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Sunday, July 14, 2013


Now that the Zimmerman / Martin trial is over, I feel that I can risk a few comments about it. For reasons that will become evident in the following post, I was reluctant to contribute to the blather I heard and read while it was going on. I have written about this sort of thing before and will reprint pertinent portions of those posts which might clarify things. 

Back in 1994, I watched in mixed horror and amusement as my profession became the world’s most popular spectator sport. The OJ Show dominated media and water coolers for many months.

The spectacle was labeled “The Trial Of The Century” by a hysterical media. Of course, that is nonsense, except as it provided unprecedented ratings and thus profits to the cable networks, which depend on such events to fill unending 24 hour “news” programs with talking heads and looped footage of perp walks.

Although trials have always been news, the emergence of mass media in the 20th Century made them big business and mass entertainment. Historically, trials were considered “news” because of the social significance attached. Reporting of such crimes has always been biased.

In the ancient world, the trial of Socrates for crimes against the Greek Demos was reported by his students, Plato and Xenophon. The Salem witch trials continue to fascinate historians and poets, including Arthur Miller (“The Crucible”), who saw a parallel with the McCarthy witch hunts of the 1950's. In the late 19th Century, the libel trial of Oscar Wilde and the Dreyfuss trials in France were cultural landmarks as well as scandals.

America has had its share of highly publicized socially important criminal cases. In 1770, American patriot John Adams defended the most unpopular clients imaginable: British soldiers accused of the “Boston Massacre.” He won acquittals for 6, and lesser manslaughter convictions for 2.

Clarence Darrow became America’s most famous criminal lawyer in the Scopes trial, the first trial to be broadcast on radio, and defending rich spoiled murderers Loeb & Leopold (predating the Menendez case by 70 years). Both trials involved issues that linger today: evolution vs. creationism and the death penalty. The Sacco / Vanzetti and “Scottsboro Boys” trials of the 1920's and 1930's became liberal causes focusing on social injustice. The Rodney King trials, beginning in 1991 qualify by that standard. The Nuremberg trials after World War II could lay claim for Trials Of The Century without much debate if the standard is social importance.

In all of these cases, the public’s interest was based on more than morbid curiosity. There were issues perceived to be at stake and while the coverage was often distorted, biased, untrustworthy, the issues justified the attention.

But the media’s exploitation of the public’s fascination with criminal cases also forces appeal to baser instincts. The first “Trial of The 20th Century” was the murder / sanity trial @1906 of Harry K. Thaw, a millionaire playboy of The Gilded Age, who killed famous architect Stanford White in Madison Square Garden’s theater-restaurant over Evelyn Nesbit, a showgirl who was White’s mistress before she became Thaw’s wife.

Hearst and Pulitzer sold scads of newspapers as readers soaked up the first celebrity circus of the new century in which mass media would thrive and drive the bus.

In the 1920's, silent film comic Fatty Arbuckle was prejudged guilty of rape by the press driving public opinion and his career destroyed by the Hearst chain of newspapers despite the weak evidence of his guilt that led to his eventual acquittal after 4 jury trials. Along with other scandals of the new film industry involving sex, drugs, suicides, and other public misdeeds by celebrities, this event led to the censorship of movies in the 1930's.

Film stars have always provided fodder for media churning. Errol Flynn’s trial for statutory rape, Charlie Chaplin’s paternity suit, Lana Turner’s testimony in the trial of her daughter for the killing of Lana’s lover, Johnny Stompanato, are among the many that entertained the public. In the 1950's, scandal magazines like “Confidential” thrived on borderline libels that gossiped about “Commies,” “queers,” and “dope fiends” in Hollywood.

The Lindbergh / Hauptmann trial of the early 1930's was the most talked about celebrity crime and trial of its time, unusual because the celebrity was not the suspect but the victim. Lindbergh was the most famous man in the world at the time and the kidnap / murder of his infant son and eventual trial of the accused killer accounted for more headlines than The Great Depression or the ascent of Adolph Hitler.

The Simpson trial was alarming to lawyers who labor in the legal vineyard because it threatened to turn our profession permanently into a spectator sport. We feared that televising the trial would unfairly expose the delicate deliberative process of the courtroom to the microscopic distortions that would destroy it.

While most in the legal system (meaning judges) quickly saw the danger and drew back from the practice of televising trials, Court TV thrives and lawyers seeking instant fame continue to chew up airtime as commentators willing to speculate with little information about notorious criminal cases.

That this practice is damaging was proven by the so-called Duke University lacrosse team rape case. Media talking heads, many lawyers among them, were quick to condemn the accused students, forcing their suspension, the firing of their coach, racial tensions, and a long hard fight to prove their innocence despite the presumptive guilt.

In L.A., Phil Spector has been in trial for 5 months in the latest OJ spin-off. Judge Fidler, when allowing the trial to be televised live on Court T.V., vowed that he would not become subject of a SNL skit like “The Dancing Itos.” But his risk is high. The trial included events that can be attributed to or at least were affected by the cameras. Lawyers on both sides have played up the dramatics, skirted ethics, witnesses have groped for minutes of Kato Kailen-ish fame, experts have promoted themselves, court watching pundits have speculated wildly and the judge himself has grandstanded.

No one’s reputation has benefitted. The L.A. D.A. office, which has almost as much at stake as Spector, has not inspired any more confidence in its ability to prosecute rich celebrities than it did in Menendez, Simpson or Blake trials. The jury in the first trial deadlocked — to the embarrassment of the judge — who corrected his errors and induced a more popular verdict in the sequel.

Back in the Simpson days, I envisioned a dystopic future in which lawyers would enter courtrooms covered in logos for endorsed products. (By the way, I wear Armani, Chanel, Bass, carry a Cross briefcase, use a Mont Blanc pen and have my hair styled by José.) That day hasn’t yet come, but the future is soon. 

When I tried my last capital case, some of my family expressed an ardent desire to come to court and watch my case for a while during the penalty phase.

I tried to dissuade them for several reasons. First, I don’t want to be distracted by being aware of the presence of my loved ones. I am not “performing” but would be self-conscious - kind of the way you acted differently in Little League games when your parents were there.

Another reason is more subtle and hard to express without seeming to be mean. Court watchers - the curious and lonely eccentric people who wander in and out of courtrooms every day to watch trials just out of curiosity - are considered a bit odd.

I’ve always thought that the impulse to watch one of these trials exposes some kind of character flaw, a morbid need to dwell on someone else’s misery, to artificially inject drama into your veins.

If I was related to the deceased or the defendant, I would be offended if the trial became a spectator sport. I don’t like the idea of “Court T.V.” for the same reason. Yes, it is public, but in a real way, it is private, shameful, sad. It should be solemn, serious business - not entertainment.

Whether it is good or bad for the system or the society aside, it is simply bad manners. It is unseemly, to use an old fashioned phrase.

I mean, are there people who like to visit funerals or go to hospitals and sit in waiting rooms with families during cancer operations?

The last time family members attended one of my cases, they were most impressed with what they considered the oddity that my client (a quadruple murderer) smiled and waved a greeting to them. That they found this behavior “odd” is one reason that I am not anxious to repeat the experience. The fact is that my family and friends consider me to be even odder for living so comfortably in this kind of alien world where I am used to the idea that murderers can act and feel like people.

One of the reasons I felt constrained to hang fire was that Florida’s law, especially as to self-defense, was described by pundits as different from California’s. The so-called “Stand Your Ground” law, it was stated, shockingly permitted gun-toting trigger happy cowboys to kill suspicious strangers, especially if they were racial minorities who wandered into areas where they “did not belong.” Our states each have widely divergent criminal statutes, consistent only to the extent that they derive from English common law and are limited by our Constitution as defined by the Supreme Court and inferior federal courts (although each federal appellate district has its own variants on many procedural as well as substantive laws). 

Yet, California has a “stand your ground law” too. It has for as long as I have been in practice (over 40 years and counting, though more slowly). It is codified in a jury instruction (CALCRIM 3470) that  reads, in part, “. . . A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death or bdily injury . . . has passed. This is so even if safety could have been achieved by retreating. . . .” 

Others, including lawyers I know, moaned that the law in Florida is skewed to help from-the-hip shooters by shifting the burden to the prosecutor to prove the act was NOT in self-defense, rather than requiring the defendant to prove it. 

But the California jury instructions here too are similar. “The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. . . .”

I have a greater problem with an aspect of Florida’s procedure — the use of juries consisting of six rather than twelve people. The Constitution doesn’t demand a particular number of jurors, but twelve has been the traditional number since Magna Carta. Some have suggested that the number comes from the apostles, others some numerological mystery. 

Whatever the case, it has worked for hundreds of years and the question is why it was changed. 

The answer is clear: it is harder to gain unanimity with twelve than six. Prosecutors and judges are infuriated by juries hung up by one holdout. It forces expensive re-trials, and sometimes allows the guilty to escape punishment — by the delay, the loss of witnesses, the temptation to reduce the charges.  

The problem is that reducing the number of jurors also substantially reduces the degree of certainty of the verdict. Twelve people can be wrong, of course, and history is replete with examples (see all the DNA reversals, including some that I have reported on). But the greater number makes it more likely that a “cross-section of the community” will be approximated in the panel. 

The presence of a minority member on a jury lessens the likelihood of stereotyping, overt bias. The greater the number the more likely that balance will occur: in gender, economic status, education, world view, religion. 

Some time ago I aired two ideas which I believe are ripe for consideration now: 

ONE: I suggested televised executions as a cathartic to satisfy the bloodlust of death penalty advocates while also assisting our ailing economy by boosting ratings and giving us the ultimate “reality show.”  

TWO: In a later post, responding to the Casey Anthony sitcom which had elicited new tidal waves of reaction for and against conviction, I pitched my own reality show:

TITLE: "I, THE JURY" (with apologies to Mickey Spillane).

Simple high concept: 

Don’t worry about constitutional objections. Not a problem. Our Supreme Court is far more concerned with protecting and broadening the rights under the First Amendment: religion, press, speech, even if primarily commercial speech, corporations are "people", and the Second Amendment right to own and carry weapons of mass destruction than the less important provisions of the Fifth, Sixth and Eighth Amendments (look them up, yourselves — before they disappear — I know you probably never learned about them in school). 

After all, this is the ultimate of free speech and democracy. "The public’s right to know" trumps the mere technicality of the defendant’s right to a fair trial. As the current appellate courts remind us, a criminal defendant is not entitled to a "perfect trial."

Think of the possibilities for commercial tie-ins. Product Endorsements: (1) Lawyers’ wardrobes, accessories (Mont Blanc pens, computers, smartphones ...). (2) Sales of rights for films, books, blogs. (3) Ad placements in the courtroom.

I am so sorry that my legal career is winding down on the verge of this most wonderful era of criminal law cum entertainment.