Wednesday, September 30, 2009

Table of Contents

New September 2009:
Ron Ito and the Author of the Month Club – Part I (2/2/05) – Co-Lead Detective Ito testifies about his bias toward the evidence



If For Nothing But to Take a Stand (7/16/08) – The California Supreme Court denies the appeal

Justice or Just Dishonest? - Part I - Exhibit 523 (4/25/08) – See No Evil, Hear No Evil, Speak No Evil in the Court of Appeals

Justice or Just Dishonest? - Part II – Nor is Justice Deaf (4/25/08) – The Court of Appeals said what?

The Heart of the Appeal (1/15/08) – M. Gerald Schwartzbach argues for justice in the Court of Appeals

Is a Rich Man Always Guilty? (2/28/07) – M. Gerald Schwartzbach files his opening brief

Criminal Trial

The Hollywood 12 (3/24/05) – The criminal trial jury

Eye on the Sparrow (3/16/05) – Robert Blake’s Acquittal

Verdict Watch (3/15/05) – Behind the scenes while the jury deliberated (NEW)

The Right-Handed Shooter (2/25/05) – The defense theory on the shooter

God's Witness (2/23/05) – Blake "testifies" as the defense rests its case

The Golf Buddies (2/22/05) – What William Welch told Michael Thrasher

The Court Jester (2/17/05) – Criminal trial testimony of Eric Dubin, plaintiff’s civil attorney

Family Affair (2/15/05) – Testimony of Cole and Karen McLarty re: Gary McLarty

The Housekeeper (2/15/05) – What the Housekeeper saw

Shell Game – Part I (2/9/05) – Duffy Hambleton talks about taking care of business

Shell Game – Part II (2/10/05) – Duff Hambleton lies about lying

Confessions of a Snake Oil Salesman (2/8/05) – Frank Minucci and the prosecution’s ethics

The Tea Leaf Reader (2/5/05) - Can a man conjure up the past by looking into a pool of blood?

Ron Ito and the Author of the Month Club – Part I (2/2/05) – Co-Lead Detective Ito testifies about his bias toward the evidence (NEW)

The Boo-Hoo Girl (1/24/05) – The misadventures of Cody Blackwell and her wolf-dog

Lies of Consequence (1/20/05) - The Prosecution calls William Welch

LAPD Hawker (1/19/05) – Book Author, Miles Corwin, testifying about his book and his whereabouts

The Bomb Squad - Part II (1/18/05) – A box, two cops and a criminalist with a double standard

The Bomb Squad - Part I (1/5/05) – Keystone cops collect some evidence

A Cry for Help and Water (12/21/04) - Two versions of the 911 call are played for jurors

Civil Trial

The Worst Form of Vigilantism (4/10/06) – M. Gerald Schwartzbach’s plea for a new trial

Injustice (4/5/06) – The civil jury’s motives

Nothing from Nothing (2/3/06) – Blake’s bankruptcy filing

The Message (12/8/05) – M. Gerald Schwartzbach’s letter to the LA Times

The State's Conspiracy - Part I (10/31/05) – What Brian Allan Fiebelkorn knew about a third party conspiracy to murder Bakley

The State's Conspiracy - Part II (11/2/05) – The State denies the evidence

Where Deceit Hides - Part I (10/27/05) – Dianne Mattson's and others' testimony regarding Christian Brando

Where Deceit Hides - Part II (10/25/05) – The police investigation into Christian Brando


It is a Sin to Kill a Mockingbird (11/19/04) – Earle Caldwell takes the Fifth

Other Posts

Crime and Politics: Tales of the Incumbent DA (5/25/08) – LA District Attorney Steve Cooley exposed!

LAPD Reform (5/20/07) – Brian Fiebelkorn's letter to Chief Bratton

Corruption (1/2/07) – LAPD Detective Ronald Ito is under investigation

Messages in an E-Bottle (1/2/07) – How the World Wide Web played inside and outside the courtroom

Two Trials (2/24/06) – a comparison of the criminal and civil trials

When is a Murder Entertainment? (12/28/05) – The media’s reaction to a murder

Hard Evidence (12/27/05) – A summary of the physical and circumstantial evidence

Search for the One-Armed Man (10/15/04) – A comparison between the Bakley murder and the Sheppard murder cases.


Wednesday, July 16, 2008

If For Nothing But to Take a Stand

On June 9, M. Gerald Schwartzbach, appellate attorney for Robert Blake, filed a petition for a civil case review with the California Supreme Court. The filing was in response to the California 2nd District Court of Appeals’ denial of Blake’s appeal for a mistrial based on juror misconduct and its subsequent denial of a rehearing on the matter.

On July 16, just 16 days after receiving the Appellate court record, the Supreme Court denied without comment Blake’s petition for review.

In that petition and the previous rehearing petition, Schwartzbach charged that the California Appellate Court disregarded the law when it reduced the jury award from $30 million to $15 million.

The Appellate Court, in its unpublished opinion, said that it found no “prejudical” juror misconduct against Blake, then contradicted itself when it ruled that jurors were influenced by “passion or prejudice” when they awarded such a large amount. And with the logic of the Queen of Hearts, the Court also said that “sending a message to celebrities and rich people” was an acceptable part of the jury’s thought process when determining the award.

Schwartzbach argued that the California Supreme Court directs that non-economic damages (in this case, the loss of society, comfort, care and protection) be tethered to economic loss.

In its opinion, the Appellate Court did consider the testimony that showed Bonny Lee Bakley had no legal income, had little contact with her children, and that the source of her money came from scams and illegal activities. In civil court, Eric Dubin, plaintiff's attorney, showed no evidence that Bakley was attempting to change her lifestyle. Since Bakley obtained no money legally, the economic loss to Bakley's children was zero. The Court in its opinion ignored this consideration when they halved the award. So, in essence, the Court ruled that Bakley, in the rest of her lifetime, would have stolen $15 million from her victims -- a sad message from justices sworn to uphold the law for every man.

Schwartzbach returned pro bono to handle Blake's appeal, an action that is almost unheard of in civil cases. He said he returned because he believed in Blake's innocence. Believing in justice and defending the innocent are part of Schwartzbach's mettle. He is not a man who will be shaken easily by a defeat. He once spent 16 years working to free a convicted man.

There are more battles to come. If we are destined to lose them, in our hearts we will know that what we stood for was right.

And someday a child named Rose may find the path we took, and know that her father was an innocent man.

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Sunday, May 25, 2008

Crime and Politics: Tales of the Incumbent DA

On June 3, the voters of Los Angeles County will have the opportunity to re-elect Steve Cooley to a third term as District Attorney. He is the predicted winner, according to the mainstream press, in part because of his incumbency and the $800,000 he raised for his re-election campaign, over $700,000 more than his opposition. Although he is “reluctantly” endorsed by the Los Angeles Times1, the Times continues to pay him homage. That praise may be deserved, but should be balanced by some of the more questionable, if not unethical, situations in which Cooley has inveigled himself during his two-term tenure as head District Attorney.

If it’s true that all power corrupts, Cooley is a perfect example, at least according to his opposition, Steve Ipsen and Albert Robles. Both candidates have charged Cooley with playing favorites.

Ipsen, a prosecutor and president of the Association of Deputy District Attorneys, has stated that Cooley raised his campaign money partly through contributions from Los Angeles defense attorneys and their staffers. To further illustrate Cooley's coziness with the LA defense crowd, Ipsen charges that at Cooley's birthday bash, the guest list largely consisted of defense lawyers. And, according to Ipsen, no one from Cooley's office was invited2. An odd tea party indeed.

Contributing to Cooley's reelection isn't against the law, but Ipsen felt so strongly about the conflict of interest that he submitted an initiative in late 2007 to the secretary of state. Marsy's Law, an initiative to protect victim's rights, in part bars criminal defendants and defense attorneys from donating to campaigns for prosecutorial offices.3

Calling defense attorney contributions to the district attorney a “conflict of interest” is like calling a tornado a breeze. It implies payoffs, and things that can be fixed, such as verdicts in a courtroom. Imagine defendants with high-powered attorneys who scratch Cooley’s back – and vice versa.

In fact, in 2003, high-powered Los Angeles Defense Attorney Harland Braun, representing a company accused of campaign money-laundering for a local city councilman, admitted he donated to Cooley’s campaign and admitted that Cooley solicited other attorneys as well.4 It seems that Ipsen’s claims are not totally unfounded.

Braun was Robert Blake’s defense attorney in 2002. In a highly-publicized story, Braun allegedly quit as Blake’s counsel because Blake insisted on doing a jailhouse interview with Barbara Walters. But were there underlying reasons that Blake had to finally retain a defense attorney who practiced outside Los Angeles? If Braun’s contribution to Cooley’s campaign looks innocent, consider also Braun’s private investigator, Scott Ross, who reportedly worked with co-Lead Detective Brian Tyndall in the Los Angeles Rampart division and knew each other well. Tyndall was brought in on the Blake case about a month after Bonny Lee Bakley’s murder in June 2001. Some would call it coincidence, others circumstantial.

Ipsen is not the only prosecutor who has accused Cooley of cronyism.

In 2005, Matthew Monforton, a district attorney from Cooley’s office, filed a complaint against his boss alleging conflict of interest in cases involving campaign money-laundering, environmental crime, and political corruption.5 All of the cases were directly or indirectly linked to Cooley’s longtime friend and supporter, defense attorney Robert Philibosian and Philibosian's law firm.

Recently a judge barred the entire District Attorney's office from participating in a woman's appeal of her 1982 murder conviction on the grounds that prosecutors renegged on a plea bargain.6

According to the Los Angeles Times article, "…Cooley and his top aides made an initial agreement in 2005 to allow Peagler [the defendant] to plead to a lesser charge… but changed their minds after learning more about the slaying." The District Attorney agreed to reduce the charge to manslaughter, allowing Peagler to appeal for release. Defense attorneys said that at the time of the plea bargain, Cooley's office requested that the defense not reveal in court papers that Cooley's office had withheld evidence of a 1983 memo that showed a key witness had lied while testifying at Peagler's trial.

Campaign contributions may not be illegal, but withholding evidence certainly is.

Others will claim that Cooley does his job with a certain level of tenacity. Ask Stephen Heller. Heller is a whistleblower. While working at Jones Day law firm which represented Diebold, a company that supplies voting machines in Calfornia, Heller found evidence of irregularities regarding Diebold’s voting machines -- irregularities of which Diebold was fully aware -- and other evidence showing that the law firm had warned Diebold about violating California election laws by using uncertified vote-counting software7. Heller turned memos detailing his allegations over to an election watchdog group, Black Box Voting, and also to the secretary of state and the Oakland Tribune.

Although the whistleblowers of Enron and Worldcom were lauded as heroes on the cover of Time magazine, Heller got a different kind of recognition. Cooley filed charges against Heller for computer theft, commercial burglary, and receiving stolen property. Heller tried to fight the charges, and a defense fund was set up to help, but in the end Heller was forced to plead guilty to felony computer crime, fined $10,000 and three years probation, and apologized to Diebold and the Jones Day law firm8.

In November 2007, Cooley asked the LA Board of Supervisors for a raise, claiming he made less money than his counterpart in the Public Defender’s office. Although the Public Defender made $395 more than Cooley, the Board approved a raise of $55,000, or approximately 23 percent, bringing Cooley’s salary to $292,300. Cooley now makes more than the highest paid U.S. Supreme Court justice, Chief Justice John Roberts9 -- and, certainly far more now than the Public Defender, who may never catch up.

In a time when Los Angeles and California are facing budget cuts, one wonders what the city council was thinking. Surely, few private citizens in Los Angeles have received a 20+ percent raise for doing their jobs.

What makes it more offensive is that jurors who sit through trials and are tasked to evaluate all the evidence, follow the rules of the court, and fairly render a verdict are paid $15 a day plus one-way mileage for their time and inconvenience. And apparently, if they don’t agree with the District Attorney, Cooley can get away with publicly calling them “incredibly stupid,” as he did after the Blake verdict10. It was not only unethical, but unlawful to harass jurors in such a manner. The rules, however, don’t apply to Cooley.

During Blake's wrongful death trial, a civil jury heard evidence that the criminal jurors hadn't heard – a secretly recorded tape made by Lead Detective Ronald Ito. Ito is heard on the tape attempting to intimidate a witness, Brian Allan Fiebelkorn, who had evidence of third party culpability. In it, Ito tells the witness he, Cooley, and criminal prosecutor Shellie Samuels knew all about the evidence and were not going to allow it to be presented in court.11

That tape recording was never turned over to the defense during the criminal trial or civil trial. It is presumed that the tape was mistakenly turned over to the plaintiff in the civil matter by the DA's office. No surprise since many other tape recordings had mysteriously gone missing during the criminal trial, including the recording of Blake's interview with police the night of the murder. During that interview, Blake made statements regarding a black Lincoln Continental and a man in a black pickup truck, evidence which was later corroborated by Fiebelkorn.

Cooley has a penchant for "collecting" evidence in high-profile cases12. He has turned part of his office into an evidence museum, including some props from the county's historical vault. That vault contains pictures and transcripts from the Black Dahlia case, items from the investigation into the death of Marilyn Monroe, the clothes of assassinated U.S. Senator Robert Kennedy, and records from the Charles Manson trial. One curious item belongs to Michael Jackson – a suitcase containing books, clothes, and personal items. Jackson was acquitted of molestation charges in 2005, and presumably, personal items taken as evidence, if they no longer hold evidentiary value, are released to their owner.

Unless Jackson gave Cooley permission to keep the suitcase among his crime memorabilia, isn't that stealing?

In his 2004 acceptance speech after winning a second term as LA District Attorney, Cooley credits himself for the formation of the "Justice System Integrity Division."13 According to Cooley, the JSID is "charged with investigating and prosecuting allegations of criminality by police officers, attorneys, judges, anyone in justice system who violates the trust placed in them as part of that system."

Cooley claimed that this "reform" was brought about in part by the Rampart scandal. Rampart was a case involving wide-spread misconduct by Los Angeles police officers. But instead of prosecuting the accused officers as he promised in his first term as DA, Cooley declined to file dozens of charges and left other complaints uninvestigated until the statute of limitations ran out on the crimes14.

During his campaign for his first term, Cooley criticized then District Attorney Gil Garcetti for seeking a third term. Cooley vowed he would never do that. "If you can't accomplish what you're going to accomplish in two terms, move on," he said15.

Now full of himself, Cooley justifies his third bid for DA, stating that "I see situations out there that maybe only I can fulfill."

A sure sign, it seems, of the self-serving comfortableness that comes with power and control.

1 For District Attorney and the Board of Supervisors, LA Times, 4/28/08

2District Attorney Corruption? Two Views on DA Cooley's Record, Full Disclosure Network, 5/14/08

3ADDA's Ipsen Offers Initiative to Prevent Defense Bar from Contributing to Prosecutors' Campaigns, Metropolitan News-Enterprise, 12/18/07

4Indicted Donors Gave to Council, LA Times, 12/23/03

5The Steve and Bob Show, LA Weekly, 8/16/06

6D.A. Barred from Abused Woman's Appeal of 1982 Muder Case, LA Times, 4/26/08

7Diebold's Revenge, LA Weekly, 3/1/06

8November 21, 2006 article from the Oakland Tribune, Heller Legal Defense Fund

9L.A. Supervisors to Consider Raise for District Attorney, The Daily Breeze, 1/14/08

10No Apology for Robert Blake Jury, CBS News, 3/25/05

11The State's Conspiracy – Part II, Eye on the Sparrow, 11/2/05

12Historic Trove Recalls Famous L.A. Crimes, LA Times, 12/23/07

13About District Attorney Steve Cooley, Oath of Office Remarks 2004, 12/6/04

14LAPD Corruption Investigation to Result in Few Charges, CNN, 11/7/01

15Steve Cooley Makes his Case for Third Term as L.A. County D.A., LA Times, 5/18/08

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Friday, April 25, 2008

Justice or Just Dishonest? - Part II - Nor is Justice Deaf

A large part of the Tual v. Blake civil appeal consists of claims of juror misconduct. In his opening brief and his response brief, M. Gerald Schwartzbach, appellate attorney for Robert Blake, named off numerous offenses of misconduct which he told the court were "unrebutted."

One of those was a claim by Juror Elias who said he couldn't hear much of the testimony. Two other jurors, Valdivia and Lucerno, said in sworn statements that Elias told them he had heard only "half" the testimony. Elias himself on at least a few occasions was captured in the court transcripts complaining of his inability to hear.

Elias also claimed to have been badgered into changing his vote to liable during deliberations and that jurors bargained with him, saying that they would award zero damages. Forman Horn told Elias he did not want a "hung jury" when Elias asked to be excused.

The California Court of Appeals justices Klein, Croskey and Aldrich examined Elias' claims, writing in their opinion, "The duty to listen carefully during the presentation of evidence at trial is among the most elementary of a juror's obligations. …Were the rule otherwise, litigants could be deprived of the complete, thoughtful consideration of the merits of their cases to which they are constitutionally entitled." The Court then cited the U.S. Constitution, Amendments 6 and 7, and the California Constitution, Article I, as the foundation for these beliefs.

But the Court concluded that it was okay that Elias couldn't hear "some" of the testimony, since it could not determine which parts of the testimony he missed. They concluded he may have only missed testimony of "little or no practical importance," and that the Court could not establish that he missed "important" testimony.

But if Elias had missed even 10 percent of the two-month trial, he would have missed almost one week of testimony. According to Lucerno and Valdivia, Elias said he missed "half" the testimony, which would have been the equivalent of one month's worth.

How could a court ever determine what testimony was of no practical importance? Every witness that an attorney calls is called because that witness is one of the essential building blocks to proving his case. Jurors take an oath to listen to all witnesses and decide a verdict based on the evidence they heard. If Juror Elias could not hear "some," "much," "half," or even "a little" testimony, then he could not have listened to all the evidence, thus depriving Blake of the "complete, thoughtful consideration" afforded to him by the U.S. Constitution.

The Second District Court of Appeals did, however, cite a 1982 California Supreme Court case where that court indeed found that missing some testimony was not considered prejudical misconduct. The appeal of that case, Hasson v. Ford Motor Company, was in part based on a claim that one juror was reading a novel and others were playing crosswords during testimony.

What is even more interesting is that the Court chose to use a 1982 case instead of their own 2008 case, Ovando v. County of Los Angeles. In the Ovando case, published just three days after Schwartzbach's oral argument, the justices described the standards for which they judged misconduct. Apparently they didn't feel the need to apply their own standards to Blake.

The similarities between the Blake case and Hasson are quite remarkable. Hasson also started in the Second District Court of Appeals, involved an excessive damage award, and additional claims of misconduct including one juror who concealed information in voir dire and another who made biased statements before deliberations. And, just as in Blake, the responding party turned over counter-declarations from the jurors denying any misconduct but did not rebut allegations made about the reader and the crossworder.

The Appeals Court in the Blake case compared the situation of Juror Elias with those of the Hasson jurors who were pursuing recreational activities in court. The Appellate Court found that the behavior of those jurors constituted prejudical misconduct and ordered a new trial. Their decision read as follows:

"A crossword-puzzle working juror attempting to ascertain the proper word has a closed mind, or at a minimum, an interrupted attention span. Similarly a novel-reading juror cannot concentrate on both the flow of the plot and the flow of the testimony. Such inattention implies prejudgment of the case, which is misconduct.

Nothing admissible appears in the record herein to rebut the presumption of prejudice which arises from such juror misconduct. The inescapable conclusion is that the parties did not have 12 unbiased, impartial jurors."

But this is not where the story ended in the Hasson appeal.

Hasson, the plaintiff in the case, took the appeal to the California Supreme Court in an effort to reverse the Appellate Court's declaration of a mistrial. Seven justices heard and reviewed the plaintiff's argument.

In regard to misconduct, six justices, the majority opinion, found that although the defense claimed that the jurors were reading and doing crosswords, there was no point identified in the record when these jurors were seen doing those acts. Further, the justices pointed out that the matter was never brought to the attention of the trial court judge, the bailiff, the court reporter, or any of the attorneys present.

Although Hasson obtained declarations from the accused jurors denying the alleged activities, the court found that the Ford's claims of those activities were "unrebutted."

The Supreme Court said that it could not infer solely from the jurors' activities that they had prejudged the outcome of the case to the detriment of the defendant. So the Court examined the evidence against Ford and ruled that there was "overwhelming" proof of liability and that "no substantial actual prejudice resulted from the jurors' activities."

The Appeals Court in Blake appears to have relied heavily on Hasson to deny charges of prejudical misconduct in Elias' case. On the surface it appears as if the standard set in Hasson can be applied. However, Elias had a physical handicap, a "silent" handicap which could not be seen by others. So it would be impossible to determine what Elias heard and didn't hear. Indeed, Elias couldn't say what he didn't hear because he didn't hear it. Nor could the other jurors, the judge, the attorneys, the bailiff or the court reporter.

This wasn't a case of jurors reporting misconduct on other jurors. This was Juror Elias, freely admitting he didn’t hear. The corroboration of this misconduct lies with the accused juror himself.

Although the Court applied the Hasson inattentiveness test to Elias' situation, it did not apply the other standard on which Hasson was based – that of "overwhelming" evidence. It was that standard that minimized the effect of the Hasson juror misconduct. In other words, the misconduct was inconsequential because the evidence was overwhelming. The Blake Appeals court carefully avoided stating the evidence in Blake was overwhelming, and made only a veiled reference to it in regard to Hasson.

The Appellate Court knew it had no grounds for claiming overwhelming evidence. The civil verdict was not unanimous, and Blake had been acquitted in criminal court. They also knew that if they had claimed overwhelming evidence, it would strengthen Blake's case if Schwartzbach chose to petition the California Supreme Court for review.

It would also mean they would have to explain themselves.

The Court in its written opinion described some of the key witness testimony, carefully documenting mostly the plaintiff's viewpoint. There was no mention of Brian Allan Fiebelkorn's or Dianne Mattson's testimony, or that of the tape recording secretly made by lead detective Ronald Ito. What the Court didn't write, they knew they would not have to explain. And they also knew that this would be the introduction to the case the Supreme Court would see if they were considering a petition. It appears to be very clever sleight of hand.

In Hasson, one of the reviewing Supreme Court justices dissented from the majority opinion. In his dissenting opinion, Justice Richardson said the following about the Hasson decision:

"The case presents an important issue involving the integrity of our jury system, namely, whether a verdict may stand despite proof that sitting jurors were permitted, during the presentation of evidence, to read books or work crossword puzzles.

The present majority ignores this long established presumption of prejudice by purporting to rebut the presumption because defendant has failed to show actual prejudice! However, as the majority itself has observed, the presumption of prejudice was intended specifically to assist those litigants "who are unable to establish by a preponderance of the evidence that actual prejudice occurred." Thus, the majority casts the burden of showing a "substantial likelihood" of actual prejudice upon the very party whose inability to prove such prejudice created the presumption in its favor. This reasoning cannot be the law and it surely has not been our previous position.

Similarly, in the case before us when jury misconduct is established, the burden is upon the plaintiff to demonstrate that no prejudice resulted from the misconduct. It is not the task of defendant, who has the benefit of the presumption, to show prejudice.

Nor is the misconduct trivial or inconsequential. A defendant's right to a fair jury trial in civil litigation is of both federal and state constitutional significance. We should not countenance such a complete erosion of a constitutional command.

Moreover, my conclusion is not changed by defendant's inability to identify and match the particular periods of the jurors' distraction with the specific evidentiary presentation by one party or the other. That, of course, is not a critical point because oral or documentary evidence favorable to a defendant may be received during a plaintiff's presentation, and vice versa.

How, in fairness, is it possible for defendant which did not know of the misconduct, nor did anyone else outside of the jury box apparently, to prove that the jury's inattention injured it, either as to the liability or damage issues in this case? The jury's misconduct here was real, it was substantial and it is admitted. It is not an answer to say that because no one saw the misconduct, not judge, counsel, bailiffs or anyone else, therefore it must not have occurred.

Thus, I am unable to square the degree of admitted jury misconduct in this record with what I have always believed was the sworn duty of a juror to "well and truly try the matter in issue." This duty surely entails giving undivided attention to the evidence and court proceedings whether the trial lasts three hours, three weeks or three months. Litigants are entitled to no less."

Justice or Just Dishonest – Part I – Exhibit 523

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Justice or Just Dishonest? - Part I - Exhibit 523

The California Court of Appeals rendered their decision today in the case of Tual v. Blake, the 2005 civil case that Robert Blake lost and was found liable for $30 million dollars in the wrongful death of Bonny Lee Bakley.

The court found no jury misconduct or any validity in any other claim M. Gerald Schwartzbach, Blake's appellate attorney, made. In fact, the Court seemed to have gone out of its way to insure that nothing was found to be improper. But when they ruled on the admissibility of hearsay statements of Holly and Glenn Gawron, Bakley's oldest daughter and son, questions about the sincerity of their rulings arise.

On January 15, 2008, Schwartzbach gave his oral argument to the Appellate Court1. Before he started his argument, he talked about a request that had been made by the Court for exhibits from the civil trial. One exhibit, Number 523, had not been turned over to the Appellate court.

He explained that at the end of the civil trial, the defense’s exhibits were returned to the defense’s counsel, and the plaintiff’s exhibits were returned to the plaintiff’s counsel. Schwartzbach said he had never received Exhibit 523 in the criminal trial and the defense never received it in the civil trial, so he could not produce it for the Appellate Court. He also pointed out that he had filed a letter to the Court explaining this.

He looked over at Eric Dubin, plaintiff's counsel, as he talked about Exhibit 523. Dubin looked down at the ground. But Dubin's nonresponsiveness was not as interesting as the Court's. The three justices sat there listening, but no one asked Dubin why he had not produced it.

According to the Appellate Court website at the time, Dubin turned over one exhibit to the court on January 11, 2008, shortly after Schwartzbach had turned over all the defense exhibits in his possession. That exhibit was returned the same day to Dubin. No explanation was ever given on the website, and none was given in court.

Exhibit 523 appears to be a tape recording made by Bakley of a conversation she and Blake had sometime in late 1999. In it, Blake accuses Bakley of lying to him about taking birth control pills and asks her to get an abortion.

Dubin, during the civil trial, played this tape at a slower than normal speed, over the objections of the defense. It can only be assumed that Dubin played the slow-speed version for effect, making Blake sound more sinister, since the criminal prosecutors had played the tape at normal speed for both the preliminary hearing judge and the criminal trial court judge. Since the defense never had possession of either the slow-speed or normal-speed tape, Dubin must have received the recordings from the prosecutors, along with another tape of the lead detective in the case and a key witness2. On that tape, Lead Detective Ron Ito is heard intimidating Brian Allan Fiebelkorn in an effort to suppress Fiebelkorn's testimony.

In their unpublished opinion, the justices wrote that "the recording was admitted in evidence, but was not included in the appellant's appendix and has not been provided to this court in response to our requests to counsel. No written transcript of the recording is included in the appellate record." In other words, they blamed Schwartzbach, not Dubin, for failing to provide the tape.

Not only was Dubin not sanctioned for withholding the requested exhibit, the Court made assumptions as to what was on the tape to justify their rulings regarding hearsay statements and the admissibility of secretly taped conversations. They cited the tape as providing evidence of Bakley's state of mind -- that she had made tape recordings of her conversations with Blake because she was in fear of him. They argued that the Gawrons' statements that Bakley told them Blake said he "had a bullet with her name on it" showed that she was indeed afraid of Blake, thus justifying the admissibility of the tape and the statements.

But what they didn't explain was how a tape made in 1999 could be justified by statements not made until November 2000, the date the Gawrons claimed the "bullet" statement was made.

They also ignored the other tapes turned over by the defense – one where Bakley is trying to coerce Blake into making some statements about wanting to sell the baby she had with Blake. Bakley was clearly trying to pull off a scam, perhaps to use against Blake in the custody case that she knew would follow or to blackmail him. The conversation must have occurred after June 2000, when the baby was born. In it, Blake is heard telling Bakley, "What are you talking about? I'm not going to sell my baby." At the end of the tape after Blake hangs up, Bakley is heard laughing and saying, "Well, I guess that didn't work." Certainly, that tape recording was not made by a person who was in fear of Blake. The justices had that tape, they chose consciously to ignore it.

Although the justices argued that she taped Blake because she was afraid of him, they made no rebuttal of Schwartzbach's statements in his brief and his oral argument that Bakley routinely taped all her conversations. There is evidence that this was, in fact, the reason for the tapings.

Another tape was presented to the justices, one where Bakley taped a conversation with Christian Brando. Brando was heard on the tape saying something very close to what the Gawrons were claiming Blake said. Brando said that Bakley was "lucky somebody ain't out there to put a bullet in [her] head." The righteous justices never cited that tape in their opinion either.

It is worth repeating that all the tapes played in the civil trial were turned over to the justices except one. They cited the one tape they could not see or hear to rule on the admissibility of statements made by people who had an incentive for financial gain.

And the question remains of whether Dubin actually turned over Exhibit 523 and, if so, why was it immediately returned to him?

1Eye on the Sparrow: The Heart of the Appeal

2Eye on the Sparrow: Corruption

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Tuesday, January 15, 2008

The Heart of the Appeal

M. Gerald Schwartzbach stepped up to the lectern in the California Second Appellate District Court of Appeals courtroom to plead his case on behalf of Robert Blake. He was there to argue to Justices Joan Klein, H. Walter Croskey, and Richard Aldrich that jurors who found Blake liable for the murder of Bonny Lee Bakley showed extreme prejudice toward Blake and their conduct was unconscionable.

Tual v. Blake was the last case heard that afternoon. A wide variety of matters were presented before, including a decision in an asbestos case, a case of negligence versus misunderstanding, a defendant who charged his lawyers had scammed him, and a man who had a social services problem and had been unable to obtain the legal help he needed.

Schwartzbach got off to a rough start. He began his argument and was immediately interrupted by Presiding Justice Klein who asked how much time he was planning to argue. Klein was the gatekeeper. She made sure that the rules were followed and that the court was kept on schedule. Schwartzbach asked for 20 minutes for argument, and 10 minutes for rebuttal. Klein rebuked him about taking the maximum time allowed, even though there was more than enough time before court ended.

Schwartzbach began by saying he “took no joy” in talking about Bonny Lee Bakley, citing that Bakley had no legal income and that she had scammed money from unsuspecting victims. “All human life has value,” he said, but the $30 million dollar award for a person who made her living illegally demonstrates that there was something amiss. He called the award for liability and damages “grossly excessive.”

This seemed to cause some confusion among the justices, who asked if Schwartzbach was seeking to lower the award. Klein stopped him, saying that she wanted “no character assassination.”

Schwartzbach began talking about the offenses of the jurors when he was stopped again. Justice Croskey asked the names of the jurors and alternates, stating that the statements of the alternates were inadmissible1.

Once the juror tally was established, Schwartzbach cited the instances of juror misconduct which were “unrebutted.” Juror Hall, he said, stated before the defense presented its case that he would vote liable because Blake left Bakley alone in the car. Juror Mendoza said the Bible supported a finding of liability. Juror Severson withheld information that her daughter was serving a life sentence for murder. Juror Elias had a hearing disability and jurors told him their interpretations of what was said. Schwartzbach said Elias didn’t hear a “substantial” amount of testimony.

One justice wanted to know where in Elias’ declaration he said he didn’t hear substantial testimony. “Do we really know how much he didn’t hear?” he asked Schwartzbach.

Schwartzbach attempted to qualify his statement saying that Elias didn’t hear much of the testimony. Again he was met with protests from the justices about how much he couldn’t hear. Schwartzbach finally settled, saying Elias had difficulty hearing some of the testimony. Then he recited points from Elias’ declaration.

Unfortunately, what Schwartzbach wasn’t able to locate at that moment was a statement in Elias’ sworn declaration where Elias said that he missed “half of the testimony.”

Justice Aldrich said he saw the appeal as a way to get jurors who were against the verdict to say things about other jurors. He said he saw no evidence of credibility in the declarations. Justice Croskey said that Schwartzbach was trying to impeach the verdict with the "classic he said/she said."

Schwartzbach reminded the court that he had turned over certified documents attesting to Severson's daughter's murder conviction.

Juror Valdivia, although she gave sworn statements to both the defense and the plaintiff, never retracted any of the statements made to the defense regarding misconduct, Schwartzbach pointed out.

Valdivia didn't retract the allegation that jurors said the amount awarded should send a message to the world that rich people and celebrities couldn’t get away with murder, and that enough money should be awarded so the Bakleys could get custody of Blake's daughter Rose. Nor did she retract the statement that during deliberations jurors talked about the OJ Simpson and Michael Jackson verdicts.

"So what?" Justice Klein quipped in response to the mention of the high profile cases.

"The public believes they were guilty," Schwartzbach replied.

"You don't know that for a fact," Klein said.

Schwartzbach also pointed out those accused of the misconduct never denied making the alleged statements.

Schwartzbach asked the court to review the declarations with California Evidence Code 1150 in mind and not consider subjective reasoning statements. He asked them to resolve the conflicts in the statements and consider what was left.

Evidence Code 1150 states in part, "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."

Schwartzbach said that it was "indefensible" that Holly and Glenn Gawron were allowed to testify to hearsay statements from their mother that Blake had a bullet with her name on it. He added that those statements came from two people who sold cocaine to a 17-year-old. Even if that testimony was allowed, it should have been discussed in a 402 (evidence) hearing without the jury present.

Bakley taped many conversations from many people, breaking the law each time she did so.

"The rules of evidence didn't apply," Schwartzbach argued, referring to the civil court judge's decisions to allow such evidence into the record.

Although misquoted by the Associated Press, Schwartzbach said that Blake had a right to 12 competent jurors. One of the justices seized on the word "competent" and charged that Schwartzbach had no evidence jurors were incompetent.

Justice Klein asked if Schwartzbach's argument was the exact argument put before Judge David M. Schacter during the civil trial's motion to dismiss hearing. It appeared she may have been fishing in support of Dubin's argument, that the trial judge had a wide berth in determining matters of misconduct.

Schwartzbach confirmed it was the exact argument. It is not known why he told the court this, since neither the admissibility of the tape recordings nor the hearsay statements made by the Bakley children were argued during that hearing. Schwartzbach did say there were motions to strike that evidence but Schacter denied those and the motion to dismiss without rendering opinions.

As the oral argument went on, Justice Croskey seemed willing to consider the misconduct allegations, particularly in the case of Severson. He asked what questions the jurors were asked in voir dire, and whether these were general or specific questions.

Schwartzbach read from his motion stating attorneys asked if any juror had counseled with a lawyer, lost someone to or had been the victim of a violent crime, changed his or her behavior as a result of violent crime, ever had problems with the law, had been in county jail at any time, had been in trouble civilly or criminally, would hesitate to go to a lawyer, knew any prosecutors, or had any experience with the legal system leaving a “bad taste” in the mouth.

Schwartzbach told the court that the majority of his 39 years as a lawyer was spent defending poor people and people of color. "But Blake is no different in his right to fair and impartial jurors," he said, adding that the prejudice in the case "shocks the conscience."

"This is about the jury system itself," Schwartzbach concluded. "If the jurors' disregard for the law isn't prejudicial, then I don't understand the meaning."

It was then Dubin's turn to argue but he declined to do so, stating he would instead respond to the justices' questions.

Justice Croskey said that he was "particularly troubled" by allegations made regarding jurors Hall and Severson. Justice Klein asked Dubin to respond to claims the statements were unrebutted, specifically those concerning Mendoza, Severson, and Hall.

In answer, Dubin first stated that specific questions regarding jurors' families were not asked, but Justice Croskey interrupted him, saying that Schwartzbach had already read the questions and he felt that the questions were broad enough to have required an answer. Croskey stated it was "reasonable to assume" that Severson should have answered.

Dubin rationalized that Severson may not have felt that questions asked referred to family members, and pointed out that Judge Schacter did not allow jurors to ask or answer other questions they later heard others respond to.

Justice Klein encouraged Dubin, asking him if there was any evidence that Severson was justified in not answering. Dubin offered that they didn’t know if Severson felt that her daughter’s verdict was fair or that she agreed with it. It was an unusual way to skirt the issue on whether the juror withheld information in voir dire.

"The jurors were good people. They worked hard," Dubin said, then pointed out that "every single day" Judge Schacter asked them if anything had happened regarding what they heard and what they talked about.

Justice Croskey said it did appear that jurors talked about the case before submission. He asked what the impact was of the jurors’ conversations, but stated that he thought it was a clear violation of the judge’s orders. Dubin agreed that they were told not to discuss the case before deliberations but said that Valdivia stated conversations during lunch were brief and harmless.

“There is always some misconduct in every case, and if we looked at all of it there would probably not be any Constitutional cases,” Dubin argued, adding that the trial judge had broad discretion in determining misconduct.

Schwartzbach stepped back up to the lectern.

"Don't repeat yourself," Justice Klein barked, referring to Schwartzbach's rebuttal argument.

"Oh, no, I won't repeat myself," Schwartzbach replied, his voice now stronger, clearer than it was, now undaunted by their questions as he reiterated Valdivia's claim that the conversations were “brief” and “harmless.”

He said it doesn't take very long in a conversation to say Blake was liable because he left her in the car. It doesn't take very long to say that the Bible supported a finding of liability. It doesn't take very long to send a message to the world. "We've established unrebutted juror misconduct," he said.

Schwartzbach urged them to look at the total record, at the briefs that were submitted and other documentation. He told them that the plaintiff had made statements of "total fiction" without citation.

Justice Croskey again expressed concern and cited a recent Supreme Court ruling in which the high court stated that any misconduct creates prejudice. He asked how reasonable probability of prejudice could be met.

Schwartzbach again cited the Severson juror. Other jurors told the court about their problems, he said, and responded to questions about their experiences with lawyers and prosecutors. "If my son committed such an act, I might have felt he deserved his sentence, but it would certainly leave a bad taste in my mouth as a parent," Schwartzbach said, referring to a question that was asked whether jurors had any experience with the law that left a "bad taste" in their mouths.

"All we ask for is a fair trial. It becomes a circus, a celebrity trial. And celebrities become the butt of jokes. But celebrities have the same rights as everybody else, the right to 12 fair, compassionate jurors."

It was then that Justice Klein cut him off.

Afterward, Schwartzbach spoke briefly to two reporters from the Associated Press and the Los Angeles Times. He said he had returned pro bono to handle the appeal because he believed in Blake's innocence.

The California Second Appellate District Court of Appeals will deliver its opinion by April 1, 2008.

The Nevada Supreme Court recently rendered an opinion on a different case, citing an entry from Black’s Law Dictionary2. The law book's entry seems apropos to the Blake case. It defines the circumstances in which a jury "nullifies" or voids a verdict:

“(a) jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality or fairness.”

What message to the world will the California Appeals Court send?

1 Schwartzbach obtained three statements from jurors Valdivia, Elias, and Lucerno. Dubin acquired five statements denying misconduct from jurors Aldana, Mendoza, Hernandez, Horn, and Valdivia and two additional statements from Bodner and Gonzales, who were alternates.

2Black's Law Dictionary - Description

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Sunday, May 20, 2007

LAPD Reform

No one must be above the law, especially those who have sworn to uphold it. In a letter to Los Angeles Police Chief William Bratton published on the LAPD Online website1, Brian Allan Fiebelkorn, a witness in the Robert Blake case, calls for reforms in the policies and procedures surrounding police internal affairs complaints. In it, he cites issues with both state law and internal LAPD regulations.

In particular, Fiebelkorn quotes the following paragraph from a letter he received from the Los Angeles Police Commission:

State law prohibits the imposition of discipline or other punitive action by the [LAPD] if the investigation is more than one year old. In addition, State law limits the amount of information we can reveal to you about the [LAPD's] investigation."

The above paragraph applies to internal discipline of employees and not to criminal allegations. Time limits on criminal offenses are governed by statutes depending upon the crime. Obviously, however, some internal investigations may require more than one year to complete. Facts in a case may surface years later, and those facts may either confirm or discredit the complaint.

Imposing a time limit on a police misconduct complaint gives parties involved a reason to stall the process, either intentionally or unintentionally. In addition, the law also provides a backdoor exit on accountability when information regarding the findings of the complaint are withheld from the complainant. Ultimately, there is a potential to close the complaint without resolution. In his letter, Fiebelkorn speculates "that these questionable provisions have stifled many findings against officers by LAPD internal investigations" and cites his and defense attorney M. Gerald Schwartzbach's complaint in the Blake case2.

The LAPD Rampart scandal all too well exposed these shortcomings. Many of the complaints remain outstanding because the statute of limitations ran out on prosecuting the crimes3.

These are not the only precedents that restrict police investigative reform. In 2006, the U.S. Supreme Court ruled that government employees do not have free-speech protections in their workplace, and therefore, set limits on government whistleblowers4. This ruling has serious implications on police internal affairs investigations. In an organization which unofficially adheres to a code of silence, the ruling further discourages police officers from reporting wrongdoings.

As Fiebelkorn states in his letter, the time for reform is now. But for reform to happen, not only the laws must change, but those who are charged with upholding the law must change as well. Los Angeles District Attorney Steve Cooley, commenting on the Supreme Court's whistleblower ruling, said in a statement that the ruling "allows public employers to conduct the people's business without undue disruption and without turning routine personnel decisions into federal cases." (The Enron chiefs probably wished Cooley had been their District Attorney.) But then, Cooley has his own troubles with whistleblowers5.

There may be some reform coming from the California legislature. State Bill 1019 provides some public access to police disciplinary actions. The bill has passed a senate committee on public safety. However, it is too early to predict the fate of that bill6.

Fiebelkorn ends his letter with his faith in the 11,000 LAPD employees. It is these employees that must press for change as well, for it is a handful of wrongdoers that reflects poorly on them all. And that handful not only violates the rights of the citizens they victimize, but diminishes the trust all citizens have in their police.

And that is a crime against us all.

1 LAPD Blog: Chief Bratton Briefs Media on MacArthur Park Disturbance/Fiebelkorn Letter
2 Eye on the Sparrow: Corruption
3 CNN: LAPD Corruption
4 High Court Trims Whistleblower Rights
5 LA Weekly: The Steve and Bob Show
6 San Diego Union Tribune: California Bill Targets Access to Now Secret Police Misconduct Cases

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Wednesday, February 28, 2007

Is a Rich Man Always Guilty?

M. Gerald Schwartzbach, appellate lawyer for Robert Blake, filed a lengthy appellant opening brief with the California 2nd District Court of Appeals this morning on Blake’s behalf. It was a long time coming. The civil verdict was delivered November 2005, but Blake had to wait until the verdict was signed by Judge David M. Schacter before the appeal process could start. Schacter, due to health problems, was unable to sign the order until February 2006. In April 2006, Schwartzbach filed a motion for retrial based on juror misconduct and evidentiary objections. Schacter refused to grant a retrial, and gave no reasons for his decision.

In the following 11 months, Schwartzbach requested two extensions. He missed the last deadline, and the appeal would have been dismissed on March 5, 2007 had he not filed the brief today.

As stated previously in this blog, civil jurors perjured, coerced, and bribed before awarding the Bakley estate $30 million dollars, an award that, according to an Associated Press article, “mimicked” the OJ Simpson award. In fact, the Bakley family’s attorney, Eric Dubin, reinforced the Simpson and Jackson verdicts in the jurors’ minds. During the questioning of Dianne Mattson, Dubin asked if she knew her attorney had dealings with the Jackson family. During questioning of a Vitello’s waiter, Chris O'Brien, Dubin made a joke asking O'Brien if he had ever worked for Mezzaluna (the place Nicole Simpson dined before her murder). In closing arguments, Dubin made reference to “the duffle bag in the back of the car.”

It was apparent from court papers and reports that the jury held Blake to a different standard when they announced they wanted to send a message to “celebrities and rich people.”

But what will the Appeals court do? Only 30 percent or less of appeals are granted. An appeal must be argued on whether there were errors during the trial and whether those errors were sufficient to affect the outcome. There can be no doubt that jurors disobeyed the rules of the court. One juror didn’t disclose her daughter was convicted of murder and another juror used the Bible to justify his vote. They all admitted to talking about the case outside deliberations and there was some evidence that at least one juror discussed the case with her spouse. An alternate juror participated in the deliberations. All are grounds for overturning a verdict.

The “gotcha” in this is whether the Appeals court will decide whether the infractions affected the verdict. The decision of three justices is therefore subjective, and, like everyone else who didn’t sit in the Blake courtrooms, they heard “facts” over the past six years presented by a bias news media. A media that was given facts by dishonest police officers and unethical prosecutors. A media whose opinions were led by Nancy Grace and others who never set foot inside the courtroom.

The Appeals Court justices are not immune to public opinion. Will they be able to put aside what most people “think” is the truth? Will they be able to forget Blake as a celebrity and look at him as a man who might have been denied his Constitutional right to a fair trial? Those justices will have a tough job, a job just as tough as the criminal trial jurors. They were called “stupid” by Los Angeles District Attorney Steve Cooley who turned his back on evidence. They were chastised by the media and prosecutor Shellie Samuels, who said upon losing her case, that the jurors reached their decision because they watched too much CSI. They were “rebuffed” by civil jurors according to the LA Times, a newspaper that didn’t bother to print a recent Associated Press article about LAPD misconduct and wrongdoing in this case.

Will the Appellate court be able to uphold the law without prejudice? It is certain that the inaccurate facts about the case will be spewing out of the mouths of opinion journalists as the oral argument date gets closer and closer.

But Blake does have one ace in his court – Schwartzbach. He believes in the Constitution and he believes in his client’s innocence. Two beliefs that when he is in the courtroom are always heard loud and clear.

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