What Were the 11 Failures That Forced a Judge to Dismiss Aaron Spencer’s Murder Case?

**Tony Brueski** (0:01)
This is Hidden Killers Live with Tony Brueski and Robin Green.

**Tony Brueski** (0:09)
I was hoping we'd have a show like this. I was hoping we'd get here someday before a trial actually took place, and a judge put the word's appearance of a cover-up in so egregious, into a 19-page order dismissing the murder case against Aaron Spencer, the Arkansas father charged with killing Michael Fosler, the 67-year-old man accused of crimes against Spencer's 13-year-old daughter, Special Circuit Court Judge Ralph Wilson catalogued 11 specific failures by the lead detective on the case, Robbie McCain. Evidence not photographed, not logged, viewed on a personal computer, stored in an office drawer for a year, and ultimately lost. The state argued negligence. Wilson found bad faith. The second-degree murder charge is gone. So, here we are. Time to break it all down on where it goes from here and your thoughts in the comment section. On Substack YouTube or wherever you're watching this right now, Bob Modd, a defense attorney, host of the podcast. Defense Diaries joining us as always. Been on this case from day one. Let's start with the big words. Appearance of a cover-up and so egregious.
Those are the judge's words in writing in a single order. You've been analyzing criminal cases for a long time. How rare is that language from a sitting judge?

**Bob Modd** (1:28)
Pretty rare. It's pretty rare. I mean, when I read it, I was, you know, that was like a whoa moment because it's a big thing for a judge to do that. I mean, it's a big thing for a judge to really take that step and say that I think that the police have done something untoward at all. You know, to go to the length of, all right, this, if it looks like a duck, it quacks like a duck. It's a duck type situation.
It blew my mind, frankly, because he didn't have to do it. I mean, he could have just, and it was a carefully crafted order. You know, he put a lot of thought into it. That wasn't something he just threw together.
And ultimately, it was a situation where he just couldn't ignore what was in front of him, you know? And I think that ultimately, and we'll probably get into this area a bit, I think the fact that because he was a retired judge who had been appointed, really gave him the freedom to kind of say what he wanted to say. Whereas if he was still on the bench actively, he may have tempered it some.

**Tony Brueski** (2:49)
So I'm wondering about how we got to this point here, because it all comes down really, I mean, the big thing is the SD card going missing from the camera itself. And then we've talked about it before.
This is a piece that, that I have, did all of the details that the judge ruled on here from it getting in his computer, him saying, oh, the videos were this long when the camera's not even capable of recording to that length, all of the bullshit that was spewed out there. That, did all of that really come later into this investigation as we're getting closer to the trial date? Or had this been, have these facts been known all along, and it just finally took this judge to step up and say, what are you all doing?

**Bob Modd** (3:41)
Yeah, to me, in terms of the cover up aspect of it, it's undeniable that they clearly knew they being Lowenau County Sheriff and for all intents and purposes, the AG in their office who's the one who said, look, you sent this dash cam to us, but the SD card's not there.
They've known about it for months. Because remember, this thing doesn't, the defense has no awareness that this dashboard cam even exists in the world.

**Tony Brueski** (4:14)
Yeah.

**Bob Modd** (4:15)
Because they decided not to for whatever reason, which is one of the reasons that I think the judge ended up ruling the way that he ruled was not in any way, shape or form in evidence. There was no chain of custody. There was no evidence log. There was no evidence whatsoever that they had recovered the thing from the scene.
So when you're looking at that ostensibly, you have to be like, what is going on here? What is going on here? And I'm hard-pressed to think of any kind of reasonable explanation that exists. Because everything else that required digital forensics to be performed on it, was sent within two days. You know what I'm saying? And the only thing that wasn't sent on that first run, was the dashboard cam. You know, and it's like, I just, I think the judge was left with no choice. You know, and the question for me was always, because it's such an extreme remedy, you know, is he going to have the balls to do it? Because it's a huge swing, you know, dismissing a case like this.