Objection!: How High-Priced Defense Attorneys, Celebrity Defendants, and a 24/7 Media Have Hijacked Our Criminal Justice System

by Nancy Grace

  There is no question there has to be a better screening process for striking a jury, which should start with having more intensive jury questionnaires. The questions on the forms that are currently used generally fall along these lines: Are you a resident of this jurisdiction?

  How long have you lived here? Are you married? Where do you work?

  That’s usually the extent of it. A lot of jurisdictions don’t even ask that much. That’s crazy. For a start, questions about whether a potential juror has a criminal history certainly need to be asked. An enhanced jury questionnaire, along with a sermon on the sanctity of the juror oath—complete with both an oral and written rendition—would certainly help weed out “stealth jurors”—those who would somehow profit from service.

  Newly added written questions must also address the issue of potential book-for-profit schemes and any other offers floating around, such as money for television and radio interviews, exclusive magazine stories, and, of course, last but not least, Playboy “pictorials.” If, after a juror has answered all these inquiries, serious questions persist, I advocate a full investigation as to dates of any such offers and the production of phone records, interview notes, and contract-signing dates to support proof of “deal-free jurors.” The potential for tainting is enormous as a result of these impediments to justice and must be avoided at all costs.

  I also advocate the radical concept of contempt-of-court findings and substantial money levies against jurors who indulge in such schemes 6 4

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  pretrial or during trial. In this instance, contempt-of-court findings should go hand in hand with jail time and the loss of voting rights, as occurs in felony cases. Jurors who seek to gain from jury service before or during trial should be kept forever off the voting roster and, conse-quently, out of future jury boxes. My fear, though, is that the draw of profiteering and fame is as old as time itself, and to cure it is to cure human nature.

  The answer? The First Amendment right to free speech guarantees individuals, be they United States citizens, immigrants, the president, or an ex-con, the God-given right to speak out. That includes television and book deals. But for jurors, I firmly believe, the only way to secure a true verdict is to allow them to speak and write about the case all they want with a condition: They do so only well after the trial. I predict that will help solve the problem pretty quickly.

  Another important preventive measure that should be taken to keep starstruck jurors out of the courtroom is to carefully screen them according to their media consumption in all forms: television, newspapers, magazines, and the Internet. I recommend the inclusion of detailed questions covering jurors’ television-viewing habits: number of hours per week viewed; general and specific programs or genres viewed; shows and reading materials that were their favorites in childhood, teen years, and adulthood. The media plays such a big role in our lives today; it is pure folly to exclude it as a factor in voir dire. Red-flagged jurors could then be questioned during individual voir dire as a follow-up to the jury questionnaires. It would be relatively simple to have media-related inquiries added, with the input of psychologists, trial lawyers, and judges in order to more carefully prescreen the jurors before they even enter the jury pool, much less the jury box.

  If one or both lawyers fail to cover the bases when faced with jurors serving on a trial with a celebrity defendant, the onus should be on the judge to ensure a fair-minded jury. While many judges have a hands-off approach to trying cases, in this peculiar instance they must inject their own questioning of jurors regarding their views toward celebrity O B J E C T I O N !

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  defendants in general and specifically to the one on trial. I would also encourage the incorporation of celebrity-oriented questions on jury questionnaires. In order to be effective, these questions must be standard operating procedure and not subject to the whim of counsel’s memory or diligence in filing the right motion.

  Another way to prevent juror misconduct is to run rap sheets and arrest records on jurors. This isn’t usually done—I never used them—

  but it’s something that must seriously be considered now, especially in light of the Martha Stewart juror Chappell Hartridge. While all such information is public record, these documents must be obtained through law enforcement or court personnel, because they have to be researched and electronically produced. It’s a computer search that doesn’t take long to get, provided the lawyer has the right date of birth, race, and gender for the potential juror. The bad news: It’s more work for already overtaxed prosecutors, who then have to hand over their results to the defense. It’s only fair the defense get a copy of the report. (And naturally the defense would be thrilled to get ex-cons in the jury box!) One caveat: The defense should at the very least share the work that goes into getting this information. Better yet, the court’s administrators should run the rap-sheet search prior to jury selection and provide the results to both sides.

  I also foresee the looming possibility of credit checks run on jurors to discover any civil suits pending against them that would bear on the case. But here’s the problem: If this becomes common practice, it would almost certainly dissuade people from sitting on juries. Would you want to sit on a jury if it was going to be made public that you were sued for nonpayment on a bounced check in 1991? How about if your credit-card problems or brush with bankruptcy were uncovered? I wouldn’t.

  The bottom line: Penalties for juror misconduct must be instituted and enforced. Those who violate the oath and taint the jury should find themselves back in court again, seated behind the defense table facing charges of their own. That is how valuable the jury system is. We must 6 6

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  be prepared to deal harshly with those who abuse it. For those who slip through the cracks for whatever reason, justice needs to come down hard and fast. There must be repercussions for juror wrongdoing. People who lie to get on juries or lie during the trial must be prosecuted to the fullest extent of the law. I have a firm belief in the jury system, and to the people who violate the integrity of the court I say, “Hang ’em high.”

  C H A P T E R T H R E E

  J A C K P OT J U S T I C E

  I HAVE A WAKING NIGHTMARE EVERY TIME I HEAR

  about another abuse of the justice system that’s fueled by greed. I see a courthouse—as grimy and gritty as it can get after decades of use, millions of cases and defendants civil and criminal, all passing through its courts. Despite its worn appearance, I envision snapshots of what’s gone on inside. Juries have been struck. Defendants and witnesses have been sworn under oath to tell the truth. Victims’ families have sat in its halls praying for justice. But then, the building begins to swell and strain at the corners—twisting and trembling. The structure seems to be collapsing on itself. As the wind whips around and the sky turns black, the courthouse groans. Lightning strikes. Court documents, desks, and law books fly out the windows as people come running down the courthouse steps. While I stand frozen, watching, the building morphs into one of those fantastic ATM machines you read about but never see for yourself, one of those wacky ATMs that randomly dis-pense thousands to whoever happens to be there. The courthouse-turned-ATM is spitting out an endless stream of twenty-dollar bills.

  Money flies through the air, covering the streets, landing in the trees.

  Suddenly people run toward the building from every direction and be-6 8

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  gin cramming their pockets with their ill-gotten gains. Loaded down in cash, they run away, no one looking back.

  That’s when it dawns on me—the courthouse has become one big, huge, malfunctioning ATM machine—a jackpot at the expense of justice.

  We’ve borne a culture of courthouse vultures. Yes, of course there are wrongs that are at least partially righted by money awards. These judgments are well deserved but can never totally set things right. As fantastical as the scenario in my waking nightmare may seem, it is rooted in real
ity. This wholesale manipulation driven by greed is hell-bent on turning Lady Justice into a whore and lawyers, witnesses, and assorted courtroom hangers-on into her pimps. Don’t believe me?

  Read on.

  C H E C K B O O K J O U R N A L I S M

  It’s become SOP—standard operating procedure—for prosecutors to warn victims and witnesses not to give interviews, much less accept money for them, before trial. The reason behind these admonitions isn’t just a moral one—it’s born out of stark fear that witnesses who trade information for cash will destroy the state’s case. Most often, those who value money over justice are destroyed on cross-examination when it is revealed that they have a financial interest in the outcome of trial. The ammunition that paid interviews provide on cross-exam is a serious threat to a true verdict. Additionally, if the state or a state’s witness taints the jury pool with public pretrial statements, the defense can—and will—ask for a change of venue. Not so for the state, as prosecutors have fewer remedies against defense witness or defense lawyer misconduct.

  Prosecutors nationwide learned a valuable lesson from the William Kennedy Smith rape trial in 1991. Anne Mercer, a critical witness for the prosecution, should have been the perfect “outcry” witness for the O B J E C T I O N !

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  state. At trial, the outcry witness is typically the first person to whom a rape victim tells what happened, most often in a distraught state. Such witnesses are invaluable to the state because they can either corroborate or discredit a victim’s credibility.

  Anne Mercer drove Patricia Bowman, the alleged rape victim, home from the Kennedy mansion in Palm Beach that night, immediately after the reported rape. At trial, Mercer underwent a vicious attack by the defense, led by attorney Roy Black, and with good reason—Mercer had to admit under oath that she was paid $40,000 for an appearance on the television show A Current Affair.

  The defense rests.

  Another high-profile defendant nearly walked free when a key state’s witness sold his story to the National Enquirer.

  Michael Markhasev went to trial for the 1997 murder of twenty-seven-year-old Ennis Cosby, son of the beloved entertainer Bill Cosby.

  The young, unarmed Cosby was ambushed and shot as he was changing a flat on a freeway exit ramp. The state’s star witness, Christopher So, testified in no uncertain terms that he overheard Markhasev confess to the shooting. The defense launched its case with an assault on So’s credibility after it was uncovered he had contacted the Enquirer about their offer of a reward in the case. It turns out So pocketed $40,000 for interviews and was promised another $100,000 if Markhasev was convicted. To make matters worse, the detective who investigated Cosby’s case testified under oath that when he interviewed So, the witness actually asked the cop, “Does my story sound good?”

  Luckily, Markhasev was convicted and sentenced to mandatory life behind bars in 1998—no thanks to So, whose greed nearly tilted the scales of justice the wrong way.

  O. J. Simpson’s trial serves as a textbook primer on what is wrong with the justice system on so many, many levels, this one included.

  Does the name Jose Camacho ring a bell? It should. This guy was sliced up like a Thanksgiving turkey on cross-examination by the defense in 7 0

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  the O. J. Simpson case. In what should have been strong testimony for the state, Camacho said Simpson bought a knife in the store where he worked a few weeks before the double murders. But the witness’s damning words turned into every prosecutor’s worst nightmare come true. Camacho had to confess that he accepted $12,500 from the Enquirer after Hard Copy had offered him “peanuts.” Prosecutors tried their best to salvage Camacho’s credibility by stressing that he sold his story only after his testimony at grand jury. Obviously, the strategy didn’t work.

  Jill Shively, another star witness in the case, testified in front of the grand jury that she saw Simpson driving like a madman near the scene of the murders. Prosecutors had no alternative but to to scuttle her testimony after she sold her story to Hard Copy for a reported $5,000.

  This blatant brokering for the “dirt” on a sensational case isn’t even done in secret. The Enquirer’s editor appeared on Larry King Live to show off the $1 million check the tabloid had offered to Al Cowlings to tell what really happened in the white Bronco during the chase seen around the world. In one of the only displays of restraint shown by the major players in that case at the time, the Simpson insider opted not to jump on the trial’s gravy train. Cowlings did wind up cashing in, however, selling autographed photos of the infamous Bronco chase online.

  This phenomenon of witnesses selling out to the media isn’t a by-product of our 24/7 media age—it only seems that way because the number of outlets vying for “exclusives” has grown exponentially in the last few years. Paying for stories is a dangerous and destructive tradition. And it’s not just scandal-mongering tabloids and TV shows that shell out big bucks for salacious stories to sell. A 1994 issue of that Columbia Journalism Review reported that the revered 60 Minutes paid Richard Nixon’s henchman H. R. Haldeman $25,000 for his story in 1975. G. Gordon Liddy went for the reduced rate of $15,000. Nixon himself brought in the biggest haul. Swifty Lazar, the late Hollywood über-agent, brokered a $600,000 deal for Nixon’s interview with David O B J E C T I O N !

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  Frost that aired in 1977. Frost defended himself on CNN in 2002, saying at least he got to quiz Nixon on television, as opposed to the watered-down version the disgraced ex-president offered in his book—for which he received $2.3 million.

  Clearly, the shady practice is alive and well today. In January 2004, the New York Times reported that CBS news magazine 60 Minutes paid Michael Jackson $1 million for an exclusive interview after he’d been charged with child molestation. While the network called the allegations “categorically false,” a CBS spokeswoman acknowledged that there was another deal that had been struck with the King of Pop. Jackson had to deny the charges on air during the 60 Minutes interview in order for the network to consider broadcasting his musical special, pulled from CBS’s schedule after Jackson’s arrest in November 2003.

  Another television icon bites the dust.

  J U S T S H U T U P !

  Legislation could easily be passed in each state to outlaw payment or anticipated payment of witnesses and other participants in criminal cases before trials. The First Amendment protects free speech—not storytelling for fame and profit. To witnesses who just can’t shut up, I say tell your story for free before trial if you absolutely must—if jeopardizing the case means nothing to you—but do not pass go, do not broker a deal, and do not collect any cash until after the trial. Judge Alfred DeLucchi implemented a great idea after the Scott Peterson guilty verdict. He disallowed any form of payment, not so much as a fruit basket, to Peterson jurors in exchange for talking until ninety days following Peterson’s sentencing.

  This way everybody’s happy: loose-lipped witnesses, the prosecution, the victim, and the victim’s family. There’s one sad face in the crowd: the defense attorney who just got robbed of a potentially explosive cross-examination. But I’m not using up all my energy blaming 7 2

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  greedy witnesses. There are plenty of other pigs gorging themselves at the jury rail.

  T O S E R V E A N D P R O T E C T —

  T H E I R O W N I N T E R E S T S

  Police investigations often take months, even years, to complete.

  The reality is that cops are lucky if somebody even says thank you when they’re done. I can’t count the number of bear hugs, handshakes, and letters that were written to me by cops after I uttered those two painfully obvious words. I saw it as a small gesture of appreciation after they put in extra hours to work a case, gave testimony on the stand, or undertook additional investigation at my request. Sadly, it’s more than most officers are accustomed to getting. To me, it’s the heart and soul of what law enforcement is all about . . . to serve and pr
otect a grateful public.

  They may be few and far between, but unfortunately there are bad apples, officers who are looking for a lot more than a simple thank-you or the personal satisfaction of a job well done. Montgomery County police chief Charles Moose, who headed the investigation into the Washington, D.C., sniper case in 2002, is one of them.

  During the shootings in the fall of that year, people in the D.C. area were afraid to pump gas, let their children walk from bus to classroom, or stop by the grocery store. Fear gripped those who lived in or around the nation’s capital as the body count around the Beltway rose by the day. Just one year earlier, the nation had lived through the September 11

  terrorist attacks. Many feared terrorists had returned and were now un-leashing their hatred on individuals. But now, unlike in most serial killings, there was no tie linking the victims to either each other or their killers.

  Moose quickly emerged as a hero while the horrific scenario played out in newspapers and on television around the country. He presented O B J E C T I O N !

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  a calm, competent front to the nation, assuring everyone the killers would be caught and justice would be served. Eventually, John Allen Muhammad and Lee Boyd Malvo were arrested and charged with thirteen shootings and ten murders in Maryland, Virginia, and Washington, D.C. The killers’ path of death and destruction extended all the way south to Alabama.

  Now, long after the mystery has been solved, Moose’s bid to cash in on the case continues its ripple effect. The idea of a police officer suc-cumbing to unbridled greed before a case even goes to trial gives being a police offer, formerly an honorable profession, a big black eye. And for what? A book deal. Moose signed with publisher E. P. Dutton in January 2003 to deliver Three Weeks in October: The Manhunt for the Serial Sniper. His story was based on the suffering of the ten innocent people who lost their lives at the whim of two nomadic killers as the victims went about the day-to-day business of living. Moose’s deal was reportedly $170,000, a little more than his annual salary. He claimed the book was a once-in-a-lifetime chance.