March 6, 2025 • 67 mins
Byron’s new legal team obtains affidavits from the medical examiner, the defense attorney and judge who suggest there was potential evidence manipulation or concealment. And a new detail is revealed that there was an unidentified woman present for the June 5th recorded phone call between Kelly and Byron. Who was she and why was she there?
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Episode Transcript
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Speaker 1 (00:00):
A warning. 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 2 (00:21):
I'm confident that our team knows more about the murder
of Anastasia Whipples Fugen and the prosecution of Byron Case
than anybody, which sometimes scares me to think how quickly
Byron was convicted and how little work anybody did before
they sent them to prison forever.
Speaker 1 (00:42):
Are the other people who also know this case fine
with leaving it done and decided, or will their minds
change after hearing what Byron's legal team says they've uncovered.
(01:04):
I'm Leah Rothman. This is the Real Killer, Episode ten,
Please accept my prayers. In the spring of twenty twenty three,
Byron Case's legal team reaches out to doctor Thomas Young,
(01:25):
the medical examiner who conducted the autopsy just hours after
Anastasia's body was discovered in Lincoln Cemetery. Here's Nicole Gordon,
one of Byron's attorneys.
Speaker 3 (01:36):
We wrote to doctor Young. We talked to him briefly
and planned to meet him. We sent him the investigation
that we'd done so far or that part in the process,
and scheduled meeting with him. He comes into the room,
he sits down, and we said, well, what did you think?
And the first thing that doctor Young said that everything
(01:57):
that Kelly said after two thousand was a lie. Her
story cannot be true. And he was insisted on that.
I was the first thing out of his mouth about
this case.
Speaker 1 (02:09):
On May tenth, twenty twenty three, doctor Young writes an affidavit.
We hired an actor to read some of what he wrote.
Speaker 4 (02:18):
I was neither deposed nor called as a witness to
trial regarding my autopsy of Miss Whippleshugen. Doctor Chase Blanchard
testified in deposition and a trial based on my autopsy report.
Doctor blanche was not present at the autopsy of Miss Whippleshugen.
Speaker 1 (02:35):
Here's Byron's attorney, Sean O'Brien.
Speaker 5 (02:38):
Doctor Chase Blanchard had just graduated from medical school, did
not have much experience as a medical examiner, but they
substituted her for doctor Young. They did that before depositions
were taken, and they said to judge Otwell, well, doctor
Young's out of town. We have to use doctor Blanchard. Well,
(03:01):
he would not have been out of town for that
whole period of pre trial discovery and the trial, and
in fact he doesn't remember it when we talked to
him being out of town or unavailable. But they used
doctor Blanchard to testify in lieu of doctor Young, and
doctor Blanchard's testimony generally was supportive of what Kelly moffittt said.
Speaker 1 (03:26):
Back to Dr Young's affidavit.
Speaker 4 (03:28):
Based on my review and my direct observation at autopsy,
it's my opinion to a reasonable degree of medical certainty
that Miss Moffatt's story and implicating Byron Case is not
consistent with the physical evidence. Ms Moffatt claimed that Byron
Case shot Miss Whipplesfugen from five feet away.
Speaker 6 (03:47):
This is impossible.
Speaker 4 (03:49):
Any assertion that the contact gunshot wound in Miss Whipplesfugen's
face is a wound from five feet away is false
and not consistent with the evidence. Abes her of the
mis Wibbleshugen had a contact gunshot wound to the tip
of her nose. This means that the gun used on
Miss Whibbleshugen was touching her nose when it was fired.
I know this to be true because, in addition to
(04:12):
whether wound characteristics typical for a contact gunshot wound I
found through a dissecting microscope, gunpowder particles and soft tissues
in the wound track beneath her skin. Ms Moffett also
described Miss Whipplefhugen's body being blown backwards by the gunshot.
This is also not possible. A gunshot would not push
(04:33):
her body backward, but instead rapidly perforate her head. Without
such a push, a person being blown backwards by a
gunshot is entirely Hollywood style fiction. The physical evidence also
does not support a claim that a shotgun was used
to kill Miss Wibbleshugen. The bullet fragment I recovered also
(04:55):
was not consistent with a shotgun.
Speaker 1 (04:57):
Slug, which is different than what doctor Chase Blanchard said
on the stand. She testified that the gun used could
have been a rifle, a high powered handgun, or a shotgun,
but she said if it were a shotgun, quote, there
was a fragment found in the back, and that's consistent
(05:17):
with a shotgun slug. Doctor Blanchard is referring to the
bullet fragment found matted in Anastasia's hair. Here's Sean again.
Speaker 5 (05:27):
And and that's the same ammunition that Justin used to
kill himself with. And so they actually argued to the jury,
wouldn't that be a coincidence? But doctor Young said this
was not a deer slug. I mean, and frankly, I've
done deer slug homicides. I could have told you this
was not a deer slug.
Speaker 1 (05:47):
Well, you just look at the crime scene. I mean,
the photos from the scenes, justin what happened to Justin.
Speaker 5 (05:55):
With half his head is missing.
Speaker 1 (05:58):
I mean, it's versus Anastasia. I mean, they don't even
I don't know anything about ballistics or any I can
tell just as a layman that these are not the
same type of thing.
Speaker 5 (06:08):
It's not at all the same. I mean, it's an
unrifled chunk a lead that comes out at high velocity
that's typically blunt, and it just you know, those, frankly,
are the worst crime scene photographs I've ever had the view.
Speaker 1 (06:22):
I agree, I think it's one of the worst things
I've ever seen.
Speaker 5 (06:24):
Yeah, and it is Justin's Yeah, this was not that.
This was not that.
Speaker 1 (06:29):
So doctor Young concludes his affidavit by saying, had he
been called to testify at Byron case's trial, he would
have answered consistently with his affidavit. Among the many questions
I sent to Prosecutor Teresa Craon was why didn't they
call doctor Young to testify? I also asked what she
thought about doctor Young's APFA David Remember. Her office issued
(06:52):
the following statement quote, the office has decided that until
all litigation is complete on this matter, it isn't a
pro for a potential witness I e. Teresa to participate.
But there might be a small hiccup when it comes
to doctor Young. To Byron's current legal team, and in
(07:12):
his affidavit, doctor Young says the way Kelly said Byron
shot Anastasia is not consistent with the physical evidence. But
doctor Young is interviewed for the twenty sixteen MTV show
Unlocking the Truth, which looked at cases of possible wrongful convictions,
Byron's being one of them. There, doctor Young says something
(07:35):
very different, Kevin Maffin is.
Speaker 6 (07:38):
A witness the King.
Speaker 7 (07:39):
Later on everything she says fitstiavis.
Speaker 1 (07:45):
Unlocking the Truth is hosted by Ryan Ferguson, who was
wrongfully convicted of a two thousand and one murder in Columbia, Missouri.
He spent almost ten years in prison for the crime.
By the way, Ryan Ferguson was convicted largely based on
false eyewitness testimony. Okay, back to doctor Young talking with
Ryan about Kelly.
Speaker 6 (08:07):
But there's a witness account in this case. She describes
a rifle.
Speaker 7 (08:13):
Witnesses have been highly suspect in many cases.
Speaker 6 (08:16):
You don't pass judgment.
Speaker 7 (08:17):
On a witness accountanteam or what they have to say
and compare.
Speaker 6 (08:20):
It to the evidence. It's called thinking dirty.
Speaker 7 (08:23):
Thinking dirty doesn't work no matter what kind of character
this person is.
Speaker 6 (08:28):
You put that all aside and you look at the
content of what they're saying.
Speaker 7 (08:32):
Witnesses observe things. The fact that there's something that is
observed makes it a fact.
Speaker 6 (08:38):
Could they be lying? Maybe you test.
Speaker 7 (08:41):
It with the evidence, but that's still a fact. It's
like a jigsaw puzzle. You know, you got a piece,
you got a context here, you put the piece in.
Speaker 6 (08:51):
It'll fit or it doesn't fit.
Speaker 1 (08:55):
As you can imagine, doctor Jung's assessment of eyewitness testimony
doesn't sit too well with Ryan. Doctor Young is then
asked what in Kelly's testimony is consistent with his medical findings.
Speaker 7 (09:09):
She mentions that as she's sitting in the backseat, Byron
gets the keys out of.
Speaker 6 (09:13):
The ignition, opens the trunk, pulls out.
Speaker 7 (09:16):
She says, I think it's a Honting rival and he
puts the thing in her face.
Speaker 6 (09:20):
And fires it. All of that fips.
Speaker 1 (09:26):
Does that fit the physical evidence? Again? Kelly said Byron
was five feet or more away from Anastasia when he
shot her, So how does that fit his medical findings
of it being a contact wound? Doctor Young continues.
Speaker 7 (09:41):
Past events are so complex. If somebody basically gives a
past event account and everything lines up with evidence, that's remarkable.
Speaker 6 (09:50):
Somebody to just simply make.
Speaker 7 (09:52):
Up a witness account, align account and have everything line
up with the evidence like that. They have to be
aligned TVs to do that.
Speaker 1 (10:05):
I asked Byron's investigator, Quinn O'Brien what she makes of
doctor Young's MTV interview and how it's in complete contradiction
to his affidavit seven years later.
Speaker 8 (10:17):
Yeah, it is, And I think what happened was that
the MTV people didn't give him the same things that
we gave him. I think MTV gave him his old report,
and based on his old report, he discussed these things.
But we gave him Kelley mo off its transcript and deposition,
We gave him the prosecutor's closing, and we gave him
(10:38):
a few other documents. And with more information and with
more context, doctor Young was able to come to a
better decision. More information means a more accurate assessment. Right,
Your expert is only as good as what you give them.
I don't think he had the information that he needed
to make a good assessment, because yeah, we saw that
(11:00):
MTV thing too and went, huh, what's that about? You know,
then when we gave him his report, we also gave
him these other things, and he said, in context, here's
how I came to my decision, Like I looked at
Kelley Moffitt's testimony, and I looked at like, is what
Kelly's saying? Is that true? According to what the evidence
(11:23):
is showing me. He said that the gun was pressed
up against the tip of Anastasia's nose. It could not
have even been an inch away. It could not at
all have been like, you know, a foot away or
five feet away. It was.
Speaker 1 (11:36):
Doctor Young declined my invitation to be interviewed. In episode eight,
I shared that I emailed doctor Young asking why he
wrote in his autopsy report that Anastagia's corneas were clear,
hoping to learn more about her time of death. He
never responded to that question. I email him again to
see what he has to say about his MTV interview
and how it's very different from his twenty twenty three
(11:59):
out of David, but he hasn't responded. So Byron's legal
team feels good having doctor Young's affidavit in their pocket
and they are just getting started. Turns out, Horton Lance,
Byron's trial attorney, has a lot to say too, again
not to me. Although he initially said he might agree
(12:20):
to an interview. He asked me to call him back
in a few weeks, which I did several times. He
never returned to any of my calls, but in his
July third, twenty twenty three affidavit he doesn't hold back.
We hired another actor to read from Horton Lance's affidavit.
Here are some of what he said.
Speaker 9 (12:39):
When I was assigned to Byron's case, very little work
had been done due to the high case load of
the public defender. Byron wanted a speedy trial because he
was certain of his innocence and was held in pre
trialed attention in the Jackson County Jail. These circumstances gave
me less than six months to prepare for trial.
Speaker 1 (12:59):
Horton goes on to talk about his process for receiving discovery,
how he maintained his files, and then he says this.
Speaker 9 (13:07):
I remember reading the state's response to my request for
the criminal records of the state's witnesses. Their April third,
two thousand and two response was that no witnesses had
a felony or misdemeanor conviction. I am certain that I
was never informed of Kelley Moffatt's criminal conviction. I have
since reviewed the documents related to Ms Moffatt's April third,
(13:28):
two thousand and one conviction of a Class A misdemeanor
in Cooper County, Missouri. I was completely unaware that Miss
Moffatt was on probation at the time of her March eighth,
two thousand and two deposition. I would have used Miss
Moffatt's criminal record and contacts with law enforcement to impeach
her had the state disclosed that information, especially given the
(13:50):
timing of her arrest and prosecution to when she gave
her September two thousand statements implicating Byron. In her deposition,
Kelly stated that she had never pled guilty to or
been convicted of a felony or misdemeanor in state or
federal court. The deposition was under oath, which means that
(14:13):
miss Moffatt committed perjury by denying she pled guilty to
a misdemeanor in state court. Had I known Kelly Moffatt
lied under oath, I would have moved to exclude her
testimony entirely, and if that was not successful, I would
have cross examined her about having lied under oath. Kelly
(14:33):
Moffatt was essential to the state's case. A first set
of interviews by police cleared Byron of any involvement in
Anastasia's death and corroborated Byron's persistent assertions of innocence. Then
she changed her story to claim that she saw Justin
Bruten kill Anastasia, until she changed her story again to
(14:55):
accuse Byron. There was no evidence whatsoever implicating Byron in
Anastasia's death. Without her testimony, the state could not have
gotten the case to a jury.
Speaker 1 (15:07):
He goes on to say.
Speaker 9 (15:09):
Whether Anastasia got out of Justin's car that night was
a significant point of contention at trial. If she got
out of the car at Truman Rode and I four
thirty five, then Byron is innocent and he would have
a corroborated alibi. An independent witness, mechanic Don Rand, saw
Anastasia get out of the car and walk across the
(15:31):
parking lot of the service station where he worked on
Truman Road near I four thirty five. Despite this, the
prosecutors argued that Byron lied about Anastasia getting out of
the car. Kelly Moffatt's testimony was the only evidence supporting
that argument. Accepting Miss Moffatt's story and ignoring Rand's testimony,
(15:52):
the state argued that Byron pressured Miss Moffatt into giving
the police a false story.
Speaker 1 (15:58):
Horton Lands then goes on to write about meeting Byron's attorney,
Brian Russell and being shown some emails Anastasia's dad sent
to Sergeant Kilgore. Horton paraphrases the emails.
Speaker 9 (16:11):
When meeting with mister Russell at his office, I was
shown several emails between Robert Whitbulls Fugen and the lead investigator,
Sergeant Gary Kilgore. This was the first time I'd seen
these emails, and several of them contained evidence that Anastasia
Whitbulls Fugen returned home after being picked up at Dairy Queen,
(16:31):
but before her death. Specifically, I never saw a January second,
nineteen ninety eight email about Anastasia's genes being found in
a dryer or Anastasia's underwear being found soaking in a
sink in her home. I also do not recall seeing
a January eleventh, nineteen ninety eight email about Anastasia's father
(16:52):
finding her purse at the family home, which included a
photograph of the purse. I also do not recall seeing
a January twenty two, nineteen ninety eight email that mentioned
witnesses seeing a young woman use a payphone. Because I
did not have these emails, it never occurred to me
that Anastasia went home before she died. If evidence demonstrating
(17:13):
that Anastasia went home before she died had been produced
to me, I would have used that to effectively cross
examine Kelly Moffatt and corroborate Byron's innocent account of what
he did that evening. It is now my understanding that
mister Whitbull's Fugen and Sergeant Kilgore exchanged over one one
hundred and forty emails related to the investigation. Less than
(17:37):
ten of those emails were produced to me by the
Jackson County Prosecutor before trial, none of which indicated that
Anastasia returned home. If I had those emails and the
photograph of the purse that mister whitbulls Fugen sent to
the Jackson County Sheriff, I would have used them to
examine Don Wright, the Dairy Queen employee who saw Anastasia
(17:59):
in the hours before her death. Miss Wright provided Anastasia
with an emergency tampon when Anastasia's period began in the
Dairy Queen. I would have asked miss Wright if it
was likely that Anastasia had soiled her underwear and jeans
when she began her period at Dairy Queen. I would
have asked her to confirm that she told investigators that
(18:20):
Anastasia was wearing light colored blue jeans and sandals with
socks at the Dairy Queen. I also would have asked
miss Wright if the purse in the photograph that mister
Whitbull's Fugen email to Detective Kilgore resembled the purse she
saw Anastasia carrying. I would have used the emails to
show that the clothing and purse were in the Whitbulls
(18:43):
Fugen home, which meant that Anastasia returned there after leaving
Dairy Queen and before her death. When Anastasia's clothes were
examined by Robert Frank Booth of the KCPD Crime Lab,
he reported the black jeans and underwear had no blood
on them and that Anastasia had a clean sanitary pad,
(19:04):
not a tampon. I could have used this to cross
examine Miss Moffatt to further highlight that Anastasia went home,
disproving Miss Moffatt's story. I would have reconsidered my decision
not to call Sergeant Kilgore and or mister Whitbulls Fugen,
so that I could prove that Anastasia did in fact
(19:25):
get out of the car, call someone on the telephone,
and go home after leaving the Dairy Queen and Mount
Washington Cemetery. Mister Russell also played for me a recorded
phone interview of mister Whitball's Fugen taken on January twenty second,
nineteen ninety eight, by Sergeant Kilgore. This recording was not
(19:47):
produced to me before trial. In that recording, mister Whitball's
fugen states that he spoke with a father daughter couple
at a Phillips sixty six gas station on Truman Road
and I four thirty five that saw a girl matching
Anastasia's description used the nearby payphones just before dark. The
(20:08):
corresponding report of his interaction was produced to me before trial,
attached as Exhibit F. However, that report does not state
the interview was recorded, nor does it include mister Whitball's
fugen's statement regarding these two additional witnesses. Had I known
that two others claimed to have seen Anastasia use the payphones,
I would have attempted to find them to corroborate that
(20:30):
Anastasia got out of the car as don Rand justin Bruton,
Ms Moffatt and Byron said, I recalled Teresa Crayon telling
me via telephone that she would not be calling Sergeant
Kilgore a trial. Miss Crayon said that the relationship between
Sergeant Kilgore and one of the families involved, either of
(20:51):
the Moffitts or the Whitball's fugens, had grown contentious. Miss
Crayon asked if I'd like her to make Sergeant Kilgore
available to me or subpoena's service or testimony. I declined.
I believed at the time that Miss Crayon was doing
me a favor by not calling the lead investigator to
testify in this case. I was also one aware of
(21:12):
the full extent of communications between mister Whitball's FUGEN and
state's witness Kelly Moffatt. If I had known mister Whitball's
fugen's level of involvement in the investigation into his daughter's death,
I would have considered calling him as a witness for
the defense. Knowing what I know now about mister Whitball's
fugen's involvement in the investigation, his contact with other testifying witnesses,
(21:38):
and his frequent contact with Sergeant Kilgore, I would have
accepted Miss Crayon's offer to help place Sergeant Kilgore under
subpoena to testify for the defense. At a minimum, I
would have deposed him. Miss Crayon also told me that
doctor Thomas Young, the medical examiner who conducted the autopsy
(21:58):
of Anastasia, was not available for trial, and the doctor
Chase Blanchard, who was not present for the autopsy would
be testifying in doctor Young's place. I took Miss Grayon
at her word and did not inquire with doctor Young
about his availability. I have reviewed his affidavit of May tenth,
twenty twenty three, where he opines that Kelly Moffatt's description
(22:21):
of the shooting is wholly inconsistent with his autopsy findings.
It would have been important for the jury to know
that doctor Young's autopsy definitively established that the barrel of
the gun that caused Anastasia's death was physically touching her
nose when it fired, and that it is impossible that
the gun was fired from three to five feet away,
(22:43):
as Miss Moffatt testified. Had I known that would have
been his testimony, I would not have consented to doctor
Blanchard testifying in his place and would have called for
doctor Young in Byron's defense. I remember Byron's trial steadfastly
maintained his innocence throughout and following the trial proceedings. I
(23:07):
remember Kelly Moffittt's testimony a trial. I recall her being emotionless,
almost bored when answering questions the prosecutor's assertion in closing
that Ms. Moffatt was emotional during her testimony rings false
to me.
Speaker 1 (23:24):
Then Horton talks about the June fifth should or shouldn't
record a call between Kelly and Byron.
Speaker 9 (23:31):
I remember the state using a transcript to a company
the recordings of two phone calls between Kelly Moffatt and Byron.
I do not recall where the transcripts came from. I assumed,
without scrutiny that the transcripts were accurate. The recorded conversations
were difficult to hear at times, and I believe we
relied heavily on the transcripts to determine what was said
(23:53):
on the tapes. I have since listened to the clear
audio of the June five, two thousand recording, and it
is apparent that Byron tells Miss Moffatt quote we should
talk about this, not quote we shouldn't talk about this
as the state and transcript represented as strengthens the argument
(24:16):
I made to the judge that the transcript, the recording,
and the conversation should not have been admitted because the
foundation for a tacit admission is not satisfied. In my opinion,
the false transcript was damning to the defense because the
prosecutor used it as a tacit admission and also suggested
in closing argument that Byron steered the conversation away from
(24:40):
the subject by talking about Loose Park. In fact, Byron
was giving Kelly Moffatt directions of where to meet to
discuss the matter. Further, I felt at the time that
the state could not lay a proper foundation for the
statement as a tacit admission, and I argued accordingly. The
better audio makes this argument even stronger.
Speaker 1 (25:02):
I don't know why Horton Lance doesn't want to talk
with me. Maybe it's as symbol as he's just busy,
he's an overworked public defender with not a moment to spare,
or maybe he doesn't want to answer questions about what
he did or didn't do while representing Byron, because it
seems even with everything that he wrote in his affidavit,
(25:22):
there may also have been some missteps or missed opportunities
on his part that he'd rather leave in the past.
As Byron's legal team is racking up affid davits, they
(25:43):
decide to approach Judge Charles Atwell, the judge who presided
over Byron's trial. Here's Byron's attorney Sean O'Brien.
Speaker 5 (25:52):
I could say I met Judge at Well forty six
years ago. He's been a prosecutor, he's been a defense lawyer,
he's been an assistant US attorney, and he went back
to being a defense lawyer, and that's what he was
when he became a trial judge. Loads of integrity, a
(26:13):
good trial judge, good lawyer, highly ethical.
Speaker 1 (26:17):
And Byron's lawyers play the June fifth should or shouldn't tapes,
the lesser quality one and the seemingly clearer one to
see what Judge Atwell hears and what he remembers from trial.
Here's Byron's attorney, Brian Russell.
Speaker 2 (26:33):
And we could tell by the trial transcript or pre
trial transcript he put a lot of thought and effort
into deciding whether to admit these tapes. And he's a
good judge both by reputation and you know, you can
tell he has a conscience. But yeah, so once we
kind of were confident that there is a should and
(26:53):
shouldn't and the transcript was an error, and we had
multiple copies of the tape, we wanted to see if
Judge at Well could remember which version of the tape
we had sounded more like what was at trial, and
so we played it for him. Had a bluetooth speaker
that was higher quality, and we played the low quality
(27:16):
tape for him first, and he asked if he could
read the transcript while he was leader while he was listening,
and I respectfully, your honor, and he was he's a
retired judge now he does mediations and things like that,
so there's no conflict with the pro he's a witness
at this point. So we played it for him. He
asked if he could see the transcript, and I was like, judge,
(27:40):
just if you could just listen to it for now
and then and then you can have a transcript after
you've listened to him. He's like, okay, that's fine, and
so he listens to the first version and then he
was like, I mean, that sounds kind of like what
it was at trial. And then he listens to the
second one and he's like, yeah, no, the first, the
lower quality one is what I remember it sounding like
a trial. And then he listened to the second tape
(28:02):
and he's listening to it and I'll never forget he's
listening to the higher quality version and he's he's, you know,
leaning his ear in and he goes, well, he says,
we should talk about this. Well, what did the transcript say?
And I handed him the transcript and he looked at
it and his face just sunk and he just said,
(28:25):
this is that is troubling. And he doesn't know, just
like we don't know. We don't know how this came about.
We just know that it did can't come about, and
that Byron. That was half of the evidence they used
to convict Byron.
Speaker 1 (28:40):
On July eighteenth, twenty twenty three, Judge Charles Atwell writes
an afpid David about the June fifth tapes and more.
We hired another actor to read from Judge Atwell's apphad David.
Here are some of what he wrote.
Speaker 10 (28:54):
One of the major pre trial issues in this case
was the admissibility of a June five tooth thousand and
one phone call between the state's sole witness, Kelly Moffatt,
and the defendant, mister Case. Mister Horton Lance represented mister
Case and objected to the admission of the tape into
evidence on the basis that the tape was not relevant
(29:16):
and was not sufficiently accurate and reliable. For my consideration
of this issue. The State provided me with a copy
of a tape of the June five telephone call and
a purported transcript of the tape. The state represented at
the April nineteen, two thousand and two pre trial hearing
that many parts of the tape were inaudible and the
(29:37):
transcripts don't try to put forth anything that you can't
hear on the tapes. With the aid of the transcript,
at the April twenty five, two thousand and two pre
trial conference, I noted Ms Moffatt's voice is very clear
and distinct. Mister Case's voice is not as clear, is
much softer and harder to understand. Although I was able
(29:59):
with the aid of the transcript, I was able to
understand what he said. I believed the transcript was accurate.
The transcript represents that mister Case twice said to Miss Moffatt,
we shouldn't talk about this. I ruled that the tape
would be admissible as a tacit admission, assuming a proper
foundation could be laid, including a chain of custody, and
(30:23):
that the tape was not altered. The State said that
the tape I listened to had been altered by a
company in Springfield, Missouri, in an attempt to make it
easier to hear the state represented to me that the
alteration really didn't help, and we were left with the
same thing we had before. They weren't able to enhance them.
At trial, mister Lance renewed his objections to the quality
(30:47):
of the tape and to its relevance, that the conversation
did not reflect a tacit admission by mister Case. I
overruled those objections. The jury was provided with the transcript
to read as I listened to the tape. The trial
transcript reflects that I orally instructed the jury as follows.
(31:07):
The sole purpose for these transcripts is to aid you
in listening to what's on the tape. The transcripts themselves
are not evidence. They're only given to you to aid
you to listen to what is on the tape. The
tape is the evidence. If you feel that there is
a conflict between the tape and the transcript, you should
rely upon your memory of what the tape said. During deliberations,
(31:33):
the very first thing the jury asked for was the
June five tape and the transcript. Mister Lance objected again repeatedly.
I allowed the jury to listen to the tape with
the transcripts again. During deliberations, I was asked by mister
Case's current counsel, Brian Russell and Sean O'Brien to listen
to two digital versions of the June five, two thousand
(31:55):
and one tape without the aid of a transcript. The
first version was very hard to hear and sounded very
much like what I remember the tape sounding like at
mister Case's trial. The second version of the tape was
somewhat clearer. I listened to that recording without the aid
of a transcript, and while mister Case's voice was still soft,
(32:16):
I was able to understand him. In response to Miss
Moffatt's question asking why mister Case killed Anastasia Whitbol's fugen,
mister Case clearly answers twice we should talk about this.
Having listened to both tapes, it is apparent to me
the transcript provided by the state as it relates to
(32:37):
what mister k said was not a fair and accurate
representation of the June five, two thousand and one phone call.
I recognize that an inaccurate transcript creates the risk that
the jury could be unfairly influenced I do not know
whether the tape presented to me a trial was of
lesser quality, or whether the device used to play the
(32:59):
tape created distortion. If a clearer version of the June
five recording was available at trial, that version was not
presented to me. If I had known a trial that
the audio could be played more clearly, I would have
insisted on listening to the tape in the clearest version
possible before making any ruling.
Speaker 1 (33:20):
Judge Outwell goes on to write about learning of Kelly's
previous conviction.
Speaker 10 (33:26):
Mister Case's current council also showed me the state's discovery
responses from April three to two thousand and two, where
the state claims to have no information at this time
with respect to any felony or misdemeanor convictions which the
state's witnesses may have. Mister Case's current council also showed
me that miss Moffatt was in fact convicted of a
(33:47):
Class A misdemeanor in Cooper County, Missouri, on April three,
two thousand and one, where she was sentenced to forty
eight hours of shock time and two years probation, with
the suspended execution of thirty days in jail. Mister Case's
current council also showed me Kelly Moffatt's deposition transcript from
March eight, two thousand and two, where she denied having
(34:09):
any falony or misdemeanor convictions in state or federal court,
or having any arrests. Mister Case had the right to
impeach Miss Moffatt with this prior conviction. The defense also
could have used Miss Moffatt's active probation status as evidence
of interest, bias, or prejudice in favor of the state.
(34:31):
In the affidavit, mister Land said that his motion for
the criminal records of the state's witnesses was answered with
the assertion that no such records exist.
Speaker 1 (34:42):
Judge Otwell goes on to say that mister Case's conviction
was affirmed by the Missouri Court of Appeals. When he
read the two thousand and four opinion, he said he
believed there were important constitutional issues that were raised that
he had not considered at the time of the admission
of the tape recording at TRU. These issues were considered
by the appellate court and did not result in a reversal.
(35:07):
I write a Judge at Well, hoping he would speak
with me, but he never responds interestingly enough. Evelyn Case,
Byron's mother says back in twenty twenty two, Judge Atwell
wrote her here she is talking about that.
Speaker 11 (35:23):
I would run into the judge. He doesn't live far
from here. Actually, I would run into him at the
grocery store and I corner him with my cart and
I said, Judge, yet, well, cap, you got a minute.
I was always polite, and I just told him, I says,
Byron didn't do this, and.
Speaker 1 (35:44):
He didn't really know what to say.
Speaker 7 (35:47):
But that was.
Speaker 11 (35:50):
The start of me. I wasn't hounding him, No, I wasn't.
I was very, very, very polite. But I would send
him things like the book or the flyers, just to
show him that we are busy with this. And then
one day he sent me a letter, the judge, and
I was so elated.
Speaker 1 (36:10):
What does it say right here? You want to read
it for me?
Speaker 8 (36:14):
Yeah?
Speaker 11 (36:14):
You want me read it? Yeah, it's a good one.
That came in twenty two March twenty third, twenty twenty two.
Dear miss Case, Over the years, I have seen you
on occasion, oftentimes at some MIP events. That's the Midwest
Innocent Project, and I went for every one of them,
(36:35):
you pay one hundred and twenty five dollars. And the
first time I saw him there with his wife, I
was like. I went up to him and I says,
what are you doing here? And his wife looked at
me very scared because you know, but I was like,
this is the innocent project, what are you doing here. Also,
over the course of years, I received correspondence from you
(36:58):
and from others who I believe to be friends or acquaintances.
I have decided it is time to write you back.
I think I simply cannot imagine the pain a parent
must feel if there is a son or a daughter
in prison for a crime they did not commit. I
know that you steadfastly believe in your son's innocence. As
we all know, I was a trial judge to preside
(37:21):
over your son's case and impose the sentence. Over my career,
I have been involved or touched several cases involving there's
some mistakes in here too, involving the issue of innocence.
I have done so both as a prosecutor and as
a defense lawyer. Providing innocence after conviction can be very
(37:41):
difficult and very frustrating for the innocent who are seeking relief.
I have long ago recognized that your son could be innocent.
I remember how he was taken back when the wordict
was read in the court room. So know that you
have continually been his champion, believing totally in his innocence.
(38:08):
As a retired judicial officer, I cannot and should be
directly involved in Byron's case. Candidly, I am not fully
aware of what has transpired since his conviction. However, please
accept my prayers for you and him. I would encourage
you to continue to seek any relief that is possible
(38:29):
on behalf of your son. If there are any lawyers involved,
I am happy to talk with them and give them
my insight yours very truly. Charles e Edwell, that meant
so much to me because I thought, oh, I did
so much. I send him the books, I send them
letters and kind of always just things about the progress,
(38:55):
if it was progress or whatever, or.
Speaker 1 (38:57):
Something new or whatever. That's kind of a big deal.
Speaker 11 (39:02):
Yeah, that was a big deal to me. You know,
I have three brothers and one brother. It's the same thing,
you know, family. You don't know why people turn out
like this. But he said it was falsified. Like, what what?
Speaker 1 (39:20):
That's right? One of Evelyn's brothers wondered if the Judge
Atwell letter is a fake? Is it? I reach out
to Judge at Well again to ask if he in
fact wrote that letter to Evelyn, and he responds with quote,
I would need to see the letter. I immediately send
it to him. No response. I write him again, Still nothing.
(39:45):
I'm going to post a photo of the letter on
the Real Killer Podcast Instagram page. Does it look real
to you? Byron's legal team now has affidavits from the
(40:07):
medical examiner, the defense attorney, and the judge. Here's attorney
Brian Russell.
Speaker 2 (40:14):
So one of the things that always bothered me about
this case was, you know, Kelly says, Byron got a
gun out of the trunk. I can't tell you what
it looks like. It's just a gun. And he walks
over to her from five feet away and lifts it
(40:34):
to his shoulder and shoots her in the face and
then she's blown backwards. But when you look at the
autopsy photos, and you know, bullets they passed through you, right,
they passed through, Especially a high powered bullet, it doesn't
typically lodge in your body. If it's a rifle bullet.
It goes through, it goes through you. All the damage
(40:56):
that's done is the shockwave from the bullet and the energy,
but most of the energy keeps going with that bullet
far far away. And so if he shoots her while
she's standing up, if there is a bullet fragment left,
it's going to be somewhere inside her skull, and there
are you can when you look at the X ray
there are little tiny fragments inside of her skull, but
(41:18):
there's a sizeable bullet fragment found on the other side
of the exit wound matted in her hair. And it
always bothered me because if a bullet has enough force
to go through your skull, I just don't understand how
your hair could stop it unless something was behind your
(41:38):
hair to stop it. And so when we got the
bullet and looked at it, you know, no one had
ever analyzed it other than the crime lab initially to
see if they could identify what type of bullet it was.
And it's just a lead fragment. There's no jacket, or
no jacket was found in the scene or anywhere around it.
That kind of helps in some ways narrow down what
(41:59):
type of bullet this might have been. It clearly rules
out a shotgun.
Speaker 9 (42:05):
No.
Speaker 2 (42:05):
I mean, the fact that she still had a head,
as gruesome as that is, tells you this wasn't a shotgun.
And so, you know, trying to figure out what type
of bullet this might have been, the crime lab could
never figure it out. They still can't figure it out today.
Speaker 1 (42:19):
I posted photos of the bullet fragment on Instagram.
Speaker 2 (42:22):
So like half of the bullet that went through her
head is found lodged in her hair. And so we
turned that over to the crime lab with all of
these pictures and asked them several questions, and one of
those questions was isn't more like, based on the physical evidence,
is it more likely than Anastasia was standing up or
(42:43):
laying down when she was shot? And they gave us
a report. And this is the Kansas City Regional Crime Lab,
not some other you know yahoos that we hired to
say whatever we want. And they said, I'm going to read.
Speaker 1 (42:57):
From the Kansas City Police Crime Labs No. November eighth,
twenty twenty three blood Stain Pattern Analysis Report, which was
written by Nicole Blackwell, the blood Stain Pattern Analysis technical
leader like Brian mentioned for the crime labs examination. They
sent the crime scene photos. They also shared the autopsy report,
(43:18):
cranial X rays and other reports and more. Nicole Blackwell
does note at the beginning of her report that the
images provided were of relatively low resolution. She writes there
are limitations surrounding the examination of bloodstains from only photographic evidence.
Despite that, here is some of her opinion quote, there
(43:40):
is no bloodstain evidence to suggest that Anastasia Whitwell's fugen
was upright after bloodshed commenced. Therefore, the evidence and my
observations below provide more support that she was shot while
lying on the ground than in an upright position. She
goes on to write, quote, there are no blood stains
(44:01):
on or around her body that indicated any movement after
bloodshed began. No dripstains or flow patterns were observed on
Anastasia's clothing or face that would indicate an upright position,
or any position other than the one in which she
was found, which was on her back. The fanning of
(44:22):
Anastasia's hair above her head does not support that she
quote must have been standing when the gunshot was received.
That last part about Anastasia must have been standing. Blackwell
is quoting from a senior criminalist initial report back from
around the time of the murder. Blackwell goes on to
say her hair position and the gunshot could be completely
(44:43):
unrelated events. Here's Byron's investigator. Quinno'brien.
Speaker 8 (44:49):
The blood splatter analyst said that gravity works in a
certain way and that it is very possible, if not likely,
that Anna's Stasia was laying down when she was shot.
There's no blood on her shirt and if she had
been upright gravity, according to the expert, gravity would have
pulled at least some of that blood down at some
(45:11):
point even before she fell down, but there's no blood
on her shirt.
Speaker 1 (45:16):
It also makes you wonder if the ground stopped the bullet.
I have wondered that because especially if it's sort of smashed.
Speaker 8 (45:25):
Yeah, and it does look smashed, and.
Speaker 1 (45:28):
If she were standing, then what it potentially would have
just passed through?
Speaker 8 (45:33):
Right, And doctor Young says that what we're doing now
is part of the Sherlock effect. Doctor Young, he talks
about the Sherlock effects and how too many people get
wrapped up and that like armshair detective kind of thing
where they make theories and you know that it's just theories,
he said. The big test is is the testifying witnesses
(45:56):
testimony possible or is their story possible given the evidence
in front of us.
Speaker 6 (46:02):
This is fun.
Speaker 12 (46:03):
It's fun to like pose it and think about these things,
especially when you're removed from it, like we are like
just the mechanics of things and the physics and the science.
Speaker 8 (46:13):
But first this is a real person. Yeah, And I know,
and I always get away from that sometimes, like not always, and.
Speaker 1 (46:19):
Actually yeah, also trying to you know, figure out Yeah.
By the way, doctor Jung wrote a book called The
Sherlock Effect, How Forensic doctors and investigators Disastrously reason like
the Great Detective. In it, he examines the Sherlock home
style of reasoning, why it doesn't work, and how it
(46:40):
can and does lead to wrongful convictions. So how much
of this case has become about the Sherlock effect and
how much of it is about hard, cold evidence. I
asked Brian Russell what the blood stain analysis report means
in terms of Kelly's story and the actual evidence.
Speaker 2 (47:01):
It's just one more thing that blows her story completely
out of the water. I mean, I don't know why
she made this up. I don't know who helped her
make this up, but it is so clear that her
story is made up.
Speaker 1 (47:15):
I do wonder, though, if Anastasia had been lying down
when she was shot, then how was a piece of
her skull found up to two feet away. Back to
Nicole Blackwell's report, she also gives an opinion about the
tire marks and car parts found at the scene. She writes, quote,
no physical evidence has been provided that can position both
(47:37):
the vehicle and Anastasia's body in the same place and time.
So basically the tire marks, car paint, and headlight glass
could have been left there at a different time, altogether
completely unrelated to Anastasia's murder. Blackwell concludes her report with quote,
no opinion can be rendered regarding the exclusion of the
(47:59):
possible of suicide. There is no bloodstain evidence that can
either support or refute a homicide or suicide claim. It
is reasonable that a contact gunshot wound to the face
may be carried out by oneself or another person. No
gun was recovered from the scene. This in and of
itself does not support or refute that Anastasia committed suicide.
(48:23):
A gun was removed from this scene, regardless of if
it was ruled a homicide or a suicide. By the way,
no testing was performed on Anastasia's hands for trace metals.
A few months before Nicole Blackwell's report came out, the
team sent the actual bullet fragment to the Kansas City
(48:44):
Police Crime Lab for the purpose of examining for the
presence of apparent soil. On August twenty eighth, twenty twenty three,
the trace report, written by Chief Criminalist Patrick Jones, comes out.
While no apparent soil was detected on the bullet fragm
Brian and the team are stunned by what is observed.
Speaker 2 (49:06):
Blue fibers were found and she was not wearing anything
that was blue. There's a few different explanations and theories
that we have for that, some of them innocent, some
of them maybe not so innocent.
Speaker 1 (49:22):
Can you give me sort of an overview of.
Speaker 2 (49:24):
Sure, Depending on what type of gun this was, there
are some bullets that could be packed packed with having
a you know, like an antique type rifle or handgun.
You know, I shouldn't call it a rifle, so like
civil war type guns. There was something called there's something
(49:47):
called wadding that is like a little piece of cloth.
That is, you pour the gunpowder in, then you put
this piece of piece of cloth in, then you put
the bullet in, and so that could have been hit,
you know. But also Anastasia's bed sheets were blue, so
there could have been some at some point maybe she
had had blue fibers in her hair that the bullet
(50:12):
picked up when it after it went through her skull.
There's yeah, we had that. That's still an open question
in our investigation is where a blue fiber came from.
Speaker 1 (50:23):
That's here's Quinn again.
Speaker 8 (50:26):
The Kansas City Crime Lab has infinite patients with us,
like non scientific idiots, you know, asking questions like what
kind of fiber is it? What does this mean? It's like, well,
it looks you know, it's a fiber, which means it's
fiber us and it's blue. But you know, you'd have
to have it tested to know if it was paper
or wood, pulp or fabric or and it would still
(50:50):
not be super decisive because it's so small. And when
the police went to the house to look at the house,
when they found a taser just sitting on I don't
know what to make of that. All I have are
like theories and my imagination. But yeah, that's what makes
this part of the story so hard. There are still
a couple of things that I don't know about. Damn.
(51:13):
Those bed sheets are blue, and there's a taser on them,
and there's a blue fiber on that lead fragment, and
I don't know what to do with that.
Speaker 1 (51:22):
Okay, I don't have any police reports or photos that
show Anastasia's bed sheets were blue, so this is not
yet confirmed. All I have is a case related memo
that says Sergeant Kilgore did, in fact have Anastasia's linens.
There's no mention of what color they are, and there's
no mention of Anastasia's bed sheets in any of the
(51:43):
evidence logs I have. Quinn and the others are looking
through their files for documentation that proves Anastasia's bed linens
were blue. But since we don't have that, is this
the perfect example of the Sherlock effect without any evidence
of what the blue fibers actually are. Isn't this pure
speculation that Anastasia's bed sheets are somehow tied to the
(52:06):
blue fibers on the bullet and ultimately her murder. The
last affidavit we are going to talk about in this
episode was written by a friend of Kelly's. Her name
(52:29):
is Angie Giannino. She and Kelly were close friends starting
around nineteen ninety nine. Two thousand, Angie was driving when
Kelly threw that bottle of alcohol out of the car
window in Cooper County, which resulted in both of them
getting arrested. Remember, Kelly was charged with littering. There was
a warrant out for her arrest. She eventually pled guilty
(52:52):
and was given two years probation and forty eight hours
of shock time in jail. Anyway, on February twenty second,
twenty twenty three, Angie writes an affi David. Besides discussing
the days she and Kelly got arrested, she also talks
about how she was at Kelly's house for the June
fifth recorded phone call with Byron. I'm going to read
(53:15):
what she wrote about that quote. I was present on
June five, two thousand and one, when Kelly Moffatt called
Byron Case on behalf of the Jackson County Prosecutor's office
in an attempt to have Byron Case confess to the
murder of Anastasia Whitpolsfugen. When I arrived at Kelly's house
the day of the phone call. A woman I assumed
(53:36):
was law enforcement was already there. Kelly told me she
needed me to come over for emotional support. Kelly had
been drinking heavily and drank up until the phone call.
I did not hear the actual conversation Kelly had with Byron.
I assumed the woman who was present for the call
was law enforcement, even though she was not in a uniform.
(53:57):
I do not remember the name of that female officer.
I'm sure the officer told me her name, but I
don't remember what it was. This person was not part
of Kelly's family, and I assume this woman listening in
on Kelly's call was law enforcement. Kelly was in a
chair by the sliding glass door while I was there.
I sat on the couch. I believe the woman was standing.
(54:20):
So who is this woman? Angie is describing. Quinn and
the rest of Byron's legal team think they know.
Speaker 8 (54:29):
The very first prosecutor who was looking into this case,
who was assigned to this case, was Amy mcgallan. Even
with Kelly's statement, They're like, this just isn't enough. There's
not enough here. We don't think we have what we
need to get a conviction for Byron case. They need
a confession. They know that they need a confession, and
(54:49):
so Kelly volunteers to get that confession for them. Months
go by, months go by, nothing, There's no call to Byron.
Kelly hasn't been able to reach Byron. They haven't talked.
It's not clear that Kelly is even trying at this point.
And that's when she gets picked up on the warrant
(55:10):
down in Boonville in Cooper County. Now, the problem that
I have with some of this is that she gets
Byron on the phone. Kelly gets Byron on the phone twice.
The second time, it's documented that a lieutenant, a female
lieutenant from the Jackson County Sheriff's Department, is there. The
first time, there's no documentation of anyone being there except
(55:31):
Angie g Andino, and we know Angie was there because
we can hear Angie talking in the background before the
call starts. There are no other documented members of law
enforcement who are women on this case except for Amy
McGowan and the lieutenant who's there for the second call.
So we have pretty good reason to believe that Amy
McGowan was there. Pressuring Kelly into making this call. We thought,
(55:55):
for a minute, Wait a second, what if Angie's confused
and she's remembered the deputy that was there. Well, first
of all, we think the deputy was uniformed. And second,
that night, Angie's voice isn't on the tape. She's not there.
Her voice shows up at the beginning of the June
fifth call when Kelly is testifying on the stand. Kelly says,
(56:16):
that voice belongs to my friend Angie.
Speaker 1 (56:18):
What difference would it make if Amy McGowan were there
or not? I mean, like, why would that matter.
Speaker 8 (56:26):
I'm not sure that Kelly Moffatt would have made these
phone calls if it weren't for the pressure of Amy McGowan,
or if it weren't for the pressure of a potential
deal or a potential charge over her head. I don't
think that Amy McGowan was being honest when she told
(56:49):
her colleagues that there's no you know, no other deal
with Kelly. You know, Kelly was offered immunity for her testimony.
I think there were other coercive measures taken to to
get Kelly's testimony. I think Kelly was a vulnerable young
woman and an addict who was doing things in service
(57:11):
to her addiction. We know Kelly had contact with law
enforcement and that the prosecution didn't disclose that, and it
might not seem like a big deal, you know, it's like, oh,
it's maybe like, you know, a night in jail, two
nights in jail, it's just a misdemeanor charge. Well, you
try spending seventy two hours in a cell detoxing from
whatever drugs you're on. It's not pleasant. You know, she
(57:34):
could be facing more time because at this point she's
got drugs on her. You know, she's she's looking for drugs.
There's no doubt in my mind that there is more
to Kelly's story of being picked up on that warrant
and taken back down to Boonville in Cooper County. What
it is, I don't know. I don't know if the
(57:56):
rumors are right that she was caught with even more
drugs and then taken down to Cooper County because she
had that warrant. I don't know if the prosecutor called
and said, hey, this person isn't cooperating with us. She
won't get the guy we think is the purp on
the phone, and we need her to get on the
you know, get on the horn and get this guy's confession.
(58:18):
She's not doing it. Let's let her know that she
needs to be doing this. You know, I just I
would not put it past to Amy McGowan to be
that kind of threatening and coercive. I freed people that
Amy McGowan has put in prison before.
Speaker 1 (58:34):
You know, I don't.
Speaker 8 (58:35):
I'm not putting it past her to have really pressured
Kelly into calling Byron and trying to get that confession,
or pressured Kelly into testifying this way.
Speaker 1 (58:46):
I mean, these are some big, big allegations. We have
no idea if Amy McGowan was even there, let alone
pressuring Kelly to make the call. It is fair to
say that Amy McGowan has been accused of some prescatorial
misconduct during her career. Though. In twenty nineteen, Ricky Kidd,
(59:09):
who both Quinn and Sean O'Brien represented, was released from
prison after spending twenty three years behind bars for a
nineteen ninety six double murder. It seems Amy McGowan withheld
evidence of an alternate suspect in his case. Once that
came out, other evidence that pointed to Ricky's innocence surfaced,
(59:30):
the state's Office of Chief Disciplinary Council asked for Amy
McGowan's law license to be suspended. In October of twenty
twenty two, the Missouri Supreme Court said there wasn't enough
evidence to support taking that action. She has since retired.
I asked Brian why Amy McGowan didn't stay on Byron's case.
Speaker 2 (59:50):
We don't know why Amy McGowan didn't take this case
to trial, or why we know that she filed it.
We know that she was Kelly Moffatt's point of contact
while the investigation was still going on. We know that
she knew about the tape being made before Sergeant Kilgore
knew about the tape being made. And so there's probably
(01:00:13):
an innocent explanation for why she didn't try this case.
Maybe it's because she was too busy preparing for Richard
Buckley's case, which happened a couple months after this, which
was another wrongful conviction of hers, where she helped conceal
exculpatory evidence. After she left Jackson County, she went to
Douglas County, Kansas, and there's at least three other wrongful
(01:00:36):
convictions over there. As clear she has a pattern of
not taking her ethical duties as an attorney seriously. And
I don't know if that's because, you know, what's the saying,
be careful when you go chasing monsters unless you become
one yourself. I don't know if that's I don't know
if that explains it, or if she just doesn't care,
or or she just has several missunderstandings.
Speaker 1 (01:01:02):
Kelly Moffatt's friend Angie Giannino, never positively identified Amy McGowan
as the female plane closed officer at Kelly's house on
June fifth. I try to speak with Amy McGowan, but
am unsuccessful at finding a working email or phone number
for her. So I FedEx a letter to where I
believe she might live, asking if she'd be willing to
(01:01:24):
speak with me, but she never responds. I'm not even
sure she got it. I am able to find the
uniformed officer who was there for the second recorded phone
call between Kelly and Byron. She's no longer working in
law enforcement, so I'm not going to reveal her name,
but via Facebook Messenger, she wrote, quote, I really do
(01:01:44):
not recall this case. I doubt I'd be much assistance,
So then I offered to send her her reports to
refresh her memory. She said she wasn't interested, but she
wishes me the best with my work. I then write
her one last question, asking quote, around that time in
your career, would you wear a uniform on a regular basis?
(01:02:05):
She never responds to that. So maybe the unknown woman
Angie described seeing on June fifth was Amy McGowan, or
maybe she was this former officer, although when this officer
was present, she wrote a report about it, and I
don't have any police reports from this officer saying she
(01:02:26):
was there on June fifth. Before I get back to
Angie Ginino, I want to let you know that this season,
for the first time in our three seasons, the story
is still unfolding. As the episodes are dropping, new discoveries
are being made, and new interviews are taking place as
(01:02:48):
we speak, which brings me to Kelly. She's been listening
to the podcast and emailing me to share some of
her feelings about what she's hearing. As you can imagine,
there has been a range of emotions. After episode six,
Kelly writes, quote, I'd like to set some things straight
and also get the message out there for people to
(01:03:10):
not quit fighting for genuine, wrongful convictions because of people
like Byron. But I need honesty from you before I
feel comfortable doing So what is your angle on all this?
She goes on to write, quote, I need you to
tell me exactly what your conclusion is going to be
about Byron's claims of innocence. I will absolutely not be
(01:03:32):
involved in anything that paints him as innocent or even
hints at it. He's not innocent, and he knows it
and is taking valuable resources and time away from those
who are. I need your complete honesty and will get
a lawyer involved so you can't suddenly spin it after
getting the interview. So I respond to Kelly saying, I'm
(01:03:53):
proud of the journalistic work we are doing the season,
which is not advocacy journalism. We make no determination on
Byron's guilt or innocence, and I suggest Kelly listened to
all of the episodes before making her decision on whether
to sit down for an interview or not. Then, after
episode eight drops, Kelly writes again asking me to forward
(01:04:15):
her contact info to Byron's legal team because quote, they
have so much information wrong that it is absolutely ridiculous
and it's what they are basing all their theories on.
It's insane how much they have wrong. Per Kelly's request,
I forward her contact info to Byron's team. I hope
(01:04:36):
Kelly agrees to talk with me. I'll keep you posted, Okay.
Back to Angie Giannino, who said a lot in her affidavit,
she also says a lot to me. Since this happened
more than two decades ago, there are some details that
are a bit fuzzy for Angie, but she can very
(01:04:57):
clearly recall one day in particular, when Kelly made a
devastating and shocking confession before ever coming forward to police.
Speaker 13 (01:05:10):
And she's bawling and freaking out, and I was like,
my friend gives them a lot of pain.
Speaker 1 (01:05:18):
What did Kelly tell you?
Speaker 13 (01:05:19):
Oh my god, she told me that she witnessed Byron
murder Anastasia.
Speaker 1 (01:05:37):
Next time on the Real Killer.
Speaker 13 (01:05:40):
It just felt like a very dark horse, Like I
just felt a very dark energy in the home.
Speaker 1 (01:05:45):
Two friends, two stories.
Speaker 9 (01:05:48):
My friend's really about the least violent person I ever knew,
So the idea that he'd be involved.
Speaker 6 (01:05:55):
With let alone, like, you know, the primary actor in
such a place, because it didn't seem believable to.
Speaker 1 (01:06:02):
Me, who is telling the truth? Did Byron ask you
to live for him to be an alibi? 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
(01:06:25):
no help is available. Call or text nine to eight eight,
or chat online at the Suicide and Crisis 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.
(01:06:51):
The Real Killer is a production of AYR Media and iHeartMedia,
hosted by me Leah Rothman, Executive producer Leah Rothman and
Elisa Rosen for AYR Media. Written by Leah Rothman, editing
and sound design by Cameron Taggy, mixed and mastered by
Cameron Taggi, Production coordinator Andy Levine, Audio engineer Justin Longerbeam
(01:07:18):
studio engineer Graham Gibson. Legal council for AYR Media. Jonny
Douglas Voice acting by Brad Avenue, Tom Virtue, David Teitelbaum
Executive producer for iHeartMedia. Maya Howard
A warning. 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 2 (00:21):
I'm confident that our team knows more about the murder
of Anastasia Whipples Fugen and the prosecution of Byron Case
than anybody, which sometimes scares me to think how quickly
Byron was convicted and how little work anybody did before
they sent them to prison forever.
Speaker 1 (00:42):
Are the other people who also know this case fine
with leaving it done and decided, or will their minds
change after hearing what Byron's legal team says they've uncovered.
(01:04):
I'm Leah Rothman. This is the Real Killer, Episode ten,
Please accept my prayers. In the spring of twenty twenty three,
Byron Case's legal team reaches out to doctor Thomas Young,
(01:25):
the medical examiner who conducted the autopsy just hours after
Anastasia's body was discovered in Lincoln Cemetery. Here's Nicole Gordon,
one of Byron's attorneys.
Speaker 3 (01:36):
We wrote to doctor Young. We talked to him briefly
and planned to meet him. We sent him the investigation
that we'd done so far or that part in the process,
and scheduled meeting with him. He comes into the room,
he sits down, and we said, well, what did you think?
And the first thing that doctor Young said that everything
(01:57):
that Kelly said after two thousand was a lie. Her
story cannot be true. And he was insisted on that.
I was the first thing out of his mouth about
this case.
Speaker 1 (02:09):
On May tenth, twenty twenty three, doctor Young writes an affidavit.
We hired an actor to read some of what he wrote.
Speaker 4 (02:18):
I was neither deposed nor called as a witness to
trial regarding my autopsy of Miss Whippleshugen. Doctor Chase Blanchard
testified in deposition and a trial based on my autopsy report.
Doctor blanche was not present at the autopsy of Miss Whippleshugen.
Speaker 1 (02:35):
Here's Byron's attorney, Sean O'Brien.
Speaker 5 (02:38):
Doctor Chase Blanchard had just graduated from medical school, did
not have much experience as a medical examiner, but they
substituted her for doctor Young. They did that before depositions
were taken, and they said to judge Otwell, well, doctor
Young's out of town. We have to use doctor Blanchard. Well,
(03:01):
he would not have been out of town for that
whole period of pre trial discovery and the trial, and
in fact he doesn't remember it when we talked to
him being out of town or unavailable. But they used
doctor Blanchard to testify in lieu of doctor Young, and
doctor Blanchard's testimony generally was supportive of what Kelly moffittt said.
Speaker 1 (03:26):
Back to Dr Young's affidavit.
Speaker 4 (03:28):
Based on my review and my direct observation at autopsy,
it's my opinion to a reasonable degree of medical certainty
that Miss Moffatt's story and implicating Byron Case is not
consistent with the physical evidence. Ms Moffatt claimed that Byron
Case shot Miss Whipplesfugen from five feet away.
Speaker 6 (03:47):
This is impossible.
Speaker 4 (03:49):
Any assertion that the contact gunshot wound in Miss Whipplesfugen's
face is a wound from five feet away is false
and not consistent with the evidence. Abes her of the
mis Wibbleshugen had a contact gunshot wound to the tip
of her nose. This means that the gun used on
Miss Whibbleshugen was touching her nose when it was fired.
I know this to be true because, in addition to
(04:12):
whether wound characteristics typical for a contact gunshot wound I
found through a dissecting microscope, gunpowder particles and soft tissues
in the wound track beneath her skin. Ms Moffett also
described Miss Whipplefhugen's body being blown backwards by the gunshot.
This is also not possible. A gunshot would not push
(04:33):
her body backward, but instead rapidly perforate her head. Without
such a push, a person being blown backwards by a
gunshot is entirely Hollywood style fiction. The physical evidence also
does not support a claim that a shotgun was used
to kill Miss Wibbleshugen. The bullet fragment I recovered also
(04:55):
was not consistent with a shotgun.
Speaker 1 (04:57):
Slug, which is different than what doctor Chase Blanchard said
on the stand. She testified that the gun used could
have been a rifle, a high powered handgun, or a shotgun,
but she said if it were a shotgun, quote, there
was a fragment found in the back, and that's consistent
(05:17):
with a shotgun slug. Doctor Blanchard is referring to the
bullet fragment found matted in Anastasia's hair. Here's Sean again.
Speaker 5 (05:27):
And and that's the same ammunition that Justin used to
kill himself with. And so they actually argued to the jury,
wouldn't that be a coincidence? But doctor Young said this
was not a deer slug. I mean, and frankly, I've
done deer slug homicides. I could have told you this
was not a deer slug.
Speaker 1 (05:47):
Well, you just look at the crime scene. I mean,
the photos from the scenes, justin what happened to Justin.
Speaker 5 (05:55):
With half his head is missing.
Speaker 1 (05:58):
I mean, it's versus Anastasia. I mean, they don't even
I don't know anything about ballistics or any I can
tell just as a layman that these are not the
same type of thing.
Speaker 5 (06:08):
It's not at all the same. I mean, it's an
unrifled chunk a lead that comes out at high velocity
that's typically blunt, and it just you know, those, frankly,
are the worst crime scene photographs I've ever had the view.
Speaker 1 (06:22):
I agree, I think it's one of the worst things
I've ever seen.
Speaker 5 (06:24):
Yeah, and it is Justin's Yeah, this was not that.
This was not that.
Speaker 1 (06:29):
So doctor Young concludes his affidavit by saying, had he
been called to testify at Byron case's trial, he would
have answered consistently with his affidavit. Among the many questions
I sent to Prosecutor Teresa Craon was why didn't they
call doctor Young to testify? I also asked what she
thought about doctor Young's APFA David Remember. Her office issued
(06:52):
the following statement quote, the office has decided that until
all litigation is complete on this matter, it isn't a
pro for a potential witness I e. Teresa to participate.
But there might be a small hiccup when it comes
to doctor Young. To Byron's current legal team, and in
(07:12):
his affidavit, doctor Young says the way Kelly said Byron
shot Anastasia is not consistent with the physical evidence. But
doctor Young is interviewed for the twenty sixteen MTV show
Unlocking the Truth, which looked at cases of possible wrongful convictions,
Byron's being one of them. There, doctor Young says something
(07:35):
very different, Kevin Maffin is.
Speaker 6 (07:38):
A witness the King.
Speaker 7 (07:39):
Later on everything she says fitstiavis.
Speaker 1 (07:45):
Unlocking the Truth is hosted by Ryan Ferguson, who was
wrongfully convicted of a two thousand and one murder in Columbia, Missouri.
He spent almost ten years in prison for the crime.
By the way, Ryan Ferguson was convicted largely based on
false eyewitness testimony. Okay, back to doctor Young talking with
Ryan about Kelly.
Speaker 6 (08:07):
But there's a witness account in this case. She describes
a rifle.
Speaker 7 (08:13):
Witnesses have been highly suspect in many cases.
Speaker 6 (08:16):
You don't pass judgment.
Speaker 7 (08:17):
On a witness accountanteam or what they have to say
and compare.
Speaker 6 (08:20):
It to the evidence. It's called thinking dirty.
Speaker 7 (08:23):
Thinking dirty doesn't work no matter what kind of character
this person is.
Speaker 6 (08:28):
You put that all aside and you look at the
content of what they're saying.
Speaker 7 (08:32):
Witnesses observe things. The fact that there's something that is
observed makes it a fact.
Speaker 6 (08:38):
Could they be lying? Maybe you test.
Speaker 7 (08:41):
It with the evidence, but that's still a fact. It's
like a jigsaw puzzle. You know, you got a piece,
you got a context here, you put the piece in.
Speaker 6 (08:51):
It'll fit or it doesn't fit.
Speaker 1 (08:55):
As you can imagine, doctor Jung's assessment of eyewitness testimony
doesn't sit too well with Ryan. Doctor Young is then
asked what in Kelly's testimony is consistent with his medical findings.
Speaker 7 (09:09):
She mentions that as she's sitting in the backseat, Byron
gets the keys out of.
Speaker 6 (09:13):
The ignition, opens the trunk, pulls out.
Speaker 7 (09:16):
She says, I think it's a Honting rival and he
puts the thing in her face.
Speaker 6 (09:20):
And fires it. All of that fips.
Speaker 1 (09:26):
Does that fit the physical evidence? Again? Kelly said Byron
was five feet or more away from Anastasia when he
shot her, So how does that fit his medical findings
of it being a contact wound? Doctor Young continues.
Speaker 7 (09:41):
Past events are so complex. If somebody basically gives a
past event account and everything lines up with evidence, that's remarkable.
Speaker 6 (09:50):
Somebody to just simply make.
Speaker 7 (09:52):
Up a witness account, align account and have everything line
up with the evidence like that. They have to be
aligned TVs to do that.
Speaker 1 (10:05):
I asked Byron's investigator, Quinn O'Brien what she makes of
doctor Young's MTV interview and how it's in complete contradiction
to his affidavit seven years later.
Speaker 8 (10:17):
Yeah, it is, And I think what happened was that
the MTV people didn't give him the same things that
we gave him. I think MTV gave him his old report,
and based on his old report, he discussed these things.
But we gave him Kelley mo off its transcript and deposition,
We gave him the prosecutor's closing, and we gave him
(10:38):
a few other documents. And with more information and with
more context, doctor Young was able to come to a
better decision. More information means a more accurate assessment. Right,
Your expert is only as good as what you give them.
I don't think he had the information that he needed
to make a good assessment, because yeah, we saw that
(11:00):
MTV thing too and went, huh, what's that about? You know,
then when we gave him his report, we also gave
him these other things, and he said, in context, here's
how I came to my decision, Like I looked at
Kelley Moffitt's testimony, and I looked at like, is what
Kelly's saying? Is that true? According to what the evidence
(11:23):
is showing me. He said that the gun was pressed
up against the tip of Anastasia's nose. It could not
have even been an inch away. It could not at
all have been like, you know, a foot away or
five feet away. It was.
Speaker 1 (11:36):
Doctor Young declined my invitation to be interviewed. In episode eight,
I shared that I emailed doctor Young asking why he
wrote in his autopsy report that Anastagia's corneas were clear,
hoping to learn more about her time of death. He
never responded to that question. I email him again to
see what he has to say about his MTV interview
and how it's very different from his twenty twenty three
(11:59):
out of David, but he hasn't responded. So Byron's legal
team feels good having doctor Young's affidavit in their pocket
and they are just getting started. Turns out, Horton Lance,
Byron's trial attorney, has a lot to say too, again
not to me. Although he initially said he might agree
(12:20):
to an interview. He asked me to call him back
in a few weeks, which I did several times. He
never returned to any of my calls, but in his
July third, twenty twenty three affidavit he doesn't hold back.
We hired another actor to read from Horton Lance's affidavit.
Here are some of what he said.
Speaker 9 (12:39):
When I was assigned to Byron's case, very little work
had been done due to the high case load of
the public defender. Byron wanted a speedy trial because he
was certain of his innocence and was held in pre
trialed attention in the Jackson County Jail. These circumstances gave
me less than six months to prepare for trial.
Speaker 1 (12:59):
Horton goes on to talk about his process for receiving discovery,
how he maintained his files, and then he says this.
Speaker 9 (13:07):
I remember reading the state's response to my request for
the criminal records of the state's witnesses. Their April third,
two thousand and two response was that no witnesses had
a felony or misdemeanor conviction. I am certain that I
was never informed of Kelley Moffatt's criminal conviction. I have
since reviewed the documents related to Ms Moffatt's April third,
(13:28):
two thousand and one conviction of a Class A misdemeanor
in Cooper County, Missouri. I was completely unaware that Miss
Moffatt was on probation at the time of her March eighth,
two thousand and two deposition. I would have used Miss
Moffatt's criminal record and contacts with law enforcement to impeach
her had the state disclosed that information, especially given the
(13:50):
timing of her arrest and prosecution to when she gave
her September two thousand statements implicating Byron. In her deposition,
Kelly stated that she had never pled guilty to or
been convicted of a felony or misdemeanor in state or
federal court. The deposition was under oath, which means that
(14:13):
miss Moffatt committed perjury by denying she pled guilty to
a misdemeanor in state court. Had I known Kelly Moffatt
lied under oath, I would have moved to exclude her
testimony entirely, and if that was not successful, I would
have cross examined her about having lied under oath. Kelly
(14:33):
Moffatt was essential to the state's case. A first set
of interviews by police cleared Byron of any involvement in
Anastasia's death and corroborated Byron's persistent assertions of innocence. Then
she changed her story to claim that she saw Justin
Bruten kill Anastasia, until she changed her story again to
(14:55):
accuse Byron. There was no evidence whatsoever implicating Byron in
Anastasia's death. Without her testimony, the state could not have
gotten the case to a jury.
Speaker 1 (15:07):
He goes on to say.
Speaker 9 (15:09):
Whether Anastasia got out of Justin's car that night was
a significant point of contention at trial. If she got
out of the car at Truman Rode and I four
thirty five, then Byron is innocent and he would have
a corroborated alibi. An independent witness, mechanic Don Rand, saw
Anastasia get out of the car and walk across the
(15:31):
parking lot of the service station where he worked on
Truman Road near I four thirty five. Despite this, the
prosecutors argued that Byron lied about Anastasia getting out of
the car. Kelly Moffatt's testimony was the only evidence supporting
that argument. Accepting Miss Moffatt's story and ignoring Rand's testimony,
(15:52):
the state argued that Byron pressured Miss Moffatt into giving
the police a false story.
Speaker 1 (15:58):
Horton Lands then goes on to write about meeting Byron's attorney,
Brian Russell and being shown some emails Anastasia's dad sent
to Sergeant Kilgore. Horton paraphrases the emails.
Speaker 9 (16:11):
When meeting with mister Russell at his office, I was
shown several emails between Robert Whitbulls Fugen and the lead investigator,
Sergeant Gary Kilgore. This was the first time I'd seen
these emails, and several of them contained evidence that Anastasia
Whitbulls Fugen returned home after being picked up at Dairy Queen,
(16:31):
but before her death. Specifically, I never saw a January second,
nineteen ninety eight email about Anastasia's genes being found in
a dryer or Anastasia's underwear being found soaking in a
sink in her home. I also do not recall seeing
a January eleventh, nineteen ninety eight email about Anastasia's father
(16:52):
finding her purse at the family home, which included a
photograph of the purse. I also do not recall seeing
a January twenty two, nineteen ninety eight email that mentioned
witnesses seeing a young woman use a payphone. Because I
did not have these emails, it never occurred to me
that Anastasia went home before she died. If evidence demonstrating
(17:13):
that Anastasia went home before she died had been produced
to me, I would have used that to effectively cross
examine Kelly Moffatt and corroborate Byron's innocent account of what
he did that evening. It is now my understanding that
mister Whitbull's Fugen and Sergeant Kilgore exchanged over one one
hundred and forty emails related to the investigation. Less than
(17:37):
ten of those emails were produced to me by the
Jackson County Prosecutor before trial, none of which indicated that
Anastasia returned home. If I had those emails and the
photograph of the purse that mister whitbulls Fugen sent to
the Jackson County Sheriff, I would have used them to
examine Don Wright, the Dairy Queen employee who saw Anastasia
(17:59):
in the hours before her death. Miss Wright provided Anastasia
with an emergency tampon when Anastasia's period began in the
Dairy Queen. I would have asked miss Wright if it
was likely that Anastasia had soiled her underwear and jeans
when she began her period at Dairy Queen. I would
have asked her to confirm that she told investigators that
(18:20):
Anastasia was wearing light colored blue jeans and sandals with
socks at the Dairy Queen. I also would have asked
miss Wright if the purse in the photograph that mister
Whitbull's Fugen email to Detective Kilgore resembled the purse she
saw Anastasia carrying. I would have used the emails to
show that the clothing and purse were in the Whitbulls
(18:43):
Fugen home, which meant that Anastasia returned there after leaving
Dairy Queen and before her death. When Anastasia's clothes were
examined by Robert Frank Booth of the KCPD Crime Lab,
he reported the black jeans and underwear had no blood
on them and that Anastasia had a clean sanitary pad,
(19:04):
not a tampon. I could have used this to cross
examine Miss Moffatt to further highlight that Anastasia went home,
disproving Miss Moffatt's story. I would have reconsidered my decision
not to call Sergeant Kilgore and or mister Whitbulls Fugen,
so that I could prove that Anastasia did in fact
(19:25):
get out of the car, call someone on the telephone,
and go home after leaving the Dairy Queen and Mount
Washington Cemetery. Mister Russell also played for me a recorded
phone interview of mister Whitball's Fugen taken on January twenty second,
nineteen ninety eight, by Sergeant Kilgore. This recording was not
(19:47):
produced to me before trial. In that recording, mister Whitball's
fugen states that he spoke with a father daughter couple
at a Phillips sixty six gas station on Truman Road
and I four thirty five that saw a girl matching
Anastasia's description used the nearby payphones just before dark. The
(20:08):
corresponding report of his interaction was produced to me before trial,
attached as Exhibit F. However, that report does not state
the interview was recorded, nor does it include mister Whitball's
fugen's statement regarding these two additional witnesses. Had I known
that two others claimed to have seen Anastasia use the payphones,
I would have attempted to find them to corroborate that
(20:30):
Anastasia got out of the car as don Rand justin Bruton,
Ms Moffatt and Byron said, I recalled Teresa Crayon telling
me via telephone that she would not be calling Sergeant
Kilgore a trial. Miss Crayon said that the relationship between
Sergeant Kilgore and one of the families involved, either of
(20:51):
the Moffitts or the Whitball's fugens, had grown contentious. Miss
Crayon asked if I'd like her to make Sergeant Kilgore
available to me or subpoena's service or testimony. I declined.
I believed at the time that Miss Crayon was doing
me a favor by not calling the lead investigator to
testify in this case. I was also one aware of
(21:12):
the full extent of communications between mister Whitball's FUGEN and
state's witness Kelly Moffatt. If I had known mister Whitball's
fugen's level of involvement in the investigation into his daughter's death,
I would have considered calling him as a witness for
the defense. Knowing what I know now about mister Whitball's
fugen's involvement in the investigation, his contact with other testifying witnesses,
(21:38):
and his frequent contact with Sergeant Kilgore, I would have
accepted Miss Crayon's offer to help place Sergeant Kilgore under
subpoena to testify for the defense. At a minimum, I
would have deposed him. Miss Crayon also told me that
doctor Thomas Young, the medical examiner who conducted the autopsy
(21:58):
of Anastasia, was not available for trial, and the doctor
Chase Blanchard, who was not present for the autopsy would
be testifying in doctor Young's place. I took Miss Grayon
at her word and did not inquire with doctor Young
about his availability. I have reviewed his affidavit of May tenth,
twenty twenty three, where he opines that Kelly Moffatt's description
(22:21):
of the shooting is wholly inconsistent with his autopsy findings.
It would have been important for the jury to know
that doctor Young's autopsy definitively established that the barrel of
the gun that caused Anastasia's death was physically touching her
nose when it fired, and that it is impossible that
the gun was fired from three to five feet away,
(22:43):
as Miss Moffatt testified. Had I known that would have
been his testimony, I would not have consented to doctor
Blanchard testifying in his place and would have called for
doctor Young in Byron's defense. I remember Byron's trial steadfastly
maintained his innocence throughout and following the trial proceedings. I
(23:07):
remember Kelly Moffittt's testimony a trial. I recall her being emotionless,
almost bored when answering questions the prosecutor's assertion in closing
that Ms. Moffatt was emotional during her testimony rings false
to me.
Speaker 1 (23:24):
Then Horton talks about the June fifth should or shouldn't
record a call between Kelly and Byron.
Speaker 9 (23:31):
I remember the state using a transcript to a company
the recordings of two phone calls between Kelly Moffatt and Byron.
I do not recall where the transcripts came from. I assumed,
without scrutiny that the transcripts were accurate. The recorded conversations
were difficult to hear at times, and I believe we
relied heavily on the transcripts to determine what was said
(23:53):
on the tapes. I have since listened to the clear
audio of the June five, two thousand recording, and it
is apparent that Byron tells Miss Moffatt quote we should
talk about this, not quote we shouldn't talk about this
as the state and transcript represented as strengthens the argument
(24:16):
I made to the judge that the transcript, the recording,
and the conversation should not have been admitted because the
foundation for a tacit admission is not satisfied. In my opinion,
the false transcript was damning to the defense because the
prosecutor used it as a tacit admission and also suggested
in closing argument that Byron steered the conversation away from
(24:40):
the subject by talking about Loose Park. In fact, Byron
was giving Kelly Moffatt directions of where to meet to
discuss the matter. Further, I felt at the time that
the state could not lay a proper foundation for the
statement as a tacit admission, and I argued accordingly. The
better audio makes this argument even stronger.
Speaker 1 (25:02):
I don't know why Horton Lance doesn't want to talk
with me. Maybe it's as symbol as he's just busy,
he's an overworked public defender with not a moment to spare,
or maybe he doesn't want to answer questions about what
he did or didn't do while representing Byron, because it
seems even with everything that he wrote in his affidavit,
(25:22):
there may also have been some missteps or missed opportunities
on his part that he'd rather leave in the past.
As Byron's legal team is racking up affid davits, they
(25:43):
decide to approach Judge Charles Atwell, the judge who presided
over Byron's trial. Here's Byron's attorney Sean O'Brien.
Speaker 5 (25:52):
I could say I met Judge at Well forty six
years ago. He's been a prosecutor, he's been a defense lawyer,
he's been an assistant US attorney, and he went back
to being a defense lawyer, and that's what he was
when he became a trial judge. Loads of integrity, a
(26:13):
good trial judge, good lawyer, highly ethical.
Speaker 1 (26:17):
And Byron's lawyers play the June fifth should or shouldn't tapes,
the lesser quality one and the seemingly clearer one to
see what Judge Atwell hears and what he remembers from trial.
Here's Byron's attorney, Brian Russell.
Speaker 2 (26:33):
And we could tell by the trial transcript or pre
trial transcript he put a lot of thought and effort
into deciding whether to admit these tapes. And he's a
good judge both by reputation and you know, you can
tell he has a conscience. But yeah, so once we
kind of were confident that there is a should and
(26:53):
shouldn't and the transcript was an error, and we had
multiple copies of the tape, we wanted to see if
Judge at Well could remember which version of the tape
we had sounded more like what was at trial, and
so we played it for him. Had a bluetooth speaker
that was higher quality, and we played the low quality
(27:16):
tape for him first, and he asked if he could
read the transcript while he was leader while he was listening,
and I respectfully, your honor, and he was he's a
retired judge now he does mediations and things like that,
so there's no conflict with the pro he's a witness
at this point. So we played it for him. He
asked if he could see the transcript, and I was like, judge,
(27:40):
just if you could just listen to it for now
and then and then you can have a transcript after
you've listened to him. He's like, okay, that's fine, and
so he listens to the first version and then he
was like, I mean, that sounds kind of like what
it was at trial. And then he listens to the
second one and he's like, yeah, no, the first, the
lower quality one is what I remember it sounding like
a trial. And then he listened to the second tape
(28:02):
and he's listening to it and I'll never forget he's
listening to the higher quality version and he's he's, you know,
leaning his ear in and he goes, well, he says,
we should talk about this. Well, what did the transcript say?
And I handed him the transcript and he looked at
it and his face just sunk and he just said,
(28:25):
this is that is troubling. And he doesn't know, just
like we don't know. We don't know how this came about.
We just know that it did can't come about, and
that Byron. That was half of the evidence they used
to convict Byron.
Speaker 1 (28:40):
On July eighteenth, twenty twenty three, Judge Charles Atwell writes
an afpid David about the June fifth tapes and more.
We hired another actor to read from Judge Atwell's apphad David.
Here are some of what he wrote.
Speaker 10 (28:54):
One of the major pre trial issues in this case
was the admissibility of a June five tooth thousand and
one phone call between the state's sole witness, Kelly Moffatt,
and the defendant, mister Case. Mister Horton Lance represented mister
Case and objected to the admission of the tape into
evidence on the basis that the tape was not relevant
(29:16):
and was not sufficiently accurate and reliable. For my consideration
of this issue. The State provided me with a copy
of a tape of the June five telephone call and
a purported transcript of the tape. The state represented at
the April nineteen, two thousand and two pre trial hearing
that many parts of the tape were inaudible and the
(29:37):
transcripts don't try to put forth anything that you can't
hear on the tapes. With the aid of the transcript,
at the April twenty five, two thousand and two pre
trial conference, I noted Ms Moffatt's voice is very clear
and distinct. Mister Case's voice is not as clear, is
much softer and harder to understand. Although I was able
(29:59):
with the aid of the transcript, I was able to
understand what he said. I believed the transcript was accurate.
The transcript represents that mister Case twice said to Miss Moffatt,
we shouldn't talk about this. I ruled that the tape
would be admissible as a tacit admission, assuming a proper
foundation could be laid, including a chain of custody, and
(30:23):
that the tape was not altered. The State said that
the tape I listened to had been altered by a
company in Springfield, Missouri, in an attempt to make it
easier to hear the state represented to me that the
alteration really didn't help, and we were left with the
same thing we had before. They weren't able to enhance them.
At trial, mister Lance renewed his objections to the quality
(30:47):
of the tape and to its relevance, that the conversation
did not reflect a tacit admission by mister Case. I
overruled those objections. The jury was provided with the transcript
to read as I listened to the tape. The trial
transcript reflects that I orally instructed the jury as follows.
(31:07):
The sole purpose for these transcripts is to aid you
in listening to what's on the tape. The transcripts themselves
are not evidence. They're only given to you to aid
you to listen to what is on the tape. The
tape is the evidence. If you feel that there is
a conflict between the tape and the transcript, you should
rely upon your memory of what the tape said. During deliberations,
(31:33):
the very first thing the jury asked for was the
June five tape and the transcript. Mister Lance objected again repeatedly.
I allowed the jury to listen to the tape with
the transcripts again. During deliberations, I was asked by mister
Case's current counsel, Brian Russell and Sean O'Brien to listen
to two digital versions of the June five, two thousand
(31:55):
and one tape without the aid of a transcript. The
first version was very hard to hear and sounded very
much like what I remember the tape sounding like at
mister Case's trial. The second version of the tape was
somewhat clearer. I listened to that recording without the aid
of a transcript, and while mister Case's voice was still soft,
(32:16):
I was able to understand him. In response to Miss
Moffatt's question asking why mister Case killed Anastasia Whitbol's fugen,
mister Case clearly answers twice we should talk about this.
Having listened to both tapes, it is apparent to me
the transcript provided by the state as it relates to
(32:37):
what mister k said was not a fair and accurate
representation of the June five, two thousand and one phone call.
I recognize that an inaccurate transcript creates the risk that
the jury could be unfairly influenced I do not know
whether the tape presented to me a trial was of
lesser quality, or whether the device used to play the
(32:59):
tape created distortion. If a clearer version of the June
five recording was available at trial, that version was not
presented to me. If I had known a trial that
the audio could be played more clearly, I would have
insisted on listening to the tape in the clearest version
possible before making any ruling.
Speaker 1 (33:20):
Judge Outwell goes on to write about learning of Kelly's
previous conviction.
Speaker 10 (33:26):
Mister Case's current council also showed me the state's discovery
responses from April three to two thousand and two, where
the state claims to have no information at this time
with respect to any felony or misdemeanor convictions which the
state's witnesses may have. Mister Case's current council also showed
me that miss Moffatt was in fact convicted of a
(33:47):
Class A misdemeanor in Cooper County, Missouri, on April three,
two thousand and one, where she was sentenced to forty
eight hours of shock time and two years probation, with
the suspended execution of thirty days in jail. Mister Case's
current council also showed me Kelly Moffatt's deposition transcript from
March eight, two thousand and two, where she denied having
(34:09):
any falony or misdemeanor convictions in state or federal court,
or having any arrests. Mister Case had the right to
impeach Miss Moffatt with this prior conviction. The defense also
could have used Miss Moffatt's active probation status as evidence
of interest, bias, or prejudice in favor of the state.
(34:31):
In the affidavit, mister Land said that his motion for
the criminal records of the state's witnesses was answered with
the assertion that no such records exist.
Speaker 1 (34:42):
Judge Otwell goes on to say that mister Case's conviction
was affirmed by the Missouri Court of Appeals. When he
read the two thousand and four opinion, he said he
believed there were important constitutional issues that were raised that
he had not considered at the time of the admission
of the tape recording at TRU. These issues were considered
by the appellate court and did not result in a reversal.
(35:07):
I write a Judge at Well, hoping he would speak
with me, but he never responds interestingly enough. Evelyn Case,
Byron's mother says back in twenty twenty two, Judge Atwell
wrote her here she is talking about that.
Speaker 11 (35:23):
I would run into the judge. He doesn't live far
from here. Actually, I would run into him at the
grocery store and I corner him with my cart and
I said, Judge, yet, well, cap, you got a minute.
I was always polite, and I just told him, I says,
Byron didn't do this, and.
Speaker 1 (35:44):
He didn't really know what to say.
Speaker 7 (35:47):
But that was.
Speaker 11 (35:50):
The start of me. I wasn't hounding him, No, I wasn't.
I was very, very, very polite. But I would send
him things like the book or the flyers, just to
show him that we are busy with this. And then
one day he sent me a letter, the judge, and
I was so elated.
Speaker 1 (36:10):
What does it say right here? You want to read
it for me?
Speaker 8 (36:14):
Yeah?
Speaker 11 (36:14):
You want me read it? Yeah, it's a good one.
That came in twenty two March twenty third, twenty twenty two.
Dear miss Case, Over the years, I have seen you
on occasion, oftentimes at some MIP events. That's the Midwest
Innocent Project, and I went for every one of them,
(36:35):
you pay one hundred and twenty five dollars. And the
first time I saw him there with his wife, I
was like. I went up to him and I says,
what are you doing here? And his wife looked at
me very scared because you know, but I was like,
this is the innocent project, what are you doing here. Also,
over the course of years, I received correspondence from you
(36:58):
and from others who I believe to be friends or acquaintances.
I have decided it is time to write you back.
I think I simply cannot imagine the pain a parent
must feel if there is a son or a daughter
in prison for a crime they did not commit. I
know that you steadfastly believe in your son's innocence. As
we all know, I was a trial judge to preside
(37:21):
over your son's case and impose the sentence. Over my career,
I have been involved or touched several cases involving there's
some mistakes in here too, involving the issue of innocence.
I have done so both as a prosecutor and as
a defense lawyer. Providing innocence after conviction can be very
(37:41):
difficult and very frustrating for the innocent who are seeking relief.
I have long ago recognized that your son could be innocent.
I remember how he was taken back when the wordict
was read in the court room. So know that you
have continually been his champion, believing totally in his innocence.
(38:08):
As a retired judicial officer, I cannot and should be
directly involved in Byron's case. Candidly, I am not fully
aware of what has transpired since his conviction. However, please
accept my prayers for you and him. I would encourage
you to continue to seek any relief that is possible
(38:29):
on behalf of your son. If there are any lawyers involved,
I am happy to talk with them and give them
my insight yours very truly. Charles e Edwell, that meant
so much to me because I thought, oh, I did
so much. I send him the books, I send them
letters and kind of always just things about the progress,
(38:55):
if it was progress or whatever, or.
Speaker 1 (38:57):
Something new or whatever. That's kind of a big deal.
Speaker 11 (39:02):
Yeah, that was a big deal to me. You know,
I have three brothers and one brother. It's the same thing,
you know, family. You don't know why people turn out
like this. But he said it was falsified. Like, what what?
Speaker 1 (39:20):
That's right? One of Evelyn's brothers wondered if the Judge
Atwell letter is a fake? Is it? I reach out
to Judge at Well again to ask if he in
fact wrote that letter to Evelyn, and he responds with quote,
I would need to see the letter. I immediately send
it to him. No response. I write him again, Still nothing.
(39:45):
I'm going to post a photo of the letter on
the Real Killer Podcast Instagram page. Does it look real
to you? Byron's legal team now has affidavits from the
(40:07):
medical examiner, the defense attorney, and the judge. Here's attorney
Brian Russell.
Speaker 2 (40:14):
So one of the things that always bothered me about
this case was, you know, Kelly says, Byron got a
gun out of the trunk. I can't tell you what
it looks like. It's just a gun. And he walks
over to her from five feet away and lifts it
(40:34):
to his shoulder and shoots her in the face and
then she's blown backwards. But when you look at the
autopsy photos, and you know, bullets they passed through you, right,
they passed through, Especially a high powered bullet, it doesn't
typically lodge in your body. If it's a rifle bullet.
It goes through, it goes through you. All the damage
(40:56):
that's done is the shockwave from the bullet and the energy,
but most of the energy keeps going with that bullet
far far away. And so if he shoots her while
she's standing up, if there is a bullet fragment left,
it's going to be somewhere inside her skull, and there
are you can when you look at the X ray
there are little tiny fragments inside of her skull, but
(41:18):
there's a sizeable bullet fragment found on the other side
of the exit wound matted in her hair. And it
always bothered me because if a bullet has enough force
to go through your skull, I just don't understand how
your hair could stop it unless something was behind your
(41:38):
hair to stop it. And so when we got the
bullet and looked at it, you know, no one had
ever analyzed it other than the crime lab initially to
see if they could identify what type of bullet it was.
And it's just a lead fragment. There's no jacket, or
no jacket was found in the scene or anywhere around it.
That kind of helps in some ways narrow down what
(41:59):
type of bullet this might have been. It clearly rules
out a shotgun.
Speaker 9 (42:05):
No.
Speaker 2 (42:05):
I mean, the fact that she still had a head,
as gruesome as that is, tells you this wasn't a shotgun.
And so, you know, trying to figure out what type
of bullet this might have been, the crime lab could
never figure it out. They still can't figure it out today.
Speaker 1 (42:19):
I posted photos of the bullet fragment on Instagram.
Speaker 2 (42:22):
So like half of the bullet that went through her
head is found lodged in her hair. And so we
turned that over to the crime lab with all of
these pictures and asked them several questions, and one of
those questions was isn't more like, based on the physical evidence,
is it more likely than Anastasia was standing up or
(42:43):
laying down when she was shot? And they gave us
a report. And this is the Kansas City Regional Crime Lab,
not some other you know yahoos that we hired to
say whatever we want. And they said, I'm going to read.
Speaker 1 (42:57):
From the Kansas City Police Crime Labs No. November eighth,
twenty twenty three blood Stain Pattern Analysis Report, which was
written by Nicole Blackwell, the blood Stain Pattern Analysis technical
leader like Brian mentioned for the crime labs examination. They
sent the crime scene photos. They also shared the autopsy report,
(43:18):
cranial X rays and other reports and more. Nicole Blackwell
does note at the beginning of her report that the
images provided were of relatively low resolution. She writes there
are limitations surrounding the examination of bloodstains from only photographic evidence.
Despite that, here is some of her opinion quote, there
(43:40):
is no bloodstain evidence to suggest that Anastasia Whitwell's fugen
was upright after bloodshed commenced. Therefore, the evidence and my
observations below provide more support that she was shot while
lying on the ground than in an upright position. She
goes on to write, quote, there are no blood stains
(44:01):
on or around her body that indicated any movement after
bloodshed began. No dripstains or flow patterns were observed on
Anastasia's clothing or face that would indicate an upright position,
or any position other than the one in which she
was found, which was on her back. The fanning of
(44:22):
Anastasia's hair above her head does not support that she
quote must have been standing when the gunshot was received.
That last part about Anastasia must have been standing. Blackwell
is quoting from a senior criminalist initial report back from
around the time of the murder. Blackwell goes on to
say her hair position and the gunshot could be completely
(44:43):
unrelated events. Here's Byron's investigator. Quinno'brien.
Speaker 8 (44:49):
The blood splatter analyst said that gravity works in a
certain way and that it is very possible, if not likely,
that Anna's Stasia was laying down when she was shot.
There's no blood on her shirt and if she had
been upright gravity, according to the expert, gravity would have
pulled at least some of that blood down at some
(45:11):
point even before she fell down, but there's no blood
on her shirt.
Speaker 1 (45:16):
It also makes you wonder if the ground stopped the bullet.
I have wondered that because especially if it's sort of smashed.
Speaker 8 (45:25):
Yeah, and it does look smashed, and.
Speaker 1 (45:28):
If she were standing, then what it potentially would have
just passed through?
Speaker 8 (45:33):
Right, And doctor Young says that what we're doing now
is part of the Sherlock effect. Doctor Young, he talks
about the Sherlock effects and how too many people get
wrapped up and that like armshair detective kind of thing
where they make theories and you know that it's just theories,
he said. The big test is is the testifying witnesses
(45:56):
testimony possible or is their story possible given the evidence
in front of us.
Speaker 6 (46:02):
This is fun.
Speaker 12 (46:03):
It's fun to like pose it and think about these things,
especially when you're removed from it, like we are like
just the mechanics of things and the physics and the science.
Speaker 8 (46:13):
But first this is a real person. Yeah, And I know,
and I always get away from that sometimes, like not always, and.
Speaker 1 (46:19):
Actually yeah, also trying to you know, figure out Yeah.
By the way, doctor Jung wrote a book called The
Sherlock Effect, How Forensic doctors and investigators Disastrously reason like
the Great Detective. In it, he examines the Sherlock home
style of reasoning, why it doesn't work, and how it
(46:40):
can and does lead to wrongful convictions. So how much
of this case has become about the Sherlock effect and
how much of it is about hard, cold evidence. I
asked Brian Russell what the blood stain analysis report means
in terms of Kelly's story and the actual evidence.
Speaker 2 (47:01):
It's just one more thing that blows her story completely
out of the water. I mean, I don't know why
she made this up. I don't know who helped her
make this up, but it is so clear that her
story is made up.
Speaker 1 (47:15):
I do wonder, though, if Anastasia had been lying down
when she was shot, then how was a piece of
her skull found up to two feet away. Back to
Nicole Blackwell's report, she also gives an opinion about the
tire marks and car parts found at the scene. She writes, quote,
no physical evidence has been provided that can position both
(47:37):
the vehicle and Anastasia's body in the same place and time.
So basically the tire marks, car paint, and headlight glass
could have been left there at a different time, altogether
completely unrelated to Anastasia's murder. Blackwell concludes her report with quote,
no opinion can be rendered regarding the exclusion of the
(47:59):
possible of suicide. There is no bloodstain evidence that can
either support or refute a homicide or suicide claim. It
is reasonable that a contact gunshot wound to the face
may be carried out by oneself or another person. No
gun was recovered from the scene. This in and of
itself does not support or refute that Anastasia committed suicide.
(48:23):
A gun was removed from this scene, regardless of if
it was ruled a homicide or a suicide. By the way,
no testing was performed on Anastasia's hands for trace metals.
A few months before Nicole Blackwell's report came out, the
team sent the actual bullet fragment to the Kansas City
(48:44):
Police Crime Lab for the purpose of examining for the
presence of apparent soil. On August twenty eighth, twenty twenty three,
the trace report, written by Chief Criminalist Patrick Jones, comes out.
While no apparent soil was detected on the bullet fragm
Brian and the team are stunned by what is observed.
Speaker 2 (49:06):
Blue fibers were found and she was not wearing anything
that was blue. There's a few different explanations and theories
that we have for that, some of them innocent, some
of them maybe not so innocent.
Speaker 1 (49:22):
Can you give me sort of an overview of.
Speaker 2 (49:24):
Sure, Depending on what type of gun this was, there
are some bullets that could be packed packed with having
a you know, like an antique type rifle or handgun.
You know, I shouldn't call it a rifle, so like
civil war type guns. There was something called there's something
(49:47):
called wadding that is like a little piece of cloth.
That is, you pour the gunpowder in, then you put
this piece of piece of cloth in, then you put
the bullet in, and so that could have been hit,
you know. But also Anastasia's bed sheets were blue, so
there could have been some at some point maybe she
had had blue fibers in her hair that the bullet
(50:12):
picked up when it after it went through her skull.
There's yeah, we had that. That's still an open question
in our investigation is where a blue fiber came from.
Speaker 1 (50:23):
That's here's Quinn again.
Speaker 8 (50:26):
The Kansas City Crime Lab has infinite patients with us,
like non scientific idiots, you know, asking questions like what
kind of fiber is it? What does this mean? It's like, well,
it looks you know, it's a fiber, which means it's
fiber us and it's blue. But you know, you'd have
to have it tested to know if it was paper
or wood, pulp or fabric or and it would still
(50:50):
not be super decisive because it's so small. And when
the police went to the house to look at the house,
when they found a taser just sitting on I don't
know what to make of that. All I have are
like theories and my imagination. But yeah, that's what makes
this part of the story so hard. There are still
a couple of things that I don't know about. Damn.
(51:13):
Those bed sheets are blue, and there's a taser on them,
and there's a blue fiber on that lead fragment, and
I don't know what to do with that.
Speaker 1 (51:22):
Okay, I don't have any police reports or photos that
show Anastasia's bed sheets were blue, so this is not
yet confirmed. All I have is a case related memo
that says Sergeant Kilgore did, in fact have Anastasia's linens.
There's no mention of what color they are, and there's
no mention of Anastasia's bed sheets in any of the
(51:43):
evidence logs I have. Quinn and the others are looking
through their files for documentation that proves Anastasia's bed linens
were blue. But since we don't have that, is this
the perfect example of the Sherlock effect without any evidence
of what the blue fibers actually are. Isn't this pure
speculation that Anastasia's bed sheets are somehow tied to the
(52:06):
blue fibers on the bullet and ultimately her murder. The
last affidavit we are going to talk about in this
episode was written by a friend of Kelly's. Her name
(52:29):
is Angie Giannino. She and Kelly were close friends starting
around nineteen ninety nine. Two thousand, Angie was driving when
Kelly threw that bottle of alcohol out of the car
window in Cooper County, which resulted in both of them
getting arrested. Remember, Kelly was charged with littering. There was
a warrant out for her arrest. She eventually pled guilty
(52:52):
and was given two years probation and forty eight hours
of shock time in jail. Anyway, on February twenty second,
twenty twenty three, Angie writes an affi David. Besides discussing
the days she and Kelly got arrested, she also talks
about how she was at Kelly's house for the June
fifth recorded phone call with Byron. I'm going to read
(53:15):
what she wrote about that quote. I was present on
June five, two thousand and one, when Kelly Moffatt called
Byron Case on behalf of the Jackson County Prosecutor's office
in an attempt to have Byron Case confess to the
murder of Anastasia Whitpolsfugen. When I arrived at Kelly's house
the day of the phone call. A woman I assumed
(53:36):
was law enforcement was already there. Kelly told me she
needed me to come over for emotional support. Kelly had
been drinking heavily and drank up until the phone call.
I did not hear the actual conversation Kelly had with Byron.
I assumed the woman who was present for the call
was law enforcement, even though she was not in a uniform.
(53:57):
I do not remember the name of that female officer.
I'm sure the officer told me her name, but I
don't remember what it was. This person was not part
of Kelly's family, and I assume this woman listening in
on Kelly's call was law enforcement. Kelly was in a
chair by the sliding glass door while I was there.
I sat on the couch. I believe the woman was standing.
(54:20):
So who is this woman? Angie is describing. Quinn and
the rest of Byron's legal team think they know.
Speaker 8 (54:29):
The very first prosecutor who was looking into this case,
who was assigned to this case, was Amy mcgallan. Even
with Kelly's statement, They're like, this just isn't enough. There's
not enough here. We don't think we have what we
need to get a conviction for Byron case. They need
a confession. They know that they need a confession, and
(54:49):
so Kelly volunteers to get that confession for them. Months
go by, months go by, nothing, There's no call to Byron.
Kelly hasn't been able to reach Byron. They haven't talked.
It's not clear that Kelly is even trying at this point.
And that's when she gets picked up on the warrant
(55:10):
down in Boonville in Cooper County. Now, the problem that
I have with some of this is that she gets
Byron on the phone. Kelly gets Byron on the phone twice.
The second time, it's documented that a lieutenant, a female
lieutenant from the Jackson County Sheriff's Department, is there. The
first time, there's no documentation of anyone being there except
(55:31):
Angie g Andino, and we know Angie was there because
we can hear Angie talking in the background before the
call starts. There are no other documented members of law
enforcement who are women on this case except for Amy
McGowan and the lieutenant who's there for the second call.
So we have pretty good reason to believe that Amy
McGowan was there. Pressuring Kelly into making this call. We thought,
(55:55):
for a minute, Wait a second, what if Angie's confused
and she's remembered the deputy that was there. Well, first
of all, we think the deputy was uniformed. And second,
that night, Angie's voice isn't on the tape. She's not there.
Her voice shows up at the beginning of the June
fifth call when Kelly is testifying on the stand. Kelly says,
(56:16):
that voice belongs to my friend Angie.
Speaker 1 (56:18):
What difference would it make if Amy McGowan were there
or not? I mean, like, why would that matter.
Speaker 8 (56:26):
I'm not sure that Kelly Moffatt would have made these
phone calls if it weren't for the pressure of Amy McGowan,
or if it weren't for the pressure of a potential
deal or a potential charge over her head. I don't
think that Amy McGowan was being honest when she told
(56:49):
her colleagues that there's no you know, no other deal
with Kelly. You know, Kelly was offered immunity for her testimony.
I think there were other coercive measures taken to to
get Kelly's testimony. I think Kelly was a vulnerable young
woman and an addict who was doing things in service
(57:11):
to her addiction. We know Kelly had contact with law
enforcement and that the prosecution didn't disclose that, and it
might not seem like a big deal, you know, it's like, oh,
it's maybe like, you know, a night in jail, two
nights in jail, it's just a misdemeanor charge. Well, you
try spending seventy two hours in a cell detoxing from
whatever drugs you're on. It's not pleasant. You know, she
(57:34):
could be facing more time because at this point she's
got drugs on her. You know, she's she's looking for drugs.
There's no doubt in my mind that there is more
to Kelly's story of being picked up on that warrant
and taken back down to Boonville in Cooper County. What
it is, I don't know. I don't know if the
(57:56):
rumors are right that she was caught with even more
drugs and then taken down to Cooper County because she
had that warrant. I don't know if the prosecutor called
and said, hey, this person isn't cooperating with us. She
won't get the guy we think is the purp on
the phone, and we need her to get on the
you know, get on the horn and get this guy's confession.
(58:18):
She's not doing it. Let's let her know that she
needs to be doing this. You know, I just I
would not put it past to Amy McGowan to be
that kind of threatening and coercive. I freed people that
Amy McGowan has put in prison before.
Speaker 1 (58:34):
You know, I don't.
Speaker 8 (58:35):
I'm not putting it past her to have really pressured
Kelly into calling Byron and trying to get that confession,
or pressured Kelly into testifying this way.
Speaker 1 (58:46):
I mean, these are some big, big allegations. We have
no idea if Amy McGowan was even there, let alone
pressuring Kelly to make the call. It is fair to
say that Amy McGowan has been accused of some prescatorial
misconduct during her career. Though. In twenty nineteen, Ricky Kidd,
(59:09):
who both Quinn and Sean O'Brien represented, was released from
prison after spending twenty three years behind bars for a
nineteen ninety six double murder. It seems Amy McGowan withheld
evidence of an alternate suspect in his case. Once that
came out, other evidence that pointed to Ricky's innocence surfaced,
(59:30):
the state's Office of Chief Disciplinary Council asked for Amy
McGowan's law license to be suspended. In October of twenty
twenty two, the Missouri Supreme Court said there wasn't enough
evidence to support taking that action. She has since retired.
I asked Brian why Amy McGowan didn't stay on Byron's case.
Speaker 2 (59:50):
We don't know why Amy McGowan didn't take this case
to trial, or why we know that she filed it.
We know that she was Kelly Moffatt's point of contact
while the investigation was still going on. We know that
she knew about the tape being made before Sergeant Kilgore
knew about the tape being made. And so there's probably
(01:00:13):
an innocent explanation for why she didn't try this case.
Maybe it's because she was too busy preparing for Richard
Buckley's case, which happened a couple months after this, which
was another wrongful conviction of hers, where she helped conceal
exculpatory evidence. After she left Jackson County, she went to
Douglas County, Kansas, and there's at least three other wrongful
(01:00:36):
convictions over there. As clear she has a pattern of
not taking her ethical duties as an attorney seriously. And
I don't know if that's because, you know, what's the saying,
be careful when you go chasing monsters unless you become
one yourself. I don't know if that's I don't know
if that explains it, or if she just doesn't care,
or or she just has several missunderstandings.
Speaker 1 (01:01:02):
Kelly Moffatt's friend Angie Giannino, never positively identified Amy McGowan
as the female plane closed officer at Kelly's house on
June fifth. I try to speak with Amy McGowan, but
am unsuccessful at finding a working email or phone number
for her. So I FedEx a letter to where I
believe she might live, asking if she'd be willing to
(01:01:24):
speak with me, but she never responds. I'm not even
sure she got it. I am able to find the
uniformed officer who was there for the second recorded phone
call between Kelly and Byron. She's no longer working in
law enforcement, so I'm not going to reveal her name,
but via Facebook Messenger, she wrote, quote, I really do
(01:01:44):
not recall this case. I doubt I'd be much assistance,
So then I offered to send her her reports to
refresh her memory. She said she wasn't interested, but she
wishes me the best with my work. I then write
her one last question, asking quote, around that time in
your career, would you wear a uniform on a regular basis?
(01:02:05):
She never responds to that. So maybe the unknown woman
Angie described seeing on June fifth was Amy McGowan, or
maybe she was this former officer, although when this officer
was present, she wrote a report about it, and I
don't have any police reports from this officer saying she
(01:02:26):
was there on June fifth. Before I get back to
Angie Ginino, I want to let you know that this season,
for the first time in our three seasons, the story
is still unfolding. As the episodes are dropping, new discoveries
are being made, and new interviews are taking place as
(01:02:48):
we speak, which brings me to Kelly. She's been listening
to the podcast and emailing me to share some of
her feelings about what she's hearing. As you can imagine,
there has been a range of emotions. After episode six,
Kelly writes, quote, I'd like to set some things straight
and also get the message out there for people to
(01:03:10):
not quit fighting for genuine, wrongful convictions because of people
like Byron. But I need honesty from you before I
feel comfortable doing So what is your angle on all this?
She goes on to write, quote, I need you to
tell me exactly what your conclusion is going to be
about Byron's claims of innocence. I will absolutely not be
(01:03:32):
involved in anything that paints him as innocent or even
hints at it. He's not innocent, and he knows it
and is taking valuable resources and time away from those
who are. I need your complete honesty and will get
a lawyer involved so you can't suddenly spin it after
getting the interview. So I respond to Kelly saying, I'm
(01:03:53):
proud of the journalistic work we are doing the season,
which is not advocacy journalism. We make no determination on
Byron's guilt or innocence, and I suggest Kelly listened to
all of the episodes before making her decision on whether
to sit down for an interview or not. Then, after
episode eight drops, Kelly writes again asking me to forward
(01:04:15):
her contact info to Byron's legal team because quote, they
have so much information wrong that it is absolutely ridiculous
and it's what they are basing all their theories on.
It's insane how much they have wrong. Per Kelly's request,
I forward her contact info to Byron's team. I hope
(01:04:36):
Kelly agrees to talk with me. I'll keep you posted, Okay.
Back to Angie Giannino, who said a lot in her affidavit,
she also says a lot to me. Since this happened
more than two decades ago, there are some details that
are a bit fuzzy for Angie, but she can very
(01:04:57):
clearly recall one day in particular, when Kelly made a
devastating and shocking confession before ever coming forward to police.
Speaker 13 (01:05:10):
And she's bawling and freaking out, and I was like,
my friend gives them a lot of pain.
Speaker 1 (01:05:18):
What did Kelly tell you?
Speaker 13 (01:05:19):
Oh my god, she told me that she witnessed Byron
murder Anastasia.
Speaker 1 (01:05:37):
Next time on the Real Killer.
Speaker 13 (01:05:40):
It just felt like a very dark horse, Like I
just felt a very dark energy in the home.
Speaker 1 (01:05:45):
Two friends, two stories.
Speaker 9 (01:05:48):
My friend's really about the least violent person I ever knew,
So the idea that he'd be involved.
Speaker 6 (01:05:55):
With let alone, like, you know, the primary actor in
such a place, because it didn't seem believable to.
Speaker 1 (01:06:02):
Me, who is telling the truth? Did Byron ask you
to live for him to be an alibi? 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
(01:06:25):
no help is available. Call or text nine to eight eight,
or chat online at the Suicide and Crisis 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.
(01:06:51):
The Real Killer is a production of AYR Media and iHeartMedia,
hosted by me Leah Rothman, Executive producer Leah Rothman and
Elisa Rosen for AYR Media. Written by Leah Rothman, editing
and sound design by Cameron Taggy, mixed and mastered by
Cameron Taggi, Production coordinator Andy Levine, Audio engineer Justin Longerbeam
(01:07:18):
studio engineer Graham Gibson. Legal council for AYR Media. Jonny
Douglas Voice acting by Brad Avenue, Tom Virtue, David Teitelbaum
Executive producer for iHeartMedia. Maya Howard
Host
Leah Rothman
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