04.23.09 7:44 AM ET
Deadly Good Looks?
Susan Boyle opened her mouth and forced the world to remember that looks are a poor indicator of either talent or character. When she made the sneers turn to cheers, it was a heartlifting moment, but it was also a moment of vindication. It was about justice. Someone of real merit got the recognition she deserved, even though she didn’t look like Paris or Britney. Oxygen-deprived at birth, confined to a small burg, her days wiled away as a caretaker—if she’d turned criminal to climb her way out of a life filled with obstacles, no one would have been shocked. Instead, this delightful, disarmingly genuine woman climbed up on that stage and turned the world into her cheerleader.
Lawyers can argue about almost anything. But there is one thing they all agree on: Having a good-looking client is half the battle—sometimes even more than half. When you start out with a clean-cut client who doesn’t fit the criminal mold, you’re way ahead of the game, because the jury only has to look at him to have doubts.
Philip Markoff, on the other hand, was born into a life of opportunity. He had access to good schools—the kind that offer membership on golf teams and bowling teams—he had no disability, and he didn’t have to care for ailing parents, so he made the honor society. He made it into medical school and was about to marry the girl he met while volunteering in the emergency room of a local hospital. His future was laid out for him like a fine linen tablecloth—smooth and wide open with possibilities. This is not the guy you expect to commit premeditated armed robbery of women who sell sex on Craigslist—gambling debts or not.
Accused of the robbery and brutal murder of Julissa Brisman, the robbery of another woman, and the attempted robbery of a third, the evidence amassed so far against Philip Markoff is damning. And it’s only getting worse. While at first it looked like a straight-up robbery, if the latest revelation is true, it’s a case that goes much higher on the sicko scale: The police have reportedly found underwear belonging to both Brisman and the other robbery victim in Markoff’s apartment. Law-enforcement sources said that he took them as souvenirs. You probably don’t need me to tell you that robbers aren’t generally big on souvenirs—unless you think your wallet and credit cards qualify as keepsakes. If all this pans out—and many of the sources so far are anonymous, so caveat emptor—the only thing that would be surprising is the announcement that there are no other victims. It’s Sociopath 101.
Underwear fetish aside, for all his med school smarts Markoff seems to have made dumb mistakes—like not realizing he’d be captured on surveillance cameras—that ultimately got him caught. But he also got some things painfully right. For instance, by targeting women who are prostituting themselves, he picked one of the safest and most common of targets. Hookers are unlikely to report a robbery because they didn’t come by their money legally in the first place. They’re also vulnerable—unless they’re lucky enough to have an understanding boyfriend stashed in the next room, like the third would-be victim did. And even if one of them did report him, how would she identify him? Markoff didn’t exactly run in the same circles as these women, and the odds were pretty slim that they’d wind up in his emergency room. He had no rapsheet, so it’s not like the cops would have his mugshot to put into a photo lineup to show any of the victims. And even if one of the women did manage to identify him, it’s his word—a medical student with barely a traffic ticket on his record—against hers, a hooker who advertises on Craigslist. Who’s the cop going to believe? The logic is as cunning as it is chilling.
His family, friends, and fiancée seem to be in varying stages of shell-shock, or denial. Although the evidence keeps piling up, they don’t believe any of it—at least that’s what we hear. And to tell you the truth, even if they did have inklings that there was something “off” about Markoff, I wouldn’t expect them to tell us so.
But in this constant, instant news era, it’s impossible to keep a lid on everyone who ever knew him, and so it was bound to happen that others would surface who did not have such a hard time believing Markoff did it. Tiffany Montgomery, Markoff’s former lab partner, said other students in that class had always thought he was “disturbed.” Montgomery, who presumably had the most contact with him, found his mood swings so troubling she considered reporting him as a suicide risk. The ink on that report was still fresh when another former Markoff study buddy, Morgan Houston, came forward to claim that Markoff pushed her against the wall and tried to kiss her after a night of drinking with friends. She was unable to get him to stop, so she was relieved when another male friend came and pulled Markoff away.
In my experience, if one or two such witnesses crawl out of the woodwork, there will likely be many more to come. And then this trickle will become a flow, and the flow will become a tidal wave that will bury any hope of a viable defense. Markoff defense attorney John Salsberg probably loves these two as much as Sarah Palin loves Darwin. If the defense is going to have any chance here, witnesses like Montgomery and Houston can’t keep popping up. This case isn’t likely to allow for a mental defense—there’s too much evidence of planning and premeditation. That means Salsberg will have to claim that someone else did it.
What the defense will really be relying on—and what the country has become riveted by—is the sheer unlikeliness of Markoff—the honor society, medical student, and husband-to-be—as a robber/murderer of prostitutes. The “look at my client, why would he do something like this?” defense. Lawyers can argue about almost anything. But there is one thing they all agree on: Having a good-looking client is half the battle—sometimes even more than half. When you start out with a clean-cut client who doesn’t fit the criminal mold, you’re way ahead of the game, because the jury only has to look at him to have doubts.
“The hardest thing about picking a jury is getting them to admit to their own biases. I’m not talking so much about the conscious biases—like hating the brussel sprouts—those you can deal with. I’m talking about the unconscious biases. The ones jurors don’t even know they have,” Peggy Garrity, a Los Angeles trial lawyer, tells me. “In the Markoff case, you’ve got a whale of an unconscious bias that says pretty boys don’t kill.” Garrity should know, she’s picked juries in high-profile celebrity cases, including Clint Eastwood's palimony suit. “Being famous is the ultimate pretty-boy defense, because you get the benefit no matter what you look like.”
Indeed. The examples spring immediately to mind. Like, if a pretty boy is accused of rape, the jury’s more likely to acquit—after all he doesn’t “need” (there are some dim bulbs who still think rape is about sex) to rape a girl. Remember William Kennedy Smith? And if he’s accused of murder, the jury finds it easier to believe his parents abused him. Remember the Menendez brothers? And here’s a twofer: If he raped and murdered a girl, the jury finds it easier to believe the sex was consensual and the killing was an accident that happened during the “rough sex” that she preferred. That was the case 23 years ago with the “Preppie Killer,” Robert Chambers.
The parallels between Chambers and the Markoff case are stunning. Smart, handsome, upwardly mobile 19-year-old Chambers strangled 18-year-old Jennifer Levin in New York’s Central Park after leaving a bar with her. Her clothes were up to her neck and waist, and claw marks were everywhere on her—and him. He told police that he had been attacked by a cat, before finally claiming that yes, he killed Levin, but it had been an accident during “rough sex,” which she had demanded and he had been the unwilling “victim” (even though he weighed twice as much as her). And for nine days, a jury actually deadlocked. The two sides wound up cutting a deal for manslaughter.
“The defense in this case will also get the benefit of another unconscious bias—the one that says the victims were ‘asking for it’ by putting the ads in Craigslist, and by their choice of profession,” says Garrity. “Fair or not, verdicts rise and fall on conscious and subconscious attitudes that have nothing to do with the evidence.”
Yeah, so I’ve heard.
These subconscious biases don’t just tilt verdicts, they tilt our world. It was subconscious bias that made the crowd snicker at Susan Boyle. And it’s what made the country gasp at the notion that an accomplished young medical student was a robber and murderer. But when we overcome those biases and see the truth, that’s what makes us do justice.
Marcia Clark, the former L.A. district attorney who prosecuted the O.J. Simpson murder case, has since served a regular legal television commentator. She has written a bestselling book, Without a Doubt, served as a columnist for Justice magazine and is finishing her debut crime novel.