“Shut up”: Comic Relief at a Murder Trial

First, a podcast update. Well, not really an update: There’s really not much to report here, except that the podcast is moving forward briskly. A great team of people has been working on it for a long while, and we’re nearing the end. It’s still probably a few months away, but it will happen, and I’m looking forward to it. I can’t reveal any more, but as soon as I can, I will.

But now, let’s turn to one of the few lighter aspects of the Söring case. A murder trial is no laughing matter. Jens Söring learned this himself when he smirked on the witness stand during his 1990 double-murder trial. Prosecutors Jim Updike seized on this lapse, asking Soering whether he found the trial funny.

But even in the grimmest trials, there are moments of levity, whether intentional or not. And the trial of Jens Söring was no exception. Here we’ll look at two points in the trial which made me laugh: the time Jens Söring’s lawyer Rick Naughton¹ told him to “shut up”, and the time Naughton blurted out a courtroom admission which nobody seemed able to believe.

First, we’ll need a little background. I’ll put it in the form of a timeline.

1. Jens Söring and Elizabeth Haysom go to Washington D.C. on the weekend of March 30, 1985. While there, Haysom buys two separate movie tickets to two movies shown on the afternoon and evening of 30th of March 1985. She also orders room service to be delivered to their shared room that day.
2. Söring goes to Lynchburg and kills the Haysoms, hoping the movie tickets and room-service receipt (along with a few other pieces of paper) will provide an alibi for them both.
3. Söring and Haysom flee the country in October 1985, and then are arrested in England in April of 1986.
4. Söring confesses to English detectives from 5 June to 8 June 1986. He mentions the ‘alibi’ Elizabeth created, but admitted it wasn’t convincing, since there were no time stamps on any of the pieces of paper he and Elizabeth kept, and no proof Söring or Haysom had actually attended the movie theatres at the relevant times.
5. Four years go by, during which Söring maintains that he killed the Haysoms and follows the strategy of (1) trying to avoid trial in Virginia; and (2) setting up a psychological defense of diminished capacity/emotional disturbance.
6. Fast-forward to March 1990. Söring tries to have his confessions excluded from evidence on the grounds that he was coerced and denied access to a lawyer. The judge rules that Söring lied on the witness stand and that the confessions can come in.
7. June 1990: Söring takes the witness stand in his own defense. He tells the story we’re all now familiar with: Elizabeth drove to Lynchburg to kill her parents, I remained in Washington, D.C. and created an “alibi” by buying the movie tickets and ordering room service, etc.

So, now the stage is set for the big surprise which Söring’s defense team had prepared for the trial: They have the original alibi documents!

Not just all of the movie ticket stubs, but even newspaper clippings with the movie showtimes. Not just the room service stubs (not the full receipts), but even the receipt from a meal at “Hamburger Hamlett” on Friday, March 29, 1985, before the Haysoms were killed. They even had movie tickets for the cinematic masterpiece Porky’s Revenge, which they apparently watched on Friday (if memory serves). There was even more in this bundle of documents, but I won’t bore you with the details. I’ll call all of them the “alibi documents.”

But wait: Nobody had mentioned these documents since Söring’s 1986 interrogations. It was unclear where exactly the originals were even at that time. Further, Söring had admitted during the interrogations that they didn’t prove much. Why were they suddenly popping up during Söring’s trial, 4 years later? Where had they been in the meantime? How could anyone be sure they were genuine?

The answers were provided by Söring’s father Jürgen² who testified at his son’s trial. Jürgen said that after Söring fled the USA in October 1985, he went to Söring’s residence to clean it out. There, he found an envelope of some sort containing the alibi documents. He then says he gave them to a lawyer he had hired to try to probe his son’s whereabouts and protect his and his son’s legal rights.

After going through another lawyer, they were eventually given to Sörings then-current defense lawyer Richard Naughton. Naughton tells the court he has had them since at least 1986 or 1987. The question is whether these original alibi documents can be admitted as evidence. There are many conferences in the trial about this outside the jury’s presence. The judge ultimately says yes, they can come in as evidence. During one of those discussions, Naughton tells the court: “These items quite very frankly, can prove the truth of the defendant’s assertions all along.” (June 12, p. 139).

Fast-forward to Jens Söring’s testimony. During his friendly direct examination, he and his lawyer introduce the alibi materials into evidence, with Söring claiming they prove his alibi. During cross-examination, prosecutor Jim Updike is very curious about these materials: Where did they come from? Who knew they existed? Who had possession of them and for how long? Why did you keep them for five years? (Go visit this footnote for the full story³). Back to the main story. Updike begins cross-examining Söring on this stuff: “If you knew these alibi materials existed, why didn’t you immediately tell your lawyer? Why didn’t you notify the detectives that you had proof of your innocence? Why did you never mention these materials until just before trial?” Updike is obviously indicating to the jury that there is something extremely fishy about these documents, and how they relate to Söring’s story.

The fun begins on June 18, p. 184. Updike is cross-examining Söring about the documents:

“Q: I don’t understand why a man keeps tickets to a movie for better than five years, can you explain that to me if it doesn’t mean anything [Söring had earlier claimed that he didn’t realize the significance of the documents until much later]?

A: I didn’t. Actually we left them behind in Charlottesville. They were forgotten. That’s where my father found them. I didn’t keep them.

Q: He found them in December, so at least in October you still had them?

A: That’s right.

Q: You father turned them over to your attorneys in December of ’85?

A: Right.

Q: And the first time that anybody other than you and your lawyers have seen any of these tickets, the originals, was today?

A: That’s right.

Q: And you claim that these tickets are an alibi for you, or excuse me, establish your innocence?

A: That’s correct, yes.

Q: I have a little difficulty understanding, (p. 185) perhaps you can help me, Mr. Soering. If you have got evidence that you feel will establish your innocence, why are you sitting in jail over there for such a long period of time, since April of 1986 holding and having control over evidence that you feel will establish you’re innocent?

NAUGHTON: Objection, assumes facts not in evidence; Mr. Soering did not have control over these tickets when he was in England.

THE WITNESS: I didn’t actually know about them.

NAUGHTON: Shut up.

UPDIKE: I couldn’t say that.

NAUGHTON: Well, he’s my client and –

UPDIKE: And I’m not criticizing him for saying it; I encourage him to say it any time he wants. Your honor, my question –

(There follows more argument. We resume on p. 187).

Q: I see. When did you discover where they (i.e., the tickets) were? (p. 188)

UPDIKE: I’m not asking anything that his attorney told him, I’m just asking who told him – (p. 190)

UPDIKE: Your Honor, it’s a matter of common sense. Now he (Söring) has also been locked up for three years. We saw these (p. 191) tickets, the Commonwealth of Virginia, for the first time today. Now I have a right to ask this man about why it took so long.

NAUGHTON: This man didn’t know about the tickets until last year, he’s already testified.

UPDIKE: You’re his attorney, and you didn’t tell him?

NAUGHTON: No.

UPDIKE: You didn’t tell your own client?

THE COURT: Gentlemen, I think we have gone as far as I am going to let either side go on this point.”

The judge ends it just as it was getting good, but that was probably a wise decision — Updike’s incredulous question, while understandable, was probably not something he could have demanded an answer to without getting into attorney-client privilege.

This episode, while amusing, also highlights some of the themes that go through Söring’s case.

1. Jens Söring won’t, er, “shut up”: This episode highlights Söring’s compulsion to provide a constant torrent of excuses, explanations, and defenses for his conduct. He has come up with what he thinks are plausible explanations for everything he thought, wrote, said, or did in connection with the Haysom murders and his behavior before, after, and during them. And he wants to make sure the jury hears every single one. He therefore blurts out, in open court, the incredible assertion that he remained unaware of what had happened to the alibi documents until very recently. Söring still suffers from this compulsion: even in interviews given 35 years after the incident, he is still so intent on telling his story that interviewers often have to pull him away from the topic.

2. Naughton had a nightmare job: Ask any defense lawyer who their least favorite clients are, and “the talkers” will be high on their list. These are clients who just cannot resist answering questions and stating their case, regardless of how much trouble it gets them in. Jens Söring was a talker. He gave hours of incriminating statements to the police, and insisted on taking the witness stand to try to undo the damage — but only managed to dig himself in deeper by telling the jury a tale which made no sense.

But there’s more: When he blurts out “I didn’t actually know about them”, this put Naughton in a serious predicament. Naughton knew he would have to address the issue of where the documents came from eventually, but wanted to do this on his own terms. Instead, his client blurts out a bizarre claim that will certainly have gotten the jury’s attention: Söring didn’t even know about the documents which were the heart of his defense until recently? Huh? How could that be? Where were they?

Naughton thus has to address the issue on the fly, so to speak. He now faces a serious problem: He has told the court that he was in possession of the original alibi documents for years, while he was representing Söring. Yet his client has just told the court and jury that he (Söring) didn’t even know about them until recently! The only way for Naughton to square the circle was to state, in open court, that he possessed crucial alibi documents which could “prove the truth of” his client’s assertions (in Naughton’s own words) for years, and never told his client.

Naughton faced a Hobson’s choice: 1. Admit to the court that of course he had told his client about these documents — thus showing up Soering before the jury as a liar. 2. State before the court and jury that he had never even disclosed the existence of these documents to his client, which saves Söring but shows him (Naughton) up as either incompetent or dishonest. In terms of American criminal defense law, Naughton made the honorable choice. He damaged his own reputation and plausibility to try to help save his client. This is called “falling on your sword”, and it’s the opposite of “throwing your client under the bus.”

This is why I have defended Naughton and Cleaveland’s performance at trial (and why every judge has unanimously ruled their representation was competent): They were faced with a near-impossible task that required them to make dozens of difficult decisions, and they mainly made good ones. As here. You can also see this by the judge’s reaction. Judge Sweeney clearly saw what was going on here: A defendant’s careless outburst had put his defense lawyer in a jam, and the defense lawyer was trying to limit the damage to his client’s case, even at the lawyer’s own expense. Every lawyer has been in this position at one time or another, and Sweeney did the compassionate thing by not letting Naughton “twist in the wind” (another lawyerly saying).

3. Söring’s family has indeed suffered: Of course, another necessary implication of Söring’s claim is that his own father never told him about finding the documents. Imagine that: Jürgen finds movie tickets and room-service stubs for the date on which his own son is suspected of committing a double murder. Recognizing their obvious importance, he gives them to the lawyer he’s hired to try to track his son down and represent him in any future proceedings. His son is arrested the next year and spends the next four years in police custody. The family calls, writes, and visits Söring. Yet during all this time — from December 1985 to 1989 at the earliest — Jürgen Söring never tells his son: “Oh by the way, I found documents which provide you with an alibi for the double-murder you face potential execution for.” He just happened never to mention this fact. Or Söring forgot about it, which is even less plausible. This is the story Jürgen Söring must stick to, or risk damaging his son’s credibility in a double-murder trial.

In his current interviews, Söring never fails to mention that he has brought “immeasurable suffering” on his family. On this, there’s no reason to doubt the man.

4. Everything you need to know about Söring’s guilt came out at trial: Altogether, tens of millions of words have been written about the Söring case, millions by Söring himself. There’s endless speculation about various possible scenarios surrounding the murders, and the importance of “evidence” discovered after the trial. Yet all of this shouldn’t obscure a very simple fact: All of the evidence needed to convict Söring fairly was presented at his trial. And most of that evidence came out of Söring’s own mouth. First of all we have the confessions, which were played for the jury in their entirety, and which you can now read, in German translation, on this blog.

But more importantly, it was Söring’s testimony that doomed him. And it doomed him not because he was a German, or seemed arrogant, or because the air-conditioning broke down during while he was on the stand (another frequent complaint of his). No, Sörings testimony doomed him because it made no sense. it contained glaring factual errors, weird leaps of logic, and assertions that run completely contrary to human nature. Such as the assertion that his own lawyer and father concealed evidence which could have cleared his name from him for years.

If the prosecution has a theory that makes sense and the defendant puts forward a different story that does not, the defendant loses. And deserve to lose: The fact that Söring put forward an implausible story is, itself, evidence of his guilt. He was permitted to state his case at trial, and the jury found that it was nonsense. He was fairly convicted, then and now.

1. I’ve decided to change the name, although the man’s real name can be found all over the Internet and I’ve used it before on this blog. I kind of feel sorry for Naughton. He’s still around, and probably never imagined his role in a trial held 30+ years ago would still be coming back to haunt him. He was faced with one of the biggest challenges a defense lawyer can imagine: A client who confessed repeatedly and is determined to tell the jury an unbelievable story on the witness stand. He did as sound a job as possible under impossible circumstances. And yet Söring still blames him at every turn for losing a trial which Söring himself lost by lying to the jury.
2. I have also changed his name. He’s been through hell, and deserves to be left in peace. There are problems with his testimony at trial, as Terry Wright’s report shows, but it would be unreasonable to judge him for trying to help his son.
3. Now wait, Söring supporters might say: “I know why he didn’t draw attention to these alibi documents!” Addressing this objection takes a bit of time, so I’ll do it in this footnote. Team Söring will say: “Söring didn’t call attention to the alibi documents because he wanted to save Elizabeth from the electric chair!” As he testified under oath and described in his books, she asked him to create the alibi to convince her parents that she wasn’t using drugs during their vacation in Washington, D.C. Instead of doing the drug deal, though, she went and killed her own parents. Söring was thus left — in his 1990 trial version of his story — with all these tickets and receipts proving an alibi for Elizabeth. They then left and traveled the world and got arrested.

   In Söring’s story version from 1986 to 1990, the “alibi documents” are irrelevant, because he admitted he killed the Haysoms and the alibi was bogus. But then, in his 1990 trial in Bedford County, Virginia, Söring changes his story and now claims that he actually did have an alibi, and these documents prove it. But, as prosecutor Jim Updike perceptively asks, why did you never mention these documents from 1986 until now? The only reason Söring could possibly say was this: “Well, I knew my girlfriend had committed these murders. I also knew she asked me to create an alibi for the time when she was committing the murders. Of course, she didn’t tell me she was going to kill her parents; she just said she was going to do a drug deal. The alibi was worthless; it didn’t prove either I or she was in Washington. It was irrelevant.”

   But then comes June 1990, when he now wants to say the alibi documents are extremely important, because they prove Jens Söring stayed in Washington, D.C., while Elizabeth Haysom drove to Lynchburg, Virginia to murder her own parents. Now, in June 1990, Söring actively hates Elizabeth Haysom, because she just testified against him. But this raises an important question: If he dismissed and downplayed the alibi documents to protect Elizabeth, then why did he keep dismissing and downplaying them after she “betrayed” him in 1987 by flying back to Virginia, confessing to her role in the crimes, and then implicating Jens Söring? In August 1987, Haysom was tried and convicted as an accessory before the fact to murder, and described her role in the crime.

   At the very latest, after Elizabeth Haysom’s trial in August 1987, Söring knew that his former girlfriend had not only broken up with him, but had actually given evidence in her own trial which deeply implicated him. Of course, he now realized that she was a great danger to him — she had not only admitted everything, but implicated him. He had every reason to discredit or attack her. Now we have to split into two alternate timelines: the Jens Söring fantasy timeline, and the real one.

   Jens Söring’s fantasy timeline: Good heavens! The woman I loved has now, in August 1987, betrayed me by testifying in open court, before running cameras, that I killed her parents. How could she? She also testified that I told her to create a fake weak “alibi” by buying movie tickets and room-service meals from the Marriott hotel in Washington where we were staying. However, since I am still a loving and faithful boyfriend who wants to save her from the electric chair, I will continue to take the blame for the murder of her parents. I will therefore not mention that she ordered me to create the fake, weak alibi. Only 3 years later, during my own trial, will I reveal this shameful fact.

   Reality: Söring had little or no contact with Elizabeth Haysom after they were arrested in London for fraud on April 30, 1986. In 1987, Söring realized his former girlfriend was going to return to the USA, accept her guilt in the murder of her parents, and very likely testify against him. As of that point, in 1987, he had no reason to keep the alibi documents secret. He could, and should, have said to everyone something like this: “My ex-girlfriend Elizabeth, who’s now testified against me in open court in Virginia, lied! She says I asked her to create an alibi, but it was actually the other way around: She asked me to create an alibi while she went off to murder her own parents, unbeknownst to me.

   Yet, as we know, he did no such thing. Instead, he claimed, during his June 1990 trial testimony, that he had no idea the alibi documents existed, and only realized they had been preserved sometime in 1989, shortly before his trial in Virginia. Jim Updike, seeing this problem, kept asking Söring questions like: “Listen Mr. Söring, if you already knew by 1987 that your girlfriend was going to sell you out and admit the crime, why did you keep these ‘alibi documents’ secret after you realized your girlfriend had already confessed and betrayed you, in 1987? Why did you continue to protect her for two full years after that by never mentioning the fake alibi you say she ordered you to create?

   I know, it’s a bit dense and confusing. But unpicking complex lies always is. Go back to the article and enjoy!