Crime

The Cake Is a Lie

A prosecutor pulls a preposterous stunt in a murder case and gets rewarded for it.

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In 2007 Sonya and Joseph Smith were tried for felony murder in connection with the 2003 death of their 8-year-old son, Josef, who medical examiners said was beaten and deprived of food and water. The trial was highly publicized, partly due to the Smiths' membership in the Remnant Fellowship, a Christian sect that stresses corporal punishment and dietary restrictions.

During closing arguments, which were broadcast on Court TV, the prosecution decided to put on a show. Here's how it was described in a Georgia Supreme Court opinion (PDF) released last week:

The prosecutor, in the final moments of her concluding argument on behalf of the State, "clicked" her fingers, at which signal one of the deputies in the courtroom turned out the lights and an associate prosecutor "popped out a cake out of a grocery bag" complete with eight candles, which were then lit with a lighter brought into the courtroom; the prosecutor and her associate then proceeded to sing to "dear Josef," i.e., the deceased victim, the celebratory words to "Happy Birthday."

The Georgia Supreme Court did not find that the theatrics prejudiced the jury to the point where the Smiths, who were convicted and sentenced to life plus 30 years, deserve another trial. Nor did the majority find that the defense attorney's failure to object amounted to ineffective assistance of counsel. But both the majority opinion and the dissent did condemn the prosecutor. The majority called the tactic "theatrical," "preposterous," and "highly inappropriate." Dissenting Chief Justice Carol Hunstein was even harsher:

The prosecutor's birthday production was not meant to be argument or rebuttal: it was a theatrical stunt spun out of pure fantasy. Its sole purpose was to prejudice the rights of appellants before the jury in an impermissible attempt to invoke the jury's passions and divert the jury from the evidence. It offended the dignity and decorum of the court and violated every precept of professionalism and fair play. Yet the trial court did absolutely nothing. The event played itself out without the trial judge performing his duty to maintain decorum in the courtroom.

It was an assistant district attorney—an officer of the court and a representative of the State of Georgia—who debased the dignity and respect of these criminal proceedings. Rather than "adher[ing] to the highest standards of professionalism and proper courtroom decorum," this prosecutor embarrassed every member of our profession with her behavior. The uncontroverted evidence of the events orchestrated by the prosecutor and performed in front of the jury with the tacit permission of the trial court establishes conclusively that the prosecutor did not concern herself with appellants' right to a fair trial. She cared only to win at any cost without regard to how unfair, how undignified, how disrespectful her actions were.

In two footnotes, Hunstein explored the prosecutor's motivation further:

I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was deliberately pandering to the television audience observing the proceedings on Court TV. See defense counsel's testimony at the hearing on appellants' motion for new trial ("I understand the cameras were rolling and everybody wants to be Nancy Grace's friend")….

Even reversal will not work to alter the behavior of certain professionally challenged prosecutors aiming for a career elsewhere, such as on television.

The Smiths' trial was in 2007. So what become of this ethically challenged prosecutor? First we'll have to discern her identity. Scathing as the Georgia Supreme Court opinions were, neither of them mentioned the prosecutor's name. Misbehaving prosecutors often go unnamed in appeals court decisions, even in cases where their misconduct was egregious. In a 2009 U.C. Davis Law Review article (PDF), South Texas College of Law professor Adam Gershowitz suggests several reasons for such omissions, including a sense of professional camaraderie (reinforced by the fact that many appellate judges are former prosecutors) and simple compassion, sometimes based on the assumption that the incident in question was the prosecutor's first offense—an assumption that cannot reliably be tested by searching legal databases, precisely because so many courts omit the names of the prosecutors they criticize. Whatever the reasons, the failure of appellate courts to consistently call prosecutors out by name makes it more difficult for the public to hold them accountable when they seek re-election, start angling for a promotion to judge, or run for higher office. It also makes it more difficult for journalists looking into misconduct in one case to see if a particular prosecutor has been criticized by courts in other cases.

I had to peek into the Google cache of Daily Report, a subscription-only publication that covers Georgia's legal community, to get the prosecutor's name: She is Eleanor Odom, an assistant district attorney for Cobb County, Georgia.

In its last two terms, the U.S. Supreme Court has heard two cases presenting an opportunity for it to carve out exceptions to the absolute immunity from civil lawsuits that prosecutors receive for their official actions, even in cases where they knowingly present false evidence that results in the conviction of an innocent person. Those cases highlighted the perverse incentives prosecutors face: While there is enormous pressure to win convictions, there is almost no risk in going too far in the quest for a guilty verdict. An amicus brief (PDF) filed by the Cato Institute, the National Association of Criminal Defense Lawyers, and the American Civil Liberties Union in last year's Supreme Court case Pottawattamie v. McGhee summarizes several studies showing that penalties for misconduct are vanishingly rare. This year USA Today and the Northern California Innocence Project published studies that came to similar conclusions.

The Georgia prosecutor who sang "Happy Birthday" to a child's ghost is no exception to the general lack of sanctions for misconduct. The Georgia Bar Association has taken no disciplinary action against Odom for her stunt in the Smith case, and she is still working for Cobb County District Attorney Pat Head. (Head's office did not respond to my request for an interview with Head or Odom.) While acknowledging to the Daily Report that Odom's behavior in the Smith case might have been a bit over the top, Head added that he has never known her to be the sort to grandstand for television. "I have not seen her do that in the past," he said. "So there's no reason that she would do that in this case." 

If Odom was showing off for the TV cameras during the Smith trial, it seems to have worked. In the three years since the Smith verdict, she has become a regular guest on Nancy Grace's CNN program. In her dissent in the Smith case, Chief Justice Hunstein said the possibility that Odom was motivated by a blind pursuit of convictions is "less offensive" than the suggestion that Odom carried out the birthday cake stunt with an eye toward a possible television career. I'm not sure I agree. Last month Odom was one of 23 people who applied to replace retiring Georgia State Court Judge Albert L. Thompson. Next to the prospect of putting Odom behind the bench, where she would preside over the fates of people facing life sentences and the death penalty, putting her in a television studio doesn't seem like such a bad idea.

Radley Balko is a senior editor at Reason magazine.

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  1. Eleanor Odom deserves to be estranged from her friends and family while she dies a slow and agonizing death from ovarian cancer.

    1. I’d say skin/mouth/throat cancer, or something that will also disfigure her face. Bonus points if it’s something that medical marijuana would alleviate. Personally, I’d just want her to get regular cluster headaches. My girlfriend says it feels like an icepick behind the eye. Among people who have undergone unanaesthised limb amputation and experienced a cluster headache, the consensus is that the pain from cluster headaches is worse.

    2. This is UNCALLED for. Maybe you should die that way.

  2. If these parents are guilty of the crime they’re accused of, they deserve to be put up against a wall and shot. But if this bitch of a prosecutor thinks making a mockery of a serious court case is the way to do her job she should be disbarred. And the judge should be kicked off the bench for letting it happen.

    1. The judge let it happen because the defense attorney didn’t object. The defense attorney didn’t object because he thought that the macabre scene might actually turn jurors off. The appeals court then decided not to throw out the conviction– despite finding that the judge shouldn’t have allowed it– because the defense attorney didn’t object because of tactical reasons.

      1. He should have let it go on long enough to make the point, then object. You don’t have to be a lawyer to know that.

      2. Excuse me … the defense counsel thought that the cake incident would help his case??? Please.

        And as for the judge…since when do judges allow people to turn off the lights in their courtrooms without the court’s permission, let alone bring food in? Whether defense counsel objects is besides the point. No judge I have ever known would sit idly by while my associates and I turned out the lights and threw a surprise party for someone in the courtroom. All of which leads me to suspect that the judge was tipped off in advance and gave tacit approval to the stunt.

  3. A prosecutor pulls a preposterous stunt in a murder case and gets rewarded for it…And libertoid hacks who couldn’t think outside the libertoid box if their lives depended on it have to survive on meager contributions from true believers. It isn’t fair.

    1. “Not fair” is us having to put up with your drivel. Subsisting on contributions and the bullshit we call “The Justice System” is just life.

      Though, I do have to commend you on your ability to spin ANYTHING into an Anti-Libertarian Whine.

    2. You. Tongue. My boots. What’s so hard to understand?

    3. You know who else thought outside the box?

      Hitler, that’s who.

  4. Meh. More of a Balko “enhanced pat down” than nut-punch. But, it is the Monday of a holiday week.

    Who watches the watchers? Who prosecutes the prosecutors? No one.

  5. This was a triumph. I’m making a note here: “HUGE SUCCESS.” It’s hard to overstate my satisfaction (with this article).

    (sorry. Couldn’t resist. Have to find some levity in Radley’s weekly nutkick)

    1. Heckofa job, Balko!

    2. And believe me I am still D.A.,
      I’m doing justice and I’m still D.A. …
      I’m now on tv and I’m still D.A.
      And when you’re dying I’ll still be D.A.
      And when you’re dead, I will still be D.A.
      Still D.A. Still D.A.

      [Yeah… had to do it]

      1. Well done, both a’ ya’s.

        1. You know, it’s nice to know that while the jocks have the conservatives, and the artsy kids have the liberals, geeks still have the libertarians.

          I do regret to state that empirical observation reveals that most geek girls are liberal, though.

  6. Not gonna lie – my first reaction was, “That is BRILLIANT. Singing happy birthday to the dead kid…BRILLIANT.”

    In the twisted, Geoffrey-Feiger, Gloria-Allred, publicity-stunt, a-hole-attorney kind of way. That it’s a prosecutor, rather than a defense attorney, makes it all the more disgusting.

    But genius…pure, evil genius.

    *barf*

    Oh, also….BAAAAAAAAAAAAAAAAAAALKKOOOOOOOOOOOOOOOOOOO!!!!!!!11!

  7. She cared only to win at any cost without regard to how unfair, how undignified, how disrespectful her actions were.

    No shit.

    (1) She’s an attorney.
    (2) She’s a prosecutor.

    Q. fucking E.D.

  8. The tie-back to Nancy Grace is very appropriate. Her claim to fame was having never lost a case as a prosecutor and (believe it or not) using short skirts and a flirty attitude to win cases. Yeah, hard to wrap your head around that today, but 20 years ago as a young prosecutor her reputation was as the attractive woman who wears short skirts to court and wins at trial.

    What’s the HTML tag for *shudder*?

  9. I don’t see how that stunt would have won her any friends with the jury. If the jury didn’t believe the Smith’s killed their child, then that stunt would have infuriated them. If the jury was sufficiently convinced that the Smith killed their son, then its just in bad taste for the prosecutor. I don’t see how such unprofessional acts could have won any sway from the jury, but it does reveal a certain lack of decency on the part of the prosecutor, who should have been smacked down immediately regardless of whether the defense attorney objected or not.

    1. It’s an attempt to personalize the victim, to make jurors feel some sort of personal connection to the dead little kid (hey, we sing happy birthday to my son too!). It is, of course, completely without even a whiff of substance or relevance. Unfortunately that sort of strategy does seem to carry weight with some people.

      1. It’s the same reason why legislators come up with names like “Jane’s Law” for their shitty legislation.

      2. I sat on a jury in a civil matter that attempted to ply similar techniques. The plaintiff in the case was seriously injured in a crash. They really had no hope of proving that the company they were suing was responsible, particularly since she had a head injury and had no memory of the accident. But they spent the entire opening argument building sympathy for just how bad she had it. The opening argument lasted about 5 hours – pretty much exclusively covering what a sympathetic character she was.

        I guess the defense didn’t realize that I would never have allowed the jury to rule for the plaintiff unless the defense opening was complete horse manure, so they settled before we got to see the real evidence. But since the plaintiff didn’t even claim to have any evidence beyond “somebody saw a truck that might have had a red cab run her off the road”, i really doubt they could have proved their case. But they settled, so they must have thought that the jury was sympathetic to the poor old woman. (I was sympathetic to her plight, but that didn’t mean she had a case.)

        1. Yeah, but you could’ve helped her, dammit!

          Me, I’d probably end up getting slapped with contempt. I might get through about twenty minutes of that tripe before standing up and yelling, Get on with it!

    2. At trial it usually becomes a two-step process for the prosecution. 1) Show a crime was committed, then 2) the defendant on trial must have been the one that did it.

      Personalizing the victim in this manner makes it easier for the state to prove point 1, and with only one guy that the Almighty State has brought before them, they aren’t left with many options if they want to vote in a way that will provide “justice” and “closure” and “healing” for the victim’s family.

      It’s a ploy. It’s dangerous. It screws innocent folks. And it works, very, very well.

    3. See, that’s what the defense attorney thought. He thought it would turn off the jury, which is why he didn’t object.

      The higher court then decided that since the defense attorney actively chose not to object for tactical reasons (instead of failing to object because of incompetence), that it effectively waived the right to object and overturn the conviction.

  10. She should be disbarred for blatantly unethical and improper conduct unbecoming of any member of the bar association.

    So should the judge for allowing his courtroom to be turned into a TV circus.

  11. The judge let it happen because the defense attorney didn’t object.

    The judge can do any damn thing he wants in his courtroom. Its called sua sponte. Any judge who didn’t immediately stomp on a stunt like this, sua sponte, has no place on the bench.

    1. I’d be inclined to agree with you, but that’s the judge’s explanation.

  12. How appropriate – this Odom character and Nancy Grace, an authoritarian wet dream.

  13. In a case that I not been following in the least, we have a conviction in the murder of Chandra Levy. No, she’s not a famous astronomer, she’s the former girlfriend of congressman Gary Condit.

    In a twist that might seem familiar to regulars here, there’s absolutely no physical evidence in the case. Based solely on reading the single article, it appears that a jailhouse snitch is the key testimony against the illegal immigrant who had to listen to trial testimony via a translator. They also had the testimony of two female joggers that he attacked at about the time of the Levy disappearance.

    They also ran the prosecutor playbook of charging dozens of felonies for crimes they had no ability or intention to prove, winnowing it down to the core charge of murder in the end.

    I’m not saying he didn’t do it, but jailhouse snitches and “he attacked us, therefore he murdered some other girl!” testimony isn’t entirely convincing. Heck, maybe he did. But it is hard to see how you can get to “beyond a reasonable doubt” when you have nothing more than a snitch and a similar assault. How many people get mugged every year in that area? Is he on the hook for all of them now? Only if the victim is female?

    I guess most people are not as skeptical of jailhouse snitches as I and most Reason readers might be. And yes, I did click the link to the trial article because I recognized the name Chandra Levy. It was only later that I figured out that I was recognizing the names of astronomer David Levy and the Chandra X-Ray observatory.

  14. The folks over at The Volokh Conspiracy discussed this a week and a half ago.

    As a result, Radley’s posting wasn’t a kick in the nuts to me.

  15. The prejudicial effect of the “ceremony” with the cake and candles far outweighed any possible probative value it might arguably have had. Even the trial court judge, idiot though he seems to have been, could have seen that.

    This entirely inappropriate and unprofessional conduct, as stated by the appellate court, was intended to prejudice the jury and tended to prove nothing whatsoever. Before the legal profession entered Girly World, such conduct would surely have resulted in a mistrial and ethical discipline for the prosecutor.

  16. Somebody needs to send this article to the pages of the Atlanta Journal Constitution.

  17. The stunt was definitely in poor taste. The prosecutor should have been punished. Still some child killers got put away, so it wasn’t all bad.

  18. Official misconduct by both police and prosecutors represents the biggest threat to the administration of justice there is.

    This excellent piece points out the root of the problem. To whit: there are virtually no consequences for violations. We punish perjurers harshly on the principle that only a small fraction can be caught. Therefore, the penalties must be harsh enough to tip the risk/reward balance. Why does not the same principle apply on both sides of the bar?

  19. Eleanor Odom is married to Peter Odom, who is also an attorney. I think they have even prosecuted cases together. Anyone else think that’s inappropriate?

  20. I hate to play the Idiocracy card, but it’s the first thing I thought of when reading this. A show trial, flashy, purely emotion driven. This is your future, American.

  21. great article, and nice portal reference there. well paired.

  22. Eleanor Dixon-Odom, senior prosecutor in Cobb County, Ga
    Teaching the Courtroom a Thing or Two: Educator Turned Prosecutor Eleanor Dixon

    http://www.lawcrossing.com/art…..ing-or-two

  23. http://www.lawcrossing.com/art…..hing-or-to
    Interesting article on the prosecutor Eleanor (Dixon) Odom.
    “It says she is a fan of theater and performance. She likes to infuse her legal career with her interest in performing. She says the jury expects to be entertained.

  24. Obviously NONE OF YOU watched the case on Court TV, not even the author of this DISPICABLE article. The Defense DID OBJECT, but was over-ruled. Now wheather or not you agree with the judge is your opinion, but LAY-OFF the prosecutor. As for her acting for the cameras, NOTHING COULD BE FURTHER FROM THE TRUTH.

  25. Here it is in black and white:
    Eleanor (Dixon) Odom:
    Quote:
    “Odom is a fan of theater and performance. She likes to infuse her legal career with her interest in performing. In this electronic and media age that we live in, jurors expect to be entertained”. Unquote.
    http://www.lawcrossing.com/article/3672/ Teaching-the-Courtroom-a-thing-or-two

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