Actor’s Fate Hinges on Type of Proof

In his closing arguments last week, the attorney for Robert Blake took aim at the very nature of the prosecution’s murder case.

“There is no direct evidence that Mr. Blake shot Miss Bakley,” M. Gerald Schwartzbach told the jurors. “Nobody came in here and said they saw him shoot her. Nobody said they saw him throw a gun in a Dumpster and run away. Nobody said they heard a shot and saw him run away.”

In trying to raise doubts about the validity of the state’s evidence, Schwartzbach seemed to suggest that direct evidence is superior to circumstantial evidence -- something experts say some jurors may instinctively believe. But in the eyes of the law, both types of evidence are equal.

Direct evidence is generally provided by a person who witnessed something. For example, in a murder case where a witness saw the defendant pull the trigger, that witness could provide direct evidence of guilt.

But jurors are asked daily to draw conclusions based on circumstantial evidence -- which includes DNA, fingerprints and gunpowder residue on a person. Such evidence doesn’t independently prove guilt, but can when taken with other evidence.

“Circumstantial evidence can be the most powerful evidence in the world if he said he wasn’t there and his fingerprint is there, his DNA is there, his fibers are there,” said James E. Blatt, a criminal defense lawyer in Encino -- citing forensic evidence that may not definitively prove a suspect committed the crime, only that he was at the crime scene.

Circumstantial evidence cases, however, “are hard for a jury,” said Myrna S. Raeder, who teaches evidence at Southwestern University School of Law in Los Angeles. To follow a case filled with many small pieces of evidence that must be weaved into a coherent case, the jury needs to know, “Where does this all fit together?”

Sometimes, as in the recent conviction of Scott Peterson for murdering his pregnant wife and unborn son, juries are able to take disparate pieces of circumstantial evidence and draw a conclusion of guilt. In that case, prosecutors could not even provide evidence of where and how the victim died. But other times, as in the murder trial of former football star O.J. Simpson, jurors are able to find other explanations for circumstantial evidence and therefore can’t decide guilt beyond a reasonable doubt.

The seven men and five women who will decide Blake’s fate began deliberating Friday in Van Nuys. The 71-year-old actor faces life in prison if he is convicted of murdering his wife. He also is charged with soliciting two stuntmen to kill her.

Bonny Lee Bakley, 44, was shot to death on May 4, 2001, while sitting in Blake’s car near Vitello’s restaurant in Studio City, where they had just eaten. Blake said he had gone back to the restaurant to retrieve a handgun and returned to his car to find his wife bleeding from a head wound.

No one testified at the trial that they saw Blake kill Bakley, and there is no physical or forensic evidence linking Blake to the murder weapon, a 60-year-old Walther P-38 handgun that his lawyer said would have been an “absurd” choice, if Blake had plotted to kill her.

But Los Angeles County Deputy Dist. Atty. Shellie L. Samuels put on dozens of witnesses to try to prove that Blake had the motive, means and opportunity to commit the crime.

The prosecutor’s case relied heavily on two aging Hollywood stuntmen who testified that Blake asked them to kill Bakley. Because they refused, the prosecutor argued, Blake had to fatally shoot her himself. She also called several witnesses to try to show that Blake openly despised Bakley and acted odd the night of the slaying, suggesting to jurors that his frantic behavior might be more consistent with a killer than with a grieving spouse.

Los Angeles County Superior Court Judge Darlene E. Schempp instructed jurors Friday that they must give equal weight to both direct and circumstantial evidence. She also told them that to find Blake guilty of murder, the evidence must be consistent with guilt and “cannot be reconciled with any other rational conclusion.”

In other words, guilt must be proven beyond reasonable doubt: If there are two reasonable interpretations of the evidence, they must acquit.

During jury selection, Samuels attempted to determine whether potential jurors could accept circumstantial evidence, a concept that legal experts say is sometimes difficult for jurors to grasp without some coaching.

Samuels showed several pictures to test their understanding. The first was of a kitchen in disarray. It belongs to “a somewhat tidy” bachelor, she explained to one prospective juror, who had a clean kitchen when he left his apartment that morning. All of his windows and doors were locked.

“There was no sign of forced entry,” she said. “There’s no disturbances in any other rooms, and $200 in cash that was sitting on the dresser was not taken.”

The prospective juror could not explain the mess.

“What if I tell you this individual has a dog named Boomer, and Boomer greets him at the door every single day when he comes home, but this day Boomer wasn’t at the door. Now do you think you have an idea?”

“Boomer was getting busy,” the prospective juror answered.

“Then, I’m going to show you that when the guy, the bachelor, walked a little further into his kitchen, he could see this,” Samuels said, showing them another view of the kitchen with a cowering dog.

“Boomer,” the potential juror responds.

“Are you convinced beyond a reasonable doubt that Boomer trashed that kitchen?” Samuels asked.

“Yes,” the potential juror said.

“Could you convict Boomer of trashing that kitchen?”

“Yes.”

“OK, that’s circumstantial evidence,” the prosecutor said in a presentation she repeated several times with prospective jurors in the Blake case. “That can be pretty compelling, don’t you think?”

Still, circumstantial evidence “has come into popular parlance as being something unreliable,” said Justice Carol A. Corrigan of the 1st District state Court of Appeal in San Francisco, when, in fact, it is often more dependable than eyewitness testimony.

Prospective jurors often tell lawyers they do not give as much credence to circumstantial evidence, said Los Angeles lawyer Mark Geragos, who defended Scott Peterson. “Then you tell them that DNA and fingerprints are circumstantial, and you see this kind of lightbulb go on over their heads.”

Defense lawyers sometimes succeed in persuading jurors, as in the O.J. Simpson double-murder trial, that a reasonable alternative explanation exists for the evidence against their client.

Simpson’s defense team was ultimately able to convince jurors that it was possible that “corrupt police officers wanted to get O.J. and they planted the glove,” said attorney Carl E. Douglas, who was part of Simpson’s legal team. “Then, we used other pieces of circumstance to support our theory,” including the audiotape of Los Angeles Police Department Officer Mark Fuhrman talking “about his animosity toward black people.”

Douglas said the bottom line is the amount and credibility of the circumstantial evidence, and a defense lawyer’s ability to persuasively offer alternative reasons for that evidence.

“A smart defense lawyer can think up explanations for the evidence that would be consistent with innocence,” Douglas said. But at some point, he said, too many adverse circumstances may cause jurors to challenge the credibility of the defense, asking themselves, “How can all of this be a coincidence?”