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Anna Nicole Smith: The decision that wasn’t

Filan: Judges make hard decisions, and they do it without tears

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Experts criticize judge in Smith hearings
Feb. 23: TODAY host Meredith Vieira talks with Dan Abrams, NBC News' chief legal correspondent and MSNBC general manager, and Judge Leslie Crocker Snyder about Judge Larry Seidlin's conduct in the custody hearings over Anna Nicole Smith's body.
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  Anna Nicole Smith
The short, tragic life of the former Playboy playmate and model.

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Susan Filan
Senior legal analyst

Anna Nicole Smith should be buried by now.

In a matter of days, a judge should have been able to figure who has the right to her body and how the former model’s wishes factored into where she would ultimately be laid to rest — in the Bahamas next to her son, Daniel, or in Texas near her family

But in the end, the judge couldn’t make a decision. He punted. After six days of irrelevant testimony and bizarre courtroom theater, Judge Larry Seidlin, through tears, gave her body to a 5-month-old and ordered her legal guardian, attorney Richard Milstein, to figure it out. The judge said he wanted Smith buried in the Bahamas next to her son but left it up to Milstein to do what he thought was right.  And the judge told Milstein to work with the three warring parties — Smith’s partner, Howard K. Stern; mother, Virgie Arthur; and ex-boyfriend, Larry Birkhead —  so the decision would be one of mutual agreement.

In less than an hour, miraculously, Milstein was able to do what the judge couldn’t.  He got the parties to agree to bury her in the Bahamas, and they emerged from the courthouse arm in arm.  Moments later, though, we learned that Arthur appealed the judge’s decision.  Anna Nicole’s body is still at the medical examiner’s office, decomposing.

What would be Arthur’s grounds for appeal?  First, that the judge got the law wrong, and quite possibly he did.  The law seemed to be something with which he was wholly unfamiliar.  The judge seemed like a preacher who had never read the Bible. Seidlin ruled that Dannielynn was next of kin, but the Florida statute says if a child is to be named next of kin, the child has to be 18 or over.  If there is no adult child, the next of kin is a parent.  Surely someone knows the answer to this, don’t they? 

Second, Florida law also looks to a person’s intent, and to determine intent you ask people who knew her what they think she would have wanted.  No one except her estranged mother thought she should be buried anywhere but with her son.  Whether her son should have been buried in the Bahamas is a separate question, one which this judge had no power to decide.  And since he couldn’t order Daniel exhumed, there was no other choice but to bury Anna Nicole in the Bahamas next to her son.

If the judge followed the statute and ruled Arthur was next of kin, Smith’s wishes would have been disregarded and she would have been buried in Texas.

Under the Florida statute, I don’t see how a 5-month-old can be ruled next of kin.  Nor do I see how a person’s wishes can be ignored.  Sometimes making a decision is hard, but that’s what judges do.  They decide tough calls.  And they do it without tears.

Another ground for appeal could be that the judge ignored the rules of evidence and violated the rules of procedure.  Not to mention the crazy way he presided over the trial, the way he took over questioning witnesses, asking them deeply personal and totally irrelevant questions.

DEATH OF ANNA NICOLE SMITH
Two weeks after Anna Nicole Smith’s death, we still do not know where she will be buried for sure, or who will be in charge of her remains.

But we all know that Judge Seidlin jogs, swims, eats tuna fish sandwiches, was a New York cab driver, buys cheap glasses at Costco, has a young daughter and cries when he rules.

I was ashamed of the judge and embarrassed by the proceedings. It was obvious to me he wants his own TV show, and he may very well get it, but he should not have auditioned at the parties’ expense.

In all my years practicing law, I have never seen anything like this in a courtroom, and I hope to never see it again.  While it was great TV., it made a joke out of justice, a joke that I didn’t find very funny. 

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