by Nancy Grace
O B J E C T I O N !
9
D E F E N D I N G T H E
I N D E F E N S I B L E
One night in July 2002, I did on-air battle on Larry King Live with John Pozza, the articulate and engaging defense attorney who got Alejandro Avila, the accused killer of five-year-old Samantha Runnion, off the hook on child-molestation charges at Avila’s first jury trial in 2001.
From my perspective, that one court case could have saved Samantha’s life.
The Orange County, California, girl was abducted in broad daylight on July 15, 2002, as she played with her little friend in front of her house on a quiet residential street. Her grandmother was just steps away. The man who took her approached her by asking for help finding a lost puppy. Samantha’s lifeless, nude body was found the following day, disposed of like trash alongside a rural highway and posed in a position suggesting sexual assault. Police suspected it was the work of a serial rapist who would strike again.
Based in part on tips from the public and a physical description given by Samantha’s five-year-old playmate, twenty-seven-year-old Avila, a production line supervisor at a medical-supply plant, was arrested on July 19 and charged with kidnap, murder, and sex crimes. Orange County Sheriff Mike Carona indicated forensic evidence, DNA, proved that Samantha was sexually molested before her death. The death penalty can be sought in that jurisdiction if murder occurs during the commission of another felony such as rape or kidnapping. In this case, both occurred. If convicted, Avila could face death by lethal injection.
At his court appearance, Avila, dressed in an orange jumpsuit over a white T-shirt and sporting a goatee, stood demurely beside his court-appointed lawyer, paid for by us, the taxpayers. He gave only monosyl-labic responses to the court’s questions and was careful not to reveal any more than he had to in open court. He denied any involvement in Samantha’s kidnapping. His mother, Adelina Avila, “alibied” him, saying 1 0
N A N C Y G R A C E
he was at a local mall when Samantha went missing, although Avila’s cell-phone records apparently indicate otherwise.
Samantha’s horrific death could have been avoided. She could have lived and been spared the pain of kidnap, sex assault, and murder by asphyxiation. If she had lived, right now she’d be in grammar school like her other little friends. That dream died when John Pozza, Avila’s defense attorney at his first trial, waged war against the two nine-year-old girls his client was accused of molesting.
I was sick when I learned Avila had been charged with the molestations of the first two victims. During that trial, Pozza argued the girls had been coached into making their claims of abuse, and, with a straight face, he claimed police had somehow planted pornography on Avila’s computer. These claims hadn’t a shred of truth, but the defense lawyer argued them anyway. In January 2001, Avila was acquitted on all counts, rode down in the elevator just like the jury did, and walked from the courthouse a free man.
“Quite frankly, I was surprised,” Pozza later said of the acquittal he himself had engineered. “A lot of the evidence that the prosecution or the police had gathered would give one the impression that there was evidence of guilt there, and certainly it would be our job as his defense team to look very closely at that evidence,” he said. Pozza reported he was “shocked” when he learned his former client was charged with molesting and murdering five-year-old Samantha. Shortly after Avila’s arrest, he told CNN, “It has thrown my entire world off course.” I can’t imagine why. Criminal-defense lawyers and prosecutors alike know full well that molesters, especially, will strike again. They can’t help themselves. They may not get caught, but they will strike again. So why was he surprised?
He was likely concerned, however, that the public had found out that his mission in court—to attack the truth and hide evidence from the jury—had had disastrous results and that people would begin to question his role, not just his client’s. The word was out. The world had actually learned that defense attorneys obscure the truth from the jury and that O B J E C T I O N !
1 1
this time, as a result, a little girl had endured a brutal sex attack before being murdered. Pozza has stated that he was rethinking his career since Samantha’s death, but to one little girl’s loved ones that epiphany came too late.
Disagree with me if you want, but that’s how I see it. But for the fact that Pozza argued that cops planted porn on Avila’s computer, that two unsuspecting little girls had fabricated a story of sex abuse—while Pozza knew full well that Avila flunked his polygraph—Avila would have been behind bars that sunny afternoon when Samantha’s grandmother let her go outside and play. The afternoon Samantha thought she was helping a man find his puppy. The afternoon she was assaulted and murdered.
Pozza can’t hide behind his “duty” as a defense attorney. He can’t wash his hands of Samantha’s death.
Here’s what he said the night Larry King asked him about his role in Avila’s first trial:
K I N G : Did you believe your client didn’t do it at the time?
P O Z Z A : You know—at the time, Larry, I cannot say whether or not I believed his guilt or innocence. And really, I am not the finder of facts. So I try to remove myself from that and, basically, present the best defense I can for my client. That’s what I do for every client.
I was shocked to hear a defense attorney admit he tries to remove himself from the actual truth of his client’s charges, especially when child victims are involved. I have no doubt in my mind his brand of practice is in part responsible for Samantha’s death. Samantha’s mother rightly widens the circle of blame in her daughter’s death to include a jury who refused to believe two little girls, choosing instead to accept that the girls would lie and cops would plant pornography on Avila’s computer.
A few nights earlier, Samantha’s mom, Erin Runnion, told Larry, “I blame every juror who let him go. Every juror who sat on that trial and 1 2
N A N C Y G R A C E
believed this man over those little girls. I will never understand. And that is why he was out. And that is why his sickness was allowed to do this.”
That night, the Larry King Live staff had been very concerned for Runnion and worried about whether she could hold up for an entire hour’s interview. I was sitting in the darkened control room with the CNN crew as backup in case Erin Runnion broke down and couldn’t go on. I listened to her and my heart broke. I was overwhelmed with sorrow for this grieving mother. She was so brave. The next morning, that one single and very powerful quote regarding the jury’s part in Samantha’s death was picked up by hundreds of news outlets covering the story and instantly transmitted around the world.
As far as I’m concerned, the pedophile who killed Samantha is not the only one who’s sick. When Pozza and I sparred on Larry King Live, producers kept telling me, in my earpiece, to go easy on the defense lawyer, but I couldn’t. I was so distraught at what he had done. It turned into a knock-down, drag-out fight on air, with Larry breaking us up over and over. Another guest on the panel, defense-attorney-to-the-infamous Mark Geragos, also joined in the fray, taking Pozza’s side. I cried the whole way home, torn up by the heartbreak that had shattered the Runnions’ lives.
When I thought of what Samantha’s mother had said about the little girl’s having a huge poster from the Disney movie Hercules over her bed, I broke down once again. When Mrs. Runnion tried to warn her daughter about “bad people” whom she should be careful of, Samantha’s response was so incredibly innocent. She said she’d “be like Hercules, Mom, I’ll just run.”
Samantha wasn’t fast enough to outrun Avila, who had allegedly been trolling the neighborhood for little girls to molest. The justice system wasn’t clever enough for the likes of his first trial lawyer, who, in spite of the truth, managed to get his client acquitted. Samantha is dead, and he wonders why?
Here’s why: Because defense attorneys truly believe it’s all a big game. A game they can win. Who can outsmart whom, who bests
whom in court, who is clever enough to trick a jury into hating cops or O B J E C T I O N !
1 3
disbelieving children who take the stand and swear to tell the truth. If I had to wake up every morning knowing my job was to get repeat offenders off the hook to roam the streets yet again, I swear I couldn’t practice law at all. But it’s all okay in their minds. They adhere to the rules of evidence and to their unique take on ethics. They are simply doing their jobs—according to them anyway. Not according to me.
The game Avila and his new defense attorney, public defender Denise Gragg, are playing with the system continues today. As of this writing, Avila’s trial has been postponed numerous times. Delay is a defense lawyer’s best friend for a multitude of reasons: lost witnesses, fading memories, overcrowded jails and courtrooms. Any number of things can happen the longer a jury is prevented from hearing the case.
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.
1 4
N A N C Y G R A C E
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.
O B J E C T I O N !
1 5
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
N A N C Y G R A C E
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 !
1 7
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