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updated 9/8/2006 8:59:22 PM ET 2006-09-09T00:59:22
TRANSCRIPT

Ladies and gentlemen, I—promise you I will be respectful of your time this morning and not take any more than I need to to review the evidence with you.  I think it’s been—I hope it’s been an interesting time for you.  Counsel made no comment on it, and I’m sure he will, but it has impressed all of us that you have all been unusually attentive to the evidence in this case.
When we were—doing jury selection—it seems like a long time ago now, but it’s only been a week ago, I guess.  Week—week ago—Thursday.  We talked a little bit about that.  And about the significance and the important—perhaps peculiarly in this case, of paying very strict, rapt attention to the evidence in the case.

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It has been our observation that you have done that.  And for that we are truly grateful.  We said at that time—and it’s not just a turn of phrase.  But we said that facts are powerful things.

The facts in this case are going to lead you to the correct verdict.  And only if you were careful in your attention and rapt in your attention and really paid attention to the evidence would you see those facts and would it guide you.  And guide you clearly to the proper verdict.
We’re gonna be asking for a verdict of not guilty in this case.  Just so we—are fully kind of on the same wavelength, this is where we are at this particular juncture.  I—I’m not sure the court didn’t misspeak slightly when it was—instructing you earlier, but it should be clear to you that what—the way that our law works and the way our procedure works, the prosecution under our circumstances gets the first argument.

Then we have the middle argument.  And then the prosecution gets a chance for what’s called rebuttal.  In other words to respond.  And that’s the way the order of the arguments work.
I mention that particular because I was struck that several times durin’ the course—more than several times during the course of—counsel’s argument to you he said, “We’ll talk about that more.  We’ll discuss that further.”  And so I’m not blaming him, but it’s a strategic or tactical move that you don’t really get into much of substance the first time around, because then the defense lawyer gets up and speaks to you.  And then the defense lawyer doesn’t get a chance to respond on—after your second time up.

So I suspect that’s what’s going on.  And of course it puts us in a position of having to anticipate arguments that may be coming down the road.  I think we can probably do that.  ‘Cause we’re—I think the issues in this case are relatively well defined.  We can agree on some things.  We can agree on some facts that I think we—have been established.  And we—just a few areas, but very significant areas to argue about.

The—the one thing that I—I think that—the first fact that I think you will—that—it may be so obvious that we need to point it out.  And that is that there has not been any what we call positive or direct evidence in this case of any kind.  This is a pure circumstantial evidence case.  That’s what it is.  And you will be instructed on how the law applies to circumstantial evidence cases.

There’s no evidence that—of a gun in this case.  The gun was not recovered in this case.  There is no evidence whatsoever—whatsoever that this defendant ever owned such a gun or possessed such a gun or had anything to do with such a gun.  There’s certainly no one that ever saw him involved in any aspect of this crime at all.  Not the first witness to come before you and tell you that.

There is no evidence that he fired a gun that evening.  None whatsoever.  There are tests available to do that, but there is no evidence that he fired a firearm at—that evening.  The only firearm that was ever in his possession was a separate nine-millimeter firearm that had been stolen in a burglary several months before.  But, again, there is nothing whatsoever in the way of positive evidence that would put him involved in this awful crime.

Finally, and most—perhaps most importantly, there is literally no evidence in this record, and no evidence that’s come before you, to suggest or support the idea that he shot himself.  Shot himself four times.  The—the reason I—I mention that is because in this particular case there would appear to be so many problems with the state’s proof that I’m concerned sometimes that the—the—in effect the jury kind of looks for a defendant to prove himself innocent.
And when you get that much, it’s kind of like a—several times during the course of cross-examining some of our witnesses, the—particular Dr. Sturner, particular Mr. Jason yesterday, counsel would say, “Well, isn’t it possible?”  For instance, “Isn’t it possible that he shot himself in the hand?”

Well, of course—he’s got to say of course that’s true.  It’s not what wbelieve happened given all of the facts.  But it is possible.  Possible is not the way our law works.  It’s not sufficient for the government to prove that it’s possible that he did this crime.  The government has got to prove beyond a reasonable doubt that he did do it.

And so I—I don’t like the idea, frankly, of harping on this concept of reasonable doubt ‘cause it sounds like a lawyer trying to do some—weasel something or another.  But it may be well to be reminded that in our system of government, when a citizen such as Mr. Barber is charged with a crime by the government, then we empanel a group of other citizens like yourselves to hear evidence of that crime.

And it’s up to that panel of—of persons or citizens to determine whether or not the government’s evidence has been so persuasive and so overwhelming that it removes and eliminates all reasonable doubt regarding that person’s guilt.  And if it doesn’t do that, if it falls short of that, then the outcome has got to be clear.  The outcome has to be not guilty.
And so the burden is always on the government.  And it never changes.  And the defendant theoretically doesn’t have to prove anything.  So, again, the evidence has got to be so persuasive that it removes all reasonable doubt.  Doubt to which you can assign a reason.  And then, and only then, could you or any jury decide someone was worth of a verdict of guilty of a crime.

And there’s an obvious reason that that’s done that way.  And we’ve done it for 200 plus years.  And the reason is because we don’t want mistakes.  In matters of this consequence, we don’t want mistakes.

In those kinds of cases, the jury is not permitted to know, interestingly enough, what possible penalties there might be.  In this case, you do know.  The only penalties permitted in this case are life imprisonment or death.  Those are the only two.  So the gravity is—

JUDGE:
Do you wanna proceed or you wanna wait?
MR. WILLIS:
I think we’re gonna need to use this, so—
JUDGE:
Okay.  We’ll do—
MR. WILLIS:
Why don’t—why don’t we go ahead and proceed.  And if I get to the point where we need this and it won’t—
JUDGE:
Okay, let’s turn—and that thing may have turned off.  Why don’t you make sure it’s one.
MALE VOICE:
They said we’re good to go.
JUDGE:
Yep, okay.
MR. WILLIS:
We’re good to go.
JUDGE:
Pr—proceed then.
MR. WILLIS:
All right.  So I was talking about the gravity of this situation that you’re in. And I’m not tryin’ to burden you beyond what you—I’m sure you already feel.  But it is the case that a jury makes that decision.

And, largely speaking—people talk about appeals and so on.  But there is no real appeal from the question of whether the—a jury made the correct decision or not.   That’s why we have panel juries to do that.  That’s your call.

And whatever you decide, that will be the decision.  So it’s an enormous decision.  And that’s why I’m hopin’, and knowing, frankly, that you will give me your kind attention as I think you gave to the counsel for the state in reviewing this evidence.

The—first thing I’d like to comment on in the—my—my—my young partner tells me that I don’t watch enough television or something that I—I shouldn’t be commenting on things of this sort.  But the first thing I wanted to comment on is not just the so-called presumption of innocence.  But really and truly what the government is claiming here.

We all know what of circumstances where spouses kill other—their spouse.  Husband kill wives, wives kill husbands.  And it happens—we see it every day.  But those are in cases of heat of passion or things of that sort.  Anger.  Whatever.

That is not at all what’s being—he’s being accused of here.  We’re—we’re accusing this man of an enormously premeditated crime reaching back they say into February of that year.  And they’re suggesting further—they’re suggesting two motives.

One is this adultery.  And I call it what it is.  And we’ll talk about that.  That’s not really a motive that was offered in this case.  And the primary—impact on you is to make you feel as well about him.

But the other is—and the real motive that they’re suggesting is—is, he said, two million dollars to commit this crime.  I may be naive, but the idea of an ordinary person, an ordinary person like Justin Barber—you’ve heard no evidence of any kind of history of violence or anything else.  But ordinary person to even contemplate the idea of killing his wife or any other human being is such an enormous departure from any concept of morality that I would suggest that if ever there is a presumption of innocence, it would apply in a case like this.

Just as an aside, I mean it—I hate to put this next to the idea of the moral almost impos—impossibility.  Certainly improbability of something like that.  The last person in the world that needed to be worried about money or needed to be concerned about money was Justin Barber.
You recall our friend, Mr. Segal, the—the gentleman the testified that he’d already earned—his firm had earned $50,000 to do a financial evaluation—to do an assessment of this man, Justin Barber.  The net result of which, as you’ll recall and counsel reminded you, was that over a two year period he lost $30,000 in the stock market, like most of America that was in the stock market.  And his net credit card debt went up to $58,000.

Well, folks—it—it came in as—as part of the insurance packet, but let me just—I mean it—the testimony from Mr. Barber in his deposition was he was making $75,000 base salary.  As you’ll recall from the testimony from our insurance man that came down here, they do an independent investigation of those kind of matters before they issue a policy.  Let me show you what the result of that was.

Can you zoom that in?  I don’t know if you can read that or not, but this is the email where they approved the two million dollar policy.  Inspection report shows her income as $73,000.  Husband makes $105,000.

Since she’s only been at this hospital seven months, her income will increase.  We will issue the full amount to keep equal with the husband.  And based on future earnings.
Mr. Barber had an MBA from Oklahoma University.  Mr. Barber is 30 years of age.  And Mr. Barber is making $105,000 a year.  With all of his future ahead of him with a Fortune 500 company.  Two million dollar is not the motive for Justin Barber.  Certainly not the motive to kill your own wife.

We’re gonna be looking at—as I mentioned to you were gonna try to identify those areas where there is debate and see how the evidence pares on those areas of debate.  And so maybe it’s a good idea to start out by saying—suggesting where we think we can have agreement.  And that is the facts of August the 17th, I think that we can agree.
There is no real question that they went out—April and—and Justin went out to dinner together.  And I say that because he said they did.  And the way that government has approached this case is to look at every single syllable that he uttered or allegedly uttered in some cases, and try to show there is fault.  So if they had any evidence that it hadn’t happened that way, they would show it to you.

They went out.  Had a—a—a normal dinner.  They went next door or two blocks over to the Ritz.  They drove from there.  They drove down to the beach.  When we were talking in opening statement, we had expected to call either the state or ourselves call the Barbours.
And not Barber, Barber, but Barbour, which happened to be a mother and her son that were coming up St. Augustine A1A that passed by this area of Guana Park and saw Justin Barber and April Barber walking hand in hand down the side of the road at about 10:30.  Now the reason we didn’t is because it came through Detective Cole on cross-examination.  That’s technically hearsay, but it came in and it wasn’t in dispute.  And so there wasn’t any need to call ‘em.
But we—we can agree on that much.  We got them to Guana Park.   We’ve got them walkin’ hand in hand down the road heading down to the beach.  What we do next is we rely upon a—we—are relying upon what he says and comparing with what the facts are, of course he says that he is assaulted on the beach, as he has described to you.  As he has described to the investigators repeatedly.

Contrary to what counsel has suggested, he said, and has said consistently, he heard only one shot.  Not that he was shot one time and passed out.  But he heard only one shot.  He was in—it was in a scuffle or a—a struggle with this individual.  Grabbing for the gun.  Trying to reach the gun.

Let me ask you the rhetorical question.  If he were premeditatedly trying to put together some cover story, why would he tell you that he only heard one shot?  Why wouldn’t he tell you that he heard four or five shots.  If he full well knew--  and he knew there were at least four holes in him by the time he first had to tell his story.

So why would he say only one?  And the reason is people under stress, under those kind of circumstances, they’re—they’re senses are not acute.  And at that moment in time, they’re not in the position to record things that they can re—later be precise about.

But we can agree that when this lady came up to the boardwalk, when she was found at the boardwalk, she was wet.  So we know from the fact that she was wet, we know that she was in the water.  And so we—also know that she has had—I would call it an asphyxial death.   We know that she has had stoppage of her breathing.  She has had the stoppage of her heart.  And we know that to be the case.

Now the doctors would agree—disagree about the cause of that.  There was trauma to the first cervical vertebrae, which they both agree would have caused cessation of breathing and eventual death very shortly thereafter.  The only real departure is whether there was this near drowning episode.

Dr. Sturner testified that he felt like that—he couldn’t rule that out, but he didn’t think it was likely.  Because, among other things, there was no water in the stomach.  And the lungs did not weigh as much as he would expect them to.  But, again, we know that she was killed.  There’s no really much of a departure in that.  In either scenario, the one that they’re suggesting to you or the one that we’re suggesting to you, would probably fit well within those facts.

We know finally, further, that there were drag marks on the beach.  And the drag marks may be key here because there is no disputing—no disputing what that means.  That is a fact.  That’s not a suggestion.  That’s not a theory.  That is a fact.  And it can’t be disputed.  Because we see those drag marks, we know that she was unconscious when she came across that beach.  There can be no doubt about it, ‘cause you can’t explain it any other way.
And we know too that she had a series of three or four truly minor abrasions.  Truly minor little, as he called ‘em, punctate abrasions, around her body.  Which, again, was not evidence of a struggle.  Was not evidence of being involved in some violent confrontation.

And they generally agreed on that.  There was no bruising.  There were no cuts.  There were notable—no notable scratches of any kind.  There was nothing that you would see in the event that you thought that this lady had been in a struggle for her life.

Now all of that is consistent with what Justin Barber said happened.  There’s not a thing in the world inconsistent with that.  And so what is the approach that they have taken to that?

Which is try to show or tried to give some testimony or some evidence, most of it—well, there’s medical type test—testimony, to suggest that what he is saying is not true.  And in order to accommodate some counter hypothesis, they have had to construct their own. 

They’ve had to come up with their own version of events.

And their own version of events is basically this.  That somehow when they’re down on the beach that somehow something triggers it.  Something they don’t know, ‘cause, again, there’s no direct evidence.  That they wind up in the water.  And that Justin Barber basically attempts to drown his wife or does hold her under to the point where she loses consciousness.
And we’re not clear right now, but it appears that they’re suggesting—Mr. Findley did, suggested that somehow in the water she received this lineal—we call it a lineal abrasion up and down her arm.  That thereafter she—when she lost consciousness for reasons nobody can explain, and I defy them to do it, he would then drag her up that beach.  And, again, they can’t get around the fact that she is unconscious because of the drag marks.

Would drag her up to the foot of this overwalk and there shoot her.  Now we’ve suggested in opening statement, I suggest again, if murder was his intent, if Justin Barber was the assailant, if his wife was unconscious in that water, why would he not simply continue the drowning?  All he would have to do—I mean if murder was in his heart, just drown her and push her out into the water.

And who could say she didn’t go for a swim with her clothes on?  Who could say that didn’t happen?  Nobody.  Why in the world would you involve drowning in this at all if it was your intent when you went down on the beach?
Why would you get involved in drowning, period?  Why would you get in the water at all?  If murder was in his heart, why wouldn’t he just shoot her?  Just say that’s what happened.  It doesn’t make any sense.

Why—if their scenario is correct, why would you prick—bring her out of the—the water and drag her all the way across the beach to the point that’s closest to the highway.  The point that absolutely funnels anybody that comes to the beach right down on top of you.  And drag her right to the foot of that funnel where anybody who’s coming to the beach would see you.  And there go ahead and shoot her.

Now that doesn’t make any sense at all.  And yet the government has consistently tried to tell you that he has been premeditating this at least since February of 2002, a period of six months.  Now that just doesn’t make any sense.

And there’s no way in the world to make it sense, because it just doesn’t.  And, again, there’s su—the suggestion that this is a very calculating individual over here who’s—you know figured it out.  He’s gonna fool the police and he’s gonna fool you and fool the prosecutors and all that, that scenario just doesn’t make any sense at all.

And there’re some other questions that you should ask, like it was suggested along the way that nothing was stolen from them.  And so there was no robbery.  Well, I suggested it was a robbery gone bad.  But if this, again, was a premeditated design, why wouldn’t he take something from her?  Why wouldn’t he remove the ring from her finger?  If he was trying to cover it up and show that it was a robbery.

Why wouldn’t he do that?  Well, of course he would.  Why would he leave something where there are questions and there’s physical evidence that they can exploit in this theory that they’re trying to sell you is what happened on the beach that night.

We’re going to suggest that the basic approach that the state has taken in this case is essentially to selectively seize on certain facts and ignore others that change everything about those facts.  It is not a question of where Justin Barber is able to come up with answers to all of these seemingly damning evidence.  It’s a question that if you look at all of the facts about the seemingly damning evidence, you find it wasn’t damning in the first place.  Now we’re gonna go down the list and we’re gonna s—go through it as counsel has partially done here.
The first of these is the question of blood transfer.  And I’m really interested in that, because it—the significance of that I think we can largely agree upon.  If Justin Barber is telling the truth, his wife was shot down by the water’s edge.

And when she was drug or carried up towards the—the—boardwalk, we will call it, then the question would be why—if he’s bleeding, why wouldn’t some of his blood be on her or vice versa.  If she’s bleeding, why wouldn’t some of her blood be on him?  Well, the answer is there is.
But it’s a legitimate question, because, again, somebody might not really understand the facts and say, “Well, what difference does it make if he shot her down the beach or shot her down on the—the boardwalk?”  Well, the answer is there’s no direct evidence that he shot her at all.  None.  Zero.

And so, again, the approach the government is taking is the selective presentation of facts while ignoring others that change everything.  And I’m gonna suggest to you that we can demonstrate it on this blood transfer probably best of all.  The first thing is we’ve talked about whether there was Justin Barber’s blood on the clothing or the person of Mrs. Barber.
And, again, because if he carried her, you would think there might be some blood transfer.  Well, the answer is there is.  And you heard it.  And the testimony is very clear that there was a smear or—I’m sorry.  As Mr. Findley said, a touch of blood right here under her arm, left hand side, exactly where it would be if his hands went under to carry her.

Now that’s there.  They can’t do anything about that.  And they have no explanation, though I’m sure the—the theory somehow is gonna be expanded to allow for that.  That he touched her or something.  But it’s there and it’s just where it ought to be.  

Importantly we have what’s been identified as April Barber’s blouse that she was wearing that night.  And, again, there’s blood right here on her arm that belongs to Justin Barber.  And importantly you can see that this entire area is saturated with her blood.

And the reason it’s saturated with her blood is—you’ll recall, is that night when she was taken from the scene, that was the evening of the 17th or early—very early on the 18th, she was transported the morgue, to the medical examiner’s office.  And she was left there.  And she continued to bleed because of gravity and it gathered on her person.  It gathered on her clothing.

And this is her blood and that’s saturated.  Now the significance of this blouse is twofold.  You see where they took—the only test samples that they took are right here.  And the testimony was they take like a little three-millimeter shot.

It’s like drillin’ for oil.  And you just—you drill a very narrow hole.  They took a sample from here.  They took a sample from here.  And you have now seen the end of the efforts to find Justin Barber’s blood on this lady’s blouse.

And the testimony has been clear.  The testimony has been crystal clear from Mr. Gilmore.  Mr. Gilmore being their laboratory chemist, the fellow from Melbourne that came up and testified later about her pants.  He said that’s a real bad way to handle evidence.  You didn’t do it that way.  This evidence was wet.  It had this blood that was continuing to flow.  You have destroyed any evidentiary value of this.

And the reason being is, he testified, Justin Barber’s blood could be all over here masked by this—her blood.  And we would not be able to find it.  So for them to suggest that his blood is not on her blouse is simply not true.

It is true they didn’t find it, because it—this was their effort and the was their effort.  And the way they handled the evidence we can’t find it.  We can’t do it now because of the way this evidence was handled.  So, again to say they didn’t find it, that’s true.  To say it’s not there, that’s not true.

In a similar way, these are the pants that April Barber wore that night.  And Mr. Gilmore was the one who took charge of these.  And if you’ll examine this, you’ll recall from his testimony that he had several areas where there were stains that he took samples.

And he tried to test them for blood.  And tried to determine first whether it was human blood.  Then whether it was male or female.  And make some analysis of whose blood this was.
Well, he had 46 different areas of blood staining on these pants.  Forty-six.  There were 36 of ‘em he could match either female or to April Barber, so we have to know that that’s April Barber.  His testimony was that Justin Barber’s blood could be concealed underneath every single one of that 36.

So to say that Justin Barber’s blood was not found on her pants, that is true.  To say that it’s not there is not true.  And that is particularly so because these areas of green, as you will recall, he specifically told you there were 10 areas out of that 46 that were so degraded because of the way the police handled this evidence that we can’t tell, and never will be able to tell, whether it was even male or female.

So there’s ten areas, all the ones that are circled in green.  And interestingly enough—I mean it’s kind of hard to tell.  We’ll do the reverse here.  But right here on the back of her pants—right here on the back of her pants is two of those areas.  Right side by side where there was small blood staining.  Right here.

So then the question becomes, “Do we say Justin Barber is incapable of making a mistake?”  In other words that he says yeah, he did it.  He said he got her by the front of the pants.  Is it just possible that a guy that’s been drinkin’, a guy who’s been shot four times, and a guy who’s watched his wife get shot on the beach, drug her up to point of exhaustion, is it just possible that when he sits down with the police and gives ‘em a detailed story of this a week later that he makes a mistake and said, “I grabbed her at the front of the pants,” rather than the back?
Is that just possible?  Is that much of a stretch?  We did a couple of things in this case—and I don’t know that you’ve paid much attention to it at that time.  Maybe you did.  But it was interesting, because—Dr. Steiner, he got real defensive about it.

I showed him a—a form that his office had produced.  And it’s in evidence.  And the form clearly says—it clearly says that they released April Barber’s clothing to the funeral home.  Well, that clearly contradicted what John Holmquist said.  John Holmquist said that, you know, he picked ‘em up and took ‘em.  I don’t have any question that John Holmquist took ‘em.  Okay?  The point was people make mistakes.

And so there’s nothing sinister about the fact someone makes a mistake.  His office made a mistake.  You got a form that you looked it and it says, “We released it to the funeral home.”  And that’s wrong.

Dr. Tepas, when he took the stand, got the dates wrong.  I’m not sure I didn’t help him with that, ‘cause I kind of got—garbled up too.  But Dr. Tepas had him getting out the same day he was admitted.  And that’s just not true.

The medical records are in.  You’ll see him.  He came in at 12:01 at night on a—on a Saturday night/Sunday morning on the 18th.  And he did not leave until the 19th at seven o’clock at night.  And, again, a simple mistake.  And Dr. Tepas is a very bright man and had the records in front of him.  He made a mistake.

Alex Jason, our—our analyst that was here yesterday.  He’s describing these experiments that he ran with ballistics.  And he’s talking about the width of Justin Barber’s hand.  And he first says, “I measured it was a half an inch.”  And then you look at the screen, he’s usin’ tissue that’s an inch thick.  He made a mistake.

Now nobody’s gonna suggest that that was done purposely.  It wasn’t.  It was just an honest mistake.  So back to this.  Is it just possible that a guy who’s been shot four times, been drinkin’ and his wife has been murdered in front of him, is it possible that he’s (UNINTEL) very precise as to exactly how he carried her comin’ up that beach?

Oh, and it’s also interesting.  Look at where some of these other unknowns are.  Down here around the knees where she would have been cradled in the event that he carried her like a baby, as he described.

Two was interesting.  All of this proceeded from the question of how much blood Justin Barber would have been losing at that time and therefore be available to transfer.  And, once again, there was a selective presentation of facts.  And when you hear the rest of ‘em it changes everything.

Because Dr. Steiner, at least to the best of our ability to review his transcript and go back in our memories, never really said anything about that.  There really wasn’t any evidence as to how much blood was being lost out of his hand, which would have been the thing to come in time—contact with her.

Dr. Sturner did, though.  And Dr. Sturner, our expert that came in here, testified that the gunshot did not hit any major vessel there.  And so there would have been very little blood that would have been coming out.

Obviously it’s going to bleed some.  Any wound would.  But there’s gonna be very little blood there.  Well, let’s look a little further.  Let’s look at facts.  Facts, facts, facts, because I’ve said they’re gonna lead you to the proper verdict in this case.  Look at the facts.

The fact is there were two people that examined the wounds on Justin Barber that night.  And that was a lady by the name of Kim Pryor, who walked up to him in her car.  The lady from Tennessee.  And she did have the wrong hand.

Let me point out to counsel it’s been four years since these events.  It is remarkable that she has a memory that goes back that far at all, let alone with the precision that she does have.  She got the wrong hand, but she got the right wound.  And the wound, as she told you, was not bleeding.  As she said, it looked like somebody stuck a pencil through it.  There was some blood, I’m sure, but there wasn’t much blood.

Perhaps more importantly, we had rescue worker we called—not the government, we called.  Susie Brown.  Captain—Lieutenant Susie Brown.  And Susie Brown is the one who examined his wounds that night.

And she too said they were not bleeding.  She too said there was no blood coming out of that wound in his hand.  Now that’s a fact.  And we had to bring you those facts.
The medical records at Shands.  We put those in evidence.  We put ‘em into evidence.  And the medical record says—and you can read ‘em yourself, that the helicopter that transported him made a note the wounds were not bleeding.  That’s a fact.

It’s a fact that they examined that walkover that night.  It’s a fact they examined the—the street out in front of his car between the walkover and his car.  And it’s a fact that there was no blood found anywhere on that walkover or in that street.  Now counsel has very selectively—and I’m—I guess that’s what lawyers are supposed to do.  But very selectively talked about the blood that was found in his car.

Now there’s been some discussion about that.  We got pictures that are not very good, but they’ve—you can see ‘em better when you get ‘em in the jury room.  Here’s the sum total of what we got.  We got this little—I’d call it a smudge.  You may wanna call it a smear.  I’m not sure what you’d call it there on the side of the steering wheel.

Now I don’t know and neither does anybody else how it got there.  There was at least testimony from Miss Susie Brown, Lieutenant Brown, that Barber was rocking back and forth and banging into that—into that steering wheel.  I don’t know whether that’s true.  I don’t know whether that’s what came to one of the wounds from the torso.  Or whether it came from his hand.  It could have.  I mean I’m not saying it didn’t.  I don’t know.

This is your other blood right here on the side.  Probably—in fairness probably did come from that—that wound on his hand.  But, again, that’s the sum total of the wound—the—the blood that we’re finding.  So there’s not like blood dripping in there.

So let’s get back to the question of whether there’s some significance to the idea that they didn’t find Justin Barber’s blood on her blouse or on her pants.  The answer is, number one, they can’t tell you it’s not there.  And number two, he wasn’t bleedin’ as they would suggest to you he was.

The people that watched him and saw him that night, the testimony and the only facts you have before you, make clear that that was not happening.   So how can you jump from that, that Justin Barber’s a liar because we screwed up the evidence and we can’t tell you whether the blood’s there in the first place.  And number two, we didn’t call all of the witnesses that saw it and said he wasn’t bleedin’ that bad.

And then there’s been this other thing kind of show up.  After this charge—and you’ll see the indictment, ‘cause it’ll be in the jury room with you.  July the ninth, 2004, he was indicted.
The testimony was abundantly clear that after July the ninth, 2004, after this man’s been formally charged with the crimes, for the first time—the first time, they examined his shirt and they examine his pants.  Being with the pants first, blood here.  Number six.  Been removed right up here at the—where the button would be.  Number 12.  Right down here.  Her blood.  Her blood.

The shirt?  Right down here on the right hand side.  Right back here in the middle of the back.  Her blood.  So after the government indicts this man for murder by claiming that there was no blood transfer between these two people and therefore he’s a liar, that what he said happened didn’t happen, what do we do now?  Well, we got this brand new theory.  We’ve got this linear abrasion that runs along here.  That that’s got to be the source of her blood.  All right?

Number one.  We have put in—all manner of pictures into this evidence in this courtroom to try to demonstrate her situation that night.  There is not the first picture, there is not the word—first word of testimony from anybody that says that they saw a bleeding abrasion that ran along here as we now know there is one.  Period.  There’s just not.

You’ve got a number of different views.  I invite you to look at every single one of ‘em, ‘cause we have studied ‘em in detail.  You cannot find that injury, because it wasn’t apparent yet.  Unlike Dr. Steiner, Dr. Sturner said it was not vital.  It was not vibrant.  It did not occur, in his opinion, during life.

It occurred, what he called, perimortem.  Either right before or right after.  And that doesn’t change, because there’s another photograph that the government has offered—if I can find it.
This photograph, which, again, is not particularly easy to see, but you can—you’ll be able to see it in the jury room.  This is a photograph of that abrasion that was taken at the time of autopsy on Monday the 19th.  Monday the 19th.  And the fact that it oozes on Monday the 19th does not mean that it was bleeding on the evening of the 17th, as specifically attested to by Dr. Sturner.  And now I might—add—addressed by Dr. Steiner.

Now a word about dueling experts.  I’m not—I’m not casting any aspersions on Dr. Steiner.  He is a physician.  Been in his community for 17 years.  But he does work with the police.  He does work with the state attorney on a regular basis.

And that—you know that carries with it some inferences that are probably fair.  I don’t make any bones about it.  We have made an effort to get the very best that can be gotten in the country to come in and look at this situation.

Dr. Sturner, if you—if it passed by you quickly, Dr. Sturner—been—been a pathologist for 40 years.  Dr. Sturner has done 10,000 autopsies.  Dr. Sturner’s been a teacher at such universities as Brown University and Harvard.  Dr. Sturner’s written 105 medical articles on a variety of subjects.  Five different chapters for standard texts, one of ‘em on a standard text that it’s fourth printing.  Been chief medical examiner for two different states.
I’d call him an expert.  And Dr. S—Sturner said that is not the source of the blood.  So, again, what does that tell us?  Can we be assured that that is in fact the source of the blood?  No, we cannot.

We’ve got one medical examiner that at least raises that possibility.  And one that says no, that’s not what happened here.  And what happened here is absolutely consistent with what Justin Barber says happened here.  I repeat, there’s a selective presentation of facts while ignoring others that change everything.

Now we discussed the significance of that—that question of whether there was blood transfer.  And the—the big significance again is because the lynchpin I guess of their case is that she was shot right there by this boardwalk.  The little sense that that makes logically, it’s nonetheless what they have to sell here—in order to get a conviction.

And so we—we’ve examined this—this—photograph at great length of Mrs. Barber.  And I doubt that anybody’s gotten used to it even yet, as much as we’ve looked at it.  And here’s what we find.  It is true that gravity controls the flow of blood once a person died.  But that—if—if what Mr. Barber says is true, she died down on the beach.  I mean she did.  We can pretty much agree on that.  The bullet to the C1 killed her.  I mean at—at least that.  And everybody agrees that that’s true.  So there wasn’t any blood pressure after that.

And what’s interesting is we’ve got plenty of blood coming out of here.  We got plenty of blood coming out of here.  This red, crimson blood.  The interesting thing is this photograph was taken, as you now know and been told umpteen times, was taken somewhere three—three and a half to four hours later.

So the significance of this—their whole theory is that since this flows straight down and this flows straight down, this must mean that she was not moved once she was shot.  And the idea being that if she were moved as there were blood flowing like this that you would see other evidence of it goin’ in different directions as she’s moved around.  Mr. Jason was able to identify a hair, identify a little bit of blood right there, a little bit of blood right there.
A spot right there.  A spot right there.  Not great deposits, but that definitely that gravity.  But, much more importantly, there was general agreement, I think, that by one means or another this brown material, this blood—this wasn’t stomach contents as was suggested sometime recently in a cross-examination.

This was blood that was altered.  Whether you believe it’s altered by water like salt water like Dr. Sturner said or you think—speculate and believe that it may be because stomach contents or stomach acid operated on it, either way it changed the complexion, the appearance of this blood.  But nobody denied this is blood.

It clearly was the first blood.  It is dry.  And importantly, as we demonstrated by the slide, look how it does not follow gravity.  And look how consistent that would be with the idea of a small quantity of blood being up here.  Enough to make the stains on his pants, on his shirt that we know where there.

And when she is—and it goes down to here.  When she finally comes to this rest position and final position, it then starts moving downward and starts ultimately following gravity and going straight down.  Okay?  Well, there’s more.

And the reason there’s more is because I wanna go back to the facts.  The facts are gonna guide your decision this week.  And so that’s gotta be our hope.  That’s gotta be our prayer.  The facts are that we, and not the government, called to testify before you people that did see this lady at the time and shortly after the time that she was there on the beach for the first time.

Counsel made reference to Mr. Tanner—he’s a lieutenant now, who was the first witness, by my recollection, that was called in this case.  It is technically correct that Lieutenant Tanner now says in his testimony that he saw what he thought might be some blood in the hair.  You may recall that he also acknowledged that in a previous pretrial deposition he had flatly said he saw no blood at all.

Now, again, I’m not gonna make conclusions from that.  I’m just—that—those are the facts.  That’s what happened in the courtroom.  It is the case that Mr. Tanner, by his own testimony, was around the scene that night for multiple hours.
And it has been four years ago.  And it is certainly possible, in fairness to him, that he made a simple mistake.  That in fact he—what he recalls of her appearance happened later in the evening when he stopped by again.

But we called two people that really can’t—you can’t really assign that to mistake.  We’ve called Jason Pryor, the young man from Tennessee, that walked down there and with—be more on him regarding the K-car business.  But Jason Pryor was an EMT.

He went down and checked these lady’s—this lady’s vitals, which is what EMTs do, to confirm that she was dead.  He testified that he did not see any visible blood.  Now you can assign it to no flashlight and this, that and the other.  But he looked at this lady.  Had to to assess her.  And his statement was he didn’t see any visible blood.  So whatever blood there was was a very small amount of blood.  Obviously there would be some.

Mostly importantly, Brian Erb—and this—I’m—I’m sorry, but this is not as counsel characterized in his opening statement.  That somehow he was on the land side of this lady and therefore he was looking at the back of her head and couldn’t see her face and all that business.  That’s simply not his testimony.

His testimony was clear, explicit and unambiguous.  He assessed this lady, including—including putting his head down to her mouth so he could test whether there was breathing.  He checked her eyes to see what was going on with her eyes and whether there was any responsiveness.

You can’t do that kind of an assessment unless—unless you’re seeing that person.  He did the assessment, he testified, consistent with his report.  He said he had an independent memory, but he also said it was absolutely consistent with his report, which was, quote unquote, no obvious bleeding.  So this picture—that’s three and a half to four hours later, but that’s misleading.

That is a—that is a part of the facts.  That is picking out parts of the facts and putting them on for you.  And ignoring the balance of the facts that change everything.  Brian Erb, Mr. Pryor, change everything.  So for this to be the basis for concluding that Justin Barber lied to you, it simply won’t fly.

I want to touch on that—one last thing before we leave it.  On that—linear scrape along the arm and the—shoulder.  If I can find the pictures, the morgue pictures.

MR. WILLIS: Yeah.  This is defense exhibit.  And the reason it’s a defense exhibit is because it shows the linear abrasion itself.  Look at this abrasion.   Straight line here.  Straight line here like a dotted line.  Straight line here.  Straight line there.

Absolutely consistent with the idea that she crumpled and fell down—not across, but across the edge of a rough hewn hand rail that could happen at Guana Park.  Absolutely consistent with that.  What is being suggested, however, is that somehow that ain’t how it happened.
That somehow this was a result of here—him holding her down or grinding her into the beach onto this coquina shell.  Now let me just take a moment and come to talk about common sense.  Please do use your common sense.

Dr. Sturner testified if that were the way, that were the mechanism that caused this, you would see circular.  You would see semi-circular.  You wouldn’t see kind of a line that just runs.  It’s so easy to interpret what it is.  A lay person doesn’t need a doctor to tell ‘em what that is.  There is no evidence of cutting of that.  There’s no evidence of coquina shell in that.
There’s nothing that would suggest that scenario.  Going a step further, as I indicated earlier, if this woman—if this guy were trying to hold her down to kill her, if Justin Barber were doing that, she’d be fighting like a wildcat.

She is not going to settle for some little something like this.  There’re going to be bruises on her body.  Her perfect fingernails are going to be scarred and torn.  There is no way in the world that that’s the net result of a struggle with April Barber in the coquina shells while somebody’s tryin’ to hold her down and kill her.

And that’s particularly true if he’s in the water, which I guess is the theory that we’re kind of comin’ around to.  I’m not sure whether it’s supposed to have happened on the beach or happened in the water.  Maybe counsel will tell us.  But that simply does not match up.
And there’s one other thing.  Justin Barber’s been talking about her sliding down that banister or rail, whatever you wanna call it, since the beginning.  There was no way that he could have anticipated the significance of this.

As the government’s explanation on how his wife’s blood got on him.  ‘Cause nobody even knew about it until after he was charged in this case months after.  And yet he told the story he told about her crumpling down the rail as soon as he was asked about it.  So you would have to believe that he anticipated the problem that the government has run into.  And made up some story to account for her having been injured up there at the railing rather than down there on the beach where they say it happened.  Do you understand that?

Now—not surprisingly—not surprisingly counsel—made pretty much light work of—Mr. Barber’s injuries.  They were superficial.  He was released from the hospital, true enough, within a couple of days.  They treated him conservatively.  All they really did was put some antibiotic ointment or something on.  Fix him up that way.  Give him some pain medication.  And then release him from the hospital.

It did turn out that these wounds were superficial.  And the argument therefore goes that because they were superficial that means that he researched them somehow and he knew to shoot himself there and everything would be fine.  And he wouldn’t be seriously hurt.
Well, we’ll talk about this more when we get to the computer thing, but you didn’t see any computerized research on shootin’ yourself in the shoulder or the hand or the other places that he was shot.  But we’ll get to that.  But the testimony and the facts—the facts, again, are just otherwise.  They’re just different from that.

Again, the selective presentation of facts when you listen to the rest of ‘em, it makes it clear that they don’t stand for what they’re being offered for.  That changes it completely.  And the facts to which I am talking speak.

We asked Dr. Tepas, who was the treating physician for this man.  We asked Dr. Sturner, who was our expert that came into the courtroom. 
We talked about these wounds and these injuries.  This one right here, admittedly that’s—you know, yeah, you can break some bones.  You can damage some nerves.  You can do that kind of thing.  But it’s not going to kill you.

This one right here, you’ve got some—you’ve got some veins in there which are significant.  He did fracture his humorous.  And let’s don’t—that’s no small item all by itself.  Most people are not gonna shoot themselves in the humorous and fracture a bone if they can avoid it.
This one over here and this one over here, the testimony from Dr. Tepas and the testimony from Susie Brown, who was the rescue driver that attended to him, is the problem with things like that, you never know where it’s gonna go once it goes inside.  And that is particularly true, according to Susie Brown, with small caliber weapons.

Once they penetrate you don’t know where they’re gonna go.  You don’t know where they’re gonna wind up.  So would you shoot yourself here, would you shoot yourself there, where the vital organs are located.  A vessel is located that if nicked would cause you to die.  Are you going to do that?  Would you do that in an effort to cover up your involvement in a murder. Would you do that?  And the answer is absolutely not.

Does it make sense to you that Dr. Sturner had been doing this for 40 years and 10,000 autopsies and has never seen a scenario, never seen anything—anything remotely like that where somebody’s shot themselves four times.  Let alone four times, in areas that could have proved fatal.  And yet that’s what the government is suggesting to you.

But those are the facts.  It is in fact that thank god it turned out to be a superficial injury or series of injury.  But it is also a fact is he could have just as easily died.  Let me move next to something else.

MR. WILLIS: Can you all see that or had—I got it blocked?  Can you all see it over there?

MR. WILLIS: We had to go through the four dots to get it.  And we do apologize for the four dots on the shirt.  That was—that was—Mr.—Jason was very, very upset with himself for having done that.  It was a mistake.

He was trying to do was—was do this.  Is create this.  Is a dead ringer, a duplicate of the shirt that Justin Barber was wearing that night.  And for the obvious reason of showing you just what we’re showing you here.

MALE VOICE: Can we make that a little clearer?

MR. WILLIS: That’s as good as it’s gonna get?

MALE VOICE: Best I can get you.

MR. WILLIS: All right.  Well, don’t we have some photographs of the same—

MR. WILLIS: I guess you can see that.  I guess you can see that.  You are gonna have photographs that you’re gonna be able to take into the jury room which will be obviously small versions of the same thing so you can examine this yourself.  But for our purposes right now …
This is probably the most obvious one right here.  Right there on the shoulder—you can’t even really capture it because in fact the entrance into the shirt itself is back here.  It’s actually the back side of the shoulder.

So he showed it as being at the top, but it’s actually—that’s misleading in the sense it’s actually further back than that.  As compared to where the entry wound is in the shoulder.  Now I’m gonna be fascinated to see what explanation can be had for that other than the obvious one which is that shirt pulled out of position.  There is no other explanation for that.
That shirt was pulled down at that time that that shot was fired.  Period.  All the stuff about how he was wet and it was a big shirt.  He may have been in a struggle with his wife.  There’s no evidence of any of that.

You know it reaches a point in time where wouldn’t you just think government would say, “You know what?  Maybe we’re wrong.  Maybe we just made a mistake here.”  If there’s one that’s kind of the tipping point, I would suggest to you that probably is it right there.

I don’t think anybody’s gonna suggest that anybody, Justin Barber or anybody else, is so clever, sittin’ down there on the beach, he’s gonna pull his shirt down and then shoot himself like that so later on we stand in a courtroom and say, “Look how that shirt was wrenched out of position.”  Doesn’t it reach a point where you say, “Maybe they’re wrong.”  Maybe it—isn’t it the case that maybe that night and the days after, the totally looked at the fact that he was having an illicit relationship with Shannon Kennedy and the fact that he had an insurance policy which, oh, by the way, they found because he gave them authority to go search his cabinet.
They looked at those two things and they quit lookin’ any place else.  And all that’s happened since then is trying to take the evidence and make it fit into this preconceived theory that Justin Barber is guilty.  There’s nothing wrong with considering him as a suspect.  There’s something very, very wrong with excluding any other possibility from the beginning.  And that is precisely what has happened in this case.

There’s other evidence that Mr.—Jason put together for us.  And—it was very interesting.  It gets a little high tech.  That has to do with this—I keep going to the (unintel) business where the—the first hole, what is clearly the—the beginning point.  Because deposit of this residue.  That hole has deposit.  You can see the rest do not.

And it’s different than the other entries into that shirt.  The other two shots that went into that shirt.  It’s different.  And the reason it’s different is because there is none of this so called articulate, which is this burned or partially burned gunpowder.  Granular gunpowder.  And so as Mr. Jason I hope explained, he decided to do experiments to see what caused that and whether he could reproduce that phenomenon.

And, again, with the idea that this first shot may have gone through this man’s hand.  And as a result, gone into his chest.  That’s what Dr. Sturner believes and that’s what Jason believes.  That it was one shot that did that.  Well, this is around result of experiment.  What he has done is taken the materials that David Warniment (PH) had put together, the pri—precise descriptions that he did.  And concluded that this is how it happens.  It goes through something.

Now, again, there was a—he first said it was a half inch thick—our mistake, but we corrected it.  His mistake, we corrected it.  The bottom line is the tissue is an inch thick.  Justin Barber’s hand is an inch thick.  We recreated it through a material that is recognized in the industry as being a simulant—a simulated tissue, a tissue simulant I guess I should say, that is appropriate to this kind of an experiment.

Now we do tell you, David Warnimet was on the stand.  And I—I had—to say, Mr. Jason correctly has a lot of regard for Mr. Warniment.  And Mr. Warniment did say that he thought this was not the right material to use for this experiment.  And the reason he said that is because he wanted something that closed.

I don’t know—did y’all follow that, ‘cause it gets a little dicey.  The material that Mr. Warniment says you oughta use closes in behind the bullet.  Once it goes through it snaps back.  It’s elastic.

Whereas the material that Mr. Jason used is a plastic kind of thing, so once it opens it stays open.  Well, as Mr. Jason explained, it doesn’t make any difference.  Because the elastic stuff that snaps back, by the time that happens, all the gasses, all of these materials, are lost—and the bullet are long since gone.

So it doesn’t make a bit of difference whether it snaps back or not.  And so it—it’s just as good.  Well, here’s the point.  There was this criticism in Mr. Warniment in anticipation of this experiment being shown and this testimony being given.  But you have not heard anything from anybody, from Mr. Warniment or anybody else, did an experiment that disputed the legitimacy and the accuracy of that.  If there was something wrong with this experiment that would have produced a different result, don’t you think Mr. Warniment would be in this courtroom tellin guess about it?

This is reliable evidence.  It’s reliable not just because Mr. Jason said it’s reliable.  But it’s reliable because nobody came along and said, “No, we did the same thing and we did got a different result.”  And what Mr. Hutton just did, the first one is with a large type of ammunition.  It was with a 22 long rifle.  This is with a 22 short, which is what we think—was involved in this particular case.  He did it two different ways to make sure there was a uniform result and therefore a reliable one.

Let’s talk about the computer.  In February of-- 2002, six months before this—crime, there were two searches that by any standard look odd.  They do.  I mean they just do.
And they look odd when you look back in retrospect, clearly, because you can draw some comparisons to what actually happened in this case, at least in a very partial way.  Let me say the evidence really is not conclusive that he made these searches, but let’s assume, for the sake of argument, that he did.

I mean you recall that the—the fellow that runs I.T. for that company says that there really isn’t a policy against usin’ somebody else’s computer.  You don’t share passwords, but sometimes people do use computers.  But it was his computer.

I mean he—Justin Barber brought it himself down to the office and effectively handed it to the investigator.  So let’s assume that that was his query.  It be—also the case that there were 2200 queries on that computer, according to the government’s own computer expert.  Twenty-two hundred.

I can’t even imagine.  I’m not a computer guy.  So—and I—I read my email and the—maybe a little news in the morning.  But I’m not a—I’m not a query type of guy.  I can’t imagine doing that many queries in a lifetime.

Obviously Justin Barber has active on—is actively on that computer very regularly to produce—think about it.  Twenty-two hundred-- 2200 queries.  That’s a huge amount.

And what the government did was go through that with their selection of keywords to pull out words that they wanted.  Murder, gun, blood, things like that.  So they were already narrowing in on things that might sound suspicious.  And out of that, whatever was produced, the prosecutor and police, in a manner that we’re not privy do, go through that.  And decide those that they wanna present to you.  So obviously they’re gonna pick out that which looks the worst.

So—but what you wind up with is 2200 queries.  Out of 2200 queries you got two that look funny.  Now I’m gonna suggest to you you need to look a little further than that, ‘cause we don’t know what came before that.  There was one February the 14th and there was one February the 20th.

It was strange because the computer expert couldn’t say what intervened.  Just didn’t know.  They—there wasn’t anything between.  So we don’t know whether that computer search occurred after he saw somethin’ on CSI the night before or read something in an article or something else that may have triggered that fertile mind to go there.

But what we also know, what we do know, is that there aren’t any corresponding searches where he has researched shooting yourself in the hand, he has researched shooting yourself in the foot, or researched any other aspect that you could even remotely connect to this case.  So when you look at it from that standpoint, do you really think he’s researching on the computer six months away the—figuring out where he’s gonna shoot himself, I.e. in the chest?

What Mr. Dr. Tepas and Ms. Brown say nobody in their right mind would do because, again, things can get out of hand real easy.  Do you really believe that?  And he wouldn’t research any of the rest of it?  And that’s the only two searches they bring you, with the exception of this other search about Florida divorce, which could have occurred for any reason.

So we don’t have a context.  We’re not sure who the operator is.  And it’s the best they can do out of 2200 searches and it’s six months removed.  And that’s the evidence that they would suggest to you is the beginning point of this terrible crime.

I smile when I see the business about the songs.  Guns and Roses.  The testimony was there were 1695 songs downloaded on that computer.  The very afternoon of April Barber’s death there were 16 songs downloaded on that computer.

We don’t know who did that.  It may have been April Barber.  It may have been Justin Barber.  But there were 16 songs.  There was November Rain.  There was—I’m So Excited.  There are songs that have nothing to do with anything.

And out of 1695 songs on that computer and the 16 that they downloaded that afternoon, they blow up and put on a board for you the lyrics to this song by Guns and Roses.  Now, again, I suspect you can go through any large volume of anything like that and find something, if you wanted to strain credibility.  You could find something from which you could draw a sinister inference.

And it is a fact that he did apparently—apparently delete that the day before the computer was seized by the—or not seized.  He brought the computer to the police.  But it was also clear there has been no testimony that there was a—he knew that was comin’.

There was no indication that he thought or believed that the police were comin’ to get his computer the next day.  It wouldn’t shock me if he found that on his computer and thought, “This isn’t something I want to be here.”  And it is the case, according to their own computer expert, that he believes, although he can’t be certain, there was another Gun and Roses, which we don’t have the lyrics of, that was deleted the same day.

So, again this is a—this is the business that has characterized the case.  You selectively cull facts.  Ignore others that change the total context and change the total meaning and render them meaningless.  And you draw the most sinister possible inference that you can.  And on that, the government bases their case.

That’s why we’re relying on the facts.  That’s why we’re relying on the blood evidence.  That’s why we’re relying on the physical evidence at the scene.  That’s why we’re relying on the medical evidence at the scene.  That’s why we’re relying on the ballistic evidence that was recovered here.  Those are the things that are facts.  Those are the things that a jury can and should follow to a right conclusion.

And you’d be glad to know I’m widin’ up.  I don’t have much more.  Didn’t mean to go this long.  And I’ll do it quickly.  The length of the drive that he took that night.  You may or may not recall, but I asked Detective Cole, “Who cares?”  I didn’t ask it quite that way, but I said, “What difference does it make?  What’s the significance of that?”

Because, again, they’ve been tryin’ to take these things that don’t in and of themselves have anything to do with this case and say, “Oh, that looks odd.”  Or, “That’s inconsistent with what he said.”  And things that don’t have anything to do with anything.

And the best he could do was that he panicked.  And that’s why he drove.  Well, I don’t doubt that he panicked.  I would panic too if my wife had been shot and I’d been shot four times.  I don’t think I’d be in a real good state of mind either.

But what’s it go to do with it?  If in fact he was going to murder his wife and in fact he planned it and started doing it in February, what difference—why wouldn’t he bring a cell phone?  Why wouldn’t he just go to the car and call?  Who cares?

Why wouldn’t he find his wife’s purse, if he could find his wife’s purse, and get that cell phone and call.  Who cares?  What difference does it make?

Counsel said just now in his argument he wanted to separate himself in time and distance from the scene of this crime.  And we now know through the priors that he did that by driving down the highway at an excessive rate of speed 75 miles an hour.  And weaving in and out of traffic with his emergency flashers on.  Now that’s a guy who’s tryin’ to put time and distance between him and a crime scene.

And, again, you didn’t know any of that by the government’s case.  You didn’t know any of that about this flashers and all that.  And so whatever inference and sinister inference could be drawn from those facts, if any, are totally neutralized when you find out he’s runnin’ down the road like that like a crazy man with the flasher on.  Again, the selective presentation of facts while ignoring others that change everything.

And it isn’t that Justin Barber is coming up with some answer to this damning evidence.  It’s when you examine the evidence you see that it never was damning to begin with.  Now we put on evidence regarding—the insurance because I thought that was something that you needed it—to understand better.

Counsel wants to stop at the idea of two million dollars worth of insurance.  It’s a lot of insurance.  But these—these young people were gonna do real well in their lives.  Real well in their lives.  And so we call somebody to say in effect that he would have recommended just exactly that to her under her peculiar circumstances.  You needed to know that—that she is the one that owned that policy.

You needed to know that she is the one that applied for that policy.  You needed to know that by the materials that we put in, not the government, you can see where she was fully interviewed by that policy—for that policy, which is their standard procedure.  You needed to know that she underwent a medical examination, which is standard procedure.

You needed to understand underwriting.  So you can’t just walk in and ask for insurance that doesn’t make sense in your particular case.  They have got to conclude that it is appropriate to your station and money situation and future.  And they did.

And that’s what I showed you to start this whole thing.  Is where they concluded it was a right amount.  It was a fair amount.  And it was what Justin Barber said.  This guy said his company, a conservative one, uses 21 to one-- 21 times your annual salary, as sort of a rule of thumb.

And because she got it early, she didn’t have a cholesterol problem that matured and caused her problems.  Because of that she could get a preferred rate.  A thousand dollars a year for two million dollars worth of insurance.  And at any time during that 20 years she could convert it to whole life.  As Mike Halloran concluded, it was a very good move on her part.
I’ve got to touch briefly on adultery, even though I don’t want to.  I wish it wasn’t here.  This—trial counsel may try to—change things around.  That is what it is.

She was goin’ with another guy.  Living with another guy.  They were doin’ their little thing.  Young men when they get to be 30 years of age and—and they’re doing well, memory is that they start feeling pretty good and pretty foxy about themselves sometimes.  And they do things they shouldn’t and he did.

And he can’t do anything about it now.  But it wasn’t anything more than that.  There was never an expression of love.  There was never a thought we’re gonna be together.  There was nothing.  Shannon Kennedy was 100 percent consistent with what Justin Barber said in his deposition that he testified.

I do wanna touch finally maybe on the K-car.  And I wanna make clear to you—‘cause I think it’s fair that you need to hear, we don’t know whether that K-car carried the murderer or not.  But, importantly, you don’t either.  You don’t have any idea.  You don’t know.

And the reason you don’t know is because nobody pursued it.  They can dress it up any way they want to and try to minimize it any way they want to.  But it won’t fly.  Mr. Cole explained why they didn’t do it as saying he thought these people were confused.

Didn’t know what they were talking about.  Were so unsure.  And he also said that he felt like the way the scenario worked it was such a short period of time that—Barber would have taken too much time to get off the beach and therefore not have enough time to catch up with this K—catch up with the Pryors, if, in fact, they really had been there.  Something like that.
The variable in that timeline is whatever time—if this was the killer, how far—how long before Justin Barber he left the beach.  That’s the variable that you don’t know and we don’t know.  If for any reason that man stayed around and watched to see what Barber was going to do so he might not catch up with him on the walkway.

If he stopped to watch what he gonna do by dragging his wife.  If he paused for a moment because he couldn’t find the walkway out in the dark.  If he waited up there on the roadway because there was traffic coming by and he didn’t want anybody to see?  There’s a hundred different things that could have delayed that man’s departure from the scene so he didn’t leave measurably before Justin Barber.

And if that happened, then this is not only a viable clue, but a vital clue.  Because from this evidence it is a fair and honest conclusion that that car was there when those shots were fired.  Because unlike what Mr. Cole told you, Wesley—Jason Wesley Pryor was pretty certain.  Not positive.

But that night they went back and they told ‘em where this car was parked.  I mean that night they did.  So maybe, you know, four years later I’m not so certain.  But that night they took ‘em right back.  They found where the SUV had been.  It wasn’t a Blazer.  It was a Pathfinder or whatever it was.  An SUV.

But it was exactly there in the parking lot pulled—and just exactly as Mr. Barber said it was.  And they said that’s where that K-car was.  And Mrs. Pryor has been and clearly was the more definite.  Four years later there wasn’t a question in her mind.

We said, “Are you sure that’s where the K-car was?”  “Yes, I was.  It was the K-car.  And then the SUV.  And it was just one right beside the other.  And they weren’t directly across the street, but real close.”  And that matches exactly that scenario.

And absolutely nothing was done.  We called Mr. Bodziak to talk about the possibility of those tire tracks.  And I’m not gonna walk you all the way through that.  But 300 cars is not much to try to sort out and make some sense of and see if you can develop suspects.  For cryin’ out loud, at lest run a criminal history check.

A sex offender check or something to determine if you’ve got any obvious suspects in that group of persons that are registered owners.  That wasn’t even done.  He showed you where you could have narrowed down the tires because they’re dated.

We now know—I didn’t know that before.  We could have narrowed down any possible suspect cars by simply looking at the tires to see if they were manufactured after the date of the murder.  And you could eliminate those.  So there is a skill and a means by which you can—you can pare down the available pool of candidates that was never done.

And the reason it wasn’t done is because the work wasn’t done that night.  And there was no follow up of any description.  Try as they may, they can’t tell you there was follow up.  Be reminded of the testimony of Detective Shaw.  Unfortunately, he had a family emergency and we couldn’t put him on the stand live.

We had to use only a deposition.  We had hoped to do a lot more, frankly.  But the undisputed facts are, from his deposition, they didn’t even put out a BOLO, a Be On The Lookout, until the 19th, which was Monday at 11 o’clock following the Saturday night crime.

So for the first time Monday morning at 11 o’clock they put out a notice to the police department in St. John’s county to be on the lookout for this car.  Now what the heck is that gonna accomplish two days later?  And when of course nothing showed up from that—and, as counsel said, they didn’t see anything suspicious that night.  Of course not.  The man’s supposed to be already gone.

When they don’t do that, the ultimate is they send a letter out to the registered owners and say, “Please call us if your car was down on the beachfront at 11:15 on Saturday night.”  And you can be real sarcastic.  You know you, “P.S. Send me the gun,” or something.  But I mean come on.  That’s your idea of following up on a lead as dramatic as that one?  There is no way to defend that.

It is what it appears to be.  They saw adultery.  They saw insurance.  Justin Barber’s guilty.  We don’t need to see anything else.  It’s just a question of finding the pieces to prove that.
I meant to address it earlier and I’ll do it briefly.  Counsel made some remark about—this panned and chest business.  That maybe one shot.  He said Dr. Sturner couldn’t even do that with one hand.  That’s right.  That’s the point.  That’s the whole point.  The point is if in fact that scenario is correct, and it looked pretty good.  It really does look pretty good.  I mean look at—you can look at the bullet wound and you can look at the bullet wound here.
And you’ve seen the ballistics that we did up there as far as the—the—diffusion of the—the—powder.  Take a look at that.  And the fact that there is blood here, which would conceal, as Mr. Jason made clear, any splatter from that bullet.

And consider if that actually happened the way they believe it happened, this is the scenario you’re dealin’ with.  This wound in the chest is right here, a few inches below the man’s nipple.  This thing would be here like a defensive wound like, as he said, tryin’ to grab the gun.  The gun fires directly into his palm, comes out and enters right here.  Okay?

But what is the significance of that?  If you’re going to believe that Justin Barber shot himself, then you’re gonna have to believe that Justin Barber did something like that.  Okay?  That’s the significance of that.  The significance of that is just what counsel sort of stumbled into.
Dr. Sturner couldn’t do it very well, ‘cause you can’t do it very well.  And nobody’s gonna believe that happened.  We hope.  Any more than they’re gonna believe that this shirt was pulled down by Justin Barber to fake some self inflicted injury.

If this were the premeditated—crime that the government suggests would—the premeditative Justin Barber have had an affair about which he was not making much of a secret in the month before his wife’s death?  If it was the—Mr. Barber was this person that the government suggests, would he talk to the police when he doesn’t have to?  Repeatedly?  And in fact to this day has never declined a police interview.  Never refused to testify.  Never declined at anything.

If it was the premeditated crime the government suggests, would he have downloaded a song like that with those kind of lyrics the afternoon before?  Would he give the police his computer without requiring a search warrant.  Taking it out in the backyard and throw it in the—the creek?

Would he not know the precise number of shots fired if he had been the premeditated designer of this.  Why would he say one?  Why would he give you something that’s just—that they can seize on say, “That sounds funny.”

Why would he drive 10 miles?  Why shoot himself in areas where he could die?  Why drag her up to the boardwalk to be closer to where she could be discovered?  Why not steal something, get rid of the gun, get rid of the jewelry.  Throw her ring in the—the ocean or say, “They took my wife’s diamond ring.”  Why not find the person?  Call the police?  Why not bring his own phone and call the police?

What difference does it make whether he called the police on the scene or 10 miles down the road?  Why would she only be shot once?  And why would she only be shot once in an area where it was almost freakish and fluky (PH) that she died.

We have attempted to focus on the facts in this case because we said from the beginning that the facts are powerful, powerful things.  We have brought you the facts that the government didn’t, both on cross-examination and our case in chief.  And we’re asking you to rely upon them.

We believe that if you will follow those facts, you’ll come to the conclusion, the correct conclusion.  The one that the law will require of you.  And that conclusion will be that this man is not guilty of this crime.  That’s all we have this morning.  Thank you.

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