The purpose of sites that promote their wares with phrases like
“death,” “dementia,” or “serial killer,” complete with sponsors listed, is clear: to profit from the pain of others. In that vein, a serial-killer museum is set to open soon. The band Korn’s front man, Jonathan Davis, wants to put his collection of serial-killer murderabilia on display. According to MTV online, Korn is working with archivist Arthur Rosenblatt to create a museum in Los Angeles to display his extensive collection of items from convicted mass murderers. Items include the Volkswagen that Ted Bundy used to search for his victims, clown suits worn by John Wayne Gacy, and drawings by “Night Stalker” Richard Ramirez. Another site proudly announces that it “deal[s] with the devil himself ” and hawks, among other things, T-shirts featuring Railway Killer Rafael Resendez-Ramirez’s own artwork created in his cell at San Quentin.
If I hadn’t seen the glorification and marketing of killers online with my own eyes, I would never have believed it. I can’t help but wonder just who would buy fingernail clippings or hair samples of killers, knowing full well that victims’ families have only photographs, high-school yearbooks, and memories to remember them by. The level of victimization is so intense it is sickening, yet it is allowed to thrive under the current laws of nearly every state in this country.
You may, as I do, wonder not only who buys these items but who sells them as well. They go by monikers like Supernaught and Drfixa-tor. Others have more gruesome, crime-obsessed names that I won’t list here because I refuse to give these ghouls the attention they crave. The names, created by the sellers as their online pseudonyms, reveal these people’s aspirations and in themselves, speak volumes. You may be surprised that anyone would visit such a Web site, much less spend money on such repulsive offerings, but the reality is that bidding is lively. I was horrified to learn sales double at Christmastime.
1 0 0
N A N C Y G R A C E
Killers and their online pimps are reaping a windfall off the lives of murder victims. The general consensus among website purveyors is that they are not the morality police, and until the law stops them, they will continue. In my mind, that makes them accessories to the further victimization of those now dead, unable to speak for themselves.
These sites take no responsibility and refuse to shut down the serial-killer auction site, blaming the marketplace. Remember, the dealers, their advertisers, and their buyers/enablers profit from every online sale, including sales of murderabilia. If these entrepreneurs won’t close down their sites, why won’t they give the proceeds from these sales to victims’-rights groups? When asked this question by various victims’-rights advocates and others, they declined to respond.
Believe it or not, it’s all legal.
L I T E R A R Y L O O P H O L E S
Not so long ago, it appeared that crime victims were protected by the Son of Sam laws. David Berkowitz got that moniker when he became known as one of the most feared killers in New York City in the 1970s.
His pent-up rage and frustration culminated in the murders of six people, injuries to seven others, and resulted in the largest manhunt in New York City history. During his reign of terror, he stalked lovers’
lanes looking for victims and held the entire city hostage. When he was finally captured, the country was shocked to learn that the evil madman terrorizing the city was a chubby-cheeked postal worker with a deceptively sweet smile. Once in police custody, Berkowitz confessed to all the crimes and begged a trial judge to lock him away forever so he could never kill again. He is currently serving a 365-year sentence at the Sullivan Correctional Facility in Fallsburg, New York.
The possibility Berkowitz might write a screenplay and capitalize on the terror he’d caused galvanized the country. The Son of Sam laws went into effect in New York in 1977 and were originally enacted to stop O B J E C T I O N !
1 0 1
Berkowitz from profiting by selling his story. The laws prevent criminals from receiving profits for recounting their crime, including books, movies, screenplays, and television deals. The laws also require that the contracting party pay any proceeds directly to the actual victims or, as an alternative, to a state victims’-compensation fund. Following New York’s lead, forty-two additional states and the federal government enacted similar legislation.
Since then, the country has been lulled into the belief that our justice system would never allow criminals and their “dealers” to make money off the suffering of crime victims. Not so.
The Son of Sam laws were actually reversed by the Supreme Court back in the case of Simon & Schuster, Inc. v. New York Crime Victims’
Board, 112 S.Ct. 501 (1991). The case arose after convicted gangster Henry Hill detailed his life of crime with the mob in a book titled Wiseguy. New York columnist Jimmy Breslin praised the book, which became the basis for the movie Goodfellas, calling it the “best book on crime ever written in America.”
The Supreme Court allowed Wiseguy to be published. They declared the Son of Sam laws unconstitutional, claiming they violated criminals’ First Amendment right to free speech. The Court held that the laws must be narrower because they included those charged with a crime in addition to those convicted. The justices wrote in their decision that the laws did not distinguish between works substantially about the crime versus those that mentioned the crime tangentially. For instance, Malcolm X had been behind bars, yet his works were not about his crimes but about his vision for societal change. Under the original Son of Sam laws, those works would have been banned.
Amazingly, after the reversal of the Son of Sam laws made criminal profiteering easy, few states took action. Most have not revised their laws to address the Court’s Wiseguy ruling.
In 2000, Mary Kay Letourneau—the former elementary-school teacher from Seattle, Washington, who had a sexual relationship with one of her sixth-grade students, then-twelve-year-old Vili Fualaau—was 1 0 2
N A N C Y G R A C E
legally allowed to help publish a book chronicling the “affair” despite being sentenced to jail in 1997 on a statutory-rape charge.
The State of Washington’s State Court of Appeals ruled that Letourneau could not be barred from profiting from her story as part of her sentence, despite a Washington State law that allows for the confisca-tion of profits made by criminals in describing their crimes. At the time, attorney James Lobsenz cited the U.S. Supreme Court’s decision ruling that convicts have a constitutional right to profit from book sales and movie rights, saying, “Is there any possible way we can argue with a straight face that our law is meaningfully different than the Son of Sam law in New York that was struck down?”
A French publishing house contacted Letourneau’s attorney, who brokered his client and her underage lover a $200,000 advance for their story. The title of this page-turner? Un Seul Crime, L’amour—
Mary Kay Letourneau & Vili Fualaau, which translates into—buckle your seat belt—“Only One Crime—Love.” The book even included a defense of Letourneau penned as a prologue by Fualaau’s mother, Soona.
The opportunity for criminals to cash in on their crimes must be stopped once and for all. The fix? Address the Supreme Court reversal in the Wiseguy case and carefully specify what is allowed and what is not. Works that deal with a crime and profit from that crime specifically would be allowed—but all the money would go to the victims. The revised law would not suppress criminals’ right to speak but would prevent them from making money off a work that is substantially about the crime. This is a sane and sensible solution.
The issue came to the forefront again when a California judge ruled against Sharon Rocha, the mother of Laci Rocha Peterson, in 2004.
Spurred on by reports that Scott Peterson was planning to profit from his own account surrounding the events of the murders of Laci and their unborn son, Conner, Rocha filed a lawsuit in Stanislaus County Superior Court. She asked for an injunction to transfer any income Pe-O B J E C T I O N !
1 0 3
terson may receive from books or movies to a protected trust until a verdict in the case was reached.
In the lawsuit, Rocha claimed that Peterson and unnamed others
“have solicited, arranged payment for, received or will in the future receive ‘proceeds’ from the sale of rights to or materials that include or are based on the story of a felony for which Peterson is charged . . . and
[of which he] may ultimately be convicted.”
With no Son of Sam protections, such civil lawsuits must be filed by relatives of a homicide victim to block defendants from profiting in the case through lucrative media interviews and movie and book deals.
California also had a Son of Sam law, ordering outright that felons pay their victims any money they got from selling their stories. Since the Wiseguy reversal, victims’ families must now go to civil court at great personal cost and file an additional wrongful-death suit against criminals, as the Brown and Goldman families did against O. J. Simpson. A jury awarded the families $33.5 million in judgment, but they’ve seen precious little of it.
This isn’t unusual. Efforts to collect from defendants in such cases are usually fruitless. In order to do so, victims’ families have to track a defendant’s moneymaking activities themselves or pay someone else to do it. The process costs them inordinate amounts of time, money, and effort. The cases can drag on forever, allowing the accused time to dispose of or hide the assets. It’s no secret that O. J. Simpson made plenty of money signing sports memorabilia at various fairs around the country. In the summer of 2004, during interviews that commemorated the ten-year anniversary of Nicole Brown’s murder, he even announced on national television that he’s in “talks” to star in his own reality show, called Juiced. The premise: Simpson pulls stunts on unsuspecting people. Sound familiar? Believe you me, if Simpson does wind up doing this disgusting show, he won’t be doing it for free. If he does profit from this ridiculous scenario, even if it’s just one dollar, that money belongs to the Browns and the Goldmans.
1 0 4
N A N C Y G R A C E
In the Rocha case, Sharon Rocha was initially denied the injunction under a legal technicality, as no money had yet been earned by Peterson and, at the time of the filing, he had not been convicted of any crime. According to the Associated Press, Peterson’s attorneys argued that he should be allowed to pursue movie and book deals even if he is found guilty. Incredible.
V I C T O R Y F O R V I C T I M S
— N O B U L L !
I will never forget the case of mob underboss Salvatore “Sammy the Bull” Gravano. As part of a sweetheart plea deal—sweet for Gravano anyway—he sang like a bird against John Gotti of the notorious Gambino crime family. “The Bull” confessed to planning or committing nineteen murders nearly ten years earlier as part of a deal with federal prosecutors to implicate Gotti and over three dozen other mobsters.
Even with nineteen murders under his belt, Gravano did just five years behind bars on racketeering charges and then went underground as part of the Witness Protection Program. Unable to live a straight life, he left the program and chose to live openly in Arizona, a free man until he was charged with running an ecstasy drug ring with his wife, children, and a group of white supremists.
To make matters worse and heap additional heartache on his victims’
families, Gravano wrote a book detailing his life with the mob—and it sold. Gravano inked a 1996 deal with author Peter Maas to write the book on Gravano’s lifetime of crime, including murders. Maas then struck a subsequent deal with HarperCollins Publishers to publish the book and 20th Century Fox to do the movie. A victims’ board tried to force Gravano, Maas and his company, T.J.M. Productions Inc., HarperCollins, and Maas’s agent all to give the book’s proceeds to the murder victims’
families.
On appeal, New York’s appellate division ruled that the state’s Son O B J E C T I O N !
1 0 5
of Sam laws do not allow the Crime Victims’ Board to seize Gravano’s book proceeds, claiming that the laws do not apply to the federal crimes to which he pled guilty. Gravano’s lawyer, Larry H. Krantz, called the ruling “correct.” Michael Dowd, attorney for Maas and T.J.M., said, “It’s a wonderful decision for anyone who’ll ever put pen to paper.” HarperCollins issued a news release saying that the decision “makes clear that authors and publishers can publish accounts of criminal activity without fear of interference from the Crime Victims’ Board.” So everybody was happy—except the victims’ families. Their only recourse was to hire lawyers and file civil wrongful-death suits against Gravano.
But then, in a stunning turn of events, the state of Arizona did what New York claimed couldn’t be done. New York claimed that its laws didn’t protect the victims. Arizona’s restitution law does, even when the crime takes place outside of Arizona. Ads placed in East Coast newspapers sought out Gravano’s victims and offered a portion of royalties from his book. The ads were run by the Arizona attorney general’s office and were allowed after Arizona prosecutors won a court fight over proceeds from the book Underboss: Sammy the Bull Gravano’s Story of Life in the Mafia.
Although Gravano’s Phoenix attorney disagreed with the decision, his argument didn’t hold water with Maricopa County Superior Court judge Mark Santana. The defense lawyer claimed that “it was a violation of the First Amendment.”
The fight didn’t end in the trial court; Gravano took it on appeal all the way up to the U.S. Supreme Court. And why not? The New York appellate court had sided with Gravano. He rolled the dice again—this time with a different result. The Supremes refused to hear his appeal, an alternative they often choose when they either agree with the lower decision or simply do not want to rule on the case. Ironically, on the very day the Supreme Court made its announcement, another court had a sentencing hearing on Thomas “Huck” Carbonaro, a reputed hit man who had schemed to kill Gravano with a remote-control bomb for betraying the Gambino crime family. In the end, Gravano is still behind bars doing a twenty-year sentence for running a massive ecstasy ring, 1 0 6
N A N C Y G R A C E
and the victims won their right to his book proceeds, thanks to an Arizona judge. It was a victory, true, but bittersweet. Power to the Grand Canyon State!
V I C T I M S T A K E A C T I O N
When I researched the background of Senate Bill 1887, the California Son of Sam 2 legislation, I discovered that California’s Senator McPherson was a big proponent of the bill. McPherson had read an article in the paper about the Supreme Court’s declaring the Son of Sam legislation unconstitutional, and was pained. McPherson’s own son was murdered a couple of years ago in San Francisco, so this deeply touched him. McPherson contacted the state attorney general’s office, and they coauthored the Son of Sam 2 legislation. Two crime-victims’
organizations, Crime Victims United of California and the Carole Sund/Carrington Foundation, got behind the bill as well. After a long struggle, the bill was signed into law by Governor Gray Davis on September 17, 2002.
While a revised federal Son of Sam law is still needed to stop criminals from getting rich off their own tales, an effective legislative solution has been enacted in a few states that is helping to end online criminal profiteering.
Richard Allen Davis, the kidnapper who killed a beautiful little twelve-year-old girl, Polly Klaas, in 1993, was hawking handwritten letters and photos of himself wearing only underwear online. Polly’s father, Marc Klaas, reacted, taking aim at the California legislature.
He joined forces with Texas victims’-rights crusader Andy Kahan to champion a revolutionary idea: the Notoriety for Profit Law, often referred to as the “Murderabilia Law.” Klaas and Kahan learned from the cracks in the Son of Sam laws and threw in a new twist to foil the O B J E C T I O N !
1 0 7
profiteering. Largely through their efforts, the Notoriety for Profit Law has been in effect in California since 2002 and in Texas since 2001, putting the kibosh on sales of murderabilia online as well as on other outlets.
A few months before Kahan planned to go public on ABC’s 20/20
to expose Internet sleaze and his plans for the new law, he had already scored a major victory against online ghouls. The auction site eBay got wind of what Kahan was doing and in May 2001 made the stunning announcement that eBay would prohibit further murderabilia sales. There are, however, many other outlets that refuse to stop trading in terror.
Kahan’s “Murderabilia Law” is a great start. In California and Texas, where it is on the books, criminals can still sell their hair and fingernails online, but here’s the good news: The state may seize any money generated above and beyond the fair market value of the item itself, based on notoriety. The new version allows police to seize profits, notably those earned from Internet sales, if it can be shown that the value of an item is enhanced by its connection to crime. For instance, a human hair sample sells for little or nothing online, and its fair market value in most cases is next to zero. If the price of a hair sample is enhanced because of the infamy of its owner, the additional profit is seiz-able by the courts in those jurisdictions that have passed the Notoriety for Profit Law.
The law, which makes the watchdogs the state and local authorities, will also stop third-party brokers like Ghoul-Chaser from profiting from murderabilia, sending proceeds from such sales into the same fund for victims’ families or directly into the state’s Crime Victims’
Compensation Fund. It’s hoped that similar models will find their way onto the floors of state legislatures and assemblies across the United States. There is no reason the federal government shouldn’t follow suit.
Some people may call this draconian, but I strongly advocate jail time for third-party dealers who either work in conjunction with a murderer behind bars or otherwise get their hands on “the goods.” In my mind, these online brokers are aiding and abetting in furtherance of the 1 0 8
N A N C Y G R A C E
original crime by profiting from a victim’s pain. They should be charged with a misdemeanor crime that carries a penalty including not only a fine, but jail time for the crime. And for those detractors who cry that this would restrict free commerce, I say that the very same reason we don’t sell cocaine at the supermarket should apply to the sale of Bittaker’s fingernails online. It’s wrong. It’s just plain wrong. If people really want to stop this disgusting business, this is the way to do it. What possible impact could a twelve-month misdemeanor charge have on a defendant doing life without parole? The law has to go after those who will be most affected by its implementation . . . the dealers/brokers. I say book ’em!
When I consider the power of the Internet combined with the evil of those who take joy in murder, I feel like David doing battle against Goliath. The “Murderabilia Law” is an important step in stopping the injustices perpetrated by online ghouls and others seeking to cash in on crime and its pain and suffering. I believe that an important goal of our country’s justice system should be to protect a victim’s family from seeing their loved one’s killer profit from heartache. The only notice grieving families should ever receive regarding criminals who took away their loved ones should be an execution announcement from the state’s death row, not a “for sale” ad on the Internet.
C H A P T E R F I V E
A I R B R U S H I N G T H E A W F U L T R U T H
IN MOVIES AND ON TELEVISION, EVERYBODY IN
the courtroom is beautiful. Hollywood’s glamorized version of our justice system depicts lawyers who are always dressed to the hilt, with flawless hair and makeup. Thanks to smartly written scripts, counsel always provides the perfect response to every question. The victims are usually actors with great bodies and porcelain smiles. Occasionally their hair is a little messy. A few fake cuts and bruises are sometimes thrown in, in keeping with the “gritty” mood of the drama. Even the defendants look great and are often characterized as misunderstood.
By the closing credits, everything is wrapped up neatly and the good guy wins out. I wish that were true in real life. The actual struggle against crime, whether it’s violent or white-collar, bears little or no re-semblance to what audiences are shown. The stark truth of what goes down in courtrooms across the country when prosecutors are fighting for the rights of victims is just that—a struggle. It’s hand-to-hand mu-tual combat between state and defense. Kidnapping, murder, rape, and child molestation reveal the ugliest sides of human nature. Prosecuting the violent offenders who commit these crimes is dirty business—
dirtier than the casual courtroom observer, much less a TV audience, can ever know.
1 1 0
N A N C Y G R A C E
When a case finally wends its way into a courtroom, to a jury of twelve in the box with alternate jurors waiting in the wings, nothing is as it was when the crime was first committed. By the time the state delivers an opening statement, the truth has been “packaged,” whittled down by defense lawyers, trial judges, and appellate courts to a per-functory presentation. Here are just a few things most juries never see: images of the victim in life, a majority of crime-scene photos, autopsy photos and reports, the dying words of the deceased, and the suspect’s extensive criminal history. Also disallowed: fingerprint crimes called
“similar transactions,” motive evidence, rap sheets, and sometimes even the suspect’s confession. It’s all gone. I’ll explain why later in this chapter.
By the time a trial begins, the defendant’s testimony becomes a
“script” that sounds canned and practiced. The evidence seems surreal, dated, and strangely detached from reality. With the passing of time and the repackaging allowed by the system, the enormity of a violent crime translates into muted voices, soft and tiny, in a cavernous courtroom. Lost is the moment of the act and the events that followed: the subsequent investigation, backbreaking hours of preparation by investigators and lawyers, and the raw grief of the victim’s loved ones. What is left for the jury is a sanitized, cleaned-up, objection-free version of the facts—just the way defense lawyers want it. By twisting the rules of evidence, the defense can score a myriad of pretrial victories, including the exclusion of state’s witnesses, suppression of crime-scene and autopsy photos, and obscuration of the true nature of the defendant. All of these things aid in helping achieve their ultimate goal: airbrushing the awful truth.
I still remember the first triple-homicide case I tried, in 1990. It made headlines at the time because it involved a major cartel’s drug trail from Miami to New York. Because of the case’s enormous implications, I was sure I’d be passed over in favor of an older, more experienced prosecutor. It didn’t happen that way. The case came to my courtroom by random assignment, and I kept it. That’s how indictments in metropolitan jurisdictions are disbursed among the trial judges. A O B J E C T I O N !
1 1 1
computer assigns each case a number up into the tens of thousands.
The numbers are assigned randomly and evenly to each of the dozens of judges in each jurisdiction. The computer could assign one prosecutor forty cases in one week with only one murder, the rest being car thefts, burglaries, and rapes. The next week could land you another forty cases, fifteen of them being brand-new murder files. The computer understands only the ordered case number assigned to the file—it’s blind to the nature of the case. This is so defense lawyers can’t accuse the state of “judge shopping”—in other words, expressly assigning specific cases to tough judges or strong prosecutors versus the weak links that invariably exist on the bench and in the courtroom.
This particular triple homicide had evolved out of an ongoing turf battle that took place midway along the direct route from Miami, where narcotics of all types flood into the United States and are then
“muled”—transported—up Interstate 75 toward New York City, one of the country’s main drug-distribution hubs. Atlanta is the first major stop for traffickers as they flee Miami to escape the city’s heavy DEA presence.
The most vicious drug-related gang violence goes down in clusters of inner-city Atlanta’s housing projects. This particular housing project, home to thousands of people, was easily one of the most violent.
The apartments were configured in a horseshoe shape, with entrances at either end. Because of the huge number of drive-by shootings and drug-related activities that occurred there, one entrance had actually been barricaded closed by police. They cordoned it off with barbed wire so suspects couldn’t elude them during chases. I didn’t know that when I went to investigate the crime, but I learned pretty quickly.
The first time I drove there, I did so naïvely believing that witnesses would actually talk to me just because I asked. The murders went down on a Sunday night at about ten past eleven, on the project’s playground, which was at the center of the U-shaped apartment configuration. Any people who happened to be looking out their windows that night would have had to have seen what happened, but no one would 1 1 2
N A N C Y G R A C E
come forward. People broke down into two camps: those who were afraid of retaliation, which was a given, and addicts who couldn’t care less about murders that took place on their own kids’ playground.
Airbrushing the awful truth in this case was the primary goal of the defense. The crux of the case was that three young black men had been gunned down, execution-style. The youngest one had tried to run when he realized what was happening. He took off, attempted to jump over a chain-link fence, and was shot multiple times in the back. In the first crime-scene photo I saw of him, he was lying flat on his back. I couldn’t make out the unusual markings on his face until I drove to the medical examiner’s headquarters and questioned the doctor who had performed the autopsy. He explained that when the victim was murdered, he was in the midst of climbing over the chain-link fence surrounding part of the playground in his effort to escape. That’s when he was shot, and that’s where he died. His cheek, jaw, and neck were smashed into the fence, and he hung there dead until police took him down. Another shot also took me a while to figure out, until I interviewed one of the crime-scene techs who took the photos. Under the fence was a cement gutter. I didn’t even realize what I was looking at until he explained that it was blood from the body of the teenager literally running down the gutter. The defense team objected to the photos’ coming into evidence, claiming they were prejudicial and would incite the jury. I argued they symbolized the intense level of violence that night.
The jury never saw them.
B E A R I N G W I T N E S S
No witnesses? No case.
The defense is always thrilled when a state’s witness fails to show, is too afraid to come to court, or can’t be located or convinced to get involved. After being named as the district attorney in the triple-homicide case I went to the scene at many different times of the day and night to try O B J E C T I O N !
1 1 3
to get witnesses to testify. Because my name had been in the local papers as the prosecutor in the case, no one would answer the door when I came around. I’m sure I stuck out like a sore thumb, dressed in my court clothes and rumbling up in a huge, county-issued Crown Victoria—
widely known in practically every state in the country as the unmarked government vehicle. My investigator and I would sneak around the back of the apartments so that the neighbors of potential witnesses wouldn’t see us and word wouldn’t spread that they were cooperating. We would knock on every door and occasionally talk ourselves into someone’s apartment.
We were literally begging people to testify if they had seen anything.
One apartment we made it into had absolutely no furniture except one sofa lying lopsided, feet missing, in the middle of the den floor. It looked as if someone had set it on fire but not finished the job. The place was filthy. Everyone in the apartment was either already high, smoking pot, or doing lines. It was the first crack house I’d ever been in.
Although I knew that my investigator packed at least two guns at all times, I, as usual, was unarmed. We knew instinctively that everyone in this place was armed to the hilt. After we “badged” our way in, we asked about the shootout. Everything went silent, and they all looked at each other. I knew they knew more, but nobody spoke. Then they visibly began shrinking away from us and fumbling for words. The end result of our visit: no witnesses.
I was having a tough time digesting the conditions under which this community (including the little children) lived. I had just witnessed a felony crime right in front of my eyes. In my mind, that called for action. When we got to the car, I picked up the walkie-talkie to report the cocaine. My investigator yanked it away before I could finish. He told me in no uncertain terms that there was no way we could report it or stop it. They’d be out on bond two days after arrest, back in the same dope house, and our chance of a conviction in the triple murder would be shot. Reporting the crack house would certainly have stopped any potential witnesses from ever cooperating. I felt helpless, but I knew I couldn’t do anything to jeopardize the case. I had to find witnesses. To 1 1 4
N A N C Y G R A C E
this day, I think of the little kids who lived there. Their clothes were dirty, and they had nothing. I didn’t report the crack house and continued to work the case.
I finally heard about a witness who allegedly drove a school bus during the day. I knew she would have avoided me if she had any idea I was coming. Late one afternoon, I went back to the projects to try to approach her with a subpoena as she came in from work. I never told people when I was coming, because if they had even an inkling I was on my way, they’d definitely vanish by the time I showed up.
As odd as it sounds, by this time I had seen many, many crime scenes and never shed a tear. I’d stayed dry-eyed through countless reviews of autopsy findings, bloodstains, dead bodies. All that mattered was getting a true verdict from the jury, putting violent offenders behind bars and away from innocent people, and then tackling the next case. At the time, Atlanta’s crime level was so high that I sometimes tried three cases in one week. My Monday mornings usually started with a murder or rape trial. The minute a jury left the courtroom to begin deliberations, the sheriff would usher in the next panel of sixty to eighty jurors, who’d been waiting in the hall to be struck for the petit jury (twelve people). The second case would usually be something along the lines of a drug possession or trafficking case calling for only five to ten witnesses. After that, a simple burglary or car-theft jury could easily be struck, with only a few witnesses needed to prove the case. When all the cases had been given to the jury, my investigator and I would haunt the courtroom, subsisting on Diet Cokes and crackers until the verdicts came in. I thought I was steeled against emotions that would cloud my focus.
But the day I went looking for my bus-driver witness, something was different. I had scoured the playground where the crime occurred for weeks, digging for ballistics evidence the police might have missed.
This was the first time I’d been there in the light of day, and the scene stunned me. All over the playground—even under the swing sets and monkey bars—was broken glass, cigarette butts, used condoms, bul-O B J E C T I O N !
1 1 5
lets, bullet casings, discarded miniature glassine bags for holding crack. There were even used syringes everywhere.
I sat there in my car, hunched over the wheel, waiting. And then came the children. I watched in horror as dozens of kids poured off two school buses and onto that playground, running and laughing. I still don’t know why, but suddenly it was too much. I put my head on the steering wheel and cried and cried. I couldn’t stop. Watching those children grow up in that world, swinging high on a swing set over broken glass and glassine bags—it was just too much. All I could see was a whole new generation immune to crime, literally growing up right on top of it. I had seen a million crime-scene photos and not felt a thing.
But seeing those children living in that world and never having a chance was more than I could take.
That night at home, and for days afterward, I tried to figure out why I was still prosecuting. What was the point? After this case, there would just be more—a never-ending stream of violent crime. I wanted desperately to quit. I felt lost. My mission had run aground. Everything about the case left me with a horrible feeling of hopelessness. Then I heard about a possible witness, a hooker named Shorty, who I’m sure is dead by now. She had been on the edge of the playground that night but was afraid to speak out. Somehow we talked her into it. I’ll never forget what awaited me when I went to her apartment. When she opened the front door, I saw what had to be about twenty babies lying on the floor in front of a television. They were all infants, some wrapped in blankets, some not—but not one ever cried out for care or affection. I discovered she made extra money as a part-time baby-sitter. I tiptoed around them on the way to the kitchen, where she asked me if I wanted something to drink. She gave me some green Kool-Aid. While I was sitting there, I happened to look up at the clock on the wall behind me. It took all I had not to shriek and leap out of my chair. There had to have been eighty roaches running up and down the wall like ants. I set the glass down, opened up my file to work, and pretended to drink so I wouldn’t be rude.
1 1 6
N A N C Y G R A C E
On the day Shorty was to take the stand, things dragged on and on.
Suddenly it was five o’clock. I could see that the jury was drawn and tired. My investigator thought we should stop, but my gut told me we had to get this woman on the stand now. The jury had to be there, in that moment, on the playground the night of the killings, before they went home for the day. Up until this point, the day had been filled with one “expert” after another, plus a couple of cops.
On the stand, Shorty described what she had seen that night, and she was growing more and more agitated as she went on. She testified that all of a sudden she heard the shouting, and when she looked over through the darkness, she saw the three young men gunned down. Her fear was a palpable presence in the courtroom. Before I could stop her, she half stood at the witness stand and screamed at the top of her lungs,
“He shot them! Shot them dead!” She then pointed to the defendant as she cried out in the courtroom, “I looked and saw him! He turned and looked at me in the dark, and I was so afraid that I ran.”
You could have heard a pin drop in the courtroom. The jury finally got it. The truth was raw, and it hurt. I stopped and turned to the judge.
We were done. The jury went home with Shorty’s cries ringing in their ears. As much evidence as the defense had managed to keep away from them, this was one witness it couldn’t airbrush.
When the jury delivered their verdict, they found the triggerman guilty on all three counts of malice murder. I forced myself to look directly at him to “publish the verdict”—read it aloud in open court. After leaving the courthouse that afternoon, I was standing at a crosswalk waiting for the light to change when I turned and saw that a member of the jury had come up next to me. He was a tall black man in his early fifties. During the trial, I had connected with this juror and directed much of my argument and questioning of witnesses directly at him. He didn’t speak but held out his hand to shake mine. My eyes filled with tears as we gripped hands. He disappeared into the crowd crossing the street, and I never saw him again. The defendant in the case remains behind bars serving three consecutive life sentences.
O B J E C T I O N !
1 1 7
The level of violence and lack of regard for human life displayed during that case, combined with tactics used by the defense, were just plain wrong. I needed an armed escort to take me to my car every night after court. My tires were slashed in the county court’s parking deck, and my back door was kicked in. My mailbox was run over and knocked down three times. Things grew worse as the investigation and trial wore on. I finally had to stop staying at my own home during the trial.
In the course of prosecuting this case, it all became overwhelming.
The ugliness of the truth exposed an intense level of violence and hatred that was saturating my life. It’s impossible to slog hip-deep through mud every day without tracking some back home with you. I felt lost, and I wanted to quit. In my closing statements to the jury, I argued with all my heart that they were the voice of those who have no voice—the victims who are all too often the poor and uneducated. If they didn’t speak out against injustice, I reasoned, then who would? As I argued to the jury, my own words rang in my head. I knew at the time that I was just weary, weary with the weight of the trial. I knew I wasn’t ready to stop fighting the only way I knew how—as a prosecutor. After the trial, my mother gave me a ring with three rows of diamonds: one for each of the three victims. I wear it to this day.
A P I C T U R E S P E A K S
A T H O U S A N D
( U N H E A R D ) W O R D S
I was reminded of that triple-homicide case when I learned that the trial judge in the Laci Peterson murder case had warned potential jurors that they would likely see graphic and upsetting crime-scene photos. There would likely be photos of Laci—or what was left of her, which was her bones with a little flesh on them, wearing a maternity bra, washed up against a rocky beach. Her skull and portions of her limbs were never found. Compared to the vibrant images of the smiling and 1 1 8
N A N C Y G R A C E
happy young brunette we came to recognize from television, the contrast is nearly impossible to erase from your mind.
As awful as the crime-scene photos are, they depict the truth. Murder is an unsettling and gory reality. Crime-scene and autopsy photos are the closest things attorneys have when it comes to sharing that truth with the jury. Words alone cannot do the truth justice. The jurors, however, never learn the harsh reality of crime, and they never will under the current rules of evidence. I believe that all crime-scene and autopsy photos showing the victim’s injuries must be admissible. It has been ruled repeatedly by appellate courts that such photos would inflame and prejudice the jury. Of course a jury will be inflamed. Of course jurors will be prejudiced to the extent that the evidence of the murder itself is inflammatory and shocking. Is there a way to pretend that the violent taking of a human life isn’t shocking? All evidence pointing to murder is prejudicial. The defense argument that evidence in a murder trial is prejudicial to the jury is a ridiculous and disingen-uous game played with words.
I have gotten certain autopsy photos in under very limited circumstances. I prosecuted the kidnapping, rape, and murder of an unknown woman whose body was found dumped in an empty field. We didn’t have much to go on, but part of the proof that made it to the jury was an autopsy photo of the victim’s skull showing violent bruising under the skin. Because the wound was apparent to the naked eye only in the autopsy photo, it was allowed. And it was in fact inflammatory. When I first saw the photo, I didn’t even realize what I was looking at. All you could see was blurry pinkish tissue, bordered in black. The medical examiner pointed out, “That’s her head. This is her hair.” It didn’t really hit me then, because I was looking at a discoloration of tissue just beneath her skull. In that context, the photo came in to show the nature and degree of a blow to the head and the subdural (beneath the skull) bleeding. Autopsy photos are often the only method to explain certain injuries, but more than that, they are the only way in which the true horror of the crime is ever known to a jury. The stark reality is that this O B J E C T I O N !
1 1 9
victim ended up at the county morgue with her body dissected. Harsh?
Yes. True? Yes. It is part of the nature of the crime and must not be hidden from the jury.
T H E S C E N E O F T H E C R I M E
I also firmly believe that all crime-scene photos must be admissible.
Defense attorneys try their best to have as many as possible excluded from evidence, so as to distance the jury from the reality of the crime.
It’s much better from the defense’s point of view to reduce the murder, rape, or child molestation to a clinical evaluation as reported in the notes of a doctor, nurse, or medical examiner. I say, “No!” Crime has nothing to do with a black-and-white, printed version of injuries and analysis. It is all about the assault on human dignity, on the human psyche—and it’s about the victim. The human equation must not be airbrushed out of the courtroom.
The courtroom is no place for the weak-kneed, and the jury must see the reality and intensity of crime. To show the truth to a jury, prosecutors must know the rules of evidence backward and forward, using those rules as their swords and their shields. A superior knowledge of the application of law is the only hope for the reality of crime to make its way to a jury. Being able to use those rules to your advantage, to lay the groundwork as to why photos must be admitted, is essential. Reviewing the crime scene and victim and autopsy photos with a fine-tooth comb often reveals strategies to allow the truth before the jury.
Arguments such as depicting the trajectory path of bullets, the severity of deep-tissue wounds, the number of blows or lacerations are examples of why autopsy photos should be allowed. The depictions of distances, heights, lighting conditions, positions of bodies, furniture, cars, and other objects shown only in crime-scene photos are examples of why those photos should be allowed. For every exhibit entered into evidence, there must be a reason for its admittance. The only way to win 1 2 0
N A N C Y G R A C E
the battle to reveal the awful truth is through the expert use of the facts of the case and the expert application of the rules of law.
The same holds true when jurors visit a crime scene. If and when (it’s rare) a jury ever does get to see the crime scene, you could put a bow on it and sell it at Bloomingdale’s. It’s been cleaned up and stripped of the evidence that reflected the horrors the victim suffered in his last moments of life. It’s Crime Lite. At the time of a crime, there is more to the scene than simply what you see. Its what you feel, what you smell, what you sense. It’s an overpowering presence, as if someone is there.
An incredible example of crime-scene manipulation occurred during the O. J. Simpson trial. Love him or hate him, Johnnie Cochran is a criminal defendant’s knight in shining armor. A field trip to Simpson’s home included the judge, the jury, lawyers for both sides, a fleet of reporters, photographers, and videographers—and Simpson himself. The purpose of the trip to Nicole Brown’s home on Bundy Avenue and Simpson’s home on Rockingham was to give the jury a chance to see things for themselves. The prosecution had intended for jurors to focus on viewing the locations of Brown’s and Ron Goldman’s bodies, the spot where the infamous bloody glove was found, and the bedroom where police had collected Simpson’s blood-spattered socks.
The defense, however, seized upon the viewing of the scene as their opportunity for spin control, painting Simpson as a kind, benevolent family man. Before the jury motored over to Simpson’s home on chartered buses, the defense allegedly did some redecorating. A print of Norman Rockwell’s famous painting of a beautiful little black girl being escorted to school by federal marshals was borrowed from Johnnie Cochran’s office and positioned at the top of the home’s center staircase. Pictures of Simpson standing with white golfing buddies disappeared. A glamour shot of Simpson’s white girlfriend, Paula Barbieri, was stashed away.
They were replaced with photos of Simpson’s elderly mother. A Bible was planted in the living room. Since Simpson’s house was not a crime scene, this bit of redecorating was perfectly legal. The tour was a great success O B J E C T I O N !
1 2 1
for the defense. Simpson even got the unprecedented chance to speak to the jury outside the courtroom, not under oath and without the benefit of cross-examination. At one point, it was reported, he declared proudly while gesturing toward the backyard, “That’s where I practiced my golf swing.”
On the tenth anniversary of Nicole’s and Ron’s murders, I interviewed a Simpson juror and asked her how, in the presence of so much evidence, the jury rendered a not-guilty verdict. She answered, “The state didn’t carry its burden.” Then I asked, What about the blood evidence? How do you reconcile that? Her response: “I don’t have to reconcile it.”
The manipulation of the crime scene by the defense in many different cases is well documented. In October 2003, during the murder trial of novelist Michael Peterson in North Carolina, the defense fought hard for a jury viewing of the showpiece of a home in Durham perfected by its owner, Peterson’s wife, Kathleen. Her novelist husband was caught up in a web of online gay dating sites, financial hardship, and a secret past that included the death of a woman connected to him. Kathleen had been found dead at the foot of the stairs in her own home, with seven lacerations to the back of the head. According to her husband, he was alone outside smoking a cigarette by the pool, and when he went back inside, he discovered his wife dead at the base of the stairs.
At trial, it was revealed that approximately eighteen years before, Michael Peterson’s “close friend” Elizabeth Ratliff had been found dead at the foot of her stairs with numerous lacerations to the back of the head after Peterson had taken her home that night.
Police had searched the Petersons’ North Carolina home exhaustively for a murder weapon, which was believed to have been a missing blowpoke that normally stood by the fireplace in their home.
By the time the jury finally got their view of the Peterson home, the bloodstained stairs and walls had been cleaned and to a certain extent boarded off. Every room was polished up to look like a page out of House Beautiful, complete with fresh-cut flowers and the smell of Lemon Pledge!
1 2 2
N A N C Y G R A C E
There were no signs of the blood that had spattered onto the ceiling, suggesting a blow to the head as opposed to a fall down steps as the mode of death.
Incredibly, the long-missing blowpoke was finally “found” by the defense. Of course, by the time they produced their “discovery,” it was fingerprint-free. Clearly, as time passes, there is more and more opportunity to doctor the scene. In the high-stakes gamble of a trial, that motive to airbrush the awful truth is overwhelming. In this case, the jury didn’t buy it. Peterson was convicted of murder one.
During Scott Peterson’s trial I was concerned Judge Delucchi would allow the jury to go out on the San Francisco Bay, where Laci and Conner were disposed. In my nightmares, they would go out on a bright, sunny day and be surrounded by recreational crafts while imagining Scott Peterson enjoying himself on the water the day Laci went missing.
What a miscarriage of justice that would have been. I went onto the bay myself to see where Laci was thrown overboard. In December, the water would have been choppy, the air cold and windy. No way was Peterson out fishing for fun on Christmas Eve. Thank God Delucchi understood the changing nature of a crime scene.
Before crime-scene visits are sanctioned by the court, I advocate that a two-pronged test be incorporated into the rules of evidence and met. First, whichever side wants the visit must proffer to the trial judge the reason for the visit, grounded in evidence and supported by rationale as to why photos or video of the scene would not suffice. Second, whoever has had supervision and control over the scene must show, under oath, that the scene has not been manipulated in any way. Any manipulation of the scene is grounds for a contempt-of-court charge that should come with jail time and should be made known to the jury. That way, it will be up to them to decide why a party would choose to re-arrange history and what, if any, bearing that manipulation has on the guilt or innocence of the accused. Why give anyone an excuse for a sneaky reshaping of a crime scene?
O B J E C T I O N !
1 2 3
T H E N A M E L E S S,
F A C E L E S S V I C T I M
It’s odd that as a prosecutor, you invest so much time and effort to bringing a victim’s case to a jury, only to have that victim wind up largely anonymous. In murder cases, the jury never gets to know the victims in life, their joys, their concerns, their fears, their triumphs—or their pain even in death. In our system, victims are reduced to case numbers. What I mean by that is that a number is given to each case indicted, a different number is attached by the police, a number is given at the crime lab, a different one at the hospital, yet another at the medical examiner’s office and the morgue. Even in court, the defense refers to the victim by a number. Prosecutors can sometimes fall into the same trap, even though they don’t have to. During Scott Peterson’s preliminary hearings, the defense attorneys constantly referred to specimen numbers, ID numbers, and exhibit numbers rather than to the name of the victim. They didn’t say, “Where did you find Laci’s pants?” Instead they asked, “Where did you locate State’s Exhibit 43?” The more impersonal, the better the defense likes it. Whether it’s the victim’s clothing or belongings, her voice on an answering machine, photos of him in life, or his dying words—the defense scores big when evidence like this is suppressed.
I’ve seen other prosecutors play the number games, too. I don’t understand why. Maybe they get caught up in all the legalese. I’ve also watched as lawyers on both sides snap on plastic gloves in court, covering themselves, protecting themselves from getting dirty in court, as if the dried blood on a victim’s clothes could somehow infect them. It’s all so sanitized, so clinical, so removed from the reality of the victim’s suffering.
All these years later, I remember how my fiancé’s bloody clothes were laid out at trial as an exhibit for the jury to see. They had a num-1 2 4
N A N C Y G R A C E
bered tag attached to them on the defense table. I can remember him driving away that morning wearing those clothes, his blue eyes smiling, his arm waving out the car window as he left. Of course the jury never knew that. They also never saw the interior of the Jeep he was driving just before his murder. Blood had splattered on the roof and the doors.
I’m sure the defense objected to their seeing that. It was too real and, of course, too prejudicial.
I N L I V I N G C O L O R
It’s even more difficult to allow a jury to get the smallest glimpse of the victim in life. Photos like high-school or college graduation por-traits or family snapshots are rarely allowed, because the defense will argue they have no bearing on the guilt or innocence of the accused.
True, perhaps, but that doesn’t make it right. The only legal alternative is to find a solid evidentiary reason to allow photos showing victims in life to be brought in. Rick Distaso managed to get in evidence a video of Laci Peterson in life, puttering around her kitchen. He wisely found an evidentiary basis. Another alternative I often used in my opening statement was to describe the victim in as much detail as possible, so as to have those images fresh in the jury’s mind.
I was determined to have the jury get a picture of the young victim in a murder case I tried. He was a thirteen-year-old boy nicknamed
“Moonbeam,” who was a good student and played in his school band.
He wore a huge pair of glasses and, to me, was just precious. He was gunned down as part of a revenge killing. Revenge on a high-school band member? It was a case of mistaken identity. The two perps who shot Moonbeam had intended to shoot someone else, allegedly over a drug deal gone bad. As if anyone were the “right” person. So, from a distance, they murdered a thirteen-year-old boy walking along the side-walk near the apartments where he lived. Testimony from the stand described the boy crawling along after the first round of fire, begging for O B J E C T I O N !
1 2 5
his life and calling out for his mother as the rounds from an AK-47 continued to be pumped into him.
I had Moonbeam’s class photo and I wanted to show it to the jury.
Pursuant to defense argument, the judge disallowed it because it would
“inflame the jury” if they saw the smiling young victim in his school photo. It would have made them think about how young, how innocent, he was. In the end, I managed to get the photo in. Moonbeam had on the same shirt in his photo as he did the night he was shot. For that evidentiary reason, it came into evidence as corroboration for eyewitness testimony. Throughout the state’s case and until the defense team dra-matically removed it, I kept it on display in front of the jury, so they would not forget that this case was about a little boy. A boy who played in the band and had a life before him. The jury rendered a guilty verdict.
From then on, I devised ways to get photos of the victims admitted into evidence so they would not end up as faceless numbers on a police report or a coroner’s injury sketch on a diagram. In most cases, juries learn little if anything about a victim’s life, but when a defendant takes the stand, they learn what a great guy he is, how much money he gives to charity, how he’s involved with his community, and what a good father he is.
F A M I L Y T I E S
Belongings or photos of a murder victim in court can definitely come back to haunt the defendant. But a defense lawyer’s worst nightmare is seeing loving family members seated in court before the jury. This was especially true during the Scott Peterson murder trial, as Sharon Rocha and her family sat practically each and every day in row one, closest to the jury. The fact that people grieve and mourn a victim’s death is an extremely undesirable notion to the defense. So with much twisting of tail and gnashing of teeth, a plan of counterattack was developed. Now it’s standard operating procedure to kick the victims and their families out 1 2 6
N A N C Y G R A C E
of the jury’s view. Often a “Motion to Enjoin the Victim’s Family and Friends from Sitting Directly Before the Jury and Showing Emotion in the Courtroom During the Trial” is filed. In fact, it is so often used that there’s even a form for it accessible online, lifted directly from “A Capital Defender’s Toolbox for Criminal Defense and Death-Penalty Litigation.”
Another method to dehumanize the victim during trial involves a cynical and increasingly common practice employed by the defense, especially in high-profile cases: using the rule of sequestration to keep the victim’s family members out of the courtroom. The rule of sequestration states that witnesses are not allowed to sit in the court while others testify. It was created for one valid reason: to prevent one witness’s testimony from shading that of another.
Not surprisingly, this valid rule has been perverted into a dirty trick by attorneys. Victims’ families are routinely thrown out of court under false pretenses—ostensibly because they are going to be called as witnesses for the defense. The tactic was employed by the defense in the case of Danielle van Dam, a bubbly seven-year-old who loved Mickey Mouse. In February 2002, van Dam was abducted from her own home in San Diego during the night as her family slept nearby, down the hall from her room. The little girl’s blood and blond hair were later found in a neighbor’s RV. Her left palm print was found, located as if she were reaching out to a built-in table beside the grown man’s bed.
Her blood was also found on the jacket of that same neighbor, David Westerfield. Danielle’s nude body was finally discovered by a volunteer in the nearby desert, a few weeks after her disappearance. The badly decomposed body was identified partially by the little Mickey Mouse earring she still wore. At trial, the van Dam family was subpoenaed.
Westerfield’s attorney, Steven Feldman, actually claimed that the defendant felt threatened by Danielle’s father and managed to have him thrown out of court. Danielle’s mother, Brenda, had to sit there without her husband, listening to devastating testimony about the murder of her child. She was also ordered not to look directly at the jury, not to make any eye contact with them whatsoever. Danielle’s grief-stricken mom O B J E C T I O N !
1 2 7
was also forbidden by the court to wear a photo pin over her heart with the image of her dead daughter.
In August of that year, after the trial was over and Westerfield had been convicted of Danielle’s kidnapping and murder, I met with her parents. I will never forget Brenda’s lifeless voice that night at dinner.
Her eyes welled with tears as she described to me the way she and her husband were treated in court. The revictimization of the family that was allowed to take place throughout the trial was devastating to them.
Not only did they lose their daughter, they were mistreated by the justice system as well.
The same kind of battle loomed large in the Oklahoma City bombing trial in 1997—but with a twist. The defense for Timothy McVeigh objected to survivors’ simply gathering together to watch the trial—
which was moved to Denver—on closed-circuit television set up specifically to accommodate hundreds of crime victims and families. McVeigh’s defense vowed they would ban survivors who could conceivably be called as witnesses from attending the trial as well. While cameras have traditionally been banned from federal courtrooms, survivors petitioned the court to allow the closed-circuit hookup. Thousands were up in arms over the possibility that survivors would be excluded from seeing the trial. After a major court battle, the closed-circuit viewings were ultimately allowed, although most victims and their families are not so lucky. McVeigh got the death penalty and was executed in 2001.
One answer I have devised to address this issue is to force the defense to make a proffer, an evidentiary showing before the judge and outside the presence of the jury, as to why a family member or friend of the victim is under defense subpoena. If that purpose is deemed “trial strategy” by the defense and therefore properly kept from the state, the showing could even be made in camera, or behind closed doors in the judge’s chambers, and taken down by a court reporter. I believe the same rules should apply to the defense and the state. For 1 2 8
N A N C Y G R A C E
instance, in the preliminary hearing for the Scott Peterson trial, Peterson’s father, Lee, was called to the stand by the state in part to testify to the fact that he knew nothing of his son’s purchase of a boat until after Laci went missing. That is legitimate grounds to call a family member from the other camp. Lee Peterson was allowed to sit in the courtroom afterward. His testimony, once given, could not taint or be tainted by later witnesses. The same reasoning applied to the Rocha family, who was also allowed in court during trial, seated in row one.
The attorneys’ feet should be held to the fire as to the cause of the subpoena. In other words, hold them to their proffer. A simple way for prosecutors to avoid this whole issue is to call the family member or friend up front in their own case to allow cross-examination by the defense and then release the person as a witness. At that point, since the defense has had its chance to question the person at the beginning of the case, there is no reason to keep the friend or family member from the courtroom. The person should then be free to sit up front and center. If the defense’s stated reason for calling the witness turns out to be false, I firmly believe a contempt order for the lawyers is in order. The defendant is not biased and the outcome of the trial is not tainted, but the lawyer is reprimanded and punished for mistreating the victim’s family. Only when courts begin to protect victims’ families will their mistreatment at the hands of the justice system come to an end. Until then, the airbrushing continues.
E X T R E M E M A K E O V E R S
While the victim is all but airbrushed straight out of the courtroom, defendants get a little helpful airbrushing themselves. There’s a world of difference between the scowling perpetrator in his mug shot and that well-groomed, nice-looking guy seated between a phalanx of defense attorneys. It’s a transformation straight out of that creepy reality show The Swan, where contestants have tons of plastic surgery and then compete in a freaky “beauty pageant.”
O B J E C T I O N !
1 2 9
The murderous Menendez brothers got quite a makeover before their first trial in 1993. The two tennis-playing, sports-car-driving, silver-spoon-fed brats who brutally murdered their mother and father couldn’t have looked more wholesome at trial than if they were posing for a Brooks Brothers catalog. Think they looked all GQ when they were spattered with blood, dreaming up a story for the cops? To see them in court in their preppy getups, complete with pullover sweaters and button-down shirts, you’d think they were coming straight out of an accounting class at Yale. The icing on the cake was supplied by defense attorney Leslie Abramson, who was constantly petting and patting them while picking imaginary lint off their cashmere sweaters, as if she were comforting two little lost boys. Hello! This was their parents’ murder trial! You have to wonder how these nauseating displays of manufactured wholesomeness affected the jury. Obviously something worked, because the jury deadlocked in 1994. A year later, when their second trial began, the brothers grim weren’t so lucky. In 1996, they were convicted of murder.
A F A M I L Y A F F A I R
The Menendez trial still has not been put to rest.
The brothers’ convictions are on appeal in the Ninth U.S. Circuit Court of Appeals, a federal appeals court that reviews select cases out of state courts within their jurisdiction. Cases in state court are appealed directly to that state’s appeal’s court, such as the California Supreme Court. After that decision, either side can take the verdict up to a higher court, that being the district court of appeals. There are usually one to three federal district courts in each state, depending on the population. After making it through the district-court level, the lowest federal appeals court, the case goes on up to the circuit court.
There are eleven circuits in the country, divided geographically. California is governed by the Ninth Circuit, well-known as kooky all 1 3 0
N A N C Y G R A C E
around. Just so you get a sense of the jurists who will make the decision, keep this in mind: The judges reviewing the Menendezes’ verdicts are part of the same court that declared it illegal for a little girl in public school to utter the words “under God” in the morning Pledge of Allegiance. The Menendez appeal will, no doubt, rely heavily on the “mistreatment” of the brother defendants. I got an earful of their story on July 15, 2004, when I interviewed Tammi Menendez, the wife of jailed double murderer Erik Menendez, on Larry King Live. She married Erik in prison after his conviction and sentence to life without parole.
She started writing him when the first trial started. Naturally Menendez wrote back. During our interview, she told me that while watching the first trial, her “heart went out to him. I felt sorry for what he was going through. And I wanted to reach out and say I supported him. Then he wrote back, so . . .”
So she married him! She also moved her young daughter, around five years old at the time, all the way from her home in a small town in Minnesota to just around the corner from the maximum-security prison in California that Menendez calls home. It’s a family affair—she takes her little daughter to the prison for jailhouse visits in the family room with the other convicts.
In her mind, Tammi has managed to convince herself that the blame rests at the feet of Menedez’s partner in evil, his brother, Lyle, with this rationale: “He [Erik] was the younger brother. . . . I know that Erik wouldn’t have committed the crimes without [Lyle]. . . .”
Although Tammi doesn’t think so, the truth about Erik’s role in his parents’ murders is hard to swallow. That night we played a portion of the testimony at trial for her. Here’s what she heard: U N I D E N T I F I E D F E M A L E :
Did you empty the gun?
E R I K M E N E N D E Z :
Every shell I had.
O B J E C T I O N !
1 3 1
U N I D E N T I F I E D F E M A L E :
And what did you do after you
reloaded?
M E N E N D E Z :
I ran around and shot my mom. I was just firing as I went into the room, I just started firing.
U N I D E N T I F I E D F E M A L E :
In what direction?
M E N E N D E Z :
In front of me.
U N I D E N T I F I E D F E M A L E :
What was in front of you?
M E N E N D E Z :
My parents.
U N I D E N T I F I E D F E M A L E :
So you were firing at your parents?
M E N E N D E Z :
Yes.
I have a hard time dealing with the idea that it is so simple for someone who has heard the truth to gloss over it. Erik Menendez makes no bones about it—he shot his own mother in cold blood. I know he claims his father molested him, but no claims were ever made about his mother. I take his abuse claims about his father with a big box of salt. I wondered about Tammi’s personal ability to ignore her husband’s brutal ambush of his own mom. I wanted to try to get inside the mind of someone who professed to love a man who admits to savagely killing his mother.
Our conversation continued:
G R A C E :
It’s my understanding they’ve got life without parole. I would like to ask Mrs. Menendez a question. I just—
The dichotomy of shooting your mother dead and then 1 3 2
N A N C Y G R A C E
going out and hiring a private tennis coach. You know, when I was that age, I was working two jobs and going to school. A private tennis coach. Your mother is dead?
I just have a real problem with that. I know that you say your husband is sensitive, and I believe you, but do you ever allow yourself—I know love is blind, but do you ever allow yourself to think about the brutal nature of the murder of Mrs. Menendez, Kitty Menendez?
TA M M I M E N E N D E Z :
I think about it a lot, and I think
about the crimes, and I think about
what happened. But there again, I
understand the abuse that he went
through. And—
L A R RY K I N G :
But the mother didn’t do any of the abuse, did she?
M E N E N D E Z :
No. But psychologically, you know . . .
K I N G :
She supported the father.
M E N E N D E Z :
Very bizarre. Very bizarre house. A lot going on.
Very dominant father. There were many witnesses that testified to that.
I was obviously confounded at her decision to uproot her little girl to be closer to Erik Menendez. I asked about the effect the relationship may have on her daughter.
G R A C E :
I respect Mrs. Menendez, she seems like a kind and gentle person. But I worry about the little girl and O B J E C T I O N !
1 3 3
what possessed Mrs. Menendez to uproot her little girl and move her down the street from a jail.
M E N E N D E Z :
That’s a difficult question to answer. You know, for a while, I did not bring her into the prison system.
I kept her away from being subjected to that. But I brought her a few times for holidays, and she—
It’s not as bad as what people think, as far as the visiting room. She loves to go, and she doesn’t have problems with it right now.
K I N G :
But she’s going to grow up with some understanding of who her stepfather is.
M E N E N D E Z :
She will. She sees him on TV every now and then. I don’t let her watch anything that’s on, but she knows that he’s, you know, popular, and she deals with it very well. Psychologically, she seems to be fine with it.
K I N G :
Do you have any worries about Erik with her?
M E N E N D E Z :
Not at all.
K I N G :
Bad influence and the lot?
M E N E N D E Z :
He’s so good with her. He’s taught her a lot of good. He’s very gentle. He has more patience than I do.
This exchange proved to me that not all airbrushing begins and ends in the courtroom. When I think back on the interview with Erik 1 3 4
N A N C Y G R A C E
Menendez’s wife, I extend her mind-set to potential jurors. It strikes fear in my heart—a fear that those in a search for truth, responsible for the implementation of justice, could be like Tammi Menendez. Blind by choice. I pray it isn’t so.
U N F A I T H F U L
I watched every minute of former NBA star Jayson Williams’s manslaughter trial on my Court TV show, Closing Arguments. We learned during the trial that on the night he shot Gus Christofi, Williams had made fun of and derided Christofi for being hired help.
The limousine driver was far too starstruck to respond, much less walk off the job. Christofi had even brought along an instant camera, hoping to get a shot of himself with Williams. That never happened. Instead of a photo, Christofi got a gunshot to the chest that left him dead on the floor of Williams’s multimillion-dollar mansion.
That night, after a party with his posse, Williams had a snootful of booze and brought everybody back to his place for a “tour” of his mansion. Once in his bedroom, Williams took down a loaded shotgun from his gun case and cracked it open, then shut, while pointing it directly at Christofi, who stood only two feet away. The gun “went off,” although a witness testified he saw Williams pull the trigger. As Gus Christofi lay dying on the floor, there were no prayers, no last rites, no comfort or sol-ace for him by Williams. Instead, before the man was even dead, Williams wiped his own prints from the gun and grabbed the dying man’s hand, placing it on the gun to make it look as if Christofi had committed suicide.
During the trial, I watched Williams in court. It was an Oscar-winning performance. The serious and subdued defendant sported a huge silver cross on his lapel. I’m all for wearing crosses, but not when the crucifix is being used to sway a jury. Think about it: In all the years Williams played ball, do you recall ever seeing him wear a cross O B J E C T I O N !
1 3 5
around his neck, boast a Christian bumper sticker on his Mercedes, or even sport a tiny crucifix tie tack? Did he ever mention his religion on air during all the time he was an NBC sports analyst? No. But when push came to shove, Williams pulled out a giant cross lapel pin for his trial. After the jury acquitted him for the shooting death of Mr.
Christofi, a photograph was taken the next day of Williams on a patio of his mansion, where he and his wife were enjoying a big bottle of cham-pagne. He wasn’t wearing his cross.
D O G B I T E
When the Williams jury spoke, court watchers were stunned to hear they acquitted on the top count of aggravated manslaughter, deadlocked on simple manslaughter, only finding culpability on lesser charges like tampering with and fabricating evidence. But don’t worry, it ain’t over yet. After the stunning decision by the New Jersey jury, a jury that included one lady juror who reportedly had eyes only for Williams throughout the trial, the state swears they will retry the deadlocked counts. But that’s not the end of the story. In the first trial, trial judge Edward Coleman refused to allow prosecutors to introduce the similar transaction evidence regarding Williams’s dog, Zeus. The alleged incident happened in August 2001, six months before Christofi died in Williams’s bedroom after being shot in the chest.
In early 2004, in the midst of jury selection, a handwritten, anonymous letter made its way to the prosecutor’s office. The letter directed state investigators to locate and question Williams’s former teammate
“Dwayne somebody.” After investigators identified and tracked down the former Nets player Dwayne Schintzius, he told a shocking story about an August 8, 2001, incident when he, Williams, and another friend, Chris Duckery, went to dinner at the Mountain View Chalet. According to court papers, after returning to Williams’s home, Schintzius said he bet $100 that he could drag Zeus, a Rottweiler and reportedly a 1 3 6
N A N C Y G R A C E
trained attack dog, out of the house. Well, Schintzius said he did in fact get the dog out of the house, and when he won the bet, he told Williams to pay up. According to Schintzius an angry Williams stalked inside his multimillion-dollar pad, returned with a shotgun, and shot Zeus point-blank, killing him.
As if that weren’t enough, Williams’s ex-teammate reported that after shooting his own dog, Williams pointed the gun at Schintzius and told him to clean up the dog’s dead body “or you’re next.” Zeus’s remains were never found by investigators.
When the story got out, animal lovers went berserk, and rightfully so. It almost seemed as if more people were enraged over the shooting of the dog than of the person, Gus Christofi. As of this writing, the former NBA star now faces a full-court press by an animal-cruelty complaint for allegedly killing his dog with a shotgun. The New Jersey Society for the Prevention of Cruelty to Animals filed the complaint within months of the deadlock over the alleged incident with his pet, Zeus. By that time, of course, the statute of limitations for criminal charges on animal cruelty had expired, so the SPCA opted for civil charges carrying a maximum fine of $250.
At the time, Williams’s camp responded when Judy Smith, a spokeswoman for Williams, suggested that Jersey prosecutors had cooked up the whole thing and stated, “This is a blatant attempt to pile on and create publicity about an issue that a judge had already ruled has no place in the trial.”
As of this writing, prosecutors are asking the trial judge not only to retry Williams’s manslaughter case in Hunterdon County, the original trial venue and where the Christofi killing took place, but also to reconsider his earlier decision not to let the jury in the manslaughter trial hear about the alleged dog killing and yet another dangerous alleged shooting incident in the parking lot of the Meadowlands Sports Complex. Williams is currently scheduled to be retried on the remaining reckless-manslaughter charge.
O B J E C T I O N !
1 3 7
M O D E L M O M S
Could anybody ever forget Pam Smart, who arranged to have her husband murdered by a teenaged lover? Or Susan Smith, who buckled her two boys into their car seats before drowning them and blaming an
“unknown black man” for the crime? Those two presented like school librarians in court.
A review of “airbrushed” defendants just wouldn’t be complete without Sara Jane Olson, the doctor’s wife and mother of three who in a former life was known as Kathleen Soliah, a member of the terrorist group Symbionese Liberation Army. Authorities had been looking for Soliah for years because of her involvement in the terrorist group’s plot to plant bombs under two police cruisers in 1975 as revenge for the killing of six SLA members earlier that year. Before Olson was indicted in 1976, she left California, changed her name, and started a new life.
The woman who eluded authorities for over two decades had recast herself as a church volunteer and soccer mom. During an interview with ABC News after her arrest, she described herself as “just an average American woman.” Not exactly. Her photo had appeared on the television show America’s Most Wanted in a segment on the twenty-fifth anniversary of the deadly activities of the group. The FBI was offering $20,000 for information leading to her arrest.
In June 1999, while she was on her way to teach a citizenship class to recently arrived immigrants in St. Paul, Minnesota, she was pulled over by police. At the time she was arrested, she was also wanted in connection with a 1975 bank robbery in which Myrna Opsahl, a forty-two-year-old mother of four, was murdered. “She can change her name, and she can pretend to be a model citizen,” said Jon Opsahl, whose mom was gunned down at the bank where she had gone to deposit the money from her church’s offering plate. “But I just want her and everyone else to know that she really can’t earn that status, because twenty-1 3 8
N A N C Y G R A C E
five years ago she helped murder a true model citizen: my mother.” Opsahl could see through the airbrushing.
Worried that a jury might see through it, too, Olson derailed plans for what was sure to be a sensational trial and took a plea bargain in October 2001, pleading guilty to two counts of possessing explosive devices with intent to murder police officers. Moments later, she denied her guilt to reporters, saying she feared she couldn’t get a fair trial in the wake of the September 11 terrorist attacks. The judge handed down two mandatory sentences of ten years to life, which Olson accepted on the condition that she would serve only five years and four months. But that wasn’t the end of it. The Board of Prison Terms stepped in and amended her sentence to fourteen years to life. The saga continued in 2002, when Olson’s lawyers appealed that decision. Ultimately, Sacramento Superior Court judge Thomas Cecil agreed that the board had ruled improperly. Despite pleas for leniency, Olson wound up getting thirteen years in prison. Olson couldn’t airbrush away her past, but she did rack up a pretty steep bill for the taxpayers while trying.
Speaking of soccer moms, the ultimate acting award should probably go to Betty Broderick. Meredith Baxter portrayed Broderick in a made-for-TV movie that chilled viewers to the bone. Broderick basically lived in a jealous rage after her husband, Dan Broderick, a promi-nent California lawyer, divorced her and married a younger woman.
Being angry about the turn of events is understandable, but leaving hundreds of obscene messages on the newlyweds’ answering machine and then plowing her car through their front door was a little over the top.
On November 5, 1989, Broderick broke into their home late one night and executed the couple as they slept in their bed. She was a woman seething with out-of-control rage.
To see Broderick in court, though, with her sensible blond bob, understated makeup, and classic sweater set, you’d think she was on her way to volunteer as a pink lady at the hospital. Broderick stood trial for the murders twice. The first trial, in October 1990, ended in a hung jury. Twelve months later, the jury from the second trial convicted on O B J E C T I O N !
1 3 9
two counts of second-degree murder. I believe one of the reasons the jury ultimately saw through her facade was that the prosecution had managed to introduce some of those hateful answering-machine messages to legally show Broderick’s frame of mind. In doing so, they exposed her for what she really was—an angry and hateful monster.
There are only a few ways for the jury to get to see the real defendant. Mug-shot photos and videotaped statements made at the time of the search or arrest can offer a glimpse of the person as he or she was at the time of the alleged crime. Mug shots are often kept out of evidence under the claim that they are of little evidentiary value. Not so. I once had a mug shot taken of a drug offender wearing the same easily identifiable thousand-dollar workout suit at the time of arrest that matched the eyewitness description of another drug deal that had gone down a few days before. How much more relevant can a mug shot get?
Remember those mug shots of a drunken Nick Nolte, Diana Ross, and Glen Campbell? They may look pretty buttoned up and straitlaced in court, but the police photos tell the jury the real story about the night of the arrest—they were drunk and they were driving! Those mug shots and those videotaped statements should be admitted into evidence.
They enhance the testimony of cops and eyewitnesses like nothing else.
Don’t believe me? Go online and check out Nick Nolte’s mug shot. I rest my case.
I T ’ S
A R A P ( S H E E T )
A defendants’ makeover doesn’t end with a few cosmetic changes.
The defense is allowed to rewrite history and pretend in front of the jurors that the case they are trying represents the defendant’s very first brush with the law. To hear it in court, most defendants are as pure as the driven snow and land in court due to a huge misunderstanding or poor policing. What the jury doesn’t know is that a large percentage of defendants on trial are repeat offenders. Under our justice system, a 1 4 0
N A N C Y G R A C E
jury may not be told that the defendant has a rap sheet as long as a football field, a propensity for crime, and a knack for working the system.
The reasoning behind this ruling is so the jury will decide the case on the facts, not on the defendant’s track record. Even more disturbing is that more often than not, similar transactions are disallowed from evidence. It’s true—when defendants have committed a “fingerprint crime” before—same scheme, same design, same MO, same jurisdiction even—the jury rarely knows about it.
In the Jayson Williams trial, even though Williams faced charges stemming from a deadly mix of guns and violence, the jury never heard evidence that this was by no means his first encounter with either. Although the jury did learn that the athlete had shot and killed the unarmed Christofi, the judge tossed out evidence that the defendant had brutally shot his dog in the head when the animal didn’t behave as Williams wanted. He even threatened to shoot the friend who’d witnessed the dog’s cold-blooded shooting. We knew that Williams had grabbed a gun and shot out the tires of a security van parked in a public parking lot at the Meadowlands Sports Complex, but the jury didn’t. The charges were dropped after Williams agreed to enter a pretrial intervention program. Instead, the jury heard in opening statements that Williams was just a big “teddy bear” who’s all about love. The jury never had a clue, and that’s how the judge wanted it. The most shocking exclusion: The judge ruled out evidence that the former NBA star was intoxicated at the time he shot Christofi to death. It’s downright baffling, especially when you consider that Williams had run up a $600-plus bar tab with his friends that night and registered a blood-alcohol level of 0.12 a full eight hours after the shooting. (The state’s standard for intoxication in 2002 was 0.10).
The rules regarding similar transactions are extremely draconian at present, often including time limits as to how far back the state can go to show prior bad acts. Such time limits thwart the system. For instance, that type of time limit could conceivably preclude Michael Jackson’s 1993 civil settlement arising out of alleged child molestation O B J E C T I O N !
1 4 1
from being heard by a jury, as it is over ten years old. It’s likely a jury will never hear the actual number of young boys who claim Michael Jackson fondled or molested them.
In the Scott Peterson case, there was partial suppression of blood-hound evidence indicating that Laci’s body, not Laci in life, had been in Peterson’s office storage unit. In the Jack Kevorkian trials in 1999, the jury never knew exactly how many people he had “assisted” in their own deaths.
I call for past bad acts to be allowed into evidence, especially when they are probative as to the motive or state of mind of the defendant or the victim. Until the courts relax the rules, toss out inappropriate time limits, and allow the jury to know the truth, the whole truth, and nothing but the truth, the airbrushing of defendants’ true nature will continue.
T H E D E A D C A N T E L L
N O T A L E S
They’re called dying declarations—the last words uttered in life by victims. Defense teams in courtrooms across the country stay up nights trying to find ways around letting these words make their way to a jury.
Now, under a U.S. Supreme Court ruling made in 2004, U.S. v. Craw-ford, calling for the cross-examination of such a statement before it can come into court, it is highly unlikely they ever will. When Ted Binion was murdered, the crime scene was set up to look as if Binion had overdosed on heroin. After Binion was found dead, Rick Tabish, the lover of Binion’s girlfriend, Sandy Murphy, was discovered out in a secret location in the desert digging up Binion’s buried silver bullion.
The night before the millionaire’s murder, Binion called his lawyer. In that call, Binion said he wanted to change his will to cut Murphy out of it. At the time, he stated, “If I’m dead, you’ll know what happened.” He didn’t make it through the night. After a jury conviction, an appeals 1 4 2
N A N C Y G R A C E
court ruled that Binion’s last words were inadmissible because of a hearsay challenge, and the case was reversed.
In 1999, Rae Carruth, the former NFL wide receiver for the Carolina Panthers, was charged with masterminding the murder of his girlfriend, Cherica Adams. The couple had gone to a movie one evening in South Charlotte, North Carolina, and left the theater in separate cars. The twenty-four-year-old Adams told a hospital nurse that while Carruth’s white Ford Expedition hit the brakes in front of her black BMW, another car pulled up directly beside her. The driver opened fire on her. Four bullets hit her in the back, damaging her stomach, liver, and right lung. Despite her injuries, Adams was able to call 911 on her cell phone.
According to court papers, Adams became immediately suspicious that Carruth was behind the shooting. During the trial, one prosecution witness said he heard police ask the victim who she thought was responsible for the shooting and she replied, “My husband, I mean, my boyfriend.”
Adams was rushed to the hospital, where she delivered her and Carruth’s son ten weeks early. She managed to hang on, slipping in and out of consciousness for a month. During that time, she recounted three pages of notes filled with her recollections about the shooting. In December of that year, Adams died. Her baby was stricken with cerebral palsy for life as a result of the shooting. Adams’s mother is left to raise her grandson now that her daughter is dead.
What could possibly be the motive in such a hideous crime? In 2000, at the beginning of the trial, prosecutors said Carruth set up Adams’s murder because he didn’t want the baby and had no desire to pay child support. The dying words of Cherica Adams lived on and were allowed into evidence, over the strenuous objections of the Carruth defense. This instance firmly supports a change in the law to more freely admit dying declarations and spoken fears by the murder victim.
Will similar evidence be admitted in the Robert Blake murder trial?
I have spoken many times with Bonny Lee Bakley’s sister, Margerry Bakley. She described in chilling detail how her sister was afraid of O B J E C T I O N !
1 4 3
Blake even after giving birth to his child, Rose. Margerry Bakley told me Bonny Lee stated that she feared Blake would murder her and claimed that he had even shown her a bullet and said, “This has your name on it.” In my assessment of the pretrial rulings Judge Darlene Schempp has made so far, including completely dismissing the case of Blake’s codefendant, Earle Caldwell, in 2003, I find Schempp incredibly defense-oriented. I pray that Bakely’s own words of premonition and warning as to her own murder will not be suppressed in court by the judge at the request of the defense. The victim, Bonny Lee Bakley, must be heard.
C H A P T E R S I X
T H E P O W E R O F T H E S TAT E
I S A M Y T H
IF YOU BELIEVE IN SIGNS—AND I DO—CONSIDER
that Lady Justice gave us a powerful one around the time of the manslaughter trial of former NBA star Jayson Williams. High up on the roof of the Somerville, New Jersey, courthouse where the case was heard, she stood blindfolded with her sword in one hand, the scales of justice in the other. For decades, that statue has proudly presided over the courthouse and all that has gone on within its walls. But as the Williams acquittal and mistrial approached, a windstorm brewed outside and ultimately the powerful winds tore the scales from Lady Justice’s hands and robbed her of her ability to weigh the truth.
Throughout the trial, Williams’s well-known defense attorney, Billy Martin, constantly referred to all the “power” of the state’s investigators and police that had come down on his client. The truth, in fact, was quite different. Before Costas “Gus” Christofi was gunned down with Williams’s twelve-gauge shotgun, the police had admired the athlete.
When they arrived on the scene after the shooting, they certainly were not there to frame him. But that didn’t stop his attorneys from referring to all the state’s witnesses as part of one big plot out to get Williams. It simply wasn’t true. There was, in fact, a conspiracy going on—the one Williams and his posse had orchestrated. Williams was acquitted of the O B J E C T I O N !
1 4 5
most serious charge of aggravated manslaughter, and the jury deadlocked on the lesser count of reckless manslaughter. So much for the all-powerful state railroading an innocent man.
Another athlete—O. J. Simpson—claimed police had framed him, as did David Westerfield, the convicted killer of seven-year-old Danielle van Dam. Westerfield also claims that the girl’s family was in on the plot to get him. During Winona Ryder’s shoplifting trial, her defense attorney, Mark Geragos, claimed that the security guards at Saks Fifth Avenue in Beverly Hills were part of a plot to set up one of America’s most popular celebrities. As defenses go, it’s a pretty common argument: The state is always out to get its client. The thinking behind the claim is, the state will do anything and everything in order to secure a conviction—as if a conviction will somehow get that prosecutor a raise or a promotion or a big fat bonus check. That’s not the way it happens. The morning after a trial, prosecutors go back to their offices to wade through their mountains of unopened mail and all the new files that have piled up on their desks while they were in court. They settle in and begin all over again. There is no raise. There is no promotion. There is no big fat bonus for a conviction. There is, however, a new set of crime victims calling out for help.
The reality is that “the state” is the individual prosecutor making the case and taking the heat. In order to buy the defense’s conspiracy theory, you must believe that the individual—the local county prosecutor—wants desperately to send the wrong person to jail and that the prosecutor is somehow morally dedicated to a conviction regardless of whether it’s right or wrong. That’s completely absurd.
I have great faith in the Constitution, which was conceived and created in part to protect the accused—the defendant—on trial from the power of the state. The trial-related personal freedoms in the Bill of Rights protect the defendant—not the victim and certainly not the prosecution. The defendant has the right to trial by jury, not the state.
In many jurisdictions, if a defendant wants a bench trial (with no jury), he gets one, whether the state agrees or not. It is the defendant who has the right to appeal over many issues, not the state. Practically every 1 4 6
N A N C Y G R A C E
conviction at trial is appealed, be it a shoplifting or a murder one case.
And if the defendant can’t afford an appellate lawyer, he doesn’t have to worry! We pay for the appeals process for him!
When a jury acquits, however, that’s it for the state. The prosecution normally doesn’t get to appeal. The case is over. The state bears the burden of proof and must go forward with evidence at trial while the defendant has the Fifth Amendment right to remain silent. The accused quite often neither takes the stand nor puts up a single shred of evidence or a single witness. It’s all okay under our Constitution.
The burden is also heavily on the state during the pre-trial “discovery” phase. The state must hand over evidence to the defense well before trial, including witness lists and scientific or crime-lab evidence such as fingerprint and DNA results, statements, and police information. The defense, even in states that tout reciprocal discovery, hands over far less to the state, and when it doesn’t, either by accident or by design, there are few or no repercussions when the defense disobeys the rules. Here’s why: If the defense hands over the name of an “expert” just before that witness is to be called, theoretically, under the rules, the defense can’t call the expert because it didn’t play fair and allow the state time to prepare. The reality: If the defense is in fact stopped from calling the witness, there will likely be a reversal on appeal, because the accused was not allowed to present his entire defense. The state would have to start all over with a new trial, from square one. Rarely does the state choose that option. If the reverse happens, the witness or evidence will be excluded or a long delay in trial granted in order for the defense to prepare for the new evidence. We saw this scenario play out several times in the Scott Peterson trial, each time resulting in an extended delay. Delays such as that traditionally work strongly against the state during a trial.
When it comes down to what goes on in the courtroom, it’s the state versus the massive power of the defendant’s constitutional protections.
But the defense, even with multimillion-dollar pockets for investigators O B J E C T I O N !
1 4 7
and experts, will argue to a jury that the prosecution’s the one with un-limited resources and manpower to prosecute the “little guy.” We also saw this argument in the Peterson case. In truth, Geragos ended up with some of the world’s most renowned experts, like Dr. Henry Lee and Cyril Wecht, at his beck and call.
In practically every case I’ve ever covered or tried, I’ve heard the defense refer to the overwhelming power of the state. In doing so, the lawyers suggest to a jury that at trial everything was stacked against the lone defendant seated at the counsel table. When I was prosecuting, I felt that the exact opposite was true—and still do.
I never know whether to laugh or cry when I hear defense attorneys attack the all-powerful state. It reminds me of something that happened early in my career. I was on my way to answer a calendar call where the first case of the day was a murder trial. The shooting had left one man dead and another with a colostomy bag for life. All over a handful of
“dope ropes”—gold chains—on display in the showcase of a pawnshop.
En route, I had to wait at a red light several miles away from the courthouse. While my car was stopped, dark, foul-smelling smoke began pouring out from under the hood of my Honda. I didn’t have the time or the money to fix the thing, so I just kept driving, hoping it would keep running. That morning, I sat there thinking about the trial, wondering if I would end up smelling like exhaust fumes when I got to the courtroom.
I looked over to the left, expecting to see another driver staring at my smoking hood and holding his nose, but instead there was a huge tractor-trailer sitting there. He could either go straight or turn left—I could only turn right. But when the light changed, he took a right turn, his giant wheels literally rolling over on top of my car. Guess what? The
“state” screeched to a halt that morning because I wasn’t there to present its case. The “state” was stuck at a red light with a tractor-trailer on its hood. The state that is spoken of so anonymously, as if it’s this secret agency, is really a collection of people who are public servants pursuing justice. In this case, the state was a person standing in front of the jury 1 4 8
N A N C Y G R A C E
with big dark circles under her eyes and resoled shoes. That is the state, okay? That is the state. And that’s what people really don’t get.
Another popular strategy among defense attorneys is to characterize the prosecutor as this Darth Vader–ish figure whose limitless power is hell-bent on persecuting and destroying helpless defendants with a single motion. I promise you, I never felt that sense of invincibility trudging through housing projects in my $39 dress from Chadwick’s, trying to deliver subpoenas to witnesses who weren’t exactly happy to see me at their front door. I did, though, always draw great strength from believing deeply that I had right on my side. I felt the same way every time I entered a courtroom. Speaking directly to a jury as I began my opening statement at trial, I would always be reminded that the real power of the state is the power of right, the power to do right. That is the one real power of the state.
M O N E Y T A L K S . . .
J U S T I C E W A L K S
The defense frequently and easily outspends the state—especially in high-profile cases. I have no problem with a high-priced defense, as long as a jury is not tricked into an acquittal. The defense likely outspent the state in the Jayson Williams trial as well as in the O. J. Simpson “trial of the century.” Here’s a little-known fact: Often when defendants don’t have the money to outspend the state, the defense can get public funds by petitioning the court for money to compensate experts. We the taxpayers pay for that. Our system guarantees a free lawyer if a defendant cannot pay for one, and at trial that is extended to include defense investigators and experts as well. Keep in mind that when the trial is over, if it ends in a conviction, the taxpayer also pays for the lawyers on appeal; and in some cases appeals go on for ten to fifteen years and wind their way all the way up to the U.S. Supreme Court.
We have recently passed the fortieth anniversary of the landmark O B J E C T I O N !
1 4 9
case that made it possible for the likes of Timothy McVeigh, Terry Nichols, the Menendez brothers, the D.C. snipers, and countless others to rack up exorbitant costs at trial and hand the taxpayers the bill. Before the case of Gideon v. Wainwright, indigent defendants who were accused of crimes could be convicted and sent to jail without the benefit of a lawyer. The Supreme Court reformed that practice in 1963, ruling that the Sixth and Fourteenth Amendment rights to counsel and to equal protection under the law apply to poor and rich alike.
The kicker is that we, the taxpayers, foot the bill for both the local public defenders appointed to criminal cases and private, high-priced defense lawyers, as well as their posse of consultants, experts, and investigators. In California, David Westerfield and killer brothers Erik and Lyle Menendez hired private lawyers initially. But when the well runs dry, as it did in those cases, the public pays. The rationale is that defendants who have built up a relationship with a specific attorney can likely keep the attorney even if they cannot afford to because there’s always us—people like my parents, who worked all their lives—to foot the bill.
The costs incurred with these cases are immense. Lawyers’ fees in capital cases range from $500,000 to $1 million. In the Menendez case, Leslie Abramson represented the defendants in their first trial, which ended with a hung jury. At retrial, when the two had run through all their dead parents’ money, the judge appointed the high-paid lawyer to the case because she knew the case thoroughly. The same thing happened with Westerfield’s defense. Renowned lawyers Steven Feldman and Robert Boyce represented him at trial for huge fees. They later advised the court that they had used up all their client’s money, including nearly $500,000 realized from the sale of his house. The judge booted them from the case in favor of cheaper counsel. An appellate court later reversed that decision, and the much more expensive team was reinstated. Check your tax bill for the damage.
The defense of the Washington, D.C., sniper John Allen Muhammad and teenage gunman Lee Boyd Malvo cost Virginia taxpayers more than $1 million. The defense bill for Muhammad was up to $900,000 as 1 5 0
N A N C Y G R A C E
of spring 2004. The cost of their appeals will drive the tab even higher.
Virginia doesn’t put a cap on lawyers’ fees in capital cases, where their hourly rate hovers around $150 per hour. Taxpayers paid nearly $60,000 on expert witnesses for Malvo alone. The total for his defense as of May 2004: $1,021,337. And before you choke on the $4 million defense we provided for Oklahoma City bomber Terry Nichols, compare it to the outrageous $13.8 million bill we paid for the defense of his confederate, convicted mass murderer Timothy McVeigh.
Consider this tidbit from our legal system’s strange but frighteningly true files: North Carolina residents picked up part of the tab for the defense of Rae Carruth during his trial on the murder-for-hire case of his pregnant girlfriend, Cherica Adams. The cost of paying defense attorneys David Rudolph and Christopher Fialko proved too much for the wide receiver who was paid a reported $40,000 a game. The state picked up the slack. Rudolph justified the state-funded end run around justice at the time by saying, “The only important thing is that Rae Carruth is receiving a competent, caring defense.”
Under North Carolina law, defendants in capital (death-penalty) cases have the right to two publicly funded attorneys who are supposed to be paid $85 an hour, but the final compensation is up to the trial judge. In high-profile cases like Carruth’s, where the attorneys are savvy and aggressive, judges will grant extra money for experts and even jury consultants. Residents wound up paying more than $100,000
for Carruth, who was found guilty of conspiracy to commit murder but walked on the first-degree murder charge. I wonder who will pay for the care and feeding of his son, who was born with cerebral palsy because of the hit he ordered on his baby’s mother?
Now consider this: How did a California fertilizer salesman pay for attorney-to-the-stars Mark Geragos’s services? It’s a mystery. At the time of his arrest, Scott Peterson stated he could not afford a lawyer, and the court appointed a public defender. In an interview with People magazine, the Petersons refused to comment on what they were paying Geragos to defend their son, but did say he wasn’t doing it pro bono.
O B J E C T I O N !
1 5 1
Estimates put his fee at $1 million. Forensic expert Henry Lee and medical expert Cyril Wecht, who are also part of Team Peterson, don’t come cheap either. Reports indicated that many members of the Peterson family (including Scott’s siblings) have taken out second mortgages on their homes and run through a good chunk of their savings—and that was before the trial even started!
As discussed in an earlier chapter, I strongly suspect the state footed at least part of the bill. The alternative would have been to appoint a new, court-appointed legal team midway through trial, like the local public defenders who had the case to begin with. This is tantamount to starting over from square one. You can almost guarantee that it would be argued that such a move would slow down the trial and put Peterson at a disadvantage, having a new lawyer unfamiliar with the case now trying to play catch-up. Both are true. Although a public-defender-based team would not incur legal fees, as PDs are already paid a salary by the state, it is highly likely the court would have left Geragos on the case at a reduced fee. On appeal, the Peterson tab continues to mount.
Y O U R T A X D O L L A R S A T W O R K
Another misconception about “the power of the state” is the myth that the government—the evil empire—is taking in billions and billions of dollars in taxes that somehow go to help in convicting innocent people of crimes they didn’t commit. That’s simply ridiculous! I’ve often wondered what happens to all the money I’ve been paying in taxes all these years. What I see is Congress spending millions and millions of dollars on an outrageous list of projects that are nothing more than political boondoggles.
As I write this, I have just learned that Oregon prisoners now have flat-screen TVs to enjoy in the privacy of their own jail cells! Although the Oregon State Correctional Institution’s administrator, Randy Geer, 1 5 2
N A N C Y G R A C E
contends that the televisions are “not a luxury item,” the fact is, the Salem prisoners now get to kick back on their bunks and enjoy brand-new flat-screen TVs that most of us on the outside don’t have. The seven-inch sets are copies of flat-screen models in cars and airplanes.
The inmates contribute to the cost of the sets from money they’ve earned while working in prison, but related costs are all paid for by the taxpayer. Oregon is not alone in making prisoners feel at home behind bars. Fifteen other states allow in-cell televisions.
Still a skeptic? When I think of all the rehabilitation programs, probation officers, and investigators currently needed around the country, the following is even more disturbing. Take a look at this short list of the government’s pork project initiated after 2001. These are your tax dollars at work:
$50 million to build an indoor rain forest in Iowa $1.5 million for a statue of the Roman god Vulcan in Birmingham, Alabama
$489,000 for swine-waste management in North Carolina $273,000 to help Missouri combat “Goth culture”
$50,000 for a tattoo-removal program in California $26,000 to study how thoroughly Americans rinse their dishes
$4,572 given to Las Vegas Helicopters, a company that performs airborne weddings officiated by Elvis Presley impersonators as part of a post–September 11, 2001, aid-to-airlines package
Those are just a few examples of the government’s penchant to spend money on just about everything—except the justice system.
O B J E C T I O N !
1 5 3
These are funds that could be used to staff hotlines, hire victims’ counselors, and add desperately needed child-welfare workers, prosecutors, investigators, public defenders, or additional state court judges. The search for justice is shortchanged once again.
S L A V E W A G E S
Cops and prosecutors are underpaid and overworked. I know that many people in many walks of life can make the same claim, but it strikes me that nobody is calling most of them out onto the street at 3:00
A.M. to stop a gunfight, a drug deal, or a domestic dispute. I can’t even count the number of times police officers came in on their free time to go out with me to take crime-scene photos and help me work cases.
When the bank alarm goes off down the block, everybody in the diner doesn’t look at each other to hop in their cars and run over and shoot the robbers—we all look to the cops. When our kids go missing or the house is burgled or the car is stolen, they answer the call. And the fact that they live on such low pay for such dangerous and important work is shocking.
It’s much the same for prosecutors. In my case, coming off Law Review, I started out at $31,000 and after ten years of hard litigation, never got past $50,000. After prosecuting all day, I held down two different night jobs to make ends meet. I taught law classes at a downtown university in Atlanta, one in the law school and one in the undergradu-ate school. Many prosecutors have second jobs because state and federal salaries are so low. Lawyers in private practice make double or even triple what prosecutors do. I’m not complaining—I continued to prosecute because it was what I wanted to do and why I had gone to law school in the first place.
I’m not saying it wasn’t hard, though. I can still remember coming home after class at nearly 10:00 P.M. and cutting my grass because I couldn’t afford a lawn service to do it. The neighbors were so good; they 1 5 4
N A N C Y G R A C E
never complained. I wondered—and still wonder—how cops do it.
They have families to feed and second jobs to work through the night after they finish their shifts.
Low pay is a problem on the federal level also, to the extent that it’s actually causing a defection within the FBI. It also raises the risk of corruption and espionage. FBI officials have been quoted as saying high debt resulting from low pay could make agents more vulnerable to offers of spying on the United States for cash. Taking the oath of public service is more like taking a vow of poverty.
According to an April 2004 report in USA Today, the base salary for new FBI agents is about $39,000. Houston cops start at $28,000.
Chicago weighs in at $37,000, and in the capital of the world, New York City, rookies start at $44,000. Okay, Officers, rush out of the police station and stop a bullet for that!
Aside from rudimentary cost-of-living raises, salaries have not changed appreciably for the last decade. Think about it: Within that short time span, two U.S. counterintelligence agents were convicted of selling secrets to the Russians. Earl Pitts and Robert Hanssen both went down in history as traitors, making money off the sale of U.S. security secrets. Those are the two we know of.
Forget what you’ve seen in the movies. Prosecutors, unlike their silk-stocking opponents on the other side of the courtroom, very often do not have an army of flunkies and assistants. To prepare for a morning calendar call of, say, a hundred cases, I would sit in my office and dig through five or six boxes sent from the district attorney’s office trying to find the eighty files I needed for the next day’s arraignment.
Without fail they’d be in the wrong offices or lost in the filing room.
Hours would be spent just gathering cases for a calendar call—much less preparing for trial. There were no secretaries, no assistants, no paralegals. I wish I had a nickel for every time I had to go to the crime lab to drop something off or pick something up. I’d be rich if I had a dollar for all the days I had to drive to the police station, where I’d be O B J E C T I O N !
1 5 5
hassled about where I parked when I was there to pick up fingerprint cards or a police report or simply to drop off a subpoena.
I can’t even guess how many times I would go to the local 7-Eleven to get two or three packs of film for my Polaroid camera. It would kill me, because at the time they were $8 a pack. I needed the film to take additional crime-scene photos to show to the jury the next day. If something came up during the trial that I wanted the jury to see, I would drive over to take pictures and tromp around in my high heels getting whatever I could. I kept my camera in the backseat of my car until it was stolen (twice) during a trial. Thieves busted out the back window of my Honda to get the cameras or the car phone (they were installed then), and the office threatened not to give me another one. I started locking it in the trunk when I went to scenes.
I often bought my own supplies to use for visual aids at trial and never turned in my receipts because I was convinced that the district attorney would think I’d been extravagant in buying markers and artist’s poster board—the big, thick kind a jury could see from a distance. Before closing arguments in a case, I would go to a local crafts store to pick up what I needed, then stay up half the night, crouched on the floor, listing summation points in blue marker on the boards from my trial notes. I can still hear them squeaking across the matte white surface. I’ll never forget the sharp smell of the ink that always seemed to wind up all over the sides of my palms. That was the extent of the high-tech razzle-dazzle I used to wow juries.
My state-of-the-art visuals threatened to break the bank in State v.
David Lindsey Cook, in which the defendant was accused of murdering his wife. For months before trial, I had to ambush his friends and colleagues in parking lots all over town to personally hand them a subpoena duces tecum—a demand for documents. Those documents were the defendant’s handwritten letters, composed behind bars, detailing how he planned to trick the system by acting crazy to get an insanity verdict. Cook first claimed that his wife’s death was suicide and then 1 5 6
N A N C Y G R A C E
argued that if he had committed murder, he’d been insane at the time.
His friends and relatives begrudgingly handed over the letters that outlined his plan. I had the letters blown up at a local Kinko’s to show them in enlarged detail to the jury. That cost money I didn’t have at the time and I knew the D.A.’s office didn’t have it in the budget, so I had no choice—I charged it!
F O R T H E L O V E O F M O N E Y
In 1987, in the first major drug case I tried, I was up against Bob Fierer, ironically pronounced “fear.” He was by far the slickest defense attorney in Atlanta. This wasn’t a case where the accused was a street-corner hustler or a drifter nailed at a traffic stop with a joint in his ashtray. This case involved a huge chunk of pure, uncut cocaine worth millions on the street.
I remember reading the file and driving by the luxury high-rise where the drugs had been discovered. I wanted to see what I could before the first calendar call on the case. The building was in Buckhead—one of the swankiest parts of Atlanta, home of multimillionaires, an area where old money is mixed with that of rich up-and-comers. The next morning, I got to court early. The defendant had managed to get out of jail on a huge bond before I was assigned the case. I naturally would have opposed bond, with such a large amount of uncut cocaine involved. What that indicated to me was that the defendant, Charles Ehrlich, also known as
“Charlie Tuna,” was no amateur but a major drug distributor in the city.
That morning in court, though, it was the lawyer himself who bowled me over.
For the first time in my practice of law, I was acutely aware that I was the underdog. Robert Fierer was wearing a suit that had to have cost $4,000. His shoes were polished Italian leather, his cuff links had diamonds in them. Even his hair was perfect—I found out later he got it highlighted every three weeks like clockwork (while I was still using bleach from the drugstore). I even noticed his nails, which were, of O B J E C T I O N !
1 5 7
course, perfectly buffed. His briefcase had that dull glow of expensive leather. My files were organized in a plastic mail carrier’s box with handles on either side that I’d found in the hall of the courthouse. That’s when it hit me like a ton of bricks—I was outgunned.
I was a novice prosecutor, and at the time I didn’t know a thing about organized crime. Ehrlich was clearly a player of some sort in a drug cartel, serving as the distribution hub in that part of Atlanta.
Amazingly, his bust came about by accident. Ehrlich had received a FedExed brick of pure, uncut, white cocaine in the lobby of his apartment building. When it was delivered, the doorman signed for the package on behalf of the tenant. As I worked with that doorman (who, I quickly learned, was not, let me say, afraid of a cocktail) during one of our many interviews, he explained how he discovered the contents of the package. He told me that ordinarily he never looked in people’s packages, because he could lose his job over such a violation. On the night Ehrlich’s box was dropped off, the edge of the package was already torn open, and the doorman could clearly see inside. The brick was obvious, so he called the cops. When the police searched “Charlie Tuna’s” apartment, things got even worse. They discovered that the place was wired, so he’d know if someone got in. Cops found a silencer in the closet. Who needs a silencer? That did it. This was a bad guy, and he had to be stopped from poisoning the streets of the city.
I knew this constituted a warrantless search when there’d been plenty of time to get one, but those rules are for the cops conducting a search (the opening of the package), not private individuals like neighbors or doormen who spot your friendly messenger service dropping off cocaine. With Fierer as the defense, I knew he would have a fleet of assistants poring over the law as it applied to these facts, so I had to get ready. I researched for days in order to prepare for what was sure to be a down-and-dirty court battle. On that first day, I felt ready and armed to the hilt with law and testimony for the suppression hearing. According to my research, this was the bottom line: Sorry, Charlie, but the Constitution doesn’t protect you from the doorman.
1 5 8
N A N C Y G R A C E
For the first day of the trial, I wore my lucky black trial dress and shoes (recently resoled) and got to court early to set up all my legal documents. I sat behind the state’s table, closest to the jury box, with the beat cop on the case seated beside me. We had been through a lot together working the case. His part was done—it was now up to me to win the legal battle. Right before court was gaveled into session, Fierer, who stood six foot three, strode into the courtroom looking like a quarterback about to toss the winning touchdown. Instead of going to counsel table, he went straight up to the bench, where, as if by cue, the judge came out from his chambers, black robes flowing, hand extended to shake Fierer’s. They both broke into broad smiles and chatted like old friends. My heart sank.
Were they friends? Had Fierer dumped lots of money in the judge’s last campaign for the bench? I didn’t know what to think. Without looking at them, I strained to hear what they were saying but couldn’t. I sat there stunned when I realized what favoritism could mean to my case.
The defense announced it wanted a bench trial—one without a jury.
I fought the motion, which of course offended the judge, and was overruled. The sole decision in the case would be that of this judge. I couldn’t do anything but argue my guts out. I knew to at least act as if I were used to arguing against lawyers of Fierer’s caliber. Then it was time for witnesses. I put up the beat cop first to pave the way for the weaker witness, the doorman. From what I could tell, the doorman was stone-cold sober, and he testified looking straight up at the judge, like an angel singing—to me at least. At the end, I argued not just the law but the importance of the case. I spoke about how all the eyes of the community were on this courtroom, how so many people were counting on us to do the right thing. I had little hope when the judge went to chambers and left us to stew, waiting on the ruling. The Honorable Don Langham honored the bench and ruled for the state. The cocaine was in evidence. The case was over. My faith in the system, including judges, was bolstered.
Afterward Fierer refused to speak to me. He just gathered his files as if nothing had happened and stormed out of the courtroom. He didn’t speak to me for a very long time after the trial, which was perfectly O B J E C T I O N !
1 5 9
okay with me. Even when we’d meet in the courthouse elevator, just the two of us, we were like two wet cats in a barrel.
Here’s an interesting postscript to the story: Ehrlich went to jail, and Fierer continued his high-flying, high-profile practice of law. We never crossed swords again. But years later, the feds launched a secret investigation of Fierer and his alleged practice of scamming clients out of hundreds of thousands of dollars. It boiled down to a carefully executed scheme in which Fierer and his associates, Conviction Consultants Inc., arranged for federal inmates to exchange fake information against other inmates in order to “cooperate” with the feds.
If it worked, the feds would reduce the snitches’ jail time consider-ably in exchange for the phony information. Those behind bars who could afford to cough up about $25,000 a pop were then connected to outside in-formants who supplied information helpful to unwitting agents and prosecutors in other cases. Fierer’s scheme erupted into a major scandal and threatened the legitimacy of multiple convictions based in part on informant testimony. The whole concept of rewarding inmates for their information became fair game for defense attorneys to then argue to judge and jury, jeopardizing hundreds of verdicts and investigations. Fierer went to the federal penitentiary and lost his law license. There is a moral here, I’m sure, but what I’ll remember most is the untouchable defense lawyer who unwittingly taught me to believe that justice can and will happen if you fight hard enough. You have to have faith in the system. I have the vivid memory of Fierer entering the courthouse for his own sentencing at the federal courthouse, much the same way he strode into the courtroom that day, as if he had the world by the tail. Head held high, hair carefully blown back, with that million-dollar smile—that’s how I remember Bob Fierer.
P R O S E C U T O R S O N T R I A L
As a prosecutor, you definitely pay a price. You get paid slave wages and are then attacked as the bad guy at every turn. Your every move is 1 6 0
N A N C Y G R A C E
publicly painted by the defense as nefarious and sneaky. After all, defense attorneys argue, you are responsible for and dedicated to putting innocent people behind bars. After fifteen years in the courtroom, I have come to the realization that very rarely is there an evil plan or a conspiracy hatched by the prosecution.
And you know why?
Because, frankly, when you’re looking at a workload of about eight hundred to a thousand cases, you really don’t have time to plot and plan to put innocent people behind bars. It’s all you can do to prosecute the guilty ones! But that has never stopped the defense from painting a very twisted and dark picture of the prosecution.
During Scott Peterson’s trial, I remember how on-air pundits continued their nightly attacks against prosecutors Rick Distaso, Dave Harris, and Birgit Fladager. They were portrayed as bumbling at best, unethical at worst. After I met them and watched them in court, I saw they were nothing of the sort, but instead were excellent, dedicated, and honorable.
Another prime example of personal attacks against prosecutors is what was leveled at Marcia Clark and Chris Darden during the O. J.
Simpson trial. They were state employees pitted against a multimillion-dollar defense team of courtroom stars and master manipulators that included the consummate defense attorney Johnnie Cochran, evidence whiz Barry Scheck, Robert Shapiro, and world-renowned orator F. Lee Bailey. Realistically speaking, did Darden and Clark ever have a chance?
Despite some inevitable mistakes they made during the course of the trial—and there were some whoppers—I always supported them. I knew how it felt to give 200 percent, to do the right thing and end up with a kick in the teeth. But it wasn’t always easy. Their biggest mistake, of course, was the infamous episode when Simpson was allowed by the state to try on a dried, bloody glove in open court. Darden allowed the one person in the world who would most want to harm the state’s case—the defendant—to participate in an unrehearsed, unprepared, in-court demonstration in front of the jury with the critical piece O B J E C T I O N !
1 6 1
of state’s evidence. Darden handed it to him and allowed Simpson, in one defining moment, to blast the state’s case to pieces. Of course the glove didn’t fit—because Simpson wouldn’t let it fit. What could Darden do then? Wrestle Simpson to the ground and force him to put on the glove? The whole thing was a disaster.
Another egregious error committed by the state in that case was not preparing for the bombshell that exploded during the cross-examination of Mark Fuhrman. The reality was that Fuhrman should have been prepared for what was to come, so he could own up to his past and say,
“Yeah, I said it. Hate me, but I found the glove. I’m not the one who killed two people—he did” (pointing at Simpson of course). Because he apparently was not prepared for the devastating cross-examination, Fuhrman’s past became the focal point of the trial—not the two dead bodies that were found lying in the front yard of Nicole Brown’s home on a warm June evening in Brentwood, California.
Despite all that, I would always defend Christopher Darden and Marcia Clark every time I was on television talking about the trial, because I believed—and do believe—that they were doing the right thing. I believe firmly they had the right guy and that they were seeking justice with all their might. But their efforts were thwarted in that California courtroom. Not just by the defense but by Judge Lance Ito, who had fallen in love with the spotlight and lost control of the courtroom.
In the circus that was the Simpson trial, the private lives of Clark and Darden were laid bare. When reporters weren’t writing articles speculating about whether they were lovers, they were posing and answering the burning questions of the day (often with little or no hard facts to back up their stories): Who were they dating? What happened in her divorce? And, probably the most moronic and hurtful of all questions: Why wasn’t she spending more time with her children? I remember storming off a network radio interview because all they wanted to ask me about was Clark’s hair. I found that incredible in light of the fact that she was trying a case based on the slaughter of two innocent people.
Whether you agreed or disagreed with her, Marcia Clark became 1 6 2
N A N C Y G R A C E
symbolic of the state. If she wore short skirts, the state lost credibility.
If her hair was made fun of, the state lost credibility. If you didn’t like her makeup or thought she had bags under her eyes one day at trial, the state appeared “worn, haggard, defeated” before the jury. She couldn’t win for losing. Was it fair? No. But that is the reality of being a prosecutor. You are held to a much different standard. Being a woman makes it even tougher. I learned early on that this was simply a fact of life.
Whenever I would go out, I was always very careful about where I went and how I behaved. I was always very aware of the people I was with, because when you are standing in front of juries four or five times a month, with each panel made up of one hundred people from your community, you are identified with the state. You represent the state. You become the state. If a prosecutor’s behavior is deemed unseemly by any number of sources—in or out of the courtroom—then the state loses credibility.
Sometimes the attacks against the prosecution veer into disturbingly dangerous territory. I was prosecuting at a time in my life so close to my fiancé’s murder that in my grief I simply didn’t care one way or the other about what happened to me. This may be better for a shrink to decide, but it could, when I look back on it, very well explain why many times I acted as if I were invincible. I thought I had already lived through the worst thing that could happen to me. I guess I thought, What else could happen? Despite being in some pretty scary situations, I don’t remember ever being afraid.
I often got death threats on my answering machine. There were always plenty of hang-ups and obscene phone calls, but I shrugged them off as being from malcontents at the jail. One night, though, I’d had enough. I was working at my desk when I got a threatening call, and I finally answered back, “You know what? You’re probably in a jail right now, but as soon as you can, grab a bus and come on over here. I’m waiting here with my investigator and his .357. We can’t wait to see you!” Click. Of course, nothing ever happened.
Getting heckled on the way to my car after leaving the courthouse O B J E C T I O N !
1 6 3
was pretty much a regular occurrence. There were lots of nights when I would have my hands full of files, my pocketbook, my briefcase, and be clipping along in my high heels while walking up the steps to the sixth floor of the parking deck. It would be eight o’clock at night, and I’d be on my way to go teach night school—on my way to yet another enclosed parking garage. Once in a while, it would dawn on me— You know, I’m here all by myself in this big concrete structure—but I’d just keep walking. Sometimes, I’d get to my car and find the windshield smashed in. I knew the number of “Dr. Glass” in Atlanta by heart, because they would come and fix your car right there. But it never got to me. When things like that happened, it just made me dig in even more.
T H E P R O S E C U T O R W O R E
A S K I R T
It may not be politically correct to say, but being a female prosecutor comes with its own set of challenges. Sexism is alive and well in the courtroom. You’d think that having more women in the system would fix the problem, but I haven’t found that to be true. I’m not sure why, but sometimes female judges are harder on female lawyers.
When I first came to the district attorney’s office, there were very few female cops and lawyers—female judges were even harder to find. At the time, women were usually assigned to work juvenile cases, which are not jury trials and do not apply many of the standard rules of evidence. We were usually going after deadbeat dads, writing appeals, or acting as assistants to trial lawyers. Practically everybody involved in the actual trial of cases was a man—except the jury and, in many cases, the victim.
I’ve been called “little lady,” “young lady,” “lady lawyer,” and other not-so-nice names, right in front of juries by defense lawyers, experts, and judges—pretty much by everybody but the jury. Every time it happened, I’d look that person right in the eye and act as if I hadn’t heard it. I’d inevitably catch at least one woman on the jury with a look 1 6 4
N A N C Y G R A C E
of disgust on her face, as if to say she couldn’t believe that someone had said something that condescending. So what was meant to knock me off balance usually had just the opposite effect and offended at least a few jurors. I never said a word. I didn’t have to. The women on the jury said it for me with their verdicts.
Sometimes the sexism was far more insidious. During a 1995 trial in which I was prosecuting a defendant on rape, sodomy, and murder charges, I was working late one night when I heard the sounds of someone outside my office. My first thought was, Why is somebody still here this late? An investigator for the defense had gotten into the building and delivered a motion under my door. He didn’t know I was still in there working. I went over and picked it up and then sat down in tears—
mortified. It was a motion filed to enjoin me from wearing skirts a specific number of inches above my knee or a blouse that was too low-cut. It also enjoined me from bending over in front of the jury facing either way.
I felt completely humiliated. All court documents are public. Anyone can find out anything about a case by going down to the courthouse and looking it up. I cried (behind closed doors, of course), because it was a public embarrassment to be accused of dressing inappropriately—
and it was flat-out not true. I still have every one of my ten trial dresses that I wore over and over and over. Every one of them covered me from neck to wrist to knee. I was personally attacked on a groundless charge that was meant to deflect attention away from the trial.
This ended up becoming a major distraction, because feminist publications from all over the country sent reporters to Atlanta to cover the story. Scores of television journalists from as far as New York came to court wanting to interview me about the motion. At the same time I was seeking justice in a case where an unnamed woman was found raped, sodomized, and strangled to death by the defendant on trial, I was being forced to address questions about what I wore to court. Even without this unwanted sideshow, I had a very difficult case to prove. I never even knew the identity of the victim.
The motion, one of the many ways the defense attempted to derail O B J E C T I O N !
1 6 5
the case, was scheduled to be argued in court. The trial was a murder case and based strictly on scientific evidence. There were no eyewitneses and no confessions. It was being heard by the same judge who had presided over my very first jury trial nearly ten years before, an attempted shoplifting. He had seen me in court many, many times.
The room was filled with reporters, fellow lawyers, and witnesses, all seated and listening intently. I kept my eyes trained on the judge.
Miraculously, as if an angel had heard my prayer, the judge cut off the defense lawyer who had stood to deliver his oral argument. The motion was overruled. He was told in no uncertain terms: No discussion, no dramatics—now call your first witness. Many days later, the jury convicted on murder one.
While I remained focused on the victim, the defendant had something else in mind. Guards at the jail discovered during a routine search of his cell that he had created a file on me, complete with creepy poems and death threats. All the material was confiscated and handed over to the police. In my mind, the lawyer’s behavior in this case was just a reflection of his client’s. They were perfectly suited to one another. But the truth won out in the end. The defendant got life plus twenty plus twenty.
One of the reasons I am writing this book is to propose remedies for the existing problems in our justice system. Sexism is still an issue. It’s the same way in the courtroom as it is in every other profession in this country: Women have to work twice as hard to be taken seriously and get the same job done as their male counterparts do. Lawyering is no different from any other profession in that way. There is one big difference in how it affects female lawyers, though. The prejudice against female lawyers has an impact on more than the individual—it affects her clients, her cases, and her causes. A case could be won or lost because of a sexual bias. Traditionally juries love judges, because they look up to them and respect them. Whether that bias originates with the judge or the defense, the jury picks up on it.
During my years as a prosecutor, it definitely wore thin when 1 6 6
N A N C Y G R A C E
judges or defense attorneys behaved like jackasses. I’m convinced this sometimes occurred simply because I was a woman. You can laugh it off and pretend it’s a joke only so many times. I always knew that there was the avenue of suing or making a complaint, but my eye was on the prize of the trial. The most important thing to me, regardless of the circumstances, was getting justice for the victim. I always felt that whatever complaints I had, they were nothing compared to what the victims and their families were going through. If the situation were different and I was the only person involved, I would have filed a complaint in a New York minute—but I never did.
The reality is that if a lawyer files a sexual-harassment complaint or a motion for the judge to recuse himself or against the other side, it could seriously harm the case. That attorney could be sacrificing the case in exchange for different treatment for herself. That’s why you rarely see harassment complaints about judges or opposing counsel filed by attorneys, because it’s basically cutting off your nose to spite your face. You’ll likely see the same judge and lawyers on the next calendar call, and there’s always the possibility that it will be taken out on your current case or your future cases. Thankfully, overt sexism among judges is rare. But sexism is a very difficult thing to combat in the courtroom.
It’s not fair, but it’s the truth.
I always tried my best to stay focused on my goal and keep fighting in the courtroom. I’d like to be able to offer remedies to this situation, but, honestly, it’s not that easy. It pains me to say this, because I don’t by any means want to dissuade women from filing sexual-harassment claims in the workplace. I am talking strictly from my own perspective as a female prosecutor who worked in the courtroom during the eighties and nineties—long after the so-called sexual revolution. It is my ardent hope that as more and more women enter the field and we become more enlightened as a society, the need to address this issue will disappear.
O B J E C T I O N !
1 6 7
A C O U R T R O O M
R E A L I T Y C H E C K
Everything about how a case is handled in the justice system is meant to ensure that the defendant gets a fair trial. It begins with striking the jury. In many jurisdictions, the state gets ten strikes (people they can dismiss for any reason) and the defense gets twenty. You never hear too much about the state trying to suppress the defense’s evidence. Most often it’s the defense trying to get search warrants and testimony thrown out of trial.
During trial, if the state makes a blunder, the case is reversed, but if the defense makes a mistake, the state has little recourse. A mistrial will hardly ever be granted because the prosecution has been harmed.
If the state does something objectionable, the defense can also ask for a mistrial with prejudice, which means that not only is there a mistrial and the case ends but the state is not allowed to retry the case. This is possible only if the state’s error is extreme—one example of this would be if evidence has been excluded pretrial but the state gets it in anyway. It’s rare, but it can happen.
Mistrials almost always work in the defense’s favor. The defense has gotten a chance to see the state’s playbook during the first trial and can now go on a fishing expedition with the state’s witnesses, who are locked into previous testimony for the retrial. All of this allows the defense to better tailor its case on the second go-round. The state has the burden, rightfully, to go first and give its best shot. Yet if there’s a mistrial during the state’s case, the jury never hears the defense’s case.
Sometimes the defense doesn’t make an opening statement at first but waits until the defense’s case, after the state has rested. The reason for this strategy is a simple one: The attorneys want to tailor their defense to what the state puts up. Which to me means they don’t know what their defense is going to be at the beginning of the trial—which also means to me that their guy is guilty. If you don’t know what your 1 6 8
N A N C Y G R A C E
defense is—“I was not at the scene of the bank robbery. I was at home watching Murder, She Wrote”—why do you have to wait to give your alibi, unless you’re fabricating something? It’s just common sense. Here’s one example of how an entire defense can be tailored to fit the state’s case. The state will put up its case—the jury (and the defense) will hear that the eyewitness has a cataract or wears bifocals or that the light fix-ture wasn’t working in front of the bank the night of the robbery—and suddenly the defense will be saying, “He’s not a credible eyewitness. You can’t possibly convict on the word of this person.”
Most legal proceedings are shrouded in mystery, which also feeds into the misconception that there are treacherous goings-on behind the scenes that compromise the fairness of the case. The so-called secret grand jury convened in the Michael Jackson case is a perfect example.
All the hoopla made about this “secret” panel was due in large part to the enormous spin the defense employed in feeding the media hype that surrounded every aspect of the proceedings. All grand juries are secret, because witnesses—who may or may not be called at trial due to the rules of evidence—are not to feel any pressure one way or the other.
There was nothing unusual about the way the Michael Jackson case was handled. The only necessary change was that the grand-jury meetings were frequently held in different locations so the press wouldn’t be able to drive the grand jurors insane and hound them with interview requests.
The funny thing is, this entire setup benefits—guess who?—the defendant. But you can be assured defense attorneys will never admit that.
The word “grand” in grand jury simply refers to the number of people on the jury, which ranges from nineteen up to forty-three, depending on the jurisdiction. A petit jury, or small jury, is seen at the ultimate trial and is composed of six to twelve people. Grand jurors are not secret moles working for the state—they are average citizens who are missing work while having to come in two or three times a week and who are most likely not entirely happy about being there. A grand jury is created through “blind selection”—the names of those people called have simply been taken out of the city’s voter-registration or the tax O B J E C T I O N !
1 6 9
logs. Jurors get there about eight-thirty in the morning and work until about four-thirty in the afternoon. At best they get coffee and doughnuts, and they work straight through to the end of the day listening to witness after witness after witness.
There are two types of grand juries—those that investigate and those that charge. In the JonBenet Ramsey investigation and in the matter of Chandra Levy, the grand jury investigated the cases, not necessarily ending with a formal charge. “Charging grand juries” meet regularly and listen to evidence the state has subpoenaed and then, after asking questions of witnesses and considering the evidence, vote to formally charge a target or “no bill,” which means decline to charge. On its face, a “secret grand jury” sounds nefarious and conjures up images of the star chamber, but that’s about as far from the truth as it could possibly be. The grand jury typically meets in secret to protect the reputations of those targets it considers.
B A L A N C I N G T H E S C A L E S
O F J U S T I C E
Several things should be done in order to balance the scales of justice in the courtroom, starting with the rules of evidence. I mentioned earlier that the defense always maintains a higher profile during cases than the prosecution does, and this certainly applies to press conferences and contact with the media. Public statements on the evidence made by the defense during press conferences should be disallowed.
The state can’t comment on the evidence, so neither should the defense. Despite a gag order issued by the judge in the Laci Peterson case, Mark Geragos floated theories about the case from the very beginning by making allegations in open court and in filings. First we heard about the mysterious brown van, then it was a satanic cult, and later he introduced his theory involving murderous drug dealers. All of that is out there in the jury’s mind. Various theories ended up in documents 1 7 0
N A N C Y G R A C E
that are public record, which allows the press to take hold of these comments and run with them. That kind of backdoor lawyering should be stopped.
I also believe that so-called defense experts should be exposed for what they really are—hired guns. All defense experts are paid. The state’s experts often are not paid—they are government employees at the local crime lab working for modest salaries. That’s not the case with defense experts, and the fact should be made crystal clear to the jury.
Defense attorneys should also be prevented from causing unnecessary delays that tamper with the system. By asking for multiple changes of venue in the Peterson case, Geragos caused a major delay in the trial. His motivation was simple: He wanted to get the case tried in Los Angeles. All he wanted to do was to get closer to his own jurisdiction and to Hollywood. That’s what it’s all about for him, and I’m calling him on it. Thankfully, the judge didn’t go for it. Robert “Baretta” Blake is another high-profile defendant who played for time. He faced trial for the murder of his wife, Bonny Lee Bakley. Blake fired several rounds of defense lawyers. Each firing delayed the trial from going forward—and the judge let him do it. I say if he’s got the money to fire and hire repeatedly, so be it. But be ready for trial come calendar call. Allowing Blake to manipulate the system is unfair to the state, to the victim’s family—and to other defendants who are not allowed the luxury of playing the system and who go to trial when scheduled.
There’s a whole host of changes that could be made to the justice system that would affect every case—not just those that hijack the headlines. In most jurisdictions, the state has to hand over most, if not all, of its evidence to the defense ahead of time. The defense isn’t under that exact burden. In some states, they have reciprocal discovery, but the penalties for not following this rule are not the same nationwide. As I’ve already said, if the state doesn’t hand over evidence, it cannot be used at trial; if the defense doesn’t hand something over, attorneys for the state may get an hour to digest it once they discover it before going forward. There’s no real penalty—no bite—for the defense if it fails to O B J E C T I O N !
1 7 1
disclose anything. That’s a major problem. The same penalties need to be exacted on the defense, but here’s the rub: On appeal, if there’s a conviction, the defense can claim that it would have won if not for the ruling, and there could be a whole new trial. It’s a no-win situation. If you allow it in, then you’re not ready to cross-examine on the new evidence or new witness. If you don’t allow it in, the defense will appeal it and get a new trial. The whole thing is very one-sided and stacked against the state.
I believe that polygraph tests should be admissible under the law, and that sword definitely cuts both ways. Then, as with every other test, the defense should have the right to cross-examine those results. As an example, in the Simpson case, the jury at the criminal trial heard all about the prosecution’s DNA evidence, but on cross-examination the defense chipped away at it. This procedure should apply to polygraphs as well. Why hide it from the jury? In Simpson’s civil trial, Judge Hiroshi Fujisaki gave special instructions dealing with the plaintiff’s mention that Simpson had previously flunked a lie-detector test. The judge allowed the attorneys to question Simpson about the alleged polygraph. I firmly believe that the science behind polygraph tests is solid and can be controlled by court and evidentiary guidelines to make the tests even more reliable and, therefore, admissible at trial.
There are quite a lot of evidentiary tools that are not always allowed—cadaver dogs, drug dogs, accelerant dogs, to name a few. Some are not admissible in certain courts because certain judges don’t think they’re reliable. Two hundred years ago, nobody believed in fingerprints.
It’s time to reexamine the law in the area of scientific evidence. Although initially it may seem black and white, every piece of evidence can be attacked. That’s why I believe there should be a broader view of evidence that may be allowed in the courtroom. Allow the evidence in and let a jury determine its weight and reliability after it has been tested by the fire of cross-examination. We have a jury system—let it work!
We must look carefully at the current interpretation of the Miranda rights. During the Kobe Bryant case, the defense tried to claim that 1 7 2
N A N C Y G R A C E
when he talked to police in his hotel room and in the parking lot of the Colorado resort before being charged with rape, he’d actually been in custody and under arrest at the time. They contend that his comments were made before he was given his Miranda rights and that everything he said should be thrown out. This type of argument signals it’s time to reexamine exactly what Miranda means.
Murder victims are often found to have made declarations such as
“If anything ever happens to me, my husband will be the one responsible.” I’ve tried many cases in which I discovered that the murder victim had made such claims. This has happened in several recent high-profile cases as well. Millionaire Robert Durst’s late wife plainly said that if she were killed, it would be at the hands of her husband. Nine days before her death, Nicole Brown Simpson wrote that Simpson had threatened her by saying, “You hung up on me last night, you’re gonna pay for this. . . .” She also wrote at length in her journal about Simpson’s abusive behavior. Prosecutors wanted to use Nicole’s writings as evidence, but Judge Ito ruled them “inadmissible hearsay.” His ruling was not uncommon, because this type of evidence is often deemed hearsay and is disallowed, since it can’t be cross-examined. It certainly should have to undergo testing for veracity but I don’t think these types of claims should be dismissed out of hand because the victims are no longer there to defend themselves.
Very often when you have a dead victim and the defendant is caught red-handed, the accused will claim that it was an act of self-defense even when the victim was unarmed. Whenever the issue of self-defense is raised, it is one of the only times a victim’s reputation gets to come into evidence (“I thought she was about to pull a gun on me, because she’s been violent toward me before”). I think it’s inappropriate to put victims on trial when they can no longer speak for themselves. During Durst’s trial, he claimed that the seventy-year-old man he killed was trying to kill him when they struggled with the gun and it went off accidentally. There was no evidence to support this scenario.
O B J E C T I O N !
1 7 3
Reform extends past the guilty verdict. I am firmly opposed to appeals bonds, which allow a criminal defendant to walk free even after a jury conviction for the price of the bond. Simply put, after a jury has rendered a verdict of guilty, in most cases it’s time for the defendant to go to jail. After the first Jayson Williams trial, that didn’t happen.
Williams walked free, post-conviction. Unless the defense can plainly state that a valid error was made at trial that will likely result in a reversal or the granting of a new trial, the jury verdict must rule—not a judge’s whim.
C H A P T E R S E V E N
B L A M E T H E V I CT I M
DURING AN APPEARANCE ON LARRY KING LIVE
in February 2003, I got into a verbal sparring match with the defense attorney for Gary Ridgway, the notorious “Green River Killer.” In the early 1980s, one of the longest serial-murder investigations in U.S. history began. For two decades, police sought to capture a serial killer who terrorized the Seattle area of Washington State. The first victims were discovered in 1982 near the Green River, thus giving the killer his name. In 2001, investigators finally arrested Ridgway. As part of an outrageous plea to avoid the death penalty, the murderer pled guilty to killing forty-eight women. He is currently serving life without parole in Walla Walla, Washington.
I am firmly convinced that a life sentence is not a severe enough penalty for a man who bragged that murder was his talent and pled guilty to the brutal sex-torture murders of so many women. Authorities are convinced Ridgway is responsible for even more vicious killings.
That night on Larry King Live, I argued that if forty-eight murders of young girls and women don’t equal one death penalty, what does? The comment was made that the victims (some were as young as fifteen years old) were found in areas known to be frequented by prostitutes. In describing some of the victims, my opponent said, “Anybody that says O B J E C T I O N !
1 7 5
a fifteen-year-old can’t be a hooker just doesn’t know much about hookers these days.” When I fired back, “[Are you] suggesting that because
[someone] was a hooker, she’s less of a victim?” he denied it. I was so angry my chest actually began to hurt right there on the King set. Several of the victims were murdered and thrown away like trash along the side of Washington State’s Green River. They weren’t disposable. All were victims.
Families of the victims felt frustrated and deceived. They were led to believe Ridgway would receive the death penalty, but capital punishment was plea-bargained away. Ridgway had actually forgotten many of his victims and had a “hard time keeping them straight.” He never learned their names and wrote them off as thrill kills. His contempt for women seeped out of a statement he made at plea bargain.
Among his chilling words: “I picked prostitutes as my victims because I hate most prostitutes and I did not want to pay them for sex. I also picked prostitutes as victims because they were easy to pick up without being noticed. I knew they would not be reported missing right away and might never be reported missing. I picked prostitutes because I thought I could kill as many of them as I wanted without getting caught.”
Ridgway is a serial killer and a psychopath. I will never understand why his lawyers would attack the victims on national television.
Why would they use a victim’s alleged lifestyle as some sort of justification for murder or rape? Because they can. I learned that answer in court many years ago. Attacks by the defense, as vicious and unreasonable as they may be, are usually aimed straight at the victim. When there is nowhere else to turn, no one else to blame, the tried-and-true defense tactic is to blame the victim.
When the defense has no alibi, when prosecutors present eyewitnesses or DNA, when the defense is trapped and there’s nowhere to go, what can they do? Point the finger in the other direction—at the victim.
It’s an old strategy that has become standard operating procedure in courtrooms across the country. There’s a reason this chapter is the 1 7 6
N A N C Y G R A C E
longest one in the book—the list of cases where this deplorable strategy is employed by the defense just keeps growing.
T H E K O B E B R Y A N T C A S E : T H E N E X T G E N E R A T I O N
B L A M E - T H E - V I C T I M D E F E N S E
The Kobe Bryant case has brought back into the forefront a legal issue that has existed for decades: the treatment of a rape victim in the courtroom. Think about it for a moment. Say there’s a bank robbery in your town. When the teller who was robbed at gunpoint takes the stand, can you imagine the defense attorney asking, “Isn’t it true you had several one-night stands in college?” Or how about, “Isn’t it true you’ve been on birth control pills for some time now?” The state’s attorney would scream bloody murder, and the defense attorney would be—
rightly—thrown out on his ear. Not so with sexual-assault cases. And therein lies the problem.
Statistically, sexual assault and domestic violence are the two most underreported crimes on the books. All too often, the tables are turned and the victim is put on trial. It’s not unusual for a rape victim to be questioned about everything—from whether she drinks alcohol, goes to bars, or has frequented “bad areas.” Even her appearance comes into question. What possible difference does it make if a woman wears short skirts? I find this type of behavior exhibited by defense attorneys appalling. Rape-shield laws were created to protect against these uncon-scionable actions and to encourage victims to come forward, while protecting them from having their reputations ruined. These laws disallow from evidence a victim’s unrelated sexual past or anything touching on it.
That includes evidence showing that a victim has lived with boyfriends, uses birth control, had abortions. Rape-shield laws also aim at preventing direct questions posed to the victim about her unrelated sexual history.
The important thing to remember is that the victim isn’t the one on trial.
O B J E C T I O N !
1 7 7
One of the things I believe that this country has learned from the Kobe Bryant case is that these laws don’t always work. Inevitably, there are always ways around laws protecting victims. Whether Bryant was guilty or not guilty, the alleged victim in this case was repeatedly attacked by his defense team and others out to exploit the sensational tabloid aspects of this case—and that is wrong.
The alleged victim in this case went through hell. She received thousands of angry, menacing, or obscene e-mails and messages. An Iowa man pled guilty to leaving death threats on her answering machine. Another man broke into her home. Yet another man, a Swiss national, faced charges of offering to kill the woman for $3 million to
“help out” the Bryant defense team. It’s ironic to me that it’s so much easier for some people to blame her for flirting with a married man or being in the wrong place—basically reinforcing the theory that rape victims “ask for it” and that somehow they deserve the treatment they get. I’m not quite sure why, but it’s more comfortable for many people to believe that the alleged victim in this case is a “gold digger” than to believe that a then-nineteen-year-old girl was raped by an NBA superstar.
How can we expect victims to speak out if we cannot protect them from another, more insidious form of attack?
T H E N A M E G A M E
Stories about the alleged victim were planted like bombs and exploded almost daily during the Kobe Bryant case. Some accounts claimed that the young woman was bragging about her encounter with Bryant, while others focused on stories of multiple sex partners in the days surrounding the alleged incident. Most of the allegations were based on the loaded questions put on the record by Bryant’s defense attorney, Pamela Mackey. She asked highly objectionable questions in front of the full press pool, knowing they would repeat them as fact in their stories. Her strategy worked.
1 7 8
N A N C Y G R A C E
The Kobe Bryant case was over before a jury was even struck. Perceptions of the alleged victim were publicized there in Colorado and all over the country. Thanks to satellite dishes tacked on to towers, homes, and huts, the “news” was spread around the world.
Mackey started out by calling the victim by name in an open courtroom packed with reporters—six times during the preliminary hearing alone. The judge repeatedly admonished the lawyer, to no avail. She knew who the real judge was: the jury pool reading all the news accounts of what went on in the courtroom that day. Judge Frederick Gannett’s admonitions were like water off a duck’s back. At the same hearing, in direct violation of the state’s rape-shield law, Mackey then alluded to the alleged victim’s sexual history. It was too late. The horse was out of the gate.
While the defense blurted out the alleged victim’s name over and over in court within earshot of reporters, Bryant’s defense team insisted they were concerned about bad publicity. Sure they were, but only as it applied to their client. As for the press, the judge issued warnings in a three-page “decorum” order to lawyers and the media, promising reporters they wouldn’t get a seat in court if they publicized the name or photographs of the accuser.
There is no law disallowing the media from publishing a rape victim’s name. Up until this point, there has simply been an unwritten agreement among outlets not to do so, since rape is so underreported largely because of the vicious treatment victims get in the courtroom.
In the Bryant case, we saw the long-standing traditions of self-governing thrown out the window.
Practically all U.S. news organizations, including the Associated Press, have policies against releasing identities of rape victims and did not release the name in the Bryant case. While Judge Gannett ordered lawyers and investigators to keep her identity secret, the press is a different matter. Similar rulings have been ruled unconstitutional, in that the name of the chief witness in a case is by its nature public, not secret.
O B J E C T I O N !
1 7 9
There’s no way to enact a law requiring the media to withhold the name of a rape victim because it would infringe on the First Amendment to the Constitution. However, the alleged victim in the Bryant trial does have the right to seek civil action in that she is not a public figure, and during the case certain media divulged facts that put her in a bad light. A lawsuit on her part against outlets that printed her photo with damaging stories about her would not surprise me.
A R U T H L E S S P L A N
O F A T T A C K
The blame-the-victim defense in rape cases has grown bolder with every passing year. In the past, the first line of defense was the traditional claim that there has been no sex whatsoever between the accused and the victim. Very often, the perp claims he’s never even met the rape victim. Once a rape is medically or scientifically proven, the defense then moves to the next stage, which is “Yes, we had sex, but it was consensual.” Along with the consent defense, often thrown into the defense pot for good measure is something like “She’s a tramp, she’s a hooker, she sleeps around, or she came on to me.” Yet another version of blame-the-victim is “She wanted money,” or “She wanted powder cocaine”
and now, “She wanted crack.”
In the Kobe Bryant rape case, we saw a tangle of traditional blame-the-victim defenses used. It started with “She’s a star seeker,” went to
“She wanted her fifteen minutes of fame,” then on to the usual fall-back—“She’s promiscuous.” This is one of the first times I’ve seen the inference that “she’s too ambitious” used as the subtext for the defense, although there was a hint of that in the infamous Central Park jogger case in 1989. Long story short, the Bryant case launched an attack on the alleged victim’s lifestyle and sexual history, real or imagined, like no other in recent memory.
1 8 0
N A N C Y G R A C E
More than one woman was targeted for vicious attacks during the Bryant case. Katie Lovell was misidentified as the accuser early in the case. Lovell and the alleged victim went to the same high school and had a number of physical similarities. A photo of Lovell, who’d been a member of the school’s dance squad, was posted on the Internet nam-ing her as Bryant’s accuser along with her name, phone number, and other personal information. More than a dozen Web sites followed suit.
Her home was swamped with reporters, Bryant supporters, photographers, and hangers-on. Lovell had to hire an attorney to get her name and photograph removed from the sites. After a brief taste of what the actual complainant lived though, Lovell summed up the experience during an appearance on ABC’s Good Morning America by saying, “It has hurt me as a person.”
Because of the nightmare she had to live through, Lovell demanded that Colorado lawmakers tighten the rules on identifying sexual-assault victims. In a room crowded with politicians, Lovell said Bryant’s real accuser, who by that time had already been identified on a radio broadcast and in a supermarket tabloid, had received death threats. “I can only imagine what she is actually going through. It will make people think twice about coming forward . . . ,” Lovell said to a legislative committee.
This new generation of attacking the victim in rape cases flies in the face of rape-shield laws, which are designed to protect against such tactics. Why? Because rape cases are supposed to be tried on the facts at hand, not the victim’s alleged sexual history. You’d be astounded at the tactics I’ve seen used. I’ve heard defense attorneys ask everything from, “What were you wearing that night?” to “How many drinks did you have?” to “Isn’t it true you take the birth-control pill?”
Besides being offensive and ridiculous, these questions are legally irrelevant.
In the Bryant case, information would have been permissible during trial only if it was “offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.” Preliminary O B J E C T I O N !
1 8 1
hearings, though, are not specifically mentioned in Colorado’s rape-shield law, as opposed to the actual trial. That is how Mackey’s actions at the preliminary hearing snuck through a legal loophole. In theory, there was no jury seated to be “tainted” against the alleged victim by the illegal evidence. The reality is, however, that the whole world, including the jury pool, heard not only the alleged victim’s full name, but numerous defense allegations that would likely never be allowed at trial—just as Mackey intended.
R I C H M A N ’ S J U S T I C E
On September 1, 2004, there was a shocking turn of events in the case of State v. Kobe Bryant. The alleged victim in the case refused to go forward. Reports surfaced that there was a civil settlement in the works, rumored to be in the millions. Prosecutor Mark Hurlbert seemed to have tears in his eyes when he announced that the state of Colorado was dropping charges against the NBA star. People all over the country booed and hissed and said, “I told you so.” For once, I had nothing to say.
I was stunned. I have championed rape victims’ rights for so long. I vividly remember being present when the Georgia Senate Judiciary Panel passed the Georgia Rape Shield Law, which protects rape victims from having their names dragged through the mud and being painted as tramps—or worse. Whether this particular girl was a runaround or a tramp or a party girl was no one’s business. What I cared about was whether she had been raped. Her blood on the front tail of Bryant’s shirt along with vaginal lacerations and a bruise on her jaw said it all to me. I believed her. And then, bit by bit, it trickled out. Her sexual history, her medical history, her alleged suicide attempts—you name it. But those didn’t erase the blood and the bruise. I could never turn away from that.
After watching the defense attorney, Pamela Mackey, in court and hearing what the judge was letting her get away with, I accepted that a 1 8 2
N A N C Y G R A C E
conviction would likely never happen. I repeatedly predicted either a hung jury or an outright acquittal. I never predicted that the case would simply be dropped.
That ain’t justice.
I don’t blame the young woman. Her whole life was turned upside down. Despite the outrageous personal attacks she endured, I always thought in the end the case would go to trial and that a jury of twelve would make a decision. It didn’t happen. After the last round of highly personal information about her, garnered through a series of closed-door hearings, was released on the Internet, I shouldn’t have been surprised it ended the way it did, but I still was.
The only one ripped off was Lady Justice. A common ploy to raise the price of a civil settlement is to wait until the last minute—until you are literally on the courthouse steps set to strike the jury. I believe that’s just what happened here. At the eleventh hour, when trial was so near, the jury was waiting to be struck, when the price was as high as it would ever be—at that crucial hour—the case was dropped.
Bryant released a public statement in which he stated that he believed their encounter to be consensual but now recognized that the alleged victim thought that the sex was not consensual. It read, in part, “I now understand how she feels that she did not consent to this encounter.” Hello! That’s what rape is—nonconsensual sex. It is logical to reason that Kobe’s defense would never have allowed the statement unless a settlement had been locked in at the highest price.
Even though, as of this writing, both sides have denied there’s a financial settlement in the offing, I’ll wager a multimillion-dollar deal will go down. Count on it.
Was she wrong? Yes. Do I blame her? No. I haven’t been in her shoes. Who I do blame, however, is the trial judge who took the case after the preliminary hearing. Judge Terry Ruckriegle allowed one devastating leak after the next and never got to the source of multiple leaks. I also blame the prosecutor. If I believed in my heart that a rape had O B J E C T I O N !
1 8 3
occurred, then that case should have been taken to trial, win or lose. I’d have called the alleged victim to the stand and then made my case. I would never, never let the courthouse be a high-class brokerage firm for an NBA star and an alleged victim, a middleman who brokered “justice” for money.
T H E A F T E R M A T H O F
S T A T E V . K O B E B R Y A N T
In the next two minutes, someone will be sexually assaulted in America. Six minutes from now, another woman will be raped. Each hour, thirty women are sexually assaulted, ten of them raped, in this great country of ours. After watching the Kobe Bryant saga, how many of those women will come forward?
The way the Bryant accuser was treated was a disgrace, regardless of what one may think of Bryant’s guilt or innocence. Every alleged victim is due a certain degree of respect. Guilt is for the jury to decide.
She was ridiculed, forced by threats to leave her own home, tracked like a hunted animal, and betrayed by “friends.”
The defense team made sure the alleged victim’s reputation was poisoned long before opening statements were ever to be given, and nothing was done by the judge to remedy that. Now, believe it or not, a rape-crisis counselor is actually under federal investigation for allegedly trying to sell the girl’s private file. The judge in this case even disallowed the prosecution from referring to Bryant’s accuser as a “victim.” I guess vaginal bleeding and a bruise to the jaw weren’t enough for Judge Ruckriegle.
I predict my colleagues on the other side of the fence and I will argue about this case forever. There is, though, one thing that even they will silently agree to: After the Bryant case, would they come forward and report the crime if they were raped? No way. Think about it. Would you?
1 8 4
N A N C Y G R A C E
A S M A L L V I C T O R Y
The goings-on in the Bryant proceedings triggered a change in Colorado state law in 2004. It’s a small step in the right direction—but there’s a lot more that has to be done to protect rape victims and prevent attacks on them in court.
In April 2004, Colorado governor Bill Owens signed Senate Bill 46
into law with the support of the Colorado District Attorneys’ Council. It gives alleged victims of sexual assault a better chance of maintaining anonymity as their cases make their way through the courts, by offering them the option of being identified in records and open court by a pseudonym, like Jane Doe.
As of this writing, another bill in the legislative pipeline is Senate Bill 217, which would require all motions filed relating to rape-shield issues to be sealed, to ensure the allegations presented to a judge don’t become public until a decision is made on their admissibility. The bill would also affect Colorado’s current rape-shield law, ordering that evidence about a victim’s or witness’s sexual history must be presumed irrelevant unless it can be shown to bear directly on the facts of the case.
Had this bill been passed into law prior to Bryant’s case, many of the defense’s claims about the alleged victim would never have been made public—at least until trial.
T H E “ P R E P P Y M U R D E R ”
C A S E : T A K I N G T H E “ B L A M E ”
D E F E N S E M A I N S T R E A M
Long before the Kobe Bryant rape case put the alleged victim on trial, there was the “Preppy Murder” case. Jennifer Levin, a pretty teenager who lived in SoHo in New York City, was killed in Central Park in August 1986. Her partially nude body was found early one morning O B J E C T I O N !
1 8 5
by a cyclist. She was lying on her back with her legs spread. Her neck bore wounds indicating she was strangled to death. Levin also had bruises and bite marks suggesting she’d tried to fight back against her attacker.
The morning police were called to the scene, a crowd had gathered and stood at a nearby wall. One witness, real estate broker Susan Bird, noticed a young man with “a nice face” among the onlookers.
The next time Bird saw the man, it was when his photograph appeared in the papers in connection with the case. That man was Robert Chambers.
Nineteen-year-old Chambers was dubbed the “Preppy Killer” because of his deceptively clean-cut looks and Upper East Side address.
Once Chambers was charged with murder, his defense attorney, Jack Litman, based his defense on the hateful strategy that pitted the “party girl” Levin, who got what she asked for, against a handsome preppy who was simply defending himself from her sexual demands. It worked.
The jury was deadlocked on the murder charge. Chambers pled guilty to manslaughter. He got fifteen years.
Chambers walked free from New York’s Auburn Prison on February 14, 2003. He was scheduled for an even earlier release, but a long series of violations and infractions behind bars added several years to his release date. The Associated Press reported that between July 1988
and June 1997, Chambers was docked seventy-five months of good time due to multiple violations of prison rules. Now that he is free, Chambers isn’t even under parole supervision. In the eyes of the law, he has paid his debt in full for the brutal choking of Jennifer Levin. As predicted by prosecutors, Robert Chambers was back in trouble with the law in no time following his release for the death of Jennifer Levin. On November 24, 2004, Chambers was arraigned on two misdemeanors—
drug possession and driving with a suspended license. Chambers, naturally, claimed he had nothing to do with the crime and that he was once again a victim of circumstances.
Chambers’s release is not the only disturbing aspect of the trial.
1 8 6
N A N C Y G R A C E
The long-term legacy of the so-called Preppy Murder is that it was the first highly publicized case where the victim was crucified to save the killer. The treatment of Levin by Chambers’s defense team, as well as by the media, was disgraceful. That’s the only word for it. Levin’s murder “entertained” New York City like no other. The reports of the killing in Central Park mesmerized the public with stories of
“rough sex” and allegations of a promiscuous lifestyle among the city’s wealthy and pampered teens. The public frenzy was fueled by tabloids that ran headlines like JEN’S SEX DIARY, SEX PLAY GOT ROUGH, KINKY SEX, EARLY DEATH, and HOW JENNY COURTED DEATH. For two years, those headlines, and others like them, seeped into the jury pool.
The headlines somehow made these sleazy versions of Levin’s death official. All the nasty innuendo by the defense was given the stamp of believability simply because the papers reported it. Day in and day out, it was reported that Jennifer had caused her own murder.
The seed was planted that a young girl who drinks in a bar with a man late at night and leaves with him deserves whatever she gets.
By the time the trial began, defense attorney Litman’s venomous attack on Levin was going full speed, and the blame-the-victim defense was firmly established. Levin was trashed before the jury and in the media and portrayed as a drunken, promiscuous brat. Six-foot-four-inch Chambers claimed Levin, at five foot three inches and 120
pounds, attacked him and roughed him up during sexual play outdoors in the chilly air behind Manhattan’s Metropolitan Museum of Art. He stated in a confession to police that he’d choked her to death in self-defense. The media devoured the story.
During the trial, Chambers was routinely described as “handsome,” “promising,” and headed for an exciting future, except for that pesky speed bump of a murder trial. Even the media’s labeling of the case as the “Preppy Murder” was misleading. The dark side of Chambers’s personality, which included extensive drug abuse and a criminal history of burglary and theft, never came out at trial. Chambers O B J E C T I O N !
1 8 7
was not a preppy. He’d been thrown out of college. His entire scholastic record was one of failure and disappointment. After his poor performance in prep school, his mother somehow got him into Boston University, but there again his own behavior got him into trouble. Even before his second semester kicked off, Chambers was asked to leave the college over an issue with a stolen credit card. Alcohol and drugs eventually landed Chambers at the Hazelden Clinic in Minnesota.
There were many stomach-churning moments during the trial, but one stands out in my memory to this day. A home video shot by a friend that wound up on a tabloid television program showed a downright scary Chambers smirking and ripping the head off a female doll, then turning to the camera, flashing a big smile, and saying, “Oops! I think I killed it.”
Chambers has never shown remorse publicly. At one of his parole hearings he said, “I guess I could also give you the party line and say I have learned my lesson, I will never do this again, but that’s not how I feel at the moment.” That says it all. Chambers is free, and Jennifer is dead and buried, leaving behind her devastated family and a tattered reputation. Her mother still grieves. As we’ve seen in the Bryant case, the Preppy Murder’s legacy of the blame-the-victim defense is alive and well and living in America’s courts.
T H E C E N T R A L P A R K J O G G E R
In her 2003 autobiography, I Am the Central Park Jogger, Trisha Meili wrote, “Shortly after 9 P.M. on April 19, 1989, a young woman, out for her run in New York’s Central Park, was bludgeoned, raped, sodomized, and beaten so savagely that doctors despaired for her life and a horrified nation cried out in pain and outrage.” New York City, and the world, reeled in shock as facts emerged surrounding the brutal gang rape of a woman who’d been left for dead and became known for years only as “the Central Park Jogger.”
1 8 8
N A N C Y G R A C E
The 1989 trial made it clear that many of those in power were not interested in pursuing the prevention of violence against women. The victim’s reputation was beyond reproach. She was a successful investment banker. She’s wasn’t a drug addict, she was an executive who worked long hours every day. She was monogamous with one boyfriend.
She was a fitness fanatic who worked out by running religiously. None of that mattered—she was still to blame.
There are over two hundred rapes a day in this country—a fact that was rarely discussed in the press during the weeks and months following Meili’s attack and then at trial. These women are victims. Instead of recognizing Meili as part of that group, the defense in the case sent a chilling message to independent women everywhere by casting blame on the investment banker herself. “What was she doing in the park?”
they asked. “Didn’t she know that a woman shouldn’t be on the street after dark? Didn’t she in some way ‘ask for it’?” Other attacks labeled her a workaholic, an anorexic, and a control freak who thought she owned the park. I found this absolutely outrageous. When the traditional attacks on rape victims didn’t work in this case, the defense dug deep to find a whole new way to crucify a rape victim. None of their slurs were true.
In retrospect, there are some important lessons to learn from this case about the deeply unjust nature of the attacks that were aimed at the jogger. We learned that when the standard slanders on a rape victim do not apply, we must not lower our guard. The blame-the-victim strategy is always there, ready to take on any form. For instance, there were a myriad of “should-have”s used to blame the victim in the jogger case.
The jogger should have known that Central Park is dangerous. She should have known that thugs hang out there. She should have gone running with a friend. She should have been home tucked away behind a locked apartment door. But she wasn’t. And we are not. We’ve all innocently taken some chances that looked unsafe in retrospect. Just because she chose to live her life, the jogger suffered horrific and painful consequences.
O B J E C T I O N !
1 8 9
Luckily, she survived. Fourteen years after being known only as
“the Jogger,” Trisha Meili emerged from the shadows and authored a bestseller about her experience. She survived not only a brutal attack in New York’s Central Park, but a punishing one in the courtroom as well.
S P R E A D I N G T H E B L A M E
The blame-the-victim defense isn’t limited to rape cases. Consider these other high-profile cases where the victim was attacked in the courtroom by defense attorneys gunning for a not-guilty verdict at any and all costs.
B O N N Y L E E B A K L E Y
On the evening of May 4, 2001, the actor Robert Blake, who starred in the television series Baretta in the seventies and is best known for his role in the film In Cold Blood, went out to dinner with his wife, Bonny Lee Bakley. The couple went to one of Blake’s favorite Italian restaurants, Vitello’s, located in the Studio City section of Los Angeles. Blake parked on a back street about one and a half blocks away, instead of in front of the restaurant as usual. The actor says that after dinner he realized he’d left his gun inside the restaurant, a gun he claimed he carried because he feared that Bakley’s life was in danger.
Leaving her alone in his car in a darkened alley, he walked back to the restaurant. No one, including busboys, remembers Blake retrieving anything. Instead he came back into the restaurant, drank a glass of water and returned to his car, where he says he discovered Bakley shot to death after being away from her for just a few moments.
A neighbor who came to help Bakley noted that the passenger window was rolled down and there was no shattered glass. The car’s interior was covered with blood. Bakley was still alive, making gurgling sounds and gasping for air. The neighbor, not Blake, tried to render aid to the dying woman.
1 9 0
N A N C Y G R A C E
When asked by the police to take a polygraph test that night, Blake refused. He claimed he was too distraught. Blake also reportedly said that he feared he would fail the test because, as in the O. J. Simpson case, he’d had dreams of killing her and thought that could skew the lie-detector results. He also reportedly stated he blamed himself for her death because he’d left her alone in the car and thought that could skew the test results as well.
Court TV reported that two stuntmen who had once worked as body doubles on Baretta testified that the actor had offered them money in exchange for help in killing his wife. Gary “Whiz Kid” McLarty testified in 2003 that Blake offered him $10,000 to “pop” his wife in a bizarre setup similar to her actual murder behind an Italian restaurant.
Whoever pulled the trigger that night didn’t travel far from the scene to dump the murder weapon—LAPD found the gun thrown into a nearby Dumpster.
With facts like those stacked against the defense, there’s only one place to point the blame—at the victim. On the night of the murder, Blake’s lawyer, Harland Braun, moved in pronto, racing Blake to a hospital to manage his “high blood pressure.” The antivictim posturing began with Braun himself taking all questions and diverting the media toward several far-fetched theories. Braun immediately began to poison the potential jury pool by lambasting Bakley as a lowlife who conned lonely men with topless photos of herself and promises of sex. Braun went so far as to hypothesize that any one of Bakley’s swindled customers could have murdered her.
He also openly attacked the marriage itself, describing it as “troubled.” It was then reported that Blake had married Bakley only because she was pregnant with his child. In order to shift focus from the obvious and most likely suspect, his client, Braun threw out another possibility: that a dangerous neighborhood burglar might have killed Bakley.
Bonny Lee Bakley’s character was assassinated before the trial even started. Her past and her every wrongdoing were twisted into accusations, publicized, and used as a defense tool. I wonder what makes O B J E C T I O N !
1 9 1
her any more disposable than you or me? Is her life less valuable because of who she was? I hope not.
The search for justice in Bonny Lee Bakley’s case suffered intensely because she wasn’t a “good girl.” Plus, there’s another victim who suffered as a result of all the horrible press about Bakley—her daughter. Rose Lenore Sophia, born June 2, 2000, was an infant at the time of her mother’s murder. Someday she’ll read the articles, hear the reports, and learn what was said about her mother. In their zeal to blame the victim, the defense has even managed to destroy a little girl’s most precious memories.
N I C O L E B R O W N S I M P S O N
Even now, more than ten years after the brutal slayings of Nicole Brown Simpson and Ron Goldman, O. J. Simpson still blames his ex-wife for her own murder. The former NFL star long ago gave up searching for her “real killer.” Simpson has said, “Sometimes I think that instead of putting off the move to Florida, I should have grabbed Nicole and the kids and changed our environment. I wonder how things would have turned out.” He blames the “bad crowd” his wife kept company with after they divorced and says her death resulted from her own ill-advised connections, possibly involving drugs. “A month before she died, I had an argument with her about those people,” he has said. “Something was out of control here.” All of his un-substantiated claims are just words.
But words do matter. Simpson’s defense team asked Judge Ito to order the prosecution to use the phrase “domestic discord” rather than
“domestic violence.” The defense preferred euphemisms for wife beating instead of the harsh truth. Terms like “battered wife” and “stalker”
were taboo as well, according to the defense.
Shortly before her death, Nicole Brown told her mother, Juditha, that she was deathly afraid of Simpson. “I go to the gas station, [Simpson] is there. I go to the Payless Shoe Store and he’s there. I’m driving and he’s behind me. . . . I’m scared.” It wasn’t the first time Nicole’s 1 9 2
N A N C Y G R A C E
own words of fear and hopelessness had chronicled her deep-seated fear of her ex-husband. Detailed descriptions of the physical abuse inflicted upon her by Simpson were recorded in her diary. Brown even called a battered-women’s shelter five days before her murder. There were multiple complaints of domestic abuse made by Brown against O. J. Simpson to the police. Most of those reports never made it to the jury. The jury saw one photo of her face bruised and swollen, but the majority of alleged prior abuse didn’t make it into evidence.
Instead of learning about the private hell Brown endured, the jury heard endless references to her alleged drug use, her dating history, her
“questionable” friends and their flaws, and her penchant for partying.
The defense even tried to blame Brown’s and Goldman’s deaths on a mysterious Colombian drug dealer. Only Simpson was completely blameless.
In an interview that aired on Fox in 2004, Simpson actually said he often feels “angry” at Nicole for falling in with the wrong crowd. Unbelievable. These many years later, it continues, coming full circle on the ten-year mark of her murder, the relentless blaming of Nicole Brown, the victim.
G R U M P Y O L D M A N
.
.
.
T H E R O B E R T D U R S T D E F E N S E
In the 2003 murder case involving eccentric millionaire Robert Durst, his claim that the murder victim was grumpy and cantankerous resulted in an acquittal. Back in 2000, Robert Durst left New York under suspicion that he had killed his wife, twenty-nine-year-old medical student Kathie Durst. The sixty-year-old millionaire had been a hot topic in the city’s newspapers ever since Kathie disappeared without a trace in 1982.
After relocating to Galveston, Texas, Durst disguised himself as a mute woman. Later that year, he was arrested and charged with murdering an elderly neighbor in their run-down apartment complex. Durst was acquitted of the murder charge in November 2003. The defendant O B J E C T I O N !
1 9 3
closed his eyes and dropped his mouth open in disbelief as Judge Susan Criss read the panel’s not-guilty verdict in open court. I was just as shocked as the defendant. The verdict was a sickening surprise to many, as Durst had admitted to dismembering seventy-one-year-old Morris Black and disposing of his body in Galveston Bay. The courtroom was packed with reporters from around the world, drawn to the Texas Gulf Coast community by the bizarre facts of the case and because of the celebrity associated with the Durst name. The Durst Organization owns skyscrapers and other real estate in New York worth billions. Defendant Durst had been passed over for control of the family business despite being Seymour Durst’s oldest child.
Durst took the stand at trial under his attorney’s direct exam and attacked the victim. Without the traditional ammunition of the victim’s having a bad reputation or an extensive rap sheet, Durst was determined to disparage a lonely senior citizen living in a $300-a-month rental. He portrayed his elderly neighbor as angry, complaining, unreasonable, and hard to get along with. He claimed under oath that Black was a cranky and confrontational loner and said that it was Black who’d threatened him, with Durst’s own gun, on September 28, 2001. But it was Black who wound up dead after being shot in the face with Durst’s pistol.
During several days on the stand, Durst testified that he panicked after shooting Black because he was living under an assumed name and being investigated in his wife’s disappearance. He assumed the police would never believe his story about Black’s death. He testified that while under the influence of alcohol, he dismembered Black’s body, dumped it in Galveston Bay, and cleaned up the scene. The victim’s head was never recovered.
T H E S A N F R A N C I S C O
D O G - M A U L I N G C A S E
A beautiful, all-American lacrosse player was mauled to death by two hundred-plus-pound Presa Canario dogs on January 26, 2001. The victim, thirty-three-year-old Diane Whipple, was simply trying to get 1 9 4
N A N C Y G R A C E
into her own apartment while juggling an armload of groceries. There had been numerous complaints and fears raised in the apartment building concerning the two aggressive and seemingly uncontrollable dogs.
It all culminated in Whipple’s being mauled to death. To make matters worse, the dogs were in the care of one of their owners at the time. The dog’s owners, Marjorie Knoller and her husband, Robert Noel, both attorneys, went on trial for the outrageous death.
I met personally with Whipple’s friends, and they told me they were horrified by the personal attacks made at trial and in the press against Diane. Knoller and Noel had promptly gone on the offense, claiming that the victim brought on the attack by putting herself in harm’s way. In letters to San Francisco prosecutors, the couple boldly claimed Whipple brought the attack on herself by entering the hallway outside her apartment after Knoller had pushed her inside and gotten control of the attacking dog, Bane.
The attorneys also accused Whipple of using steroids or wearing a pheromone-based fragrance that drew the dogs to her, provoking aggressive behavior in them. She’s mauled to death and they blame her perfume! “The presence of either of those substances would also explain Ms. Whipple’s behavior at the time of the incident in leaving the confines and safety of her apartment and coming into the hall to confront the dog after Ms. Knoller had secured it,” according to one letter signed by Noel, demanding that police preserve evidence of such substances.
One resident of the building called the allegations outrageous. “I’m absolutely speechless,” said Derek Brown, who was living one floor below the attorneys at the time of the attack. “Every time they [the dogs]
have crossed my path, they’ve gone berserk and lunged at me, trying to take a chunk out of me.”
The five-week trial riveted the country, as prosecutors described the horrific attack in which Whipple was bitten all over her body, her throat ripped and her clothes torn off. The jury of seven men and five O B J E C T I O N !
1 9 5
women saw graphic photos of the victim’s ravaged body. There were deep wounds visible from her ankles to her face. Pictures of the bloodstained hallway where the attack occurred depicted the horror Whipple must have felt as she fought for her life. Despite all that, Noel continued his contentions in a separate nineteen-page letter to the district attorney. The defendant placed the blame for the death squarely on the victim. It began, he said, when the victim, standing outside her own door, stared at Bane. Knoller told Whipple, who was uninjured at that point, not to move. Knoller crawled out on her knees with the dog behind. But Whipple did not stay inside, Noel said. “Marjorie has no idea why Ms. Whipple, rather than remaining in her apartment and closing the door, came out into the hall and toward Marjorie and Bane,” wrote Noel. The defendants went on to write with some levity, in another letter not to the district attorney, that Ms. Whipple was “acting very macho, when in fact she lives in fear of the dog.”
So here we see an unarmed, innocent victim whose throat was literally torn out, attacked on the grounds that she must have been on steroids (she wasn’t), worn a fragrance enticing to dogs (she didn’t), and taken foolish chances (certainly not true). Needless to say, their creative blame-the-victim strategy, although it was imaginative, didn’t work.
The owners of the two dogs that attacked and killed Whipple were found guilty of all charges against them, including involuntary manslaughter and having a mischievous animal that kills. Marjorie Knoller was also found guilty of second-degree murder. Her husband, Robert Noel, sixty, sat without emotion as the verdict was read. Although he was not at home at the time of the attack, the jury agreed with the prosecution’s argument that he and his wife had willfully ignored multiple warnings about their two large Presa Canarios, Bane and Hera, knew they were a danger, and refused to act. Both dogs were destroyed.
1 9 6
N A N C Y G R A C E
S U F F E R T H E C H I L D R E N
There are no winners in child-molestation cases. Even when there is a guilty verdict, no one is truly victorious. A child is forever harmed.
They will go on to school, they’ll play on the playground, they’ll make their beds and clean their rooms and go on with their “normal” lives.
But they will never, ever be the same. There will forever be flashbacks, insecurities, and overwhelming feelings of helplessness. Some will have thoughts of suicide. Their pain will follow them into their own adulthood and their relationships. When I prosecuted these cases, all I could do was let the victims and their families leave the courthouse knowing that, win or lose, somebody had fought back.
Child-molestation cases are unique in the way they must be tried.
In these cases, you’d expect that children would be spared the blame-the-victim defense. Sadly, this is not so. Defense attorneys just position their strategy differently. Typical attacks made include claims that the child is lying or the child has been coached. In custody or divorce cases, it’s not uncommon to hear claims like, “This is about the mother—she wants money” or “The child is making it all up.” “The child has learning problems and doesn’t know what he or she is saying”
is another. Those are just a few of the don’t-blame-me strategies commonly used. They are manipulated to fit the facts of each case.
In a child-molestation case I tried in 1988, State v. McCann, the defendant, Antonio McCann, was good-looking, successful, and articulate.
He approached the victim, an eleven-year-old boy who was learning-impaired, and befriended him. For a period of months, McCann traded anal sex with the child for rolls of quarters. He had found the victim in a video arcade and was using the child’s love of video games to gain his trust. He disgusted me. I was fearful of the he’s-making-it-up defense, because my victim, who stood maybe four feet tall, had a severe learning disability. It was incredibly difficult to unlock the truth, interpret the child’s language, and tell his story to the jury. The rolls of O B J E C T I O N !
1 9 7
quarters McCann gave to my little victim for use in the arcade were the greatest thing to him. The defense was right about one thing—the boy didn’t understand what was happening. But I did, and so did the jury.
McCann was found guilty of aggravated child molestation.
Sometimes local laws don’t help prosecutors of child-molestation cases. In an effort to aid the defendant, the statute often equates children with “idiots.” In other words, a child below a certain age must first be “qualified” under the law to testify. It is a simple matter of going through a series of questions with the child witness before beginning substantive testimony. Questions like “How old are you? Where do you go to school? What is the difference between telling the truth and telling a story? What happens if you tell a story? Is that a bad thing?”
are frequently asked. The questions seem innocuous, but the reality is that it doesn’t help to go through the “qualifying” questions with a witness in front of a jury. No other witness is treated in this manner.
Straight out of the gate, the prosecutor has to bolster the witness’s credibility before a word of testimony is uttered. This is a clear advantage to the defense in every case with a child victim.
In some jurisdictions, the “qualifying” groundwork for substantive testimony can apply to a child up to the ages of thirteen or fourteen. It is presumed that children may not know truth from fantasy. It represents one more hurdle for prosecutors to clear in order to have a victim testify.
Simply put, at the outset these young victims can then be attacked on the grounds that they are not old enough to separate fantasy from the truth. In my experience, children are the least likely witnesses to tell a lie. They don’t always have the talent of guile, the ability to lie with a straight face that unfortunately we adults achieve over the course of a lifetime.
The ages for prosecuting various attacks on children vary. In other words, in a single jurisdiction it’s a crime to videotape a sexual act with someone under the age of eighteen, but it’s statutory rape to have sex with someone under the age of fourteen. The laws vary, especially when it comes to sex crimes, making prosecution confusing. Luckily, in State v. McCann, the jury could see through it all.
1 9 8
N A N C Y G R A C E
C A N ’ T B L A M E T H E V I C T I M ?
B L A M E T H E P A R E N T S !
When an innocent child victim manages to escape blame by the defense and media, the defense’s hands are tied. Defense attorneys certainly can’t blame the perpetrator, their client. Who else is left? The victim’s parents! It’s their fault! Lawyers conveniently channel their vitriol toward the parents when victims are so young and innocent that even the defense can’t blame them with a straight face. These heartbreaking cases illustrate a despicable practice that’s quickly becoming the gold standard in child-molestation defense.
D A N I E L L E V A N D A M
I was in California during the search for seven-year-old Danielle van Dam when I was walking past a little twelve-inch television set and noticed on the screen there were helicopters swarming around a group of trees near a roadside. The news crawl across the bottom of the screen said a girl’s body had been found. I stood there with my hand to my throat, frozen to the spot! I knew it was the missing girl. It wasn’t long before others joined me, silently watching the story unfold. Some people cried, others couldn’t bear what they were about to hear and walked away. It was the missing girl, and she was dead.
She was identified by a plastic necklace and a single Mickey Mouse earring she’d been wearing the night she disappeared. When I heard police describe the body as that of a young girl about three to four feet tall, it struck me how helpless this tiny victim had been against her attacker.
I’d been watching the case since first hearing of the child’s disappearance. As the weeks passed, statistics increasingly pointed toward the likelihood she was dead, but until that moment I saw the recovery scene on TV, inside I held a spark of hope that she was somehow still alive.
The little girl went missing from her two-story home in suburban San Diego on Saturday morning, February 1, 2002. Her father had put O B J E C T I O N !
1 9 9
her to bed around 10:00 P.M. that Friday night, tucked her in, and said good night. The discovery of her remains came just one day after the van Dams’ neighbor, David Westerfield, pled not guilty to charges of murder, kidnapping of a child under fourteen, and possession of child pornography. Van Dam’s only contact with Westerfield was when she had sold Girl Scout cookies to him earlier that same year.
Shortly after Danielle was reported missing, Westerfield appeared at his dry cleaner’s wearing no shoes or socks and carrying a comforter with hair on it from the van Dams’ dog. Westerfield also gave his dry cleaner a jacket spotted with van Dam’s blood. Her blood, hair, and fingerprints were found in Westerfield’s recreational vehicle. Prosecutors believe that Westerfield abducted van Dam from her bedroom and took her to his house just two doors away, all while her father and two brothers were asleep down the hall. Her mother was out for the evening with coworkers.
With overwhelming evidence stacked against their client, what was the defense to do? At first, Westerfield’s team tried to blame the victim. That’s pretty hard to do with a seven-year-old girl, but they did try. They argued it was the youngster’s own fault that her hair and clothing fibers turned up in Westerfield’s home, bedsheets, and laundry by claiming the little girl had found her way into his bedroom while in the home on the occasion she was selling the Girl Scout cookies. They claimed her palm print ended up on the nightstand beside Westerfield’s bed in his giant RV because she played where she shouldn’t have. They reasoned that her disobedience in leaving her own yard and venturing into his vehicle was why her blood and hair were also found in the motor home, not because their client killed her there.
When that strategy fell flat, the defense lawyers turned their creative attention to Danielle’s parents, Brenda and Damon van Dam. The parents were crucified. It started with Westerfield’s claim that he had been hanging out with Brenda van Dam and her friends in a bar.
Brenda denied dancing with Westerfield but did testify she and her husband had smoked pot the night Danielle went missing. Brenda also disclosed she and her husband had been “swingers,” partner-swapping 2 0 0
N A N C Y G R A C E
in the past. Defense attorney Steven Feldman intimated that blond hairs found in Westerfield’s recreational vehicle could belong to Brenda, suggesting that Brenda had some kind of relationship with the defendant. The attacks on Brenda van Dam were outrageous.
Feldman argued it was the decadent lifestyle of the child’s parents that set the stage for her murder, not by his client, Westerfield, but by a
“predator” the couple had unwittingly befriended. Feldman’s argument stirred the pot, and suddenly unsolicited “activists” began publicly demanding that Brenda and Damon van Dam, in addition to losing their daughter in the most heinous way, be charged with negligent child abuse resulting in death—a felony. Feldman argued that the van Dams’
lifestyle “put their children at risk,” opening their doors to unsavory characters. So after their little girl was brutally murdered, her parents faced losing their other two children.
Even more disturbing about the treatment the defense dealt out to Danielle’s parents, somehow blaming them for her murder, was the fact that Westerfield’s lawyers knew all along that he’d taken Danielle. Sources said prosecutors were on the verge of accepting the offer of Westerfield’s defense team, life without parole, in exchange for his disclosing the location of Danielle’s body. Just before the deal was struck, volunteers found the little girl’s remains just east of El Cajon. When prosecutors no longer needed Westerfield’s information, the deal collapsed. Of course, evidence of plea negotiations cannot be used as evidence in a trial, so the jury never knew Westerfield could easily have directed police straight to Danielle’s remains and eased her parents’ suffering.
Despite all this, defense attorney Steven Feldman knowingly dragged Danielle’s parents through the mud. Westerfield killed their daughter, and then his lawyer destroyed their reputation.
After one of the most brutal and unjustified attacks on a victim’s parents I have ever witnessed, David Westerfield was convicted and sentenced to death by a California jury. While on death row, he has written numerous letters, still blaming the parents. Westerfield now claims the van Dams framed him. Many may scoff at these unfounded O B J E C T I O N !
2 0 1
claims, but remember, there is still an appeals process ahead. Westerfield is sitting on death row with nothing to lose, so count on him to continue the vicious attacks on the van Dam family.
Danielle’s death foreshadowed dangerous and disturbing times to come. Danielle’s kidnap and murder preceded a series of child-abduction cases, including Elizabeth Smart in Utah, Samantha Runnion in California, Cassandra Williamson in Missouri, Erica Pratt in Philadelphia, Carlie Brucia in Florida, and others. I predict that the same blame-the-victim defense will somehow make its way into these trials as well.
“ T O O
P E R F E C T ”
.
.