Bob Bianchi, Gene Rossi, and Judge Ashley Willcott Discuss the Tiffany Moss Trial

Bob Bianchi, Gene Rossi, and Judge Ashley Willcott Discuss the Tiffany Moss Trial

April 29^th, 2019

Robert Bianchi: Welcome back to the Law and Crime Network. My name is Bob Bianchi. I’ll be taking it from 12 to three today. We got a lot on the plate. Hey for a chatters, thanks very much for all those great compliments. It’s great to be with you. I’ll be checking in to see what your questions are in these two fascinating cases that we’re covering here on the Law and Crime Network. Welcome back. Listen, let me bring my great guests on. You could not get a better team than this, Judge Ashley Willcott, a juvenile justice judge and also a host here at the Law and Crime Network, and Gene Rossi my man, even though he kind of strayed a little bit this week and went with some other hosts. It’s okay Gene, you are forgiven, but he’s a great trial lawyer. 30 years with the DOJ, both extremely capable trial people. Guys let’s get right to it. Question one for you, Ashley, I’ll start with you. Six years old, there’s contact with the police department. My question again. My prosecutorial nerve is getting uncomfortable here with this case. Based on everything that’s going on in her representing herself. Is there an argument to be made in the penalty phase that she was an incapable mother and that law enforcement and the authorities should have stepped in earlier and this wouldn’t have happened as a potential mitigating factor weighing against the death penalty? Thoughts?

Judge Ashley Willcott: No, I don’t think it should be a mitigating factor. Is it true that there was a system failed and a lot of different people touched this child and should have been able to prevent this from happening? Yes. I do not think that’s a mitigating factor because that does not excuse or make any better the fact if this parent is convicted of abusing, torturing and killing her own stepchild.

Robert Bianchi: Okay. Gene, let me you, we’ve talked about this a couple times before. She’s representing herself. Chose not to give an opening statement, not cross examine any witnesses. I’m just the reason I’m worried as a Prosecutor is one, does this affect the jury says, you know what? Even though she chose to do it, we really don’t know her side of the story or two, and or two. Is this maybe an effective strategy? As I indicated before, that you don’t want to really go after the guilt phase of the case when it’s a lock for the state, but you want to put all your eggs in the basket of the penalty phase where you’re trying to get life without parole as opposed to death. Could this be what’s in her mind?

Gene Rossi: No, I think her strategy is this. She’s got to be so incompetent that when the appellate court sees the lack of effort in defending herself in the face of the death penalty, I don’t think that an appellate courts going to affirm this conviction. Now, I would want to add, she didn’t do an opening statement. That doesn’t mean she eventually will not because she can reserve it for her case in chief if she puts something on, but not to cross examine people. It appears these could be important witnesses not to cross examine them, that’s a recipe for disaster, but maybe she wants the appellate court to see the disaster.

Robert Bianchi: Gene, I’m going to come to you first. I find this very compelling testimony for the prosecution because what the jury is hearing is that if I got this right, and correct me if I’m wrong, the victim in this case, the little 10 year old girl is not her biological child and she was abused and presumably for a number of years, but the other two children that were her biological children were well managed and cared for, which shows me that they’re, that as a Prosecutor I would be railing is that she made a specific choice against a specific child. She knew exactly what she was doing. What do you think?

Gene Rossi: Well, the thing about this testimony is twofold. One, you got motive. The child Emani is not the blood of the defendant and for whatever reason, the defendant didn’t have that affection for Emani that she obviously had for her own blood. And number two, when you go to the death penalty phase, one of the aggravating factors will be, I’m sure given to the jury, what’s the level of premeditation that was shown in this trial that resulted in a death? And according to Robin Moss, the grandmother, there was a lot of premeditation. She wouldn’t allow the grandmother to come to the home. She was isolating another parts, other members of the family, including the grandmother. That all goes to premeditation and a calculated decision to torture and kill Emani.

Robert Bianchi: Well, Gene Rossi, and you know what I’m about to say, I have mad respect for the guy who’s in charge of the girls in charge of your office that gets up there and puts it on the line in a serious case like that because we should have more prosecutors’ offices that are run by people who are real trial lawyers. Like this guy obviously is, how do you think about what, how he’s doing in there?

Gene Rossi: I love this guy. Old School, no PowerPoint. No notes, no fancy charts. Just oratory.

Robert Bianchi: Yeah. Gene, we talk about that so much. And for our lawyers, young lawyers watching, or law students, it, it’s so powerful when you’re not distracting the jury with all of this extraneous, you know, hoopla. He is the center of attention and delivering a great job. Let’s listen to some more. Okay. Gene, you know, obviously doing an effective job and when he’s going through the details of the coverup, it’s not just only insanely insensitive, if that’s even the word that you’d use for what the defendant is alleged to have done and callous. But all these actions show consciousness of guilt. What do you think?

Gene Rossi: Oh yes. And more important. It shows the complete and total disregard for someone who’s a member of your family, even though the person does not have your blood. And I got to tell you, God help her in a death penalty phase because I don’t see any mitigating factors. Absolutely not.

Robert Bianchi: Right. And, but do you, do you think for her, given the way the prosecutors laying in this case out and the evidence that they have, that it could be a smart move not to insult the jury by trying to cross examine your way out of the guilt phase and save your fire for the penalty phase? If you were the defendant? I’m just saying if you’re trying to save your life.

Gene Rossi: You know what Bob, when we just took the break, I was actually thinking about that exact thing. If she had attorneys, they probably one, cross examined many of the witnesses. So maybe she’s either thinking of that herself or she’s taking some advice from the standby counsel. That is a strategy that in the guilt phase, you don’t put up a fight and you save it all for the penalty. That could be possible.

Robert Bianchi: And Gene, you know, there’s an inherently different feel if a lawyer is attacking, your mother is attacking the government’s witnesses as opposed to you personally as you’re trying to save yourself doing it, which could come off as being, you know, rude and arrogant. If your lawyer does it, it’s almost expected. So, it’s hard to get up there and start cross examining witnesses because it just makes you more unlikeable.

Gene Rossi: Right. There was a famous case in Long Island, Colin Ferguson. He went on a train and he took a machine gun basically and killed several people. He represented himself and he was cross examining some of the victims who were shot and did not die and wow. It, it, it did not go well. I think that was in the 1990s.

Robert Bianchi: Yeah. I, I mean I can definitely see if the, if a lawyer were doing it, it would be expected. It’s a little bit of distance there. And when you, when you’re doing it in, you’re the one who is alleged to have harmed the victims that you’re getting in their face in a courtroom, it can really spin off in bad ways. Gene Rossi, you’re always giving us a great commentary. Thank you. One of the witnesses as we were just talking about is the grandmother, who testified that’s Robin Moss, so just think about it folks, when you guys are listening to this examination, should she have gotten up there and cross examined or just let it lie and put all our eggs in the penalty basket here? And the evidence is piling up here. I mean, not, not a good look for the defendant where the grandmother is getting up and saying that the cut the girl’s hair and when asked, why? And she said you act ugly. You look ugly. Not, not good.

Gene Rossi: I, I’m wondering if this defendant has an argument that she had a diminished capacity because this is just cold and calculating.

Robert Bianchi: Gene. It’s funny you should say that. I’m going to ask the producers when we’re offline. I don’t know the answer to this, but you bring up a good point here about if you’re going to go penalty phase only, put all the eggs in the basket. The typical standard prototypical thing you do as a defense lawyer is present expert testimony, to try to give some explanation and context to the jurors as to why a person did such a heinous thing. I’m not sure whether or not we’re going to see that in this case. And that all presupposes she’s got the, the capability of knowing how to even examine those witnesses, should she even have them.

Gene Rossi: Right. You know what, Bob, you know what could happen in the penalty phase is the judge may take control and say, listen, defendant, I’ll allow you to represent yourself to a limited degree, but I have discretion to have standby counsel over your objection because your life is on the line to put on some type of mitigating case. And I bet you the judge does that.

Robert Bianchi: Let me ask you, Gene, any hope for the defendant in the penalty phase, should it go like this? I haven’t fought this. I didn’t even ask any questions. I didn’t want to waste anybody’s time. She’s giving an allocution to the jury, which you’re allowed to do in a penalty case. I’m terribly sorry for what I did. It was horrible. I’m a bad person and I should, I deserve to die, but please don’t kill me. For one reason. My other children who still need their mother. Could be an argument that catches one person.

Gene Rossi: You know what Bob, if she did it and did it in 10 minutes, I think you’re right. She would have either a hung jury or possibly a life in prison.

Robert Bianchi: Alrighty guys. Gene Rossi. Stick with us. We’re going to clean up some house here. Do a little business, get in that chat room, find out some more answers to those expert questions for you. Law and Crime Network. We’re going to break. We’ll be right back. Okay, so Gene Rossi, that’s the fourth-grade teacher. After that year, the little Emani was taken out of the school, home-schooled. But listen to the power of this testimony. I know you know this for sure. Talking about her, that she wanted to be friendly with bullies, that she was sweet, precious, great adjectives to describe this little girl. That when there was this one person that was mean to her, look at her right there on the camera. She kept trying to be nice and that she would, her face would light up when she would speak, you know, about other children and her siblings. So there in addition to the fact that that’s great impact testimony emotionally, to me, it’s also showing she wasn’t a problem child that needed to be physically corrected.

Gene Rossi: Yes, that would be the main major proffer because this is really testimony that should be in the penalty phase versus the guilt phase. But that would be the proffer that the prosecutors probably are putting this witness forth that it just shows that this, Emani had incredible potential and her life was just snuffed out.

Robert Bianchi: All right Gene. So, we got some authentication going on here with the officer. The state’s cases moving with blinding speed. Vincent Hill indicated he thinks it may be over with by, by Friday at least the guilt phase. Probably quickest death penalty case I’ve seen. How about you?

Gene Rossi: Here are two things. I think I heard you, I think Bob, this case could end Friday or Monday.

Robert Bianchi: I’m waiting with bated breath Gene, on what she does in the penalty phase of this. I mean we can only guess at this point. We’ve batted it around it. It could be a rather effective strategy. And Gene to the point of the other lawyers that are there in the courtroom with her, although they’re not participating, she did on two occasions, you know, go back to them during jury selection and seem to be nodding when they were speaking to her. And she had kind of like the cadence down with the photographs in terms of agreeing to allow them to be admitted. So, maybe she is listening to them.

Gene Rossi: Yes. I get the feeling that during breaks or after court is out of session, she is getting sort of a law school class, a course on how to try a case, in real time because she is a, she does appear to understand sort of the cadence why exhibits are shown to her. I got to tell you this, Bob, I’m a firm believer that the jury is always looking at that defendant, always, always, always. And the optics of her sitting by herself with an empty chair behind her. Just so, as a level of isolation that I don’t think is helping her.

Robert Bianchi: Yeah. And to Judge Ashley Willcott’ s statement in her assessment was that, and it may have been yours as well Gene, that she doesn’t seem to be too impacted or moved by some of this compelling testimony. Certainly, the jury will be looking at that and that will not be in her favor. Gene, our time together is coming to a close, I’m going to leave it to you for the next 60 or so seconds. You’re a trial trainer of prosecutors. Everybody can be a little bit different. Everyone has different styles and different cadences and different personalities. But this guy hits high notes. There’s something that imbues credibility. I love his style.

Gene Rossi: The things that strike me about him, among many, is he uses the pause. Silence can be deafening, and what he does is he makes a statement or statements and then he pauses and he lets that jury ponder the three or four sentences that came out of his mouth. The second thing he does is he uses simple language that appeals to the common sense of the jury. Because in any trial, Bob, the common sense of the jury is the soul of that entity.

Robert Bianchi: Gene, you know that I often say that that’s it. Common Sense, common sense, common sense. It doesn’t need to be sophisticated. It doesn’t need to be pretty. It needs to be real. Guys, this is the Law and Crime Network. If you want to find Gene Rossi, go to Rossi4VA. That’s his Twitter handle, and mine at RBianchiESQ. We love to have you aboard. Keep watching the Great Linda Kenny Bodden is next to pick up the coverage. I’ll see you next week.