Dissing the Dead to Save the Accused

The trial of actor Robert Blake has been, perhaps fittingly, a made-for-TV drama. The former tough guy of the series "Baretta" seemed to walk out of Central Casting -- as the bitter, hoodwinked lover -- into a scenario populated with shady stuntmen, drug dealers and a virtual army of unseen pornography addicts. However, from the opening statements to the closing, the leading role in this production has been the victim: Blake's dead wife, Bonny Lee Bakley. A serial con artist and pornographer, Bakley proved the best witness for the defense, a person whose very life seemed committed to creating reasonable doubt in defense of anyone who would end it.

Though we are taught not to speak ill of the dead, the opposite is more often true in court. In civil cases, courts have long held that the dead cannot be defamed. In criminal cases, the dead can virtually be resurrected and held accountable for their own deaths. Putting the victim on trial is a long tradition in the law, and it has been remarkably successful in some famous trials -- including some with striking similarities to the Blake case.

One of the most stunning successes using this defense occurred in the 1907 trial of Harry Kendall Thaw. Thaw was a highly unbalanced scion of a wealthy steel-and-railroad family. Decadent and violent, he led a life of utter depravity. He married the beautiful Evelyn Nesbit, one of the famous dancing and singing Floradora Girls.

After their marriage, Nesbit revealed to Thaw that she had been raped by architect Stanford White, the designer of Madison Square Garden and well-known lech. When Thaw saw White at a Madison Square Garden event, he shot him repeatedly in front of hundreds of witnesses.

With little Harry in trouble again, the Thaw family hired the best -- a California lawyer named Delphin Delmas who was known as the "Napoleon of the Western bar" for his prowess in the courtroom. Delmas couldn't claim mistaken identity or self-defense, so he decided to put White on trial. For weeks, he regaled the jury with tales of the great architect's debauchery, including his infamous red velvet swing on which showgirls would cavort while he watched from below. It was enough for the jury, which found Thaw not guilty by reason of insanity.