Sunday, October 2, 2011

Seeking an Absolute Pardon for Byron Case: Part 1

As I have mentioned, I recently sent an Amicus letter to Missouri Governor Jay Nixon supporting Byron Case's petition for absolute pardon. You can find his petition to the governor here, and the accompanying personal letter here. I provide my Amicus letter in this series of three blog posts, beginning below the fold.

For those of you unfamiliar with the case, feel free to read the documents in any order you wish. Each stands on its own.
September 23, 2011

The Honorable Jay Nixon
Governor of Missouri

Regarding the Petition for Absolute Pardon for Byron Case


I write of wrongful convictions and executions under the pseudonym The Skeptical Juror. I have written to you once before, that time regarding the impending execution of Richard Clay. I cautioned you that his case was murkier than most capital convictions, each of which I now review before the scheduled execution. I do not know if you read my letter, out of the many you must have received, but I do know that you commuted Richard Clay's sentence to life in prison.

I write to you now regarding Byron Case, the subject of my book The Skeptical Juror and The Trial of Byron Case. Mr. Case is now serving a double life sentence without parole for the 1997 murder of Anastasia Witbolsfeugen. I am aware that Mr. Case has petitioned you for an absolute pardon based on his claim of actual innocence. I support his petition with this letter in which I hope to convince you that Ms. Witbolsfeugen died near midnight and that Byron Case is therefore factually innocent of her murder.

The body of Anastasia Witbolsfeugen was discovered in Lincoln Cemetery at 3:44 AM on October 23, 1997. Someone had put the muzzle of a gun to her nose while she stood there. There was no sign of a struggle, no indication she attempted to flee. She was not robbed, nor was she molested. She simply stood there looking at the person who pulled the trigger. When she was found, her eyes were still open.

Multiple time-of-death markers indicate Anastasia was killed near midnight. If that is so, then Byron Case is factually innocent of her murder. Byron was at his home near midnight. Even Kelly, his sole accuser, places him there at that time.

According to Kelly, the only alleged witness to the crime, Anastasia died near sunset. The timing is absolutely crucial to Kelly's story. If Anastasia did not die near sunset, then Kelly's story is absolutely false and Byron Case is factually innocent.

We do not need great precision in our time-of-death determinations to prove Byron's factual innocence. We need only discriminate between a death near sunset and a death near midnight. If Anastasia died near midnight rather than near sunset, then Byron Case is factually innocent.

There are, in this case, twelve time-of-death markers for testing Kelly's claim that Anastasia died near sunset. I summarize them in the table below.

None of the twelve markers supports Kelly's claim that Anastasia was killed near sunset. Each of the twelve markers indicates a time of death more likely near midnight, probably near midnight, or absolutely near midnight. Each marker will be discussed in turn.

At the time surrounding the murder of Anastasia WitbolsFeugen, Kelly Moffett and Byron Case were dating one another. For several years, during multiple police interviews, Kelly maintained that neither she nor Byron knew who killed Anastasia. She and Byron had been with Anastasia that evening, along with Anastasia's boyfriend Justin Bruton. Anastasia had become angry with Justin, exited his car at a stoplight, and began walking in the direction of her house. They never again saw her alive.

For several years after the murder, Kelly's relationship with Byron deteriorated. Once, after Byron hung up on her, she called the police and told them he had threatened to kill himself with an overdose of sleeping pills. The police questioned Byron and conducted a search for weapons and prescription drugs. Despite finding no evidence to support Kelly's report, the law required them to escort him to a mental health center for 23-hour observation. The medical staff there confirmed the police findings: Byron was not suicidal. Instead he displayed a bright, alert, and calm affect. They released him, and justifiably so. Byron did not then and has not since attempted suicide, despite the horrible circumstances which have befallen him

Kelly Moffett, on the other hand, learned that she could use the State's law enforcement system to extract revenge against those who displease her.

In part because of Kelly's false report to the police, Byron Case informed her that he planned to move to St. Louis. He refused to provide a mailing address or phone number. Within days of his departure, Kelly claimed that he killed Anastasia.

The region of interest to us in this case is the unincorporated region of Blue Summit, located between Kansas City to the west and Independence to the east. To help you visualize the events as I describe them, I offer the following annotated map identifying the primary locations of interest.

For the most part, Kelly's post-rejection version of events corresponded with her initial version of events, which in turn corresponded with Byron's consistent and persistent version of events. The three of them (Kelly, Byron, and Anastasia's boyfriend Justin) picked Anastasia up at a Dairy Queen. Justin drove the four of them across the street to Mount Washington Cemetery, and stopped near the large memorial there. The route shown within Mt. Washington Cemetery below is approximate but ultimately inconsequential.

Anastasia and Justin stepped from the car to speak in private. As they did so, the caretaker drove up behind them, flashed his lights at them, and thereby chased them from the grounds.

The four of them exited Mount Washington Cemetery and headed towards Justin's condo. Justin and Anastasia were arguing. When Justin stopped at a light on Truman Road, near I-435, Anastasia stepped from the car and began walking towards her house, three miles back and east along Truman Road. Once again, the route shown within Mount Washington Cemetery below is approximate but ultimately inconsequential

Justin dropped Kelly off at her house, then dropped Byron off at his house. Kelly called Byron around midnight, and the two of them talked about the events of that night. Neither of them would ever again see Anastasia or Justin alive.

Anastasia was found dead the next morning, at 3:44 AM in Lincoln Cemetery. At 10:00 AM that same morning, Justin Bruton purchased a shotgun from a just-opened gun shop, drove to an abandoned warehouse, stuck the shotgun in his mouth, and pulled the trigger.

Though no one could prove it, the presumption was that the two had died as part of a slightly delayed suicide pact. Anastasia's mother reported that Anastasia had, just two days earlier, asked for assistance in killing herself. Anastasia was suicidal because Justin had stopped loving her. On the same day she spoke to her mother, Anastasia had left an ominous note on Justin's computer. The note read in part:
I wish I could kill myself. I wanted to do it before but I couldn't because I firmly believed that you would come back to me. I hate life. Life is a big joke to be played on the ones who don't want to feel it. I never wanted to feel life.
Justin was also obviously suicidal. From Byron's police interview conducted the day before Justin's body was discovered, Byron revealed the following information about Justin's suicidal nature.
I know he had attempts in the past, uh, quite a few actually. Um, and last night he did, after Anastasia got out of the car, he, I don't know, we were driving down Truman Road and ... he was mentioning how, you know he was as like, geez, I don't know, how I'm thinking about, you know, tonight, I should just kill myself. I just thought he was being silly.
I mean, he, he, he's talked about a lot of different ways that he's tried. He's tried poisoning himself, like probably about five times, I imagine, I don't know. I mean, we never really got into specifics about it. Uh, I think he once tried to hang himself, but I'm not really sure about that either.
In Kelly's post-rejection version of events, Anastasia did not die as part of a suicide pact, despite Anastasia's previous attempt to kill herself, despite Anastasia's recently expressed intent to attempt suicide again, and despite Justin's obvious suicidal bent. Instead, Kelly claimed that Justin drove the four of them from Mount Washington Cemetery to nearby and little-known Lincoln Cemetery.

There, according to Kelly, Byron shot Anastasia from five feet behind while she was arguing with Justin. Her story is medically, ballistically, and geometrically ludicrous. Because I detail the problems with her post-rejection story in my book, I will not dwell on them here. I will focus instead on time-of-death issues, beginning with the time-of-death as described by Kelly Moffett.

[Continued in Part 2 of 3 here. Comments closed until final part is posted.]