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