JOSH, ZACK AND LANE (2:55 p.m.)
“I made my point about psychopaths,” says the judge. “It’s very prejudicial, and I don’t know that it means anything.”
Both Ellis and Bolan are up and pacing.
The judge says she’s not going to change her decision. She looks exasperated.
“It’s the middle of the trial,” she says. “I think I made the right ruling.”
One of the state’s experts, who we expect will be called to the stand next week, has diagnosed Jonchuck with antisocial personality disorder, and in order to render that opinion, he administered a test that monitors psychopathic characteristics.
Manuele wants to prevent any testimony related to his psychopathic traits. Helinger is letting the expert talk about that test, in so far as it relates to the expert’s diagnosis of antisocial personality disorder. But nobody will be allowed to directly call Jonchuck a psychopath in court, she says.
Helinger ends for the day, but she tells Bolan and Ellis she’s open-minded to reconsidering her ruling on the key statement she decided to exclude earlier this afternoon, if they find a previous case that suggests she was wrong. That statement, again, comes from a paralegal who spoke to Jonchuck on the phone hours before he killed Phoebe. She remembers him saying about his daughter: “If I can’t have her, then no one else will.”
We’re done for the week. We heard no testimony today.
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Read some of our previous coverage of the case below:
JOSH (2:37 p.m.)
The last half hour has been dedicated to a separate, yet equally technical, legal argument. Before the trial began, the defense filed a motion to exclude testimony regarding Jonchuck being a psychopath. The judge denied the motion, meaning testimony to that effect was allowed.
Today, the defense filed a motion to reconsider that ruling, and now the judge is hearing new arguments about the psychopath issue.
The judge’s decision to prohibit the paralegal’s testimony appears to weigh heavily on prosecutor Doug Ellis. He sat on the pew behind the prosecution’s table, his chin in his hand, before standing up and pacing some more.
ZACK (1:45 p.m.)
We just got Jonchuck’s most recent jail log. It does not have entries from this morning but notes he had dinner and shaved for court last night.
LANE AND JOSH (1:42 p.m.)
The paralegal’s statement the judge is excluding -- “If I can’t have her, no one will” -- is incredibly important because it speaks to Jonchuck’s motive. If the prosecution suggests Jonchuck killed Phoebe to keep her away from his mom and Phoebe’s mom, and that he alluded to the paralegal that he was going to do that, it could show premeditation, and undermine the defense that he was insane when he killed his daughter.
Prosecutors say they might want to put on the stand one of the defense’s experts who may have known about the paralegal’s statement.
The defense doesn’t want that to happen. Helinger will make a final decision on the matter later during trial.
JOSH, LANE AND ZACK (1:35 p.m.)
“Their experts should be given the opportunity to review that evidence and comment on it,” Ellis says.
The defense disagrees.
“It doesn’t make sense at all, judge,” says Manuele. “Had we had that information, we may never have called any of those witnesses to the stand.”
Manuele is arguing the defense has no obligation to hand over the “work product” of an expert, until the defense calls the witness to the stand. She says depending on how the statement in question might affect the opinions of the experts, the defense wouldn’t have called them.
Helinger seems about to rule against the state. She cites other cases where lawyers didn’t share all the evidence before witnesses testified.
Ellis stands up and grabs a legal pad from prosecution table. He paces while reading from a sheet of paper, then puts the pad down but keeps pacing, hands in his pockets.
Jonchuck is not in court because his appearance for this afternoon was waived.
Remember, the key statement is: “If I can’t have her, then no one else will.”
Helinger continues: “I think it’s a real problem. I wish it wasn’t a problem. I agree with you, I think the statement is a statement that is extremely important that the state put before the jury.” But she also agrees with the defense that there’s prejudice.
“It’s a killer statement.”
And: “I don’t think I can let it in. It’s not because I don’t want to let it in,” says the judge. “You’ll have to show me why they’re not extremely prejudiced.” She does not think the state can do that successfully.
Helinger is willing to allow some of the paralegal’s testimony, but not the most prejudicial statement.
“One of their experts knew about it, but didn’t testify about it,” says Bolan. “Can we call that expert to the stand?”
“That’s something we can take up during the flow of the trial,” says the judge.
Ellis objects and says the defense invited the error, trying to keep this statement out of court, but Helinger disagrees. She thinks the prosecutors made an inadvertent error.
The statement will not come in.
“The defense didn’t have any obligation to do anything,” the judge tells the prosecutors. “But you did. ... To do it any other way would be intellectually dishonest.”
JOSH AND LANE (1:27 p.m.)
Back from lunch, and the defense hands the judge a packet of court cases. It appears they pair with an objection defense lawyers made against the questioning of their witnesses again.
“Without even reading this, I think there’s a problem,” Helinger says.
“I suspect I have no business conducting a hearing with their experts” on their opinions about new evidence, she explains.
Ellis disagrees. “I don’t see anything in there that would prevent the court” from questioning those witnesses.
Ellis says the defense hasn’t shown how they are prejudiced by the testimony, and that Helinger’s elimination of the testimony would be too extreme.
JOSH AND ZACK (11:15 a.m.)
Here’s a breakdown of what’s happening right now:
The defense says prosecutors did not provide proper notice that they planned to invoke Malcolm’s recollection of Jonchuck’s statements from the day before he killed Phoebe. Defense lawyers argue they didn’t brief all of their expert witnesses (the psychologists and psychiatrist who are key to their case) on that information, which could now become an important part of the trial.
Hypothetically, if Malcolm introduces these statements during her testimony, the prosecution’s expert witnesses can reference and explain them to jurors. But the defense witnesses have already testified and been cross-examined. Theoretically, they’re done, and cannot fully explain their view of Jonchuck’s words to the jury.
The crux of this is one particular statement, potentially damaging for the defense, which Malcolm says Jonchuck made on a phone call: “If I can’t have her, then no one else will.” (Those are the exact words Malcolm said as the stenographer just read them back in court.)
Helinger has said that statement could change how the defense’s experts consider Jonchuck’s sanity. What if one of them after hearing those words says they no longer think he was insane at the time he killed Phoebe?
Well, the defense’s entire case could be upended.
Further, defense lawyers argue, if the prosecution brings up the statements in its testimony now, jurors could feel like the defense was trying to hide them during its case.
Before ruling, the judge says, she needs to know how much this evidence would change things — in legal speak, she’s trying to measure the prejudice. Now the public defenders will try to get their three mental health specialists — Scot Machlus, Michael Maher and Glen Otto — either in court or on the phone by 1 p.m. The experts will then be questioned about how Malcolm’s testimony would affect their evaluations.
The defense asks to waive Jonchuck’s appearance in court this afternoon.
“Is that what you want Mr. Jonchuck?” Helinger asks.
“Yes, ma’am,” he says, and we break.
LANE (11 a.m.)
The jurors come into the courtroom just before 11 a.m.
“This issue we were dealing with yesterday has become complicated and difficult,” the judge tells them. She says they’ll need all afternoon to figure it out, so there’s no need for them to stay.
As she dismisses them until 11 a.m. Monday, a chorus of “Yaaay!” erupts from the jury box.
ZACK, JOSH AND LANE (10:55 a.m.)
Helinger comes back into the courtroom and immediately picks up a piece of paper to read on the bench.
She says she has looked at “many, many, many” cases and cannot find one that deals with this exact issue.
“I have some,” Manuele interjects.
She stands up and cites multiple previous cases.
There’s a couple of spectators in the gallery today watching as the lawyers argue over the evidence. An hour after we began, the jury still has not entered the courtroom. They’re in the courthouse but unaware of exactly what’s causing this latest delay — Helinger told them yesterday the court needed to hold a hearing.
Jonchuck sits next to public defender Jane McNeill, looking forward as the debate continues.
Helinger asks if Ellis is requesting the defense experts be questioned about whether they knew about the statement from Malcolm. Yes, he says.
“I think I need to do that,” the judge says.
Otto, the psychologist, is in Atlanta. Helinger asks if he can be reached by phone.
“I have to weigh the prejudice,” she says. “And I have no idea what the prejudice is going to be.”
Ellis explains again of Malcolm’s statement, “We didn’t learn this until the middle of trial.”
Manuele replies: “But they knew it before they finished cross examining” the defense’s experts. She asks for an hour to reach their witnesses. Ellis says it’s fine to give them whatever time they need.
Helinger says she can give the defense until 1 p.m. Greg Williams, one of the public defenders, says “We’ll each take an expert and do our very best.”
Manuele asks if they should send the jury home. Helinger raises her eyebrows. She asks what the prosecutors want to do.
Ellis says that’s not unreasonable.
“Alright I think I need to send them home,” the judge says. They’ve already been sitting in the courthouse for an hour and a half.
ZACK (10:22 a.m.)
Clearly this break has extended past 10 minutes as Helinger tries to make a decision on whether to admit the evidence. If it comes in, it’s easy to see how damning Jonchuck’s statement could be for the defense. The public defenders have suggested it would prejudice the jury, setting up a possible appeal if he’s convicted.
JOSH, ZACK AND LANE (9:55 a.m.)
So much hinges on this witness. Malcolm saw Jonchuck and Phoebe the day before the murder, when they stopped into the law office where she worked. She looked after Phoebe while Jonchuck talked to the attorney, and the kindergartner drew her a crayoned picture of a stick figure girl with a halo.
While the jury was out of the courtroom yesterday, the paralegal said that after Jonchuck left her office that day, he called seven times, saying Phoebe wasn’t his daughter and “If I can’t have her, nobody can.”
The defense objected to Malcolm sharing her recollection of Jonchuck’s words, arguing that the prosecutor didn’t give proper notice of that specific evidence.
Now the judge gets to decide what the jury will hear.
Ellis, the prosecutor, says he and Assistant State Attorney Paul Bolan do not believe they made a technical violation.
“They knew about the statement prior to trial, therefore it is not a discovery violation,” Ellis explains. “They knew before we did.”
Specifically, Ellis says, the prosecutors only heard what Malcolm was going to say on Monday, when they were able to speak with her during an off-day from trial. But he says the defense had talked to the paralegal even before then.
“Their hopes that we wouldn’t find out about these statements does not make them victims in this matter,” he says. “When that decision backfired and we happened to find out about it, because Ms. Malcolm called us, they should not be allowed to benefit from that.”
Manuele argues the state still did not let the defense know it planned to use the statements. Theoretically, she says, Jonchuck is the defense lawyers’ client, so prosecutors could make the case they should know any statement he made in the past. What matters, she says, is they’re entitled not just to know evidence exists but that it will be used.
“I would suggest that they were intentionally not putting us notice about it,” Manuele says.
“They knew,” Ellis says. “They played hide-the-ball. They got caught.”
“I don’t really know that that matters in the final analysis,” Helinger says.
She takes a 10-minute recess.
ZACK (9:44 a.m.)
Jonchuck is wearing a light, ivory-colored shirt and striped silver tie today. We’ve begun by picking up yesterday’s argument over evidence. Assistant State Attorney Doug Ellis is pacing and making the prosecution’s case that they should be able to use Kyrsten Malcolm’s statement that Jonchuck said in a phone call, hours before he killed his daughter, that “If I can’t have her, nobody can.”
Jonchuck is looking up at the prosecutor from the defense table.
The jury is not yet in the room.
Wednesday ended with a cliffhanger: Will the prosecution’s first rebuttal witness -- who started testifying in front of the jury that afternoon -- be allowed to finish?
The fate of Kyrsten Malcolm’s testimony is up in the air. She was the paralegal who worked with Genevieve Torres, Jonchuck’s custody lawyer, the day before Jonchuck killed his daughter, Phoebe. Malcolm took notes on her interactions with Jonchuck that day, and during testimony without the jury in the courtroom on Thursday, recalled how Jonchuck said "If I can’t have her, nobody can,” in reference to Phoebe.
Defense lawyers argued they were not given notice that Malcolm would say that, rendering her statements prejudicial and inadmissible. Pinellas-Pasco Circuit Judge Chris Helinger, initially ready to rule that Malcolm could testify, heeded the calls of defense lawyers to reconsider.
Lawyers went home Wednesday night to research case law. We expect a vigorous argument over the issue. Helinger acknowledged that letting the testimony in could be grounds for appeal.
Once that issue is ironed out, Malcolm will either continue to testify or prosecutors will call their next witness.
Catch up on our coverage of Day 13 in our live blog, and read our story summarizing the defense’s insanity arguments.
Read our previous coverage of the case below: