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The battle for her body

A battalion of lawyers in a Florida courtroom fight over Anna Nicole Smith's final resting place. Hoda Kotb reports.
Stern, Anna Nicole Smith's mother Virgie Arthur, and Birkhead walk arm-in-arm out the Broward County Circuit Court in Ft. Lauderdale
Howard K. Stern (L), Anna Nicole Smith's mother Virgie Arthur, and Larry Birkhead, walk arm-in-arm out the Broward County Circuit Court in Ft. Lauderdale, Florida February 22, 2007, after the judge handed down the decision to release Smith's body and allow it to be taken to the Bahamas to be buried beside her son. Hans Deryk / Reuters

In life she was a sensation: Anna Nicole Smith was teenaged bride turned pin-up girl, model-turned-reality TV star and would-be heiress. 

In death, she's become a phenomenon, a woman whose story grows more unbelievable at every turn.

When she passed away suddenly two weeks ago, she took clear instructions about her burial wishes with her. This week, three parties were duking it out in a Florida courtroom, battling over where her body will be laid to rest. 

In one corner is her estranged mother, Virgie Arthur.

In another, her longtime companion and attorney Howard K. Stern. 

In another still, Richard Milstein, the court-appointed attorney for Anna Nicole’s infant daughter Dannielynn.

The battle played out in front of a judge, one Larry Seidlin of Broward County, Florida.

Hoda Kotb, Dateline correspondent: This hearing was supposed to be about one solitary issue.  What was it supposed to be about?Gary Casimir, former prosecutor: Well, it was supposed to be about who should have control over where the body should be buried.

Gary Casimir is a former prosecutor with 15 years trial experience. 

Simple question maybe, but from the first moments of the hearing, it was clear this would be no ordinary set of proceedings—and no ordinary judge.

Dan Abrams, NBC Chief Legal Correspondent: At first, you wondered, is this just a judge sitting with lawyers, just being a little bit casual, a little bit folksy? But once the witnesses come in he’ll make sure that the decorum of the courtroom is reestablished? No, didn’t happen.

At noon on Tuesday, the first major contender, Howard K. Stern took the stand.

Right from the start, the judge seemed to be interested in the intimate details of Anna Nicole’s life, in this case her relationship with Stern.

Stern and his lawyer argued that Anna should be buried in the Bahamas next to her son Daniel.

Howard K. Stern (in court): Daniel was without question the most important person in Anna’s life.  From the time I met her, everything that she was doing  was for Daniel. From the day Daniel died, Anna honestly was never the same. I would say that  physically she died last week but in a lot of ways emotionally she died when Daniel died.

Stern testified that for years, Anna had worried about where she would be buried and conceded the Bahamas was not always her first choice.

Stern: Anna in a lot of ways always thought she was going to die young and she said that she thought she was going to be like Marilyn Monroe. Initially, Anna had always wanted to be buried near Marilyn Monroe.

Stern said after much struggling, Anna decided to bury Daniel in the Bahamas, and bought a plot there for two.

Stern: Anna was very firm that the Bahamas was her home, it’s where she wanted to raise Dannielynn and she wanted Daniel to be near her.

One of the oddest moments of the day came when the court received a call from the medical examiner, put on speaker phone by the judge and he had some jarring news. 

Medical Examiner:  [I] checked the condition of the body and they observed unfortunate deterioration much faster than they expected.Michelle Kosinski, NBC correspondent in Florida: It was shocking, because you would see the images of Anna Nicole Smith, this beautifully young woman who—all the cameras are on her.  And now what everyone’s arguing over is a lifeless person.  And it was both sad and disturbing.

As the day progressed, tempers flared over a videotape Howard K. Stern and his attorneys wanted to show in court—an interview Anna gave to Entertainment Tonight, which Stern said proved how much Anna hated her mother.

Anna’s mother’s attorney, nicknamed "Texas" by the judge, fought to keep it out. 

Virgie Arthur, mother of Anna Nicole Smith's attorney: Even if it’s authentic, if it’s been spliced, diced, you know the news media does not run everything they take a tape of. They edited like a movie in Hollywood.Birkhead attorney: Also, if there tapes come in, we have tapes.  Does that mean our tapes come in?Debra Opri, another Birkhead attorney: It’s gotta be all or nothing your honor.Judge Seidlin: There’s nothing hidden here. You see what I see. I’m going to decide how much of the tape I’m going to watch. But whatever I watch you’ll watch. I appreciate your thoughts though.

In the end, the judge allowed it, and the result was unnerving. 

Anna Nicole Smith (Entertainment Tonight footage): What has she done to me? You wanna hear my child life?  You wanna hear all the things she did to me?  That’s my mother. That’s my mom. What do you want to say to her? I want to say to her, how dare you .... b**tch. How dare you.Abrams: I think that tape was very important. I think the fact that Anna Nicole clearly did not have a great relationship with her mother made the judge very reluctant to allow the mother to decide where she gets buried.

Sitting stoically while her daughter accused her of abuse, Virgie Arthur knew her turn to respond to the tapes and to Howard K. Stern would come soon.

By Wednesday, the hearing had become a three-ring circus, and the three star attractions—the mother, the lover, and the other lover—were about to appear in court on the same day. They were all arguing over money, drugs, and Anna Nicole’s baby.

The day began with Anna Nicole’s mother Virgie Arthur and a chance for her to respond to the terrible things Anna Nicole had said about her on that video tape shown in court the day before.

Virgie Arthur (in court): She doesn’t know me.

Arthur said the explanation was simple.

Arthur: She’s been on drugs the last 10 years. And, no anything she said during that time isn’t that person is not my daughter.

And when it came to Howard K. Stern, the man who’d been Anna Nicole’s companion for several years, she let loose with both barrels.

Arthur: The only one who’s ever, ever made any money off of my daughter is that man sitting right over there. I heard that ET’s buying her death funeral. That’s why he wants her body. For a million bucks.

It wasn’t long before Judge Larry Seidlin was at center stage again, getting up close and personal with a new star witness—former Anna Nicole boyfriend, Larry Birkhead.

Judge: How old are you?Larry Birkhead: 34Judge: Any marriages?Birkhead: No sir.Judge: Any children?Birkhead: One.Judge: How old?Birkhead: 5 months, 6 monthsJudge: Ho, ho, ok. That’s that little girl we always talk about Dannielynn. Alright, I’m glad you’re keeping your sense of humor.

The judge wanted to know more, beginning with how Birkhead went from photographer to paramour.

Judge: When did it become professional to personal?Birkhead: I would say in July and August of 2004.Judge: July of ‘04.Birkhead: Yes sir.Judge: Was your head on the pillow seven nights a week?Birkhead: With Anna Nicole?Judge: Yes.Birkhead: um...most nights.  Yes sir.

Once again, the questions turned to Birkhead’s rival, Howard K. Stern.

Judge: What was Stern’s relationship with her at that point?  I mean July ’04Lawyer: Objection calls for speculation Judge: Well, it does.  Strike that.  It doesn’t call for speculation. It calls for an impression.  I want to know what his impression was.  It’s his impression.  It’s hard argue with me because I asked the question.   What’s the impression you had?Birkhead: Well, he was her attorney, he was kind of her publicist.    He was her manager.  He secured offers for her.  He was her friend.  He ran errands, he did personal things for her.  And he did....he was kind of multi-tasking, Judge: Did you know whether they had an intimate relationship?Birkhead: I know the answer to that.Judge: And what’s the answer to that?Birkhead: The answer is no they did not. Dan Abrams, NBC legal correspondent: Inquiring minds want to know.  I think he was an inquiring mind.  I think this is just who he is.

At one point—the judge, a former cabbie from the Bronx—even seemed to sympathize with Birkhead’s struggle to keep up with Anna Nicole’s taste for the good life.

Birkhead: She got on the Web site and asked me to pick out a ring for her, and I told her we might need to go to a different Web site. (laughter.)Judge: You wanted more to target or K-mart, right? (laughter.)  Birkhead: She wanted a 10-carat ring and wasJudge: 10 carats? You have to sell a lot of pictures. huh?Birkhead: That’s a lot of pictures.Birkhead: aha, aha, aha (more laughter)

The testimony took a more serious turn  when Birkhead accused Stern of supplying Anna Nicole with drugs while she was pregnant and in the hospital trying to kick her addiction.

Judge: So she’s pregnant and now she’s taking medications?Birkhead: She’s taking medications before and during the pregnancy.  Judge: Were you concerned about that?Birkhead: I was very concerned.Judge: WhyBirkhead: Because we had already had one miscarriage, and every time she put something in her mouth (chokes up)  I thought that it would....Judge: that it would affect...?Birkhead: Yes sir.Judge: ....the welfare of the child, and her too as well.

When Stern took the stand for the second time in two days, the judge pressed him  about Anna Nicole’s drug dependency.

Judge: Did she go into rehab centers after 1996?Stern: Not into a rehab center, no.Judge: Did she need to go into a rehab center?Stern: I guess  that would be open to interpretation.Judge: Well, what was your interpretation?Stern: Anna Nicole took prescription medication, at times for depression.  She did. Judge: These drugs all came from one doctor?Stern: Well, at different times, she had different doctors.   Judge: I'm saying at different times, did she have prescription drugs from different doctors?  Where they get multiple drugs from different doctors?  A doesn’t know doctor B prescribed drugs, so they’re sitting there at the pharmacy -Stern: I don’t know.  You know, she had more than one doctor .  I believe her doctors knew about each other.  Judge: Could you have stopped her from taking these drugs? These prescription drugs - could you have stopped it?Stern: Your honor, after her son passed away…Judge: Prior.Stern: I talked to her about it.  I mean, I talked to her about it.  And she did cut down a lot on medication that she took.  Can anybody stop someone else?

Stern has maintained it is he, not Larry Birkhead, who is the father of little Dannielynn.  But his claim may depend on who is defining “fatherhood”—Florida or the Bahamas— at least that’s what Birkhead’s lawyer argued.

Debra Opri,  Larry Birkhead’s attorney: He testified yesterday under oath that he was the natural father of Dannielynn under the laws of Bahama.  Bahamas does not recognize the biological father and the laws in this state list the natural father as s biological father.  Mr. Stern, you can laugh at me all you want. Are you or are you not the biological father of Dannielynn?  

As the day wore on the bedlam continued with one of the lawyers actually saying aloud what everyone else had been thinking—that the hearing  had become a circus.

Judge: There’s no circus here my friend.  There’s no circus here.

Nonetheless,  some of the comments from the judge had many scratching their heads.

Judge:  It’s not who talks louder, it’s who signs the report card at the end.Judge: Join hands because it’s only in this country that you can join hands.Judge: Request denied. It muddies my water.

And not to be outdone, the lawyers added to the chaos and confusion. 

Lawyer: They have it in their possession. That it was obtained through stolen means.Another lawyer: Let the record reflect she’s pointing at my table. That is inflammatory, it’s prejudicial,  I want her censored.  (Laughter) And sit down while you’re at it. 

And soon things would get even stranger.

Judge: I have suffered with this. I have struggled with this. I have shed tears for your little girl.

When the battle over custody of Anna Nicole Smith’s body resumed on Thursday, ex-boyfriend Larry Birkhead was back on the stand—and the judge was back in the spotlight.

Judge Seidlin, sounding at times like a family therapist, opened the proceedings with a lengthy ramble, speculating  about Anna Nicole’s tangled relationships with the people and the drugs in her life.

Judge Seidlin:

Then he turned to the role played by her long-time companion, Howard k. Stern.


At that, Stern’s attorney rose to object, but the judge wasn’t finished dispensing pearls.

Judge: Anna didn’t really realize that life is a rollercoaster, as we all know. It got its ups, its got its down but you gotta hold on tight, you gotta hope tomorrow is a better day.Dan Abrams, NBC legal correspondent:It became just like a dysfunctional group therapy session ... ...where there’s this sort of Bronx version of Dr. Phil sitting on the bench. And you have all of these characters going after each other.  And the Bronx Dr. Phil occasionally chiming in something, some tough love...Judge: I’m stating that these folks may not be bad. Where they may not be living a perfect life but that’s for other people to decide.

The judge finally ceded the spotlight to ex-boyfriend Larry Birkhead.

Once again Birkhead testified about a pregnant Anna Nicole’s drug habit and his attempts to help her.

Birkhead: At times I took her medicine and I was told by Mr. Stern to give it back because she needed it to live. I told her over and over, I said “Don’t. Something’s gonna happen to you ....” (crying) You don’t know how many times I had to help her and to carry her back and forth to make sure she was okay. Sometimes I didn’t know if she was gonna live and they kept bringing more drugs in the house.

It was the stuff of soap operas. But was it relevant? 

Susan Filan, MSNBC senior legal analyst: Larry Birkhead didn’t have a dog in the fight as to where she should be buried.  But he comes in—if you’re going to look at what was her intent what were her wishes, what did she want to have happen to her when she died.

As the day wore on, the spectacle in Judge Seidlin’s courtroom became increasingly wacky.

Judge: California listen to me. Do you remember the song “California dreamin'...” I always consider myself a New Yorker

At one point, attorney Debra Opri, or as the judge liked to call her “California,” even broke into song.

Michelle Kosinski, NBC correspondent covering the case: It was one of those incidents where everyone looks at each other and says “Can you believe this?”

The morning session came to abrupt end when an attorney for Anna Nicole’s mom, John O'Quinn collapsed..

Judge: I’m gonna take a break. I’m working everyone too hard. You all right?  Take it easy. Give him some water my Texas friend.  Here’s my credit card just buy him an orange juice. No I’ll do it. I always pay. We’re gonna take a break but get him orange juice right now.

When the session resumed,  observers were in for a whole new shock.

Judge Seidlin  allowed the admission of a 51-second videotape featuring a face-painted and seemingly impaired Anna Nicole at a party. She was eight months pregnant at the time. The narrator: Howard K. Stern.

Kosinski: And to see her face painted and hear her talking almost like a child herself, it was heartbreaking to many of the people who saw this.

It was played during the testimony of Ford Shelly, a friend of Anna Nicole’s who provided the Bahamas house she shared with Stern.

Shelly, whose young daughter was at the party where the tape was made, punctuated his testimony by railing at Howard K. Stern. Despite that, Shelly reluctantly supported Stern’s argument that Anna Nicole wanted to buried in the Bahamas.

Shelly: Anna said where she wanted to be buried, and that was beside her son. I know that Howard is representing what she wants. That is representing what she wants.

And, even when veteran courtroom observers thought the hearing could not get any more bizarre, Judge Seidlin was swearing in the next witness on the phone. 

Billy Smith, ex-husband of Anna Nicole and father of their late son Daniel:

Judge: Billy. How do I know who you are?Billy Smith: I’m Billy Smith believe meJudge: Are you wearing boots today?

The feeble humor and telephone testimony was interrupted by one lawyer, who may have spoken for the entire legal profession:

Judge: And you object to the identity of the father? Attorney: I object to everything on every possible grounds under the sun. That he’s not here in person. Judge: I’m with 'ya.

Objection overruled, it was back to Billy Smith who hadn’t seen his boy in 20 years.

Judge: Billy do you know if your boy is presently buried in the country of the Bahamas?Billy: Yes I do. I wish that he was buried in the Texas.Judge:  So what should I do with his body?  If I was a judge who had jurisdiction over this over that boy’s body—Smith: I just wish they could be buried side by side.Judge: The mother and the son. Billy: Yes. Yes.

With that, the ringmaster of the Anna Nicole courtroom circus had heard enough.  He announced he was ready to rule… almost.

Judge: I feel for all parties here. I mean I suffer with this case day and night. When I pronounce the final resolution in this case, I want you to understand that I have reviewed absolutely everything. I have suffered with this, I have struggled with this, I have shed tears for your, your little girl. [judge crying] But what worries me, and I’m not letting the cat out of the bag, but what worries me is the boy.  Danny already is in the grave.  He’s in the Bahamas, it could have been San Francisco it could have been the Bronx. I’m trying to figure out how in a spiritual sense bring it all together. Now the Supreme Court of Florida says justice in not perfect [judge crying] it’s ..huh.. (long pause). It’s what is reasonable.Abrams: There is no question that judges throughout the state of Florida were covering their eyes as they watched Judge Larry in court.

When Judge Seidlen returned to his courtroom just before 4 p.m. on Thursday to announce his decision about who would get custody of Anna Nicole Smith’s remains, it was as if he’d packed his bags and was heading out of town.

Judge Seidlen: I want it to be crystal clear first that once this order is signed, you’re all done with me.

With the court and a huge TV audience hanging on to his every word, Seidlin warned those present to remain calm:

Judge: I hope when it’s read we’re dignified and we keep our cool.

And then, finally, the clowning around appeared to be over. The moment of decision was at hand:

Judge: There is  only one issue before this court to decide: who is entitled in custody of the remains of Anna Nicole Smith. There can be only one proper and equitible  answer to that question: Dannielynn, Anna Nicole's only child and heir and next of kin. Therefore the court order the court orders as follows: Dannielynn's. Richard Milstein, esq. as the as the guardian for Dannielynn Hope Marshall Stern is awarded custody of the remains of Anna Nicole Smith. [judge cries]

Judge Seidlin had thrown the decision into the lap of Richard Milstein, the mild-mannered legal guardian he had appointed for Anna Nicole’s five-month-old daughter. The veteran attorney would now have to decide Anna Nicole’s final resting place.

Judge: The Broward County medical examiner is ordered to release those remains to Milstein in accordance with Milstein’s directives.

As he expounded on his decision the judge choked back more tears: 

Judge: I want her buried with her son in the Bahamas.  There’s no shouting, this is not a happy moment. I want her buried with her son in the Bahamas I want them to be together. Hoda Kotb, Dateline correspondent: What about the tearful way he delivered his ruling?Dan Abrams, NBC Legal Correspondent: I believe those tears were real.  But it was almost as if it was the end of a show.  And the judge had just seen the final chapter. And he became so emotional that he had to talk about it. It’s not normal.  And that’s not the way most judges behave. It’s human but bizarrely human.Judge: You know, she had to live all her years under this exposure. I got a week and half and it’s ready to flatten me down.

Somehow, once again, it was all about Judge Seidlin, as his odd emotional display continued.

Judge: It’s in Milstein’s hands.

After days with the plaintiffs at each others legal throats, the judge was now telling the court-appointed guardian it was his job to convince the warring parties to grow up and play nice:

Judge: And I hope to God you guys give the kid the right shot. [judge cries]

The probate judge turned TV-personality composed himself enough to wrap it all up.

Judge: I’ve completed all my tasks in this case. Godspeed to everyone.

And, at the end of this session, it looked like there was a new sheriff in town, as the dry-eyed lawyer Milstein took over:

Milstein: And I ask for one more favor. I ask that we resume in your chambers so I can meet with the parties.Judge: You know I never felt those chambers....[judge cries] I always felt those chambers belonged to the public and attorneys ...Filan: It is your worse law school exam nightmare compounded by a judge who made an absolute joke out of the proceedings.  And so what was a simple question, "Who should get her body and where should she be buried?" became an absolute soap opera.

After days of sniping at each other, days of taunts and bitter recriminations, the warring parties unified barely hours after Judge Seidlin’s ruling on Thursday. There they were arm in arm on the courthouse steps on first name terms.

Larry Birkhead, outside the courthouse: He’s saying that he’s—Howard’s saying that he’s just very glad that Anna’s wishes are carried out.

After the judge’s decision, Anna’s feuding family and friends had their own to announce she would be buried in the Bahamas, alongside her beloved son.

Larry Birkhead: It’s in her best interest to come together and get this thing worked out for her best interest and lay her to rest.

It looked as if Judge Seidlin had worked a miracle.

Dan Abrams, NBC chief legal correspondent: He was able to figure out a way to make most of the people in the case satisfied with the ruling.

But that doesn’t mean these combatants are ready to give up the battle. There is still a raging dispute over Anna Nicole’s baby.

Hoda Kotb, Dateline correspondent: What is at stake here, what is this really all about?Abrams: Who gets custody of Dannielynn.  But there’s the subtext, which is who gets custody of a very wealthy little girl.

At a paternity hearing Friday, attorneys for Anna Nicole’s former boyfriend Larry Birkhead pressed a different Florida judge to get the baby’s DNA as soon as possible.

Birkhead attorney: We’re asking both to turn over the DNA to Dr. Baird and also to order this child to be tested.Susan Filan, MSNBC legal analyst: They want these tests done. They want them done now.

But the judge, family court’s Lawrence Korda, whose mild demeanor is in stark contrast to Judge Seidlin’s, isn’t sure the matter even belongs in his courtroom.

Judge Korda: The first thing the court needs to do is to take a look at why me, why here? What jurisdiction do I have?

Noting this little girl has spent her entire life in the Bahamas, the judge suggested that is where paternity should be decided. But Larry Birkhead’s attorneys are convinced that the laws in Florida are more favorable to the biological father than the laws in the Bahamas. You see, in the Bahamas, whoever the mother names on the birth certificate can be the custodial parent — whether the DNA matches or not. 

After promising to consider their arguments over the weekend, the judge ended the hearing quickly, taking a subtle dig at Judge Seidlin.

Judge Korda: I’m not open, wide open for questioning such as you may be used to.(laughter)

So where does it all stand?

That agreement among Anna’s loved ones to bury her in the Bahamas proved fleeting. Late Friday afternoon, her mother filed an emergency motion to stay Judge Seidlin’s decision.

So, Anna Nicole remains in limbo at the medical examiner’s office. Nothing is resolved and so much remains at stake:  Anna Nicole’s final resting place, her daughter’s future, and the answer to who will lay claim to what could be millions.

Filan: This case is crazy on so many levels, the legal issues presented, the tragedy involved and the characters. It’s probably one of the craziest cases ever.