It is perhaps excessively charitable to characterize as merely bizarre the trial and resulting decision in the case of just who should have custody of the decaying corpse of former Playmate of the Year Anna Nicole Smith.

Underpinning the entire madness was the unstated assumption that the dead (no one said “dead” of course; they said things like “passed on,” “passed away,” and other euphemisms of denial) former model will know, care, and be emotionally affected by, where her “remains” are “laid to rest,” i.e. buried, so that she can “finally” be really dead or something.

Not unexpectedly, a while back the 20’s or 30’s something bride was left a widow woman when her 90’s something billionaire husband died, and some millions of dollars were left to her in a much disputed will. Recently her son died and was buried in the Bahamas. Then Anna Nicole died, leaving behind a young daughter sired by presumably only one of an increasing list of competing applicants. No DNA tests have been done, so the fatherhood of said child is as yet undetermined. Maybe no one knows for sure. Motherhood is a fact, fatherhood is an opinion. If you (assuming you are male) were the father, and by being so declared could perhaps manage lots of money for your daughter’s estate, would you not be first in line at the DNA lab? And if you knew you were not the father, but were in fact a perjurous fortune hunter, would you not resist having a DNA test done? Just wondering.

Then there was the estranged mother of the corpse, who had not seen her now dead child for years, but who really loved her and had warned her about the drugs she thinks wasted both daughter and grandson. She wants the body. The law, as will be explained, says she gets it.

Stir into this a roomful of lawyers, doubtless being paid by the hour to be on national television, and an arguably narcissistic emotionally troubled incompetent for a judge, and compelling drama must needs result. And it did.

Lest your narrator run afoul of legal rules prohibiting him as an attorney from comments tending to bring the bench and bar into disrepute by commenting on behavior that brings the bench and bar into disrepute, permit the caveat that the following remarks are rendered as opinion, satire, fair comment, paraphrase, or imperfect attempts at public education directed toward improved understanding and delivery of legal services, and are intended to be neither the absolute truth nor criticism of anyone. The following are not statements of the law or of the facts of this case and should be understood as creative fiction, in that it is inconceivable that such things could actually have happened, and the fact that your author was not there and is not an authority on the law herein discussed.

A dead human body is regarded by the law as personal property. Therefore, certain fairly simple rules apply. In the Florida case that resulted when Anna Nicole was found dead, the rule is thought to be that the body is, upon application, to be delivered to the next of kin who may claim the property and dispose of it in a lawful manner, that being usually burial or cremation, in a given jurisdiction or wherever, although there are of late other neat things, like….. Never mind. Please consult “On the Disposal of Human Remains,” from Baubles of Blasphemy, by your author. It can be found here: http://www.edwinkagin.com/columns/human-remains.htm .

It works like this. The next of kin gets the body. There is really nothing complex to decide. The spouse gets the body. If none, then it goes to a child over the age of eighteen. If none, then to a parent. Freeze frame. We need go no further. In the case under consideration, there was no spouse. There was no child over eighteen. There was a parent who would take, and who wanted, possession of the body. Simply, huh? Case closed, right? Mother gets the body doesn’t she? Hardly.

Rather than reaching the obvious legal conclusion and giving the dead girl to her mother for burial, the hearing involved several days of irrelevant and inadmissible testimony, ranging from speculations on paternity, and on who slept where, to a video of an grossly impaired Anna Nicole in a clown costume, with the whole show punctuated by arguably improper leading questions and personal antidotes and opinions issuing from the seemingly emotionally disturbed, or incompetent, and frequently weeping, trial judge.

Then, in a sudden change of direction, the judge, appearing as if he was about to decompensate on the bench, and giving the impression to keen legal observers that someone with more authority and sense than he had told him to give it up and go home, the judge declared a short break, returned, and tearfully rendered his ruling. Custody of the corpse was awarded, he said, to the guardian ad litem of the minor child. Said guardian ad litem was ordered to decide, in his sole discretion, where the body was to be buried. And, the judge said, that place was to be beside the body of Anna Nicole’s dead son in the Bahamas. The judge then declared that he was completely through with the case, that he had no further jurisdiction over anything, and left.

Where to start? Well, a guardian ad litem is a court appointed attorney who is in a case to represent a minor child’s best interests and to protect said minor child’s legal rights. This is fit and proper. A “guardian ad litem” is not a legal “Guardian,” as that term is ordinarily understood. “Ad litem” means for the purposes of the legal action, the instant litigation, and not for anything else. A true Guardian is a person given essentially lawful custody and decision making authority by a court for a minor or for an incompetent adult. There is no legal authority whatsoever to give a guardian ad litem possession of the body of the dead mother of a minor child. For that matter, there is no legal authority to give a true Guardian the body of anyone who is not his next of kin. And there is no authority for a judge to assign to a guardian ad litem the judge’s responsibility to follow the law and to make a proper legal ruling.

One must feel sympathy for the judge and hope that he gets help.

The mother is appealing the decision.

And the body is decomposing.

Edwin Kagin
February 22, 2007