For those of us with nothing better to do than follow the latest Lindsay Lohan legal drama, this week marked an important moment: Lindsay officially issued a statement saying she would not take a plea deal (which would have involved some mandatory jail time) on felony grand theft charges of stealing that now-infamous necklace. Instead, she will take her chances at trial.
LiLo had already indicated that she wouldn’t take any plea that involved jail time, but since she isn’t exactly famous for her top-notch decision-making skills, we asked some people who actually went to law school to weigh in on whether going to trial is a good idea.
Gerald Lefcourt, a prominent New York attorney and past president of the Association of Criminal Defense Lawyers, points out that the question of whether to make a deal or go to trial is the critical question in every case. Says Lefcourt, “One of the toughest and most important decisions an accused faces is whether to accept a negotiated plea offer or take the risk of going to trial and have her fate decided by a jury. That decision is even more difficult in high profile cases where concerns about damaging pre-trial publicity, public sentiment about the accused, and the ability to find a fair and impartial jury predominate. Pleading guilty eliminates uncertainty and is often the best way to mitigate the risk of receiving a harsher sentence if convicted after trial.”
That is the same logic that prompted most of the media to take the position that Lindsay ought to have quit while she was ahead and taken the plea while it was still on the table. But when it comes to this particular case, celebrity lawyer Ed Hayes—who has represented everyone from Diddy to DeNiro, and who was the basis for the lawyer character in ‘Bonfire of the Vanities’—thinks Lindsay might actually fare better at trial.
According to Hayes, the first question to ask is: Did she do it? “I wouldn’t take a plea if she didn’t do it,” he says. Hayes believes this case will hinge upon whether the defense is able to produce evidence that supports the theory that Lindsay was borrowing the necklace for a photo shoot or other event, with the store’s consent. “Suppose they get a stylist who comes to court and says ‘Lindsay brought me the necklace because we were gonna use it for a shoot, and I forgot to bring it back.’ If that’s the case, she’s gonna get acquitted,” he says, adding that if she has a legitimate defense, then it shouldn’t be difficult to prove it.
And in fairness to Lindsay, that isn’t such a radically farfetched idea. She may be an easy target, but the reality is that there are many reasons to believe that she may actually be innocent this time around. For starters, she had $3,000 in cash with her at the time of the supposed theft (which we know because on the same visit to the store in question, she made a cash offer on a ring for that amount).
Also, it has been widely reported that the storeowners have been shopping a book deal about the episode. “Trying to sell a book deal based on a relatively minor shoplifting incident is really scuzzy,” says Hayes. And it undermines the complainant’s credibility, indicating that they’re just in it for the publicity and possible payoff.
Finally, Hayes points out that after the alleged theft, Lohan made no effort to conceal that she had the item—after all, she was photographed wearing it afterwards, which is what led to her arrest in the first place. “She wasn’t hiding it; she was wearing it, and that’s a reason to believe her,” he says. And by wearing their necklace out in public and being photographed in it, she was actually helping the store, not hurting it. As Hayes notes, “They can have a photo of her wearing the necklace in the store window and double the price, sell it to unsuspecting customers claiming it’s the exact one worn by Lohan in the photograph, and make a fortune on a necklace that originally cost them probably no more than $1200.”
But even though there are valid reasons to believe she didn’t do it, in a criminal trial the bottom line is whether the jury buys what you’re selling. “If she’s a real bitchy kind of person, she’s not going to be very attractive to a jury, which is a big thing,” says Hayes.
Well in that case, sorry Lilo, you’re jail-bound. Just kidding. In reality, Lindsay is sort of a pathetic creature, and with the right jurors, she might come across as more sad than evil. “I might put her on the stand and have her say, ‘Yes I’ve had a troubled life, my father is a hoodlum, I’ve always had a drug and alcohol problem, my life has fallen apart. But I didn’t have any reason to steal that necklace and I didn’t do it,’” Hayes says.
So what would the ideal jury look like? Hayes would prefer men to women. “Women might not be as sympathetic to a troubled girl. Younger women might like her because of her celebrity status,” he says, though we think they might also be just as likely to resent her for the same reason. “I’d also take the type of men who are naturally protective of young women—‘street guys’—who might say, ‘she’s just a kid, and they’re trying to take advantage of her.’ I wouldn’t take, say, a banker or an accountant. I’d definitely take a social worker, a person who works in a store, a stylist. It would be great to have a stylist on the jury.”
“I feel bad for her,” Hayes continues. “She’s from East Patchogue, it’s basically a slum for white people. That’s where I’m from. She’s Irish; we’ve all got drinking problems in our families and she does too. My father was a hopeless drunk, and I know that kind of mentality. She’s a drunk like her father was a drunk and probably her grandfather was a drunk. It’s very hard to overcome it. She probably needs medication. She’s got a genetic, organic problem and she’s got a genuine substance abuse problem. It’s not like she chose to be an evil person. She’s had this problem for many years and she hasn’t been able to work her way out of it. If anything she’s spoiled, she got away with murder for most of her life because she’s pretty and had some talent, and now we’ll have to see how this goes – it’s a key moment for her.”
Well, perhaps if Lindsay is really lucky, she’ll have someone like Hayes on the jury.
A shorter version of this article originally appeared on PopEater.com.