Dateline   |  October 25, 2013

'Under a Halloween Moon' part 5

The Defense takes apart the prosecutor's timeline: the bus was there.

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This content comes from Closed Captioning that was broadcast along with this program.

>>> all the evidence will show --

>> narrator: travis stay's defense team faced a difficult task. prosecutors have portrayed their client as a two-faced killer who changed personalities after he had a few drinks in him and who in a blind rage had mercilessly beat joel liveling to death. in the defense 's opening statement, attorney peter wohl said this was just impossible.

>> the beaten, drunken, small, stumbling travis stay was not capable of inflicting the multiple brutal injuries.

>> wohl along with joel freedberg defended travis . their argument to the jury, travis stay was too slight, too drunk and too decent to have killed joel loveling who was trying to help travis . and joel was killed by the same costumed party goers he was trying to protect travis from. first travis 's legal team had to address the image prosecutors had crafted. was he in fact a cold blooded killer prone to chock rages. the prosecution's here by which is also the police theory was that travis became a different person when he was drinking.

>> they made that up out of nowhere. if they had a witness that said that was travis 's history, if they could provide anecdotal history that that had happened once before, twice before, we never saw it, we never heard it.

>> and you couldn't find a witness that said that?

>> nobody even sniffed at that. they just made it up because it was clear to the jury that this was a nice young man.

>> so we know --

>> he's si ee's sitting unprotected in front of cops for hours, without any help, without any pause, without any break and baring his soul to them.

>> what were you? it's very important that we try to remember this, travis .

>> i do not know what you're talking about. do you guys think it was me?

>> we don't know.

>> he was credible. he leaned across there in the second interview and said you think it was me? we have to be, you know, as honest as we can about it.

>> narrator: next the defense tried to convince jurors just how improbable it was that the 5'7" travis could have hurt the 6'3" joel at all, let alone when he was knee walking drunk.

>> we read the autopsy and its gave the inches and pounds of the deceased. he outweighed him by 75, 80 pounds, was seven or eight inches bigger, then it started to take on a different color. so the defense offered some evidence of its own, that posse of costumed guys on the bus.

>> mob mentalities are a recipe for tragedy.

>> you think the other people were covering up their own involvement in this?

>> i do.

>> what do you think happened that night?

>> i think that the cowboy, the gangster and the construction worker came back outside and confronted joel and i. you know, they didn't get back on the bus and leave us standing in the parking lot . i think that, you know --

>> narrator: the defense team tried to prove that. they conducted a withering cross-examination of the man who was wearing the cowboy costume that night. the cowboy admitted he had lied to police the night of the murder about not witnessing the fight between travis and the man in the hunter's costume. the defense wanted to know what else he might be lying about.

>> what is it that we can look for that will help us determine when you're telling the truth?

>> i don't know.

>> well, if you don't know, who does?

>> i don't -- .

>> narrator: the lawyer's strategy was to hammer away at the party goer's shifting stories. under cross-examination, that crying clown, who cops found weeping and said things had gotten out of hand that night now said on the stand, he didn't remember crying or being upset.

>> were you shaken up? did you remember that?

>> i don't remember that.

>> can we look at your shoes as well?

>> and as for that blood the detective witnessed on travis 's shoes, dna tests proved it was travis 's not joels. the defense introduced testimony suggesting travis might have gotten joel 's blood on himself when he was trying to help joel , not hurt him.

>> it appears somewhat evident in the photos.

>> narrator: an er doctor who took the stand indicated that travis 's hands would have been mo more --

>> consistent or inconsistent with having delivered the blows that did that damage?

>> that would be inconsistent.

>> narrator: prosecutors had argued that the party bus along with all those theoretical suspects in it, was long gone at the time of joel 's murder. but the defense counters that the broken drum 's security tape proves just the opposite. on that same tape was something important that police and prosecutors apparently missed. the clown. everyone agrees the clown was on the bus when it left. but here he is, still in the bar after joel leaves. which means, as long as is clown was in the bar, the bus was still in the parking lot .

>> you can see joel leave the bar?

>> absolutely.

>> and you can see the clown leave the bar?

>> no doubt.

>> 3 1/2 minutes later?

>> right.

>> plenty of time for any of the people in that crowd to have confronted and attacked joel ?

>> and beknow the cowboy, the gangster, the construction worker had already gone out. and the bus was still there.

>> in court, the lead detective was forced to concede the police timeline was 234r5ued. -- flawed.

>> we know that they have 3 1/2 minutes to do that, have this face-off, and be back on the bus, right?

>> right.

>> narrator: 3 1/2 minutes, plenty of time for people other than travis stay to murder joel . travis never took the stand, leaving open the question of what the jury would make of his amnesia during the most important hour in his young life . you had lost your memory before?

>> right?

>> because of alcohol?

>> every time you went out and g got drunk.

>> i didn't drink every time i went out, but when i did, i drank hard.

>> what's the worst thing you ever did when you were drunk and didn't remember.

>> certainly nothing violent?

>> anybody ever tell you that your personality changed when you were drunk income.

>> my friends described me as more of a happy go lucky .

>> happy go lucky or a heartless murder. seven men and five women would soon decide.