Issue 314
November 26, 2004
The following article appeared on courttv.com on November
23, 2004:
Geragos
must return, hat in hand, to beg for Peterson's life
After a host
of broken promises and, finally, a guilty verdict, how does Mark Geragos return
to the same jurors who convicted Scott Peterson and ask for life?
By Harriet
Ryan
Court TV
Mark Geragos was not in
court last week when jurors found his client, Scott Peterson, guilty of murder,
but their verdict sent him a clear message: We didn't believe you.
The conviction meant the
jurors did not buy the lawyer's arguments, nor the evidence he presented over
the five-month trial. The nefarious brown van? The live birth theory? Peterson as
a grief-stricken husband? All rejected.
Now, in the penalty phase
scheduled to start Monday, the Los Angeles attorney must go back to the same 12
people and beg them to trust him when he says Peterson's life is worth sparing.
Geragos has filed motions asking for a new jury and
a change of venue, and the hearing could be postponed depending on Judge Alfred
Delucchi's rulings Monday.
Asking for mercy from a jury
that rebuffed a defendant's claims of innocence is a challenging, but routine,
task for experienced capital attorneys, yet it may prove more difficult for
Geragos. Although he is a veteran criminal defense lawyer, Peterson's is the
first death penalty defense he has headed, and he went further than most
capital attorneys would in insisting on his client's innocence.
"The evidence is going
to show clearly, beyond any doubt, that not only is Scott Peterson not guilty,
but Scott Peterson is stone-cold innocent," he told jurors during his June
2 opening statement.
Geragos made a host of other
promises that he did not fulfill. His defense case was brief, weak and
disjointed. It included testimony from a questionable medical expert who had
jurors shaking their heads and laughing.
"I don't think they
like him too much right now," said criminal defense attorney Daniel
Horowitz of the jurors. Horowitz has tried eight capital cases and observed
much of the Peterson trial.
"He put on his theory of the case and it was ridiculous
and it was rejected. He made a claim that couldn't be proven and, rather than
be honest, he put on a charlatan so it transformed him from truth-teller, which
he was at the beginning of the trial, to P.T. Barnum," he said.
Regaining
trust
The potential blows to
Geragos' believability are especially worrisome for Peterson's legal team,
because a lawyer's credibility can be a deciding factor during the penalty
phase. The decision between life in prison without parole and death is
subjective and heavily influenced by the trust jurors have in the person
arguing for life.
"They've got to believe
you so they can say, 'If this guy who knows him so well thinks there are
reasons to spare his life, then maybe there are,'" said Charles Gessler,
who has tried 15 capital cases in his 31-year career with the Los Angeles
public defender's office.
Geragos is so tied to
Peterson's claims of innocence that some legal commentators have suggested
jurors will not listen to him in the penalty phase and he should allow another
lawyer to handle that portion of the trial.
While dividing
responsibilities is somewhat common in capital trials, Peterson's case does not
seem a likely candidate. Geragos' co-counsel, Pat Harris, questioned only 20
mostly minor witnesses of the 184 who testified and did not do any part of the
opening statement or closing argument.
A trial is normally divided
only if both attorneys have played significant roles in the defense.
"If [the lawyers] are
not of equal stature, it leaves the jury with the impression that they are
getting the second string and that you don't think this is important,"
said William Linehan, a Hayward, Calif., defense attorney who has tried 20
capital cases.
He split up the guilt and
penalty phases in about four of those cases, but said he now believes it is not
necessary.
"I don't think it has to make a difference. I have
confidence in my ability to dissuade jurors from executing my client, in spite
of having asked them to acquit him," said Linehan, none of whose clients
have received the death penalty.
Of crucial importance, experts say, is Geragos' need to
leave behind his insistence on Peterson's innocence and acknowledge immediately
that the jury has spoken.
"You can't say, 'Hey,
blockheads, you blew it.' That would be fatal to your client," said
Gessler.
Gessler said he usually
begins his opening statement during the penalty phase by placing his hand on
his client's shoulder and telling jurors that while both he and the defendant
were very disappointed in the verdict, they respect the jury system.
"The jurors are usually
sitting there with some trepidation of their own. 'We said no to this guy, so
now what's he going to say?'" Gessler noted. "I let them know that
for me, it's not another day at the office. I said reasonable doubt and I meant
it, but I understand that it's their verdict."
Geragos is permitted to
suggest there are still questions about who committed the crimes. He can also
argue that the jurors should consider such "lingering doubt" when
deciding whether death is appropriate.
However, rearguing the case
can offend jurors who have already spent hours in the jury room debating the
facts to arrive at their verdict.
"You can mention [lingering doubt], but it should come
mostly from the jury itself on its own and not from the lawyer," Gessler
said.
Jokes aside
Delucchi has set aside four
days for testimony from family members and friends of Laci Peterson and the
defendant. The testimony from the slain woman's mother, Sharon Rocha, and other
relatives is expected to be especially heart-wrenching.
Geragos will call a host of
Peterson's own relatives and friends and focus on the fertilizer salesman's
good deeds over his 32 years. He is also likely to paint life in prison without
parole as a very harsh punishment that jurors can feel comfortable handing to
Peterson.
Jurors, experts say, will be
listening not only to what Geragos says, but how he says it.
"He has to assume the
mantle of dead seriousness. The time for flippancy or joking - if there ever
was such a time - is over," Linehan said.
Horowitz said that the quick
wit and charisma that seemed to appeal to jurors early in the case will not
work when talking to them about the death penalty.
"He has to talk to the
jury with humility. He can't be Mark Geragos, the most clever talking head on
TV," he said.
In some ways, Geragos will
be Peterson's strongest character witness. Throughout the trial, jurors saw the
men side by side at the defense table, looking through evidence, passing notes
and occasionally sharing a smile. The six men and six women on the jury know
the two are close.
"I've sat with people
who've done horrific, horrific crimes, and yet, sitting with them month after
month, I can find something in them that I like, that is worth saving. My job
is to introduce that to the jury," Horowitz said.
The key is often whether the
jury thinks the lawyer is being sincere when he says his client does not
deserve death row.
"They have to believe
that you honestly want your client's life to be saved and you are not just
doing this because you are being paid," Linehan said.
Horowitz noted that jurors
who smiled readily at Geragos' jokes early on had stopped laughing entirely by
the end of the trial, but he said he did not think the rapport was broken
beyond repair.
"I wouldn't sell him
short. People are his strength," he said. "He probably has the
ability to charm them right back."
* * * * *
The
following article appeared on TheFreep.com on November 23, 2004:
Detroit
Pistons fans sue Pacers over brawl at The Palace
ASSOCIATED
PRESS
Two fans filed lawsuits Tuesday against
the Indiana Pacers and players Ron Artest, Stephen Jackson and Jermaine O'Neal,
claiming they were injured during the brawl at the end of the Pacers-Pistons
game.
Lawyers for John Ackerman, 67, of St.
Clair, and William Paulson, 26, of Grand Blanc, filed suits in Oakland County
Circuit Court in Pontiac. The suits seek unspecified damages stemming from
Friday's brawl.
Ackerman claims he was hit by O'Neal and
then knocked unconscious by a chair that was thrown by another fan. His suit
also names Palace Sports & Entertainment Inc., which operates the Pistons'
arena.
Paulson, who was attending the game
separately from Ackerman, claims he was punched by Jackson.
Artest, Jackson and O'Neal were
suspended for their roles in a brawl. Artest was banned for the season, Jackson
for 30 games and O'Neal for 25. Commissioner David Stern issued the suspensions
on Sunday.
* * * * *
The
following article appeared on washingtonpost.com on November 24, 2004:
Man
Convicted of 1991 Rape in Va. Park
DNA Match
Found Suspect in Attack on Groveton Teaching Assistant
By Tom Jackman
Washington
Post Staff Writer
Laura Berry
had a phobia about driving, so she walked to work every day. The morning walk
to her job at Groveton Elementary School took her on a wooded path through the
small Groveton Heights Park, just west of Route 1 in southeastern Fairfax
County.
At 7:30 a.m.
on July 23, 1991, a man grabbed Berry from behind and yanked the teaching
assistant over an embankment. After they tumbled into a gully, he pulled her
shirt over her head, then raped and sodomized her. Finally, he took $63 from
her -- which she'd planned to use that day for her first driving lesson -- and
left her lying in the dirt, sobbing.
Prosecutor
Robert F. Horan Jr. called the crime outrageous: "A teaching assistant
attacked on her way to school."
More than 12
years later, the state's DNA databank provided what Berry and police could not:
a suspect. And yesterday, for the second time in a month, a rapist in a
decade-old case was brought to justice in Northern Virginia by the use of DNA.
An inmate in West Virginia was sentenced last week in Prince William County to
two life sentences for raping a chemistry teacher 14 years ago, and a Stafford
man was convicted yesterday in Berry's case by a Fairfax jury, which also
recommended two life terms.
The jurors
who convicted Angel M. Anderson, 54, did not learn that Anderson is awaiting
trial in Stafford County on another set of sexual-assault charges, and they
were not told that the Stafford arrest created the link to the attack in
Groveton 13 years ago.
But the jury
was told that Anderson was convicted of rape once before, in Fairfax in 1979.
He was sentenced to 18 years, and state records show that he was paroled after
serving 10 years. Less than two years later, he attacked Berry.
Fairfax
Commonwealth's Attorney Robert F. Horan Jr., who rarely handles cases other
than murders, prosecuted this one. "It's a terrible case," Horan
said, explaining why he assigned it to himself. "It is outrageous. A
teaching assistant attacked on her way to school. That's why I did it."
Berry, 48,
agreed to have her name published with this article, a rarity for rape victims.
She said she was pleased by the handling of her case, particularly after it
appeared to have gone cold after more than a dozen years. She testified about
her abduction at the beginning of the trial last week, then stayed and watched
the trial to its conclusion yesterday.
Outside the
courtroom, Berry recalled another moment from that July morning that proved
pivotal to her mental well-being. She was standing outside Mount Vernon
Hospital after being examined by doctors and interviewed by police, waiting for
her ride home. Detective Steve Milefsky, then assigned to the sex crimes squad,
waited with her.
"I was
standing there thinking out loud, 'Maybe I shouldn't have been there,' "
Berry said. "And Steve put his hand on my shoulder and said, 'Laura, stop
it. You have every right to be there. It's not your fault.' And it was Steve's
statement that carried me through all these years. It helped me to move forward
and to get into therapy."
Milefsky
deflected any credit for the case. "You feel an obligation to the cases
that are assigned to you," Milefsky said. "You stick with them until
they're brought to fruition. You want to have closure, too."
Berry said
that in the first year after the attack, "I was afraid to walk around my
neighborhood." She couldn't go through Groveton Heights Park for four
years. She recalled the color of her assailant's arms, which was all she saw,
and when she saw similar-looking men, she wondered, "Could it be
him?"
The DNA
databank did not exist when Berry was raped in 1991, and Berry did not see her
assailant's face because he grabbed her from behind and pulled her shirt over
her face. But after Milefsky was assigned to the homicide unit's "cold
case" squad in 2000, he submitted DNA samples taken from Berry to the
databank. In December 2003, there was a hit.
Virginia law
now requires that DNA samples be taken from people who are arrested in
felonies, but that was not true at the time Anderson emerged from prison in
1989. So when Milefsky submitted the sample from Berry's case to the DNA
databank, there was no match.
But in
October of last year, Anderson was arrested by Stafford sheriff's detectives. A
DNA sample was submitted to the databank. In December, it matched Berry's case.
Milefsky took another sample from Anderson in January to obtain another match.
The jury
deliberated for less than three hours before convicting Anderson of rape,
forcible sodomy and robbery.
Anderson's
attorneys attacked the handling of the DNA over the 13 years since the assault
and said an appeal is likely. Attorney Eric Clingan said Horan and Milefsky's
refusal to hand over the police reports and case file "clearly denied the
jury and the defense counsel important information regarding the handling of
the DNA evidence," which had unidentified initials on it indicating it had
been opened or moved since 1991.
Fairfax
Circuit Court Judge Stanley P. Klein will sentence Anderson on Feb. 18. He can
impose the jury's recommendation or reduce it, but he cannot increase it.
* * * * *
The
following article appeared on MediaGuardian.co.uk on November 24, 2004:
Daily
Star accused over footballer rape case
by Chris
Tryhorn
The Daily Star was today accused of
risking prejudicing the course of justice by revealing the identities of two
footballers at the centre of gang rape allegations.
A lawyer for the attorney general told
the high court the newspaper had created a "substantial risk of serious
prejudice" when it named Titus Bramble and Carlton Cole, Premiership
footballers playing for Newcastle United and Charlton Athletic.
Philip Havers, for the attorney general,
said the article marked the first time the men's names had been published since
allegations about the incident first surfaced, giving rise to a three-week
"frenzy" of media coverage.
Until then, he said, newspapers had
heeded "clear and consistent" advice from the attorney general and
Metropolitan Police that publication of names or any likenesses of any person
arrested was liable to prejudice the proceedings at a stage when identification
evidence was an issue.
The alleged victim, who said she had
been very drunk at the time, did not know who the individuals were before
meeting them that evening, although she knew one was "Karl or Carl, or
Carlton".
The attorney general issued contempt of
court proceedings against Express Newspapers, owners of the Star, over an
article published on October 23 last year under the headline "Bramble is
bailed".
The article was illustrated with a
picture of Bramble with his head pixelated to obscure his features.
The Crown Prosecution Service in the end
decided not to charge any of the suspects because they had insufficient
evidence for a prosecution.
"What we submit is that what this
publication did and what's so crucially important about this publication is
that, in place of speculation which the press had hitherto indulged in, this
publication published the actual names of the footballers involved and did so
in a way that was wholly factual and likely to be accepted by the reader as
reliable," Mr Havers said.
He added that it did not matter if the alleged victim had taken
steps to discover the identities of the men or had suspicions about who they
were before the Star's article.
"This publication, by publishing in
a reliable and authoritative way, created a substantial risk of serious
prejudice because it would have told her what hitherto would only have been
speculation or suspicion on her part. It may thus itself have created its own
substantial risk of serious privilege and was in breach of the strict liability
rule."
The victim said she had engaged in
consensual sexual intercourse with one of the men, but there had been
"another act of intercourse" with another of the men against her
will.
Mr Havers suggested the alleged victim would
have had "extremely limited" knowledge about the identities of the
footballers before the article appeared.
"It's fanciful to suppose she may
already have known the identities of the two men," he said. "The
grounds relied upon to support that suggestion are wholly speculative. There's
nothing positive in the evidence to suggest she did know of the names of the
two men, nothing that can be attributed to her directly to that effect."
He said that press reporting before the
Star's article had often been "manifestly unreliable and erroneous",
pointing to particular errors in an article published by the Sun on October 1.
He also said that she would have been
unable to ascertain the identities of the footballers by using internet sites
where the case had excited wide speculation.
He alluded to one site which mentioned
10 different names and whose content was sufficiently tasteless, he said, to
have deterred her from using it.
Andrew Caldecott QC, who is acting for
Express Newspapers, said the attorney general had to prove that there was a
substantial risk of serious prejudice that could be attributed to the Star's
article in particular.
"It's for the attorney general to
prove beyond reasonable doubt, the burden being on him, that it was the
respondent's article which created a substantial risk of serious prejudice.
It's not enough that there's a risk it would create a risk. The article has to
create the risk," he said.
The case, which is likely to last until
tomorrow, is being heard by two judges, Lord Justice Rose and Mr Justice
Pitchford.
* * * * *
The
following article appeared on nytimes.com on November 24, 2004:
Iraq’s
New Court Finds Itself on Trial
by Michael
A. Newton
West Point,
N.Y. - The worst kind of hypocrisy is the sort that pretends to stand on
principle. The latest example is the failure of the United Nations, our
European allies and nongovernmental groups to support Iraqi efforts to bring
Saddam Hussein and his henchmen to justice.
Oppression by the Baathist regime
directly caused the deaths of more than 300,000 Iraqis and the destruction of
around 5,000 villages. That is why creating a system for imposing criminal
punishment in accordance with established international standards was one of
the earliest priorities for the new Iraqi government. Employing the hybrid
model successfully used in Sierra Leone, the Iraqi Special Tribunal was
established in December.
The statute creating the tribunal
incorporates the full range of modern international crimes into the fabric of a
binding domestic law, and it is in compliance with established human rights
norms. For instance, for the first time under Iraqi law, a judge is forbidden
to draw an inference of guilt from the silence of the accused at trial. The
statute also reflects the strong desire of the Iraqi authorities to ensure a
process freed from political constraint, stating that the tribunal "shall
be an independent entity and not associated with any Iraqi government
departments."
Last month I spent a week in
London working with the group of judges and prosecutors who form the core of
the special tribunal. They are a distinguished group of patriots who know more
than any outsider how critical the rule of law will be for the future of their
country. Yes, just like other inexperienced judges on previous tribunals
elsewhere in the developing world, they have much to learn about conducting
complex trials in accordance with the most modern nuances of international law.
But they are dedicated to doing so. As one Iraqi told me, "My job is to
judge, not to murder."
Unfortunately, their pleas for
assistance are going unanswered. For example, some of the most experienced
practitioners from the International Criminal Tribunal for the Former
Yugoslavia had initially agreed to participate in the London sessions. At the
last minute, however, the United Nations secretary general, Kofi Annan, lamely
insisted that these experts were all too busy in The Hague to help the Iraqis,
and he ordered them to stay home.
Similarly, Amnesty International
has issued a press release insisting that the "trial of Saddam Hussein
must draw on international expertise," but has failed to provide any such
help. Human Rights Watch took testimony from Iraqi victims who thought they
were helping develop cases against Iraqis suspected of crimes. But according to
American officials, the organization, without consulting the witnesses, refused
to provide all the statements or to give all the victims' identities to the
special tribunal. Human Rights Watch has even taken issue with the statute's
ban on former Baath Party members sitting in judgment of the accused. Would the
group have wanted Nazis passing judgment at Nuremberg?
Of course, what really has the
armchair lawyers riled up is that Iraqi authorities have decided that those
convicted of the gravest offenses - war crimes, genocide, crimes against
humanity and a small number of egregious domestic offenses - can be sentenced
to death. Just as at Nuremberg, the death penalty is available in Iraq because
no one can figure out what other punishment fits such crimes.
In any case, it seems clear that
the choice of punishments should be reserved for sovereign governments. When
self-appointed arbiters of justice refuse to help, their smug
self-righteousness is clear: "How dare those Iraqis try and build the rule
of law for themselves?"
And this elitist attitude goes beyond
the tribunal. For example, the world saw the grisly remains of Kurdish victims
lifted from mass graves outside Hatra, Iraq, last month. But it went largely
unreported that European countries declined Iraqi requests for forensic
assistance, because they feared that any evidence they recovered would be used
at trial. American and Iraqi officials, knowing that there was plenty of
evidence in the first two mass graves uncovered, told the Europeans that if
they assisted at the other five sites, what they found would be used only to
identify victims, not for prosecutions. Still, Europe refused.
Now the cash-strapped Iraqi
government may have to leave the rest of the bodies at Hatra buried. The price
for the victims' families will be high: young women who cannot document the
deaths of their fathers will not be able to marry in some places; widows may be
unable to remarry.
Trials based on the principles of
justice will be a vital step toward healing Iraqi society and will be the
cornerstone of a peaceful democracy. It's a shame those who profess to hold the
highest ideals won't be a part of it.
Michael A. Newton, a
lieutenant colonel in the Army's Judge Advocate General's Corps, teaches
international law at the United States Military Academy.
* * * * *
The
following article appeared on MediaGuardian.co.uk on November 22, 2004:
Questions
remain, says Bloody Sunday lawyer
Staff and
agencies
The identities of the soldiers who
killed 14 civilians on Bloody Sunday are still unclear, the senior legal
adviser to the Saville inquiry said today as he began his summing up in the
biggest investigation in British legal history.
Despite an inquiry lasting more than
seven years at an estimated ultimate cost of £155m it was not known which
Parachute Regiment soldiers had carried out the majority of the shootings in
Derry in January 1972, the inquiry heard.
Christopher Clarke, counsel to the
Saville inquiry, said in his closing statement: "It has to be said that,
even after many days of evidence, the answer to even the first question - who
shot them? - is not, on the soldiers' evidence, in any way clear."
There were two central questions, he
said, "who shot them?" and "was there any justification for
doing so?"
Mr Clarke said the soldier known to the
inquiry as F appeared to have shot one of the dead, Michael Kelly, while
soldier G had shot two others, Gerard McKinney and Gerard Donaghy.
Another of the deceased, Kevin McElhinney,
was shot by either soldiers K, L or M, he alleged, while two of the wounded,
Damien Donaghy and John Johnston, appeared to have been shot by soldier A or B.
On the question of justification, the
barrister said the tribunal could take one of two views.
He said the judges must conclude either
that the soldiers "came under fire from unexpected quarters and had
swiftly to retaliate", as the former Parachute Regiment members testified;
or that the soldiers had shot civilians without justification "because no
justifiable explanation could be given".
He said the inquiry might take the view
that "uncomfortable facts have been airbrushed out of history and that the
situation the soldiers faced was radically different to that of which the
civilian evidence speaks".
The panel of three judges chaired by
Lord Saville of Newdigate is due to submit its final report based on the
evidence to the government next summer, although some expect this will be
delayed.
On the first day of an expected two-day
final submission, Mr Clarke was critical of the planning by military chiefs on
the days before the civil rights march.
He said the commander of land forces,
General Robert Ford, had left the detailed planning for the arrest operation to
officers lower down the ranks including Brigadier Pat MacLellan and the
commander of the Paras, Colonel Derek Wilford.
Mr Clarke said: "The tribunal may
want to consider whether General Ford should have had himself better informed
as to whether the arrest operation that he wanted was going to work."
Brigadier MacLellan in his evidence to
the inquiry had said he did not know the details of the plan to be used by the
parachute regiment when it went into the Bogside.
Mr Clarke said: "The tribunal will
wish to consider whether there was inadequate planning as a result of which the
operation which was carried out was likely to be unsuccessful and indeed risky.
"If it were so to conclude, it
would mean that the tragedy of Bloody Sunday arose from an operation that was
unlikely to achieve its ends and carried out on the orders of someone who had
no clear idea of what the arrest force planned to do at the time when he
launched it."
Mr Clarke resisted claims by lawyers
acting for the families of victims of the existence of a
"shoot-to-kill" policy in operation on Bloody Sunday.
"Documentation both before and
after 30 January 1972 not only betrayed no hint of such a plan but was inconsistent
with it," he told the tribunal.
"I recognised in opening, expressly
the possibility that a plan would be made in secret and purposely left out of
even secret documentation. But plans cannot be put into effect without
communication in some manner to those who are to implement them."
Mr Clarke has presented his final
submission, consisting of 10 volumes, to the inquiry team. This has been
distributed to legal teams representing the families and the soldiers.
The summation gives the three judges an
overview of the issues on which they have to decide, an overview of significant
evidence and an indication of the range of conclusions the tribunal might
reach.
The final report by Lord Saville and his
fellow judges is expected to be published by the summer of 2005, more than
seven years after Tony Blair announced its setting up.
The tribunal, which has now sat for 433
days, has heard evidence from 921 witnesses, with written statements from a
further 1,555 witnesses. Civilians, soldiers, police officers, journalists,
government officials and paramilitaries have all given evidence.
* * * * *