February 13, 2025 • 58 mins
Evelyn Case has been fighting to prove her son’s innocence for decades. In 2022, there is renewed momentum, when a new team of lawyers takes his case and uncovers critical evidence that challenges Byron's conviction. Despite Leah’s past work with this legal team, she makes clear her loyalty is not to them, but to exposing whatever the truth may be.
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Speaker 1 (00:00):
A warning.
Speaker 2 (00:01):
This episode contains depictions of violence and conversations about suicide
that may be disturbing and triggering for some listeners. If
you are struggling with suicidal thoughts, please fast forward to
the end of this episode to find out where help
is available.
Speaker 1 (00:22):
I saw him from behind. He was like, he was so.
Speaker 3 (00:25):
Stoic, sitting there in his suit. He was like, it's like,
I still remember.
Speaker 1 (00:31):
It so well.
Speaker 3 (00:33):
God, he just saw his body just kind of collapsing.
Speaker 2 (00:41):
That's Evelyn Case. Byron Case's mother describing the moment her
son is found guilty of killing Anastasia Whipples Fugen lapsing.
Speaker 1 (00:50):
And when they took him out of the room, you know,
it was horrible. My body's shaky, just the memory of it.
Speaker 2 (00:58):
All, Evelyn says, from that moment on, her mission in
life is clear to prove Byron is innocent. I'm Leah Rothman.
(01:18):
This is the real killer. Episode seven, Bad, Better and Blank. Okay,
So show me some of the photos that you have
of Byron.
Speaker 3 (01:36):
Oh, so many.
Speaker 1 (01:36):
Photos, so many, so many chimneys.
Speaker 3 (01:41):
Look at my little boy. We had a chimney sweep business.
Because you know, I'm from Germany and I always believe
chimney sweeps brought good luck, any.
Speaker 1 (01:48):
Cute Halloween or no.
Speaker 3 (01:51):
No, we were chimney sweeps who he had a little
outfit for him.
Speaker 2 (01:56):
I meet with Evelyn at her home in Kansas City,
where she lived with her best friend and canine companion, Airbender.
Speaker 1 (02:05):
This is cute to look at us. That's us. That's
how we traveled to the backpackers. Yes, we were backpackers.
Is that Dale and by that's Dale and Byron.
Speaker 3 (02:15):
I think they were in Texas.
Speaker 1 (02:19):
This was when we were divorced.
Speaker 3 (02:22):
That wasn't his lover, but they were all friends because
we had a lot of gay friends. So that's what
they did to his room. And they had all the
legos and this is Byron's room.
Speaker 1 (02:31):
Yeah, there was. Oh so they decorated Byron's room. They
did really they did good with him. I mean they
you know, he was loved.
Speaker 2 (02:41):
Evelyn is warm and funny and quite the character, and
her eclectically decorated craftsman style house is a direct reflection
of that. It's full of lush plants, art, pottery, and
mementos from her many travels, as well as several photos
of the most important person in the world to her, Byron.
Speaker 3 (03:02):
Well, these are not my favorites, but this is what
don't you love about these photos? Well, that's the goth
the look on his face like I'm tough for something
I don't know. I don't know where this was in
the coffee shop, but he's got mescara on. And that
didn't bother me because there's a lot of musicians that do.
Speaker 1 (03:22):
That, so that really didn't bother me.
Speaker 3 (03:24):
Is this Byron when he moved to Saint Louis? Does
he look unhappy? Does he look like he would have
killed somebody? He left because of Kelly. He says, I've
got to get out of here, and he did, and
he was happy.
Speaker 2 (03:37):
Evelyn and I talked for three hours about Byron's childhood,
her ex husband, Byron's father Dale, and of course the
events of October twenty second, nineteen ninety seven, the night
Anastasia was killed. But wait a minute, So he comes
home around what time.
Speaker 1 (03:54):
Ten or ten?
Speaker 3 (03:56):
I know Kelly had curfew at nine and he brought
her home. And then he came home right after that
and Justin brought him. Robert kept saying he saw Byron's cars. Well,
Byron's car was in the shop.
Speaker 2 (04:09):
Evelyn is referring to Robert whitbolsfugen Anastasia's father. Remember, Bob
told Sergeant Gary Kilgore he saw Byron's car with the
morbid license plates and the caravan of cars going down
Truman Road the night of October twenty seconds.
Speaker 3 (04:26):
Because when Byron came home that night, when this supposedly happened,
there was nothing different about him. I mean, I can
tell things. There was nothing different. He came home at
ten o'clock, give or take, and so maybe a few
minutes after and you know, goes to refrigerator, and then
he had two cats, and he had his room. There
(04:48):
were times that he would then spend the night over
at Justin's. They were playing video games and this and that.
But I knew where he was at, and his room
was always there when he came home. And then sometimes
he was gone for three days or something, and I go,
it's nice to see you, you know, But when do
you let go of your children? You have to let
them experience life. But you it's the sad part. You
(05:12):
can have the best childhood and then something like this happens.
You know, he was raised, non violent, non racist, non sexist.
Why would you want to. I mean the things that
Kelly came up with. Sure, maybe they were talking weird
stuff at times, but that doesn't mean you're going to
(05:32):
do something. You know, he was doing good things, always
doing good things for people.
Speaker 1 (05:37):
Do nobody saw that. It's just always gotten, you know
what we were hippies or this or that. Everybody's something.
Speaker 3 (05:44):
That doesn't mean you know, you know, devil worshippers or
whatever they came up with, that's not it. He loved,
he loved wearing black, and he had his trench coat
and his Doc Martin boots, and and then what he
did out there, I have no idea them boys, but
no killing somebody.
Speaker 4 (06:03):
No.
Speaker 2 (06:04):
So he comes home around ten, he goes into the kitchen.
Speaker 1 (06:07):
Yeah, because we were watching the movies.
Speaker 3 (06:09):
But he was happy, he was happy to be home,
greeted us, and everything was there was nothing tense or anything,
and so I just left it at that.
Speaker 2 (06:18):
Did you notice anything odd about his appearance? Did he
looked like he had been crying or upset, or did
he have any boy.
Speaker 1 (06:26):
I would have said something then, oh my goodness.
Speaker 3 (06:30):
You know, if I spot something like this, then I
asked questions, But I had no questions to.
Speaker 1 (06:34):
Ask no blood on him, No, hardly. Oh my god.
Then I would have freaked out for sure. So imagine
so he goes to his room. Yeah, did Byron go
back out that night?
Speaker 5 (06:48):
No?
Speaker 1 (06:48):
Would you have heard him?
Speaker 3 (06:50):
Yeah? Oh yeah. His bedroom was right next to me
and you can hear the doors, you know, it's the
old apartments.
Speaker 1 (06:56):
Yeah, no he did. Would you help with home?
Speaker 3 (06:59):
And I mean Napoleon would be a witness on that too,
you know, he's there with me.
Speaker 1 (07:04):
And did police ever talk to Napoleon? I don't think so.
Speaker 2 (07:10):
Napoleon Perez was Evelyn's boyfriend at the time. They eventually married,
then later divorced, but today remain friends. After Byron mentioned
Napoleon being there that night, I looked through the case
file I was sent from the Jackson County Sheriff's Department
again and saw nothing that said Napoleon was ever interviewed
by law enforcement. I ask Evelyn if she was ever
(07:34):
interviewed Sergeant Kilgore, Huh did you have any interactions with
Sergeant Kilgrere?
Speaker 1 (07:38):
Think so? I really don't think so so.
Speaker 2 (07:43):
But the only documentation I have regarding Evelyn as an
interoffice memo dated May fifteenth, two thousand so that was
about four months before Kelly comes forward. The memo is
from Sergeant Kilgore, written to his superiors. Kil Gore says
he was contacted by Assistant Prosecutor Jeff Busher because Anastasia's dad, Bob,
(08:07):
wanted to review the homicide case file. Bob was unhappy
with how the investigation was being conducted by the Jackson
County Sheriff's Department, so Assistant Prosecutor Buscher was instructed to
review the file himself. Busher did, and afterwards said the
investigation up until that point had been conducted quote thoroughly
(08:29):
and appropriately. Busher did share with kil Gore that he
didn't believe Bob observed that caravan of cars the night
of the twenty second the way he described one suggestion
was made to kill Gore, though Busher thought Evelyn Case
should be contacted to quote determine if she could verify
(08:49):
the times mister Case was at her apartment the evening
of ten twenty two ninety seven and the early hours
of ten twenty three, ninety seven. I have no real
ports or memos that show Kilgore ever followed through with this. Okay,
back to the night of October twenty second. Evelyn says,
after she and Napoleon finished the movie, they go to bed.
(09:13):
Nothing else to report, really until the following morning.
Speaker 3 (09:17):
The next morning, the phone rings and it's Justin and
he says, can I talk to Byron? I says, I said,
he's still asleep, And he says, could you wake him up?
And I said, okay, just a minute. So I got
Byron up, and this is what happened.
Speaker 1 (09:39):
He told me.
Speaker 3 (09:40):
He says, oh, Justin wanted me to go out to
breakfast with him. He said he couldn't sleep last night.
He wanted me to go down to breakfast and and
and he said.
Speaker 1 (09:50):
No, I'll catch up with you later.
Speaker 2 (09:52):
Within an hour or so of that call, Justin buys
a shotgun. Two days later, on October twenty fifth, Justin
has found dead, having taken his own life.
Speaker 1 (10:04):
Have you ever known Byron to have a gun? No?
Have you ever known Byron to go hunting? No?
Speaker 2 (10:11):
Did you ever know Dale, your ex husband, Byron's father,
to ever own any guns?
Speaker 4 (10:17):
No?
Speaker 1 (10:17):
Did he ever go hunting? No? Did he ever display
any guns on his wall?
Speaker 4 (10:23):
No?
Speaker 1 (10:24):
Have you ever known Byron to be violent? No? Never? Never.
He's like his dad. His dad do you know that man?
And I never argued? His father and I never argued.
Speaker 2 (10:38):
Did you hear the rumors that Byron and Justin were lovers?
Speaker 5 (10:44):
Yeah?
Speaker 1 (10:44):
I heard that too, Yeah, they weren't stupid.
Speaker 2 (10:52):
I wonder what Evelyn thought about Byron's account of that
evening that the last time he saw Anastasia was when
she got out of Dustin's car on Truman Road at
the I four thirty five possible? Did you believe him?
Did you know? I mean, as a mother, you know
when your kid is lying. What was the tailtale signs?
(11:14):
When Byron wasn't telling you the truth?
Speaker 3 (11:16):
I don't remember him not being truthful very often in
his life. To be very honest, I don't think. I
really don't, unless I'm just I don't think he lied
to me. I can't, would you ever? I mean, because
people might think a mother would cover for their son. No,
I believe in the truth. Might have been my Catholic upbringing.
(11:40):
I don't go to church eater. I mean that dog.
I was cramped down my throat too, But no, I'm not.
I wouldn't do that. No, And if he would have
done it, then everything would be different, because I wouldn't
have fought for twenty years. The way I was fighting
tooth and nail, tooth and nail. I got myself in
trouble at times, going up to the law school, Young KC.
(12:03):
Law School and plastering flyers all over the place.
Speaker 1 (12:07):
Yeah, and just no, I would not be fighting like this.
Speaker 4 (12:11):
No.
Speaker 2 (12:14):
In the years following Byron's conviction, Evelyn posts free Byron
flyers at the local law school and around town. She
writes letters and talks to even chases down anyone who'd listen.
It is safe to say she was obsessed with clearing
her son's name. Around twenty ten, the Midwest Innocence Project
(12:36):
looks into Byron's case. Remember you heard about them in
season one. They represented Rodney Lincoln, but ultimately MIP passes
on taking Byron's case. After that, Evelyn redoubles her efforts.
She helps Byron petition Governor j. Nixon for an absolute pardon,
which is eventually denied. She goes to Washington, D C.
(12:59):
And addresses members of Congress. She meets one on one
with US Senator Claire mccaskell of Missouri. She shares with
people the book Byron wrote from prison, The Pariah Syntax
notes from an innocent man, as well as the Free
Byron website and Facebook group. Over time, she accumulates ten
(13:20):
bankers boxes of investigative documents, reports, transcripts, and audio recordings,
but she has no one to go through them.
Speaker 1 (13:30):
Crickets. Then out of nowhere, I get this call, we
want to help you. Do you think I'm going to
say no, we don't want to.
Speaker 6 (13:43):
I was plated.
Speaker 1 (13:46):
I was elated.
Speaker 5 (13:59):
My name is Ryan Russell.
Speaker 2 (14:01):
Shortly after graduating from the University of Missouri Kansas City
Law School, Brian Russell, an Army vet, and two friends
formed the firm Meyer, Chord, Russell and Hurdott. And what
kind of law do you practice?
Speaker 5 (14:15):
We do all personal injury, basically any type of case
where someone has been hurt by someone else doing something
wrong and trying to help them get money to make
up for what they had to go through.
Speaker 2 (14:27):
Brian first hears about Byron's case in the summer of
twenty nineteen, about seventeen years after Byron was convicted.
Speaker 5 (14:36):
When I was doing research on a completely unrelated matter
and just happened to stumble across his website. It was
freebyroncase dot Com and he had a lot of the
primary documents on there and reports and trial transcript and
so one afternoon I didn't have the impulse control to
ignore it and went down the rabbit hole and just
(14:58):
started reading all this stuff and doing my own research
on some of it. I saw that he didn't have
a lawyer, so I picked up the phone and just
called him and asked him if he was interested in
having a lawyer, and went out and met with him.
Speaker 1 (15:11):
And what was that first meeting?
Speaker 5 (15:12):
Like? It was a good meeting. I think before when
I signed him up, I wasn't even I wasn't one
hundred percent convinced that he was innocent. I knew that
he did not get a fair trial, but I wasn't
sure that he was innocent. And as I talked with
him more, you know, I was like, I don't I
don't see how this guy could have murdered somebody. Doing
(15:35):
injury work generally, you know, we don't get paid. We
get paid on a contingency fee. I mean, my clients
never pay me out of their own pocket, and they
only ever pay me if I get money for them.
This is very similar to that. You have to be
willing to put a lot of time, energy and money
(15:57):
into a case with, you know, a hope and a
prayer that it works out. And I wouldn't want to
do that if I wasn't firmly convinced that we had
at least a shot. So yeah, I asked him if
you did it? And because I didn't want to represent
someone that couldn't say no, I didn't do it.
Speaker 2 (16:16):
A lot of people, though in prison, say that they're innocent.
A lot of them are, but a lot of them
are not.
Speaker 5 (16:22):
I'm kind of this is a saying from the Army trust,
but verify, and that's how I've That's how I and
the rest of our team have approached this whole investigation
is how can we prove that Byron did this without
Byron's side of things, you know? Or how can we
because if it comes down to believing Byron or not, well,
(16:44):
a jury already heard Byron's story and they didn't believe them.
For me, it was more the asking him wasn't because
that's what matters improving his innocence. It was more just
from my own where you're really in it as partners
with your client, and I don't want to be partners
with someone I don't trust. However, our brains. Figure out,
(17:07):
we can trust somebody just the way he told me.
I trusted him.
Speaker 2 (17:12):
So for Brian, the trust is there. Now it's time
to get to work. He reaches out to Evelyn, who
happily hands over the ten boxes of evidence she's collected.
Speaker 5 (17:23):
I then had a moment of clarity of wait a minute,
I've never represented a criminal defendant, let alone got an
innocent person out of prison. But I'm confident that I'm
a hard worker and you know, reasonably intelligent. But Sean
O'Brien was one of my professors in law school, and
if he was one of my favorites, if not my
(17:44):
favorite professor. So after I had gotten all that stuff,
I called him up and said, hey, you know, are
you Is this something you could maybe use for one
of your innocence classes. Helped me go through some of
this stuff.
Speaker 7 (17:57):
So I was going to be teaching this class in
the spring semester of twenty twenty. So when Brian talked
to me, I said, yes, I need a case for
my investigation class.
Speaker 2 (18:11):
For those of you have listened to seasons one and
two of The Real Killer, you are already familiar with
Sean O'Brien. A quick reminder. He's a full time professor
at UMKC Law School. He was one of Rodney Lincoln's lawyers,
but he's probably best known for the landmark Supreme Court
case on innocence Sloop versus Di Lo.
Speaker 7 (18:33):
I'm not an innocence project. I do not screen my
cases for guilt or innocence. I just the next interesting case.
If my caseload will allow it, I'll do it. And
I knew enough about this case to know that it
would be a really interesting case to use to teach
my investigation class. And Quinn and I, my daughter, teach
(18:56):
this class together. She's an investigator with a journalism background,
which is great.
Speaker 2 (19:02):
Quinn O'Brien was also in our first season. She was
one of the investigators who worked on Rodney Lincoln's case.
Turns out Quinn was already familiar with Byron's case because
in twenty ten she spent some time looking into it
at the Midwest Innocence Project. Later that year, she left
MIP and Byron's case behind to pursue other endeavors.
Speaker 8 (19:26):
There were things that I wanted to work on that
didn't involve innocence, like early release and parole projects. So
I decided to leave the project and hang my own shingle.
I can't take a case with me because I'm not
a lawyer. I'm just the investigator that can be really
frustrating sometimes. And I guess the case just languished until
I got a text from my dad it's like, hey,
(19:48):
you worked on the Byron.
Speaker 5 (19:50):
Case case, right? Yes?
Speaker 6 (19:53):
Why?
Speaker 8 (19:55):
And I think I remember like looking at that text,
like texting back like yeah, and then getting in the
car and I was actually on seventy one. I remember
where I was when I got this phone call from
my old buddy Brian Russell. It's like, hey, Quinn, like
I hear that you were familiar with the Byron case
case and I wanted to pick your brain. I still
(20:17):
remember being on the freeway, holding onto the steering wheel,
being ready to cry, like yes, yes, you can pick
my brain, Like yes, I want to help you. I
don't care, I don't care how like what I will.
I will help you. You tell me what you need
from me, and I will help you. I have been wanting.
Speaker 2 (20:37):
So Quinn, Sean and Brian are on board. Then one
more person joins the team, a brand new lawyer named
Nicole Gordon, who went to law school later in life.
Back in the spring of twenty twenty, Nicole is in
her second year of law school when she takes Sean
and Quinn's investigation class and learns about Byron's case. What
(21:00):
are some of your early thoughts or feelings about it?
Speaker 9 (21:04):
And I wasn't convinced of his innocence right off the bat.
Speaker 2 (21:09):
After finishing the investigation class, Nicole is the only student
who continues working with Brian and Quinn on the case
in Shawn's Wrongful Convictions Clinic.
Speaker 9 (21:19):
That's when I really dived into the case and learned
more about it and became more and more convinced that
Byron's innocent.
Speaker 2 (21:28):
The team is made up of Nicole, Quinn, Sean, and Brian.
Each has their marching orders and they're ready to go
to war.
Speaker 1 (21:38):
For the record.
Speaker 2 (21:39):
When I decided to take on this story for the
third season of the podcast, I told Byron's legal team,
especially Sean and Quinn, whom I've worked with before, I
am treating this case like any other. If I find
something that points to Byron's guilt, I am not going
to bury it. My only allegiance is to the true.
(22:11):
If you had to sum up the investigation in a word.
Speaker 1 (22:15):
Or sloppy.
Speaker 5 (22:18):
Oh wait, I should have let you finish.
Speaker 1 (22:20):
That's okay, the investigation was sloppy.
Speaker 5 (22:23):
If I had to summarize the trial in one word,
it would be fast.
Speaker 2 (22:31):
Right out of the gate. Attorney Brian Russell has some
strong feelings about the way Byron's case was handled well.
Speaker 5 (22:38):
So when I was first digging into everything, I kept
waiting for there to be more. I was just like,
surely they didn't convict him based on Kelly's clear fabrication
that doesn't even line up with the other evidence.
Speaker 2 (22:54):
Is there any physical evidence tying Byron case to the
murder of Anastasia Whippolsfugen.
Speaker 5 (22:59):
There is no physical evidence tying Byron case to the
murder or the death of Anastasia Whipples Fugen. Now the
only evidence of his involvement is Kelly Moffett.
Speaker 2 (23:12):
Examining everything about Kelly Moffatt is one of the first
things Brian and the team set out to do. They
dissect her original story, the story she told at trial,
her character, and her possible motivations for coming forward almost
three years after Anastasia's murder, and in no time they
make a discovery. It's related to something Kelly said under
(23:36):
oath during her deposition about a month before trial. During
that deposition, Kelly is asked, quote, do you have any
prior felony or misdemeanor convictions from state or federal court.
Kelly answers no. Then later she says, quote, I've never
been in trouble with the police. Nicole says her research
(24:00):
turns up something to the contrary.
Speaker 9 (24:02):
I think is the fact that Kelly had been arrested
and was on probation when she testified, and that the
prosecution didn't disclose that.
Speaker 2 (24:10):
It has to do with an incident that happened when
Kelly was seventeen.
Speaker 9 (24:14):
Okay, So in two thousand, Kelly was driving back from Columbia, Missouri,
with a friend. It was about ten am in the morning.
They were speeding down I seventy and they had been
drinking or had a peach vove could bottle in the car.
Peach knops a lot of the two and was being
(24:37):
pulled over by a highway trooper. And as they were
being pulled over, Kelly throws the bottle out the window
because they're underage. Trooper sees it. He arrests Kelly and
she goes to jail. Months later, she doesn't show up
for her court date and a warrant is issued for
her arrest. And throughout two thousand she has this pending
(25:00):
warrant until March of two thousand and one, something happens,
we don't know what that is, and she is brought
in on that warrant is executed and she's brought in
on the warrant in Cooper County. Now Kelly lives in
a different state. She lives in Kansas, and this is
Cooper County, Missouri.
Speaker 2 (25:19):
Eventually, Kelly pleads guilty to a misdemeanor littering charge. She's
given two years probation and forty eight hours of shock
time in the county jail. Shock time is meant to
do just that shock you into realizing you will be
spending a lot more time in jail if you mess
up again. Attorney Sean O'Brien says the issue is not
(25:41):
only that Kelly lied during her deposition, it's that prosecutors
didn't disclose her criminal record to Byron's trial attorney Horton.
Speaker 7 (25:50):
Lance, And she's asked us in her deposition, have you
ever been convicted of a crime? And she says no,
I've never even been in trouble before. And she's on
probation as she's saying that, right, and so that was
a lot.
Speaker 2 (26:09):
Do you think prosecutors knew about this and withheld that?
Speaker 1 (26:13):
Do they know?
Speaker 7 (26:14):
I don't know if they knew, they should have known.
Under the law, the prosecutor is obliged to go out
and find information that is in the possession of any
investigative agency, and in Missouri in particular, the prosecutor has
peculiar access to criminal records. You know, they can get
(26:35):
into the highway patrol computer. They would they could have
found this had they looked for it. But in Horton
Lance's request for discovery, he specifically asked do any of
your witnesses have criminal convictions? And the prosecuting attorney in
their written response says no, they do not. So that
(26:57):
is a Brady violation.
Speaker 1 (26:58):
I think it's not a quick reminder.
Speaker 2 (27:01):
A Brady violation comes from the landmark Supreme Court case
Brady v. Maryland, which states that the prosecution must turn
over any evidence that could be favorable to a defendant.
But besides the Brady violation, Byron's team says there's a
second part to this, and it has to do with
the timeline of it all. They say, Kelly's arrest on
(27:24):
this littering charge, the warrant being issued and served, her
eventual guilty plea, and probation, and how it all relates
to Byron's case is at the very least interesting. I
put in a foyer request, or in Missouri it's called
a Sunshine law request to where this arrest took place,
the town of Boonville in Cooper County, Missouri. I email
(27:47):
back and forth with a circuit clerk a couple of times,
who says she can't find the case file, but attached
the docket sheet, which is basically a list of the
important dates and events in the case. According to the
docket sheet, Kelly is arrested on this misdemeanor littering charge
on April fifteenth, two thousand. It seems she doesn't show
up for the arraignment on June sixth, so on June
(28:10):
twenty first, a warrant is issued. Now three months later,
on September nineteenth, Kelly comes forward to say Byron killed Anastasia.
On December fifth, the tape recorder is installed at Kelly's parents' house,
in the hopes Kelly will get a recorded confession out
of Byron. Then about three months later, on March fourteenth,
(28:33):
two thousand and one, the warrant in the littering case
is served and an arraignment is scheduled. On April third,
two thousand and one, Kelly enters a guilty plea. She
is given two years probation and forty eight hours shock
time in jail. Then two months later, on June fifth,
two thousand and one, Kelly records the call with Byron,
(28:57):
which will become the tacit admission. So is the timing
of Kelly's arrest, cooperation with investigators, guilty plea, and recorded
call with Byron a coincidence. Investigator Quinn O'Brien wonders if
there might have been something bigger going on behind the scenes.
Speaker 8 (29:17):
We have been searching so many records to try to
find where Kelly was arrested and for what to be
picked up on a warrant suggests that the police stopped
her or had some kind of contact with her, or
were told to go pick her up for some reason,
to arrest her and take her back down to Boonville.
(29:37):
We can't find those records. Lots of rumors from different witnesses,
from different friends of Byron's and Kelly's, who say, hey,
we think she was picked up on major drug charges
up north, maybe in plattin Platte or Clay County. Other
people say that she was picked up and she made
a deal with the prosecution to get out of some
(29:57):
major drug trafficking charges. I don't know if any of
that's true. The only thing that we have documented is
that Kelly was taken back down to Boonville. She did
do some shock time in the jail, and then it's
shortly after that that Kelly is able to get Byron
on the phone.
Speaker 2 (30:20):
While in Missouri, I go in person to Clay County
to submit my record's request and am told all they
have is on case net, Missouri's online database of court records.
Of course, I had already looked there, so I asked
the records clerk if there might be more that hasn't
been uploaded to case net.
Speaker 1 (30:40):
She says no.
Speaker 2 (30:42):
I send an email records request to Platte County and
they respond saying they don't have any criminal records or
reports for Kelly, so there may be no there there,
or maybe because Kelly was a minor at the time.
Some of those records are sealed. Here's Nicole again, not
even Jackson kindivisory.
Speaker 1 (31:03):
So you have to wonder what happened to.
Speaker 9 (31:08):
For that warrant to be executed and for Kelly to
be picked up on that warrant at that time in
a different state, different counting. You know, something happened.
Speaker 1 (31:19):
We don't know.
Speaker 9 (31:19):
Does she turn herself in, does she get into some trouble,
There's just nothing. Her life was pretty chaotic right now
during this time, and I do believe that she could
have gotten herself into a situation where she was desperate,
vulnerable and offered this information to get herself out of trouble.
We don't know that for sure, but the timeline makes sense,
(31:41):
from when she was picked up to when she wanted
to rehab to when she started cooperating with investigators, when
she implicated Byron. Something happened and we just don't know
what that is. And Bob is putting pressure on prosecutors
right now. I mean, he's gotten the mayor involved. He's
put a lot of pressure on the people involved in
(32:01):
this case, and they want to they want to resolve
it and get Bob off their back.
Speaker 2 (32:06):
I do believe Nicole is, of course referring to Bob,
Anastasia's father. So these are some serious allegations, and I
obviously want to ask Kelly about them and so much more.
The last I heard from her she said she would
briefly talk with me, So I write her again to
try and set that up. Here's what she writes back
(32:29):
in part quote, I'm sorry for the back and forth,
but there's no need for me to talk to you.
I stand by my testimony and Byron is guilty. There's
also more evidence now than ever before that he's guilty,
So him participating in a podcast is ridiculous. He knows
he's guilty and that he's wasting everyone's time.
Speaker 1 (32:49):
I truly don't think.
Speaker 2 (32:50):
He has a capacity to feel bad or guilty for
murdering Anastasia. He was all about ein Rand and Fountainhead.
Some people matter, some people don't. To him, Anastasia didn't matter,
and murdering her was just a mistake he made that
shouldn't quote destroy his entire life. Please use your platform
to help someone who is truly innocent. You are barking
(33:14):
up the wrong tree just because Byron can be superficially
charming and right decently. Doesn't make him some misunderstood intellectual
who was wrongfully convicted. He's always been full of crap,
and eventually his mask will fall and you'll see the
real Hymn. There's a reason he was pursuing me when
I was in middle school and he was eighteen. No
(33:35):
one his own age had much respect for him or
believed any of his stories. Kelly clearly stands by her testimony,
and her resolve around Byron's guilt seems to be just
as strong as it was more than twenty years ago.
I can't discount what she's saying, so all I can
do is keep asking questions. Even though it seems Kelly
(33:57):
doesn't want to talk, I Am going to try again.
So Byron's legal team says, at a minimum, they have
identified a Brady violation. They assert prosecutors withheld Kelly's criminal
record from Byron's defense lawyer at the time of the trial,
which could point to an unfair trial. Yes, but does
(34:20):
that mean Byron is innocent? No, not necessarily without any
real proof that some sort of quid pro quo took place.
It's just pure speculation, right, Byron's attorneys firmly believed that
there were really only two things that got him convicted,
Kelly's testimony and the June fifth recorded call, otherwise known
(34:44):
as the Tacit admission. I have wondered why prosecutors even
felt the need to set up the recorder to try
to get Byron on tape confessing when they already had
Kelly saying she watched Byron with her own eyes kill Anastasia.
Why not just arrest him as soon as she came forward.
Here's Sean again.
Speaker 7 (35:06):
I've talked to the assistant prosecutor, one of the assistant
prosecutors who was on this case. They didn't think that
Kelly's credibility was sufficient to base a charge on her
word alone. They were not going to file based on
anything that Kelly said unless they could somehow corroborate it.
And so they had discussions in the office about how
(35:30):
they would do that, and the decision was made in
September of two thousand to put the recording device on
Kelly's phone. Kelly then is supposed to try to call
Byron and get admissions. There isn't really a call that
is recorded until that June fifth of two thousand and one,
(35:53):
and that's the alleged tacit admission.
Speaker 2 (35:56):
Now, Kelly that June fifth call was effective at trial.
Here's Brian again.
Speaker 5 (36:03):
On June fifth, two thousand and one, at approximately eleven
thirty at night, Kelly finally makes contact. Well, she says,
finally makes contact with Byron, because she claims that she
had tried to call him several times before. If she did,
she did not preserve any of those recordings or any
recordings of her leaving messages, or if they did preserve those,
(36:27):
they weren't handed over. Regardless, that's her story that she
had been trying to call him over and over and
he wouldn't call her back. Then one night, according to
Sergeant Kilgore's report, out of the Blue, Kelly just happens
to make contact with Byron. Byron also just happened to
have one hundred and two degree fever because he had
(36:47):
strep throat. And we know he had strep throat because
the next day, before he knew any of this was
going on, he went to the doctor and was diagnosed
with strep throat. So anyway, Kelly calls him at eleven thirty.
She sounds scared. She sounds confused, and she says, I
don't understand, Byron, why did you kill Anastasia. If you
(37:07):
could just tell me why you did that, I might
be able to make sense of this whole thing. And
the recording quality is very poor and I don't know
if that was operator error or the equipment error, but
it's very hard to hear Byron and what he's saying.
Speaker 6 (37:25):
Why, of course we should Byron says we shouldn't talk
about this, and then Kelly says, of course.
Speaker 5 (37:37):
She says, what do you mean, and then he says,
probably because we shouldn't talk about this, and Kelly says,
of course we should.
Speaker 2 (37:45):
But Brian says he almost falls out of his chair
one day when he decides to listen to the tape again.
Speaker 5 (37:51):
And I pulled up the audio, and I didn't bother
to pull up the transcript because I was typing at
the same time, and I had a kind of a
high high quality speaker on my computer, and I was
just listening along and kind of only half paying attention.
And then I heard him say, after Kelly's rant, he goes,
(38:12):
we should talk about this as clear as day, and
I was like, wait, what did he really just say
we should talk about this, and I must have listened
to it fifteen times. It was it was like a
lightning bolt or something. It was great, it was it
was crazy.
Speaker 2 (38:41):
Attorney Brian Russell believes he has just made a potentially
huge discovery when he listens to the June fifth recorded
phone call. He says he can now clearly hear Byron
say we should talk about this, not we shouldn't, like
what was asserted at trial. So where did this version
(39:04):
of the call come from?
Speaker 5 (39:06):
There's well, so I had a digital recording that I
had gotten from the family's website and then in his file,
in Byron's file, when I had gathered all those boxes
up were digital files that were produced in twenty eleven
and twenty sixteen from the Jackson County Sheriff's Department. That's
the one I was listening to. The one. The audio
that I had gotten from the website was low quality,
(39:29):
hard to hear, and it does sound like maybe he
says shouldn't, especially if you're reading the transcript while you're
listening to that.
Speaker 2 (39:37):
Here's Attorney Sean O'Brien.
Speaker 7 (39:39):
And the very next meeting we had, Brian comes in
and says, you guys need to listen to this without
the transcript, and we played it and by golly, Byron says,
we should talk about this and it makes a lot
more sense.
Speaker 2 (39:52):
Okay, enough of them talking about it. I'm going to
play both versions for you.
Speaker 1 (39:56):
First.
Speaker 2 (39:57):
Here's some of the lesser quality one.
Speaker 4 (40:02):
Justin said for no reason, she said, for no reason.
It's just all fucked up. And for some reason they're
talking to me because you won't talk. That's I'm fucked
and it makes me look horrible because everybody already knows
that I'm a fucking crackhead, and I'm a coke head.
Then I'm an alcoholic and I don't remember shit, and
(40:24):
if I try to talk them, nothing's gonna add up.
So I mean, if you could seriously explain to me
as to why you actually felt the need to show her,
then that would really help me feel better about the
whole fucking thing. I mean, there's seriously any reason to
(40:48):
all this? Why of course we should?
Speaker 2 (41:03):
You mean, do you hear, shouldn't or should? Okay, now
here's the one that they say is the better quality version.
I'm going to start it a little bit later into
the call.
Speaker 4 (41:16):
I mean, if you could seriously, explain to me as
to why you actually felt the need to call her.
Then that would really help me feel better about the
whole fucking thing. I mean, seriously, any reason to all this?
Speaker 1 (41:38):
Talk about this?
Speaker 4 (41:40):
Why of course we should?
Speaker 7 (41:45):
I think I need to talk to you.
Speaker 2 (41:49):
You mean, what do you hear this time? Should or shouldn't?
Here's Sean again.
Speaker 7 (41:57):
And it makes a lot more sense because when Byron
says we should talk about this, then Kelly says why,
and then Byron responds, no, I said we should talk
about this. That's the inflection in the transcript, and then
they go on and arrange. To me, that makes a
lot more sense.
Speaker 2 (42:18):
I asked Sean how there could be two different versions
of the tape. He says, they soon learn there are
actually three.
Speaker 7 (42:28):
So we asked the Sheriff's department if we go view
the evidence, and they let us. We went into a
big room that had a huge table and all of
the evidence was laid out on the table, and one
of the envelopes had three audio tapes in it, all
of them dated June fifth, twenty, two thousand and one.
(42:52):
So we opened up those and listened to all three,
and one did sound better than the other, and then
there's a third one that there was no sound on
at all. Now, I can't tell you how there came
to be two copies of the tape, but I can
(43:13):
tell you that Teresa Crayon, in a hearing before the trial,
told Judge Atwell that they had sent the tape off
to a laboratory in Springfield that cleans up audio. The
expert said, I'm sorry, we can't help you, but there
(43:33):
are two tapes in the Sheriff's possession, and I think
one of those tapes must be the one that came
back from the lab. I don't know, they don't know,
I don't know how their copy was made.
Speaker 2 (43:48):
But quick reminder that Teresa Craon was the lead prosecutor
at trial.
Speaker 5 (43:53):
Here's Brian and again this just goes back to the
quality of this investigation, the practices and procedures of the
Jackson County Sheriff's Department at the time. Is just how
are there three copies without there being a chain of
custody that says I removed the tape, I made a
(44:16):
copy of the tape. Here is the tape. You know,
That's what's so important, and that's what they teach you
a lot in law school and evidence class is before
you play something for a jury, you have to be
able to say, this is what I'm telling you it is,
and this is how I know what it is, and
instead the chain of custody for the tape in this
(44:38):
is Kelly Moffatt had a recording device in her home
for six months. Her training on it was push record.
She made a recording in the middle of the night,
somehow had exclusive custody of the tape for twelve hours
until Sergeant Kilgore picked it up from Kelly's mom, debim offit,
(45:02):
and then played it for the prosecutor's office.
Speaker 2 (45:07):
Is there any evidence that suggests that the prosecutors had
a good version or a better version of the tape
and the poorer version of the tape, and they chose
to use the poorer version holding the better version back.
Speaker 5 (45:26):
There's no. We don't have any direct evidence that they
intentionally withheld the better copy versus whatever was played at trial.
Speaker 2 (45:37):
We do know that, Brian says. The question is not
only about which tape was used in court, It's also
about the role the transcript played in the jury's minds.
Speaker 5 (45:47):
Prick your brain if you listen to the lower quality version.
While you're reading the transcript, you can still hear shouldn't
or it becomes more ambiguous. And we're still trying to
figure this out and how to unravel this. I remember
I was just sitting on the couch one day with
my kids and one of my sons was watching YouTube
(46:08):
and a video came up with a bunch of with
a soccer chant, and there were seven or eight different
phrases that you could read while you listened to the
soccer chant, and the soccer chant didn't change. It was
the same thing over and over. But everything that you read,
you would hear while you're listening to it. And I
(46:30):
was like, that's that's what happened. That's if you give
somebody what you want them to hear and then have
them listen to something that's hard to understand, they're going
to hear what they're reading. And then doing more research
on it, we kind of we figured out that there
was this thing called the McGirk effect, and where when
(46:52):
you're seeing some visual cue but listening to something that's
hard to understand, your brain sent sizes that and then
you hear what you're seeing.
Speaker 2 (47:05):
The McGirk effect is fascinating. The definition is quite involved,
but basically, if a person is getting poor quality information
through listening but good quality information through seeing, they may
be more likely to experience the McGirk effect, meaning what
they see is what they hear. The McGirk effect seems
(47:27):
to be mostly referring to watching someone say something, but
it can apply to reading the written word too. There
are a lot of interesting examples of the McGirk effect online.
I'm going to post some of them on TikTok at
TRK podcast. Do you think there's any chance that prosecutors
(47:49):
thought they heard shouldn't?
Speaker 5 (47:52):
Of course there's a chance, and I wasn't there for
them listening to the tape, And I think that's what's
important in any investigation, is to make sure you're checking
your own biases as much as possible. The best case
scenario is they heard what they wanted to hear, rather
(48:14):
than fabricating a false transcript. It's just very strange that
all the mistakes on the transcript happened to incriminate Byron.
Speaker 2 (48:22):
Do you know who typed up the transcript?
Speaker 5 (48:25):
We don't know one hundred percent who typed up the transcript,
but Sergeant Kilgore signed and initialed the transcript.
Speaker 7 (48:34):
Here's Sean again spont in the transcript that the prosecution
used a trial. Byron responded, we shouldn't talk about this,
and then Kelly says what and he said no, I
said we shouldn't talk about this. That's what the transcript said.
And so that's really the heart and soul of the
(48:54):
alleged tacit admission is not exactly a denial, but it's
a refusal to talk it and they arranged to meet
in Loose Park. He gives her directions and that's it.
But the prosecution says that was Byron changing the subject.
That's how they played it at the trial, and that's
what they argued to the jury. Is the meaning of that.
Speaker 2 (49:16):
But even with all of this, I asked Brian, how
big of a difference does it really make if Byron
said shouldn't or should playing devil's advocate for one second,
if this were the first time that Kelly ever said
anything as inflammatory or asked the question why did you
have to kill her? Wouldn't you think that hearing that
(49:38):
sort of accusation for the first time would potentially get
him to answer differently than we should talk about this.
Speaker 5 (49:46):
I think that that is true. I think it makes
sense if you don't know the history of Byron and
Kelly's relationship. I think that in the context of Byron
and Kelly's relationship, his reactions make sense because the last
time they talked on the phone and got in an argument,
(50:08):
she called the police and said he was suicidal. And
so I think that Byron's caution. I think we would
all expect that if someone accused us of murder, we
would say, what are you talking about? No, I didn't
do that.
Speaker 1 (50:26):
You know I didn't do that.
Speaker 5 (50:28):
But when you're dealing with someone that is emotionally volatile
and unpredictable, he's treating her like a cornered animal or something.
She sounds scared. She goes from scared to angry to
begging all through that phone call. And I think Byron
(50:49):
was being cautious because not because he didn't want to
incriminate himself. He's being cautious for a lot of reasons.
He has an attorney that told him don't talk about
this with anyone, or they can use your statements against you.
Even if you say I didn't do it, they could
still use that against him. And he's being cautious because
(51:09):
of who Kelly is and the history of their relationship,
he doesn't want to provoke her. And if she really
does think in Byron's mind, is she thinks I killed her, well,
then I need to diffuse this situation, or else she
might go to the police and say some lie that
gets me in trouble. And that is all assuming that
(51:31):
he even heard her allegations or understood them as allegations
in the first place. For all we know, Byron had
the phone away from his ear while she's going on
this minute and a half rant asking him these questions.
This very well could have been why did you let
her get out of the car? Or why did you
(51:53):
let justin drive off? But with the poor quality of
the connection, I think it makes more sense. And the
bottom line is the jury never really heard any of
this stuff. They knew about the They knew a lot
of these facts in terms of Kelly claiming that Byron
(52:14):
was suicidal when he wasn't, and all of those things,
but it was never argued to them during closing that look,
all of this makes sense in the context of their relationship,
but that also happened because the state put forth a
false transcript where he says we shouldn't talk about this.
(52:39):
It sounds like he's trying to dodge the topic of conversation,
not diffuse it. Calm it down, and figure out, why
are you accusing me of this?
Speaker 2 (52:52):
I asked Byron about the June fifth tape. He says
he never actually heard it until it was played at trial.
He's only read the transcript or What was your reaction
to reading we shouldn't talk about this?
Speaker 10 (53:07):
My response to that whole thing, the tape in general,
it was kind of like I just sort of like
accepted what was there because I didn't really have a
strong memory of it other than remembering it taking place,
and so I kind of was willing to accept, like,
well anything, you know, we could have said anything that night,
(53:28):
I don't remember it.
Speaker 1 (53:30):
Not to say that I would be capable of saying anything.
Speaker 10 (53:32):
But just like, there's not a whole lot that would
have been on that tape necessarily that would have surprised me.
I guess I don't know how to really explain that,
but like, the whole situation was bizarre being in the
situation that I was in, and I've compared it years
since to being like very much like a short story
(53:54):
by Kafka because it just kind of it defied logic
in so many places, and it seemed so counterintuitive at
so many points.
Speaker 2 (54:06):
I ask Byron what even thinks about there being a
cleaner version of the call?
Speaker 5 (54:12):
Now?
Speaker 11 (54:12):
I haven't heard this recording, but I've talked now with
five or six people who have, and every single one
of them has said that they here should.
Speaker 2 (54:25):
So when you heard that there is something that can
potentially make the test admission non void, you think and feel.
Speaker 1 (54:37):
Skeptical.
Speaker 2 (54:40):
Byron was first willing to accept that he said shouldn't.
Then once he learns he may have actually said should,
he accepts that too.
Speaker 1 (54:50):
Why what does that mean?
Speaker 2 (54:53):
It still doesn't answer why Byron didn't just deny killing
Anastasia altogether on that call with Kelly. Trust me, we
are not even close to being done with the June
fifth call, the should or shouldn't tapes and transcript. I
of course want to know what Prosecutor Teresa Crayon thinks
about the cleaner version of the June fifth call the transcript.
(55:16):
Why Kelly's littering charge and probation status allegedly weren't disclosed
to Byron's defense attorney and whether or not Kelly may
have had some other legal troubles around the time she
came forward and recorded that June fifth call. I email
her office asking if I can send a list of questions.
They say yes, but that probably Miss Crayon's only response
(55:38):
will be the statement they've already sent, which is that
it wouldn't be appropriate for her to comment until all
litigation in the matter is complete.
Speaker 1 (55:48):
I haven't heard back.
Speaker 2 (55:51):
As Byron's legal team presses on, they say there's someone
investigators overlooked, someone They're spending a lot of time looking into.
Speaker 7 (56:01):
I think the suspicious circumstances around his knowledge of the
crime scene before he was told anything. He knew things
that he shouldn't have known. He knew where the body
had been found and when he shouldn't have known that.
In terms of our thinking, he has not been ruled
out as a suspect.
Speaker 1 (56:24):
Next time on the real killer.
Speaker 8 (56:28):
When they ask if he keeps guns in the house,
he says, I don't keep guns in the house. The
next question the deputy should have asked him was, Okay,
where do you keep your guns?
Speaker 2 (56:39):
Byron's legal team thinks they may have uncovered a new
potential suspect or two.
Speaker 5 (56:45):
Anastasia's family had said at the time that if she
called for a ride, she would have called him. He
changed his phone number the day after her body was found.
Speaker 2 (57:02):
The views and opinions expressed in this podcast are solely
those of the individuals participating in the podcast. If you
or someone you know is experiencing suicidal thoughts or a crisis,
please no help is available. Call or text nine to
eight eight, or chat online at the Suicide and Crisis
(57:22):
Lifelines website at nine eight eight lifeline dot org. To
see photos, maps and documents related to this season's story,
follow The Real Killer podcast on Instagram and at TRK
podcast on TikTok. The Real Killer is a production of
(57:43):
AYR Media and iHeartMedia, hosted by me Leah Rothman. Executive
producers Leah Rothman and Elisa Rosen for AYR Media. Written
by Leah Rothman, editing and sound design by Cameron Taggi,
mixed and mastered by Cameron Taggi, Production coordinator Andy Levine,
(58:06):
Audio engineer Justin Longerbeam studio engineer Graham Gibson, Legal counsel
for AYR Media. Gianni Douglas, executive producer for iHeartMedia, Maya Howard,
A warning.
Speaker 2 (00:01):
This episode contains depictions of violence and conversations about suicide
that may be disturbing and triggering for some listeners. If
you are struggling with suicidal thoughts, please fast forward to
the end of this episode to find out where help
is available.
Speaker 1 (00:22):
I saw him from behind. He was like, he was so.
Speaker 3 (00:25):
Stoic, sitting there in his suit. He was like, it's like,
I still remember.
Speaker 1 (00:31):
It so well.
Speaker 3 (00:33):
God, he just saw his body just kind of collapsing.
Speaker 2 (00:41):
That's Evelyn Case. Byron Case's mother describing the moment her
son is found guilty of killing Anastasia Whipples Fugen lapsing.
Speaker 1 (00:50):
And when they took him out of the room, you know,
it was horrible. My body's shaky, just the memory of it.
Speaker 2 (00:58):
All, Evelyn says, from that moment on, her mission in
life is clear to prove Byron is innocent. I'm Leah Rothman.
(01:18):
This is the real killer. Episode seven, Bad, Better and Blank. Okay,
So show me some of the photos that you have
of Byron.
Speaker 3 (01:36):
Oh, so many.
Speaker 1 (01:36):
Photos, so many, so many chimneys.
Speaker 3 (01:41):
Look at my little boy. We had a chimney sweep business.
Because you know, I'm from Germany and I always believe
chimney sweeps brought good luck, any.
Speaker 1 (01:48):
Cute Halloween or no.
Speaker 3 (01:51):
No, we were chimney sweeps who he had a little
outfit for him.
Speaker 2 (01:56):
I meet with Evelyn at her home in Kansas City,
where she lived with her best friend and canine companion, Airbender.
Speaker 1 (02:05):
This is cute to look at us. That's us. That's
how we traveled to the backpackers. Yes, we were backpackers.
Is that Dale and by that's Dale and Byron.
Speaker 3 (02:15):
I think they were in Texas.
Speaker 1 (02:19):
This was when we were divorced.
Speaker 3 (02:22):
That wasn't his lover, but they were all friends because
we had a lot of gay friends. So that's what
they did to his room. And they had all the
legos and this is Byron's room.
Speaker 1 (02:31):
Yeah, there was. Oh so they decorated Byron's room. They
did really they did good with him. I mean they
you know, he was loved.
Speaker 2 (02:41):
Evelyn is warm and funny and quite the character, and
her eclectically decorated craftsman style house is a direct reflection
of that. It's full of lush plants, art, pottery, and
mementos from her many travels, as well as several photos
of the most important person in the world to her, Byron.
Speaker 3 (03:02):
Well, these are not my favorites, but this is what
don't you love about these photos? Well, that's the goth
the look on his face like I'm tough for something
I don't know. I don't know where this was in
the coffee shop, but he's got mescara on. And that
didn't bother me because there's a lot of musicians that do.
Speaker 1 (03:22):
That, so that really didn't bother me.
Speaker 3 (03:24):
Is this Byron when he moved to Saint Louis? Does
he look unhappy? Does he look like he would have
killed somebody? He left because of Kelly. He says, I've
got to get out of here, and he did, and
he was happy.
Speaker 2 (03:37):
Evelyn and I talked for three hours about Byron's childhood,
her ex husband, Byron's father Dale, and of course the
events of October twenty second, nineteen ninety seven, the night
Anastasia was killed. But wait a minute, So he comes
home around what time.
Speaker 1 (03:54):
Ten or ten?
Speaker 3 (03:56):
I know Kelly had curfew at nine and he brought
her home. And then he came home right after that
and Justin brought him. Robert kept saying he saw Byron's cars. Well,
Byron's car was in the shop.
Speaker 2 (04:09):
Evelyn is referring to Robert whitbolsfugen Anastasia's father. Remember, Bob
told Sergeant Gary Kilgore he saw Byron's car with the
morbid license plates and the caravan of cars going down
Truman Road the night of October twenty seconds.
Speaker 3 (04:26):
Because when Byron came home that night, when this supposedly happened,
there was nothing different about him. I mean, I can
tell things. There was nothing different. He came home at
ten o'clock, give or take, and so maybe a few
minutes after and you know, goes to refrigerator, and then
he had two cats, and he had his room. There
(04:48):
were times that he would then spend the night over
at Justin's. They were playing video games and this and that.
But I knew where he was at, and his room
was always there when he came home. And then sometimes
he was gone for three days or something, and I go,
it's nice to see you, you know, But when do
you let go of your children? You have to let
them experience life. But you it's the sad part. You
(05:12):
can have the best childhood and then something like this happens.
You know, he was raised, non violent, non racist, non sexist.
Why would you want to. I mean the things that
Kelly came up with. Sure, maybe they were talking weird
stuff at times, but that doesn't mean you're going to
(05:32):
do something. You know, he was doing good things, always
doing good things for people.
Speaker 1 (05:37):
Do nobody saw that. It's just always gotten, you know
what we were hippies or this or that. Everybody's something.
Speaker 3 (05:44):
That doesn't mean you know, you know, devil worshippers or
whatever they came up with, that's not it. He loved,
he loved wearing black, and he had his trench coat
and his Doc Martin boots, and and then what he
did out there, I have no idea them boys, but
no killing somebody.
Speaker 4 (06:03):
No.
Speaker 2 (06:04):
So he comes home around ten, he goes into the kitchen.
Speaker 1 (06:07):
Yeah, because we were watching the movies.
Speaker 3 (06:09):
But he was happy, he was happy to be home,
greeted us, and everything was there was nothing tense or anything,
and so I just left it at that.
Speaker 2 (06:18):
Did you notice anything odd about his appearance? Did he
looked like he had been crying or upset, or did
he have any boy.
Speaker 1 (06:26):
I would have said something then, oh my goodness.
Speaker 3 (06:30):
You know, if I spot something like this, then I
asked questions, But I had no questions to.
Speaker 1 (06:34):
Ask no blood on him, No, hardly. Oh my god.
Then I would have freaked out for sure. So imagine
so he goes to his room. Yeah, did Byron go
back out that night?
Speaker 5 (06:48):
No?
Speaker 1 (06:48):
Would you have heard him?
Speaker 3 (06:50):
Yeah? Oh yeah. His bedroom was right next to me
and you can hear the doors, you know, it's the
old apartments.
Speaker 1 (06:56):
Yeah, no he did. Would you help with home?
Speaker 3 (06:59):
And I mean Napoleon would be a witness on that too,
you know, he's there with me.
Speaker 1 (07:04):
And did police ever talk to Napoleon? I don't think so.
Speaker 2 (07:10):
Napoleon Perez was Evelyn's boyfriend at the time. They eventually married,
then later divorced, but today remain friends. After Byron mentioned
Napoleon being there that night, I looked through the case
file I was sent from the Jackson County Sheriff's Department
again and saw nothing that said Napoleon was ever interviewed
by law enforcement. I ask Evelyn if she was ever
(07:34):
interviewed Sergeant Kilgore, Huh did you have any interactions with
Sergeant Kilgrere?
Speaker 1 (07:38):
Think so? I really don't think so so.
Speaker 2 (07:43):
But the only documentation I have regarding Evelyn as an
interoffice memo dated May fifteenth, two thousand so that was
about four months before Kelly comes forward. The memo is
from Sergeant Kilgore, written to his superiors. Kil Gore says
he was contacted by Assistant Prosecutor Jeff Busher because Anastasia's dad, Bob,
(08:07):
wanted to review the homicide case file. Bob was unhappy
with how the investigation was being conducted by the Jackson
County Sheriff's Department, so Assistant Prosecutor Buscher was instructed to
review the file himself. Busher did, and afterwards said the
investigation up until that point had been conducted quote thoroughly
(08:29):
and appropriately. Busher did share with kil Gore that he
didn't believe Bob observed that caravan of cars the night
of the twenty second the way he described one suggestion
was made to kill Gore, though Busher thought Evelyn Case
should be contacted to quote determine if she could verify
(08:49):
the times mister Case was at her apartment the evening
of ten twenty two ninety seven and the early hours
of ten twenty three, ninety seven. I have no real
ports or memos that show Kilgore ever followed through with this. Okay,
back to the night of October twenty second. Evelyn says,
after she and Napoleon finished the movie, they go to bed.
(09:13):
Nothing else to report, really until the following morning.
Speaker 3 (09:17):
The next morning, the phone rings and it's Justin and
he says, can I talk to Byron? I says, I said,
he's still asleep, And he says, could you wake him up?
And I said, okay, just a minute. So I got
Byron up, and this is what happened.
Speaker 1 (09:39):
He told me.
Speaker 3 (09:40):
He says, oh, Justin wanted me to go out to
breakfast with him. He said he couldn't sleep last night.
He wanted me to go down to breakfast and and
and he said.
Speaker 1 (09:50):
No, I'll catch up with you later.
Speaker 2 (09:52):
Within an hour or so of that call, Justin buys
a shotgun. Two days later, on October twenty fifth, Justin
has found dead, having taken his own life.
Speaker 1 (10:04):
Have you ever known Byron to have a gun? No?
Have you ever known Byron to go hunting? No?
Speaker 2 (10:11):
Did you ever know Dale, your ex husband, Byron's father,
to ever own any guns?
Speaker 4 (10:17):
No?
Speaker 1 (10:17):
Did he ever go hunting? No? Did he ever display
any guns on his wall?
Speaker 4 (10:23):
No?
Speaker 1 (10:24):
Have you ever known Byron to be violent? No? Never? Never.
He's like his dad. His dad do you know that man?
And I never argued? His father and I never argued.
Speaker 2 (10:38):
Did you hear the rumors that Byron and Justin were lovers?
Speaker 5 (10:44):
Yeah?
Speaker 1 (10:44):
I heard that too, Yeah, they weren't stupid.
Speaker 2 (10:52):
I wonder what Evelyn thought about Byron's account of that
evening that the last time he saw Anastasia was when
she got out of Dustin's car on Truman Road at
the I four thirty five possible? Did you believe him?
Did you know? I mean, as a mother, you know
when your kid is lying. What was the tailtale signs?
(11:14):
When Byron wasn't telling you the truth?
Speaker 3 (11:16):
I don't remember him not being truthful very often in
his life. To be very honest, I don't think. I
really don't, unless I'm just I don't think he lied
to me. I can't, would you ever? I mean, because
people might think a mother would cover for their son. No,
I believe in the truth. Might have been my Catholic upbringing.
(11:40):
I don't go to church eater. I mean that dog.
I was cramped down my throat too, But no, I'm not.
I wouldn't do that. No, And if he would have
done it, then everything would be different, because I wouldn't
have fought for twenty years. The way I was fighting
tooth and nail, tooth and nail. I got myself in
trouble at times, going up to the law school, Young KC.
(12:03):
Law School and plastering flyers all over the place.
Speaker 1 (12:07):
Yeah, and just no, I would not be fighting like this.
Speaker 4 (12:11):
No.
Speaker 2 (12:14):
In the years following Byron's conviction, Evelyn posts free Byron
flyers at the local law school and around town. She
writes letters and talks to even chases down anyone who'd listen.
It is safe to say she was obsessed with clearing
her son's name. Around twenty ten, the Midwest Innocence Project
(12:36):
looks into Byron's case. Remember you heard about them in
season one. They represented Rodney Lincoln, but ultimately MIP passes
on taking Byron's case. After that, Evelyn redoubles her efforts.
She helps Byron petition Governor j. Nixon for an absolute pardon,
which is eventually denied. She goes to Washington, D C.
(12:59):
And addresses members of Congress. She meets one on one
with US Senator Claire mccaskell of Missouri. She shares with
people the book Byron wrote from prison, The Pariah Syntax
notes from an innocent man, as well as the Free
Byron website and Facebook group. Over time, she accumulates ten
(13:20):
bankers boxes of investigative documents, reports, transcripts, and audio recordings,
but she has no one to go through them.
Speaker 1 (13:30):
Crickets. Then out of nowhere, I get this call, we
want to help you. Do you think I'm going to
say no, we don't want to.
Speaker 6 (13:43):
I was plated.
Speaker 1 (13:46):
I was elated.
Speaker 5 (13:59):
My name is Ryan Russell.
Speaker 2 (14:01):
Shortly after graduating from the University of Missouri Kansas City
Law School, Brian Russell, an Army vet, and two friends
formed the firm Meyer, Chord, Russell and Hurdott. And what
kind of law do you practice?
Speaker 5 (14:15):
We do all personal injury, basically any type of case
where someone has been hurt by someone else doing something
wrong and trying to help them get money to make
up for what they had to go through.
Speaker 2 (14:27):
Brian first hears about Byron's case in the summer of
twenty nineteen, about seventeen years after Byron was convicted.
Speaker 5 (14:36):
When I was doing research on a completely unrelated matter
and just happened to stumble across his website. It was
freebyroncase dot Com and he had a lot of the
primary documents on there and reports and trial transcript and
so one afternoon I didn't have the impulse control to
ignore it and went down the rabbit hole and just
(14:58):
started reading all this stuff and doing my own research
on some of it. I saw that he didn't have
a lawyer, so I picked up the phone and just
called him and asked him if he was interested in
having a lawyer, and went out and met with him.
Speaker 1 (15:11):
And what was that first meeting?
Speaker 5 (15:12):
Like? It was a good meeting. I think before when
I signed him up, I wasn't even I wasn't one
hundred percent convinced that he was innocent. I knew that
he did not get a fair trial, but I wasn't
sure that he was innocent. And as I talked with
him more, you know, I was like, I don't I
don't see how this guy could have murdered somebody. Doing
(15:35):
injury work generally, you know, we don't get paid. We
get paid on a contingency fee. I mean, my clients
never pay me out of their own pocket, and they
only ever pay me if I get money for them.
This is very similar to that. You have to be
willing to put a lot of time, energy and money
(15:57):
into a case with, you know, a hope and a
prayer that it works out. And I wouldn't want to
do that if I wasn't firmly convinced that we had
at least a shot. So yeah, I asked him if
you did it? And because I didn't want to represent
someone that couldn't say no, I didn't do it.
Speaker 2 (16:16):
A lot of people, though in prison, say that they're innocent.
A lot of them are, but a lot of them
are not.
Speaker 5 (16:22):
I'm kind of this is a saying from the Army trust,
but verify, and that's how I've That's how I and
the rest of our team have approached this whole investigation
is how can we prove that Byron did this without
Byron's side of things, you know? Or how can we
because if it comes down to believing Byron or not, well,
(16:44):
a jury already heard Byron's story and they didn't believe them.
For me, it was more the asking him wasn't because
that's what matters improving his innocence. It was more just
from my own where you're really in it as partners
with your client, and I don't want to be partners
with someone I don't trust. However, our brains. Figure out,
(17:07):
we can trust somebody just the way he told me.
I trusted him.
Speaker 2 (17:12):
So for Brian, the trust is there. Now it's time
to get to work. He reaches out to Evelyn, who
happily hands over the ten boxes of evidence she's collected.
Speaker 5 (17:23):
I then had a moment of clarity of wait a minute,
I've never represented a criminal defendant, let alone got an
innocent person out of prison. But I'm confident that I'm
a hard worker and you know, reasonably intelligent. But Sean
O'Brien was one of my professors in law school, and
if he was one of my favorites, if not my
(17:44):
favorite professor. So after I had gotten all that stuff,
I called him up and said, hey, you know, are
you Is this something you could maybe use for one
of your innocence classes. Helped me go through some of
this stuff.
Speaker 7 (17:57):
So I was going to be teaching this class in
the spring semester of twenty twenty. So when Brian talked
to me, I said, yes, I need a case for
my investigation class.
Speaker 2 (18:11):
For those of you have listened to seasons one and
two of The Real Killer, you are already familiar with
Sean O'Brien. A quick reminder. He's a full time professor
at UMKC Law School. He was one of Rodney Lincoln's lawyers,
but he's probably best known for the landmark Supreme Court
case on innocence Sloop versus Di Lo.
Speaker 7 (18:33):
I'm not an innocence project. I do not screen my
cases for guilt or innocence. I just the next interesting case.
If my caseload will allow it, I'll do it. And
I knew enough about this case to know that it
would be a really interesting case to use to teach
my investigation class. And Quinn and I, my daughter, teach
(18:56):
this class together. She's an investigator with a journalism background,
which is great.
Speaker 2 (19:02):
Quinn O'Brien was also in our first season. She was
one of the investigators who worked on Rodney Lincoln's case.
Turns out Quinn was already familiar with Byron's case because
in twenty ten she spent some time looking into it
at the Midwest Innocence Project. Later that year, she left
MIP and Byron's case behind to pursue other endeavors.
Speaker 8 (19:26):
There were things that I wanted to work on that
didn't involve innocence, like early release and parole projects. So
I decided to leave the project and hang my own shingle.
I can't take a case with me because I'm not
a lawyer. I'm just the investigator that can be really
frustrating sometimes. And I guess the case just languished until
I got a text from my dad it's like, hey,
(19:48):
you worked on the Byron.
Speaker 5 (19:50):
Case case, right? Yes?
Speaker 6 (19:53):
Why?
Speaker 8 (19:55):
And I think I remember like looking at that text,
like texting back like yeah, and then getting in the
car and I was actually on seventy one. I remember
where I was when I got this phone call from
my old buddy Brian Russell. It's like, hey, Quinn, like
I hear that you were familiar with the Byron case
case and I wanted to pick your brain. I still
(20:17):
remember being on the freeway, holding onto the steering wheel,
being ready to cry, like yes, yes, you can pick
my brain, Like yes, I want to help you. I
don't care, I don't care how like what I will.
I will help you. You tell me what you need
from me, and I will help you. I have been wanting.
Speaker 2 (20:37):
So Quinn, Sean and Brian are on board. Then one
more person joins the team, a brand new lawyer named
Nicole Gordon, who went to law school later in life.
Back in the spring of twenty twenty, Nicole is in
her second year of law school when she takes Sean
and Quinn's investigation class and learns about Byron's case. What
(21:00):
are some of your early thoughts or feelings about it?
Speaker 9 (21:04):
And I wasn't convinced of his innocence right off the bat.
Speaker 2 (21:09):
After finishing the investigation class, Nicole is the only student
who continues working with Brian and Quinn on the case
in Shawn's Wrongful Convictions Clinic.
Speaker 9 (21:19):
That's when I really dived into the case and learned
more about it and became more and more convinced that
Byron's innocent.
Speaker 2 (21:28):
The team is made up of Nicole, Quinn, Sean, and Brian.
Each has their marching orders and they're ready to go
to war.
Speaker 1 (21:38):
For the record.
Speaker 2 (21:39):
When I decided to take on this story for the
third season of the podcast, I told Byron's legal team,
especially Sean and Quinn, whom I've worked with before, I
am treating this case like any other. If I find
something that points to Byron's guilt, I am not going
to bury it. My only allegiance is to the true.
(22:11):
If you had to sum up the investigation in a word.
Speaker 1 (22:15):
Or sloppy.
Speaker 5 (22:18):
Oh wait, I should have let you finish.
Speaker 1 (22:20):
That's okay, the investigation was sloppy.
Speaker 5 (22:23):
If I had to summarize the trial in one word,
it would be fast.
Speaker 2 (22:31):
Right out of the gate. Attorney Brian Russell has some
strong feelings about the way Byron's case was handled well.
Speaker 5 (22:38):
So when I was first digging into everything, I kept
waiting for there to be more. I was just like,
surely they didn't convict him based on Kelly's clear fabrication
that doesn't even line up with the other evidence.
Speaker 2 (22:54):
Is there any physical evidence tying Byron case to the
murder of Anastasia Whippolsfugen.
Speaker 5 (22:59):
There is no physical evidence tying Byron case to the
murder or the death of Anastasia Whipples Fugen. Now the
only evidence of his involvement is Kelly Moffett.
Speaker 2 (23:12):
Examining everything about Kelly Moffatt is one of the first
things Brian and the team set out to do. They
dissect her original story, the story she told at trial,
her character, and her possible motivations for coming forward almost
three years after Anastasia's murder, and in no time they
make a discovery. It's related to something Kelly said under
(23:36):
oath during her deposition about a month before trial. During
that deposition, Kelly is asked, quote, do you have any
prior felony or misdemeanor convictions from state or federal court.
Kelly answers no. Then later she says, quote, I've never
been in trouble with the police. Nicole says her research
(24:00):
turns up something to the contrary.
Speaker 9 (24:02):
I think is the fact that Kelly had been arrested
and was on probation when she testified, and that the
prosecution didn't disclose that.
Speaker 2 (24:10):
It has to do with an incident that happened when
Kelly was seventeen.
Speaker 9 (24:14):
Okay, So in two thousand, Kelly was driving back from Columbia, Missouri,
with a friend. It was about ten am in the morning.
They were speeding down I seventy and they had been
drinking or had a peach vove could bottle in the car.
Peach knops a lot of the two and was being
(24:37):
pulled over by a highway trooper. And as they were
being pulled over, Kelly throws the bottle out the window
because they're underage. Trooper sees it. He arrests Kelly and
she goes to jail. Months later, she doesn't show up
for her court date and a warrant is issued for
her arrest. And throughout two thousand she has this pending
(25:00):
warrant until March of two thousand and one, something happens,
we don't know what that is, and she is brought
in on that warrant is executed and she's brought in
on the warrant in Cooper County. Now Kelly lives in
a different state. She lives in Kansas, and this is
Cooper County, Missouri.
Speaker 2 (25:19):
Eventually, Kelly pleads guilty to a misdemeanor littering charge. She's
given two years probation and forty eight hours of shock
time in the county jail. Shock time is meant to
do just that shock you into realizing you will be
spending a lot more time in jail if you mess
up again. Attorney Sean O'Brien says the issue is not
(25:41):
only that Kelly lied during her deposition, it's that prosecutors
didn't disclose her criminal record to Byron's trial attorney Horton.
Speaker 7 (25:50):
Lance, And she's asked us in her deposition, have you
ever been convicted of a crime? And she says no,
I've never even been in trouble before. And she's on
probation as she's saying that, right, and so that was
a lot.
Speaker 2 (26:09):
Do you think prosecutors knew about this and withheld that?
Speaker 1 (26:13):
Do they know?
Speaker 7 (26:14):
I don't know if they knew, they should have known.
Under the law, the prosecutor is obliged to go out
and find information that is in the possession of any
investigative agency, and in Missouri in particular, the prosecutor has
peculiar access to criminal records. You know, they can get
(26:35):
into the highway patrol computer. They would they could have
found this had they looked for it. But in Horton
Lance's request for discovery, he specifically asked do any of
your witnesses have criminal convictions? And the prosecuting attorney in
their written response says no, they do not. So that
(26:57):
is a Brady violation.
Speaker 1 (26:58):
I think it's not a quick reminder.
Speaker 2 (27:01):
A Brady violation comes from the landmark Supreme Court case
Brady v. Maryland, which states that the prosecution must turn
over any evidence that could be favorable to a defendant.
But besides the Brady violation, Byron's team says there's a
second part to this, and it has to do with
the timeline of it all. They say, Kelly's arrest on
(27:24):
this littering charge, the warrant being issued and served, her
eventual guilty plea, and probation, and how it all relates
to Byron's case is at the very least interesting. I
put in a foyer request, or in Missouri it's called
a Sunshine law request to where this arrest took place,
the town of Boonville in Cooper County, Missouri. I email
(27:47):
back and forth with a circuit clerk a couple of times,
who says she can't find the case file, but attached
the docket sheet, which is basically a list of the
important dates and events in the case. According to the
docket sheet, Kelly is arrested on this misdemeanor littering charge
on April fifteenth, two thousand. It seems she doesn't show
up for the arraignment on June sixth, so on June
(28:10):
twenty first, a warrant is issued. Now three months later,
on September nineteenth, Kelly comes forward to say Byron killed Anastasia.
On December fifth, the tape recorder is installed at Kelly's parents' house,
in the hopes Kelly will get a recorded confession out
of Byron. Then about three months later, on March fourteenth,
(28:33):
two thousand and one, the warrant in the littering case
is served and an arraignment is scheduled. On April third,
two thousand and one, Kelly enters a guilty plea. She
is given two years probation and forty eight hours shock
time in jail. Then two months later, on June fifth,
two thousand and one, Kelly records the call with Byron,
(28:57):
which will become the tacit admission. So is the timing
of Kelly's arrest, cooperation with investigators, guilty plea, and recorded
call with Byron a coincidence. Investigator Quinn O'Brien wonders if
there might have been something bigger going on behind the scenes.
Speaker 8 (29:17):
We have been searching so many records to try to
find where Kelly was arrested and for what to be
picked up on a warrant suggests that the police stopped
her or had some kind of contact with her, or
were told to go pick her up for some reason,
to arrest her and take her back down to Boonville.
(29:37):
We can't find those records. Lots of rumors from different witnesses,
from different friends of Byron's and Kelly's, who say, hey,
we think she was picked up on major drug charges
up north, maybe in plattin Platte or Clay County. Other
people say that she was picked up and she made
a deal with the prosecution to get out of some
(29:57):
major drug trafficking charges. I don't know if any of
that's true. The only thing that we have documented is
that Kelly was taken back down to Boonville. She did
do some shock time in the jail, and then it's
shortly after that that Kelly is able to get Byron
on the phone.
Speaker 2 (30:20):
While in Missouri, I go in person to Clay County
to submit my record's request and am told all they
have is on case net, Missouri's online database of court records.
Of course, I had already looked there, so I asked
the records clerk if there might be more that hasn't
been uploaded to case net.
Speaker 1 (30:40):
She says no.
Speaker 2 (30:42):
I send an email records request to Platte County and
they respond saying they don't have any criminal records or
reports for Kelly, so there may be no there there,
or maybe because Kelly was a minor at the time.
Some of those records are sealed. Here's Nicole again, not
even Jackson kindivisory.
Speaker 1 (31:03):
So you have to wonder what happened to.
Speaker 9 (31:08):
For that warrant to be executed and for Kelly to
be picked up on that warrant at that time in
a different state, different counting. You know, something happened.
Speaker 1 (31:19):
We don't know.
Speaker 9 (31:19):
Does she turn herself in, does she get into some trouble,
There's just nothing. Her life was pretty chaotic right now
during this time, and I do believe that she could
have gotten herself into a situation where she was desperate,
vulnerable and offered this information to get herself out of trouble.
We don't know that for sure, but the timeline makes sense,
(31:41):
from when she was picked up to when she wanted
to rehab to when she started cooperating with investigators, when
she implicated Byron. Something happened and we just don't know
what that is. And Bob is putting pressure on prosecutors
right now. I mean, he's gotten the mayor involved. He's
put a lot of pressure on the people involved in
(32:01):
this case, and they want to they want to resolve
it and get Bob off their back.
Speaker 2 (32:06):
I do believe Nicole is, of course referring to Bob,
Anastasia's father. So these are some serious allegations, and I
obviously want to ask Kelly about them and so much more.
The last I heard from her she said she would
briefly talk with me, So I write her again to
try and set that up. Here's what she writes back
(32:29):
in part quote, I'm sorry for the back and forth,
but there's no need for me to talk to you.
I stand by my testimony and Byron is guilty. There's
also more evidence now than ever before that he's guilty,
So him participating in a podcast is ridiculous. He knows
he's guilty and that he's wasting everyone's time.
Speaker 1 (32:49):
I truly don't think.
Speaker 2 (32:50):
He has a capacity to feel bad or guilty for
murdering Anastasia. He was all about ein Rand and Fountainhead.
Some people matter, some people don't. To him, Anastasia didn't matter,
and murdering her was just a mistake he made that
shouldn't quote destroy his entire life. Please use your platform
to help someone who is truly innocent. You are barking
(33:14):
up the wrong tree just because Byron can be superficially
charming and right decently. Doesn't make him some misunderstood intellectual
who was wrongfully convicted. He's always been full of crap,
and eventually his mask will fall and you'll see the
real Hymn. There's a reason he was pursuing me when
I was in middle school and he was eighteen. No
(33:35):
one his own age had much respect for him or
believed any of his stories. Kelly clearly stands by her testimony,
and her resolve around Byron's guilt seems to be just
as strong as it was more than twenty years ago.
I can't discount what she's saying, so all I can
do is keep asking questions. Even though it seems Kelly
(33:57):
doesn't want to talk, I Am going to try again.
So Byron's legal team says, at a minimum, they have
identified a Brady violation. They assert prosecutors withheld Kelly's criminal
record from Byron's defense lawyer at the time of the trial,
which could point to an unfair trial. Yes, but does
(34:20):
that mean Byron is innocent? No, not necessarily without any
real proof that some sort of quid pro quo took place.
It's just pure speculation, right, Byron's attorneys firmly believed that
there were really only two things that got him convicted,
Kelly's testimony and the June fifth recorded call, otherwise known
(34:44):
as the Tacit admission. I have wondered why prosecutors even
felt the need to set up the recorder to try
to get Byron on tape confessing when they already had
Kelly saying she watched Byron with her own eyes kill Anastasia.
Why not just arrest him as soon as she came forward.
Here's Sean again.
Speaker 7 (35:06):
I've talked to the assistant prosecutor, one of the assistant
prosecutors who was on this case. They didn't think that
Kelly's credibility was sufficient to base a charge on her
word alone. They were not going to file based on
anything that Kelly said unless they could somehow corroborate it.
And so they had discussions in the office about how
(35:30):
they would do that, and the decision was made in
September of two thousand to put the recording device on
Kelly's phone. Kelly then is supposed to try to call
Byron and get admissions. There isn't really a call that
is recorded until that June fifth of two thousand and one,
(35:53):
and that's the alleged tacit admission.
Speaker 2 (35:56):
Now, Kelly that June fifth call was effective at trial.
Here's Brian again.
Speaker 5 (36:03):
On June fifth, two thousand and one, at approximately eleven
thirty at night, Kelly finally makes contact. Well, she says,
finally makes contact with Byron, because she claims that she
had tried to call him several times before. If she did,
she did not preserve any of those recordings or any
recordings of her leaving messages, or if they did preserve those,
(36:27):
they weren't handed over. Regardless, that's her story that she
had been trying to call him over and over and
he wouldn't call her back. Then one night, according to
Sergeant Kilgore's report, out of the Blue, Kelly just happens
to make contact with Byron. Byron also just happened to
have one hundred and two degree fever because he had
(36:47):
strep throat. And we know he had strep throat because
the next day, before he knew any of this was
going on, he went to the doctor and was diagnosed
with strep throat. So anyway, Kelly calls him at eleven thirty.
She sounds scared. She sounds confused, and she says, I
don't understand, Byron, why did you kill Anastasia. If you
(37:07):
could just tell me why you did that, I might
be able to make sense of this whole thing. And
the recording quality is very poor and I don't know
if that was operator error or the equipment error, but
it's very hard to hear Byron and what he's saying.
Speaker 6 (37:25):
Why, of course we should Byron says we shouldn't talk
about this, and then Kelly says, of course.
Speaker 5 (37:37):
She says, what do you mean, and then he says,
probably because we shouldn't talk about this, and Kelly says,
of course we should.
Speaker 2 (37:45):
But Brian says he almost falls out of his chair
one day when he decides to listen to the tape again.
Speaker 5 (37:51):
And I pulled up the audio, and I didn't bother
to pull up the transcript because I was typing at
the same time, and I had a kind of a
high high quality speaker on my computer, and I was
just listening along and kind of only half paying attention.
And then I heard him say, after Kelly's rant, he goes,
(38:12):
we should talk about this as clear as day, and
I was like, wait, what did he really just say
we should talk about this, and I must have listened
to it fifteen times. It was it was like a
lightning bolt or something. It was great, it was it
was crazy.
Speaker 2 (38:41):
Attorney Brian Russell believes he has just made a potentially
huge discovery when he listens to the June fifth recorded
phone call. He says he can now clearly hear Byron
say we should talk about this, not we shouldn't, like
what was asserted at trial. So where did this version
(39:04):
of the call come from?
Speaker 5 (39:06):
There's well, so I had a digital recording that I
had gotten from the family's website and then in his file,
in Byron's file, when I had gathered all those boxes
up were digital files that were produced in twenty eleven
and twenty sixteen from the Jackson County Sheriff's Department. That's
the one I was listening to. The one. The audio
that I had gotten from the website was low quality,
(39:29):
hard to hear, and it does sound like maybe he
says shouldn't, especially if you're reading the transcript while you're
listening to that.
Speaker 2 (39:37):
Here's Attorney Sean O'Brien.
Speaker 7 (39:39):
And the very next meeting we had, Brian comes in
and says, you guys need to listen to this without
the transcript, and we played it and by golly, Byron says,
we should talk about this and it makes a lot
more sense.
Speaker 2 (39:52):
Okay, enough of them talking about it. I'm going to
play both versions for you.
Speaker 1 (39:56):
First.
Speaker 2 (39:57):
Here's some of the lesser quality one.
Speaker 4 (40:02):
Justin said for no reason, she said, for no reason.
It's just all fucked up. And for some reason they're
talking to me because you won't talk. That's I'm fucked
and it makes me look horrible because everybody already knows
that I'm a fucking crackhead, and I'm a coke head.
Then I'm an alcoholic and I don't remember shit, and
(40:24):
if I try to talk them, nothing's gonna add up.
So I mean, if you could seriously explain to me
as to why you actually felt the need to show her,
then that would really help me feel better about the
whole fucking thing. I mean, there's seriously any reason to
(40:48):
all this? Why of course we should?
Speaker 2 (41:03):
You mean, do you hear, shouldn't or should? Okay, now
here's the one that they say is the better quality version.
I'm going to start it a little bit later into
the call.
Speaker 4 (41:16):
I mean, if you could seriously, explain to me as
to why you actually felt the need to call her.
Then that would really help me feel better about the
whole fucking thing. I mean, seriously, any reason to all this?
Speaker 1 (41:38):
Talk about this?
Speaker 4 (41:40):
Why of course we should?
Speaker 7 (41:45):
I think I need to talk to you.
Speaker 2 (41:49):
You mean, what do you hear this time? Should or shouldn't?
Here's Sean again.
Speaker 7 (41:57):
And it makes a lot more sense because when Byron
says we should talk about this, then Kelly says why,
and then Byron responds, no, I said we should talk
about this. That's the inflection in the transcript, and then
they go on and arrange. To me, that makes a
lot more sense.
Speaker 2 (42:18):
I asked Sean how there could be two different versions
of the tape. He says, they soon learn there are
actually three.
Speaker 7 (42:28):
So we asked the Sheriff's department if we go view
the evidence, and they let us. We went into a
big room that had a huge table and all of
the evidence was laid out on the table, and one
of the envelopes had three audio tapes in it, all
of them dated June fifth, twenty, two thousand and one.
(42:52):
So we opened up those and listened to all three,
and one did sound better than the other, and then
there's a third one that there was no sound on
at all. Now, I can't tell you how there came
to be two copies of the tape, but I can
(43:13):
tell you that Teresa Crayon, in a hearing before the trial,
told Judge Atwell that they had sent the tape off
to a laboratory in Springfield that cleans up audio. The
expert said, I'm sorry, we can't help you, but there
(43:33):
are two tapes in the Sheriff's possession, and I think
one of those tapes must be the one that came
back from the lab. I don't know, they don't know,
I don't know how their copy was made.
Speaker 2 (43:48):
But quick reminder that Teresa Craon was the lead prosecutor
at trial.
Speaker 5 (43:53):
Here's Brian and again this just goes back to the
quality of this investigation, the practices and procedures of the
Jackson County Sheriff's Department at the time. Is just how
are there three copies without there being a chain of
custody that says I removed the tape, I made a
(44:16):
copy of the tape. Here is the tape. You know,
That's what's so important, and that's what they teach you
a lot in law school and evidence class is before
you play something for a jury, you have to be
able to say, this is what I'm telling you it is,
and this is how I know what it is, and
instead the chain of custody for the tape in this
(44:38):
is Kelly Moffatt had a recording device in her home
for six months. Her training on it was push record.
She made a recording in the middle of the night,
somehow had exclusive custody of the tape for twelve hours
until Sergeant Kilgore picked it up from Kelly's mom, debim offit,
(45:02):
and then played it for the prosecutor's office.
Speaker 2 (45:07):
Is there any evidence that suggests that the prosecutors had
a good version or a better version of the tape
and the poorer version of the tape, and they chose
to use the poorer version holding the better version back.
Speaker 5 (45:26):
There's no. We don't have any direct evidence that they
intentionally withheld the better copy versus whatever was played at trial.
Speaker 2 (45:37):
We do know that, Brian says. The question is not
only about which tape was used in court, It's also
about the role the transcript played in the jury's minds.
Speaker 5 (45:47):
Prick your brain if you listen to the lower quality version.
While you're reading the transcript, you can still hear shouldn't
or it becomes more ambiguous. And we're still trying to
figure this out and how to unravel this. I remember
I was just sitting on the couch one day with
my kids and one of my sons was watching YouTube
(46:08):
and a video came up with a bunch of with
a soccer chant, and there were seven or eight different
phrases that you could read while you listened to the
soccer chant, and the soccer chant didn't change. It was
the same thing over and over. But everything that you read,
you would hear while you're listening to it. And I
(46:30):
was like, that's that's what happened. That's if you give
somebody what you want them to hear and then have
them listen to something that's hard to understand, they're going
to hear what they're reading. And then doing more research
on it, we kind of we figured out that there
was this thing called the McGirk effect, and where when
(46:52):
you're seeing some visual cue but listening to something that's
hard to understand, your brain sent sizes that and then
you hear what you're seeing.
Speaker 2 (47:05):
The McGirk effect is fascinating. The definition is quite involved,
but basically, if a person is getting poor quality information
through listening but good quality information through seeing, they may
be more likely to experience the McGirk effect, meaning what
they see is what they hear. The McGirk effect seems
(47:27):
to be mostly referring to watching someone say something, but
it can apply to reading the written word too. There
are a lot of interesting examples of the McGirk effect online.
I'm going to post some of them on TikTok at
TRK podcast. Do you think there's any chance that prosecutors
(47:49):
thought they heard shouldn't?
Speaker 5 (47:52):
Of course there's a chance, and I wasn't there for
them listening to the tape, And I think that's what's
important in any investigation, is to make sure you're checking
your own biases as much as possible. The best case
scenario is they heard what they wanted to hear, rather
(48:14):
than fabricating a false transcript. It's just very strange that
all the mistakes on the transcript happened to incriminate Byron.
Speaker 2 (48:22):
Do you know who typed up the transcript?
Speaker 5 (48:25):
We don't know one hundred percent who typed up the transcript,
but Sergeant Kilgore signed and initialed the transcript.
Speaker 7 (48:34):
Here's Sean again spont in the transcript that the prosecution
used a trial. Byron responded, we shouldn't talk about this,
and then Kelly says what and he said no, I
said we shouldn't talk about this. That's what the transcript said.
And so that's really the heart and soul of the
(48:54):
alleged tacit admission is not exactly a denial, but it's
a refusal to talk it and they arranged to meet
in Loose Park. He gives her directions and that's it.
But the prosecution says that was Byron changing the subject.
That's how they played it at the trial, and that's
what they argued to the jury. Is the meaning of that.
Speaker 2 (49:16):
But even with all of this, I asked Brian, how
big of a difference does it really make if Byron
said shouldn't or should playing devil's advocate for one second,
if this were the first time that Kelly ever said
anything as inflammatory or asked the question why did you
have to kill her? Wouldn't you think that hearing that
(49:38):
sort of accusation for the first time would potentially get
him to answer differently than we should talk about this.
Speaker 5 (49:46):
I think that that is true. I think it makes
sense if you don't know the history of Byron and
Kelly's relationship. I think that in the context of Byron
and Kelly's relationship, his reactions make sense because the last
time they talked on the phone and got in an argument,
(50:08):
she called the police and said he was suicidal. And
so I think that Byron's caution. I think we would
all expect that if someone accused us of murder, we
would say, what are you talking about? No, I didn't
do that.
Speaker 1 (50:26):
You know I didn't do that.
Speaker 5 (50:28):
But when you're dealing with someone that is emotionally volatile
and unpredictable, he's treating her like a cornered animal or something.
She sounds scared. She goes from scared to angry to
begging all through that phone call. And I think Byron
(50:49):
was being cautious because not because he didn't want to
incriminate himself. He's being cautious for a lot of reasons.
He has an attorney that told him don't talk about
this with anyone, or they can use your statements against you.
Even if you say I didn't do it, they could
still use that against him. And he's being cautious because
(51:09):
of who Kelly is and the history of their relationship,
he doesn't want to provoke her. And if she really
does think in Byron's mind, is she thinks I killed her, well,
then I need to diffuse this situation, or else she
might go to the police and say some lie that
gets me in trouble. And that is all assuming that
(51:31):
he even heard her allegations or understood them as allegations
in the first place. For all we know, Byron had
the phone away from his ear while she's going on
this minute and a half rant asking him these questions.
This very well could have been why did you let
her get out of the car? Or why did you
(51:53):
let justin drive off? But with the poor quality of
the connection, I think it makes more sense. And the
bottom line is the jury never really heard any of
this stuff. They knew about the They knew a lot
of these facts in terms of Kelly claiming that Byron
(52:14):
was suicidal when he wasn't, and all of those things,
but it was never argued to them during closing that look,
all of this makes sense in the context of their relationship,
but that also happened because the state put forth a
false transcript where he says we shouldn't talk about this.
(52:39):
It sounds like he's trying to dodge the topic of conversation,
not diffuse it. Calm it down, and figure out, why
are you accusing me of this?
Speaker 2 (52:52):
I asked Byron about the June fifth tape. He says
he never actually heard it until it was played at trial.
He's only read the transcript or What was your reaction
to reading we shouldn't talk about this?
Speaker 10 (53:07):
My response to that whole thing, the tape in general,
it was kind of like I just sort of like
accepted what was there because I didn't really have a
strong memory of it other than remembering it taking place,
and so I kind of was willing to accept, like,
well anything, you know, we could have said anything that night,
(53:28):
I don't remember it.
Speaker 1 (53:30):
Not to say that I would be capable of saying anything.
Speaker 10 (53:32):
But just like, there's not a whole lot that would
have been on that tape necessarily that would have surprised me.
I guess I don't know how to really explain that,
but like, the whole situation was bizarre being in the
situation that I was in, and I've compared it years
since to being like very much like a short story
(53:54):
by Kafka because it just kind of it defied logic
in so many places, and it seemed so counterintuitive at
so many points.
Speaker 2 (54:06):
I ask Byron what even thinks about there being a
cleaner version of the call?
Speaker 5 (54:12):
Now?
Speaker 11 (54:12):
I haven't heard this recording, but I've talked now with
five or six people who have, and every single one
of them has said that they here should.
Speaker 2 (54:25):
So when you heard that there is something that can
potentially make the test admission non void, you think and feel.
Speaker 1 (54:37):
Skeptical.
Speaker 2 (54:40):
Byron was first willing to accept that he said shouldn't.
Then once he learns he may have actually said should,
he accepts that too.
Speaker 1 (54:50):
Why what does that mean?
Speaker 2 (54:53):
It still doesn't answer why Byron didn't just deny killing
Anastasia altogether on that call with Kelly. Trust me, we
are not even close to being done with the June
fifth call, the should or shouldn't tapes and transcript. I
of course want to know what Prosecutor Teresa Crayon thinks
about the cleaner version of the June fifth call the transcript.
(55:16):
Why Kelly's littering charge and probation status allegedly weren't disclosed
to Byron's defense attorney and whether or not Kelly may
have had some other legal troubles around the time she
came forward and recorded that June fifth call. I email
her office asking if I can send a list of questions.
They say yes, but that probably Miss Crayon's only response
(55:38):
will be the statement they've already sent, which is that
it wouldn't be appropriate for her to comment until all
litigation in the matter is complete.
Speaker 1 (55:48):
I haven't heard back.
Speaker 2 (55:51):
As Byron's legal team presses on, they say there's someone
investigators overlooked, someone They're spending a lot of time looking into.
Speaker 7 (56:01):
I think the suspicious circumstances around his knowledge of the
crime scene before he was told anything. He knew things
that he shouldn't have known. He knew where the body
had been found and when he shouldn't have known that.
In terms of our thinking, he has not been ruled
out as a suspect.
Speaker 1 (56:24):
Next time on the real killer.
Speaker 8 (56:28):
When they ask if he keeps guns in the house,
he says, I don't keep guns in the house. The
next question the deputy should have asked him was, Okay,
where do you keep your guns?
Speaker 2 (56:39):
Byron's legal team thinks they may have uncovered a new
potential suspect or two.
Speaker 5 (56:45):
Anastasia's family had said at the time that if she
called for a ride, she would have called him. He
changed his phone number the day after her body was found.
Speaker 2 (57:02):
The views and opinions expressed in this podcast are solely
those of the individuals participating in the podcast. If you
or someone you know is experiencing suicidal thoughts or a crisis,
please no help is available. Call or text nine to
eight eight, or chat online at the Suicide and Crisis
(57:22):
Lifelines website at nine eight eight lifeline dot org. To
see photos, maps and documents related to this season's story,
follow The Real Killer podcast on Instagram and at TRK
podcast on TikTok. The Real Killer is a production of
(57:43):
AYR Media and iHeartMedia, hosted by me Leah Rothman. Executive
producers Leah Rothman and Elisa Rosen for AYR Media. Written
by Leah Rothman, editing and sound design by Cameron Taggi,
mixed and mastered by Cameron Taggi, Production coordinator Andy Levine,
(58:06):
Audio engineer Justin Longerbeam studio engineer Graham Gibson, Legal counsel
for AYR Media. Gianni Douglas, executive producer for iHeartMedia, Maya Howard,
Host
Leah Rothman
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