Posts Tagged ‘murder trial’

The High Price — and Catch-22 — of Parole

Thursday, February 26th, 2015

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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


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.

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Shock at the Pistorius Verdict

Wednesday, September 17th, 2014

Oscar Pistorius appears at pre trial hearing in PretoriaI am frankly shocked at the verdict in the Oscar Pistorius trial. I wasn’t a spectator at the trial and most certainly was not a witness to the crime. But my experience on the bench has trained my brain and my instincts to sort out the evidence from the rhetoric. In this case, the angle of the bullets, combined with the time line of the gunshots, overcomes any inclination to exonerate the defendant of intentional murder. What may have been confusion or passion or rage at shot one, became intentional murder at shots two, three, and four. Even though the Court handed down a guilty verdict to the lesser crime of culpable murder (we call it “manslaughter”) and although that conviction may result in jail time, Pistorius will be now be seen as a co-victim of a crime and a culture.

I understand and accept that we are human beings who cringe at the notion that our heroes may be as flawed or as warped and malicious as any man on the street. Still, this porous moral code leaves us adrift and feeling uneasy. And so it should.