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When crime pays, who should get the money?

By Julie C. Hilden
FindLaw Columnist
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start quoteTaking away the profits of a convicted criminal from the sale of his book or movie is controversial. But freezing the profits of a criminal defendant, before the verdict is in, shouldn't be.end quote
-- FindLaw columnist Julie C. Hilden

(FindLaw) -- On February 26, California Superior Court Judge Roger Beauchesne issued a tentative ruling in a civil suit against Scott Peterson, who is charged with the murders of his wife, Laci, and their unborn child.

The civil suit -- brought by Laci's mother, Sharon Rocha -- seeks to have any profits Scott might receive from the sale of his story kept in a trust account until a verdict is reached in his murder trial.

Judge Beauchesne said no to that request. But he also made clear that his ruling was "tentative" -- subject to reconsideration in twenty days, he said, if Rocha's attorney submitted further argument.

The issue of whether convicted felons can profit from the sale of their stories, which are inevitably entangled with their victims' stories, is a familiar one. While courts have been very hostile to the idea of effectively censoring books and movies in this way -- considering it a First Amendment violation -- victims' rights groups have been adamant that courts consider sales of criminals' stories an unacceptable reminder that crime can, indeed, pay. Victims' rights groups contend that if such stories must be sold, then the profits ought to go to the victims, not the criminals.

Is it contrary to the First Amendment to redirect profits convicted criminals make from books and movies to their victims? In this column, I address that question, and discuss the legal issues raised by the Rocha civil case ruling.

Why a 'tentative' ruling?

To begin, readers may wonder: What's going on with this "tentative" ruling? Is this judge just indecisive? The answer is no.

Tentative rulings -- sometimes nicknamed "tentatives" -- are typical in civil cases in Superior Court in California. Often, a judge will post his tentative ruling, and then immediately hear argument from the parties' attorneys as to whether he should reconsider the ruling.

It's a tough situation: The losing parties usually have only minutes to try to change the judge's mind. Fortunately, Judge Beauchesne was more humane -- he gave Rocha's attorney twenty days, not twenty minutes -- to try to persuade him to reconsider his decision.

And that suggests, interestingly, that the judge doesn't want to just give the parties a chance to be heard in court; depending on the arguments that are made, he might actually change his mind.

'Son of Sam' laws

Readers may also wonder: What, exactly, is the legal basis for Mrs. Rocha's suit? The answer is that it's based on a California law with a long, roller-coaster history.

The California law was modeled after an earlier New York law, with its own roller-coaster history. The overwhelming majority of states now also have similar laws.

In 1977, New York passed a law to prevent convicted criminals from reaping profits from sales of works about their crimes. It was nicknamed the "Son of Sam" law, because it was prompted by reports that "Son of Sam" serial killer David Berkowitz was set to reap a great deal of money from the sale of his story. Then, in 1986, California passed its own, similar "Son of Sam" law.

In 1991, however, in Simon & Schuster v. New York Crime Victims Board, the U.S. Supreme Court struck down New York's "Son of Sam" law, on the ground that it violated the First Amendment. The Court found several flaws in the law.

Perhaps the most glaring of these flaws was that the law extended to all works that even briefly mentioned a long-ago crime, and that it applied even if there had been no conviction. The result, as the Court pointed out, was that even a classic such as "The Autobiography of Malcolm X" -- which mentions the author's youthful burglaries -- or Eldridge Cleaver's "Soul on Ice" would have come under the ambit of New York's "Son of Sam" statute.

Was the Court right? In my view, absolutely. If writers can't profit from books, they often don't write them; often, no story is as compelling as the one that comes from the horse's (or in this case, the criminal's) own mouth; like it or not, in our increasingly crime-ridden society, stories of crime need to be told; and we, as a people, made the decision long ago that we would not censor speech simply because -- for whatever reason -- we dislike its content.

Those who dislike the Court's result in New York Crime Victims Board should remember that "Son of Sam" laws are not the only ways for victims to be compensated for some of the terrible consequences of crimes. To the contrary, crime victims and/or their families are always free to file a multimillion dollar tort suit, going after a convicted criminal for damages. The point is that such suits, unlike "Son of Sam" laws, are not intended to target free speech in particular.

Because of the U.S. Supreme Court's ruling in New York Crime Victims Board, New York passed a revised version of the law in 1992, hoping to hit on a compromise acceptable to the Court.

Meanwhile, in California, the legislature also took note of the U.S. Supreme Court's decision. If New York had amended its statute, logic counseled that California ought also to amend its similar statute. But at the same time, the California court wanted to be more responsive to victims' concerns.

California revisions

As a result, in 1995, California made a mixed set of amendments to its own "Son of Sam" law. Some of the amendments broadened the statute. For instance, the revised statute went after "profiteers," and applied to any "thing of value" whose value had been enhanced by its connection to the crime -- that is, any crime memorabilia.

In addition, some of the amendments narrowed the statute, but not greatly. The revised statute exempted those works that made only "passing mention" of a crime, but also made clear that this referred only to tiny mentions in indexes, footnotes, and the like. In addition, the revised statute exempted books about crimes for which there had, as yet, been no conviction.

Nevertheless, just a little over two years ago -- on February 21, 2002 -- in Keenan v. Superior Court, the California Supreme Court struck down this revised version of the California "Son of Sam" law. Despite revisions, the Court found that the law still violated both the First Amendment and the California Constitution's "liberty of speech" clause.

In particular, the Court noted that, despite the "passing mention" exception, the California law still reached books or films that only briefly mentioned the crime at issue, in the context of a larger narrative. Or, as the Court put it, the statute still reached "all income from the criminal's speech or expression on any theme or subject, if the story of the crime is included."

Later in 2002, the California legislature responded by enacting a new law -- one that has yet to be fully tested. It allows victims to sue for damages for up to ten years after a felon has completed parole -- extending the prior one-year-after-conviction statute of limitation for such suits.

The law plainly was passed with the profits from books and movies on high-profile trials directly in mind. Thus, it might best be thought of as a "Son of Sam" law in disguise. It is this law under which Laci Peterson's mother, Mrs. Rocha, is suing.

Money on ice

The current motion, however, does not directly raise the issue of the validity of the law as a whole. Technically, it is only concerned with whether a court may freeze profits from a criminal defendant's book to preserve them to be recovered in victims' future civil suits -- and, thus, prevent profits from being dissipated in the meantime.

The worry, in essence, is this: What if Scott sells his story now, and spends all the money -- say, to pay his high-priced lawyers? Doubtless, Mark Geragos -- also a lawyer for celebrities like Winona Ryder and Michael Jackson -- doesn't work cheap. And Scott Peterson, before this trial began, was a regular guy, with a regular bank account.

If the money were to be spent, then there would then be no reason, except a symbolic one, for Mrs. Rocha to pursue a tort suit on Laci's behalf -- since there would be no money left to recover. No wonder, then, that Mrs. Rocha wants to get Scott's money put in trust immediately.

But for the judge to have allowed her request, in my view, would have been nothing less than an outrage. Remember that until and unless Scott Peterson is convicted, and until and unless a verdict is reached in a tort suit against him (which probably won't get underway for a while), he can generally do what he wants with his own money -- as we all can, generally, until a court tells us otherwise.

And remember, the verdict in the criminal trial may still be "not guilty." That's a possibility in any case, and a particularly real one in this case -- where there is not a single direct witness to the crime itself, nor (as far as has been reported) an unequivocal "smoking gun" piece of evidence showing Scott had to be the culprit. He could still be an innocent man trying to sell the story of his innocence, in order to fund his own defense.

Taking away the profits of a convicted criminal from the sale of his book or movie is controversial. But freezing the profits of a criminal defendant, before the verdict is in, shouldn't be.

Before we decide whether to take away Scott Peterson's money, let's at least have a jury verdict on whether he is guilty, or liable for a tort. A basic component of due process is the requirement that the penalty follow the crime (or tort), not precede it.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, "3," was published recently. In reviewing "3," Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's Web site includes MP3 and text downloads of the novel's first chapter.

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