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OBJECTION!

HYPERION

Chapter One

THE FIRST THING WE DO, LET'S KILL ALL THE LAWYERS. -William Shakespeare

"I WAS JUST DOING MY JOB." THAT'S THE TIRED excuse offered up by every defense attorney whenever they're asked how they do what they do-how they pull the wool over jurors' eyes to make sure the repeat offender they're defending walks free. I'll never know how they can look in the mirror when their client goes out and commits yet another crime, causing more suffering to innocent victims. I've heard, "I'm just doing my job-it's in the Constitution," too many times to count. Just doing their jobs. They make it sound like they're making doughnuts, drawing the yellow line down the street with a spray gun, or manning a toll booth on the freeway, nothing personal, just doing their jobs. In response, I agree with Dickens: "If that's the law, then the law is an ass."

That same tired excuse has been used to explain away wrongdoing throughout history. Everyone from the repo-guy to the utility worker who cuts off electricity to the needy to the parking-lot attendant who won't refund your quarters 'after you lose them in a broken meter to banks who foreclose on Christmas ... they all work the same excuse. They're all just doing their jobs. When it comes to defense attorneys singing the same chorus, I don't buy it. Justice is not "just a job." The duty of a jury is to render a true verdict, a verdict that speaks the truth. How is that attainable when the "job" of defense attorneys is to use every means possible to get their clients acquitted-regardless of the truth?

The 2002 murder trial of David Westerfield, found guilty of kidnapping and murdering his seven-year-old neighbor, Danielle van Dam, is one of the most horrifying examples of the true business of being a defense attorney. The minute her disappearance was made public, there was an intense, massive, and frantic search involving hundreds of volunteers, all desperately working around the clock to find any trace of this beautiful girl. They combed the hillsides, the brush, the canyons, and the creeks near the van Dams' San Diego home. Danielle's parents, Damon and Brenda van Dam, were completely distraught.

Brenda appeared on television over and over, begging for her daughter's return. Her face was swollen from crying, her eyes were raw and red. While this was going on, Westerfield's defense lawyer, Steven Feldman, was trying his best to bargain with prosecutors-to cut a plea deal. Feldman knew Westerfield had only one bargaining chip, the location of Danielle's body. In exchange for life behind bars as opposed to death by lethal injection as dictated by California law, Westerfield would give up the location of the little girl's remains.

Knowing full well his client was a child killer, Feldman went into open court to launch a defense that consisted of dragging the seven-year-old victim's parents through the mud, ruining their reputations within the community, and revealing to the jury and the world that the couple had once been swingers. The defense boldly claimed the van Dams had unwittingly introduced a sexual predator into their own home. Knowing it wasn't true, Feldman argued someone else had killed Danielle-some predator linked to her parents. Nothing could be further from the truth. The predator was David Westerfield.

Feldman also chose to twist science itself to prove a series of lies to the jury. He produced a forensic entomologist to tell the jury that the larvae (maggots) on this beautiful child's body were of such an age as to preclude Westerfield from suspicion. He reasoned that the larvae were hatched on the body at a time when Westerfield was already under tight surveillance by police, and therefore he could not possibly be the killer who disposed of the child's body.

The argument was incredibly scientific and innovative-but hardly original. Turns out Feldman had used the exact same defense and the exact same "expert" in another murder trial and snagged an acquittal because of it. The second time around, it wasn't creative, innovative, or clever, just tired and rehearsed. Most important, the defense didn't fit the facts of the case or the truth.

I am sick at heart that an officer of the court concocted that defense while knowing the whole time his own client knew where Danielle was hidden. Feldman is a veteran trial lawyer and under the law is entitled to put on the best case he can on behalf of his client. Still, it's so disheartening that juries are hoodwinked every day by defense lawyers just "doing their jobs." Our adversarial system allows it-in fact, encourages it. They get paid tons of money to do it. Successful defense attorneys are idolized, treated like rock stars.

And hey, they're just doing their jobs.

"THE DARK SIDE"

Lewis R. Slaton was the elected district attorney of Fulton County in inner-city Atlanta, where I tried cases for ten years. He was like a grandfather to me, and when he announced he was retiring after thirty-seven years in office, I was shocked. I went to his office and begged him to serve another term. I said the public-and, most important, the city's crime victims-needed him. But he was well into his seventies and wanted to spend his remaining years with his wife and say good-bye to the courthouse. What could I say? I walked from his office with my head reeling, not knowing what I would do. I knew that the newly elected district attorney would likely fire all the top litigators left over from Slaton's administration, as is the custom, and I would be left with the alternative every veteran prosecutor faces at some point: being out of a job and considering the "dark side"-defense work.

I hadn't gone to law school to do slip-and-falls, write wills, or do real estate closings. After my fiance's murder, I abandoned my plan to teach college literature and entered law school specifically to help other crime victims-to try to do right. All I knew, all I wanted, and all I loved, was criminal prosecution and victims' rights. In court, I was finally home.

When Slaton's announcement was made public, I discovered a myriad of job possibilities to consider-all for a lot of money to boot. Unsolicited offers from criminal-defense firms started pouring in. The salaries thrown my way were more than I had ever dreamed of. If I took a defense job, I could say good-bye to my second (and third) jobs, exchange my car with the smoking engine for one that actually ran every day, and stop shopping exclusively at Marshalls and Kmart. But from the get-go, it was wrong. All wrong.

I accepted that as soon as the newly elected district attorney fired me, I'd rather teach law school than be a defense lawyer. I sent out my resume to local colleges and universities and hoped for the best. Then, out of the blue, came Court TV, which gave me a platform to speak out on behalf of victims' rights. After an entire career as a public servant, a trial lawyer, I packed up and headed to New York.

There was no way I could ever stand in front of a jury and use the knowledge and talents God gave me to "just do my job." No way. I knew that if I ever did, I'd look in the mirror every morning and see Keith's blue eyes looking back at me.

DEFENDING THE INDEFENSIBLE

One night in July 2002, I did on-air battle on Larry King Live with John Pozza, the articulate and engaging defense attorney who got Alejandro Avila, the accused killer of five-year-old Samantha Runnion, off the hook on child-molestation charges at Avila's first jury trial in 2001. From my perspective, that one court case could have saved Samantha's life.

The Orange County, California, girl was abducted in broad daylight on July 15, 2002, as she played with her little friend in front of her house on a quiet residential street. Her grandmother was just steps away. The man who took her approached her by asking for help finding a lost puppy. Samantha's lifeless, nude body was found the following day, disposed of like trash alongside a rural highway and posed in a position suggesting sexual assault. Police suspected it was the work of a serial rapist who would strike again.

Based in part on tips from the public and a physical description given by Samantha's five-year-old playmate, twenty-seven-year-old Avila, a production line supervisor at a medical-supply plant, was arrested on July 19 and charged with kidnap, murder, and sex crimes. Orange County Sheriff Mike Carona indicated forensic evidence, DNA, proved that Samantha was sexually molested before her death. The death penalty can be sought in that jurisdiction if murder occurs during the commission of another felony such as rape or kidnapping. In this case, both occurred. If convicted, Avila could face death by lethal injection.

At his court appearance, Avila, dressed in an orange jumpsuit over a white T-shirt and sporting a goatee, stood demurely beside his court-appointed lawyer, paid for by us, the taxpayers. He gave only monosyllabic responses to the court's questions and was careful not to reveal any more than he had to in open court. He denied any involvement in Samantha's kidnapping. His mother, Adelina Avila, "alibied" him, saying he was at a local mall when Samantha went missing, although Avila's cell-phone records apparently indicate otherwise.

Samantha's horrific death could have been avoided. She could have lived and been spared the pain of kidnap, sex assault, and murder by asphyxiation. If she had lived, right now she'd be in grammar school like her other little friends. That dream died when John Pozza, Avila's defense attorney at his first trial, waged war against the two nine-year-old girls his client was accused of molesting.

I was sick when I learned Avila had been charged with the molestations of the first two victims. During that trial, Pozza argued the girls had been coached into making their claims of abuse, and, with a straight face, he claimed police had somehow planted pornography on Avila's computer. These claims hadn't a shred of truth, but the defense lawyer argued them anyway. In January 2001, Avila was acquitted on all counts, rode down in the elevator just like the jury did, and walked from the courthouse a free man.

"Quite frankly, I was surprised," Pozza later said of the acquittal he himself had engineered. "A lot of the evidence that the prosecution or the police had gathered would give one the impression that there was evidence of guilt there, and certainly it would be our job as his defense team to look very closely at that evidence," he said. Pozza reported he was "shocked" when he learned his former client was charged with molesting and murdering five-year-old Samantha. Shortly after Avila's arrest, he told CNN, "It has thrown my entire world off course." I can't imagine why. Criminal-defense lawyers and prosecutors alike know full well that molesters, especially, will strike again. They can't help themselves. They may not get caught, but they will strike again. So why was he surprised?

He was likely concerned, however, that the public had found out that his mission in court-to attack the truth and hide evidence from the jury-had had disastrous results and that people would begin to question his role, not just his client's. The word was out. The world had actually learned that defense attorneys obscure the truth from the jury and that this time, as a result, a little girl had endured a brutal sex attack before being murdered. Pozza has stated that he was rethinking his career since Samantha's death, but to one little girl's loved ones that epiphany came too late.

Disagree with me if you want, but that's how I see it. But for the fact that Pozza argued that cops planted porn on Avila's computer, that two unsuspecting little girls had fabricated a story of sex abuse-while Pozza knew full well that Avila flunked his polygraph-Avila would have been behind bars that sunny afternoon when Samantha's grandmother let her go outside and play. The afternoon Samantha thought she was helping a man find his puppy. The afternoon she was assaulted and murdered. Pozza can't hide behind his "duty" as a defense attorney. He can't wash his hands of Samantha's death.

Here's what he said the night Larry King asked him about his role in Avila's first trial:

KING: Did you believe your client didn't do it at the time? POZZA: You know-at the time, Larry, I cannot say whether or not I believed his guilt or innocence. And really, I am not the finder of facts. So I try to remove myself from that and, basically, present the best defense I can for my client. That's what I do for every client.

I was shocked to hear a defense attorney admit he tries to remove himself from the actual truth of his client's charges, especially when child victims are involved. I have no doubt in my mind his brand of practice is in part responsible for Samantha's death. Samantha's mother rightly widens the circle of blame in her daughter's death to include a jury who refused to believe two little girls, choosing instead to accept that the girls would lie and cops would plant pornography on Avila's computer.

A few nights earlier, Samantha's room, Erin Runnion, told Larry, "I blame every juror who let him go. Every juror who sat on that trial and believed this man over those little girls. I will never understand. And that is why he was out. And that is why his sickness was allowed to do this."

That night, the Larry King Live staff had been very concerned for Runnion and worried about whether she could hold up for an entire hour's interview. I was sitting in the darkened control room with the CNN crew as backup in case Erin Runnion broke down and couldn't go on. I listened to her and my heart broke. I was overwhelmed with sorrow for this grieving mother. She was so brave. The next morning, that one single and very powerful quote regarding the jury's part in Samantha's death was picked up by hundreds of news outlets covering the story and instantly transmitted around the world.

As far as I'm concerned, the pedophile who killed Samantha is not the only one who's sick. When Pozza and I sparred on Larry King Live, producers kept telling me, in my earpiece, to go easy on the defense lawyer, but I couldn't. I was so distraught at what he had done. It turned into a knock-down, drag-out fight on air, with Larry breaking us up over and over. Another guest on the panel, defense-attorney-to-the-infamous Mark Geragos, also joined in the fray, taking Pozza's side. I cried the whole way home, torn up by the heartbreak that had shattered the Runnions' lives.

When I thought of what Samantha's mother had said about the little girl's having a huge poster from the Disney movie Hercules over her bed, I broke down once again. When Mrs. Runnion tried to warn her daughter about "bad people" whom she should be careful of, Samantha's response was so incredibly innocent. She said she'd "be like Hercules, Mom, I'll just run."

Samantha wasn't fast enough to outrun Avila, who had allegedly been trolling the neighborhood for little girls to molest. The justice system wasn't clever enough for the likes of his first trial lawyer, who, in spite of the truth, managed to get his client acquitted. Samantha is dead, and he wonders why?

Here's why: Because defense attorneys truly believe it's all a big game. A game they can win. Who can outsmart whom, who bests whom in court, who is clever enough to trick a jury into hating cops or disbelieving children who take the stand and swear to tell the truth. If I had to wake up every morning knowing my job was to get repeat offenders off the hook to roam the streets yet again, I swear I couldn't practice law at all. But it's all okay in their minds. They adhere to the rules of evidence and to their unique take on ethics. They are simply doing their jobs-according to them anyway. Not according to me.

The game Avila and his new defense attorney, public defender Denise Gragg, are playing with the system continues today. As of this writing, Avila's trial has been postponed numerous times. Delay is a defense lawyer's best friend for a multitude of reasons: lost witnesses, fading memories, overcrowded jails and courtrooms. Any number of things can happen the longer a jury is prevented from hearing the case. The underlying reason the defense so often tries to delay a trial is simple: Every day of delay is another day the defendant is not guilty under the law. It's another day of innocence!

(Continues...)

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Excerpted from OBJECTION! by NANCY GRACE DIANE CLEHANE Copyright © 2005 by Nancy Grace and Diane Clehane.
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