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As Jonchuck nears trial, defense takes novel approach to gain any advantage

Pinellas-Pasco Circuit Court Judge Paul Levine addresses defendant John Jonchuck, center, during a first appearance hearing in 2015. The father is accused of throwing his 5-year-old daughter from a bridge into Tampa Bay, killing her. [DOUGLAS R. CLIFFORD  |  Times]
Pinellas-Pasco Circuit Court Judge Paul Levine addresses defendant John Jonchuck, center, during a first appearance hearing in 2015. The father is accused of throwing his 5-year-old daughter from a bridge into Tampa Bay, killing her. [DOUGLAS R. CLIFFORD | Times]
Published Aug. 15, 2018

In the coming trial of a father accused of tossing his 5-year-old daughter off a bridge to her death — a crime for which he faces the death penalty — nothing is normal.

That has certainly been true for the flurry of motions filed by defendant John Jonchuck's lawyers six weeks before his murder trial is set to start.

"It's an unusual case," said Pinellas County Clerk of the Court Ken Burke. "Unusual rules generally apply."

Some of the defense motions are routine in cases involving the death penalty — but others are very inventive, experts say.

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One of the more novel motions involves Burke's office, which has the authority to allow citizens to postpone their jury service if they have a conflict during that time period. Jonchuck's defense team has asked the judge to grant them the final say over whether prospective jurors can be excused from jury service — not the clerk's office.

"I've been clerk now going on 14 years and I've never seen that before," Burke said.

Jonchuck, now 28, will stand trial for one of the most infamous crimes in recent Pinellas memory: He is accused of driving onto the Dick Misener Bridge just after midnight on Jan. 8, 2015, just north of the Sunshine Skyway Bridge, pulling his 5-year-old daughter Pheobe out from the car and dropping her 60 feet into the cold waters of the bay below.

A St. Petersburg police officer witnessed the incident. Rescuers found the girl's body within the hour.

Jonchuck was charged with first-degree murder. But the case has faced years of delays as doctors have worked on Jonchuck's mental state. In Florida, a defendant can only stand trial if they are mentally competent. A jury trial is scheduled to begin Sept. 24.

FROM 2015: Police: Girl, 5, dead after father drops her from Sunshine Skyway approach

It's common in the run up to trials for attorneys to load the court file with motions in an attempt to give their side the advantage, even a slight one. Jonchuck's public defenders have gotten creative, targeting the start of the trial — jury selection — and the end, when victims have the chance to address jurors if the defendant is convicted.

In a batch of four motions filed Aug. 9, the defense asked to alter the jury selection process and voir dire, the act of questioning prospective jurors.

It can be hard to seat a jury in death penalty cases — the added layer of publicity that comes with a high-profile case like Jonchuck can makes it even more difficult to find impartial jurors. Some of the motions attempt to mitigate the effects of publicity on the jury selection process.

One motion asks to permit the questioning of each prospective juror individually. Another motion wants permission to record that painstaking process, which isn't normally captured on video. Veteran defense attorney Bjorn Brunvand speculated that, in the event of an appeal, that could help the courts actually watch jury selection instead of just reading transcripts.

"When you read a transcript of a proceeding versus when you can actually see it, it makes an incredible difference," Brunvand said.

He used the 1992 Joe Pesci movie My Cousin Vinny as an example. In it, a young Ralph Macchio, falsely accused of shooting a store clerk, bewilderingly asks: "I shot the clerk?" But in the movie, when the sheriff read that transcript in court, the prosecution tried to frame it as a confession.

"Sometimes the demeanor of a potential juror, the emotions that they display, tell a lot more than what's on the record," Brunvand said.

PREVIOUS COVERAGE: Judge finds John Jonchuck competent to stand trial in death of 5-year-old daughter Phoebe

Jonchuck's lawyers also asked for a hearing ahead of the trial during which attorneys can review, and object to, all the requests prospective jurors make to be excused from jury service. Normally that is under the purview of the clerk's office. But that system could be unfair to Jonchuck, his lawyers say in their bid to ensure a diverse jury is seated.

"An unmonitored excusal system can result in certain groups of persons being both unrepresented, and under-represented on the jury panels, which would deprive the defendant of his right to a jury drawn randomly from a fair cross-section of the community," the defense wrote. "Often it is poor people and minorities who telephone the Clerk of Court and ask to be excused because, for example, of the financial burden and difficulty of obtaining child care, of finding transportation, of missing work, and so on."

Attorney Ken Turkel, who represented wrestler Terry "Hulk Hogan" Bollea his successful civil suit against Gawker Media and has written about jury selection in high-profile cases, said he's unsure how that motion would play out if granted.

"What are you going to do evaluate the credibility or veracity of the excusal (requests)?" he said. "This is a routine administrative function of clerk's office. And the rules are pretty clear the clerk is authorized to provide postponements."

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Pinellas-Pasco Public Defender Bob Dillinger, whose office represents Jonchuck, said his office does not comment on active cases.

Jonchuck's lawyers also want to reduce the role victim impact statements play at the end of the trial. If Jonchuck is found guilty at trial, then comes the penalty phase. Jurors will hear the state argue that he should be put to death, and the defense argue that his life should be spared.

Victims, such as surviving relatives, normally have the opportunity to read statements to jurors about the impact of the crime on their lives before the jury starts its death penalty deliberations.

But Jonchuck's attorneys said the family's "extremely emotional" statements "has a high operability of unduly, unfairly, and unconstitutionally prejudicing and inflaming the jury."

So the defense asked that victims not be allowed to read their impact statements until after the jury recommends life or death. Another asks that the victim's statements be read by a third party, so as to drain the process of as much emotion as possible.

And in a long shot, the defense asked the trial judge to rule victim impact statements themselves are unconstitutional.

"I don't think the trial courts here in Pinellas County are ready to declare that victim impact evidence is unconstitutional," defense attorney John Trevena said, "but they may grant some of the preemptive measure the public defenders are seeking to limit its damage."

But he added: "You've got to do everything you possibly can to protect your client's interests."

Contact Josh Solomon at (813) 909-4613 or Follow @ByJoshSolomon.