Former DA Nifong was sentenced to a single day in jail for his misconduct related to the Duke scandal.
For the story, click here

Former D.A. is looking at potential jail time for criminal contempt and has pleaded not guilty in North Carolina. For story click here

The broader question remains our failure to deal with prosecutorial abuse, for prior columns click here and here

Orlando media is reporting that Former astronaut Lisa Nowak will pursue an insanity defense. Such notice is required in advance of trial and it was unsealed by the court. It will be a very difficult defense to make for someone with the ability to drive across country and engage in acts of evasion. Since the Reagan shooting, states have made it very difficult to make this defense. For earlier column, click here

For the news flash, click here

I have received a fair number of emails on Michael Vick’s plea, which should come as a surprise to no one. This is the type of crime that puts a defendant instantly on the bad side of any jury. The most that a defense attorney could hope for is a hung jury in most such cases.

I have no sympathy for Vick who not only engaged in a cruel and medieval form of entertainment, but he threw away a career that millions of kids can only dream of. Continue reading “Michael Vick and State Charges” →

Published 3/16/2004

While lawyers often are valued for such canine-like attributes as aggression, persistence and even viciousness, loyalty is their most essential attribute. With confidentiality, it represents a type of legal Hippocratic oath: that we will do no harm to our clients.
Two disturbing trends that reduce confidentiality guarantees have surfaced recently: a rise in the number of exceptions to attorney-client confidentiality and an increase in lawyers discussing cases at the expense of their former clients. Continue reading “Attorney-Client Confidentiality: Valued Bond Between Client, Lawyer Eroding” →

June 19, 2005 Sunday
HEADLINE: Michael, Meet Fatty. And Errol and Martha and . . .

BYLINE: Jonathan Turley

BODY:

“Not guilty by reason of celebrity,” was one common reaction to last week’s acquittal of Michael Jackson on all 10 counts against him. The notion of “celebrity justice” — as distinct from conventional justice — has taken hold across America. Indeed, it has its own show, the syndicated “Celebrity Justice,” and there are self-described “celebrity justice correspondents” at Fox News and CNN. (CNN features two to handle the occasional sensational overload.) The cottage industry built around celebrity trials is based on the flawed assumption that the rich and famous are given free rides by jurors or simply prevail because of their ability to assemble dream teams of high-priced attorneys. Yet, these trials are different in other respects. For attorneys, the rules are often reversed from conventional criminal trials on such questions as when to put defendants on the stand or whether to attack victims.

One of the first to receive the label “Trial of the Century” was the 1921 trial of film star Roscoe “Fatty” Arbuckle for allegedly raping and killing showgirl Virginia Rappe. The trial was one of the first glimpses into the celebrity Babylon of Hollywood, ranging from Arbuckle’s bacchanalian parties to his custom-made Rolls-Royce with a toilet installed in the back seat.

After three trials, Arbuckle was acquitted and the jury even apologized for the “great injustice . . . done him.” But it was too late for the public. Fatty got us hooked, and we are still trying to get that voyeuristic monkey off our backs. A stream of celebrity cases followed, revealing the often sordid lives of the celebrity class. Among them was the 1958 murder inquest of Cheryl Crane (movie idol Lana Turner’s daughter). The public was fixated on the life of Turner who was abused by her over-sized mobster boyfriend, Johnny Stomponato — until, that is, the 14-year-old Crane plunged a 10-inch carving knife into his chest. Today we have Jackson. With an audience of 30 million television viewers, Jackson’s verdict was the most popular thing the singer has produced in years.

Most celebrity trials have a notable common element: They result in acquittals. But to suggest that acquittal is the inevitable outcome ignores the fact that many celebrities plead guilty to avoid damaging trials. Despite his acquittal, Arbuckle was ruined from the trial exposure, while celebrities such as Robert Mitchum and Hugh Grant pleaded guilty and went on to leading roles. Indeed, some of the best-known accused celebrities never faced a jury: Mitchum (marijuana possession) ; Pee-wee Herman (indecent exposure); Robert Downey Jr. (drug possession); Christian Slater (assault and drug possession); Paula Poundstone (child endangerment); Marv Albert (battery); Hugh Grant (solicitation).

The high acquittal rate also reflects the fact that celebrity trials present unique elements that are ignored at the peril of either the prosecution or the defense. For criminal defense attorneys, celebrity trials can seem like a parallel universe where conventional rules and tactics are reversed.

Take, for example, the general disinclination to put a defendant on the stand. In most cases, the risks are simply too high for a defendant. For celebrities, however, the failure to take the stand can come at a much higher cost, as shown by Martha Stewart, who served time for obstructing an investigation into her sale of ImClone stock.

Prosecutors often portray celebrities as detached, abusive personalities who use people for their conspicuous consumption or enjoyment. By the end of the government’s case, Stewart looked as if she did everything short of beating her underlings with a riding crop — an image that could only be changed by Stewart herself.

Stewart might have been saved if she had taken the stand and shown the one thing that she had resisted her whole life: vulnerability. If she had simply said that she was afraid and confused, it might have saved her. Yet, her complex personality seemed incapable of such a simple defense.

To make things worse, her legal team gave the jury a parade of celebrity friends who sat behind Stewart in public showings of support. She made it abundantly clear that the jurors were not her peers in that courtroom — Rosie O’Donnell, Bill Cosby, Brian Dennehy and the rest of her famous friends were her true peers. Her conviction was sealed because her defense played by the conventional trial handbook and refused to put her on the stand.

Ironically, celebrities are often ideally suited for testimony. They are not only natural actors but, like Stewart, people who actively market themselves to the public. For example, when Errol Flynn testified at his 1942 statutory rape trial, he turned the tide after the introduction of truly damning evidence. The swashbuckling actor was well known as preferring underage girls whom he called his “San Quentin Quails” or JBs (for jail bait).

Likewise, Arbuckle, Crane and Charlie Chaplin all testified and were exonerated. Conversely, when actress Winona Ryder faced shoplifting charges in 2002, she did not take the stand and was convicted.

There are exceptions to this rule. Celebrity defendants O.J. Simpson and Robert Blake were both accused of killing their current or former spouses (as well as a friend in Simpson’s case). Yet, neither could testify without risking that suppressed or excluded evidence could be introduced into the trial. Their acquittals stemmed from other flaws in the cases.

In the case of Jackson, no rational lawyer would have put the notoriously unstable singer on the stand. Wearing pajama bottoms and surrounded by his battalion-size entourage, Jackson could barely hold it together sitting behind the defense table.

For celebrities, the best defense is often offense: putting the accuser on trial. While used in conventional trials with mixed success, this defense has far greater resonance and success in celebrity trials. Jurors tend to be skeptical of people who flutter around celebrities.

In perhaps the most vicious example, Flynn’s lawyers played on his reputation as a rake and attacked the two accusers — Betty Hansen, 17, and Peggy LaRue Satterlee, 15 — as under-aged sirens. The revelation at trial that Satterlee had had a previous affair and later an abortion was all Flynn needed to secure acquittal.

Likewise, Arbuckle’s attorneys attacked Rappe as a woman of questionable morals. Chaplin’s lawyers had it easier in portraying his alleged victim as not only unstable but the real “little tramp”: Actress Joan Barry had allegedly broken into his home with a gun to force a reunion. He testified and was acquitted of the charge of transporting Barry across state lines for sex in violation of the 1910 Mann Act.

In some cases, a victim walks right out of central casting for a celebrity defense. Robert Blake’s wife was a notorious grifter and pornographer. After 20 years of defrauding people, particularly lonely men, you could throw a stick on any corner in LA and hit five people who wanted to kill Bonnie Lee Bakely.

Jackson’s lawyers showed that, if you do not have a grifter victim, an alleged victim’s grifter mother will do. On the stand, the mother admitted that she had made false allegations in a prior lawsuit and neatly fit the profile of a conniving, predatory personality. Even after she pleaded with the jury “don’t judge me,” they seemed not only to judge but to convict her. Indeed, jurors had more to say about her than Jackson after the verdict, including her nasty habit of snapping her fingers at them.

Celebrities can present themselves as open targets for people who want to extort money through false allegations. In Jackson’s case, it was the perfect model of the clueless meeting the unscrupulous. And it provided a narrative that any jury would have appreciated.

The prosecution often offers something more complex and fluid — and ultimately less salient for a jury. In the Simpson trial, the prosecutors fumbled their narrative out of pure incompetence. By putting police officer Mark Fuhrman on the stand, they handed the late Johnnie Cochran the ready-made story of racist cops bent on making a case against an African American celebrity.

Despite the largely circumstantial evidence, the prosecution had a true shot at conviction with Jackson. There are certain celebrities who fit the model of the Marquis de Sade defendant: a personality who has allowed his unrestrained lifestyle and tastes to mutate into perverse passions. Jackson’s bizarre, kabuki-like appearance gave testimony to his alleged perversities. The same can be said for famous “Wall of Sound” rock music producer Phil Spector, whose violent tastes and creepy hairdo seem to scream suspect for his September murder trial.

None of this means the system is incapable of handling celebrity cases. Justice was done with Jackson, who faced a weak circumstantial case and a weak prosecution. As for Simpson, the case was lost by a breathtakingly incompetent prosecution team.

These were not cases of “celebrity justice,” just celebrity trials and conventional justice. In both cases, the prosecution failed to take advantage of the peculiar patterns that shape celebrity trials and played by conventional rules while the defense played by celebrity rules. It was no contest.

September 18, 2005 Sunday

HEADLINE: Shame On You;
Enough With the Humiliating Punishments, Judges

BYLINE: Jonathan Turley

BODY:

Shawn Gementera must have known that he would face some kind of punishment after a police officer nabbed him and a friend in the act of stealing letters from mailboxes along San Francisco’s Fulton Street four years ago. While jail or probation might have crossed Gementera’s mind, U.S. District Judge Vaughn R. Walker had a more creative idea. Walker sentenced Gementera to stand outside a post office while wearing a sign that read: “I stole mail. This is my punishment.” Where the judge saw a novel way of conveying society displeasure with mail theft, Gementera’s lawyers saw a violation of the Constitution’s ban on “cruel and unusual punishment.” The U.S. Court of Appeals for the 9th Circuit decided, however, that while the humiliating sentence might be unusual, it wasn’t cruel.

Lately it hasn’t been all that unusual either. The Gementera sentence — taken last month to the Supreme Court — is one of a growing number of “creative punishments” being handed down across the country by judges who want to use shame or humiliation to deter people from committing further offenses. As clever as these punishments might seem, judges are not chosen to serve as parents trying to set consequences for wayward children. Law demands not just consequences for wrongdoing, but consistent consequences. Otherwise citizens are left wondering whether they will receive a standard punishment or one improvised to suit a judge’s whim.

Shaming punishments were common in the United States before the advent of model criminal codes and the development of constitutional limitations in sentencing. While the scarlet letter made famous by Nathaniel Hawthorne’s classic novel about adultery is the best known, it was not the most common. Early sentences often required offenders to endure public displays of guilt by wearing signs or being pilloried in common areas. Adulterers were often required to carry heavy stones around a church or town.

Most shaming punishments were abandoned as either ineffective or unconstitutional. Modern law values the consistent imposition of punishment and frowns upon judges who personally tailor new forms of punishment for particular defendants. What is most dangerous about this recent trend is that, in the name of reforming citizens, judges will impose their own quirky brand of justice by ordering citizens to parade, worship or even marry. Consider a few examples, all from state or local courts:

* In Kentucky, Judge Michael Caperton recently allowed drug and alcohol offenders to skip drug counseling if they agreed to go to 10 church services. A pastor, like a divinely ordained probation officer, signs off on the completion of this obligation.

* In Texas in 2003, Judge Buddie Hahn gave an abusive father a choice between spending 30 nights in jail or 30 nights sleeping in the doghouse where prosecutors alleged the man had forced his 11-year-old stepson to sleep.

* In Georgia last year, Judge Sidney Nation suspended almost all of Brenton Jay Raffensperger’s seven-year sentence for cocaine possession and driving under the influence in exchange for his promise to buy a casket and keep it in his home to remind him of the costs of drug addiction.

* In Ohio, a municipal judge, Michael Cicconetti, cut a 120-day jail sentence down to 45 days for two teens who, on Christmas Eve 2002, had defaced a statue of Jesus they stole from a church’s nativity scene. In exchange, the pair had to deliver a new statue to the church and march through town with a donkey and a sign reading “Sorry for the Jackass Offense.”

* In North Carolina in 2002, Judge James Honeycutt ordered four young offenders who broke into a school and did $60,000 in damage to wear signs around their necks in public that read “I AM A JUVENILE CRIMINAL.” One, a 14-year-old girl, appealed and Honeycutt was reversed.

In a newspaper interview last year, Georgia Judge Rusty Carlisle said he often imposes shaming punishments when defendants seem insufficiently chastened. He cited an early case: a person accused of littering whom Carlisle felt was “kind of cocky.” So the judge gave him a cup and a butter knife and told him to scrape the gum off the bottoms of the court benches as the judge and others watched.

There’s no evidence that creative sentences work better at deterring crime than other punishments. Yet public punishments can be harshest on the most commonly targeted and vulnerable group — young people.

The recent penchant for customized punishments also undermines efforts to make criminal sentencing more uniform. Creative punishments often reflect the cultural character of a state. While an abusive father was given the choice of sleeping in a doghouse in Texas, domestic abusers were forced to attend meditation classes with herbal teas and scented candles in Santa Fe, N.M.

As elected officials, state judges know that few things please the public as much as hoisting a wretch in public. One Texas state judge, Ted Poe, was known as “The King of Shame” for his signature use of punishments like shoveling manure. Poe said that he liked to humiliate people because “[t]he people I see have too good a self-esteem.” Poe was so popular for what he called “Poe-tic Justice” that he literally shamed himself right into Congress and is now serving as a member of the House of Representatives.

In Memphis, Judge Joe Brown became famous for allowing victims of burglaries to go to the homes of the thieves and take something of equal value. When asked about his authority to order judicially supervised burglaries, Brown explained with a hint of amazement that “under Tennessee law it appears to be legal.” Brown eventually took his brand of justice to television as the host of his own syndicated court show.

What distinguishes the Gementera case is that it was a federal judge who imposed the shaming punishment. Federal judges have long been viewed as insulated from this trend — until now. And Judge Walker was upheld by the 9th Circuit Court of Appeals, which noted that “in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction . . . exceeds the bounds of ‘civilized standards’ or other ‘evolving standards of decency that mark the progress of a maturing society.’ ”

But the 9th Circuit Court’s ruling is more a devolution of standards. These novel sentences threaten the very foundation of a legal system by allowing arbitrary and impulsive decisions by judges. A judge is allowed to weigh guilt and impose sentences. Yet it is the legislature that should define the forms and range of permissible punishment for a crime. That’s why it was popular but wrong when North Carolina Judge Marcia Morey recently allowed speeders to send their fines to a charity for hurricane victims rather than to the state. Similarly, Wisconsin Judge Scott Woldt recently ordered Sharon Rosenthal, who stole money from the labor union where she was treasurer, to donate her family’s Green Bay Packers seats to his preferred charity, the Make-A-Wish Foundation. Such measures turn courts cases into private charity pledge drives.

As judges vie for notoriety through sentencing, citizens will be increasingly uncertain about the consequences of their actions. Will it be probation or humiliation? Once you allow judges to indulge their own punitive fantasies, defendants become their personal playthings — freaks on a leash to be paraded at the judges’ pleasure.

These cases betray a disturbing convergence of entertainment and justice in the United States. There has been an explosion of faux-court programs like “Judge Judy,” “Judge Hatchett” and “Judge Joe Brown.” For anyone who knows and values the legal system, these shows are vulgar caricatures that have no more relation to real law than TV’s Wrestlemania has to real wrestling. Yet it appears that some judges long for those Judge Judy moments when they can hand out their own idiosyncratic forms of justice.

If states and Congress do not act, we may find ourselves with hundreds of Judge Browns imposing sitcom justice with real citizens as their walk-on characters. In the meantime, as shaming devices become commonplace and therefore less shameful, and as there are more people walking around wearing special signs, jurists will need to dream up new, more demeaning punishments to make an impression on defendants — leaving both citizens and justice at risk.

The Supreme Court could help reverse this shameful trend with the Gementera case. Of course, even if it does, Judge Walker is unlikely to be seen standing outside the San Francisco courthouse wearing a sandwich board proclaiming “I Was Reversed by the Supreme Court” or “I Imposed Cruel and Unusual Punishment.” In some ways, that’s a real shame.