Kessler Day 4: "It Was Believed" and the Phone on the McKay Bay Bridge

Stephanie Crone-Overholts came to Tampa from Erie for a fresh start. Within days of her last text to her mother, pieces of her were coming up out of McKay Bay. Four days into the trial of the man she lived with, Robert Lee Kessler, 74, legally blind and choosing to stay at the jail rather than sit in the courtroom, the jury in Hillsborough County heard the sentence every murder trial is waiting for: a police detective telling them Kessler had said, on the phone, that he knew he had a charge "because he chopped up a body and dumped it into the bay."

About thirty minutes later, on cross-examination, the same detective agreed that his own written report puts it differently. In the report, Kessler said "it was believed."

That is the day. Three words in a police report, and everything that hangs on them. Friday was the State's biggest day of evidence so far: a former neighbor who stood in a bank line with Kessler and asked him straight out whether he did it, a crime scene technician who walked the jury through a house that glowed under Bluestar from the back bedroom to the back door, two officers and a body camera at a Walmart where Kessler was found barely breathing, and a cell phone analyst who put Kessler's phone on the 22nd Street Causeway bridge four times in four days. By the end of it, I think the State has come a long way on one of its two counts. On the other one, the count that carries a life sentence, it has still not shown the jury the one thing the law requires, and Friday's biggest sentence may not be what it sounded like.

Kessler is presumed innocent. He is charged with two crimes: first-degree premeditated murder of Stephanie Crone-Overholts, and abuse of a dead human body. Those are two different questions with two different sets of proof, and Friday made that difference plainer than any day yet.

"Chopped up a body," or "it was believed"

The detective's name is Andrew Trotter. In November 2021 he was a plainclothes officer on a Tampa Police street anti-crime squad, the unit that works out of unmarked cars and finds people. On the afternoon of Monday, November 22, 2021, his squad was given one job: find Robert Kessler. Trotter met the other officers in a parking lot at Bearss Avenue and 30th Street and called Kessler on his city phone.

A man answered and said he was Robert Kessler. Trotter told him who he was and that police wanted to meet him, without the child there. This is how Trotter told it to the jury on direct examination: "he said that he knew what this was about, and he stated that he knew that he had a charge because he chopped up a body and dumped it into the bay."

If you stop there, that is a confession, said out loud to a police officer by the man on trial. It confesses to the second count, the body. The murder count is a separate question.

Maria Dunker, the assistant public defender, did not stop there. Her cross-examination was a handful of questions and it was aimed at one word. Wasn't it true, she asked, that what he actually said was that it was believed he chopped up a body and dumped it in the bay? "It was believed as far as my report," Trotter answered. "So he said it was believed," she said. "Yes, ma'am." She sat down. There was no redirect.

Read the two versions side by side, because the jury is going to have to.

Version one: Kessler says he knows he has a charge because he chopped up a body and dumped it in the bay. That is a man telling a police officer what he did.

Version two: Kessler says he knows he has a charge because it is believed he chopped up a body and dumped it in the bay. That is a man telling a police officer what the police think he did. He knew there was a warrant. He knew what it was for. He had been watched at a dumpster three days earlier and his house had been searched. Knowing what you are accused of is not admitting it.

The law lets the State put a defendant's own words in front of the jury, and the jury decides what the words mean. Fine. But here is my problem with the first version, and it is a fair one to raise off the record as it stood Friday. The detective wrote a report. Reports are written close to the event, before anyone is preparing for trial, and that is exactly why lawyers use them. His report says "it was believed." On the stand, five years later, with the prosecutor asking the questions, the qualifier dropped out of his memory. He did not fight the cross. He agreed with it.

So which one does the jury get to rely on? Both are in evidence now, and the detective himself has told them the written version is the narrower one. If the State stands up in closing on Tuesday and tells this jury that Robert Kessler told police he chopped up a body, I think that misstates what the witness finally said, and I would expect Ms. Dunker on her feet. If there is a recording of that call, nobody mentioned one on Friday. A recording would settle it in ten seconds. The fact that we are arguing over a report's three words tells me there may not be one.

And even if a juror takes the strongest version, look at what it is about. It is about the body and the bay. It says nothing about how Stephanie died, or whether anyone planned it. The defense told this jury in opening that even if they are convinced he cut her up and put her in the bay, that does not make it premeditated murder. Trotter's call, in either version, lives entirely inside the second count.

CASE STORY PT 17: THE NEIGHBOR, THE BANK AND THE PHONE CALL Kessler's McKay Bay Neighbor Says He Put Her on His Bank Account Before Police Boxed Him In

The neighbor in the teller line

The first witness of the morning was Jaclyn Anders. In 2021 she was 23 and lived three houses down from Kessler on East 148th Avenue in Lutz. Her little boy, about seven, and the girl Kessler was raising played together all the time. She was clear that she was not Kessler's friend. Small talk at drop-offs and pickups, nothing more.

Her part of the story starts the night of November 19 into the 20th, the night police searched the house. Her ex-boyfriend's family, still living on the street, called her late to say there were police all over Kessler's place. She went because she was worried about the girl. When she got there, his dark blue minivan was being towed. Kessler walked out and handed her his wallet, his keys and the child.

Over the next days she helped him. She drove him and the girl to a hotel on Bush Boulevard. She went with him to his bank, Grow Financial, where, at his request, her name was added to his checking account. Whose idea was that, the prosecutor asked. Kessler's. He told her why: he was giving her what she would need to take care of the girl if something happened to him. They found a power of attorney form at a library, for custody and the girl's affairs, and got it notarized. She ran him back to the house for clothes.

Then the line that matters. By the time they were standing in that bank, she knew about the human remains in the water. So she asked him. "I said, did you do this?" His answer, she told the jury, she was not clear on: "something along the lines of there's no evidence or something along those lines." On a leading follow-up from the State, she agreed it was something like, they're not going to find evidence. She also agreed he had told her he was afraid of being charged with murder.

Then the prosecutor took her back further, to Friday, November 12, the day after the first remains came out of the bay. She was out playing pool and had been drinking. Kessler called, frantic, wanting her to come get the girl right away. She said no. He muttered some things, she said, something about a murder investigation, and hung up. She fixed the date from her camera roll.

Weigh those two statements honestly, both ways, because they cut both ways.

For the State: a man asked "did you do this" who answers with evidence instead of "no" sounds like a man thinking about what can be proved. And a man talking about a murder investigation on November 12, before anyone had put his name to one in public, sounds like a man who knew where the remains came from.

For the defense: "I'm not clear" is her own phrase about her own memory of the bank line, and the sharper version came out of a leading question that she adopted with one word. The November 12 call came on a night she told the jury herself she had been drinking, and the words were "muttered." And a man who knows the police think he killed someone, and knows he is the obvious suspect, might say exactly "there's no evidence" because he believes there is none.

Where I come down: the bank line is real consciousness-of-guilt evidence, and I think a jury will hold it against him. Innocent people asked that question tend to answer it. But it is guilty knowledge of something, not proof of a plan. Nothing Ms. Anders said tells this jury how Stephanie died.

Then came a ruling I want to put a question to. On cross, Ms. Dunker asked whether the girl had any other caretaker. "Her mother," Anders said, and the State asked to approach. Outside the jury, the jury heard none of this: Anders said the girl's mother had died about three months before all of it, and she knew that only from Kessler. The State argued the subject was irrelevant and would invite the jurors to wonder whether something had happened to the mother too. The defense wanted the jury to understand why a man in his sixties was raising a seven-year-old alone. The judge found it not relevant and told Ms. Dunker to move on.

I understand the State's worry. A jury that hears "her mother died" in a dismemberment trial can let its imagination run, and that would be unfair to Kessler. But look at what it costs him to keep it out. The State's picture of those days is a man arranging his escape: bank accounts, power of attorney, cash, a rental car. The defense's picture is a single father, the only parent that little girl had left, getting her affairs in order because he knew he was about to be arrested. The death of the girl's mother three months earlier is the fact that makes the defense's picture make sense. The defense did get part of it in another way, that Kessler was the girl's primary and, by November 2021, only caretaker. Is that enough? I think a juror who heard "her only caretaker" without hearing why is left to guess, and guessing is exactly what the ruling was meant to prevent. The judge had discretion here and used it. I am not sure it landed in the fairer place.

Ms. Dunker's real points on cross were simple, and they were the right ones. There was a lot of police activity that first night, which is why Anders went. Kessler had no van anymore, which is why she drove him and why he rented a car. On redirect Anders agreed she went that first night only because she was worried about the girl. Then she was called back for one forgotten question and identified State's Exhibit E as Robert Kessler.

Monday, November 22: the rental, the frantic call and the Walmart

Anders carried the jury through the day of the arrest too. On Monday, November 22, Kessler called wanting his wallet and card back so he could rent a car. She met him at a rental agency on Florida Avenue. He rented a black Hyundai with out-of-state tags. That afternoon, while she was Christmas shopping at Brandon Mall, he called again, "very frantic": come get the girl right now, he was going to be arrested at his home.

That call is the same afternoon as Trotter's. Trotter's ended at about 4:37. Kessler had agreed to meet police at his house at 5:30, in a black rental with Texas tags, after dropping off his daughter. Trotter and a second officer were at the house by 5:10. At 5:30, no Kessler. At 5:35 Trotter called and got no answer. At 5:40 a small black car came down the street fast, and it was Anders. In Trotter's words she "immediately stated he's not showing up, he's on the run."

From there it reads like a procedural. The officers followed Anders to a house on East Robson Street in Seminole Heights, where a man she did not know walked the girl and the family dog out to her car and handed her about $2,000 in cash and Kessler's wallet. She took the girl to an ice cream shop where a child protective investigator was waiting, sat with her to keep her calm, and handed the cash over to police. She never saw the girl again. Her family still has the dog.

She led the officers to the rental agency, an Avis at Florida Avenue and 109th, closed for the night. Rental cars carry GPS, Trotter explained, and the company gave police a location: the Walmart parking lot at Fletcher Avenue and Bruce B. Downs, by the University of South Florida.

The car was there, engine running, lights on, Kessler alone in the driver's seat. The squad boxed it in, a car on each side and one behind. Guns drawn, lights on him, loudspeaker commands over and over. Kessler did not move. He was slumped back, head tilted, chest barely rising. The doors were locked. Trotter broke the passenger window with an expandable baton. When a second officer pulled Kessler from the seat, Trotter said he "was still very, very tense and hard to grab," then went to the ground and did not react at all. They cuffed him, then took the cuffs off to help him, rolled him into the recovery position, and an officer gave him Narcan. Fire rescue took him to Tampa General.

The jury saw that scene three ways. Trotter described it. Trotter narrated five still photographs of it. Then Corporal Scott Seely, from the same squad, identified those stills as coming from his own body camera, and the State played the body camera video itself, with sound. On the screen an officer says, "He doesn't even know we're here." The loudspeaker calls Kessler by his first name, again and again. Seely told the jury he was the one who gave the Narcan, into both nostrils, because Kessler's breathing was shallow, sporadic and agonal and his pulse was very weak.

The word the defense chose

Here is a part of the day that will matter a great deal on Monday, and almost nobody watching would have noticed it.

On Thursday the judge granted a motion in limine, a ruling made before evidence comes in, barring the State from offering evidence about Kessler and drugs. All Friday, you could hear the State working to stay inside that line. The Narcan, the prosecutor put it to Trotter, was given in an abundance of caution. No drug was named. The inventory search of the car found no contraband. The State never once called it an overdose.

The defense did. Ms. Dunker's cross of Seely was four questions long. One of them established that the still photographs added nothing to the video. Another summed up his whole testimony in her own words: when he arrived, Kessler appeared to be "in the midst of an overdose." Correct, said Seely.

Why would the defense say the word its own motion kept the State from saying? I can see the reason. The State's story of that evening is flight: he promised to meet police at 5:30, sent the girl away with cash, and was found in a rented car miles from home. An overdose is the defense's other story. A man in despair, or a man incapacitated, is not a man running. It explains the missed meeting without guilt.

About an hour later, after the jury went home, the judge asked both sides whether they expected any special jury instructions, anything outside the standard book. The State said there might be one: on attempted suicide, as evidence of consciousness of guilt. The State says it has case law for it.

So the defense opened a door on Friday afternoon, and before court adjourned the State was signaling it would walk through it. That fight is coming at Monday's charge conference, where the judge and the lawyers settle the instructions, and it is a real fight. What evidence is there that this was an attempt at anything? No drug is in evidence, because the limine keeps drugs out. No note. No statement. An officer's description of agonal breathing and a dose of Narcan is evidence that a man was in medical trouble. Turning that into an instruction that tells the jury it may treat the night as a man who knew what he had done is a big step. Florida courts are generally careful about instructions that single out one piece of evidence and tell the jury how it may be used. If the judge gives it, I think the defense will have a serious argument that the court commented on the evidence. If the judge refuses it, the State can still argue the inference in closing.

And either way, the defense's own word will be quoted back to it. That is the cost of choosing a word.

A house under the light

The middle of Friday belonged to Kristen Cruz, a Tampa Police crime scene technician for just over ten years. In 2021 she worked under a different last name, so her reports in this case carry that one. She was called to the house on East 148th Avenue in the early hours of November 20, 2021, after the second, broader search warrant was signed, to photograph, process and collect.

Before she said anything about what she found, she said something about who decides what gets tested. The detective does. The technician photographs and collects; the detective has the final say on what is collected and what is sent to the lab. Remember that, because every question about what was never tested in this house is a question for Detective Kirkpatrick, who comes back to the stand on Monday.

The State moved her photographs in, and Ms. Dunker objected on the ground of the defense's earlier motion. That is the suppression fight, the defense's challenge to the first entry into the house, which the court denied before trial. She made that objection item after item all day, and the judge overruled it item after item. It keeps the issue alive for an appeal. It also, as we will see, confused the jury.

What I respect about the way the State put Cruz on is that it did not oversell. Before going inside, the prosecutor had her confirm that she knew another technician and other officers had already been in the house. That is the first entry, the one Kerrie Calderaro described Thursday, and it is the defense's question all week: what was disturbed before the full search? The State asked it first. In the bathroom there was a towel over the tub with something red on it. Did it look like possible blood to her? No, she said. A technician who says no to a red towel is more believable when she says yes to something else.

Then the markers, one by one, each with a photograph of the spot and a photograph of the test. The test is phenolphthalein, the presumptive test the jury has heard about all week: a swab turns pink if there may be blood. Marker one, below the front steps outside: negative. Marker two, outside: negative. Marker three, inside the front door: negative. Three red-looking spots at the way in and out of the house, and none of them reacted.

Marker four was a red stain on the side of a kitchen cabinet, low, just off the front foyer. The swab turned pink. On Thursday, Calderaro told the jury that on the first entry she saw a stain on the kitchen cabinets that looked to her like blood. This appears to be that stain, now with a positive test behind it.

CLIP: THE KITCHEN CABINET Forensics Tech Tells Kessler's McKay Bay Jury the Kitchen Cabinet Stain Tested Positive for Blood

Then the living room where it meets the kitchen, looking toward the bedrooms. Marker eight, a reddish-brown spot on the floor: positive. Marker nine, on the wall that leads into the hallway: positive. Marker ten, a green recliner, under the arm lever: positive, and they cut that section out of the chair. Put Thursday and Friday together and the presumptive positives inside the house now run kitchen table, kitchen cabinet, living room floor, hallway wall, recliner.

Then the southeast bedroom, the room the girl told the jury on Thursday was Kessler's. A red spot at the threshold, by the edge of the carpet: positive. A wooden strip standing in for a baseboard, with more red on it. And when they rolled back the gray carpet, they found the carpet underneath already cut away in places, down to the bare floor. Cruz was clear: that was how they found it, not something her team did. Then the bed. When she pulled back the sheet there was a section already cut out of the mattress. Under Bluestar, the chemical that makes cleaned-up blood glow in the dark, it lit up around the cut-out and on the floor beside the bed.

CASE STORY PT 18: THE HOUSE (LIVE SAT OCT 31, 6:10 PM ET) Crime Scene Tech Tells Kessler's McKay Bay Jury the Carpet Was Already Cut to the Floor

The girl told the jury on Thursday that within days of the night she heard yelling, the room was stripped. What Cruz found on November 20 is what was left: a mattress with a hole cut in it, a carpet with pieces cut out, and the spots around them reacting. I think that is the strongest evidence of a cleanup this jury has seen. Someone in that house was cutting out the parts of that room that would hold blood.

And then the Bluestar walk-through, the picture the State wanted the jury to carry to lunch. With the furniture moved out of that bedroom, the carpet underneath glowed at the foot of the wall where the head of the bed had been, and every layer underneath glowed too: the gray, the brown, the tan at the bottom. Then the photographs followed the glow out of the room and through the house: the kitchen near the back door, the steps down toward the chicken pen, the hall from the bedroom toward the kitchen, the foyer, the floors. Last, the hall bathroom next to that bedroom. The prosecutor pointed to a patch on the floor and asked whether it looked consistent with a human foot. Yes, sir. And the sink glowed, inside and around it.

Marker twelve was a pair of shoes on the floor by the back door, U.S. size 13. They were never swabbed. They went through Bluestar, and they reacted. Markers thirteen and fourteen were two blue sandals, both of them lefts, one in the foyer and one on the shoe rack. On Wednesday Corporal Pelletier told the jury there were two sandals with the stained carpet he watched Kessler leave at a dumpster. On Thursday the first technician found a shoe in the house matching the dumpster sandal. Two left sandals in the house, and their right halves out with the carpet: that is the picture the State is building. In the primary bedroom, a pair of khaki pants with red, as she put it, all over the front. Positive.

What the light does not say

Now the other side of the same testimony, because the State brought most of it out itself.

Every one of those results is presumptive. A pink swab means possible blood. It does not mean human blood, and it does not mean Stephanie's. Bluestar is a screening test, and the prosecutor asked Cruz, before Ms. Dunker could, whether it can react to other substances. "And we understand the blue star process may react to other substances as well?" Yes, sir. The best known of those other substances include bleach and some cleaning products. Think about that in a case where the State says the house was cleaned. A floor that glows fits a floor where blood was cleaned up. It also fits a floor that was cleaned with bleach, of anything. The glow by itself cannot tell you which. Only the lab can, and the lab is Monday.

Then the saws. Marker six was a circular saw on a shelf by the back door. In the cabinet next to the shoes was a hand saw. The prosecutor asked the question himself: both saws were treated with Bluestar. Was there any reaction on either? No, sir.

Think about the case this is. A woman's body was taken apart. The jury has now seen three saws in this investigation: a circular saw in the trunk of the Elantra on Thursday, which nobody tested, and two saws from the house, which were tested and came back with nothing. The State does not have to prove what tool was used. But it has now shown the jury two candidates that did not react, and one that was never checked. Why was the trunk saw not tested? That is a fair question for Monday, and it goes to the detective, because Cruz told us he decides.

The same goes for the gaps inside her own work. One spot above the bedroom light switch was swabbed, and asked whether she ran the presumptive test, she said she did not recall. The red on the wooden baseboard strip was never presumptively tested at all; the strip was collected. The size 13 shoes went straight to Bluestar with no swab. Nobody told the jury whose shoes they were, or whose sandals, or whose khakis. The "human foot" in the bathroom is a technician's description of a shape, not a footprint comparison. Nobody said whose foot, or what size.

And the defense asked Cruz nothing. Not one question.

I go back and forth on that. There is a smart version of that choice: every positive she gave was her own word "presumptive," the State had already conceded the false positives, and the defense saves its fire for the DNA analyst on Monday, which is where "presumptive" either becomes "human blood, hers" or does not. Cross-examining a careful technician can just let her repeat the worst parts. But there is a cost. The jury went to lunch having watched a house light up, and came back to a "human foot" and a cut mattress that no one on Kessler's side ever touched. Ms. Dunker is a careful lawyer and she has been good this week. On Friday I think the silence was a strategy. Whether it was the right one depends entirely on what the lab says Monday.

The van

After lunch, Cruz finished with the place the house and the bay connect: Kessler's blue Dodge Caravan, the minivan Anders watched being towed. Cruz processed it at the police impound lot on November 20. Calderaro's evidence seals were on the doors, all intact. The inside panel of the driver's door was already off when they started. In the back, two plastic bins, a faded pink one and a light blue one, Sterilite, like the bins and lids at the house. On the front passenger floor, press-on fingernails. And on the rear sliding door on the driver's side, a spot that Cruz and a second technician swabbed: positive.

The van photographs came in with no objection at all, because the van was searched under its own warrant, outside the suppression fight. On Wednesday a fisherman in a canoe told this jury he saw a man drop containers off the bridge, and that the vehicle was a Dodge Caravan. Bins like the ones from the water, in the van like the one on the bridge, with a positive presumptive test on the door. It is still presumptive, and the fingernails mean something only if someone ties them to Stephanie. But that is the State's physical bridge from the house to the bay, and it is a strong one.

CASE STORY PT 12 (DAY 2): THE VAN AT THE DUMPSTER Officer Tells McKay Bay Jury He Watched Kessler's Van Stop at a Dumpster Through Binoculars

What the jurors wanted to know

When court came back from lunch, the judge found two notes from jurors on the bench. Neither was about the evidence.

The first asked what "sustained" and "overruled" mean. The second asked what it means when the State offers something, the defense says "same objection" to "prior litigation," and the judge says overruled and lets it in.

Stop on that second note for a second. Twelve people and their alternates have now listened to Ms. Dunker make that same standing objection over and over for two days, and they want to know what is going on. What is going on is that before trial the defense asked the court to throw out the evidence from the house, challenging the first entry, made on a warrant for a phone, and the broader warrant that followed from what officers saw that night. The court said no. The defense keeps objecting so that an appeals court can look at it later.

The jury is not allowed to know any of that, and there is a good reason. If jurors are told a judge already looked at this evidence and found it lawful, some of them will hear that as the court vouching for it. So the judge, with both sides agreeing, reread only the standard instruction on objections: lawyers have a duty to object when they think it proper, jurors should not guess why, and when an objection is sustained they must not guess what the answer would have been. Then the judge put it in plain words for them, roughly: sustained means I'm stopping it, overruled means it continues. On the "prior litigation" note, nothing more. Both sides said they were satisfied.

That was the right call, and it was the defense's own interest at work. But notice what the jurors were telling us. They are paying close attention to the fights they are not allowed to see. That is a jury taking its job seriously, and it is also a reminder that the biggest legal question about this house, whether police were lawfully inside it the first time, was decided before these twelve people were ever seated. They will never hear it argued. If there is an appeal, it will be about that.

Before the jury came in, two other things happened that they also did not hear. The State asked whether the defense would agree that the remains are Stephanie Crone-Overholts. No. Ms. Dunker said Kessler declined when they discussed it on Tuesday. So the State has to prove who she was with its own witnesses on Monday. And the judge told Kessler, on the jail video, that he will be brought to the courtroom in person on Monday, morning and afternoon, "for legal reasons." When court ended, the judge said the reason out loud: it is his right to testify. Only Kessler can decide whether he takes the stand. A careful judge takes that decision from him face to face.

A phone on the bridge

The last witness of the week was the one the State promised on Thursday. Detective Sergeant Gregory Van Heyst has been with Tampa Police nearly 27 years. For five and a half of them he supervised the homicide squad and did the department's phone-record work. Detective Kirkpatrick got T-Mobile's records for two phones by warrant and asked him to analyze them: Robert Kessler's, and Stephanie Crone-Overholts's.

He spent his first minutes teaching. The records do not say where a phone was. They say which tower it talked to, which of the tower's three sides, and, in what are called timing advance records, T-Mobile's own estimate of how far from the tower the phone was. The phone writes those records by itself, whether or not anyone touches it. On his maps that becomes a wedge from a tower with an arc across it at the estimated distance: the phone was somewhere along that arc. Where arcs from several records, and several towers, cross, you get a place. One caution about the clock: T-Mobile keeps time in universal time, so every entry had to be converted to Eastern, and daylight saving time ended at 1 a.m. on November 7, 2021, right in the middle of the week that matters.

Then he took the jury to Friday, November 5, 2021, the evening of Stephanie's last contact with anyone.

Between 6 and 7 p.m., both phones were at the house. Then, at 7:00, Kessler's phone started to move. Over the next 21 minutes the arcs walked north until several landed at or near Angels Gymnastics, the plaza with the dumpster where, two weeks later, Corporal Pelletier watched Kessler leave a rolled-up carpet. And it did not happen once. House to the plaza, 7:00 to 7:21. Back, 7:21 to 7:44. To the plaza again, 7:44 to 8:15. Back, 8:16 to 8:27. Out a third time, 8:28 to 9:07. Home for good by 9:16, where it sat, every arc crossing over the house, until midnight. If he had to go find that phone, Van Heyst said, he would draw a square about two blocks wide around 148th Avenue.

CLIP: THE PLAZA AND BACK Cell Records Detective Maps Kessler's Phone to Angels Gymnastics and Back Twice for McKay Bay Jury

Then the call log between the two of them. On November 5 alone, "I believe there's over 300" contacts, he said, mostly texts, completed calls and messages back and forth all day. Were there any completed calls or texts between them after November 5 at about 9:32 p.m.? "No." At 9:32 both phones were at the house. His had come back from the plaza sixteen minutes earlier.

Hold that time, because it does something the State may not have intended. If Stephanie's phone was still trading messages with Kessler's until 9:32, then the three trips to the plaza between 7:00 and 9:16 happened before the last message. Whatever those trips were, the State's own timeline makes it hard to say they were carrying her. Maybe they were errands. Maybe they were something else. Nobody in the courtroom said, and on this record nobody knows what any of those 300 messages said.

Now Stephanie's phone. From 7 to about 11 that night, it was mostly at the house, with one exception: between about 8:30 and 9, it moved a little south toward Fletcher Avenue, during the same stretch Kessler's phone was driving north to the plaza. Then, at 11:08 p.m., her phone moved again, from a few blocks west of the house south and southwest, and by 11:15 it was just below Lake Magdalene near I-275. And there it stayed, in one area south of Fletcher, from 11:16 that Friday night until 7:53 on the morning of Tuesday, November 9. Three and a half days in one place. Then it stopped reporting, the sign of a phone powered off or dying, and it never gave T-Mobile a location again.

Where was Kessler's phone at 11:08 that night? At the house. It sat there from 9:16 to midnight.

That is the most important thing Van Heyst said all afternoon, and it cuts in both directions, so I want to be careful with it. On its face, it means that when Stephanie's phone left the house for the last time, Kessler's did not. Two phones going in different directions at the same time means two people carrying them, or one phone left behind. If Stephanie was alive and drove away at 11:08, that is the beginning of the defense's whole case. If she was not, somebody carried her phone out of that house and left it sitting for three days near the interstate. Either way, the State has to tell the jury who moved that phone. Van Heyst cannot. The phone is not the person.

Sunday, Tuesday, Wednesday: the bridge

Then the days after.

Sunday, November 7, the day the clocks went back. Kessler's phone was at the house from 7:46 that morning until about 11, so many records that the plotted lines turned into a black triangle on the slide. At 11:04 it began to move, west and then south, and by 11:23 it was by the Port of Tampa. Twenty minutes, about the speed of a car; in Van Heyst's opinion it was in a vehicle. From 11:24 to 11:39 the arcs crowded together at the port. The prosecutor asked the question she would ask the rest of the afternoon: if you had to go find that phone in those fifteen minutes, where would you look? He drew a box where the arcs crossed. It was the 22nd Street Causeway bridge.

On Day 1 the fisherman Reynaldo Pecina told this jury about heavy splashes off that bridge, early in the afternoon, on a day with football on.

The phone went home, and at 2:07 it went south again. From 2:46 to 2:51 it was back at the bridge. Then home by 3:19. Then, from 3:26 to 3:38, about six blocks west of the house, right around the Pep Boys on Bearss Avenue. On Day 2 Detective Celaya told the jury that Stephanie's car was found in the Save-A-Lot lot across from that Pep Boys, and the State said in opening that video shows a tall man with white hair parking it there about 3:30 that Sunday. The video could not show his face. The phone fills in what the video could not.

Tuesday, November 9. From 6:09 p.m. the phone left the house, went south, and from 7:00 to at least 7:10 it was at the port and the bridge. "I would go to this bridge," Van Heyst said. That is the evening and the place where Lazaro Castro, paddling his canoe, watched a man drop bins off the bridge at dusk. Wednesday, November 10, one more trip: from the house straight south, and from 8:48 to 9:10 that morning, the bridge and the port.

CASE STORY PT 19: THE PHONES (LIVE SAT OCT 31, 7:10 PM ET) McKay Bay Detective Maps Kessler's Phone to the Causeway Bridge as Stephanie's Goes Quiet

Four visits to the same bridge in four days, at the times two eyewitnesses describe, with the victim's car dropped six blocks from the house in between. For the second count, abuse of a dead human body, that is a lot. The State's identity case on that count used to rest on two fishermen who were each shown one photograph of Kessler, and we have questioned that on this channel all week. It no longer rests there. Now it rests on the phone at the bridge, the van like Castro's, the card in the hoodie the divers found under the bridge, the dumpster, and the house. The one-photo identification matters a lot less once the phone is on the bridge.

The phone is not the person

Ms. Dunker had a bad cold on Friday and she did not attack a single map. Her cross went to what the records cannot do, and it was clean.

The call logs show messages going both ways, but nobody knows who was holding either phone; the names come from the subscriber records. The maps came from feeding T-Mobile's records into a program called CellHawk. Timing advance records are not created by the user; the phone writes them on its own. How T-Mobile turns those records into a distance is its own formula, and each carrier does it differently. Each estimated location carries a low, medium or high confidence grade, and Van Heyst plotted all of them, low included. Concrete walls, steel buildings, water, a weak signal or a crowded area can all throw the distance off. And the last question, the one the cross was built to reach: can these records tell us that a person was personally using or holding the phone? "No."

On redirect the State shored up the method. Van Heyst has used CellHawk for more than ten years, the FBI uses it, it is widely accepted, and what he trusts is not one record but the place where thousands of them cross.

Here is what the cross did not do. It did not ask about the 11:08 trip, when her phone left the house and his stayed. It did not ask about the 8:30 trip south while his went north. It did not ask what his phone did on the days the State did not show, November 1 through 4 and 11 through 16. If Kessler's phone went to the port on ordinary days too, the bridge trips lose a lot of their force, and the State showed the jury November 5 through 10 out of sixteen days of records. It did not ask about the content of those 300 messages, which could show an argument or could show the opposite.

That is a defense choice, and a common one. You do not give an expert the chance to explain the one fact that helps you; you save it for closing, where he cannot answer. I think it is a reasonable choice here. But it means the jury heard no explanation at all for the bridge trips, innocent or otherwise, and closing argument is not evidence.

Where four days leave the two counts

"Guess what? We're done for the day," the judge told the jurors at about 3:30. Right on schedule. The plan: the evidence finishes Monday, closing arguments Tuesday morning, and the jury gets the case around lunchtime Tuesday. Election Day. The judge reminded them the clocks change this weekend, and warned them, with a little extra care because there may be coverage, to turn it off if the case comes on.

So here is where I think the State stands, count by count, going into the last day of evidence.

Count 2, abuse of a dead human body. The State has to prove that Stephanie Crone-Overholts was dead, that her body was mutilated or otherwise grossly abused, and that Kessler is the one who did it. The first two have never really been in dispute in front of this jury, though Kessler's refusal to stipulate to who she was means the State still has to prove it on Monday. On the third, after Friday, I think the State has built a strong circumstantial case: the bridge, four times; the car; the van; the bins; the cut carpet and mattress; the dumpster; and a phone call in which, at the very least, Kessler told police he knew what he was suspected of. That is my opinion, and the lab could still change the picture. The jury decides it, not me.

Count 1, first-degree premeditated murder. The State has to prove that Stephanie is dead, that Kessler caused her death, and that he did it after consciously deciding to kill, with enough time to reflect on that decision. Friday gave the State a lot on the first two in a circumstantial way: the last message at about 9:32 with both phones in the house, then silence between two people who had traded 300 messages that day; blood reactions in the kitchen, the living room and his bedroom; a cleanup. A juror can infer from that she died in that house that night. But look at what is not there. Nothing Friday said a word about how she died. Nothing said a word about a plan. Blood in a kitchen and a bedroom fits a fight as well as a plan, and the defense told this jury in opening that its question is premeditation. The "it was believed" phone call is about the body, not the killing. The bank line is about evidence, not intent. Even the State's planned instruction on the Walmart would be about consciousness of guilt after the fact, which tells you nothing about what was in a man's mind before.

The medical examiner, Dr. Ashley Perkins, was moved to Monday. She is the State's last real chance to put premeditation in front of this jury, through the wounds the State described in opening. If the State has it, Monday is when it has to show it. If not, I expect the defense to ask the judge for a judgment of acquittal on the premeditation element at the close of the State's case, and the jury will be instructed on lesser charges, second-degree murder and manslaughter, whether or not the judge grants it.

Monday also brings Kessler into the courtroom in person for the first time since he chose to stay at the jail, to be asked whether he wants to testify. Then the DNA analyst, the medical examiner, and Detective Kirkpatrick back on the stand for the rest of his testimony. Then the charge conference, and the fight over that suicide instruction.

Four days in, the State has proved a great deal about what happened to Stephanie Crone-Overholts after she died. The question this trial was always going to come down to is the one it has barely touched: what happened before. And on Friday, the closest thing to a confession this jury has heard came with three words attached that the detective who heard it wrote down himself. "It was believed." Those words still matter for the State. They are a long way from what the jury heard the first time he told it.

We will be watching Monday. The whole Case Story run, every Part in order, is in the McKay Bay Case Story playlist, and the day's biggest moments are in the Day 4 Top Moments.

DAY 4 TOP MOMENTS (LIVE SAT OCT 31, 6:40 PM ET) McKay Bay: Kessler Trial Day 4 Top Moments / A Phone Call, a Bluestar Glow and the Bridge