The Worst Form of Vigilantism
They speculated without any evidence that Blake had squirrelled away money in “Swiss bank accounts” and they wished to award the Bakleys enough money to get custody of Blake’s youngest daughter Rose, stated defense attorney M. Gerald Schwartzbach as he presented his case against the civil jurors to Judge David M. Schacter on April 7, 2006.
A number of newspeople were were present, reminiscient of the waning days of the criminal trial. The judge had just returned to the bench the previous week after recovering from two strokes, the first one occurring just days after the civil verdict was reached. He showed no physical incapacitation and his illness apparently had not impaired his sharp quips and snide remarks during a full morning of status hearings. In response to a request from one lawyer for a five-day jury trial, Schacter replied that would be “long enough to bore them (the jurors) to death.”
The Blake hearing was the last on the docket. Schwartzbach had filed three motions: one on juror misconduct, one on evidenciary objections, and an additional opposition motion to Eric Dubin’s opposition to the motion for a new trial. Schwartzbach explained to the court that Dubin’s arguments were not admissible under the law, pointing out that although an argument can state what the jury said and how they acted upon what was said, the law excluded statements about how the jurors felt. For example, that jurors “felt Blake received a fair trial” was inadmissible because jurors understanding of the law was not relevant.
Just as he did in the closing arguments of the criminal trial, Schwartzbach appealed to the heart of the court. “We all carry baggage,” he said. “We’re people and it affects us.”
He began to name the offenses. According to sworn affidavits of other jurors, Juror Hall stated that even before the case concluded he would vote liable because Blake had left Bakley in the car. To him, Blake was negligent. Another statement claimed Juror Mendoza argued that the Bible supported a vote of liable, and a juror named Jackie (no last name given) talked about OJ Simpson and Michael Jackson, and said Blake should have been convicted. The documents also said that Juror Severson's husband, who watched Court TV, called her a Pollyanna, so she changed her vote to liable. Juror Elias, in his own declaration, said he couldn’t hear much of the testimony, so jurors badgered him and bargained with him to change his vote. According to Elias and others, Forman Horn told Elias that they would consider awarding $0 if he voted liable. Still more from the statements, Juror Yvonne (no last name given) said that they should send a “message to the world” and cited the OJ Simpson case to support her position. Juror Valdivia, who gave interviews to both Schwartzbach and Dubin, told a “litany” of prejudices against Blake and never rebutted any of them in Dubin’s opposition motion.
Referring to Juror Severson, who never disclosed that her daughter was serving prison time for murder, “I’m a parent with a 25-year-old son,” Schwartzbach said, and talked about how he remembered his son on holidays, at middle school, high school and college, and at his Barmitzvah. “And if my son had been convicted of murder and sentenced to state prison, that is something I’m not going to forget.”
The court gave Severson every opportunity to discuss her daughter, Schwartzbach argued. Jurors were encouraged to talk privately with the attorneys and judge on sensitive matters. Severson consciously failed to provide the information.
Schwartzbach went on to express his evidentiary objections. During the trial, Dubin told the jury that the reason witness Brian Allan Fiebelkorn did not testify in the criminal trial was that Judge Schempp, the criminal trial judge, said that Fiebelkorn was not credible.
Dubin’s ears turned red while Schwartzbach explained that Dubin attended all the criminal status hearings and trial, including the hearing where Fiebelkorn’s testimony was discussed. According to Schwartzbach, Schempp was intrigued by the defense’s “Third Party Culpability” motion, and said she hoped the police would find William Jay Smith, another witness, to testify. Schempp told Schwartzbach he could use Fiebelkorn to impeach Smith. (Neither the prosecution nor the defense presented Smith at trial. Schwartzbach subpoenaed Fiebelkorn, but never called him.)
Schwartzbach raised his voice as he continued. In September 2004, Schempp ordered the prosecution to turn over all discovery to the defense. But apparently the tape of Det. Ronald Ito attempting to intimidate Fiebelkorn into withdrawing his evidence was never turned over. On that tape Fiebelkorn provided information to the police that persons other than Blake were responsible for Bakley’s murder. Not only was it unavailable to the defense during the criminal trial, but Dubin never turned it over in the civil case either. “To this day," Schwartzbach said, "I have not received it.”
Schwartzbach charged that Dubin created a misperception because of “intentionally or recklessly placed inaccuracy.”
(The press were not in attendance during the civil trial when Fiebelkorn testified, nor when Detective Ito’s tape was played. So unbeknownst to Schwartzbach, no courtroom reporters had any idea to what he was referring. To this day none of them have ever reported this testimony or bothered to investigate what was on the incriminating tape.)
Peter Ezzell, Blake’s civil attorney, argued about the grossly inflated award of $30 million dollars. He said that if Bonny Bakley were to live 38 years (the estimate the jurors were given at trial) amortized at 7.5 percent, the award actually would be $485 million dollars.
Schwartzbach added that Blake did not want a reduced amount of liability, but wanted a new trial.
“I regret that the court’s time and resources were wasted,” Schwartzbach said. “But the Constitution does not put a time limit on a person’s right to a fair trial. Mr. Blake wants what he is entitled to under the Constitution – a fair trial with a jury that is unbiased.”
Schwartzbach continued on saying the integrity of the judical process was at stake, and that Blake’s legacy was at stake – the legacy to be remembered as an actor, tainted as a result of what happened in the courtroom.
Due to the delay in signing the verdict, Judge Schacter had only the weekend to make his decision. Someone said that he had returned to the bench too early after his stroke and that he may not have had time or energy to read the motions. Whether it was his health, his prejudice, or something else, on April 10, 2006, Schacter denied the defense motion for a new trial without explanation, kicking the case into a long, drawn out appeal process.
A man’s legacy is not for the present. It is something he leaves for his children. Someday a child named Rose will suffer a legacy that Judge David M. Schacter and 10 angry jurors helped shape. And that is the worst form of vigilantism.
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