| | | FARCE OF FELONIES | | |
I remember the first time I had sex—I kept the receipt.
—Groucho Marx
Once upon a time, in a faraway land called Hollywood, there lived a young princess named Heidi Fleiss. She and a number of other princesses went to visit kings and princes in their castles. For their charm and skillful dancing, they were showered with riches, adoration, and travel to exotic, faraway lands.
Until they were arrested.
Fleiss made her court appearance almost exactly one year before O. J. Simpson and foreshadowed the coming media spectacle. Flanked by her renowned Los Angeles attorneys Tony Brooklier and Don Marks, she dodged a fusillade of camera flashes on her way to court hearings. Sunglasses donned for her moment of celebrity, she would smile broadly and toss her hair as she entered the courthouse for hearings. She was arraigned on five counts of attempted pandering and one count of possession of a controlled substance: cocaine.
But the princess grew tired of the questions and court proceedings. She became surly and would snarl at reporters. It wasn’t fun anymore. After all, she catered to sheiks and A-list actors. And while she waited those endless months before trial, she would periodically test positive for drugs. Normally, this would have landed her squarely in jail. But such was the skill of her attorneys, they managed to land her in a Pasadena rehab center instead.
This was a far fall for Fleiss, who had purchased a million-dollar home in Bel Air only a couple of years after hanging out her own shingle, subsequent to leaving the employment of another procurer of sexual dalliance, Madam Alex.
Fleiss’s success came at a particularly lascivious time in Hollywood history. (Not that there is any other time in Hollywood.) This was pre-Internet and DVD, so box office grosses went through the multiplex roof as Tom Cruise defined American machismo with Top Gun and Days of Thunder, while Richard Gere and Julia Roberts glamorized prostitution in Pretty Woman. Studios and stars were shoveling money and cocaine, just looking for a testosterone sandbox.
Fleiss saw the business opportunity and took it. She catered not only to the movie establishment, but also to their coterie of financial backers. Los Angeles has always been a playground for inherited and international wealth. The moneyed trust funders, kings of Wall Street, European royalty, and Asian businessmen all sought their name on a blockbuster. They wanted their legacy to be popular entertainment instead of junk bonds, family money, or leather upholstery. And when the money came to play in movies, it also came to play in the boudoir.
For centuries, geishas, call girls, and escort services have all recognized that the companionship sought by paying customers is not strictly relegated to sex and kink. Some sell a deeper emotional connection by training their charges in the art of conversation, the nuances of a look and touch to tell the customer they care. Some sell an iconic image of a tall blonde or a sophisticated brunette to hang on an arm at an event. Some just want the forbidden fruit of what they can’t get at home: fetish, bondage, and youth.
Historians have records of prostitution all the way back to Mesopotamia in 1800 BC, and the Bible implies the frequency of prostitution in ancient Israel, even though it’s forbidden by Jewish law.
The Greeks and Romans were much more open about their prostitution. Hiring a male or female prostitute was legal, common, and didn’t incur moral judgment or legal consequence for the purveyor of such services. However, prostitutes in both Greece and Rome risked losing the legal protections of citizenship if they fell into this profession.
Japan had widespread male and female prostitution all throughout the Edo period, from the 1600s to the mid-1800s. The precursors to the geisha were the oiran, who were high-ranking courtesans only available to very wealthy or noble Japanese men. Like the geisha, they were well trained in many art forms while also offering sexual services. Around the beginning of the 1800s, the oiran were starting to be seen as excessive and gaudy, and were eventually replaced by the geisha. While some geisha chose to have sex with clients, many acted strictly as entertainers. Prostitution was legal in Japan until the early 1900s.
Europe in the Middle Ages also had widespread prostitution, creating a heady mixture of religion, sex, shame, and stimulation. While the Catholic Church considered prostitution sinful, they never made a strong effort to eliminate it because they thought it a “lesser sin” than rape, sodomy, and masturbation. This mixed message manifested in both a geographic and psychological split personality. Many cities and hamlets in the Middle Ages forbade prostitution within the city walls, but participated actively outside their civic boundaries. Other cities set up specific streets or areas that were essentially red-light districts where prostitution was legal. Those who indulged in prostitution could purge their sin later with religious penance, allowing for both indulgence and consequence, creating the tremendous ambivalence about sex that is still prevalent in the church. European attitudes became more condemnatory toward the devil’s temptations after outbreaks of syphilis and gonorrhea started sweeping regions, with many towns shutting down their brothels as houses of Satan.
For the European nobility, courtesans were common. This profession was similar to the geishas in that they were often well educated, wealthy, and usually upper-class women who provided a variety of services and entertainment. Most courtesans viewed it as a political position, so to speak, and used their status and skills to try to rise in social standing.
Much like Japan, prostitution slowed down in most countries around World War II. The United States actually banned it around 1910, as the National Woman’s Christian Temperance Union advanced a number of morality laws. Prostitution remained illegal in the United States after that, tolerated as black-market sex in some communities depending on their political and religious temperament. In the 1980s, because of the AIDS scare, there was a renewed focus on harshening prostitution laws.
Generally, prostitution has been accepted through most of our civilized and uncivilized history and it was common for married people to openly sleep with prostitutes. Although historically condemned by religious leaders, prostitution only became morally unacceptable starting around 1900, particularly as modern Christianity started gaining a foothold.
With the illegality of the profession, men were rarely prosecuted for sleeping with prostitutes—even when arrested for it, a lot of times the police didn’t bother showing up in court. Most of this is because of significant gender disparity in the criminal justice system, but law enforcement also found it easier to drive down the street and round up a bunch of sexual street vendors than to set up an elaborate female cop “sting” to catch johns.
While geishas and courtesans provided entertainment and eroticism, and other prostitutes served fetishism and taboo, Fleiss sold a party to her customers. And she sold parties with Playboy Playmates and Penthouse Pets. The daughter of a prominent Westside pediatrician in Los Angeles, she grew up in the pot-fueled, baby-oiled perpetual parties that accompanied beach life in the 1970s. She met girls that were climbing the Hollywood ladder—sleeping with producers, directors, and actors to get that one chance at their dream of fame. She met others that were just living the beautiful life and having fun. Why not get paid?
And she had buyers: financiers, businessmen, producers, owners of sports franchises, and foreign dignitaries. She became a Westside courtesan service for those who sought the suntanned surf-and-star promise of “California girls.”
The problem with Fleiss was not that she was Hollywood’s madam. It was that she flagrantly flaunted it. Discreet illegality is tolerated in small doses, but advertised transgressions create the kind of embarrassment that brings retribution.
The problem for the Los Angeles District Attorney’s office was how to prosecute Fleiss without her clients—her very powerful and established clients who often made campaign contributions. Fleiss held this leverage in the long-rumored “little black book” with the names of customers: sheiks, studio heads, politicians, and a proud Charlie Sheen. So Fleiss was charged alone—no clients were named in the indictment.
I met her for the first time after a pretrial hearing and was immediately struck by her arrogance, aloofness, and adolescent attitude. She was depressed and used anger to relieve her sadness and confusion. She was not what you would call a cooperative defendant. She would roll her eyes in court, was constantly in violation of her bail terms by testing positive for drugs, and was so outraged at the conditions of her rehab assignment that she threatened to go back to jail rather than continue her rehabilitation. With all of her savvy, cynicism, and worldliness, she was just a lost little girl in the criminal justice system.
When my mother graduated from law school in 1955 and applied for jobs at various law firms, all she was asked in her interviews was, “How many words can you type a minute?” Having worked during the day for the better part of four years to put herself through law school at night, the thought of using her law degree as a secretary did not appeal to her. So she started her own practice, representing underrepresented women in family law matters such as divorces and child custody hearings. She was keenly aware of the gender bias during her career as a lawyer and a judge. Growing up, I heard many stories about the “good ol’ boys” club my mother constantly faced in the ranks of lawyers and the judiciary. When she was appointed to the bench by first-term California governor Jerry Brown in 1977, the conservative faction in the state called her one of the governor’s “Three B appointees: the blacks, the browns, and the broads.”
So when Marks and Brooklier told me that Fleiss’s girls had been threatened with serious jail time unless they testified against her, and that none of Fleiss’s male clients would be prosecuted for partaking in these same consensual but illegal services, the stench of hypocrisy bothered me. I agreed to work on the case.
Fleiss’s trial was scheduled to start in the midst of the Simpson jury selection. Although I was spending time on the Simpson case, I checked with that defense team, and since my colleague Dimitrius was in court every day for Simpson’s jury selection, I was able to bounce back and forth between the two courtrooms, which happened to be almost next to each other on the ninth floor of the downtown Criminal Courts Building.
The first order of business was to help prepare Fleiss as a witness. Even though Marks and Brooklier never anticipated that she would testify in trial, defendants are always witnesses in the case, and their conduct at counsel table is as clear as if they had taken the stand.
Jurors always look at a defendant’s demeanor as a measure of their attitude. And the attitude they see in court is how they see the character of the defendant. It is simply easier to believe that they could have committed a violent crime if they look hostile and aggressive. In a trial, the jury is hearing about the alleged conduct and motive of the defendant from the witness stand. They then look at the defendant (especially in unguarded moments on breaks) to nonverbally confirm or contradict what they have been hearing. In the back of their minds, they constantly ask themselves, “Do they look like the kind of person that would do these things?” They subliminally measure how well they can relate to the life and choices of the defendant. Although jurors are judging the overall impression of the defendant, that impression is composed of a number of minute paralinguistic cues such as body type, clothing fit and fabric, eye contact, posture, grooming, tattoos and piercings, body angle, movement, breathing, weight, height, features, and gestures.
Demeanor is one of what I call the “hidden drivers” of jury decisions: factors outside evidence and testimony that drive a juror toward a guilty or not guilty verdict in a criminal case, and liability and damages in a civil case. Although many judges and attorneys may dismiss this kind of character evaluation as irrelevant, it stems from a juror’s simple human desire to understand the defendant’s motivation. In fact, jurors are also instructed by the judge that they should pay attention to the witness’s demeanor to judge his or her credibility.
So I visited Fleiss at rehab on a shady, eucalyptus-lined street in Pasadena. This was before Dr. Drew and Celebrity Rehab. I looked around as I was led into her room. The carpet was worn, the furniture was old, and you could see the sheets of plywood under the thin mattresses on the bunk beds. I waited a few minutes and Fleiss shuffled into the room, wearing green scrubs. She had on no makeup and her hair was unruly. She was a long way from her million-dollar Bel Air abode. But here we were. Just this slender, disheveled twenty-eight-year-old woman and me, talking.
I preferred it this way. Because there are no masks, no pretense. And it is much easier to talk to clients when they are vulnerable, because they listen.
She complained bitterly about her treatment at the center. How she had to share rooms and shower in front of other women. How the women at the center were abusive to her. And how she was punished by being made to carry jars of urine or mud around the yard. She said she was about to ditch the center. I explained she would be arrested and put back in jail if she left court-ordered rehab. She said she would prefer that to her current conditions.
I listened sympathetically and told her I understood how hard it must be for her. But I emphasized that she had to stay at the center. I told her that it makes a world of difference to a jury whether they see a defendant arrive in a car, ride in the elevator, and eat in the cafeteria rather than emerge from a jail holding area. Judges are careful not to let jurors see a handcuffed or orange-jump-suited defendant. But the jurors give a greater presumption of innocence to defendants who are walking among them than those who wear chrome bracelets and disappear into the condemning catacombs of a holding cell.
Most defendants want to defend. They want to be heard. Fleiss was no exception. She had a big personality and a lot of scorn. I had seen her in action in court, slumping back in her chair, rolling her eyes, and scoffing at the prosecutor’s claims. But the bigger the defendant’s personality, the bigger a target they are for the jury. I spoke to Fleiss about how to make herself small. I told her that I wanted her to disappear from the courtroom. This surprised her. I explained that jurors hunt the biggest prey in the courtroom, and when she flopped about in exasperation, shook her head, and sighed, she became the largest beast on the savannah. I explained that she should remain solemn and still in court, paying careful attention while leaning forward at counsel table. She could take notes and confer quietly with her attorneys, but she must imagine she was moving through molasses. This was meant to slow her general energy and to communicate the image of what jurors expected her to be: a contrite and flawed victim of police overzealousness. Jurors expected a defendant in her position to be humble. If she didn’t look humble, it would be easy for them to believe she was flouting the law. And they would punish her.
If this sounds like manipulation, it is. In an advocacy forum—really in any communication situation—we are all constantly manipulating our image through appearance, words, and deeds. It is called “impression management,” and in a courtroom, it can be the difference between a guilty verdict and an acquittal.
Don’t get me wrong. Just throwing a sweater or eyeglasses on a contract killer will not automatically make them warm and fuzzy. Jurors have pretty good mendacity meters, and they know when they are being sold. But bringing out the positive side of a defendant’s or a witness’s personality is important, to keep the jury from being drawn into the prosecutor’s negative characterization.
As the trial approached, I spoke to Marks and Brooklier about the case. Both had an extraordinary amount of trial experience and had been through the media firestorm before. They had represented a number of notorious figures including organized crime figures, “Super Freak” singer Rick James, and accused Beverly Hills madam and Fleiss mentor, Elizabeth Adams, also known as Madam Alex. Marks was a native of New York before moving to California, serving briefly as a deputy attorney general for the state before starting his own criminal defense firm. He brought a gravitas and measured credibility to the courtroom. Juries just believed him when he spoke. Brooklier was crafty, had a big personality, a big smile, and jurors just liked him. You could easily mistake him for a Brooklyn mook but he was actually born in Lynwood, on the outskirts of Compton and Watts, and was raised in Anaheim near the “happiest place on earth.” But Marks and Brooklier both had the best attribute of any criminal defense lawyer, the respect of the district attorney’s office.
While most think that zealous eloquence in trial is the best quality in a criminal defense lawyer, the truth is that most cases never see a jury; they strike a plea deal. Ninety-five percent of actual criminal defense work and skill is looking at the file and sitting at the negotiating table with the assistant district attorney. So a good working relationship is critical to obtaining the best possible outcome for your client. Jury verdicts are the most visible part of the criminal justice system, but deal making is the real engine.
I spoke to Marks and Brooklier about Fleiss’s case and what they thought were our evidence strengths and weaknesses as well as what jurors would find compelling and concerning. I then put together a profile of jurors who would be most receptive to the prosecution’s story and to ours.
I wanted to make sure that we stayed away from socially conservative jurors who had puritanical views about sex. Those with rigid moral righteousness would obviously be more likely to convict. I also wanted to avoid some strongly liberal jurors who would think that Fleiss was exploiting her “working girls.” Those who were strongly reliant on police, and women who had been cheated on, were also candidates for my strike list. I also wanted to avoid jurors who would be put off by Fleiss’s overall attitude or threatened by some of the beautiful call girls who would be testifying. And obviously, we wanted to avoid anyone who had followed the case and had already formed a negative opinion of Fleiss and her courtroom antics.
On the positive side, I wanted jurors who thought that prostitution was a victimless crime and had a negative experience with the police. I wanted socially liberal jurors who were comfortable with themselves and their relationships and would not feel threatened by the existence of Fleiss’s services or her escorts. I wanted women who would see the unfairness of the law that prosecuted a woman for having sex (even though Fleiss was not the prostitute) but let walk free the man who paid to have sex with her. But most importantly, I wanted jurors with a sense of humor.
Under the law, the police cannot induce a suspect into committing a crime they would not already have committed. That is called entrapment. The problem for us was the LAPD had Fleiss on tape boasting about the size and quality of her escort service. But it was the lengths to which the police would go to catch Fleiss that were both laughable and the basis of our entrapment defense.
We finished picking the jury, and I was generally pleased with the composition: a mixed panel with slightly more women than men and with different sensibilities and outlooks. There was one woman, Sheila M., a Pac Bell line tech, who had copious laugh lines and a “no crap” attitude, who I thought could be very good for us.
Deputy District Attorney Alan Carter, a cooperative and corpulent man who was affable with Marks and Brooklier, started laying out a perfunctory and somewhat lackluster case against Fleiss. Maybe it was because the district attorney’s office felt they had such a strong case because they had all of the “transactions” on tape. But I also wondered whether they were on strict orders not to pursue the case too aggressively for fear of uncovering a powerful political figure in Fleiss’s client list.
The prosecution presented their case through the LAPD investigation. The LAPD decided to set up an undercover investigation into Fleiss’s services. They had a task force of twenty officers assigned to the investigation. That’s right. Twenty officers to set up a sting for a woman who was pretty out in the open about her business. Their “cover” was to play Asian businessmen who wanted to purchase call girl services while they were in town on business. They secretly taped a meeting where Fleiss is sitting in a restaurant in the Beverly Hills Hotel with LAPD detective Sammy Lee, discussing in an oblique manner the various services her girls provided. Of course Fleiss was too studied to discuss the specifics of what the women would do, but boastful enough to claim that she was the best madam in Los Angeles. This obviously was very bad evidence for the defense.
But Marks and Brooklier were very careful in their cross-examinations to point out how the undercover officers were always the ones leading the conversation and asking for the services. In fact, after this initial meeting, Fleiss never followed up with the detective. Lee was so eager to make this operation work that he kept calling Fleiss until she finally agreed to send one of her girls to meet him. This was important: to establish that the LAPD had induced Fleiss to offer the girls in this situation, even though she had bragged generally about her extraordinary skill as the purveyor of feminine flesh. It was a narrow distinction, but sometimes it’s all you have when your facts are thin.
Fleiss agreed that one of her girls would be provided to an “Asian businessman” in a suite at the Beverly Hills Hotel. A hidden camera was set up in the room in order to record the transaction, while other officers would watch in a room next door via a live feed. A tall, beautiful brunette arrived and was let into the room.
In order to establish the crime of prostitution, you have to engage in three actions: 1) you have to talk about sex for money; 2) you have to exchange money; and 3) you have to engage in what is called “furtherance,” which is legalese for the woman’s stripping or the unzipping of a fly.
A carefully orchestrated signal was arranged for the undercover officer in the room with the girl. Once she started taking her clothes off and had completed the three requisite steps, he would get an “emergency business phone call” and would dismiss the girl so he wouldn’t have to actually go through with the act.
It was all going according to the LAPD plan. On tape, you could see the “Asian businessman” and the call girl talking about sex for money. Then the undercover officer carefully and slowly counted out fifteen one-hundred-dollar bills for the camera. Then this lovely woman started to take off her clothes. But, before the cue could be given for the officers next door to ring their partner, a smoke alarm sounded shrilly on the recording.
In trial, you could see the jurors try to stifle their laughter. But suddenly, they could not contain it. They laughed out loud at the absurdity. While not a word was spoken in evidence to explain the smoke alarm incident, Brooklier asked the officer who was testifying how many officers were assigned to this undercover operation. It was clear that most of the task force was there, crowded into a Beverly Hills hotel room, smoking, and watching Fleiss’s girl strip. They had set off the smoke alarm.
This was the exact effect I had hoped for. In a single moment in the courtroom, jurors captured an image quite outside the evidence that characterized the preposterousness of the trial: a cadre of officers watching a striptease for their own enjoyment while gathering evidence to prosecute the unwitting women of this folly.
This was just the first setup, however. They wanted more counts against Fleiss in order to increase their leverage. So they set up an even more elaborate guise.
Fleiss was again approached. Under the auspices of a party at the Beverly Hills Hotel, Fleiss would provide three women for the Asian businessmen’s “entertainment.”
On the designated day, a hidden camera was again put into the hotel suite to capture the evidence. The three lovely ladies arrived, charming the eagerly assembled men in a practiced manner. In the room, the businessmen spoke among each other in Japanese, with one minor inconsistency. None of the undercover officers actually spoke Japanese. So they sat there speaking pseudo–samurai movie Japanese gibberish while Fleiss’s girls stood by with looks of puzzled bemusement, none the wiser.
One of the undercover officers and Fleiss’s designated money-collection girl retired to an adjoining room in the suite to discuss payment and services, again captured by a recording device. Since this cop was playing the role of an ESL-challenged Asian man, he would ask in halting English whether the girls would use, for the agreed amount of money, “mouth,” “front,” and “buttfucku.” On this last phrase, the woman looked puzzled and asked “Joey Buttafuoco?” referring to another infamous case, where Buttafuoco, an auto body shop owner in New York, had an affair with a sixteen-year-old girl who later shot Buttafuoco’s wife in the face. When Fleiss’s girl finally understood that the Asian businessman was referring to a type of sex, she smiled and responded that each of the girls has their own preference but as long as it wasn’t too weird or aggressive, it would probably be fine. And again, the officer counted out the hundred dollar bills slowly for the camera. The jurors tried to contain their smiles and take it seriously.
When the agreement was reached they went back into the next room so that the third vital step, the “furtherance” festivities, could begin. One of the cops asked the girls, in halting English, whether they could do a striptease. Politely, they responded that they usually did their striptease to music. This was not something the police had thought of. So all of the businessmen started awkwardly humming the classic brassy strip song, “The Stripper.”
The girls shrugged and started taking off their clothes, trying to get into the spirit while the men built their song to a robust crescendo. The jurors at this point could not restrain themselves and the whole courtroom burst out in laughter at the strangeness of the scenario: cops posed as fake Asian businessmen singing strip ballads while beautiful women, about to be arrested, gyrated in this off-key, off-kilter comedy as the first bra dropped.
Of course, this was the cue. Numerous police burst into the room at that point, shouting and waving badges. The girls, scared out of their minds, tried to cover themselves, not quite sure what was happening. And as soon as the courtroom was laughing at this antic caper, all of a sudden it was serious and a little sad.
This mood shift underscored for me the mismatch between the silliness of the situation and the severity of the penalty that Fleiss faced. Because unknown to the jury was the fact that any conviction on a pandering charge carried years of mandatory prison time.
The prosecution finally finished its case, and the defense put on a short case, having established most of its entrapment defenses in the prosecution’s case. One of the most important arguments that Brooklier was able to make in order to get the judge to allow an instruction to the jury on entrapment was the unfair disparity in the charging of men and women in the prostitution statutes. Under the law, both providing sex for money and paying for sex were felonies. Yet, in the state of California, no man had ever been prosecuted for paying for sex, while women were prosecuted all the time. In his closing argument, Brooklier was able to mention this disparity and discuss how law enforcement set up these operations only with the intention of inducing the women to violate the law, while turning a blind eye to their male customers.
Jurors were finally given the case to decide on November 29, 1994. It was not a long case, and we did not expect a long deliberation. I was back to spending time on the O. J. case down the hall. On breaks or at the end of the day, I would look for clues as to how Fleiss’s jurors felt as they marched down the hallways.
Deliberation dragged on for four days. There was obvious contention among the jurors. On one of the days, Sheila M. was selected as foreperson and brought a coach’s whistle to deliberations. Its shrill shriek could be heard in the courthouse hallways as Sheila tried to keep the jurors under control.
I had to fly to New Mexico later that week, so was looking for any sign of a verdict. At the end of the fourth day, my favorite juror, Sheila M., gave me a slight wink and subtle thumbs-up as she passed me in the hallway. I took this as a good sign. But still no verdict that day.
The following day, I boarded a plane to Santa Fe to conduct a training session for, ironically, the New Mexico District Attorney’s Association. Just as we were about to leave the gate, I got a frantic call from Marks and Brooklier’s office. The verdict was back. Guilty on three counts of pandering and not guilty on one count of pandering and the drug charge. Marks and Brooklier asked me if I could contact the jurors to conduct post-trial interviews.
The jurors had given a press conference after the verdict and had looked both stunned and upset when they had found out that the pandering charges were more serious, carrying mandatory jail time, while Fleiss would have easily gotten probation for the cocaine possession. The following day, when Deputy District Attorney Alan Carter was giving a press conference about his confidence in how jurors could make the right decision in a high-profile case in Los Angeles, jurors Sheila M. and Zina A. appeared on Geraldo Rivera’s show, discussing how they had made a terrible mistake with their verdict.
Approximately 6 percent of trials nationally end in hung juries. In some urban areas like Washington, DC, or the Bronx, that can double. While it is certainly the desire of the justice system to arrive at a unanimous verdict in a case, there are cases where juries simply cannot agree. A hung jury, where a number of jurors cannot agree on a verdict, can tell prosecutors that the jury has problems with the evidence or the charged crimes. Hung juries can also reflect personality differences on the panel, or jurors with different agendas. Sometimes they see the evidence differently, sometimes they do not get along with other jurors, and sometimes they are an annulment juror.
Jury annulment occurs when a juror or jury refuses to convict a defendant, despite the evidence, on what they consider to be an unjust law. It is civil disobedience and has its roots in the birth of our nation. In colonial days, juries were often encouraged to defy the unfair laws of King James. The most famous of these rebellions was the Tea Party in Boston Harbor in 1773, which spurred the “no taxation without representation” movement. British Parliament responded by passing the Intolerable Acts, which ended self-rule in Massachusetts. Jurors in court responded by refusing to convict defendants charged with punitive British laws. In fact, these acts led to the convening of the First Continental Congress and, ultimately, the Revolutionary War two years later. Since our country was founded in revolution, this defiance of the law is part of our American psyche.
Psychologically, jury annulment has a much more practical application. As jurors are instructed to use their common sense in evaluating a case, it stands to reason that they will pay attention and give more weight to issues that make sense and are more familiar to them, even if they are not in sync with the evidence or the law in the case. Even more importantly, jurors will create an internal narrative of what they think happened in the case, even if that narrative has only a fleeting or tangential relationship to evidence or law. So if a prosecution of a particular defendant just seems unfair to a juror, they will look for reasons to dismiss or disregard evidence, or to minimize or interpret legal instructions in order to support what they feel would be a fair outcome in the case.
Finally, even though jurors are instructed to not consider how a defendant will be punished when the jury is deciding on a verdict, they do. They know that their verdict will have a direct consequence on the life of the defendant and are mindful to reach a verdict where the punishment not only fits the crime, but the character of the accused.
When there is a criminal conviction, juror misconduct is often alleged in an attempt to overturn the verdict. But the appellate courts are very strict about what they consider to be actual misconduct. The basic test is whether the courts believe that the misconduct outweighs all of the evidence against a criminal defendant. In other words, without the misconduct, the jurors would never have convicted. Appellate judges don’t care about the thought process of jurors, because they recognize that the thoughts and impressions of a juror are changeable. If every juror who had misgivings about a verdict came forward to talk about their misunderstanding of the law and evidence, there would be scores of verdicts overturned every year. The appellate courts need demonstrable proof that jurors engaged in an activity that was in violation of the judge’s instructions. And that this violation in some way directly affected the outcome of the case. So it can’t be a small misconduct. It’s got to be big.
I came back the following night from New Mexico and started going through questionnaires to see if I could find contact information on the Fleiss jurors. Because of their press conference and their media interviews, I managed to learn a little bit more about their backgrounds and their attitudes about the case. I finally reached Sheila M. the following week and she agreed to talk.
I met her at a smoke-filled City of Commerce casino. When I am interviewing jurors, I just let them tell me the story of the trial. They have invested so much time, concentration, and emotional commitment that they often just need someone to listen to them talk through their feelings. I try to ask as many open-ended questions as possible and avoid putting forth a prescribed list of topics. That tends to smack of an agenda, which can make a juror defensive and less candid.
Right away, Sheila told me how bad she felt about the verdict. She thought the police investigation was unfair and that Fleiss had gotten a raw deal. She said she was stunned to find out about the potential prison time that Fleiss faced. Jurors are specifically instructed that they should not consider punishment in their verdict, but, in judging a defendant on a crime, they naturally calculate what they feel would be a fair sentence.
I asked Sheila to describe the deliberation process for me. She said that one of the jurors had slammed the table at the beginning of deliberations and stated that he thought she was guilty from the beginning. She said he was the most stubborn of the pro-prosecution jurors, but said that the jury was evenly divided, six for guilt and six for acquittal. And no one would budge after four days. This would have been a great victory for us, as the district attorney would have to think hard before trying Fleiss again with a jury so deeply divided.
Jurors know that the world is watching in big cases. They don’t like to come back with a hung jury after all the time, resources, and press coverage that have been invested in the case. So Sheila described how she and her other acquittal jurors made a deal with the guilt jurors. They were convinced that the drug charge was serious and would carry a hefty sentence but felt the pandering charges would result in minimal prison time. So they agreed to a conviction on three of the pandering counts in exchange for the acquittal on the drug count and one other pandering charge.
This type of horse-trading votes, by itself, is not misconduct. Jurors do it all the time. The courts have said that as long as it is not random or by chance, like flipping a coin, swapping votes is not misconduct. I was starting to feel hopeless about finding something to help Fleiss. But then Sheila said that she and her fellow “not guilty” jurors had a private meeting after court to see if they could strike this bargain.
This was jury misconduct. The judge is clear that the only discussions about the case are to happen in the jury room. This meeting outside to discuss vote swapping directly violated the court’s instructions. I was excited that I might have stumbled across some direct proof that would help Fleiss avoid up to eight years in prison. But it is one thing for a juror to tell me this story in a seedy casino within wheezing distance of the I-5 freeway in East Los Angeles. It is another thing for that juror to admit to a judge that she had violated the jury instructions.
So I asked if she knew how I could get in touch with any of the other jurors in her well-intentioned negotiating team. She gave me what contact information she had on them. I thanked her and asked if she would be willing to meet with the lawyers in the case to discuss it with them. She eagerly agreed.
I contacted four of the other jurors and they all confirmed Sheila’s story about the vote swapping. I asked if they would be willing to meet with the attorneys, and they all agreed. We met at Marks and Brooklier’s office in Century City, and they all told the attorneys the same story about how they had met outside of deliberations to strike the verdict bargain. We explained that this was a violation of the judge’s instructions and asked if they would be willing to state in an affidavit that this was, in fact, what they had done. We told them they were under no obligation to do so but it would obviously go a long way toward an appeal.
They all looked a little concerned and asked if they could be prosecuted for not following the judge’s instructions. We looked it up and could not find an instance where a juror had actually been prosecuted for such an infraction. They hesitantly agreed. Now that they knew the consequence of their actions, they genuinely wished they had stuck with their true feelings about the evidence and had continued to insist on acquittal, even if it meant a hung jury.
We submitted five juror affidavits, all stating that they had met outside the presence of other jurors and had discussed the case. Juror Zina A. said in her statement, “The only reason I voted guilty was because I discussed the penalty and potential punishment of Ms. Fleiss with other jurors, and I believed that by so voting I could obtain a not guilty verdict on the narcotics offense. . . . I agreed to and did trade my guilty vote on the pandering counts in exchange for a not guilty vote on the narcotics offense.” Juror Joseph L. also said in his affidavit that he did not think Fleiss had received a fair trial, because two jurors “presumed her guilty before the foreperson was even selected.”
These were brave and extremely rare admissions. Most jurors are never willing to concede that they have done anything wrong to exact a verdict. And while there are some jurors who may try to manipulate the system for a preconceived verdict, most engage in misconduct out of an earnest effort to do the best job possible. They bring in a dictionary definition to help clarify an instruction. They talk about their uncle Henry’s treatment by police in order to help them discuss the propriety of an investigation. But most go silently back to their lives.
Deputy District Attorney Carter was furious when he received the motion for a new trial based on jury misconduct. In the media, he threatened them with prosecution, and the jurors called me, their worst fears starting to be realized. I felt horrible and tried to reassure them. Marks and Brooklier went on the offensive, calling the DA’s threats an intimidation tactic to try to dissuade the jurors from testifying. The judge set a hearing for this motion, but the jurors said they would not testify if they could be held in contempt by the judge. Marks and Brooklier finally brokered a deal where three jurors would testify about their misconduct without the threat of a contempt citation. Two of them that had originally submitted affidavits were scared off and said they would not testify.
Three brave souls admitted in court that they had made a mistake and disobeyed the judge’s instructions. They were forthright, even though Carter cross-examined them and the judge angrily admonished them.
Even with this clear evidence, the judge refused to grant a new trial. Fleiss was able to stay out of jail on bail while her appeal was being heard. Less than two years later, when the appeals court finally read the motion for a new trial, they issued their ruling and granted a new trial in a week, unprecedented for the appellate court. In a rebuke to the judge, they stated how obvious it was that this misconduct was prejudicial to Fleiss’s guarantee of a fair trial and how the jurors’ misconduct was far worse than Fleiss’s original crimes. With Fleiss’s federal case looming and the prosecutors smarting from the appellate court decision, the district attorney decided not to re-try Fleiss. She had avoided at least eight years in prison.
But the princess did not live happily ever after. She served prison time for federal tax fraud charges and was re-arrested for DUI charges. She opened a clothing store, then a brothel and a Laundromat in Nevada, then went on reality shows and raised parrots.