ZACK (3:58 p.m.)
Bolan says he spoke to psychiatrist Emily Lazarou last night and again today about the court’s ruling regarding the last three questions on the PCL-R: they are not allowed in and that the judge has set forth clear guidelines for discussing psychopathy.
Helinger says she also remembers Lazarou describing Jonchuck as “evil” and a “cold-blooded psychopath.” Helinger says that will not be allowed.
Manuele says the defense plans to challenge Lazarou’s qualifications, generally and to conduct the PCL-R. The defense plans to argue Lazarou was not trained to give the psychopathy checklist. They made a point of asking Bursten today whether someone needed special training to administer the checklist. Bursten said yes.
Bolan says Lazarou has administered the test before and has testified to those results. He says Lazarou was trained by her mentor. She gave the test and gave basically the same results.
Helinger is thinking about whether or not to have a hearing on this issue.
Ellis contends Bursten said someone can be trained in the checklist by someone other than the developer, Robert Hare.
Manuele says the defense still questions Lazarou’s training.
Bolan says Lazarou completed a Hare training not too long ago, after the fact.
“I’ll hear it,” Helinger says of the defense’s challenge, “and what comes of it comes of it.”
She tells the lawyers to be back at 9 a.m.
The defense apparently gave 700 pages of Lazarou’s prior testimony at other proceedings to the prosecution today. Bolan would like to know tomorrow where the defense plans to go with that.
He says the defense could try to impeach Lazarou on bias but not on prior bad acts. Jonchuck is suddenly walking out of the courtroom, escorted by deputies. Ellis points out the defendant is leaving.
Helinger asks if Jonchuck is waiving his appearance for the rest of the day. She asks if he wants to leave.
“Yeah,” he says.
The lawyers continue debating. Helinger is asking if she should read the 700 pages.
“I think it would be a huge waste of your time,” Manuele says.
Ellis is arguing the prosecution can’t tell the judge whether she should read the documents or not because the prosecutors just got it.
More late evidence, he says, obviously frustrated.
And with that we’re done for the day.
JOSH (3:50 p.m.)
One of the justifications Bursten offered for his view that Jonchuck’s violence that night was driven by psychotic factors is because there hadn’t been a six-month record of psychosis -- which is a break with reality. It seems the possibility remains that Jonchuck killed Phoebe at the beginning of a sustained six-month period, the diagnosis of which wouldn’t come until he was well into his stay at the state treatment center. The defense never explored that point with Bursten, so it’s unclear to us what Bursten would say.
ZACK AND LANE (3:47 p.m.)
McNeill has no more questions for Bursten. Ellis has no redirect.
But the jury has questions. We hear the ripping of paper as they write them down and pass them to a deputy, who hands them to the judge. She then goes over the questions with the lawyers before deciding whether to ask them in open court.
While the lawyers conference, two jurors in the top row chat with each other. Others sip from styrofoam cups and plastic coffee mugs.
Jonchuck is in his seat talking with another lawyer, Craig Whisenhunt, a former public defender in private practice who has acted as a consultant for the defense on this case.
Juror 1193, Helinger says, then reads the person’s first question: Why does the schizo-psychotic diagnosis take six months?
Bursten explains that it’s meant to make sure the issue is really there.
“When someone shows psychotic symptoms, they can be for any number of reasons,” including medication and drugs, Bursten says. “When they persist over a period of months, we know they’re really there.”
Another question: What processes do psychologists use to determine whether Jonchuck’s statements are true or a lie?
“There’s a few different ways,” the psychologist says: Comparing statements to facts that have been well substantiated elsewhere is the easiest way, Busten says. “Some people can fake symptoms, I’m not saying that’s what happened here.”
Do you automatically assume it’s true?
No, Bursten says. You can never automatically assume something is true or false. Usually there has to be come kind of corroboration.
The judge says she and the lawyers need five minutes to discuss the remaining two juror questions. The jury is led out of the courtroom.
Helinger runs through two more questions with Bursten:
What was the source of the defendant’s preoccupation with jumping off bridges?
Can you expand more on Mr. Jonchuck’s obsession with bridges? the judge asks Bursten.
“I can’t speak to the origins of that obsession,” Bursten says.
So the judge decides not to ask those questions in front of the jury. She sends them home for the day. They will not come back until 11 a.m. tomorrow, because the lawyers anticipate having to debate statements from the next witness, Dr. Emily Lazarou, before the jury can hear her testimony. Lazarou has already been a source of controversy in this case, which you can read about here.
The jury thanks the judge and leaves the courtroom. Bursten is allowed to leave, too.
LANE, ZACK AND JOSH (3:30 p.m.)
McNeill comes back and asks Bursten about Noemi telling Jonchuck she was going to call the police. She said that in her deposition, Bursten says.
Jonchuck told Bursten he was asking for an exorcism, and asking Phoebe to put her hands on the big Swedish Bible. “The conflict was building, building, building,” the psychologist says.
If John was driven to kill Phoebe by the psychosis, then he would be insane, right? Asks McNeill. The psychologist hesitates. All the lawyers approach the bench.
Five minutes after the jurors came back, the judge dismisses them. Again.
McNeill takes to the lectern to ask Bursten more questions about the psychopathy checklist.
“The difference between the word psychopath and pyschopathy, could we agree that the difference is a ‘Y?’” she asks.
Bursten, confused, says: “I guess.”
McNeill is asking about how the checklist was developed.
“There are norms for mentally ill offenders,” Bursten says. The test was developed based on a subset of mentally ill inmates, he says. “The primary use was … in various types of risk assessments. But not sexual necessarily.”
Ellis stands up and says we have gone through everything prior to the trial. He wants to put an objection on the record, even though Helinger is going to let McNeill continue with the questioning. The judge says she thinks it’s important to have this exchange as part of the contemporaneous record. The court reporter continues taking notes for the transcript of the trial.
McNeill is asking Bursten, he was not able to give us a score, right?
“Oh, come on, judge!” Ellis stands up and shouts. He begins to pace.
On two separate occasions, Jonchuck scored a 32 and a 34 on the test, making him a “prototypical” psychopath, according to Bursten. But since the defense had asked Bursten not to talk about three of the questions -- as the questions get into inadmissible evidence of Jonchuck’s prior bad acts -- the psychologist could not provide the scores to the jury.
Helinger called McNeill’s tactics “misleading,” since it was the defense’s objection that prevented the doctor from divulging the score.
The judge seems frustrated, too. She calls for the jury again. McNeill sits down.
ZACK AND LANE (3:17 p.m.)
Nobody in any evaluation wrote about suicide by cop, nobody asked Jonchuck about suicide by cop, no one mentioned it during depositions, McNeill says. The first time the defense heard that term, she says, is when the prosecutors asked their witnesses about it on cross-examination.
Then today they asked Bursten about it. And he replied that a couple of the defense experts had suggested it was a possibility, meaning he wouldn’t have been insane, according to Bursten.
The judge brings the jury back, and asks the deputy to make sure they have plenty of notepads and pens.
Going back to the suicide-by-cop question, McNeill now asks if Bursten talked about this in his report or deposition? No.
Did any of the defense experts? No.
During the last couple of weeks, Bursten has sat through all of the expert testimony. He’s not board-certified, he says in response to a question from McNeill.
McNeill asks about Michelle Kerr using Phoebe’s name in some of her online activity on Craigslist. She asks Bursten to clarify what kind of activity.
“She was into that kind of — the pornography business for lack of a better term,” Bursten says of Kerr. McNeill had previously said it upset Jonchuck that Kerr used Phoebe’s name.
And we stop for another bench conference.
ZACK AND LANE (2:58 p.m.)
Jonchuck says when he and Phoebe lay down that last night, he was paranoid people were coming to get them.
Bursten says Jonchuck told him that when he was driving on the bridge, Phoebe asked from the backseat: “What are all those lights for?”
Bursten testified this morning that Jonchuck remembers thinking he was being pulled over for speeding. But St. Petersburg Police Officer William Vickers has said he never turned on the lights until after Jonchuck had already begun to pull over. This seems like an inconsistency, but it’s not coming out in the cross-examination. It’s a key point — Bursten this morning said Jonchuck knew right from wrong just a minute before dropping his daughter because he knew to pull over for police lights, and because he knew the officer was a policeman. As far as the defense is concerned, though, it could mean Jonchuck imagined the lights or is misremembering what happened.
Bursten of course is only relaying what he says Jonchuck told him, and Jonchuck is anything but a credible witness. ... It does beg the question: Then why did Jonchuck pull over on the bridge? This is vague territory that’s not being deeply explored in front of the jury.
Bursten says Jonchuck told him: “He and Phoebe would have to die to save the world.”
Jonchuck says every time he got five feet from another car, his car would levitate, Bursten says. “As he drove away, there was an issue he was driving toward a police officer’s car,” he says. Jonchuck also talked about the archangel Michael, and the city of Babylon.
We’re on a 15 minute break until 3:05 p.m.
LANE AND ZACK (2:46 p.m.)
On Jan. 3, Jonchuck’s uncle, Bryan, starts getting weird text messages from Jonchuck about Chinese drywall, food spoiling, Phoebe’s eyes going black, McNeill says. “He told you he was feeling very weird around this time,” McNeill says.
“He was having some symptoms, yes,” says the psychologist.
McNeill is testing Bursten over his views and knowledge of specific incidents, but the jury has heard these already, multiple times. At this point, it must feel redundant. Some are taking notes, but they mostly watch the questioning. One man plucks a nose hair. One sips a bottle of ginger ale. Another has his arms folded across his chest and another has his notepad resting flat against his stomach. One woman swivels in her chair and chews gum, stopping to jot a note.
After Christmas, Jonchuck said, voices started cursing him out, telling him not to eat, and that he was going to hell, McNeill says. “This was not going on consistently throughout the day,’ Bursten says. Jonchuck also put salt around the doorways to keep out evil spirits and started sleeping with his step-mother’s Swedish Bible, says the defense. “There were episodes he was thinking in a more logical, step-by-step manner,” Bursten says.
If someone is having a psychotic episode, can that have an affect on how their brain makes memories? Asks McNeill. Yes, says the psychologist.
After Jonchuck met with his lawyer, then saw a priest, then went to another church to ask to be baptized, he went home and took a nap, McNeill says. Later that afternoon, he got his stepmother to go back to the first church with him and Phoebe.
LANE AND ZACK (2:37 p.m.)
McNeill moves on to the next topic. At his lawyer’s office, McNeill says, Jonchuck was overly concerned with religion and religious icons.
Can psychotic symptoms wax and wane? Asks the defense. “They seem to have been with Mr. Jonchuck,” says Bursten.
No one disputed that Jonchuck loved his daughter “very much,” McNeill says. Yes, says the psychologist.
Jonchuck’s dad has asked him, “What’s up with all this religion?” the psychologist says. John had replied, “Nothing.”
In the evening, Johnchuck’s mom came to his dad’s house and they all had dinner. Jonchuck’s mom was going to take Phoebe home and drive her to kindergarten the next morning. But Phoebe wanted to stay with her dad.
Jonchuck told Bursten that he was not threatened by the relationship between his mother and Phoebe.
LANE AND ZACK (2:31 p.m.)
Jonchuck’s mom and his uncles told Bursten about Jonchuck using a scanner to print checks.
Then questioning stops. During a lengthy bench conference, a couple of jurors stand and stretch.
“Let’s talk about Noemi,” McNeill says, after a couple more questions about the scanner. “And Noemi didn’t want to have anything to do with John, right?” Not on Jan. 7, says the psychologist. “And yet John was texting her and calling her?”
“From the parking lot of her apartment, yes. ... She told him to go away and that he wasn’t allowed in her house,” Bursten says. At this point, Jonchuck turns to his left at the defense table and looks confused, furrowing his brow.
“They were just roommates. There was no relation there,” Bursten says. “He’d made similar inquiries in December.” But he’d never actually seen those texts between them.
ZACK (2:25 p.m.)
The people who were watching the trial from the gallery before lunch have left. It’s empty save for us, photographer Scott Keeler, a videographer and the court public information officer. There’s also one deputy sitting by the door.
LANE AND ZACK (2:15 p.m.)
The defense continues with this thread during the cross-examination.
“That lack of bonding that he experienced as a child grew and morphed into more behavioral problems as he got older,” McNeill says.
“If I look through the family history, and I look at the trajectory of his life, it’s pretty clear that bonding failure had a lot to do with who Mr. Jonchuck became,” says Bursten.
“And those things he experienced as a child were not his fault?” asks the defense.
No, says the psychologist.
Helinger has now told Bursten to answer yes or no to McNeill multiple times. He has not exactly gone along with her line of questioning, and it has affected the rhythm of this cross-examination.
Jonchuck started outpatient treatment at age 4 or 5, McNeill says.
“You learned from John that it was his uncles who outed him as being gay, right?” asks McNeill.
“I can’t say they outed him,” Bursten says. “I don’t have that in my notes.”
McNeill asks if that means Bursten did not ask the uncles about that.
“That’s probably fair,” he says, before checking more notes and confirming he did not.
“You’ve spoken at length about John’s financial issues, and said he manipulated people to get what he wanted, right?” asked McNeill. Yes, says Bursten. “And you heard he slipped at the Cheesecake Factory and that’s why he had a device in his back.” Yes. And those pre-settlement loans he got from that lawsuit allowed him to get a new car, new bedroom furniture for Phoebe, and buy a condo, McNeill says.
“I think he was accused of wrecking the plumbing,” says the psychologist. “And he defaulted on the whole thing.”
The defense now brings up Phoebe’s mom, Michelle Kerr. “You said this thing was growing in John because of fears about custody, right?” asks McNeill. Yes, says the psychologist. “And he was worried about Michelle’s new boyfriend, right?” Yes.
“He also had concerns it was a very unhealthy relationship and that would inflame the custody issues as well,” Bursten says.
Jonchuck made a report to the Department of Children and Families about Kerr and Kisser, McNeill says. Jonchuck filed for an injunction against Kerr on Dec. 30. That wasn’t the first time he’d filed for an injunction against her. He had one in place in 2013, McNeill says.
“The domestic violence between them was mutual,” the psychologist says.
The court allowed Kerr to see Phoebe at daycare, and at child visitation centers, McNeill says.
Bursten says he spoke to Kerr on the phone, but he wasn’t evaluating her. “I was aware she has her own set of mental health issues,” he says. When Jonchuck and Kerr “hooked up together, they were both drinking heavily.”
ZACK AND LANE (1:56 p.m.)
McNeill holds up the Social Security Administration letter, which has come up multiple times so far on different days of testimony. Jonchuck had the letter in his possession when he was arrested. It said Phoebe’s benefits payments would no longer go directly to him if he did not provide an accounting report of how he was spending the money on her.
McNeill is clarifying that this letter did not indicate the funds would be cut off entirely. She says Jonchuck was calling the Social Security office to try to take care of the problem in the days before Phoebe’s death.
Even so, Bursten says, that wouldn’t “diminish the level of stress” Jonchuck was feeling, which the psychologist has said was a catalyst for the killing.
“Did you reach out to professional colleagues?” asks McNeill.
Yes, Bursten says, he reached out to psychologist Randy Otto, who is an expert for the defense.
The public defender moves on to ask Bursten about bias. He begins a longer response, turning to face the jury as he speaks, then looking back at McNeill as he explains he was on guard and aware the people he spoke to who knew Jonchuck could be biased.
“What was most impressive to me, all the people I spoke with, what I was told was incredibly consistent,” Bursten says. “I had to take that into very firm consideration and actually that was probably a big decision maker of mine to consider administering the psychopathy checklist.”
Manuele objects to the doctor’s response.The judge overrules her.
Bursten says no one he spoke to seemed to be trying to “trash” Jonchuck.
“But I understand this was Mr. Jonchuck’s social world, and all these people had their own issues.”
He didn’t research the other people’s criminal history, he says.
He didn’t talk to Jonchuck’s mother, Michele Jonchuck, until she came into the state attorneys’ office on a subpoena. “She was very, very nice and told me this whole thing was very stressful to her.”
She’d been in and out of prison, jail, and Jonchuck’s life, and had her own substance abuse and mental health problems.
He met Jonchuck’s dad at the state attorneys’ office too, also under a subpoena.
“Your impression of John’s dad was he was not particularly insightful, right?” asks McNeill.
“He’s not a psychologically-minded individual focused on feelings,” Bursten says, later adding, “He doesn’t have a great appreciation of mental illness.”
When Jonchuck was a child, and was acting out, his dad would physically restrain him, wrap him in a sheet at times, McNeill says. Yes, says the psychologist.
McNeill is running through this to bolster the defense’s point that Jonchuck’s own difficult childhood included a lack of affection and mental illness that was not addressed properly.
Jonchuck rocks back and forth during this portion of the testimony.
ZACK AND LANE (1:38 p.m.)
McNeill questions the psychologist from the lectern. She asks about a visit Jonchuck made to the emergency room days before he killed Phoebe, concerned about heart palpitations. She says the ER doctors said Jonchuck was suffering from “acute anxiety.”
He had a similar work-up in November, Bursten says. “I kind of determined it was more of a generalized anxiety, increased heart palpitations.”
McNeill moves on to records from Dr. Gary Arthur, Jonchuck’s former personal doctor who has still not been called to the stand, despite being a frequent topic of discussion during testimony.
Jonchuck’s psychological difficulties made it impossible for him to hold a job, McNeill says. She says he lost his insurance. The psychologist says Jonchuck just stopped going to the doctor, that he never said anything about losing his insurance. But McNeill says that Jonchuck’s family doctor said he lost his insurance.
McNeill moves onto the PCL-R. The psychopathy checklist, she says, is not a test for insanity?“No, it’s definitely not,” Bursten says.
The defense is harping on this checklist because they didn’t want it to be mentioned during the trial in the first place. They argued the term psychopath or variations on it could make the jury more likely to deem Jonchuck guilty. The judge excluded “psychopath” but allowed some testimony about the checklist, and references to psychopathic tendencies or traits.
McNeill is hammering away.
Would you believe a person can have psychopathic characteristics and have a mental illness?
Yes, Bursten says.
Could they have psychopathic characteristics and be insane?
“The PCL-R is not called an objective test?”
Helinger calls for a bench conference. She’s scolding McNeill.
“Move on,” she says sternly, and it’s audible even from the gallery.
ZACK AND JOSH (1:26 p.m.)
Manuele says the defense has provided two previous cases to the court to back up its argument that the testimony of Jonchuck’s prior bad acts should not be allowed into the trial.
For much of the last day and a half, this has been like a side-trial running behind the testimony. The jury is never here for these arguments, but the defense has suggested Bursten’s testimony could be grounds for a mistrial, if it was supposed to have been inadmissible.
Helinger, though, has repeatedly disagreed with the defense. She’s doing it again now.
Manuele stands up and — raising her voice — pushes back. She wants the judge to offer “cautionary instructions” to the jury about how certain evidence they hear from Bursten can and cannot be considered.
“Ms. Manuele, you need to please modulate your voice,” Helinger says. “I can hear.”“Sorry, I always am,” Manuele replies.
The judge says it’s hard for her to focus when Manuele is being loud.
She eventually denies the defense’s motion. The jury is brought back in, and Bursten resumes testifying.
LANE AND ZACK (12:17 p.m.)
Bursten says Jonchuck admitted to being a substance abuser. “He told you when he first used spice, you could buy it in a convenience store then, right?” Yes, says the psychologist. Bursten says the psychologist has never bought spice himself, but talked to a lot of people who did.
“And he told you the last time he used spice was in December 2014, right?” Yes.
“He had told me that he’d stopped, briefly, then he relapsed,” Bursten says. “He told me he stopped around the end of September but relapsed in December 2014.”
Jonchuck also had an anxiety disorder, McNeill says. The psychologist describes that as someone who is feeling apprehensive, nervous, feelings of foreboding and anxiety. “We talked about panic attacks, but it was not consistent,” Bursten says. “He has anxiety.”
Every once in a while, Manuele slips McNeill a yellow sticky note with some comment or question for her to consider.
“You all ready for lunch?” Helinger asks the jury during a pause.
They stir; one man shrugs.
Okay, the judge says, we’ll break until 1:15 p.m.
JOSH, LANE AND ZACK (12:08 p.m.)
McNeill is asking Bursten about the characteristics of bipolar I disorder, trying to convince the jury that Bursten’s testimony could be reshaped to support the idea that bipolar disorder drove Jonchuck’s actions.
She starts with grandiosity, a word Bursten used repeatedly when discussing the psychopathy checklist on direct examination. Then she asks about a decrease in sleep. Jonchuck’s doctor previously prescribed him Ambien.
Bursten says it’s worth noting that Ambien is popular “on the street” for its euphoric effect.
“Do you think that’s why Dr. Arthur prescribed it to him?” McNeill asks.
“I didn’t say that,” says Bursten.
One sign of psychosis, McNeill says, is talking too much. Bursten says that last email Jonchuck sent to his lawyer might be a sign of that. “He was described as always on the go,” says the psychologist. “He was hyper. … He was described as being manic-y, that was persistent. He was a high-energy guy who got easily bored and needed a high level of distraction.”
In court, Jonchuck rocks slightly back and forth in his seat as Bursten explains this. His mouth is still slightly open. He’s been quiet this whole time and has rarely displayed any substantial reaction to testimony since the trial began.
The increase in goal-directed activity is another characteristics of bipolar I, McNeill says. “Whether it was driven by mania or other things, we can argue about, but he would have that at times, certainly,” according to Bursten.
Excessive involvement in behavior that could lead to painful consequences, like excessive shopping sprees or risky business investments, Manuel rattles off. Yes, Bursten says.
“He has psychotic features and a mood disorder,” Bursten says. “Again, no argument there.”
McNeill is basically retracing all the psychotic traits that Ellis already went through with Bursten. The psychologist’s answers are much shorter now, sometimes a mere, “Yes.” For the state, Bursten unprompted would go on in great detail about his analysis.
LANE, ZACK AND JOSH (11:54 a.m.)
Public defender Jane McNeill is conducting the cross-examination for the defense.
She asks Bursten if he is aware of the defense’s three experts (two psychologists and a psychiatrist) who had other findings in this case.
Yes, Bursten says. This is rote. Jurors probably saw Bursten sitting in the gallery during the other experts’ testimony.
Bursten is looking at McNeill as he answers her questions, a contrast to how he often faced the jury during direct examination. He sits straight, leaning slightly forward, and answers quickly. He appears ready and eager to engage with the challenge.
McNeill mentions the doctors at the jail and state hospital who are treating or have treated Jonchuck, in addition to the expert witnesses called by the defense. It seems McNeill is trying to show the jury that Bursten is in the minority with his opinion. Bursten, alternatively, seems to want to show the jury that his opinions are not in contrast with those of the other doctors.
McNeill goes over Jonchuck’s list of medications that he’s been taking in the mental hospital, and in jail. Bursten says he is aware of all of those.
“You do not dispute that John meets the first prong of the insanity defense?” McNeill asks. The first prong is that he has a mental illness. Bursten has repeatedly said that he agrees Jonchuck has serious mental illness.
“You referred to this case as a complicated case,” says McNeill.
Yes, says the psychologist. “There are definitely two sides to the coin.”
At the time of the offense, Jonchuck would not have qualified for a diagnosis of schizoaffective disorder, Bursten says. “Prior to the offense time period, he’d never been as impaired as he presented in January or moving forward. … But I have to look at the time of the offense, on the bridge.”
He explains that such a diagnosis would only come after six months of continuing symptoms.
Bursten says he’s not as interested in what Jonchuck was like in the state mental hospital. Though he doesn’t deny that the doctors who were treating Jonchuck there saw signs of more mental impairment. Bursten was hired to evaluate Jonchuck’s mental state at the time of the killing. That’s his only focus.
LANE AND ZACK (11:45 a.m.)
He blew through a toll booth, went the wrong way on the interstate, fled the scene, Ellis says.
“That suggests to me that he’d known what he’d done and was trying to flee,” Bursten says. “There was no explanation that he was being chased by a chariot of demons.”
Would you have expected him to proselytize about demons at that time? Ellis says.
The defense objects. Again, attorneys approach the bench. Jurors whisper to each other. Jonchuck stares straight ahead.
As an aside, while parts of Bursten’s testimony have seemed complicated and academic, this portion has been direct and clear. That’s important because it’s the heart of the case. Bursten is breaking down the moments before, during and after the killing. And with seemingly every sentence, he returns to his key point: Jonchuck knew he was doing something wrong.
The public defenders have not had a chance to cross-examine the psychologist yet, of course, and they will probably try to cast doubt on his evaluations or tie him up on the witness stand then.
Ellis asks Bursten for his opinion in this case.
“I believe that Mr. Jonchuck was not legally insane at the time of this offense.”
“Nothing further,” Ellis says.
LANE AND ZACK (11:41 a.m.)
Ellis asks Bursten about the potential Jonchuck was trying to kill himself by suicide-by-cop. Two of the defense’s experts who previously testified said it could be a possibility.
If that were Jonchuck’s intention, the psychologist says Jonchuck would be have been aware of his behavior and the wrongfulness of it. If Jonchuck was aware of a consequence for doing something wrong, Ellis asks, could he really be not guilty by reason of insanity?
Bursten says no. “It’s kind of the opposite actually,” he says.
Jonchuck told Bursten that, when he saw the police lights, he thought he was being pulled over for speeding. He was aware Officer Vickers was a law enforcement officer, and he was aware that law enforcement officers stop people if they’re doing something wrong.
That means that about one minute before he was on top of the bridge, Jonchuck was aware speeding was wrong and he could be stopped for it, Bursten explains.
“A guy who, right up to the murder, who has some appreciation of legal boundaries,” the psychologist says. “It doesn’t mean he was not having psychotic symptoms. You can have both.”
On the bridge, Jonchuck told Bursten that he told the officer, “You have no free will. I do.”
“That can be interpreted multiple ways. But at the very least he knew what he was doing and he was telling the police officer, “I’m going to do what I’m going to do. You can’t stop me.” There was no psychotic aspect to him knowing that was a law enforcement officer,” Bursten says. “He had a plan of action at that point, and I believe he played it out. And he got in his car and was gone.”
“I’m not putting any words in Mr. Jonchuck’s mouth,” Bursten says.
This is a very clear distillation of the prosecution’s case. And the jury looks engaged. Bursten is essentially saying no matter how you interpret Jonchuck’s behavior from the days before he killed his daughter, just minutes before he dropped the girl, he seemed to understand the law.
LANE AND ZACK (11:35 a.m.)
Bursten also looked at the deposition from the officer who came to the church to see if Jonchuck should be Baker Acted. “The law enforcement officer talked to the priest, briefly, about five minutes,” says the psychologist.
Manuele objects and all the lawyers gather around the judge. The judge calls for a 10-minute break.
Back on the stand, and with the jurors in their seats, Bursten begins referencing Jonchuck’s August email to Torres, his custody lawyer. You’ll remember this email was read in court last week. Jonchuck uses proper punctuation, and his words make sense. Bursten describes it as a typical business email.
Even later, around New Year’s Eve, Jonchuck’s emails are short but clear and appropriate. “Taking care of business,” Bursten says.
But in early January, Jonchuck sent Torres a rambling email without punctuation. Bursten says Jonchuck called Torres “missy.” A defense expert said these records showed his mental state devolving.
Bursten has a different interpretation. “Obviously there’s no punctuation, so you could say he’s running his thoughts together ... but even so the content of what’s in that email in my opinion is not in any way irrational,” the psychologist says.
“The content of that shows he’s tuned into a very difficult situation,” he adds. “There’s an attention to detail that seems very appropriate.”
Everybody can probably relate to trying to interpret someone’s punctuation in a text message or email, right? Trying to figure out if the person is mad at you? What do they mean by their style? The jury here has to make a not-all-that-different calculation in a first-degree murder trial.
In the last few weeks before Jonchuck killed his daughter, he was having crises with his finances, housing, relationships with his mom and Phoebe’s mom, and custody concerns, the psychologist says. “He went to his dad’s for about two days and the evening of the seventh his dad came home and they got into a verbal argument. He told his dad, “That’s okay, we’ll be gone in the morning.” He told another doctor that he unplugged his dad’s phone because he didn’t want his dad to call law enforcement since he was on probation. “That shows he was aware of legal boundaries,” the psychologist says.
“He doesn’t feel like he has a place to live, and he goes to Noemi’s … he feels rejection from his mother, he had a chronically unstable relationship with his father, he doesn’t feel he can stay there …. Then he goes to someone else and the same thing happens,” Bursten says. “He has acute relationship instability.
“His mom had just gotten him a job, just for a couple of days, and he didn’t show up,” Bursten says. Yet he was afraid he was going to lose Phoebe’s Social Security checks, so he needed an income. “Money, shelter, social relationships … everything was crumbling,” the psychologist says. “And there’s an incredible amount of anger and dissatisfaction. This is a person who historically has acted out.”
ZACK AND JOSH (11:15 a.m.)
Now seems like a good time to talk about the burden of proof in this case. In a traditional first-degree murder case, the sole burden lies with the prosecutors, who must prove “beyond a reasonable doubt” that the defendant planned and committed murder.
In this case, there’s no dispute that Jonchuck killed Phoebe.
But because defense lawyers in this case have raised the argument that Jonchuck should be found not guilty by reason of insanity, they also have a burden of proof. They are trying to show, by “clear and convincing evidence,” that Jonchuck was insane when he dropped Phoebe off the Dick Misener Bridge; in other words, that he suffered from a mental illness at the time and didn’t understand the implications of his actions.
That’s less than “beyond a reasonable doubt” but more than “a preponderance of the evidence.” You can’t easily put percentages on the legal standards of evidence, but think of clear and convincing as between 50 percent and 100 percent of certainty.
So Bursten is testifying that Jonchuck is clearly mentally ill, maybe even experiencing psychotic symptoms, but psychosis was not the reason Jonchuck killed his daughter. His explanation carries doubt. Maybe Jonchuck was insane, but Bursten doesn’t think so. He says Jonchuck’s personality disorder -- and a long pattern of violence -- were a bigger influence on his actions the night he killed Phoebe.
Meanwhile, the defense’s three experts all said Jonchuck was insane that night on the bridge.
But every expert has conceded it’s impossible to know for sure what was going through Jonchuck’s mind.
What can the jury take from this?
It seems like a lot of uncertainty. If the ultimate outcome of all this testimony is that jurors think Jonchuck might have been insane, or might not have been insane, will that be enough to find him not guilty? Is that clear and convincing?
LANE AND ZACK (10:56 a.m.)
So the psychologist had to look at other aspects of Jonchuck’s life.
“There were periods of adequate or typical reality testing,” Bursten said. “The individual was aware of what was going on and wasn’t completely psychotic.”
Again, Ellis talks about Thanksgiving, perhaps as the time everything started.
Then Christmas time: Bursten says “that visit was described as very good.”
“John was happy, no problems, he said a dinner blessing with the family,” the psychologist explains.
At one point at Christmas, Bursten says, Mr. Jonchuck went outside and was muttering to himself. “I’m not denying that he might have been hearing voices ... but even if he was hearing voices, there was no indication he was impaired. So I don’t believe that there was any severe indication of psychotic symptoms.”
“When he took Phoebe, he was very angry with his mother … There was no discussion of anything religious at that time, nothing psychotic in my opinion,” Bursten says.
They made plans for the next day, the psychologist says. “John was going to take Phoebe to school, his mother was going to pick her up and they were going to have dinner together.” Later that evening, the evening before Phoebe died, John asked his mother if he could come over and she said no, let Phoebe sleep. “Mr. Jonchuck was unravelling,” says the psychologist. “There was a balance of reality testing and unravelling.”
The jury is hearing the same timeline they have heard now several times over. For much of the last week and a half, experts have dissected Jonchuck’s actions in the run-up to that night atop the bridge. The defense’s experts interpreted those events as symptoms of psychosis and thus that Jonchuck was insane when he killed his daughter. Bursten is the first expert we’ve heard (we expect the prosecution to call two) who disagrees. You can read a wrap-up of the defense’s case here.
Jonchuck also went to his friend Noemi’s house the night he dropped Phoebe off the bridge, and she wouldn’t let him in. The “texting stopped when she said she was going to call the police,” about 9 p.m. “He was rejected by her,” the psychologist says.
On the night of Jan. 7, about 8:30 p.m., Jonchuck emailed his lawyer, Torres, saying he wanted to bring the money by her office but “LOL” he knew the office was closed. “He was planning to take care of business,” says the psychologist. At 10:25, Jonchuck emailed his attorney again, saying he was going to bring by $100.
The first email was just about four hours before he killed his daughter; the second was only about two hours before.
The priest said Jonchuck was worried about the devil. He didn’t discuss being possessed, or Phoebe being possessed. The priest thought “he wasn’t right” and suggested Jonchuck see a professional. “He didn’t present as being confused, or deranged,” says Bursten. “He didn’t ask for an exorcism. He didn’t appear to be paranoid. He said he was the pope, then he wasn’t the pope….. He even came back with his step-mother to show there was support for Phoebe. He wanted to prove that everything was okay. That shows him being in touch with things.”
This is already the longest continuous testimony we’ve heard since Thursday. The defense has not objected to anything Bursten has said in a while.
LANE, ZACK AND JOSH (10:44 a.m.)
The jury comes back in at 10:22 a.m.
Busten resumes describing the three types of violence, which he already outlined to the lawyers.
“Mr. Jonchuck’s case, we all know, at the very least dates back to August 2014 when he first contacted Ms. Torres. He didn’t have any contact with her again until December,” says the psychologist. “These tensions didn’t go away, but they were slowly simmering. Thanksgiving 2014 there was contact between Mr. Jonchuck and Phoebe, and Ms. Kerr’s boyfriend. There were no conflicts or problems. Everything was okay. They met again at Christmas. Mr. Jonchuck’s mother was there that time, and that was described as okay as well. But it was after that, between Christmas Eve and New Year’s Eve, that Mr. Jonchuck called, and there was that drama, things were flaring up … There’s evidence there was some violent ideation or rumination. Thinking over and over about it. I think this was a build-up of a long-standing conflict. There were a number of other things going on at the time.”
Ellis talks about a call regarding domestic battery, Kisser assaulting Kerr on Jan. 3. (We have requested this documentation from the Hillsborough County Sheriff’s Office to independently confirm this call took place, but we have not yet received the paperwork. Read more about this evidence in yesterday’s live blog.)
“That doesn’t really affect me in any way,” says Bursten. “Mr. Jonchuck told me he had concerns about that relationship. He’d called the Department of Children and Families and described problems in that household. I think he was concerned about problems there, about custody. This would be more throwing of gasoline on the fire, that he’d want to take care of the custody issue. This just inflamed what was going on. On one hand, he was concerned that Ms. Kerr had a relationship. But after Christmas, the issue of custody became much more of an issue.”
The psychologist describes “ruminations” Jonchuck had before the murder, like when he told his mother on Jan. 3, “I’m going to f--- up your life.” And when he left Mr. Torres’ office on Jan. 7 — the day before Phoebe’s death — he said, “None of this is going to matter tomorrow.” And he had a preoccupation with bridges, people jumping off bridges. “And we all know that’s where the crime scene was,” Bursten says.
Many of the jurors are taking notes and following closely as Bursten speaks. He’s not especially loud, but he gestures often and explains his theories in long responses.
Jonchuck at the defense table is whispering with Williams, one of his public defenders.
“This pattern I talked about, it’s most likely to occur in two mental states: psychosis and borderline personality disorder,” Bursten says. “I had to look at both possibilities.”
“Why did he leave his father’s house the night of the seventh? Mr. Jonchuck told me he thought an ice age was upon us and he took Phoebe to drive south, to avoid the ice age,” Bursten says. “I read police reports that he stopped on his own on the bridge. He told me Officer Vickers had pulled him over. My first thought was Mr. Jonchuck was experiencing psychotic symptoms. But when he left the bridge, he only traveled south to get on I-75, then he headed north. If this was a true delusion, he would not have stopped on the bridge, and he would have continued driving south. But the real issue was what he did when he dropped Phoebe over the edge of the bridge. He told me what he told two other doctors: When he was on the bridge, he thought the world was going to end, and the only way to prevent that was to kill himself and Phoebe. He told me the devil told him to do it. He told (another doctor) he was God. People do all kinds of things because delusion drives them. It’s a very powerful delusion that he has to save the world. That he’s God. Or the devil is talking to him. But he doesn’t follow the delusion. “If the delusion was telling him to save the world, he had to kill himself and Phoebe. I don’t understand — the delusion isn’t followed. He drops Phoebe over the edge and he leaves.”
Bursten continues: “So in terms of looking at this from a psychotic perspective I understand the symptoms are there but the real issue is connecting the dots to the bridge in my opinion.”
Jonchuck sips water from a small paper cup and adjusts himself in his seat.
“I feel I have to see how the mental illness leads to the act, the crime. But I didn’t see that here,” says the psychologist. “I could not trust Mr. Jonchuck’s description of what happened.”
LANE AND ZACK (10:23 a.m.)
Public defender Jessica Manuele argues that the psychologist never talked about a pattern of violence in Jonchuck’s case. She cites other insanity cases, where the defendant had mental defects and took large amounts of drugs and alcohol. “Were the actions closer to a depraved mind than a premeditated plan?” she asks. “Dr. Bursten has said a number of times he believes it was premeditated … certainly by introducing evidence through an expert witness, it’s given more weight, inherently, because of who it comes from.”
She says it’s hard to tell how prejudicial any of that testimony might be without having a “403 hearing.” Rule 403 of the federal rules of evidence states that a judge may prohibit evidence if its probative value for the jury is outweighed by its prejudicial value.
“We’re not able to process the information, research the information, or bring in more experts as we’re all learning this together on the stand,” Manuele says.
We have several observers in the gallery today and a couple appear to be taking notes as Manuele speaks. Bursten is sitting on the witness stand, looking away but listening intently as the public defender argues against the inclusion of his testimony.
Helinger, on the bench, looks down and considers Manuele’s stance.
As Manuele sits, the judge rubs her forehead.
The judge says she doesn’t think expert witnesses carry any more weight with the jury than other witnesses.
“I don’t consider his change of words, calling something a pattern as opposed to something else ... those clearly are synonymous terms,” Helinger says. “Just because he uses a separate word at the trial doesn’t mean that the whole thing is derailed.”
She agrees to allow the psychologist to testify about Jonchuck’s “pattern” of behavior.
LANE (10:18 a.m.)
Ellis asks about Jonchuck believing he heard the Swedish Bible he got from his stepmother knocking.
“When I reviewed the records, that information stands out,” Bursten says. “As I got further into the case, I saw that there were a lot of other things in this case which certainly includes mental illness, but other factors that I … had to give equal attention to in my evaluation. It’s very easy to say because those symptoms were present, he had to be legally insane. But there were a lot of other variables: History of aggression, anti-social behavior, history of relationship and employment instability. I had to look at those things and the psychotic symptoms and figure out how the whole fit, and what Mr. Jonchuck was thinking and feeling at that moment on the bridge.”
The psychologist says Jonchuck obviously has mental illness. But did he understand what he was doing, and the consequences of his actions at that time?
Again, the judge sends out the jury.
We’re back into a proffer, when Ellis has Bursten go over the psychologist’s planned testimony and the judge decides whether to let the jury hear it. The defense can also ask questions or argue against certain aspects of the testimony making it into the trial.
The psychologist describes three types of violence:
Emotional violence: spontaneous and immediate, impulsive
Planned violence: decided to act ahead of time
Intimate violence: persists over a period of time, like a teapot on a hot stove top that percolates, simmers and boils, then starts screaming quite loud — a conflict that builds and builds until it explodes.
Williams asks if the third type of violence would be considered catathymic violence. Yes, says the psychologist.
Catathymic violence can be caused by psychosis building up, or it can be unbridled anger caused by the personality disorder traits “rather than a distorted, psychotic mindset,” says the psychologist. “It can go either way.”
So if catathymic violence is caused by psychosis, is that a sign of insanity? Williams asks.
“It certainly could be grounds for NGRI,” Bursten says (NGRI = not guilty by reason of insanity).”If it was personality-based, it wouldn’t be. … I looked at both sides. I believe it was more driven by Mr. Jonchuck’s personality and his relationships than by his psychosis.”
Can experts differ as to whether there was a pattern of violence? asks the defense.
“I can’t speak for other people,” says the psychologist. “I see a patten, there was a conflict that grew over time, there were psychotic symptoms present, but I don’t think they were the culprit. … Things were building and building with Mr. Jonchuck. I’ve said that all along.”
“I clearly describe there was an ongoing building of conflict” in Jonchuck’s life, Bursten says, referencing his report in this case. “Not just custody issues, but other issues as well.”
ZACK (10:15 a.m.)
We just got Jonchuck's latest jail log. After leaving court, he received his monthly injection. That's Haldol, which he also takes orally. You can read more about his treatment here.
After the shot, a nurse checked his blood pressure. He also shaved, showered and ate dinner. In court today, he has sat as usual, often slightly hunched forward with his mouth hung partly open.
LANE AND JOSH (9:55 a.m.)
10. Poor behavioral controls:
11. Promiscuous sexual behavior. Jonchuck scored a 1 for maybe, though Bursten in his notes put an arrow toward a 2.
12. Early behavioral problems: Someone at an early age started to display intense problems.
13. Lack of long-term goals: They float around from place to place, plan do to things they never do. Living from place to place, not really formulating real goals other than very immediate short-term goals.
14. Impulsivity: Behavior lacks forethought or reflection, leaping before you think.
16. Failure to accept responsibility for his own actions.
17. Many short-term marital relationships: Someone with a full-time, live-in relationship, doesn’t have to be a marriage. But someone with a paramour for months. “Michelle Kerr is the only paramour Mr. Jonchuck lived with for a period of time. His roommates were not romantic relationships.”
Yesterday, the judge ruled that the prosecution can’t ask the psychologist about the last three characteristics on the chart. Those characteristics are Jonchuck’s juvenile delinquency; whether Jonchuck has ever had a “conditional release” like probation revoked for a violation; and whether Jonchuck displays “criminal versatility.” The judge ruled those three get at Jonchuck’s character and expose the jury to evidence of his prior bad acts, which are not admissible.
So Ellis had to make a new chart. Jurors probably don’t know there were three more criteria on that checklist.
“We have anti-social personality disorder. We have psychopathy,” Bursten says. “I would say severe."
LANE, JOSH AND ZACK (9:44 a.m.)
Ellis brings another poster board to the witness stand, then places it on an easel in front of the jury. It shows a copy of the psychopathy checklist Bursten used in his evaluation of Jonchuck.
Several jurors take notes. One squints to see the checklist from his seat in the top row of the jury box, another leans forward to get a closer look.
“This really was developed to be a personality test,” Bursten explains.
The Psychopathy Checklist-Revised, or PCL-R, is a 20-question test to gauge the degree to which someone has psychopathic traits. Each of the 20 characteristics are scored on a three-point scale: 0 for no evidence of that trait, 1 for partial or possible evidence of that trait and 2 for having that trait. In testimony Bursten gave at a pretrial hearing last month, he said above 30 renders someone a “prototypical psychopath.” On two occasions, Bursten said at the time, Jonchuck scored a 32 and a 34 on the test.
The first trait is: Glibness or superficial charm, amusing conversationalist, ready for a quick comeback, tells convincing stories, has the ability to pull people in, Bursten says. He scored Jonchuck a 1 on that trait.
“Mr. Jonchuck was described as having a used car salesman type of a personality,” says the psychologist. Manuele objects.
Second trait: Grandiose sense of self worth. “That has to do with someone who has a grossly inflated sense” of self worth.
No 3? Life in the fast lane.
4: Pathological lying, uses lies in some sort of malevolent way, to hurt people, create conflicts between people, it’s beyond not telling the truth, Bursten says.
5: Cunning and manipulative. Uses deceit, deception to cheat, defraud and manipulate others, schemes and scams are carried out.
6. Lack of remorse: A general lack of concern for the negative consequences his actions have on others.
7. Shallow affect: An individual who appears unable to experience a normal range of depth of emotion. Play-acting.
8. Callous or lack of empathy: A callous disregard for the feelings and rights of others, just concerned with himself, others are just objects to be manipulated. Lack of empathy allows a person free reign with other people.
9. Parasitic lifestyle: Someone who is financially dependent on others, they rely on family, friends and social assistance, may even use threats or coercion to get what they want.
Most of the jurors are taking notes on yellow legal pads, glancing between the prosecutor, the psychologist and the checklist on the chart.
LANE, ZACK AND JOSH (9:28 a.m.)
Bursten will be the only witness for today, the judge tells jurors. She reassures the one juror that he will be able to make his board meeting later today.
Ellis dives right into questioning, talking about the PCL-R — the psychopathy checklist that has already proven a sticking point in the case. The defense has wanted to keep all references to psychopathic traits out of the the trial.
“As I read the records and talked to the individuals, I felt that uniformly, each individual in their own was was describing Mr. Jonchuck,” Bursten says. Manuele objects. Lawyers gather at the judge’s bench.
And after six minutes, and only a couple of questions, the judge sends jurors away. “I don’t think it will be very long,” she says.
Bursten explains how the psychopathy checklist was developed by psychologist Robert Hare, how he was trained to use it by Hare in 1990, and how he updates his training over the years.
After about a minute, Helinger calls for the jury again.
ZACK, JOSH AND LANE (9:22 a.m.)
Public defender Jane McNeill begins talking again about “catathymic violence.” The defense says it reached out to an expert on the issue over the weekend who they say was able to argue catathymic violence as a defense in a Wisconsin insanity case.
Helinger asks if Wisconsin’s insanity law also uses the M’Naghten rule, which is the principle upon which Florida’s law is based. The M’Naghten rule states that a defendant is legally insane if he has a mental illness or defect which limits his ability to understand the consequences of his actions.
The judge doesn’t understand how catathymic violence could be argued under M’Naghten. Neither do defense lawyers, they say, which is why they need to redepose Bursten, to understand the relevance of catathymic violence in this case. Read more about the standard here.
Helinger looks to the prosecution and says: “Even though I’m not being asked to do so, it might be wise to let them re-depose Dr. Bursten only on that issue.”
Doug Ellis, a prosecutor, is clearly frustrated. He turns away, then paces back toward the bench. “I would strongly object,” he says. He explains that the state did not bring up “catathymic violence” in its questioning before the jury.
“It’s inappropriate to bring up something in depo that’s not being brought up by the state,” Ellis says.
Helinger says a re-deposition will not delay the trial; Bursten can make himself available after the trial today. Or, she says, the defense can take Bursten in a side room and ask their specific questions right now. It shouldn’t take long. Helinger offers to send the court reporter back there to put the meeting on the record.
The defense lawyers whisper to themselves. Helinger interrupts, saying she’ll bring in the jury, and if the public defenders want to ask Bursten questions during a break later, they can.
The judge brings the jury in at 9:19 a.m.
ZACK AND LANE (9:11 a.m.)
We begin with a bench conference.
Then Judge Chris Helinger says one juror has to be at a board meeting at 5:30 p.m. today and “he really wants to get there.” The judge says that should be no problem.
Jonchuck comes in, wearing a lavender shirt, looking at his lawyer. “Good morning, Mr. Jonchuck,” says the judge.
He replies slowly, “Good morning, your honor.”
Jury has not entered the room yet. Peter Bursten, the psychologist who began testifying yesterday for the prosecution, is on the stand.
Psychologist Peter Bursten has proven a controversial witness. Prosecutors will continue their direct examination of Bursten today as they try to show John Jonchuck was not insane when he killed his daughter, Phoebe, in 2015.
So far, defense attorneys have frequently objected to parts of the psychologist’s analysis. They say Bursten is listing offenses from Jonchuck’s past that are not relevant and could taint the jury.
The trial has stalled repeatedly as prosecutors and public defenders argue in front of Judge Chris Helinger over evidence, causing countless delays. After no testimony on Friday, the jury heard fewer than three hours on Monday. The slow pace and interruptions contributed to several eruptions of emotion. Read about that in our Day 15 live blog.
At the end of the day, an exasperated Helinger asked for a moment to read a police report.
“Can we have 10 minutes of silence?”
Read our previous coverage of the case below: