As we wait for the court to resume in the Johnny Depp v Amber Heard defamation trial, I spoke to Andrea Burkhart, a criminal defense attorney with 15 years of experience under her belt.
Andrea Burkhart has been a vocal supporter of Johnny Depp throughout this case and has appeared on numerous YouTube channels, ranging from trial commentary to legal analysis, including Colonel Kurtz and LegalBytes. Burkhart gave some insight into how she first became aware of this case, what convinced her Depp is telling the truth, and offered her analysis of how the case is going so far for both Depp and Heard.
Burkhart used to be a public defender before taking over a private practice with her husband, where she was exposed to a wide range of legal work, including criminal defense and civil litigation. Unlike most attorneys in the field of civil litigation who seldom see their cases go to trial, Burkhart has experience with dozens of trials. She was first introduced to this celebrity case because she had been aware of Depp and Heard’s relationship and breakup, as well as the media coverage. However, when it was reported that Heard never filed a police report and that the police officers never saw anything when they came to investigate, her interest in the case was piqued.
When the case was brought before the UK, she read the witness declaration of property manager Tara Roberts. That's when Burkhart realized that this wasn't a typical he-said/she-said case. There were genuine witnesses to what was happening, and there was this whole other side of the story that nobody heard. Not long after that, Burkhart found the audio recordings of Heard admitting to hitting Depp and the YouTube channel Incredibly Average, which went in-depth into the questionability of Heard's claims based on their own research.
Burkhart’s Analysis of Depp’s and Heard’s Performances in the Trial So Far
I asked Burkhart what she thought of the trial so far, in terms of each team making their case for their version of events. “I think Johnny is doing extremely well,” she said. “He obviously has a burden of proof that he has to beat. But I don't have any difficulty seeing him having presented enough evidence to meet that burden.”
She cited the fact that, from a legal standpoint, the judge ruled that he presented enough evidence to at least give it to the jury. She also believes he's been successful in painting a picture of what the relationship was like, providing consistent evidence. She grants that there has been impeaching contradictory stuff that comes in, which she attributes to being an inevitability whenever you have more than one person saying something in a case.
"That's just how it is, people remember things differently,” she said. “But there really hasn't been anything substantial. There hasn't been any impeachment that has really landed in terms of significantly undermining the credibility of his witnesses or his credibility."
Heard, on the other hand, has taken what Burkhart refers to as a smear campaign approach. "I think that speaks for itself in a lot of ways. She has, from my perspective, wasted a lot of time pursuing avenues that are not helpful and not fruitful and potentially may backfire on her."
Heard has wasted a lot of time pursuing avenues that are not fruitful and potentially may backfire on her.
Burkhart discussed how because the time is being split equally in this case between the two parties, it's important to be efficient in what to target during cross-examination. Burkhart says that Heard's team front-loaded a lot of their time toward cross-examining Depp's witnesses and they only left about a third of their total time for their case in chief (meaning the bulk of their evidence for their case) and any surrebuttal (this is a rebuttal to the opposing party’s rebuttal) they do once Johnny defends against the counterclaim.
Burkhart has doubts about this strategic choice, insisting that it doesn't seem like it's gotten them where they need to be “because they weren't successful at calling anything significant into question.”
She continued, “Their approach has been fairly nitpicky over details of things like with Isaac, for example, the whole makeup situation in the cross-exam was just very ineffective…nobody expects Isaac to know the ins and outs of makeup.” Isaac Baruch is a longtime friend and neighbor of Depp’s.
Burkhart believes that the things Heard's team has chosen to focus on speak volumes about their own evidence. "I do think that speaks to their decision to prioritize trying to chip away at Johnny's case as much as they possibly can and they haven't prioritized their own evidence, their own witnesses, their own substantiation that they have of her allegations. I think that's going to speak volumes about what exactly it is that she has to bring to this trial."
The Perjury Question
While on the stand, Heard admitted that she had not paid the $7 million divorce settlement to charity as she had stated she had under oath in the 2020 UK libel case, blaming Depp’s lawsuit against her as the reason she had been unable to. So I had to ask Burkhart the question that’s been on everyone’s minds: “If Heard is found guilty of perjury, what would the punishment be and how likely is it that this would happen?”
"Perjury is a serious crime,” Burkhart said. "It's a felony in the state of Virginia. That means, typically, a felony crime is something that can be punished with a prison sentence of more than one year. It doesn't automatically mean that's what she would get, but the exposure there is pretty high." Burkhart went on to detail how being charged with a felony causes you to lose a number of your civil rights, including the right to vote, the right to own a firearm, and difficulty earning a visa to travel. When it came to offering her opinion on how likely it is that Heard could be charged with perjury in this case, she said, “That’s the million-dollar question.”
Burkhart offered some insight into what the process would look like. “Firstly, a crime has to be charged by a prosecutor and a prosecutor has to, number one, believe that there is probable cause to support the allegation that she intentionally, knowingly lied under oath. So, they're going to look at the evidence closely in order to make that determination.” Burkhart insisted that prosecutors don’t like to lose and they wouldn’t bring forth a case that they didn’t believe they could prove beyond a reasonable doubt.
Prosecutors, she says, are also political, so they do respond to their communities, and given the notoriety that their courtroom is being given right now, they would want to uphold the dignity and respect of their institution.
“My perspective is that if there is a serious enough indication of perjury, the fact that this trial is televised and publicized to the extent that it is, that does put a lot of pressure on them to take that very seriously. They don't want their court to look like Amber Heard can just come in and disrespect it and treat them like chumps,” she said.
Heard, for example, has pushed back the date that the first violent incident occurred. While she previously testified to it happening in 2013, it’s since changed to 2012 in her testimony. Burkhart added, “I'm not going to say it's impossible, but it is extremely rare. I have never seen a perjury case coming out of a civil trial."
Heard’s Team Is Lacking in Evidence
When asked if Heard has brought forth any compelling evidence in terms of photographs or anything else, Burkhart responded, "Well, she really hasn't."
She went on to describe how there was pre-trial litigation where there was a significant dispute about the authenticity of a lot of the data, photographs, recordings, and things of that nature that Heard had offered as evidence in the UK trial. "The UK apparently made an explicit decision not to worry about details of metadata or bring in experts to evaluate that type of thing, so she presented a lot of evidence in that case that has apparently, in this process, been significantly called into question."
There was a significant dispute about the authenticity of a lot of the photographs and recordings that Heard had offered as evidence.
A motion was filed because Heard was ordered to turn over her devices so those things could be analyzed and their authenticity evaluated, but she allegedly refused, which caused problems with that process. Burkhart stated that we haven't seen how that challenge was formally resolved because there hasn't been an order that is publicly available at this point. Burkhart believes it does raise some questions that suggest Heard's not being allowed to admit these things in court that are potentially questionable. Her perspective is that Heard has likely been prohibited from offering her photographs if they couldn't be substantiated with accurate metadata.
I asked another question related to the metadata, asking if it were true that some of the photographs Heard submitted dated back to the '70s according to the metadata and if this suggests they've been corrupted in some way. Burkhart said, "Well, whatever's happened to them, it's very shady and the bottom line is just that the metadata that's associated with them can't be accurate."
An expert had pointed out that EXIF data was on some of the images dating back to the '70s, despite the fact that EXIF data hadn't been invented until 20 years later. The expert surmised that “these anomalies may be the result of the unlicensed and outdated software used by Ms. Heard’s experts to image her devices.”
Burkhard commented, "Clearly, there has been some very problematic modification of these digital images that call the entire ability to ascertain when they were taken, whether they were edited, what types of processes were used on them, what the original source was, all of that type of thing, none of it can be verified.”
The Credibility of Witnesses
When asked about her favorite witnesses and the ones she found to be lacking credibility, she cited Isaac Baruch as being a witness that had the biggest positive impact on Depp's case, as well as Dr. Shannon Curry, the psychologist who described potential personality disorders that Heard meets the criteria for. Talking about how Dr. Curry successfully set the stage for what the jury could expect from Heard, she said, "I thought she did a wonderful job as a witness. She clearly has a lot of expertise in her field, but she's also an educator, she's able to speak in a way that is very accessible, very understandable, and I thought she came across as extremely persuasive.”
Speaking of Depp himself taking the stand, Burkhart stated she believes he presents in a very authentic way and doesn't come across as having rehearsed, even really being comfortable with the process that he's going through. "He had to think about what he wanted to say, he had to be careful about how he's going to express himself, talking about these deeply personal, embarrassing, difficult, painful things that he had gone through, and I think he did that in a way that people understood and people could relate to,” Burkhart said of Depp’s testimony.
In terms of witnesses she believes did not do so well, she immediately pointed to Dr. Hughes, the psychologist that Heard's legal team called to the stand. She described this strategy of calling Dr. Hughes to the stand first as "using her to roll out the red carpet for Amber’s allegations because she presented such a contrast to Dr. Curry. Dr. Curry came across as objective, thorough, and not particularly impressed by the fact that she’s working with Johnny Depp and Amber Heard and these famous people. Dr. Hughes clearly presented as a witness that was there to be an attack dog. She accepted Amber’s version of events, basically wholesale.”
Where Is Kathleen Zellner?
Another big question everyone has been asking is, where in the world has Kathleen Zellner gone? The Making a Murderer star attorney made headlines when she signed on to be part of Depp’s legal team in March, but then she deleted the tweets announcing her part in the Depp case and we haven’t seen her since.
Burkhart said that Zellner came onto this case very late in the game, which made her skeptical that she would play any substantial role in the trial because it's been going on for years and there's just a massive amount of evidence and depositions and information that these lawyers really have to have at their fingertips in order to be effective at trial.
“I just don’t see a way that she was going to ever be able to get up to speed to be effective in that type of context.” She went on to explain that while Zellner likely will not appear in the trial, she seems to be playing a role in the background as part of Depp’s team, “assisting with trial strategy, trial practice, and possibly some assistance with understanding what types of issues might come up in an appeal setting.”
Will We Hear from Kate Moss, Tasya Van Ree, James Franco, or Elon Musk?
During Heard’s testimony, she cited a rumor she heard about Depp pushing Kate Moss down a flight of stairs as being the reason she punched him to protect her sister from likewise being pushed down the stairs. When Moss was mentioned, Depp’s attorney Ben Chew looked around at Depp and his colleagues and threw a celebratory fist in the air. Asking Burkhart what this excitement could be about, she responded, "There's this idea that you don't get to bring in somebody's past misbehavior in order to prove that it's more likely that they behave the same way here. The problem with that is that it's a very logical and normal inference to make, that people behave consistently over time."
However, the other problem, Burkhart says, is "if you don't have good evidence that they actually did what they're being accused of this time, then you run the risk that you're just punishing them over and over again for what they did in the past."
In Virginia, there is no process to compel an out-of-state witness into court for trial.
While Heard has opened a door for Depp’s team to counter that statement by potentially getting Kate Moss to testify, she has her doubts that it will be opened so wide that they would be able to bring up Heard’s previous domestic violence charge when she was in a relationship with Tasya Van Ree. “Typically, when doors are opened, they’re narrow,” she said. However, she reserves the possibility that this could be brought up if Heard opens another door by testifying that she’s never been accused of being violent.
While we were discussing potential witnesses, I asked her opinion on if we would get any testimony from Elon Musk or James Franco, who appear to be avoiding testifying. Burkhart said that it isn’t public knowledge if either of these two has been deposed. However, she said, “In Virginia, there is no process to compel an out-of-state witness into court for trial.” Burkhart believes it’s unlikely that either of them would voluntarily choose to show up to the Virginia courthouse and submit to the trial process.
Heard Sees Domestic Violence Victims As Doormats
I asked Burkhart what she thinks about Heard and her legal team’s bizarre strategy. By dressing in suits and trying to portray herself as a strong feminist while at the same time playing the dainty victim, it’s peculiar to see the inconsistency in their strategy. Burkhart’s takeaway from the legal team’s strategy is that it appears to be driven by Amber. "She seems to have a need to have control over the whole situation. She is, of course, very consistent with what we've heard about her personality from Dr. Curry. In terms of presentation, I think it really just speaks to the difficulty that she has in being able to actually relate to the experience that she is trying to project.”
Burkhart described Heard as someone who has contempt for victims of domestic violence. “She called them doormats in her deposition. But she also has such high self-regard that she can't stand for a second that anybody would see her the way that she sees victims of domestic violence. So it's created this disconnect in this impossible situation where she's trying to achieve conflicting outcomes that she is strong and resourceful and resilient and can't be put down...But if that’s the case, she's not going to be susceptible to the types of tactics that abusers use and that she is trying to accuse Johnny of using.”
The result, Burkhart says, is that Heard is trying to achieve conflicting outcomes and it’s manifesting as an inauthentic story.
Finally, we all want to know, who does Burkhart believe will win this case? Based on the hours of audio recordings that were taken during the relationship that has been submitted to the court and the inconsistency in Heard’s story, Burkhart believes Johnny Depp will win this case. “At this point, I believe Johnny is going to win the case. Amber had a better case before she chose to take the stand and reveal herself as a fabulist to the world and the jury. She's been her own worst enemy from the beginning, and I think it will be a deciding factor in why Johnny is going to win.”
You can watch Burkhart’s legal analysis of the case on her YouTube channel.
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