Tuesday, March 15, 2005

Verdict Watch

On March 4, 2005, the Robert Blake criminal trial jury began its deliberations. They had heard prosecutor Shellie Samuels’ claim that Blake’s alibi was “bullshit,” and heard defense attorney M. Gerald Schwartzbach’s plea to “end this nightmare for Mr. Blake.” Cameras in the courtroom were turned off. The news reporters vacated their reserved seats to troll the courthouse for related tidbits – a quote here from an observer at a hot dog stand, a comment there from a lawyer who never sat through the trial.

And although the courtroom was dark, the drama continued.

Eight days into jury deliberation, "Blake jurors zero in on 17-minute period" headlined the Los Angeles Times article by Andrew Blankstein and Jean Guiccione1. It was written in the sensationalist style that had dogged the case since the night of the murder.

The article stated that jurors had "limited their inquiries to a single topic" – a timeline of events presented by the prosecution starting from the time Blake's credit card was swiped at 9:23PM until the 911 call for help at 9:40PM on May 4, 2001. The article cited jurors' request for readback of testimony surrounding the 17-minute period and the timeline display that "prosecutors constantly referred to during the three-month trial."

Schwartzbach brought it to Judge Darlene Schempp's attention, saying that the defense was unaware of the request for the timeline, and should have been notified when it happened.

Schempp was just as surprised by the article. “Something got blown all out of proportion from what I read in the Times this morning."

Very early in deliberations, the jury asked the baliff if they could see the timeline that Samuels used in her opening and closing arguments. Not reported by the Times, the jury also asked about nine binders of Bonny Lee Bakley's scam letters which were presented by the defense. The baliff called Samuels, who told him these items were not in evidence. Consequently, the baliff told the jury the items were not available to them and they continued their deliberations.

"It's of such nonconsequence, at least in my eyes, but I guess they're getting a little antsy for news," Judge Darlene Schempp said, referring to reporters.

"Your honor, I already agreed the event was a nonconsequence," Schwartzbach said. "It became of consequence because of what the Los Angeles Times did with the information."

Schwartzbach said that he didn't feel his client was prejudiced by the failure of the defense to receive the communication, but he was concerned that such a situation could occur again. He asked the court to investigate how the information was obtained by the Times. "I don't know whether or not the leak included the fact that this was a matter of housekeeping that occurred early in deliberations, that it was in the context of asking about those binders, et cetera, or whether it was just information that someone thought might be helpful to the prosecution."

Schwartzbach pointed out that the article did not indicate that the jurors' inquiry was made early on in deliberations, but made it appear that it occurred in conjunction with a readback.

"And I think either it was a selective leak or the Times simply engaged in biased reporting. I don’t know," Schwartbach said. “But my concern is that there is information that I didn’t even have that got to the Los Angeles Times.”2.

Only three people knew: the judge, the baliff, and the prosecutor.

The judge had asked the baliff earlier how the Times found out. She then asked Samuels.

"I didn't tell anybody," Samuels replied. "I certainly haven't talked to the press."

"I think I heard about it over the phone," she continued. So I'm not sure anybody could have overhead me being told. Whether I told my detectives or not, I might have."

"I don't know if I did or not. I didn't know it was a secret. I didn't realize it was a secret. I didn't tell the press, but I might have told other people."

This was as close to admission to the leak as they would get. But it is no surprise that the Times had the scoop – Lead Detective Ronald Ito arrived at court every morning during the trial to talk with the earlybird reporters. He and Blankstein were especially cozy, huddled together in the far corner of the gallery.

The scoops, of course, weren't limited to the LA Times. Court TV ran a story much more revealing than the Times about a requested readback, but not the readback expounded upon by the LA Times. It had to do with leverage the LAPD placed on Ronald Duffy Hambleton, a key prosecution witness who said Blake solicited him to kill Bakley.

Toward the end of deliberations, the jurors seemed to focus on testimony surrounding Hambleton’s 1999 San Bernardino court case in which Hambleton had been charged with two misdemeanor counts of brandishing a firearm and one count of resisting arrest. The case had been plagued with postponements and was finally resolved only a few weeks before Hambleton testified in the Blake trial – far longer than any misdemeanor case should be taken. By that time, two of the three charges had been dropped and Hambleton was sentenced to community service and probation.

The prosecution denied the case had anything to do with Blake. The defense argued that Hambleton changed his story when, in a recorded conversation, Ito said, "Here's your opportunity," after he reminded Hambleton that his court case was upcoming.3

The jury sent a note requesting the "Prosecution's first redirect on 2/10/05 of Ronald Hambleton -- all portions related to Hambleton's testimony referencing his San Bernardino case" and the "Readback of Miles Corwin's testimony on 1/19/05, referencing testimony on Pages 359 and 361 of his book."

Miles Corwin4 was an LA Times reporter who was writing a book, Homicide Special, at the time of Bakley's murder. He was called to testify by the prosecution in an effort to dispel the defense's accusations that the LAPD conducted a biased investigation.

Prior to the readback, the judge ruled that 28 lines of Corwin's testimony would not be read to the jury.

The omitted lines occurred during Schwartzbach's cross-examination. He asked Corwin, "During the course of that meeting detectives and members of the District Attorney's office discussed whether or not they could somehow get some kind of leverage on Duffy Hambleton; correct?"

Corwin replied that he needed to refresh his recollection of the event and Schwartzbach referred him to page 361 of his book.5

Corwin, upon looking at the page, replied, "I see that."

Schwartzbach continued, "And, in fact, you wrote that –"

At this point, Samuels objected to Schwartzbach's question as hearsay.

Schwartzbach argued his question regarding leverage and Corwin's answer had not been stricken from the record – that Samuels had not objected to that question and answer, but to the following question.

Samuels argued that Corwin only verified that he saw the relevant text on the page, and that his reply was not an answer to the question. She accused the defense of trying to misrepresent the information in the question as the truth.

The jury heard the testimony without the 28 lines, but that would not be the end of that request.

A short while later, the baliff told the court the jury was filling out another question.

“They didn’t get what they wanted, you could tell,” said Samuels, referring to the last readback.

Again, the jury requested the author’s testimony, specifically, “Defense attorney's cross-examination of Miles Corwin starting with testimony regarding page 359 of his book through completion of defense attorney's cross-examination."

Again, Schwartzbach argued that the record was clear: some of the 28 lines omitted had not been stricken and should be admitted.

Again, the judge ruled against him.

A few reporters remained in the courtroom on “verdict watch,” bored for the most part, waiting for an out-of-chambers discussion or a quote from an attorney or a prominent passerby in the courtroom. Schwartzbach also waited in the courtroom, although Blake was allowed to return home until the verdicts were in.

Sports and non-court related matters were the subject of most of the chit-chat. On March 14, 2005, however, the conversations turned to a videotape of the crime scene taken on the night of the murder. Schwartzbach had never seen the tape and asked the stringer who shot the footage, Louie Gallardo, for a copy.

Gallardo told Schwartzbach the tape had been turned over to LAPD Detective Robert Bub. Schwartzbach protested to the judge that the tape was never turned over to the defense.

“It's direct evidence about which we received conflicting testimony of witnesses, specifically with regard to Mr. Blake's demeanor at the scene,” said Schwartzbach. “It's not a very lengthy video, but I would like it to become a court exhibit for the record.”

Samuels said she had never seen it before. Ito said it was a news lead-in and Bub had received it early on. Ito said that Bub had recorded Gallardo’s tape in the clue book and had assigned it a clue number. Bub claimed it was given to Harland Braun, Blake’s first defense attorney. Braun had resigned from the case on October 28, 2002.

“And it has been out since then. We've turned it over,” said Samuels.

At the end of the day, the jury sent another request for a readback of testimony: “The defense cross-examination of Miles Corwin through the point of the beginning of second readback; i.e., the previous readback.”

“Do you see what’s lined out?” Schartzbach said, referring to the jurors’ written request.

“I see what you're saying,” Schempp relied. “The lined out portion that was part of their question and they struck it out.”

She read it into the record: “Miles Corwin's testimony referencing pressure or leverage placed on Hambleton."

Schwartzbach pleaded with Schempp again to read the portion that was not stricken to the jury. He read the relevant lines of testimony into the record.

Hearing the testimony aloud, Schempp replied, “I guess when I looked at it, I said it didn't seem like there was an answer here.”

“There isn't,” Samuels argued, and added to Schwartzbach, “For someone who accused me over and over and over of litigating the same thing, Counsel, this is our third time on this.”

“The point is if this is what the jury is wanting, I think they should be told that a question is not evidence only as it supplies meaning to an answer, rather than have them sit back there frustrated because they don't know,” Schempp said.

She had another concern about reading the disputed testimony. A substitute judge would be sitting in for Schempp the next morning, and she did not want him making a ruling on an unfamiliar case.

“I will instruct the reporter to read what they have not crossed out. If a question comes back again asking for the leverage portion that they struck out, I will instruct Judge Fisher to have that lines 15 through 28 read, but he is to give them the portion of the jury instruction,” Schempp ruled.

Samuels objected. “You're giving them a question and then telling them it's not evidence. If it's not evidence, why give it to them?”

Schwartzbach argued that testimony concerning the original discussion of leverage was never ruled inadmissible, and the record was clear about the objection.

Schempp seemed to grow weary of the discussion. She decided not to burden the substitute judge. For the third time, she ruled against reading the testimony regarding leverage.

At 1:35PM of March 16, 2005, after the third readback, the jury sent a note to the judge stating they had reached verdicts on count 1, the murder charge, and on count 3, the solicitation of Gary McLarty, but were deadlocked on count 2, the solicitation of Ronald Duffy Hambleton.

Schwartzbach asked if they could complete the record on three issues before they addressed the verdicts.

The first was regarding a letter a juror had received the night before. The contents of the letter were never disclosed in court, but it can only be assumed that it contained a threat or solicitation to influence the verdict.

Schempp called the juror into chambers and assured him6 that the letter was being investigated by the Los Angeles County Sheriff’s Office.7 She asked if the jury had reached verdicts on Counts 1 and 3 before he received the letter. They had. She asked if receiving the letter had any effect on his decision.

“None whatsoever,” the juror replied.

Schwartzbach’s second issue concerned the news video. He had contacted both Braun and Mesereau and neither attorney recalled ever having a videotape of the crime scene. He had his staff search their evidence database for the clue that Bub had recorded. They searched through their paper records to find the relevant documentation as well as combed through all the discovery letters from the first prosecutor on the case, Greg Dohi.

The prior evening, Ito had faxed Schwartzbach the pages from Bub's chronological log dated March 3, 2003, indicating the receipt of the video. However, Schwartzbach pointed out that he had filed a discovery motion on August 20, 2004, asking for chronological records from detectives. He specifically stated in the motion that he had not received anything from Bub since September 3, 2002.

Again, although they denied it, it appears detectives withheld evidence, along with the logs documenting receipt of that evidence, evidence potentially exculpatory to Blake.

The third request was a plea to allow the jurors to continue to deliberate on Count 2. Schwartzbach speculated that some jurors had inconsistent notes on leverage against Hambleton and perhaps these caused the stalemate. He begged for another readback of Corwin’s testimony.

Schempp suggested that they poll the jury on the numerical split of count 2, without knowing how the verdict was split. She would then decide whether to allow the readback.

“I'm still objecting to you putting it in,” said Samuels. “Just because counsel argued to put it in because it's going to resolve the deadlock, there's lots of things that might resolve the deadlock. It doesn't make it admissible because it resolves the deadlock.”

Samuels continued to say that Judge Fisher had not read Schempp’s instructions to the jury that questions objected to and sustained were not admissible, and that questions themselves were not evidence.

Schwartzbach wasn’t going to allow her the last say. “I actually don't think that would be an accurate representation with regard to this specific matter for reasons that I indicated, because it never was stricken from the record.”

The judge called the court to order. She asked the jury the status of the verdicts. The foreman reported they had reached a decision on Counts 1 and 3 and were hung on Count 2. She instructed the clerk to read the verdicts on the two decided charges.

Blake was found not guilty of murdering Bonny Lee Bakley and not guilty of soliciting Gary McLarty. The verdicts had been decided on March 11 and March 14, respectively.

Schwartzbach reminded Schempp of the agreement she made. The principles returned to chambers.

"All right. I will read it, and let's see if they go in and reach a verdict on that," said Schempp. "Or just drop it?"

"Drop it," Samuels agreed.

"Okay. I think I'll drop it. I think quite strongly it's going to be not guilty," Schempp said on second thought.

"I do as well," said Schwartzbach. "It's just I hate to have anything hanging over Mr. Blake's head, even though, as counsel indicates, it's not her decision." He was referring to Samuels' belief that the District Attorney would not retry Blake on Count 2.

"If it's 11 to one for not guilty on a hung jury, I would find it would not be in the best interest of the judicial system to retry it, regardless of what her office said," Schempp replied.

So it was that the court accepted the hung verdict. In the interest of justice, Schempp dismissed the remaining solicitation count. It will never be known whether 28 lines of testimony would have broken the deadlock, but four years after Bakley's murder, the waiting was over.

1Blake Jurors Zero In on 17-Minute Period - Los Angeles Times, 3/15/05

2Corruption Schwartzbach may have been correct about the LA Times. In February, 2007, the Associated Press published an article about a complaint Schwartzbach and witness Brian Allan Fiebelkorn made against Ito. Nationally published newspapers printed the story; the LA Times did not.

3Shell Game – Part II

4LAPD Hawker

5The relevant text from Corwin's book, Homicide Special, Page 361 is:
Another prosecutor says that the McLarty solicitation is a break, but the key to the case is persuading Hambleton to talk.

Ito mentions that Hambleton is facing a misdemeanor weapons charge in San Bernardino County for brandishing a rifle at sherriff's deputies at the edge of his property.

"A misdemeanor's not much leverage," a prosecutor says.

6It is unknown whether the juror was a man or woman.

7To date, there has been no further information on this incident.

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