Episodes 3 and 4 of the new 4-part documentary on the Jens Söring case have just been released for press preview, and I’ve had a quick look at them.1 There’s not much new here — this is basically little more than an expanded version of Killing for Love, with extended interviews with figures such as Ricky Gardner, Dave Watson, Gail Marshall, and others. The new 3-hour documentary is actually slightly more balanced, since the longer format allows for longer interviews which present more context. Nevertheless, it still doesn’t come close to presenting the full, accurate picture of the case. Plus, as usual, it’s full of innuendo and misleading editing. I’ll have many more comments when I live-blog the 4-part series on 4 August, 2020.
Let’s Go to the Tape
For now, I thought I’d pick out one short example to show how the filmmakers operate. Here we see a brief excerpt of the testimony of Annie Massie, the family friend of the Haysoms, who found their bodies. Rick Neaton, Söring’s defense lawyer, is shown trying to ask a few questions, but then getting shot down:
From this excerpt, it’s impossible to tell exactly what questions Neaton was trying to ask, or why he wasn’t allowed to ask them. We’re evidently supposed to assume these scenes suggest (1) Neaton’s incompetence as a lawyer and/or his unfamiliarity with Virginia rules; and (2) the judge’s pro-prosecution bias (in her 2016 interview on the Markus Lanz TV show, co-director Karin Steinberger said her impression was that the judge “kept interrupting” the defense lawyer). After this confusing courtroom exchange, we cut to an interview with Söring’s former lawyer Gail Marshall. She notes that Rick Neaton was a friend of Söring’s father, that he was licensed in Michigan, not in Virginia, and that he may not have been familiar with the procedural rules in Virginia. Thus, the unstated implication of this part of the documentary are that Neaton was unfamiliar with Virginia rules, which caused him to make mistakes, and, on top of it all, the judge unfairly singled out Neaton for criticism.
What Exactly was Going On Here?
All of these assumptions fall apart on closer examination, as is so often the case in pro-Söring films or articles. First, let’s untangle all the confusion and go straight to the trial record. This is the exchange from which the filmmakers created their montage. Söring’s lawyer Rick Neaton is questioning Annie Massie, the family friend of the Haysoms:
Q And Loose Chippings, the Haysom home sits on top of a knoll or a hill, right?
A That’s right.
Q And it looks out over a — out over the mountains off the back, right?
Q Now Mrs. Massie, you’re of the opinion that Elizabeth Haysom
MR. UPDIKE: Objection to any opinion, regardless of what it is.
THE COURT: The question is [sic] certainly started off wrong. I don’t know how it would have ended up, but based on the way it started off, I sustain it.
MR. NEATON (continuing)
You know of some facts, don’t you, Mrs. Massie, that suggested Elizabeth Haysom was —
MR. UPDIKE: Objection, Your Honor.
THE COURT: Wait a minute, Mr. Neaton, that’s an improper question. I sustain the objection. You’re on experienced trial lawyer, it’s going at it in a different way, sustained.
MR. NEATON: (continuing)
Q Mrs Massie, I’d like to ask you some questions that may be of a rather sensitive nature, and I ask you to bear with me while I ask you these questions. Did Nancy Haysom ever shown you any nude photographs of Elizabeth Haysom?
A No, Nancy had not.
Q Was there ever a incident at Loose Chippings when you commented Elizabeth Haysom on her physical appearance and tweaked one of her breasts?
MR. UPDIKE: Objection, Your Honor, but the question’s been asked and answered.
MR. NEATON: Judge, I’m just gjving the witness a chance to clear up some things that become more apparent when Elizabeth Haysom testifies.
THE COURT: The question sounded proper, but to me it’s not a proper question.
MR. NEATON: (continuing)
Q Have you ever talked to Elizabeth Haysom about whether she was there on the night of March the 30th?
A No. I asked her once about how she would explain.
MR. UPDIKE: Objection, Your Honor, isn’t this hearsay?
THE COURT: Of course it is hearsay if it’s offered for the proof of the truth of the statement. The objection is sustained.
MR. NEATON: Judge, I would say that it’s not hearsay. because Elizabeth Haysom was charged with these crimes and pled guilty to being an accomplice to these crimes, and therefore it is offered as an exception to the hearsay rule under the co- conspirator section, that is a statement made by people in a joint enterprise, as the prosecution contends.
MR. UPDIKE: Your Honor, the fact that she pled guilty does not change the hearsay rules. The conspiracy, exception of statements in furtherance of the conspiracy requires some type of foundation to that effect, there’s been no foundation from this person.
THE COURT: Objection is sustained.
MR, NEATON: Thank you, I have no further questions.
What is going on here? Well, it’s pretty simple. Annie Massie’s testimony at Jens Söring’s trial was very brief. She basically just said how she knew the Haysoms, described their home, and described finding their bodies. She didn’t have any particularly important or incriminating things to say at that point.
However, as Neaton knew, Annie Massie was personally convinced that Elizabeth Haysom had been at the crime scene: Massie had said so at Haysom’s 1987 sentencing trial. As she testified back in October 1987:
Q Right. Do you also share the belief with Howard Haysom that Elizabeth was in Lynchburg or in Bedford County when– [the Haysoms were killed]
A That is correct, I do.
It’s more than obvious what Neaton is trying to do here: He’s trying to get Annie Massie to say that she personally thinks Elizabeth Haysom was at the crime scene. It’s equally clear that Jim Updike knows this is what Neaton is trying to do, and so does the judge. Updike wants to prevent Massie from stating this.
What Does the Law Say?
Both Updike and the judge are correct on the law. Annie Massie is not an expert witness, she’s a fact (or “lay”) witness. She is only allowed to describe things which she personally experienced or knows. She is not allowed to give her opinions, unless those opinions are about ordinary, everyday matters: how hot was it, what’s the most important part of your job, what’s your favorite food, etc. As a non-expert witness, she is not allowed to state her opinion on important questions of law or evidence. As a fact witness, you can say how fast the car was entering the intersection, but not what you assume the driver was thinking. You can say the bank robber seemed to be slurring his words, but not what kind of drugs you personally believe he was on. You can say you saw the plane crash, but not that you believe it was brought down by a bomb. You’re not a psychologist, a medical doctor, or an airplane crash expert.
Annie Massie was personally convinced Elizabeth Haysom was at the crime scene, but this was only speculation on her part. She had no “personal knowledge” that Haysom was there. Her opinion was, therefore, not admissible evidence.
But wait, you might ask, why was she allowed to testify about it in Elizabeth Haysom’s 1987 trial? The answer is simple: Because the 1987 trial of Elizabeth Haysom was a trial only on punishment, not on whether Haysom was guilty or innocent. No jury was involved. The rules which apply to punishment hearings are much more lax than the ones which apply to trials about guilt or innocence. This makes sense: Deciding whether to send someone to jail at all is considered a much more important question than whether they go to jail for 7 as opposed to 9 years. Thus, most evidence rules don’t apply to punishment trials, since the really big decision has already been made.
In 1990, though, Jens Söring’s jury trial did revolve around the question of guilt or innocence. Thus, the full set of evidence rules applied. And one of those rules is that fact witnesses can’t give their opinions. So Neaton had no right to ask this question, or to get an answer to it. Neaton then tries to get around the judge’s initial ruling by “going at it in a different way”, as the judge notes: asking Massie whether she ever became aware of facts, or heard Elizabeth say something which led Massie to assume Elizabeth was there. But this doesn’t work either, since this is hearsay, and hearsay isn’t allowed unless a specific exception applies. What Massie wanted to say was definitely hearsay, and no exception applies which would allow it in. As Updike correctly points out, what co-conspirators in a crime say can be admissible, but Massie was not a co-conspirator in the murder of the Haysoms, despite Jens Söring’s valiant attempts to make her one.
The judge’s rulings, therefore, were correct on the law. Neaton had no right to ask these questions. The judge shows a bit of exasperation, reminding Neaton that, as an experienced trial lawyer, he should have known he couldn’t ask these questions. Neaton doesn’t pursue the matter, since, deep down, he knows this, too.
Was Neaton Blundering or Acting Improperly?
So does this mean Neaton screwed up? The answer is a resounding no. What Neaton was doing is giving it the old college try. He had a witness up there who could have said something favorable to his client, and he did everything he could to get that statement before the jury. The Michigan attorney conduct rules state that “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” When you’re fighting literally for your client’s life, you’re not going to timidly self-censor based on a strict reading of the rules. Instead, you try to drag in every piece of evidence favorable to your client, come hell or high water. It’s the job of the prosecution to try to stop you, if there’s a rule against what you’re doing. It’s the role of the judge to decide the issue if there’s an objection. But it’s your job to try to get it in, if at all possible. And that’s what Neaton was trying to do.
And it could have worked! If Jim Updike had been distracted for a minute, Annie Massie might have been allowed to blurt out her suspicion that Haysom was at the crime scene. If the judge hadn’t known the law as well as he did, he might have let that testimony in. In either case, that would have been a small victory for the defense. Neaton was obliged to at least try to get the testimony in, even if he was unlikely to succeed (and not entitled to succeed). The fact that Updike challenged the testimony and the judge excluded it isn’t a sign of incompetence, it’s a sign that Neaton tried to bend the rules to help his client, but was unsuccessful. That’s actually good lawyering. And Neaton continued the good lawyering by accepting defeat. You don’t want to exasperate or annoy the judge unnecessarily. So after giving it the old college try, Neaton moved on.
Did Neaton Not Know the Law?
Marshall suggests that Neaton was unfamiliar with Virginia’s peculiar evidence rules. And thanks to clever editing, the viewer assumes that Neaton’s floundering in the courtroom showed this.2 But this argument about Neaton’s unfamiliarity with Virginia law fails for two reasons. First of all, there’s nothing specific to Virginia about these evidence rules. The ban on fact witnesses giving their opinions and the ban on hearsay are two of the most ancient and universal rules of common-law trial procedure. You learn them in the first year of law school. They exist in every American jurisdiction, including Michigan, where Neaton was licensed. In Michigan, these are Rule of Evidence 602, which forbids a fact witness from testifying about anything they don’t have “personal knowledge” of. Here, Massie did not have “personal knowledge” Haysom was at the crime scene. And Rules 801-806 of the Michigan rules of evidence forbid hearsay. So even if this trial had been held in Michigan, where Neaton was licensed, the exact same rules would apply.
Which brings us to the second reason Marshall’s argument fails, a certain gentlemen named William Cleaveland. This is a name Team Söring never mentions. The reason is simple: Rick Neaton, Söring’s lead defense lawyer, was later disbarred, although not for anything he did in Söring’s trial, a very difficult trial which he handled well.3 Some of the reasons for Neaton’s 2001 disbarment may have related to Sörings appeals, but not to his trial.4 So Team Söring’s wants the spotlight on Neaton, all the time, since he’s the one with the bad reputation.
But Söring had two lawyers. The other lawyer, William Cleaveland, was a Virginia lawyer and, at the time of Söring’s trial, an experienced former prosecutor. He’s right there in the picture:
Cleaveland went on to a successful career, becoming a judge and a delegate in the Virginia state legislature. He even has a Wikipedia entry. If Neaton had any questions about Virginia law, all he had to do was turn to his right, where a certified expert on Virginia criminal law was sitting right next to him.
So, to sum up: Neaton’s strategy was appropriate, but Jim Updike’s objections were well-founded, and the judge’s rulings were correct. Neaton didn’t fail here because he was unfamiliar with Virginia evidence rules — Virginia’s evidence rules were exactly the same as the rules anywhere else. And if Neaton had any doubts, he had expert help literally by his side.
This is what’s so irritating about this film, and most other arguments from Team Söring. They ignore all context not favorable to Söring, they haphazardly mix and match different issues, and they routinely get the law wrong, since most Team Söring members have never even tried to understand the law which applies to the case. The resulting arguments seem superficially compelling, but they crumble when subjected to fact-checking or analysis.
Yet doing that fact-checking and analysis is tedious. Team Söring has long relied on the fact that nobody was going to challenge their claims based on a careful examination of all the evidence. Team Söring members, of course, won’t do this because they’re in the tank for Söring. Outsiders either don’t care enough to do the work, don’t have access to the necessary records, or become too invested in the miscarriage-of-justice narrative to let a few facts get in the way.
But now, there’s the Söring Truth Squad, a gruff but lovable band of misfits who have the goods, and who have taken on themselves the burden of cleaning out the Augean stables of bogus arguments put into the world by Team Söring. There are only a handful of us, but together we are moving mountains.
- Nobody seems to know where Episode 2 is. Also, nobody seems to know whether this is the documentary which Team Söring was planning earlier in 2020. I suspect it isn’t, since this documentary contains almost no new footage.
- Marshall was actually probably referring to a jury-charge issue. I can explain it if there’s demand, but it’s pretty technical.
- Originally I referred to “case”, but in response to the first comment, I’m changing it to “trial” to be more accurate.
- Neaton was disbarred for mishandling client funds in other cases. While fighting to keep his law license, he claimed he had been mentally impaired at the time he broke bar rules — which included the time of Söring’s trial. Claiming mental impairment is usually a veiled reference to drug or alcohol use, which is the 100% standard defense tactic when a lawyer is accused of misconduct — plead substance-abuse issues, and hope to get into a special program where you get your license back after going to rehab).