Objection! (19 page)

“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 !

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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

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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 !

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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

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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.”

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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

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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.

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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.