Whose Trial Is It Anyway?

By Richard Lacayo

Because Marla Hanson demanded from her landlord the return of a security deposit on her rented apartment and resisted his advances, he dispatched two men last June to slash her face with a razor. The instantly notorious New York City attack left Hanson with visible scars, but the 25-year-old model says the courtroom assault that followed was worse. At one of the resultant trials, a defense attorney claimed, without producing evidence, that she was helping prosecutors frame the two slashers because they were black. He alleged that she was sexually voracious and "preyed on men." He even confronted Hanson with an anatomical obscenity that her landlord allegedly used to describe her, then asked her to define it.

"I was in shock that I had to answer that," Hanson said in a TV interview after the convictions came in. "I kept looking at the judge to help me." Instead, at the sentencing last week of Hanson's landlord, Acting Justice Jeffrey Atlas blasted Hanson and her attorney for publicly criticizing his handling of the trial. That caused Hanson to burst into tears and inspired a storm of outrage from editorialists and Mayor Edward Koch. "How many times must a victim be victimized?" he asked.

The passions raised by the venerable legal strategy of trying to discredit the victim got further visibility last week at hearings in another much publicized case, the murder trial of Robert Chambers, 20. A handsome preppie college dropout, Chambers claims to have accidentally strangled Jennifer Levin, 18, when she hurt him during predawn sex in New York City's Central Park last August. To bolster Chambers' version of the killing, Defense Attorney Jack Litman attempted to obtain Levin's diary as evidence, characterizing it as a chronicle of her "kinky and aggressive" sex life. After reading the diary privately, the presiding judge ruled that it contained no information relevant to the defendant's case. By that time, however, Levin's character had been impugned and the anguish of her family amply replenished. Her grief-stricken father has appeared in court wearing a JUSTICE FOR JENNIFER button.

The Hanson and Levin cases are vivid reminders that defense attorneys frequently try to portray female victims of sexual crimes as either sluts or teases. "Blaming the victim is a very sexist defense," says Kelli Conlin of the National Organization for Women. "It started with rape cases. The idea was 'She asked for it.' " In recent years, though, new rape-shield laws have excluded from trials evidence regarding a rape victim's sexual past, except any previous relationship with the alleged attacker.

Those protections do not extend to other crimes. Indeed, Litman first made a name for himself in 1977 by getting a conviction on the lesser charge of manslaughter for Richard Herrin, a Yale graduate who killed his girlfriend Bonnie Garland with a hammer. "It was suggested," says her father Paul bitterly, "that she was a manipulative, rich, spoiled person who didn't treat this lovely man who murdered her nicely." Garland, a New York attorney, is working for the spread of legislation that gives victims the right to a voice at bail hearings and with the prosecution before a plea bargain is accepted. "I've told Jennifer's survivors that they can expect further desecration of her memory," he says.

Court watchers have also detected a new virulence lately in some defense attacks on prosecutors. During the recent federal racketeering trial that ended in the acquittal of alleged Mob Boss John Gotti, defense lawyers launched savage personal attacks against Prosecutor Diane Giacalone; they even made wild charges that Giacalone had given her underwear to a prospective witness as an inducement to testify. Charges like that, says New York University Law Professor Stephen Gillers, "represent a breakdown in the last thread of civility in a contentious adversarial process."

Defenders of defense attorneys answer that making unsavory accusations is often a lawyer's duty. Says Gillers: "If Litman were to say, 'Listen, / Chambers, this is your best shot, but I don't feel comfortable doing it because I feel it's morally wrong,' he would be guilty of malpractice." Another current trial in Manhattan, involving Subway Gunman Bernhard Goetz, demonstrates the legal value of blaming victims. Goetz offers self-defense as the reason why he shot four black youths who he suspected were preparing to rob him. His attorney has relentlessly highlighted the criminal intentions of the four. The American Bar Association's code of ethics, which requires that attorneys zealously defend their clients, forbids degrading courtroom accusations only if they are also irrelevant. Formal discipline by the bar for violations is apparently rare. In essence, the dividing line between zealousness and callousness is left to a lawyer's discretion -- and his sense that such tactics might backfire, creating juror hostility toward his client.

The most important factor in shaping the conduct and tone of a trial remains the guidance of the judge. But judges are worried that an incautious intervention from the bench might provide a basis for appeal. The result, says Gloria Allred, an activist Los Angeles attorney, is that "judges, who want to allow the defense as much of a chance as possible, sometimes err on the side of the defendant by allowing the victim to be vigorously cross-examined." When they do, the only palliative seems to be public protest. The storm over Hanson's treatment last week led to a formal apology from the judge a few days later. With Atlas at her side, Hanson told reporters, "In the end justice worked and justice was done." It is nice she can forgive. Forgetting may be harder.

With reporting by Jennifer Hull/New York, with other bureaus