Here We Go Again

CBSNews.com Legal Analyst Andrew Cohen takes a look at the Robert Blake case and compares it to another notorious case in California - the O.J. Simpson case.

But the Blake case isn't likely to be similar to the Simpson case at all. First, the key actors here will be completely different from the ones who made the Simpson trial such a melodrama. Different defense attorneys. Different prosecutors. And Lord willing a different judge. Second, there is no "race card" for cynical lawyers to play here. Third, two people are involved as defendants here and prosecutors may try to play one off against the other in order to ensure a conviction. If a plea deal never was in the cards during the Simpson ordeal, it certainly is in this case. Perhaps most important, the events of September 11th and their aftermath overseas and here at home ought to be enough to shame even the most shameless media outlets from covering the Blake trial the way they did the Simpson trial. That alone ought to control the circus, if not outright preclude it.

Like most cases only hours old, the legal questions now far outnumber the answers. For example, we don't yet know precisely what Blake and his bodyguard and chauffeur Earle Caldwell will be charged with, or even really whether they will be charged at all. The police say that Blake himself shot Bakley and that Caldwell was involved in some sort of conspiracy -- maybe in a murder-for-hire plot that went awry. There also is a lot of talk from the police about charging Blake with illegal "solicitation", suggesting that he tried to hire someone to kill Bakley but then decided to do the job himself. But prosecutors haven't brought any formal charges yet. Having waited approximately 11 months since Bakley's murder, the District Attorney apparently intends to review the police evidence over the weekend before making a final decision.

That timing is odd. You would think that the police would not have arrested Blake and Caldwell without the prior written consent and approval of the DA and that the DA's office already would have reviewed and evaluated all the evidence uncovered by the police. Usually, in a case that has unfolded like this one, an arrest follows an indictment or is immediately followed by the filing of charges. So what gives here? Does the delay between arrest and prosecution action presage some sort of rift between the cops and the prosecutors? It wouldn't be the first time that the police wanted to push ahead with a case more aggressively than their lawyer counterparts. Just because the police want a "special circumstance" (i.e. capital) murder charge brought against Blake and a conspiracy to commit murder charge to be brought against Caldwell doesn't mean that prosecutors have to play along.

What those charges end up being ultimately will determine whether the two men are tried together or separately. If Blake is charged with capital murder and Caldwell merely with conspiracy, I suspect that both men will seek separate trials and I think the judge who presides over the case ultimately would grant such a request. Blake doesn't want to have to deal with Caldwell's baggage -- whatever it is -- and the same is even more true for Caldwell. Look for that to be one of the key issues to be resolved quickly as the case moves forward. Look also for Blake's attorney in particular to think hard about trying to move the trial away from Los Angeles, although change of venue motions are infrequently granted.

We also don't know -- and really shouldn't know at this stage, when you think about it -- what the police mean when they say they have physical evidence and "significant" and "compelling" circumstantial evidence. Clearly, the physical evidence is likely to be the murder weapon itself; the gun which the police say Blake used last May 4th to shoot his wife while she sat in their car. Apparently, Blake was given a residue test to see whether he fired a gun that night but the cops aren't saying what the results of that test are. Actually, the cops aren't saying much about the evidence they say they have collected against Blake, which is probably a good idea considering what happened during the Simpson case when police procedures were put on trial almost as directly as Simpson was.

Indeed, concern about not repeating the errors of the past may have led the police to take their sweet time before finally lowering the boom on Blake and Caldwell. Remember, just a short while after Bakley was murdered, Blake's attorney investigated her past and let everyone who would listen hear that there might have been a lot of people with a motive to kill Bakley. Because that is so likely to be Blake's defense at trial, the police may have decided early on to try to rule out those other people with an exhaustive investigation before bringing Blake in. That certainly would account for the length of the investigation and also the fact that "no other case in the department's history has required such extensive travel," according to LAPD Chief Bernard Parks. Clearly, the cops don't want to hear at trial -- like they did during the Simpson case -- that the defendant was unfairly and prematurely singled out for persecution and prosecution.

Finally, there is the death penalty angle to this case. The cops want this to be a capital murder case against Blake on the theory that Blake "lay in wait" for Bakley -- a "special circumstance" under California law. And prosecutors in California and everywhere else in the world typically seek the death penalty whenever possible in order to get a more pro-prosecution jury if nothing else. Will the district attorney go for the jugular and seek to execute Blake, who by the time of his execution date may be in his mid- to late-70s? Or will prosecutors use the capital charge to gain plea leverage over Blake? That may be one of the more contentious issues they discuss over the weekend before letting the rest of us in on their decision.

From the television images Thursday night, it's fair to say that the Blake case has begun in much the same fashion that the Simpson case did back in June 1994. But the similarities are likely to end soon and whether you are a prosecutor or defense attorney or judge in this case that's probably not the worst thing in the world to contemplate.