Chapter 12: Jens Stands Trial - Martyr or Murderer: Jens Soering, the Media, and the Truth

Between 1986 and 1989, the Söring family, the German government, and perhaps some private donors assembled a formidable phalanx of lawyers to fight against Söring’s extradition to Virginia. Söring’s lawyers made two arguments before English courts and then, ultimately, before the European Court of Human Rights. First, no European country could extradite individuals to countries which might inflict capital punishment on them. They added a second alternative argument: Even if the mere imposition of capital punishment did not constitute “inhuman or degrading treatment or punishment” prohibited by Art. 3 of the European Convention on Human Rights, the wait for execution fulfilled this definition.

On 7 July 1989, the European Court of Human Rights, in the case of Soering v United Kingdom, endorsed the second argument. The Court did not decide whether extraditing Söring to a possible death sentence would violate the Convention, although the Court strongly suggested it would. Yet the Court didn’t need to reach the issue, since it held that merely being forced to wait for execution was itself inhuman or degrading. The court invoked the “death row phenomenon” in which prisoners sentenced to death would be forced to endure “the anguish and mounting tension of living in the ever-present shadow of death” for years. The Court thus ruled that Soering could not be extradited to Virginia as long as there was a possibility he might be sentenced to death.

Söring and his supporters celebrated this victory, but their rejoicing was short-lived. Jim Updike had no intention of relinquishing jurisdiction over the Haysom murders, and if that meant not pursuing the death penalty, he would reluctantly agree to this condition. This was enough for the European Court of Human Rights and for the United Kingdom. They lifted all blocks to Söring’s extradition.

Söring arrived in January 1990. His lead lawyer was now Richard A. Neaton, who had represented Söring for years. Neaton, however, was not licensed to represent clients in Virginia. Neaton therefore hired William A. Cleaveland, a Virginia attorney and former prosecutor, to help him defend Söring. Cleaveland is visible in all of the trial footage, and stands out thanks to his mustache, which rivaled Jim Updike’s in luxuriousness. Neaton was admitted to practice in Virginia “pro hac vice”, meaning “for just this one time”. Söring thus enjoyed representation by a lawyer who knew the case well and had earned his trust, joined by a lawyer who understood the rules and customs of the state in which the trial would be held. Such arrangements are common in the U.S., a country in which each state has its own fully autonomous legal system.

The second pretrial hearing in the case, which took place on 7 February 1990, involved Judge Sweeney’s potential bias. This issue deserves a closer look not because it is important, but because it has obsessed Söring for decades. Even now, in 2023, Söring still claims that Judge Sweeney’s bias tainted his entire trial. The decision to request a judge to recuse himself is not taken lightly: If the motion fails, the defense risks alienating the judge who will preside over the trial. Politely and gingerly, Neaton and Cleaveland advanced three arguments why Sweeney should recuse himself. First, he had presided over Elizabeth’s trial and accepted her guilty plea, which could be seen as endorsing her credibility. Second, Sweeney had some contacts with the Haysom family within the social circle of upper-middle-class Lynchburg society. Third, the defense was wary of excessive chumminess between Sweeney and Updike.

Before commenting himself, Sweeney allowed Updike to contribute. Updike had prepared. Sweeney’s presiding over Elizabeth’s case was not problematic since it was merely a guilty plea hearing. Further, Virginia case law, such as the seminal 1946 case of Slayton v. Commonwealth, held that a judge was not disqualified merely because he had presided over a co-defendant’s prior trial; if that were a disqualifying factor, the justice system would break down in smaller counties were judges encountered the same small circle of defendants and courtroom personnel week after week. The Slayton court had held:

It is well settled that a judge is not disqualified to sit in a criminal case because in the disposition of a matter arising out of the same facts he has formed or expressed an opinion as to the guilt of the accused. Frequently in the disposition of cases both civil and criminal a judge is called upon to form and express an opinion upon a matter or issue which may come before him in a subsequent proceeding arising out of the same stated facts. The courts are practically unanimous in the view that neither the forming nor the expression of such a conclusion under such circumstances disqualifies a judge in a subsequent matter.

Updike then cited five other Virginia cases confirming Slayton’s holding. Neaton then delivered his rejoinder, which takes up dozens more pages of the transcript. After this legal debate, Sweeney described the situation as he saw it. Judges in more rural areas such as Bedford, he noted, “do not have the luxury of disqualifying themselves in all cases where they know one of the parties”. Sweeney estimated he “knew someone connected to the trial” in about 20% of his cases.

Sweeney then described his connection to the Haysom family:

As far as my connection with the victim's family, I did know Risque Benedict, who is a brother of Nancy. He did go to VMI [Virginia Military Institute, a university with ties to the military] two years, he did not graduate with me. Risque and I have never discussed this case. 1 think he's made a particular point of not discussing it with me, and I know that I have. Risque has not lived in this state a great deal of the time, I think now he's in California, and I expect maybe I have seen him four or five times since graduation, I’m not sure, but he's not someone I see on a regular basis. I think a lot of him, but he's not a very, very close personal friend, but certainly I know Risque Benedict and I would not deny that.

I knew Nancy Haysom mainly because of Risque. The statement in the defense allegation that I was a close friend of the Haysoms is simply not true; I was not, as everybody in this area who knows anything about it knows, I have never been in the home of—the Haysom home…

The Haysoms have never been in our house for any social engagements and we were never in theirs. I'm trying to think if there's anything else. But it did give me some concern prior to the Elizabeth Haysom case, because I'm not a complete stranger to the victim's family, and it gives me some concern now, Mr. Neaton, and I might say that I respect your right to file the motion that you have filed, I'm professional enough to not have any malice toward you or to the defendant because of it. I have been on the bench about 24 year, I guess, and I think I have developed the capacity to not have feelings of that kind, I hope I have…

Now I think you have raised some serious questions about recusal, Mr. Neaton, and I think they deserve serious consideration on my part. I cannot rule on this matter today from the bench, I need to go back and give this matter some serious mature thought. I need to read some of these cases that have been cited to me, because it’s a question of law as much as a question of my own conscience. And I’m not real sure how I will decide on this.

The parties then discussed how the trial would go forward if Sweeney to recuse himself. The hearing concluded with a discussion of whether the trial should be moved from Bedford County due to massive pretrial publicity.

Sweeney eventually decided that he would remain on the case, and that the trial would be held in Bedford. However, the jury would be selected from nearby Nelson County, where there had been somewhat less publicity. Yet by that time, the Söring defense team had other problems. Until now, Söring’s strategy had been to admit the crime and plead some form of diminished responsibility or temporary insanity. At this time, many American states, like Germany and the U.K., allowed “diminished responsibility” defenses to offenders who acted while intoxicated or suffering emotional distress. Virginia did not. Under Virginia law, there was only one way to argue mental illness reduced a defendant’s guilt: the insanity defense. If a defendant could not meet that burden, he or she would be considered fully responsible for the crime. Defendants could still argue their mental state in Virginia, but only at sentencing, after they’d been convicted.

This possibility would hardly help Söring, though. He had no real mitigating factors outside his youth. Were he to be convicted, the jury would certainly recommend life in prison. Söring thus needed to avoid conviction, and to do that, he needed to somehow exclude his confessions. During hours of attorney-client consultations, Neaton and Cleaveland explained American law: Confessions, or more accurately “incriminating statements”, could be admitted into evidence only if they were “voluntary and knowing”. If a suspect understood the Miranda warning but spoke anyway, whatever he said was admissible. If Bedford County could prove Söring knew his rights and had voluntarily waived them, the confessions would be admitted.

As we’ve seen, Söring had given police innumerable written and spoken waivers of his rights during this London confessions. There was no question he understood what he was doing. Söring would thus need another argument to try to exclude his confessions, and duly found one. In early March 1990, Judge Sweeney convened court with no jury for a 4-day hearing on pretrial motions. The most important of these motions was a request by Söring that his confessions were obtained unconstitutionally and could not be used against him at trial.

Sweeney presided over hours testimony from the American and English detectives who took Söring’s statements. The relevant standard under American constitutional law was whether Söring’s statements were made knowingly and voluntarily. A related question was whether Söring’s decision to speak to detectives without a lawyer present was also knowing and voluntary. Beever, Wright, and Gardner testified that they gave Söring British and American legal warnings over and over, obtaining written and verbal waivers of his right to remain silent and to speak to a lawyer, and had Söring confirm on tape repeatedly that he understood his rights, was willing to answer questions, and did not wish to speak to a lawyer.

Söring had to explain why all of these waivers were invalid. Söring took the stand on 2 March 1990 and, like all other witnesses, took an oath to tell the truth, the whole truth, and nothing but the truth. Under friendly direct questioning by his lawyer Richard Neaton, Söring admitted he had signed the consent forms which the detectives had submitted into evidence. However, he claimed that from the beginning of his questioning (before the tape recorder had been turned on) he had immediately asked to speak to a lawyer. He claimed that he knew he had this right from watching early 1980s American police dramas such as Hill Street Blues, Kojak, and Cagney & Lacey. The detectives, Söring claimed, became “ruffled” and assured him they were only engaged in getting “background information”, not actual questioning.

Söring’s testimony then took an ominous twist. He claimed that around 7:00 p.m. on 5 June 1986, Kenneth Beever had come to Söring’s cell and shown his face at the small communications opening called the “wicket”. Söring asked Beever how Elizabeth was, and, according to Söring, Beever said:

A: He said: “Very pretty girl, all alone In that cell block. It would be an awful shame if she fell down and hurt herself.” And at that point he turned to me and raised his eyebrows like this, and looked me in the eye like that. He didn’t have glasses on.

Q: Did you say anything to him after he said that?

A: No. I was Just shocked, sort of open-mouthed. It was like a bad movie or TV thing. I just looked at him, shocked.

Q: Did he say anything more to you?

A: Well, he paused again while he sort of looked me in the eyes like that. Then he said, “I think you should talk to us, lad.”

THE COURT: I’m sorry, I didn’t get that. I think you should talk with us, or she?

THE WITNESS: “I think you should talk to us, lad, and you don’t really need that lawyer, do you?”… Then he paused again and he went like “Think about it.” Then he walked away. And I mean, I didn’t say anything. I just sort of stood there open-mouthed.

BY MR. NEATON:

Q: And what did he do after that?

A: Well, I became very agitated, I guess is the word, very worried. You know, I loved Elizabeth very much at that point in my life.

Söring claimed that in later interviews, Beever would occasionally make silent gestures to warn Söring of his threat. Söring never claimed that his confessions were false; he said only that he was forced to give them to protect Elizabeth from Kenneth Beever.

Under cross-examination by Jim Updike, Söring acknowledged that as a gifted honors student, he obviously understood his rights. Söring admitted he had never recorded Beever’s threat in writing, nor had he described Beever’s threat to any other person during the previous four years. Updike also pointed out that Söring had already waived his right to a lawyer in writing on April 30, 1986, after his fraud arrest, and then again at 12:50 p.m. on 5 June 1986, more than six hours before Beever had issued his alleged threat. Beever later took the stand and, unsurprisingly, denied threatening anyone.

Sweeney issued his opinion on the admissibility of Söring’s London interviews on June 4, 1990. He rejected Söring’s story about Beever:

Simply stated, I do not believe Soering on this issue. He produced no corroboration, written or oral. The officer emphatically denied making such statement, and the subsequent taped interviews which the Court listened to for five hours gave no suggestion that Soering was acting under duress at any time. Further, he has been previously convicted of a crime of moral turpitude [i.e., fraud] which affects his credibility under Virginia law. Additionally, his concern for Elizabeth Haysom at the time seems strange since he freely implicated her in his early statements to police.

Sweeney then summarized Virginia and U.S. federal constitutional law on the admissibility of confessions to police, and found that Virginia had met its burden of proving their admissibility. Söring, Sweeney noted, was “highly intelligent”, understood the Miranda warnings, and “selectively waived his right to counsel and right to remain silent when he freely discussed certain aspects of the crime with the police”. The confessions would come in.

Söring’s lawyers seem to have been aware the hearing hadn’t gone well. On 1 April, just weeks after it had concluded, an article by Monica Davey entitled “Soering May Shift Blame” appeared in the Roanoke Times. Davey noted that “Soering’s attorneys have yet to spell out their strategy” concerning his upcoming trial, but “have, however, hinted at one possible theory they may try to argue: That Elizabeth Haysom—not Soering—killed her parents”. Davey noted that during the suppression hearing, Söring had hinted that he had told “lies about Elizabeth’s involvement to clear her name and keep her out of it as much as I could”. Quoting Neaton’s argument at the hearing, Davey writes: “‘If he [Soering] knows that Elizabeth Haysom committed the murder, she would face the electric chair,’ Neaton said. ‘And that would give him reason to make her an accessory after the fact’ rather than see her face such dire consequences.” Davey noted that Söring’s new story might be “hard for a jury to swallow”.

This 1 April 1986 article marks the first time Söring or anyone speaking on his behalf had ever publicly hinted that he might not be responsible for killing Derek and Nancy Haysom. The jury would in fact find it “hard to swallow”. However, it would go on to have a successful afterlife, convincing tens of thousands of people on both sides of the Atlantic.

The Commonwealth of Virginia v. Jens Soering began with jury selection on 1 June 1990 and ended with the jury’s verdict on 21 June 1990. It was recorded on video and long excerpts were broadcast on some local news stations, thus becoming the first ever trial broadcast in the Eastern part of the United States. Recordings of Söring’s trial have since been re-broadcast in part or in full innumerable times, among them on the American cable television station Court TV. I watched one of these broadcasts in the early 1990s, and it sharpened my interest in the law. The defense asked Judge Sweeney to move the trial due to the massive publicity surrounding the case. Sweeney met them halfway by agreeing to select the jury from nearby Nelson county instead of Bedford County. Jury selection was fairly straightforward; although most of the jurors had heard about the case, most had not formed strong opinions about Söring’s guilt, and promised to put aside any information they already knew and decide the case solely based on the evidence and testimony.

By this point, we’re familiar with much of the evidence the state would present, so I will begin with a brief timeline of the state’s evidence and then look at some testimony and evidence of particular interest:

• Late 1984: Jens Söring falls in love with Elizabeth Haysom.

• Christmas 1984-85: they exchange letters which contained obscure references to the deaths of Derek and Nancy Haysom.

• 3 April 1986: The bodies of Derek and Nancy Haysom are discovered at Loose Chippings by family friend Annie Massie.

• April 1985: Ricky Gardner interviews Elizabeth Haysom twice and asked her about the extra miles on the rental car. She has no convincing response.

• Late September 1986: Gardner asks for blood and footprint samples from Elizabeth Haysom, who gives them.

• 6 October 1985: Söring drives to Bedford County for an interview (recorded). He also offers no explanation for the missing rental-car miles, and refuses to give forensic samples.

• 14 October 1985: Gardner and Reid discover that Söring and Haysom have fled the country. Söring wiped his fingerprints from his apartment and car and emptied his bank account. In a note to Gardner and Reid, Söring claims he left because he was dissatisfied with his life in Virginia.

• 30 April 1985: Jens and Elizabeth are arrested for fraud in London, England.

• 30 May 1986: Gardner receives a call from Detective Terry Wright, Deputy Constable of the London Metropolitan Police, asking about the Haysom murders

• 5-8 June 1986: Questioned about the Haysom murders, Jens admits to killing Derek and Nancy Haysom, while denying any “voodoo” or “occult” elements to the crime. Elizabeth admits to creating an alibi for Söring by buying two sets of movie tickets and two sets of room service.

• Serologist Mary Jane Burton testifies to finding Type O blood, Söring’s blood type, in the downstairs bathroom of Loose Chippings and on the frame of the front door.

• Robert Hallett, an “impressions examiner” for the Northern Regional Laboratory of the Virginia Bureau of Forensic Science, compares Söring’s footprint to the bloody sockprint LR3 found in the living room of the Haysom home. Hallett testifies that the sockprint is consistent with Söring’s foot and could have been left by Söring. Hallett prepares a transparency overlay comparing Söring’s foot to LR3. Hallett does not testify as an expert, as there is no scientific method of tracing sockprints to a specific person. As a result, Hallett was permitted to testify only that the sockprints were consistent with Söring’s foot, not that they were made by him.

• Yale Feldman, manager of the Washington, D.C. Marriott Hotel, testifies that the hotel has a policy of destroying documents after 6 months, so the only documentation about room service were two small ticket stubs with no information about time on them. Feldman testified that 1 long-distance and 5 local calls had been placed from the Haysom/Söring room, but the call times and numbers called were not recorded. Feldman also testifies that the hotel’s security cameras were not recorded, only monitored in real time.

• Elizabeth Haysom testified that she had waited in Washington, D.C. while Jens Söring drove to Loose Chippings. She was aware he intended to kill them if he believed they intended to continue opposing her relationship to Söring. After he returned, she helped him clean the rental car.

• Donald Harrington, a local businessman and friend of the Haysoms, testified that he had seen bandages on Söring’s left hand and a bruise on his left cheek at the memorial service for the Haysoms.

• A “stipulated statement” by Elizabeth’s friend Christine Tan is entered into the record in which Kim states that she has no recollection of the events following the Haysoms’ deaths and no relevant information to offer. The prosecution and defense had agreed not to call her.

• Dr. James Ogier, a professor of German at Roanoke College who translated Söring’s 30 December 1986 confession into English, testifies about how he created that transcription and reads it in full to the jury.

The prosecution rested its case on Friday, 15 June 1990.

Jens Söring’s defense team now faced the most important question in any American criminal trial: Should he testify? There are two ways to defend an American criminal case. The first is passive: The defendant does not testify, and his lawyers do not advance their own theory of the case. Instead, the defense merely tries to raise doubts about the prosecution’s evidence, relying on the high standard the prosecution must meet: “beyond a reasonable doubt”. Judges often try to help juries understand it by an analogy: You must be as sure about the defendant’s guilt as you are about the most important choices you make in your own life, such buying a house or choosing a partner. Further, all twelve jurors must agree. If the defense can convince only one juror that there is reasonable doubt, the judge will declare a mistrial. The trial will be regarded as a nullity. After a mistrial, it’s common for the prosecution and defense to reach a plea agreement, often to a lighter sentence than the defendant would have received if convicted.

The purely defensive strategy is by far the most common in American criminal trials. The passive “reasonable doubt” defense strategy can succeed, but the chances depend on how strong the state’s case is. The other strategy is an active defense, in which the defense lawyer calls his own witnesses to establish an alternate theory: Someone other than the defendant committed the crime. To set up an active defense, the defendant will usually have to take the witness stand to explain to the jury where he was and what he was doing when the crime happened. The Supreme Court of the United States has held that the U.S. Constitution guarantees each criminal defendant the right to testify in his behalf. In the 1975 case of Faretta v. California, the Court describe the right as “are essential to due process of law in a fair adversary process.”

However, at the same time, the Constitution protects a defendant’s right not to testify. If the defendant chooses to remain silent, the trial judge must instruct the jury that they cannot consider the defendant’s decision not to testify as any kind of evidence of guilt. This provides defendants in American criminal trials with more protections than in most other countries. In the United Kingdom, for instance, a judge can instruct a jury that if the prosecution puts forward a “case to answer”—i.e., substantial proof of the defendant’s guilt, they may draw an “adverse inference” if the defendant does not take the stand to explain himself. A British jury may not convict the defendant solely based on his decision not to testify, but can consider the defendant’s silence against him. An American jury may not.

However the law only sketches out a blueprint. Practice is more complex and pragmatic. The opinion of most American criminal-defense lawyers on whether their clients should testify is clear. The query “Should I testify at my trial?” yields thousands of American law firms and lawyers advising their own clients. The lawyers tell their clients that they have an absolute right to testify, and that their lawyer cannot prevent them from doing so. The lawyers also understand that the client may have a burning desire to counter all the allegations against him and give his side of the story.

However, these websites warn potential clients, testifying is fraught with terrible danger, and almost always backfires. By taking the witness stand, the defendant puts his own credibility at question. Anything he has done which makes him less trustworthy, such as most criminal convictions, will come into evidence. Since the defendant has waived his right to remain silent by taking the witness stand, he cannot refuse to answer the prosecution’s questions. Even if a defendant is innocent, his demeanor may strike the jury as cold, evasive, or threatening. Prosecution witnesses such as experts and detectives have years of experience in how to testify, including how to frame answers and to withstand a brutal cross-examination. Criminal defendants have no experience in these matters. “I can help you prepare for cross-examination,” your lawyer will say, “but there is only so much I can do. Once you are on the stand, you will be torn apart by the prosecution for hours.” In short, lawyers tell their clients, you should not testify. It is not just possible but likely that you will make a bad impression and hurt your case.

When American criminal defense lawyers gather over drinks—and there are always drinks—one of the favorite topics of conversation is defendants who ruined a perfectly good “reasonable doubt” defense by testifying: “I talked to the jury after the trial and they told me that half of them were going to acquit my client before he took the stand and screwed everything up”. Criminal lawyers spend countless hours debating the question of when, despite the dangers, you should encourage your client to take the stand. The risk is worth it only if the prosecution has made an overwhelming case, and the defendant will certainly be convicted unless the jury hears an alternate theory of the case.

That is, a defendant should testify only if he has nothing to lose. Söring had nothing to lose. The jury had spent hours listening to him confess the murders of the Haysoms. They had also heard all the passages from the letters and diaries, which Söring himself described as “incredibly damning” in his 7 June 1986 interview. As of 15 June 1990, most courtroom observers believed that Söring faced inevitable conviction unless he somehow managed to convince the jury that someone else—that is, Elizabeth Haysom—had killed Derek and Nancy Haysom.

That is precisely what Söring would try to do. As Jens Söring has not chosen to free his lawyers from their duty of confidentiality, we can only guess what their advice to him was. However, many lawyers to whom I’ve spoken said they, too, might have encouraged Söring to testify regardless of the risks. Still, the importance of Söring’s decision to take the stand cannot be overstated. When a defendant takes the witness stand, the air in the courtroom crackles with tension.

Every juror knows this is a crucial moment. The defendant will now tell a different story than the prosecution, and the jury will have to decide which one they believe. A defendant’s testimony overshadows all other evidence in the case and turns the trial into a contest between two competing narratives. If the defendant can convince the jury his story is more plausible than the prosecution’s, he will earn acquittal, or at least a mistrial. If he cannot, he will be convicted. Söring’s situation was particularly difficult, as he had to convince the jury his own prior statements were lies—which, of course, means admitting that he is an experienced liar. We will begin Part II of this book by looking closely at Söring’s trial testimony.