With the potentially record-breaking $2 billion sale of the Los Angeles Clippers hanging in the balance, the Sterling trial will focus on whether Donald Sterling’s estranged wife had the authority under terms of a family trust to unilaterally negotiate the deal.
With the potentially record-breaking $2 billion sale of the Los Angeles Clippers hanging in the balance, a trial beginning Monday will focus on whether Donald Sterling’s estranged wife had the authority under terms of a family trust to unilaterally negotiate the deal.
Shelly Sterling struck a deal to sell the Clippers to former Microsoft CEO Steve Ballmer after Donald Sterling’s racist remarks to a girlfriend were publicized and the NBA moved to oust him as team owner.
In order to do so, she had two doctors examine her 80-year-old husband and they declared him mentally incapacitated and unable to act as an administrator of The Sterling Family Trust, which owns the Clippers.
The terms of the trust say incapacitation can be determined by two licensed doctors without ties to the family who are specialists in their field. A trustee must cooperate with such exams.
The judge must find that Shelly Sterling acted in accordance with the trust and that the deal still applies — even though the trust has since been revoked by Donald Sterling — for the sale to proceed.
Donald Sterling’s attorneys say that his wife “blindsided” him and he submitted to examinations under false pretenses. They allege there was undue influence in the doctors’ findings, and that the exams and letters regarding his mental capacity were defective and incomplete.
They say that if he had been properly informed, he would have participated at a more convenient time instead of being pulled out of legal meetings.
“He would have also eaten properly and have been well rested for the examinations and focused on taking the exam with the full and complete understanding what it was for and the serious nature of the exam,” they wrote in filings.
But Shelly Sterling’s attorney, Pierce O’Donnell, said that Donald Sterling voluntarily went to take scans of his brain and there was no requirement to remind Donald Sterling, who is an attorney, or his legal team of the trust’s conditions.
The trial will also focus on the question of what happens to a deal that hasn’t been closed once a trust is revoked. Donald Sterling revoked the trust on June 9 — weeks after Shelly Sterling negotiated the deal with Ballmer.
Shelly Sterling’s attorneys also contend that finishing the deal is part of “winding down” the trust’s affairs and that she has an obligation to close or Ballmer will sue.
Donald Sterling’s attorneys argue that the probate court now lacks jurisdiction and that winding down affairs refers to passive actions, not a sale that markedly changes the assets in the trust and its value.
Donald Sterling’s attorneys made a late move last week to shift the case to federal court so their allegations of medical privacy violations in the probate case can be heard.
Attorneys for both Shelly Sterling and Ballmer called the filing a “desperate” tactic that they would seek to block.
On Sunday night, lawyers for Shelly Sterling and Balmer filed an emergency brief in federal court opposing Donald Sterling’s motion to remove the trial to federal jurisdiction. They argued that no federal issue has been raised by him and he waived his right to move the case when he participated in the probate case with numerous motions. They argued that Levanas should order the trial to go forward in probate court.
It was not immediately clear when a federal judge would rule on the filing or how it would affect the probate proceedings, but the trial remained on schedule to start Monday morning.
Whatever happens, timing is tight. NBA owners must approve what would be a record-breaking deal and are scheduled to meet July 15 to vote. The brief filed Sunday said any delay will deny Shelly Sterling the chance to close the deal with Balmer “without ever having had an opportunity for a hearing on the matter.”
That’s the same day Ballmer’s offer is set to expire — and there is no deal without the judge’s approval of the sale.
If the sale isn’t completed by Sept. 15, the league said it could seize the team and put it up for auction.
Dondald Sterling: A billionaire real estate mogul in Los Angeles, a former attorney, and the co-owner of the NBA franchise Los Angeles Clippers through a family trust. He purchased the Clippers in 1981 for $12.5 million, has owned the team for 33 years, and is the longest tenured owner in the NBA. In April 2014, audio tapes recorded in private were leaked to TMZ in which Donald can be heard making racist comments to a female companion. Days later NBA Commissioner Adam Silver condemned the comments, banned Donald Sterling from the NBA for life, fined him $2 million, and said he would try force a sale of the club. Donald and his attorneys claim that the NBA has no right to deprive him of his property for comments made in private and have vowed to fight any forced sale of the team. In May his wife, the co-trustee of the Sterling Family Trust, removed Donald as co-trustee for mental incapacity after a neurologist she hired determined that Donald Sterling suffered from Alzheimer’s. She then negotiated the $2 Billion sale of the Clippers to former Microsoft CEO Steve Ballmer without Donald Sterling’s consent. Attorneys for Donald Sterling dispute the finding of mental incapacity and are fighting his removal as co-trustee in Probate Court.
Rochelle “Shelly” Sterling: The wife is Donald Sterling and co-owner of the Los Angeles Clippers through a family trust. They have been married for 58-years, although Shelley reports that they are currently estranged and living in separate houses. The degree of their “estrangement” however has been the subject of some debate. In May Shelly removed Donald as co-trustee of the Sterling Family Trust, which owns the Los Angeles Clippers, after mental evaluations performed on Donald revealed that he suffered from Alzheimer’s. She argues that this determination allowed her to independently negotiate the $2 Billion sale of the Clippers to former Microsoft CEO Steve Ballmer.
Steve Ballmer: Former Microsoft CEO with personal wealth estimated at over $20 Billion. Ballmer retired as CEO of Microsoft in February 2014, but remains on the Board of Directors. He negotiated a deal with Shelley Sterling to purchase the Los Angeles Clippers for over $2 Billion. The deal is set to expire July 15 if a Judge does not approve the sale. There are reports that the expiration date can be extended for an additional 30-days if necessary.
V Stiviano: Former employee and female companion of Donald Sterling who recorded private conversations with her employer in which Donald Sterling can be heard making racist comments about African-Americans, and asking Stiviano not to bring them to his Clippers games. The tapes were released by TMZ which created a public firestorm, and days later NBA Commissioner Adam Silver condemned the comments, banned Donald Sterling from the NBA for life, fined him $2 million, and said he would try force a sale of the club.
Gary Ruttenberg: Donald Sterling’s Probate Lawyer
Bobby Samini: Attorney for Donald Sterling
Pierce O’Donnell: Shelly Sterling’s lead Probate Lawyer
Judge Michael Levanas: Probate judge hearing the Sterling matter
Dr. Meril Sue Platzer: A neurologist hired by Shelly Sterling to evaluate Donald Sterling to determine his competency under the terms of the trust. She testified in court that Donald Sterling likely has Alzheimer’s disease and that her diagnosis was based on imaging tests and a two-hour interview at his home in Beverly Hills on May 19 with his wife and an attorney present. She said she wasn’t told that her evaluation was in connection with the Clippers sale “After it was over,” she said. “I told him and Mrs. Sterling that he probably has Alzheimer’s.” “What was his reaction?” asked Pierce O’Donnell, an attorney for Sterling’s wife.
“I’m hungry. I want to eat,” Platzer said.
Judge Keeps Sterling Case In State Court
Sterling Testifies In Los Angeles Clippers Trial
Donald Sterling And Dr. Meril Platzer – Voicemail
Donald Sterling And Dr. James Spar – Voicemail
Exclusive Interview With V. Stiviano’s Criminal Defense Attorney
Pre-trial commentary: The biggest hurdle for the prosecution at trial will be proving the quality and reliability of their forensics. Since most of the physical evidence in their case relies on Savio’s exhumed body, the defense would be wise to challenge the reliability of signs of trauma on a long-dead body. Another strong defense strategy would be drawing attention to the media witch hunt aspect of the prosecution — that the media basically swooped in, hired their own experts and redid the investigation after the state of Illinois had absolved Peterson of wrongdoing in Savio’s death.
The defense has many more problems to overcome, most notably Drew’s Law, a 2008 law passed by Illinois voters in reaction to this case. Normally, hearsay testimony (statements made by someone who is not testifying under oath, think of the old telephone game from elementary school) cannot be used at trial because the person testifying does not have first hand knowledge of that fact.
However, Illinois voters thought it was important to allow statements made by missing witness Stacy Peterson into evidence in this case, so they carved out an exception to criminal jurisprudence especially for this case and others like it.
Due to Drew’s Law, lawyers on both sides of this case have been engaged in prolific litigation, arguing about which of Stacy’s statements the court will permit the jury to hear at the eventual trial, even though Stacy herself will in all likelihood not be around to speak for herself.
Since using hearsay evidence is rare for a criminal trial, the attorneys for both parties are going over their evidence with a fine-tooth comb, trying to figure out exactly what they will be able to use. Each item needs to be approved by the judge beforehand.
Recently, the judge looked at three requests. The first is to allow Stacy Peterson’s pastor to testify as to statements Stacy made to him, the second is for Kathleen Savio’s divorce lawyer to testify as to conversations with his client, and the third is to admit tape recorded interviews Peterson conducted during the media blitz surrounding Stacy’s initial disappearance.
The judge ruled that if the prosecution can lay a valid foundation, that is, show the court that the statements are relevant, complete, coherent and from a valid source of information, the prosecution may admit testimony from the divorce lawyer and the pastor.
The pastor will testify that Stacy told him she saw Peterson carrying a bag of women’s clothing the night Kathleen Savio was found dead. To back up this statement, the pastor will need to be as specific as possible and include corroborating information such as times, dates and how precisely Stacy was able to see Drew with the bag.
Savio’s divorce lawyer will testify that Savio told him she feared Peterson would kill her. He will be rigorously questioned by the judge before he takes the stand, however, as to any other comments she may have made to him and what the context of those comments was.
However, the judge found that the interviews Peterson did with various media outlets were not admissible because they are so inflammatory that they would prejudice Peterson negatively. He also will not permit the actual bathtub in which Savio allegedly drowned to be dragged into court, probably to maintain court order and keep the trial from becoming too much of a spectacle.
Because of these complex evidentiary issues, this is one case that our legal analysts are watching very closely. As the trial date fast approaches, keep checking in for the latest updates.
July 29, 2012: As the trial date approaches, the judge has reserved his ruling on a few outstanding hearsay issues. It’s possible that he is waiting for trial to begin before he rules on whether or not certain people will be permitted to testify so he does not send the case back to the Court of Appeal for months to come. After all the delay in this case, he may be making a decision based on what will move the case along most quickly. This could point to a decision he knows will be unpopular or controversial, as it will effectively lock the parties into trial no matter what his decision is. It’s tough for a trial lawyer to build his case when he does not know which evidence will come in yet, but it’s something the veteran lawyers in this case should be able to negotiate with ease — if they can set aside the inevitable bickering.
August 20, 2012: Peterson’s defense team has withdrawn their request for a mistrial. There’s only one way to interpret this: They think they have an acquittal in the bag.
Prosecutors got off to a rocky start in this trial by referring to evidence that the judge had ruled improper to bring up at trial. After a number of admonishments by the judge, the defense team asked for a mistrial. The judge declined to grant the mistrial, the prosecution went on with its case, and after a few more days of prosecution blunders, the defense decided they didn’t need a mistrial after all.
With virtually no physical evidence to go on, the prosecution is grasping at straws to prove that Peterson killed his third wife, Kathleen Savio. And although circumstantial evidence can sometimes lead to a conviction, it’s not at all a sure thing.
Judge Burmila has refused to let a number of prosecution witnesses testify, believing that the witness’ testimony would be hearsay and thus inadmissible at trial. Every time the judge dismisses a prosecution witness, the jury loses faith in the prosecution’s case.
It’s a gold mine for Peterson and his flamboyant defense team, as long as they make good use of it when it’s their turn to present their case.
August 23, 2012: As Peterson’s trial moves into its fourth week, there’s no other way to put this: it’s become a slog.
On Tuesday, defense attorney Darryl Goldberg, whose wife and parents were watching from the audience, delivered an excruciating 4-hour cross examination of a forensic pathologist. No stone was too insignificant to go unturned. No detail could be left alone. He examined every second of her testimony with razor-like precision in what I’m sure he thought was a masterful afternoon of lawyering.
The jury of course, was bored to tears. And they found themselves staying past six yet another night.
The jury is going to become a problem, and quickly, if both sides don’t wrap things up soon. School is starting again and at least one juror is due back in college soon. Parents of school-age children need to be available to pick up and drop off their children, to go to Back-to School Nights and pack lunches. None of this can happen if they are stuck in the never-ending trial.
Judge Burmila has even said that he will schedule Saturday trial dates if he needs to. Can you think of anything less appealing than serving your civic duty on THIS jury?
At this point, the jury probably hates all of the lawyers so much that they will convict anything that moves.
September 4, 2012: “It is clear that this man killed Kathleen Savio,” began the state’s attorney, Chris Koch, during today’s closing argument.
Well, Mr. Koch, you can raise your voice and point your finger all you want, but no amount of Perry Mason zeal is going to produce physical evidence against Drew Peterson.
Every time our intrepid reporter, Joseph Hosey, checks in with us at the Wild About Trial offices, he regales us with stories of the courtroom theatrics from both sides of the courtroom — and even from the judge! Closing statements in this trial are no exception.
Even better than Koch’s fierce “this man killed Kathleen Savio,” was defense attorney Joe Lopez’s comment to the jurors that each of them must have a voice whispering in his or her ear that Peterson is innocent. It’s certainly true that jurors must presume Peterson is innocent unless they find beyond a reasonable doubt that he killed Savio, but the image of Drew Peterson wearing wings and a halo and whispering to each juror “I’m innocent!” is pretty funny.
Lopez sealed the deal with this gem: “The framers of the Constitution would barf on this evidence,” referring to all the circumstantial and hearsay evidence submitted to the jury to convict Peterson.
Entertaining courtroom antics aside, it’s hard to know how the jury will decide. The fact that they have been empaneled for 25 solid days is significant, because at this point they are annoyed and looking for someone to blame. That person might be Peterson, but it may also be the prosecutors.
Either way, they will probably decide the case quickly, just because so many of them want to put this case to rest. It is hard to imagine jury deliberations stretching longer than a day, despite the quantity of evidence that was presented at trial.
Ultimately, we at WAT think that the prosecution did not prove their case. We think they showed that Peterson was a suspicious guy who said and did some stupid, and potentially incriminating, things, but we don’t think that the prosecution proved beyond a reasonable doubt that Savio was killed by Peterson. But it remains to be seen what the jury will decide.
September 6, 2012: Guilty! Wow. We at Wild About Trial were split down the middle as to how this would come out, but after 14 hours of deliberation, the jury convicted Peterson of Kathleen Savio’s murder.
What a roller coaster this trial has been. Some of us felt sure that the lack of any real physical evidence would acquit Peterson, but other lawyers on the WAT staff put it this way: “If it looks like a duck, walks like a duck and talks like a duck, it’s a duck.” Apparently the jurors agreed: Savio’s death and Peterson’s response to it were suspicious enough to convict.
It seems like the jurors were also split for a long time. At one point they asked “what does unanimous mean?” Defense lawyers commented that that question means there was going to be a hung jury. Eventually, of course, the jurors managed to agree.
It was a long, crazy trial. There was infighting between the judge and the prosecutor, a mistrial was nearly declared for prosecutorial misconduct and the defense team was as flamboyant as a television show. The jury had a tough job, not just to determine Peterson’s guilt or innocence, but to look beyond the courtroom and the media circus and focus on the cold, hard facts of the case.
Peterson is facing up to 60 years in custody and will surely spend the rest of his life in prison.