Tuesday, July 29, 2008

Phil Spector: Pretrial Hearing July 29th, 2008

I drove to downtown LA and made great time. Donchais had some appointments this morning so we didn't get to have our usual chat on my drive down. When I get on the 9th floor, it's empty down at Fidler's end of the hallway. I take the bench at the very end and wait. Spector's biggest fan, the one who wears a Hawaiian shirt every time I've seen her arrives and sits on a bench against the wall. We wait in silence. People come and go from 106. After a while, a big motorized cart with a lift comes down the hall and enters courtroom 105. The maintenance guy is carrying a big box of fluorescent tubes so I'm assuming he's going to change some burnt out bulbs in the ceiling lights.

This end of the hallway is still pretty empty. There are several people congregating around the middle of the hall near the elevator bays. Suddenly, five sheriff's in green t-shirts with "SHERIFF" written across the back in large letters exit Fidler's courtroom along with two suited gentlemen. As it gets closer to 9:30 am, I'm hoping that the hearing was not moved to 10:30 am.

As I wait, I start to space out from lack of sleep since I got to bed so late. A sheriff enters 106 and the only noise I can hear is the occasional clack clack clack of a woman's high heels on the highly polished terrazzo like tile floor. I wonder if Steven from the LA Weekly will be here today. Just as I'm thinking about this, Allan Parachini emerges from 106 and waits in the hallway. I ask him if he knows if any new motions were filed today. He replies, "Not that I know."

At 9:40 am I emerge from the restroom and I see Steven Mikulan ~ who has a new very short hair cut ~ speaking to Dennis Riordan. Steven asks me if I saw the web site about Dominick and I tell him, "Yes. I put up a link to it and wrote a story about it on my blog." Steven says that he thinks Dominick's surgery is today or tomorrow, but Linda would know. Not long after, the AP reporter arrives and the first thing I ask her is what day is Dominick's surgery. "Tomorrow," she replies. I make a mental note.

The Asian photographer from the AP arrives on the 9th floor and he says hello to Allan. Allan tells him that local Channel 5 (KTLA) signed up, but it doesn't look like they are going to show. There isn't a single photographer downstairs waiting in the back watching the parking lot for the Spector's arrival. Addressing the photographer I say, "So you will have exclusives today."

I see Weinberg in the hallway and he's talking to a professionally dressed woman seated on a bench in what looks like to me 5" black heels with a high ankle strap. She has blondish hair that is swept up on her head in a do that reminds me of a 40's or 50's style you might have seen on women in the USO tours.

Allan mentions that next week, Meredith's replacement will start soon. (I think it's next week.) He tells everyone her name and says that she comes to the court from TMZ. Steven thought that was unusual, stating something to the effect of, they're usually leaving the department for TMZ. Meredith moved to Nashville. Her spouse was relocated in his job. Addressing Allan I inquire, "Do you mind if I ask how many staff you have?" "Seven," he replies. My friends I met at an earlier pre-trial hearing, Robin and Sherri arrive on the 9th floor and we say hello.

It's 9:55 and Harriet Ryan, who's now working for the LA Times shows up and gives everyone a big smile and hello. Not long after Rod Lindblom shows up with a big smile and shakes everybody's hand. And as I try to listen in on the conversations I hear someone say that Lindblom is going to be a father. His fiance is due in September. The Clarkson family does not come to court today.

Spector, Rachelle and the lone bodyguard approach from the opposite end of the hall. They still have that special treatment where a deputy brings them up to the 9th floor from the parking lot via a service elevator. Spector is wearing what appears to be a black Edwardian suit and a red tie. The Trial Bride is in a skin tight plum pant suit. I can't tell if she has on one of her many pairs of red soled Louboutin shoes or not. Her hair is still quite blond and I'm reminded of Malibu Barbie. The wig Spector is wearing is a deep dark brown and wavy. When they get down to the end of the hallway Spector and his Hawaiian shirt fan hug each other. I don't have it in my notes, but I'm remembering Spector's fan hugging either Rachelle or Weinberg.

Right after Spector, the prosecution team comes down the hallway in force. I see AJ, Rick Ocampo, and a petite Asian woman in a dark suit. (After court, Sandi Gibbons tells me this is Truc T. Do, the newest member of the prosecution's team.) AJ greets all the reporters, shaking everyone's hand and he gives me a wave. There are also two young men with them who might be clerks. Everyone slowly shuffles into the courtroom. The photographer is set up in the jury box.

I take a seat or two in on the second row, making sure there is enough room for the AP reporter who likes to sit on the end. Rod Lindblom sits in his usual place in the first row near the left end. The professionals, Ciaran, Steven and Harriet are all grouped together in the second row behind Rod. Rick Ocampo is siting in the front row directly in front of the AP reporter and the two young looking clerks are in the front row sitting in front of me. (As the hearing progressed I saw that they took notes.) A few minutes later Pat Dixon came in and sat in the back of the courtroom on the far left.

Jackson, Do, Weinberg, Riordan all went into Fidler's chambers. A very petite, rail thin older looking woman with short, dark brown hair who I saw on the defense side at the last hearing also went into chambers. I have no idea who this woman is; whether she is the woman I heard about back in December, 2007, or if she is a clerk or investigator in Weinberg's office. This in camera meeting lasts until 10:25 am. During that time Sherri and Robin ask if I'd ever been on a jury. I tell them about the time I was almost on a murder trial in Judge Ito's courtroom, but I got kicked by the defense on the second day. Sherri and Robin wanted to know if Ito is still a Judge on the floor and if I had heard about a very old case in the news a few months ago, where supposedly Judge Ito, a DDA at the time, buried evidence in a case file. I had not heard about the case but Steven had.

At 10:30 am Judge Fidler takes the bench. The Judge states that the long conference in chambers discussed scheduling of when some motions would be heard as well as the scheduling of jury selection. Several motions were put over to August 14th at 1:30 pm, specifically, the defense motion to exclude the expert testimony of Dr. Pena, as well as the admissibility of all six of the 1101(b), "prior bad acts" witnesses. At first, they were going to hear the motions at 10 am, on the 14th, with Spector waiving his right to appear since he had a doctor's appointment. Then Weinberg asked if the motions could be heard at 1:30 pm and Fidler said, "Sure."

The first motion that was argued was the double jeopardy motion presented by the defense. Riordan stands up and argues their position. (You can read their motion here, at the LA County Court website.) Riordan asks, "What is the legal standard to be applied by the court? Did the court refuse to instruct because there was insufficient evidence for the lesser included charges?" Riordan is basically presenting the same arguments that were presented in the motion. In rebuttal, Truc Do stands up and argues the people's position, repeating many of the same arguments in their opposition motion. Judge Fidler states that, "There has to be a theory, but we don't have an Ashbury situation here." At first, Fidler states that he doesn't believe it's a double jeopardy issue here and the motion in denied. But then he waffles. "I don't know what is going to be presented. We'll have to wait and see what is presented." So, depending on what is presented at trial will depend on whether or not any lesser included jury instructions will come in.

The next motion that is argued is the defense's request to exclude the testimony of Dr. Pena, Dr. Herold and Steve Renteria. Weinberg presents his points. "The problem is in each case the witness opined on an issue that went beyond their knowledge and expertise." Weinberg focuses in on ". . . a very specific topic. How far can impact spatter travel?" And Weinberg goes on to state that "Dr. Herold doesn't have the training or the knowledge to give an opinion on this." That she took only one or two classes on this, and one class was with a defense expert who testified. (That) it is not considered expert testimony if all she states she did was read reports or books on the topic. She never did any testing of her own. While Weinberg is presenting his argument, I observe AJ lean in to say something to Truc and she smiles. (Later, donchais reminds me of one of Dr. Herold's best quotes from the first trial: "I'm a doctor, not a mechanic!" Priceless!)

"Luminol is not used to find tiny specs of blood on a dark carpet. What should have been done.... (the) luminol test was incorrectly applied."

Do stands up and argues the same position that's outlined in their motion, that these arguments go to the "weight" of the evidence. Fidler rules in favor of the prosecution. The motion to exclude Dr. Herold and Steve Renteria's testimony is denied. He rules that it's up to the "trier of fact" to determine the weight of the evidence.

The next is a prosecution motion regarding using Dianne Ogden's video testimony at the first trial. Unfortunately, at this time Fidler has not yet seen the redacted video that the prosecution has prepared for this motion. The prosecution wants to be able to present the video tape of her actual testimony. AJ stands up to argue for the people. Dianne Ogden clearly isn't available to testify (she's deceased) so her testimony from the first trial is admissible under the evidence code. And he goes into detail as to why the video tape should be used (courts have ruled that it's preferred) because it includes the witness's demeanor and inflection. He states that all side bars and other items can be removed from the tape.

Riordan gets up to argue for the defense their opposition. The video is inadmissible because the taping was not made via a court order. And, they don't want the jury to hear or see how Cutler cross examined Dianne Odgen. Riordan want's to be able to place objections during the playing of the tape, if it's admitted into evidence. Something to the effect of, what if there should have been objections made by the initial defense team, because now, all of Ogden's testimony (direct and cross) would be coming in, presented by the prosecution.

In rebuttal to the defense argument, AJ states that the defense doesn't get to pick and choose which questions they want shown to the jury. AJ argues that as long as all the criteria are met, (under the evidence code) all of the testimoy is admissible. "The defense cited no law in their brief that the court needed to get a court order for the taping to be admissible," AJ argues.

Riordan says that, "It's true; no case has held that no tape made by an entertainment company (is admissible). There is no prior law/ ruling that says the defense has to accept the prior cross." Weinberg then gets up and apologizes to the Judge. He says he knows you only want one counsel to argue point, and then he goes onto say that "...the problem is the camera doesn't focus on the witness. The camera person has decided what to show the jury." And Weinberg goes on about the various things the cameraman focused on and it wasn't always the witness.

AJ rebuts that saying, "One camera was trained on her at a particular time. (This is not) through the prism of an entertainment. There's no commercial; there's no commentary; there's no ticker tape feed."

Judge Fidler throws a bone to the defense. "Without fully ruling, I don't see why you can't comment that you would not have questioned the witness this way. Fidler then reminds the people (since they haven't brought it up yet) about their motion to exclude the defense from bringing into the trial Ms. Ogden's cause of death. Judge Fidler then says he will approach this, ..."working backwards. I won't rule on that issue of excluding Ms. Ogden's cause of death because (they) have to wait and see what discovery shows regarding cause of death." As far as admitting Odgen's testimony via video tape, it appears Fidler is leaning towards letting it come in. "I see no reason...with certain caveats.... you get demeanor. If it doesn't focus on her, it doesn't come in," he states. He doesn't have a concern that the tape was not made under court order. "If for any reason it (the tape) comes out of context then my ruling will change." Jackson states that he will get a redacted copy of the video to the court.

Once these motions are done, then the scheduling of the draw for jurors is discussed and how many will be needed. Fidler states that it will be a repeat of the first trial with a draw of 300 jurors over two days, 150 jurors on each day. The pre-screening of the jurors is also laid out. The trial will be delayed a few days from originally stated. It is now moved to start on October 2nd, with the second jury draw on October 3rd. The jurors will receive their questionnaires on those dates. The jurors will then return on October 14th (the day after a holiday, Columbus Day) for voir dire. All motions need to be presented and argued before that date. A few more questions are asked by Riordan and then that's it. We all file out of the courtroom, and I head back to my car. I get donchais on the phone on my walk back to the parking lot and fill her in on the new trial date and when voir dire will start.

Depending on how long voir dire will take, the trial may not start until early November. I honestly can't remember how long jury selection took in trial one. It looks like Jackson will be first chair and Do second chair. Although I know Ocampo is on the team, I don't know if he will be presenting any witnesses at trial. It appears Dixon will only be involved in the retrial in a supervisory capacity. Several people have emailed me an LA Times piece where Harriet Ryan reported Spector was wearing a "Barack Obama Rocks" pin. I was not close enough to Spector to see a pin. All I observed were the big hugs by Spector's Hawaiian shirted fan.

I just want to add as a postscript that from what I'm overhearing from the accredited press, Weinberg is a very likable guy and Riordan is a brilliant legal mind. He has an almost "encyclopedic" knowledge of case law. This is a much better defense team than trial one. At the same time, I think the prosecution has added a star performer in Truc T. Do, who successfully secured a conviction in the "Black Widows" case. Here is press release from the DA's office where she is mentioned.