Politics

Trial by Fury

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Christmas came early and often last year for Nancy Grace. In mid-November, a jury in Redwood City, California, found Scott Peterson guilty of the murder of his wife, Laci, and their unborn son, Conner; then, on December 13, that same jury recommended that Peterson be sentenced to death. Grace, the feisty blonde Court TV anchor who had been covering the Peterson case from virtually the moment Laci Peterson was reported missing nearly two years earlier, could hardly hide her satisfaction with the decisions. Broadcasting from just outside the courthouse on the day of the verdict, she brandished a fresh copy of The San Francisco Examiner with the giant headline "SCOTT GUILTY!" and proclaimed in a hushed, melodramatic tone, "Today, for this moment, there is justice for Laci and Conner." After the jury recommended death for Peterson--a decision that was greeted with cheers and high-fives by the throngs of people who had gathered on the courthouse plaza--Grace seemed to join in the revelry, telling her viewers, "A jury has spoken, and if you listen to those jurors the way I did today, you know that justice has been done."

For Grace, the denouement of the Peterson case was about more than justice; it was personal. From her anchor's perch on the Court TV show "Closing Arguments" and her guest's chair on CNN's "Larry King Live"--where, thanks to the Peterson soap opera, she has become a fixture--Grace vehemently and repeatedly pointed an accusatory finger at Peterson. She called him a "liar" and a "sociopath" and a man who "clearly thinks the rules do not apply to him." A former prosecutor herself, Grace seemed to have as much riding on his guilt as the district attorney actually handling the case; she had practically staked her professional reputation on it. "In my mind, he seems guilty beyond a reasonable doubt," she told King's viewers in April 2003--eight days after Peterson was charged and more than a year before his trial would begin.

This rush to judgment made Grace a lightning rod for criticism and frequently left her on the defensive. "If someone from Mars came down and watched `Larry King Live' and saw Nancy Grace on it, they [would] wonder why we have things called trials because everyone is so clearly guilty," griped one of King's other legal analysts. And it wasn't just Grace's fellow talking heads taking her to task. On one King show, Scott Peterson's father, Lee, even called in to excoriate her. "[Y]ou've crucified my son on national media," he lectured Grace. "[Y]ou sit there as a judge and jury … convicting him on the national media, and you should be absolutely ashamed of yourself."

So, when a jury confirmed what Grace had been saying all along, she was in the mood to do a little gloating. She pointedly reminded her fellow legal analysts of their predictions--of a not-guilty verdict, of a mistrial, of a life sentence. "How are those sour grapes tonight? How are they tasting?" she goaded one of them on her Court TV show. And then she rubbed it in a little more. Was she surprised by the verdict? King asked her. "Not surprised at all," she replied in a boastful tone. "In fact, as I waited, number-one in line, to get into the courtroom for the verdict, Larry, everyone was discussing what the verdict would be. I had no doubt in my mind."

The Peterson trial transformed Nancy Grace from a low-wattage talking head into a bona fide media star--so much so that, while the Peterson legal soap opera is over, Grace is certainly not. She continues with her daily Court TV show, "Closing Arguments," which has now moved on to the latest trial of the century, the Michael Jackson child molestation case. This summer, Hyperion will publish Objection!, Grace's book on the criminal justice system. And, last month, Grace debuted an eponymous prime-time legal affairs show on CNN Headline News. This new show, some industry watchers speculate, is merely a prelude to an even bigger assignment: replacing Larry King when he decides to hang up his suspenders. CNN has tried to tamp down this sort of talk, but the network is obviously high on Grace. "Nancy is a unique personality," CNN's president, Jim Walton, said in announcing her new show. "One of the things that we all look for in television is somebody to break through."

Indeed, Grace has done more than just break through. She has become the leading practitioner of the relatively new and increasingly popular cable news format: the legal shout-fest. It was only ten years ago that the O.J. Simpson case demonstrated to cable programmers that there was a TV audience for celebrity trials and, in the process, gave birth to a new class of legal pundits, such as Greta Van Susteren and Jeffrey Toobin. But, while there was much hand-wringing over this development at the time, TV legal analysis circa 1995 looks, in retrospect, as staid and dignified as a Supreme Court deliberation when compared with today's legal punditry. Back then, legal analysts' primary function was to explain to viewers what was happening in the courtroom. "We never wanted our people to take sides in a trial," says Steve Brill, who, in 1991, started Court TV, the network that set the tone for the rest of cable's legal programming. "We didn't want to make a trial a `Crossfire'-like event."

But that's exactly what has happened, as first Court TV (which Brill sold to Time Warner in 1997) and then the cable news channels adopted the political shouting-head format--made famous by CNN's "Crossfire" and later by Fox News shows like "The O'Reilly Factor" and "Hannity and Colmes"--for their legal affairs shows. Today, viewers can watch legal pundits yell at one another as they debate guilt and innocence, life and death, on any number of programs--from CNN's "Larry King Live" to Fox News' "On the Record with Greta Van Susteren" to MSNBC's "The Abrams Report." And, most prominently, they can tune into Court TV, where Grace and a retinue of other shouting heads bloviate all day long. "Court TV has taken what's happened in the political arena with Fox News and extended that to the legal arena," says Mark Geragos, Scott Peterson's defense attorney, who himself often appears on the legal shout-fests. "It's the Fox-ification of the legal arena. And it's a significant problem."

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The problem, according to the standard critique of legal shouting-head shows, is one felt most acutely in the courtroom--where intense media speculation can make it difficult for a defendant to enjoy the presumption of innocence and receive a fair trial. But the criminal justice system, with its strict rules and myriad procedural safeguards, has actually done a good job of insulating celebrity trials from the noxious effects of shouting-head shows. Instead, the more serious threat posed by these shows exists outside the cloistered world of the courtroom, in the harder-to-govern court of public opinion. There, where the only procedural safeguards are those that the press chooses to place on itself, defendants seldom enjoy any real presumption of innocence; and their trials--on Court TV, CNN, Fox News, and MSNBC--are anything but fair. Indeed, thanks to Grace and her fellow shouting heads, the court of public opinion is becoming an increasingly hostile venue--for celebrity and noncelebrity defendants alike.

FOR SUCH A firebrand, Nancy Grace cuts a surprisingly diminutive figure. She is a petite woman with frosted blonde bangs that point down toward brown eyes and a pert nose. In moments of repose, her face has a tranquil, almost delicate quality. But, when she gets agitated, as she often does when debating defense lawyers on television, her eyes widen and her nostrils flare, so that she takes on the look of a heavily made-up cartoon bull. When I visited Grace at Court TV's headquarters in New York not long ago, she was wearing her agitated face. She had just moved into a corner office--no doubt part of Court TV's efforts to keep her from completely decamping to CNN--and was upset that one of her lucky charms, an American flag she was given on September 11, hadn't made the move with her. Fortunately, the rest of her office's accoutrements had been successfully transferred--including plaques from various civic organizations, the Diagnostic and Statistical Manual of Mental Disorders III, Dynamics of Basketball (which helped her prepare for the Kobe Bryant rape trial), and, most importantly, a large, framed photograph of a young man with longish brown hair.

The picture is of Keith Griffin, to whom Grace was engaged 25 years ago. The two met as students at Valdosta State University in Georgia, where he was on a baseball scholarship and she was majoring in English. After graduation, they planned to marry. But, in the summer of 1980, Griffin was murdered during a mugging that netted his assailant all of $30. His death became the seminal event of Grace's life. She subsequently learned that the man who murdered Griffin had been on parole, and she could not fathom how the criminal justice system had let him out on the streets. "There was nobody there for victims," she told me, recalling how bewildered and alone she felt as she sat in the courtroom watching the murder trial. "Victims didn't have a voice in our judicial system." Grace, who has remained single to this day, decided to be someone who would give them a voice. She abandoned her ambition of becoming an English teacher and set her sights on a legal career. After attending law school at Mercer University in her hometown of Macon, Georgia, she moved to Atlanta and, in 1987, joined the Fulton County District Attorney's office.

Grace proved to be a passionate advocate for the state and formed unusually close relationships with the people she called "my victims," or, if her victims were no longer alive, with their families. "She's my best friend," the mother of one murder victim once said of Grace. Her intense emotional investment certainly led to good results in the courtroom: She compiled a perfect record in the nearly 100 violent felonies she brought to trial. The Atlanta press dubbed her "Amazin' Grace."

The Atlanta defense bar, however, was not so enamored. Defense lawyers accused her of intimidating witnesses and withholding evidence. They also lambasted her for her behavior in the courtroom, which blended the sacred (the Atlanta defense lawyer Jack Martin says Grace would ostentatiously thumb through a Bible while the defense was cross-examining one of her witnesses) with the profane (another Atlanta attorney, Dennis Scheib, complains that she would wear low-cut blouses and provocatively lean over into the jury box). "You needed three lawyers to try a case with Nancy Grace--two to watch her and one to argue the case," says Scheib, who represented a man Grace successfully prosecuted for murder in 1996. Grace vehemently denies all of these charges, dismissing such complaints as "sour grapes" from the very people she repeatedly bested in the courtroom. But, in at least two instances, the Georgia Supreme Court also took issue with her prosecutorial tactics. In 1994, the Court overturned a drug-dealing conviction she had won on the grounds that she improperly inflamed the jury by mentioning in her closing arguments an unrelated triple homicide and a serial rape case. And, in 1997, the Court reversed a murder and arson conviction Grace had secured, chastising her for "an extensive pattern of inappropriate and, in some cases, illegal conduct," including her decision to allow a CNN camera crew to film her inside the defendant's house, to which she had gained entry through a search warrant.

Still, Grace's colorful career as a prosecutor made an impression on Brill. His network had covered several of Grace's trials, and, after he watched her debate Johnnie Cochran at a Court TV-sponsored symposium in 1996, he persuaded her to leave the courtroom and move to New York to do a show with the former O.J. Simpson attorney. "Cochran & Grace" turned out to be a flop and was canceled after only a few months. But Grace stayed at Court TV, and, after Brill sold the network, she found her niche. Under Brill, Court TV took pains to cover a wide range of trials so as to portray the full spectrum of the judicial system--one day focusing on the case of serial killer Jeffrey Dahmer, another day highlighting the antitrust suit against the Ivy League for coordinating financial aid decisions. But the network's new management, in a bid for higher ratings, has chosen to offer its viewers a steady diet of cases revolving around murder and mayhem--just the type of cases that lend themselves to Grace's black-and-white worldview. What's more, Court TV's new bosses have freed up Grace to reveal more of her own story to viewers. Where Brill had not allowed her to talk on the air about her fianc?'s murder--"You wouldn't expect Walter Cronkite to be covering a hurricane and mention that his cousin had been killed in one," explains Brill--Grace now routinely mentions her own status as a crime victim. "She's a victims' rights activist in the position of an anchor," says Court TV's current CEO, Henry Schleiff, "and I have no problem with that."

Neither, it seems, does her audience. Viewers of Grace's "Closing Arguments" have increased 50 percent over the past year, and Larry King's ratings tend to go up when Grace is one of his guests. Victims' rights groups, meanwhile, invite Grace to speak at their gatherings and hail her as an invaluable ally. "She has a lot of courage, she speaks out, she tells the truth, and the way that she handles those defense attorneys, she catches them at their games," says Harriet Salarno, the founder of Crime Victims United of California. But, for all her adoring fans, Grace's act rubs some people the wrong way--and not only the defense attorneys she battles on television. Grace says she gets more hate mail than any other anchor at Court TV. And even the normally avuncular King often appears rankled by his regular guest and possible successor. During his show's coverage of the Peterson case, King would often interrupt Grace to remind her that the man she was excoriating had not yet been proved guilty of anything. "Nancy," he complained on one show, "the system is presumption of innocence. You are not presuming innocence." As King once told The New York Observer, Grace believes that, "if you're accused, you did it." Says one person close to King: "He despises her. She's foisted upon him." (King's press representative at CNN did not return calls for this story.)

On the air, Grace bristles when others accuse her of believing that arrest is tantamount to guilt. While she's always polite to King--for whom she claims great affection--she has barked at her fellow panelists, "This is not a time for personal attacks. We're talking about this trial." When I pressed Grace on her seemingly unswerving faith in the guilt of the accused in the trials she covers, she answered me with the same defensive hostility she uses with her on-air debate partners. "I sense you believe that I think if anybody's arrested or suspected they should go to jail for life. I don't think that. What accomplishment is it to send the wrong person to the penitentiary if the right person walks free?" She explained that, when she goes on television and pronounces someone guilty before that person has actually been convicted, she's only stating the obvious. "You don't think Peterson did it? Hell yeah, he did it," she said. "What do you want me to do, pretend on TV that he didn't do it? … The cases I'm sure about I feel very confident about."

Alas, sometimes her confidence is misplaced. In 2001, Grace was outspoken in her suspicion that California Representative Gary Condit played a role in the disappearance and murder of Chandra Levy. But Condit was never charged, and, although the Levy case remains unsolved, Washington, D.C., police long ago ruled out Condit as a suspect. The next summer, when the kidnapping of twelve-year-old Utah girl Elizabeth Smart was the case du jour, Grace pounced on one of the police's initial suspects, the Smart family's handyman, Richard Ricci. Grace all but proclaimed Ricci's guilt in the kidnapping after Salt Lake City police arrested him for stealing jewelry from the Smart house. Ricci was eventually exonerated of kidnapping Smart--when she was found in March 2003 and a couple was charged in her abduction--but only after he had died in prison of a brain hemorrhage. King later asked Grace if she felt guilty about "all the whacks we took at Mr. Ricci" on his show. "No, I don't," she replied. "I'm not going on a guilt trip, and I'm not letting you take the police with me on a guilt trip."

On the day I visited Grace, the conviction of another person whose guilt she had loudly proclaimed, Andrea Yates, had come into question. Just that morning, a Texas appeals court reversed Yates's conviction of capital murder for drowning three of her children in a bathtub, and Grace was getting ready to devote most of that afternoon's "Closing Arguments" to this development. That Yates had killed her children was not in dispute. But, during her 2002 trial, her attorneys argued that she was insane when she drowned them. The state contended that Yates knew right from wrong and therefore was not legally insane--and Grace, in her commentary on the case, had vociferously seconded that view. The reversal was ordered on the grounds that an expert witness for the prosecution had falsely testified that he had consulted on an episode of the TV show "Law & Order" that depicted a mother who drowned her children in a bathtub and was found not guilty by reason of insanity. The witness claimed, and the prosecutor later reiterated in his closing argument, that the episode was broadcast shortly before Yates, who regularly watched "Law & Order," drowned her own children. As it turned out, no such episode of "Law & Order" exists.

Grace was not happy about the reversal. "Defense attorneys are dancing up and down the halls of the courthouse today," she told her viewers. She believed the false testimony was insufficient grounds for such a decision. But, on her show that afternoon, Grace was in the minority. Not only did the chorus of defense attorneys she had on as her regular sparring partners agree with the court's decision, even her usual allies--another former prosecutor and Court TV anchor named Lisa Bloom and a clinical social worker named Lauren Howard--thought the court was right to reverse Yates's conviction. "Is there anyone to take the other position?" Grace beseeched her producer during a commercial break. "I can't take on eight people and be the moderator." The producer quickly found another shouting head to argue Grace's side, but, by the end of the show, Grace herself no longer seemed so sure that the reversal was wrong. "I'm still on the fence on this one," she said almost apologetically.

After the show, Grace told me that she would read the trial transcript that night and let her viewers know where she stood. But Grace never again returned to the topic of Yates on her show. And, when I talked to her a few weeks later, after she said she had finally read the case materials, she reverted to her original position. "I know the reversal may be a popular opinion, and, not knowing the truth, I was ready to abandon my original view and support the reversal, as you saw on the air. But lady justice is blind."

To some, the Yates reversal was a defining moment--an instance where a fictional TV show that claims to be "ripped from the headlines" made headlines of its own by changing the outcome of a real-life case. But, for the most part, that sort of media interference with an actual trial is rare, thanks to the procedural safeguards courts have at their disposal. If a case has received an undue amount of publicity in one geographic area, for instance, its venue can be changed. And, before a trial begins, potential jurors are always screened through a process known as voir dire, during which they can be eliminated from the jury pool for any number of reasons: One of the most common and almost always automatic disqualifiers is excessive prior knowledge of the case in question. Then, once a jury is seated, a judge can sequester it and order it not to follow any news coverage about that case; if a juror breaks that rule, he or she can be removed from the panel. "The traditional procedural filters," says Ronald Goldfarb, a Washington lawyer and the author of two books about television and the courts, "have worked in the past, and they work today at getting people a fair trial."

But, outside the judicial system, in the court of public opinion--where the logic of television, as opposed to the logic of the law, reigns--fair trials can be all but impossible. Although legal shout-fests are, by definition, debate programs on which both sides are always represented, the side arguing guilt enjoys an inherent advantage. "The logic of television is a logic of emotion," says Richard Sherwin, a professor at New York Law School and the author of When Law Goes Pop: The Vanishing Line between Law and Popular Culture. "Any abstract idea or principle, like the presumption of innocence, is at a real disadvantage in a medium that's hot, that feeds off the emotion of the anchor-person's persona." So, when Nancy Grace invokes her own status as a crime victim while arguing the guilt of that episode's celebrity defendant, the inevitable "high-profile defense attorney" she's debating is rendered almost powerless. Unless that lawyer was once jailed for a crime he didn't commit, what personal experience can he invoke to match hers?

The end result of such an imbalance is a public that is increasingly pro-prosecution and anti-defense. (It is notable that the heroic lawyers of popular culture were once Atticus Finch and Perry Mason, who defended the rights of the unjustly accused, while today they are attorneys like "Law & Order"'s Jack McCoy, who goes after the always-guilty bad guys.) And, as those attitudes take root, broad support for fundamental tenets of our legal system--such as the presumption of innocence--are gradually eroded so that, in the minds of many, arrest eventually becomes tantamount to guilt. The legal shout-fests, says Sherwin, "create a habit of mind that almost seems to generate instant justice. That's what TV shows are all about: You get instant emotional response, instant clarity, instant judgment. That's inconsistent with the frame of mind of deliberation that's necessary for real justice."

Nancy Grace is untroubled by these sorts of concerns. As she sees it, if she enjoys an inherent advantage on television, where emotion carries the day, then that only serves to counter the advantage defendants enjoy in the courtroom. "Victims are unheard," she said in her office, as she gazed into a compact mirror and powdered her nose, getting ready to go on the air. "Defendants are heard, I pay for them to be heard. My parents living on a retirement pension after forty-five years on the railroad, they're paying for violent offenders to have lawyers for free, investigators for free, appeals for free. That's fine, I'm all for it. I want it that way. They are heard. They're more than heard." Besides, she maintained, this culture of instant justice and celebrity trials is hardly a recent development. "Think back to the Salem witch trials," she said. "Trials have always been a source of controversy. … Trials will always be a spectator sport."

The crux of the matter, Grace contended, striking a rare note of agreement with many of her critics, is that the spectator-sport component be kept outside the actual courtroom. Getting up from her chair and slipping on a green blazer, she began making her way toward the studio. "It's the duty of the judge and the lawyers to make sure that does not penetrate to the jury," she said. "Who cares what everybody else thinks?"

Jason Zengerle is a senior editor at The New Republic

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