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CNN LIVE EVENT/SPECIAL

Robert Blake Bail Hearing

Aired October 9, 2002 - 11:57   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

LEON HARRIS, CNN ANCHOR: We go from Maryland to Southern California, Van Nuys, California, a bail hearing for actor Robert Blake -- Let's listen in.
JUDGE LLOYD NASH, L.A. SUPERIOR COURT: I'm not interested in that. I'm interested in why I should find -- make a finding to set bail here, that's all.

HARLAND BRAUN, BLAKE'S DEFENSE ATTORNEY: For example, for example, the people submitted to you late last night GSR results on Robert Blake's clothing.

NASH: I saw that.

BRAUN: And they submitted to you the results on his hands. And, yet, they did not submit to your honor an item that we submitted to your honor many, many months ago from the Los Angeles Police Department, which specifically states that the presence or absence of gunshot residue, other than on bare hands is possibly unfounded and possibly misleading.

So there, what they've done is they've submitted to your honor GSR results they should never have admitted, because they know from their own expert, not my expert, not my opinion, that that is misleading evidence. Because, in fact, it can be kept for months. The clothing that was taken from Mr. Blake the day after his wife was killed was put in a police department trunk and taken home by a police officer and not turned in until the following week at the lab.

And then with respect to the hands, they also turn that into your honor, but we had submitted to your honor, submitted to your honor many, many months ago, the very GSR test from the Los Angeles Police Department, which specifically says it is not to be given with someone who has a gun in his possession, which obviously Mr. Blake did, because he turned over his gun to the police when they showed up.

We don't consider that fair, because they're submitting to you intentionally misleading evidence.

Now, let me talk about one other matter that I consider misleading. It's not whether I consider it misleading or not, but whether it's, in fact, misleading.

They submitted to your honor a picture of a box that has nine millimeter ammunition in it, spaces for 100, and there's three bullets missing. And there we know that there are three bullets in the murder weapon, two that were shot and two my client's wife and one who's remains were recovered at the dump by the police.

So we have three nine millimeter bullets in the murder weapon, a very unusual number. The inference is either that Robert Blake took three bullets and put it into the murder weapon, or that someone, either who was present there, attempted to frame Robert Blake by removing three bullets and turning it into evidence, who it is. The DAs were present, there was a private author president and the police were present. Those are the two inferences. But do they tell, your honor, in the report at all that they know is that these bullets are reloads, and the bullets in the murder weapon are new bullets.

So we know then that Robert Blake, that the bullets in the murder weapon did not come from this box, so the other inference remains. Three and three -- that's just not a coincidence. That's a very unusual number. If you're going to load an automatic, you're going to be taking seven or eight.

But for a murder weapon to only have three bullets is very unusual, too. So this very, very misleading. The GSR is very, very misleading. And that's why we say over and over again, in our paperwork, the only issue here is lying in wait.

Now it's not -- it is not a premed -- what is a premeditated murder. It's not whether he conspired. It's not whether he solicited someone. Because we're only talking about bail. And the narrow issue is, did Mr. Blake physically shoot his wife personally, as alleged in count one, and when he did it, was he laying in wait?

So let's talk -- there's two separate issues. Now the easier one to analyze is actually the first one. What evidence is there that Robert Blake shot his wife?

The police chief says at the beginning this is going to be a forensics case. So where are their forensics? The forensics are fraudulent, because they submitted to your honor a GSR exam that the Los Angeles Police department warned them is misleading. They -- maybe they forgot that we previously submitted that to you. Where's the blood test?

So their theory is that Robert Blake physically went out there at Vitello's restaurant and shot his wife and stayed there, and the police, with all of the scientific units, were there within a very short period of time, and they spent 11 months testing the car, his clothes, his hands, testing her, under the hood, fibers, in the insulation, oil, the oil can.

Everything was tested, and not a scrap of forensic evidence, and you can see their desperation that they would literally submit to you something that they know is misleading. So there's not a scrap of forensic evidence.

so where are the witnesses? There are no witnesses? They have a theory that his statement, that he gave them for four hours right after his wife was murdered, is inconsistent. The timing is bad. Well, we showed your honor there are two independent witnesses, that they interviewed, that we interviewed, which basically positively identify Robert Blake as leaving the Vitello's restaurant alone, sometime around 9:30 to 9:40. The significance of that is that we know when he left first, he left with Bonny. And we know that another time he left with the nurse, that he -- he tried to summon a doctor and there was a nurse to go back to aid his wife.

So those two independent, positive witnesses established that also he left alone, which corroborates his version to the police that night that he went back to the restaurant because he had left his gun in the booth, and he came back and found his wife had been shot. There's no admission.

So their whole premise of this case in terms of bail and lying in wait is that he shot his wife. No forensics. No witnesses. No admission. Nothing.

And as we pointed out in our paperwork, Bonny Bakley was alive when the ambulances got there. She died later. Now what is the chance that someone who is going to murder someone that is known by the person would put one bullet in the head?

Your honor has sat at a number of criminal cases for years and you know, and most people who have any familiarity with guns know that one bullet to the head is a sometime thing. Sometimes it can be instantly fatal. It can go through the face into the brain. Sometimes it can hit the skull and go around. People can survive five or six bullets to the head.

So the theory that they have is that the killer left Bonny Bakley alive, risking the chance that she will live forever perhaps or live forever perhaps, or live long enough to identify are her killer. So the clear inference there from the modus operandi of this killer was that she did not know the killer, that it was not Robert Blake.

They have a lot of other theories in this case. We have photographs. The car was supposed to be a block and a half away. We submitted the aerial photographs from the police department. The car was four houses away. Vitello's restaurant has 19 places to park. They have 200 guests on a Friday or Saturday night.

Mr. Stannick, the person that called 911, told the police that Robert Blake had parked there before and that people from Vitello's restaurant park around there all the time. We've submitted a photograph to your honor showing where the car was parked, a police photograph. He was parked 12 feet behind the dumpster, in plain view, under a streetlight. So much for their theory that this was an unusual place to park, that it was concealed. So much for all that theory. It's all based on quicksand and speculation when you get out there.

Some were complaining he didn't use the valet. There was no valet there. There's never been a valet there.

Your honor sees that this case is based on speculation. Speculation. And the standard that your honor has to find is clear and convincing evidence of a lying in wait, and to find that you'd have to find clear and convincing evidence that he killed his wife. And the other thing is, what do we know about lying in wait? Well, there is some difficulty, your honor, and I admit it with the definition right now, because the law is in flux. There was an initiative passed that struck the world "while" and substituted the words "by means of," and that really undercut the Morales case, which was based on "while."

So really can't -- I don't think anyone until the Supreme Court speaks, whether it's constitutional or unconstitutional or defines lying in wait, is going to know what it means.

But I'll tell the minimum it means: It means some type of interaction, physically or somehow about the time of the killing between the victim and the perpetrator, something in addition to a premeditated murder.

And what do we know? We know that Robert Blake left the restaurant, walked down the sidewalk with his wife, and that she is dead from two bullets, mainly the bullet to her head, and that's all we know.

Even under their hypothesis, we don't know anything about the interaction between the perpetrator and the victim at all. They have a theory of premeditation, that he solicited people, that he conspired with Mr. Caldwell. This is not the time to argue that. There's another day for that. But we're simply saying, all that good to premeditation.

And what people -- the people seem to forget is that a premeditated murder in California is bailable, is bailable.

Now the one other thing I want to point out, your honor, is I believe or I think the mathematics of this case, we can mathematically prove that the allegation of lying in wait is a pretense. Mr. Blake is 69 years old. You have any question, his date of birth is on the face of the complaint -- 69 years old. We're only talking about count one. The other counts are all bailable. We're only talking about the lying in wait, because without the lying in wait, it's bailable.

If he were convicted of a voluntary manslaughter, under California law, the use of the gun is 25 to life. That's what first degree murder used to be. So you'd be facing 36 to life. There is no practical consequence to the lying in wait, other than denying him bail.

So it's a pretense. It has no function. It's basically used for tactical purposes, and the problem with that is, and I guess the -- you know, the sort of the undeniable fact in this case why the press is here and people have an interest in this case, is because Robert Blake is a well-known actor.

And to that extent that when someone is well known in the system, public gets an interest in them, because for many reasons, he is part of a lot of people's lives, either in his early acting career or his later acting career. To some extent, people are interested in the case. When they are interested in the case, they look at a case, and it sets a specific example of how our system operates, and it's these kind of cases that do that.

And this particular case, what I'm saying is that this is setting a bad example, because it is obvious that this is not a struggle over the merits of the case, which we should be struggling over. It's not a struggle to keep a man who is a flight risk or a danger to society in jail, which would be justified. It's a struggle over a tactic. He has waited now 25 weeks in solitary confinement for this hearing, patiently. And I think -- there's a fine line, I guess, between pandering to public opinion and the credibility of our system.

And I think the public in this case, and from my input, from people on the street and in the courts, understand this case. They know that they want -- they keep an open mind about whether Robert Blake is guilty, because he's been charged, and there's a sort of presumption and common sense. People presume probably that he's guilty, until they hear the evidence.

The one thing I think the public knows, is that this isn't a serious bail motion over a person that is about to flee or is a danger to the public; they understand from their civics class, the reason we have the right to bail in our Constitution is because we try to give every citizen the right to defend themselves as best they can. Now that right can be subject to a number of limitations. One is a danger of flight. And the other is a danger to the public.

Now this is obviously a victim-specific crime under anyone's theory. Robert Blake is not going to go anywhere. He hardly could go anywhere without being followed by helicopters from the press. So that's what's important here like in all of these cases is the credibility of our system, and it sort of interests me that general members of the public are interested in the bail motion, because normally, the public is not interested in whether an accused murderer gets a bail or not. But when he's a member of your family you're interested in it. And to some extent, when your a public figure and actor in our society, you are a member of a lot of people's family and they are interested in it.

So I think we should allow Mr. Blake bail, allow him to have a fair trial and we should maintain the credibility of our system. I am somewhat, you know, disappointed in what I've seen in the paperwork, because I don't think it's fair. If I had submitted this without an explanation, I think your honor could readily chastise me. If I had submitted GSR results to your honor without the balance of what I had, which says it's meaningless, I think, your honor should chastise me. But I obviously have a different function than that of the district attorney, actually has a higher duty than I have.

So I believe this case is clearly a bailable case. There is not clear and convincing evidence that there is a lying in wait. The lying in wait is a pretense. There is no rational legal or moral justification for him being locked up pending his trial. He's not going to go anywhere. He looks forward to be able to defend himself. And I know other criminal lawyers will hate to say this, but Mr. Blake wants to prove his innocence, despite whatever the burden of proof is. He wants to stand up there and explain to his country what happened out there and why he is innocent, your honor. Thank you.

UNIDENTIFIED MALE: Thank you, your honor. I'll try to be brief.

I think that we've presented our position in the papers that we've submitted. The real only issue here before you are the facts evident and the presumption great on the special circumstance, and that is -- and Mr. Braun's talked about this a little bit, but is there evidence here that by some design the victim was taken by ambush, by some secret design? And that's exactly what happened here. In the documents we've submitted, the way the car is parked, the windows are down, the way the victim's body is, two shots coming slightly up, hitting her. She's taken by ambush. She's taken by surprise, in a manner in which someone had to sneak up on the right side of the car when the windows were down and shoot her as she sat there.

So who did this? Well, Mr. Braun in his discussion here, doesn't tell you, and we've submitted this in all the papers, that Robert Blake repeatedly is asking people, as far as a year before this happens, to whack his wife, that he's upset with her. He's upset about the babies, upset about the situation she put him in. And then he asked two stuntmen, just people that he worked with on "Baretta" years ago and that he contacted again after the years, suggesting to them that they could kill her, in fact, where they could kill her. And to both of them, he suggested situations where they could shoot her while she sat in a car outside a restaurant, even Vitello's.

And when one of these stuntmen finally said, I didn't want any part of this, Blake asked him just days before this, if you don't do this, I'm going to have to do this myself. Robert Blake is there at the scene, with the victim. He does have GSR on him. He has GSR on his hands, and that's submitted to you, because there are witnesses who see him go to the bathroom, at least once, perhaps twice, while in the restaurant, and his hands, I presume were washed. That's why generally we go to the bathroom before we have a meal.

Your honor, the evidence, I believe, meets the standards here that she was taken while lying wait by design or ambush by surprise, and that Robert Blake is the person that did this. He asked a lot of other people and finally said, if you don't do this, I'm going to have to do this myself.

BRAUN: Thank you. You notice how he said someone shot her. That's why I tried to simplify these decisions and focus on the key to the case. He talks about this evidence. We've attacked the evidence about the stuntmen, but that's not relevant. That goes to premeditation. You don't hear any argument about any justification for denying bail, I mean, any moral justification. It's all a technicality. It's all a technicality. And the public in our jurisdiction, or at least I believe, that they don't like the criminals that get off on technicalities, and they don't like prosecutions or rights being compromised on technicalities. They want to get right to the heart of the matter. They want a fair trial on this case. They want a fair bail in this case. They want to know what the truth is. They want to hear from Mr. Blake from the stand with what his explanation is, and that's why we believe that he's entitled to bail.

NASH: All right, here's the situation. First of all, I want to make it clear that I am making no factual findings. Everything that I have -- that I'm basing everything on is done on inference only. I'm making no factual findings. There's been no competent evidence. There's been no testimony. Everything is based on declaration, which is not competent evidence as far as this state is concerned.

The prosecutors in the state of California are -- their job is to charge cases, charge defendants with crimes. They bring the charging documents. They file the complaints. They provided to me the police reports in this matter. They provided information regarding this case. You have sent -- have given me contrary information, which makes it very difficult for me as a judge to make a decision without having competent evidence regarding the facts of the case.

So everything I have here today is based on inference only. I have to make that clear. Because I can't tell you I'm making findings of fact before I hear testimony, before the preliminary hearing. Do you understand what I'm talking about?

BRAUN: No, actually, I don't.

NASH: You don't understand what I'm saying.

BRAUN: No, because I believe what you do have is hearsay. You've got reports, and that you have to make some findings of fact.

NASH: I can't make finding of fact as a magistrate without hearing evidence. This is a bail hearing. Bail hearings can be drawn on -- can be done on paper. They can be done with police reports, which doesn't necessarily mean it's true. It doesn't necessarily mean it's been proven. That's just the basis of what a bail hearing is. You understand what I'm talking about? I hope you do.

In any event, California penal code section 1270.5 states "A defendant charged with an offense punishable with death cannot be admitted to bail. When the proof of his or her guilt is evident or the presumption thereof is great. Defining of an indictment does add to the strength of the proof or the presumptions to be drawn there from."

Obviously, there's very little case law in this area. I've read the cases. One of the cases from 1927 states it's not necessary that the evidence should be so convincing as to justify a verdict against the accused that's sufficient that appoints (ph) him and deduces a belief that he may have committed the offense charged. Then there's some contrary (ph) cases, party Curtis (ph) in '92 cal (ph) 188, an 1891 case, and then there's Weinberg at 177 cal (ph) 781, 1918 case.

So there's obviously a lot of old cases. The most recent case in this area would be Inray Norton (ph) at 143 cal (ph) 538.

Now I've stated all along since the beginning of this case that I am not necessarily opposed to bail for Mr. Blake.

Let me finish. What I wanted to hear was evidence at the preliminary hearing. I stated that on the record. I stated it after reading the Clark case, and I made that clear. The court of appeal agreed with me. The Supreme Court didn't order me to have a bail hearing. What they ordered was a hearing to decide whether or not there should be a bail hearing. And I just decided to go ahead and have this bail hearing today.

Based on the information that's been presented to me by the people, based on the information that I've received from you, at this point in time, I can make the finding that the -- that there is proof of his guilt and the presumption is great, for bail purposes only. It does not mean that I believe that he's committed this offense, does not mean that he's necessarily guilty, but for bail purposes only, I'm making that finding.

And therefore, until after the preliminary hearing, which I will revisit the bail issue again, I'm denying bail, and that's it. That's my finding. That's the order.

Thank you.

KAGAN: Well, you heard it right there, Judge Lloyd Nash denying bail for actor Robert Blake. He has been trying to get out of jail since April, when he was arrested for his wife's murder. The judge saying that there is enough evidence that there could be proof of his guilt, not declaring him guilty, certainly not that, but he is going to wait until the preliminary hearing to visit the bail matter yet again.

So Robert Blake remains in jail on charges that he murdered his wife.

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