Pittsburgh-area lawyers call legal blunder in Alex Jones trial a 'breathtaking set of multiple catastrophes'

For a trial attorney, it was the stuff of dreams.

On Wednesday, as cross-examination was underway in the defamation case against Infowars’ Alex Jones, the attorney representing the parents of a 6-year-old boy killed in the 2012 Sandy Hook Elementary School shooting in Newtown, Conn., caught Jones in a lie.

But it wasn’t just that.

It was the added surprise of telling Jones that his own lawyers had made a mistake. They sent the plaintiffs the entirety of his cell phone contents, complete with messages about the deadliest school shooting in America that Jones had said never occurred.

Attorney Mark Bankston appeared to enjoy the exchange — which began after Jones claimed on the stand that his cell phone had no messages referencing Sandy Hook in it.

“Twelve days ago, your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you’ve sent for the past two years and, when informed, did not take any steps to identify it as privileged or protect it in anyway,” Bankston told Jones. “And, as of two days ago, it fell free and clear into my possession.

“And that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook. Did you know that?”

Jones tried to argue with the lawyer and said the defense voluntarily turned the messages over.

“See, I told you the truth. This is your Perry Mason moment,” Jones said. “I gave them my phone. If I was mistaken, I was mistaken, but you have the messages right there.”

Bankston then asked, “You know what perjury is, don’t you?”

Alex Jones, in cross-examination for his defamation trial, was shown texts from his phone that his lawyers appeared to have accidentally sent to lawyers for Sandy Hook parents.

"You know what perjury is, right?" one of the parents' lawyers asked him. https://t.co/kTzdceqbFD pic.twitter.com/BftNzvkDcQ

— The New York Times (@nytimes) August 4, 2022

On Thursday afternoon, the jury deliberating in Austin, Texas, agreed Jones should pay Neil Heslin and Scarlett Lewis, the parents of Jesse Lewis who was killed at Sandy Hook, $4 million in compensatory damages.

The jurors will continue to deliberate Friday on how much the plaintiffs should receive in punitive damage — designed to punish a defendant for his actions and to deter others from similar conduct.

But it was the exchange between Jones and Bankston on Wednesday that had legal experts across the country commenting on social media.

University of Pittsburgh law professor David A. Harris, who has tried hundreds of cases and has a master of laws degree in trial advocacy from Georgetown, called the dramatic courtroom moment a “breathtaking set of layered multiple catastrophes.”

The entire sequence, Harris said, from Jones’ attorney handing over the phone’s contents by mistake, then failing to correct the mistake, and then allowing Jones to be ambushed by it “and be made a sitting duck for a perjury charge” was beyond imaginable.

“The level of incompetence required for one lawyer to do that much damage is hard to imagine,” Harris said.

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Other civil trial lawyers in Pittsburgh agreed.

“The days of trial by ambush, where a document is revealed at the 11th hour to change the course of a case, are largely over,” said Andrew Rothey, who practices at Rosen Perry.

The rules now, he said, call for the parties to engage in mutual discovery long before trial.

“The exchange of substantive evidence in any case 12 days before trial is very rare,” Rothey said. “I have no idea why that email (with the phone contents) is being sent in any circumstance.”

He said that raises serious questions on the part of Jones’ attorney, Andino Reynal.

According to Bankston, after Reynal sent the link to the phone contents, he followed up with a message asking Bankston to disregard it, but he did not assert attorney-client privilege.

Therefore, Bankston told the court, the material wasn’t protected.

“Unless a disclosure is protected by privilege, you can’t ‘unring’ that bell and claw the information back,” Rothey said.

He called the opportunity for Bankston “a career-defining cross-examination that most trial lawyers would never have the opportunity to experience on that scale.”

“If you’re lucky enough to be in it, relish the moment because it’s so rare,” said Peter Giglione, who is a practicing civil litigator and runs the Duquesne University Trial Advocacy Program.

But, he continued, it also is essential for an attorney to stay on task.

“You get excited, but you have to remember you’re there doing a job and cover all of your bases,” he said.

Often, Giglione said, attorneys are able to impeach a witness’ credibility by confronting them with inconsistencies from previous statements or testimony, but rarely is it as compelling as what happened in the Jones trial.

“Oftentimes, jurors don’t understand the significance of it,” Giglione said.

In the Jones case, Rothey said, “this moment is so dramatic, it’s hard to believe a jury wouldn’t remember this exchange.”

What is most extraordinary about it, Rothey said, is the material mistakenly turned over by Jones’ attorneys was the discovery material that he refused to provide in the first place and what led to the default judgment against him.

Jones repeatedly said in a deposition that he had no text messages on his phone that referred to Sandy Hook.

“We now know those contentions are false,” Rothey said.

In addition, the phone contents revealed that Jones lied about the amount of money Infowars was taking in, which means that his wealth is far greater than he claimed.

Both of those issues, Rothey said, likely will come up as the jury debates punitive damages in the case.

Heslin and Lewis were seeking $150 million in damages, contending they have been threatened and abused because of the lies Jones told on his program.

Giglione said it is likely that any damages awarded by the jury will increase based on the lies Jones told in his testimony.

“That’s only going to further anger the jury and show that the conduct was particularly reprehensible,” he said.

While the jury was deliberating Thursday, Reynal asked the judge, Maya Guerra Gamble, for a mistrial, claiming the records mistakenly turned over should have been returned and any copies destroyed.

The judge denied the request.

At that same proceeding, Bankston told the court that the Jan. 6 congressional committee investigating the U.S. Capitol insurrection has requested the phone’s contents, potentially adding to Jones’ legal troubles, which some speculate could include a criminal charge of perjury.

Although it is uncommon in a civil case, criminal perjury charges are not unheard of.

As for Jones’ attorney, Reynal could face allegations of malpractice or ethics charges for his conduct in the case, Harris said.