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Thursday, March 24, 2005

Trial lawyer sour grapes

Prof. Bainbridge, Prof. Volokh, and John Steele all have posts about Los Angeles County District Attorney Steve Cooley being quoted as saying that the jurors who acquitted actor Robert Blake of murder were "incredibly stupid."

I agree that this wasn't an ethical violation by D.A. Cooley, but I also agree with all three that a top public servant making this public comment about a panel of jurors in the public justice system is ... incredibly stupid.

I'm reminded of online poker games in which, inevitably, on average once every half hour, one player will begin ragging on another for playing stupidly.  "You cold-called with a 9-3 offsuited?!?" the complainer will sputter. "How incredibly stupid!" Of course, these rants always come immediately after the player with the 9-3 offsuited has just made a full-house to beat the complainer's ace-high flush.

Maybe the jurors in the Blake trial were incredibly stupid, and maybe the player who cold-called with a 9-3 offsuited was too. But in neither poker nor lawsuits is there any profit in saying so, even if you fervently believe it to be true — and it's ill-mannered to boot. A good and mature poker player will respond to his bad beat by saying "Nice hand! Way to hang in there!" and then buckle down with the sure knowledge that eventually he will take the bad-but-lucky player's money (if they play long enough). A trial lawyer (prosecutor or otherwise) should say, "We took our licks today, and we're surprised by and disagree with the jury's verdict, but we believe in the system." (Fill in your own good sportsmanship cliches here.)

I've just taken my own licks in a jury trial. But I told those jurors during final argument that my client and I would respect and accept their verdict — and I do. I'm of course wondering why this jury's damages verdict was considerably lower than I expected, and in particular, whether (a) I misread the case originally, (b) I actually didn't do as well as I thought in the trial, or (c) there's been a broad change in local jury attitudes recently. It's important for me to try to draw conclusions on each of those subjects because of how they might affect what I do for other clients in the future. But any of those explanations, or all of them in some combination, are far more likely than that the jury was "incredibly stupid," at least in this particular trial.

And occasionally — quite rarely — I have seen juries do stupid things, in my own cases or a few others in which I knew enough about the case to draw that conclusion confidently. In a profession with as much subjectivity as mine and D.A. Cooley's, you expect to see a certain number of aberrations. I don't know enough about the Blake trial to say whether it was one or not. But if I did, and if I thought so, I certainly wouldn't — from a position like D.A. Cooley's — ever say so for public attribution.

Posted by Beldar at 08:05 PM in Law (2006 & earlier) | Permalink


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(1) Joe made the following comment | Mar 24, 2005 8:52:34 PM | Permalink

Dead on right about the poker table and the courtroom.

(2) Charlie (Colorado) made the following comment | Mar 25, 2005 8:06:31 AM | Permalink

My best guess --- from this, and from watching, perforce, the whole Schiavo thing --- is that there's a viral case of stupidflu going around.

(3) steve sturm made the following comment | Mar 25, 2005 9:20:51 AM | Permalink

This was a high profile case that he lost. What better way to deflect attention from him and the DA's office than to blame the result on stupid jurors? It gives his staff an outlet for their anger and it gives him a chance of convincing the voters that the guy they just re-elected with 60% of the vote isn't incompetent.

It's basically the same thing as a sports team blaming a loss on bad officiating. It's not be good sportsmanship, but to some, it's better than admitting they stunk/the other team is better.

(4) seaPea made the following comment | Mar 25, 2005 4:54:49 PM | Permalink

I found his remark funny because I thought it was stupid of the D.A. to bring this case to trial without something that definitely connected Blake to the murder weapon and without someone who wasn't drugged out or a drunken lout or with an agenda against Blake.

(5) Patterico made the following comment | Mar 26, 2005 12:58:04 AM | Permalink

Speaking as a private citizen, I am going to limit my commentary to SeaPea's criticism of the case.

I think that criticism is unfair, in particular as to the solicitation counts. You don't hire angels to kill your wife. In such cases, the prosecution doesn't go to central casting for its witness; it takes them as it finds them.

I think Robert Blake was guilty as sin of the solicitation counts, and I am quite sure he is a miserable human being. I have the impression his wife was as well, and that may unfortunately have had an impact on this jury.

(6) Patterico made the following comment | Mar 26, 2005 12:59:39 AM | Permalink

Charlie (Colorado): I haven't seen you at my own blog recently. What gives?

(7) Patterico made the following comment | Mar 26, 2005 1:01:56 AM | Permalink

One more thing: the prosecutor (Shellie Samuels) has an excellent reputation.

(8) seaPea made the following comment | Mar 27, 2005 9:45:42 PM | Permalink

in response to Petterico's response as a 'private citizen': I understand the point that those being solicited will not be model citizens. But the law is beyond a reasonable doubt and if I'm on a jury I will demand a lot of corrabative and supporting evidence about the meetings taking place and what was discussed then.

And can you answer another question with your professional hat on? What was the point of bundling together the charge that he did the actual killing with the solicitation charges? If just smacked of "aim high and hope for lower".

(9) Beldar made the following comment | Mar 28, 2005 1:38:36 AM | Permalink

SeaPea, I don't know enough about the Blake case to hazard even a semi-intelligent guess as to your second question.

As to the first, I suspect that my friend Patterico was making clear that his comments were being made outside his official capacity in his day-job as a California prosecutor himself. Again, though, I don't know enough about the specific witnesses in the Blake case to comment on the savory or unsavory quality of the witnesses, the victim, or the accused. And again, I'm not making a value judgment either way on whether this particular jury panel was an aberration or not, or whether it was "incredibly stupid." D.A. Cooley may or may not be right in his assessment, but I'm pretty sure there is no upside, and considerable downside, to him delivering it for public attribution.

(10) seaPea made the following comment | Mar 28, 2005 8:28:41 AM | Permalink

Hello Beldar,
I understood that Patterico was making his comments outside his official capacity. I used the 'private citizen' quote as a way to identify which of his posts I was responding to (is there a way to get the comment number to show up?).

I totally agree with your point that D.A. Cooley made a huge error in saying what he did for public purposes. There was nothing to gain by it and just drew more attention to his office's failure (in more ways than one) in this case.

(11) Patterico made the following comment | Mar 28, 2005 9:59:08 PM | Permalink


Anything I say on the internet is with my private hat on. And with that hat on, my response is:

If you thought he solicited murder twice, failed, and then committed murder, what charges would *you* bring? The D.A. looks desperate in your eyes because of evidence that Blake tried to get others to do this first??

(12) seaPea made the following comment | Mar 29, 2005 2:12:00 AM | Permalink

If I thought I had a winnable case for murder and a winnable case for solicitation, I would not have tried both points at the same time.

(13) Patterico made the following comment | Mar 29, 2005 2:33:24 AM | Permalink

I can't for the life of me imagine why not. They corroborate each other. He tried to get others to do it; it didn't work out; so he did it himself. You would want to deprive jurors of the chance to hear part of that story?????

(14) Patterico made the following comment | Mar 29, 2005 2:35:16 AM | Permalink

FWIW, I thought the solicitation counts were way stronger. And they carried life terms.

(15) Daisy made the following comment | Mar 30, 2005 9:13:45 AM | Permalink

I was pleasantly surprised to hear of the DA's refreshing comment. You, who "earns" his living by pandering to those people, don't have the courage or objective perspective and opinion to call them what they are as will a DA who gets paid regardless of his verdict. How many times have you told your colleague or wife just how dumb the jury was?

(16) Qass the Lazy made the following comment | Apr 6, 2005 4:22:12 AM | Permalink

One would hope an accomplished actor like Blake would not be struck dumb into 'inappropriate' behavior at the critical instant. No way, he would have erred on the side of Sarah Bernhardt, that much is obvious from the the roles he has had a chance to rehearse. BUT: here's my off-the-point, lazy, no-law-school-for-you-my-dear question: who were those people who popped up with the suddeness of the pasteboard bobbies in Mr. Toad's Wild Ride down there at good old Disneyland, CA? Boink! and there they are, witness to all the lack of sturm and drang that seemed to be the most suspicious thing about Blake.

I say most suspicious cuz I live in California and I have worked as a legal secretary here, in family law (during the Markey era, lol, but it hasn't changed that much) and there's no way that woman was gonna get custody of the child unless she had eyewitnesses that Blake was a cannibal or a speed user, neither of which was discovered by the prosecution apparently. In California custody does not go to the mother automatically. This is a no-fault divorce (dissolution) state. There are two grounds for dissolving a marriage: 1) irreconcilable differences and 2) incurable insanity. Irreconcilable differences can be stated in one sentence: "I don't want to be married to that person any more." End of argument. Petitioner and Respondent, not Plaintiff and Defendant. Custody and support issues are very much affected by this stance, and man and woman are pretty much equal when the debts and the assets and the kids are divvied up. In custody issues, the welfare of the child is the deciding factor. The slut Mrs. Blake needed to be in order to motivate murder wouldn't have gotten more than a month or two of alimony, wouldn't have gotten much of Blake's money as it was mostly earned before marriage and thus was not community property, and if the prosecution's delineation of her character had much validity, she'd have been lucky to get supervised visitation every two weeks or so. BUT getting the custody issues before the Court would have involved some character witnesses, and with a Borgess like that, 'assassination' might even be mentioned. Some husbands and fathers are reluctant to commence character assassinations on what will always be the mother of their children, and it is not unusual to bounce the possibilities off mutual acquaintances before commencing something as irretrievable as Superior Court documents of this nature.

Didn't follow the trial though, I'm a lazy soul and for some reason we don't have even the option of cable tv here in the foothills between Hollywood and Palm Springs, so I'm missing lots of details. Like, who were those citizens on the sidewalk, and do they always walk so quietly? One does intuit they are watchers of soap operas, but other than that, where did they come from?

As a person embroiled in writing a murder mystery, I must know.

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