Issue 269
November 28, 2003

INDEX

Articles


The following article appeared in The New York Times (on-line edition) on November 23, 2003:

 

For Lawyer, It's Michael Jackson on Line 1, Scott Peterson on Line 2

By Dean E. Murphy

 

SAN FRANCISCO, Nov. 22 - He was not a very serious law school student, one of his former professors says. He has a reputation for floating far-fetched defense theories, some fellow lawyers say. He even lost his most recent high-profile case involving felony shoplifting charges against the actress Winona Ryder.

     

But none of that matters much anymore for Mark Geragos, America's celebrity lawyer du jour. A theology student in college who friends say is anything but Hollywood hip, Mr. Geragos represents two of the most attention-grabbing criminal defendants in the country, a pop star, Michael Jackson, and a former fertilizer salesman, Scott Peterson.

     

"He reminds me of an old ethnic lawyer of the last generation, the guys who have strong friendships and strong enemies and who are flamboyant," said Harland W. Braun, a friend and fellow lawyer who has represented the actor Robert Blake. "He has an inner strength that you don't normally find in Los Angeles."

     

On Thursday, when Mr. Jackson surrendered to the authorities in Santa Barbara on child molesting accusations, Mr. Geragos, 46, was at his side. Two days earlier, he was in Modesto with Mr. Peterson, who is accused of killing his wife, Laci, and their unborn son.

 

It was there in a Modesto courtroom that Mr. Geragos's pager went off with news that search warrants had been executed at Neverland, Mr. Jackson's home near Santa Barbara.

     

"He likes walking the high wire, and he is up there now," said another big-name lawyer, Gloria Allred, who represents Mr. Peterson's former mistress, Amber Frey, and who has long been an adversary of Mr. Jackson. "There is not a whole lot of oxygen up there. We will see how he does."

 

Mr. Geragos, who spent Friday in a Los Angeles courtroom on an unrelated murder case, said in a telephone interview at the end of the day that the news media demands on his time were proving more exacting than his growing caseload.

     

There were so many calls to his pager - about 700 over one 24-hour period this week, including about 620 from reporters - that the pager became disabled, he said.

     

"At one point, I thought of throwing it in the ocean," he said. "To some degree it is embarrassing. I suppose because I don't think any of this is about me. It is about the client. Hopefully it passes and passes quickly."

 

Even before this week, Mr. Geragos had a run of high-visibility clients, beginning with his so-called breakthrough cases in 1998 and 1999. In those cases he represented Susan McDougal, the jailed Whitewater defendant accused of obstructing justice by Kenneth W. Starr, the independent counsel during the Clinton administration.

     

It was after winning Ms. McDougal's acquittal in two trials – one unrelated to Whitewater - that Mr. Geragos became well known outside the Armenian-American community in Los Angeles, where he had grown up and followed in the footsteps of his father, Paul Geragos.

 

The elder Mr. Geragos worked in the district attorney's office before starting a private practice. Father and son now work together, along with Mr. Geragos's brother Matthew and a staff of other lawyers.

 

"He is the greatest lawyer I have ever known," Mr. Geragos said of his father.

     

It was his father who had suggested that Mr. Geragos volunteer to help Ms. McDougal, who had been in jail in Los Angeles with no money to hire a lawyer. One day he showed up at the jail unannounced, Ms. McDougal said, suggesting that as someone of Armenian descent he had a special appreciation for victims of government oppression.

     

"I always tease him about my case launching him into the limelight," Ms. McDougal said. "He was just absolutely perfect. I hope mega-lawyering doesn't change him at all. He is one of the best people."

 

Mr. Geragos went on to represent President Bill Clinton's brother, Roger, in a drunken driving case, and former Representative Gary A. Condit, who came under suspicion when police investigated the disappearance of the intern Chandra Levy, who was later found dead. Other prominent clients included Ms. Ryder and the hip-hop star Nathaniel Hale, known as Nate Dogg.

     

But the Peterson and Jackson cases, coming in tandem and with both defendants vilified in the public, "jettisoned him into the stratosphere" of the country's celebrity lawyers, said Prof. Laurie L. Levenson, director of the Loyola Law School Center for Ethical Advocacy.

 

"He is not at the Johnnie Cochran level, he is the Johnnie Cochran," Professor Levenson said, referring to the lawyer perhaps best known for representing O. J. Simpson on murder charges. "It is not that he tolerates the media. He loves the media."

     

On the very day Mr. Geragos was defending Mr. Jackson before a bank of television cameras in Santa Barbara, another lawyer to the stars, Robert Shapiro, was wrapped up in a Hollywood sideshow that served only to highlight Mr. Geragos's newfound ascendancy.

     

Mr. Shapiro was in a courthouse in a Los Angeles suburb with Phil Spector, the rock music producer accused of murder.

 

"The household names of today are Mark Geragos and Johnnie Cochran,"  Professor Levenson said.

 

 Perhaps most widely recognized for his frequent appearances on cable television shows like CNN's "Larry King Live," Mr. Geragos is an unabashed self-promoter who seeks out the spotlight, friends and colleagues say, whether it be on national television or at an Armenian-American banquet in Los Angeles.

     

His friend and Loyola law professor, Stanley A. Goldman, who provides legal commentary on the Fox network, said Mr. Geragos had been shooting for the stars ever since he left law school, where Professor Goldman was among his teachers.

     

"He was always a very public kind of person," said Professor Goldman, "in the sense that he claims that he rarely showed up for class because he was organizing rock concerts. I like Mark Geragos. A lot of people don't. He can be extremely pushy."

     

Mr. Geragos said the notoriety has served him well.

 

"I certainly don't shy away from it," he conceded in the telephone interview. "I think that I am able to effectively advocate for my client in a case that is high profile."

     

But there have been some drawbacks. Before taking Mr. Peterson as a client, Mr. Geragos was among the armchair legal analysts who discussed the murders on television, at one point describing the circumstantial case against Mr. Peterson as "damning."

     

Mr. Geragos now says he is convinced of Mr. Peterson's innocence, and since the judge in the Peterson case issued an order limiting participants' discussion of the case, Mr. Geragos no longer makes regular television appearances.

     

Nancy Grace, an anchor for Court TV and a former prosecutor who has often sparred with Mr. Geragos on television, said she respected his skills as a lawyer but sometimes took exception to his tactics.

 

Ms. Grace said Mr. Geragos saw truth "in shades of gray" and invoked defense strategies "as a ploy" to win over jurors.

 

"If I were charged with double murder, I would definitely call Mark Geragos," Ms. Grace said. "What Geragos has is a certain affability that persuades the jurors. That is what sets him apart from many other lawyers. It is not something that can be learned. It is not something that can be practiced. It is part of his nature."

     

Even so, Ms. Grace was not prepared to anoint Mr. Geragos as the next legal sensation of the ilk of Mr. Cochran.

 

"We will have to wait and see about that," she said. "Remember, Johnnie won his case."

 

 

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The following article appeared in the Chicago Tribune (on-line edition) on November 23, 2003:

 

Lawyer adds Jackson to high-profile portfolio

                 

By Jean Guccione and Michael Krikorian

 

If he is not already, Mark Geragos, singer Michael Jackson's chosen defender, is on his way to becoming one of those rare lawyers recognizable everywhere, as Johnnie Cochran was during the O.J. Simpson murder trial.

 

Fans of cable programs such as "Larry King Live" probably already recognize the Los Angeles lawyer who represented Winona Ryder in a shoplifting case and now represents Scott Peterson, charged with the murder of his wife and their unborn son. But he has stepped onto a much bigger, international stage as Jackson's chief attorney on child molestation charges.

 

Geragos also will be among the few lawyers who have grabbed the spotlight in two high-profile criminal cases that generated intense media interest at the same time, experts say.

 

Though all lawyers juggle cases, the idea of simultaneously defending Jackson and Peterson--the Modesto, Calif., man charged with killing his wife, Laci, and their unborn son last year--is turning heads because the stakes in high-publicity cases are huge.

 

"With the Peterson jury, you'd have to be careful they wouldn't identify you with the Michael Jackson case," said criminal defense attorney Harland Braun, who once represented actor Robert Blake and other high-profile criminal defendants. "And with the Jackson jury, you'd have to be careful that they wouldn't identify you with the Scott Peterson case."

 

Geragos will have to delve into those attitudes during jury selection to make sure "an association of one client won't affect another client's representation," said Gordon Greenberg, a criminal defense lawyer.

 

Potential jurors, he said, could be asked broad questions that might reveal their true feelings, such as: Do you know the lawyers? Do you have strong feelings based on the lawyer's other clients?

 

Heart vs. pocketbook

Geragos' involvement in the Jackson case might cause concern among his other clients, particularly those paying for Peterson's defense.

 

"I'm sure the Peterson family is not happy. They must worry that his energies might be deflected toward this even higher-profile client," said law professor Stephen Gillers of New York University.

 

They also might be asking, "Is his heart going to follow his pocketbook?" Gillers added.

 

Geragos scoffed at the notion that the Peterson family was upset over his taking on the Jackson case.

 

"Jackie Peterson [Scott's mother] said, and this is a quote, `I'm so happy for Michael Jackson that he gets to have Mark defend him also,'" Geragos said.

 

Those who know Geragos are confident.

 

“He knows how to put forth a positive public face even when initially these cases might be very difficult, both when it comes to client-management issues and legal work, to try to win the case," said Dana Cole, a criminal defense lawyer who represented Blake's former co-defendant, Earle Caldwell.

 

"Mark has a staff of attorneys. He delegates responsibility. As long as the trials don't occur at the same time, it can be done," Cole said.

 

Besides the obvious, he suggested that a key to Geragos' success might include hiring a good travel agent.

 

Greenberg said juggling dozens of cases in various stages of investigation and trial comes with the territory.

 

In many ways, lawyers are like emergency room doctors, he said, trying to triage patients whose cases vary from a playground injury to heart attacks and gunshot wounds. Lawyers also must weigh the needs of each client and first assist those who have the most dire legal needs, he said.

 

An added glitter

Jackson's choice of such a well-known lawyer could work to his advantage, experts said, because some potential jurors might be awed by Geragos' celebrity.

 

Gerry Spence, a noted Wyoming trial lawyer, said jurors might have an opinion of an attorney when they walk in the courtroom, but "those things usually vanish" during trial.

 

Regardless of celebrity, "you have to prove yourself to a jury," Spence said.

 

Paul Geragos, who founded the 11-member law firm in 1967, said his 45-year-old son and law partner lives for the challenges. "He thrives on having a problem to solve," the father said.

 

Most lawyers are accustomed to representing unpopular clients. They know the public sometimes associates them with their clients, or worse, their clients' alleged crimes.

 

"These types of cases don't enhance your reputation," said Donald Steier, a criminal defense lawyer who represents several Catholic priests accused of molesting children. But he predicted that Geragos' image will precede him in this case.

 

"Is this case going to hurt his reputation?" Steier asked. "Ultimately, if he prevails, he will become a superstar. Ultimately, if he wins, it will only enhance his national reputation."

 

Geragos said Thursday that he expected no problem defending both clients.

 

"Ultimately, it is not much different than what I normally do, except there is more dealing with the media," he said.

 

 

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The following article appeared on Court TV.com on November 21, 2003:

 

Court TV Exclusive:  D.A. discusses case against Michael Jackson

By Matt Bean

                 

The district attorney spearheading the child molestation case against Michael Jackson is not out for revenge, he said Thursday in an exclusive interview with Court TV's Diane Dimond on "Hollywood at Large."

 

"We're going to handle it like any other case," said Thomas Sneddon, who led an aborted investigation into similar charges a decade ago and was attacked by Jackson in a thinly veiled song entitled "D.S."

 

"It's part of our jobs. But for anybody to think this is something we're doing because he wrote some song about me or something that happened 10 years ago, it's just not true."

 

Sneddon, 61, earned the nickname "Mad Dog" for his no-holds-barred approach to prosecution. The veteran district attorney slammed assertions that he had ulterior motives to bring multiple charges of child molestation against the 45-year-old pop icon - including revenge for Jackson's 1995 song ridiculing a man named "Don Sheldon."

 

"I got more important things going on in my life than to listen to a song by a guy everybody calls Jacko Wacko," Sneddon said. "I have my life and I do my job, and anybody who thinks I've spent 10 years sitting here waiting to read [lyrics] from Michael Jackson just has not got a clue. Or anybody who thinks that I'm doing this for political reasons is totally poppycock because I'm not running for re-election. I'm retiring in three years. And I've been successful, I have a good career. I'm not worried about getting another notch on my belt."

 

Jackson turned himself over to Santa Barbara sheriff's officers Thursday afternoon, arriving in a caravan at the main county jail where he was fingerprinted, photographed for a mugshot, and given an arraignment date of Jan. 9. The highly anticipated surrender came on the heels of a day-long police search of three of Jackson's properties, including Neverland, his palatial ranch estate outside Santa Barbara.

 

Published reports have singled out a 12-year-old boy as the accuser. Unlike the family behind the 1993 abuse allegations, however, this child's family is more concerned with justice than money, according to Sneddon.

 

“They're aware of the risks involved, and they've still cooperated with us," Sneddon said. "I think it would be really unfair to be talking about these people as if they want to get even with Michael Jackson or something like that."

 

Sneddon said the alleged victim's family has much in common with other families affected by sexual abuse of a child. "There are difficulties, it's tough, it's emotional ... and I ... just see the people involved are not any different than most of the cases this office gets of child victims."

 

Compared to the 1993 case, however, the current allegations could be settlement-proof, Sneddon said.

 

"In the 1993-94 case, a child victim had the right not to testify if they chose not to, and could still have a civil settlement," Sneddon said. "The law has been changed now. If you take a civil settlement you don't have that privilege not to testify anymore."

 

Though it remains unknown whether the alleged 1993 victim, now in his 20s, would be willing to testify in the current case should it go to trial, Sneddon said the evidence would be admissible to demonstrate prior criminal behavior - so long as the man backed up his claim in court.

 

"Otherwise you just could bring in anybody off the street to say 'Oh, this happened, this happened, I heard it third-hand hearsay - which is totally unfair."

 

Jackson reached a multimillion-dollar settlement with his alleged victim in the 1993 case, drawing an end to criminal charges brought against him.

 

                  

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The following interview took place on November 20, 2003 and appeared on CNN.com:

 

Toobin:  California law allows admission of child’s prior statement

 

From the California Penal Code Section 288(a):

                        Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

                      

                

(CNN) - Singer Michael Jackson surrendered to authorities in Santa Barbara, California, on Wednesday to face child molestation accusations. CNN anchor Kyra Phillips spoke with CNN legal analyst about changes in California law that apply to alleged juvenile abuse victims.

 

KYRA PHILLIPS: Explain to us how the law has changed in California. There was a lot of back and forth on this yesterday and even today. The DA (district attorney) coming forward and saying, "the law is different from 1993, when allegations first came forward about Michael Jackson and child molestation." He said now the law has changed, that's why we're filing charges and going forward in this manner. How has the law changed? Is it with regard to the victim being forced to speak or not to speak? Explain that to us.

 

JEFFREY TOOBIN: This really was the subject of, I think it's fair to say, some incorrect information that was provided by the district attorney yesterday. Here, let me give you a little background of why it's significant.

 

In the 1993 case, Michael Jackson was accused not in a criminal court, but there was a civil accusation that he molested a child. A criminal investigation followed. There then was a civil settlement between Michael Jackson and the child. He paid the child a great deal of money, several million dollars. That child and his family then said we will not participate with the criminal justice system, we will not testify, we're checking out.

 

Yesterday, the district attorney said, well, things are different now, because children can be forced to testify in these investigations. That's simply not true. That is not the law. But the law did change in an important way.

 

What happens, the law now is that if a child under 12 -- and that's a significant fact, if the child is under 12 -- has given a prior statement under circumstances that the court thinks are reliable, and then the child withdraws his cooperation, that previous statement can be admitted in court. If it's a written statement, if it's a videotaped statement, that statement can be admitted in court even though it's hearsay. So that's a big change. But it is not a change that says kids can be forced to testify, because they can't.

 

PHILLIPS: Sounds like there's a big challenge here with regard to proving intent.

 

TOOBIN: Well, these cases are very tough to prove. And the law is also very concerned about a second violation of children in the sense of forcing them to testify, forcing them to live through this, forcing them to be cross-examined. That's a tension in the system. We want defendants to have a fair trial, to be able to test the evidence against them, but we also want children not to be harassed and further abused by the legal system.

 

So what the change meant in the law since '93 is to try to achieve a better balance there, to give the prosecutor some option of using information gleaned from these victims without subjecting them to cross-examination. The California courts have upheld this process of allowing these prior statements to be admitted. But it is a difficult balance between these two competing interests.

 

PHILLIPS: As this goes on and this proceeds, I want to ask you a question about this because this interview has come up time and time again. You remember the interview that Michael Jackson did. It was very controversial. At least what he said was very controversial. With the British TV -- remember the British TV interview that he did, and I have a number of the quotes here that I wrote down that came from that documentary.

 

He said things in this documentary, for example, "I used to walk around holding baby dolls, because I wanted children so badly." He talked about having kids sleeping in his bed, including certain former child actors. "When we'd go to sleep, I put the fireplace on, I give them hot milk. You know, we have cookies. It's very charming, it's very sweet, it's what the whole world should do." And he goes on to talk about how there's not nothing -- anything sexual going on here, but he has admitted a number of times about his relationship and love for children.

 

Can this come back and haunt him in this case?

 

TOOBIN: You know, Kyra, sometimes I worry that I give weasely answers. Here I'm going to give you a straight answer. Absolutely. These kinds of statements are clearly admissible. Prior statements by a defendant that tend to show intent are clearly admissible. And certainly, that statement about allowing children to sleep in the same bed as him would come in.

 

Now, the defense would have the opportunity to put in the full context of this statement where he says, "Oh, it's very innocent, it's not -- there's nothing wrong with it, there's nothing inappropriate." So the defense would certainly be allowed to introduce the full statement, but prosecutors absolutely would be allowed to put in that statement. And frankly, I think it would be very damaging, a grown man admitting that he sleeps in the same bed with children, a man who is now accused of child molestation? Sounds damaging to me.

 

PHILLIPS: Jeffrey, thanks so much. We'll continue to check in with you.

 

 

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The following article appeared in the Washington Post (on-line edition) on November 21, 2003:

 

Stressed to Kill:  The Defense of Brainwashing

Sniper Suspect’s Claim Triggers More Debate

by Don Oldenburg

 

As sniper suspect Lee Boyd Malvo stands trial this week, his insanity defense relies on a controversial claim rarely heard in courtrooms: The defendant was brainwashed to kill.

 

But whether Malvo is a "Manchurian Candidate" sniper or a coldblooded killer who acted on his own volition is a question that ventures into complicated territory -- that of the human mind and an often bitter three-decade debate over the validity of brainwashing.

 

In the courtroom of public opinion, the word "brainwashing" has a dramatic history. There, it recalls the blank stares and swastika-carved foreheads of Manson family murderers, the gruesome scene of 912 bodies after the mass suicide at Jonestown 25 years ago last Tuesday and the mass suicide by Heaven's Gate members, convinced that by killing themselves they would rejoin their alien kin on a spaceship heading home.

 

The word is still used to explain incomprehensible behavior today. When Islamic

extremists flew airliners into the World Trade Center and the Pentagon, some

speculated brainwashing. The mother of "shoe bomber" Richard Reid and the father

of American Taliban soldier John Walker Lindh said their sons were brainwashed.

When kidnapped Elizabeth Smart was reported to have strangely complied with her

abductors, her father said she had been brainwashed.

 

But social scientists and legal scholars are split over whether brainwashing is junk science or a real phenomenon.

 

"A pseudo-scientific myth," says psychologist Dick Anthony, a leading opponent of brainwashing theories.

 

"The concept can be wrongly exaggerated and equally wrongly denied," counters psychiatrist Robert Lifton, a pioneer of mind control research.

 

Is brainwashing hogwash or not?

 

Newspaper journalist Edward Hunter coined the term during the Korean War to describe mind control used on American POWs who defected to Korea and China. In his 1956 book "Brain-Washing," Hunter, later revealed to be a CIA propagandist, described "a system of befogging the brain so a person can be seduced into acceptance of what otherwise would be abhorrent to him."

 

Psychiatrist Robert Lifton, one of a team of U.S. researchers who were the first to interview POWS in China, soon after concluded that the Chinese used a systematic process of "coercive persuasion" that involves specific elements: complete control over information and environment, manipulation to erode self-expression, criticism and degradation, confession, discipline, peer pressure, renunciation of values, and coercion by physical force and threat.

 

"What I studied in Chinese thought reform is very real and brought about real changes in human beings," says Lifton, now a visiting professor of psychiatry at Harvard Medical School. His 1961 book "Thought Reform and the Psychology of Totalism" is considered the bible of brainwashing science.

 

But Lifton doesn't like the word "brainwashing." It's overburdened with misconceptions, he says, and brings to mind the 1962 movie "The Manchurian Candidate," which dramatized the idea of a robotic assassin. He prefers "thought reform."

 

Not surprisingly, the greatest body of clinical brainwashing study was done by scientists under the cloak of the CIA -- some of it attempting to create the hypnotic courier and trance-state bomber. From 1950 into the early '70s, the CIA-funded mind-control projects used drugs, electric shock, hypnosis, sensory deprivation, psychological tricks, even electrode brain implants, according to Freedom of Information Act investigations and declassified documents.

 

Almost no clinical studies like those have been done openly, because of ethics and legal consequences. Facing congressional investigations, the CIA in 1973 acknowledged it had experimented with brainwashing, found it didn't work, and destroyed its research records.

Opponents of brainwashing theory say the CIA's admission is evidence that brainwashing is nonsense; proponents say that if you believe that, they've got a bridge in Brooklyn. Yet not much controversy tailed brainwashing until it appeared in the legal arena.

 

The watershed brainwashing-made-me-do-it defense was the 1976 trial of publishing-fortune heiress Patty Hearst. Kidnapped by Symbionese Liberation Army revolutionaries, the 19-year-old Hearst was held for two months, kept naked in a closet, tortured and raped, and indoctrinated in SLA politics -- before joining her captors as a machine-gun-toting, bank-robbing urban guerrilla.

 

Her lawyers claimed she was brainwashed. But the term "Stockholm syndrome" -- when a captive bonds with the captors -- had not yet gained currency, and Jonestown was two years away. The jury found her guilty.

 

James T. Richardson, professor of sociology and judicial studies at the University of Nevada, Reno, believes there are rational explanations for why Patty Hearst joined her captors -- fear, coercion, survival strategy -- but brainwashing is not one of them. "You don't really need some black-box, magical term to understand what happened," he says, "but that case convinced a lot of people these kinds of techniques exist."

 

So did the emergence of cults and new religious groups. In the '70s and '80s, former members sued organizations such as the Unification Church and Scientologists, claiming brainwashing even though there was no physical coercion. After an early run of courtroom victories for the plaintiffs, the other side trumped the debate, convincing the courts that noncoercive brainwashing could not be proved.

 

While the plaintiffs argued that the members lost their free will, making the groups legally liable, the defense lawyers pointed out that the groups did not engage in coercion, one of the factors Lifton said must be present for brainwashing to occur. Pointing out that new brainwashing theory relied primarily on interviews, not clinical studies, the groups' experts demanded: "Where's the science?"

 

Dick Anthony, a forensic psychologist based near Berkeley, Calif., and co-author of "In Gods We Trust: New Patterns of Religious Pluralism in America," spearheaded the effort to brand brainwashing testimony as bunk. "No reasonable person would question that there are situations where people can be influenced against their best interests," he says, "but those arguments are evaluated on the basis of fact, not bogus expert testimony."

 

By the 1990 case U.S. v. Fishman, in which the defendant pleaded not guilty by reason of insanity to mail fraud charges, alleging Scientology brainwashed him into committing crimes, the judge dismissed brainwashing testimony outright as unscientific and  inadmissible. Brainwashing has been a hard case to crack in court since. But Alan Scheflin, professor of law at Santa Clara University and author of the 1989 book "Trance on Trial," says there's been plenty of research on the power of human susceptibility, group mores and subjection to hypnotism, isolation, sensory deprivation and obedience training -- all elements of brainwashing.

Scheflin cites studies in the '50s at Yale that showed people would ignore clear-cut fact to conform to a group lie and '70s studies proving how easy it is to manipulate people with authoritative commands. "We know that people can be influenced, we know they can be unduly influenced, we know they can be unduly indoctrinated," says Scheflin. "What's the problem?"

 

Rutgers University sociologist Benjamin Zablocki complains that the cult/religious group litigations stopped further scientific inquiry into brainwashing at a time when it might have shed light on the mental state of terrorists. Court cases require black-and-white thinking, either/or analysis, he says, while "scientists are supposed to try to get to the truth by seeing all the nuances and complexities of what actually goes on."

 

Discredited or not, brainwashing was making a courtroom comeback even before Malvo's lawyers attracted national attention.

 

Richardson says the idea is showing up more often in family court and custody battles, where one parent is accused of brainwashing the child to reject the other parent, and in child sex abuse cases where one parent is accused of brainwashing the child to make sex abuse accusations against the other parent, "with some success."

 

In Massachusetts, lawyers for second-degree murder suspect Karen Robidoux, a member of an authoritarian religious sect for 10 years, are arguing that she starved her 1-year-old son to death because she was brainwashed and thought she was fulfilling a vision from God. Her attorney claims she was "controlled, manipulated, oppressed and threatened," and refers to her conditioning as "mental slavery."

 

Malvo's case -- an insanity defense that blames brainwashing? "Can you win with a brainwashing defense? If you do, you'll be making new law," says Scheflin.

 

Kerry Noble, a former member of a right-wing religious hate group, says he doesn't know much about Malvo but believes brainwashing could certainly have led a person to kill. In 1984, Noble carried a briefcase filled with explosives into a service at a gay church in Kansas City, Mo., intending to blow it up. He says he was acting under the influence of brainwashing after seven years in the Covenant, Sword and the Arm of the Lord.

 

"All the normal thinking processes about what's right and what's wrong were gone," says Noble, who recounted his story in his 1998 book "Tabernacle of Hate." But while sitting in the church to avoid suspicion, he saw the humanity there and left with the bomb, says Noble, who spent seven years in prison on firearms charges.

 

Malvo pulled the trigger instead of walking away. "Was there a greater cause?" Noble asks of Malvo's motives. "If so, you believe that God is in control and nothing you do is wrong."

 

But the verdict comes down to what the jury believes, says Philip Zimbardo,

psychology professor at Stanford University.

"How do you get somebody to step across that line between Dr. Jekyll and Mr.

Hyde?" says the former president of the American Psychological Association. "Brains don't get washed, but extreme forms of social influence happen all the time. Coercive persuasion? Sure it exists. But juries find it hard to believe. Nobody wants to believe human nature is so pliable."

 

 

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The following article appeared in the Washington Post (on-line edition) on November 21, 2003:

 

For Jurors, Stress of Capital Case Can Linger

Researchers Find An Emotional Toll

by Abigail Trafford and Josh White

 

Lynda Walcker of Newport, Ore., is proud of her role as foreman of the jury that gave the death penalty to Christian Longo, a smooth-talking man who murdered his wife and three children, whose bodies were found in the shallow waters off the Pacific coast. Longo is now on death row.

 

Walcker has moved on since the widely publicized trial ended seven months ago. And then last week, she had her first nightmare about Longo: "It was like he was in a mental institution instead of a prison," she said. "I'm watching Longo. His hair is grown out, he's walking around as though he's in control of everything. His old debonair self." At the trial, she feared that if he didn't get the death penalty, "he'd be in a place like this" and could escape. Suddenly in the dream, Longo attacks her. He "turned into an animal," she said. "It felt like he was on top of me. He was trying to choke me. This is what he did to his family. He strangled them. It was violent . . . I was fighting my way out."

 

Nightmares are not uncommon for jurors who sit through particularly gory trials, symptoms of a kind of post-jury stress syndrome. Over the past decade, researchers have become much more aware of the emotional impact of jury duty. Symptoms range from trouble sleeping and irritability to anxiety and depression. Some jurors find themselves on the verge of tears for no reason. Symptoms usually ease after two or three months. But a few people remain disturbed years later.

 

For the past month, a panel of 10 women and five men has sat in a small, cramped courthouse in Virginia Beach to decide the fate of John Allen Muhammad. The jurors have viewed a montage of mayhem with almost 500 pieces of evidence and nearly 200 witnesses, as the prosecution built its case around the 16 slayings that terrorized the Washington area in the fall of 2002.

 

Projected on a large screen were death scenes: Linda Franklin, sprawled on her back, half her face blown away, the other half intact with her eye open like a Halloween mask, her white shirt drenched in blood. Hong Im Ballenger on a coroner's table in Baton Rouge, the left side of her jaw missing. Sarah Ramos in a pink T-shirt, the back of her head blown open. Jurors saw multiple photos of splattered brain matter.

 

Perhaps more agonizing were the tapes of 911 calls: Liquor store owner Muhammad Rashid calling for help when he was shot in the abdomen, his words punctuated by panicked shrieks of pain. William Franklin calling the police after his wife was shot, a wail so strangled and high-pitched that the dispatcher at first mistook the former Marine for a woman.

 

Psychologists call this secondary trauma, the reliving of someone else's catastrophe. It echoes the public trauma of the Sept. 11, 2001, attacks, as millions of Americans watched the replay of the plane going into the second tower. It is similar to what police officers and firefighters are exposed to on the job. Except that jurors have no training or support system to deal with it.

 

When Franklin's husband took the stand to tell his story, several jurors wept. Day after day, they grimaced at the gory photos. One juror, a bartender in her thirties, began averting her eyes from the courtroom's video monitors.

 

The testimony in the death penalty phase can be the most stressful. This is when prosecutors paint the killer in the most horrific terms and the defense tries to humanize him. This week, jurors heard that Muhammad was planning more killings and repeatedly threatened to kill his ex-wife. They also heard from a former lover of Muhammad's who said "his life will always have value" and listened to letters from his children vowing to love him always. They saw the normally composed Muhammad on the verge of tears. "This is one of the biggest decisions you'll ever make in your entire life," defense attorney Jonathan Shapiro told jurors yesterday in his closing argument. "A life is literally in your hands."

 

As Leigh B. Bienen, a law professor at Northwestern University's Center for Legal Studies, puts it: "It's an extremely difficult, emotional thing to sit through a capital trial. . . . You're dealing with people who died in horrible ways, the families of the victims, a defendant who is accused of doing very bad things . . . It's like humanity at its worst."

 

An Agonizing Decision

The vast majority of jurors do not experience lasting stress. Even those who serve in high-stress trials usually look back on jury duty as a significant and positive experience. But certain kinds of trials pose substantial psychological hardship.

 

"It's almost impossible to predict how they are going to react," said Thomas L. Hefemeister of the University of Virginia Law School. In a report by the National Center for State Courts in Williamsburg -- "Through the Eyes of the Juror: A Manual for Addressing Juror Stress" -- about one-third of all those who served on juries said they experienced some stress. And more than half thought other jurors showed signs of stress. According to the survey, close to half the jurors on trials lasting more than 11 days said they had "disturbing memories, and approximately a third reported feeling numb and detached."

 

Death penalty cases top the stress index. As Hefemeister pointed out: "It's a soul-searching experience to reach a death penalty." These cases also get a lot of publicity. Jurors fear they may be criticized for their decision.

 

A key factor is the psychodynamic of the jury. If jurors don't get along, the stress escalates. "Interactions with other jurors are prime ingredients of social support -- or more stress," said W. Larry Ventis, chairman of the Department of Psychology at the College of William and Mary in Williamsburg.

 

And jurors bring their personal portfolios of emotions and past experiences. They can imagine themselves or their loved ones caught up in a similar scenario. What makes jurors vulnerable is "their humanity, I guess," said G. Thomas Munsterman, director of the Center for Jury Studies at the National Center for State Courts.

 

The jurors' emotional isolation compounds the stress. They are not allowed to discuss the case with anyone -- not with their loved ones at home, not with their fellow jurors. This eliminates one of the prime ways of relieving stress: sharing the experience with another person.

 

For Linda McMoran of Woodbridge, who was a member of the jury that sentenced drug dealer Justin M. Wolfe to death in Prince William County last year, "that was just awful, having to just keep it all inside. . . . There was no way to let it out. That's not a healthy thing."

 

"I think the majority of people come out of it disturbed," said Beth Bonora, founder of the National Jury Project, though most are able to handle the stress. "For some, it's a slow process. They have to begin to put those things behind them and take some sort of solace in having undertaken a tremendous civic responsibility."

 

In extreme instances, jurors may suffer a kind of death penalty remorse.

 

Three years ago, Jennifer Day Wasko was the jury foreman in the capital murder case against Paul Warner Powell, a man accused of plunging a knife into a 16-year-old girl's heart and then savagely raping and stabbing her 14-year-old sister, who survived. The jury sentenced Powell to death.

 

But the decision was devastating to Wasko. After the trial, she befriended Powell, offering him money and writing to him in jail. Her marriage broke up. As the nightmares continued, she underwent counseling. "I'm doing a lot better, but I've been through such hell. It really freaked me out," she said recently. "Everything was uprooted. . . . My life as I knew it was over. I was so hurt and confused."

 

 

Jury Bonding

The jurors in the sniper trial have some advantages in dealing with stress. They are not sequestered and can go home at night and preserve some normalcy outside the courtroom. The judge has warned them before certain gruesome images have been shown.

 

Most important, they are allowed to take notes during the trial, a recent innovation in some courts to give jurors a greater sense of control and participation.

 

"Getting something down on paper helps clarify thoughts," Ventis said. And it "might ease some stress."

 

During testimony, some jurors have used yellow legal pads to take careful notes. Others haven't written a word, but have sat on the edge of their seats to view the evidence or stared at victims' families or studied Muhammad about 15 feet away at the defense table.

 

They all sit in faux leather armchairs that lean back, allowing them to rock. The only visible discomfort is the chilly blast from an air-conditioning duct that blows on the jury box. One woman joked about bringing in duct tape to block it. Another kept a plaid blanket on her lap.

 

In many cases, deliberation is a time of closure. Jurors finally get to discuss the case and express their views and feelings. When jurors bond and reach a consensus, there's a collective sense of healing.

 

This is why alternates often report higher stress levels than regular jurors. They live through all the testimony and are then dismissed. It's "like being all dressed up for the prom and not getting to go," said one juror in the study by the National Center for State Courts.

 

Last week, the three jurors who were identified as alternates appeared dejected when they were let go. One, an eighth-grade teacher, had tears in her eyes. The remaining 12 gave each alternate a hug as they filed out. Two of the alternates have since sat in on portions of the sentencing phase.

 

Some juries bond so closely that they hold annual reunions and become an informal mutual support system after the trial is over.

 

But not always. In a group of randomly selected people with little in common and much at stake, the potential for conflict is significant. Tempers can flare. "Jurors start out very friendly. To the extent they can't agree, they keep trying. People feel frustrated. They feel isolated or alone. When the discussion becomes personal -- What's wrong with you? Why can't you see it the way any right-thinking person would see it? -- that's hard on jurors," Hefemeister said.

 

He recalls a case in California that involved a hung jury. The judge kept pushing for a verdict. One juror locked himself in the restroom because he couldn't stand to look at another juror. "There were two jurors talking to each other through the walls of the bathroom," he said.

 

So far, jurors in the courthouse in Virginia Beach appear friendly to one another. They chat amicably during breaks. When they retreat to a room behind the bench, loud laughter can be heard throughout the courtroom. Once when the judge instructed them to talk among themselves so they wouldn't hear a conversation before the bench, a juror in the front row started the whole group rocking in unison.

 

As Lynda Walcker looks back on the Longo trial, she thinks the greatest stress came in the death penalty phase when she was trying to ensure that "everyone was making the decision on the right basis," she said. "We were so conscientious. . . . Longo got a jury that cared."

 

After the trial, jury members underwent a debriefing with a mental health professional, another recent innovation in some courts to reduce jury stress in high-profile cases. (None is planned in Virginia Beach.) Jurors were told that feeling stressed was a normal reaction to an abnormal event. "You always have a couple of people who are hit a little harder," explained Walcker. "There's an overload of emotion."

 

When she had her dream about Longo, she called up a fellow juror who could empathize. "Pieces of it do stay with you, even if you have dealt with it," she said. "If you take your part seriously, and do it to the best of your ability, there are times when you will wonder if you did your best."

 

And then she added: "I'm fine today. I know it was just a nightmare."

 

Staff writers Tamara Jones and Carol A. Morello and staff researcher Mary Lou

White contributed to this report.

 

 

* * * * *

 

 

The following editorial appeared in The New York Times (on-line edition) on November 17, 2003:

 

The Court and Guantanamo

 

The Supreme Court took a welcome step when it agreed last week to decide whether the Guantánamo detainees could challenge their status in civilian courts. Over the objections of the Bush administration, the justices will review a lower court's refusal to hear their claims. The Supreme Court should hold that the detainees have a right to a legal proceeding to challenge their confinement.

    

Hundreds of detainees have been held at a naval base in Guantánamo Bay, Cuba, since their capture in the Afghanistan war, with no idea of when they will be released. Those who may have been captured in error have had no chance to make that case. After more than a year and a half, 16 of the detainees are suing. They are not asking for full-blown civilian trials, but they argue that they should be given a chance to contest their      detainment before an impartial tribunal.

 

The administration had urged the Supreme Court not to hear the case, arguing that the detainees' status is "constitutionally committed to the executive branch." The administration contends that the Guantánamo base is not part of the United States, and it invokes a 1950 Supreme Court decision holding that federal courts lack jurisdiction over the military detention of foreigners outside the United States.

     

When the Supreme Court rules next year, it should vindicate two important legal principles. First of all, it must send a forceful message that the detainees have a right to challenge their confinement before a tribunal. Given the absolute control the United States exerts over the Guantánamo naval base, and the terms of the 1903 lease giving it that control, it is disingenuous for the government to argue that the detainees are outside

its jurisdiction.

 

It is no less important that the court make clear to the administration that it is not above the law when it wages its war on terrorism. Rather than arguing that its detainee policies are lawful, the administration boldly asserted that the courts had no right to review them. The Supreme Court will undoubtedly be hearing similar arguments in the days ahead. Now is the time to say clearly that the court, not the president, has the final word on what the Constitution permits.

 

 

* * * * *

 

 

The following editorial appeared in the Los Angeles times (on-line edition) on November 15, 2003:

 

The Value of Miranda

 

The U.S. legal system is built on the premise that ends don't justify means. Next month the U.S. Supreme Court will hear prosecutors argue, in essence, that getting a jury to convict a woman of murder justified the shameful means police used to extract her confession. On Feb. 12, 1997, Patrice Seibert discovered that her son Jonathan had died in his sleep. The 12-year-old had cerebral palsy and could not walk, speak or feed himself.

 

Seibert apparently feared she might be accused of neglect in Jonathan's death. That, according to the police's theory, is why Seibert admitted she listened and did not object as an older son and his friend, Donald Rector, discussed setting her house trailer on fire to cover up the death. The fire they set that night also killed Rector.

 

Five days later, Mississippi police arrested Seibert for Rector's murder. The officers decided in advance not to give her Miranda warnings - not to tell her she had the right to remain silent or to have an attorney present during questioning. They pressured Seibert into admitting that Rector was supposed to die in the fire, a statement she later disavowed. After she confessed, they read Seibert her rights, then, according to police testimony, officers pressed her to repeat the confession on tape for use at her trial. Seibert was later convicted of second-degree murder and is serving a life sentence.

 

At trial, the lead police officer said his decision not to warn Seibert until after she talked was a technique he learned at a national police training institute.

 

Prosecutors and police naturally push for more power to snag criminals and lock them up. No one wants murderers to go free, but the rules of the justice system are designed to ensure that police and prosecutors use their enormous power fairly. With its 1966 Miranda vs. Arizona decision, the Supreme Court insisted that police warn suspects prior to questioning. The court recognized that suspects facing officers alone in an interrogation room are at the mercy of the state's often unchecked power. Deprived of sleep or food, even beaten, as many have been, suspects can be easily intimidated into copping to crimes they didn't commit. By forcing police to remind suspects that they can keep quiet and by allowing them a lawyer at their side, Miranda evens the scales a bit.

 

Yet pressured by police and prosecutors, the current Supreme Court has sent disturbingly mixed signals in recent years on Miranda. Seibert's case is one of three this term that should prompt the court to forcefully reaffirm that precedent.

 

The California Supreme Court did exactly that last spring in a case where, as in Seibert, police deliberately held off warning the suspect to bully him into confessing. The state's justices unanimously slammed this unconstitutional practice as "unconscionable." The U.S. Supreme Court should follow suit.

 

 

* * * * *

 

 

The following article appeared in The Vancouver Sun (on-line edition) on November 19, 2003:

 

Canada’s courts ‘joke’:  U.S. lawyer

by Larry Pynn

 

The Canadian justice system is a lax joke and a breeding ground for scam artists who are ruthlessly bilking countless thousands of elderly Americans out of billions of dollars, a frustrated assistant U.S. attorney charged Tuesday.

"It's the courts and the way the system works," Ellyn Lindsay told The Vancouver Sun from Los Angeles. "I'm sick of this. They need a kick in the ass is what they need."

 

On Monday, Lindsay successfully prosecuted British Columbian Philip Arcand, 42, for operating a $12.8-million fraud in the U.S. He was sentenced to 10 years in federal prison, and must serve at least 85 per cent of that time before being eligible for parole.

 

From at least 1998 until 2001, Arcand ran Farpoint Services International, a company registered in White Rock that processed credit card transactions for various telemarketing operations, some of which were operating scams. Arcand also hired telemarketing companies to sell his own bogus product, a fraudulent credit card protection program.

 

His wife, Roberta Galway, 35, was earlier sentenced to six months in jail.

 

The couple, separately or together, also face trial next year in Alabama on a 158-count indictment, including bank fraud, money laundering, and telemarketing fraud.

 

Lindsay said Arcand and Galway are just the latest examples of a vast and continuing problem with bogus telemarketing operations (lottery scams included) that proliferate in Canada because the justice system doesn't take them seriously.

 

Scam artists sought by American authorities in Canada are typically released from jail pending lengthy extradition proceedings, during which they continue to perpetrate their crimes, she said, adding justice officials in Canada are not keen on launching their own prosecutions because the courts treat fraud artists leniently.

 

"Canada doesn't care about it," Lindsay said. "They don't prosecute. They don't care about these guys.

 

"Billions of dollars in fraud from Canadian boiler rooms is targeting senior citizens in the U.S. If there is a prosecution in Canada, people get a slap on the wrist. Any sentence they get, they serve a third of it. It's a joke, and the criminals know it's a joke, so they proliferate."

 

Geoffrey Gaul, Crown counsel and spokesman for the attorney general's ministry, could not be reached in Victoria to comment.

 

But Valerie MacLean, general manager of the Better Business Bureau of Mainland B.C., said she fully supports Lindsay's assertions, saying B.C. courts are widely considered to be more lenient than those in the rest of the country, rarely dispensing jail time for commercial crime.

 

‘There has to be a deterrent," MacLean said. "Whatever it takes to change the sentences, to change the whole process, to change the fact these trials are delayed forever."

 

MacLean's files show the BBB received two complaints from U.S. citizens about Farpoint Services International, in 1999 and 2001, which were forwarded to the U.S. Federal Trade Commission. A news release from the commission in October 2002 announced that Arcand and Galway and their five related companies -- Farpoint Services International Ltd., Garrison Corporation Inc., American Card Services S.A., Consolidated Group of Companies LLC, and Hyperion LLC -- would pay $436,000 US to settle commission charges against them.

 

Lindsay emphasized her criticism of the Canadian justice system does not apply to Canadian police officers, singling out Vancouver RCMP for working effectively with the FBI to bring Arcand to justice through a telemarketing fraud task force known as Project Emptor.

 

"They're amazing and wonderful and helpful and they care. But the courts consider this kind of crime to be a big joke and not serious.

 

"That's why we have to do it. There are severe consequences down here for targeting the elderly. We're gonna go up there and get them, even if it takes years to do it."

 

Sergeant Chuck Klaudt of the Vancouver commercial crime section, the RCMP officer in charge of the joint operation, could not be reached to comment Tuesday.

 

Arcand's telemarketers called mostly elderly victims in the U.S. and fraudulently told them that unless they purchased his credit card protection program they could be liable for massive fraudulent charges placed on their credit cards.

 

The victims were also warned by the telemarketers that computer hackers could break into the computer systems of banks and max out their credit cards and bank accounts, and that the victim would be liable for all the fraudulent charges.

 

Said Lindsay: "My victims are elderly. They die and they don't see justice done because the extradition process in B.C. is a joke."

 

Given the difficulty of extradition, she said, U.S. authorities sometimes resort to plea bargains -- the offering of a reduced sentence in exchange for a guilty plea -- to hurry along extradition proceedings. Or they catch the suspects when they visit the U.S. Arcand and Galway lived part of the year in Las Vegas, where they were arrested.

 

Lindsay said that although Arcand committed a huge fraud, the amount taken from individual victims through his credit card protection scam was relatively small -- $300 to $400 US. Other frauds can involve "wiping out the life savings" of elderly victims, "destroying them emotionally and financially," she said.

 

Arcand may also be ordered to pay restitution to his victims. U.S. District Judge Kickran Tevrizian scheduled a hearing for February to discuss that issue.