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

by Nancy Grace

  Arguments such as depicting the trajectory path of bullets, the severity of deep-tissue wounds, the number of blows or lacerations are examples of why autopsy photos should be allowed. The depictions of distances, heights, lighting conditions, positions of bodies, furniture, cars, and other objects shown only in crime-scene photos are examples of why those photos should be allowed. For every exhibit entered into evidence, there must be a reason for its admittance. The only way to win 1 2 0

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  the battle to reveal the awful truth is through the expert use of the facts of the case and the expert application of the rules of law.

  The same holds true when jurors visit a crime scene. If and when (it’s rare) a jury ever does get to see the crime scene, you could put a bow on it and sell it at Bloomingdale’s. It’s been cleaned up and stripped of the evidence that reflected the horrors the victim suffered in his last moments of life. It’s Crime Lite. At the time of a crime, there is more to the scene than simply what you see. Its what you feel, what you smell, what you sense. It’s an overpowering presence, as if someone is there.

  An incredible example of crime-scene manipulation occurred during the O. J. Simpson trial. Love him or hate him, Johnnie Cochran is a criminal defendant’s knight in shining armor. A field trip to Simpson’s home included the judge, the jury, lawyers for both sides, a fleet of reporters, photographers, and videographers—and Simpson himself. The purpose of the trip to Nicole Brown’s home on Bundy Avenue and Simpson’s home on Rockingham was to give the jury a chance to see things for themselves. The prosecution had intended for jurors to focus on viewing the locations of Brown’s and Ron Goldman’s bodies, the spot where the infamous bloody glove was found, and the bedroom where police had collected Simpson’s blood-spattered socks.

  The defense, however, seized upon the viewing of the scene as their opportunity for spin control, painting Simpson as a kind, benevolent family man. Before the jury motored over to Simpson’s home on chartered buses, the defense allegedly did some redecorating. A print of Norman Rockwell’s famous painting of a beautiful little black girl being escorted to school by federal marshals was borrowed from Johnnie Cochran’s office and positioned at the top of the home’s center staircase. Pictures of Simpson standing with white golfing buddies disappeared. A glamour shot of Simpson’s white girlfriend, Paula Barbieri, was stashed away.

  They were replaced with photos of Simpson’s elderly mother. A Bible was planted in the living room. Since Simpson’s house was not a crime scene, this bit of redecorating was perfectly legal. The tour was a great success O B J E C T I O N !

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  for the defense. Simpson even got the unprecedented chance to speak to the jury outside the courtroom, not under oath and without the benefit of cross-examination. At one point, it was reported, he declared proudly while gesturing toward the backyard, “That’s where I practiced my golf swing.”

  On the tenth anniversary of Nicole’s and Ron’s murders, I interviewed a Simpson juror and asked her how, in the presence of so much evidence, the jury rendered a not-guilty verdict. She answered, “The state didn’t carry its burden.” Then I asked, What about the blood evidence? How do you reconcile that? Her response: “I don’t have to reconcile it.”

  The manipulation of the crime scene by the defense in many different cases is well documented. In October 2003, during the murder trial of novelist Michael Peterson in North Carolina, the defense fought hard for a jury viewing of the showpiece of a home in Durham perfected by its owner, Peterson’s wife, Kathleen. Her novelist husband was caught up in a web of online gay dating sites, financial hardship, and a secret past that included the death of a woman connected to him. Kathleen had been found dead at the foot of the stairs in her own home, with seven lacerations to the back of the head. According to her husband, he was alone outside smoking a cigarette by the pool, and when he went back inside, he discovered his wife dead at the base of the stairs.

  At trial, it was revealed that approximately eighteen years before, Michael Peterson’s “close friend” Elizabeth Ratliff had been found dead at the foot of her stairs with numerous lacerations to the back of the head after Peterson had taken her home that night.

  Police had searched the Petersons’ North Carolina home exhaustively for a murder weapon, which was believed to have been a missing blowpoke that normally stood by the fireplace in their home.

  By the time the jury finally got their view of the Peterson home, the bloodstained stairs and walls had been cleaned and to a certain extent boarded off. Every room was polished up to look like a page out of House Beautiful, complete with fresh-cut flowers and the smell of Lemon Pledge!

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  There were no signs of the blood that had spattered onto the ceiling, suggesting a blow to the head as opposed to a fall down steps as the mode of death.

  Incredibly, the long-missing blowpoke was finally “found” by the defense. Of course, by the time they produced their “discovery,” it was fingerprint-free. Clearly, as time passes, there is more and more opportunity to doctor the scene. In the high-stakes gamble of a trial, that motive to airbrush the awful truth is overwhelming. In this case, the jury didn’t buy it. Peterson was convicted of murder one.

  During Scott Peterson’s trial I was concerned Judge Delucchi would allow the jury to go out on the San Francisco Bay, where Laci and Conner were disposed. In my nightmares, they would go out on a bright, sunny day and be surrounded by recreational crafts while imagining Scott Peterson enjoying himself on the water the day Laci went missing.

  What a miscarriage of justice that would have been. I went onto the bay myself to see where Laci was thrown overboard. In December, the water would have been choppy, the air cold and windy. No way was Peterson out fishing for fun on Christmas Eve. Thank God Delucchi understood the changing nature of a crime scene.

  Before crime-scene visits are sanctioned by the court, I advocate that a two-pronged test be incorporated into the rules of evidence and met. First, whichever side wants the visit must proffer to the trial judge the reason for the visit, grounded in evidence and supported by rationale as to why photos or video of the scene would not suffice. Second, whoever has had supervision and control over the scene must show, under oath, that the scene has not been manipulated in any way. Any manipulation of the scene is grounds for a contempt-of-court charge that should come with jail time and should be made known to the jury. That way, it will be up to them to decide why a party would choose to re-arrange history and what, if any, bearing that manipulation has on the guilt or innocence of the accused. Why give anyone an excuse for a sneaky reshaping of a crime scene?

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  T H E N A M E L E S S,

  F A C E L E S S V I C T I M

  It’s odd that as a prosecutor, you invest so much time and effort to bringing a victim’s case to a jury, only to have that victim wind up largely anonymous. In murder cases, the jury never gets to know the victims in life, their joys, their concerns, their fears, their triumphs—or their pain even in death. In our system, victims are reduced to case numbers. What I mean by that is that a number is given to each case indicted, a different number is attached by the police, a number is given at the crime lab, a different one at the hospital, yet another at the medical examiner’s office and the morgue. Even in court, the defense refers to the victim by a number. Prosecutors can sometimes fall into the same trap, even though they don’t have to. During Scott Peterson’s preliminary hearings, the defense attorneys constantly referred to specimen numbers, ID numbers, and exhibit numbers rather than to the name of the victim. They didn’t say, “Where did you find Laci’s pants?” Instead they asked, “Where did you locate State’s Exhibit 43?” The more impersonal, the better the defense likes it. Whether it’s the victim’s clothing or belongings, her voice on an answering machine, photos of him in life, or his dying words—the defense scores big when evidence like this is
suppressed.

  I’ve seen other prosecutors play the number games, too. I don’t understand why. Maybe they get caught up in all the legalese. I’ve also watched as lawyers on both sides snap on plastic gloves in court, covering themselves, protecting themselves from getting dirty in court, as if the dried blood on a victim’s clothes could somehow infect them. It’s all so sanitized, so clinical, so removed from the reality of the victim’s suffering.

  All these years later, I remember how my fiancé’s bloody clothes were laid out at trial as an exhibit for the jury to see. They had a num-1 2 4

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  bered tag attached to them on the defense table. I can remember him driving away that morning wearing those clothes, his blue eyes smiling, his arm waving out the car window as he left. Of course the jury never knew that. They also never saw the interior of the Jeep he was driving just before his murder. Blood had splattered on the roof and the doors.

  I’m sure the defense objected to their seeing that. It was too real and, of course, too prejudicial.

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  It’s even more difficult to allow a jury to get the smallest glimpse of the victim in life. Photos like high-school or college graduation por-traits or family snapshots are rarely allowed, because the defense will argue they have no bearing on the guilt or innocence of the accused.

  True, perhaps, but that doesn’t make it right. The only legal alternative is to find a solid evidentiary reason to allow photos showing victims in life to be brought in. Rick Distaso managed to get in evidence a video of Laci Peterson in life, puttering around her kitchen. He wisely found an evidentiary basis. Another alternative I often used in my opening statement was to describe the victim in as much detail as possible, so as to have those images fresh in the jury’s mind.

  I was determined to have the jury get a picture of the young victim in a murder case I tried. He was a thirteen-year-old boy nicknamed

  “Moonbeam,” who was a good student and played in his school band.

  He wore a huge pair of glasses and, to me, was just precious. He was gunned down as part of a revenge killing. Revenge on a high-school band member? It was a case of mistaken identity. The two perps who shot Moonbeam had intended to shoot someone else, allegedly over a drug deal gone bad. As if anyone were the “right” person. So, from a distance, they murdered a thirteen-year-old boy walking along the side-walk near the apartments where he lived. Testimony from the stand described the boy crawling along after the first round of fire, begging for O B J E C T I O N !

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  his life and calling out for his mother as the rounds from an AK-47 continued to be pumped into him.

  I had Moonbeam’s class photo and I wanted to show it to the jury.

  Pursuant to defense argument, the judge disallowed it because it would

  “inflame the jury” if they saw the smiling young victim in his school photo. It would have made them think about how young, how innocent, he was. In the end, I managed to get the photo in. Moonbeam had on the same shirt in his photo as he did the night he was shot. For that evidentiary reason, it came into evidence as corroboration for eyewitness testimony. Throughout the state’s case and until the defense team dra-matically removed it, I kept it on display in front of the jury, so they would not forget that this case was about a little boy. A boy who played in the band and had a life before him. The jury rendered a guilty verdict.

  From then on, I devised ways to get photos of the victims admitted into evidence so they would not end up as faceless numbers on a police report or a coroner’s injury sketch on a diagram. In most cases, juries learn little if anything about a victim’s life, but when a defendant takes the stand, they learn what a great guy he is, how much money he gives to charity, how he’s involved with his community, and what a good father he is.

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  Belongings or photos of a murder victim in court can definitely come back to haunt the defendant. But a defense lawyer’s worst nightmare is seeing loving family members seated in court before the jury. This was especially true during the Scott Peterson murder trial, as Sharon Rocha and her family sat practically each and every day in row one, closest to the jury. The fact that people grieve and mourn a victim’s death is an extremely undesirable notion to the defense. So with much twisting of tail and gnashing of teeth, a plan of counterattack was developed. Now it’s standard operating procedure to kick the victims and their families out 1 2 6

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  of the jury’s view. Often a “Motion to Enjoin the Victim’s Family and Friends from Sitting Directly Before the Jury and Showing Emotion in the Courtroom During the Trial” is filed. In fact, it is so often used that there’s even a form for it accessible online, lifted directly from “A Capital Defender’s Toolbox for Criminal Defense and Death-Penalty Litigation.”

  Another method to dehumanize the victim during trial involves a cynical and increasingly common practice employed by the defense, especially in high-profile cases: using the rule of sequestration to keep the victim’s family members out of the courtroom. The rule of sequestration states that witnesses are not allowed to sit in the court while others testify. It was created for one valid reason: to prevent one witness’s testimony from shading that of another.

  Not surprisingly, this valid rule has been perverted into a dirty trick by attorneys. Victims’ families are routinely thrown out of court under false pretenses—ostensibly because they are going to be called as witnesses for the defense. The tactic was employed by the defense in the case of Danielle van Dam, a bubbly seven-year-old who loved Mickey Mouse. In February 2002, van Dam was abducted from her own home in San Diego during the night as her family slept nearby, down the hall from her room. The little girl’s blood and blond hair were later found in a neighbor’s RV. Her left palm print was found, located as if she were reaching out to a built-in table beside the grown man’s bed.

  Her blood was also found on the jacket of that same neighbor, David Westerfield. Danielle’s nude body was finally discovered by a volunteer in the nearby desert, a few weeks after her disappearance. The badly decomposed body was identified partially by the little Mickey Mouse earring she still wore. At trial, the van Dam family was subpoenaed.

  Westerfield’s attorney, Steven Feldman, actually claimed that the defendant felt threatened by Danielle’s father and managed to have him thrown out of court. Danielle’s mother, Brenda, had to sit there without her husband, listening to devastating testimony about the murder of her child. She was also ordered not to look directly at the jury, not to make any eye contact with them whatsoever. Danielle’s grief-stricken mom O B J E C T I O N !

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  was also forbidden by the court to wear a photo pin over her heart with the image of her dead daughter.

  In August of that year, after the trial was over and Westerfield had been convicted of Danielle’s kidnapping and murder, I met with her parents. I will never forget Brenda’s lifeless voice that night at dinner.

  Her eyes welled with tears as she described to me the way she and her husband were treated in court. The revictimization of the family that was allowed to take place throughout the trial was devastating to them.

  Not only did they lose their daughter, they were mistreated by the justice system as well.

  The same kind of battle loomed large in the Oklahoma City bombing trial in 1997—but with a twist. The defense for Timothy McVeigh objected to survivors’ simply gathering together to watch the trial—

  which was moved to Denver—on closed-circuit television set up specifically to accommodate hundreds of crime victims and families. McVeigh’s defense vowed they would ban survivors who could conceivably be called as witnesses from attending the trial as well. While cameras have traditionally been banned from federal courtrooms, survivors petitioned the court to allow the closed-circuit hookup. Thousands were up in arms over the possibility that survivors would be excluded from seeing the trial. After a major cour
t battle, the closed-circuit viewings were ultimately allowed, although most victims and their families are not so lucky. McVeigh got the death penalty and was executed in 2001.

  One answer I have devised to address this issue is to force the defense to make a proffer, an evidentiary showing before the judge and outside the presence of the jury, as to why a family member or friend of the victim is under defense subpoena. If that purpose is deemed “trial strategy” by the defense and therefore properly kept from the state, the showing could even be made in camera, or behind closed doors in the judge’s chambers, and taken down by a court reporter. I believe the same rules should apply to the defense and the state. For 1 2 8

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  instance, in the preliminary hearing for the Scott Peterson trial, Peterson’s father, Lee, was called to the stand by the state in part to testify to the fact that he knew nothing of his son’s purchase of a boat until after Laci went missing. That is legitimate grounds to call a family member from the other camp. Lee Peterson was allowed to sit in the courtroom afterward. His testimony, once given, could not taint or be tainted by later witnesses. The same reasoning applied to the Rocha family, who was also allowed in court during trial, seated in row one.

  The attorneys’ feet should be held to the fire as to the cause of the subpoena. In other words, hold them to their proffer. A simple way for prosecutors to avoid this whole issue is to call the family member or friend up front in their own case to allow cross-examination by the defense and then release the person as a witness. At that point, since the defense has had its chance to question the person at the beginning of the case, there is no reason to keep the friend or family member from the courtroom. The person should then be free to sit up front and center. If the defense’s stated reason for calling the witness turns out to be false, I firmly believe a contempt order for the lawyers is in order. The defendant is not biased and the outcome of the trial is not tainted, but the lawyer is reprimanded and punished for mistreating the victim’s family. Only when courts begin to protect victims’ families will their mistreatment at the hands of the justice system come to an end. Until then, the airbrushing continues.