The Brian Walshe Trial: Our Legal Expert Says The Prosecution is Moving Too Fast and Missing Way Too Much

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Speaker 1: Welcome everyone to this edition of Amy and TJ Presents.

00:00:06
Speaker 2: We have been covering the Brian Walsh trial.

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Speaker 1: It has been even more fascinating, perhaps than we had anticipated, but we have alongside us, back by popular demand, a legal expert and renowned criminal defense attorney, Alison Triesil. And Alison, you've been watching alongside of us, and this first week of testimony wrapped up with a bang. We're already back at it on week two here on Monday morning. But what was your big takeaway last week?

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Speaker 3: There's probably three big takeaways. I wanted to know what the what the former lover had to say. I wanted to know what the medical examiner was going to say, and how the defense was going to cross examine the medical examiner. And of course I had to wrap my head around this defense and was the prosecution going to spend all weekend preparing for how we're going to answer? There's no body, there's no manner or cause of death. How are we going to deal with this? And unfortunately for the prosecution, in my mind, unless I see more and a lot more, I think they missed a lot of key points. I think that they could have done a lot more with the medical examiner that they had on the stand. I think they could have done more with mister Fusto and asking him questions. So this is a case where you have these searches that make the prosecution's case nearly a slam dunk, and all of a sudden, we're at a place where I'm scratching my head and I'm saying, eh, wait a minute, wait a minute, the defense has something here. Nobody, no intent, no causation, no manner of death. This is a problem for the prosecution.

00:02:02
Speaker 4: I got Allison, We're smart, we feel so validated right now. We're not legal experts, but we watched all last week and we got to even day two, day three, and we couldn't believe what we were saying, Like, wait a minute, maybe that didn't happen. I could not believe. And it sounds like this is what you are saying. The defense had a good first week.

00:02:24
Speaker 3: The worst potential case. I mean, you know we're starting from a place of less than zero. Okay, I mean really, you know I've done this for many years and this is not the kind of case you want to take to trial. You go to trial because you have no other option, because no offer is on the table. And by the way, I'm also questioning why the prosecution allowed him to plea to the other charges before the case got to trial, because now they may be handcuffed where they can't even talk about the fact that he pled to it. So I'm saying, you know, was the fact that they could prove consciousness of guilt. That's not enough for me. So I'm again I'm saying, this is a very bad case for the defense. Those searches may rule the day, but we are talking about the defense. And basically, from what I saw from the corner and the medical examiner, the defense attorney owned him. That was as if he was his witness.

00:03:29
Speaker 2: I agree.

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Speaker 1: And the thing that has stood out to both TJ and me is this notion of first degree murder. They have to show premeditation if they don't have the motive that they think they have.

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Speaker 2: If the defense can prove or at least create.

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Speaker 1: Doubt that Brian Walsh may not have known his wife was having an affair, how do you then prove premeditation. There was a moment where you and I both looked at each other when the defense attorney, Larry Tifton right he was able.

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Speaker 2: To to have the forensics.

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Speaker 1: The digital forensics guy read off all of these other back and forth between his wife and him, showing love, showing pictures, back and forth before January one. None of his searches were about murder. None of his searches were about planning something. They were quite the opposite. What do you make of that?

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Speaker 3: Well, I want to say something about premeditation. First of all, it doesn't have to be formed days, weeks, hours beforehand. It can be formed pretty quickly. Okay, pre meditation can be formed fairly quickly, So I would focus if I'm the prosecution. And this is where I think they missed a lot of key moments. Is you know, they had mister Fausto on the stand and the most interesting part of his testimony to me was this phone call that Brian Walsh made to him and left him this message. Okay, now, if he if Falsto is only the real estate broker who they had spoken to months before and nothing more, why is Brian Walsh calling him on January fourth and saying where is my wife? And he does it in a way that's very nice, And you know, I don't think there's a problem. I'm not concerned when we know, of course now that he actually had dismembered her by that part, by that point, and had you know, taken a hacksaw to her, and he's you know, he's lying to this man. But why him? Why is he calling him? If he didn't know something about them? I would have spent a lot of time as the prosecution and of course the defense was going to gloss over that. But I it seems to me that the that the prosecution is for some reason rushing through these witnesses they're ahead of schedule. Well, that doesn't need that doesn't help them slowly methodically. That's the kind of question that you spend a lot of time on. Why is this man calling a guy that the only relationship he knows is that they were in a real estate deal many many months ago. That is as strange, and that would show that Brian Walsh knew exactly who he was, knew exactly who he was, and so premeditation could have been formed if he looked at the phone and he saw that him wishing her a very happy New Year and then said what is this? What's going on? I would have also spent time talking about the clothes that she's wearing and meaning what was found in the dumpsters? Is it what the person who they celebrated New Year's Eve with? Is that what she was wearing because his hit The opening from the defense seemed to be that she died while she was in bed. Well, why is she wearing her shoes? Why is she wearing her jacket? Those kinds of things. Don't leave those for the jury to speculate on. Hammer them home, spend time on them, slow down, missed, missed opportunity.

00:07:11
Speaker 4: Okay, you just brought up two points that I'm pretty sure I did not hear them spend any time. You said that you were to spend more. I didn't hear them spend much time at all on either of those things.

00:07:20
Speaker 1: Is motive?

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Speaker 4: Am I justified on that jury right now? As taking the motive being the affair off the table? Do I have reasonable doubt at this point that Brian Walsh did not know about the affair?

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Speaker 3: I don't know if it raised I don't know if it raises to the level of reasonable doubt. I think we have to see what comes. But certainly, certainly there Fausto did. Falsto made very clear that while he was very open about the affair. She was not okay that She basically said to him, I wanted to I want it to come from me. But what the prosecution didn't pull out of him is you have no idea what conversations these two had. You have no idea what happened that night you were not there. You have no idea how many messages have you sent to her that he could have easily seen. So those kinds of questions were really missed opportunities because we're left, okay, the jury is left with he didn't know about it. He didn't know about this affair.

00:08:31
Speaker 1: It's so interesting you say that because when the defense attorney, when lippt In was cross examining fast Out, and said to him, did you ever have any indication.

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Speaker 2: That Brian Walsh knew about your affair?

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Speaker 1: And he said no, Did Anna ever tell you she thought her husband was suspicious?

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Speaker 2: No.

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Speaker 1: By that alone, you would have thought the prosecution would have come back for redirect and did exactly what you just laid out.

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Speaker 2: Why wouldn't they, because that, to me, was a moment for the defense, a clear vic for the defense.

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Speaker 3: Absolutely. Now, by the way, what's interesting is when I was thinking about ways to say maybe he found out about it on you know, on New Year's and he'd gone through the text as a defense attorney. My immediate reaction to that would have been, well, if he found out about it, she would have sent him a text and said something to the effective he knows, he knows now. But maybe there was a struggle. Maybe there was a struggle there and you don't know. Look, you don't know what happened. Which is part of the prosecution's problem is that there is no body right so you and you know, And I was thinking about ways over the weekend. How could you know? What are the questions that you asked the medical examiner? How you get out you know?

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Speaker 1: It?

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Speaker 3: Does it? Does blood after postmrtem post mortem? Can you tell when you see when you see a blood colot? Can you see if that is post mortem or not? Those kinds of things that that I would be trying to get at that somehow, of course, she was living when this blood came out of her body onto the rug or on the hack saw or something like that. And that's what I would have been spending time with on the weekend preparing because this defense may have come as a shock to you don't have to disclose what your defense is going to be. But we're now a week into this, and the prosecutors have now known for multiple days what the defense's theory of the cases, what they're arguing, how they're getting there, and the prosecution has got to be way ahead of this. So, for example, I was thinking about the medical examiner and when I said the defense had his way with him, is what he did was he basically said, well, you know, these sudden desks, they happen, and the witness basically, you know, when he wouldn't even agree with him that it's uncommon. It was a very strange moment that, you know, I mean, and if i'm if I'm the prosecutor, I literally give statistics. Okay, you personally has performed fifteen hundred autopsies. How many of those that you personally performed were unexplained deaths? How many? And I'd go on and on, And he's he is supervised or been involved in thousands of autopsies. His education and his credentialing is off the charts incredible. So this is a man that the jury is going to believe, and he's not somebody that was exaggerating or blowing things up. So he was someone that was very, very credible, and they should have used that as an opportunity to say to him, healthy woman, did you go through her medical records before? Did you interview people? And they touched on it a little bit, but you interview people around her and say did she ever complain of this? The only place he kind of got there was the ninety minute plane flight in Washington from Washington, right, those kinds of things. But I would have spent far more time talking about how uncommon it is. I mean, think about how much time the defense spent trying to enumerate every single type of unexplained death. I would have spent double the amount of time saying how uncommon it is. And I just don't know why they're rushing.

00:12:33
Speaker 4: Do you think this is going to happen? Should the judge let the jury hear about the police on the other two convictions? She seemed to be really going back and forth about this and hasn't decided what she's.

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Speaker 2: Supposed to do.

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Speaker 3: Right, she's fascinating on it. And you know I had said the last time that I was on is that you know when the defense opens the door for it, Right when the defense opens the door for it. Then the judge has to let it in. But I I you know, the the jury shouldn't be left with a question of, well, what what happened here? I mean, he's saying that he disposed the body. I you know, it's going to come down. Is he going to testify if he comes, If he comes to testify, and that's going to come in. You know, we talked about this the first time. But first question, where's the body? Second question, why did you plead to this? You know, why did you play to this? So I think it comes in if he testifies. She's struggling. She's struggling. But again, and I don't you know, it's not that I'm I'm I'm scratching my head as to the prosecution in this case. I just I don't understand why he was allowed to plea. Maybe they didn't think that this was going to be the defense, and it did kind of come out of left field, this defense of you know, unexplained death. It's not like they're they're arguing a passion. And by the way, that's another thing. Amy they've closed the door to a second degree murder. This isn't all or nothing here. I mean the defense has said, either you believe that there's an or there you know that this is an unexplained death, or that the prosecution cannot prove beyond a reasonable doubt that Brian Walsh killed her in any degree.

00:14:27
Speaker 1: In any degree, why wouldn't the prosecution have put on other charges second degree murder of vanslaughter.

00:14:34
Speaker 2: Why wouldn't they have included because we've seen that before.

00:14:37
Speaker 3: And they may they may at the end as for ask for a jury instruction as to other charges, they may increase that. But but I think I'm more interested in you know, maybe they felt because there wasn't a body that they would secure these other convictions. Okay, that they could then show that it was consciousness of guilt by by hacking up her body and disposing of it the way he did. But it would it have been far better better to go through this trial with the jury having to decide and hear all this testimony and say, oh my god, he actually did chop her up, he did all these horrible things. You know that that probably wasn't something that they thought that that they were going to argue, is that this was an unexplained death, so may have been a missed opportunity. But here's the thing. I there's just there's just questions that should have been asked by the prosecution, And I'm looking at my notes and I'm jumping around a little bit. But with mister Falstow, I I they talked about it a little bit, the prosecution a little bit. But on the questions of what Anna felt about him moving there, what Anna felt about his case, Okay, I would have asked questions like, well, wasn't I'm not furious that her husband was going potentially was going to prison. Wasn't she furious about the financial stress he had put on their family? Wasn't she furious that as a result of what he had done, she was separated from her children because he couldn't move to Washington, DC. Those string of questions are proving motive are proving motive, are proving that this is all boiling over, that this is not by the way, this marriage isn't that great. If she's having an affair, it's not that great? All right? What TJ No?

00:16:42
Speaker 4: Because I had another question in mind for where I was about to go, and then you actually came back and brought me back to something else. Because motive has been the big thing, and there was something that happened last week, and I really I wanted to text you and ask you about it. D murder, the word murder not being in any of his searches until six plus hours after he started searching. Is that relevant?

00:17:10
Speaker 3: Okay? So I listened to your podcast after I was on, and Amy said, you know, maybe he is feeling guilty over it, and which very by the way, is very possible. I mean, it's very possible that he is, you know, you know, after he recognizes what he has done, he then says, you know, he starts to ask about murder. But I just find I find that I don't care how long of time elapsed. To me, the fact that he used that he typed in the word murder, he had to type it in. That is significant. That is significant. You know, accident would have been great, but that's not what he typed in. Typed in murder.

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Speaker 4: Okay, I get it. It doesn't matter what time. Okay, I get I get you know, to be honest, you put us after that first UH interview or podcasts we did with you, in a mindset to where I'm looking at the defense and trying to figure out how I'm more fascinated by what they're doing. And you sound like there's so much you're looking at critically on the prosecution side. But I'm just so fascinated by what Tipton, what's he up against. I'm fascinated by any little little victory they get.

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Speaker 3: Well and I and the reason that I spotlighted that. And then look, you know, when I cover these cases, I really cover them from both sides. I look at the defense, I look at the prosecution. You know, what does the prosecution have here? You have some you I mean, those searches and the fact that he hacked up his his his wife's body, and someone's got to explain, you know, just leaving it alone. He may have to get on the stand. You know, So how is it?

00:18:54
Speaker 2: How chance?

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Speaker 3: I don't know. I don't know. I don't I want to hear what and I said this from the beginning. I want to hear what they're expert. I want to hear what the defense is expert has to say. Okay, and by the way, maybe they're going to use the prosecution's expert because because he did such a good job for the defense. So but but the thing with looking at these cases critically is because the burden of proof is so high. It's not a civil case, in a criminal case. It's beyond a reasonable doubt. And I want to share this with with your listeners because I think it's always important to explain what that means. It's not an imaginary doubt. It has to be a real doubt. But I've used this in clothing in a closing argument. So, TJ, we're going to use sports tickets for you, and we're going to use a curling iron for you. Okay, So TJ, You're about to go to a Knicks game, and you've packed your tickets, You've got yourself ready, you put them in your jacket. You but you go and you feel for the tickets because maybe you didn't bring them. Amy you curl your hair, you remember pulling it out of the wall, that you turn that curling iron off. But and you get in the car. But then you get out of the car because well, did I did I did I turn that curling iron off? That's reasonable doubt, not imaginary, not speculative. That's reasonable doubt. And so the question here is you just need one person and I said that before you need one to say God it looks bad for him. It looks really those searches are bad, the hack saws bad, the affair is bad. But did he know about the fair I don't know. And there is no body. There is no body. And the thing that the prosecution is left with and there's no way they can do anything about it, is that without a body, they cannot determine manner or cause of death. And that may be the biggest sticking point for this jury.

00:21:21
Speaker 1: Wow, and I was, I was so fascinated today with the medical examiner, even you.

00:21:26
Speaker 2: DJ and I both looked at each other when the defense started to talk about.

00:21:30
Speaker 1: Sexual asphyxiation like you know, some sort of like you know, sexual game gone bad, so an accidental death dot dot dot. We thought, no, it would not actually turn into that direction. But do you think the defense will get that specific with their expert. Well, they actually get specific. Brian obviously is the only person who knows how she get.

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Speaker 3: They shouldn't. They shouldn't. They should leave it very vague, very open, absolutely not that this happens. They don't. I mean, the the on their their actual medical examiner doesn't know how this woman died. How do they expect you? Mister and missus jury to know.

00:22:13
Speaker 2: So only Brian could get on the stand and say that why would why wouldy?

00:22:21
Speaker 3: Why would he?

00:22:22
Speaker 2: Why witty?

00:22:23
Speaker 4: This is my last quick thing? Uh, Christmas? Is the holiday schedule going to play a role? I know we're a little ways out and they expect to be done, but do you think it's going to play a role in the strung?

00:22:34
Speaker 1: Yeah?

00:22:34
Speaker 3: I mean, you know, one thing, one thing that the judge doesn't want to do is have this role into people's Christmas holidays and vacations and because then you have an angry jury, especially if they have a pre planned vacation, especially if they have their kids, you know, school recitals and so. But but that's not that's not an excuse for the prosecution and to steamroll through their case. You know, I mean I would be looking at this like I'm going to take my time, I'm going to argue, you know, I'm going to I'm going to just hammer home some of these points for as long as it takes, and you know, let the judge be the bad guy here. I just would I yes, they may adjourn and then come back if the case takes longer than that. But I but when I'm hearing, Oh, the prosecution's going faster than expected. I'm thinking that's not good. Why would you do that?

00:23:34
Speaker 2: Wow?

00:23:35
Speaker 1: So what do you want to see if you're looking or somebody who was saying, I'm not saying that you're personally rooting for their prosecution, but if you'd like to see them actually be successful given the week they just had, what do they need to do this week to get the jury on board with their version of events?

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Speaker 3: Ask questions that start are in the middle, and end with us your common sense. Okay, So I would be you would be formulating questions where the jury says, well that that makes sense to me. I mean, a very healthy woman just dropping dead and nobody and there were no signs of anything that doesn't make sense to me. That is not common. I'd like to hear statistics. I'd like to know what kind of medical shape she was in beforehand, had she complained to anybody, had she seen a doctor related to any symptom, things like that. I mean, I look, I these are cases where, like I said, the defense has an uphill battle, but as the prosecutor, I'm certainly not making it easier for them. I mean, I wouldn't be making it easier. I wouldn't lose out on key moments. I mean, this foulsto the idea that Brian Walsh called him on January fourth, You know, I would hammer that, where did he Why would he call him? Why him? I mean, if you were to rely solely on the testimony from William falstow All, the only exchange he had with him was over the real estate. And then there was one call that I also would have sort of honed in on where he said, oh, our son mistakenly called well that must have been from a conversation that Anna had with Brian about mister Fusto. What was that?

00:25:35
Speaker 2: Did he ask her? Did she maybe not want to tell him?

00:25:39
Speaker 1: Maybe she you know, and you could presume that maybe Anna would not want to worry or concern William because she would want the relationship to continue.

00:25:48
Speaker 2: She didn't want him to get scared off.

00:25:49
Speaker 3: There was also there was also some interesting exchange about a one year plan, a ten year plan, a twenty year plan, and the prosecution just let that one go too. I would have gone back to that and said, well, let's talk about that. I mean, did you too, even though you had young children, did you guys see each other together in a fifteen year, twenty year plan. What does that look like?

00:26:12
Speaker 1: You know?

00:26:13
Speaker 3: I mean, did you have did she have contingency plans if her husband went to prison? Was she going to stay with them? Those to me? TJ missed, missed.

00:26:26
Speaker 4: Well, it has been very interesting to watch, yes, of course, but it's really you've pointed some things out today and this is why we have you as the expert that we didn't think about and if we start thinking about it, maybe the jury isn't thinking about it and they need a lawyer to point it out and the prosecution hasn't been doing that. So thank you. It's good to see you. We're going to see you next week as well.

00:26:47
Speaker 3: Yeah, next Monday.

00:26:48
Speaker 2: Awesome. Alison Trizl. We appreciate you.

00:26:51
Speaker 1: Thank you so much for helping us get the perspective we need to fully watch this trial.

00:26:56
Speaker 2: But it has been non stop, just crazy.

00:27:00
Speaker 1: Moments in court, so thank you for continuing to watch alongside us.

00:27:04
Speaker 2: Of course,