Friday, December 7, 2001
Lawyers Argue Constitutionality of ‘Son of Sam’ Law Before S.C.
By KENNETH OFGANG, Staff Writer/Appellate Courts
The future of California’s “Son of Sam” law hangs in the balance after state Supreme Court justices gave little indication yesterday as to how they will rule in a convicted kidnapper’s challenge to its constitutionality.
The justices had numerous questions yesterday for Stephen Rohde of Century City’s Rohde & Victoroff and Richard B. Specter of Irvine’s Corbett & Steelman. Rohde’s client, Barry Keenan, sought review after Div. One of this district’s Court of Appeal upheld the law two years ago.
The law, Civil Code Sec. 2225, prevents a convicted criminal from profiting from the sale of literary or film rights to the story of his or her crime. Rohde—backed by trade associations of book and magazine publishers, a bookseller’s group, and the ACLU Foundation of Southern California—said the law violates the First Amendment and the analogous provision of the state Constitution.
Specter, whose position drew support from state Attorney General Bill Lockyer in an amicus brief, argued that the law is narrowly drawn and constitutional. He noted that it can only be applied to someone who suffered a felony conviction in California for conduct that could be the subject of an action for damages.
Rohde’s client, Barry Keenan, spent four years in prison after he and two co-defendants were convicted in 1964 of having kidnapped entertainer Frank Sinatra Jr. from a Lake Tahoe hotel. Specter, representing Sinatra, is seeking to grab Keenan’s share of a $1.5 million film deal—still in development—under Sec. 2225.
The law provides for the freezing of all proceeds due the subject from the sale of the story of his or her crime. Victims then have five years to sue for compensation, and any awards are paid out of the proceeds. Anything left over goes to the state crime victims fund.
Rohde was less than a minute into his argument before receiving a friendly question from Justice Joyce L. Kennard, who asked whether the law suffers from the same constitutional defects as the original Son of Sam law passed by New York state and declared unconstitutional by the U.S. Supreme Court 10 years ago.
That law, to which the media attached the nickname used by mass killer David Berkowitz during his 1977 murder spree, allowed a state board to seize proceeds paid to any person for any work of intellectual property mentioning that person’s involvement in a crime. In striking the law down, the high court noted that it applied even if the person had never been charged, and even if his or her involvement in the criminal episode was tangential to the work.
In striking down the law as an overbroad restriction on speech, the justices noted that a number of historical figures would have been subject to the law, including St. Augustine, who once wrote of having stolen some fruit in his youth.
Kennard asked Rohde about Sec. 2255’s definition of the felon’s “[s]tory” as “a depiction, portrayal, or reenactment of a felony” and not “a passing mention of the felony, as in a footnote or bibliography.”
That provision, Rohde postulated, was probably intended to immunize the statute from being struck down on the same grounds as the New York law, but actually made the California law worse. Under that definition, he explained, the law might apply to a work like “The Autobiography of Malcolm X,” which included a 17-page chapter on the religious leader’s earlier career as a small-time criminal in Omaha, Neb.
Kennard agreed, citing “Blind Ambition,” John Dean’s account of the Watergate scandal and his own involvement in it, and Patricia Hearst’s book about her kidnapping by, and subsequent involvement with, the Symbionese Liberation Army—including bank robberies for which she was convicted and served time in prison.
The law could also be applied to a book warning young people about the dangers of becoming involved in crime, Kennard said, since it probably wouldn’t reach the target without devoting some amount of space to a description of the crime.
The provision is so vague, Rohde agreed, that no one really knows what “passing mention” means. Kennard suggested the problem could be cured by requiring that the crime be the “predominant” subject of the work.
Rohde also seemed to draw support, to the surprise of some courtroom observers, from Justice Marvin Baxter. The conservative jurist suggested, and Rohde agreed, that the Legislature could have avoided the constitutional thicket by simply expanding the statute of limitations in actions by crime victims against perpetrators.
It seemed unfair, Baxter said, for the law to target gains from expressive activity while a felon who makes large sums of money from a business venture or investment need not compensate the victim.
Specter argued that the Supreme Court decision in Simon and Schuster v. New York Crime Victims Board stands for the proposition that “victims’ rights is a compelling interest.”
California’s law is narrower than the statute struck down in that case, he said, because it requires that the crime have been committed in this state, that it b a felony for which the defendant was convicted, and that it involve tortious conduct rather than a “victimless crime.”
The attorney took issue with Baxter’s suggestion that an expanded statute of limitations would be an adequate substitute for the Son of Sam law. It would “compel the victim to relive the crime” in the context of a lawsuit, deny a prejudgment remedy, and allow the felon to dispose of assets while the litigation was pending.
Besides, Specter argued, the focus of the law is on “taking away the profits from the crime” and not the broader goal of compensating victims.
While the justices’ questions focused solely on the First Amendment issues, Rohde used his rebuttal time to remind the justices that Keenan had also raised an ex post facto argument, contending that the law increases the punishment for a crime and cannot be applied to offenses that predated the law.
Copyright 2001, Metropolitan News Company