Cashing in from high-profile trials
Amber Frey's book -- and future tell-alls -- should be shelved
By Jonna M. Spilbor
Special to CNN.com
(FindLaw) -- On a quaint village street in New York, a million miles from Modesto, sits my favorite independent bookseller.
Here, off the beaten path, amid old brick and a few well-worn chairs from your grandmother's attic, one can get lost in anything but mainstream. The latest best-seller, if there at all, is likely on a back shelf, below eye level, and untouched.
So on a recent visit, when I spied several copies of "Witness for the Prosecution of Scott Peterson", by Amber Frey, littering an antique table two feet from the entrance, I stopped in my tracks, assaulted by its presence.
I had followed the case against Scott Peterson more closely than most -- commenting about it on television countless times, and writing about it extensively since the woeful story broke in December 2002. In all those months, never once was it mentioned that Amber Frey had a lucrative book deal brewing.
When I saw Frey's book, several thoughts ran through my mind. First and foremost, is it legal for participants in criminal trials to cash-in on performing their civic obligations?
In this column, I will examine the legalities of turning testimony into profit, and discuss why, in my view, profit deserves no place in the criminal courtroom.
Amber Frey created her own 'star witness' role
First, allow me to set one thing straight. I am not here to review the book. I can think of far better ways to part with $25.95 than to spend it on a supposed work of non-fiction which, according to the litany of inescapable reviews, "sheds little new light on the double murder case" and is inexplicably fraught with gratuitous half-naked photos of the author.
Needless to say, I haven't read the book. I will never read the book. If anybody attempts to read the book to me, my ears will surely bleed.
In case anyone has so soon forgotten, Scott Peterson, now 32, was convicted in November of the double murder of his wife, Laci, and unborn son. Last month, the jury recommended that, for these crimes, he should be sentenced to die by lethal injection. Formal sentencing - in which the judge will decide whether to adopt the jury's recommendation -- is slated for February 25.
During the Peterson trial, Amber Frey was touted as the prosecution's "star" witness. Indeed, initially, she was proffered by the prosecution as the very motive for the killing. The prosecution contended, with a straight face at that, that Peterson fell so in love with Frey after a total of some three or four dates, that he decided to kill his pregnant wife of five years and marry Amber.
It was a meager theory, indeed -- and it turned out to be unsupported by the evidence.
Amber Frey's supposed "star witness" role didn't pan out either -- at least, not from a strictly legal point of view. Frey witnessed no crime. The police put her up to playing the part of a jilted lover in an effort to extract a confession from Scott. She never got one. But that did not prevent her for playing the role of star witness anyway.
Frey injected herself into the case, eagerly transforming from unsuspecting mistress to police informant. The seemingly endless hours of baby-voiced taped conversations were, essentially, the whole of her "testimony." These conversations doubtless played a large role in convincing the jury to convict -- allowing the prosecution to divert attention from the striking paucity of forensic evidence in the case.
Technically, then, had it not been for the infamous tapes, Frey would have been largely irrelevant in this tragic tale. And technically, even the tapes themselves only established that Scott was an easy -- perhaps compulsive -- liar, not that he was a murderer. But they did make for great theater -- and may well have led the jury to convict.
Frey should have disclosed deal
When Amber did become a star witness, it was because the tapes were the show. After creating evidence -- evidence that otherwise would not have existed -- Frey then parlayed that evidence into a central role in the Peterson trial.
Now that we know she has written a book about the case, we must ask: Was her decision to position herself deep in this case motivated by a burning desire to assist the police in capturing Laci Peterson's suspected killer? Or was it, much more simply, motivated by the prospect of a lucrative book deal?
Certainly, from a defense perspective, it makes a huge difference. But the defense, ignorant of the book, was unable to argue that Frey's motivation was monetary.
Thus, by keeping the fact that she was writing her book secret, she imperiled the legitimacy of the ultimate verdict in the Peterson trial, and impeded the Peterson defense, which should have been entitled to cross-examine her on her book: the timing of her writing of it, its content, and the profits she received.
At the very least, if a witness stands to profit from a guilty verdict, the jury ought to consider that in weighing the witness' credibility. Think about it. What would the book have been called had Peterson been acquitted? "Witness for the Side that Can Get Me the Best Movie Deal"?
To the jurors, it could have been critical information. While Frey may have a right to ultimately cash in on her role in the Peterson trial, Peterson had a paramount right to have the 12 men and women who condemned him to death know about it. They didn't.
Whether you agree with his conviction or not, the fact remains that a man was on trial for his life. The "star" witness took the stand knowing she had a book deal brewing, and knowing that she stood to make a ton of money from his successful prosecution -- yet she never disclosed this fact to the jury.
Was Frey's receipt of book profits legal?
That brings us to the question of whether Frey can be prosecuted - either for concealing the book or for profiting from her largely self-created role as star witness.
The California Penal Code prohibits non-experts in criminal cases from receiving compensation by virtue of their bearing witness. To this effect, it states, in part:
"A person who is a witness to an event or occurrence that he or she knows, or reasonably should know, is a crime or who has personal knowledge of facts that he or she knows, or reasonably should know, may require that person to be called as a witness in a criminal prosecution shall not accept or receive, directly or indirectly, any payment or benefit in consideration for providing information obtained as a result of witnessing the event or occurrence or having personal knowledge of the facts."
A violation of this section is a misdemeanor -- and punishment is a mere $1000 fine and/or six months in jail.
Granted, the same prosecution that enlisted Frey's help, is unlikely to prosecute her. But if it chose to, could it? My guess is yes. The question of will a district attorney's office pursue criminal charges against Frey or her publisher -- or her famed lawyer, Gloria Allred, who no doubt knew of, if not negotiated, her book contract -- most likely is a resounding, no.
The "exception" to the rule that Frey and her publisher may have on their sides, is that the prohibition does not apply once final judgment has been rendered in the action.
But when does "final judgment" occur? Peterson has not yet been sentenced. To be safe, Frey and her publisher might have waited to publish. But publishing the book now, while the case is still warm, is likely to generate more sales.
Frey's book presently hovers in the top ten bestsellers at Amazon.com, likely turning Frey from massage therapist to millionaire almost overnight. She could not have been directly paid for her testimony, of course. But in being paid for her book, was she being, in effect, indirectly paid for her testimony, too?
Why can a witness' profit be instant?
Witness by Amber Frey may be the first "tell-all" to hit the stands, but it likely won't be the last. Given the high-profile nature of this case, not to mention the gravity of the conviction and likely sentence, it is a pretty safe bet that some of the Peterson jurors will be inking lucrative deals in the very near future.
But they, too, must wait -- and the law on this is clearer than the law cited above, governing Frey's testimony. Another California Penal Code section requires that:
"... prior to, and within 90 days of, discharge, [jurors] shall not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial..."
Why? As the statute itself recognizes, "the appearance of justice, and justice itself, may be undermined by any juror who, prior to discharge, accepts, agrees to accept, or benefits from valuable consideration for providing information concerning a criminal trial."
A juror's potential for making money isn't limited to book contracts and movie deals. Discharged jurors in cases that end in mistrials may find themselves paid handsomely -- and legally -- to consult with defense attorneys hoping to do better in the retrial. For example, one former California jury right now is being paid $50 per hour, per juror, to assist the defense in the retrial of a gang rape case.
Unfortunately, allowing consulting fees can sometimes create bad incentives: Jurors might be inclined to ensure a hung jury with the hope of a fat paycheck later on. Also, since jurors are under no legal obligation to discuss a case with attorneys for either side, they might withhold valuable insight if money is not offered.
The cons (and pros) of profiting from civic duty
Should jurors and lay witnesses in criminal trials be permitted to turn a civic duty into cold hard cash?
In my opinion, the cons clearly outweigh the pros. The First Amendment issue is one for the courts to decide; but the policy issue, at least, clearly counsels against allowing profit from either testimony or jury service.
A criminal defendant is entitled to a fair and impartial jury of his peers. When the prospect of money enters in the jury box, it's not a stretch to surmise that some juror, somewhere, will be more interested in the prospect of cold hard cash than in the thankless job of jury duty. But jurors should be thinking about justice - not how they can profit. One thing is certain: justice should never be for sale.
What about witnesses? They, too, should keep their eye on the ball: They ought to be thinking of telling the truth, not of maximizing their profit. When money enters the picture, there is a very real potential that "star witnesses" with dollars signs in their eyes may color or create "evidence" to maximize their profitability.
After all, much like real celebrities, these courtroom "stars" are made, not born. They know more lurid testimony will make their stories more saleable. The temptation to exaggerate -- or outright lie -- may prove irresistible.
A spate of high profile criminal trials is now under way, or soon to be -- including Robert Blake's, Michael Jackson's, and Phil Spector's. Don't be surprised when attorneys begin asking witnesses to produce bank statements -- so that cross-examination may show secret book deals, or other payments, that suggest that the witnesses have something -- other than their oath to tell the truth -- on their minds.
Jonna M Spilbor is a frequent guest commentator on various television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units.