Last Friday, I posted the first part of this article. If you haven't read it yet, here's the link: LINK TO PART 1 HERE
This article was originally published by Technolawyer in 2005. I've included a few minor updates and extras. The following note was received by the publisher:
Your article was one of the best we’ve ever published! Thank you!
Neil J. Squillante, Publisher TechnoLawyer/PeerViews Inc.One common thread you'll find here when comparing the Casey Anthony and Robert Blake trials is that it takes evidence to get a conviction. The evidence must support the charges, or the jury will find for the defendant. That's the duty of the jury, and the law. Speculation and feelings are not part of the deliberations process, even if you really dislike the defendant.
"I just swear to God," the man, identified only as Juror No. 2, tells the St. Petersburg Times, "I wish we had more evidence to put her away. I truly do. ... But it wasn't there. "In the end, he adds, "We just wanted to go on the evidence that was presented to us."
Troubling as it may seem, I believe that based on the evidence presented, the jury was required to acquit. They did the right thing, and are to be commended for not caving in to their emotions. I hope you’ll enjoy the article. Don’t miss the extra bonus material at the end of part two.
---Ted
OPENING STATEMENT
Although Mr. Schwartzbach had never before used technology in trial, he caught on quickly, greatly enhancing his ability to instantly call up exhibits and keep the jurors engaged. A fair amount of extra preparation and rehearsal was required, especially for the opening argument. After practicing law quite successfully for 37 years without technology, he at first found it a bit uncomfortable to rehearse and go through the added steps to share his outline and plans, but we quickly established a communication protocol, which would allow him to speak to the jurors just as he had always done, but now with the added benefit of visual support.
For those who viewed the opening statements on Court TV, you know that it lasted about five hours. This was the longest opening statement I've ever witnessed, but it was very compelling, and I never once noticed any fading jurors as the story unfolded before them.
The prosecution (Shellie Samuels) chose to run PowerPoint, and had a few (predictable and common, in my opinion) glitches. The main problem in using PowerPoint in litigation is its linear format -- one slide follows another until the end. Should you decide to jump to another topic, no easy way exists to do so. The defense ran with a combination of TrialDirector and PowerPoint, facilitating immediate random access of anything in the database, from documents to photos and demonstrative graphics to video.
THE TRIAL
Technology-wise, the trial seemed fairly uneventful. This is not a bad thing at all -- technology is generally only noticeable when it fails. We had plenty of 16+ hour days, however, getting it all ready for prime-time, and we did have some problems. Actually, I have never participated in a trial that didn't have technology problems -- the key lies in dealing with those problems quickly and quietly, so that nobody else even knows.
Small safeguards like having more than one trial presentation computer in court, having a portable scanner and printer, and making frequent backups of the database are worth their weight in gold. When it comes to using technology in trial, the question is not if an issue will arise, but rather when, and how quickly it can be resolved.
When comparing our (defense) exhibit presentation with that of the prosecution, we could zoom in on photographs, highlight exhibits on-the-fly, and point out items to the jury in ways the prosecution could not, as it relied on hard-copy documents and photos, displayed on an ELMO (document camera). On several occasions, they searched for several minutes to find an exhibit, and at times could not find what they needed.
It is also very helpful and valuable to include the daily transcripts in the database, making the entire set of trial transcripts fully searchable.
We could instantly display exhibits (accessing the database by exhibit number, barcode, or Bates number), rather than digging through piles of documents for the right page. There were just over 100 prosecution exhibits admitted, and well over 300 defense exhibits. It is common, in my experience, thanks to the sheer efficiency of trial technology, to easily outpace the quantity of exhibits identified by opposing counsel (not using technology) by 3 to 5 times.
When considering costs, the length of a trial can be significantly shortened -- one reason the courts (and informed clients) encourage its use. Juror comprehension and retention seem to dramatically improve with visually supported communication techniques as well -- another key reason to consider using technology in trial.
CLOSING ARGUMENT
Again lasting several hours, many critics and journalists thought that the jury could not have paid attention to the entire closing argument. I can tell you, having sat in the courtroom for the entire trial observing the jury, that they intently listened to every detail and viewed every piece of evidence.
Once again the prosecution ran PowerPoint slides, and once again it experienced problems in navigating to the correct slides, which caused a recess at one point.
The rehearsal for the closing argument flowed very naturally, as did the argument itself, now having a great deal of trial experience working together with technology. Often, by the end of the first technology-enhanced trial, a lawyer will become quite familiar and comfortable with its use.
Also helpful was the fact that during the trial all of the exhibits were numbered (as exhibits), making it much easier to call them up using only a few digits, as opposed to typing in a long Bates number or looking for the correct barcode (which themselves are much faster than digging for hard-copy documents).
THE VERDICT
I recall being asked by Gerry how I thought we did, and what did I expect to see as a verdict. My only statement was, “I just can’t put the gun in his hand.” Without that, there should be no conviction. As I watched the jurors being interviewed during the press conference, a chill ran up my spine, as the Jury Foreman was asked why they had voted to acquit, and he then simply stated, “We couldn’t put the gun in his hand.”
Why was Robert Blake aquitted of murder? (brief video clip)
The jury has spoken. Regardless of all the "armchair quarterbacking" and plentiful opinions on how the case should or should not have been tried, Robert Blake walked out of the Van Nuys courthouse a free man.
CONCLUSION
M. Gerald Schwartzbach and Robert Blake both commented on the use of technology during this trial, with Robert stating, "This small band of warriors saved my life."
Robert Blake Murder Trial - Not Guilty (brief video clip)
There’s my Celebrity endorsement. I work on civil and criminal cases. Call me – I need to work for a living too.
Participating in this case resulted in a truly great and very educational experience. Mr. Schwartzbach has completely converted to trial technology. Despite the fact that L.A. District Attorney Steve Cooley publicly stated that the jurors were "incredibly stupid" for their verdict of acquittal, I do believe that justice has prevailed, thanks to the diligent efforts of Gerry Schwartzbach and his "small band of warriors." Hmm, does this sound familiar, as in the Casey Anthony case? I guess jurors haven’t gotten any smarter?
Copyright 2005, ©2011 Ted Brooks. All rights reserved.
ABOUT THE AUTHOR
Ted Brooks is the President of Litigation-Tech LLC , a trial presentation and technology consulting firm with offices in Los Angeles and San Francisco. Ted won the Law Technology News Award for Most Innovative Use of Technology in a Trial, and is a frequent speaker and author.
BONUS EXTRA MATERIAL
Larry King Live: Robert Blake, on M. Gerald Schwartzbach (brief video clip)
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