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

by Nancy Grace

  Unless you’ve lived under a rock for the last year, you know exactly who Juror Number 5 is and what he meant to the case of State v. Scott Peterson. On June 23, 2004, the now-infamous Juror Number 5 was booted from the Scott Peterson jury and the world got a rare peek into one of the twelve minds in the Peterson jury box. When the press revealed Justin Falconer to be Juror Number 5, he became an overnight sensation. He was everywhere—on all the network morning shows, Larry King Live, Court TV, and on syndicated radio. Falconer told the world he believed that Peterson, on trial for the murders of his wife and unborn son, was innocent and that the state had failed to prove its case just weeks into the trial.

  I unwittingly became part of the story. Falconer got the boot after video in the courthouse lobby showed him speaking directly to a witness in the case, Laci Peterson’s brother, Brent Rocha. The judge, a seasoned trial veteran with plenty of death-penalty trials under his belt, summoned Falconer to his chambers to make sure no inappropriate discussions had taken place regarding the facts of the case. Prior to the exchange with Rocha, though, Falconer had become a point of interest to journalists and legal pundits alike for his seeming familiarity in court with Scott Peterson and his attorney, Mark Geragos. Allegedly, upon entering the courtroom each morning and when returning from breaks, Falconer would give encouraging smiles to the defense table as 4 6

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  he walked by. Talk about nonverbal communication! If I had been the prosecutor, I would have been beside myself!

  In any event, during the conversation with Judge Delucchi, it turns out that Falconer gave him an earful—including the fact that his (Falconer’s) girlfriend was a frequent Court TV watcher and was so furious with the “Court TV lady” (me) that she wanted to “kick the crap” out of me. That apparently caused Delucchi to perk up his ears and put two and two together. However innocently, Falconer’s girlfriend had been relaying tidbits of coverage about the Peterson trial to her boyfriend—a Peterson juror.

  In the days leading up to the Falconer revelation, I had complained bitterly on air about the familiarity shown between Falconer and the defense camp and I made no secret of it. Of course, Geragos was furious after Falconer’s dismissal and suggested that the media had somehow arranged the entire incident in order to pressure the judge to dismiss a pro-defense juror. Geragos even filed a motion for mistrial over the whole thing and called it an “outrage.” What is an outrage is that Laci and Conner were murdered and dumped in the bay—but that’s a whole other story.

  I didn’t like much of what Falconer had to say about the state’s case or his take on it, including his insistence at the early stages of trial that the state had failed. In my mind, the evidence against Peterson was overwhelming. But here’s the reality: I don’t have to like it. Whether or not you agree with Falconer’s assessment of the case, in his mind the state had failed. As a prosecutor, you never get a second chance in court, but Falconer gave the state that chance. Even though his medicine tasted bad going down, he opened their eyes to the perceived holes in their case. The state’s duty is to convince the jury beyond a reasonable doubt, and whether Falconer was right or wrong, the state’s duty was to convince him as well. I was shocked by his revelations, but I know I learned a lot about a juror’s thinking, seeing the case through his eyes.

  In the end, Delucchi denied the motion, and the case went on. The O B J E C T I O N !

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  reality is that Falconer did wind up being incredibly pro-defense, even stating point-blank, “There’s no way you could possibly convict him.” I know that because I interviewed him on air myself. Since that time, he has visited me at the Court TV truck when I was in Redwood City covering the case. One time he even brought his girlfriend—and guess what? She didn’t kick the crap out of me.

  S T A R G A Z I N G

  Jurors throughout history have been swayed by their own prejudices, their likes and dislikes, their instinctive perceptions of a defendant, of the prosecutor, or even of a particular witness. People might not have had a voracious news media to deal with over two hundred years ago when the jury system was first created, but many of the same societal problems existed then as exist now. They have simply grown to twenty-first-century proportions.

  In today’s high-profile trials, the “public” now encompasses not only the whole country but the entire world. Information is communicated instantly around the globe via satellite. Our global village has a huge appetite for and an endless curiosity about celebrities, an appetite that can be satisfied any time, day or night, simply by clicking on the television. Every aspect of these revered stars’ lives is available to us 24/7, including where they have their hair highlighted, what car they drive, where they shop, even where and with whom they had dinner the night before.

  The “starstruck juror” is nothing new, and celebrity trials certainly aren’t a new phenomenon either. As long as there has been a jury system, every village and city has always had its own “celebrities”—the wealthiest person in town, the mayor’s wife, the high-school quarterback, the homecoming queen. There have always been those people, who for whatever reason (largely because we think these individuals have “perfect” lives) fascinate other people. Prosecutors have always 4 8

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  had the additional hurdle in the burden of proof of overcoming celebrity status. It is extremely difficult for a prosecutor to get a celebrity convicted, be it an A-list athlete (O. J. Simpson), a politician’s relative (William Kennedy Smith), or a Hollywood star (Sean “P.

  Diddy” Combs). The glaring spotlight of celebrity is often blinding.

  Die-hard fans continued to give Kobe Bryant and Michael Jackson their devotion regardless of the charges lodged against the two stars.

  But star defendants need not be A-listers like Jackson or Bryant to have the same effect on starstruck jurors. In July 2003, after a Houston jury acquitted then–Astros shortstop Julio Lugo of assaulting his wife, they pressed the infielder to sign autographs in the jury room.

  Although the accused might not be a household name, juries seem equally dazzled by wealthy defendants. In 1982, John DeLorean, the creator of the futuristic eighties sports car, the DeLorean, was charged with conspiring to smuggle $24 million of cocaine into the United States. At his 1984 trial for drug trafficking, the prosecution showed videotape of DeLorean discussing the drug deal with undercover FBI agents. The defense maintained that the government had entrapped him and that DeLorean was a man driven to desperate acts because his company was on the brink of financial ruin. A jury found him not guilty.

  History seems to be repeating itself. Before Judge Michael Obus declared a mistrial because of the perceived threats received by juror Jordan in the Tyco trial, it seemed unlikely that the jury was headed for a unanimous guilty verdict against CEO Dennis Kozlowski and CFO

  Mark Swartz. Despite mountains of evidence to support the state’s claims the executives stole $600 million from the company and spent it on, among other things, a $6,000 shower curtain and museum-quality artwork for their homes, a guilty verdict apparently wasn’t on the hori-zon. Jordan announced the prosecution had not proved criminal intent.

  The defense can only hope another enamored juror winds up as part of the jury pool in the new trial.

  Although I rail against it, the truth is, the poor and uneducated are much more likely to be treated harshly. One popular theory is that the O B J E C T I O N !

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  wealthy can afford to hire a better defense team. The other important factor is that jurors are wrongly predisposed to think that someone who is successful, white, and without a documented criminal history is less likely to commit a crime. Throw into the mix an individual on trial whom the jury believes they actually know, someone who has been in their homes many, many times—albeit on the television screen—and it’s almost impossible to get a conviction.

  The idea that any of these privileged defendants are less likely to commit wrongdoing than, say
, a minority just slogging through the day like the rest of us, is simply not true. The famous, the beautiful, the well-educated, and the wealthy, with impossibly straight white teeth and sporting couture clothing at trial, are just as susceptible to greed, anger, and evildoing as anyone else. It’s just tough sometimes to convince a jury of that.

  G R E E D B Y T H E B O O K

  When Chaucer wrote The Canterbury Tales, he put Greed on the list of the Seven Deadly Sins. Greed has been around since time began and now it has wormed its way into the jury deliberation room. Why? Because we as a society have made it possible. Centuries ago there was no National Enquirer offering big bucks for first-person accounts from jurors and no competition-crazed TV and movie producers wooing jurors to trade information for national notoriety. There was no Dateline, no local news that could make instant celebrities out of jurors addicted to the limelight. In the not-so-distant past, jurors may have gotten some semblance of notoriety within their communities, but they couldn’t make any real money off it. Now they can, and they pose a serious threat to our justice system.

  Today’s jurors have discovered there’s money to be made by sitting in the jury box. The public’s hunger for information about high-profile trials—for the “inside story” that now must be secured at any 5 0

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  or all cost—has spawned a distinctly contemporary phenomenon that’s at the root of the problem we now face: juror greed. This disturbing new development is a many-tentacled monster. It hungrily reaches out from the courtroom steps to feed its insatiable appetite for fifteen minutes of fame and fortune, courtesy of the exposure and hefty checks offered by tabloids, television, and publishers hawking tell-all books.

  A decade ago, the “trial of the century” ignited the juror–turned–

  literary cash cow phenomenon. The Simpson trial spawned scores of books, including I Want to Tell You: My Response to Your Letters, Your Messages, Your Questions, written by the defendant before the trial even started. Jurors quickly followed suit. First there was The Private Diary of an O.J. Juror: Behind the Scenes of the Trial of the Century, by Michael Knox, O.J. Juror Number 620. The book is a wordy tell-all from a juror who was thrown off the case for lying about his criminal record. Talk about tainting the jury! Knox’s gossipy tome (cowritten with National Enquirer columnist Mike Walker) was published while the trial was still going on. Then came Madam Foreman: A Rush to Judgment? by Amanda Cooley, Carrie Bess, and Marsha Rubin-Jackson. Cooley, the foreperson on the Simpson criminal trial, united with two other jurors to defend the most infamous acquittal in recent history.

  Of all the exploitive moves by the major players of the O. J. Simpson murder trial, this one takes the cake: Tracy Hampton, the twenty-six-year-old flight attendant who quit the jury early in the case claiming stress, posed for a layout in the March 1995 issue of Playboy. In keeping with the decorum of the trial, the spread was shot in a courtroom setting. My verdict? In the words of O. J. Simpson himself, Hampton is definitely “100 percent not guilty” of having too much class.

  I learned firsthand how the Simpson trial forever changed the way jurors view their civic duty. In 1995, while I was still prosecuting felonies in Atlanta, Geraldo Rivera asked me to come to New York to do a show with Cooley and the other jurors who had written Madam Foreman.

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  Rivera had kindly featured me as a regular on his nightly legal show during the trial. This was my chance to finally get a look at this jury for myself. Their verdict had astounded me and disappointed me. I actually felt I had the wind knocked out of me when it was announced. I was completely intrigued with the idea of meeting some of the jurors responsible for Simpson’s acquittal.

  The jurors on the show were unfailingly pleasant to everyone. Regardless of what I threw at them, they either acted as if they had no idea that the damning evidence I brought up even existed or simply dis-counted it as not being persuasive enough. I realized that even if these ladies had a Technicolor movie playing in surround sound of Simpson doing the deed, they’d choose to believe it was a fake, doctored by police, and vote to acquit all over again. Trying to reason through the evidence with these ladies was like shrieking at a deaf man. After throwing numerous pointed questions about the evidence at them and minding my manners on air as best I could, I finally realized that nothing and nobody would ever get through to them. Even if they ever thought they were wrong, they’d never admit it. There was nothing left to prove. The trial was over.

  After the show, we all walked out to the street together. It was a cold, gray day in Manhattan, and I had dressed for Atlanta weather, no coat, hat, or gloves. The women walked straight to a waiting white stretch limousine and started trundling in. I stood there saying my good-byes. As the last lady juror stepped into the car, she turned back and looked me straight in the eye. I’ll never forget her words: “Nancy, you know, this trial has been the best thing that ever happened to me!

  I’ve been to the best restaurants, hotels, shopping, everything! It’s really been something!” She got into the car, and the door slammed shut.

  I just stared at the car as they drove away.

  I felt numb. As I watched the limo’s taillights disappear east up the street, my eyes filled with tears. I thought of Nicole Brown and Ron Goldman lying dead outside Nicole’s home in a river of their own blood.

  I pictured their families distraught and crying on the hard wooden pews 5 2

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  of the courtroom the day the verdict was read. The best thing that ever happened? My own blood ran cold.

  The Simpson case might have been the tipping point for jurors-turned-pseudojournalists, but the incidence of such unabashed greed isn’t new. Before that case commandeered the title of “trial of the century,” it had been assigned to many trials, including that of Jack Ruby, who was the unapologetic vigilante-justice killer of Lee Harvey Oswald, the accused assassin of John F. Kennedy. The 1964 trial spawned one of the first jury-service-for-profit novelists. Max Causey, a thirty-five-year-old administrative engineer, was elected foreperson on the trial. During jury selection and trial, he kept extensive notes. Those notes became the basis for his memoir, The Trial of a Juror, published two years later. In 2001, Causey’s nephew, John Mark Dempsey, released the book with new material, including interviews with other jurors, under the title The Jack Ruby Trial Revisited: The Diary of Jury Foreman Max Causey.

  The Charles Manson case was another major trial in which jurors realized they could capitalize on jury duty and take it straight to the bank. The Manson jury spawned several books, including Trial by Your Peers by juror William Zamora, whose book was later rereleased under the title Blood Family. Also from the Manson trial: Witness to Evil by juror George Bishop. It turns out everybody saw dollar signs after that trial. In a bizarre twist on the juror tell-all genre, even the spouse of a Manson juror penned a book. Rosemary Baer wrote Reflections on the Manson Trial: Journal of a Pseudo-Juror.

  When I interviewed Bernhard Goetz after his trial, he told me in a quiet voice that the multiple shootings at the center of his “Subway Vigilante” case stood for more than the facts at trial. He explained that he saw himself as one man fighting back in his own deadly way against crime when no one else apparently would. His case now stands for the juror-gets-rich phenomenon as well. The Subway Gunman: A Juror’s Account of the Bernhard Goetz Trial was written by Mark Lesly with Charles Shuttleworth. Lesly, a martial-arts instructor, along with other O B J E C T I O N !

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  jurors, second-guessed postverdict and bent over backward to justify their decision to acquit. Cha-ching!!

  Hung Jury: The Diary of a Menendez Juror, authored by juror Hazel Thornton, proved that a verdict wasn’t a prerequisite for a juror looking to cash in on crime. I had no idea that someone would be so proud to be on a jury that couldn’t reach a verdict on a case involving two adult sons accused of murdering their father and mother in cold blood.
But the story of two spoiled young men who escaped justice for a short time after running through their parents’ assets, drunk on money they would never have thought to go out and earn themselves, was just too sensational for publishers to pass up.

  While the Tyco jurors made plenty of headlines just by being themselves, it was reported by New York magazine that one of them, a nurse named Parker Bosworth, planned to write a tome entitled Tyco—The Trial: A Nurse’s Diagnosis but then reconsidered. Another one of the jurors, Peter McEntegart, a reporter for Sports Illustrated, wrote about the case for Time magazine. We’ll have to wait and see if his story or those of others who were in the deliberation room with him turn into juror tell-alls.

  This disturbing phenomenon cannot be blamed solely on the celebrity of the defendant. No one knew who Erik and Lyle Menendez or Charles Manson was before they committed their gruesome crimes.

  They became infamous because of their cases. What is most disturbing is not that books about high-profile murder cases are being written, but that the plan to write them may be born before or during voir dire. This concept is critical because, if true, it bears on the motives not only for jury service but for a particular verdict—the outcome of the trial itself.

  Most often a conviction sells the best, followed by an acquittal, with a hung jury placing a very distant third place. If it is ever shown that a book deal, plan, scheme, notes, or even concept existed pre–opening statement, there is a huge risk of mistrial hanging over what may otherwise be a valid true verdict.

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  T R I A L B Y J U R Y

  I was always intensely anxious during jury selection in cases I tried, because it was so pressure-filled. In my earliest days as a prosecutor, it was the part of the trial I looked forward to the least. While I came to really enjoy this aspect of trying a case, there were a few episodes along the way when I thought for sure I’d blown it.

  While I had no problem prosecuting rapists and murderers, I found it very difficult to stand up and ask a hundred potential jurors, “Have any of you ever been arrested or been in trouble with the law in any way?” It felt so intrusive, even downright rude. Being from the South, I was raised to believe that good manners are all. I also knew that if a juror was rubbed the wrong way by that question, I could never have him or her on the jury. I was also sure that if I inadvertently got someone who’d had a brush with the law onto the jury, I’d pay for my mistake come verdict time.