by Nancy Grace
I knew this constituted a warrantless search when there’d been plenty of time to get one, but those rules are for the cops conducting a search (the opening of the package), not private individuals like neighbors or doormen who spot your friendly messenger service dropping off cocaine. With Fierer as the defense, I knew he would have a fleet of assistants poring over the law as it applied to these facts, so I had to get ready. I researched for days in order to prepare for what was sure to be a down-and-dirty court battle. On that first day, I felt ready and armed to the hilt with law and testimony for the suppression hearing. According to my research, this was the bottom line: Sorry, Charlie, but the Constitution doesn’t protect you from the doorman.
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For the first day of the trial, I wore my lucky black trial dress and shoes (recently resoled) and got to court early to set up all my legal documents. I sat behind the state’s table, closest to the jury box, with the beat cop on the case seated beside me. We had been through a lot together working the case. His part was done—it was now up to me to win the legal battle. Right before court was gaveled into session, Fierer, who stood six foot three, strode into the courtroom looking like a quarterback about to toss the winning touchdown. Instead of going to counsel table, he went straight up to the bench, where, as if by cue, the judge came out from his chambers, black robes flowing, hand extended to shake Fierer’s. They both broke into broad smiles and chatted like old friends. My heart sank.
Were they friends? Had Fierer dumped lots of money in the judge’s last campaign for the bench? I didn’t know what to think. Without looking at them, I strained to hear what they were saying but couldn’t. I sat there stunned when I realized what favoritism could mean to my case.
The defense announced it wanted a bench trial—one without a jury.
I fought the motion, which of course offended the judge, and was overruled. The sole decision in the case would be that of this judge. I couldn’t do anything but argue my guts out. I knew to at least act as if I were used to arguing against lawyers of Fierer’s caliber. Then it was time for witnesses. I put up the beat cop first to pave the way for the weaker witness, the doorman. From what I could tell, the doorman was stone-cold sober, and he testified looking straight up at the judge, like an angel singing—to me at least. At the end, I argued not just the law but the importance of the case. I spoke about how all the eyes of the community were on this courtroom, how so many people were counting on us to do the right thing. I had little hope when the judge went to chambers and left us to stew, waiting on the ruling. The Honorable Don Langham honored the bench and ruled for the state. The cocaine was in evidence. The case was over. My faith in the system, including judges, was bolstered.
Afterward Fierer refused to speak to me. He just gathered his files as if nothing had happened and stormed out of the courtroom. He didn’t speak to me for a very long time after the trial, which was perfectly O B J E C T I O N !
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okay with me. Even when we’d meet in the courthouse elevator, just the two of us, we were like two wet cats in a barrel.
Here’s an interesting postscript to the story: Ehrlich went to jail, and Fierer continued his high-flying, high-profile practice of law. We never crossed swords again. But years later, the feds launched a secret investigation of Fierer and his alleged practice of scamming clients out of hundreds of thousands of dollars. It boiled down to a carefully executed scheme in which Fierer and his associates, Conviction Consultants Inc., arranged for federal inmates to exchange fake information against other inmates in order to “cooperate” with the feds.
If it worked, the feds would reduce the snitches’ jail time consider-ably in exchange for the phony information. Those behind bars who could afford to cough up about $25,000 a pop were then connected to outside in-formants who supplied information helpful to unwitting agents and prosecutors in other cases. Fierer’s scheme erupted into a major scandal and threatened the legitimacy of multiple convictions based in part on informant testimony. The whole concept of rewarding inmates for their information became fair game for defense attorneys to then argue to judge and jury, jeopardizing hundreds of verdicts and investigations. Fierer went to the federal penitentiary and lost his law license. There is a moral here, I’m sure, but what I’ll remember most is the untouchable defense lawyer who unwittingly taught me to believe that justice can and will happen if you fight hard enough. You have to have faith in the system. I have the vivid memory of Fierer entering the courthouse for his own sentencing at the federal courthouse, much the same way he strode into the courtroom that day, as if he had the world by the tail. Head held high, hair carefully blown back, with that million-dollar smile—that’s how I remember Bob Fierer.
P R O S E C U T O R S O N T R I A L
As a prosecutor, you definitely pay a price. You get paid slave wages and are then attacked as the bad guy at every turn. Your every move is 1 6 0
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publicly painted by the defense as nefarious and sneaky. After all, defense attorneys argue, you are responsible for and dedicated to putting innocent people behind bars. After fifteen years in the courtroom, I have come to the realization that very rarely is there an evil plan or a conspiracy hatched by the prosecution.
And you know why?
Because, frankly, when you’re looking at a workload of about eight hundred to a thousand cases, you really don’t have time to plot and plan to put innocent people behind bars. It’s all you can do to prosecute the guilty ones! But that has never stopped the defense from painting a very twisted and dark picture of the prosecution.
During Scott Peterson’s trial, I remember how on-air pundits continued their nightly attacks against prosecutors Rick Distaso, Dave Harris, and Birgit Fladager. They were portrayed as bumbling at best, unethical at worst. After I met them and watched them in court, I saw they were nothing of the sort, but instead were excellent, dedicated, and honorable.
Another prime example of personal attacks against prosecutors is what was leveled at Marcia Clark and Chris Darden during the O. J.
Simpson trial. They were state employees pitted against a multimillion-dollar defense team of courtroom stars and master manipulators that included the consummate defense attorney Johnnie Cochran, evidence whiz Barry Scheck, Robert Shapiro, and world-renowned orator F. Lee Bailey. Realistically speaking, did Darden and Clark ever have a chance?
Despite some inevitable mistakes they made during the course of the trial—and there were some whoppers—I always supported them. I knew how it felt to give 200 percent, to do the right thing and end up with a kick in the teeth. But it wasn’t always easy. Their biggest mistake, of course, was the infamous episode when Simpson was allowed by the state to try on a dried, bloody glove in open court. Darden allowed the one person in the world who would most want to harm the state’s case—the defendant—to participate in an unrehearsed, unprepared, in-court demonstration in front of the jury with the critical piece O B J E C T I O N !
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of state’s evidence. Darden handed it to him and allowed Simpson, in one defining moment, to blast the state’s case to pieces. Of course the glove didn’t fit—because Simpson wouldn’t let it fit. What could Darden do then? Wrestle Simpson to the ground and force him to put on the glove? The whole thing was a disaster.
Another egregious error committed by the state in that case was not preparing for the bombshell that exploded during the cross-examination of Mark Fuhrman. The reality was that Fuhrman should have been prepared for what was to come, so he could own up to his past and say,
“Yeah, I said it. Hate me, but I found the glove. I’m not the one who killed two people—he did” (pointing at Simpson of course). Because he apparently was not prepared for the devastating cross-examination, Fuhrman’s past became the focal point of the trial—not the two dead bodies that were found lying in the front yard of Nicole Brown’s home on a warm June evening in Brentwood, California
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Despite all that, I would always defend Christopher Darden and Marcia Clark every time I was on television talking about the trial, because I believed—and do believe—that they were doing the right thing. I believe firmly they had the right guy and that they were seeking justice with all their might. But their efforts were thwarted in that California courtroom. Not just by the defense but by Judge Lance Ito, who had fallen in love with the spotlight and lost control of the courtroom.
In the circus that was the Simpson trial, the private lives of Clark and Darden were laid bare. When reporters weren’t writing articles speculating about whether they were lovers, they were posing and answering the burning questions of the day (often with little or no hard facts to back up their stories): Who were they dating? What happened in her divorce? And, probably the most moronic and hurtful of all questions: Why wasn’t she spending more time with her children? I remember storming off a network radio interview because all they wanted to ask me about was Clark’s hair. I found that incredible in light of the fact that she was trying a case based on the slaughter of two innocent people.
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symbolic of the state. If she wore short skirts, the state lost credibility.
If her hair was made fun of, the state lost credibility. If you didn’t like her makeup or thought she had bags under her eyes one day at trial, the state appeared “worn, haggard, defeated” before the jury. She couldn’t win for losing. Was it fair? No. But that is the reality of being a prosecutor. You are held to a much different standard. Being a woman makes it even tougher. I learned early on that this was simply a fact of life.
Whenever I would go out, I was always very careful about where I went and how I behaved. I was always very aware of the people I was with, because when you are standing in front of juries four or five times a month, with each panel made up of one hundred people from your community, you are identified with the state. You represent the state. You become the state. If a prosecutor’s behavior is deemed unseemly by any number of sources—in or out of the courtroom—then the state loses credibility.
Sometimes the attacks against the prosecution veer into disturbingly dangerous territory. I was prosecuting at a time in my life so close to my fiancé’s murder that in my grief I simply didn’t care one way or the other about what happened to me. This may be better for a shrink to decide, but it could, when I look back on it, very well explain why many times I acted as if I were invincible. I thought I had already lived through the worst thing that could happen to me. I guess I thought, What else could happen? Despite being in some pretty scary situations, I don’t remember ever being afraid.
I often got death threats on my answering machine. There were always plenty of hang-ups and obscene phone calls, but I shrugged them off as being from malcontents at the jail. One night, though, I’d had enough. I was working at my desk when I got a threatening call, and I finally answered back, “You know what? You’re probably in a jail right now, but as soon as you can, grab a bus and come on over here. I’m waiting here with my investigator and his .357. We can’t wait to see you!” Click. Of course, nothing ever happened.
Getting heckled on the way to my car after leaving the courthouse O B J E C T I O N !
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was pretty much a regular occurrence. There were lots of nights when I would have my hands full of files, my pocketbook, my briefcase, and be clipping along in my high heels while walking up the steps to the sixth floor of the parking deck. It would be eight o’clock at night, and I’d be on my way to go teach night school—on my way to yet another enclosed parking garage. Once in a while, it would dawn on me— You know, I’m here all by myself in this big concrete structure—but I’d just keep walking. Sometimes, I’d get to my car and find the windshield smashed in. I knew the number of “Dr. Glass” in Atlanta by heart, because they would come and fix your car right there. But it never got to me. When things like that happened, it just made me dig in even more.
T H E P R O S E C U T O R W O R E
A S K I R T
It may not be politically correct to say, but being a female prosecutor comes with its own set of challenges. Sexism is alive and well in the courtroom. You’d think that having more women in the system would fix the problem, but I haven’t found that to be true. I’m not sure why, but sometimes female judges are harder on female lawyers.
When I first came to the district attorney’s office, there were very few female cops and lawyers—female judges were even harder to find. At the time, women were usually assigned to work juvenile cases, which are not jury trials and do not apply many of the standard rules of evidence. We were usually going after deadbeat dads, writing appeals, or acting as assistants to trial lawyers. Practically everybody involved in the actual trial of cases was a man—except the jury and, in many cases, the victim.
I’ve been called “little lady,” “young lady,” “lady lawyer,” and other not-so-nice names, right in front of juries by defense lawyers, experts, and judges—pretty much by everybody but the jury. Every time it happened, I’d look that person right in the eye and act as if I hadn’t heard it. I’d inevitably catch at least one woman on the jury with a look 1 6 4
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of disgust on her face, as if to say she couldn’t believe that someone had said something that condescending. So what was meant to knock me off balance usually had just the opposite effect and offended at least a few jurors. I never said a word. I didn’t have to. The women on the jury said it for me with their verdicts.
Sometimes the sexism was far more insidious. During a 1995 trial in which I was prosecuting a defendant on rape, sodomy, and murder charges, I was working late one night when I heard the sounds of someone outside my office. My first thought was, Why is somebody still here this late? An investigator for the defense had gotten into the building and delivered a motion under my door. He didn’t know I was still in there working. I went over and picked it up and then sat down in tears—
mortified. It was a motion filed to enjoin me from wearing skirts a specific number of inches above my knee or a blouse that was too low-cut. It also enjoined me from bending over in front of the jury facing either way.
I felt completely humiliated. All court documents are public. Anyone can find out anything about a case by going down to the courthouse and looking it up. I cried (behind closed doors, of course), because it was a public embarrassment to be accused of dressing inappropriately—
and it was flat-out not true. I still have every one of my ten trial dresses that I wore over and over and over. Every one of them covered me from neck to wrist to knee. I was personally attacked on a groundless charge that was meant to deflect attention away from the trial.
This ended up becoming a major distraction, because feminist publications from all over the country sent reporters to Atlanta to cover the story. Scores of television journalists from as far as New York came to court wanting to interview me about the motion. At the same time I was seeking justice in a case where an unnamed woman was found raped, sodomized, and strangled to death by the defendant on trial, I was being forced to address questions about what I wore to court. Even without this unwanted sideshow, I had a very difficult case to prove. I never even knew the identity of the victim.
The motion, one of the many ways the defense attempted to derail O B J E C T I O N !
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the case, was scheduled to be argued in court. The trial was a murder case and based strictly on scientific evidence. There were no eyewitneses and no confessions. It was being heard by the same judge who had presided over my very first jury trial nearly ten years before, an attempted shoplifting. He had seen me in court many, many times.
The room was filled with reporters, fellow lawyers, and witnesses, all seated and listening intently. I kept my eyes trained on the judge.
Miraculously, as if an angel had heard my prayer, the j
udge cut off the defense lawyer who had stood to deliver his oral argument. The motion was overruled. He was told in no uncertain terms: No discussion, no dramatics—now call your first witness. Many days later, the jury convicted on murder one.
While I remained focused on the victim, the defendant had something else in mind. Guards at the jail discovered during a routine search of his cell that he had created a file on me, complete with creepy poems and death threats. All the material was confiscated and handed over to the police. In my mind, the lawyer’s behavior in this case was just a reflection of his client’s. They were perfectly suited to one another. But the truth won out in the end. The defendant got life plus twenty plus twenty.
One of the reasons I am writing this book is to propose remedies for the existing problems in our justice system. Sexism is still an issue. It’s the same way in the courtroom as it is in every other profession in this country: Women have to work twice as hard to be taken seriously and get the same job done as their male counterparts do. Lawyering is no different from any other profession in that way. There is one big difference in how it affects female lawyers, though. The prejudice against female lawyers has an impact on more than the individual—it affects her clients, her cases, and her causes. A case could be won or lost because of a sexual bias. Traditionally juries love judges, because they look up to them and respect them. Whether that bias originates with the judge or the defense, the jury picks up on it.
