‘Sacred’ Last Words Become Groundbreaking Privacy Case
Posted on February 22, 2012 by Richard Pompelio
By CHRIS FRANCESCANI
ABC News Law & Justice Unit
March 7, 2007
Originally posted at http://abcnews.go.com/TheLaw/LegalCenter/story?id=2927722
No one else will ever again hear Paul Weinstein’s wife plead in vain for her life. And for that he’s deeply grateful.
The very private New Jersey man has been fighting for more than a decade to keep a secretly recorded tape of the last minutes of his murdered wife’s life from being released to the media.
It was 1996, when Kathleen Stanfield Weinstein was carjacked in a southern New Jersey parking lot. She managed to activate a tape recorder she was carrying and recorded 46 excruciating minutes of her pleas for her life before her attacker bound her hands and feet and smothered her.
Last week a judge ruled that the much-sought-after recording of the slain schoolteacher trying to talk her killer out of murdering her would not “under any circumstances” be released to the media.
The judge made the ruling after several news organizations, including The Associated Press, went to court to fight for the tape’s release. The judge did release a transcript of the recording.
Michael LeSane, 27, was convicted Wednesday of murder, kidnapping, robbery and carjacking. He could be sentenced to life in prison with no chance of parole before 60 years.
Closing arguments in the murder trial of his wife’s alleged killer begin this morning.
In his first-ever interview, Weinstein told ABC News’ Law & Justice Unit about the extraordinary measures he took to protect his son from hearing the tape.
“”Let’s face it. It’s a sensational story just the way it is. You can’t write a better script,” he said. “If there’s not enough for a regular story there, the media will go for the tape, and that is too much for me. I didn’t think anyone had the right to listen to what my poor wife went through in the last moments of her life,” he said. “How much more sacred could something be?”
“Don’t Break Your Mother’s Heart”
On March 14, 1996, Weinstein, a special education teacher, was on her way to take a test in southern New Jersey to become a school administrator. She’d been studying hard and recording notes on a microcassette recorder.
“She stopped to get a bite to eat,” her husband said.
That’s when police said LeSane abducted her from a Toms River, N.J., shopping center parking lot and forced her to drive to a wooded area nearby. He was to turn 17 the next day and later said he wanted her car as a birthday present to himself.
For most of the heartbreaking 46-minute tape, the schoolteacher appears calm and seeks repeatedly to reassure her captor that there is a way out.
“You sound like a person who could go somewhere and really make something of himself,” Weinstein said, according to a transcript of the tape.
Later, she appealed to her abductor as a mother.
“I’m thinking about my little 6-year-old, and I want to go home to him,” she said.
“I’ve spent my whole life to have my little boy,” she said tearfully. “Don’t break your mother’s heart. I have a son, and I know what it’s like.”
Police say she was so composed during the ordeal she was able to flip the tape and reinsert it into the recorder without her captor’s knowledge. The tape was found in her pocket when her body was discovered.
Creative Legal Maneuvering
With the same determination his wife showed in the car that day, Paul Weinstein went to extraordinary lengths to keep the tape from the media.
In a move that legal experts said is virtually unprecedented, Weinstein and New Jersey attorney Carmine Villani copyrighted the recording.
“It was right around the time of the O.J. Simpson trial, and that was one of the first kind of cases where you heard 911 calls being played to the media,” Villani said.
“At the time, Paul’s son was 6, and the horror of the whole concept of hearing this out loud … Paul wanted to make sure that we had control of it.
“It was Paul’s idea. His concept was, ‘I don’t want my son to ever hear this tape on the radio …’ so I said, ‘OK, what are we trying to protect here? It’s the tape. Maybe we can copyright it,” Villani said. “I couldn’t find any precedent for it. I couldn’t find any case law, so we just said ‘Let’s do it,’ and we filed for a copyright in January 1997.”
The move was prescient — apparently a copy of the tape was leaked, according to Villani.
“We were getting calls from every media organization you can think of. I was told by a major anchor for one of the major network news organizations that they were in possession of the tape, and they were going to play it [on air],” Villani said. “I told this person, ‘We have a copyright, and I am talking to you on the phone and I am telling you I will hold you personally responsible and I will hold your organization responsible.
“There I was — a 26-year-old lawyer — and I was telling this very respected anchor that I am going to sue him. It was all kind of surreal.”
Villani said that as pressure grew for release of the tape, he found himself becoming more and more emotionally invested in the protection of it.
“You’ve got to understand, Paul Weinstein is not a public person. He was not prepared for this kind of thing. Celebrities or politicians — they know how to deal with media attention. He’s just a husband whose wife was killed.”
“I know this tape is newsworthy, and I know it’s important,” Villani said. “But when does the right of media to sensationalize something override the rights of the family to their privacy?”
When they copyrighted the tape, “everybody looked at us kind of sideways, saying, ‘Oh look, the family’s going to profit off this,’ and I just said, ‘Let’s wait and see,'” Villani said.
For Weinstein, it was a particularly painful accusation.
“That was never, never our idea,” he said. “I turned down a book, an HBO special and every talk show you could ever imagine.”
“My son has never listened to [the tape],” Weinstein told ABC News. “He should listen to it — should he ever want to — before the world listens to it. It’s the last things my wife ever said to anybody, and out of respect for my wife we tried to keep it off of every station in the country.”
Weinstein and Villani were relieved when, in 1997, LeSane pled guilty to felony murder and was sentenced to life in prison. If there was no trial, the tape would not be submitted as evidence and become subject to public scrutiny.
But LeSane retracted his plea after an appellate panel of judges ruled in 2004 that he’d had ineffectual counsel when it was revealed that his mother had had a romantic relationship with his defense attorney. LeSane opted to go to trial.
Once they knew LeSane was going to trial, Villani and Weinstein allied themselves with Richard Pompelio, executive director of the New Jersey Crime Victims Law Center.
“When you crystallize it, it really comes down to the rights of privacy of the victim,” Pompelio told ABC News. “That what was said [on the tape] was so private to her husband and her son and that, on a scale, it clearly outweighed the right of the public, through the media, to know and hear all.”
Villani said he recognized the sensational nature of the tape.
“The idea of the media’s rights in a trial are based in the Constitution,” said Villani. “We don’t want criminal trials going on in backrooms. If you were on trial, you would want the world to know what was said and what evidence was submitted, and there’s some good legislative intent in allowing the media access to evidence in public trials.
“The copyright protection was less a denial of the right of everybody to use the tape than additional evidence of the family’s resolve to protect the privacy of the tape.”
The Public’s Rights
Legal experts say the judge’s Solomon-like decision to play the tape in court and release the transcript while refusing to release the tape itself is highly uncommon.
“The defendant is entitled to a fair and open public trial,” said veteran New York defense attorney Ronald Fischetti. “What does that mean in terms of evidence? Anything that is submitted into evidence is available to the public. And that does not mean the public sitting there [in court]. That means the general public.”
“I’ve never heard of a situation where the judge would play the tape in court and then not release the tape,” Fischetti said. “The only reasons I’ve ever seen to justify a situation like this is when the speaker on the tape is an undercover [police] officer whose identity being disclosed could be harmful to him or herself or to an investigation.”
And then there was the nightmare scenario that the defendant would claim partial copyright ownership of the tape.
“Tragic though it is … if you look at it technically, the killer has a copyright interest too,” said Mark Fischer, chairman of the copyright section of the intellectual property law firm Fish & Richardson.
“It’s entirely possible from a copyright perspective that the victim and the killer could share ownership of the tape. Some people would argue, which is sickening in a way, that [the tape] is a joint work that the interviewer and interviewee would own together. The laws aren’t clear in a situation like this.”
Thankfully, Weinstein said, the defendant didn’t take that legal route.
“That would have been even more painful,” he said.
But Weinstein and his legal allies — Villani, victim rights advocate Pompelio and Assistant Ocean County prosecutor Mark Roessler — worked feverishly to build the strongest arguments they could muster to keep the judge from releasing the tape to the media.
Lawyers for the Asbury Park Press, the Newark Star Ledger and The Associated Press argued last week in court that as evidence in a public trial the tape should be played aloud in court so everyone could hear it, and released to the media. They argued that restricting the tape amounted to suppression of evidence.
The Ocean County prosecutor’s office petitioned the judge to play the tape only for lawyers, court officials and the jury — which had been given headphones.
New Jersey Superior Court Judge James Citta decided to play the tape for the entire courtroom and released a transcript to the press.
But in the end he sided with Paul Weinstein.
“Under no circumstance with the tape be released to the public in any manner,” Citta ruled.
A “Big Deal”
“It was a victory,” said Villani. “It’s been a long time. It was a big deal. It may not seem like it, but it really was a big deal — to say that we were able to make sure that [Weinstein’s son] never heard that tape. That means a lot to me as a lawyer, and as a friend to Paul.
“With today’s technology, it would have been worse had it been released now than it would have been 10 years ago. Ten years ago, there was no YouTube.”
For Weinstein, the ruling finally put to rest his greatest fear since the death of his wife — that all his efforts would in the end fail to protect his son from inadvertently hearing the tape on television or the Internet or the radio.
And having grown admittedly cynical in the wake of the murder and 10 years spent fending off an aggressive press, he said the work of the attorneys involved in the case had renewed his badly shaken faith in humanity.
“You can’t put a price on what those guys did for me — the way they helped me protect my son,” he said. “You just can’t put a price on it.”
He told ABC News that he has access to a copy of the tape that recorded his wife’s final moments, and should his son ever want to hear it, he’ll be prepared to listen to the tape with the young man in an environment he can control.
“As a father, I just wanted to protect my son.”
‘To Her, Nobody Was Bad’
Weinstein is remarried now, raising his now 16-year old son and spending his recent days in court at the trial of his wife’s alleged killer.
“She was an extremely spiritual person in her own way,” he said. “Everything had a rainbow on it to her. To her, nobody was bad. I wish I was half as kind a person as her.
“She loved kids. She was just a kid herself. She tutored one student whose home life was so bad that she asked permission from the parents to take the child to a bagel store nearby so she could tutor and feed the child there. She loved to help the underdog.
He said he can hardly fathom the strength of spirit and composure she summoned in the car that day.
“Even when she knew things weren’t going to work out, she was still so brave,” he said. “I don’t know how she did it.
“If the world had more people like my wife, the world would be a better place.”