Objection! (18 page)

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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 !

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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

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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 !

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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!

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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 !

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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

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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