Justice or Just Dishonest? - Part I - Exhibit 523
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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