Jurors didn’t hear perhaps the most monumental words of John Jonchuck’s four-week murder trial.
They came from Kyrsten Malcolm, now 23, the former paralegal for family lawyer Genevieve Torres. Jonchuck went to Torres’ office the day before he killed his daughter. Later that afternoon, Malcolm told an empty jury box, Jonchuck made a series of erratic phone calls to the office. In one of them, Malcolm recalled, he made what prosecutors believe was an ominous threat: “If I can’t have her, then no one else will.”
The testimony was part of a proffer, when lawyers ask a witness questions with the jury out of the room so the judge can decide if the testimony is proper for trial. But because prosecutors didn’t alert the defense about that statement, the judge prevented the jury from hearing it. “I think the statement is a statement that is extremely important that the state put before the jury,” Pinellas-Pasco Circuit Judge Chris Helinger said. “It’s a killer statement.” But, she said, “I don’t think I can let it in. It’s not because I don’t want to let it in.”
It’s just one piece of evidence jurors didn’t hear before they began to deliberate Monday with an incomplete picture, the product of a trial process where lawyers curate the narratives, and issues of fairness supercede any desire to give jurors everything.
“In every trial, there are certain pieces of evidence the jury will not hear about,” said Pinellas criminal defense lawyer Jay Hebert. “That is by design and in compliance with the rules of evidence. The court has to take each one of those issues and vet them prior to them being presented to the jury.”
Here are four other things jurors don’t know or didn’t hear:
Testimony from Phoebe’s mom, Jonchuck’s uncles, friends, roommates and former boss
Many people in the trial talked about Phoebe’s mother. But Michelle Kerr was never called as a witness, and never came to court. She was diagnosed with multiple sclerosis soon after Phoebe was born, and can’t drive -- which was partially why Jonchuck had taken care of Phoebe after they split up. When Kerr started dating a new man, the prosecution argued, Jonchuck got worried she could now come get Phoebe. Kerr has mental health issues, and has used drugs. But it’s unclear why neither side wanted to hear from her. Jonchuck’s two uncles, who helped raise him and wanted to adopt Phoebe, also were referenced throughout the trial. But neither took the stand. Nor did any of the five women who let Jonchuck and Phoebe live with them. And Jonchuck’s former boss was never mentioned. Scott Hedger had supervised Jonchuck at a telemarketing company. A few days before Jonchuck killed Phoebe, Hedger heard him ranting about Abraham and Isaac, and sacrificing a lamb. “I hope I don’t have to make that sacrifice,” Hedger heard Jonchuck say. “I hope someone stops me.” Jurors never heard those statements, which would have spoken to premeditation.
Testimony of Dr. Gary Arthur
Over and over, the expert witnesses referenced medical records from Jonchuck’s former doctor, Gary Arthur. They dissected his diagnoses and the prescriptions he offered Jonchuck, trying to read between the lines of his case notes. But neither side called Arthur to the stand. The Tampa Bay Times reached out to him but did not hear back. Hearing from him would mean understanding first-hand what Arthur saw and observed in Jonchuck in the years before the killing. It’s hard to imagine how his testimony wouldn’t lead to a greater understanding of the case, but both sides apparently decided it would not help their arguments to put the Tampa doctor on the stand.
The word “psychopath”
Psychiatrist Emily Lazarou said in her evaluation of Jonchuck that he was a “cold-blooded psychopath.” But she never got to testify to that on the stand. The defense argued emphatically that the word “psychopath” should not be uttered in front of the jurors, and Judge Chris Helinger agreed. She referred to it as “name-calling” and did not think it would help the jurors better understand the case. The word is part of common language but probably not well-understood in a medical sense. It’s possible Jonchuck being labeled a psychopath in open court could have swayed the jury to the prosecution’s argument with made-for-TV testimony that the young father’s personality, not his mental illness, caused him to kill his daughter.
Jonchuck’s reported hallucinations during trial
The jurors had a mysterious break in the middle of the trial. They did not know why. According to the defense, Jonchuck had been hallucinating before jury selection even began — hearing voices and seeing things that were not real. He described how a psychiatrist who was testifying for the state showed up in the jail and disparaged one of his lawyers. That never happened. He heard jurors whispering that they would not find him insane. No one else in the courtroom heard that. Two psychologists were called in to evaluate Jonchuck to see whether he was still competent to continue standing trial. They ruled that he was, though they never fully addressed the alleged hallucinations when they spoke in court. The jurors did not hear about this issue for fear that it would taint their decision. Their task was only to determine whether Jonchuck was sane when he killed his daughter. How would it have affected them to know Jonchuck might not even have been able to make it through his trial without hallucinating?
Read our previous coverage of the case below: