Objection! (22 page)

But the defense, even with multimillion-dollar pockets for investigators O B J E C T I O N !

1 4 7

and experts, will argue to a jury that the prosecution’s the one with un-limited resources and manpower to prosecute the “little guy.” We also saw this argument in the Peterson case. In truth, Geragos ended up with some of the world’s most renowned experts, like Dr. Henry Lee and Cyril Wecht, at his beck and call.

In practically every case I’ve ever covered or tried, I’ve heard the defense refer to the overwhelming power of the state. In doing so, the lawyers suggest to a jury that at trial everything was stacked against the lone defendant seated at the counsel table. When I was prosecuting, I felt that the exact opposite was true—and still do.

I never know whether to laugh or cry when I hear defense attorneys attack the all-powerful state. It reminds me of something that happened early in my career. I was on my way to answer a calendar call where the first case of the day was a murder trial. The shooting had left one man dead and another with a colostomy bag for life. All over a handful of

“dope ropes”—gold chains—on display in the showcase of a pawnshop.

En route, I had to wait at a red light several miles away from the courthouse. While my car was stopped, dark, foul-smelling smoke began pouring out from under the hood of my Honda. I didn’t have the time or the money to fix the thing, so I just kept driving, hoping it would keep running. That morning, I sat there thinking about the trial, wondering if I would end up smelling like exhaust fumes when I got to the courtroom.

I looked over to the left, expecting to see another driver staring at my smoking hood and holding his nose, but instead there was a huge tractor-trailer sitting there. He could either go straight or turn left—I could only turn right. But when the light changed, he took a right turn, his giant wheels literally rolling over on top of my car. Guess what? The

“state” screeched to a halt that morning because I wasn’t there to present its case. The “state” was stuck at a red light with a tractor-trailer on its hood. The state that is spoken of so anonymously, as if it’s this secret agency, is really a collection of people who are public servants pursuing justice. In this case, the state was a person standing in front of the jury 1 4 8

N A N C Y G R A C E

with big dark circles under her eyes and resoled shoes. That is the state, okay? That is the state. And that’s what people really don’t get.

Another popular strategy among defense attorneys is to characterize the prosecutor as this Darth Vader–ish figure whose limitless power is hell-bent on persecuting and destroying helpless defendants with a single motion. I promise you, I never felt that sense of invincibility trudging through housing projects in my $39 dress from Chadwick’s, trying to deliver subpoenas to witnesses who weren’t exactly happy to see me at their front door. I did, though, always draw great strength from believing deeply that I had right on my side. I felt the same way every time I entered a courtroom. Speaking directly to a jury as I began my opening statement at trial, I would always be reminded that the real power of the state is the power of right, the power to do right. That is the one real power of the state.

M O N E Y T A L K S . . .

J U S T I C E W A L K S

The defense frequently and
easily outspends the state—especially in high-profile cases. I have no problem with a high-priced defense, as long as a jury is not tricked into an acquittal. The defense likely outspent the state in the Jayson Williams trial as well as in the O. J. Simpson “trial of the century.” Here’s a little-known fact: Often when defendants don’t have the money to outspend the state, the defense can get public funds by petitioning the court for money to compensate experts. We the taxpayers pay for that. Our system guarantees a free lawyer if a defendant cannot pay for one, and at trial that is extended to include defense investigators and experts as well. Keep in mind that when the trial is over, if it ends in a conviction, the taxpayer also pays for the lawyers on appeal; and in some cases appeals go on for ten to fifteen years and wind their way all the way up to the U.S. Supreme Court.

We have recently passed the fortieth anniversary of the landmark O B J E C T I O N !

1 4 9

case that made it possible for the likes of Timothy McVeigh, Terry Nichols, the Menendez brothers, the D.C. snipers, and countless others to rack up exorbitant costs at trial and hand the taxpayers the bill. Before the case of
Gideon v. Wainwright,
indigent defendants who were accused of crimes could be convicted and sent to jail without the benefit of a lawyer. The Supreme Court reformed that practice in 1963, ruling that the Sixth and Fourteenth Amendment rights to counsel and to equal protection under the law apply to poor and rich alike.

The kicker is that we, the taxpayers, foot the bill for both the local public defenders appointed to criminal cases and private, high-priced defense lawyers, as well as their posse of consultants, experts, and investigators. In California, David Westerfield and killer brothers Erik and Lyle Menendez hired private lawyers initially. But when the well runs dry, as it did in those cases, the public pays. The rationale is that defendants who have built up a relationship with a specific attorney can likely keep the attorney even if they cannot afford to because there’s always us—people like my parents, who worked all their lives—to foot the bill.

The costs incurred with these cases are immense. Lawyers’ fees in capital cases range from $500,000 to $1 million. In the Menendez case, Leslie Abramson represented the defendants in their first trial, which ended with a hung jury. At retrial, when the two had run through all their dead parents’ money, the judge appointed the high-paid lawyer to the case because she knew the case thoroughly. The same thing happened with Westerfield’s defense. Renowned lawyers Steven Feldman and Robert Boyce represented him at trial for huge fees. They later advised the court that they had used up all their client’s money, including nearly $500,000 realized from the sale of his house. The judge booted them from the case in favor of cheaper counsel. An appellate court later reversed that decision, and the much more expensive team was reinstated. Check your tax bill for the damage.

The defense of the Washington, D.C., sniper John Allen Muhammad and teenage gunman Lee Boyd Malvo cost Virginia taxpayers more than $1 million. The defense bill for Muhammad was up to $900,000 as 1 5 0

N A N C Y G R A C E

of spring 2004. The cost of their appeals will drive the tab even higher.

Virginia doesn’t put a cap on lawyers’ fees in capital cases, where their hourly rate hovers around $150 per hour. Taxpayers paid nearly $60,000 on expert witnesses for Malvo alone. The total for his defense as of May 2004: $1,021,337. And before you choke on the $4 million defense we provided for Oklahoma City bomber Terry Nichols, compare it to the outrageous $13.8 million bill we paid for the defense of his confederate, convicted mass murderer Timothy McVeigh.

Consider this tidbit from our legal system’s strange but frighteningly true files: North Carolina residents picked up part of the tab for the defense of Rae Carruth during his trial on the murder-for-hire case of his pregnant girlfriend, Cherica Adams. The cost of paying defense attorneys David Rudolph and Christopher Fialko proved too much for the wide receiver who was paid a reported $40,000 a game. The state picked up the slack. Rudolph justified the state-funded end run around justice at the time by saying, “The only important thing is that Rae Carruth is receiving a competent, caring defense.”

Under North Carolina law, defendants in capital (death-penalty) cases have the right to two publicly funded attorneys who are supposed to be paid $85 an hour, but the final compensation is up to the trial judge. In high-profile cases like Carruth’s, where the attorneys are savvy and aggressive, judges will grant extra money for experts and even jury consultants. Residents wound up paying more than $100,000

for Carruth, who was found guilty of conspiracy to commit murder but walked on the first-degree murder charge. I wonder who will pay for the care and feeding of his son, who was born with cerebral palsy because of the hit he ordered on his baby’s mother?

Now consider this: How did a California fertilizer salesman pay for attorney-to-the-stars Mark Geragos’s services? It’s a mystery. At the time of his arrest, Scott Peterson stated he could not afford a lawyer, and the court appointed a public defender. In an interview with
People
magazine, the Petersons refused to comment on what they were paying Geragos to defend their son, but did say he wasn’t doing it pro bono.

O B J E C T I O N !

1 5 1

Estimates put his fee at $1 million. Forensic expert Henry Lee and medical expert Cyril Wecht, who are also part of Team Peterson, don’t come cheap either. Reports indicated that many members of the Peterson family (including Scott’s siblings) have taken out second mortgages on their homes and run through a good chunk of their savings—and that was before the trial even started!

As discussed in an earlier chapter, I strongly suspect the state footed at least part of the bill. The alternative would have been to appoint a new, court-appointed legal team midway through trial, like the local public defenders who had the case to begin with. This is tantamount to starting over from square one. You can almost guarantee that it would be argued that such a move would slow down the trial and put Peterson at a disadvantage, having a new lawyer unfamiliar with the case now trying to play catch-up. Both are true. Although a public-defender-based team would not incur legal fees, as PDs are already paid a salary by the state, it is highly likely the court would have left Geragos on the case at a reduced fee. On appeal, the Peterson tab continues to mount.

Y O U R T A X D O L L A R S A T W O R K

Another misconception about
“the power of the state” is the myth that the government—the evil empire—is taking in billions and billions of dollars in taxes that somehow go to help in convicting innocent people of crimes they didn’t commit. That’s simply ridiculous! I’ve often wondered what happens to all the money I’ve been paying in taxes all these years. What I see is Congress spending millions and millions of dollars on an outrageous list of projects that are nothing more than political boondoggles.

As I write this, I have just learned that Oregon prisoners now have flat-screen TVs to enjoy in the privacy of their own jail cells! Although the Oregon State Correctional Institution’s administrator, Randy Geer, 1 5 2

N A N C Y G R A C E

contends that the televisions are “not a luxury item,” the fact is, the Salem prisoners now get to kick back on their bunks and enjoy brand-new flat-screen TVs that most of us on the outside don’t have. The seven-inch sets are copies of flat-screen models in cars and airplanes.

The inmates contribute to the cost of the sets from money they’ve earned while working in prison, but related costs are all paid for by the taxpayer. Oregon is not alone in making prisoners feel at home behind bars. Fifteen other states allow in-cell televisions.

Still a skeptic? When I think of all the rehabilitation programs, probation officers, and investigators currently needed around the country, the following is even more disturbing. Take a look at this short list of the government’s pork project initiated after 2001. These are your tax dollars at work:

$50 million to build an indoor rain forest in Iowa
$1.5 million for a statue of the Roman god Vulcan in
Birmingham, Alabama

$489,000 for swine-waste management in North Carolina
$273,000 to help Missouri combat “Goth culture”

$50,000 for a tattoo-removal program in California
$26,000 to study how thoroughly Americans rinse their
dishes

$4,572 given to Las Vegas Helicopters, a company that
performs airborne weddings officiated by Elvis Presley
impersonators as part of a post–September 11, 2001,
aid-to-airlines package

Those are just a few examples of the government’s penchant to spend money on just about everything—except the justice system.

O B J E C T I O N !

1 5 3

These are funds that could be used to staff hotlines, hire victims’ counselors, and add desperately needed child-welfare workers, prosecutors, investigators, public defenders, or additional state court judges. The search for justice is shortchanged once again.

S L A V E W A G E S

Cops and prosecutors are
underpaid and overworked. I know that many people in many walks of life can make the same claim, but it strikes me that nobody is calling most of them out onto the street at 3:00

A.M. to stop a gunfight, a drug deal, or a domestic dispute. I can’t even count the number of times police officers came in on their free time to go out with me to take crime-scene photos and help me work cases.

When the bank alarm goes off down the block, everybody in the diner doesn’t look at each other to hop in their cars and run over and shoot the robbers—we all look to the cops. When our kids go missing or the house is burgled or the car is stolen, they answer the call. And the fact that they live on such low pay for such dangerous and important work is shocking.

It’s much the same for prosecutors. In my case, coming off
Law Review,
I started out at $31,000 and after ten years of hard litigation, never got past $50,000. After prosecuting all day, I held down two different night jobs to make ends meet. I taught law classes at a downtown university in Atlanta, one in the law school and one in the undergradu-ate school. Many prosecutors have second jobs because state and federal salaries are so low. Lawyers in private practice make double or even triple what prosecutors do. I’m not complaining—I continued to prosecute because it was what I wanted to do and why I had gone to law school in the first place.