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.