Many of Byron Case's supporters have questioned the believability and reliability of prosecution witness Kelly Moffett, usually without any specific reason given. Of the reasons listed, most have to do with comparing her statements to police against her testimony, or the testimony of Byron Case about her motives. Kelly Moffett's was not the only testimony to draw criticism and/or questions from one side or another, so we will examine all eleven prosecution and all ten defense witnesses as to their effectiveness> on the jury.
Prosecution Witnesses David Epperson, the Sheriff's Deputy who discovered the crime Kelly Moffett, the defendant's ex-girlfriend and key eyewitness to the murder Debra Moffett, mother of the key eyewitness Diane Marshall, Anastasia's step-mother Francesca WitbolsFeugen, younger sister of the victim, Anastasia WitbolsFeugen Glenn Colliver, caretaker of Mt. Washington Cemetery John Bruton, step-father of Justin Bruton, then-boyfriend of the victim Jim Dodd, salesman at The Bullet Hole Albert DeValkenaere, arresting officer Chase Blanchard, Jackson County Deputy Medical Examiner Scott Atwell, a Johnson County (Kansas) Detective Defense Witnesses Dawn Wright, waitress at a Dairy Queen who spoke with victim Jaime Lynn Smith, friend and former roommate of defendant, Byron Case Evelyn Case, mother of defendant Nancy Nolker, the defendant's aunt David Hill, an investigator attached to the Public Defender's Office Abraham Kneisley, friend of defendant Tara McDowell, friend of defendant Don Rand, possible eyewitness to argument Edward Friedlander, pathologist Byron Case, the defendant
Jackson County Sheriff's Deputy David Depuby Epperson1 discovered Anastasia's body at 3:44 AM on October 23, 1997.2 The purpose of his testimony was simply to establish that the murder had taken place, where precisely the cemetery was,3 and the nature of Anastasia's wound.4 The only question he fielded under cross examination was whether or not he could determine if the murder was committed by a stranger or acquaintance,5 which he could not from available evidence.
Epperson was not expected to have a major impact on the jury's thinking. His testimony merely established that a crime had been committed, and gave the what, where, when, and how of the crime. The Defense question about being able to tell whether the act had been committed by a stranger or acquaintance was part of their strategy to plant some small doubt in the jury's mind as to whether it could be proven beyond any the shadow of any doubt that Byron Case had pulled the trigger. As "Reasonable Doubt" was the standard,6 this had little effect.
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Kelly Moffett1 was the Prosecution's key witness. She was Byron Case's girlfriend from approximately May 1997 until January 1999.2 and witnessed the murder of Anastasia WitbolsFeugen by Byron Case on October 22, 1997.3
During Moffett's testimony, a tape of her conversation with Case was played for the jury.4 During the course of the conversation, in which Moffett had made it abundantly clear to Case that the police wanted to talk to her again about Anastasia's murder, she clearly and directly asked Case three times why he killed Anastasia; he did not reply to her first two questions, and then said "We shouldn't talk about this" and changed the subject.5 The jury then heard Case advise Moffett to tell the police that she "couldn't remember" if asked anything.6
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Debra Moffett was Kelly Moffett's mother,1 and an important witness in establishing certain facts. She testified about her daughter's relationship with Byron Case2 about the way her daughter, Case, and Justin Bruton behaved at her home on the night of the murder, 3 and the alibi her daughter told her.4 She testified about the changes in her daughter's behavior and personality following the murder,5 and of how her daughter admitted in stages to having witnessed Anastasia's murder.6,7 She also testified as to a telphone conversation she had with Byron Case after Kelly's confession regarding his plans to move to St. Louis.8
She was questioned by defense counsel about her daughter having accused Justin Bruton of the crime once,9, and gave a reasonable explanation.10 Defense counsel also hammered her about her view on her daughter's untrustworthiness,11 and upon redirect she indicated that her daughter had been welcomed back into the family because she was cleaning her act up, NOT because she had implicated Byron Case as a murderer.12
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Diane Marshall1 was Anastasia WitbolsFeugen's step-mother. Upon Anastasia's request, Ms. Marshall gave Anastasia a ride to Mount Washington Cemetery.
In her frequently rambling testimony, Ms. Marshall testified that she had dropped Anastasia off at the south (Truman Road) entrance to Mount Washington at about 4:20 PM,2 and that Anastasia was wearing a tan jacket when she got out of the car,3 which matched the later testimony of Dr. Chase Blanchard.
Ms. Marshall also testified that she thought it "extremely unusual"4 for Anastasia to even need a ride to meet Justin, as Justin customarily came to their house to pick Anastasia up, and that upon hearing that Justin had called to say he would not be picking Anastasia up, she later drove back to the cemetery in a fruitless search for Anastasia.5
On cross-examination, she stated that there were periods of that evening when no one was at home.6
The main purpose of Diane Marshall's testimony was to establish the time and place Anastasia was dropped off at the cemetery and the concept that it was highly unusual for Anastasia to have needed a ride to meet Justin anywhere. She also established confirmation for Anastasia's appearance on the day of the murder, and the fact that a family member had actively searched for her after Justin's phone call. She established all these facts and concepts effectively.
The defense cross-examination intended to establish that there was the distinct possibility that there were periods that night when no-one was home and Anastasia would not have been able to reach anyone had she tried. While this fact was established, if was of little importance; the defense did not attempt that Anastasia had ever attempted to call the family, nor that she might have left a message on the answering machine had that happened, nor the fact that she had alternative numbers to call had she been unable to reach her family.
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Francesca WitbolsFeugen1 was Anastasia WitbolsFeugen's younger sister. Both she and Anastasia were living at their father's home at the time of the murder.
She testified that when she got home on the day of the murder, Anastasia was waiting with her coat on, and asked their stepmother for a ride to Mt. Washington Cemetery, where she was to meet her boyfriend, Justin Bruton. She testified that this was unusual to her, as Justin had always picked up Anastasia at her home before this.2
She testified that Justin called soon after Anastasia had left with the news that he did not intend to pick Anastasia up,3 and that she informed her stepmother of that when she returned.
She described the phone call she got from Justin later that night telling her that Anastasia was walking home, and that he had a background conversation with Byron Case all the time while speaking to her.4 She said that when her parents came home shortly afterward, she did not immediately inform them of Justin's call, but that he called back again and spoke to her father, at which time she told him of Justin's previous call.5 The next day, after learning of her sister's murder, she said that her father asked her to write down everything she could remember so she could give as clear and as complete a statement as possible,6 something that would contrast sharply with Byron Case's stated inability to remember pertinent details of the same night.
Defense was able to establish upon cross-examination that there were periods that night when no one in the WitbolsFeugen household was there to answer the phone,7 apparently laying groundwork for an alibi for Case (that Anastasia might have tried to phone home for a ride but might not have been able to reach anyone), but that point did not persuade the jury. Francesca's testimony corroborated her stepmother's testimony that Anastasia having to get a ride to some halfway point was a departure from normal, and she also corroborated Kelly Moffett's testimony of the conspiratorial relationship between Justin Bruton and Byron Case on that night.8
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Glenn Colliver was the caretaker at Mt. Washington Cemetery at the time of the murder,1 and testified that he saw Anastasia that afternoon2 at the Nelson Mausoleum and saw her again at that same place with a male, assumed to be Justin Bruton, later that same night.3
He testified that he met and spoke with Anastasia's father, Robert WitbolsFeugen, the next morning,4 and that he gave pertinent information to police later that morning when he saw them working at the murder scene in Lincoln Cemetery.5
While Mr. Colliver was confused about the time he saw Justin's car that night,6 his testimony definitively placed Anastasia, and by extension Byron Case, at Mt. Washington near the time of the murder, helping corroborate others' testimony about those facts.
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John Bruton1 was the father of Justin Bruton, who was Byron Case's best friend and Anastasia's on-and-off boyfriend.
He gave several key pieces of testimony, including his observations of Byron Case's behavior, specifically right after Anastasia's murder and during Justin's funeral. He described a conversation he had with Justin shortly before Justin's death, and the fact that Justin had an interest in guns before the time of the murder, and had attended a gun show during his last visit to Tulsa a few weeks before his death, though he neither purchased nor sold any weapons.
Mr. Bruton's effectiveness with the jury was in establishing that Justin had seriously discussed marrying Anastasia, which would have meant the family would have stopped supporting him, and that Justin had not bought or sold any weapons while on his last visit home. Justin's and Anastasia's relationship would come up again during Byron Case's cross examination and used against Case.
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Jim Dodd1 was a clerk at The Bullet Hole, a gun and ammo store in Overland Park, Kansas, who sold a weapon to Justin Bruon on the morning October 23, 1997, less than twelve hours after Anastasia's murder, just more than six hours after her body had been discovered by police, and about seven hours before her name was released to the public.
Mr. Dodd's testimony was not intended to have a dramatic impact, and it did not. However, Prosecuting Attorney David Fry later used the testimony to show that Justin Bruton knew at the time he bought the shotgun that Anastasia had been murdered. After Mr. Dodd's testimony, the prosecution also introduced evidence to show that Justin Bruton had bought a shotgun at a Hypermart less than four weeks before the murder,2 giving Byron Case access to another weapon. Earlier testimony by John Bruton had already established that Justin had not disposed of any weapons when he visited a gun show between that time, shutting off a possible alibi for Case, who might have claimed the gun was sold then.
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Albert DeValkenaere1 was an 18-year veteran of the Kansas City, Missouri Police Department at the time of the trial, a detective assigned to the Fugitive Apprehension Unit, and was one of the participating officers in the arrest of Byron Case. The purpose of his testimony was to describe Case's arrest. Most of his description was matter of fact, but he made one significant contribution out of the ordinary: after describing how he had clearly identified himself as an officer of the law, he described how Case attempted to run from him and barricade himself in his room.
The significance of this witness' testimony was to inform the jury that Byron Case had resisted arrest. There was no question that the men in Case's home were police (they all wore protective garments with "FBI", "POLICE", or "SHERIFF" across their chests in four-inch high letters), and Case's response represented to the jury an inadvertent and implied admission of his guilt.2
There was no cross-examination of the witness, and during his own testimony, Case made no attempt to explain or rationalize his actions, giving unspoken confirmation to the impression created by Detective DeValkenaere's testimony.
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Jackson County Deputy Medical Examiner Dr. Chase Blanchard1 testified about Anastasia's autopsy, explaining what certain facts meant; Dr. Thomas Young had performed the autopsy, but was unavailable to testify during the trial.
Dr. Blanchard's testimony indicated that Anastasia had no defensive wounds on her body, indicating that she did not struggle with an assailant; that she had a contact wound, indicating that her killer was extremely close to her when she was shot; the fact that a fragment of her skull was found between 18 and 24 inches from her body, indicating a high-powered weapon had been used. Prosecutors used this information to discredit the idea that she could have been killed by a random stranger, and Dr. Blanchard's testimony and her interpretation of the forensic evidence did a great deal toward that cause.
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Scott Atwell1 was a detective in the Johnson County Sheriff's Department in 1997 and was involved in the investigation into the death of Justin Bruton. Atwell (no relation to Judge Charles Atwell) described the circumstances under which Justin Bruton's body was found near De Soto, Kansas, and described his car, with the Prosecutor placing particular emphasis on the trunk and the interior trunk latch of the car. There was no cross examination.
His testimony was not intended to have a major impact, but did provide peripheral information, giving information on the death of Justin Bruton and giving the jury a visual impression of how Byron Case would have popped the trunk lid before retrieving a gun from it to shoot Anastasia.2
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Dawn Wright1 was a waitress at a Dairy Queen where Anastasia waited across the street from Mt. Washington Cemetery on the evening of the murder.
It is difficult to speculate why the defense called Dawn Wright, as she did more for the prosecution than the defense.
She was one of two witnesses (Glenn Colliver was the other)2 who were mistaken about what time they saw Anastasia and the others. The only testimony she gave that could have conceivably aided the defense was her testimony that Anastasia was carrying a purse when she saw her at the Dairy Queen, something the defense tried to use to suggest that robbery might have been the motive for a stranger to murder Anastasia. There was no purse found on or near Anastasia, but no other witness (including at least one defense witness),3 could remember Anastasia ever carrying a purse.
Ms. Wright identified Byron Case as one of the individuals who came to pick Anastasia up from the Dairy Queen, and identified him as wearing "a black trench coat",4 potentially raising images of the Columbine Massacre for the jury.
Ms. Wright under cross examination clarified that she had given Anastasia a tampon5 as opposed to the feminine napkin identifed in her autopsy,6 and that she had seen her wearing blue jeans instead of the black slacks she was wearing when she was murdered. This led to a redirect, recross, and further redirect, Mr. Lance, the defense attorney, challenged Ms. Wright's memory of the event,7,8 while Ms. Crayon, the prosecuting attorney, had her clarify that she had only tampons to loan to Anastasia.9
This could have been disastrous for the defense, as the discrepancy between Anastasia's clothing and feminine protection, while it apparently got under the radar of the jury, could have brought to light the fact that Anastasia and her companions drove to her house before returning to Mt. Washington.9
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Jamie Lynn Smith
Jamie Lynn Smith1 had roomed with Byron Case in Kansas City and in St. Louis, and testified about Kelly Moffett's visit to her apartment to speak to Case just before he was to leave for St. Louis.2 She testified that her impression of Moffett was unfavorable.
Under cross-examination, she agreed that her knowledge of Moffett and Moffett's reasons for visiting were primarily filtered through what Case had told her,3 as she did not actually hear the phone conversation between Case and Moffett. She also admitted that she later had asked Case to move out from their St. Louis apartment because he had not been contributing financially,4 and that she had been allowed to review pre-trial documents before tesifying.5
Ms. Smith's testimony had been intended to give the jury a more negative impression of Kelly Moffett, but cross-examination established that her opinion of Kelly was mainly colored by what Byron Case had told her about Moffett. By itself, her testimony was mostly neutral, but following the testimony of Evelyn Case, it helped show a pattern that impressions of Moffett were formed by Case's friends and family mostly from the stories Case himself told about her, and not from having known or from having any direct contact with Kelly Moffett herself.
An unintended consequence of her testimony came when she admitted having viewed police reports and other pre-trial documents. She was the first of four defense witnesses who had inappropriately viewed pre-trial documents other than their own statements. It was not apparent with her admission, but it helped set the pattern that was pointed out by prosecution during later testimony. This hurt the defense in the long run.
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Evelyn Case is the mother of defendant Byron Case.1 She testified that she noted her son arrive at her apartment between 10 and 11 PM on the night of the murder and that he told her about Anastasia getting out of Justin Bruton's car and walking home that night.2 She further testified that she had never seen any guns in the home of her ex-husband,3 contradicting the testimony of Kelly Moffett.4
Upon cross examination, she admitted that she could not be sure that her husband kept no guns in his house,5 that she had little idea of her son's wherabouts at any given time,6 that she accepted her son's stories about his girlfriend without question,7 that she had no idea that Kelly Moffet was underage while dating her son,8 and that she paid no attention to what they did in his bedroom when Kelly visited. 9
She claimed to use journals she kept for reference for her testimony, but did not bring the journals in as exhibits, saying that they were written in German and that "nobody here could probably read them anyway."10
Evelyn Case left the jury with the impression that she was willfully ignorant of her son's actions. She did more harm to his defense than good.
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Nancy Nolker was Byron Case's aunt, sister of his father.1 She testified that she never saw a gun in Case's father's house.2 Under cross-examination, she admitted that she was only over to her brother's house occasionally, and that she could not say with any certainty that he never kept guns at his house.3
She did little to sway the jury one way or another.
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It is hard to measure the effectiveness of David Hill's testimony. It is possible that it had no effect on the trial at all.
David Hill was a paralegal working with the Public Defenders office at the time of the trial.1 He testified that he measured the distance and time to drive between the murder scene in Lincoln Cemetery (which he erroneously described as a cul-de-sac) and the intersection of Inland and Douglas Streets in Kansas City, Kansas.2
The reason for this was that the railroad tracks near Inland and Douglas were identified by Kelly Moffett as a possible spot where Byron Case might have disposed of the murder weapon. Moffett's testimony was actually that Case had dropped the weapon not far from the murder scene, and that the locoation in Kansas was a hasty conclusion drawn by the detective on the case, and not Moffett's own belief.3 It was a good faith error on the part of the defense, but the testimony was ultimately irrelevant to the trial.
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Abraham Kneisley was a close friend of defendant Byron Case.1 He testified that Justin Bruton had during the summer before the murder come up with a large number of fanciful criminal schemes to make money, involving kidnapping, extortion, burglary, or armed robbery,2 in contrast to the testimony of Kelly Moffett, who described the same schemes, but included Byron Case as a co-schemer.3 He also testified that Bruton had approached him about buying a gun about six weeks before the murder.4 Lastly, he testified that he noticed nothing unusual in Justin Bruton's appearance or behavior when he saw him late on the evening of the murder.5, as opposed to Kelly Moffet's description of Bruton.6
On cross-examination, Kneisley confirmed that he had spoken to police within just more than a week of the murder, and had to admit that he had not told them at that time about Bruton wanting his help to buy a gun, and that he had apparently withheld that information until the day of his appearance on the stand.7
He further had to admit that he had tried to help Evelyn Case set up a recording device and worked up a list questions for a possible conversation with Kelly Moffett,8 and also had to admit that he had obtained, examined, and shared with other defense witnesses copies of most of the pre-trial documents of this case,9 allowing him to view in advance all statements by all potential witnesses. One of the persons with whom he shared some of those documents was the following defense witness, Tara McDowell.10
Mr. Kneisley's concession that he'd had access to and had reviewed pre-trial documents and shared them with others reflected badly on his testimony, and caused the jury to reflect that an earlier witness, Jamie Lynn Smith,11 had also reviewed pre-trial documents. Compounded with the consideration that he had given testimony in court that he had apparently withheld from investigators, his appearance was damaging to the defense's case; according to one juror, it also had a cascade effect, helping damage the perceptions of the next witness as well.
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Tara McDowell was also a friend of Byron Case's; she mentioned that she had met both Justin and Anastasia through Case.1
She testified that Byron Case and Justin Bruton stopped by her apartment on the night of the murder, and that neither appeared to her to be upset, and that neither appeared to have been drinking.2 She also testified about Justin Bruton's LSD-caused hallucinations3 and described that Byron Case told her about the murder a few days later, and that he appeared "upset" and that he was "sympathetic" with her own grief.4
Upon cross-examination, McDowell admitted that she had thought it "really odd" that Case and Bruton had stopped by her apartment that night but had not wanted to "hang out", but had stayed in the hallway to speak to her instead.5 She also admitted that she had mentioned to police that Case's father might have had a gun at his house,6 contradicting the testimony of both Evelyn Case and Nancy Nolker, and giving weight to Kelly Moffett's testimony.
McDowell also admitted that she had Byron Case's pager's announcement had been particularly nasty and that she had thought it "out of line".7
The most damaging part of her cross-examination was that she had to admit that she had access to the pre-trial documents via Abraham Kneisley,8 and that she had spoken to the defense's next witness, Don Rand, a short time after the murder and had discussed the case with him.9
Tara McDowell's cross-examination did more damage to the defense than her direct testimony could have helped. Overall, the impression she created upon the jury from having examined pre-trial documents and having spoken to and possibly coached another potential witness was a negative one.
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Don Rand's testimony1 has been cited in Byron Case's appeal, as well as by friends of Case in an attempt to show evidentiary support for Case's alibi. There has been so much discussion that there is a separate entry in the FAQ2 about his testimony.
Rand's testimony on direct examination gave the jury an impression that he might have witnessed Anastasia getting out of Justin's car in much the manner Case had maintained. He testified that he had seen an attractive woman arguing with someone in a car3 in the same general area that Case had given, and that she angrily walked away from the car. Rand also testified that he had identified Anastasia a day later from among a couple of photos he had been shown by detectives4 as the girl he had seen that night.
On cross-examination, however, some of his story broke down. He admitted during cross-examination that he had told detectives that he had only noticed the girl was attractive, and that he had not seen her arguing and had been unable to tell whether or not she was upset when she walked past the service station where he worked.5
It was also established during cross-examination that Rand was only shown two photos, one of Anastasia and one of Justin Bruton.6 His claim to have recognized Anastasia when hers was the only photo of an attractive female that he had been shown further damaged his credibility.
His apparent failure to recall that he had a conversation with Tara McDowell7 about his statement to police, especially after her reluctant admission of the same8 added to the cumulative impression on the jury about coaching of testimony by the Defendant.
While the jury took no notice of this particular fact, it should by noted that Mr. Rand testified that the car he saw was on the south side of the street and was eastbound on Truman Road,9 in contrast to Byron Case's description of the alleged incident,10 in which he asserted that the car was westbound. Whichever young woman and whatever vehicle Mr. Rand may have seen, it is clear that it was not Anastasia walking away from Justin's car.
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Dr. Edward Friedlander
Dr. Edward Friedlander1 was called by the Public Defender's Office to work as an expert witness2 in an attempt to rebut prosecution testimony by Dr. Chase Blanchard. The primary purpose of his testimony was actually to instill some doubt as to what kind of weapon was used in the murder.3 Dr. Friedlander said he could not confirm whether or not the bullet that struck Anastasia had come from a rifle, a shotgun firing a slug, or a high-powered handgun.
Most of the hair-splitting was in which questions were asked. On cross-examination,4 Dr. Friedlander confirmed the Medical Examiner's report, that it could have been a rifle or a shotgun using slugs.
Dr. Friedlander's testimony made little difference in the trial, as it apparently did not raise sufficient reasonable doubt in jurors' minds.
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Before Byron Case1testified, he was certified as a prior offender because of his conviction for felony stealing.2 Most of his testimony was an attempt to dispute, explain, or downplay the testimony of earlier prosection witnesses, primarily Kelly Moffett's.
One prosecution witness and another defense witness had given testimony about an outgoing message that Case had on his pager just before Anastasia's murder, which went to the effect of "Leave a message unless this is Anastasia, because nobody wants to talk to you or nobody is going to bother to call you back," casting doubt on Case's claim to have been good friends with Anastasia. His explanation did little to help,3 as he began talking about how much a strain she had been putting on their friendship with her calls, without explaining why his message was so bitterly hostile toward her.4
Case repeated basically the same story that he had given investigators in October 1997,5 how he and Justin Bruton took Kelly Moffett home that night,6 and how he visited his friend Tara's house afterward,7 though he did some backtracking under cross examination.8
He offered explanations of why he spent 24 hours under suicide watch,9 why he helped Kelly Moffett run away from home,10 and why he responded the way he did to Kelly during their June 5, 2001 conversation.11
During the course of his testimony, Case claimed himself to not remember numerous details of the night of the murder, as well as many other details at critical times. In all, Case said that he "could not remember" more than 30 times during his testimony. This was important when considered alongside his June 5 conversation with Kelly Moffett was that he suggested to Moffett that she ahould tell investigators that she could not remember specific details when questioned, and told her that he'd done the same thing when he had talked to them.12
According to one juror who spoke some weeks afterward, Case sounded rehearsed and insincere, and might well have been the most damaging witness to his cause.
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