"THE DIRECTOR MADE ME DO IT": THE "WINONA" DEFENSE

Criminal defense lawyers are constantly trying to find new ways to acquit their clients. Remember the "twinkies" defense, when a criminal defendant claimed he killed because the confection’s ingredients affected his mind?

In the just-concluded Winona Ryder trial, her lawyer propounded yet another spurious defense. The jury didn’t buy it.

Ryder was charged with three crimes: burglary, vandalism, and felony grand theft (the latter sometimes euphemistically called "shoplifting"), for helping herself to over five- thousand dollars’ worth of designer-expensive clothes and accessories from Saks Fifth Avenue in Beverly Hills.

The evidence was overwhelming. There was testimony that Ryder was seen cutting off anti-theft sensors using scissors she’d brought to the store, and admissions by Ryder that she had taken the merchandise. In what appeared to be a compromise verdict, Ryder was nonetheless acquitted of the burglary charge, which required proof of "intent to steal" (e.g., bringing scissors from one’s home to a department store – from which the jury should have reasonably inferred that she intended to use them). Then, too, the burglary acquittal may have rested on an erroneous belief by the jury that the prosecution had to prove Ryder actually broke into Saks.

Ryder was, however, convicted of vandalism and, most important, of felony grand theft.

Why did this wealthy Hollywood actress – who took care throughout the trial to appear in an obviously expensive wardrobe of her own – behave like a common thief? Ryder told witnesses, among other fanciful stories, that she was merely "getting in character" for a forthcoming movie role as a kleptomaniac. Incredible as it seems, Winona Ryder, the defendant in a felony case carrying possible jail time upon conviction, admitted committing criminal acts – and then attempted to justify those acts with a patently absurd excuse. Putting aside the transparent falsity of that excuse – as well as the probable damage done by Ryder’s failure to take the stand in an attempt to explain herself – the actress’s "the-director-made-me-do-it" defense reveals the lengths to which her lawyer was willing to go in an effort to obtain an acquittal for his famous client.

Defense lawyer Geragos made a stab, not at legitimately exposing any possible reasonable doubt in the prosecution’s case, but at manufacturing that doubt without any basis for it in the evidence. As an experienced trial lawyer, Geragos had to know that his client’s facially ridiculous explanation for committing three crimes was not, and could never be, a defense because, at best, it went to Ryder’s motive. While laymen might confuse an accused’s legally irrelevant motive for committing a crime with the legally relevant intent to commit that crime, Geragos surely knew the difference.

For example, a murderer might kill for money, or because someone looked at him the wrong way, or for any or no reason at all. His motive might lead the police to him (as in the case of a jealous husband), and it might even explain why he committed murder. But whatever his motive, it is not an element of the crime, and the prosecution does not have to prove it. What must be proved, among other elements of any serious crime, is intent – the prosecution showing, for example, that the murderer stalked his victim, put a gun to his head, and pulled the trigger.

So when Winona Ryder told no fewer than three witnesses that, yes, she’d taken the merchandise from Saks (never mind why), she was confessing to the legally requisite intent. And when, on her behalf, Geragos tried to get some mileage out of Ryder’s "the-director-made-me-do-it" excuse, he was offering the jury a legally irrelevant motive.

Putting aside, then, Ms. Ryder’s real motive, what was her lawyer’s? The answer is obvious: to create a smoke screen and deliberately confuse the jury.

In most criminal trials where defendants have no legitimate defense, criminal lawyers often resort to the smoke screen tactic. Geragos was no exception. Faced with the harsh reality of an eyewitness (with no incentive to lie) who had observed Ryder cutting off the anti-theft sensors, and his client’s admission that she’d taken the merchandise, Geragos set about trying to impugn the prosecution witnesses. And in his summation (which is merely an argument of counsel and, therefore, not subject to cross-examination,), he spun several different scenarios, none of which were supported by a scintilla of evidence. Arguing that Saks had conspired with its employees to concoct a story which would make his glamorous movie star client appear to be a thief, Geragos went so far as to accuse that reputable merchandising landmark, Saks Fifth Avenue, of destroying exculpatory evidence. Worse, he blithely sullied the name of a Saks employee by insisting that the woman had planted the incriminating scissors on his client.

Utter, shameless fabrications – on the part of defense lawyer and acquiescing client. One is entitled, under the circumstances, to speculate whether defendant Ryder didn’t take the stand in her own defense because she dared not risk a possible perjury charge.

Do not feel sorry for Ms. Ryder on the assumption that her reckless accusations were all her lawyer’s idea. It makes no difference whose idea it was. Ms. Ryder need not have possessed any legal expertise to know when lies were being uttered. She needed only a conscience to stop her lawyer in his mud-slinging tracks. She needed only the integrity to refuse to indiscriminately sully the reputation of innocent people.

As for her lawyer, much in the news these days, his duty was to expose the possible existence of reasonable doubt, not to manufacture that doubt with sleight-of-hand.

I am reminded of O.J. Simpson’s criminal trial, where defense lawyer Johnnie Cochran manufactured the spurious defense that the brutal murder of Simpson’s wife, as well as a young man on the innocent errand of returning her glasses, had been perpetrated by drug dealers – this without a shred of supporting evidence.

Like Cochran before him, Geragos no doubt rationalizes his behavior by hiding behind the notion that "everyone is entitled to a defense." Even so, no one is ethically entitled to a contrived defense. It is reprehensible to manufacture a defense for a patently guilty client – a defense that relies not on evidence, but on conjecture; not on facts, but on opinion; not on truth, but on lies.

Instead of making media celebrities out of the likes of Cochran and Geragos, it’s time we condemned the kind of lawyer who excels in smoke and mirrors games, thus making a mockery of our criminal justice system.