Out on Bail, and Out of Jail Forever?
How Robert Blake's Pretrial Hearing Evidence May Help Him Win His Case At Trial

On March 14, actor-turned-defendant Robert Blake was freed on $1.5 million bail. The ruling was the result of a preliminary hearing at which ten days of testimony was presented. Twenty prosecution witnesses testified - giving Blake and his attorneys an excellent preview of what the prosecution will argue at trial.

Now Blake has much more to smile about than waking up in his own bed after spending nearly a year in a cement cell. This inordinately lengthy preliminary hearing proved to be a major coup in the defense of this former Baretta star.

Indeed, as a result of the hearing, Robert Blake just might grab a "not guilty" nomination for his role in this real-life drama.

The Charges Against Blake, and Blake's Defense

On May 4, 2001, Blake's wife, Bonny Lee Bakley, was fatally shot at point blank range. After an investigation, prosecutors charged Blake with solicitation of murder, conspiracy to murder, and the commission of first degree murder.

If he is convicted of even the lowest count (in other words, something short of murder), any prison sentence - even a few years - could put him behind bars for life considering his age and deteriorating health. That means that, from the standpoint of the court's decision whether or not to release Blake on bail, Blake is a potential flight risk - as opposed to a younger defendant who, even after a conviction, would be able to rejoin society after serving a significant prison term.

The State contends that Blake and Bakley, married only six months earlier, were having serious marital troubles. As a result, the State says, Blake at first tried to hire three former acquaintances to kill Bakley. When all three turned him down, prosecutors allege, Blake was force to commit the murder himself. They claim that Blake killed Bonny Lee with two bullets, the first ripping through her right shoulder, the second striking her in the face, as she sat in the passenger seat of his Dodge Stealth after a dinner at Blake's favorite Italian restaurant.

Blake, however, claims that, prior to the killing, he had returned momentarily to the restaurant to retrieve, ironically, his own handgun - not the murder weapon - which he had forgotten inside, leaving Bonny Lee to wait in the car. When he returned, Blake says, he discovered Bakley's body, bloody and slumped in the seat.

Before the recent hearing, Blake had twice sought release on bail, and had twice been denied. However, the evidence presented at the preliminary hearing seems to have changed the judge's mind.

Blake's Preliminary Hearing: Somewhat Like A Trial, But With Key Differences

Blake's preliminary hearing (commonly called a "preliminary examination," or simply "prelim") was a creature of California criminal law. California law provides that after a felony complaint is filed, the defendant is automatically entitled to such a hearing.

If a defendant so chooses, the hearing must occur within ten court days of his arrest. Blake, however, chose to formally waive the right to have the hearing occur quickly. That was wise - his attorneys needed time to prepare and conduct their own investigation. In addition, a later hearing, from their perspective, meant a better preview of the ultimate case the prosecution intended to present at trial.

A preliminary hearing resembles a criminal trial in many respects; indeed, there are only a few procedural differences between the two. Nevertheless, these differences are extremely significant.

The most notable dissimilarity is the burden of proof. At trial, of course, the prosecutor must prove a defendant's guilt beyond a reasonable doubt. But at a preliminary hearing, the State needs only to present evidence sufficient to convince the court there is probable cause to hold the defendant to answer to the charge.

When is a probable cause showing sufficient, in this context? This anthill of a threshold is met if the judge or magistrate is able to entertain a "strong suspicion" of the defendant's guilt.

The Devolution of the Preliminary Hearing in California

The theory behind the preliminary hearing is to weed out unfounded charges at an early stage in the game. As a practical matter, however, prelims have evolved into little more than pro-forma drills. The result - that the charges against the defendant are left to stand, for probable cause has been shown - is typically a foregone conclusion.

How did this change occur? The answer is that prelims' original purpose has been largely voted away by tough-on-crime California constituents. To take perhaps the most drastic example, in 1990, Proposition 115 - now part of the California Penal Code - became law.

Proposition 115 permits even hearsay statements to be admitted during a preliminary hearing when such statements are testified to by properly trained law enforcement officers. That's true even though such statements will ultimately be inadmissible at trial unless they fall into a hearsay exception.

It's important to remember that hearsay is prohibited at trial for a good reason: When a witness claims to be repeating what someone else said, then the defendant is stuck. He cannot effectively cross-examine the person who supposedly actually made the statement; they are not on the stand. And the person who is on the stand can just keep repeating, "Well, So-and-So told me that."

The combination of the low "probable cause" threshold and the ability to present hearsay evidence makes the prosecutor's job, during the prelim, very easy indeed. Thus, the machinations of most pretrial proceedings are, for the most part, mundane. But Blake's was not all mundane, it turned out.

In Blake's Case, Cameras Revealed a Highly Unusual Preliminary Hearing

Cameras inside this California courtroom, however, allowed for a rare glimpse into what should have been a rather humdrum hearing - and definitely was not.

The State's case seemed to have all the trappings of a good murder mystery. Indeed, at times the witness's testimony sounded like it came straight from the pages of an old Baretta script. The problem was that, by the end of the hearing, the mystery simply did not feel like it had necessarily been solved.

The State's evidence of motive was reasonably strong - Bakley, it suggested, was a grifter whom Blake had felt trapped into marrying. He'd wanted her out of his life. So was its evidence of solicitation of murder. Two stuntmen, and one former bodyguard of the actor, testified that Blake solicited them to "whack", "pop", or "snuff" Bakley.

But where was the evidence that Blake ultimately fired the gun that killed Bonny Lee? Ten days passed; twenty witnesses testified; and yet the State rested its case without presenting a single shred of evidence to prove Blake pulled the trigger.

No forensics. No fingerprints. No matching bullets. No blood spatter. No paper trail. No eyewitnesses to the shooting. Nothing. Any evidence in support of the contention that Blake had not only wanted to get someone else to murder Bonny Lee, but had actually done so himself, seemed to have ended up on the cutting room floor.

The absence of evidence was all the more striking in light of the fact that, unlike in most homicide investigations, Blake was at the scene and processed for forensic evidence the very night Bonny Lee died.

Nevertheless, nearly two years later, the best the People could do was to demonstrate that Robert Blake had a few errant particles of lead on his clothing, which might or might not have come from firing a gun. This residue easily could have been transferred to Blake when he was detained by the police that night, or when he discovered his wife, dead.

Moreover, even if the particles did come from a gun, it is impossible to prove whether they came from the murder weapon. And remember, Blake admitted he owned a gun, and presumably had shot it, at least in practice.

Taking full advantage of this gap in the prosecution's case, the defense went on to question the State's evidence of motive. Sure, Bonny Lee was a grifter with a checkered past, the defense admitted. But look at the kind of grifter she was: She'd made a living hustling a string of lonely men out of their hard-earned money. Any one of these men, according to defense counsel, could have been motivated to put a .38 caliber bullet in Bonny Lee Bakley's head that fateful evening.

In short, while the plot may be thick, the case clearly is thin. If one considers this preliminary hearing a window on the trial yet to come, the State is a long way away from proving their case beyond a reasonable doubt. So not only is Blake out on bail, he may end up out of jail permanently.