Objection! (3 page)

The underlying reason the defense so often tries to delay a trial is simple: Every day of delay is another day the defendant is not guilty under the law. It’s another day of innocence!

Delays always happen; they happened in practically every jury trial I ever prosecuted. Often judges would even make defense lawyers and defendants bring actual doctor’s notes to court to prove they were sick and couldn’t perform at a trial. I believe there should be firm statutes on delay. Avila’s trial is just one example of what can happen when there has been excessive delay. Another is the long-delayed trial of the actor Robert Blake, who was arrested in connection with the murder of his wife, Bonny Lee Bakley.* Blake fired one high-profile defense team after another, each time getting another continuance or delay, à la Michael Jackson. This makes the proceedings even more agonizing for the victims’ families; their healing process can’t even start until the trial is over and done, regardless of the outcome.

Right now, it’s largely within the discretion of the trial judge as to whether the defense’s feet are held to the fire and the accused goes to trial in a timely manner. Justice is rarely swift. Under the constitutional

*As this book went to press, on March 16, 2005, Robert Blake was acquitted of the murder of his wife, Bonny Lee Bakley. Blake was also found not guilty of solicitation of murder. The jury was deadlocked on the second solicitation charge, which was subsequently dismissed.

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interpretations by defense attorneys, judges are faced with granting delays or, on appeal, postconviction, facing reversal because the defense claims it “wasn’t ready.” Clearly a remedy is needed. One possible remedy would allow a strict statutory number of continuances for either side. This would likely be contested, though, perceived as draconian.

Another solution would be for the defense attorney to agree to a trial date at the end of the first trial calendar and then be held to it. That way, the trial date would be an agreement with the court up front and more likely to stick. Knowing the system, I suspect that, regarding trial delays, the defense bar has Lady Justice over a barrel.

Speaking as one who has watched justice unfold not only as a prosecutor but as a victim of violent crime, I assure you this is no game. Trials are the culmination of months, sometimes years, of pain and anguish. The unfinished business of justice looms, and finally the trial begins. To have the truth-seeking process boiled down to a game of wits between two sets of lawyers is almost more than crime victims and their families can bear. Ask Samantha Runnion. I’m sure she’ll agree. But you’ll have to wait a while. You can meet her only in Heaven.

A M A T T E R O F E T H I C S

My deep-seated ethical problem
with defense attorneys likely traces back to my being a witness in Keith’s murder trial. The whole thing has always been a big blur to me, but I do distinctly remember going to the courthouse as a witness. The cavernous courtroom reminded me of the one in
To Kill a Mockingbird.
The witness stand was several feet high.

I had to climb two sets of stairs with a landing in the middle to get to it, so I was up off the ground by a good six feet.

Directly below and in front of me sat the defendant and his lawyer.

I don’t really remember the lawyer, but I do remember looking down and seeing Keith’s bloody clothes that had been laid out for the jury.

The reality of what Keith had gone through was too much to take in.

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I looked at the clothes and somehow wouldn’t let myself connect them to the person I loved so deeply.

The other thing that I recall to this moment was that the defendant never looked at me in the face. He never could bring his eyes up to meet mine. I didn’t know it at the time, but that must have been when I began to formulate my theory on the importance of what I call “behavioral evidence”—behavior that is so odd or disturbing, so abnormal or curi-ous, it logically points to either guilt or pangs of conscience. If I had been on trial for the murder of another’s loved one, I would scream out,

“I didn’t do it! I didn’t do it! Please believe me! I would never hurt you!”

But the defendant did nothing remotely like that. He just looked away, avoiding my eyes, because he knew he had murdered someone, and looking at me and at the rest of Keith’s family, he had to realize the incredible pain he had caused—all over a wallet with thirty-five dollars in it.

There was no cross-examination that I recall. It was over. I just slowly stood up and made my way down the steps and out of the courtroom. No one said a word, and as I passed the defense table, I slowed down and looked at him. He never looked up.

Even the defense attorney looked away from me.

That trial became the foundation of my opinions on defense attorneys and defense strategies. They didn’t crystallize until years after I graduated from law school and was working in the pit of a courtroom ten hours a day against defense lawyers. That’s when it all came together for me. The truth really doesn’t matter to the defense. Under our adversarial system as outlined in the Constitution, it’s all okay because it’s “ethical.” Defense attorneys have a right to cross-examination, and the rules of evidence allow them to attack the state’s case, including crime victims and witnesses who are telling nothing but the truth.

The rules allow defense attorneys to poke holes in a prosecutor’s argument and kick the wheels of evidence. The good news is, prosecutors have the right to do the same thing to them and all of their witnesses. That’s what our justice system is about. It’s set up for the state to seek the truth behind the crime and for the defense to protect its 1 6

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client. Under the law, that’s all well and good. To me, it is a distortion of the truth. There are systems of justice on this planet where both sides seek the truth, but that’s not the case in this country.

Given those confines, I could never live with myself if I helped a violent felon by prostituting my law degree, my energy, and my experience to free someone that I know is guilty. I could never be responsible for the release of a violent criminal who would walk free, a predator among the innocent. Think I’m wrong? Talk to someone who’s been victimized by a repeat offender—or to a bereaved family member, since so many victims are no longer among the living to speak for themselves.

Because of unspeakable acts by repeat offenders, too many innocent voices have been silenced forever.

L E A R N I N G F R O M

T H E M A S T E R

One of the most
high-profile, flamboyant, and effective defense attorneys of all time is Johnnie Cochran. He was my first on-air partner when I joined Court TV, and we were paired as the cohosts of
Cochran and
Grace
in 1997. It took me a solid year to accept that Cochran was not the one responsible for the double murders of Nicole Brown and Ron Goldman. I constantly glared at him during shows, and frankly, I don’t know how he stood it. I was so angry after the Simpson verdict, I’m surprised he didn’t just walk off the set. I’d go after him about something as benign as a California proposition regarding marijuana use for glaucoma. He argued his points graciously and never lost his cool. I, on the other hand, was vicious no matter the issue, still harboring intense disillusionment over the Simpson verdict and Simpson himself.

Working with Cochran gave me the chance to study the king of criminal defense for the next couple of years, and I found it incredibly enlightening. I began to see something I’d never been able to see be-O B J E C T I O N !

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fore: to understand what exactly it was that juries sometimes saw in defense lawyers.

I had always viewed them as quick and wily, like a beautiful snake that you keep in a cage but wouldn’t dare touch. I still feel that way, but now I understand why juries can be captivated by lawyers like Johnnie Cochran. I studied him carefully. I watched the way he talked. I listened to the words he chose to use, his mannerisms, even the way he walked into a room. I learned that juries can be struck by someone who is charming, attractive, and affable. Cochran could give an opening and closing argument that could charm a bird out of a tree. I had always been so focused on the truth and the facts of a particular case, so hell-bent on justice that I was almost immune to a defense attorney’s charms.

I learned through watching him why juries are sometimes bowled over by someone like Cochran.

In addition to being a master orator, Cochran puts together a practically unstoppable defense team. I recall when Sean “P. Diddy”

Combs, the head of Bad Boy Entertainment, was charged with firing a weapon during a 1999 dispute at a Times Square club in which three bystanders were wounded. It was also alleged that Combs later promised his chauffeur $50,000 and a platinum ring to take the rap.

Cochran was immediately called in and promptly tapped one of the toughest street-fighting lawyers I’ve ever seen, Benjamin Brafman, as co-counsel.

Cochran knows strategy. As everyone knows, the squad of lawyers and experts he assembled to defend O. J. Simpson (Barry Scheck, F. Lee Bailey, Robert Shapiro, and Dr. Henry Lee) were—and are—all specialists in their respective fields. Their reputations and work on the case earned them the title of the “Dream Team.” Watching Cochran in action during the Simpson case made me realize how much more dangerous defense attorneys are than I had previously thought. Not only do they have a host of trial tactics at their disposal that I would never even consider, they can be charming and likable to a jury. Therein lies the 1 8

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danger. The Constitution didn’t set up a jury trial to be a popularity test, but with a charismatic defense lawyer like Cochran, it can turn into the homecoming parade, not a search for the truth.

Although Cochran and I vehemently disagreed on many, many things—most notably the issue of Simpson’s guilt—I consider myself to be a friend of Johnnie’s. We agreed to disagree, but when it comes to Cochran, I know I am battling one of the best there is. Do I agree with him? Never. Do I acknowledge his abilities? I’d be a fool not to.

T H E B U S I E S T D E F E N S E

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The one thing that
Mark Geragos and Johnnie Cochran have in common is that they are both incredibly charming. They’re both attractive, likable, and unfailingly smooth. The major difference, as of this writing at least, is that Cochran has won all of his major high-profile cases. I in no way suggest that “winning” a felony case puts the defense in the right or is some litmus test of right or wrong, moral or immoral. To do so would be like putting perfume on a pig . . . it still stinks.

As for Mark Geragos, in the space of a single year, he has become one of this country’s most famous lawyers for simultaneously taking on two of the most infamous defendants of the decade: Scott Peterson and Michael Jackson.

At the onset of the Peterson trial,* no one knew what to expect from Geragos, especially in light of his own words about his client before he signed on to defend him. Two days before Peterson’s arrest, Geragos stated on air, “You’d be hard-pressed to find a prosecutor who couldn’t put together an indictment, let alone a conviction. There are a lot of guys sitting in state prison on a lot less evidence. There is just an over-

*As this book went to press, on March 16, 2005, Scott Peterson was sentenced to death by lethal injection or, in the alternative, the California gas chamber, for the murders of his wife and their unborn child.

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whelming amount of circumstantial evidence. His defense at this point is, ‘Oh, my God, somebody else must have done it and was trying to set me up.’ I don’t think it’s ever going to wash.”

It’s hard to ignore Geragos’s own analysis of the case, offered up on
Larry King Live
on April 18, 2003, the day of Peterson’s arrest. At the time, he said, “The most damning piece of circumstantial evidence [a marina receipt] comes out of his own mouth and his own hands. That is just a devastating thing. It’s a damning, circumstantial case. The man is a sociopath if he did this crime. This is a guy who has, from day one, not helped himself in any way.” Ten days later, during another television interview, Geragos was asked why Peterson lied to Amber Frey about being single. His response? “Because he’s a cad. When guys commit adultery, guys lie to a single woman in order to get them into bed.”

In the hours that followed, on April 29, Geragos met with Peterson in jail, and the next day he revealed he was considering signing on as Peterson’s lead counsel. On May 2 he announced he had taken the case. Once he was retained, he suddenly saw the light. He clearly had an epiphany: Scott Peterson was innocent. My head was spinning. Hadn’t Geragos practically finished the state’s closing argument for them on air? In retrospect, why was I surprised?

I called him on it publicly just before he announced Peterson had hired him as his lead defense attorney. That evening, I noticed a sudden reversal in his previous opinion that Peterson would be convicted.

I asked him on air, “What happened, Mark? What changed?” Geragos dodged the question—evasive as ever.

Geragos employed many disturbing strategies in handling the Peterson case. Nothing was more offensive to me than the treatment Sharon Rocha and her family received at the hands of the defense in the early stages of the case. After Laci Peterson’s remains had washed up on the rocks in April 2003, her family was banned from Scott and Laci’s house. Although the defense team and its investigators had been swarming the couple’s Modesto, California, home for weeks and Peter-2 0

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son’s family had been there during visits to their son, the defense still claimed with a straight face that it was a crime scene and couldn’t be tampered with or contaminated by Laci’s own family.