Tuesday, October 4, 2011

Seeking an Absolute Pardon for Byron Case: Part 2

This is the second of three posts presenting the Amicus letter I sent to Missouri Governor Jay Nixon in support of Byron's petition for absolute pardon. The first part is here. The second part follows immediately.

Time-of-Death as per Kelly Moffett
Lincoln Cemetery is a dark place at night. We learn that from the testimony of Deputy David Epperson, the person who discovered Anastasia's body.
A.  At 3:44 in the morning, Lincoln Cemetery is very dark. It has no lights, no street lights. There is a lot of trees. And in October, there is lots of leaves on the trees. You can't see any roadways from inside Lincoln Cemetery. About the only thing you can see is lights of Kansas City off in the distance.
Q.  ... Would it be fair to say it's pitch black in there, because there is no lights in the cemetery?
A.  Yes.
Q.  And there are no street lights that shine into Lincoln Cemetery, are there?
A.  No, there is not.
By comparison, Kelly testified thus:
Q.  Let me stop you for a second. Do you have any idea what time it is at this point?
A.  No. It was like -- it was dark enough to where cars had headlights.
Q.  Okay. So it wasn't the middle of the afternoon?
A.  No.
A.  It was light enough for me to be able to see that.
Q.  So, if an officer said it would have been pitch black in a cemetery, would you agree with that statement?
A.  No, I don't.
Q.  And your testimony is this occurred around dusk and you were able to see; is that correct?
A.  Yes.
Sunset on that day was at 6:29 PM. Nautical twilight ended at 7:28 PM. At the end of nautical twilight, general outlines of ground objects may be distinguishable, but only under good atmospheric conditions. The atmospheric conditions on that night, however, were far from favorable for viewing. The moon would not rise until 12:22 AM. It would make no difference in any case. Clouds covered the entire sky, for the entire night.

Kelly's post-rejection version of events demands that Anastasia died soon after sunset. Had Anastasia died earlier, the cars would not have needed their headlights. Had Anastasia died later, Kelly would have been unable to describe the events in precise detail at trial. Had Anastasia died after nautical twilight, Kelly would not have agreed that Anastasia died "around dusk."

If Byron did indeed kill Anastasia as Kelly only later claimed and eventually testified, then Anastasia absolutely, positively must have died much closer to sunset than to midnight.

Time-of-Death as per Dairy Queen Employee Dawn Wright
Dawn Wright was working at the Dairy Queen while Anastasia sat there waiting for Justin, Byron, and Kelly to arrive. She gave an interview just two days later to Detective Gary Kilgore. In a commendable act of evidence preservation, Detective Kilgore recorded that conversation after informing Dawn Wright that he would be doing so. I offer the following segment from Detective Kilgore's transcription of his recording. Dawn Wright is speaking of Anastasia.
She kinda seemed nervous, a little bit upset. And I asked her what was wrong. She goes well ... I have plans with my boyfriend tonight, and ... I lost my ride over there. So I called him to see if he can come pick me up, and he said that he had already made plans with his best friend. She goes, now if that was you and he told you that, what would you do? I said well, I'd ask him what's more important, me or your friend? She goes, well I asked him that, and he said ... that his best friend didn't want me there. ... I said, well I think that you should tell him that he's an asshole and not call him for a couple days. ... I think it was about 9:00, I'm not for sure. It was about 9:00 or so and, uh, I seen her, she ran outside because three people had pulled up. There was two guys and a girl. ... I'm thinking [she arrived] anywhere between 8:00 to 9:00, cause she was here for about a half an hour before we closed, and we close at 10:00.
From Dawn Wright's trial testimony, I offer the following transcript segments.
It was in the 9 o'clock vicinity [that she left]. Whether it was 9 PM or 9:45 PM, I'm not sure. But it was in the 9 o'clock vicinity, because we was getting ready to close within an hour, and we start our closing procedures an hour early down there.
Dawn Wright unequivocally places Anastasia alive in the Dairy Queen well after sunset. Whatever events would then lead to Anastasia's death had not yet occurred. Dawn Wright's statement and testimony therefore places Anastasia's death more likely near midnight than near sunset.

Furthermore, Dawn Wright's statement and testimony absolutely impeaches Kelly's testimony by placing Anastasia alive more than a hour after the end of civil twilight.

Time-of-Death as per Dairy Queen Owner Sulaman Saulat
Sulaman Saulat also was working at the Dairy Queen as Anastasia waited to be picked up. He too was interviewed just 2 days later by Detective Kilgore. Once again, Detective Kilgore recorded and transcribed that interview. From the transcription, I offer the following.
Well she came to my Dairy Queen Wednesday night or Tuesday night, or Wednesday night, the evening. ... I think it was about 7:00 when she came in: 7:00, 7:30, somewhere in there. ... Well, she was here for a long time, ... over an hour, an hour or hour and a half. I asked her was she expecting somebody to come pick her up? And she said yes. And I said are you sure they're coming? She said if they don't, then I'll be really really mad at them if they don't. And then I asked her if she needed anything, because I was going to ask her if, I mean, if she needed a cab or something, I'd call a cab for her, you know. She said she didn't have any money, and that's the whole conversation I had with her. ... It was between 8:30 and 9 :00 I would say. ... Saw two guys and a girl came pick her up.
Sulaman Saulat was not called to testify. The jury did not know that he corroborated Dawn Wright's testimony that Anastasia was alive long after sunset, well beyond dusk.

As did Dawn Wright's statement and testimony, Sulaman Saulat's statement places Anastasia's death more likely near midnight than near sunset.

And as did Dawn Wright, Sulaman Saulat's statement absolutely impeaches Kelly's testimony by placing Anastasia alive more than an hour after the end of civil twilight.

Time-of-Death as per Cemetery General Manager Glen Colliver
Glenn Colliver was the person who chased the four teenagers from Mount Washington Cemetery. I do not have a copy of his police statement. During the trial, he confirmed that he had seen Anastasia sitting alone at the Nelson Memorial, and that he saw her again standing beside a car.
It's the William Rockhill Nelson Family Memorial. ... She was alone. ... That evening about 9 o'clock I saw her. ... At the same location. ... She was standing outside of an automobile with a male. ... I stopped because I wanted them to move on, and there was a male and female standing outside the car ... I was right behind the car, because I wanted them to get out.
Opposing counsel attempted to impeach Glen Colliver's timing by pointing out he told a police officer soon after the murder that the event happened at 7 PM. It is not clear, however, whether Colliver was then referring to his initial viewing of Anastasia sitting alone or to his later viewing of Anastasia standing outside the car. Colliver, however, never wavered in his recollection that he chased them from the cemetery near 9 PM.
It was between 15 until 9 and 9 o'clock, because I know ... the time I left my house. ... And I'm only about five minutes away from the cemetery to my house. ... I know it was 9 because I left my house at my wife's instructions because we watch a television show at 9 o'clock. And she said, if you plan on watching that television show, it's a quarter till 9, you'd better get home. So that's why I had the time in my mind, because I know I left the house with ample time to go down, take care of the task and get back.
Glen Colliver's recollection of 9 PM is consistent with the recollections of the two Dairy Queen witnesses, neither of whom were ever impeached regarding their timing.

While Glen Colliver's timing is subject to multiple interpretations, it is more suggestive of a time-of-death near midnight than it is suggestive of a time-of-death near sunset.

Time-of-Death as per Mechanic Don Rand
The day after Anastasia's body was discovered in Lincoln Cemetery, the police conducted a survey of the businesses along Truman Road to determine if anyone had seen Anastasia or Justin. The police thereby established Don Rand as a witness to the events of that evening. Don Rand was a mechanic who worked at the gas station at the intersection served by the stoplight at Truman Road and I-435. The police barely mentioned this significant discovery in a supplemental report.
On 10-24-97, Sgt. Joseph Becker conducted a canvas of the businesses in the Blue Summit area. The purpose of the canvas was to see if anyone had seen Ms. Witbolsfeugen the evening of 10-22-97.
Sgt. Becker located one individual that remembered seeing a female subject he recognized as Ms. Witbolsfeugen walking east on Truman Rd. at approximately 2030 hrs., 10-22-97.
Night Mechanic 2pm to 10pm
Don Rand ... Says he remembers the victim walking east across the drive at about 8.30 p.m. He says he looked up, say [sic] her walking and thought she was attractive. Couldn't tell if she was upset or emotional at all. Distance of about 50 feet.
Unfortunately, no one interviewed Don Rand carefully to preserve his recollection of that evening. Instead, the only recorded statement from Don Rand comes four years later during the trial, when he was called by the defense. I offer below those portions of his testimony relevant to the time of the event.
Q.  Do you recall if you were working that specific evening?
A.  Yes, I was.
Q.  Can you recall what shift you worked?
A.  2 to 10 every night.
Q.  On the evening of Wednesday, October 22nd, did you notice anything unusual happening with any vehicles or pedestrians in the area of your job?
A.  I recall a young lady that either just gotten out of a car or was in some type of an argument with somebody in a car at the light of Truman Road and 435 eastbound and from that point on she proceeded to walk away from the car before the light had even changed.
Q.  You seem to recall that this happened after dusk, that it was dark outside?
A.  Yes.
Q.  Is there anything about the evening that helps you remember it was dark?
A.  As far as cars were driving with their headlights on.
Q.  And when you talked to the detectives, you told them that you remembered seeing the girl walking east across the drive at about you said 8:30; is that right?
A.  Could be about that time, yes.
Q.  Pretty dark around 8:30 though, right?
A.  Yes. But the Amoco is well lit.
Not only did Don Rand see Anastasia WitbolsFuegen alive after Kelly Moffett claims she had witnessed Anastasia being shot and killed, Don Rand did not mention hearing the gunshot which would have been but 1/3 of a mile away.

Since Don Rand saw Anastasia alive around 8:30 PM, and since he did not report hearing a gunshot despite working until 10 PM, Don Rand's report and testimony places Anastasia's death absolutely closer to midnight than to sunset.

Don Rand's statement, quite simply, fully corroborates the story that both Kelly and Byron first told the police, before either of them even knew of his existence.

Time-of-Death as per Anastasia's Wallet
After Anastasia stepped from Justin's car, and after Don Rand saw her walk by his workplace, she seems to have made it home. This conclusion is based on reports and testimony regarding two personal items: her wallet and the sanitary napkin reported at her autopsy. I will discuss the wallet in this section, and the sanitary napkin in the next.

From Anastasia's autopsy report, we learn that a wallet was not found on her person.
The subject wears black Doc Marten shoes, dark gray socks, black denim pants with "Dungaree" label, a light brown corduroy jacket, size small, with the "Brandon Thomas" label, a dark gray pullover shirt, size medium, with the "Energie" label, a black bra and a black pair of panties containing a sanitary napkin. The pant's pockets contain $3.65 in bills and change.
Kelly Moffett, however, reported in an interview with Detective Kilgore that Anastasia carried her wallet with her that night.
Q.  Did she have a purse?
A.  Huh-uh, she had a wallet though.
Q.  And that night that you guys picked her up at Dairy Queen, did she have a purse or anything?
A.  Yeah, she had a wallet. Cause we walked in, and I think it was a wallet. She was messing with like some little like black little thing. Or like dark brown thing on the table, so I like assumed she had a wallet.
Q.  Did it look like a wallet?
A.  Yeah, mmm-hmm. It was just, yeah. I mean, I didn't like stare at it cause when we looked in and saw her she was kinda sitting there like fiddling with it. But I think that's what it was. Cause she like you know picked it up and put it in her back pocket. So, yeah, I'm guessing it was a wallet.
Anastasia's wallet was found not found on her person because it was found at her house, by her father. When interviewed at his home on the same day her body was discovered, he reported:
And she left her billfold here. And driver's license. And credit card.
Robert WitbolsFeugen had arrived home sometime between 9:45 and 10 PM, according to his daughter Francesca, who had arrived home at 9:15 PM. Prior to that, the house had been unoccupied for a while. Robert WitbolsFeugen was mildly concerned about his daughter, having learned earlier (by phone) that his wife (Anastasia's step-mother) had dropped Anastasia off at Mount Washington Cemetery. He believed Anastasia was stranded there without a ride. From a later interview with Detective Kilgore, we learn more about his discovery of her wallet.
And so I looked up in that direction and I think I saw my daughter's billfold lying on the stairway rail there, and I remember picking it up and running and running to her room and thinking I'll do this, she's home. And when I got there and looked around her room. She wasn't there.
In a different report, Anastasia's sister confirmed that Anastasia's wallet had been found at home.
No, she didn't carry purses. She did have a wallet, but she left it at home I guess. Because it's at home.
If Kelly Moffett was correct about seeing Anastasia with her wallet at the Dairy Queen, then Anastasia made her way home sometime before 9:15 PM, left her wallet and departed. She certainly may have made a phone call while she was there. In any case, if Anastasia left her wallet at home after stepping from Justin's car, then her death would have probably been close to midnight.

More significantly, if Kelly was correct about seeing Anastasia's wallet at the Dairy Queen, then Kelly's post-rejection version of events is absolutely false, and Byron Case is factually innocent.

Time-of-Death as per Anastasia's Sanitary Napkin
Recall from Anastasia's autopsy report that she wore "a black bra and a black pair of panties containing a sanitary napkin." That is of considerable interest to us here because Anastasia left her house without any feminine protection, was given a tampon at the Dairy Queen, and was wearing a sanitary napkin when killed.
From Dairy Queen employee Dawn Wright's trial testimony, we learn:
Well, she had been in there for a little while, and she hasn't bought anything; and she was just sitting there. And I asked her if there was anything that she needed, if I could get her anything, that she needed help with anything. And she asked me if she could use the bathroom, and she went to use the restroom. And she came back out and she asked me if I had a pad or a Tampon, and I didn't have anything there. But I just lived maybe a minute and a half, two minutes away, so I called my ex-husband and I had him bring up a Tampon down for her. And she went in the bathroom, and she came back out, and she said thanks.
Opposing counsel then asked Dawn to clarify what she had given Anastasia.
Q.  I just want to clarify something. What did you loan the victim? Was it --
A.  It was a Tampon.
Q.  So it was not a feminine napkin?
A.  No. It was a Tampon. And I know I told that guy that I just couldn't think of a polite name.
On re-direct, Dawn maintained that she had given Anastasia a tampon, not a sanitary napkin, despite being pressed by Case's own attorney. Personally, I would not argue with a woman about such issues.
Q.  I know this is a weird topic, but I need to ask you about the tampon, Maxipad thing again. When Detective Kilgore interviewed you in 1997, did you say you gave the young lady a Maxipad?
A.  Probably.
Q.  Okay. Well, would it help refresh your memory to look at it?
A.  Yeah, I looked at it out there.
Q.  You understand this was tape recorded?
A.  Yes.
Q.  So you're on tape saying that. Did you tell Detective Kilgore that what you gave the young lady was, quote, a pad, a maxi pad, feminine napkin?
A.  I was trying to think of a decent way -- I mean a Tampon just doesn't -- I was trying to be polite about it. I guess I should have just said a Tampon, but it's a Tampon.
Dairy Queen owner Sulaman Saulat's contemporaneous statement confirms that Dawn Wright gave Anastasia a tampon.
O.  Anything else at all that you can remember?
A.  Well, she was on her period.
Q.  And how do you know that?
A.  Cause she asked Dawn for a tampon.
Given that Anastasia did not have a sanitary napkin with her at the Dairy Queen, and given that she used a tampon while at the Dairy Queen, and given that she had no opportunity to switch before stepping from Justin's car, it is likely that she changed at home sometime before 9:15 PM. Given that the events leading up to her death had yet to take place, it is probable that her death was near midnight.

More significantly, if Anastasia WitbolsFeugen was given a tampon by Dawn Wright, then Kelly Moffett's post-rejection version of events is absolutely false, and Byron Case is factually innocent.

Time-of-Death as per the Gunshot
Anastasia's father, Robert WitbolsFuegen, began searching for her sometime after 9:45 PM on the night of her disappearance. He stopped at the Independence Police Department between 10:30 and 11:00 PM. He then traveled along Truman Road and stopped at the closed south gate of Mount Washington. He stepped from his car. As he was standing there, he heard a gunshot. "At that time I knew my daughter was dead."

One day after Anastasia was found, Robert WitbolsFeugen talked to Deputy David Epperson. Epperson, as you may recall, is the person who discovered Anastasia's body. From his report of his encounter with Robert WitbolsFeugen, I offer the following.
Mr. Witbolsfeugen then began advising the following information: At 2330 hours [11:30 PM], 10-22-97, he was looking for Anastasia when he stopped at the gate of Mount Washington cemetery (where he had dropped her off at 1630 hrs [4:30 PM], this date, with her friends). He stated that the gate was locked and he pondered for a moment, hopping the fence, to go into the cemetery searching for his daughter because he sensed she was in real danger. At that time he advised he heard a loud gun shot, possibly from a large caliber rifle, and he immediately turned in the direction of the Cimarron Apartments, believing the noise came from that direction. Mr. Witbolsfeugen stated at that time he clapped his hands together and yelled "boom" "There goes the neighborhood." Mr. Witbolsfeugen then stated "at that time I knew my daughter was dead."
Four days later, Robert WitbolsFeugen gave one of several interviews to Detective Kilgore. From that interview, I offer the following.
I'm in front of the Mt. Washington Cemetery on Truman Road side. In front of the gate. I had turned my car off, just parked it. Standing out there wondering what else I could possibly do, what, some area where I possibly haven't looked. And I hear this shot and an echo ring out. And I'm going "Like, well that speaks for the neighborhood." Couldn't determine where it was from. ... I wound up looking at the Cimarron Apartments, kinda saying, I'm glad I don't live there. Uhm, there goes the neighborhood. But then I immediately turned my thoughts back to Anastasia and the fact that she was here somewhere and that she was in danger.
Robert WitbolsFuegen did not testify at trial. In the map below, I show where he was standing relative to where Anastasia's body was discovered. For comparison, I also show where Don Rand worked.

Assuming the shot Robert WitbolsFeugen heard was the one that killed Anastasia, then his ear-witness evidence places Anastasia's death absolutely near midnight.

[To be concluded in Part 3, after which comments will be open.]