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Lights, Camera, Objection!

 

The American Trial Lawyer, 2008

 

HIGH PROFILE DOESN’T HAVE TO BE A HIGH WIRE ACT

 

 

By Thomas A Mesereau Jr.

 

 

High-profile cases can turn an everyday courtroom into an A-list movie set, with trial counsel in the lead role. Accordingly, many of our colleagues argue that high-profile cases are won and lost in the media. But, history tells a very different story. High-profile cases are won in the courtroom. The media’s repeated failure to accurately predict trial results proves the case.

 

For those who are convinced that public relations and media contacts decide the outcome of high-profile cases, please direct your attention to exhibits A, B, and C: O.J. Simpson, Robert Blake, and Michael Jackson, respectively. The media convicted all three defendants in these high-profile cases before the juries deliberated. Instead, they were all acquitted. Media spin does not correlate with courtroom success.

 

Conversely, the Scott Peterson trial exemplified a largely pro-defense media. Most media pundits were predicting an acquittal or hung jury primarily because there was no eyewitness or any forensic evidence linking Peterson to a murder, and the actual cause and time of death were unknown. Furthermore, experienced capital defenders know that handsome, affluent, white, college educated males with no criminal record rarely receive the death penalty (i.e. Menendez). Peterson was not only convicted of capital murder, he was sentenced to death.

 

There were lessons to learn about high-profile cases long before the O.J. Simpson trial. These lessons were evident in the fascinating trial of Jack Ruby, who was represented by attorney Melvin Belli. This high profile trial followed the assassination of President John Kennedy.

 

Jack Ruby murdered Lee Harvey Oswald, President Kennedy’s assassin, in front of 80 million television viewers. Ruby’s trial promised to be nothing short of a media frenzy. Ruby retained Melvin Belli, a San Francisco-based attorney, who arrived in Dallas along with his own documentary filmmaker and photographers. During his representation of Ruby, Belli was negotiating his autobiography while the trial judge was negotiating with a publisher before a verdict had even been reached. The trial judge’s unprofessional conduct resulted in a reversal of Ruby’s conviction and death verdict.

 

Also in negotiations for book deals were Ruby’s own siblings. After Ruby’s conviction and death sentence, Belli and other trial counsel reportedly attempted to sell a photograph to Life Magazine taken with Ruby in his cell. In the meantime, Belli’s expert witness for the case, a noted psychiatrist, complained about a photographer who was present during his first meeting with Belli and Ruby.

 

The verdict in Jack Ruby’s trial could have been less harsh. Ruby originally hired Tom Howard, a low-profile, no frills, local capital defender. Howard had defended 25 capital cases and had avoided the death sentence every time. He did not feel it was necessary to dispute the shooting or to plead not guilty by reason of insanity. Dallas juries disliked this defense.

 

Howard felt that Ruby’s case was easier for avoiding the death penalty than most. After all, the victim was a monster that had brutally murdered the President of the United States and had seriously wounded the Texas governor. His client had a proven history of emotional instability and impulsiveness. Ruby’s mother and siblings had also been placed in mental institutions.

 

With the proper strategy, certain facts tilted in Ruby’s favor. There was compelling evidence that the crime was not premeditated, and he was known for his charitable acts in the community. He was the owner of a nightclub, so it wasn’t unusual for Ruby to carry a handgun; he frequently carried large sums of cash. Howard’s plan of action was simple. He would admit to the shooting and present evidence of mental and emotional instability. There would be no formal insanity plea. He would bring in local experts and present evidence of good character. Ruby would take the stand and tearfully admit to the shooting, explaining how he “cracked” when he saw the beautiful, traumatized, suffering Mrs. Jacqueline Kennedy. He would sincerely apologize. If Ruby received a life sentence, under Texas law he would likely be free in seven years. A conviction of murder without malice would result in a sentence of zero to five years.

 

Belli, a colorful, self-promoting tort law pioneer, loved the limelight and had represented a celebrity list of clients that included Errol Flynn, Mae West, Lenny Bruce and the Rolling Stones. A writer once claimed that Belli had actually paged himself at a Paris airport for publicity. His appearance was especially flashy. He wore Western-cut suits lined in red silk uniquely tailored to his liking, and London-made, calf high black boots. A black homburg hat and garish red felt briefcase frequently accompanied his celebrity attire. A Jolly Roger flag hoisted on his office roof and loud cannon signified a victorious civil verdict. He publicly raved about his pet parrot for his supposed ability to drink bourbon.

 

Belli’s plan was a much different approach from that of Ruby’s original attorney, Thomas Howard. Belli entered a formal insanity plea. Like Howard, he too brought in expert witnesses, but many were from outside Texas, including Yale University. He argued that Ruby suffered from psychomotor epilepsy brought on by organic brain damage. He also claimed the shooting was the result of a convulsive impulse and that Ruby had actually blanked out during the shooting. Belli hoped his defense would shape new ground regarding medico-legal issues. Ruby didn’t testify.

 

High-profile trials offer status. But, elevated status can invite a healthy trial lawyer’s worst enemy: Narcissism. Narcissism refers to character traits concerned with extreme self love and preoccupation. If a trial lawyer is too concerned with his or herself, such behavior can supersede desirable qualities like compassion, loyalty, and selflessness. Such positive traits promote the best interests of protecting the client, but they cannot be easily rehearsed or faked. The longer the trial, the less the likelihood that any trial lawyer will convincingly assume a false character. Additionally, narcissistic trial lawyers continually misinterpret how others view them. Cameras can become an addiction and the lawyers concept of his or her role is distorted. Disaster!

 

Thus, high profile trial lawyers are at high risk for losing sight of the client’s interests. A trial lawyer must cope with the constant temptation to view the celebrity client as a conduit for fame and fortune. This is a continuous challenge, as our media-driven culture will be tempting you to do the opposite throughout the case. My close friend and former head of the Orange County, California Bar Association, Jennifer Keller, warns that celebrities can encourage this behavior by bargaining for reduced or eliminated fees in return for high publicity.

 

The love for the limelight and a narcissistic personality disorder can impede a celebrity lawyer’s ability to settle for a low-key resolution of client problems. After all, a favorable plea bargain may cause the lawyer to miss out on a spectacular, highly publicized trial. Or the best defense might need serious, tentative, low-profile lawyers. In Ruby’s case, Howard felt that it would take a low-key, respected defense counsel to succeed in the trauma-struck Dallas community that had so recently witnessed the televised murders of the president and his assassin.

 

This was the same problem I encountered in the Michael Jackson case. Before being retained, I viewed the public relations atmosphere around Jackson to be nothing short of a nightmare. Jackson was facing trial in a conservative, blue-collar, independent-minded community with a racial composition that was mostly white. Any disconnection between Jackson and the jury pool had to be destructive.

 

Prior to my arrival, the Jackson defense appeared incredible and enormous. Michael was late to his initial arraignment and danced on an SUV for his screaming fans before hosting a highly publicized party for the media at Neverland. I recall turning on the Los Angeles evening news and seeing a roundtable of Michael’s legal and financial advisers at a posh suite at the Beverly Hills Hotel that were dubbed as “Michael Jackson’s Dream Team” by the local reporter. His Nation of Islam security detail was receiving prominent coverage and his “60 Minutes” interview with counsel appeared disastrous. Lawyers arrived for court in private airplanes.

 

Hanging out around bars and restaurants in Santa Maria before trial turned out to be one of the best things I ever did. Casual in my blue jeans and black leather jacket, I discovered that the media’s report that Michael couldn’t get a fair trial was nonsense. I found that he was well-liked by many people, including local neighbors, local patrons of the arts, and the neighboring Air Force Base. He had been kind to the people of the community and was appreciated for choosing northern Santa Barbara County, California as his residence.

 

Along with the right trial strategy and preparation, I needed to tone everything down. I fully supported the gag order and court-sealing of salacious pleadings and opposed cameras in the courtroom. I removed the Nation of Islam security team, which was alienating local residents of Santa Maria, California. I eliminated race as an issue and emphasized Michael Jackson’s unique ability to bring all races together. I specifically requested that family members and supporters not refer to the prosecution as racist.

 

It is widely accepted that most media coverage of the Jackson trial was mediocre, at best. There is a good and a bad reason for this. It is virtually impossible to accurately summarize six to eight hours of trial testimony in a few sound bites. Additionally, modern day media feeds on shock value. Of course, any child molestation case is going to provide plenty of ammunition.

 

Nevertheless, this case provided a different species of bias. For example, during the first week of my representation, certain media representatives, like Geraldo Rivera, O’Reilly, and guests on Larry King, criticized my presence. Obviously, they preferred working with prior counsel. I had refused to appear on either Larry King or Geraldo during my prior representation of Robert Blake in his murder case. One lawyer whom I replaced in Jackson regularly appeared on these shows. It made better business sense for the media to have a lawyer like this than me. This prior lawyer wanted cameras in the courtroom and had appealed the judge’s gag order. I dismissed the appeal.

 

Another example of media bias concerned Grand Jury transcripts. The Grand Jury transcripts in Jackson were understandably salacious and disturbing. There was no judge or defense attorney in the Grand Jury room to lend balance to the questioning. The prosecutor was the producer, director, choreographer, script writer and examiner. The trial judge granted my motion to keep these transcripts sealed until they naturally surfaced during the course of the trial. Nevertheless, ABC obtained copies which they broadcast on the first day of jury selection. The intent was obvious.

 

I did not overreact to this. At the time, we expected the trial to last seven to eight months. There was plenty of time to overcome any bias this created.

 

Motivated by the months of future airtime and the many stories to be told about the rise and fall of Michael Jackson, the clairvoyant media was trying to spin a conviction. During the week of jury deliberations numerous television stations were showing images of the jail cell they expected Jackson to occupy. I had never seen anything like this in any American trial. It was outrageous.

 

Too much media concern can distort a trial lawyer’s perspective. For example, in the Jackson case, more accredited media covered the trial than O.J. Simpson and Scott Peterson combined. Because the coverage was largely pro-prosecution, the prosecutors began to think they were doing well. They weren’t. During jury deliberations, the prosecutors and sheriffs actually had a victory celebration at a local watering hole on a Saturday night. The following Monday, the jury returned fourteen not guilty verdicts (ten felony charges and four, lesser included, misdemeanor options).

 

Clients in the entertainment business understandably believe that a direct correlation exists between media success and courtroom dexterity. But, their Hollywood view of the courtroom is unrealistic. I welcomed the gag order for many reasons, including its providing me with a convenient excuse not to address media positions.

 

My team and I lived in condominiums far away to avoid the relentless media saturating the area hotels. I was in bed no later than eight each evening and awake by three a.m., which fit my preferred trial schedule and protected me from the invasion of any unwarranted media intrusion.

 

The promise of fame or fortune from a high-profile case creates a danger zone. Attorneys are at risk of being seduced by media charlatans disguised as allies who are really just vying for inside information. But the outcome of these cases is never decided by the media. These cases are ultimately won and lost in the courtroom. The most important audience is a group of thirteen – one judge and twelve jurors.

 

 

 

 

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