Bianchi on Law & Crime Network - #KevinSpacey

Always great to have Gene Rossi on Law & Crime. These cases are the top crimes currently in the media today. Always love having a pro like Gene on my show!

#KevinSpacey #McStayFamily #murder #JasonDalton #Uber #truecrime #Arraignment

Bianchi on Law & Crime Network – #KevinSpacey

January 11^th, 2019

Robert Bianchi: Well. Welcome back to the Law and Crime Network. My name is Bob Bianchi and I’m going to be taking it from twelve to three. We’ve got a lot of exciting stuff in this block, but first I want to bring on my guest right away. My hashtag 40 41 awesome trial lawyer, close to three decades at the Department of Justice, over a thousand Prosecutors trained. Does criminal defense work, prolific trial career and his own radio show. Gene Rossi. Welcome back.

Gene Rossi: Good morning. Good morning. Good afternoon. I’m sorry.

Robert Bianchi: Good afternoon. Yeah. So, listen, Gene, we’re just right off the get go. This Kevin Spacey Arraignment this case in general. We’re going to show some clips in a little while from that, but what are your general thoughts about what you saw in that courtroom.

Gene Rossi: On Kevin Spacey, matter? I didn’t see that. But I will say this, whenever you have charges where you have not just the person who’s the victim in the charge against you, but you have other allegations, he has 20 to 30 other allegations. What, what could happen if he goes to trial, it looks like he may go to trial is as you know, those other allegations may come in, even though they’re not charged, is what they call 4, 4B other crimes evidence to show motive, plan, opportunity, intent. So, that’s the biggest hurdle for Kevin Spacey. It’s not just that one victim in the charging document in Massachusetts, it could be 20 to 30 others.

Robert Bianchi: Well I was just recently asked on that very point Gene, let’s go to the Cosby factor. So, they get a mistrial in the first case, that 404 evidence that you referred to is typically not to include other acts or other prior or after acts of bad character because they don’t want it to be a trial by character assassination. But as you of course actively cited the rule, there are exceptions to it. And in Cosby they originally indicated, I think there was like five other things, or a couple that they were allowed to use and then they allowed in the second trial a lot more. And people, legal scholars like yourself believe that that was the tipping point for them. And that’s what you bring up could occur in the Spacey case. And you know, I, when I first started my career, Gene Rossi, the judges were very, very circumspect about allowing 404 evidence to come in because it’s like multiple trials within trials. They called the trial by ambush. But I agree with you, the facts, we seem a little weak on Spacey if just that young man testifies. But if you add to it a plethora of other complaints, it doesn’t, it almost ensure guilty verdict?

Gene Rossi: Well you’re throwing spaghetti at the wall and hoping one sticks including the county indictment, but it puts a cloud over the defendant. A prosecutor loves four, a four B. But here’s the thing, Bob, as you know, Higgs get fat, hogs get slaughtered. I had judges tell me, listen, Mr. Rossi, are you really sure you want all these other acts in? Because on appeal it may be reversed, a battle and lose the war.

Robert Bianchi: Amen. Gene Rossi, I used to train my trial lawyers that way, in fact the murder case that just recently was heard by the Supreme Court that I had tried as a Prosecutor. They indicated while they were concerned about the 404 evidence because it went to motive, which is the strongest reason to use it. I was allowed to use three pieces of 404 but I only used one because I wanted the court to see that I was being judicious in the manner in which I did it and not a pile on. And that court ultimately said, had you used all three, we believe the defendant’s right to a fair trial would have been affected. So, Gene you got, that’s tactical lawyering. We talked about this all the time. It’s not just about winning the trial; it’s about surviving the appellate process. So, let’s go Gene to the arraignment really quick. And one of the clips and I’ll talk to you about it on the other end. I’m telling you right now Gene Rossi. Cause you know what? This, this whole studio Gene, it cannot deal with me and you not talking with one another. But to your point with regard to the appeal, I think that this is a problem where we see many cases like Villagas that we just handled, and a lot of the trials in 2018, Prosecutors have to retry decades later because of mistakes made at the trial level. I just think that that’s a bad prosecutorial tactic. Just because you can and a judge says you can, doesn’t mean you should.

Gene Rossi: Absolutely. I, there was a case United States versus Dr. William Hurwitz. I had to try him twice and the reason we tried him twice is I persuaded a judge to give a very good instruction on willfulness. It got to the fourth circuit, US Court of appeals, Kaboom. I had a retry him several years later and retrials as you know, is like putting on a wet bathing suit. It’s miserable.

Robert Bianchi: A wet sandy bathing suit and let’s go into that clip on the arraignment Gene, we’ll be right back with you. All right, welcome back. So, you’ve seen the defense lawyer arguing there at the end of that clip, Gene, I want to go right to this issue because I at least find it to be odd. Others are not finding it odd. You have a defense attorney that’s asking to preserve information, electronic data in the case. Now, the reason I say that I find that odd is that usually as the defense lawyer, if you’re going to do that, you’re going to want to make sure that that information is going to be solid good information because you could open Pandora’s box by getting something that actually harms your client. What do you think?

Gene Rossi: I think it’s only a good thing for the defendant. Here’s why, Bob. First off, you could have a highly likely exculpatory evidence, evidence that points towards innocence for Mr. Spacey or it attacks the credibility of potential witnesses, but let’s assume that the data that you’re trying to preserve or get the government to preserve of witnesses, you want to know that bad information. You want to know what that is out there could harm Mr. Spacey for a couple reasons. One, to help you prepare for trial obviously, but what if it, it’s such bad information and it helps the government so much. Maybe it could tip the scale and have Kevin Spacey consider a guilty plea.

Robert Bianchi: I don’t want as a defense lawyer, I think that is a huge risk because what I want to do is, you know, Gene at the end of the most cases that judge reads, the judge reads a jury charge about the lack of evidence. You can find them not guilty based on a lack of evidence or failure to do an investigative step that they should have done. As a defense lawyer, I want to bring out on cross examination, if I don’t know what’s in those records, you never got the records, you did half an investigation and now my client has to sit here based on just the little piece of something as opposed to a whole thing. I mean, reasonable minds can differ, but I would not be asking for something to be preserved that could come back to hurt my client, forcing him into a plea agreement.

Gene Rossi: Well, Bob, what this tells me is they have a sense that the evidence that the trying to preserve in fact does help Kevin Spacey. Agreed. They’re willing to roll the dice. That defense attorney seemed pretty confident that that information could help Kevin Spacey.

Robert Bianchi: Yeah, and that’s my point Gene. I agree completely. I this guy, look, I had a case one time and a murder case as a defendant and defense attorney where the, my guy said he didn’t do it. They had fingerprints on a can but they never analyzed the fingerprints. And before trial he was like, oh, I want those fingerprints analyzed. And I had to sit with him and say, are you certain? Are your 100 percent certain that those are not your fingerprints? Because you know, you know, clients can lie to you because if they come back and they realize they made a mistake and there your fingerprints, your r d o n e done.

Gene Rossi: Yes. I mean the ineffective assistance of counsel.

Robert Bianchi: Right. And you know what? Actually, he convinced me to do it. We got the fingerprint analysis and it wasn’t him. So, I go, that goes to the point that I believe this defense lawyer is knows something is in there that either one, helps Spacey or two, melanized the credibility of these two witnesses and that’s why he wants it. Gene taught us a little bit about an arraignment and what it is.

Gene Rossi: All right. In an arraignment is not an initial appearance, and people get that confused. An initial appearance is when you first step in court. You don’t even have an attorney and they tell you what the charges are and then they set a bond hearing for an arraignment, especially at the federal level is when your read the indictment or its way and you’re asked to plead guilty or not guilty, and if you don’t plead guilty, which is rare, which is rare to plead guilty, they set a trial date and a motion hearings date. That’s an arraignment.

Robert Bianchi: Right. All right, Gene, Listen, we got more Spacey coming up and the potential for a press conference at 1:30. Don’t go anywhere we are here at the Law and Crime Network not just with Spacey but we have some fascinating trials in 2019. We’re going to take a break, be back on the other end. Welcome back. As I told you, we got a lot on the plate today, so we just found out here at the Law and Crime Network that that the McStay family murder case. That is where four went missing, and three years later found in a shallow grave, and that is a mom, a dad and two preschoolers, Giana and Joey Jr. The judge has made a ruling. He made his way to the very last minute. It was a nail biter. He is allowing live streaming from the courtroom, Amen, the public gets to see it and we get to break it down here on the Law and Crime Network. I want to just jump back really quick though to Kevin Spacey. Gene, this, this guy posted a really bizarre video recently that he put out into the public domain. I’m not sure if you’ve had an opportunity to see it. We will in a minute. But I’m curious, what do you do when you have a client that decides that? I’m just going to go down to the court of public opinion and start putting stuff out there, and I’m sure the lawyers were no too happy about it.

Gene Rossi: I’ve had several clients like that. Here’s the thing, I want to take gorilla tape, duct tape and put it over their mouth. Anytime a defendant over the advice or defense counsel speaks, it’s never a good thing.

Robert Bianchi: Yep. As they glean information from it that can now be used against you in the court and the trial of course.

Gene Rossi: Now the clip that you probably will play of Spacey, that’s a little bravado. Always trying to be cute about a Frank Underwood. I want if our Prosecutor, I just stay away from it. It’s stupid. But what, what’s going to be hard, hard during jury selection is how many people have already seen that

Robert Bianchi: And let me ask you, even if there’s nothing inculpatory about a you, I forget the adjective you just used, but does it come off as smug and kind of looking at the court system in a serious situation like this, and the face and not taking it seriously enough. If the jurors do get the seed either outside the court, courtroom or inside the courtroom, will make them think that this guy really thinks, who the heck he is, that he’s making fun of a serious situation like this.

Gene Rossi: Absolutely. I’m not sure if Bill Cosby did something like that, but he was sort of smug during both trials when he walked out of the courtroom. And I, I do think that eventually heard him at any time. Anytime a defendant acts smug, that’s not a good thing.

Robert Bianchi: Yeah, smug, no good. Okay. Let’s take a look at that video Gene. And let’s see what we’re talking about in detail and be interested to see what you guys think online and the chat rooms about whether or not you think that this was a good idea for Kevin Spacey.

Kevin Spacey: I know what you want. Oh, sure. They may have tried to separate us, but what we have is too strong. It’s too powerful. But after all, we shared everything, you and I, I told you my deepest, darkest secrets. I showed you exactly what people are capable of. I shocked you with my honesty, but mostly I challenged you and made you think and you trusted me even though you knew you shouldn’t, so we’re not done. No matter what anyone says and besides, I know what you want. You want me back? Of course, Some believed everything. I’m going to just been waiting with bated breath to him. He confessed it all. They’re just dying to have me declare that everything said is true and that I got what I deserved. Wouldn’t that be easy? It was also simple. Only you and I both know it’s never that simple, not in politics and not in life. But you wouldn’t believe the worst without evidence, would you, you wouldn’t rush to judgments without facts, would you? Did you? No, not you. You’re smarter than that. Anyway. All of this presumption made for such an unsatisfying ending and I think it could have been such a memorable send off. I mean if you and I have learned nothing else these past years, it’s that’s in life and in art. Nothing should be off the table. We weren’t afraid of what we did, and we’re still not afraid. What we did and we’re still not afraid because I can promise you this. If I didn’t pay the price for the things, we both know I did do, I’m sure they’re not going to pay the price for the things I didn’t do. Well, of course they’re going to say I’m being disrespectful, not playing by the rules like I ever played by anyone’s rules before. I never did, and you loved it, anyhow, despite all of the poppycock, the animosity, the headlines, the impeachment without a trial, despite everything, despite even my own death, I feel surprisingly good and my confidence grows each day. The soon enough you will know the full truth. Wait a minute, now that I think of it, you never actually saw me die. Did you? Conclusions can be so deceiving, miss me.

Robert Bianchi: Gene, no matter how you cut this baby up, this is just bordering on bizarre and weird, plain and simple.

Gene Rossi: That’s pathological. Bob, I got to tell you this. I said that if I were a Prosecutor, I wouldn’t play parts of that. I don’t know. I might be an equal poise. That was deranged, arrogant, condescending behavior. I’m above the law and I don’t play by the rules. Please, and I got to tell you this, if his attorneys were in that room when he filmed that or knew about it and condoned it, shame on them.

Robert Bianchi: Well, Gene, let’s go to that point. I wasn’t thinking of discussing this, but I think it’s a really good point. It’s like well what was that guy’s name that went into the bathroom with the mic on and, and he was, essentially may have confessed to a crime not knowing that he was, he was live. My point is that I’ve seen a number of, quote unquote, high profile celebrity lawyers who love the keep the media going, love to be in the room and letting them give interviews. I can just tell you from my standpoint, from what I do, I’m sure you do, and I know as a Prosecutor, most defense lawyers do is they lock it up. They don’t want media attention. They don’t want it to be the court of public opinion. They don’t want it to be a spectacle. Now, I know that’s good for business for the lawyer, but it always seems to me to be bad for the client. Can you think of one who ever benefited from it?

Gene Rossi: None. Zero period. Here’s the thing. I just had a thought. Maybe they made the calculation, that Kevin Spacey, will either plead guilty or be found guilty by a judge or a jury and they’re making a calculation that he won’t get jail time or get very little. That’s a, that’s a video that’s sort of prepping for his return. His second APP, the Comeback Kid. Just thought of that.

Robert Bianchi: Well, I’ll tell you another thing Gene. A lot of people think that people of high stature like Kevin Spacey, Bill Cosby, people this nature get a bigger break in the criminal justice system. It has been my experience that once charged, it’s actually harsher against them and Prosecutors want to make sure that, and judges want to make sure that it’s not perceived that they’re getting a break over the average guy. What’s been your experience with that?

Gene Rossi: I think that the courts are more hard or harder on celebrities. I do believe that they want to send a message, but I, you know, I did want to say this. Where’s this case being tried in Nantucket? Alright, I’ve been in Nantucket it’s a beautiful island. Maybe the jury pool there, I don’t know. They may have done polling. Who knows? That is somewhat sympathetic relatively to the allegations and they’re not going to be accepting the government’s position, you know, without any questions. Maybe they’ve done some research before they did that video. I don’t know.

Robert Bianchi: Well, you bring up the point that it is, it is true. I don’t think the video is good anywhere, period, end of story. But where are you are in a particular county can substantially change the outcome of cases. When I, I’ve used this with you before, when I was in an urban county, in Hudson county or an Essex County, you had one kind of jury pool and when you go to a suburban county, which was predominantly white and very affluent, they were extremely conservative and the Prosecutor’s job was far easier with those convictions. I mean, there’s no question about that.

Gene Rossi: Oh yeah. Well, I’m from the Eastern District of Virginia. The jury pool has changed dramatically, but 25 years ago I would have drug dealers talking on wire taps and on recorded calls saying don’t do any drug deals in Virginia, they actually enforce the laws and you’ll get a stiff sentence. So, you’re absolutely right, it does depend on where you’re trying.

Speaker 1: All right. Hey, listen, Gene always love having you on my man, a guy who speaks from experience and very capable of trial lawyer. As I indicated to you guys, the McStay family murder case where this guy Charles Merritt is accused of obliterating a family. We are going to be able to show a live stream of that trial and I can’t wait to get to it because this was an old case, got solved in a very unique way. There’s a picture of We have him now. We have to run to a break. We will be back, stay with us and I’ll be adding more commentary with my man, Gene Rossi.

Robert Bianchi: As, I said, we have breaking news here at the Law and Crime Network the McStay family murder case where Charles Merritt is on trial for having killed, killed an entire family. It was a 2010 case. It was at first a missing persons case, then a motorcyclist is driving in the desert years later and sees the skeletal remains that turn out to be the McStay family. And this is really the cops were baffled by this, and they arrested Charles Merritt. At one point in time Merritt wanted to defend himself. He wanted to go pro se as they say, and he claims that he’s only got months to live. Nevertheless, we were not sure whether the judge was going to allow this trial to be live streamed. This is a, a thing that I don’t understand in 2019 by, we won’t have to battle to get inside that courtroom. Their proceedings are about to begin.

Robert Bianchi: We told you that when they do, we will be covering it live. Gene, I mean this case is really unbelievable. It’s a mom, a dad, Joseph and Summer, were the parents to preschoolers Gianna and Joey Jr, they were, I had to be identified by dental records and Charles Merritt was the business partner and they believe that that is the motive for these murders. I, I think it’s going to be a fascinating case coming up here and I just really interested as to whether or not the Prosecution, or rather than the Defense is going to argue you got the wrong guy.

Gene Rossi: You know, they probably could argue that, the thing about these murder cases that are old and you don’t have any bodies other than dental records, that is sort of a disadvantage for the Prosecution because you can’t tell how they passed away, what was done to them while you have her dental records. I think that’s a problem. And number two, just, whenever it’s an old case, you don’t have as many records. You don’t have any witnesses that I understand and I don’t know if they have DNA doubt, they do.

Robert Bianchi: So, Gene, what do you have, gets you to your point is a years old case. This biker finds, well, let me back up a little bit. At first it was considered a missing persons case. The family was trying to get the police to go to the house to do a welfare check. They didn’t see any signs of foul play. Eventually a family member, as I understand in this case, goes through the window of the family’s house, finds that the dogs had not been fed for many days and that there was food still on the kitchen table as if it hadn’t been eaten. And that obviously became suspicious and the police became suspicious. The FBI was brought in, Interpol was brought in because at a certain point in time they found computer records that were made to look like the mother and father, maybe wanting to take the kids and get them passports to go to Mexico. There was a belief that they saw a vehicle or a description of these individuals going into Mexico. So, he had all these interagency things happening. But to your point, something that I’ve found really interesting, at least a tell me, is that on November 11, 2013 the biker finds the human remains in a desert. As you’ve indicated, makes it very hard to do it, very complete pathological, pathology, if you will, from a forensic medical examiner. But he wasn’t arrested almost in 12 full year later on November 7th, 2014, that’s literally a week shy of a year or four days shy of a year from when the skeletal remains were recovered. It says to me that they had a really developed some motive here, and they were not 100 percent convinced of him as a target from the beginning, clearly.

Gene Rossi: Right. And they probably found their motive, which was some financial problem that he had may have had with our Joseph McStay or the Joseph McStay family. And that takes time to develop a financial case. And it seems like the motive is basically a financial case. You can’t do that in one week. You have to get records and you’d have to talk to witnesses. So that’s why it probably took a year.

Robert Bianchi: Well, I think it’d be really interesting to listen to the Prosecution’s opening here, to see how they tie them in and we are told that from my producers that the jury’s actually in the court room right now. So, the Prosecution, of course, the first order of business Prosecutor’s going to give their opening statement, Gene Rossi. We love to critique the attorneys and the cases, having been in the fire ourselves, we always wish them the best of luck, both the Prosecution and the Defense because everyone is entitled to have a strong, hard hitting fair fight. That’s what gets us best to the approximation of truth in a case. What do you think, I know it’s kind of hard to ask you to speculate, but you know, I’m a fan of defense lawyers being specific as best as they can to give the jury the idea of their defense if they can in the beginning? Yeah. What do you think?

Gene Rossi: I’m just going to guess, that in the Defense opening I would say this, this is an older case. You have dental records. It’s a horrible crime, horrible, but all you have against my client is that he had a business relationship that wasn’t going well and therefore he’s going to kill four people because of that. That will, the evidence will show that makes no sense. And the evidence directly against my client is relatively none. They are stretchy. That’s what I would say.

Robert Bianchi: Right. And Gene, you know so, we have so many new viewers on so many different platforms, here now on the Law and Crime Networks. So, the problem is many have not had the opportunity to listen to me and you as we debate these issues, having been on both sides of the aisle, arguing criminal cases for our entire careers. The point that I think we’re trying to make here is rather than get up and just say, you know, you have to keep an open mind and, and, and he’s presumed innocent and the State has to prove the case beyond a reasonable doubt. But those are all good points to make. But you have an opportunity in the opening to frame the form the minds of the jurors. They say Gene, especially for prosecutors. But I agree, defense lawyers, that the opening could be the most critical place of the case because it gives the jury the understanding of when the evidence is coming in, one witness after another witness, they understand the context of how that evidence is coming in and its meaning.

Gene Rossi: The other point I want to make, I agree with you is I’ve seen so many defense attorneys get up there and, and I don’t mind them talking about beyond a reasonable doubt, keeping an open mind, but they seem defensive and, and a Defense attorney has to be aggressive relatively in their opening and they have to build a rapport in the opening statements so that whatever comes out of your mouth has credibility. You don’t over promise.

Robert Bianchi: I agree with your 100 percent that judges talking. Let’s just take a little peek in there and see what’s going on. And so, what we are looking at is the beginning of this McStay family murder case where Charles Merritt is charged. The judge got up there and basically laid the ground rules, which are not uncommon in a case like this, I will allow live streaming, but you’re not the shoot that jurors, you know that that always is a concern and that is a standard thing. They are now at sidebar. Presumably we’ll be starting opening statement soon. Gene, I don’t know about where you’ve practiced, but the thing they didn’t tell me when I tried my jury trial as a Prosecutor, was that before you actually open, the judge gives this, the preamble if you will, to the jury. That could be like 15 or 20 minutes long. I was like a caged lion. I was so nervous, excited, so many different emotions going, my heart pounding. I was like, when is this judge going to just shut up so I can start talking. Do they do that where you’re at?

Gene Rossi: I, I actually, yes, they did. They call them preliminary jury instructions. Instructions that the judge gives the jury before openings. I liked them and here’s why. I always try to incorporate in my opening one or two points that the judge said in the preliminary instructions. So, then I’m getting credibility cause I’m quoting the judge, and I used to like that and I felt it was very effective. I enjoyed them, I enjoyed them.

Robert Bianchi: That that’s something I used to train my lawyers to do both in the openings and the closings, you know, we all know what the law is going to be in the closing as a charge conference beforehand. It’s written out. The judges typically just reading word for word and, and, and seeing something that, you know, the judge is going to say like it’s not just you, you, you, you can find them not guilty, not just based on the evidence but the lack of evidence. And if you don’t believe me, I’m pretty confident the judge will tell you the same thing. And you literally see the jurors look at you when the judge says it, as if like, yeah, that’s what you said.

Gene Rossi: Exactly. And, the other thing, my preliminary instructions, the judge never shows you those before she or he reads it to the jury never.

Robert Bianchi: Right, right. Yeah. I guess my first job was just, I wasn’t anticipating it and so I just wanted to get up there and like I said, I was really nervous and I talked to lawyers about that afterwards and embrace your, your nervousness and your fear. It’ll all go away the minute you get on your feet. We’re watching court right now. I’m, I don’t know if we’re going to go in and, yeah, let’s go see what the judge is saying because openings have to be starting soon. Gene, you know the, all that, is there a hurry up and wait. So, the judge gives a preliminary instructions, he’s taking a five-minute break. We’ll see whether there’s judges a stickler for that because I’ve been involved in trials Gene where they say five minutes and they don’t come back out on the bench for 45 minutes. So, it makes it very hard for a Prosecutor by the way. Let’s talk a little bit about that. If you have a judge who may be isn’t that timely or is thinking a lot of breaks and as a Prosecutor, you have to have all your witnesses ready to go and you want your witnesses in a very specific order. We’re very anal retentive about how our case is going in and you know, life is life. Sometimes witnesses can’t make it. They have work commitments, they get sick, the car breaks down and yet I’ve seen other lawyers, Gene Rossi, other Prosecutors, you’ve trained a thousand of them who just kind of like, well I’ll just throw whatever witness on no biggie and Oh, it’ll come together at the end, which I think is disastrous for a Prosecutor to do.

Gene Rossi: Yeah, I trained a lot of Prosecutors and it was like herding cats at times and there’s a judge in the eastern district of Virginia, Alexandria. I love him to death, but whenever he said, we’ll take a five-minute break. It wasn’t 45 minutes; it was 50 minutes and we used a bet an over and under and I always won because I always estimated more time. And that is actually frustrating because you have witnesses teed up in the hallway and you’re trying to get them out of there, and they’re putting stress on you because they got to go daycare, they have work commitments and it’s added stress. So, I’ve had, some judges that were punctual as heck and would literally take the bench before nine o’clock in the morning and, others like the 50-minute person I mentioned was very frustrating, but I still love him.

Robert Bianchi: Yes. Well I, I think that we have actually a little bit of a, what we call a package here. I believe it’s on this case, from our great Rachel Stockman. So, let’s just take a look at that. And Gene, as we’re waiting for the judge to come back. We’ll take a look at that and some other interesting, what it’s like to be a trial lawyer, and how we prepare our cases as the show is about to go on. Let’s take a look at that package.

Rachel Stockman: Charles Merritt is facing murder charges for allegedly killing a family of four and burying their bodies in the desert. Joseph, Summer, Giana, and Joseph McStay junior vanished from their southern California home on February 4^th, 2010. Police found no evidence of struggle or foul play but did identify signs the family left in a hurry. The family car was found four days later abandoned at the Mexican border with no sign of the McStay’ s. Law enforcement eventually believe the family fled to Mexico surveillance video at the border showed a family of four resembling the McStays, crossing the border on foot. Officers also found search history on the family computer about travel to Mexico passports for children, but a grisly discovery came nearly four years later when an off-road motorcyclists discovered the partial remains of a child’s skull on the outskirts of the Mojave Desert. A search revealed two shallow graves containing the remains of three more bodies, DNA and dental records match the bodies to that of the McStay family. A three pounds sledge hammer was buried with the bodies the family had been bludgeoned to death according to prosecutors. As law enforcement was investigating McStay family disappearance, San Diego detectives interviewed Charles Merritt a business partner of Joseph McStay. According to the affidavit, it was determined that Merritt was the last person to see and talk to Joseph alive. The two had met at a fast food restaurant before the family went missing, the last cell phone activity on Joseph’s phone was a call to Charles Merritt. Merritt’s DNA was also found on the family car abandoned at the border on the steering wheel, the gear shift, and the radio. He claimed he never driven the car but rode in the passenger seat with Joseph six weeks prior to when the family went missing. Charles Merritt is pleading not guilty to the charges defense attorneys are pointing to another business associate as a possible suspect. Merritt is facing four counts of murder, for Law and Crime, I’m Rachel Stockman.

Robert Bianchi: Well, thank you Rachel, excellent recitation of a case, the Mc Stay family murder case, and this is where Charles Merritt the former business partner of the father Joseph, is on trial for their murder. And just to recap that, Joseph and his wife Summer, and their two preschool children, Giani and Joey junior, were all killed and that is what Mister Merrett is on trial for. This was from back in 2010, and the kind of case went cold as you listen to Rachel indicate there, there were some video with they thought that they went over crossing the border into Mexico, and also this fact which I find very interesting, Gene, that there were searches on the computer of the McStay’ s, for getting passports for their kids to travel to Mexico around about this time. So, you have two pieces of evidence that are pointing towards Mexico a video on that I’m sure the defense is going to say, that was them, and the search of the computer, if he does not that is Charles Merritt have access to that computer, could it be they were on their way and somebody else committed the murder?

Gene Rossi: Well, it supports the theory that they did go to Mexico, they intended to go to Mexico, and maybe they were killed by drug lords, and eventually deposited in the desert, brutal as that is. So, that’s a theory that the defense could latch onto the DNA I thought there was no DNA at all but the DNA on the car and him saying he never gotten driver’s seat, that obviously does not help the defendant I don’t think it’s something that you can’t get over but that that probably is the most compelling evidence. But the motive is just because they were business partners that is not a motive for killing four people, that’s the thing.

Robert Bianchi: Right, and you know the DNA I agree with you, that’s the strongest point I’ve heard so far for the prosecution. I cannot wait for this opening statement he did say he was in that vehicle and DNA can transfer, so you know yeah that’s not a good factor because on the steering wheel on and on the on the stick shift the gear shift I guess, but you know nevertheless, DNA can get the places in all sorts of ways.

Gene Rossi: Right, and that’s why I say it’s not insurmountable, what does trouble me is he’s probably one of the last people to see him so that would that would be a troubling thing. And also go back to the home, you have the animals that they have in and it seems that they were taken out of the home without any preparation. They had food I think on the table, the animals hadn’t been fed, that suggested that trip to Mexico may have been planned by the killer, an unauthorized plan.

Robert Bianchi: Yeah so do you, do you think that it could be a scenario where the prosecution will argue that he used their computer after he killed them, or after he abducted them, in order to throw off law enforcement authorities to make it look like this is really just a family that picked up and left and went to Mexico. Or could the prosecution be arguing that they were going to Mexico because they were afraid of this guy and knew that harm is going to come to them. I just right now we don’t know there’s so many things that I can’t wait to listen to come out of the prosecutors mouth here.

Gene Rossi: I think the prosecutors going to say in opening, that there’s strong circumstantial evidence that this man this defendant, hacked their computer and planned that Mexico trip. But then you go to that video the shows four people crossing the border that look like them. This has got some reasonable doubt.

Robert Bianchi: Yes, so what I understand is going on in the courtroom right now is one of the state’s first witnesses video tapes or that that live stream on her and that’s what they were discussing there. I’m not sure what the outcome of that was but the judge is back on the bench and we are anticipating the McStay family murder case, where Charles Merritt is accused of killing a family of four that opening statements starting with the prosecution will commence shortly. And I see Gene, they do it old school, with the court reporter there.

Gene Rossi: Bob, I got to tell you court reporters were my best friend during a trial, I always made reference to them, I smiled at them, and the jury’s love when attorneys respond to the court reporter.

Robert Bianchi: Gene, my dad, eighty-six years old still practicing law you know him, told me the beginning, you need to cozy up immediately to the court clerk and the court reporter, because they will be your two best friends, and also the sheriff’s officers in the courtroom as well. Everybody will be like the judge your adversary you know obviously; you have to deal with them, but those are the people that could do those little nips and tucks and things for you that can make your job a lot easier in the court.

Gene Rossi: And don’t forget the law clerks, I always try to go bond with the law clerks.

Robert Bianchi: Yeah, bonding, bonding is good Bonding is good with the court staff. But let’s go into we’re getting the feedback up there in the courtroom, so it just gives us a little more opportunity, when you’re getting ready to prepare this case Gene, we’ve been talking about trials in 2018, and I was really shocked that that sometimes our capital murder cases and they’re done like in a week or less. My experience, and I don’t think there’s a murder case I’ve ever tried that’s been less than a month long, in terms of all of the witnesses. It just seems like a lot of witnesses go along but there’s not a lot of great examiners, or lengthy examination of those witnesses. Have you found that the there’s a lot of brevity and it’s almost we kind of talked about one case in particular, where we said it just looks like a formality that they were going through the trial?

Gene Rossi: I called them slow pleas, you know trials are trials are each one is unique as you know and I got to tell you, the Eastern District of Virginia, I tried a case, we had fifty witnesses, we did it in two or three days because the judge, judge [inaudible] was in our face in making us being very efficient. When I hear about other districts, federal and state, where a trial in the VA Virginia would be three days it would probably be six weeks in other districts. And here’s why, the judge has total control over how fast a trial can go.

Robert Bianchi: Gene I’m sorry to cut you off, it gets us back to that point you can start at nine and got to drive witness after witness after witness or you’re going to be lackadaisical, at least have a big impact. Gene, I’m sorry to cut you off but we got to go to a break, we’ll be back with the McStay Family murder case. Okay welcome back to Law and Crime Network, we are looking at the McStay family murder case. Charles Merritt on trial, unfortunately we’re having some audio problems, after all the time it took for the judge to make a decision, literally to the last minute, as to whether they were going to allow a live feed in there. But I Gene Rossi with me, we got our producers and control room people in the back there trying to do their magic that they do every day. So, the minute that we get that audio we’re going to bring that to you and of course in the meantime we have other people that are tracking what’s being said in there. So, I’ll have the opportunity to bring to the substantive arguments that Gene and myself have been talking about because this is a fascinating case. Gene, I want to go to something that was really interesting because our careers have spanned a period of time where the judge was telling the jury that you can take notes in this case, and again you can see it on the video there, we will get the sound to you folks as soon as we can. You can take notes but don’t be overly distracted because the tone of a person’s voice, their facial expressions, the manner in which they carry themselves are all important in essence for you to evaluate their credibility. The reason I bring this out is that there was a lot of controversy when we first started the jurors were not allowed to take notes, were not allowed to ask questions because of the concerns with distractions, and here we are today in a completely different space and the judge notes about those facial expressions, and their demeanor. Remember that trial that we covered in 2018 where they were had actors up there basically, reading the transcripts from decades ago. I mean you lose all of that ability to judge the credibility of witnesses when you’re just reading testimony.

Gene Rossi: Bob, I’m dating myself but I started with the justice department in 1989, I remember trying cases where they didn’t have notes, no note pads, and then when they allowed notes, we were going, oh my god this is fantastic. But here’s the thing about notes in the judge was great I love this judge he said listen it’s okay to take notes, you don’t have to, but don’t be consumed by the notes because you want to look at the facial expressions, their tone of voice, their mannerisms, because that’s probably more important than their words, that’s essentially what he said. That’s a beautiful thing to say.

Robert Bianchi: Yeah, I mean people communicate in so many different words that are more powerful even than the words themselves, the expressions, and the manner in which, remember when we were talking about the Van Dyke trial, the way that he was answering the questions and slouched over and whether there have an angry face on or not, or whether they’re telling the truth or not. The rolling their eyes, their attitude, all key factors since you know demeanor and incredibility. So, I’ve always had a problem with just reading straight testimony into the record because you lose all that.

Gene Rossi: Oh, absolutely I never like to read, very few times I had somebody read a transcript, but you’re right you lose that. I got to tell you, you see this Bob, you prep a witness, you think they’re going to be great, and it you know they’re all gung ho, and then they get in that witness box, and they see that jury, and they become jeckle and Hyde. And they end up being a horrible witness, and I’ve seen the opposite, is you never know.

Robert Bianchi: And it goes to witness preparation, I actually defended a murder case one-time Gene, where the prosecutor didn’t realize that they had read the statement of their one of the witnesses they would realize the witness couldn’t read or write. The statement had to be read to them and at the end the cop says you don’t read or write, I’m reading this statement to you and I read it accurately we sign you signed it. The reason it became important is when the kid made a mistake on the witness stand and the prosecutor try to rehabilitate him about what he previously said, the kid didn’t want to say, I can’t read and write in front of the jury, and the prosecutor wound up attacking his own witness, and it was a major witness in the case which allowed me to basically say, can you get this? This guy calls this guy to be his witness, he’s not getting the answers he doesn’t like, he’s trying to show him the guy his statement so he can really respond to his own statement, it was a not guilty.

Gene Rossi: That’s beautiful.

Robert Bianchi: And that comes down to poor witnesses. You know it’s very clear to me in that trial, Gene, is this experience you’ve had, I think it’s an uncommon one, a lot of times witnesses are put on the stand and maybe another office member interviewed or weren’t even interviewed at all.

Gene Rossi: Well that, I never allow that in my cases or people I train but I have seen it whereupon here’s what happens the witness, whether it’s an officer or a late person, shows up twenty minutes before the event, the trial and then they’re prepped on the fly, which is not enough.

Robert Bianchi: Hey Gene, I got I just got to let you know you got a compliment on Twitter by Brian Ireland, who says he loves when you or me describe how we would attack a case from both the prosecutors and defense attorneys perspective, great job playing devil’s advocate. I responded back to him on Twitter, and by the way you guys, if you want to find me on twitter it’s RBianchiesqe. But I responded back to him Gene, and I’m curious, yeah we can argue both sides that’s what we’re trained to do, but as a prosecutor I would always put my defense lawyer hat and say, what would I as a defense lawyer do and then I back track as a prosecutor and cut those avenues of argument off.

Gene Rossi: Oh Bob, when I used to prep law enforcement or a lay witness, I would cross examine them and I would do a vicious cross because I said listen, we have to know both sides of this issue both sides of a coin. And trials are like pancakes, there are two sides, don’t think a jury just going to buy what we say, hook, line and sinker. You got to prepare for the worst I used to love doing that.

Robert Bianchi: I would actually tell my witnesses that listen I start off with the preface, I’m going to get you really agitated here today okay so please don’t get mad, don’t get angry, but this is what I got to do because here’s the thing I want you walking out of this room knowing that what you’re going to get down here today you will not get in that courtroom. This should be more aggressive and be more in your face and by the way you find out data, and you find out information along the way that way including how your witness will come off in front of the jury when they’re if they’re if they were to be really hammered in the court room.

Gene Rossi: And Bob, you know, we love experts right I used to love to cross examine my own experts because experts think that our smartest person in the courtroom when you are prepping them and you’re crossing them really hard, they would take it personally. It was really bizarre.

Robert Bianchi: I think I probably told you the story about the guy you have saying in his direct examination, you know when I graduated from Harvard and then I went to you know Harvard Medical School at Harvard they taught us, and at Harvard this, and at Harvard that, at one point he said you know I like common sense when I’m arguing against an expert. I don’t want to get into too much signs with them. I don’t want to get in the cage with a bear, I want to be able to poke him from outside the cage and he wouldn’t, it was funny, he wouldn’t agree with me that a photo I showed him was a kitchen right. And I was like what is that thing you call over there? And he was like a stove. And what was that thing over there? That’s a refrigerator. And I went through the whole elements of the kitchen and I said listen, I didn’t go to Harvard, I didn’t go to Harvard Medical School, I’m not an Ivy league educated guy, I’m just a Seton Hall guy, Providence College guy. But within a reasonable degree of scientific certainty Sir, wouldn’t agree that that’s a kitchen? Do you need to go to Harvard to figure that one out? The jury was dying laughing, but to your point that expert was not used to being anything other than a top gun and he was agitated and blew up on the witness stand from that point forward.

Gene Rossi: I wish we could get that live feed so we can hear the voices of the opening.

Robert Bianchi: Well, unfortunately, Gene, they’re working on it, so I think I’d be a good opportunity right now to go to at least to go to the McStay family murder package from Rachel Stockman so we can at least give our audience an idea of what these horrible, horrific, yet, it’s going to be very interesting trial, is all about.

Robert Bianchi: Welcome back. So, the McStay family murder case. Charles Merritt on trial for the murder of an entire family, a mom, a dad, and two preschoolers. I have Gene Rossi with me, Gene, the typical law in most cases is that the prosecutors opening statement, and we’re still trying to fix our audio on the live stream. They have to lay out each and every element of the offenses that they are charging and the indictment because if they don’t at the end of that the defense can move to actually have a charge, technically thrown out because the prosecution didn’t open to it. Now I have never seen that happen, I’ve seen the argument made, but I’ve seen the prosecution reopen. I just think it’s an interesting nuance that we’ve never talked about on the show before.

Gene Rossi: You mean after the government rests, it’s brought to their attention that they didn’t prove all the elements, and then they ask to re-open? Is that your question? That happened to me once, in EDVA, Alexandria it went up on appeal, and the court granted the court granted a new trial because they the court felt that the, the judge had abused discretion in allowing us to re-open. But it goes back to this, we were embarrassed because we missed an element of the crime, it was pretty pathetic, but you live and learn.

Robert Bianchi: Yeah well that’s that’s amazing Gene, thanks so much. Okay guys, listen, we’re going to go to a quick break, we’re going to come back on the other end. I’ll either have more Gene Rossi, the McStay trial, we’ll talk about it and break it down with you. We’ve got a lot of interesting things going on so stick with us. We’re going to get that audio up and running. Welcome back to the Law and Crime Network, we’re going to try to get that feed into the McStay trial straight away from you, but we will definitely have a recap of everything that’s being said, so don’t worry about that, but we’ve got so much going on. We’re going to switch gears a little bit to Michigan verses Jason Dalton. Gene, this is a six-count homicide case, there’s the defendant there on the screen. Two survived this shooting spree, this is a bizarre bizarre bizarre, there you see the victims right there, there they are. And I always said this is as a Prosecutor, they woke up that day, and none of them expected that the carnage was about to occur. This guy’s like an uber driver and something about a devil in his phone, and he’s he’s you know, things tell him to do certain things. He passes by girl Tiana Carruthers and basically asks if she’s this Kinney person and she says, no. Then he drives around and about, eventually comes back in, and shoots and wounds Carruthers, she actually lives. And he is he’s going back and forth between doing Uber and going to his parents’ home, and then he goes back to a car dealership where he shoots a father and a son, and then winds up once again going around picking up fares. Can you imagine this? I mean all those people that were taking fares in the days that this guy was committing these murders, they themselves could have been victims. And then he winds up at a Cracker Barrel where he winds up shooting and killing a number of people, including shooting a fourteen-year-old who also survived, she’s one of the two that survived it all. There were six homicide counts, two like I said that had survived, there was a motion to see whether he was competent to stand trial. The court found that he was competent to stand trial however statements that he made to the police were suppressed because of that the court argued that his right to remain silent was not, quote scrupulously honored, that is actually a legal term that’s used. And there was an indication in the articles that I read that he had in some way either equivocated or invoked his right to remain silent approximately forty times in three hours. Gene, I want to go, we had a major development in this case today, a shocker for us as we were getting ready to prepare this case gavel to gavel like we are the other ones. I’m not sure if you’re aware of it, but against the advice of his attorney, Dalton told chose to plead guilty today to all of those counts. We had some fascinating, and I want to talk to you about this on the other end, when a lawyer and a client or not on the same page especially when you’re telling them not to plead guilty and they are pleading guilty, to basically the rest of your life in jail. Let’s listen. Take a look.

Dalton Attorney: Discussion of the plea, or plea offers has been going on between my client and I for months, since this case has been pending. I spent an hour and a half with my client Mister Dalton, this past weekend, and I’ve discussed the pros and cons of a potential plea, especially as charged. What’s being done today he understands those consequences; he is feeling that against my advice. Bit in speaking to Mister Dalton there are reasons for that, their personal reasons he does not want to put his family through that or either that or the victims’ families through the trial so it’s his decision against my advice.

Robert Bianchi: Gene, I’m just going to throw it to you, what do you what do you think? I mean certainly not a position as a Defense Lawyer you want to be; I mean there’s client confidentiality issues but at the same time you have to protect the record. I wouldn’t want to be in a position as a Defense Lawyer.

Gene Rossi: Well, here’s what people need to know, your audience, is when you have a guilty plea hearing under federal of evidence eleven, and I’m sure there are the states have the same rule. Statements made during those proceedings can never be used in a trial and an attorney is allowed to talk about the advice and some a summary of what they told the client. I got to say this, in my almost thirty years I never had a Defense Attorneys say, my client wants to plead guilty but I told that person not to plead guilty, which tells me this, the Defense Attorney probably has strong evidence that he was insane at the time he committed the crime. He may be confident now but at that time he was insane and that’s probably what he’s getting at.

Robert Bianchi: So, let’s, that’s a great discussion, to just emphasize because people often get this confused competency is where you can assist your attorney during the course of the trial whereas not guilty by reason of insanity is at the time that the acts were committed. And we’re talking about devils in phones and in this craziness going on and that the person was not able to appreciate, but generally the rightfulness, and wrongfulness of their conduct and that could result in a not guilty by reason of insanity. I think the other piece to it your point Gene, is of the lawyers saying he’s just pleading guilty, just verify me if I heard this correctly, the victim’s family And I have had clients that have said this, spare them the trauma of the trial. But the defense lawyers probably saying, why just give it to them, let them take it away. I’ve got this insanity argument I can at least to make and maybe it works, maybe it doesn’t, but you just basically put your life away

Gene Rossi: Absolutely, and I don’t think he pleaded guilty in exchange for dropping the death penalty. I don’t think that was the deal but I don’t think, I could be wrong Bob.

Robert Bianchi: Gene Rossi, we’re like all over, we’ve got sound in the McStay, so let’s get to it. Prosecutions opening in the McStay case, we are deeply deeply sorry that we weren’t able to get that audio for you but we will definitely have a recap for you. We’re going to go to a quick break and we’re going to come back with that Dalton press conference that should be starting soon, fascinating case as well. Stay with us. We have our second breaking news today, and that is with regard to this Dalton case. Jason Dalton, now the state of Michigan brought six homicide counts against him as well as two people who were shot and actually survived a rampage, by obviously, this is not a strict legal definition, a maniac. We saw one clip already where the lawyer got up there and said that against my advice, the defendant wants to plead guilty today. He already pled guilty to those murders without the benefit of the plea bargain. We’ve got a press conference going on let’s go to it.

Attorney: So, it was a black backpack and one of the boys always wore a black backpack.

Robert Bianchi: You know mama always told me there would be days like this, Gene, better you talk about the case, we can always read about the press conference, we’re going to get the update on it as it’s happening. So, Gene the lawyer got up and said he did it against my advice, we already discussed the idea, then why just plead guilty to these things. There’s an insanity defense clearly that’s in this case, does the devil’s, and going around in his Uber, to certain people, he’s shooting randomly, but instead by pleading guilty, he indicated he wanted to spare the victim’s family all the trauma of going through a trial. I’ve only had one defendant in my entire career that basically said the same thing to me and was willing to accept the plea offer in that case in order just to spare the victim’s family, and was actually very remorseful, and believes he should do the time. Well, have you ever had anything like that yourself Gene?

Gene Rossi: No, I have not. And the other thing I want to add this, when they go through the guilty plea colloquy, the judge, the lawyer and Mister Dalton, they ask him are you pleading guilty because you are in fact guilty? And they also ask to have you consulted with your attorney, and often times the defendant will relay what the attorney has told you. I got to tell you, if he’s pleading guilty even though we think she’s innocent, yeah that could cause some problems on appeal if the state is ever appealed. So, you know helping keep the victims from suffering from all the trauma of a trial is not a reason for a defendant to accept responsibility legally, that’s not a valid reason.

Robert Bianchi: Right, I think though, from what I reviewed when I saw the plea going through early this morning, is Gene, is the Prosecutor did a really good job at going through each of those murders and saying you did it and you did it purposefully, and it was premeditated i.e. before you pulled the trigger, you intended to kill those individuals. He had a kind of a weird look on his face when he said yes, but he said the words, the judge found that he was competent, that he wasn’t being threatened or forced or coerced those in a typical things a court would ask. They found that he is competent mentally to make the decision but the Prosecutor, I think to your point, was very very careful to make sure that he played each specific account saying that it was purposeful premeditated murder, which the defendant said, it was. So, I think it kind of meliorates that issue that he’s trying to spare the victim’s family was the only basis for the plea.

Gene Rossi: Well, here’s the problem I have with this plea is he is competent today pleading guilty but how can you how can you possibly say I’m guilty when there could be possibly strong evidence that at the time you committed the crime you weren’t playing with all the decks the pack of cards.

Robert Bianchi: So, your point you could be competent now but could have been legally insane at the time, let’s go to the press conference. Yeah, welcome back guys, I love you hanging in there with us as we’re having so many audio and visual problems from inside that courtroom, our producers will let us know when we get a kind of back up. Gene, listening to the brutality actually at one point, I’m not sure our audience got to hear it we were on a break, of finding the skeletal remains of the individual, they believe they all suffered blunt force trauma. We couldn’t see the pictures themselves but it appeared the jury was actually looking at the skeletal remains which obviously would be moving. And now we’re talking about this victim’s cell phone being used to call QuickBooks to have an account deleted, so you see them tying in this financial motive obviously they’re going to tie in that that person that was doing that was either the defendant Merritt, or on Merritt’s behalf. What are your thoughts so far?

Gene Rossi: The cell phone calls to QuickBooks and all this circumstantial evidence to back dating on the four checks, that is incredibly powerful and it adds credence to the DNA, if all they had was the DNA on the radio and the drivers wheel, that would be problematic but when you have backdating of checks and him calling the QuickBooks, that’s powerful evidence. Oh, my goodness.

Robert Bianchi: Right Gene, and we’re not going to know what we’ll certainly recap everything that came out and I’m sure at some point time later on we’ll be able to give our audience the full breath of what the Prosecution is saying but while you can’t do this quantitatively necessarily, you see this is a very a laboriously long and detailed opening statement. And I say that juxtaposed to some cases we covered in 2018 where I think we both were in shock that was one opening statement that was less than five minutes long. And again, as a Prosecutor I want to keep them entertained, I know that off camera we were a little concerned that, you know, this a picture of this, this is a picture of that, this picture this, this is a picture of that, and there wasn’t much context to it, but that said putting all the building blocks in front of the jury right now, even though it may have been a little laborious then it needed to be, is what I’m talking about. So, that when the witness gets on the stand the jury, ah I get that. I understand what those checks mean. Oh, I understand the QuickBooks thing. Because he detailed in his opening statement.

Gene Rossi: Oh, you know, I give I give kudos to the Prosecutor for putting that all in front of the jury in the opening. My style is enatic, where you have a theme and you explain the exhibits that you’re going to show eventually to the jury. But one thing I try to avoid is showing an exhibit in opening and say, please listen carefully to the testimony about this exhibit and then you move on to another exhibit, you never should do that and that’s one of my major critiques about the opening. But he did a good job, it was it was laborious at times, and it’s still going on by the way.

Robert Bianchi: Yeah, I again, you know I think that we’re saying it was well done, it’s giving the jury what it needs for context, it may be a little too quick to sat this is a picture of this, this is a picture of that, picture the other thing, that could be a minor critique in light of the fact that it’s really about substance and he is delivering you know that substance in some detail there. Because as a Prosecutor the number one thing you want to do when you come out of that opening statement is certainly have the jury saying, oh my god there’s a tremendous amount of evidence against a guy. Now course to the defense still has to go and witnesses still have to take the stand, and the judge gives the instruction as he did in this case that anything that’s said in openings and closings by the attorney is not evidence but it shows you the paramount importance of laying the entire Prosecution case to bear, so that the jury really comes away saying, wow there looks like if the Prosecution puts this on a lot of evidence here.

Gene Rossi: Yes, and I got a compliment the Prosecutor, I rarely see Prosecutors play tapes in opening and I thought him playing some of those tapes, key tapes that that was an excellent part of his opening, to play the tape.

Robert Bianchi: Yeah, I agree with you I mean that we know this demonstrative evidence is important and if you can incorporate as many of these senses as you can there in your instance that you’re giving, is a is an audio as well as visual you know. Gene, we talked about this before too, you know, when you have a power point presentation like this sometimes the presentation can overcome, you know, the opening because your kind of tied to it because you’ve got to go on every item from one slide to the next. So, you’ve got a really have that nailed down. Personally, me, I would use far less of those visuals because I kind of feel my way, it’s hard to explain, in an opening and closing I have an idea where I want to go, I have an idea of definitely of where I want the case to be, but I kind of feel what’s happening in that courtroom, and how the jurors are responding to me. For example, what do you do if a jury sits there and starts falling asleep when all these slides are being presented, there kind of stuck with what you put together?

Gene Rossi: I had a trial I don’t like PowerPoint; I have never used PowerPoint ever in an opening closing or rebuttal, here’s why, juries never fall asleep when I’m talking to them trust me okay. And I had one case where the defense attorney literally caused a juror to sleep and, in my rebuttal, I started talking about polenta, it was the day before Thanksgiving, and that juror that was sleeping, he woke up and he was listening to my polenta story. It was beautiful.

Robert Bianchi: I know you’re a big fan of the polenta, I didn’t know that you were incorporating it into your argument. Hey, listen I’m told the prosecution opening is complete in the McStay family murder case where Charles Merritt is on trial. So, they’re on a break right now so we’re going on a break right now. We’ll be right back stick with us. Welcome back so we’re going to Monell trial it is out of the great state of New Jersey, and essentially Gene, what we’re listening to prosecutors say, and I think that this is very powerful witness is that the little girl I believe she was twelve at the time, is confronted and then where’s mom, and makes the comment Mommy’s dead, Daddy killed her. Now the reason I say this is power is out of the mouth of right this is a twelve-year-old, doesn’t have an opportunity to fabricate something like this, the person almost doesn’t believe what’s being said, and the kid repeats again. I’m so this obviously is a very very powerful statement that the Prosecution is going to introduce, both through the person that listened to it the adult as well as, I don’t know yet, it will be interesting to see, maybe our producers do and they will let me know. If the twelve-year-old girls going to testify which is really a tough prosecution piece this because mom is gone and now dad’s on trial, you got a look at it from the standpoint of this child.

Gene Rossi: Absolutely, now this gets into evidence if dads’ statement if she doesn’t take the stand, it’s either non hearsay, it’s a section exception to the hearsay rule. I don’t know if it is an exception but a young person I’ve called young witnesses, I think the younger I’ve called was sixteen, they are always delicate witnesses and they’re difficult to prepare for trial because you can’t do what you normally do a practice cross because you don’t want to destroy your witness because they’re so vulnerable, but I’ve never seen or had a twelve year old witness, but I can imagine that would be a very difficult person for the Prosecution you know, and nothing against the witness.

Robert Bianchi: Yeah, I’ll tell you Gene, I had a death penalty case we had to put like her ten-year-old daughter on the stand. Her mother was killed and had to testify against her stepfather, and it was it was difficult to do but she was an eyewitness to a lot of what went on. She was a crucial witness and it broke my heart. And many many years later when I became the head County Prosecutor, she actually called me up and congratulated me, wanted to come by and say hello because apparently the encounters that we had, she said you were so kind to me and you know, you winked at me one time in the middle of the trial when you knew I was nervous and upset. And she actually got into the field of with the criminal justice because of that experience but you know I always wondered you know in one fell swoop she lost you know, everything she wound up with their maternal grandparents at the end of the day. But you know you put them on the stand and you don’t like doing it and I’ll tell you something that’s interesting about that the defense attorney was so brutal to her so hard, it was clear this kid wasn’t lying, and at one point time he actually put the murder weapon like right in front of her on the witness stand and the deer in the headlights look of this poor little girl. We jumped up of course and went to the side bar but I thought it was very unartful to attack her in that way, the jury so the jury was in tears when she was testifying.

Gene Rossi: Well that defense attorney needs to take another course in how to wins and win friends and influence people because you know there’s the destructive and there’s constructive cross. And with a vulnerable victim like a twelve-year-old or someone younger you do constructive cross because you can be polite but still get out your points.

Robert Bianchi: Yeah I didn’t think there was a point to get out, the argument should have been in my mind it was a manslaughter and nothing that the girl at our defense attorney and nothing that the girl did went to what his state of mind was or wasn’t so it’s just kind of wasted, sometimes lawyers feel they need to just be one speed all the time and hammer every witness and I know me and you teach them you got to be more nimble than that. Let’s listen to a little bit more though of the Prosecution’s opening, Gene. Okay we are in the great state of New Jersey verses Jeremiah,, you know we’ve been in this Monell case now in this where the Prosecutor in the opening statement maybe it’s because I love Jersey but it doesn’t have to be flashy, it doesn’t have to be yelling and screaming, and everybody’s technique is a little different. I think, I mean you’re probably a little more emotive, but this guy is laying down the case. And he’s doing just what we talked about before and I especially like the use of his adjectives the power of the adjective to the jury. Face was splattered, splattered with blood, gaping wound, carpet soaked in blood, box saturated in blood, he talks about two knives that were found behind the stove, jeans were bloody, and the detective speaks to the young Jeremiah, and what he saw. And he saw his father choking is mom, so the father’s stabbed her again and again, over and over, and then he lifts each of the witnesses, and what they’re going to testify to. The crime scene witness, the DNA witness, and moreover, on one of those knives is the print of the defendant, as well as the DNA of the victim’s blood on the blade. What I’m seeing here Gene, you may disagree, maybe I’m biased because I’m from the great state of New Jersey, but I am seeing a Prosecutor lay down the tracks for guilty.

Gene Rossi: You know what’s great is like Baskin Robbins, there over thirty ways to do an opening, we saw the case in California he did a solid opening, used a lot of PowerPoint, then we have your Jersey guy okay. He’s got the old-fashioned notepad; he’s got it on the on the witness stand no fancy lectern and he walks up and flips the page. He didn’t use one exhibit, okay, he didn’t even use photos of the crime scene where she was killed. But his words, you brought up a great point, his words painted the mosaic, and that’s why I love trial work, he painted the mosaic with his words.

Robert Bianchi: Listen Gene, this is how we do it in Jersey, we’re not playing games here with fancy computers or whatever. We are in your face with the old school legal pad, only once we once just to make sure to check on the next witness was. You know me too, that’s how we do it. And you know what the jury’s attention is fully on him, it’s not distracted, it’s not looking at different things, they’re all focused on him and these words are painting the picture and he will follow up with pictures and gruesome things. I love his style, hashtag Jersey Prosecutor’s doing it right. Gene, we talk about style a lot, but I’m going to get back to the same points you made the comparison that when you’ve got that PowerPoint up there and your flipping around from screen to screen, I don’t think you do, I’m not saying that job wasn’t done well, I’m just saying that sometimes a technology can stand in the way, and I think we have a great juxtaposition with this guy doing a completely different way.

Gene Rossi: Absolutely, and both styles are effective it’s just I rarely heard person saying after an opening and closing or rebuttal, hey Gene, your PowerPoint was great. If I ever heard that, I would say well what about what I said, okay. I mean I don’t want you to tell me I had a great PowerPoint I want you to say I did a great opening closing or rebuttal. Talk about Polenta.

Robert Bianchi: Hey listen, it’s those examples those human experiences, you’re making contact with that jury, you’re building a relationship with the jury, it’s about a personal connection with the jury, it’s not antiseptic. I know you know how to do that Gene. But listen we got so much going on here, we’re going to go back to McStay and the defense opening statement right after the break. Welcome back, so we’re listening to, I believe if you’ve been listening to myself and my great guest Gene Rossi, is a very detailed defense opening statement. He is doing exactly what we talked about before in giving the jury something to grab on to that there could be a problem with the Prosecution’s theory of the case. Most notable are all the experts that they’ve committed that may testify including crime scene experts, DNA, cell phone tower, forensic accountants which the state didn’t get but then got when they got it. Computer forensics, we want justice for them as well, he’s saying that the Prosecution had confirmation bias from the beginning, disregarded the facts that didn’t fit their theory. Guys I’ve seen that personally myself in the investigation and prosecution of murder cases. I want to thank you so much for being with us, and Gene Rossi I want to thank you so much. You can find me @RBianchiEsq on Twitter or on YouTube, subscribe to Bianchi Law Talk as well as, Rossi4VA. We’ll see you on Wednesday with more Law and Crime.

Bianchi on Law & Crime Network – #KevinSpacey