Defense Strategy #7:
Discredit the Prosecution’s Witnesses
Actor Robert Blake’s Murder Trial
At trial, if I’m unable to directly refute or otherwise contradict a prosecution witness, then I’ll do everything possible to discredit him or her in the eyes of the jury. The infamous Robert Blake murder trial is a prime example of how this strategy can result in an acquittal.
On the eve of Cinco de Mayo, 2001, 67-year-old actor Robert Blake (who had been the star of the hit 1970s TV show Baretta) ate dinner with his wife of six months, Bonnie Lee Bakely (forty-four and the mother of his baby girl), at an Italian restaurant in Studio City.
After paying the bill, he walked her outside, down the street, and then left onto a dark residential side street where his car was parked. What happened thereafter would prove to be the subject of endless speculation, as well as the most publicized murder case in LA County since the O.J. Simpson case in 1995.
According to Blake, after he opened the front passenger door for Bakely and let her in, he suddenly remembered that he had left his handgun behind at their booth in the restaurant. (It remains unclear why he carried a gun or if he had a permit for it.) After retrieving it from the restaurant (which no employees saw him doing), he told police that when he returned to the car, he saw that someone had shot Bakely point-blank in the face, killing her. He claimed he had no idea who could have done so.
The Arrest and Trial
Not surprisingly, police didn’t believe him, and, following an intensive investigation, he was arrested 11 months later in April 2002 at the ranch he had shared with Bakely in Hidden Hills. Importantly, the murder weapon had never been recovered, and Blake’s handgun was tested and ruled out as such.
The trial did not commence until more than a two-and-a-half years later, in December 2004, and would last for a whopping three months. Blake was tried on the following counts:
First-Degree Murder with Special Circumstances/Capital Murder (Lying in Wait) (California Penal Code section 190.2): https://codes.findlaw.com/ca/penal-code/pen-sect-190-2.html);
Conspiracy to Commit Murder under California Penal Code section 189(e): https://codes.findlaw.com/ca/penal-code/pen-sect-189.html
Solicitation to Commit a Crime (California Penal Code section 653f: https://codes.findlaw.com/ca/penal-code/pen-sect-653f.html) -- Murder (California Penal Code section 187(a): https://codes.findlaw.com/ca/penal-code/pen-sect-187.html
During the three-month trial, two former stuntmen testified that in the months leading up to the killing, Blake had tried to hire them to kill Bakely. He was able to provide overwhelming evidence that both men were severe drug addicts whose abuse of heroin, cocaine, and crystal meth had caused them to be delusional.
But Blake had hired a to-notch criminal defense attorney, and by the time he was done cross-examining these prosecution witnesses, the jurors could barely contain their disgusted expressions.
In addition, defense counsel got the first stuntman to admit that Blake had used the term “pop her” as opposed to anything explicitly referencing murder. In other words, the attorney clearly implied that Blake, at worst, may have simply wanted the stunt man to punch Bakely.
Better yet, the attorney presented irrefutable evidence that Bakely had been a con-woman who posted personal ads to fleece lonely men of their money in a “lonely hearts” scheme. As such, he argued that any of a hundred men she had allegedly scammed could have wanted to kill her in retaliation.
Next. Blake’s lawyer put on an expert witness who testified that the amount of gunfire residue found on Blake’s hands several hours after the killing was nowhere near the amount someone would have had if they had fired the weapon – a .380 Walther-PPK (James Bond’s favorite gun) – earlier that evening.
Finally, on or about March 16, 2005, the jury acquitted him of the first count of solicitation, and hung 11-to-one in favor of acquittal on the second count. When polled, jurors confirmed that the two former stuntmen were not credible in the least. They also cited the lack of a murder weapon, a lack of an eyewitness, the lack of gunpowder residue, and the otherwise circumstantial evidence presented against him. (Blake wisely chose not to testify.)
Fortunately for Blake, the judge dismissed the second solicitation count with prejudice “in the interests of justice,” which means the DA’s Office was precluded from trying him again on that charge.
Defense Strategy #8:
Turn the Tables and Attack the Prosecution
O.J. Simpson’s Murder Trial
As the entire world knows, shortly after midnight on June 13, 1994, O.J. Simpson “allegedly” (I’m using quotes since he was found liable for doing so in a civil wrongful death action) hacked to death his ex-wife, Nicole Brown Simpson, and her friend Ron Goldman, with a large hunting knife outside of Nicole’s condo in Brentwood. (Simpson had apparently been in such a rage that he nearly decapitated Nicole.)
During the investigation, as the world also knows, LAPD found a bloody glove, which they believe Simpson had dropped during the murders.
On January 18th (five days later), Simpson was arrested and charged with the following crimes:
Two counts of First-Degree Murder with Special Circumstances/Capital Murder (Lying in Wait) (California Penal Code section 190.2): https://codes.findlaw.com/ca/penal-code/pen-sect-190-2.html.);
Two counts of Personal Use of a Dangerous Weapon During the Commission of a Felony (California Penal Code section 12022): https://codes.findlaw.com/ca/penal-code/pen-sect-12022.html
Fortunately for Simpson, LAPD’s interrogation of him was an absolute joke, and failed to pin Simpson down on his version of events that evening, including where he was at specific times during the night. (Indeed, I can’t think of a single homicide investigation that LAPD bungled as badly as this one – and that’s saying a great deal.)
The “Trial of the Century”
On November 9, 1994, the so-called “trial of the century”, which lasted almost a year, began.
Simpson’s defense “dream team”, led by Johnny Cochran, effectively – and brilliantly – attacked every single piece of evidence and witness presented by the prosecution. Fortunately for Simpson, the coroner’s office had completely bungled the chain of evidence, and comingled the blood and DNA samples with those from another case.
In fact, Cochran effectively turned the proceedings into a trial of the state’s forensic pathologists and scientists, forcing them to admit during cross-examination that they had degraded the DNA evidence by initially placing wet Q-tips into plastic baggies, then later transferring them into a hot vehicle, where they sat for almost an entire day.
Cochran even got an LAPD scientist to admit that he may have handled the bloody glove without gloves! (Imagine how many innocent people these idiots had sent to prison over the years and decades through their egregiously incompetent blundering.)
On Oct. 3, 1995, the jury returned its verdict, which, of course, was not guilty on all counts.
But as amazing as Cochran’s attacks on the prosecution’s forensic witnesses, his blistering cross of the lead LAPD detective, the virulently racist Mark Fuhrman, was even more masterful.
Cochran’s investigators somehow located a professional writer who had interviewed Fuhrman in the early 1980s for a potential book project, during which Fuhrman repeatedly used the “N word” in referring to Blacks.
Better yet, the writer still had the tapes of those conversations, which Cochran played in open court, much to the horror of both prosecutors and jurors. Indeed, the writer testified that he had told her that all Blacks should be burned to death.
This single revelation alone completely undid all the damage Fuhrman had made when testifying earlier on direct when he adamantly claimed he had never not used such a word anytime in the preceding decade. (Fuhrman would eventually accept a felony plea for perjury. Unbelievably, the LAPD – instead of firing him and stripping him of his pension, allowed him to retire shortly thereafter with full benefits!)
To corroborate the writer’s testimony, Cochran produced a second defense witness who testified that Fuhrman had told her that “the only good [N-word] is a dead [N-word].”
Note for new defense attorneys:
It’s because of toxically racist police officers and detectives like Mark Fuhrman that you always want to file Pitchess motions against testifying officers, deputies, and detectives. This forces the LAPD or Sheriff’s Department to produce a particular officer, deputy, or detective’s personnel file, which would include all of the civilian complaints and internal discipline (which is typically non-existent or otherwise a joke) filed against him or her. You can then use that information to attack their credibility at trial. For example, Cochran effectively used the numerous complaints of police brutality against Fuhrman– specifically, assaults against Black people – to prove to the jury that Fuhrman definitely practiced what he preached. And it sank the prosecution’s entire case.
Thus, by the time Cochran got around to confronting Fuhrman with the fact that he was the one who initially found the bloody glove and transported it, the jury was convinced he had planted it.
In my opinion, this wasn’t the case, and Simpson actually did accidentally leave it behind – and forensic testing would later prove that carpet fibers from his Bronco were found in the glove, and so was Simpson’s DNA, but so what? By the time that evidence emerged, none of the jurors cared.
However, I could be absolutely wrong since Fuhrman, in court but outside the presence of the jury, pled the Fifth when Cochran asked him in front of the judge if he had planted any evidence at the scene!
Indeed, Cochran argued to great effect that as the first detective on scene, and as someone who hated Blacks more than anything, Fuhrman had both the opportunity and motive to plant the glove – and, of course, to lie about his version of events on the stand.
Cochran even argued to the jury that Fuhrman had taken the bloody glove and wiped it on the Bronco’s interior, thereby explaining the carpet fibers and DNA!
And we all know what resulted – Simpson was found not guilty. (And Fuhrman went on to become a best-selling author. Go figure.)
Defense Strategy #9:
The “Cultural Defense”
The Second Murder Trial of Patrick “Hooty” Croy
Background of the Murder and First Trial
I’ve finished discussing all the traditional defense strategies to murder prosecutions, so I’ll start wrapping up this series by writing about a truly unique defense literally “invented” by my former mentor and boss, J. Tony Serra. This involves the made-for-Hollywood story of Patrick “Hooty” Croy (age twenty-three at the time of the incident).
Just after 11 pm on July 16, 1978, a handful of Native Americans indigenous to Yreka, California (near the Cal-Oregon border) entered a local mini-mart after a long day and evening of drinking and smoking marijuana.
According to law enforcement, the group ransacked the store then fled in their vehicle. According to the suspects, Patrick’s sister Norma Jean Croy got into an argument with an apparently racist white male cashier, threw bills and a handful of change at him to pay for a 12-pack of beer, and left with her friends in that vehicle.
The clerk, however, called the apparently equally racist, all-white sheriff’s department and reported that the Croys and their friends had robbed him. The call went out to even those deputies who were off duty, and had also been drinking all day. It was a recipe for disaster, and that’s exactly what transpired.
One of the occupants of the Croys’ vehicle, their friend and fellow Native American Darrell Jones, allegedly fired a rifle at one of the pursuing deputies as they all raced along a highway. The Croys and their friends were all terrified, so Patrick, who was driving, turned up a rural road towards a cabin his grandmother lived in at the base of a mountain.
As soon as Patrick parked, he, Norma Jean, and Darrel took off running up the mountain side. Authorities alleged that they fired numerous rounds down at the increasingly large group of Yreka police officers, Siskyou County deputies, and CHP officers gathering below.
At some point, Patrick admittedly took the rifle – a .22-caliber for hunting – and snuck under the cover of darkness to the back of the cabin – authorities claimed it was so he could retrieve more ammo, but Patrick claimed it was because he was worried about his grandmother’s safety since she was inside the cabin at the time.
According to the authorities, he came upon an unsuspecting Yreka PD officer Jesse Hittson (twenty-seven) and “ambushed” him, instantly killing Hittson with a single shot in the chest.
According to Patrick, however, he and Hittson surprised each other – and when Hittson drew his own .357 Magnum revolver first, fired twice at Patrick, wounding him both time, after which Patrick fired back in self-defense. At that point, Patrick surrendered to the police.
In 1979, Patrick was convicted of the following charges by a local jury:
- First-Degree Murder (in general) at California Penal Code section 187(a) (https://codes.findlaw.com/ca/penal-code/pen-sect-187.html) & California Penal Code section 189(a) (https://codes.findlaw.com/ca/penal-code/pen-sect-189.html);
- Conspiracy to Commit Murder under California Penal Code section 182 (https://codes.findlaw.com/ca/penal-code/pen-sect-182.html) & California Penal Code section 189(e): https://codes.findlaw.com/ca/penal-code/pen-sect-189.html
- Deliberate and Premeditated Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664): https://codes.findlaw.com/ca/penal-code/pen-sect-664.html
- Second-Degree Robbery (California Penal Code section 211): https://codes.findlaw.com/ca/penal-code/pen-sect-211.html
- Assault with a Deadly Weapon (ADW) On a Police Officer (California Penal Code section 245(b): https://codes.findlaw.com/ca/penal-code/pen-sect-245.html
In addition, the jury found true the following special circumstances:
- Murder Committed During Robbery -- California Penal Code section 189 ("Felony-Murder Rule") at: https://codes.findlaw.com/ca/penal-code/pen-sect-189.html;
- Murder of a Police Officer in the Line of Duty (former § 190.2, subd. (c)(1) & (c)(3)(i)): California Penal Code section 190.2 (Capital/Special-Circumstances Murder) at: https://codes.findlaw.com/ca/penal-code/pen-sect-190-2.html.
As a result, he received a death penalty sentence and was, therefore, immediately sent to San Quentin’s infamous Death Row.
Fortunately, the California Supreme Court overturned Patrick’s conviction and remanded the case for a new trial, but this time in San Francisco so he could ostensibly receive a fair trial this time.
Specifically, the justices held that the jurors were given erroneous instructions on the robbery count, upon which the felony-murder charge was based, because the instructions did not require them to find that Patrick did not have the specific intent to commit the robbery.
Tony Serra Defends Patrick at the Second Trial
Ten years later – specifically, Nov. 30, 1989 – Tony gave his opening statement in Patrick’s re-trial at the San Francisco Superior Court. (Academy Award-winning actor Gene Hackman sat through the entire trial to study Tony for Hackman’s upcoming role in the 1990 film Class Action.)
Because of Tony’s masterful oratorical skills, the trial was pretty much over by the time he finished his hours’-long opening. Fortunately, and to his credit, the presiding judge gave Tony as much leeway as he wanted.
In short, Tony essentially put the entire racist, genocidal history of overwhelmingly white Eureka County on trial, beginning with the 1849 Gold Rush, where the local whites slaughtered 95% of the indigenous population by poisoning them at “feasts” to which they invited the Native Americans, and by giving them smallpox-infested blankets – all so the whites could exploit the lands they lived on to mine for gold.
Local law enforcement and county officials even offered bounties – fifty cents per scalp – on the indigenous population so, not unlike the way Australians did with Aborigines in their own country – Eureka County murderers fanned out and shot to death every man, woman, and child they could find. Even babies were slaughtered without mercy. These killers even proudly flew flags that announced their status as executioners. Others would kidnap and traffic indigenous boys and girls to serve as sex slaves or free labor for the miners staking local claims.
(During the trial-in-chief, Tony would present numerous academics and historians to corroborate these horrific but entirely truthful claims.)
Tony deftly drew a direct line from that genocide to the present day where racism, exploitation, and subjugation of the indigenous population continued unabated – as did the brutality of the local police departments towards them, and particularly towards young men like Patrick and his friends.
He summarized his opening by proclaiming that in light of the 130 years of slaughter at the hands of police officers, deputies, and white executioners his people had barely survived, Patrick reasonably acted in self-defense when he stumbled upon Hittson that night.
Every piece of evidence, and every witness he put on the stand, seamlessly corroborated what would come to be known as Tony’s “cultural defense”. Tony otherwise provided compelling evidence that everything Patrick and his sister & friends had done that night was reasonable.
For example, Tony proved that the group had stopped by the mini-mart to pick up beer before they went night hunting – a common pastime for the local Native Americans, which is why they had the hunting rifle.
He also convinced the jury (no longer all-white as the first one had been) that the group was understandably terrified when they saw they were being pursued by a “posse” of white lawmen, whom the group knew despised them and would like nothing more than to kill them as generations of lawmen had done to their people for more than a century.
Particularly devastating was a recording of the all-points bulletin that went out after Darrell had fired wildly at the pursuers: “Drunk Indians are shooting at us! Kill them!”
Tony also argued that Patrick had driven to his grandmother’s cabin out of sheer panic – a place that had always served as a warm, loving home for him. But after the group arrived there, Tony presented evidence that the cops and deputies immediately started showering the cabin and the ridge above it (where Patrick, Norma Jean, and Darrell had fled) with a blistering, unrelenting fusillade of semi-automatic and shotgun fire.
Then Tony established that it was only after Norma Jean (who was shot in the back as she ran) and Darrel were both wounded that Patrick became fearful that the police would murder his grandmother, and that’s why he went down to check on her.
Also particularly devastating to the prosecution’s case was evidence that Hittson was highly intoxicated at the time he shot Patrick twice as he had been drinking all day and evening long at a barbecue party. Even worse for prosecutors, Tony submitted evidence that Hittson had shot Patrick from behind and, thus, ambushed Patrick and not the other way around, before Patrick turned and fired in self-defense.
Closing Argument and Verdict
Tony persuasively argued that civilians are entirely justified to kill even a police officer if that officer is attempting to murder them.
He then pointed to racist articles in the local papers he had submitted earlier to confirm that whites in Eureka County continued to despise the local tribes. He did the same in regard to the numerous assaults Patrick had suffered not only by white students while in school, but even by white teachers.
After two weeks of deliberation, after an exhausting three-month trial, the jury returned its verdict: not guilty on all counts.
For those of you who are interested, a documentary was produced in 2001 about all of the foregoing entitled Reason to Fear: The Cultural Defense of Hooty Croy.
The Los Angeles Defense Attorney Law Firm (LADALF)
Her sixteen years of experience, including her first four in practice as an LA County Deputy Public Defender (including two in South LA), and her unparalleled trial skills, have made LADALF’s lead criminal attorney Ninaz Saffari one of the top homicide-crime attorneys in town. Most her murder and attempted murder cases come from word-of-mouth, which is a testament to her prowess.