Objection! (25 page)

O B J E C T I O N !

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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

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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 !

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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

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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 !

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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

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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 !

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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.