One of the first things taught in law school is that a trial begins with opening statements and winds down with closing arguments. The statement presented to jurors at the start of the trial is supposed to be just that - a statement of the case, an overview of the facts and the testimony that jurors can expect to hear. Arguments about how to interpret evidence and pleas to jurors to draw certain conclusions are permitted only at the close of the trial. Those are considered arguments, and must wait until the close of the trial.
And opening statement usually go smoothly, with few if any interruptions or objections.
But this wasn't your usual civil trial. And things didn't happen as they usually do. When council for the Bakley estate began his statement, all the rules went out the window. His statement was interrupted no less than 54 times - mostly by Civil Court Judge David Schacter.
"No arguments," the judge repeatedly admonished Bakley attorney Dubin. "No soundbites, either."
From the beginning, Dubin's presentation was astoundingly inept. And he stayed pretty much on a downhill course for the four hours he spoke, often barely audibly, to the jurors. Other times, he seemed to lose his train of thought mid-sentence. These quotes, from Dubin and Schacter respectively, pretty much sum up the style of the plaintiff's opening"
"The evidence will show . . . " [Long pause.]
"That nobody saw him come back, is that what you're trying to say?"
At another point, Dubin sought to rescue some of his credibility by explaining that the Bakley estate administrator, Blanchard Tual, also handled the Elvis Presley account. Schacter again admonished the lawyer for making statements not part of the case. He then joked, "We don't need to mention Elvis. Elvis is not in the building." (1)
Embarrassed, Dubin replied that it is the "four children" of Bonny Bakley who would get the money.
Things went no better for Dubin after a break. In describing the events of Friday, May 4th, 2001, he recited the time stamped on Blake's credit card after the meal at Vitello's, mentioned the names of several witnesses, described the call made by Sean Stanek to 911, and then got to his main point about Bakley's shooting. But it didn't come out quite right:
"Bonny was lying dead, still alive." More laughter.
Finally seeming to catch on to the fact that opening statements are meant to give jurors a quick overview of what evidence will be presented, Dubin went on to talk about various witnesses he intended to call. One after another.
When Dubin got to William Welch, and started to summarize what he expected Welch to say on the stand, Schacter again lost his patience. "Are you going to go through all 200 witnesses?" the judge demanded. Dubin weakly responded, "There won't be 200, your honor." But he continued.... Lisa Johnson (Earle Caldwell's scorned ex-girlfriend) ... Luis Mendoza... Frank Minucci.....
By this point, some jurors seemed restless. Most seemed bored. And at least one appeared to have fallen asleep.
Dubin's opening came to an abrupt halt when Schacter essentially told him to shut up. As reported by the Associated Press:
"Dubin talked for nearly four hours before he was cut off by Superior Court Judge David Schacter because he persisted in presenting arguments rather than just stating facts. Arguments are allowed at the end of testimony.
"You mean my whole opening statement is over?" Dubin asked aghast.
"Yes," said the judge. (2)
Waiting for the Other Shoe to Drop
Peter Ezzell, Robert Blake's civil attorney, then got up to present his case, refuting whatever was understandable in Eric Dubin's bungled statement. He was cool and competent, kept his remarks brief and to the point. While he lacked the passion of criminal lawyer M. Gerald Schwartzbach, his explanation of the case was lucid and logical.
His opening went through pretty much the same issues that were presented at the criminal trial. He warned about the lack of credibility of certain witnesses for the plaintiffs (particularly the dope-addled stuntmen), and offered a good narative about Blake's desperate actions to attempt to save Bonny Bakley's life. He also addressed the matter of the infamous "phone card," promising to show the jurors that there was exactly one phone call made on that card to Gary McLarty, and that was about scaring off a stalker who appeared to be looking for Bakley. And he further spoke at some length about expert witnesses who would testify about the physical evidence, and lack thereof, at the crime scene.
(1) See Deutsch, 1 September 2005 (above)