: Me, who is telling the truth? Did Byron ask you
Speaker 1: to live for him to be an alibi? The views
Speaker 1: and opinions expressed in this podcast are solely those of
Speaker 1: the individuals participating in the podcast. If you or someone
Speaker 1: you know is experiencing suicidal thoughts or a crisis, please
Speaker 1: no help is available. Call or text nine to eight eight,
Speaker 1: or chat online at the Suicide and Crisis Lifelines website
Speaker 1: at nine eight eight lifeline dot org. To see photos, maps,
Speaker 1: and documents related to this season's story, follow The Real
Speaker 1: Killer Podcast on Instagram and at TRK podcast on TikTok.
Speaker 1: The Real Killer is a production of AYR Media and iHeartMedia,
Speaker 1: hosted by me Leah Rothman, Executive producer Leah Rothman and
Speaker 1: Elisa Rosen for AYR Media. Written by Leah Rothman, editing
Speaker 1: and sound design by Cameron Taggy, mixed and mastered by
Speaker 1: Cameron Taggi, Production coordinator Andy Levine, Audio engineer Justin Longerbeam
Speaker 1: studio engineer Graham Gibson. Legal council for AYR Media. Jonny
Speaker 1: Douglas Voice acting by Brad Avenue, Tom Virtue, David Teitelbaum
Speaker 1: Executive producer for iHeartMedia. Maya Howard