Ten Years Too Long Gone

I received a comment from Anonymous on my post Today I am Ten Years Gone. I'll share it then discuss it.

Having read quite a bit on the Case case since hearing about it from your blog, i must say that I have serious doubts as to Byron's version of events. Can you explain any alternative theories as to what happened that night that do not involve a lie in Case's presentation of his facts?

I summarize the case quickly for those of you not familiar with it. Then I'll respond to the claim that Byron's case is built on lies. Finally, I'll provide the obvious explanation of Anastasia's death.

Byron Case is serving life without parole in a Missouri prison for the murder of Anastasia Witbolsfeugen. She was shot in the nose from point blank range, late at night in a remote and unlit cemetery. Her boyfriend, and Byron's best friend, was Justin Bruton. The same day (or the day after) Anastasia was shot, Justin put a shotgun in his mouth and pulled the trigger.

The one other player in this terrible real-life drama is Kelly Moffett. Kelly was Byron's girlfriend. The four of them were a close group of messed up teenagers. All had attempted suicide before. All had used drugs and two of them (Justin and Kelly) at that time still abused drugs.

Byron and Kelly each tell essentially the same story of what happened that evening. Justin was supposed to meet Anastasia at a cemetery, but he blew off the date. After repeated calls from Anastasia, Justin decide to make the drive out to the cemetery to meet her. Not wanting to face her alone, he took Bryon and Kelly with him. This did not sit well with Anastasia, who wanted to once again speak alone with Justin about their on-again, off-again relationship.

The four of them stopped in the cemetery when it was getting dark. As Justin and Anastasia were getting out to talk, while Byron and Kelly waited in the car, the groundskeeper pulled up behind them and chased them from the cemetery. As they were driving back to Justin's condo, Anastasia asked Justin why he didn't love her anymore. Justin replied he didn't know why. As they pulled to a stop at a stoplight, Anastasia got out of the car, slammed the car door and started walking in the direction of her house. None of the three left in the car said anything. Justin dropped Kelly off at her house, then dropped Byron off at his house.

Neither Byron nor Kelly ever again saw Anastasia or Justin alive. Neither had any idea what happened after they separated that night.

That is the story they both told repeatedly and consistently for three years. As Kelly's drug problem became worse, to the point her parents threw her out of the house, Byron and Kelly's relationship deteriorated. Near the end, Byron once hung up on her during yet another argument. She called the police and reported that her boyfriend was suicidal, threatening to kill himself with an overdose of sleeping pills. The police responded to Byron's house and searched for the sleeping pills. They found none. They took Byron to a mental hospital for mandatory 23-hour observation. All of the professionals who examined and observed Byron opined that he was definitely not suicidal.

Kelly, as it turns out, was (and perhaps still is) a serial accuser. She has accused multiple people (including her father and her husband) of abusing her, of being suicidal, of committing murder. Only the last charge was ever believed.

After being wrongfully incarcerated in a mental hospital for a day, Byron decided to leave Kansas City entirely to get away from Kelly. He told her was moving to St. Louis, but would not provide his phone number or address. Six days after he left, Kelly and her attorney met with the Jackson County Prosecutor. After three years, she changed her story about what happened that night. She claimed that after being chased from the first cemetery, they went to a second. There, while Anastasia and Justin argued outside the car, Byron pulled a double-barrel shotgun from the trunk and shot Anastasia from behind, from a distance of five feet.

It took a year before the police arrested Byron, and it took the State another year to try him. Those stories are too long to be detailed here. You know the outcome, however. Despite the complete lack of forensic evidence, despite the physical impossibilities of Kelly's story, the jury found Byron guilty of first degree murder and armed criminal action. He his actually serving two life sentences without parole, one for each charge.

Regarding Anonymous' suggestion that Byron's story is based on lies, note that Byron and Kelly told the same story repeatedly and consistently for three years. Be aware also that Kelly's changed story fails spectacularly on multiple grounds such as timeline, ballistics, spatial relationships, and time of death. I discuss all these in The Skeptical Juror and The Trial of Byron Case. Here I'll summarize just a single hard fact that impeaches Kelly's latest version of events.

The State's case against Byron rests entirely on the testimony and credibility of Kelly Moffett. For Kelly's story to be true, Anastasia must have been murdered around 7:30 PM on October 22, 1997. Anastasia's body was discovered at 3:44 AM on October 23, 1997. Her eyes were still opened.

This observation intrigued me. As it turned out, it convinced me that Byron was factually innocent and that Kelly was lying. I searched long and hard for any significance that might be associated with the eyes remaining open postmortem. I learned something significant that had never been mentioned at any point in Byron's entire case history. I learned that if the eyes remain open after death, the corneas cloud over within 2 to 4 hours.

Anastasia's corneas were clear when she was discovered, and her eyes were open. She must have been killed near or after midnight. She could not have, absolutely could not have been killed anywhere near 7:30 PM the previous day.

I have been working to free Byron Case for 18 months now, maybe more. I speak to him once every two weeks for 90 minutes, and we spend almost all the time talking about the next step in seeking his freedom. I still spend substantial time beyond the phone call working on his case.

I am, as my readers might by now be aware, quite skeptical. I check what I can six ways from Sunday. I will tell all of you here and now that in all my conversations with Byron, I have never caught him in a lie. I have tried. I have failed.

I don't, however, believe in Byron's innocence because of what he tells me. I believe in his innocence because of the hundreds and hundreds of hours I have spent pouring over the case documents. Nowhere in those case documents can I find anything that puts a lie to Byron's story.

I do, however, find issue after issue that puts a lie to Kelly's revised story. Other than the corneal cloudiness issue, I won't discuss them here. I'll leave them to be read in my book.

So ... 

I have now explained how Byron came to be charged, summarized just one of the many reasons I believe Byron to be factually innocent, and responded to the suggestion that Byron's story is based on lies. I'm left with one task, to provide an alternate explanation for Anastasia's death.

Such a request, of course is a trap. Anyone of us charged with a crime has no obligation to explain how the crime was actually committed. It is not our responsibility, nor are we usually in a good position to build an alternative case. Any suggestion that someone might be guilty because they can't provide a viable theory of how the crime might otherwise have been committed is absolutely counter to the very foundations of our society.

I will nonetheless fall prey to the wily Anonymous. I'll venture to explain my theory regarding the death of Anastasia Witbolsfeugen. It is neither clever nor convoluted. It is simple and obvious.

Anastasia Witbolsfeugen died as part of a suicide pact. There is no doubt that Justin Bruton killed himself. There is also no doubt that Anastasia was suicidal, in the extreme. Again, I'll leave most the details of her desire and attempts to kill herself to my book. Here, I'll simply close by quoting from a letter she left on Justin's computer a couple days before her death.

I wish I could kill myself. I wanted to do it before but I couldn't because I firmly believe 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.

Binary Justice

Wrongful conviction work is a binary endeavor. Either the person wrongfully convicted is freed or he is not. It's of little consolation to say "We'll, we gave it a good shot."

Any success story is a result of years of enormous effort by dedicated, talented, selfless people almost always working pro bono. And should they ever succeed, the State is apt to say "It just proves the system works."

I have enormous respect for those few people who have ever managed to help free someone wrongfully convicted. I have enormous respect for those many people who helped free Cory Maye. Cory Maye has walked free, as I predicted he would.

Radley Balko has pictures at his site. You could do a lot worse than spend some time checking out his blog.

The Impending Execution of Andrew Grant DeYoung

Andrew Grant DeYoung sits on death row awaiting execution on 20 July by the people of Georgia. He was convicted of murdering his family. I offer the following case summary from the 11th Circuit Court decsion in DeYoung v. Schofield.

On June 14, 1993, DeYoung murdered his parents, Kathryn and Gary DeYoung, and his fourteen-year-old sister Sarah DeYoung. DeYoung planned the murders with David Hagerty. DeYoung told Hagerty he wanted to kill his family to get money to start a business. 

DeYoung and Hagerty planned to kill DeYoung’s parents, his sister Sarah, and his sixteen-year-old brother Nathan by slashing their throats and then to set fire to the family’s home to cover up the evidence. On the night of the murders, DeYoung went upstairs, where his parents and sister were sleeping, and sent Hagerty to Nathan’s downstairs bedroom. 

DeYoung stabbed his mother repeatedly while she was sleeping in her bedroom upstairs; her screams awakened his father. As DeYoung struggled with his father, DeYoung’s sister Sarah came to the doorway of their parents’ bedroom. DeYoung slashed his father to death, and then stabbed and killed Sarah in the hallway. Hagerty heard a commotion upstairs, and changed his mind about killing Nathan. 

Nathan heard stomping and banging noises coming from upstairs, and he heard his sister cry out and call his name. Upon finding that the phone was dead, Nathan escaped through his bedroom window ... 

Instead of setting the house on fire, DeYoung and Hagerty searched for Nathan. Meanwhile, Nathan fled to his neighbor Keith Harmon’s home. Nathan returned minutes later to the DeYoung house with Harmon, who brought a gun. Harmon saw DeYoung in the driveway and called out to him, but DeYoung fled. Harmon had been the DeYoungs’ neighbor for about five years at the time of the murders. Harmon knew DeYoung and his siblings, and Nathan was a close friend of Harmon’s stepson. 

Police arrived and found Gary, Kathryn, and Sarah DeYoung’s bodies. Sarah had scores of stab, cutting, and slash wounds on her neck, back, chest, arms, and hands. The wounds to the back of Sarah’s neck overlapped so much it was impossible to count them. There were at least seventeen wounds on Sarah’s back, several of which had prominent hilt marks. The blood spatter patterns indicated Sarah was on the ground while most injuries were inflicted. 

Kathryn DeYoung, like Sarah, had many stab wounds and cuts on her neck, back, and torso. Among them were a seven-inch-long cutting wound on her thigh and a five-inch-deep stab wound on her back that penetrated into her chest and completely severed her aorta. One wound in her neck cut all the way through her trachea and also severed her left carotid artery and left external jugular vein. Kathryn had wounds going across her chest and wrapping around her right side, consistent with being attacked while lying down and rolling away from her attacker. 

Gary DeYoung suffered numerous wounds to his face and upper torso. He had a cut over his right eyebrow ridge, a deep stab wound in front of his right ear that fractured his jaw, stab wounds in his upper arm and neck, and numerous stab wounds to his chest. Gary also had two wounds on his right thigh, a six-inch-deep wound on his back, and a large chopping-type wound on his right biceps. 

Several hours after the murders, DeYoung returned home. Police noticed “scratches and abrasions present on his face, neck, hands and right arm.” At the police station, DeYoung gave a statement, later played at his trial, in which he told police he had spent the night at Hagerty’s house and denied involvement in the murders. Id. DeYoung said he went for a two-hour walk in the middle of the night and got the injuries when he fell down. 

The police interviewed Hagerty, who admitted participating in the crimes. Hagerty led police to evidence, including a footlocker and box he had helped DeYoung hide three days earlier, a knife consistent with the victims’ wounds, and a hand-drawn map showing the route to the DeYoungs’ home. The footlocker contained, among other things, personal notebooks written in DeYoung’s handwriting, articles or books with DeYoung’s name on them, and the hand-drawn map. The box contained materials for making pipe bombs. 

DeYoung and Hagerty were arrested and charged with the three murders. Hagerty pled guilty and received three concurrent life sentences. DeYoung pled not guilty.

DeYoung's defense seemed to be based on diminished capacity rather than actual innocence. I find no evidence that Andrew Grant DeYoung did not commit the crimes for which he is scheduled to die. I find no interest group arguing that DeYoung may be factually innocent. I find no report that even Andrew Grant DeYoung himself claims not to have killed his family.

I oppose the execution of people who might be factually guilty of the crime for which they are to die. If it is absolutely clear the person is factually guilty, I neither support nor oppose the death sentence. In those cases, I stand mute.

In the case of Andrew Grant DeYoung of Georgia, I stand mute.

ADDENDUM: The court has postponed DeYoung's execution by one day, until 21 July.

ERRATUM: As per the comment to this post, I have corrected DeYoung's name from Grant DeYoung in my last three paragraphs to Andrew Grant DeYoung.

A Million Bees Stinging My Face

Mark Stroman sits on death row awaiting execution by the people of Texas. There is no doubt he is guilty of cold blooded, wanton murder. He admits to his crimes. I will therefore not oppose his execution. Nor will I support it. I will stand mute.

Frequently when I describe the details of the crime, I rely on an opinion from an appellate court. Here, in this case, I rely entirely on the words of Raisuddin Bhuiuian, a great American.

My name is Rais. I was born in Bangladesh. I came to the United States to fulfill my lifelong dream to pursue higher education and to experience the American Dream. But within a short time my life was completely changed due to one single incident. The lesson I learned from that incident transformed my life and motivated me to educate people against hate crime.

It was Friday 12:30pm, September 21, 2001. A man with a gun entered the gas station where I was working. He asked me -

“Where are you from?"

The question seemed strange to ask during a robbery, which certainly this was -- the man wore a bandana, sunglasses and a baseball cap, and aimed the gun directly at my face as I stood over the gas station register. “Excuse me?” I asked. As soon as I spoke I felt the sensation of a million bees stinging my face, and then heard an explosion. Images of my mother, my father, my siblings and my fiancé appeared before my eyes, and then, a graveyard. I didn’t know if I were still alive. I looked down at the floor and saw blood pouring like an open faucet from the side of my head. Frantically, I placed both hands on my face, thinking I had to keep my brains from spilling out. I heard myself screaming, “Mom!” The gunman was still standing there. I thought, “If I don’t pretend I’m dead, he’ll shoot me again.”

This was not a robbery but it was a hate crime. It was just after the tragedy of the World Trade Center on September 11th. The man with the gun was Mark Stroman, a white supremacist, and he was in the middle of a shooting rampage to express his anger towards those of Middle Eastern descent. He shot and killed Waqar Hasan, a man from Pakistan, on September 15; he shot me, a man from Bangladesh, on September 21, 2001, and shot and killed Vasudev Patel, a man from India, on October 4. All the victims were shot while working at gas stations and convenience stores in Dallas.

This incident changed my life, and has helped me to realize that hate doesn’t bring a peaceful solution to any situation. Hate only brings fear, misery, resentment and disaster into human lives. It creates obstacles to healthy human growth, which, in turn, diminishes society as a whole. Mark Stroman’s hate only brought more pain and suffering to an already mourning nation.

For his actions, he was found guilty on April 4, 2002 in the death of Mr. Patel, with a scheduled execution date of July 20th, 2011.

I am requesting that Mark Stroman’s death penalty be commuted to life in prison with no parole. There are three reasons I feel this way. The first is because of what I learned from my parents. They raised me with the religious principle that he is best who can forgive easily. The second reason is because of what I believe as a Muslim, which is that human lives are precious and that no one has the right to take another human’s life. In my faith, forgiveness is the best policy and Islam doesn’t allow for hate and killing. And, finally, I seek solace for the wives and children of Mr. Hasan and Mr. Patel, who are also victims in this tragedy. Executing Stroman is not what they want, either. They have already suffered so much; it will only cause more suffering if he is executed.

The other victims in this tragedy are Mark Stroman’s children. Not only have the Hasan and Patel children lost their fathers, but, if executed, Stroman’s children will lose their father also. I forgave Mark Stroman many years ago. In fact, I have never hated him. I never hated America for what happened to me. I believe he was ignorant, and not capable of distinguishing between right and wrong, otherwise he wouldn’t have done what he did. I think about him waiting in a cell to be executed, and can feel the pain of how ignorance can be driven by such hate, and cause somebody like him to murder two completely innocent people.

I believe that by sparing his life, we will give Mr. Stroman a chance to realize, through time and maturity, that hate doesn’t bring a peaceful solution to any situation. Perhaps, if given the opportunity, it might generate such a positive influence on him that he may want to become a spokesperson against hate crime.

I strongly believe that there are important reasons why God spared my life. I feel driven to bring an awareness of hate crimes to others. Hate crimes of ALL types. To educate those who may be as ignorant as Mark Stroman, and raise a consciousness among people that hating others can never bring lasting peace and satisfaction.

The Impending Execution of Thomas West

Thomas Paul West sits on death row awaiting execution by the people of Arizona on Tuesday, 19 July 2011.

Thomas West admits he killed Donald Bortle while burglarizing Bortle's home. The appellate court summaries are unnecessarily long, and I'll quote instead from the AP story I found at AZcentral.com. The story discusses West's appeal to the clemency board.

In West's petition to the board, defense attorney Dale Baich wrote that West does not deny killing Bortle and is extremely remorseful. He said West's father was verbally and physically abusive and that West was sexually abused by a teacher, a neighbor and a priest at various times in his childhood.

He said West also was recently diagnosed with post-traumatic stress disorder because of his past.

"These sexual predators forever scarred and changed him as a human being," Baich wrote. "Tom offers these facts not to excuse his crime, but to provide an explanation that puts his actions into context."

Prosecutors have said in court filings that West's past abuse "was irrelevant to the circumstances of the murder."

"West murdered Bortle in order to complete his burglary of Bortle's home," prosecutor Jonathan Bass wrote. "He severely beat Bortle's face with a blunt instrument, bound his hands and feet with a vacuum cleaner cord and lamp wire, and threw him in a closet, where he bled to death."

West reported having a vague memory of the crime, and said he "freaked out" when he saw Bortle appear in a hallway as he was robbing his home.

"I can't believe I did this, but I know I did," West said in March. "He did nothing to deserve this."

I don't doubt that West is guilty of the crime for which he is to die. I will therefore stand mute regarding the propriety of the death penalty in his case.

I will admit, however, that this one bothers me a bit more than usual. I'm not sure why. Perhaps it's because he seems sincerely remorseful. Perhaps it's because his crime, vile as it was, was not the worst of the worst. I can't quite put my finger on it.

It's not the first time I've had this feeling. A year ago I wrote extensively of An Unexpected Touch of Sympathy for Ronnie Lee Gardner.

I need to keep reminding myself to conserve my time and energy for those who are factually innocent.

Still ...