Forum Column, DAILY JOURNAL NEWSWIRE ARTICLE
© 2007 The Daily Journal Corporation. All rights reserved.
January 12, 2007
By Thomas A Mesereau Jr.
High-profile cases are won in the courtroom, not the media. Our colleagues who contend that public relations and media contacts win or lose cases are deluding themselves and others. The proof rests in the repeated media failure to accurately predict trial results.
Overwhelmingly, the media predicted that O.J. Simpson, Robert Blake and Michael Jackson would be convicted. They were acquitted. The vast majority of media pundits thought the Scott Peterson jury would hang or acquit. He got the death penalty. Media spin is no measure of courtroom success.
Human beings are masters at justifying what they want. Lawyers who crave the limelight would like the world to think they are wizards of courtroom excellence because of their comfort before the camera. If I were in trouble, they’re the ones I would be most suspicious of.
I learned certain lessons about high-profile cases many years before the O.J. Simpson case. In my peripatetic readings, I came across fascinating texts about the trial of Jack Ruby and Melvin Belli’s colorful defense. These lessons are worth relating.
Ruby had murdered President Kennedy’s assassin, Lee Harvey Oswald, before 80 million television viewers in 1964. After being retained, San Francisco-based Belli showed up in Dallas with his own documentary filmmaker and photographers. During his representation of Ruby, he was negotiating for his autobiography. Meanwhile, the trial judge was negotiating with a publisher, which resulted in a reversal of Ruby’s conviction and death verdict.
Ruby’s siblings also were negotiating book deals. Reportedly, after Ruby was convicted and sentenced to death, Belli and other trial counsel were photographed with Ruby in his cell before their attempt to sell the photograph to Life magazine. Meanwhile, Belli’s chief expert witness, a noted psychiatrist, complained that a photographer was present during his first meeting with Belli and Ruby.
As early as the 1960s, a media-driven culture that glorifies celebrity had infected the highest-profile case in American history. People, and lawyers, were intoxicated by cameras. Spin became identified with top-flight criminal defense, and Belli was assumed to be the right lawyer to handle a media-inspired effort. Disaster.
This verdict was not preordained. Originally, Ruby hired a local capital defender named Tom Howard. Howard was a low-profile, no-frills lawyer who had defended 25 capital cases. No client had been sentenced to death. He saw no reason to dispute the shooting or to plead not guilty by reason of insanity. Dallas juries detested this defense.
Howard believed that this was an easier case for avoiding the death penalty than most. The victim was a monster who had killed a beloved president and seriously wounded the Texas governor. His client had a history of proven emotional instability and visible impulsiveness. Ruby’s mother and siblings had been placed in mental institutions.
There was compelling evidence that Ruby had not planned the killing and had a reputation for charitable deeds throughout the community. He was a nightclub owner who routinely carried lots of pocket cash and a handgun. Howard planned to admit the shooting and present evidence of serious mental disability without pleading not guilty by reason of insanity. He would use local experts and present evidence of good character. On the stand, Ruby would tearfully admit the shooting, explain how he “lost it” and apologize. Under Texas law, even if Ruby received life in prison, he likely would be out in seven years. If convicted of murder without malice, he would receive a sentence of zero to five years.
The flamboyant, self-promoting Belli was a legend and pioneer in the development of tort law. He loved the limelight and had represented actors Errol Flynn and Mae West, as well as Lenny Bruce and The Rolling Stones. Writer Alex Haley claimed Belli once paged himself at a Paris airport for publicity. Belli wore specially tailored, Western-cut suits lined in red silk with high slash pockets on his trousers and London-made, calf-high black boots. He often wore a black Hamborg hat and carried a garish red felt briefcase. When he won a civil verdict, he would hoist a Jolly Roger flag on his office roof and shoot a loud cannon. He liked to publicize his pet parrot, who he claimed drank bourbon.
Belli went for an outright acquittal by reason of insanity. He brought in expert witnesses from outside Texas to claim that his client suffered organic brain damage resulting in psychomotor epilepsy. He claimed that Ruby blanked out during the shooting, which was the product of a convulsive impulse. Belli hoped this high-profile trial would forge new ground in medical-legal issues.
The call of celebrity is an invitation to narcissism. Cameras are the conduit. Narcissism is an extreme preoccupation with one’s self and different from a healthy trial lawyer’s ego. A trial lawyer’s ego connotes confidence, authenticity, command, compassion and selflessness – all in the pursuit of protecting the client. Some of the greatest trial lawyers are humble. But narcissists, try as they may, cannot convincingly pretend to have these good qualities. Narcissists make poor trial lawyers and always misinterpret how others perceive them. Cameras, like alcoholism and drug addiction, can turn seasoned trial lawyers into pathetic caricatures of themselves.
The challenge of a high-profile lawyer is to remain focused on the client’s interests. A trial lawyer must resist all temptation to view the celebrity client as only a springboard for profit. But modern-day culture continually tempts lawyers to do the opposite. If one carefully observes certain high-profile cases, one periodically sees a subtle, gradual and then obvious deterioration of lawyers’ value systems when confronted with the spotlight. As Jennifer Keller, formerly head of the Orange County Bar Association, attests, celebrities can encourage this behavior by suggesting that their fees be reduced or eliminated because of the value of lawyer publicity.
Narcissistic, camera-drunk celebrity lawyers have trouble with low-key resolution of client problems. For example, a favorable plea bargain may require the lawyer to forgo a spectacular, media-covered trial. Or the best defense may necessitate serious, focused, low-profile lawyers. Howard believed that Ruby’s defense counsel had to be low-key, respectful and unostentatious to succeed in a Dallas community, recently traumatized by televised murders of the president and his assassin.
I faced this problem in the Michael Jackson case. Before being retained, I perceived the public relations atmosphere around Jackson to be out of control and nightmarish. Jackson was facing trial in a conservative, blue-collar community of very decent, civic and independent-minded people. The racial composition was mostly white, with a smaller Latino population. Anything which disconnected Jackson from the jury pool had to be destructive.
Before I arrived, everything about the Jackson defense appeared fantastic and gargantuan. At his initial arraignment, Michael had been late and had danced for his fans on an SUV; a highly publicized party was then held at Neverland for the media. One evening, I turned on the news in Los Angeles to see a round-table of Michael’s legal and financial advisers being filmed in a posh suite at the Beverly Hills Hotel. The local reporter referred to this group as Michael Jackson’s “Dream Team.” Jackson’s Nation of Islam security detail was receiving prominent coverage, and his interview with counsel on “60 Minutes” appeared to be a disaster. Lawyers were arriving for court by private airplane.
One of the best things I ever did was hang around bars and restaurants in Santa Maria before trial. Clad in blue jeans and my black leather jacket, I discovered that Michael Jackson was well-liked by many people in Santa Maria and was appreciated for choosing northern Santa Barbara County as his residence. He had been kind to local neighbors, local patrons of the arts and the neighboring Air Force base. Of course, the media were reporting that he couldn’t get a fair trial. Nonsense!
Along with the proper trial strategy and preparation, everything had to be toned down. I opposed courtroom cameras and supported the gag order and court-sealing of salacious pleadings. Hardworking jurors, who are being paid a pittance to sit on juries, don’t appreciate defense lawyers who appear to be having fun in a serious case. I also removed the visible Nation of Islam security team, who I feared might alienate local residents.
In the Jackson circus, most of the media were trying to spin a conviction because it would mean months of future air time and endless stories about Michael’s rise and fall. This case was never going to be won with them.
Entertainer clients understandably believe that media success is synonymous with courtroom dexterity. They perceive the courtroom through a Hollywood lens that is not realistic. I welcomed the gag order partly because it provided me more time to prepare. It gave me the freedom to focus on the courtroom and an excuse for not responding to the television circus.
My team and I lived in condominiums far from the media-saturated hotels, and I was in bed at 7:30 to 8 each evening, with a rising time of 3 a.m. Not only did this fit my preferred trial schedule, it insulated me from any unwarranted media intrusion. I eliminated racial issues from our defense and sought to remove controversial, provocative individuals.
The promise of fame or fortune from a high-profile case creates problems. The media try to seduce attorneys into thinking they are allies, provided their desire for inside information is satisfied. But these cases are never won or lost in the media, only in the courtroom. The most important audience is 13 people: the judge and jurors.