ZACK, JOSH AND LANE (5:23 p.m.)
We may not get resolution on this arrest/non-arrest question until the morning. For now, what we can say is the lawyers and judge spoke in the courtroom like Michelle Kerr had been arrested. But there’s no public record we can find right now that shows an arrest. We’ve reached out to the Hillsborough County Sheriff’s Office, from which Manuele says she got the records, for clarity. It’s possible there was some kind of incident involving Kerr and Kisser, but it didn’t actually lead to an arrest. We’ll update when we can.
LANE (5:03 p.m.)
Manuele says Kerr was arrested on Jan. 3, 2015 — just days before Jonchuck dropped Phoebe off the bridge. We’re looking for a record of that arrest and can’t find it — not in her state criminal record nor in court or jail records. We’re going to keep looking. Until then, we do have reporting to share on a DCF call made by Jonchuck accusing Guy Kisser, Kerr’s boyfriend, of having knives in the house and chasing the kids around with weapons. Maybe Jonchuck made that up, but that could indicate he didn’t think Kerr and Kisser had a stable home. Did either side pull those DCF reports? They surely speak to Jonchuck’s mindset just before the murder and raise doubt about whether he really could have believed that Kerr’s new relationship or home were stable.
Phoebe’s mom called the DCF hotline Dec. 29, saying John had no stable address and that, years ago, he had smacked Phoebe in the face. The DCF counselor forgot to get John’s address, so no one ever investigated.
The next day, John called to say Phoebe’s mom was insane and using drugs.
DCF went to her house, and she passed their drug test.
On New Year’s Eve, John petitioned for another injunction against Phoebe’s mom, saying her new boyfriend was dangerous. “There are amos, knives and swords in the home …”
The judge denied John’s request.
Times senior news researcher Caryn Baird contributed to this update.
JOSH, LANE AND ZACK (4:46 p.m.)
It’s probably worth noting that almost everyone in Phoebe’s family, and many of Jonchuck’s friends, have faced criminal charges before, and most have convictions against them.
“It would appear to be a home riddled with domestic violence,” Helinger says, referring to Kerr and Kisser.
Williams approaches the lectern and speaks for the defense. He’s been pretty quiet lately.
“Dr. Bursten is relying on his collateral sources to make his opinion,” Williams says.
Bursten said Jonchuck was threatened by Kerr and Kisser’s relationship and believed it was stable.
The defense seems to want to introduce the Sheriff’s Office reports to imply Bursten’s sources were unreliable on this specific topic. The prosecution has suggested Jonchuck killed Phoebe in part because he feared Kerr would get custody of his daughter.
But the defense is claiming that Kerr was arrested just days before Jonchuck killed Phoebe, and it’s relevant that her house was not actually stable.
Williams says they can’t ask Kerr about her relationship with Guy Kisser, or whether the home was stable, because the prosecution hasn’t called her to the stand.
“Well, you can call her,” says the judge.
“If we’re not allowed to confront her then the testimony that the jury will rely on is that Michelle and Guy had it all together,” Williams says.
It’s hard to understand why Phoebe’s mother hasn’t been part of these proceedings.
Manuele argues that Jonchuck telling the paralegal the custody fight would not matter could be because Kerr had been arrested … not because he was going to kill Phoebe. Manuele says the defense only just got these reports, after their experts testified.
“That evidence of her arrest is already out,” Bolan argues. “It’s kind of an ambush that this evidence comes out now, just in time to make” the psychologist look bad. “It’s unfair. And it’s not relevant. Because all that matters is the defendant’s perception. He was aware of their relationship, and that they were together.”
Helinger replies that she got the impression from Bursten’s testimony that Kerr’s house “was an okay place.”
“So the jury’s thinking, oh, this really was a great place. And here he knows he’s going to lose his child to this great place. I think that’s the impression he may have been left with,” she says.
Helinger references Kerr’s arrest and looks at the prosecution, “Don’t you think that’s relevant as to motivation?”
Both prosecutors are pacing. Ellis contends there’s no evidence that Jonchuck knew Kerr had been arrested at the time. And this case only has to do with his mindset and what he was thinking when he killed Phoebe.
“I’m still trying to figure out how it gets asked,” Ellis says. He’s worried if the defense brings up the arrest on cross-examination it will be seen as impeachment of Bursten, when Bursten wasn’t even aware of the report.
“This is a problem,” Ellis says.
“I don’t think it would be a wise idea to exclude it,” Helinger says. “Because the interpretation of that statement is very, very important.”
Helinger asks why Manuele didn’t tell the prosecution about this report before Bursten took the stand. She says she got the documents on Friday and forgot about them this morning, until something Bursten said triggered her memory. Ellis makes a face like he doesn’t buy that story.
“I don’t presume people are lying,” the judge says, looking at the prosecution and smiling.
She says she does not think it would be impeachment for the defense to bring this up. Ellis says it would put the prosecution in a bad light, making it look like they were trying to keep the evidence from the jury.
“I just think it’s relevant,” Helinger says.
This is almost the very opposite of what happened last week, when the state tried to introduce evidence after the defense’s experts had already finished testifying. The first time, the judge prevented the evidence from making it into the trial. This time, the judge will let it in.
The difference seems to be that Bursten is still on the stand, so he can answer questions related to the evidence, and the defense made relatively quick notification of the reports.
Helinger acknowledges the similarity to last week but says she thinks the circumstances of this decision are different.
She tells the prosecutors they can talk to Bursten about the records tonight and tomorrow they can mention in front of the jury that they just received the report today.
LANE, JOSH AND ZACK (4:11 p.m.)
“Can I go home? Bursten asks. “Are you done with me?”
The judge dismisses him for the day. He’ll be back at 9 a.m. tomorrow, along with the jury.
As the judge and psychologist were speaking, Ellis says, the defense found new evidence: Hillsborough County Sheriff’s Office reports related to Guy Kisser, Michelle Kerr’s boyfriend at the time Phoebe died.
Prosecutor Paul Bolan immediately objects to its inclusion in the trial, saying it’s untimely, as Bursten is in the middle of his testimony.
“That’s unfair,” he says. “And it’s not like this is new information that could have just learned about. These are old arrests.”
Manuele says it may be useful in impeaching Bursten. She says she found the reports because they were referenced in child protection paperwork. She submitted a public records request to the Sheriff’s Office and just received the reports.
She and Bolan are arguing over the evidence while Ellis paces and the rest of the defense team scans their paperwork. The prosecution has almost entirely packed up for the day. Ellis moves and begins speaking to Helinger from the jury box.
“We’re getting evidence at the end of a trial,” he says.
“We just received it,” says Manuele. “We’re hoping everyone follows the rules.”
(Remember, the defense objected to a statement last week saying the prosecution did not turn over evidence on time and thus broke a rule.)
“Judge, I don’t appreciate the cheap shots,” Ellis interjects.
“Can we have 10 minutes of silence?” Helinger asks. “I’m going to sit here and read this.”
“Can I make one more point?” asks Manuele.
“No,” says the judge. ”Ten minutes of silence.”
JOSH, LANE AND ZACK (4:02 p.m.)
After catching a glimpse of the poster board, it looks like Bursten has been testifying about the HCR-20, or the Historical Clinical Risk Management assessment.
Ellis wants the jury to hear Bursten’s evaluation of Jonchuck based on the test’s criteria. “It’s a tool he’s allowed to use to help make his diagnostic determination, and it’s focusing the things he’s talked about, presenting to the jury, narrowing them down to form an ultimate professional opinion. If it helps the jury make a determination … it should be admitted.”
“To me it’s much the same and somewhat duplicates the anti-social and borderline personality disorders,” says the judge. “It also would suggest to the jury that he would be dangerous in the future. There’s no way to deny that. That’s what’s going to happen. It really goes too close to a character assassination … I understand it’s what Dr. Bursten bases his opinion on, but I don’t want bad Mr. Jonchuck to be, I don’t know how to say it right … I just think that it’s extremely prejudiced. They’ve already heard that stuff. And they’re going to hear more of it. … It’s repetitive. And I’m not going to allow it.”
Bursten appears dismayed on the stand. He’s strokes his lips with his thumb and forefinger. He looks to the prosecution.
“It’s too much,” Helinger says. “It’s too many lists.”
Ellis is frustrated. He raises his voice again, saying the defense had three witnesses who went over the same stuff, over and over and over. He should be allowed the same latitude.
“This is a laundry list of bad character flaws,” Helinger says. “I believe that two lists as an assessment tool is too much.” She’s letting in the PCL-R (the psychopathy checklist we heard debated this morning), she says, but not this. According to Helinger, one list is okay, but a second “is prejudicial.”
Bursten addresses the judge directly. He’s seated just below her on the witness stand, looking up at the bench.
“I’m starting to get a little paranoid here,” he tells the judge. “Every time I open my mouth there’s another objection.”
“I just, if an expert’s opinion is that really what drove the murderer, all this stuff I’m bringing up, that’s my opinion about who this guy is,” Bursten says.
He’s pushing back against the judge, who listens patiently. “My opinion is these bad acts really identify who this person is,” Bursten says.
“I’m just trying to understand this,” the psychologist explains.
“I’m trying to understand, too,” the judge says.
“I don’t want to character assassin him in any way,” Bursten continues.
“I’m not trying to limit what you say,” says the judge. “I’m limiting these checklists.”
This has become a conversation between the expert and the judge. The lawyers are organizing their files. A courtroom deputy is collecting the jurors’ yellow legal pads.
There’s a couple of people still in the gallery, unclear exactly their connections are to the case. At least one man is here just to watch. One woman is reading a book.
“I’m not going to trash him,” Bursten says.
“How is it relative to his sanity at the time?” asks the judge.
The psychologist replies: “The best way to punish, to retaliate against his mother and Michelle, is to take what’s most precious to them.”
LANE, ZACK AND JOSH (3:47 p.m.)
Now the judge is off the bench, standing in front of her desk and behind the stenographer as Ellis runs Bursten through one of the poster boards. Ellis holds a telescoping pointer. All five lawyers are up near the witness stand. Without seeing the reference card, it’s a bit hard to follow.
Jonchuck “was preoccupied with bridges, people jumping off and throwing things off bridges,” Bursten says.
He stopped going to treatment for his mental illness and said his insurance would no longer cover it. But if you have an ongoing relationship with your psychologist, Bursten says, that would rarely be a problem.
“To just say a guy has mental illness or he doesn’t, and make a decision is short-sighted,” the psychologists says. “I have to understand everything possible in this guy’s environment, what makes him tick and how he ticks, to make a decision about what was going on. I was not interested in predicting his violence so much as understanding what was going on.”
Defense attorney Jane McNeill, up, points at the board: “You said this is not a test for insanity?” (We can’t see this poster so it’s impossible to say what is on it.)
It is not, Bursten says. But it helped him reach his diagnosis in this case.
The psychologist says he uses whatever is shown on the poster when he conducts risk assessments for violence in his clinical practice.
LANE, JOSH AND ZACK (3:28 p.m.)
Ellis asks if Bursten has done any “testing.” Bursten says he did some psychological assessments. Here’s where we will most likely get into a discussion about the psychopathy checklist, one of the most controversial elements of the trial. As if on cue, the defense objects and there’s a bench conference.
At 3:24 p.m., Helinger sends the jurors home. She has to consider some more evidence, and whether to let the jury hear it, she explains. She tells the juror who said he had seen a reference to the trial on Facebook not to go on Facebook.
The jurors leave.
From the defense bench, Jonchuck addresses the judge. “Your honor, I have a shot that I have to take as part of my medication,” he says slowly, his speech slightly slurred. “And I’d like to excuse myself to see the doctor to get that medication” before the doctor leaves.
“Okay,” the judge says, nodding. “We’ll see you tomorrow.”
“See you tomorrow,” Jonchuck says.
He stands up and walks out, escorted by a deputy, waving to his lawyers as he leaves.
The shot he has to take is Haldol, a psychotropic drug. He also takes Haldol orally, as well as five other oral medications. The injection happens once a month. Read more about his drug regimen here.
LANE (3:22 p.m.)
Bursten only talked to Jonchuck after he was arrested, so he says can’t speak exactly to his mental state at the time of the crime. But he researched reports and interviewed people and saw hospital records. “There might be a panic disorder in there. And other substance use disorder,” the psychologist says. Cannabis, alcohol, meth, spice … “I put all that other substance abuse disorder in remission in an institutional setting,” he says, meaning Jonchuck couldn’t do those recreational drugs while he was in the mental hospital.
“There’s no doubt in my mind that there were psychotic features, or symptoms, in December 2014.” Bursten says.
Ellis holds a giant white poster to the defense, outlining symptoms of antisocial personality disorder. Then he sets it on an easel in front of the jury -- seven symptoms that could lead to a diagnosis. [This is exactly like how the defense had some of its experts walk through their testimony last week, trying to prove he was insane at the time of the crime.]
The first is failure to conform to social norms in respect to behavior. Others include getting into physical fights or assaults, reckless disregard for self or others, repeated failure to sustain work behavior, lack of remorse. “There’s a lot of people with bipolar disorder who don’t have those traits or characteristics,” Bursten says. “If I look at Mr. Jonchuck from his earlier years, clearly there was a pattern that includes all of these criteria. He wasn’t flagrantly manic or depressed when these things were going on. These things went on consistently, all the time.”
Now Ellis is going over nine criteria for another diagnosis, borderline personality disorder. If the person has even five of those, Bursten says, they meet the diagnosis.
Jonchuck showed extremes of idealization, idolation, Bursten says. “When there’s a failure in attachment and bonding, if it’s not rectified by therapy or some other resource, it manifests itself in the individual’s personality.”
Jonchuck told the psychologist that he’d always had problems with self-identity and self-worth. “He wasn’t sure if he was gay, bi-sexual or straight,” says Bursten. “He thought he was fully gay until he met Michelle Kerr.”
Self-damaging spending and problems with money management are other aspects of the personality disorder, Bursten says, as are self-destructive tendencies, mood swings, feeling empty. “This goes back to that abandonment and lack of bonding,” says the psychologist.
Physical fights, anger are other signs, so is transient, stress-related paranoid ideation, the psychologist says. “When things get stressful, people become more paranoid,” says Bursten.
ZACK (3:15 p.m.)
As you’re listening to Bursten’s testimony, it may be a good time to read up on our guide to the case. We have a timeline and explanation of some of the key people and events the psychologist is running through, as well as links to previous blogs from this trial.
LANE, JOSH AND ZACK (3:03 p.m.)
The psychologist starts telling the story about Jonchuck polishing the stairs. This time, the jury can hear. But he only gets a sentence into his narrative before Manuele objects and all the lawyers go back to the bench again.
One of the uncles fell down the stairs and broke his rib and his arm. Jonchuck laughed when that happened, says Bursten.
Jonchuck was 17 when he met Michelle Kerr, who was 23, the psychologist says. She got Social Security for herself and two kids, more than $3,000 a month, so she was the bread-winner for most of the six years they lived together.
The psychologist says Kerr told him that, “Long after they separated, he used Phoebe as a way to manipulate her. If you don’t give me money, you won’t see Phoebe.”
When Kerr started dating Guy Kisser, she introduced him to Jonchuck, Bursten says. “After Christmas dinner, there were some back and forth texts between Mr. Jonchuck and Michelle Kerr that were pretty dramatic. Miss Kerr texted a picture of herself topless to Mr. Jonchuck. A lot of conflicts grew out of that, understandably.”
In the course of the next week, the psychologist says, the drama escalated and Jonchuck called a custody lawyer -- Genevieve Torres, who already testified in this trial. “The tensions grew,” he says.
“I interviewed three of Mr. Jonchuck’s friends: Noemi Bresnahan … she told me she’d known Mr. Jonchuck for four or five years but they hadn’t had contact in a while.” Around December 2014, Bursten says, Jonchuck began texting Noemi, wanting to have play dates with her child and Phoebe. He wanted to stay at her house with Phoebe. They’d previously been roommates. She thought he was using Phoebe to find a place to stay. “She described Mr. Jonchuck as being very manipulative, using whatever he could to get his way,” Bursten says.
Noemi wouldn’t let Jonchuck and Phoebe move in. This was just a few weeks before Jonchuck dropped his daughter off the bridge.
Bursten’s testimony is being halted, several times, by Helinger interjecting and telling jurors to disregard certain portions of what he’s saying. The jury hears it, but they’re not supposed to consider it. It’s pretty hard to follow.
We’ve not heard the judge tell the jury to disregard testimony before this. And the defense is objecting to Ellis’ questions at an unprecedented rate for this trial. The legal chaos that has taken place in the absence of the jury seems to be bleeding into the testimony.
Helinger calls the lawyers to the bench. Another conference.
The psychologist says everyone he spoke with in Jonchuck’s family and social circle said “he never had psychotic symptoms in the past...” Manuele objects. Helinger sustains the objection.
The diagnoses were bipolar II, ADHD, says the psychologist. He’s referencing Dr. Gary Arthur’s medical notes, which we heard a lot about last week. Bursten says Arthur was treating a mood disturbance but there was “never indication of any psychotic symptoms until around Christmas time in 2014.”
Bursten says he thinks Jonchuck had bipolar I disorder with “mood-incongruent psychotic features.” He says Jonchuck was an ADHD kid and had depression and mood swings.
“Somewhere in December of 2014 there was an onset of psychotic symptoms.”
Bursten lists the knocking of the Bible, Jonchuck hearing Phoebe chanting and hearing voices — those are psychotic symptoms, he says — but the psychologist maintains Jonchuck would not have fit a diagnosis of schizoaffective disorder at this point. There was not enough of a record of continuing symptoms, he says.
Bursten emphasizes he’s not disagreeing with the state hospital, which made a diagnosis months later.
But “there was never any indication of anything like that prior to Phoebe’s death,” Bursten says.
LANE, ZACK AND JOSH (2:45 p.m.)
Only 20 minutes after the jury came back from lunch, the judge sends them out again. “Okay, ladies and gentlemen, back to the jury suite,” she says. “It shouldn’t be long.”
Now, without the jury, Bursten talks about a time when Jonchuck was 17 and one night, for no apparent reason, he polished the stairs so they would be slippery and his Uncle Tim fractured a bone. “I don’t remember if it was his leg or his arm. They described Mr. Jonchuck standing at the bottom of the stairs laughing. It tells me about anger, a lack of remorse and empathy. They did the best they could to provide some sense of security and family.“
Helinger looks somewhat frustrated with the stops and starts in the trial today. She has her chin in her hand again. Then she takes notes on what Bursten is saying.
McNeill steps up to the lectern to ask Bursten a few questions. After, she walks away and tells Helinger she has an argument, that these statements may be relevant in a mental health treatment setting but they’re not legally admissible. She says the prosecution is “backdooring in” evidence of prior bad acts by Jonchuck.
“Mr. Jonchuck is entitled to due process and a sound trial,” she says. "All this evidence is preventing him from having that constitutionally sound trial he is entitled to.”
Ellis argues Bursten’s assessment of the staircase goes to his finding of Jonchuck as callous, which is related to the psychologist’s conclusion that Jonchuck has a personality disorder.
“Dr. Bursten has a right to establish how he reached that conclusion,” the prosecutor says.
Ellis continues: “Part of that is looking into the defendant’s background, and looking into these actions of the defendant. What he did and what it means to our expert, I’m going to ask to let it in.”
The judge rules she will allow the evidence. Then before the jury is let back in, Helinger addresses Manuele.
“I repeat, Ms. Manuele, if he gets convicted and I am wrong, he’s going to get a new trial.”
It’s clear tensions are still high, and both the lawyers and judge seem exasperated by some of the ongoing evidence debates in the courtroom.
Before the jurors return the courtroom, Helinger asks Bursten if he will refrain from “personalization.” He asks: What does she mean? Like calling Jonchuck callous, says the judge.
JOSH AND LANE (2: 32 p.m.)
The psychologist says Jonchuck told his mother “I will f---- up your life” just a few days before he murdered his daughter.
The night before, Jonchuck’s mom and Phoebe were playing together, and she felt Jonchuck was very jealous of their relationship. He had said to her, “Everybody cares about the baby. No one cares about me.”
Jonchuck frowns and leans into his lawyer.
The statement that Jonchuck made to his mother about not being the one to molest her when she was a child, Bursten chalks that up to extreme anger and rage. In that moment, Bursten says, it could have been one of the most hurtful things he could think to say to her. The defense’s experts repeatedly used this statement to say Jonchuck was not in touch with reality leading up to the night he killed Phoebe. In this instance, he was talking as if he was his mother’s mother.
Bursten interviewed Jonchuck’s uncles, who he lived with on-and-off, and for a year when he was 15. His uncle said his behavioral problems began when he was in pre-school. He was destructive in their home, he’d throw things and break things. They’d bought Jonchuck a laptop to finish his GED when he was 17, and when they wouldn’t let him play games on it, he threw it down the stairwell. His mother told me about these things as well.
When Jonchuck was five or six, he took a large industrial jar of jelly and threw it over the landing, it made a huge mess. “We have here, from the beginning, poor emotional control. When things don’t go his way, he gets destructive. That’s of particular interest to me in evaluating this case.”
Manuele has objected several times during this testimony, including when Ellis asks about the laptop. While she’s looking at her computer, Ellis shoots her a nasty look.
LANE (2:28 p.m.)
After three weeks of testimony in this murder trial, we still haven’t seen Phoebe’s mother, or heard much about her. Today, the psychologist talked about her tumultuous relationship with Jonchuck, how he came to hate her as they battled over who got to keep Phoebe -- and her Social Security check. We interviewed Kerr several years ago. Here’s an excerpt from our 2016 story, “The Long Fall of Phoebe Jonchuck,” that introduces Phoebe’s birth mom and traces their relationship:
John was high when he met Michelle Kerr . A friend introduced them when he was 18. He couldn’t stop staring.
“You’re so beautiful,” he told her. Again and again.
A buxom woman with blond hair, freckles and wide blue eyes, Michelle was 23. She had a young son and daughter.
She was diagnosed with multiple sclerosis right after Phoebe was born. Her arrest history includes child neglect, after a babysitter failed to meet her son at his bus stop, as well as charges for shoplifting and forgery. She has been involuntarily committed. She is raising a teenage son. A second daughter lives with relatives.
John and Michelle sang Avril Lavigne songs and put on their makeup, side-by-side, in her mirror, then went dancing at gay clubs.
One night, they were slouched on Michelle’s sofa when he said, “Maybe I’m not gay.”
“Maybe I’m not gay,” he said, “because I’m in love with you.”
She thought he was handsome, in a young Jay Leno kind of way — 6-foot-2, 200 pounds, same thick pompadour and prominent chin.
She told him about her life. She managed an insurance agency. She had been charged with neglecting her son when he was 5, after the babysitter didn’t pick him up from the bus stop. She still had custody of him, but her daughter lived with relatives.
Michelle’s dad had left when she was in kindergarten. When Michelle was 16, her mom swallowed a pile of pills and killed herself. Michelle kept her mom’s tiny wedding ring.
John told Michelle that his dad had beat him and he hated his mom, who had abandoned him. He said he was bipolar but taking his meds.
“He was charming,” Michelle said. “Then the devil came out.”
The first time she saw it was on Valentine’s Day, when he got jealous and slit her tires.
Even after that, she let him move in. They enrolled at Hillsborough Community College, where she took graphic arts classes and he studied to become a paralegal.
He asked her to marry him. Four times, she refused. “He’d be as sweet as anything, then go all Dr.-Jekyll-and-Mr.-Hyde.”
One afternoon, Michelle was talking to a neighbor in the yard when John called her into the kitchen, upset she had been outside so long. He held up her mother’s little wedding ring, the only piece of her mom Michelle had left.
“Watch this!” John yelled. He hurled the ring out the window, into the overgrown yard.
She stayed with him. Because she was pregnant.
ZACK (2:21 p.m.)
Before the jury comes in, the judge calls Ellis, the prosecutor, and Manuele, the public defender, to the bench.
Privately, she addresses the conflict that happened just before we took a break.
“You can’t make those cross-comments,” Helinger tells Manuele, calmly but firmly.
We can’t hear any other part of the discussion.
JOSH, ZACK AND LANE (1:40 p.m.)
The whole debate ends abruptly in fireworks. Ellis, boiling over, stands up and objects. “Asked and answered” he says in a raised voice.
Manuele who has been standing as she addresses the judge, suddenly turns to the prosecutor, saying, “Would you please swat him?” She clarifies she wants the judge to chastise Ellis and instruct him to sit down and not interrupt her. (Remember, Manuele was scolded this morning for interrupting the judge.)
Helinger instead addresses Manuele, calling her unprofessional and telling her to sit down. “I was in the middle of speaking,” Manuele says back.
At that moment, Helinger breaks for lunch. We’ll return at 2:15 p.m.
LANE, JOSH AND ZACK (1:33 p.m.)
With the jurors out of the court (breaking for lunch), the defense moves for a mistrial.
“Dr. Bursten’s testimony was consistently about uncharged bad acts,” Manuele says. The psychologist indicated “there were seven or eight in-school suspensions, that he was suspended for fighting, that he was let go from a previous employer. He defaulted on loans on a condo …” The psychologist said Joncuck indicated he had a check machine, he was printing fraudulent checks, he used Phoebe’s money for drugs …
“All of these are inadmissible,” Manuele says. “We don’t think any of it should come in.”
And: “This is a character assassination.”
This is the second time the defense has motioned for a mistrial. The first time came after the state rested its murder case two weeks ago. That motion, obviously, was denied.
Manuele is saying the jury needs to hear a “curative instruction” to protect against them hearing these prior bad acts and using them to reach a guilty verdict.
She’s raising her voice, consulting other cases, gesturing at the judge.
Prosecutors Doug Ellis and Paul Bolan look like they’re getting impatient. Ellis has a pen in his mouth and is pacing with his hands behind his back. Bolan leans back in his chair with his chin in his palm. The trial was held up for more than an hour this morning addressing issues raised by the defense. Now, with the jury at lunch, it’s more of the same.
“I respectfully disagree with you,” Helinger says to Manuele.
“Not every single thing comes in,” the judge continues. But this has been a theme of defense challenges and Helinger’s opinion from the start — because we’re examining Jonchuck’s sanity, some evidence of his history of misbehavior or outbursts is relevant.
LANE AND ZACK (1:24 p.m.)
Bursten runs through Jonchuck’s prescriptions of Seroquel, Ambien and other drugs from when he was a younger. These were all prescribed by Dr. Gary Arthur, who has not testified yet during the trial. We tried to reach Arthur last week but have not heard back.
Jonchuck’s mother said he couldn’t afford to keep going to treatment because he didn’t have insurance.
He lived with his uncles from age 14 to 15, and then with friends. He met Michelle Kerr when he was 16 or 17 and was living with her on and off for six years. After he separated from her, he was living with his father for a short period of time, then with different roommates, four or five people for a couple of months each, and he had Phoebe. In September, Phoebe started living with Jonchuck’s mother and he stayed with friends. He never married Phoebe’s mother. “
The roommates described very difficult relationships, a lack of anger control, a lot of conflicts,” says the psychologist.
Several jurors continue to take notes as Bursten recites this timeline.
The psychologist talked to Jonchuck’s mother, who told him Jonchuck could be nice when he wanted to get something, primarily money, but there were very rapid mood swings when he didn’t get his way. “He tried to sweet-talk her when he wanted something,” Bursten says. “He would put on a good show to get what he wanted.” J
Jonchuk’s mom said he threw food, and would get very depressed.
Jonchuck is leaning forward and talking to Williams as Bursten speaks. He laughs briefly, then sits back.
Bursten continues: “He thought he knew more than other people, had grandiose plans like being a doctor, or going to hair school, but he’d never follow through with those things. She indicated there were pets in the home …”
The judge cuts off the psychologist and calls the lawyers to her bench.
Interesting fact: Jonchuck named Phoebe after his favorite childhood pet, a chihuahua.
LANE, ZACK AND JOSH (1:16 p.m.)
When working for an insurance company, Jonchuck bought a scanner/printer and “was able to duplicate checks and cash them,” Bursten says. His mother paid off a large debt for him.
Jonchuck told the psychologist he started using alcohol at 14, then marijuana at 14 or 15, and methamphetamine … He used marijuana and meth daily, then in his 20s started using spice too. Around age 18 he drank wine, smoked marijuana and smoked spice.
Jonchuck is rocking back and forth in his seat at the defense table, looking down as public defender Greg Williams takes notes next to him. Jonchuck and Williams whisper to each other.
Bursten says Jonchuck reported he stopped drinking alcohol in September 2014. But in November into December he relapsed on spice, marijuana and meth. He was smoking spice about three weeks before killing Phoebe, according to the psychologist.
Ellis asks what Bursten knows about Jonchuck’s previous mental health treatment. There was outpatient treatment as a child, and he was prescribed medication for ADHD.
Jonchuck said there were many hospitalizations, all over very aggressive actions against his family. He threw things, broke things, trashed the house, Bursten says.
In adolescence, he was hospitalized for self-injury when he got in a fight with his dad and took a machete onto the roof. “That was a good way out for him,” the psychologist says.
There were two other Baker Acts involving self-injury, Bursten says, and another one reported by Jonchuck’s mother.
LANE AND ZACK (12:59 p.m.)
At an early age, Mr. Jonchuck was dealing with a lot of psychological issues, Bursten says. He was sent home from daycare. He dropped out the first year of high school and later got his GED. Jonchuck described himself as a class clown, throwing spitballs at a teacher, getting suspended seven or eight times, once for fighting.
“He had very disruptive behavior, difficulty fitting into social settings,” the psychologist says.
Jonchuck is sitting up and staring straight ahead as Bursten testifies. He turns to his defense team briefly but doesn’t say anything. His lips are pressed into a frown.
Jonchuck only held jobs for a short amount of time -- the longest for nine months -- Bursten says. He worked at call centers telemarketing, sold insurance and technology gear. He says he was never fired. Jonchuck began receiving disability around age 22 or 23. He had mental health issues and back problems, the psychologist explains.
Jonchuck also got Phoebe’s Social Security check each month and, when he killed her, had a letter from the Social Security Administration on him, saying he needed to provide an update on how he was spending the money for her or the checks would stop coming to him.
Jonchuck also had a lawsuit pending (we know it was against The Cheesecake Factory) because of a back injury, and he got some “pre-settlement funds” from that. You can read more about that lawsuit in The Long Fall of Phoebe Jonchuck.
He got a loan on the pending settlement about two years before he killed Phoebe and bought a condo. But Jonchuck defaulted on the loan and lost the condo, Bursten explains.
“My interpretation of this is a lack of responsibility,” Bursten says
Jonchuck spent money very impulsively, the psychologist says. During the last year of Phoebe’s life, Bursten explains, Jonchuck used his money and Phoebe’s to live with a variety of people -- and buy drugs.
LANE AND JOSH (12:52 p.m.)
In the fall of 2018, Bursten says, he travelled to the mental health treatment center outside Gainesville where Jonchuck was housed. Over two days, he talked to Jonchuck for a total of about five hours.
The psychologist says he also met with Jonchuck’s uncle, father and mother to talk about “the psycho-developmental years of his life.” He talked to Phoebe’s mother on the phone. “She’d spent six years with Jochuck.” And he spoke to three of Jonchuck’s friends about his life history and how he’d interacted with people over the years.
Bursten says he’s also on a list of qualified psychologist who are called on by the court to evaluate defendants for competency.
He says he works 50/50 between the prosecution and the defense, or maybe even 60/40 in favor of defense attorneys.
“What goes on in one’s early family history is very important in terms of early development which grows into adolescent development and later adult development,” Bursten says. Jonchuck’s parents separated when he was two. His father remarried when Jonchuck was 5. He has a half-sibling on each side of his family.
He grew up with his father, and about three years later his stepmother came into his life. He stayed with his uncles on weekends, on and off. They were certainly part of his childhood and adolescence. “Bonding is a part of early childhood development, attachment and bonding are hard-wired into all of us,” says the psychologist. “When a child is born, the newborn has no sense of anything but his or her needs. There should be adequate, acceptable bonding with the mother …. but within the first year of life, the child realizes, ‘Hey I’m not the only act in town,’” there’s this other person the newborn gets to know on an emotional touch, feel, eye contact level. And the child starts to have concern or feelings for that other object, that’s the beginning of what we call empathy. As the child gets a little older, in the toddler years, the child starts to develop a sense of ‘I feel bad if I make Mommy mad at me.’ That’s the beginning of guilt and remorse. That’s the foundation of what we call a conscience: Guilt, remorse, empathy. When there’s lack of bonding, that can be a failing, a lack of conscience. Individuals who have those types of failures have strong feelings of rejection, abandonment … and carry into adulthood depression, hurt, anger. The impulsive display of anger can happen often as people move through life. … One other aspect is that because there are developmental failures, the individual doesn’t really see people, others, more for who they are. They tend to view other people as good, bad, right or wrong. There’s really this black and white thinking. Particularly in boys, these irregularities are expressed by violation of rules, acting out. Maladaptive personality disorders, borderline antisocial traits or features.”
That was all part of one answer.
Jurors are listening intently, some nodding, some taking notes on their yellow legal pads.
LANE AND ZACK (12:40 p.m.)
Bursten, who has sat through much of the trial in the gallery over the last week, is explaining his specialty: forensic psychology. Though Bursten testified during a pretrial hearing the week before the trial started and has sat in court, this is the first time the jury has heard him.
He says he primarily performs consultations and psychological evaluations. Bursten faces the jurors as he speaks, like many of the other experts and police officers, who are all clearly familiar with testifying in court.
He worked in a day-treatment program for five years, mostly with people who lived in boarding home settings. He’s done competency hearings in Hillsborough since 1985 and in Pinellas and Pasco since 1990. He’s done sentencing evaluations across Florida, to say if sexual offenders are safe to return to the community. And he evaluates parents and children in custody conflicts. And sometimes inmates on death row.
Prosecutor Doug Ellis is leading the questioning. Bursten says he was hired to conduct an evaluation in this case, and the Pinellas-Pasco State Attorney’s Office brought him in.
“Does who hires you make a difference in your professional opinion?” Ellis asks the psychologist.
“Of course not,” Bursten says.
He explains how he looks at records and interviews the person he’s evaluating.
LANE, JOSH AND ZACK (12:31 p.m.)
The judge continues to ask each individual juror. Interesting that as a group, the jurors all said they were not exposed to any content about the trial, but when asked individually, two of them say they have been.
No one else says they have been exposed to news of the trial.
Helinger asks if the lawyers have anything to discuss, based on those responses.
Now Bursten takes the stand.
ZACK, JOSH AND LANE (12:28 p.m.)
Juror 1193 (remember, the judge is referring to jurors by their numbers, not their names, to protect their identities in open court: “Yes.”
Here we go again.
The jurors other than this man are let out of the courtroom.
He saw a Tampa Bay Times headline about the trial, underneath a story about a helicopter crash last week. He remembers it saying something about the defense’s last day.
And: "I think my mom might have said something, I saw you guys might have got out early,” he says. His family, he explains, all seems to know about it. The lawyers chuckle.
Defense does not have questions, neither does the prosecution.
He stays, and all the other jurors come back in.
JOSH, LANE AND ZACK (12:25 p.m.)
Before the judge brings the jury in, Manuele asks if the judge will inquire more (directly) about whether the jurors have been exposed to anything over the weekend that would compromise their abilities to be objective. Manuele says Bay News 9 over the weekend included the phrase “killer statement” in its report about the legal issues the court addressed on Friday.
They finally bring in the jury, who has been waiting more than an hour.
“I apologize for the delay,” says the judge. “And I sincerely mean that.”
It’s perhaps worth noting that any of the jurors who have Spectrum cable probably see Bay News 9 every time they turn their TVs on.
Heliner asks: “Has anyone received any information outside of court about the case. If the answer is yes, you’re not in trouble, we just have to know what it is.”
The judge goes down the list of jurors one by one. “No,” “no,” “no”...
One juror says he scrolled through Facebook. Helinger abruptly stops him, and asks the rest of the jury to leave before this juror discusses what he say.
“You’re not in any trouble,” the judge says. “Tell me everything you saw on Facebook.”
He mumbles, but it sounds like he says he just scrolled by something on his news feed. “It was like a half a second,” he says.
One of the defense lawyers inquires about details.
“It was a news thing, so I just went right past it,” the juror says. He says he doesn’t know what news outlet it was from or what the headline said.
“It was a picture of the courtroom, so I just kept on going,” he says.
The judge decides it’s not a concern. The juror sits back down and the rest of the jury comes back in.
LANE AND ZACK (12:19 p.m.)
The judge sends home the paralegal, Kyrsten Malcolm. She will not testify any more in front of the jury. She was on the stand the last time they heard testimony, but Helinger will simply instruct the jurors that the lawyers did not have any more questions for Malcolm.
So the jurors won’t get to hear her say that, on the day before he murdered his daughter, Jonchuck said the custody issue wouldn’t matter any more because, “If I can’t have her, then no one else will.”
Everything you’ve read from Thursday afternoon to now, the jury does not know.
LANE (12:16 p.m.)
Ellis says they’re arguing the same thing over and over.
“We’re done. I have to have the jury back in,” says the judge. “Otherwise they’re going to kill us all.”
“Before bringing in the jurors can we address one more issue?” asks Manuele.
After lunch, the judge says.
But the defense wants her to ask the jury if they’ve seen or heard anything they shouldn’t have.
LANE AND JOSH (12:14 p.m.)
“We’re using this psychopathy checklist in a way it’s never been used before,” says the judge — as part of a not-guilty by reason of insanity defense.
“This test wasn’t to say if he was NGRI or not,” Ellis says. “No one is saying a test is for NGRI. Once he found those traits, and verified those traits, he used that to form an opinion.”
[NGRI = Not Guilty by Reason of Insanity]
Helinger makes a decision. She says lawyers and Bursten are not going to talk about juvenile deliquency or criminal versatility.
Manuele asks: Are they going to be able to say Jonchuck is callous, impulsive, remorseless and a liar?
“No,” says the judge. “That’s name calling.”
But the psychologist can talk about Jonchuck’s personality traits, she tells the defense.
Last week, the defense asked the judge to hold a Frye hearing on the checklist. Frye hearings are used to determine whether scientific evidence should be admissible. Helinger denied the request. But by admitting today that prosecutors are using the checklist in a novel way in this case, it seems reasonable to ask if the judge is conceding that a Frye hearing would be appropriate.
ZACK AND LANE (12:07 p.m.)
This evidence issue is still being debated.
We’re in the second lengthy break in testimony for the jurors, following questions last week over Jonchuck’s competency. You can read about that here and here. The competency issue led to a 24-hour delay.
Hard not to wonder about how the breaks affect the jurors, and their collective ability to follow the complex narrative of this trial.
No one has testified since Thursday afternoon.
JOSH, LANE AND ZACK (11:54 a.m.)
Helinger is leaning over looking at a poster board prosecutor Doug Ellis holds in front of Bursten that lists characteristics of being a psychopath. She is leaning on her elbows on the bench, chin in her palm.
“If I took one of these tests, I might be a psychopath,” the judge jokes.
“We’ll save that for another day,” Bursten replies.
The psychologist lists some of Jonchuck’s criminal offenses and convictions, including reckless driving, probation violation, assault on a law enforcement officer, domestic violence against his mother and Phoebe’s mom.
Jonchuck is sitting, slightly hunched, at the defense table, his mouth hanging half open. His brow is furrowed. He turns to public defender Jane McNeill.
“What is he talking about, Jane?” Jonchuck whispers to her.
ZACK (11:50 a.m.)
Helinger is losing her patience with interruptions from Manuele at the defense table.
“Do not interrupt,” the judge says. “It’s not professional to stand up and hold a book as he’s testifying.”
Later: “Sit down!”
It’s the second time she’s scolded Manuele this morning.
Still no jury.
LANE (11:49 a.m.)
We’re back to the issue of the term “psychopath” coming up in court. We thought it was settled. It’s not.
“I think it’s extremely prejudicial to refer to Mr. Jonchuck as a psychopath. You’re not planning on saying ‘psychopath,’ are you?” the judge asks Bursten. “Can you use the word psychopathy instead of psychopath?”
“I don’t know if it’s correct English,” says the psychologist. “It’s semantic. Psychopathic features sounds more gentle than psychopath, but they’re the same thing.”
“I am very concerned about name-calling,” the judge says. “I understand that it supports your diagnosis of antisocial personality. But I also think there’s a danger in someone basically name-calling.”
Bursten pushes back.
“If I talk about throughout his life there’s been impulsivity, someone who lies constantly, I can’t pick the person I evaluate,” says Bursten. “I’m not interested in shoving someone’s face in the dirt. I’m trying to diagnosis it as professionally as I can. I’m going to talk about interactions that are callous, that are disregarding people around him.”
LANE, JOSH AND ZACK (11:43 a.m.)
Helinger says the defense is not going to have a chance to re-depose Bursten. She reassures them that the term is never going to be mentioned in court.
“Now are we ready to start the trial?”
Public defender Jessica Manuele argues that there’s no way to know if the introduction of the new term means Bursten’s opinions have changed, unless lawyers can redepose him. Manuele says the judge has not read Bursten’s report, and therefore wouldn’t know if Bursten’s conclusions have changed. Experts the defense talked to over the weekend had never heard of “catathymic violence.” The lawyer is losing her cool, saying her team needs to re-depose Bursten before he testifies in front of the jury.
“Ms. Manuele, I’m not going to argue with you,” the judge says.
“We’re going to start the trial."
LANE AND JOSH (11:38 a.m.)
The jury is still not in the courtroom.
The defense is arguing that during his testimony, psychologist Peter Bursten should not be able to use the term “catathymic violence.” The reason, defense lawyers argues, is that Bursten never used the term in his deposition or his report, and they’ve never heard of it before.
“We can delete the name, and it’s no different than what I talked about,” Bursten says from the stand.
Bursten says he explained “five steps” of catathymic violence without using the term.
One step, Bursten explains, is that there’s a conflict between intimates -- in this case, that would be Michelle Kerr and Jonchuck. “The conflict can be of short duration or months of duration … it grows, it festers, it percolates, it becomes more intolerable for the individual. … It ultimately culminates in a violent act, a murder. Then there’s a sense of calm and relief.”
The second step is it starts to fester and percolate, Bursten says. The third step is that there’s violent rumination. The fourth step is the violent act. Then the fifth step is a sense of calm after the explosion.
Conflicts between Jonchuck and his mother, chronic anger against his mother, contributed to his actions, the psychologist says. “He’s acting out against everyone in his life including his father and Michelle Kerr. And there were other tensions that led to that murder.”
“I talked about him lashing out and getting back at everyone in his life who he felt was against him,” Bursten says. Borderline personality disorder and psychosis can contribute to catathymic violence. “We can delete the term,” he says.
According to an article on psychologytoday.com, a catathymic crisis “refers to a state of mind in which the individual is so overwrought with disturbing emotions that rational thought and the capacity for self-restraint are overwhelmed.”
The judge asks if Bursten ever mentioned a “five-step cycle” in his report or deposition. No, he says, and he agreed he could refrain from using that term in front of the jury. The judge also says she’s concerned about Bursten’s testimony about Jonchuck killing his daughter over revenge.
“I’m not talking about catathymic violence,” Bursten says. “I’m talking about motive. There’s evidence that at the time of Phoebe’s murder Mr. Jonchuck was experiencing acute anger toward his mother, extreme jealousy of her relationship with his daughter. …. I’m talking about this being an act of aggression toward his family, and other people.”
JOSH AND LANE (11:15 a.m.)
Before the judge calls the jury in, there’s something else to address. Traditionally, before the prosecution can call its first rebuttal witness, the defendant must either testify or waive his or her right to testify. That didn’t happen Thursday before the state called its first witness, a paralegal who in 2015 worked for family attorney Genevieve Torres.
Prosecutor Paul Bolan raised that issue with the judge this morning. Judge Chris Helinger asked defense lawyers to talk it over with Jonchuck and make sure he doesn’t want to testify.
Jonchuck only gets to make two decisions his own case: Whether to go to trial, and whether to take the stand. If he wants to speak in his own defense, his lawyers can’t stop him. Even if they want to.
The judge swears him in: "Do you swear or affirm to tell the truth?”
“Yes, your honor.” His voice is slow and muffled.
“Every defendant has the right to testify,” says the judge. “Obviously you could’ve testified if you want to. I should have asked you and I didn’t. Do you want to testify?”
“Are you sure?”
It’s unclear what would have happened if he did want to testify, as the state has technically already begun its rebuttal. It’s possible the judge would have explained to the jury that there was a mistake in the order, and the defense was reopening its case. It’s possible the defense could have moved for a mistrial.
ZACK (11:11 a.m.)
We just got Jonchuck’s jail log from the weekend. It appears he was visited “cellside” Saturday by a mental health counselor. He refused breakfast this morning.
He received his medication multiple times and ate other meals. Not much new otherwise. Why are we checking this every day? If Jonchuck had a conduct issue in the Pinellas County Jail (perhaps related to competency), it would be reported in that log.
ZACK (11:04 a.m.)
Judge Chris Helinger comes in and immediately says: “Do you want Mr. Jonchuck present when we discuss the juror problem?”
Jonchuck enters wearing a light bluish gray shirt and patterned tie.
One juror called and said “she would not be coming today because she has a stomach problem,” the judge explains.
That means another alternate will slide into her seat. Two out of four alternates up to the plate now.
Remember, one juror was excused last week because he doesn’t live in the county where the trial is taking place.
With some technical legal questions out of the way, prosecutors are free to argue that Jonchuck was of sound mind when he dropped his daughter, 5-year-old Phoebe Jonchuck, off a bridge in 2015.
Prosecutors on Thursday called their first rebuttal witness, a paralegal who had spoken to Jonchuck several times the day before he killed his daughter. Without the jury in the room, she testified that she heard Jonchuck say that day, “If I can’t have her, then no one else will," in reference to Phoebe.
Jonchuck’s defense lawyers objected, saying they weren’t properly notified of her testimony, and it therefore should not be admissible. It took the rest of Thursday and all of Friday to work out the legal issues. In the end, that statement will not be allowed into the trial.
It’s unclear if prosecutors will now call the paralegal back to court to testify in front of the jury about other details, or if they will move onto another witness.
Once the prosecution wraps its rebuttal, the judge could grant the defense a surrebuttal — a chance to rebut the rebuttal. Then the lawyers will deliver their closing arguments and the jury will begin to deliberate.
Read our previous coverage of the case below: