Monday, January 16, 2012

Seeking an Absolute Pardon for Byron Case: Rejoinder #1

Sometimes a person posting anonymously will actually add a personal identifier such as Mike, Airborne Juror, or AnonXYZ. Sometimes not.

Anonymous has been commenting on my three part series Seeking an Absolute Pardon for Byron Case. Though he (for I suspect the commentor to be male) adds no unique identifier, I believe the same Anonymous added four comments to the last of my three posts in that series.

Anonymous argues that my first three (out of twelve) time-of-death indicators are factually wrong. Anonymous also questions my description of Kelly Moffett as an embittered ex-girlfriend. I will rejoin the comments via four posts: one post for each of the three time-of-death indicators being challenged and one post for my description of Kelly Moffett as an embittered ex-girlfriend.

As a quick refresher, I begin by re-posting my summary plot for the 12 time-of-death indicators.

Note that I am not attempting to determine a specific time-of-death. That would not have been possible even immediately after the body was discovered, even if the medical examiner investigator had performed his job properly. All that can be hoped for is to narrow the time-of-death window.

In the analysis I submitted to Governor Nixon, I attempted only to narrow the time-of-death window as being closer to sunset or closer to midnight. Kelly's story demands that Anastasia was murdered close to sunset. I'll leave you read to the original post to understand why that is so. In severe contradiction to Kelly's implicit timing of the murder, I believe that Anastasia was murdered close to midnight. I believe the twelve time-of-death indicators I've described support that belief. The time-of-death indicators are in fact the source and cause of my insistence that Anastasia died closer to midnight than closer to sunset.

An interesting twist to this time-of-death issue is that Byron happens to have an alibi near midnight. He was at his home talking to Kelly Moffett on the phone. Kelly Moffett, Byron's sole accuser, volunteered this information early in the investigation and never disputed it. Byron volunteered the same information, without realizing that the time-of-death might become an issue more than a decade later. Byron's utterly inept public defender did not recognize even a single time-of-death indicator, much less twelve, that falsified the claims of Byron's sole accuser.

In any case, if Anastasia was killed closer to midnight, then no one killed Anastasia around sunset as Kelly claims Byron did. Furthermore, Byron did not kill Anastasia near midnight because Byron was at home, as sworn to by Byron, by his mother, and by his sole accuser.

With the preliminaries now out of the way, I present the relevant comments from Anonymous, and my one response to them so far. I abbreviated the comments to isolate the discussion to time-of-death issues, but I did not alter them in any other fashion.

Anonymous Comment First
In your letter, you include statements and testimony of three people who placed Anastasia at the scene at about 9pm, which should be proof that Byron didn't kill her at the time claimed. Yet in your book you accept without question that these people were mistaken as to the time they saw them. Why use these to make a false claim? 
In your book you accept that they were wrong and that the time was closer to 7pm, and then in your letter say it was 9pm, as if they were absolutely correct. This seems to me an unwise strategy to offer evidence that can so easily be contradicted. If the Governor's Office actually reads everything you submitted, they will catch the contradiction, and it might harm the rest of your argument. 
Wouldn't it have been better to concentrate on your strongest arguments and leave such weaker links out?
My Response
I don't believe I accepted without question that three witnesses were mistaken about seeing Anastasia around 9 PM. The prosecutor certainly challenged their claim, and I had the fictional jury attempt to reconcile the witness claims with the prosecutor's challenge. ... 
I note that you criticize my style rather than the substance of my argument time-of-death argument. I'll acknowledge shortcomings in my approach until the cows come home. I maintain, however, that a dozen time-of-death indicators argue against Kelly's version of events, and none argue in her favor.
Anonymous Comment Second
I went back to the online transcript of the trial to be sure of this before writing, so I believe I'm now criticizing your substance. 
Byron Case told police in his first statement that they met Anastasia at the Dairy Queen at about 6pm. While he admitted to having a "horrible" memory, his other statements give weight to a much earlier time than 9pm. 
He testified that he thought he got Kelly to her home before 9pm. Kelly's mother testified that is was a little after 9pm, but still close to his statement. Byron testified it was about 30 minutes after leaving Anastasia that they got to Justin's condo, and that they spent 20-30 minutes playing video games at Justin's condo. They then visited a friend before they drove her home. That friend testified that they visited him about 8:30, which places them near the scene at 7:30 or earlier. 
Byron Case's website has a timeline of events which disagrees with his testimony, and places it even earlier. 
I believe that your first three pointers are wrong.
Anonymous Comment Third
Same person as before posting. I wanted to make clear that I'm not trying to start a fight, but that I am sincerely concerned about your first three time-of-death indicators. You offered these in your letter quite confidently. I have never dealt with this issue as directly as you are, but I did once help a friend prepare a petition on behalf of another to the Governor, and I have some understanding of the process. 
The Governor of Missouri is not the person who will initially read the petition. He will be advised by members of the Department of Corrections first, and they are not a sympathetic body, nor will they accept your statements without great skepticism. 
I think it would have been better to go with the best and hardest to challenge arguments, and not even include ones that might be challenged. I fear that if they find these first three easy to refute, they might use them as a cause to ignore or marginalize ALL of them.
Anonymous Comment Fourth
All that is great information, but is not really applicable to this particular case, and does not address the questions posted earlier. 
1. The first three time of death indicators that were presented can be proven false. Why were they used in the first place? 
2. What is the proof that Kelly Moffett was an "embittered" and "scorned" ex-girlfriend, when both her and Byron's testimony indicates that she broke up with him long before she accused him of murder? 
While the truth may set you free, I'm afraid that it will take PROOF in Byron's situation.
I now repost my original argument supporting the first time-of-death indicator. That time-of-death indicator consists of the recollection of Dawn Wright as preserved in her police statement and her trial testimony. Dawn Wright was a Dairy Queen employee who interacted with Anastasia well after sunset, well after the time when Kelly claimed Anastasia was killed.

My Summary To Governor Nixon Regarding 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.
I informed Governor Nixon that Dawn Wright placed Anastasia Witbolsfeugen in the Dairy Queen near Mount Washington Cemetery between 9 and 9:30. Kelly Moffett, on the other hand, claimed she witnessed Byron shoot Anastasia with a shotgun near sunset that same day. I informed Governor Nixon that Dawn Wright made her claim both in her police statement soon after the shooting and in her trial testimony years after the shooting.

Anonymous claims that I am factually in error regarding this specific time-of-death indicator, and two others. While Anonymous points to other timeline events, which I will address in the next post, Anonymous does not present any evidence related to Dawn Wright's statement or testimony to show that I was wrong.

I have therefore reviewed, once again and many times previously, Dawn Wright's police statement and her trial testimony. After that review, I stand by my letter to Governor Nixon as written. I offer Dawn Wright's entire police interview below to further substantiate my summary.

I offer also the entire portion of Dawn Wright's trial testimony regarding the timing of the event. I note that Dawn Wright testified for the defense and that, significantly, the prosecutor did not challenge Dawn Wright's testimony that she interacted with Anastasia several hours after Kelly claims to have witnessed Anastasia murdered.

First, Dawn Wright's entire police statement, as recorded and transcribed by lead investigator Sgt. Gary Kilgore. The ellipses are in the original. It seems as if Sgt. Kilgore used them to indicate an interruption or a pause, rather than an exclusion. The ellipses do not indicate that I excluded anything from Dawn Wright's statement.

Dawn Wright's Police Statement
STATEMENT GIVEN BY: Dawn Wright   CASE NO.: 997-11829 
The following is an interview with Dawn Wright. The interview was conducted on 10/24/97 starting at approximately 1620. 
Q. State your name, please? 
A. Dawn Rene Wright. 
Q. Your date of birth, Ms. Wright? 
A. 2/4/77. 
Q. Your address? 
A. [Redacted] 
Q. Telephone number? 
A. [Redacted] 
Q. Ms. Wright, where are you employed? 
A. Dairy Queen. 
Q. And the address of that? 
A. 9338 Winner Road. 
Q. Were you working at Dairy Queen on Wednesday evening? 
A. Yes. 
Q. When I first contacted you, I showed you a photograph of a young lady and asked you if you did recognize her, and you responded by yes, you did. 
A. Yeah. 
Q. Where do you recognize this young lady from? 
A. She was down here Wednesday night. She was waiting for a ride. And she asked to use the restroom and then she come back out here and asked me for a feminine napkin, and I told her I didn't have one. So my husband brought down one. So I handed it to her and she started talking to me. And she had a . . . 
Q. Your husband brought down? 
A. A pad, a maxi-pad, a feminine napkin. 
Q. Okay, you contacted your husband, does he work here also? 
A.. No. 
Q. You called him a t home? 
A. Yeah. He never come in. He never even seen her. He just handed it to me. She had started her period and she didn't have anything, so I called my husband, I only live a couple of minutes away, so he brought one down. 
Q. Okay. You had never met her before, correct? 
A. No . No I haven't. Uh, she kinda seemed nervous a little bit upset. And I asked her what was wrong. She goes well, do you mind if I ask you a question? She said, this is really going to sound pretty weird. I said well, no, if you need somebody to talk to, let me know. I do it all the time to people, too. And she goes well, uh, I have plans with my boyfriend tonight, and I didn't, I lost my ride over there. So I called him to see if he can come pick me up, and he said t hat 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 he didn't, that his best friend didn't want me there. And I said well, you know, then I think you should tell him ... may I cuss? 
Q. Whatever. 
A. I said, well I think that you should tell him that he's an asshole and not call him for a couple days. And she said yeah, I think that might be a good idea. And uh she just you know, kinda sat there for a minute. She goes, one more thing. I said what's that? She goes, can I use your phone? I said well, it's not a public phone, so she went back out there and she used the phone again and I went outside to smoke a cigarette, and this, I think it was about 9; 00, I'm not f or 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. 
Q. What kind of car? 
A. Uh, I didn't see the car. I just seen them walking by. It was a long car. I didn't see the color, it was dark outside. Uh, but she ran outside with them and I got ready to tell her bye, and she was walking with her hands in front of her like that with her head down and they just walked around the corner. That. was the last that I had seen of her. 
Q. Okay , was, did these people in the car get out? 
A. Yeah, they all three had started walking up to the door and she met them outside. Finally , in the middle of that window right there, in the middle. of that window. 
Q. You say you saw these three people? 
A. Yes. 
Q. Could you describe them for me? 
A. Uh, one was wearing a black long, it might have been dark green, but it was a trench coat, kinda had uh you know, hair to right here. I think. 
Q. About collar length? 
A. Yeah. And it was you know, just straight. And uh the girl I don't, I think she had dark hair, I think it was short, I 'm not for sure. And the other guy just had short hair and they were just all wearing dark clothes. 
Q. Was anyone of them wearing glasses? 
A. No, I don't remember. I, the one that did catch my attention was the guy that had the kinda long hair and that was wearing the trench coat. Because that's the one that she was talking to and they looked like, you know, they were arguing. I couldn't hear what they were saying, but they were arguing. And she was pretty upset with him when she did leave here. 
Q. And when you saw them talking out there, then where did they go? 
A. Back around the building. and over to this side and that's where the car was, it was right over here. 
Q. That would be in the front of the building? 
A. Yes. 
Q. And did you see t he car did you say? 
A. It was a long car. I couldn't see. 
Q. Okay, when you say a long car? 
A. Kinda like that, like an Impala long, an older. 
Q. Two doors? 
A. Four doors. I think it was four doors. I 'm not for sure. I am really not for sure. 
Q. Okay, if you're not for sure then . . . Light color, dark color? 
A. Mmm, I'm wanting to say blue, but I don't know, cause it was dark and the lights over here don't really work well. 
Q. And they all got back in the car? 
A. All I seen was just them walk over beside the building and uh I come in at that time and that was it. I don't know if they all had gotten in the car or, I'm pretty sure she did, because that was her ride, to wherever she was going. 
Q . Okay. Did you see which direction they went? 
A. No. 
Q. Had you ever seen this girl before? 
A. Yes, that was the girl that came in here Wednesday night. 
Q. No, I mean before Wednesday night. 
A . No. 
Q. That was the first time you ever talked to her? 
A. Yes. 
Q. Did you not think it a little unusual for her to ask for a feminine napkin? 
A. No. I didn't think i t was unusual because you know, it's just nature when you start your period, you know, you don't know when it's going to start. And I mean, I've done it, so I didn't find it unusual.
Q. Did she say anything else about her friends? 
A. No, just her boyfriend. 
Q. Just her boyfriend. Do you 'remember, did she call him by name? 
A. No. 
Q. Okay . And anything other than what you've already told me, can you remember now? 
A. Just she seemed really nervous like, you know, like jittery and you know, kinda like she was mad, but I can't explain it. You know, it was just like she was just sitting there doing things like that, I don't. 
Q . Did she give you any indication that anything bad was going to happen or she anticipated anything bad? 
A. She just seemed really, what's the word I 'm looking for? Just real nervous, jittery, you know, like uh when you get into an argument with somebody and you don't want to argue, and you're afraid of the outcome or what's going to happen, you know, whether they're going to leave you or you know, you get real nervous and real worried. That's how she was. Now I don't know if that's what she was thinking, but that 's, you know, that's the only thing I can relate the way she was acting to. 
Q. About what time did you say she got here? 
A. I'm thinking 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. 
Q. And did she say anything about where they might be going? 
A. No. No, she didn't. 
Q. Anything else at all that you can remember? 
A. No. She went out and used the pay phone quite a few times. 
Q. About how many times? 
A. I 'd say about four. 
Q. Okay, did she make any comments on who she called? 
A. Uh, her ride, that's what she kept saying, And then when her boyfriend got there, you know, she said that her boyfriend was supposed to be coming picking her up. 
Q. She mention anybody other than her boyfriend that she was calling? 
A. No. 
Q. Anything else at all? 
A. That's the only thing. That's it. And I just. I can't believe it. 
Q. You are aware our conversation is being tape recorded? 
A. Yes, I am. 
Q. End of interview.
Dawn Wright's Trial Testimony
I won't post Dawn Wright's testimony in its entirety. I will post, however, the entirety of the sole segment in which she mentioned any time whatsoever, either during direct or cross examination. Recall that this testimony was offered on direct as a defense witness, and it was not challenged during cross-examination by the prosecution. In other words, no one disputed Dawn Wright's timing of her interaction with Anastasia.
Q. When her ride did finally show up, do you remember how many people were there that picked her up? 
A. I'm pretty sure there was three. 
Q. And three people. Do you remember guys, girls? 
A. Two guys and a girl. I remember they were all wearing dark clothing. They looked gothic, I guess you could say. 
Q. Do you remember, there were two guys and a girl? 
A. Yeah. 
Q. Can you remember about what time it was these people picked up the young lady? 
A. It was in the 9 o'clock vicinity. Whether it was 9 p.m. or 9:45 p.m. 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.
And that, ladies and gentlemen is that.

If anyone can find any evidence in Dawn Wright's police statement or trial testimony that she did not claim to see Anastasia alive between 9 and 9:30 PM, please point that out.

If anyone can find any other Dawn Wright statement or testimony segment that shows Dawn Wright did not see Anastasia alive between 9 and 9:30 PM, please point that out.

Since Kelly's timing of events demands that the murder occurred around sunset (she even testified to that effect), the Dawn Wright's police statement and trial testimony contradicts Kelly's claims. Since a sequence of events had to take place after Anastasia left the Dairy Queen, Dawn Wright's police statement and trial testimony place Anastasia's time of death to be closer to midnight than to sunset.

To minimize confusion, I ask that comments be limited (for the time being) to the accuracy of my representation of Dawn Wright's police statement and trial testimony. I will invite comments regarding other Anonymous challenges to my time-of-death indicators as I rejoin each of them, one at a time.


Anonymous said...

Hopefully the anonymous poster who argued originally will come back and defend their position. Maybe it's the person who runs the Case is guilty website.

I really think the only witness that matters is the Amico witness because he backs up the original story of both Kelly and Byron because they both said she got out of the car and started walking away and if that's what he saw.

I guess the story of Never cry wolf applies here, it's hard to believe a person who keeps changing their story, but the jury did.


Anonymous said...

Sorry for hogging but I went through the documents I could find and found the opposite side too but their arguments are weak. Is there anybody that would actually defend Kelly's testimony since of all the testimonies inside and outside the court, her court testimony is the only one that doesn't fit with what the other people are seeing except for some minor inconsistencies.

However you do face a big uphill challenge is this because there really isn't any new evidence or missed evidence at the trial that the jury didn't hear and the courts are always reluctant to overrule juries decisions based on the defense not arguing correctly.


Anonymous said...

I haven't come close to you in the time of this case, but I've definitely thought about it over the last day and gone thrown the different statements. What is your timeline that you have for that night? Because I think the sister has them dropping her off at the DQ like around 6 and both Kelly and Byron say they picked her up around 7 or a little after. But the the two people at the DQ have it after 8. So who is wrong? Also Dawn has her wearing light jeans and a brown purse but her sister said she was wearing the black pants and didn't have a purse. Funny how small details matter to us, but I don't think the jury would have thought that deeply

And the other thing, the site that thinks his guilty says they went back to Anastasia' house after DQ, changed and then went to the cemetery while your story possibly has her going back to the house later and then leaving again.


Anonymous said...


I missed this post when it was out because I was looking for a response to my comment in the "Comments" section. My bad. I also don't check here very often, and commented earlier on the "rejoinder # 2", and wondered where # 1 was. So here I am now.

In response to your speculation, no I am not that "person who runs the website." I am actually trying to make some constructive criticism, and I doubt that anyone from that site would be here trying to help. But thanks for the small dose of paranoia anyway.

For the record, I attended Lincoln High School a year behind Anastasia. I never met either her or Byron, but the murder was a big topic during my senior year, and I started casually following the case from the time Byron was arrested and charged. I've seen both web sites evolve over the years, change formats, but I really don't look all that often anymore. I was loaned a copy of TSJ's book, and checked it against the family's website, and noticed a few issues. I've never understood why he left Tara McDowell(?) out of the book. I've looked through her testimony and cross-exam on the web site, and there are a couple statements that are dynamite.

I've never fully made up my mind about this, but I am at this time leaning much more toward belief rather than doubt about Byron’s guilt.

Anastasia's web site has challenged the idea of the "embittered ex-girlfriend" argument since Byron started using it, which apparently began AFTER the trial, and I have yet to see a legitimate response from Byron or from TSJ. They have a pretty good challenge on just why Don Rand’s testimony isn’t worth that much.

The point I tried to make is that the first three points can be disproved by testimony accepted at trial. If TSJ believes that it's the right idea to make this argument in a vacuum, acting as ifit stands by itself and is immune to any contradictory evidence, then that's were it stands.

Byron Case's basic timeline agreed with Kelly Moffett's right up to the time they left the cemetery, and they both agreed that she got home about 9pM. Abraham Kneisley testified they were at his house at 8:30, while Byron admitted that he was the young man in the black trenchcoat that Dawn Wright saw Anastasia yelling at.

I think TSJ needs to carefully walk these statements back, because the persons that will read these arguments will also have the trial transcript to refer to, and will probably talk to the original prosecutor as well. If TSJ's claim that these three points ABSOLUTELY disprove Kelly's statements, and those three claims are disproved by Byrons's own testimony, they may stop right there and decide that the remaining nine are just so much junk.


DareToDream said...

I just want to thank you for doing your due diligence on this case. It was brought to my attention about 5 months ago via an article on the WM3, whom I supported for years and will do the same for Byron. I just wish there were people aware of this miscarriage of justice, so that it could get the attention it deserves.

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