Aaron Keller (00:02):
Tonight on the daily debrief, there will always be that dark side waiting to come out. A jury grants a prosecutor's wish against a woman convicted of starving her stepdaughter to death. Justice demands the proper payment plus attorneys for Robert Kraft want evidence thrown out of court as a health inspector says she suspected trouble at the spa at the center of his case.

Attourney 1 (Defense) (00:27):
What was it that made you nervous?

Aaron Keller (00:28):
The actions of the manager and objection calls for speculation. That's that's not what I asked you. Just strike the answer and admonish the witness. Heated arguments over financial accounts which could point to an alternate suspect in a trial involving the murders of a family of four. This is the daily debrief. It's Tuesday, April 30th and good evening everybody. Welcome to the debrief attorneys Katherine Smith, Linda Kenney Baden. Good to see you tonight. Gene Rossi will be with us in just a moment. A Georgia woman has her who said rather that her fate was in God's hands today, learned that she will receive a punishment straight out of the Old Testament. Tiffany Moss is heading to death row after representing herself and presenting no defense whatsoever on charges, she starved her own stepdaughter to death. The victim was 10 year old. Imani Moss testimony revealed that Imani was starved, injured, left to die, burned in a garbage can and then stuffed in a trash compactor. Her stepmother. This defendant refused to give an opening statement, refused to cross examine witnesses, refused to give a closing argument and even refused to present mitigation evidence to try to save her own life.

Judge (01:45):
This is jury's verdict in case 18 B 1541 dash one State of Georgia versus Tiffany Nicole Moss. Count one findings of jury as to alleged statutory aggravating circumstances. We the jury find beyond a reasonable doubt that the offensive murder as alleged in count one was outrageously or wantingly, vile, horrible or inhuman in that it involved torture of the victim before death. We the jury, find beyond a reasonable doubt that the offensive murder as alleged in count one was outrageously or wantingly, vile, horrible or inhuman. In that it involved depravity of mind of the defendant signed and dated by the foreperson verdict. As to penalty count one murder, we the jury recommend and fix the penalty as death.

Aaron Keller (02:33):
The judge set the execution date for June 7th less than six weeks away, but that assumes there will be no appeal either way. This sentence is the first death verdict in Georgia in five years according to an organization that tracks the death penalty as a whole. Execution rates are dropping around the country having peaked in 1999 with 98 executions carried out. Last year there were only 25. These are nationwide numbers and are not specific to Georgia where this case occurred. Moss had a right to counsel, but as we said, she waived it. Two standby attorneys argued several times during this case that Moss suffered from brain damage and was not thinking clearly. The prosecution successfully shot down those attempts by standby counsel to jump in.

Attourney 2 (Defense) (03:18):
Even though the defendant wanted death. The trial judge was in a position to decide whether that was the just punishment, and that's what we're saying in this case,

Judge (03:26):
So I have to investigate mitigating evidence for her?

Attourneys 2 and 3 (03:31):
You have to consider it under Morrison versus the state. Again, it said it opens up. It's not just whether the defendant, the state wants to kill the defendant and the defendant wants to die. It's whether that is the just punishment.

(03:45):
The defendant in this case has not requested counsel. I can't speak for what happened at an ex parte or a private meeting yesterday, but inferring from the court's statement that nothing was going to change. I can only assume that number one, she has not requested counsel to come in. Number two, the court has observed and the state has observed that in her own way she is participating in these proceedings. She won two jury challenges. She questioned jurors. She has examined every document that I personally have handed to her. She has made her choice about whether or not to object to those documents. She has gone through the evidence with both myself and Ms. Jones and in fact, notice that one of the exhibits exhibit number 14, the small B lighter was not in one of the boxes and so they had to search for it.

(04:58):
I can think of a rational defense where a defendant in a death penalty case might choose to represent themselves and might choose to remain mute because all she needs to do is sway one juror. I have to convince all 12 jurors that death is the appropriate punishment, but all she has to do is convince one and then if the jury hangs by operation of law, the court will be forced into one sentence or another less than death. I can see where in the mind of a juror, a passive overpowered, outgunned defendant, there might be a thought in that juror's mind that it's just not fair to put her to death.

Aaron Keller (05:48):
That was an early argument, but ultimately it resulted in the verdict we saw and the sentence we saw, and so this case proceeded to was the fastest penalty phase that we've probably ever seen here. No witnesses, no excuses, no pleas for leniency. The penalty phase of this case involved just the prosecutor telling jurors that the state was asking them to find some of those aggravating factors that you heard during the verdict.

Attourney 3 (Prosecutor) (06:15):
Some crimes, they're so horrible, they're so heinous. The only balance you can pay is with your life, and that's what I mean by justice demands the proper payment, justice demands, the proper sentence. Justice demands that the sentence fit the crime. Now, some of you may be thinking, while I'm going to consider life with parole, I'm going to consider that this defendant should go to prison for the rest of her life and that she should have a chance for release. When you think about that, let me ask you to consider this. I do you think she's going to change? Do you think she's going to rehabilitate? The answer to that is no. If she's shown you too much of herself, she's shown you too much of the evil that is in her. She's shown you too much of her capacity for cruelty, for you to believe that she's going to somehow change and become a productive citizen because there will always be that dark side waiting to come out.

Aaron Keller (07:47):
This prosecutor had a strong even chilling command of language. Here's more

Attourney 3 (Prosecutor) (07:54):
Now. A lot of people think, a lot of people like you and me think that if I was put in prison for the rest of my life and never able to be released out, that would be worse than the death penalty. I'd have to sit there every day and suffer and think about what I did, but that's you and me. She's not wired that way. She doesn't have that conscience. And the reason I can say that with such confidence is the nature of the crime. Who in the world conceives of and executes a plan to starve a 10 year old child to death?

Aaron Keller (08:52):
That question was of course, rhetorical because jurors had already decided the answer was Tiffany Moss. The death decision was a surprise though to some observers because last night the jury announced a deadlock and asked to go home and sleep on the decision. The state's key witness during this case was the victim's father, the defendant's husband. He pleaded guilty in his serving a life sentence of his own. During this trial, he testified that Amani Moss died after becoming injured and what the defendant made out to be a cooking accident. The father said he refused to seek medical attention for his own daughter because his wife was afraid of suffering consequences with probation officers. The little girl ultimately died at home and the father said he was the one who came up with a plan to burn the corpse in hopes of helping his wife evade the authorities. Of course that did not happen. Joining me tonight are attorneys, Katherine Smith, Jean Rossi, and Linda Kenney Baden. So let's all discuss the issues on appeal, assuming there is one. First standby counsel claim that she has brain damage. Is that enough for appeals attorneys to jump in and say, okay, her waiver of counsel was not knowing. It was not intelligent despite what the court observed, despite what the prosecutor said and she could basically get a new trial. Linda, I'll throw that question. Your

Linda Kenney Baden (10:09):
No, I don't think so. Aaron, I think that it is enough though to say that she stood mute during the penalty stage and therefore that is enough to get a new trial if the court allows standby counsel to make that argument in an appeal.

Aaron Keller (10:22):
Yeah, that's a big question here. I'll get to that one in a second, but Jean, okay, what do you think? I mean, if there's an appeal, what's the best shot here?

Jean Rossi (10:29):
I got to tell you that you could have a possible violation of the eighth amendment, cruel, unusual punishment. That was a great closing by the prosecutor if there was somebody on the other side fighting him. And there's something visceral about watching a prosecutor give a very good closing when a defendant stays mute and under that famous case, Retta, she didn't fight it during the guilt phase, but I got to tell you this, I hope the Supreme Court of the United States takes this case and says, you know what? For the guilt phase, I mean the death phase, we are not going to let somebody commit suicide. Our country, our morals, our constitution is too important to allow this to happen.

Aaron Keller (11:17):
And that's a phrase we've heard out of you, Linda, that this might be suicide by trial.

Linda Kenney Baden (11:20):
Absolutely. Suicide by trial makes a mockery of the whole aggravating mitigating section that the Supreme Court wanted to put in place to make sure that the death penalty was fair across the nation.

Aaron Keller (11:31):
Catherine, I'll ask you this question of you here. The defendant has waived counsel, so will she even try to appeal this? So maybe she turns around and says, I don't want to appeal it. If she does that, can it appeals lawyer jump in on her behalf, maybe saying a client would diminish capacity and say, I'm taking this case up the chain even if you don't want me to.

Linda Kenney Baden (11:51):
I believe they could, and I believe

Katherine Smith (11:53):
In the circumstance they should. I mean all the factors together, not one taken singularly, but all of it together, it feels wrong, it looks wrong, and it does not put our justice system in the best. It shouldn't happen like this.

Aaron Keller (12:05):
And I can see other people saying, Hey, look, she chose this. This is what she chose. No excuses. The punishment moves along. There are a lot of different sides to this. We're going to move along on the debrief though, because still ahead a health inspector says something funny was going on inside the spa where police say they caught the owner of the New England Patriots receiving sexual stimulation for money. Plus the state says, A California man killed a family of four for money. But what about an alternate suspect? The defense claims his own tangled web of finances raise even more red flags. We'll take you back to court after the break.

(12:50):
Welcome back to the debrief. Ladies and gentlemen, we are preparing to cover the trial of a man accused of killing the reported date of actor Ashton Kutcher. 22 year old Ashley Rin was found stabbed to death in her Hollywood apartment in early 2001. Her childhood friend, Carolyn Menick, wrote a book about their time together that friend downplays the connection between kutcher and the victim. Authorities charged this man alleged serial killer Michael Gargiulo as the murderer. Opening statements in his case are scheduled for Thursday, undercover recordings captured by secret cameras inside a Florida massage parlor where the subject today have yet another round of court hearings. Authorities say The recordings show New England Patriots owner Robert Kraft and others receiving illicit sexual massages. Kraft as pleaded not guilty to charges that he solicited prostitution and his attorneys are trying to get the recordings thrown out of court. The defense argues that the recordings were unconstitutionally gathered even though the police had a warrant. Today, a health inspector testified that she did not see anyone who appeared to be under the age of 18 in the spa when she did a check, but she said the manager was acting suspicious.

Attourney 1 (Defense) (14:00):
Did you feel threatened while you were in there?

Karen Herzog (14:03):
I did. As the inspection progressed, I did. Yes.

Attourney 1 (Defense) (14:10):
And how did that manifest itself? What was it that made you nervous?

Karen Herzog (14:13):
The actions of the manager.

Attourney 1 (Defense) (14:16):
And what were those actions?

Karen Herzog (14:17):
Anytime that I was going into, when I went into the rooms that had the bedding

(14:23):
And

(14:23):
The clothing and the personal hygiene items and the flat iron and all the other things that go with it, she was with me trying to cover stuff up with a blanket and trying to constantly not appeared to have me see anything.

Attourney 1 (Defense) (14:42):
So she was

(14:42):
Trying to conceal?

Karen Herzog (14:43):
She was trying to conceal, yes.

Attourney 1 (Defense) (14:45):
But did she make any threatening moves to you or any threatening words?

Karen Herzog (14:48):
No. Nope. Just trying to cover things up.

Attourney 1 (Defense) (14:50):
Okay. So when I asked you before, do you feel threatened? You didn't feel threatened, you just were concerned that she was trying to conceal the evidence?

(14:57):
No, I was starting to feel uneasy. Yes.

Aaron Keller (15:03):
And now to the McStay family murders in California, defendant Charles Merritt is accused of killing business associate Joseph McStay and the entire McStay family. They all disappeared back in 2010. Several years later, the graves of all four of the McStay is turned up in the Mojave Desert. The defense is trying to convince the jury that another business associate Dan Kavanaugh is the one behind the murders. The defense presented evidence that Kavanaugh may have been lying about his whereabouts When the family disappeared and late yesterday, the defense suggested Kavanaugh hacked into the victim's PayPal account and took out money. The prosecution objected continuously

Attourney 4 (Prosecutor) (15:40):
Be able to review the PayPal records and determine how these payments were made from Joseph to Dan Kavanaugh on February 10th. If it's Joseph's account,

Dennis Shogren (15:56):
Yes, there was, he would've had to have hacked into ...

Attourney 4 (Prosecutor) (16:01):
That's not what I asked.

(16:02):
Objection calls for speculation.

(16:05):
That's that's not what I asked you.

Attourney 5 (Defense) (16:05):
 You'll just strike the answer and admonish the witness.

Judge (16:09):
The last answer is strictly the jury's instructed, disregard the last answer.

Attourney 4 (Prosecutor) (16:12):
That's not what I asked you. I asked you, did you review the records and determine how those transfers were effectuated starting on February 10th?

Dennis Shogren (16:21):
We did review the records.

Attourney 4 (Prosecutor) (16:23):
And what did you see?

Dennis Shogren (16:24):
We saw that those were made by Daniel Kavanaugh.

Attourney 5 (Defense) (16:28):
Objection. Calls for speculation. Lacks foundation and expertise.

(16:33):
 Subject to a motion to strike.

Judge (16:35):
It sounded like the next question was going to be, how did you determine that? So go ahead.

Attourney 4 (Prosecutor) (16:41):
How did you determine that?

Dennis Shogren (16:42):
We determined that by looking at the records in PayPal.

Attourney 5 (Defense) (16:45):
Objection. Misstates the exhibit as well as the PayPal records lacks foundation.

(16:50):
Overruled.

(16:51):
Your Honor, may we be heard it mischaracterizes the evidence?

Attourney 4 (Prosecutor) (16:55):
Well, it's a speaking objection and it doesn't.

Judge (16:57):
Objection, overruled.

(16:58):
Thank you.

(16:59):
You can explain

(17:00):
What he did.

(17:01):
And how he cam to his conclusion.

Attourney 4 (Prosecutor) (17:03):
Did you notice that there was a password reset on February 10th?

Dennis Shogren (17:07):
Yes.

Attourney 4 (Prosecutor) (17:07):
Okay. Is that what you meant by hacking in?

Attourney 5 (Defense) (17:10):
Objection. Calls for speculation. Argumentative.

Attourney 4 (Prosecutor) (17:13):
Had there ever been a time that you noticed in the PayPal records from the very beginning that Mr. Kavanaugh ever went in himself and took money out of Joseph's PayPal account?

Attourney 5 (Defense) (17:24):
Objection. Again. Calls for speculation. Lacks Foundation.

(17:29):
Sustained.

Attourney 4 (Prosecutor) (17:30):
Did you ever see in any of the PayPal records that you examined that Daniel Kavanaugh went in and did a password reset?

Judge (17:41):
Objection, calls for speculation, lacks foundation....

(17:44):
Sustained, as to who may have done it, If any.

Attourney 4 (Prosecutor) (17:49):
 Okay.

Aaron Keller (17:51):
Vince was spinning its wheels a bit there, but the bottom line is this and that is that the McStay disappeared February 4th, 2010 and are believed to have been killed on that date. How is it then that victim, Joseph McStay PayPal account went through a password change and started transmitting money to Dan Kavanaugh six days later. Here's more of the defense line of questions.

Attourney 5 (Defense) (18:14):
Dan Kavanaugh was paid through PayPal on several occasions prior to February 10th, correct? That's correct. How did that usually occur?

Dennis Shogren (18:23):
It generally occurred by a request from Daniel Kavanaugh to Joseph

Attourney 5 (Defense) (18:28):
For payment. Okay. And then that would either be accepted or denied?

(18:32):
That's correct.

(18:33):
Okay. If it were accepted, then Joseph would then send the money?

(18:36):
That's correct.

(18:37):
Okay. And were these transactions after February 3rd, so starting on February 10th, were those done differently than the previous transfers?

(18:46):
They were, there was no evidence of a request.

(18:49):
Okay, and no evidence of a request and also evidence of a password reset?

(18:55):
That is correct.

(18:56):
Okay. And were you aware that on February 10th when that first transfer is made for $900, that Dan Kavanaugh also claimed to have made a welfare check call to the police or to the San Diego Sheriff's Department?

(19:19):
Objection, misstates the evidence.

(19:21):
Sustained calls for hearsay.

(19:25):
To your knowledge, was the San Diego Sheriff's Department even involved in the case on February 10th at all?

(19:33):
Objection, relevance.

(19:34):
Well, it lacks foundation with this witness and calls for hearsay sustained.

(19:38):
 Okay. And misstates previous testimony and evidence.

(19:41):
Objection, sustained.

(19:45):
So these transfers were made, and you have the last one here, February 13th. Did additional transfers from PayPal to Dan Kavanaugh occur after February 13th? Yes.

Aaron Keller (19:58):
Okay. Let's bring in the panel on this one. Catherine Smith, gene Rossi. Linda Kenny Badden. Gene, I'll start with you. The state says this, defendant Chase Merritt killed for money. So how is it that the state isn't explaining these transfers to the other guy six days after the family is believed to have died?

Jean Rossi (20:14):
You know what? This is what I always to do as a prosecutor. If you've made too many objections to testimony like this, the prosecution looks weak. Even if the objections are sustained, they look like they're trying to hide something. They should embrace these records, and I don't like it at all.

Aaron Keller (20:33):
I agree with you, gene. Okay. Katherine will ask you this. When the defense also commissioned DNA tests on the victim's, graves found three unknown samples on items used to tie up the victims. They're not this defendants

(20:47):
DNA whose DNA

(20:49):
Is on these items from the grave.

Katherine Smith (20:52):
I mean, it's huge. I mean, that's exactly where you can lay the foundation for reasonable doubt. I mean, what more do you need? No one has been able to identify whose DNA, this is where it came from. I mean, I would completely rely on that. And also this evidence with respect to Kavanaugh to show reasonable doubt.

Aaron Keller (21:09):
Okay. Yeah, I'm seeing reasonable doubt all over the place here. And Jean, I agree with your discussion about the objections, Linda, you're nodding your head as well.

Linda Kenney Baden (21:16):
Right, right, right. As a prosecutor, you knew when I was a prosecutor, you never wanted those kind of objections. You want to look like you're bringing the truth. As a matter of fact, I printed out yesterday, I was very interested in this, that some of the addresses, the IP addresses that Kavanaugh used were first associated with Hawaii and then they came back to San Diego. So clearly he was accessing the PayPal account McStay. So that is a motive. It's a more of a motive to me than, especially with that statement that was out that we know what you can do. Our family knows what you can do to my wife and kids. I think that this is going to be appealed. If he's convicted.

Aaron Keller (21:49):
Yeah, I mean exactly. They're going after the death penalty on this one. And look, I mean, say what you will about the death penalty, but I would hope that everybody agrees, even if they're in favor of it or against it, that if it's going to be applied, the evidence ought to be certain. And here I'm going back to that old line. My trial advocacy professor used to say that no matter which side you're on, you always have to wear the white hat. You have to be an advocate for the trial being a place to find truth. And I agree, Jean, Linda, Catherine, you have all these objections. It sounds like you're trying to get in the ray of a simple record being interpreted. So we're just about out of time on the debrief. We will keep arguing about this long after the end of this broadcast. Great to have all three of you here though.

Linda Kenney Baden (22:31):
Thank you, Aaron. Thank you.

Aaron Keller (22:32):
And of course, thanks for those of you watching along with us here. You can join us tomorrow at 5:00 PM Eastern right here on the debrief for our recap of the best moments in trials nationwide. Goodnight.