Objection! (21 page)

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

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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 !

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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

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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 !

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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 !

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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

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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.