As Linda Fairstein’s newest book hits the shelves, Lesley sits down to talk about her inspiration, the latest true crimes and what it was like pre-DNA testing. Read on …
Editor’s Note: Linda Fairstein, America’s foremost legal expert on crimes of sexual assault and domestic violence, led the Sex Crime Unit of the District Attorney’s office in Manhattan for 25 years. A Fellow at the American College of Trial Lawyers, she is a graduate of Vassar College and the University of Virginia School of Law. Her bestselling crime novels have been translated into more than a dozen languages. Her nonfiction book, Sexual Violence, was a New York Times Notable Book of the Year. Her newest novel, just out this month, is Lethal Legacy. She lives with her husband in Manhattan and on Martha’s Vineyard. For more information visit her website at www.lindafairstein.com.
LESLEY STAHL: Linda Fairstein, thank you so much for joining us! Of course I want to discuss your new book, Lethal Legacy , which came out this week and is part of your Alexandra Cooper mystery series. What number is this one?
LINDA FAIRSTEIN: This is the eleventh one. And thank you, I’m thrilled to be on wOw. I’ve been reading you from day one and you are among my favorite women in the world so it’s a thrill to be with you.
LESLEY: It’s mutual. Before we get to the book, which is wonderful, I want to ask you about two cases that are headlines this week. One is in Orlando, FL, where there’s been a memorial service for little Caylee Marie Anthony, the little two-year-old girl who was murdered. Her mother, Casey, has been charged with first-degree murder. I know you’ve looked at this a little bit. What are some of the problems that the prosecutors are facing in that case? I gather that it’s not open and shut.
LINDA: It’s not open and shut. And I have to say I applaud them for how assiduously they have avoided leaking the information down there. One of the challenges with the case is that the child went missing last August and her body was only found about six weeks ago, in a park close her home. So, first you have the forensic problem. The body was exposed to the elements for months and, because of that, we may never have a way to know how the child died. That’s always a problem for the prosecutor. Presumably she was murdered, and the assumption is that the mother was the primary actor in this, whether or not she acted alone, or with a friend. So everybody’s been waiting for the autopsy results that will tell us what kind of case they have.
LESLEY: I watch this TV show called “Bones,” and they can get anything off of anything. And you’re suggesting that’s not so true.
LINDA: No, it’s true. They can do the identification of the body from the bones. But if, for example, Caylee was bludgeoned to death and the instrument struck through to the bone, the bone absolutely will tell us a lot. It’s what we call soft tissue damage. If, however, the girl were strangled, that would only show on the flesh. If that flesh has decayed away – well, we may not know what the mechanism of her death was.
LESLEY: So how will they get this woman, if she did it?
LINDA: Well, a variety of ways. They now have gone through the house meticulously and there may be forensic evidence and findings there. They will also be looking at the mother’s conduct. It may be an entirely circumstantial case. And circumstantial cases can sometimes be better because you don’t have witnesses who can be cross-examined and can lie on the witness stand.
LESLEY: I see.
LINDA: Here’s a case where this mother did not report her own baby missing for weeks. Her conduct during those weeks will be studied intensively to see what she did, who she was calling. They can probably narrow it to a period of 24 hours when the child disappeared. Who did the mother call during that time? We forget often those things leave a permanent record, so the entire scenario can be reconstructed by electronic forensics. Also, we don’t know if the mother made admissions to any of her friends. Did she call somebody and ask for help? Who are the people she spoke to? Again, those people may have come forward and cooperated with the police, which happens more when kids are involved than when adults disappear. I am optimistic that a good investigation can get enough to go into court.
LESLEY: Now, let me ask you about another high-profile case involving the singer Chris Brown. He’s one of the biggest-selling singers today. He was arrested over the weekend, charged with threatening his girlfriend, popstar Rihanna. Now the police statement says that the woman involved suffered visible injuries, and yet he’s charged with threatening his girlfriend. In an interview the other day, I heard you say that it’s very possible that the girlfriend will not pursue the case, but the prosecutor can still go after him. So two questions: How can they do that without the victim? And, also, why is he just charged with threatening? Is threatening a big crime?
LINDA: Threatening is not a big crime. It’s called menacing in some states. Menacing in New York is not even a misdemeanor; it’s a violation. It’s not even called a crime. I’m guessing now that Rihanna, his girlfriend of a year, also a successful singer, may not have pressed charges initially. The police responded to the car — this dispute happened in a car — and she was taken to a hospital and people saw her with injuries and she was treated.
So the first issue is, if she did not make a statement that he assaulted her, that’s why he’s charged with threatening her. Unlike prosecuting a stranger, people are ambivalent when an assault happens in a loving relationship. The classic scenario in a domestic violence case is that the victim returns to the offender and continues the relationship —Nicole Simpson being the most obvious example. It starts with verbal abuse, escalates to minor physical assault and then to more major physical assault.
LESLEY: And these women don’t come forward …
LINDA: And they often go back to the offender thinking it’s going to work out or that they don’t have the resources to leave. And it continues to escalate. Investigators refer to that as an elopement – it usually takes six or seven elopements, or attempts to leave, before she or he’s successful or, in the tragic cases, killed. Nicole Simpson had called 9-1-1 repeatedly and often told the police to go away, she’d be OK.
LINDA: With regard to Rihanna, she may not have said at the time of the police report that he had assaulted her. So figuring that out and whether she’ll cooperate is something else. The second question you asked is a wonderful question. It used to be that if a victim withdrew, we had no way to move forward with such cases. Prosecutors around the country — and the prosecutor’s office in San Diego really pioneered this — looked for ways to prosecute if victims withdrew. And, to solve that, prosecutors made them police cases. They would change the laws to make officials testify on the victim’s original complaint. The outcry of “My husband beat me” and medical evidence became central to these cases. Even if the victim was living with him again at that time many of these cases were viable.
This case is an example of one, I think, that could be prosecuted anywhere if a crime did, in fact, occur. While most domestic violence goes on behind closed doors in the privacy of people’s homes, this could be an example where this young couple left a party, lots of people saw them together. She was unscathed, she looked beautiful, there wasn’t a mark on her when she left the party and got in his car. And a very short time later police responded to the car and apparently found her bruised and bleeding. He actually fled the scene, but he turned himself in later.
I’d like to think she’d cooperate with the authorities. But either way, the fact is that you have witnesses who saw her before she got in the car, you’ve got the police who respond and find her not very long after in bad condition and you’ve got the medical evidence of what her condition was. So this is a case that could be prosecuted, whether or not she chooses to.
LESLEY: I see. Now, let’s discuss your book, Lethal Legacy. The protagonist, Alexandra Cooper, is a prosecutor in New York. I think people who read you religiously know this but maybe everybody else doesn’t, but she’s basically you. In real life, you were a prosecutor for years and head of the sex-crime unit in the DA’s office in New York. The reason I love these books so much is the authenticity that you bring not just to her, your main character, but also to the crimes. It’s become your trademark.
LINDA: Thank you. It has. I really felt that it’s a very crowded genre. And I did thinkI could bring a bit of authenticity. As you know, I started in the Manhattan DA’s office in 1972, so the professional parts of Alex Cooper are entirely drawn from that career and all I learned of the forensic work that wasn’t possible in the ’70s. With regard to her personal side, I get to live out many of my fantasies. She’s aging slowly so she’s still only 38; the fans remember when she was 36.
LESLEY: She was 36 eleven years ago and she’s 38 now? Talk about a fantasy.
LINDA: A complete fantasy. And so I get to give her a wonderful love life. There’s a lot of sexual tension between her and the detective, Mike Chapman. Alex echoed a lot of my favorite personal traits and is obviously my favored character, but I think Mike Chapman may be why many women follow the series.
LESLEY: Do you base all these books on actual crimes that you either covered yourself or that you knew about?
LINDA: I don’t, but I do offer a “what if” of crimes that interest me. For example, this book begins with a guy who sets fire outside a woman’s apartment door as a rouse to get in. The 30 years that I worked in the office, I never had a case like that. Shortly after I left, there was a very high-profile case in New York, a guy named Peter Bronstein, who had been stalking a woman and, this was his way of getting in the apartment. It fascinated me because what woman wouldn’t open her door if she thought there was a fire in the hallway and a fireman was there to help her? Although, the book’s plot is not at all related to that crime, in the stalking sense. My criminal wants to get in for an entirely different reason, but I liked the technique. I’ve never, in any of these books, written a story about a real crime that I prosecuted.
LESLEY: This book takes place in the New York public library. When I read it I thought, “I’m in the stacks, I’m in this room where they try to do the restoring of the old books.” Without giving it away, wasn’t this based on not a murder, as happens in your book, but on crimes of stealing things from the library?
LINDA: Yes. And it gives nothing away. We go into this world because two things happen: In 1974, before sex crimes became my specialty, when I was a very young prosecutor, I was fascinated with a case about a man named Victor Philips who had gone from Seattle clear across the country stealing books from libraries. And when he was arrested in New York, the police found in his apartment hundreds of boxes of stolen books from libraries. Rare books, of course, most of them with beautiful plates, photographs, paintings and drawings in them. And he was at the front of what was to become a big business then, slicing out those plates, completely destroying the books, and selling the plates for thousands of dollars in rare print shops.
LESLEY: I remember this.
LINDA: And then, enough of this was going on that there were some laws introduced. It became a federal crime, because his punishment was like a slap on the hand.
LESLEY: But didn’t he actually cut things out of books?
LINDA: Well, there was a more recent case, about three years ago that involved a man named Forbes Smiley. Smiley took it even one notch further. He was so well-respected as a collector and a dealer that he would go, for example, to the great New York public library and have complete access. He’d say, “Well, I have the Justin Feldman collection of rare maps and I can introduce you to him so he’ll donate it to the library.” And the library went berserk and invited Mr. Smiley into their archives. And then they’d leave him alone in rooms with these fabulously rare books. His crime was smarter than stealing the books, because nobody knew anything was missing. He took an X-acto knife and slit rare maps, rare prints out of the books, and would fold them up and put them in his sleeve and leave. One day he was at the Beinecke rare books library in New Haven, and his knife fell to the floor and a security guard heard the metal clatter. You’re supposed to be in those rooms with no writing materials, with white cotton gloves on so you don’t deface the books, and here’s this metal knife dropping to the floor. And that’s how Smiley was caught. And when the investigators went back to the New York Public Library, they went to every book he had ever had access to and found that millions of dollars of plates had been cut out of these books. He virtually destroyed the books.
LESLEY: Wow! Well this is swirling through your book, all of this. Now, I want to ask some questions about you, because when you started out in the prosecutor’s office in New York, you said 30 years ago — more than 30 years ago — it was really the dark ages in terms of forensics, in terms of the rape laws and in terms of women like you being allowed to handle some of these gritty cases. First off, with regard to women not being allowed to handle these cases, did they think that we were just too delicate, weren’t smart enough, weren’t tough enough? Why couldn’t women handle these cases?
LINDA: Well, when I got out of law school in 1972,there were very few women in the legal profession. And even a smaller proportion in prosecution. If you go back and look at not only the laws, women were excluded from jury duty in every state in this country just because they were women. And, yes, it was because they were deemed for centuries too delicate to be exposed to these awful criminal justice issues. Frank Hogan was the great DA in New York who hired me, said to me in the interview that he just didn’t think the office was an appropriate workplace for women. He’d been forced to open the doors, taking one woman a year, but really thought we belonged in the law library. It was fine to do legal research, it was fine to argue appellate cases without dealing with defendants, where you’re not in front of a jury and you’re not with the bad guys. And his attitude was very hard to change. LESLEY: I can imagine.
LINDA: So I got my feet wet. I went to that office not expecting to end up trying violent crimes. There was no sex-crimes unit in any prosecutor’s office, nor any police department in the U.S. of A. It was an entirely new field because the laws were archaic; they were adapted from British common law. The most famous quote was delivered by the Lord Chief Justice of the Kings Court, who said, “Because rape is a crime that’s easy for a woman to charge and hard for a man to defend against (because it’s so inflammatory), there needs to be more evidence than the woman’s word.”
LESLEY: Wait a minute, more evidence than her word? But this is before DNA, obviously?
LINDA: This was 1672.
LESLEY: Sixteen seventy-two! So what evidence could there be?
LINDA: Very little. The U.S. codified something that came to be known as the corroboration requirement. It defined in New York, as in most states, exactly what elements of the crime had to be independently proven. So start with identification. The woman who was reporting the crime could not go to a lineup and just say, “Yes, I saw the man for eight minutes and he looked like this and he’s No. 5.” There had to be someone else who had seen the attacker going to the crime scene or leaving the crime scene.
LESLEY: There had to be a third person to corroborate?
LINDA: Yes, there had to be an eyewitness.
LESLEY: How many people did they ever prosecute?
LINDA: In New York, the year that I came to the office, the Times had one of its first articles about sexual assault, because the mainstream media rarely wrote about it at that point. The story revealed there were more than 1,000 men arrested in New York City for rape; 18 were convicted. So we were not losing the cases, they just weren’t being taken into court. We weren’t allowed to go to court. In 1973, when I began to handle my first pretrial rape investigations, I’d meet young women every bit as credible as you, but would have to send them home. Someone else hadn’t proved the identification or there wasn’t a medical exam that proved that a sexual act had occurred. Again, this was pre-DNA.
LESLEY: what did you have?
LINDA: We didn’t even have evidence collection kits. Those were created in the ’70s. So most of the time we’d get calls from hospitals saying, “We have a woman here who says she’s been raped. What do we do? How do we examine her? What do we do if we find something of value?”
LESLEY: Oh my God. Well, what could you tell them? Nothing?
LINDA: They could actually do blood group types, but that was much more primitive than DNA and could only say “this man is in the realm of possibility.” And, of course, many hospitals just never bothered to do that. They were treating the external wounds or were comforting the victim. In the first ten years of my career, I spent so much time in hospitals training doctors and nurses how to do medical exams. And one of the most shocking things about that was that in most ERs, the response you got was, “This is not our issue. We’re an emergency room and we’re here to save lives.” So triaging the rape victim, they’d wait six to eight hours in an ER because their assault was over, their life was no longer in danger at that point.
LESLEY: Isn’t this astonishing that this was in our lifetime?
LINDA: Absolutely. Young prosecutors, who I train, are so spoiled by what’s possible now and what’s been possible for the last 15 years. It’s ancient history for me to stand in the room explaining that this was how the practice of law was when I got there. This is not my grandmother’s story. It’s my story.
LESLEY: What is so wonderful about DNA is that it not only catches the bad guys, but it exonerates the people who’ve been falsely accused, and we’re finding out that there’s quite a bit of that going on.
LINDA: A shocking amount. And good prosecutors knew that all along. My first introduction to DNA was in 1986, and I was one of the first five prosecutors in the country to use it. The first time I tried to use it in a courtroom, I had a three-week hearing and the judge’s ruling, in 1987, was that DNA was way too revolutionary a science and therefore unreliable. DNA was not accepted in any court in American until 1989.
LESLEY: Nineteen eighty-nine?
LINDA: For those first three years we used it in our office, we could exonerate people with it, but we could never use it to introduce to the jury and prove it. I could let the guy out of jail while we investigated, I could exonerate the minute we got no match, but I could never tell a jury that, “Yes, this case does match.” It was very frustrating.
LESLEY: Well, as everybody can clearly see, Linda Fairstein knows her crime. Her new book is out, Lethal Legacy. I read it and loved it. Her characters pop off the page. The crime is ingenious; the dialogue is fast and funny. There’s even a little sex. Congratulations on No. 11. Are you going on a big book tour?
LINDA: I’m starting right this minute and will be heading out West this week. I’ve got my own website, lindafairstein.com, and all my tour sites are listed there. I hope some of your readers will come talk to me.
LESLEY: Well, I thank you. wOw thanks you. I know you squeezed this in on your book tour and we appreciate it. Thank you.
LINDA: Thank you so much, Lesley, and I’m thrilled to be on wOw.