The Real Untold Story

What the Anna Nicole Smith case tells us about the legal system


When Larry Birkhead stood outside a Bahamas courthouse proclaiming that he was the father of Dannielynn, the then seven-month-old daughter of deceased Playboy playmate Anna Nicole Smith, the event had the surreal atmosphere of someone announcing he had won the lottery. In this particular lottery, the winning ticket was Dannielynn. The tabloid saga that lead Birkhead to that courthouse in April 2007 is an all-too-American tale of protracted litigation, with a cast
of characters ranging from shady private investigators to the justices of the U.S. Supreme Court.

You can review that saga in Blonde Ambition (Grand Central), a salacious new tome by TV reporter Rita Cosby. For most readers, the book is about celebrity gossip, not the public-policy implications of the story. Its big revelation is that the two "finalists" in the claim for Dannielynn's paternity—Birkhead, a photographer, and Howard K. Stern, Anna Nicole's lawyer—cut a corrupt bargain. Birkhead gets the baby, which according to Cosby earned Birkhead $1.5 million for the first photo shoot alone, while Stern gets to manage the estate, for which he will probably be paid handsomely.

But there is more to this story than such National Enquirer–style details. By offering a close-up view of the apparent avarice of Smith, Birkhead, and Stern, Blonde Ambition inadvertently says a lot about the attorneys that served that avarice and a legal system they manipulated too easily.
Cosby, like many others who have written about the case, suggests that young Dan­nielynn "could" inherit as much as half of the estimated billion-dollar estate of Smith's wealthy deceased husband, J. Howard Marshall. This might be true, in the same sense that Publishers Clearinghouse informs us that we "could" already be winners. But the litigation is much more likely to line the pockets of the lawyers than to enrich Dannielynn.

Say what you will about blondes: Smith was no dummy when it came to shopping for legal jurisdictions that would help her carry out her plans. Thus, to prevent Birkhead from hauling her and Dannielynn into court for a paternity test, Smith and Stern went to great lengths to establish residency in the Bahamas, thereby evading U.S. jurisdiction. There were times, however, that she needed the benefits of U.S. courts. She (or her legal team) shopped carefully at those times as well.

Accordingly, when the Texas probate court upheld J. Howard Marshall's estate plan—one which did not provide for Smith beyond the millions of dollars in cash, jewelry, and real estate that Marshall already had given her—Smith attempted to accomplish the same financial end by raising a claim of tortious interference with a gift (that is, arguing that Marshall's son improperly prevented his father from making a gift) in the friendlier confines of a California bankruptcy court. The shopping spree paid dividends: The bankruptcy court awarded her nearly half a billion dollars.

A federal district court significantly reduced the judgment, and then an appeals court got rid of the judgment altogether, stating that the case did not belong in federal court because probate cases don't fall under federal jurisdiction. Smith got another bite at the apple in early 2006, however, when the U.S. Supreme Court ruled that the probate exception isn't that broad and sent the case back to the appeals court, where it now languishes.

That may look like a major victory for Smith, but it isn't necessarily good news for her estate, because the federal courts now have to look at the actual merits of the case. The federal courts are obliged to apply Texas law and to respect the final decision of the Texas probate court. And that court held that Marshall's estate plan was valid, that it was not the product of any tortious act, and that Marshall did not intend to give any additional gift or bequest to Smith either during his life or upon his death.

And so Stern will get his day in federal court, but he is not likely to win this case or to provide additional funds thereby for Dannielynn. He is, however, likely to run up a tremendous legal and administrative bill in the meantime—cutting into moneys that Dannielynn might have otherwise received.

Cosby's book is subtitled The Untold Story Behind Anna Nicole Smith's Death. But the untold story that really matters is a tale of forum shopping and litigation run amok, and of a little girl who has been used as a pawn by people relentlessly seeking millions. When the Supreme Court found that the federal courts should be able to hear some probate-related cases, I doubt that the justices intended to foster such endless, selfish litigation.

Robert Alt is a fellow in legal and international affairs at the John M. Ashbrook Center.

NEXT: Sex, Gold, and Raw Milk

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  1. Daniel and Anna were murdered. Sad, but probably true.

  2. Grizzled old prospectors, gouging away for years at the earth’s innards, patiently working their way toward the vein of gold surely awaiting them…

  3. This is the second post today (Sex, Gold, and Raw Milk, was the first) that doesn’t include the appropriate titillating cheesecake photos.

    Hit and Run, You’ve got some splaining to do!

  4. Like we need to see another picture of that brainless cow.

  5. Mr. Alt is shocked, shocked, to discover that rich, greedy people manipulate the legal system for their own benefit. Unless easily replicable legal robots can be developed, capable of quickly distinguishing between “good” people who deserve to have their day in court and “bad” people (like virtually everyone connected with the Smith cases) who don’t, the law will continue to be what it has, to a great extent, always been, a monument to codified selfishness. I think it’s called human nature.

  6. Despite all the sleaziness, doesn’t it sort of look like the system got things mostly right? Anna probably isn’t entitled to much more than the $$ she sweet talked out of Marshall, Birkhead was declared the father, and Stern is managing the estate(probably what Smith wanted).

  7. doesn’t it sort of look like the system got things mostly right?


  8. Damn. Even Reason.

  9. Damn, she looks like natalie maines in that pic.

  10. Don’t think I can agree with this take on Stern’s role. If there’s a colorable claim that Danielynn is entitled to the big chunk of the estate, it is probably worth a relatively small investment in legal fees for that claim to be pursued, even if Mr. Alt thinks the claim lacks merit. His hostility to Stern sounds too much like knee-jerk stereotyping of the plaintiff’s bar as bloodsuckers. We libertarians believe that such civil disputes are best settled through private litigation, right? Would Mr. Alt prefer that the (nanny) State bar the claim and appoint a guardian to manage Danielynn’s affairs?

  11. In a Heinlein novel (Time Enough For Love?) the concept of pre-probate was briefly mentioned. You submit your LW&T to the court, the court approves or sends it back for modification to make it legal. After court approval, NO challenges are heard. I liked the idea when I read it. I still like it.

  12. Oops. that ( was me.

  13. Jsub, you’re a gentleman and a scholar, but the fact is people who stand to benefit from bequests have been known to manipulate the process (see Tacitus’ Annals) and there needs to be some recourse.

  14. Kaganspawn, thans for the accolade. We can all be manipulated, but who is better positioned to decide the distribution of THEIR OWN ASSETS. I’ll grant that the mentally incompetent, as determined by an impartial judicial proceeding, should not be given carte blanche over their assets. Absent PROOF that a person is incompetent to manage his or her own affairs, to hell with the relatives and other bloodsuckers. If I want to piss of my adult offspring with my bequest, it should be, no is, my unalienable right. Pre-probate would protect minor dependents.

  15. In this context, the correct spelling is “manipple-ated.”

  16. Davw W @ 1:28- that what i thought, everyone thought i was just paranoid though.

  17. I’m with Alan Vanneman on this one. What was the point of this article? Several people spend a lot of their own (or their lawyers’) money pursuing claims that they think have value. So?

  18. Why use this ridiculous book by Rita Cosby, that is currently under litigation itself for defamation to explain the Marshall’s legal history? I don’t see the connection except for the book saying the lawyer and the baby’s father are leeches, when Pierce Marshall refused depositions, destroyed documentation of finances and the list goes on. Anna Nicole Smith was fighting for & awarded what any other spouse in the State of Texas would have received with no problem.

    To use this hideous book and connect it to your opinion of the Marshall money makes one wonder if you have not fully recovered from Rita’s spin!

  19. Alt completely misses the real untold story and that is the lack of father’s rights in the USA. Birkhead is not a some random photographer as Alt describes him, he is the father. If Birkhead cut some deal with Stern it is only becuase the feminist-chivarlist courts did not protect his rights as a father and he was forced to do so or risk losing the child.

    Birkhead claimed he was the father before the child was born. Upon the child’s birth a simple DNA test should have been done and when it showed Birkhead was the father he should have been given equal custody of the child. Instead Smith fled the country to deny Birkhead any access to the child and the courts did nothing about it. Can you imagine if a father had done the same, he would have been arrested for kidnapping and non-thinking media types like Alt would have condemned him.

  20. Interesting – the book is connected to the case so a legitimate hook. Scott, on the charge that Smith improperly used different jurisdictions to stop Birkhead asserting parental rights I agree the courts have overcorrected for the past favor towards fathers in custody matters. But libertarians believe in respecting the sovereignty of other nations. Compare R. Balko’s year-end lament skewering the admin for asserting we can kidnap British subjects in Britain with Ron Paul’s isolationism. The only alternative is that anytime there is a dispute over paternity an automatic restraining order would prevent the mother from leaving the jurisdiction. That’s a mighty big imposition on the freedom to travel.

    In our brave new world dna fingerprinting will be required of all babies at birth and the database searching will be good enough to eliminate traditional paternity inquiries in most cases. Sigh like Balko.

  21. “Cosby’s book is subtitled The Untold Story Behind Anna Nicole Smith’s Death. But the untold story that really matters is a tale of forum shopping and litigation run amok, and of a little girl who has been used as a pawn by people relentlessly seeking millions. When the Supreme Court found that the federal courts should be able to hear some probate-related cases, I doubt that the justices intended to foster such endless, selfish litigation.”
    Bravo and Amen!

  22. Noodlemonkey, I’m overwhelmed by your keen insight and reasoning. I’ve changed my mind, Birkhead and Stern must clearly be villains of the basest stripe.

  23. Kaganspawn–Didn’t see a need to restate the obvious. But here goes: LB and HKS are vile, greedy, litigiuos synchophants of the lowest order. The evidence is abundant. Selling coverage of your daughter’s first birthday party is repugnant. Making backroom deals regarding your respective stake in Dannielynn’s finanical future–repugnant. And unfortunately for Dannielynn, the list goes on and on.

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