Objection! (5 page)

As for Geragos, even losing the Peterson trial vaulted him to stardom, to rock star status. The guilty verdict in the Winona Ryder case didn’t faze him and neither did getting the boot from Michael Jackson.

The outcome in Peterson’s case is pretty much secondary to Geragos’s own stardom. I predict he will end up commenting on air about legal cases as an expert. With his made-for-television manner, he’ll likely land his own show. He’s smooth, he’s tanned, he’s rested, and he’s ready. It’s just a matter of time.

O B J E C T I O N !

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H I D I N G B E H I N D

T H E C O N S T I T U T I O N

The Founding Fathers set
up our Constitution in a way that allows defense attorneys and defendants to literally get away with murder. These are the rules lawyers have to play by—and they aren’t going to change. They may fluctuate a tiny bit based on Supreme Court rulings, but, generally speaking, those are the rules. As a prosecutor, you fight to the finish. That’s the way a trial is. You play by the rules of evidence, which are set up to protect the defendant. Nowhere in the Constitution is the victim of a crime ever mentioned. It plays out all across the country because of state and federal statutes that determine what’s admissible and inadmissible in court. Nothing protects the victim.

In the Kobe Bryant case, we saw flagrant violations of the rape-shield law (which I will analyze in greater detail in a later chapter). In that case, the rules weren’t just bent, they were broken—to accommodate a celebrity (also the subject of another chapter). Of course, there are legions of defense attorneys who argue the rules were not violated in the Bryant case, but I couldn’t disagree more. The final insult is that not only is the truth being obscured by defense attorneys, it’s being obscured by using something I deeply treasure—the Constitution. The reality is, there’s no use in railing against it. These are the rules, and prosecutors must follow them.

There is nothing right about going before a jury of twelve unsuspecting souls and obscuring the truth by using defense tactics of all sorts, including smoke and mirrors. In the majority of cases, the defendant does not take the stand. I believe that’s because there aren’t very many defendants who could withstand a cross-examination. I think the truth would come out, and their true nature would be exposed. Defense attorneys very wisely dress clients in their Sunday best and have them sit there and look serious and thoughtful for the duration of the trial.

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N A N C Y G R A C E

That might be the most obvious manipulation they employ, but it sure isn’t the only trick they have up their sleeves.

N O T A L A U G H I N G M A T T E R

Once during a publicity
photo shoot, someone took it upon himself to recite a series of lawyer jokes to me, starting with “What’s the difference between a catfish and a lawyer?” The punchline was “One is a bottom-feeding, scum-sucking, cold-blooded parasite . . . and the other’s a catfish.” He looked at me, waiting for a response. I responded, all right. In no uncertain terms, I told him to call a catfish the next time he was in trouble.

But no doubt, there’s a reason lawyers have become one of the most reviled groups in our culture. It’s because it’s perceived that lawyers will do practically anything for money—that they’re nothing more than prostitutes of the court. Attorneys are so notorious for stealing money that there are calls for a federal referendum for tort reform so that they can’t take more than a certain amount. As things stand now, it’s in the hands of Congress.

This proposed legislation is very damaging to the client. Linda McDougal, forty-six, was diagnosed with an aggressive form of breast cancer in May 2002, based on a biopsy performed after a suspicious spot appeared on her mammogram. McDougal said she was told the cancer was so aggressive that her only chance to survive was a double mastectomy, chemotherapy, and radiation. Days after the surgery, the doctor revealed that McDougal’s test results had been switched with another woman’s.

McDougal, it turns out, never had cancer. Both her breasts are gone, but proposed new federal legislation caps damages for cases just like Linda McDougal’s at $250,000. The same would go for punitive damages.

Because lawyers have gotten such a horrible reputation after years of flimflamming, there is actually a proposed law to cap their take. The insurance industry is closing in for the kill and capitalizing on the pub-O B J E C T I O N !

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lic’s perception of trial attorneys, proposing a one-size-fits-all limit on the compensation Linda McDougal and other victims of malpractice can receive for life-altering injuries. Greedy lawyers have had their hands in the cookie jar for so long that Congress may actually enact a law to stop them.

A L E S S O N I N

B A D J U D G M E N T

The lines are clearly
drawn in court when the lawyers do battle: The state seeks the truth and the defense zealously defends its client. But what happens when the judge—the supposed impartial referee—

thwarts justice? Here’s my opening argument.

J U D G E L A N C E I T O :

R E A D Y F O R H I S C L O S E - U P

Presiding over the debacle later named the “trial of the century,”

State v. O. J. Simpson,
was a then-little-known trial judge, Lance Ito.

Somewhere during the Simpson trial, he went from trial judge to media sponge. The main reason Ito may have favored cameras is that he fell in love with the spotlight the moment the trial began and actually came to believe he was a media star. His nickname around the courthouse was

“Judge Ego.” Occasionally, in the middle of testimony—and remember, this was a double-murder trial—with the jury seated and the two teams of lawyers hunkered down at their respective tables, Ito suddenly, inexplicably, and without request by either side, would announce a break in the proceedings. It was later revealed that these were “star breaks.”

When a celebrity, of which there were many, would enter the courtroom to watch or cover the proceedings, Ito would halt the trial and have his bailiff summon the star to his chambers for a meet-and-greet. I wouldn’t be surprised if he kept an instant camera at the ready for all those priceless Kodak moments.

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N A N C Y G R A C E

After the trial, defense attorney Peter Neufeld told
Time
magazine,

“I was very disappointed with Judge Ito, . . . the fact that he was so concerned about his status as a celebrity, his willingness to entertain personalities in chambers, to show the lawyers little videotapes of skits on television.” Neufeld went on with his critique, describing an episode when Ito summoned the lawyers to chambers and played back a clip of the “Dancing Itos” from the
Tonight
show. When you are summoned to the judge’s chambers to see a video, you expect, as a trial lawyer, to see a confession, a surveillance tape, or some other type of video or documentary evidence. Not this time. The joke was on Lady Justice.

The Simpson judge was quite the jokester. Don’t get me wrong—it’s not that serious cases can’t use a touch of levity at times, but not at the expense of the victims. His inappropriate and tasteless remarks were no laughing matter. In his book
Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder,
Charles Manson prosecutor Vincent Bugliosi writes that at the start of the case, Ito told Johnnie Cochran he had good news and bad news. The bad news was that police had found Simpson’s blood outside Nicole Brown’s home, the scene of the double murders.

The good news, according to Ito, was that Simpson’s cholesterol was low.

I bet the victim’s families thought that was really funny.

From day one, Ito was starstruck as well as overwhelmed by the Dream Team. This extended to the defense experts. It’s true that Dr.

Henry Lee is incredibly well respected, but judges are required by law to refrain from commenting on the evidence or on witnesses in the case they are hearing. During the Simpson trial, after Lee testified for the defense, just as cross-exam was to commence, Ito looked down at the assistant district attorney and said, “Frankly, if I were in your shoes I would cross-examine Dr. Lee for no more than half an hour. Accentuate the positive in a friendly and professional manner, given his reputation, and then get out.” What the hay? Since when did the defense need a cheering section on the bench? Actually, in the future, we should just add the judge to the Dream Team—he’d make a perfect mascot.

O B J E C T I O N !

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Then there’s the issue of an alleged confession made by Simpson to his friend Rosey Grier that Ito suppressed illegally. On November 13, 1994, the former NFL star Rosey Grier, also an ordained minister, visited Simpson in jail. A sheriff, Jeff Stuart, stood about ten feet away from the two as they spoke. According to a story in the
Globe
published on January 9, 1996, Simpson raised his voice and blurted out, “I didn’t mean to do it! I’m sorry!”

Ito ruled the clergyman-penitent privilege waived because Simpson voluntarily spoke so loudly that he was overheard. But, amazingly, he then went on to exclude Simpson’s admission on other grounds. Ito reasoned that Simpson had assumed privacy—with a sheriff ten feet away. This was a turning point in the case, in my mind.

Moreover, the way Ito treated prosecutor Marcia Clark throughout the trial was horrific. He often talked down to her as if she were on trial.

Call me a women’s libber if you want, but I watched the entire trial myself, and this tone was never used with the male attorneys. Bugliosi makes the same observation in his book. On July 20, 1995, Clark was only a few moments late for a very early court hearing. The jury was not there, so they were not inconvenienced in any way. Clark promptly apologized to the court and the other attorneys. Ito, all bravado, fined her office $250. When Clark pointed out, “Your Honor, may I remind the court that Mr. Shapiro kept the court waiting for twenty minutes—

showing up at twenty minutes after nine when it was his witness on the stand—and suffered no sanctions?” Ito threw back, “Thank you. The fine will be one thousand dollars.” He undermined Clark throughout the trial. I saw it with my own eyes.

And then the icing on the cake. At the end of this appalling miscarriage of justice, Ito not only thanked the jury for their time, he went totally overboard. The ringmaster of the three-ring circus that had shocked the world stated that society owed the jurors a “debt of grati-tude.” Nicole Brown and Ron Goldman, somewhere, had to be crying.

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N A N C Y G R A C E

J U D G E H I L L E R Z O B E L :

H I J A C K E R O F J U S T I C E

On November 10, 1997, Judge Hiller Zobel hijacked the justice system by reversing the will of the people in
Commonwealth of Massachusetts v. Louise Woodward.
On October 30, at the culmination of the trial that had riveted the country and horrified parents everywhere, the jury found the nineteen-year-old British au pair guilty of second-degree murder in the death of eight-month-old Matthew Eappen. But less than two weeks later, on that infamous fall day, Zobel took it upon himself to reduce the jury’s verdict to manslaughter and slashed Woodward’s sentence of life behind bars with parole possible in fifteen years, to time served. She walked out of jail.

Even before Zobel’s outrageous actions, Woodward’s murder trial ignited a firestorm of controversy for a number of reasons. It brought attention to working mothers’ fears about whether the people hired to help care for the children they leave behind each day as they’re out making a living are qualified for the job. It also brought to light a largely unregulated business, in-home nanny services. The “Nanny Trial,” as it was dubbed, revolved around the death of a beautiful baby boy, Matty Eappen. Matty’s parents, Deborah and Sunil Eappen, were both well-respected physicians, who left baby Matty in the care of Woodward, whom the couple hired in 1996. On February 4, 1997, Woodward called police and said that the baby was having difficulty breathing. When paramedics arrived at the Eappens’ home, they discovered that Matty had a two-and-a-half-inch skull fracture. The Eappens kept vigil over their son while he spent four days on life support before he died on February 9. An autopsy revealed that Matty did indeed have a fractured skull and a month-old wrist fracture.

The defense team, headed by the brilliant but clearly misguided defense attorney Barry Scheck, attempted to place blame on the baby’s own parents for Matty’s skull fracture and intense brain damage associated with shaken-baby syndrome. Both sides agreed that Matthew EapO B J E C T I O N !

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pen died from massive bleeding inside his skull. The prosecution claimed the bleeding was caused by “a combination of extraordinarily violent shaking and overpowering contact with a hard flat surface, all occurring some time on February 4, 1997.” The far-fetched defense theory was that the subdural bleeding had been a result of prior head injuries and that someone else had caused the trauma weeks before and it had gone undetected—obviously alluding to the parents.

Scheck also argued that a preexisting medical condition must have killed baby Matty. The attorneys also hinted that the Eappens’ other child, two-year-old Brendan, may have had something to do with his brother’s injuries—an outrageous claim that prosecutors were quick to discredit, saying no toddler could have inflicted that much trauma on a baby. Disgusting. Prosecutors argued that Woodward even admitted to shaking the baby, dropping him on floor, and tossing him on the bed.

Medical examiners said Matty hit the floor with force equal to that of a fall from a second-story window.

In a major all-or-nothing gamble, and after both sides had rested, the defense fought like mad to preclude the jury from considering any count other than first- or second-degree murder—no manslaughter, no involuntary manslaughter. Punishment for first-degree murder is a mandatory life sentence; second-degree murder carries the same sentence with the possibility of parole after fifteen years. In order to convict Woodward of first-degree murder, prosecutors had to prove she knowingly acted with premeditated malice and extreme cruelty.