by Nancy Grace
The Son of Sam laws were actually reversed by the Supreme Court back in the case of Simon & Schuster, Inc. v. New York Crime Victims’
Board, 112 S.Ct. 501 (1991). The case arose after convicted gangster Henry Hill detailed his life of crime with the mob in a book titled Wiseguy. New York columnist Jimmy Breslin praised the book, which became the basis for the movie Goodfellas, calling it the “best book on crime ever written in America.”
The Supreme Court allowed Wiseguy to be published. They declared the Son of Sam laws unconstitutional, claiming they violated criminals’ First Amendment right to free speech. The Court held that the laws must be narrower because they included those charged with a crime in addition to those convicted. The justices wrote in their decision that the laws did not distinguish between works substantially about the crime versus those that mentioned the crime tangentially. For instance, Malcolm X had been behind bars, yet his works were not about his crimes but about his vision for societal change. Under the original Son of Sam laws, those works would have been banned.
Amazingly, after the reversal of the Son of Sam laws made criminal profiteering easy, few states took action. Most have not revised their laws to address the Court’s Wiseguy ruling.
In 2000, Mary Kay Letourneau—the former elementary-school teacher from Seattle, Washington, who had a sexual relationship with one of her sixth-grade students, then-twelve-year-old Vili Fualaau—was 1 0 2
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legally allowed to help publish a book chronicling the “affair” despite being sentenced to jail in 1997 on a statutory-rape charge.
The State of Washington’s State Court of Appeals ruled that Letourneau could not be barred from profiting from her story as part of her sentence, despite a Washington State law that allows for the confisca-tion of profits made by criminals in describing their crimes. At the time, attorney James Lobsenz cited the U.S. Supreme Court’s decision ruling that convicts have a constitutional right to profit from book sales and movie rights, saying, “Is there any possible way we can argue with a straight face that our law is meaningfully different than the Son of Sam law in New York that was struck down?”
A French publishing house contacted Letourneau’s attorney, who brokered his client and her underage lover a $200,000 advance for their story. The title of this page-turner? Un Seul Crime, L’amour—
Mary Kay Letourneau & Vili Fualaau, which translates into—buckle your seat belt—“Only One Crime—Love.” The book even included a defense of Letourneau penned as a prologue by Fualaau’s mother, Soona.
The opportunity for criminals to cash in on their crimes must be stopped once and for all. The fix? Address the Supreme Court reversal in the Wiseguy case and carefully specify what is allowed and what is not. Works that deal with a crime and profit from that crime specifically would be allowed—but all the money would go to the victims. The revised law would not suppress criminals’ right to speak but would prevent them from making money off a work that is substantially about the crime. This is a sane and sensible solution.
The issue came to the forefront again when a California judge ruled against Sharon Rocha, the mother of Laci Rocha Peterson, in 2004.
Spurred on by reports that Scott Peterson was planning to profit from his own account surrounding the events of the murders of Laci and their unborn son, Conner, Rocha filed a lawsuit in Stanislaus County Superior Court. She asked for an injunction to transfer any income Pe-O B J E C T I O N !
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terson may receive from books or movies to a protected trust until a verdict in the case was reached.
In the lawsuit, Rocha claimed that Peterson and unnamed others
“have solicited, arranged payment for, received or will in the future receive ‘proceeds’ from the sale of rights to or materials that include or are based on the story of a felony for which Peterson is charged . . . and
[of which he] may ultimately be convicted.”
With no Son of Sam protections, such civil lawsuits must be filed by relatives of a homicide victim to block defendants from profiting in the case through lucrative media interviews and movie and book deals.
California also had a Son of Sam law, ordering outright that felons pay their victims any money they got from selling their stories. Since the Wiseguy reversal, victims’ families must now go to civil court at great personal cost and file an additional wrongful-death suit against criminals, as the Brown and Goldman families did against O. J. Simpson. A jury awarded the families $33.5 million in judgment, but they’ve seen precious little of it.
This isn’t unusual. Efforts to collect from defendants in such cases are usually fruitless. In order to do so, victims’ families have to track a defendant’s moneymaking activities themselves or pay someone else to do it. The process costs them inordinate amounts of time, money, and effort. The cases can drag on forever, allowing the accused time to dispose of or hide the assets. It’s no secret that O. J. Simpson made plenty of money signing sports memorabilia at various fairs around the country. In the summer of 2004, during interviews that commemorated the ten-year anniversary of Nicole Brown’s murder, he even announced on national television that he’s in “talks” to star in his own reality show, called Juiced. The premise: Simpson pulls stunts on unsuspecting people. Sound familiar? Believe you me, if Simpson does wind up doing this disgusting show, he won’t be doing it for free. If he does profit from this ridiculous scenario, even if it’s just one dollar, that money belongs to the Browns and the Goldmans.
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In the Rocha case, Sharon Rocha was initially denied the injunction under a legal technicality, as no money had yet been earned by Peterson and, at the time of the filing, he had not been convicted of any crime. According to the Associated Press, Peterson’s attorneys argued that he should be allowed to pursue movie and book deals even if he is found guilty. Incredible.
V I C T O R Y F O R V I C T I M S
— N O B U L L !
I will never forget the case of mob underboss Salvatore “Sammy the Bull” Gravano. As part of a sweetheart plea deal—sweet for Gravano anyway—he sang like a bird against John Gotti of the notorious Gambino crime family. “The Bull” confessed to planning or committing nineteen murders nearly ten years earlier as part of a deal with federal prosecutors to implicate Gotti and over three dozen other mobsters.
Even with nineteen murders under his belt, Gravano did just five years behind bars on racketeering charges and then went underground as part of the Witness Protection Program. Unable to live a straight life, he left the program and chose to live openly in Arizona, a free man until he was charged with running an ecstasy drug ring with his wife, children, and a group of white supremists.
To make matters worse and heap additional heartache on his victims’
families, Gravano wrote a book detailing his life with the mob—and it sold. Gravano inked a 1996 deal with author Peter Maas to write the book on Gravano’s lifetime of crime, including murders. Maas then struck a subsequent deal with HarperCollins Publishers to publish the book and 20th Century Fox to do the movie. A victims’ board tried to force Gravano, Maas and his company, T.J.M. Productions Inc., HarperCollins, and Maas’s agent all to give the book’s proceeds to the murder victims’
families.
On appeal, New York’s appellate division ruled that the state’s Son O B J E C T I O N !
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of Sam laws do not allow the Crime Victims’ Board to seize Gravano’s book proceeds, claiming that the laws do not apply to the federal crimes to which he pled guilty. Gravano’s lawyer, Larry H. Krantz, called the ruling “correct.” Michael Dowd, attorney for Maas and T.J.M., said, “It’s a wonderful decision for anyone who’ll ever put pen to paper.” HarperCollins issued a news release saying that the decision “makes clear that authors and publishers can publish accounts of criminal activity without fear of interference from the Crime Victims’ Board.” So everybody was happy—except
the victims’ families. Their only recourse was to hire lawyers and file civil wrongful-death suits against Gravano.
But then, in a stunning turn of events, the state of Arizona did what New York claimed couldn’t be done. New York claimed that its laws didn’t protect the victims. Arizona’s restitution law does, even when the crime takes place outside of Arizona. Ads placed in East Coast newspapers sought out Gravano’s victims and offered a portion of royalties from his book. The ads were run by the Arizona attorney general’s office and were allowed after Arizona prosecutors won a court fight over proceeds from the book Underboss: Sammy the Bull Gravano’s Story of Life in the Mafia.
Although Gravano’s Phoenix attorney disagreed with the decision, his argument didn’t hold water with Maricopa County Superior Court judge Mark Santana. The defense lawyer claimed that “it was a violation of the First Amendment.”
The fight didn’t end in the trial court; Gravano took it on appeal all the way up to the U.S. Supreme Court. And why not? The New York appellate court had sided with Gravano. He rolled the dice again—this time with a different result. The Supremes refused to hear his appeal, an alternative they often choose when they either agree with the lower decision or simply do not want to rule on the case. Ironically, on the very day the Supreme Court made its announcement, another court had a sentencing hearing on Thomas “Huck” Carbonaro, a reputed hit man who had schemed to kill Gravano with a remote-control bomb for betraying the Gambino crime family. In the end, Gravano is still behind bars doing a twenty-year sentence for running a massive ecstasy ring, 1 0 6
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and the victims won their right to his book proceeds, thanks to an Arizona judge. It was a victory, true, but bittersweet. Power to the Grand Canyon State!
V I C T I M S T A K E A C T I O N
When I researched the background of Senate Bill 1887, the California Son of Sam 2 legislation, I discovered that California’s Senator McPherson was a big proponent of the bill. McPherson had read an article in the paper about the Supreme Court’s declaring the Son of Sam legislation unconstitutional, and was pained. McPherson’s own son was murdered a couple of years ago in San Francisco, so this deeply touched him. McPherson contacted the state attorney general’s office, and they coauthored the Son of Sam 2 legislation. Two crime-victims’
organizations, Crime Victims United of California and the Carole Sund/Carrington Foundation, got behind the bill as well. After a long struggle, the bill was signed into law by Governor Gray Davis on September 17, 2002.
While a revised federal Son of Sam law is still needed to stop criminals from getting rich off their own tales, an effective legislative solution has been enacted in a few states that is helping to end online criminal profiteering.
Richard Allen Davis, the kidnapper who killed a beautiful little twelve-year-old girl, Polly Klaas, in 1993, was hawking handwritten letters and photos of himself wearing only underwear online. Polly’s father, Marc Klaas, reacted, taking aim at the California legislature.
He joined forces with Texas victims’-rights crusader Andy Kahan to champion a revolutionary idea: the Notoriety for Profit Law, often referred to as the “Murderabilia Law.” Klaas and Kahan learned from the cracks in the Son of Sam laws and threw in a new twist to foil the O B J E C T I O N !
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profiteering. Largely through their efforts, the Notoriety for Profit Law has been in effect in California since 2002 and in Texas since 2001, putting the kibosh on sales of murderabilia online as well as on other outlets.
A few months before Kahan planned to go public on ABC’s 20/20
to expose Internet sleaze and his plans for the new law, he had already scored a major victory against online ghouls. The auction site eBay got wind of what Kahan was doing and in May 2001 made the stunning announcement that eBay would prohibit further murderabilia sales. There are, however, many other outlets that refuse to stop trading in terror.
Kahan’s “Murderabilia Law” is a great start. In California and Texas, where it is on the books, criminals can still sell their hair and fingernails online, but here’s the good news: The state may seize any money generated above and beyond the fair market value of the item itself, based on notoriety. The new version allows police to seize profits, notably those earned from Internet sales, if it can be shown that the value of an item is enhanced by its connection to crime. For instance, a human hair sample sells for little or nothing online, and its fair market value in most cases is next to zero. If the price of a hair sample is enhanced because of the infamy of its owner, the additional profit is seiz-able by the courts in those jurisdictions that have passed the Notoriety for Profit Law.
The law, which makes the watchdogs the state and local authorities, will also stop third-party brokers like Ghoul-Chaser from profiting from murderabilia, sending proceeds from such sales into the same fund for victims’ families or directly into the state’s Crime Victims’
Compensation Fund. It’s hoped that similar models will find their way onto the floors of state legislatures and assemblies across the United States. There is no reason the federal government shouldn’t follow suit.
Some people may call this draconian, but I strongly advocate jail time for third-party dealers who either work in conjunction with a murderer behind bars or otherwise get their hands on “the goods.” In my mind, these online brokers are aiding and abetting in furtherance of the 1 0 8
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original crime by profiting from a victim’s pain. They should be charged with a misdemeanor crime that carries a penalty including not only a fine, but jail time for the crime. And for those detractors who cry that this would restrict free commerce, I say that the very same reason we don’t sell cocaine at the supermarket should apply to the sale of Bittaker’s fingernails online. It’s wrong. It’s just plain wrong. If people really want to stop this disgusting business, this is the way to do it. What possible impact could a twelve-month misdemeanor charge have on a defendant doing life without parole? The law has to go after those who will be most affected by its implementation . . . the dealers/brokers. I say book ’em!
When I consider the power of the Internet combined with the evil of those who take joy in murder, I feel like David doing battle against Goliath. The “Murderabilia Law” is an important step in stopping the injustices perpetrated by online ghouls and others seeking to cash in on crime and its pain and suffering. I believe that an important goal of our country’s justice system should be to protect a victim’s family from seeing their loved one’s killer profit from heartache. The only notice grieving families should ever receive regarding criminals who took away their loved ones should be an execution announcement from the state’s death row, not a “for sale” ad on the Internet.
C H A P T E R F I V E
A I R B R U S H I N G T H E A W F U L T R U T H
IN MOVIES AND ON TELEVISION, EVERYBODY IN
the courtroom is beautiful. Hollywood’s glamorized version of our justice system depicts lawyers who are always dressed to the hilt, with flawless hair and makeup. Thanks to smartly written scripts, counsel always provides the perfect response to every question. The victims are usually actors with great bodies and porcelain smiles. Occasionally their hair is a little messy. A few fake cuts and bruises are sometimes thrown in, in keeping with the “gritty” mood of the drama. Even the defendants look great and are often characterized as misunderstood.
By the closing credits, everything is wrapped up neatly and the good guy wins out. I wish that were true in real life. The actual struggle against crime, whether it’s violent or white-collar, bears little or no re-semblance to what audiences are shown. The stark truth of what goes down in courtrooms across the country when prosecutors are fighting for the rights of victims is just that—a struggle. It’s hand-to-hand mu-tual combat between state and defense. Kidnapping, murder, rape, and child molestation reveal the ugliest sides of human nature. Prosecuting the violent offenders who commit these crimes
is dirty business—
dirtier than the casual courtroom observer, much less a TV audience, can ever know.
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When a case finally wends its way into a courtroom, to a jury of twelve in the box with alternate jurors waiting in the wings, nothing is as it was when the crime was first committed. By the time the state delivers an opening statement, the truth has been “packaged,” whittled down by defense lawyers, trial judges, and appellate courts to a per-functory presentation. Here are just a few things most juries never see: images of the victim in life, a majority of crime-scene photos, autopsy photos and reports, the dying words of the deceased, and the suspect’s extensive criminal history. Also disallowed: fingerprint crimes called
“similar transactions,” motive evidence, rap sheets, and sometimes even the suspect’s confession. It’s all gone. I’ll explain why later in this chapter.
By the time a trial begins, the defendant’s testimony becomes a
“script” that sounds canned and practiced. The evidence seems surreal, dated, and strangely detached from reality. With the passing of time and the repackaging allowed by the system, the enormity of a violent crime translates into muted voices, soft and tiny, in a cavernous courtroom. Lost is the moment of the act and the events that followed: the subsequent investigation, backbreaking hours of preparation by investigators and lawyers, and the raw grief of the victim’s loved ones. What is left for the jury is a sanitized, cleaned-up, objection-free version of the facts—just the way defense lawyers want it. By twisting the rules of evidence, the defense can score a myriad of pretrial victories, including the exclusion of state’s witnesses, suppression of crime-scene and autopsy photos, and obscuration of the true nature of the defendant. All of these things aid in helping achieve their ultimate goal: airbrushing the awful truth.
I still remember the first triple-homicide case I tried, in 1990. It made headlines at the time because it involved a major cartel’s drug trail from Miami to New York. Because of the case’s enormous implications, I was sure I’d be passed over in favor of an older, more experienced prosecutor. It didn’t happen that way. The case came to my courtroom by random assignment, and I kept it. That’s how indictments in metropolitan jurisdictions are disbursed among the trial judges. A O B J E C T I O N !