The Heart of the Appeal
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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