In Blake Versus Peterson, The Difference Was Defense Strategy

Why did Scott Peterson get the death penalty while Robert Blake got to go home?

Some commentators have suggested that as both cases were based on circumstantial evidence the results should have been the same. Certainly the public view is that Peterson got what he deserved while Blake got off.

Others point to the differences between the victims. Laci, a young, pregnant, beautiful woman captured the hearts of America, while Bonnie Lee was portrayed as a grifter who exploited lonely men. In this view, the persona of the accused also played a role. Both proclaimed their innocence - though neither took the stand. Yet the desperation of Blake, an aging actor supposedly manipulated by Bonnie Lee, generated some sympathy. The womanizing, smug Peterson generated none.

I don't dismiss that personalities have some bearing on a jury's thinking. But I contend that the single most important difference in the outcome of these cases was the strategy employed by the lawyers.

Mark Geragos, Peterson's lawyer, took the position that his client was stone-cold innocent. He told the public that this was not a case of reasonable doubt, and that they would find the real killer.

In contrast, Gerald Schwartzbach, Blake's attorney, rested his case primarily on reasonable doubt and asked the jury to carefully follow the judge's instructions. He argued successfully that even if jurors believed Blake may have killed his wife, that was not enough under the law. Proof in our justice system must be beyond that elusive concept of a reasonable doubt.

Blake jurors afterwards didn't evidence huge sympathy for the defendant. There was little discussion of his innocence. It's likely that, like most of the public, jurors came away thinking it was probably Blake who committed the crime.

Blake's defense wisely focused on the scientific evidence, or lack thereof, and this played well with a jury conditioned by television shows that establish conclusive proof of guilt, always in less than an hour, with fancy technology. The absence of such certainty focused the jury's attention on whether the prosecution had established the case or left reasonable doubt.

In Peterson's case, the lawyers focused the jury's attention on the implausible contention that someone else committed the crime.

But under the law, juries don't have to believe that someone else committed - or even could have committed - the crime. Most defense attorneys naturally jump at any such alternative scenario, however unlikely. Schwartzbach was wise not to make this mistake. His strategy for Blake's defense reminds us that an alternative explanation isn't necessary. A jury can believe a defendant committed a crime and still acquit, in fact must acquit, if the prosecution didn't sufficiently make the case.

My argument about the importance of legal skill and strategy can be taken to underscore the view that defendants in the American justice system get the best defense that money can buy. And there is some truth to this. But in these two cases, the lawyers representing Peterson and Blake both were well compensated and substantial legal figures. Yet even the best lawyers will bring subtly different approaches to similar situations. And as in almost all things, the devil is in the details. Slight adjustments of legal strategies could well have sent Peterson home and Blake to prison.

There were no significant errors by the Blake prosecution, poor decision-making by the jury or misplaced sympathy for the defendant, simply shrewd choices by a brilliant defense lawyer.

Robert L. Shapiro is a partner in the Los Angeles office of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro.