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Criminal Law
A Computer Hacker's Right to Remain Cryptic
By Donald C. Randolph and Gregory L. Vinson
Kevin Mitnick was recently convicted of violating wire and computer fraud statutes, and other charges related to computer “hacking.” Although he was dubbed the world’s most notorious computer hacker, Mitnick’s prosecution created unique case law on the Fifth Amendment and encrypted evidence. United States v. Mitnick (CD CAL) No. CR-96-881-MRP.
The district court was faced with a novel issue: Can the prosecution, consistent with the Fifth Amendment’s protections against self-incrimination, refuse to produce the defendant’s encrypted files seized by police unless the defendant discloses the encryption key and, thereby, potentially incriminates himself?
It is settled law that the prosecution has an affirmative duty to reveal evidence favorable to the defense. Brady v Maryland (1963) 373 US 83. The defendant, however, has no reciprocal duty. Moreover, the Fifth Amendment cannot force a defendant to explain the evidence in the prosecution’s possession.
Weighing the equities involved, the Mitnick court noted that the encrypted evidence would not be part of the prosecution’s case since it had no idea of what the files contained. The court concluded that “[a] s long as he [Mitnick] has the keys in his pocket, there’s nothing this court is going to do about it.” The court denied the defense access to the encrypted material unless Mitnick gave up the encryption key.
The path chosen by this district court allows (or forces) the defendant to decide between the right to access discovery and the right against self-incrimination. If, on the whole, the defendant believes that the encrypted files would be more favorable than unfavorable to this or her case, the defendant can elect to disclose the encryption key. If, on the other hand, the defendant believes that the encrypted files are generally more damaging that beneficial, he or she can rely on Fifth Amendment protections and rest assured that the government will likely be unable to present the encrypted evidence at trial.
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Man Cleared of Smuggling Iguanas In False Leg
An American man has been acquitted of smuggling iguanas from Fiji to the United States in his hollowed-out prosthetic leg.
However, Jereme James, 34, was found guilty of concealing and possessing Fiji Island banded iguanas (Brachylophus fasciatus), an endangered species, and could face up to 20 years in prison when sentenced on July 14, reports the LA Times.
The jury in the three-day trial rejected charges that Mr James, from Long Beach, California, stole the lizards on a visit to the South Pacific Island in September 2002.
But prosecutors revealed that during an undercover investigation Mr James had confessed to selling three of the iguanas for $32,000 (£16,000).
Police seized four of the neon green-striped reptiles when they searched his house after obtaining a search warrant last July.
U.S. officials said the iguanas, which are protected by an international treaty, would be entered into a breeding programme in the United States.
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Students Free Life-Term Prisoner
The Post-Conviction Justice Project at USC Law recently prevailed in a defining case for the California parole system for long-time client Sandra Davis-Lawrence.
USC Law students argued – and the California Supreme Court agreed – that a life-term prisoner is entitled to be granted parole once the prisoner no longer poses a danger to the community. The court rejected the governor’s reversal of the parole commission’s grant of parole based solely on the circumstances of Sandra Davis-Lawrence’s 1971 commitment offense (first-degree murder), holding that the reversal violated her due process rights.
The 4 to 3 ruling provides meaningful judicial review of parole decisions by the Board of Parole Hearings and the governor, and could affect nearly 1,000 parole cases now on appeal. Lawyers on both sides said it was the first time in recent history that the state’s highest court has ruled in favor of a prisoner in a parole case.
Students in the Post-Conviction Justice Project, under the direction of Profs. Michael Brennan, Carrie Hempel, and Heidi Rummel, have represented Sandra Davis- Lawrence at parole hearings and in the state courts since 2000. USC Law student Lisa Shinar ’07 wrote the petition challenging the governor’s reversal of Davis-Lawrence’s fourth grant of parole. Christopher Mock ’08 argued the case in the California Court of Appeal. The court granted the petition and ordered her release on parole. The California Supreme Court took the case under review, and Patrick Hagan ’09 and Erin McLendon ’09 took the lead in briefing the case for the Supreme Court.
On August 21, the California Supreme Court ruled for Lawrence, allowing her to remain free after nearly 24 years in prison.
“This case is significant on so many levels – for Sandra who has paid for her crime and earned her freedom through exemplary efforts to educate and re-invent herself in prison, for so many clients of the clinic and other life-term prisoners who now see that their hard work toward rehabilitation in prison can lead to their freedom, and for all the students of the clinic who work so hard for their clients in every other case,” said Professor Rummel, who worked on the original petition as a visiting professor.
In the ruling, the justices said there was "overwhelming" evidence of Lawrence's rehabilitation while in prison demonstrating her suitability for parole. She earned two degrees in prison, including her MBA; mastered numerous marketable skills; served as a leader in many prison programs, including president of the inmates' Toastmasters Club; acted as a mentor for other women at the prison through a variety of programs; cofounded a tutoring program; and remained discipline-free. She also repeatedly expressed her extreme remorse for her crime and had tremendous support from the community for her release, including a job and a place to live.
Since 1981, more than 600 USC Law students have worked with over 4,300 clients in the Post-Conviction Justice Project on matters ranging from consultation to representation at parole hearings, as well as state and federal lawsuits challenging denials of constitutional rights.
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Suicide Case Settled for 125K
CITY HALL — The mother of a 23-year-old Ocean Park woman who hanged herself in Santa Monica Jail three years ago will be paid $125,000, elected officials decided last week.
Myeamma Claiborne, an exotic dancer and college student, had been out drinking on Main Street the night she was arrested for public intoxication and resisting arrest. She was taken to an empty holding cell for women on the second floor of the old jailhouse behind City Hall, where she used her own jeans to hang herself.
Lawyers representing Claiborne’s mother claimed authorities were negligent and treaded on Claiborne’s civil rights by failing to monitor her adequately. They said officers were told Claiborne was in the middle of a mental breakdown. They added Claiborne should have undergone a medical exam rather than be placed in jail.
The Santa Monica City Council last week agreed to pay $125,000 to Jean Prosser, Claiborne’s mother. In exchange, Prosser agreed to drop her lawsuit against City Hall, Santa Monica Police Chief James T. Butts Jr., the arresting officer and the jailer working the night of the suicide.
Santa Monica-based attorneys Don Randolph and Frances Campbell, who worked the case on a contingency basis, said police know suicide is most common among women in local jails. They are told to pay special attention to inmates who are intoxicated, and those who are withdrawn and distraught.
“She was all of those things,” said Campbell, adding Claiborne had tried committing suicide at least two times earlier in life, once by overdosing on Aspirin when she was 15 years old. “She was incomprehensible. She was weeping. She couldn’t stand up on her own — plus, she had a huge keloid (scar) on her wrist.”
What’s more, Campbell claimed officers didn’t check on Claiborne as frequently as is required. A Santa Monica Police Department manual calls for routine checks every 15 minutes, but the jailers only checked on Claiborne at 30- minute intervals, according to Campbell.
On the first visit, Claiborne was found sitting on the floor and naked from the waist down. Mattresses had been pulled off of the bunkbeds and toilet paper strewn around the floor of the cell, court documents show. Claiborne was moved to another cell, without a bed or toilet paper. About 35 minutes later, the jailer found
Claiborne dead, after hanging herself from a cell bar using her jeans.
Deputy City Attorney Anthony Serritella said officials thought they were simply dealing with an intoxicated woman and didn’t anticipate her suicide. The settlement was a way for City Hall to avoid the costs of defending the case, because even if jurors had found the city responsible for only a small portion of Claiborne’s suicide, the city could be pursued for all of the plaintiff’s legal costs, he added.
“Essentially, this is a cost-of-defense settlement, even though the number seems rather high,” Serritella said. “It was a relatively modest settlement for a wrongful death claim.”
Serritella added that a similar suicide was less likely to occur in Santa Monica’s new jail, which is easier to monitor because it is situated all on one level, beneath the new public safety building located behind City Hall on Fourth Street.
How much money Prosser will actually receive is unclear. She will share an unknown amount of the $125,000 settlement with her attorneys, and has about $12,000 in other expenses, such as a private autopsy and burial, lawyers said. At a recent settlement conference, Campbell and Randolph had pegged their fees at $50,000, according to Serritella. However, Campbell declined to divulge to what contingency percentage her firm is entitled.
Lawyers said at the time of the suicide, Claiborne was working as a stripper in Hollywood. She had been attending Pierce College in the valley, but apparently had been accepted to study at Santa Monica College. Prosser found the acceptance letter after Claiborne’s suicide.
“We’re talking about a girl who’s 23, going through a wild phase and getting out of it,” Campbell said.
Campbell called the settlement substantial, but said only time would tell if the suit would lead to change at Santa Monica Jail.
“Our client wanted the city of Santa Monica to take notice and change their ways,” Campbell said. “The city knows that some people who are arrested have health problems. They should check them more carefully ... Unfortunately there’s a whole series of things that should have happened that didn’t.”
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“It’s ludicrous,” said Elizabeth Keck.
“It’s laughable to even think that Mrs.
Keck would involve herself with her
butler,” said Sorrell Trope, and then,
thinking about it, he started to rail until
he caught himself with “Sorry, Libby.”
“No, no,” said Mrs. Keck, smiling
pleasantly, “I like to hear it.”
It was Saturday morning at the law firm of Trope and Trope on Wilshire Boulevard. Elizabeth Keck, the wife of Howard B. Keck, the principal heir to the Superior Oil fortune and one of the richest men in America, was flanked by her attorneys, Sorrell Trope and Steven Knowles. She was wearing a linen-and-silk suit in a delicate shade of peach, a strand of pearls the size of jawbreakers, and a diamond bracelet. A woman with ash-blonde hair, porcelain skin, sharply defined features, and perfect carriage, she is a prominent figure in Los Angeles’s philanthropic, cultural and social worlds, a board member of the Los Angeles County Museum of Art, the Museum of Contemporary Art, and the Huntington Library. Her fine collection of seventeenth- and eighteenth-century French decorative arts had caused her to be compared to the Rothschilds and Wrightmans. She had modeled her home, La Lanterne, a stone mansion on Bellagio Road in Bel-Air, on one of the pavilions at Versailles.
When Steven Knowles had asked where I would like to meet Mrs. Keck, I had naturally suggested LA Lanterne. “That would be difficult,” he had explained after an uncomfortable silence at his end of the line. “You know Mr. and Mrs. Keck are involved in a divorce. They’re both living in the house, so for Mrs. Keck to have you there, her lawyers would have to call Mr. Keck’s lawyers, and they would have to call him. It’s complicated.”
The divorce – or “dissolution,” as divorces are now called in California – had spun out of a bitter family-trust fight that had pitted father against son, mother against daughter, sibling against sibling, and finally husband against wife. At one point, the Keck family had eleven lawsuits in progress, employing scores of lawyers in both California and Texas, where the family trusts were located. The upcoming divorce, according to Sorrell Trope, would be “monumental,” but for the moment Elizabeth Keck’s attention was focused on the trial of her butler, which was only the most immediate in the series of Keck-family legal disputes.
 The Keck’s butler of fifteen years, Rune Gunnar Donell (a.k.a. Roy Donell), had been accused of stealing two of Mrs. Keck’s paintings and selling them at auction in Stockholm. The first, Féte Gallante, a gift to Mrs. Keck from the French dealer Maurice Segoura, Mrs. Keck had never bothered to uncrate. The second, a painting by the nineteenth-century Swedish Impressionist Anders Zorn, had brought $500,000 and caused something of a sensation in Sweden, where it was considered a national treasure. In his defense, Donell, a Swedish national, claimed that Mrs. Keck had commissioned him to sell the paintings so that she might build up case her husband didn’t know about. Donell’s trial for grand theft had come down to his word against Mrs. Keck’s and Sorrell Trope found it patently absurd that anyone would doubt Mrs. Keck, if for no other reason than that she was so rich.
“How much did you pay for that painting?” he asked, referring to the Zorn. “Eighty thousand?”
“Eighty-one,” answered Mrs. Keck.
“And how much did you have in your Goldman Sachs account?”
“Eleven million. I could have written a check for the entire amount. I also had my winnings from Ferdinand,” she said, referring to a horse of hers that won the Kentucky Derby in 1986.
Trope pointed out that Mrs. Keck received $180,000 a month in maintenance from Mr. Keck, and that the amount she might have reasonably expected from the sale of the Zorn – about $200,000 – simply wouldn’t have been enough to motivate her.
“After we had discussed the Donell trial, I asked about the Houston litigation, which is how the family-trust fight is usually referred to. According to Trope, the dispute began when Howard Keck Sr. tried to invade the corpus of trusts which were to go to his three natural children and one adopted child, thereby depriving them of an aggregate $190 million. Stymied by a lawsuit filed by Howard Keck Jr., he had, out of spite, adopted Francesca Drown Keck, his wife’s daughter from her first marriage, with the intent of watering down the trusts. Keck senior then tried to prove that Howard Keck Jr. was not his natural child, in an attempt to exclude him from the trusts and to annul his own marriage to Elizabeth Keck on the ground of fraud, claiming that she was carrying another man’s child at the time of their marriage. (The Kecks married on January 9, 1950 and Howard Keck Jr. was born on October 3, 1950 – “somewhat less than nine months,” according to Mr. Keck’s attorneys, and “almost ten months into the marriage,” according to Mrs. Keck’s.) Howard Keck Jr. alleged that after his father had threatened him with violence, certain property of his was vandalized.
It all sounded so extraordinary that I had a difficult time believing it had started for the reason I had heard previously, i.e., that Howard Keck Sr. had wanted to buy an airplane and build a yacht with the money in his children’s trusts. But when I asked Mrs. Keck, she nodded affirmatively. “He has the airplane and he’s built the yacht.”
“And threats of violence?”
“There were rumors.”
“”And you believed they were true?”
“I saw a chain-link fence that had been cut.” Mrs. Keck appeared to be composed and relaxed, at times even slightly amused. She sounded like a woman who, having been caught in a terrible situation, is confident that she did the right thing. “I begged him to adopt Francesca, but when he decided to do it, it was for the wrong reasons.”
 “You thought he wanted to water down the trusts.”
“I knew it/ He told me he would adopt the entire Marlborough School for girls.”
“And you refused?”
“Yes. It was wrong, and I thought there was a law in California about adopting for spite.”
“And that was when he threatened to divorce you?”
“Yes.”
“What does your husband do since he sold Superior Oil in 1984?”
“My husband is retired. Or rather,” she said, smiling, “his business is litigation.”
Elizabeth Keck arrived at the Criminal Court Building in downtown Los Angeles on June 28, escorted by Sorrell Trope and Steven Knowles and attended by her physician, Dr. Eliot Corday. Because her credibility as a witness was based in part on her wealth, she didn’t dress down. The trial was in the second week. Unlike the Houston litigation which was civil and closed to the public (the case was settled out of court, all parties signed a confidentiality order, and many of the documents were sealed), this was a criminal trial which opened the door on one of the most contentious families in California.
Called to the stand, Mrs. Keck identified the defendant, Roy Donell, who, unable to raise his $500,000 bail, had spent the last ten months in jail. Donell is a tall, thin man, with large ears and gray hair combed straight back. Dressed in a blue blazer, he looked like a high-school chemistry teacher.
According to the prosecution, Donell took the less valuable, French painting to Stockholm while on vacation in September 1986. Beijer, the auction house there, accepted it without questions and gave Donell a $2,000 advance payment, which was approximately what the painting eventually sold for. Encouraged, Donell returned to Los Angeles for the more valuable Zorn. He removed the Swedish painting from its frame and took it to a studio on Santa Monica Boulevard to have it photographed, then replaced the original with the photograph, and in March 1987 he delivered the Zorn to Beijer, where he received an $85,000 advance payment. Two and a half months later, after the painting had been sold at auction, Donell and his wife, Christina, the Keck’s cook, gave notice, and Donell went to Stockholm to collect the remaining $415,000. He returned to the United States on August 9. On August 24, Mrs. Keck noticed that the Zorn hanging on her wall was in fact a fading color photograph. On September 10, Donell called the Keck residence and asked to speak to Mrs. Keck. One of her security guards notified the Los Angeles police, and Donell was arrested on September 11.
Michael Montagna, the prosecuting attorney, was certain he had an airtight case. Donell had entered Sweden on his own passport and declared the Zorn with Swedish customs. Witnesses from the auction house and the photo studio could identify him. The Los Angeles police had found blown-up photographs of the Zorn, as well as another of Mrs. Keck’s paintings, hidden beneath a mattress in a trailer house Donell owned in Redondo Beach. Montagna even had phone records and canceled checks. And yet his case raised certain questions. Why had the butler been so open using his name and passport? Why, after collecting the money, had he returned to California and called Mrs. Keck? How could Mrs Keck, a painter and a renowned collector, have failed to notice the fake Zorn for the six months it hung in her conservatory?
But, questions aside, there was no doubt that Donell had taken and sold the paintings, and Montagna had even found a motive. The sixty-one-year-old butler appeared to be living a double life. He had a joint checking account with a woman named Esther Ariza, who when questioned, told the police that she was married to Donell. Montagna knew exactly what had happened. The only thing he didn’t know was what had happened to the money.
On direct examination, Montagna had Elizabeth Keck recount how she had discovered the photograph. “I-I- went up to it and I touched it because I thought perhaps something was wrong with the paint. I touched it and felt it was very slick. I was astonished… I couldn’t believe it… I was flabbergasted.”
Using enlarged photographs of La Lanterne so that the jury could see, Montagna had Mrs. Keck identify various pieces of furniture and objets d’art. His reasons for doing this were a bit unclear, unless it was to indicate that the house on Bellagio Road represented privilege above reproach.
Completed in 1984, La Lanterne had also been an issue in the Houston litigation, its enormous cost having been cited by Howard Keck Jr. and his sister Kerry Vaughan, until their mother sided with them. There is no doubt that the house was a work of love. Elizabeth Keck had set out not only to re-create the beauty she had seen at Versailles as a fourteen-year-old girl from Oklahoma, but to improve upon it. A relatively small mansion, at 11,000 square feet, it had to be perfect. Rather than the traditional black-and-white marble entrance hall, Elizabeth Keck chose a combination of brown and beige, because it was warmer. Whereas most museums and collectors retain the original upholstery on great period pieces, Mrs. Keck opted for freshness and color over authenticity. “When Louis XIV or Marie Antoinette had a piece that is now mine,” she told Connoisseur magazine in an interview, “it was covered with a brand0new fabric, and so they are in my house, sometimes in the same pattern, hand-woven for me at the same mill in Lyons as made the original. Every color, every yard of fabric, every inch of passementerie and gimp and braid I selected myself and had made by hand for me.”
She had eighteen-inch thick blocks of limestone of a special color shipped from Texas for the walls, and for the terraces she imported green slate from France. According to one friend, she spent on shipping alone what most mansions cost. She had her landscape architect send his men out looking for mature sycamore trees – the closest thing to the French plane tree – and when they would find one growing in someone’s yard, they would buy it, dig it up, and ship it back to La Lanterne, where they created an allée of trees which appeared to have been there for fifty or sixty years rather than two. She had a row of sixty-foot-high deodar cedars moved from the Huntington Library. The house was so successful that the Getty Museum arranged tours of it for special guests.
On cross-examination, the defendant’s attorney, Donald Randolph, used the house as a motive for Mrs. Keck’s dealings with her butler. “Is it fair to say,” Randolph asked, “that during the difficult times of 1986 and 1987 your home, your studio, and your collection were all that you had left to live for?”
Randolph then read aloud from a statement Mrs. Keck had signed and sworn to, “Because of my love for fine works of art and the years and effort I have spent in assembling the collection (and in light of the breakup of my family and my estrangement from my husband), my home, my studio, and my collection are all that I have to live for.”
“My lawyers wrote that,” said Mrs. Keck. “Perhaps I said it at the time. I don’t recall.”
Randolph had to prove two things: that however rich Mrs. Keck might be she felt the need to conserve money her husband didn’t know about; and that she would say whatever was convenient to her. He asked her to estimate the value of her home and furnishings ($42 million) and the cost of maintaining it ($133,000 per month). He then referred her to a document from her divorce proceedings which listed as monthly expenses $5,000 for groceries, $3,300 for dinners, $1,200 for lunches, $10,000 for dinner parties, and $25,000 for her clothing and accessories.
“Those figures were made up by some law clerk that had recently been hired or something,” Mrs. Keck objected.
Randolph pointed out that she had signed the document and that the lawyers had had complete access to her records. Then he asked, “By November 1987, you owed approximately $800,000 in attorneys’ fees?”
“I never owed anybody anything,” she snapped.
“You had paid that amount?”
“You said owed.”
“In addition, you had paid $436,000 to other law firms and accounting agencies. So that from December 1986 until November 1987 you had put out approximately $1.2 million in attorneys’ fees.
“Weren’t you terrified,” he went on, “that Howard Keck Sr. was going to use his wealth and power to break you financially?”
“I knew, Mr. Randolph, that he could not break me financially… and as I said, that is when I decided to change lawyers.”
Randolph read aloud from another statement signed by Mrs. Keck: “He has told me that the only way to deal with Howard Jr. is to ‘bring him to his knees’ and that he will file suit against Howard Jr. for damages and do everything he has to to ‘break’ Howard Jr. I am terrified that by cutting off the monthly checks and other payments to me and by the methods that he is using to litigate in this proceeding, my husband is trying to break me also. I am also terrified that my husband is using my litigation expenses in this proceeding as a club to tell me that if I don’t do as he wishes and accept whatever his terms may be, I will be forced to use a very substantial portion of my life savings in order to live and defend my position.”
“Didn’t Mr. Keck go so far as to claim that your marriage was based on fraud and that he was going to seek to annul your marriage?”
“At one point that was mentioned.”
“He threatened to do that; isn’t that correct, Mrs. Keck?”
“He threatened to do that.”
Randolph then raised the question of how Mrs. Keck, a painter and an astute collector, had failed to notice the photograph. In a sworn statement to her insurance company, she had said that she first noticed it when, coming in from her garden, she got a “full sunlit view” of it. Randolph, however, pointed out that the room faced east; at four in the afternoon, when she said she first noticed the photograph, the room would have been in shadow.
“Would you consider it true to say that Elizabeth Keck had an infallible eye” Randolph asked her, drawing on the article in Connoisseur. “As good as any dealer or expert in the world or better?”
Mrs. Keck demurred. “I don’t know that I would compare myself with any expert in the world. I’m not that immodest.”
Elizabeth Keck testified for three days. Whenever Randolph questioned her about the butler’s assertion that she had commissioned him to take the painting, she protested vehemently, saying that it was a “black lie.”
After the prosecution had rested its case, Randolph called Howard Keck Sr. as a witness for the defense. I was curious to see what he looked like. Listening to his son’s attorneys, I had imagined him as a particularly ruthless man, on the order of John Huston in Chinatown. I knew, of course, that there were two sides to the story. According to a declaration written by Richard Miller, his attorney in the Houston litigation, the suit became unfriendly in 1985 when Howard junior wrote a letter that opened, “Dear Dad, To begin with, I wish to make one point totally clear/ I am neither asking for anything nor suggesting anything by reason of this letter.” He then went on to say that because of financial and emotional insecurity, he couldn’t make any decisions in connection with the trusts and was therefore withholding his cooperation. Up to that time, according to one executive at Superior Oil, Howard junior had been a lightweight, who would not, or could not, stand on his own. But because of what had became known as “the ransom letter,” Howard senior went ahead and gave his son an additional $2.179 million. Thereupon, Howard junior sued his father for $20 million.
It is difficult to understand the magnitude of Howard Keck Sr.’s response until you step back and look at the family and the world he came from. His father, William Myron Keck, was a harsh and tyrannical, if a brilliant, wildcatter. He first struck it rich in the Kettleman Field in California. In 1937 his firm built the first successful offshore rig in the Gulf of Mexico, and in the 1950s Superior Oil developed Lake Maracaibo in Venezuela, later selling off its rights to develop holdings in the Persian Gulf. Like many of the self-made millionaires in the oil business, Keck was a rabid right-winger. During the height of the McCarthy era, he lent the company plane to Joe McCarthy to deliver his message of fear and hate. According to one story, after the California Club turned Keck down for membership, he built Superior Oil’s headquarters in downtown Los Angeles next to and above the club so that he could piss on it.
Judging from results, one wouldn’t have described W. M. Keck as a nurturing father. Naturally paranoid, he raised and educated his children in near isolation. His oldest son, William junior, became a lifelong alcoholic, as did his daughter Willametta Keck Day. Another daughter, Alice, died a recluse in Italy in 1977. Alice was the model for one of the characters in Herman Wouk’s novel The Winds of War. According to the story, she had fallen in love with an Italian count during World War II. She converted to Catholicism, but, disappointed in love, became a nun in her old age. She left her fortune to the church.
Howard Keck was the most normal of the siblings. He skipped college and went to work for Superior as a roustabout. He liked planes and fast cars, but in a characteristically impassive way. One of his cars won the Indianapolis 500 twice, but he didn’t bother to attend either race. In the 1960s he moved Superior’s corporate headquarters to Houston, where he is remembered as a shy, reclusive, extremely secretive man. Under Keck, Superior, the largest independent petroleum concern in the world, had no effective planning or tax department. Many of his employees thought Howard Keck had no skill with people, and some said he was simply stupid. “Howard Keck was born on third base,” said one Houston wit, “but went through life thinking he had hit a triple.”
However lame Howard Keck might have appeared to his employees, Superior, according to Elizabeth Keck, was his entire life. He had had to wrest control of the company from his older brother, and had warded off attacks from his sister Willametta, who sued him and told The Wall Street Journal that he was “a dumb son of a bitch.” She finally led a successful proxy fight against him which established an independent committee of the board to evaluate offers to buy the company. Fred Ackman, Superior’s C.E.O., asked Keck to resign as director, which so insulted Keck that he turned around and arranged for the sale of the company. Superior Oil brought $5.7 billion in 1984 which, given the subsequent plunge in oil prices, was perhaps Keck’s most brilliant financial move.
Beleaguered by his brother and sister, Howard Keck Sr. gave up control of his company, only to have his wife, his son, and a daughter later turn against him. According to attorneys in Houston, Willametta Day, before her death, had allegedly managed to convince Howard junior that his father would seek to destroy him.
When Howard senior took the stand, he seemed very dignified, with his crinkly gray hair, thick glasses, and large protruding teeth. Whereas Elizabeth Keck had been emotional in her testimony, he was stoic and reserved, answering questions with yes or no. When Randolph asked if he would characterize his wife as a truthful woman, he answered “No.”
Randolph called Roy Donell to the stand in the third week of the trial. Donell looked relaxed and confident, even smiling from time to time. He testified that he started working for the Kecks in 1972, when they still lived at the Beverly Wilshire Hotel. Asked to describe his relationship with Mrs. Keck, he said that she had an “explosive temper,” and that she would often fire him in the morning, then promptly call to apologize and ask him back. According to Donell Mrs. Keck frequently told him her problems, particularly those with her family. In the summer of 1986, she was worried about her son, afraid that Mr. Keck would disinherit him. She was also concerned about the cost of litigation and the expenses involved in running the house. She was afraid that “she might never touch” Mr. Keck’s money.
According to Donell, it was he who told Mrs. Keck that the Zorn would be considered a national treasure in Sweden. She thereupon offered him a 20 percent commission if he would take the painting there and sell it. She assured him that everything in the house belonged to her and that she could do whatever she wanted with it, but when it came to actually removing the painting from the house, Donell insisted that Mrs. Keck to it herself. He testified that he put the Zorn in the back of her Mercedes, then met her in his car at the parking garage of the Bel-Air Hotel. After taking the painting to Sweden, he returned with the $85,000 advance payment in seventeen $5,000 checks, which he would cash, several a week, and then put the money in a white envelope on Mrs. Keck’s breakfast tray. All went as planned until Mrs. Keck learned that the Zorn had sold for more than twice what they expected. Donell testified that she then decided a 20 percent commission was too high and wanted him to accept less, but he refused, and since he alone could retrieve the money, she had no choice but to go along. Donell and his wife, Christina, gave two weeks’ notice. Then he went to Stockholm with Esther Ariza. Donell said he had wanted to send the money to Mrs. Keck in a bank draft, but because she didn’t want her name involved, he gave her a key to his wife’s post-office box in Beverly Hills and sent the cash to her there, by ordinary airmail, in envelopes addressed to Elizabeth Donell.
Donell’s story raised as many questions as it answered. Why, if Mrs. Keck had commissioned him to steal the painting, would she ever call the police? Why go to the trouble of putting a color photograph in the Zorn frame? Why hadn’t she simply taken the painting off the wall and told her husband that it was being cleaned?
In his closing argument, Randolph dealt with those questions by evoking a portrait of Mrs. Keck as a distraught woman “playing solitaire in the conservatory of the mansion,” a woman who was isolated from the world, who invented the truth as she went along, who was careless of other people. He suggested that she had never thought ahead to what she would do with the fake Zorn until Donell returned from Stockholm, reminding her of the problem. When she called the insurance company, she obviously assumed the situation would be handled quietly. She never dreamed things would go so far.
After a closing statement by the district attorney, the jury retired to deliberate.
The Keck family had split exactly in two. Mrs. Keck, Howard junior, and Kerry Keck Vaughan, one of his natural sisters, versus Mr. Keck, Francesca Drown Keck Lyon, and erin Anne Keck Lower. I had heard one side of the story from Mrs. Keck, so I went to see Francesca Lyon, hoping for another view. I had been curious about Francesca ever since I heard an opposing lawyer in Houston refer to her as “the forty-three-year-old baby.” On the telephone, she told me that she couldn’t discuss the Houston suits, because she had signed a confidentiality order, but that she would talk about her family.
When I arrived at her studio in Santa Monica (like her mother, she paints), a lawyer who was with her laid down the ground rules for our conversation. He would stop Francesca if at any time she mentioned the Houston litigation or started to say anything potentially libelous. The conversation would be recorded, and he would have the right to delete anything after having read the transcript.
Despite the legal barriers, Francesca seemed immediately approachable. A stunning woman with brown hair and brown eyes, she had a firm handshake and an open manner. She was wearing black Lycra workout tights and white gym shoes. She apologized for the lawyer, but said she was terrified of being sued again. The more she had thought about the interview, the more frightened she had become. “What happened in our family is what happens when people confuse money for love and start fighting for what they haven’t gotten enough of. I was five years old when my mother married big Howard. I always thought of him as my father, and I always called him Daddy. I still saw my real father, Joseph Drown, but I accepted it as normal that I had two fathers. I never realized that it would cause jealousy in my family that I had two fathers, but I suppose it did all along.
“Mother and Daddy had always talked about adopting me, and that was something I had always wanted, but as long as my real father was alive, he wouldn’t permit it. When he died six years ago, Mother and Daddy came and asked if I would still like to be adopted. I said yes, that it was important to me. But when it came down to it, Mother wouldn’t go along, and that was it for me.”
When Francesca was growing up, the Kecks lived in the old Howard Hawks house on what is now Bel-Air Place in Bel-Air. There were imposing guard gates, what seemed to be miles of winding driveway, a fifteen-acre lawn in front of the 28,000 square-foot ranch-style house, and a five-acre lawn behind. “I was always embarrassed by the grandness,” she recalled. “When I was at Berkeley, I would beg Mother not to come in a limousine, but that was the sort of thing she liked. She and Daddy were complete opposites. Everything he said came from outside – it was something he had seen or read or heard. But with Mother, everything came from inside her own head. Several years ago, I saw a story about her in the Herald Examiner that said her family was from Philadelphia. When I asked her about it, she said that being form Oklahoma sounded a little funny. ‘Why do you lie?’ I asked. ‘Do you always tell the truth?’ she answered. ‘Yes.’ ‘Well goody for you.’”
Francesca smiled, amused by the story. “When I was growing up, I never understood why I didn’t look at her when she was talking to me. I finally figured out it was because she wasn’t telling the truth. She was always competitive with me. One time, I even asked her why she was so competitive. ‘Competitive?’ she said. ‘I don’t have to compete with you. Anything you can do, I do better.’”
“And now?” I asked.
“We haven’t spoken for two and a half years. It was difficult, but in the long run, it’s better to know where you stand.”
When the jury announced that they were returning after only four hours, Michael Montagna was certain that he had a conviction. Standing in the courtroom foyer, he told me that he had been pleased all along with the jurors – ten college graduates, one black, and two Orientals. When I asked how he thought Mrs. Keck had done on the stand, he shrugged. “I think she was capable of lying, but Randolph didn’t have a shred of evidence to support the butler’s story.” He asked if I had seen the house, and said he thought it comparable to the Uffizi or the Pitti Palace.
Inside the courtroom, Christina Donell and Andy Ariza, the son of Esther Ariza, waited for the verdict on opposite sides of the courtroom. Mrs. Donell, in a yellow dress, looked pleasant if nervous. Andy Ariza is a thin young man with dark hair and skin. The jury filed in, and the foreman announced that they had come to a decision. The judge asked Roy Donell to stand for the verdict. When the foreman read the words “not guilty on two counts of grand theft,” Donell sank back into his chair. Randolph hugged his client and asked that he be released immediately, but Donell had to be taken back to jail until he was cleared on the computer.
Afterward, the jurors appeared to be delighted with what they had done. A few crowded around Randolph and said that Mrs. Keck had been arrogant and that it was clear from her testimony that she would say anything that suited her purpose.
After the trial, Mrs. Keck called me, saying that she had kept silent for thirty-seven years and that she finally wanted to tell what had really happened in the Keck family. When I arrived at her attorney’s office, she was wearing black trousers, a black jacket, and a white silk blouse.
“It started the first year we were married. Howard’s brother, Bill, was running Superior Oil. There had always been a great deal of rivalry between them. When they were boys, their father would bait them to make them fight. Bill made some mistakes that year – I won’t say what – and Howard took over the company. When Howard junior was born, it was unfortunately on Uncle Bill’s birthday. It was as if my husband transferred the rivalry from his brother to his son. It made me nervous, and I overcompensated. The more I tried to keep the child from being hurt, the more jealous his father became. The drama culminated in the Houston lawsuit. Howard junior faced the fact that he could never win with his father. There was never any question that my husband was Howard junior’s father. He was trying to scare Howard junior, and he was trying to blackmail me, to impeach my testimony should I be called as a witness. I would look terrible before I ever opened my mouth. Francesca really hadn’t been central until then. But Howard needed an ally. And Francesca would become a Keck heiress.
“I just wanted to get the facts out. I didn’t want the question of his paternity hanging over my son’s head. There was so much that didn’t come out in the Houston litigation or at Roy Donell’s trial.”
“That was a miscarriage of justice,” said Sorrell Trope. “It’s hard for the super-rich to get a fair jury trial in this country. And we had to prove guilt beyond the question of a doubt.”
“And I couldn’t even hire my own lawyer,” Mrs. Keck added. “I had to use that Mr. Montagna.”
“My client has been defamed. On Monday we will file a lawsuit against Donell for $25 million that will include John and Jane Doe so that we can name others was we see fit. In a civil trial, we’ll have much greater latitude for deposing Donell.”
“And do you think Roy Donell will sue you?” I asked Mrs. Keck.
“Me? How could he sue me? I haven’t done anything. I didn’t accuse him. The Los Angeles Police Department did.”
“Before all this happened,” I asked Mrs. Keck, “was your family ever close?”
“No, we never were. My husband traveled most o the time. I read in Fortune one time that the Keck’s weren’t a family but a collection of people with the same last name. I think that’s about true.”
“Well, why are you and Mr. Keck still living together?”
Mrs. Keck looked to Trope. “I guess you had better answer that.”
Trope explained that it wasn’t that unusual in California divorces to have both members of a couple wanting to maintain their style of living, and he said that the house would present a special problem in a settlement because they wouldn’t be able to find a “comparable” in Los Angeles. “you’re getting along all right?” he asked Mrs. Keck. “You’re speaking, aren’t you?”
“No, we haven’t spoken for weeks.”
On the following Monday, Mrs. Keck filed suit against Roy Donell et al. for $25 million. Two weeks later, Roy Donell sent a letter to Mr. Keck asking that the Kecks’ insurance carrier cover his upcoming legal fees as damages incurred while in the Kecks’ employ. Donell had become just like family.
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