Kessler Days 5 to 7: The Jury Found the Killing and Refused to Guess at the Plan

Stephanie Crone-Overholts drove down from Erie with most of what she owned packed into laundry baskets in the back of a silver Hyundai. Within a few weeks of arriving in Tampa she was dead, and by the middle of November 2021 pieces of her were coming up out of the water around McKay Bay. For four trial days the State of Florida walked a jury through what happened to her body: the bins going over the rail of the 22nd Street Causeway, the van at the dumpster, a bedroom with a hole cut out of the mattress, a phone that kept going back to the bridge.

Then came the three days that decided the case. On Monday, November 2nd, the lab and the medical examiner put Stephanie's blood in Robert Kessler's bedroom and told the jury how she died. On Tuesday the lawyers closed and the jury went out. On Wednesday afternoon the jury came back, and before the day was over Kessler had been sentenced to life in prison plus fifteen years.

I've been saying since the openings that this case would come down to one word, and the word was premeditation. The State charged Kessler with first-degree premeditated murder and with abuse of a dead human body. The second count was never in real trouble. The first count had three pieces: that Stephanie is dead, that a criminal act of Kessler's caused her death, and that the killing was premeditated, meaning he made a conscious decision to kill before he did it, with enough time to reflect on it. The first two pieces were where the State was strong. The third was where it had almost nothing it could point to directly.

Twelve people in Hillsborough County spent about eleven and a half hours over two days on that third piece. They found Kessler guilty of second-degree murder with a weapon and guilty of abuse of a dead human body. They refused to find the plan. This is how they got there, what the court did along the way, and where I think the judge handed the State something it should have had to earn on its own.

CASE STORY PT 32: THE VERDICT AND THE SENTENCE McKay Bay Jury Convicts Robert Kessler and Stephanie's Family Speaks Before He Gets Life

Seven Hundred Billion to One

Monday opened in the state crime lab. Rachel Gabrielse is a DNA supervisor with the Florida Department of Law Enforcement, and the first thing the State did with her was raise its own problem before the defense could. The blood card the medical examiner made for Stephanie had failed. Her remains had been in the water too long to hold liquid blood. The spleen failed too. A piece of muscle finally gave a complete profile, and that profile stood in for Stephanie in every comparison the lab ran.

Then the results, one item at a time. The swab from the blue kitchen cabinet, the one a crime scene technician had noticed with a flashlight while officers waited by the front door on the night of the first search: Stephanie's blood. The figure Gabrielse gave was more than seven hundred billion times more likely to be hers than an unrelated person's, and she explained that number is a ceiling the lab reports at. The real figure is larger.

CASE STORY PT 20: THE DNA RESULTS DNA Analyst Tells Kessler's McKay Bay Jury Six Items Match Stephanie at 700 Billion to One

The piece cut out of the mattress in Kessler's bedroom was her blood. So was the nightstand in that bedroom. So was the metal transition strip at the bedroom doorway, down through the screw holes into the floor. So was the bed rail. The size-13 shoes found by the back door had her blood on the right toe and on both tongues. The bathroom sink held a mixture of two people, and Stephanie was one of them. One carpet stain belonged to another woman entirely, and Stephanie was excluded from it. The khaki pants, the green recliner, both vehicles and everything the divers brought up from under the bridge gave too little DNA to read.

CLIP: THE MATTRESS CUTTING DNA Analyst Tells Kessler's McKay Bay Jury the Stain on a Mattress Cutting Matched Stephanie CLIP: THE SIZE-13 SHOES DNA Analyst Finds Stephanie's Profile on the Toe and Tongues of Shoes in Kessler's McKay Bay Trial CLIP: THE KITCHEN CABINET FDLE DNA Analyst Matches the Kitchen Cabinet Swab to Stephanie in Kessler's McKay Bay Trial

Maria Dunker, the assistant public defender defending Kessler, gave Gabrielse the cross every defense lawyer gives a DNA analyst, and every answer she got was true. DNA moves. You would expect to find a person's DNA in a home where she was living. The test cannot tell you what kind of cell it came from, how it got where it was found, or when. On the shoes, Gabrielse agreed she could not say which of the stains on the shoe actually held the DNA she reported, because the lab had swabbed them together.

CLIP: ONE SWAB FOR THREE STAINS DNA Analyst Tells Kessler's McKay Bay Jury She Can't Say Which Shoe Stain Held the DNA

That cross was competent, and I don't fault it. But it ran into the geography of the house. Stephanie had been sleeping in the purple room. The child who lived there told the jury that on Day 3. Her blood was not in the purple room's ordinary traces. It was in the screw holes under the threshold of his bedroom, in a mattress that somebody had cut a section out of, on a nightstand beside the bed. "DNA moves" is a good answer to a hair on a couch. It is a weak answer to blood soaked down into the floor of a room she didn't sleep in.

If you want the analyst's whole time on the stand, start to finish, it's here:

FULL TESTIMONY: RACHEL GABRIELSE, FDLE DNA ANALYST Rachel Gabrielse: Full Testimony, the DNA Analyst in Robert Kessler's McKay Bay Trial

The Detective Who Chose the Easier Test

After the lab, the State used two detectives to close its gaps. The first was Anton Lipski, a Tampa detective who worked surveillance video. He drove the route the State cares about, from the gymnastics plaza where Kessler took the child that Friday evening back to the house, and put it at about six or seven miles and roughly fifteen minutes. Hold onto that number. The prosecutor would later ask the jury to watch that drive in slow motion.

FULL TESTIMONY: DETECTIVE ANTON LIPSKI Anton Lipski: Full Testimony, McKay Bay Surveillance Detective Maps Kessler's Drive Home

Then the lead detective, Matthew Kirkpatrick, came back. He is the detective who released the heart tattoo to the media, went through the trash at the curb, and found the dental bill with Stephanie's name on it. On Monday he filled in what the State still needed, including the reason nothing from Stephanie's trunk was sent for testing. He had gone over the circular saw in her trunk with a light and seen nothing worth sending. No cutting tool was ever sent to the medical examiner to compare against the cuts on the body.

On cross, Dunker took him to the identification. Days after the bins went over the rail, a fisherman who had been on the water under that bridge was shown one photograph, a single picture of Kessler, and asked if that was the man. Dunker had Kirkpatrick explain what a photo pack is: usually six photographs of different people, shown one at a time. Then she asked him why police use one instead of a single photo of the suspect.

So why not here? His answer, in substance, was that he doubted the witnesses could pick anyone out of a photo pack. A week had gone by. They had been on the water, looking up at a man on a bridge. Asked whether that was the reason, he said yes: a photo pack would be "a little harder for them to pick someone out of."

Read that again. The lead detective told the jury he used the single photograph because he didn't think his witnesses could pass the fairer test. That is backwards. A single-photo showing is the thing the six-photo array exists to prevent, because one face shown alone tells the witness who the police think it is. If your witness can't pick the man out of six, that is information about the identification, and it is information the single photo hides.

CLIP: NO LINEUP, ONE PHOTO Lead Detective Tells McKay Bay Jury Why Fishermen Saw Only Kessler's Photo and Never a Lineup

Did it matter in this trial? Honestly, not much, and the reason is worth saying plainly. By Monday, identity was barely contested. The phone records had put Kessler's phone on that bridge four times in four days. Dunker's own defense had become a fight over what kind of killing this was, not over who was on the bridge. But I want it on the record anyway, because the next case where a single photo is the whole identification is coming, and "the witness couldn't have passed a real lineup" should never be heard as a reason to skip one.

CASE STORY PT 21: THE LEAD DETECTIVE McKay Bay Lead Detective Says He Could Not See Kessler's Cabinet From the Green Chair FULL TESTIMONY: DETECTIVE MATTHEW KIRKPATRICK Matthew Kirkpatrick: Full Testimony, McKay Bay Lead Detective Asked Why There Was No Photo Lineup

Over the lunch break Dunker moved for a mistrial, her fourth of the trial. The prosecutor had asked Kirkpatrick about his testimony to the grand jury that indicted Kessler, and her argument was that the jury had just been invited to give weight to the fact that a grand jury had already found the case strong enough to charge. The judge denied it, pointing out the jury had been told a charging document is not evidence. I think that ruling is defensible. It is also preserved, which is exactly what Dunker was doing: building a record for the appeal she knew was coming.

CLIP: THE FOURTH MISTRIAL MOTION Kessler's Lawyer Calls for a Mistrial Over the McKay Bay Detective's Grand Jury Testimony

A Motion Nobody Gave the Judge

Something else happened on Monday outside the jury's presence that deserves more attention than it got. The judge learned, minutes before he came out to the bench, that Kessler had filed a written motion before trial asking to represent himself. Nobody had put it in front of him. His words on the record: "I literally just heard about this about 12 minutes ago before I came out here."

Kessler had made the same request out loud on the first morning of trial, and the judge had handled it then with a full inquiry into whether he understood what he'd be giving up. So the defendant was not denied the hearing he was owed. But the judge was clear about what had gone wrong: "All motions obviously should have been brought to the court, especially in a case like this. I should have been told that right when it got filed." His staff attorney had only just learned of it, he said, through the computer system.

CASE STORY PT 23: THE MOTION THE JUDGE NEVER SAW McKay Bay Judge Says He Should Have Been Told of Robert Kessler's Bid to Represent Himself

I give the judge credit for putting that on the record himself rather than letting it sit. That is what a judge should do. But stop and think about what it means. A man charged with first-degree murder, facing life, files a handwritten motion asking to take over his own defense, and the system that is supposed to carry that paper to the judge loses it. The oral request saved this one. The next defendant may not think to say it out loud.

Kessler, for his part, spent most of this trial out of the room. He watched from the jail by video by his own choice for the early days, and on Monday he picked the holding cell over his own trial again. That is his right, and the judge asked him about it every time. His victim's family would have something to say about it on Wednesday.

CLIP: THE HOLDING CELL McKay Bay Defendant Robert Kessler Picks the Holding Cell Over His Own Murder Trial

Four Wounds, and Four Questions

The testimony the whole case had been waiting on came after lunch. Dr. Ashley Perkins, the deputy chief medical examiner, went through Stephanie's remains piece by piece, and I'll spare you most of the detail. The legs had been cut above the knee with something that left a serrated edge in the skin, and the thigh bones were chopped and splintered. The lower torso had been cut through the waist. In places the marks ran straight, which suggested a second tool or a blade that snagged. At every cut she had opened the muscle looking for the bleeding into tissue that only happens in a living body. She found none. Every one of those cuts was made after death.

Then she came to the right hand. A clean cut at the base of the thumb, and more along the inside of the fingers, the place where a hand closes around a blade. She called them most consistent with defensive wounds, a woman trying to stop a knife.

CLIP: THE CUTS ON HER HAND Medical Examiner Tells Kessler's McKay Bay Jury Stephanie's Palm Cuts Fit Defensive Wounds

Then the upper torso. The neck had been cut through at the fifth vertebra, and everything above it was never recovered. In what remained she found four stab wounds to the neck, two on the right and two on the left. One went through the jugular vein and into the windpipe. Another went into the windpipe. Below them the tissue was stained dark where blood had run down while the heart was still beating. On this she had no doubt: Stephanie was alive when she was stabbed in the neck.

CLIP: THE FOUR NECK WOUNDS Medical Examiner Tells Kessler's McKay Bay Jury Four Stab Wounds to Stephanie's Neck Were Fatal

Her cause of death: "Homicidal violence, including stab wounds to neck." She used the broader phrase, she explained, because she didn't have the head or the rest of the neck, so she couldn't rule out other injuries. The manner of death was homicide. She estimated the dismemberment itself would have taken hours.

CLIP: THE CAUSE OF DEATH Medical Examiner Calls Stephanie's Death Homicidal Violence for Kessler's McKay Bay Jury

Near the end of direct the State asked her a question the jury had no way to place yet: could four grams of fentanyl, taken at once, kill a person? Yes. That answer was groundwork for an argument the State hadn't made yet, and I'll come back to it, because it turned into the one ruling in this trial I would fight about.

Dunker's cross was short, and in my opinion it was the best stretch of lawyering anyone did in this courtroom. She went first at the word "homicide." Did it just mean an injury caused by another person? Yes. Did the cause and manner of death have any significance to the charge of first-degree murder? "No." Her finding of homicide did not mean first-degree premeditated murder: "It is simply a vital statistics characterization." Then she asked four questions, and the answers are the verdict in miniature:

And then one more: the knife that made the neck wounds was a different instrument from whatever cut the body apart, with no serrated edge. That was the defense's whole theory of count one, delivered through the State's own doctor in about eighty seconds. Premeditation is a decision to kill made before the act, with time to reflect. The only physical evidence of the act itself was four wounds, and the only person qualified to read them told the jury she could not say anything about the time between them.

CLIP: HOMICIDE IS NOT FIRST-DEGREE MURDER McKay Bay Medical Examiner Says No When Kessler's Lawyer Asks if Homicide Means First-Degree Murder CASE STORY PT 22: THE MEDICAL EXAMINER Medical Examiner Tells Kessler's McKay Bay Jury Stephanie Was Alive for the Neck Wounds FULL TESTIMONY: DR. ASHLEY PERKINS, MEDICAL EXAMINER Dr. Ashley Perkins: Full Testimony, the McKay Bay Medical Examiner on Four Neck Wounds

"Motions Denied," and a Thousand Percent

The State rested at about 3:37 on Monday afternoon. With the jury out, Dunker moved for a judgment of acquittal on count one, and only on premeditation. That motion asks the judge one narrow question: taking all the evidence in the light most favorable to the State, could any rational juror find every element proved? It is not the judge deciding whether he believes the State. It is the judge deciding whether the jury is even allowed to.

Her argument was clean. Premeditation is usually shown through something like a confession, something that reveals the state of mind before the killing. Here, "if anything, the evidence shows that... the killing occurred during heated arguments between the defendant and the victim." An argument loud enough that the child heard it from outside, after Stephanie threatened to burn the house down. "We don't know the circumstances under which the [killing] occurred, how long it took, whether there was time between the inflicted wounds." And everything the State had about consciousness of guilt, she said, fit second-degree murder just as well.

Scott Harmon, the lead prosecutor, answered with the number and nature of the wounds, the child pulled out of gymnastics early, the drive of about six miles and fifteen minutes, and the child told to stay in the van, which he called keeping "the only eyewitness" outside the house. He was careful to say the State was not basing premeditation solely on the dismemberment, but that it was evidence of "malevolent intent."

The judge's ruling was two words. "Motions denied."

Under the standard, I think that was right. At that stage the judge is not asking whether this jury will find a plan. He is asking whether a rational juror could, reading every inference the State's way. Four wounds to the neck, a child left in a car, a drive home: a rational juror could build premeditation out of that. Whether one should is a different question, and it was the jury's.

Then the judge put to Kessler the last decision of the trial that belonged to him alone. "There is no one on this earth that can stop you from testifying except yourself." If he took the stand, the State could ask whether he had ever been convicted of a felony and how many times. The answer was twenty-three. The jury would hear the number, and nothing about what the convictions were. Kessler said he understood and did not want to testify, and the judge asked one more time. He was, he said, a thousand percent sure.

CLIP: HE WON'T TESTIFY McKay Bay Defendant Robert Kessler Tells the Judge He Won't Testify as the State Cites 23 Felonies

The defense rested without calling a witness, and the jury went home with the evidence closed. They would never hear Kessler's account of that Friday night. Monday's full day is in the No Breaks edition, and the short version is Top Moments:

NO BREAKS: DAY 5, THE FULL DAY IN COURT McKay Bay Trial Day 5, No Breaks Edition: Medical Examiner, State Rests TOP MOMENTS: DAY 5 McKay Bay: Kessler Trial Day 5 Top Moments / A Mattress Stain, Four Stab Wounds and the State Rests

The Instruction the Judge Had Never Heard Of

Here is where I part company with the court.

Before a jury deliberates, the judge reads it the law: the elements of each charge, the burden of proof, how to weigh evidence. Florida has standard instructions for nearly everything. When a party wants something outside the standard set, it asks for a special instruction, and the judge decides whether to give it.

The State asked for one on attempted suicide. The evidence it rested on came in on Day 4: police found Kessler slumped behind the wheel of a rental car in a Walmart lot, engine running, barely breathing, and gave him Narcan on body camera. Dunker herself had used the word "overdose" on cross, in my view to get in front of the word the State wanted. Now the State wanted the judge to tell the jury what that night meant. The proposed language, as read in court:

The judge held it overnight because he had never seen it. His words Tuesday morning: "This is the first time I've heard of suicide being in that category, at least that I heard of." He asked the prosecutor whether he was a thousand percent sure he wanted to go there. The State came back with two older Florida decisions it said had approved the idea in homicide investigations.

Dunker came back with the Florida Supreme Court decision that took the old flight instruction out of Florida trials, and she read its reasoning into the record: "We can think of no valid policy reason why a trial judge should be permitted to comment on evidence of flight as opposed to any other evidence adduced at trial." She pointed out that the same opinion lists attempted suicide as one of the many forms that kind of evidence can take.

The State's answer was that this was not flight standing alone. Kessler had made statements about what he intended, arranged care and money for the child, and taken four grams of fentanyl because he was under investigation for a murder. The judge ruled: "I'm gonna allow the instruction over the defense objection."

CASE STORY PT 24: THE INSTRUCTION, OVER OBJECTION McKay Bay Judge Gives Kessler's Jury a Consciousness of Guilt Instruction Over Objection

I think that was a mistake, and I want to explain why in plain terms, because this is the kind of thing that never makes the headlines and can matter more than any witness.

The State was always free to argue the overdose. Every bit of that evidence was in front of the jury. A prosecutor can stand up and say a man who tries to end his life when the police close in is a man who knows what he did. That's argument, and the defense gets to answer it. The fight was never over whether the jury could consider the overdose. It was over whether the judge would put his own voice behind one piece of the State's evidence and tell the jury it was a circumstance "from which guilt may be inferred." A judge's words carry a weight no lawyer's do. That is exactly the reasoning Dunker read from the flight decision, and Florida's standard instructions are built on it: the court does not single out one category of evidence and comment on it.

And look at what the instruction actually reaches. Consciousness of guilt tells you a man knew he was in trouble for something. It cannot tell you whether a killing was planned or happened in a fight. On the only question this jury actually had to struggle with, premeditation, the instruction had nothing to offer, except the judge's own voice saying "guilt."

The same morning the judge did something else he said he had never done. The State asked him to read the jury its instructions before the closing arguments, not after. "In all my history of both being a public defender, being a prosecutor, being a judge for 40 years, I've never been asked to do that." The defense said it didn't care either way, and he agreed. I don't think reading the law first is wrong in itself; some trial divisions do it, and a jury that knows the law before the arguments may follow them better. But put the two rulings together and watch what happened next.

Before Tuesday morning was over, two more instructions were settled that would matter. The defense asked that heat of passion be added to both murder instructions, and the State agreed. That paragraph tells the jury it cannot find first-degree murder if it has a reasonable doubt about whether the killing happened in the heat of passion, a sudden provocation that would make an ordinary person lose control. And the sexual-abuse language came out of count two, because there was no evidence of it. That was a fair fight, fairly resolved, and both sides deserve credit for it.

"It Stinks of Guilt"

The judge read the jury its instructions, the special one included. Then Scott Harmon stood up for the State's closing.

He started in the van. A girl of about seven, told to stay in the car, hearing two voices from inside the house. Then the bay, and the word he kept coming back to was corroboration: two fishermen who didn't know each other telling the same story, at the hours the phone records put Kessler's phone on the bridge. Then the overdose, and the instruction the jury had just heard from the bench. Harmon read it back to them himself, and then:

CASE STORY PT 25: THE STATE'S CLOSING State Closes by Telling Kessler's McKay Bay Jury His Fentanyl Overdose 'Stinks of Guilt'

That is a prosecutor using a jury instruction as a sword, minutes after the judge read it. The jury had just heard the court say attempted suicide is a circumstance from which guilt may be inferred. Now it heard the State say there is "no stronger statement that he's guilty." The judge had said, in the middle of the reading, that no instruction is more important than another. I'm not sure a jury hears that sentence over "it drips of guilt."

Harmon then walked the house, and this part of his closing was strong because it was anchored in the lab. A swipe of Stephanie's blood the size of a hand under the kitchen counter. Blood low across a doorway threshold, where a man cleaning up in a hurry would miss it. Three layers of carpet laid loose on top of each other in the purple room, with blood under all of them. Her blood up the wall behind the baseboard. Beside the nightstand, a large transfer stain and above it fine spatter, the kind a saw throws. That wall, he told them, is where her body was cut apart. Then the glowing footprint in the hallway, the swipe by the back door, the trail out toward the chicken pen.

He saved most of premeditation for his rebuttal and previewed it: four wounds aimed at the part of the body that kills fastest, the child pulled out of gymnastics early, the fifteen-minute drive home.

Flood or Drought

Maria Dunker closed for about twenty minutes, and she started with a word Harmon had used in his opening statement. He had promised the jury a flood of evidence. She agreed it was a flood, and almost all of it was about what happened after Stephanie died.

"You're not here to assume, you're not here to guess, you're not here to fill in the blanks." She split the State's burden into two questions, who did it and what crime it was, and she made a decision I respect: she did not insult the jury on the first one. She told them plainly that cutting up a body is abuse of a dead human body. She asked them to give the fishermen their weight on count two and almost none on premeditation.

Then she read the definition of premeditation and said there were really only two places in the whole trial that spoke to it at all: the child and the doctor. The child gave them a demand and a threat to burn their things, a girl told to wait in the car while he went in to deal with it, two voices yelling, and no idea how long it lasted. The doctor gave them four wounds and a cut hand and could not tell them the order, the time, or whether there was any pause. Everything else came after. The overdose came after warrants, searches and a towed van, when a man knew an arrest was close.

Then the line she had been building toward since her first words on Day 1. If the girl's account shows anything, it shows second-degree murder: a killing in an argument, over an unknown span of time, while a child sat outside.

Harmon had the last word, and he spent it on the neck. Four separate times, he told the jury, the knife went in, came out, and went in again. Each one was a fresh decision, aimed at the vital structures of the throat. That, he said, is reflection. The cuts on her palm and fingers meant she grabbed the blade, and he fought her for it and kept driving it at the same target. The mattress was cut out because that was where she was killed, on the bed. He walked back through the hours before: the three hundred messages that day, the trips to the gym, the decision to leave the child in the van, a knife that had to be picked up from somewhere, and the drive itself, step by step, the car seat, the key, the stoplights, the turn. Every one, he said, was a moment to decide not to.

And then he conceded the thing I'd been waiting for someone to say out loud. On what Kessler did to the body afterward:

Depraved mind is the language of second-degree murder, not first. Harmon walked the jury down the ladder for argument's sake, second-degree as a stab to the throat with a depraved mind, manslaughter as a punch and a fall, and told them the only true verdict was first-degree. But the prosecutor had just agreed, in his own rebuttal, that the most horrifying evidence in the case could not carry premeditation by itself.

CASE STORY PT 26: THE DEFENSE CLOSE AND THE STATE'S REBUTTAL Flood or Drought? Kessler's McKay Bay Jury Hears the Final Closings on Premeditation

"Up From Innocence, or Down From First?"

The jury went out at 12:13 on Tuesday, with lunch. Three hours later the courtroom got three notes, all signed by the same juror, juror number nine.

The first asked for a transcript of the girl's testimony. The second quoted the heat-of-passion paragraph and asked whether all five of its lettered conditions had to be true. The third, as the judge read it aloud: "Are we working our way up from innocent? Are we working our way down from first?"

CLIP: THE HEAT OF PASSION QUESTION Kessler's McKay Bay Jury Asks if All Five Heat of Passion Points Must Be True

Three hours in, that jury was standing exactly on the line the closings had fought over. You don't ask how heat of passion works, or which direction you're supposed to reason in, if all twelve of you are already settled on a plan. At least one juror was not sold.

The lawyers agreed on the answers, and this is how it should be done. All five conditions must exist to find heat of passion. A written transcript would take about a week, so the girl's testimony would be played back. On the third question the judge did the careful thing: he did not tell them which way to work, he read them the presumption of innocence and the verdict instruction again in full, reminding them they already had it.

CASE STORY PT 27: THE JURY'S QUESTIONS Judge Lets Kessler's Deliberating McKay Bay Jury Hear the Girl Who Called Him Dad Again

Then the judge caught something. Nobody had asked Kessler whether he wanted to be there for this, and he was in the building. The judge had him brought out. For the first time since he picked this jury, Robert Kessler chose to stay in the courtroom, in his jail clothes, beside his lawyer, a few feet from the jurors, while the girl he raised told them again that she thought of him as her dad, that she had to stay in the car, that she heard a man and a woman yelling, and that he told her Stephanie was sleeping.

CASE STORY PT 28: THE REPLAY, WITH KESSLER IN THE ROOM Kessler Comes Out in Jail Clothes to Hear the Testimony His McKay Bay Jury Asked For

The jury went back out a little after four. Before six the judge offered them dinner, no dinner, or home. They took one more hour. Just after seven the foreperson came back: they had not reached a decision, and they wanted to go home.

That is not a deadlock, and I want to be precise about it. A deadlock is a jury telling the court it cannot agree. This jury said only that it had not agreed yet. Tuesday's full day, closings to the last note, is in the Day 6 No Breaks edition, which goes live tonight:

NO BREAKS: DAY 6 (LIVE SAT 11/7, 9:00 PM ET) McKay Bay Trial Day 6, No Breaks Edition: Closing Arguments, Deliberations Begin

An Allen Charge on the Desk

Wednesday morning the judge asked Kessler whether he wanted to stay in the room while the jury worked. Yes. Then, before the jurors came out, the judge said something to the lawyers I did not expect to hear. "As a bonus of caution, I'm not trying to wish anyone bad luck," he wanted the Allen charge printed and ready. "We don't need it right this moment, but we may be needing it later on."

An Allen charge is the instruction a judge reads to a jury that reports it cannot reach a verdict. It asks the jurors to go back and re-examine their views with an open mind, without giving up an honest conviction just to reach a verdict. Having it on the desk is prudent. Reading it is where the danger lives, because the juror who hears "keep trying" most loudly is usually the one holding out. Nothing in the record showed this jury was split, and the judge framed it as caution. He never had to read it.

CASE STORY PT 29: THE SECOND MORNING Judge Readies an Allen Charge as Kessler's McKay Bay Jury Resumes Deliberations

The jury went back in at about 9:20. Just before eleven a note came out asking for a break outside. The judge sent them out as a group with two bailiffs and a plain warning not to deliberate on the way. At noon he brought Kessler out again and offered him the holding cell, and this time Kessler chose to wait in court. The jury took lunch at the table and kept working.

CASE STORY PT 30: THE BREAK Judge Sends Kessler's McKay Bay Jury on Break Together With a Bailiff and No Deliberating CASE STORY PT 31: THROUGH LUNCH Kessler Chooses to Wait in Court as His McKay Bay Jury Keeps Deliberating Through Lunch

Second Degree, With a Weapon

At about three in the afternoon the jury sent word. The judge explained that in his courtroom the jury does not read its own verdict, and asked one juror, by number only, whether they had reached one. Juror number nine said yes. The clerk read it.

On count one, the defendant is guilty of murder in the second degree, a lesser included offense. Did he personally carry, display, use or attempt to use a weapon? Yes. On count two, guilty of abuse of a dead human body as charged.

The clerk polled them one by one, by number, one through twelve. Every one said yes.

CLIP: THE VERDICT McKay Bay Jury Finds Robert Kessler Guilty of Second-Degree Murder on the Lesser Charge

Lay that verdict over the charges and you can see exactly where the jury drew its line. On count one, Stephanie is dead: proved, never fought. A criminal act of Kessler's caused her death: proved, and by the end the defense didn't argue otherwise. Her blood in his bedroom four ways, on his shoes, on the kitchen cabinet; his phone on the bridge; the last message between their phones at 9:32 that Friday with both phones at the house; the child's night; the stripped room. Premeditation: not proved. The jury refused to infer a decision nobody saw from four wounds a doctor could not order or time, a child told to wait in a car, and a fifteen-minute drive.

In my opinion they got count one exactly where the evidence put it. A man pulls his kid out of gymnastics early to deal with a woman who is threatening to burn his things, goes inside, and has a screaming fight in her room. That is the shape of a killing in a fight. It can still be murder, and the jury said it was. What it isn't, on this record, is a plan. The weapon finding was a yes, and the weapon was a knife. Count two was proved several ways over, and the defense said so in its own closing.

I'll say it the way I always say it, because it matters here more than most places. That verdict is not "justice." Justice is the process, and the process here did what it is supposed to do on the hardest question in the case: the State proved what it could prove, asked the jury to fill in what it couldn't, and the jury said no.

Three Victims and a Cheesesteak

There was no sentencing date, because there didn't need to be one. As soon as the jurors were gone, the judge adjudicated Kessler guilty of both crimes and asked whether there was any legal reason he couldn't be sentenced right then. Neither side had one. The State only needed a corrected scoresheet for the verdict the jury had actually returned.

Before he heard from the family, the judge apologized to Stephanie's mother "on behalf of the system that it took so long for you to get justice." He had had the case about six months, he said, and set it for trial the moment he learned how old it was. Then he moved the family's position at the lectern so they could be seen and heard as well as possible.

Susan George, Stephanie's mother, read her statement. Her daughter was "violently murdered and her remains thrown away like garbage." To the arguments that had been made about Kessler's constitutional rights: "If anyone's rights were violated, it was my daughter, Stephanie Ann's right to continue to live." She told the judge what she says to a six-year-old granddaughter who looks at Grandma Stephanie's photo and asks how she died: that "her grandma's heart had stopped." She said her daughter's one fault was trusting the wrong people, because she thought everyone had some good in them. She asked that Kessler spend the rest of his life in prison, and told him he needed to find God.

Stephanie's son Sean came up from the Montgomery, Alabama area with his wife and read from his phone. His anger was not at the prosecutors or the judge. It was at five years of delay over Kessler's competency, and at a trial the defendant "wasn't even required to be here for the majority of." "You're 74 years old. You've already spent roughly 26 years of your life incarcerated for a variety of other crimes... How many chances does someone like you get?" He asked that age not become a reason for mercy. When he finished, the judge asked him to put the phone down and tell him his best memory of his mother, and he talked about playing soccer growing up, and about her playing with her grandkids.

I want to be careful with this part, because those statements were the most human moments of the trial and they deserve to be heard on their own terms. Their frustration with five years of delay is real, and the judge himself apologized for it. Watch it in their words:

CLIP: THE SENTENCE McKay Bay Judge Sentences Robert Kessler to Life Plus 15 Years After He Mouths Off in Court

The scoresheet put the bottom of the sentencing range at 308 months. Second-degree murder with a weapon carries up to life, and abuse of a dead human body up to fifteen years. Harmon asked for both maximums, consecutive, arguing the dismemberment was "a separate evil" from the killing. Dunker called no witnesses and asked for a sentence within the scoresheet, noting that at Kessler's age virtually any sentence is a life sentence.

Then the judge turned to Kessler and asked how he was doing. "A lot better than you are." The judge told him he'd been given plenty of chances to speak, and now he was going to listen.

What followed was the judge naming three victims: Stephanie; her mother, who had to sit in a courtroom and watch her daughter's leg bobbing in the water on a screen; and the girl, now twelve and living out of state, who he said was sleeping about ten feet from where the body was cut apart. He said in forty years as a public defender, a prosecutor and a judge he had never heard of anything like it. He wondered aloud how a man with twenty-three felony convictions was on the street, and how such a man ended up responsible for a child. Then the sentence: life in prison on count one, and fifteen years in state prison on count two, to run after the life sentence. Kessler has thirty days to appeal.

And then, as Kessler was about to be taken out, the judge brought up a cheesesteak. During jury selection Kessler had offered to plead guilty in exchange for one. The judge told him that was rude and inappropriate, that this was a serious matter, and wished him good luck getting a cheesesteak in a Florida state prison.

Most of what the judge said at sentencing is a judge's to say, and plenty of people watching will think Kessler earned every word of it. But there is one sentence I want to put a question mark next to. Describing the night Stephanie died, the judge said Kessler played "the nice old grandpa" card to bring her home, and then "decided to kill her in a horrible, horrible way."

Decided. That is the one thing the jury, less than an hour earlier, after eleven and a half hours, had said the State did not prove. A sentencing judge can consider a lot of things a jury never decides, and I am not saying the sentence is wrong; life was within the law for second-degree murder with a weapon, and Kessler was always going to die in prison. But when a jury has drawn its line exactly at the decision to kill, I'd want the court's own words to respect that line, especially on the record an appeals court will read. The verdict said a killing in an unknown span, with no proof of a plan. The sentencing said a decision. Those two sentences should not have to sit next to each other.

NO BREAKS: DAY 7, VERDICT, FAMILY, SENTENCE McKay Bay Trial Day 7, No Breaks Edition: Verdict, Victim's Family, Sentence TOP MOMENTS: DAY 7 McKay Bay: Kessler Trial Day 7 Top Moments / A Guilty Verdict, a Family Speaks and Life Plus 15

What the Degree Did

On the process, here is where I come out.

The search ruling from before trial survives, in my opinion, and Dunker preserved it at every exhibit with the same four words, "same objection, prior litigation," so an appeals court can see she never let it go. The four mistrial motions were rightly denied and they are preserved. The jury's three questions were answered by agreement, with Kessler in the room, and that is how it should be done. The judgment of acquittal motion was correctly sent to the jury, and the jury did the work the judge's ruling left for it.

The single-photo identification was a shortcut I'd fight in any case where identity was really in play. The lost motion to represent himself was a failure of the system, caught and put on the record by the judge himself. And the attempted-suicide instruction should never have been read. While first-degree murder was on the table, it was the strongest issue in this case for an appeal: a judge putting his own voice behind one piece of the State's evidence, over a decision from the state's highest court telling judges not to do that, and a prosecutor turning it into "it drips of guilt" within minutes.

The jury took most of the air out of that issue itself. It convicted Kessler of exactly what the defense said the evidence showed. On the appeal that's coming, that instruction is where I'd look first, and I don't think it changes anything.

The sentence means the degree made no practical difference to where Robert Kessler spends the rest of his life. Life plus fifteen is life. What the degree did was keep the State honest. It is easy to look at what was done to Stephanie's body afterward and let the horror of it fill in the part nobody saw. The prosecutor told the jury that was not enough on its own. The medical examiner told them she could not say how long it took. Twelve people listened to both of them and held the line.

I talked through all seven days of this trial, from the water on Day 2 to the handcuffs on Day 7, in my verdict reflection:

JUSTICE'S VERDICT REFLECTION McKay Bay Verdict: Why Kessler's Jury Said Second-Degree Murder and Refused to Guess at a Plan

Stephanie Crone-Overholts came to Tampa with her life in the back of a Hyundai and trusted the wrong man with a place to stay. Her mother waited five years to say her name in a courtroom, and she said it over and over on Wednesday because, in her words, "her story needs to be kept alive." A girl who sat in a car in the dark that night is twelve now, and out of the state. I hope she carries less of this than any of us.

Now I want to hear from you. If you'd been in that box, where would you have landed on count one: second-degree, the way this jury went, or the plan the State said was in the drive home? And should a judge ever tell a jury that a suicide attempt is evidence of guilt? Tell me in the comments.