The FAQ: The Murder of Anastasia WitbolsFeugen
Did Byron Case receive competent representation at his trial?
Before Byron Case's sentencing for the murder of Anastasia WitbolsFeugen, his attorney filed a written motion on May 22, 2002 asking the court to set aside the jury verdict, based upon issues raised and argued at trial. This is standard procedure in most criminal trials ended by guilty verdict, and was denied by the court. What was not standard procedure was Case's complaint alleging that Judge Charles Atwell fell asleep during the trial, an allegation that remained unsubstantiated. Case described his attorney's refusal to follow up as a "ham-handed way of dealing with my defense".1 Judge Atwell dismissed the complaint at the same time he overruled the written motion.2Top of page
Judge Atwell also made it clear that he thought the case well-argued on both sides, and stated "I will tell you, in my opinion, that Mr. Lance tried an excellent case for this young man and he did nothing but reaffirm my extremely high regard for him." 3
On April 5, 2005, Case filed an appeal in his case, this time alleging "ineffective assistance of counsel".4 In his motion, he alleged that Mr. Lance provided ineffective counsel for:
- failing to properly cross-examine the state's witness about her bad character for truth;
- failing to request a mistrial after the state's witness told the jury she took a lie-detector test;
- failing to object to State's exhibits 10 and 11, recordings made by the state's witness of conversations between her and the defendant, violating his Fifth Amendment rights;
- failing to properly investigate the defendant's case, for failing to call certain friends of his to testify at trial;
- failing to adequately investigate and interview Sergeant Becker (one of the arresting officers) and for failing to call him as a witness;
- failing to properly cross-examine the mother of the state's witness at trial.
The Circuit Court overruled the motion on March 1, 2006, making the following conclusions of law:
Horton Lance recognized that Kelly Moffett's credibility was a critical issue, and questioned her vigorously about her different statements to police and about the timing of her disclosure. Lance described his trial strategy as the "hammer" approach. The Court found that a trial counsel "is not to be faulted because another attorney may have used a different approach", and concluded that Mr. Lance used sound trial strategy, and that he used professional judgment.
Horton Lance testified that the decision not to seek a mistrial was made mutually by himself and the defendant, based upon a number of factors, including two defense witnesses' travel difficulties and expenses. The Court found that Mr. Lance had exercised due diligence.
The Court also ruled that Missouri courts have already accepted tacit admissions as evidence, that it would have made no difference if Mr. Lance had objected to the tapes' admission, and that Case's argument regarding the Fifth Amendment had already been disposed of on his direct appeal and could not be raised again.5 The Court found that Case had presented no evidence to show that the three witnesses he said should have been called (1) were known to Mr. Lance; (2) could have been located; (3) would have testified; and (4) would have given testimony that "would have produced a viable defense".
The Court found that Sergeant Becker was not a witness to the defendant's actual apprehension, and would not have provided any testimony helpful to his defense had he been called upon.
Last, the Court found that the defendant had presented no evidence or argument to support his claim that Mr. Lance had failed to properly cross-examine the mother of the state's witness.
Byron Case filed an appeal on this ruling on July 3, 2006, and a response to his motion was filed by the Attorney-General's Office on March 2, 2007.6 The Missouri Court of Appeals Western District upheld the lower court's ruling on February 26, 20087 and the Missouri Supreme Court has declined to review that decision, ending Case's appeal on that issue. He and his supporters still raise the issue on occasion, as if it were a whole new issue for them.