Archive for the ‘Blog’ Category

Subjects Too Painful to Write About

Thursday, March 5th, 2015

Memorandum

To: Myself
Re: Subjects too painful to write about
Date: Now

I made the decision to write a violent rape scene in Blame because bringing the reality of the street, as it appeared in my courtroom, to my readers is what my books are all about. Rape in all its forms is the single dominant violent crime in this country — and in the world! The numbers of women assaulted by strangers, soldiers, police, boyfriends, relatives, baby-sitters and husbands are staggering. A small fraction is reported and those are usually instances where the ancillary injuries are too severe to ignore. Fewer still are the number of rapes prosecuted.

rape-1I remember the case of an eighteen year old who took the stand in my courtroom hoping to recant her accusation of rape against her stepfather. The defense attorney reached up to place a letter from the girl denying that the crime had occurred. (A physician’s report had documented the searing tears to the girl’s vaginal wall, the bruising of her bladder, and the herpes infection she would have for life as a reminder of the encounter).

I was having difficulty breathing, so great was my growing sense of rage. There was little recourse available to me and I watched the prosecutor shrug his shoulders as he stood to question the girl. Would he compound the assault by his cross-examination? I wasn’t about to wait for that to happen.

“Ms. X,” I said, turning toward her in the witness box, “would you please read your letter aloud so that everyone here in the courtroom will understand your decision to withdraw your complaint against the defendant?” I handed the letter to my bailiff who passed it to Ms. X.

There was silence in the courtroom. We waited as the girl stared at the slightly rumpled paper in her shaking hand.

“Ms. X, can you read?”

“Not so good,” she replied. “Leastwise, not some of these words.”

causes-of-rape-graphIt was high drama as I denied the motion to dismiss the case and ordered the defense attorney to appear and show cause why he should not be held in contempt of court for presenting a clearly fraudulent document.

So, I wrote the rape scene in Blame and, at times, I felt the physical and psychological pain of the victim in the telling. I’d like to avoid these scenes and I consider from time to time switching genres to write about romance or, perhaps, inspirational stories.

This is on my mind because the case on which Blame was loosely based is about to go to trial here in West Palm Beach. It is a case I expected would have been concluded years ago. It is a tragedy in progress, a subject too painful to write about. I cannot write the ending as I did in Blame.

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The High Price — and Catch-22 — of Parole

Thursday, February 26th, 2015

ohio tylerboard2png-adeb668c636551a6 full

Punishment, the first book in the trilogy known as The Justice Series, deals with a man who was found guilty of murdering his wife by using his trained pit bull dog to attack her repeatedly. The trial is loosely based on a real case that took place in my courtroom around twenty years ago. Following the jury’s verdict, I sentenced the defendant, who was in his mid-thirties at the time, to a minimum of fifteen years to life in the Ohio Penitentiary.

As the judge who presided over the case, I listened carefully to all the testimony presented by both the prosecutor and the defense counsel. I considered motions to exclude certain expert witnesses, read portions of the grand jury record of witnesses’ testimony, and studied legal precedent on a number of issues. At the conclusion of the presentation of evidence and closing arguments, I was prepared to instruct the jury on the law they should apply to the facts, as they found them, to determine their judgment in the case.

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As usual, I met with counsel for both sides to discuss certain aspects of the instructions I would give to the jury. I proposed that I would instruct the jury on the elements of a charge of murder and, additionally, that I would give them an instruction of manslaughter, a crime of passion for which the sentence was eight to fifteen years at the time.

The prosecutor agreed to the instruction, but it was vigorously protested by the defense. Their objection, as I described it in Punishment, was that they believed that no jury could find their client guilty of intentional murder and, that being the case, an instruction on manslaughter would allow them an “easy path” to a conviction where a mistaken verdict would be less onerous. Because a judge cannot overrule a defense counsel’s objection to a charge, the only instructions I gave the jury were for the murder charge.

Unlike the verdict in my book (no, not what you assume), the jury in the case in Cleveland found the defendant guilty. The verdict was upheld on appeal and the defendant remains in prison to this day.

Several months ago, I corresponded with the Ohio Parole Board regarding the defendant’s application for parole. I shared with them my view that while the evidence presented could have been, and was construed by the jury, to support a murder conviction, there was ample evidence to support a finding of manslaughter. The Board denied the parole request.

Punishment: A Legal Thriller by Linda RockerI suspect the denial of parole was based on the defendant’s refusal to admit that he was guilty of the crime for which he was imprisoned. It is a scenario repeated daily in prisons across the country. I deplore it for two reasons: First, the insistence on a guilty plea flies in the face of the increasing number of convictions for major crimes that are getting overturned — in some cases the defendant has already served decades of his or her sentence; and second, parole boards may easily overlook the consequences of decisions regarding jury instructions that doom a defendant to a Catch-22: either plead guilty to the charge or remain in prison — pleading to a lesser offense is not an option.

Judges enjoy immense power. It can be gratifying, but it can also be confounding and haunting because some decisions are made by others outside the judge’s control — juries and lawyers, in particular. And it is never the proper role of a judge to substitute her judgment for that of the jury in a criminal trial. (I admit to ordering a new trial in two unrelated civil cases where the jury’s verdict was blatantly against the “manifest weight of the evidence.” In one such case, the jury acquitted the defendant trucker because he testified that he drove President Kennedy’s casket from Air Force One to Bethesda Naval Hospital in D.C.).

All of this discourse brings me back to the reason I began this journey. If I do nothing else, I derive enormous satisfaction from the possibility that my books and stories will cause you to pay greater attention to the character and fitness of the people who don their long robes and make life altering decisions about our neighbors and families.

Fifteen Minutes of Fame That Brought Down a Murder Case: The OJ Trial #4

Saturday, February 14th, 2015

laura hart mckinneyAndy Warhol, the pop artist, is credited with observing that “in the future, everyone will be world-famous for fifteen minutes.” In the case of Laura Hart McKinney, that proved to be true. But, it is also true that the power of media, in this case the television cameras in the courtroom, was the catalyst for both her fame and Mark Fuhrman’s fall from grace as the prosecution’s key witness in the O. J. Simpson trial.

It began innocently with a “pick-up” at a coffee shop on Westwood Boulevard in Los Angeles. Laura Hart McKinney was seated outside when an attractive man in street clothes inquired about her laptop computer. (It was 1985 and laptops were still a curiosity). The conversation was generally about their work — she was working on a screenplay about women cops, he was a detective and they decided to work together. johnny cochran crThere were several more meetings, all of them taped, during which McKinney interviewed Fuhrman about his work for her story, and also about his personal views.

By the time Laura McKinney left the stand at Simpson’s trial, she had testified to meetings with Fuhrman over the course of ten years. This is what she said in response to questioning by defense counsel Johnny Cochran:

Mr. Cochran: Now, during the time that you talked with Mr. Fuhrman during this ten-year period of time, did he ever use a racial epithet which I will call the “N” word?
Ms. McKinney: Yes, he did.
Mr. Cochran: And in the course of your preparation of your testimony here today can you tell the jury how many times you counted that he used that word?
Ms. McKinney: Approximately 42.
Mr. Cochran: 42 times?
Ms. McKinney: Yes.

Knowing that Fuhrman had previously testified under cross-examination by F. Lee Bailey that he hadn’t used the “N” word “in ten years,” the state attempted to paint McKinney as an opportunist looking to destroy Fuhrman for the sake of selling her screenplay. It was a wasted effort. Simpson’s dream team had done their work with precision and if ever there was a set up of an all-too-willing witness, it was with the detective. That is because Fuhrman, above all else, wanted his fifteen minutes of fame! Mark Fuhrman w David Mounger his lawyer 0995When he returned to the stand a month later, Fuhrman invoked his Fifth Amendment right against self-incrimination and, a year later, pleaded “no contest” to perjury charges.

Has the fascination with the Simpson-Goldman murders finally run its course? Are we, at last, weary of following the trail of a pathetic old man, locked in a cell from which he professes, ad nauseum, his innocence of everything imaginable?

I, for one, am not. Hannah Arendt, a great journalist and philosopher, coined the phrase “the banality of evil” in her report on the war crime trial of Adolph Eichmann. It is O. J.’s banality that continues to confound and intrigue me.

If you are interested, there is a treasure trove of books on the subject, as well as copies of the trial transcript from which I have quoted in this post.

The Credibility of a Murder Witness: The OJ Trial #3

Wednesday, February 11th, 2015

MARK FUHRMAN ON TV

I doubt that there is anyone, other than his children, who truly believes that O. J. Simpson was not guilty of murdering his wife. But the lessons we can draw from the Simpson trial seem increasingly important as we face the ongoing tension between the black and white communities in America regarding our policing and justice systems. It is a case of mythology trumping reality every time. And there is perhaps no better figure to illustrate this point than Mark Fuhrman and his outsized role in the Simpson debacle.

Most of us accept the presence of prejudice in our communities. Whether we are calling each other derogatory nicknames in grade school, making assumptions about values, cleanliness, criminality or reliability (to name only a few), speculating about the tendencies of other groups or selectively employing, marrying, befriending or excluding and marginalizing individuals — in every instance we are doing so based on the myths we rely on to secure our identities. We maintain a delicate balance in the melting pot that is America, until we enter the uncertain terrain of the justice system and its adjunct, law enforcement.

Simpson compoundMark Fuhrman, for those of you who don’t remember, was the LAPD detective who found a blood-stained left-hand glove at the scene of the murders of Nicole Simpson and Ron Goldman on the night of June 12, 1994.  Later that night Fuhrman visited the home of O. J. Simpson and noticed what looked like blood on the door handle of the white Bronco parked outside the gate. simpson bloody glovesWhen no one responded to the doorbell, Fuhrman climbed over the wall surrounding the compound and, in surveying the grounds, found a matching blood-stained right-hand glove.

Mark Fuhrman placed himself center stage in the Simpson investigation; in doing so, he became an almost mythic figure, which was precisely how he viewed himself and wished to be seen by others. He “grabbed” center stage in press conferences, did a parody of “just the facts, ma’am” from early TV shows, and annoyed his colleagues with whom he was not a popular figure, his grandstanding providing fuel for envy and resentment.

When Fuhrman took the stand at the trial, he was confident, suave and as well-prepared a witness as any prosecutor could wish for. Defense counsel F. Lee Bailey, who would later suffer great damage to his reputation, was still a force to be reckoned with and his lengthy cross examination of Fuhrman not only suggested the possibility that Fuhrman had a reputation for racist and sexist attitudes, but challenged him regarding his assumption that he could use unlawful means to investigate crimes because of his special status as a detective. As good as Bailey was at cross, no one could have anticipated what this televised courtroom event would produce. What happened next, as Ron Goldman’s father described it, completely upended the course of the trial. “This is now the Fuhrman trial…the defense team has got the trial [completely] . . . off base.”Mark Fuhrman on witness stand

More to come . . .

The Credibility of a Murder Charge: The OJ Trial #2

Saturday, January 31st, 2015

Simpson Jury sketch by Bill RoblesIt’s not just witnesses who must be credible with stories that mesh with known facts and the testimony of other witnesses. The charge(s) brought against a defendant in a murder trial must also be credible, bearing in mind the burden of proof that the prosecution must meet.

Put simply, it is nearly impossible to meet that very high burden to the satisfaction of the jury if the very first exhibit in the case is called into question. The indictment is read into the record at the outset of the trial, the intention being:  a) to inform the jury of the exact nature of the charges; and b) to remind the jury of exactly what the State must prove to them. In the Simpson case, the indictment from the grand jury charged the former football star with first degree murder in the case of Nicole Brown Simpson and second degree murder in the case of Ron Goldman.

875BUNDYDoubt crept into the case when the charge was read. Words like “intentional” may have slid by regarding Nicole’s death, but Goldman’s? I doubt that many of the jurors had extensive knowledge of the crime before they were selected, but let’s assume that most of them were familiar enough to know that no one — not Nicole, not OJ, not anyone identified (to date) in this case knew that Ron Goldman would show up with Nicole’s sunglasses which he had retrieved from the restaurant where he worked.

But the indictment, the written charges against OJ, made little distinction between the victims and their relationship with the alleged killer In fact, the evidence presented as the state wound its way with difficulty through an avalanche of exhibits and testimony paid scant attention to Ron Goldman, possibly hoping that the jury would not focus on the difficulty of murdering two people on the edge of a busy street at 9:30 in the evening — especially when the killer was most likely not expecting to encounter a pair!

I’ll talk some more about the evidence, but you may rest assured that this was not a stupid jury. Did Mark Fuhrman’s virulent racism affect the jurors? Of course it did. How could it not when he played such a pivotal role in the state’s case? But if you doubt that Fuhrman’s testimony was part of the larger context that was not credible to jurors who were asked to use their common sense in judging the evidence as well as the witnesses, then get a copy of Simpson’s book (all proceeds go to the Goldman family), If I Did It: Confessions of the Killer.

simpson-courtroom08_marilyn church

The O. J. Simpson Trial and the Burden of Proof

Friday, January 23rd, 2015

oj-simpsonThis last week has been an odd sort of stroll down memory lane. The CNN special on the O. J. Simpson trial, “O J Trial: Drama of  the Century,” still touches a nerve for me, as it does for most of us who watched that spellbinding first “Law and Order” made for television courtroom drama.

oj-nicole-brown-simpsonThe cast of characters was straight out of a low-cost “B”-movie — an aging celebrity in an abusive relationship with his beautiful, much younger former wife; Ronald_goldmana young man dazzled by an older woman; a crime so bloody that no one dared publish the full portfolio of pictures; and a los-angeles-police-detective-mark-fuhrmanpolice detective so racist that he took the Fifth Amendment rather than admit that he had “planted” evidence at the crime scene.

I’ve enjoyed speaking and writing about the Simpson case for many audiences, in part because I enjoy the “Aha” moment when they realize that the verdict of acquittal was pre-ordained before the ink was dry on the indictment. If you are fans of my thrillers, you’ll not be surprised to learn that the outcome of a jury trial is predictable if you’re in possession of a few fundamental aspects of criminal law and procedure.

For instance, there is the matter of the burden of proof in a murder case. “Beyond a reasonable doubt” is not a casual concept. As a judge, I was required by state law to read the definition of that phrase to the jury as it had been written by the state legislature. I mean literally word-for-word. States differ on the exact language, and I should add that in California, where the Simpson case was tried, the standard was “beyond a shadow of a doubt.” Think about that, please, because there are not many things in the world that can be proved to that extreme standard other than with eyewitness testimony.

Prosecutors Marcia Clark (R) and Christopher DardeI’ll write more about the trial, but suffice it to say that the charge should not have alleged only murder, but conspiracy to commit murder. Had the L. A. prosecutors held their fire and charged the crime that would conform to the evidence, Mr. Simpson would have been where he belongs a very long time ago.

And yet, it’s deeply disturbing to hear people today criticize the jury based on the mistaken assumption that it was race, and only race, that led them to vote for acquittal. Rather, it was the prosecution’s failure to present a coherent, credible story of the crime that conformed to the evidence.

I’ll give you some specifics next week when we talk about the timeline in the case. Even the man famous for racing through airports couldn’t have done it alone.

I am not “Charlie” — but no one should die for what they say

Saturday, January 10th, 2015

he drew first

The laws that protect freedom of speech are only as imperfect as the people who abuse them.

I am not “Charlie.” I deplore hate speech of all kinds in all forms imaginable, but I despise violence even more. And I abhor stupidity. The banality of evil speaks only of the evildoer, but it is rank stupidity that revels in the act of murder— the ultimate evil.

Shall we make a cartoon of the Pope reviling a child? Shall we draw a caricature of a Jew’s nose that makes it appear like a venomous snake? Can we make pictures of monks in Thailand in the midst of self-immolation while onlookers roast their marshmallows? How sick can we be? Trust me: there is no limit. Nor should there be. Let the Jesus covered in feces hang in Brooklyn, let obscenity flourish where it will. No matter how repugnant, no one should die for what they say or even how they say it. But, we need not celebrate the perversity of what was said, to whom, about whom and for what purpose in order to preserve our precious freedom.

please enjoy hayek

The Chinese Wall in American Courts

Friday, December 26th, 2014

great-wall of chinax30Corporations often employ the tactic of setting up an invisible wall between departments, functions, accounting and other areas where they have a conflict of interest. This also happens in law firms where the interests of one attorney’s client is directly connected (or opposed) to the interests of another client. How do you build a “Chinese Wall?” It’s simple, really. You pretend it’s there.

This is what we do in American courtrooms on a daily basis. When I was first appointed to a judge’s seat, I was shocked to discover the constant presence and pressure from the assistant prosecutors assigned to my court. We had, at the time, 34 judges, each with a full time, active docket of many hundreds of pending cases. The criminal cases consumed about 50% of the list, but they ate up more than 90% of our time. Each case on my docket was assigned to an assistant prosecutor whose “second home” was my antechamber (the public area where my bailiff sat, my scheduler hung around, and dozens of criminal lawyers chatted with one another and met privately with the prosecutor).

Here’s the problem. Access. The criminal defense attorneys made their pitch to the assistant prosecutor on their client’s case, often with a plea bargain as their aim. But after the dialogue was done, the defense lawyer was, as well. But the prosecutor remained, chatting up the judge, looking over the bailiff’s shoulder, sometimes denigrating the process or the people. Nothing illegal occurred, no laws were broken. But the access to the judge and his staff provided a special opportunity. And judges, elected in my state, were loathe to offend a prosecutor.

Honoré_Daumier_-_Two_Lawyers_Conversing_x10In my first year on the bench, I decided to woo the prosecutors by organizing a golf outing. The night before the scheduled event, I mentioned it in a conversation with my father, a retired judge. He was aghast.

“You what? Have you lost you mind?”

It didn’t take long to see his point. I had fallen into the same trap that had snared so many of my colleagues — thinking that the special relationship with prosecutors was an acceptable outcome of proximity, when in fact it was the opposite. I feigned illness on the day of the outing, much to the dismay of my “room prosecutors” who had looked forward to more proximity and access to me.

Once I realized that this cozy relationship easily fostered an inherent bias in favor of the attorneys for the state (that is who prosecutors are, after all), I implemented some changes in the operation of my court area. I remained as polite and friendly to the prosecutors as I had been, but the personal discussions, the off-handed comments about cases or other judges came to an abrupt halt. If a prosecutor wanted my ear, he had to come into chambers and make certain that, if it involved a pending case, the defense lawyer was invited.

I became one of the most unpopular judges on the court — but only with the assistant prosecutors. Did I mind? Sure I did — everyone likes to be liked. Did I change the way I ran my courtroom?

Not a chance!

Could you be Casey Portman?

Monday, December 22nd, 2014

Oliver asking for more Cruikshank 1846Here’s a question for you, dear reader:  Do you picture the character(s) depicted in a novel, characters for whom there is no physical description to confirm your mind’s eye invention? When Charles Dickens wrote, his folios were regularly accompanied by pen and ink drawings of his characters and the settings in which they appeared. The same is true of much of our early literature in America. Even Thoreau felt it necessary to include some illustrations of the abundance of nature’s beauty at Walden.

Walden_Thoreau cover first editionThe corollary to my question to you is, naturally, whether I see my characters as I write them.  Indeed, I do. Some of the characters come to me crystal clear and complete. Pleasure Jones, the prostitute and entrepreneur in Blame is one of those people. I not only see her, I know her. I know her voice, her temperament, her style and even her favorite colors.

Other characters are less intuitive for me and I’m often surprised by what emerges on the page. Casey Portman, an important player in my books, has intrigued me, and baffled me, on more than one occasion because, as a young woman, her life is often in flux, her emotions are frequently close to the surface and she is changing, growing into the woman she will become over time. I see her clearly, but not consistently with the same physical features.

Could you be CaseySo it was a bit of a shock when I caught sight of a woman at a restaurant in West Palm Beach and exclaimed to my companion, “Look over there — at the bar — that’s Casey!”

I took a few pictures, although she was facing away from us, and thought briefly about going up to her, risking a tap on her shoulder followed quickly by an explanation of my interest. It didn’t take much to dissuade me. Awkward, I thought, extremely awkward and intrusive. 

But, I’ve come across the picture a few times recently and I can’t help but wonder about the young woman and whether one day she’ll walk into Liberty Book Store on Clematis Street and pick up a copy of Punishment or Blame. Will she recognize herself?

“Every court case is like a small opera.” Jeff McGinnis interview in Toledo Free Press

Wednesday, December 17th, 2014

jeff mcginnis on twitterSometimes an interviewer prompts thoughts you knew you had but had never quite expressed in the same way before. Jeff McGinnis, pop culture reporter for the Toledo Free Press, recently interviewed me about Blame and about why people enjoy legal thrillers:

They understand the stakes. For so many people, it is life or death. It is loss of career or opportunity. And too much of it, in my view, remains a sort of profound mystery that is highlighted only when we see incidents such as what has occurred in Ferguson, and most recently on Staten Island.

 

I think the fascination is, it is always drama. Every court case, particularly criminal cases, is like a small opera, playing out on a stage where the parts are kind of preordained, and emotions run deep and high at the same time. And the characters are usually true to form. But as we all — at least at my age — have learned from “Perry Mason,” there are often surprises.

McGinnis wondered where I got the ideas for my novels, something I haven’t mentioned on this blog before:

I always take a real case as the centerpiece that all the other action kind of revolves and evolves around. So, in Punishment, it was a pit bull case that actually transpired in my courtroom. And in Blame, it is a case that is actually occurring here in West Palm Beach as we speak.

 

The doctor who is the inspiration for the case in Blame lives near me and has become a good friend. I never imagined three and a half years later, his case would not have come to trial. But that is, in fact, true. So in some ways, I’ve cheated myself, because there are more twists and turns to come. But I’ve promised him he’ll at least get part of a chapter in the forthcoming final book, Innocence.

You can read the full interview here: “Former Ohio Judge Pens Legal Thrillers.”

And for those of you unfamiliar with the “surprise endings” on Perry Mason, this will give you a taste.

Please be reassured: my endings are much more plausible.