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.
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.
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. 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, 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.
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 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.
On May tenth, twenty twenty three, doctor Young writes an affidavit. We hired an actor to read some of what he wrote.
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.
Here's Byron's attorney, Sean O'Brien.
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, 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.
Back to Dr Young's affidavit.
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.
This is impossible.
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 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 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 was not consistent with a shotgun.
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 with a shotgun slug. Doctor Blanchard is referring to the bullet fragment found matted in Anastasia's hair. Here's Sean again.
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.
Well, you just look at the crime scene. I mean, the photos from the scenes, justin what happened to Justin.
With half his head is missing.
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.
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.
I agree, I think it's one of the worst things I've ever seen.
Yeah, and it is Justin's Yeah, this was not that. This was not that.
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 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 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 very different, Kevin Maffin is.
A witness the King.
Later on everything she says fitstiavis.
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.
But there's a witness account in this case. She describes a rifle.
Witnesses have been highly suspect in many cases.
You don't pass judgment.
On a witness accountanteam or what they have to say and compare.
It to the evidence. It's called thinking dirty.
Thinking dirty doesn't work no matter what kind of character this person is.
You put that all aside and you look at the content of what they're saying.
Witnesses observe things. The fact that there's something that is observed makes it a fact.
Could they be lying? Maybe you test.
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.
It'll fit or it doesn't fit.
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.
She mentions that as she's sitting in the backseat, Byron gets the keys out of.
The ignition, opens the trunk, pulls out.
She says, I think it's a Honting rival and he puts the thing in her face.
And fires it. All of that fips.
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.
Past events are so complex. If somebody basically gives a past event account and everything lines up with evidence, that's remarkable.
Somebody to just simply make.
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.
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.
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 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 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 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.
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
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 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.
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.
Horton goes on to talk about his process for receiving discovery, how he maintained his files, and then he says this.
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, 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 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 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 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 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.
He goes on to say.
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 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, the state argued that Byron pressured Miss Moffatt into giving the police a false story.
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.
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,
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 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 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 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
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 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 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, 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 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
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 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 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
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 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, 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 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 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,
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
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.
Then Horton talks about the June fifth should or shouldn't record a call between Kelly and Byron.
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
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 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 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.
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, 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 decide to approach Judge Charles Atwell, the judge who presided over Byron's trial. Here's Byron's attorney Sean O'Brien.
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 good trial judge, good lawyer, highly ethical.
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.
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 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 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, 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 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, 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.
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.
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 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 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 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
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 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. 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, 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
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,
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 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 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.
Judge Outwell goes on to write about learning of Kelly's previous conviction.
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 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 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.
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.
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. 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.
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.
He didn't really know what to say.
But that was.
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.
What does it say right here? You want to read it for me?
Yeah?
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, 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 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 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 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. 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 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, if it was progress or whatever, or.
Something new or whatever. That's kind of a big deal.
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?
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. 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
medical examiner, the defense attorney, and the judge. Here's attorney Brian Russell.
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 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 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 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 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 type of bullet this might have been. It clearly rules out a shotgun.
No.
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.
I posted photos of the bullet fragment on Instagram.
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 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.
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, 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 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 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 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 unrelated events. Here's Byron's investigator. Quinno'brien.
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 point even before she fell down, but there's no blood on her shirt.
It also makes you wonder if the ground stopped the bullet. I have wondered that because especially if it's sort of smashed.
Yeah, and it does look smashed, and.
If she were standing, then what it potentially would have just passed through?
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 testimony possible or is their story possible given the evidence in front of us.
This is fun.
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.
But first this is a real person. Yeah, And I know, and I always get away from that sometimes, like not always, and.
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 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.
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.
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 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 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. 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 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.
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.
Can you give me sort of an overview of.
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 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 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.
That's here's Quinn again.
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
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. 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.
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 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 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 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 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 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 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.
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. So who is this woman? Angie is describing. Quinn and the rest of Byron's legal team think they know.
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 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 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 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, 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, that voice belongs to my friend Angie.
What difference would it make if Amy McGowan were there or not? I mean, like, why would that matter.
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 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 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 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 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. 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.
You know, I don't.
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.
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, 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, 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.
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 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 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.
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 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 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?
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 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 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 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 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 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 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 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 clearly recall one day in particular, when Kelly made a devastating and shocking confession before ever coming forward to police.
And she's bawling and freaking out, and I was like, my friend gives them a lot of pain.
What did Kelly tell you?
Oh my god, she told me that she witnessed Byron murder Anastasia.
Next time on the Real Killer.
It just felt like a very dark horse, Like I just felt a very dark energy in the home.
Two friends, two stories.
My friend's really about the least violent person I ever knew, So the idea that he'd be involved.
With let alone, like, you know, the primary actor in such a place, because it didn't seem believable to.
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 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. 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 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