HEATHER HANSEN (00:00):
Alright, ladies and gentlemen, some intense questioning right there. I'm so excited to have Kate Smith here with us. She's going to talk it out with me. Hi Kate.

Katherine Smith (00:06):
Hi. How are you doing? So

HEATHER HANSEN (00:07):
Let's talk about that. That cross-examination was pretty strong, pretty tough. Do you think it was effective?

Katherine Smith (00:12):
I think it's hard to say whether stylistically it was effective, but I think what they're trying to do makes a lot of sense.

HEATHER HANSEN (00:19):
Why? I

Katherine Smith (00:20):
Mean, listen, the defense doesn't have a lot to go with right now. There's some pretty damning testimony coming from the defendant herself, the statements that she made to the police. So I think blaming the father is a good tactic.

HEATHER HANSEN (00:31):
Yeah, I agree with you. I think they have really no choice and if they can instill that little bit of doubt in one of the juror's minds, they're in good shape. But let's talk about the style of it because if you have the majority of the jurors believing that your client is guilty as can be, being that aggressive and that indignant about the whole thing, do you think that that serves

Katherine Smith (00:51):
It can really run counter to your interests because especially first of all, if they don't buy your story, they're going to have a lot of pity for the dad,

HEATHER HANSEN (00:59):
And

Katherine Smith (01:00):
So if they're on the fence and you're heavy handed with the dad, it's not a good move.

HEATHER HANSEN (01:03):
Yeah, that's one of the things that I always, when I have to cross examine a witness that the jury's feeling sympathy for, I try to really back off. Hands off. You can still make your points without getting in the person's faith.

Katherine Smith (01:14):
Exactly. There are ways that you can drive home and try to weasel in that doubt that they're trying to do in order to serve their client without raking somebody across the coals. Sometimes the substance is there, but if the style is abrasive, it doesn't help.

HEATHER HANSEN (01:26):
Yeah, it's a huge part of it. Trial is theater and a huge part of that theater is how you cross-examine someone who is so intimately connected with the deceased. Now it's my understanding though I might be wrong, that this is the last witness for the prosecution, if that's true. Kate, is that a good move on the part of the prosecution?

Katherine Smith (01:46):
I think the way it's going so far, possibly because I think that, like you said, the taste in my mouth watching this is that I feel some sympathy for the father. I think maybe handled in a different way. It would've been a poor ending for the prosecution if that doubt would've been sown. But as I see it now, pretty good move.

HEATHER HANSEN (02:04):
Yeah, I agree. We talk about primacy and recency, the first thing that the jury hears and the last thing the jury hears, and that's why openings in closings are so important. So putting him as the last witness and bringing out that sympathy and that feeling that every juror who's a father or a mother must feel certainly can't hurt. Now as far as the defense is concerned, as they get ready to put their case in chief on, what do you expect to hear from them?

Katherine Smith (02:28):
I expect there to be a lot of shifting the blame to other people and certainly the father is a prime candidate for that and that's why it's risky with the prosecution to have brought him on last. But they obviously must have had some sense that it was going to go the way it is. I like to think that's the case because I think it's working out to be a prudent move.

HEATHER HANSEN (02:48):
Yeah, I think you're right about that and I think that ultimately it's going to be interesting to see what they do next. And let me ask you, as far as the defense's case, we know that a pathologist is going to be for the defense and we'll be talking about him a little bit further, but do you think that that testimony, that forensic testimony is going to play a key role here?

Katherine Smith (03:06):
It very well may. I mean, obviously I remember I was on the show last week when we saw the emergency room doctor testify and we knew at that point that that was going to be the groundwork for the battle of the experts.

HEATHER HANSEN (03:17):
So

Katherine Smith (03:17):
It's going to be very interesting to see what they put on. I'm assuming that they're going to bring on experts that are going to say that these injuries are inconsistent with the type of trauma that the prosecution is claiming that the defendant did.

HEATHER HANSEN (03:28):
Alright guys, this is Dr. Peter Burst and he is one of the experts for the prosecution and before we went back into the courtroom, he declared that he believed that Jon Chuck was sane at the time of this incident. This is another Kate, just like we were talking about with the other case. This is a battle of the experts, isn't it? Absolutely.

Katherine Smith (03:44):
Absolutely.

HEATHER HANSEN (03:45):
Now how do those battles get decided?

Katherine Smith (03:48):
Well, that's so difficult. I mean, obviously we have a baseline of psychological history that they're examining from the defendant and they're laying out. Once they examine those records and that evidence, they're laying out their theory based upon their medical experience and then that's up to the jury to decide.

HEATHER HANSEN (04:05):
Yeah, it's so interesting the way that when you talk to jurors afterwards, the ways that they decide, they base it on things like tone of voice, body language, who they liked better. Oftentimes it comes down to things like that, doesn't it?

Katherine Smith (04:17):
Yeah, and that's so concerning. I mean, we like to think that it hangs on every single medical nuance, but a lot of it sort of what we were talking about in the last trial has to do with the affect, has to do with the delivery. It has to do with the trustworthiness. I mean, I think there is this sentiment amongst jurors as in the general public that you can pay an expert to say pretty much anything. So just because they're an expert doesn't necessarily go all the way.

HEATHER HANSEN (04:39):
Yeah, that's a really good point because when it comes down to the payment, I mean when you start questioning each expert on how much did you get paid? Well, how much did you get paid? It loses all value and the jurors realize everybody gets paid to come in and testify. So that's Dr. Burstin who was testifying on behalf of the prosecution going through some of the history of John, Chuck Kate. It's a fine line between evidence that is relevant to his insanity and evidence that is simply a total attack on his character and that's not relevant in this case. Do you think that that testimony, that line of questioning was appropriate?

Katherine Smith (05:14):
It's a fine line. My first reaction was I thought it went a little bit beyond where that line is drawn in the sand. I understand they're trying to bring this out to show that he has a history of manipulation and that these were intentional acts and that this is just another extension of this behavior that he's exhibited throughout his life. On the other hand, the jury could impermissibly use this as evidence of him having a bad character and use that against him to convict him here where he may not have been wrong just because he was wrong in the past.

HEATHER HANSEN (05:42):
Yeah, it's a really big deal. And in just a minute we're going to see just how big of a deal, because the defense filed a motion for a mistrial. Do you think now that it was appropriate for them to actually make that motion? Or do you think it's something that they just needed to lodge an objection? How strong of an effect do you think that that testimony will actually have on the jury?

Katherine Smith (06:01):
I think it's pretty significant. I would've made the motion as well. I mean, I don't think that there's a downside to making that motion and you certainly need to preserve any type of appeal. I think it was a prudent legal tactic.

HEATHER HANSEN (06:13):
And to your point, the downside of making a motion, I mean making a motion, putting it on the record, it gives you the right later on to raise an appeal. And there's been a lot of appellate issues in this case, hasn't there?

Katherine Smith (06:24):
Absolutely. I mean, the only downside I can think is if you're drawing juror attention to something that is relatively minor and highlighting something that would've gone under the radar otherwise, this is not one of those scenarios. This is in your face obvious, and I think it was important that they preserve that record.

HEATHER HANSEN (06:41):
It's a really good point because we don't object to everything, but only those things that we have to object to or that we want the jury to hear that objection. Well, that was quite a motion, ladies and gentlemen. She moved for a mistrial and she had piece of evidence upon piece of evidence and problems that she saw where different prior bad acts, bad character evidence, uncharged, prior bad acts, all kinds of school suspensions, things that he did with money, and she went through the list one by one, by one by one. Kate, first of all, do you think that this motion for a mistrial should have been granted? I do, and

Katherine Smith (07:12):
I usually don't come out so strongly on something, but listen, rule number one is that you shouldn't let in any evidence that is more prejudicial to the criminal defendant than it is probative, than it is relevant. And prior uncharged or unsubstantiated bad acts is number one on something that you shouldn't let in. So I find it to be concerning.

HEATHER HANSEN (07:30):
Yeah, I was surprised that the motion wasn't granted. This judge seems to be sort of airing on the side of letting things in on both sides, but this is a serious problem. Now, when you're the defense attorney in a case like this and you've made this motion, it's a strong motion. You're keeping it in the back of your mind that you have this appellate issue. Now how do you spin this stuff to make it work for you?

Katherine Smith (07:51):
Yeah, because listen, once you lose the motion, the facts are in, the facts are there, and anybody can use them. So they can then use these facts that have come out and say, listen, prosecution says that this shows he had a deliberate sense of mind, but we think in our expert thinks that that's further evidence that he's criminally insane throughout the year so they can use it without hampering their ability to render that appeal later.

HEATHER HANSEN (08:13):
Yeah, I mean, I would be spinning each and every one of those things and saying, this is proof that he was insane back then. This is proof that he had mental problems back then. So I do think the defense can use it, but man, I was surprised when that motion was denied.

Katherine Smith (08:25):
It's tough and you can't unring that bell once it's out there. These bad facts that are unproven bad facts about an individual, the jury will lodge that in the back of their mind and maybe render a decision based on that and not what's relevant, which is whether not he was criminally insane.

HEATHER HANSEN (08:38):
So ladies and gentlemen, that was the expert for the defense, giving reasons why he believes that John Chuck was insane. We heard the testimony from the prosecution's expert as to the reasons he believes that he was not insane. And Kate, we get back to what we discussed before the battle of the experts. So let's take the way that they presented One the things that I talked about last week when we were covering this case is the fact that the defense expert got down, stood in front of the jury, was almost like putting on a show, walking back and forth, showing different things, whereas the prosecution's expert sat in his seat and went through his notes as he testified. Do you think that that makes a difference as to who the jury connects with?

Katherine Smith (09:14):
Generally? Yes. I think that if you can and the judge allows you to get more close and interactive with the jury, especially because as we all know, people learn and absorb information in different ways. It's good to have visual aids like he did. I think that's really helpful. That said it was a little flat.

HEATHER HANSEN (09:30):
Yes, yes. It's so funny that you say that. First I want to go back to your first point because one of the things I learned, I don't know if it was in law school or right after, it's seven times, seven ways. If you can say something to a jury seven times in seven different ways, say it with a witness and you're opening and you're closing with an exhibit, I don't know, keep going to find seven. But then that way you're actually making your point. And the defense did try to do that, but I couldn't agree with you more. When you say it fell flat, what did you mean by that?

Katherine Smith (09:56):
I felt like it wasn't impactful. All the things that you're supposed to do were there. Like he was hitting off the bullet points of what to do to engage the jury, but it wasn't compelling. It didn't have that oomph and I don't think it's the factual content. I think it was the mode of delivery.

HEATHER HANSEN (10:13):
Yeah, its tone of voice is so important with these things. And his tone of voice was a little bit, to your point, flat. It's going to be interesting to see. Ultimately it's going to be the job of the attorneys in their closings to bring out all of the testimony of these experts and try to hit at the credibility of the opposing expert when they close. As far as cross-examination of these experts, I didn't see any zingers that really hit the credibility to such a degree that I would say the jury's going to disregard this expert. Did you?

Katherine Smith (10:43):
No, and that's a major point. It's funny, we're talking about all these stylistic things, but really when you have two experts in the field whose their underlying credibility has not been diminished, unfortunately, sometimes it does go to who's more convincing and maybe it shouldn't, but jurors or people

HEATHER HANSEN (11:02):
And

Katherine Smith (11:02):
People respond emotionally and connectively to people, to the experts. So I think it does come down to that.

HEATHER HANSEN (11:09):
Yeah, it does, especially to your point when there's not one key piece of evidence or one key thing that you can point out and say, this expert is a liar. When it's those things, you have to sort of rely upon tone and body language and presentation.