John Jonchuck in on trial for the death of his five-year-old daughter, who prosecutors claim he tossed off of a bridge. He faces life in prison if convicted. I discuss this case with Trial Analyst Gene Rossi on Law and Crime.

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   Bob Bianchi and Gene Rossi discuss the John Jonchuck Trial on Law and Crime

April 7th, 2019

Robert Bianchi: Welcome back to the Law and Crime Network. My name is Bob Bianchi. I’ll be taking it from 12 to 3. Got some great stuff on the table. Of course, some great guests. No one’s covering it like the Law and Crime Network, gavel to gavel. Oh Great. Thank you very much. Listen, probably the most important show, during the time that I host can only be described as my introduction of my next guest, the infamous hashtag 40, 41 having shot all those great points as an all-state basketball player in high school and all state DOJ Guy for 30 years. The Gene Rossi war room. Gene, welcome back to the show. Law and Crime analyst.

Gene Rossi: I can’t wait for final four to start.

Robert Bianchi: Well listen, I mean, why watch that when you can watch some of these fascinating trials, Gene, and just as a little sidebar today, a very important event is happening in the college cheating scandal, you may recall that case. It was just a breathtaking wide scandal that ensnared this Hoffman, I forget her first name and Lori Loughlin. They’re accused of basically paying money, Hoffman in the amount of $15,000 to fake SAT scores, Loughlin in the amount of $500,000 in bribes. They get their two daughters in a fake process where she was being like the kids were being told they were on the crew team, and therefore they were able to get these kinds of scholarships or bumps, if you will, into the school. They were each undeserving kids. They did not deserve to be there. They took seats away from kids that should have been there. Gene, I was just recently doing a hit, on this subject, and you know what I looked at them like? I called both of these people and the other parents are participating in this armed robbers, armed robbers, a little different than what we normally think of armed robbers. They were arms were filled with cash and that cash was used to give to people illegally to rob deserving students of their positions in the school. I think it’s pretty disgusting. And as the head Prosecutor if this case came across my desk, I’d be looking to make a message that the rich and the privileged cannot get away with taking things from those who work hard to earn things. I’d be looking for prison time. What are your thoughts, Gene?

Gene Rossi: I’d be looking for a lot of prison time and Bob, you know what I’m talking about. We had a lot of cases presented to us involving victims in violence and murder, rape, things like that. And of course your heart just bleeds. But whenever I got a fraud case with categorical, just sheer greed and deceit by people who had no reason to act like that, I would go for the hammer because they have no reason to do what they did. They don’t need the money. They don’t have a unsettled home. They have, they have all the gifts in the world and they still cheated. That really offended me to no end.

Robert Bianchi: What a message. Because for those of us who have grown up with the right ethics and morals, our parents tell us, you don’t have the grades. You didn’t make the uh, the team then move on to something else. You don’t deserve to be there as opposed to mommy and daddy spending money. You know, Gene, I know you’re a literary guy. I know you’re a food aficionado. I know you’re essentially the renaissance man in the legal profession and here at the Law and Crime Network. This reminds me of Dante’s inferno. Where the longest realm of hell all the way down before you get to Satin himself is the person who commits fraud. The person who takes advantage of those other people, of all the crimes we can think of these kids is, you’ve indicated had everything in life. And I, as far as the justice question ask you, what about those disenfranchised kids that we prosecuted? What about those kids that don’t have money, don’t have access, don’t have great education? Kids who didn’t know any better that get caught up in minor crimes and go to jail? I can’t as a Prosecutor put those people in jail and let these folks who had everything slide.

Gene Rossi: Absolutely. That’s why I had so much passion and in determination in prosecuting people like this. Now, to be fair, we’re both Criminal Defense Attorneys. You know, they’re, they’re assumed and presumed innocent. But the allegations in that US attorney offices indictment in Boston, they’re pretty bad. And, and I got to tell you, it’s going to be a tough case if they go to trial.

Robert Bianchi: Oh, of course they are all presumed innocent but, how the mighty can fall pride coming before the fall. I don’t know Gene, I think they got a pretty solid case from what we’ve read so far. But we will wait and see. Now the guys in the chat room and if you’re not in a chat room, you’re making a mistake because you can watch how they were laughing at me before because I didn’t say Johnchuck’s name the right way. They’re right. But nevertheless, we are covering that trial and some very fascinating things occurred as I said to you before with regard to his competency, right in the middle of the case. I can tell you as a Prosecutor, this is the last, last thing you want. You certainly don’t want a mistrial because you can’t proceed. And Moreover, you know there’s an automatic appellate issue that’s being created right now. If the does proceed with the trial, it’s going to be pretty fascinating. Let’s listen to the defense’s arguments and discussion to the court about what it was they were observing that led them to the conclusion, something’s not right with this guy.

Judge: Even though Doctor Otto did not identify Dr. Lazaro by her name of Emily. Or make reference to her in any regard, I think we can all see why as opposed to just picking something out of the sky. Do you have any questions? Does the State want to put anything else on the record?

Attorney: No judge we actually have a USBA [?] rule written and obviously we can’t do it in the middle of trial. We appreciate them putting it on the record. Everything that made that Doctor make that Determination. We’ll go from here and see what happens.

Judge: Alright, so you’re going to look at him?

Doctor: Yes your honor.

Judge: Ma’am I will formerly appoint you to examine Mr. Jonchuck with purposes of competency to continue on to with his trial.

Doctor: Yes your honor. Yes.

Robert Bianchi: All right. Welcome back. So Gene, essentially his defense attorneys, they seem pretty well documented talking about, it’s not just one singular thing, it’s a number of things including the previous incompetency issues, him thinking that the witnesses are saying things that they’re not saying, although they caused them to actually get a confidential and independent investigation both before the trial and then during the trial there’s inappropriate laughter. Now I know the audience here may think that lawyer’s kind of like, this may be a little game playing or whatever, but I can tell you by the way, he was being presented. These lawyers did this as they should to protect themselves as professionals as well as the client’s rights. And there’s telling the court we have concerns as to whether he’s understanding the witness’s testimony. That’s a bad place for the Defense Attorneys debate.

Gene Rossi: Oh, absolutely. And I want to educate our wonderful listeners and viewers, under a case called Cooper versus Oklahoma in 1996 the supreme court said that competency is a burden on the defendant by preponderance. And I don’t know what Florida, I don’t know if they follow that, but anytime a Defense Attorney has questions about the competency of their client, they have to raise that because the law presumes that a defendant is competent to stand trial. So basketball, the ball is in the Defense Attorney’s court to show that he’s not competent. They did a great job. She, she laid the record and then we’ll see where it goes.

Robert Bianchi: Yeah, a fascinating case, as always on the Law and Crime Network. Hey Gene, we got to do a little business here. We’re going to come back on the other end of the break with more Law and Crime. That’s the radiologist under cross examination by the prosecution in the, in the, Lindsay Partin case. Gene, what do you think?

Gene Rossi: Well, a couple things. Number One, I thought the cross examiner was doing a very good job of controlling a witness. There were a couple of testy exchanges, that I thought he didn’t need to do, but he’s, he’s locking her in. Number two, I just remembered this in Florida correct me, Bob, a criminal case you can take depositions in criminal cases and, and you can use it,

Robert Bianchi: And you can use it against them. Absolutely. Sorry Gene, we got to go to break. Be Right back. Okay. Welcome back. That’s the court’s forensic psychologist breaking down the conclusion that he believes that the defendant is competent to continue with his trial. Gene, what do you think of his testimony? In terms of, and explain to our audience why he was asking the questions he was asking.

Gene Rossi: He just wants to make sure number one that he’s lucid. Number two that he understands basic concepts like an indictment, allegations and he asked him about what a guilty plea was. Just basic things to get out from him that he is not delusional, he’s not seeing demons, and that he can understand what’s going on in the courtroom. They were very good question.

Robert Bianchi: Right. Understanding the nature of the proceedings is really the bottom line and if you have competency to stand trial. Of course. Again, I emphasize competency to stand trial and insanity defense are completely different legal animals. Let’s listen to some more of the doctor. Okay. Welcome back. So that is the court appointed psychologist there also, there’s been two medical experts who have had an opportunity to review, the fact is this doctor as well as the first doctor come back as him being competent. So that is both a psychiatrist as well as a psychologist, which is where we were just listening to listen. We’re waiting to get back for court to resume in the John Jonchuck trial. Gene, I’m curious about your opinion about this and I think it could vary from state to state, but do you see, let’s get to a really nuance thing here. We know competency to stand trial deals with whether you can assist your defense meaningfully at a trial. Where insanity is at the day of the incident, whether or not you could appreciate the rightfulness and wrongfulness for this due to a mental disease or defect, two different things. But is there in any way possible Defense Attorney try to mush those two together. Is any of this stuff about him being incompetent for all those ones prior to trial and what’s occurring now? Is that a valid argument for an expert to say? It shows that that’s not a continuing course of mental disease defect.

Gene: If I’m a Defense Attorney, I’m going to mush just like polenta. Okay. Because you’re trying to show that at the time he killed, allegedly killed Phoebe, that that disease and defect continues one, two, three years later. So you want to mush them. And, and if I’m a Defense Attorney, the arguments for insanity are going to be similar to the arguments for incompetency, and vice versa.

Robert Bianchi: Yeah, I mean, and just another strange question, have you ever been involved in a scenario where maybe these attorneys, if they are witnessing some really bizarre things and I’m hearing things and the doctors outside my jail cell and witnesses are talking to me when they’re not in court, it could potentially create a scenario where the lawyer becomes a witness.

Gene Rossi: Oh, absolutely. And that’s what’s uncomfortable about a incompetency hearing because a lawyer is, is one of the best witnesses in establishing that someone is or is not competent. So, it puts them in a very uncomfortable position because they then become a fact witness. I did have to tweak you a little bit, Bob. I made a comment about polenta. You said nothing.

Robert Bianchi: That’s cause I told you before, I don’t like polenta, if you told me it was like making a braciola or a meatball. I would’ve been all over it Gene. Last question, I’m curious with what’s the rule and I think it differs and I think it’s highly within the discretion of the court. When during the course of a trial, a lawyer has to become a witness, which typically you’re not allowed to do.

Gene Rossi: Well, I don’t think there’s a rule of evidence on that other than, you know, you exclude the witnesses. It’s sort of an ethical obligation. Anytime I had a case where a lawyer was a witness on a key issue and they’re representing the defendant, they had to get off the case. Same with the Prosecutor. A Prosecutor cannot be a witness in his own case.

Robert Bianchi: It’s true, it’s true. But those instances in which a defendant is in the middle of a trial and unlike a Prosecutor, a defendant has a right to a council of his choosing or her choosing, it’s a constitutional right guarantee to them. I’ve seen circumstances where courts handle it differently, especially when there’s two lawyers there. They’ve allowed the person to go in as a witness and come back out and continue to represent or they basically let them come in as a witness and said, you can no longer be part of the case, your co-council could continue.

Gene Rossi: Yeah. But probably in those cases on guarantee that the defendant did not object, the Co-counsel did not object and I assume the Prosecutor did not object because they don’t want, they want to get this trial moving. They don’t want to, you know, slow it down. So that’s, that’s probably happened. I didn’t see it often in any of my cases though.

Robert Bianchi: Yeah. It’s always a tricky thing. Well, listen guys, it’s been a fascinating case going through the differences between competency and insanity and what has gone on in this case. But this trial will go on because Jonchuck is capable, according to the judge’s ruling. Going to break we’ll be right back.