Trial by Ambush: Murder, Injustice, and the Truth about the Case of Barbara Graham

by Marcia Clark

She wasn’t a paranoid safety freak. She was just security conscious.

Societal mores dictated that a woman in her position should look demure, pure, and timid. Dress like a librarian, lose the makeup, and soften the expression. Barbara did none of the above.

But I learned a big lesson that day: no matter how mundane the hearing or how small my reaction, every move would get noticed—and graded.

It was the ’50s; everyone knew how a woman was supposed to act.

It’s worth remembering that it only takes one holdout juror to cause a deadlock that ends in a mistrial.

Now prosecutors are always under pressure to win. It’s expected of them, and not just by the victim’s loved ones—by everyone. If a case has been filed, that should mean there’s proof beyond a reasonable doubt that the defendant is guilty.

In the closing arguments on that no-body homicide, the defense attorney had dramatically proclaimed that the jury couldn’t find his client guilty, because they’d never know whether the victim was really dead. Pointing to the courtroom door, he thundered, “The victim could walk through that door any minute!” The jury couldn’t help but slide a glance in that direction. As the story goes, Leavy acknowledged the dramatic moment on rebuttal, but said, “When defense counsel pointed to that door, I saw everyone in this courtroom turn to look. All except for one: the defendant.” Because he knew the victim was dead.

The fact that the press blithely overlooked all these warning signs to heap praise on an accomplice to a brutal murder is a testament to the dire consequences of groupthink, and a graphic example of what happens when everyone jumps aboard a train moving a hundred miles an hour down the wrong track.

Prosecutors are required to hand over discovery of all witness statements, including any statement by the defendant, well before trial. But back then, discovery in criminal cases was a matter of judicial discretion, meaning the trial judge had the right to decide whether and when the prosecution was required to show the defense what they had.

To deliberately hide any witness, let alone one of such critical importance, is a Constitutional violation of the right to a fair trial, the right to present a complete defense, and the right to the effective assistance of counsel. While the rules of criminal procedure back then were far more lenient for prosecutors, this was one violation that would never have been tolerated.

This societal acceptance of objectification created an atmosphere of competition. Women were expected to covet and fight for the title of prettiest in the room, and they largely internalized this misogynistic culture. So they were often the harshest critics of their own gender.

Lawyers—and particularly prosecutors—aren’t allowed to vouch for the credibility of witnesses. It implies that the prosecutor has secret knowledge that proves the witnesses’ honesty.

The jury is there to impose the moral perspective of the community based on the evidence that has been presented to them in a court of law. Not to take a prosecutor’s word for it based on some secret information supposedly known only to them.

As both a prosecutor and defense attorney, the one principle I’d held most dear was the right to a fair trial. There can be no justice without it. And a fair trial means the jury gets to know the unaltered truth, not the abridged version created by a prosecutor’s kaleidoscope twist that eliminates any evidence inconsistent with guilt.