A fair case for ‘The Staircase?’

The famed Jewish defense attorney David Rudolf, played by Jewish actor Michael Stuhlbarg, takes a shot at an HBO Max Series.

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Alan Zeitlin, JNS

(JNS) David Rudolf is one of the most heralded defense attorneys in America with numerous awards. More importantly, he says, is that he has helped fight for innocent people and tried to make sure that everyone gets a fair trial.

“That’s a central part of Jewish tradition and heritage to defend people and fight the abuse of power,” Rudolf told JNS by phone. The native of Hewlett on Long Island, N.Y., started out as a public defender in New York City, later moving to North Carolina to be the lawyer who gave you the most bang for your buck.

One shocking case Rudolf writes of in his jaw-dropping new book, American Injustice, is that of Dr. Ed Friedland, who police claimed murdered his wife. Friedland had an alibi; he went to work at the hospital in the morning. So there was a need to find out if the murder of Kim Thomas took place before 8:30 a.m. Rudolf was able to get hold of a tape recording where a medical examiner from New York could be heard telling police he couldn’t pin down the time of death to that exact interval of time, but he later testified that he could. Why would the police do this to Friedland?

“Confirmation bias and tunnel vision,” said Rudolf. “The husband is always the usual suspect. Ed was from the north. He was Jewish. He didn’t fit in one bit with the Charlotte police. They didn’t think he acted right … ”

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Rudolf rose to national fame defending Michael Peterson, who was accused of murdering his wife, Kathleen. The documentary “The Staircase,” which features a lot of Rudolf, won a Peabody Award, got rave reviews from The New York Times, and is showing on Netflix (for the record, it’s the most mind-bending, riveting and the best documentary I’ve ever seen). It served as a catalyst for the true-crime phenomenon in television. In the new HBO Max series of the same name, based on the documentary, Rudolf is played by Jewish actor Michael Stuhlbarg.

Basics of the case

In the beginning hours of Dec. 9, 2001, Michael Peterson, a novelist and newspaper columnist in Durham, N.C., made two 911 calls saying that his wife, Kathleen, fell down the stairs and asked for help. She had consumed wine and had taken a valium; her blood-alcohol content was later shown to be .07. Police on the scene didn’t believe that it was a fall due to the amount of blood they saw. In his 911 call, Peterson never mentioned blood, though he would later explain that in the shock of it, he was focusing on getting help. In court, a big question was: Could seven lacerations to the skull happen due to a fall, or would they have to be from a weapon that caused blunt trauma?

Rudolf dramatically pointed out that in the hundreds of cases where someone was killed by blunt-force trauma, there were skull fractures or major injuries to the brain, which were not found in this case. What weapon could be light enough to cause laceration but not cause a skull fracture? The prosecution believed it was a blow poke—a fireplace tool about 4 feet long and made of copper. Kathleen’s sister, Candace Zamperini, brought forth a blow poke, saying she gave one as a Christmas gift to several family members, including her sister.

Police said they couldn’t find it at the Peterson home. Prosecutor Jim Hardin said it was “mysteriously missing.” Suddenly, towards the end of the case, it was found in the garage covered in cobwebs, but no blood or dents. Rudolf said he thought it might be the “Perry Mason” moment. The prosecution argued that maybe it wasn’t the same one, that it was suspicious to have been found at such a late juncture in the case, and that a similar weapon could have been used.

The prosecution’s integral witness was Duane Deaver of the State Bureau of Investigation. His testimony clearly showed he was using junk science and on cross-examination, Deaver claimed textbooks and other experts were wrong, and he was right. He also admitted that his experiments using a blow poke to hit sponges filled with blood were done in a position he didn’t believe Peterson was in. He said under oath that Peterson swung a weapon “in space” and blood on the inside of his shorts proved that he was standing over his wife as she was struck. He also claimed to have worked 500 cases.

Strangely, Hudson allowed Deaver’s testimony even when Rudolf got him to admit that he’d done a special light test to detect blood spatter on Peterson’s shirt. It didn’t have spatter; that report conveniently never made it to the prosecution or the defense. All the children initially supported Peterson and felt he could not be a murderer, though Kathleen’s daughter, Caitlyn, changed her mind and believed Peterson did kill her mother. Kathleen’s sister’s also believed Peterson was a murderer. Emails were later discovered between Peterson and a gay escort. Though the two never met, the prosecution read sexually charged exchanges; in court, the escort said he was paid to do “everything under the sun.” Still, he added that in emails, Peterson made clear that he was happily married to his wife, Kathleen.

About that motive …

Rudolf argued that no motive existed and pointed out that nobody said a bad word about the couple’s marriage. The prosecution said that Peterson’s finances were in question, and he stood to benefit from a more than $1.2 million life-insurance policy on Kathleen. Would that have been enough? Likely not. The prosecution theorized that Kathleen saw an email or something on the computer that showed her husband was having a gay affair—or wanted to—and this snapped, and possibly threatened to leave him and he killed her. As she was the breadwinner, that could make sense, though it’s only a theory.

“There was no evidence that the computer was even on during the time she spoke with her co-worker for the meeting the next morning,” said Rudolf. “… It was totally made up.”

Second staircase?

Making things even crazier was the death of Peterson’s friend, Elizabeth Ratliff, in 1985 in Grafenhausen, Germany. Ratliff was found dead at the bottom of the staircase. The German medical team/police ruled that the death was due to a stroke/cerebral hemorrhage. Peterson was married to a woman named Patty at the time, who said a German examiner did a spinal tap and concluded the cause of death. Ratliff’s husband had died two years earlier.

Peterson would wind up raising the two Ratliff daughters, Margaret and Martha, as his own, who along with Peterson’s sons, Clayton and Todd, believed that he was not guilty. Ratliff’s body was exhumed with the consent of Margaret and Martha. Medical examiner Deborah Radisch concluded that Ratliff was the victim of blunt-force trauma, that it was a homicide, and that there were seven lacerations.

While the body was preserved due to it being embalmed, how Radisch’s findings could differ so much from the initial finding is mystifying.

Rudolf vs. Stuhlbarg

The two men spent time together with Stuhlbarg saying on an HBO podcast that Rudolf was kind and an open book. What does the attorney think of the performance of the actor?

“I think Michael was limited by the script,” said Rudolf. “I think he tried very hard to be respectful to what I did and how I did it. I think he did that to the extent that he could, but he’s limited by the words in the script. I don’t think the words in the script had very much edge or passion to them.”

He added that a scene where his character asks Radisch if she was coached by the district attorney was false and makes him look less professional.

On the same intriguing podcast, Stuhlbarg was asked what he thought of Peterson’s innocence or guilt, and he echoed a statement made by Rudolf in the documentary.

“I can only gather the facts that I have been privy to, and based on those facts, it seems to me that there was enough reasonable doubt to make it clear that they couldn’t call Michael guilty,” Stuhlbarg said on the podcast. “It isn’t innocent or guilty, it is proven or not proven, and I think that might serve us in future cases here as well and to perhaps put innocence or guilt aside. I think if we’re just supposed to base things on how a case is presented, then based on the case, it’s either yes or proved it or that you did not prove it. The burden is meant to be on the prosecution to prove their case, and in David’s opinion and in my opinion, they did not do that.”

Reaction to the conviction

Judge Orlando Hudson allowed the Germany evidence, the graphic sexual e-mails and Deaver’s testimony that was obviously flawed. Eventually, Peterson was convicted of first-degree murder of his wife. He was sentenced to life in prison with no chance of parole.

“I was flabbergasted,” said Rudolf. “Never in my wildest dreams, did I think we would have anything other than either a result of “not guilty” or a hung jury. It was mindboggling to me. I think Judge Hudson’s view was he’s gonna let everything in, and let the cross-examinations do whatever they’re gonna do and let the jury decide. I think that was his philosophy in 2002-03. By the time 2011 rolled around, he realized that might not have been the best philosophy.”

In additional episodes of the documentary—there were an initial eight followed by five more—Hudson makes a stunning admission that evidence of Ratliff was prejudicial and said even more.

“I thought that all the homosexual evidence, however it was used, would have been unduly prejudicial to the defense and probably should not have come into evidence,” said Hudson. “And I believe ultimately a fair and reasonable juror could make a different decision than was made by that first jury. I think I could have had a reasonable doubt.”

Asked about his feelings on Hudson’s concession, Rudolf told JNS he felt two ways.

“I had really mixed feelings about that,” he said. “On the one hand, I think it was courageous of him to admit he made mistakes in his rulings in 2003 and that he did have a reasonable doubt. On the other hand, I was enormously frustrated that he came to the wrong conclusion eight years earlier.”

Peterson spent about eight years in prison when it became clear that Deaver had perjured himself on the stand saying the number of cases he did was the hundreds when it was a handful.

Most damningly, based on his false testimony, a man named Greg Taylor spent 17 years in jail for a murder he didn’t commit. The only evidence linking him to the death of Jacquetta Thomas was a spot on his truck. It was found to be consistent with blood on an initial test, but a more thorough test showed it was not human blood. That test was never shown to the court; Deaver said not showing such a test was common SBI practice. Taylor was actually ruled “innocent” and released. Rudolf found that Deaver perjured himself by grossly inflating the number of cases he was on under oath. Hudson then ruled Peterson would be allowed a new trial. Deaver was fired.

Rudolf filed motions to suppress information that he felt wrongly appeared at the trial, so without Deaver’s testimony, and likely without the Germany evidence or computer pics (there was a ruling that the computer search was unconstitutional), the state would have had an uphill battle. At the same time, Peterson said he didn’t trust the system. Peterson walked free, agreeing to an Alford plea. He’d be a convicted felon but didn’t say he was guilty of murdering Kathleen and from time served, he’d no longer be in jail.

In a blistering attack, Candace Zamperini looks T Peterson in the court and calls it: “Alford Shmalford.”

Rudolf takes a shot at HBO Max

While the second episode features the scenario that Rudolf argued is plausible, where Kathleen slipped, fell on the stairs and hit her head, got up, and slipped and fell again, the fourth episode shows Colin Firth as Michael Peterson, killing his wife Kathleen (Toni Colette) by slamming her head against the stairs several times. This scenario was never argued by the prosecution, who said it was from being struck with an object-by the blow poke or something like it.

“Why should HBO care about the truth?” asked Rudolf. “I mean, they also totally slandered the director, Jean, claiming that he and Sophie had an agenda to make Michael’s appeal more probable. Completely false.”

The HBO Max series depicts Sophie Brunet (Juliette Binoche), who was an editor of the documentary, as working to make it more sympathetic to Peterson. It is true that Brunet eventually dated Peterson when he was released from prison and corresponded with letters while he was in prison. Brunet wrote to Vanity Fair, claiming that it had no impact on her work, based on the time she left, and she did not date him until she was finished with work in the initial set of episodes. Of the last five, she says she’d broken up with him by the last three

The Oscar-winning director Jean-Xavier de Lestrade told Vanity Fair he felt betrayed by HBO Max show creator Antonio Campos, saying “I understand if you dramatize. But when you attack the credibility of my work, that’s really not acceptable to me. It’s alleged that we cut the documentary series in a way to help Peterson’s appeal, which is not true.”

Rudolf told JNS he was upset that HBO Max’s mischaracterization could make people question the fairness of the documentary.

There are certainly a number of moments unflattering to Peterson, including when several people say they believe he is guilty. He at times comes off a bit arrogant, and there are some Freudian slips that are kept in. There’s also the lie that Peterson claimed that he was injured in Vietnam from the war when it was really due to a car accident.

The director of the documentary has also stated he’s not sure if Peterson was guilty or not guilty.

It is industry standard that dramatic shows can take creative license, use composite characters, and are not required to have every point be 100 percent factually accurate. But it is also true that suggestions can cast harmful aspersions. Interestingly, showrunner Maggie Cohn told ScreenRant: “We wanted to avoid fabricating any of the events leading up to the night of Kathleen Peterson’s death that would sway you in a direction of innocence or guilt. We didn’t want to, for example, create some sort of mishap that didn’t actually occur between Michael and Kathleen.”

So does this statement mean it was OK to fabricate on the night or after just not the one leading up to it?

Rudolf said he believes the jury’s verdict was a miscarriage of justice due to emotions.

“I think the appeals the prosecution made to prejudice and confirmation bias and homophobia coupled with Deaver’s testimony just became overwhelming,” he said. “I don’t know this for a fact because I never spoke to the jury. But I’ve gotta believe that some of them felt he got away with it in Germany and felt they weren’t going to let him quote ‘get away with it again.’ ”

An owl theory, advanced by former neighbor Larry Pollard suggests a bard owl, known to live in that area could have attacked Kathleen outside her home, and she could have been bleeding and then staggered into her home and also fallen. This seems like an absurd theory, though some of the marks to the eye look like a talon could make them; it could cause lacerations and not result in skull fractures, and microscopic owl feathers were found. It’s a wild theory. There have been cases of owl attacks against humans but no killings. When Rudolf became aware of this theory, it was around the time of his closing statement and too late to introduce evidence even if he wanted to.

In his book, Rudolf speaks not only about defending the falsely accused but trying to show humanity to those who are guilty. He met one such man when John Rook was on death row. Though the heinous murder the man committed was unforgivable, Rudolf noted that the 21-year-old had a life where he was poor, beaten by his father and used the floor for a toilet.

Rudolf told the man he had two hours to live, and Rook asked for 12 hot dogs and told Rudolf to imagine him pushing him in a Harley Davidson motorcycle and the exact moment of execution as Rudolf did not want to be in the witness room. What feeling did he have after this discussion?

“It is absolutely surreal,” explained Rudolf. “You’re sitting there. Normally, none of us know when this moment is going to come. But this guy has got two hours of notice. Put yourself in that place. Imagine if I told you at 6 p.m., you will be dead. Imagine what that would be like for you and your family. What was even more surreal was his idea of how we could be together, even though I did not want to be in the witness room. For someone who grew up as he did—who didn’t trust people, who was damaged goods in a lot of ways. For him to think about that to spare me the trauma of watching his execution but to enable him to feel like I was “with him’ was extraordinary.”

Only Michael Peterson knows if he murdered his wife or not. Despite some flaws, the HBO series is well-acted. Firth does a fine job at Peterson’s accent, and Sophie Turner of “Game of Thrones” fame turns in a solid performance, as does Jewish actress Parker Posey as the tough and Southern-accented prosecutor Freda Black. You should watch the documentary first, and if you wonder where the prosecution is after the first few episodes, it’s because they thought they’d be better served not to give access to the documentary crew.

Stuhlbarg, who famously played Jewish gangster Arnold Rothstein in HBO’s “Boardwalk Empire,” said defense attorneys who fight for years to try to free people they believe are wrongfully convicted are heroes. Does Rudolf consider himself a hero?

“No, that would be the height of hubris,” said Rudolf. “I consider myself someone who cares about justice and who stands up to the power of government when it’s exercised arbitrarily or unfairly. I consider myself someone who is willing to take a stand.”