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Jewish World Review March 7, 2005 / 26 Adar I, 5765

Jonathan Turley

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Dissing the Dead to Save the Accused; Blake lawyers used an old technique | The trial of actor Robert Blake has been, perhaps fittingly, a made-for-TV drama. The former tough guy of the series "Baretta" seemed to walk out of Central Casting — as the bitter, hoodwinked lover — into a scenario populated with shady stuntmen, drug dealers and a virtual army of unseen pornography addicts. However, from the opening statements to the closing, the leading role in this production has been the victim: Blake's dead wife, Bonny Lee Bakley. A serial con artist and pornographer, Bakley proved the best witness for the defense, a person whose very life seemed committed to creating reasonable doubt in defense of anyone who would end it.

Though we are taught not to speak ill of the dead, the opposite is more often true in court. In civil cases, courts have long held that the dead cannot be defamed. In criminal cases, the dead can virtually be resurrected and held accountable for their own deaths. Putting the victim on trial is a long tradition in the law, and it has been remarkably successful in some famous trials — including some with striking similarities to the Blake case.

One of the most stunning successes using this defense occurred in the 1907 trial of Harry Kendall Thaw. Thaw was a highly unbalanced scion of a wealthy steel-and-railroad family. Decadent and violent, he led a life of utter depravity. He married the beautiful Evelyn Nesbit, one of the famous dancing and singing Floradora Girls.

After their marriage, Nesbit revealed to Thaw that she had been raped by architect Stanford White, the designer of Madison Square Garden and well-known lech. When Thaw saw White at a Madison Square Garden event, he shot him repeatedly in front of hundreds of witnesses.

With little Harry in trouble again, the Thaw family hired the best — a California lawyer named Delphin Delmas who was known as the "Napoleon of the Western bar" for his prowess in the courtroom. Delmas couldn't claim mistaken identity or self-defense, so he decided to put White on trial. For weeks, he regaled the jury with tales of the great architect's debauchery, including his infamous red velvet swing on which showgirls would cavort while he watched from below. It was enough for the jury, which found Thaw not guilty by reason of insanity.

The victim-as-culprit defense is often used as a last resort, when the facts do not allow for more convenient defenses — like innocence. This was the case in the famous 1936 trial of Vera Stretz. Stretz shot her lover, Dr. Fritz Gebhardt, and was found sitting on the stairs below his apartment with the murder weapon, two spent shells and a bloody nightgown in her bag. To make matters worse, when asked by the police if she had shot Gebhardt, Stretz simply said, "Yes, I did, but please don't ask me why I did it."

Stretz apparently regained enough of her senses to hire another great trial attorney, Samuel Leibowitz. Like Delmas, Leibowitz knew what to do: He put Gebhardt on trial. He skillfully brought into the trial how the German-born Gebhardt was an adherent of the German philosopher Friedrich Wilhelm Nietzsche, who saw women merely as the "recreation of the warrior." He compelled Stretz to testify to Gebhardt's appetite for sodomy and rape. It took only three hours for the jury to acquit — a verdict that so infuriated the judge that he stormed out of the courtroom without dismissing them or thanking them.

The victim-as-culprit defense also has a Hollywood lineage. When Errol Flynn was accused of statutory rape in 1943, his attorneys used an abortion by one of the girls to put their morals — not Flynn's — on trial. He was acquitted despite a strong case for conviction.

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Bakley is the perfect contemporary Hollywood character for such a defense. In a town known for its eat-what-you-kill predators, Bakley reigned supreme. She led a life of almost perfect depravity. Before Blake, she had spent 20 years dabbling in mail fraud, running a pornography operation and bilking lonely men out of money. Even in its closing argument, the prosecution referred to the victim as a con artist and "small-time grifter."

In the Blake case, the use of the victim-as-culprit defense is stronger than many past cases. It's not just a matter of making the jury hate the victim and sympathize with the accused; Bakley's history is being used to establish the classic defense: Someone else did it. The defense has tried to show that you could virtually throw a stick anywhere in L.A. and hit a couple of people who would have wanted to kill Bakley.

Despite the cries of foul from victim's rights advocates, Bakley is fair game for such a defense. When you lead a life of treachery and deceit, you leave a long line of plausible killers. With victims like this, who needs an alibi?

Regardless of its outcome, the Blake trial will join the Thaw and Stretz trials in the victim-as-culprit Hall of Fame. As for Bakley, she has already achieved a type of immortality among other cultural icons — a tragic character who searched for celebrity her entire life only to find it in her death outside an Italian restaurant in the San Fernando Valley.

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JWR contributor Jonathan Turley is a law professor at George Washington University. Click here to visit his website. Comment by clicking here.


© 2005, Jonathan Turley