Two Trials

”Apparently she’s had some criminal history, so it could be any number of people that had it in for her.” -- Harland Braun

Why was the criminal trial so successful for Robert Blake and the civil trial such a miserable failure? The civil jurors cited that Blake himself was the cause of the $30 million liable verdict when he took the stand in the civil trial, something he did not do at his criminal trial. The answer to this question, however, is much more complex.

It begins with the juries, which concluded opposite verdicts. Opposite is a good word to describe them: the criminal jury was diverse ethnically and culturally. Their ages ranged from mid-20s to 70s, from middle to upper-middle class backgrounds. It was a jury which defense attorney M. Gerald Schwartzbach desperately wanted to keep when the trial was delayed due to a burgulary at his apartment in December 2004. He had contracted Lois Heaney, from National Jury Project as jury consultant. Potential jurors were interviewed individually from a pool of about 700 candidates. During the selection process, most people who expressed an opinion about the case were against Blake, according to the Associated Press reports. In fact, one juror stated afterward that when the trial started he believed Blake guilty and the evidence presented changed his mind.

Schwartzbach reminded jurors during his closing argument they were the ones chosen and, when members of the press complained to the judge that Schwartzbach could not at times be heard, Schwartzbach apologized to the spectators but told the jury that they were the only ones that mattered.

Conversely, the most of the civil trial jurors appeared to be approximately the same age – late 40s and older, and appeared less affluent than the criminal jurors.

The plaintiff’s attorney in this case, Eric Dubin, contracted another high-profile jury consultant, Jo-Ellen Dimitrius, who also consulted on the Scott Peterson jury selection. The jurors were chosen from a pool of 70 candidates and were interviewed as a group. Interestingly, most candidates who expressed their opinion were sympathetic toward Blake, stating that Blake should not be put through another trial and that the Bakley family were out for his money.

It was apparent during the civil trial that at least two of the jurors were prejudiced against Blake, based on the wording of questions presented to the principals. One asked Blake why he didn’t give Bakley one more ‘goodbye, Toots’ when the paramedics put her in the ambulance; another asked that since Blake was an actor and had to memorize lines, why he couldn’t memorize pushing three buttons on a cell phone and pressing the send key.

The behavior of the civil jury during deliberations revealed irregularities. After a couple of days of deliberation, they sent a note to the judge requesting a change in the verdict form. They wished to change the word “intentionally,” referring to the question on the form of whether they felt that Blake had intentionally killed his wife. One two occasions, jurors could be heard in the courtroom outside. The press reported the first incident as loud but unintelligible. The next day, the voices were louder, loud enough for the press to catch two full phrases. On the day before the jury returned its verdict, members posed for pictures in full view of the press.

Although both the criminal and civil jurors said they didn’t actually know whether Blake had murdered Bonny Lee Bakley or had hired someone to do it, the criminal jurors cited specific evidence or lack of evidence which contributed to their decisions. The civil jury on the other hand said they didn’t like Blake.

The criminal trial unfolded like a serious game of chess. The timeless theme of love and hate, good and evil dominated the attorneys’ strategies.

Deputy District Attorney Shellie Samuels was a win-at-all-costs prosecutor. She had 49 convictions to her credit and was ruthless all the way to her pointed-toed shoes. In her opening statement, she shouted at the jury, “He hated her!” as Blake’s motive to murder. The first few witnesses she called told how Blake’s cries seemed fake and how he did not go near his wife after she was shot. She tried to elicit the word “hate” from other witnesses when she asked them to describe Blake’s feelings toward his wife. Two stuntmen, Gary McLarty and Ronald Duffy Hambleton, told of murder scenarios straight from B movie scripts. Frank Minucci, playing the “heavy,” said that Blake wanted to hire a “guy like in Carlito’s Way,” a particularly bloody Mafia movie. In her closing argument, Samuels showed the jury a clip of the Barbara Walters’ jailhouse interview in February 2003 where Blake said there was no downside in his relationship with Bakley. She then contrasted that statement with an audio tape of Blake referring to Bakley’s family as “monsters.” Samuels had presented so heinous a picture of Blake, that at the end of her case, Blake broke down and cried just as the jury was exiting during a break.

Schwartzbach seemed to be the incarnate Atticus Finch, soft-spoken, undaunted. In his opening statement, Schwartzbach said that Blake was “over the moon for the child… and that is not a crime.” He continued to play that theme over and over. Witnesses described Blake as joyful, loving, alive, as if the child had given Blake new life. Other witnesses, like Lidia Benevides, testified to Blake’s kindness and gentleness. The last witness Schwartzbach called was Father George Horan, a catholic priest who ministered to Blake during the year he spent in jail. Horan told the jury about Blake’s sadness and his fear of dying in prison. Then, just as the prosecution had done, Schwartzbach called Robert Blake himself via the Barbara Walters’ interview. In it, Blake paints himself as a lonely, pathetic man who realized he had been blessed with a child in his old age.

The Honorable Darlene Schempp presided over the criminal trial. A court matriarch, her courtroom style was proper and to the point. Speaking objections were heard in chambers, away from the jury and the press. She kept strict control on the evidence presented. She was tough but fair in rulings, and when she ruled in favor of one party, she usually gave something to the other.

If the criminal trial can be compared to a chess game, the civil trial can be compared to a carnival. The civil trial judge, David M. Schacter, had one thing in common with Judge Schempp – his age. But Schacter, unlike Schempp, was a bit of a maverick. He had been sanctioned many times during his tenure, particularly in cases where he denied the media access to court business. It was reported that, in college, he aspired to write comedy. The jokes did fly during the trial. During his opening statement, Dubin tried to impress jurors by stating he represented Blanchard Tual, an estate administrator who also handled Elvis Presley’s estate. Schacter replied that Elvis was not in the building.

Where the criminal trial followed the classic story of love and hate, the civil trial followed a trash-the-victim, trash-the-defendant strategy.

Testimony was sometimes hard to follow, especially in determining when an objection was sustained or overruled. Schacter at times didn’t rule on objections, allowing the witness to continue without direction. It was not that Schacter appeared in any way unfair or bias, but his loose style pervaded the trial. The lawyers, witnesses, and jurors followed his anything-goes attitude. Schacter rarely chastised bad behavior, and when he did, he made light of it. During some particularly insidious questioning by Dubin, Blake lost his temper. Some observers said that the exchange almost came to blows. Instead of admonishing Dubin for being argumentative, Schacter drew a red circle on a piece of paper and handed it to Blake, telling Blake not to let Dubin push his button. It may have been this attitude that contributed to the jurors’ sarcastic questions and ultimately their verdict.

Dubin appeared to have little experience in litigating. Some courtroom observers said that he was the worst attorney they’d ever seen. Judge Schacter continually helped him rephrase his questions, which, as the defense pointed out, were more accusatory statements than questions. Dubin didn’t seem to know the meaning of foundation.

Dubin played the role of ambulance chaser to a stereotype. His questions were abusive, particularly toward Blake. One question directed toward another witness was so dubious that the defense objected, complaining that the question wasn’t even in good faith.

Peter Ezzell, Blake’s defense attorney, was a schooled, experienced lawyer, which worked to his disadvantage. Adept at proper foundation and precise questioning, he was unable to beat Dubin at the game of innuendo and spuriousness.

Key plaintiff witnesses Hambleton and Minucci did not appear and their criminal trial testimony was read to the jury, another handicap for the defense. There was no ability afforded to cross-examine these witnesses and the jury was unable to see non-verbal signs which might indicate a lie.

Ezzell did a competent job showing Bakley’s con artist acts and the many men she defrauded for more than 20 years. He called Christian Brando, who took the Fifth, and witnesses Dianne Mattson and Brian Allan Fiebelkorn to show Brando and Hambleton had motive and means.

What the defense failed to convey, however, was the narrow-focused and dishonest police investigation that lead in Blake’s arrest. Both Blake and Earle Caldwell, Blake's co-defendant in the civil trial, alleged police misconduct. Neither the plaintiff nor the defense called the lead detectives during the presentation of its case, although Dubin called Detectives Ronald Ito and Brian Tyndall to rebutt defense witnesses. Dubin mistakenly betrayed Ito by playing a tape where Ito is heard intimidating Fiebelkorn. However, for the defense it was too little and too late.

The media was always a major concern for the defense in both trials. Although former defense attorneys Harland Braun and Thomas Mesereau used the media to present Blake’s case to the public, Schwartzbach refused to give interviews during the trial. For the most part, he refrained from saying anything to anyone outside his legal team. Samuels also did not give interviews; however, she would hobnob and joke with the press whenever court was not in session. Clearly, she held the popular vote with the reporters. She made few comments about the proceedings or the evidence, except to tell a Court TV reporter that the oily substance on the murder weapon might have come from inside the dumpster (a fact refuted in other essays in this blog.)

During jury selection, Schwartzbach asked each potential juror how they felt about two high-profile media cases, the OJ Simpson trial, which resulted in an acquittal, and the Scott Peterson trial, which resulted in a conviction.

Both criminal trial attorneys used the tabloids to impeach witnesses.

The civil trial again was another matter. Ezzell followed Schwartzbach in regard to the media – no interviews, no comment. The defense requested a gag order but Schacter denied the motion.

Dubin on the other hand felt he had a license to slander. He released snippets of Blake’s civil deposition to the media in May 2005. Blake responded by appearing on the Larry King Live show. Dubin also released parts of Blake’s first wife Sondra Kerr’s deposition. Kerr stated that during their marriage, Blake put out a murder contract on her and a boyfriend. This deposition was released twice to the media, once around the time of the deposition, and once in August 2005, before the start of jury selection. Not only damaging to Blake, the defense never had a chance to discredit it in court, since Kerr was not called to testify. Dubin continued to give interviews to the press until he appeared one day on Catherine Crier Live, where he made a grossly inaccurate statement that he had linked Caldwell to the murder weapon. The next day the Schacter upbraided Dubin about telling lies.

The local press were mildly interested in the civil case. Where the criminal trial gallery seats were packed, the civil trial had few reporters. A defense attorney speculated that they had lost interest because Dubin’s delivery was too slow and lacked rhythm. The press covered only witnesses that did not testify in the criminal trial. However, they were eerily absent when Mattson and Fiebelkorn testified. One Associated Press reporter showed up for part of Fiebelkorn's testimony but gave a poor report of the proceedings.

The media had petitioned Schacter and Schemmp to allow cameras in the courtrooms. Both judges denied the requests. But when Court TV televised the preliminary hearing February 2003, an awareness of the case and its deficiencies were shown to the public. Afterward, two prosecutors, Greg Dohi and Patrick Dixon, either bowed out of the case or were removed. Witness Hambleton had been turned into “swiss cheese” by Thomas Mesereau. Robert Blake was freed on bail. In November, 48 Hours produced a program about the case. In it, Shellie Samuels tells CBS correspondent Peter van Sant that the state had no fingerprints, no DNA, no gunshot residue, and no eye witnesses, to which van Sant replied “You add all that up and you don’t have a case, do you?”

The civil trial verdict undid what the criminal verdict did in the court of public opinion. There will be no acting jobs for Blake and a shadow will forever follow him. For Robert Blake, the camera in the courtroom might have served him better.

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