Phil Spector Retrial: Day Nineteen of Testimony, and The Trials & Tribulations of Scout

December 15th, 2008

Prosecution Witnesses:

#29 Dr. Louis Pena (LA Co. Deputy Coroner; performed the autopsy on Ms. Clarkson; under 1st cross examination)

Accredited Press inside the courtroom: Harriet Ryan of the Los Angeles times for a short time in the morning session.

When I get inside the courtroom I see that Truc Do is wearing a light gray pantsuit with a pretty white top. The jacket had a nice design of passants with I think, a button holding them down. As you can tell, I'm a fan of Ms. Do and her exquisite wardrobe.

Dr. Pena is in the courtroom and Jennifer Barringer introduces herself to him. "Hi, I'm Jennifer. Remember me from last year?" she says. I see AJ who is standing in the well near the prosecution table, texting on his blackberry. Truc has her laptop set up already. She's always fast with this task.

The courtroom is a little colder than usual today and a few in the gallery are wearing their coats. I notice there is something different about Rachelle, but I can't quite place it. Later, Sherri tells me that Rachelle had her hair done over the long weekend. It's a much lighter shade of blonde and under the harsh florescent lighting appears almost white near her forehead. Spector is wearing a black suit, white shirt and red tie. His shoes of choice for this trial are flat, two toned shoes.

There is a hearing outside the presence of the jury to hear motions on the issues that Judge Fidler requested last Thursday. The two issues are, can information about a "psychological autopsy" be admitted into evidence and whether or not Dr. Pena can be cross examined and impeached by what was discussed during the meetings held with other County Coroner staff, the investigating detectives and the prosecution team back in 2003-2005.

The people filed a brief on the psychological autopsy issue. In that brief the prosecution referenced five other legal cases where the decision was the information could not be introduced at trial. The prosecution recommended the court follow these rulings. In regards to the meetings, the prosecution request that the cross of Dr. Pena be limited to the testimony presented on direct which would be the autopsy findings and cause of death. The prosecution states that these discussions are heresay and all took place after the cause of death was determined on February 4th, 2003.

Weinberg states that he will not ask Dr. Pena questions about a psychological autopsy because he didn't perform one.

Judge Fidler asks, "Is he going to be asked if there was one considered?" Weinberg responds, "I'm getting to that. [...] Mr. Riordan states that it will take him more than a week to get their motion [completed on this issue]."'

Weinberg feels that he should be allowed to cross Dr. Pena on testimony he gave at the first trial, that he did not give in this trial. As an example, he gives the Dr. Baden "Ah-ha moment." "Suppose we called Michael Baden and we didn't ask him about the Ah-ha moment. Do you think the prosecution can't cross him on that? [...] He (Dr. Pena) has given an opinion in the past that has no [foundation?] or basis. [...] When he talked in the past about suicide when he knows nothing about it. [...] His certain misuse in other cases. [...] And all the other things he said about suicide that he knew nothing about." Weinberg gives an example of a shaken baby, and that the coroner raises the question, shouldn't we consider the possibility of this was an accident? "The fact that Dr. Pena came to the conclusion of homicide verses suicide with absolutely no expertise."

As Weinberg is addressing the court, I see that AJ is looking directly at Weinberg as he is speaking.

Weinberg continues: "Nobody thought a psychological autopsy was invalid they just derailed it. [...] We should be able to say, "Did you do a psychological autopsy? (No.) Well, why not?"

I don't have it in my notes but I believe that it is Truc Do who speaks first since she is the one who is presenting Dr. Pena's testimony. "I don't think that it [this issue] is the same as Dr. Baden. The timing of that opinion bared on it's credibility. Dr. Weinberg is incorrect about what the coroner's said what went on in those meetings. Steven Dowell raised the question of a psychological autopsy. [...] A psychological autopsy is only done when the result is [equivocal ?] and the family contests the results."

AJ then jumps in and says, "Mr Weinberg's analog to the shaken baby is totally flawed." AJ goes onto explain this but he gives his explanation so fast I'm unable to write it down. "Mr. Weinberg is not foreclosed from putting on Dr. Pena and ask him. [...] "Mr. Sortino (the previous prosecutor) never said, no, don't do it; we'll do it. [What he said was] We're in the process of interviewing everyone and we'll give you what we have. [...] Remember, Mr. Weinberg brought this up and said, with his hands up in the air, that, well, if the prosecution doesn't ask then we won't need to call Dr. Seiden.

Weinberg responds, "Well, to refer [return?] to history to it's rightful place. [...] [Dr. Pena] Issued an autopsy not until September 19th. [It was] kept under seal for several months [while they decided] 'can we call this a homicide?' " Weinberg reads parts of Doug Sortino's letter where "...he tells the coroner to put it on hold. [...] It's still relevant that the medical team didn't investigate accident."

Fidler states that he is prepared to rule. "Yes he can be crossed on the meetings. That is all fair game." Then Fidler brings something up that was said in the first trial that no one can forget; it's Cutler's famous line from his opening statement. "Murder on their minds." Fidler disagrees with Weinberg's examples that he gave. Fidler states that he will "..make no finding at this time. If I find it's inadmissible, the fact that it was or wasn't done [can not be brought into the trial].

Weinberg doesn't appear to be real happy with this ruling and asks a clarification question or two of the judge.

Fidler states, "No one disputes state of mind is admissible. [...] You can present independent evidence of state of mind. [...] We are not discussing [it] at this point in the case."

Weinberg replies, "I don't mean to argue and I appreciate the courts opinion."

Fidler replies, "You can present what was going on in the person's life at that time."

Weinberg presses on. He feels that he should still be able to cross Dr. Pena, be able to impeach him and show his bias by crossing him on what he said in the first trial. He mentions the patently false conclusions by Dr. Pena again.

Fidler closes the issue. "The prosecution is not conceding that. [...] You are trying to say an absolute when it's not. [...] As to the psychological autopsy, all questions are on hold. As to meeting discussions, you can question as to bias."

It's only 10:09 am and court will resume with the jury at 10:30 am. Truc and AJ talk privately over by the projection screen. After he steps back to the prosecution table, he coughs a few times. He's at the tail end of getting over that cold that settled in his lungs.

This was an interesting hearing and I'm disappointed I didn't get more of the arguments transcribed. This will be a long arduous cross and I'm sure Weinberg will try to take things to the limit.

10:21 am: Spector leaves his seat at the defense table and goes over to speak to Rachelle. His voice is still very raspy and I suspect he did not have the surgery on his vocal cords. If he did, I suspect he would not be talking at all for a time. The courtroom is quite empty and sound is magnified. It sounds like Spector is updating Rachelle on the status of the case since I overhear him say in a tone similar to Marlon Brando's Godfather voice, "And psychological autopsy, we're going to get them on that." As Spector is speaking to her, it appears like to me his eyes get quite a bit wider. A few minutes later he returns to the defense table.

Truc and the court reporter talk about shoes and Mrs. Clarkson's attorney arrives. During the first trial, Mrs. Clarkson and Fawn stepped out of the courtroom and waited in the hallway for almost all of Dr. Pena's testimony. Today is the first time that I am aware of that Mrs. Clarkson did not come to court. I hear faint laughter coming from the jury room.

Before court starts, AJ informs the judge that Dr. Lynne Herold is ill. He states that he still has two more witnesses to call after Dr. Pena. Dr. John Andrews and Dale Falicon. Judge Fidler states that Dr. Herold's testimony will be lengthy with a lot of technical information and it would be better if her testimony is not interrupted. She will be presented after the holiday break.

AJ addresses the court that they are asking the defense on who is going to testify. It's not clear in my notes but I believe Weinberg states something to the effect that the prosecution is not entitled to know [which witnesses are going to take the stand]. Fidler states, "If counsel doesn't have to cooperate..." He then stops himself and tries to use a different word than "cooperate," doesn't wish to.... He then talks about discovery a bit. It's not clear from what is said next whether or not Weinberg has turned over his discovery for his potential witness Dr. Sieden or not. AJ responds, "[I] just wish to ask, what expert witnesses he's going to call. The real list not the fake list."

Judge Fidler informs the parties that a juror will need the afternoon of January 21st off. It's the same reason Juror #7 had for the other half day. When the jurors reenter the courtroom, Fidler informs the juror that they are okay for their afternoon off.

Weinberg crosses Dr. Pena about that significant bruise on the left side of the tongue that he testified could have come from the gun being shoved in Ms. Clarkson's mouth. Weinberg asks Dr. Pena if he had the opportunity to measure the muzzle of the murder weapon. No, he hasn't. Weinberg points out to the doctor that the crane below the gun barrel leaves only a little over 1.25 inches of length to reach a bruise that Dr. Pena admits is farther back on the tongue than the short barrel can reach. Weinberg brought out that anatomical head and the model of the tongue from the first trial to prove his point. He asks Pena, "Did you see this [model] at the first trial?" "No," he replied. "I see it in the magazines that I get." He asks him if the model is accurate. Pena says, "It's a good job but it's off about 1/2 inch."

The left side bruise is a little beyond, farther towards the back of the tongue than the sterate wound in the middle of the tongue. That sterate wound was measured to be 1.5 inches. Taking into account the lips and teeth, the left side bruise is approximately 2" from the front of the face/lips. Weinberg asks, "Your a scientist, correct?" "Well, I'm a physician first," Pena replies. Weinberg challenges Dr. Pena. "I'm asking you how medically a gun with a 1.25" barrel could reach a 2" back wound?" Dr. Pena responds, "Well, her tongue would have to be out." "But when you were here, you said it was the only possibility," Weinberg counters. Pena replies, "I said it was one possibility."

Weinberg crosses Dr. Pena on his testimony at the Grand Jury, and how it differs from his testimony now. At the Grand Jury, Dr. Pena would not commit to the age of the bruises or how they could have occurred. Weinberg asks him what has changed since then. "Experience. I've seen quite a few more cases. I have more confidence," Dr. Pena responds.

Then Weinberg asks Dr. Pena, "So there was blood on her hands, correct?" "No," Pena responds,"There was blood on the back of the wrists that I did not see." Weinberg then says, "So whether it's the wrist or the hands we're not going there." When that happens, I look over on at the jury and I see something interesting. A juror in the back row appears to be trying to keep themselves from laughing at Weinberg's response. The juror covers their mouth, and almost with a rolled eye look, looks at the witness and ignores looking at Weinberg.

11:34 am: Harriet Ryan enters the courtroom and sits in her usual spot in the fourth bench row.

During the last half hour of the morning session, Weinberg crosses Dr. Pena on the conclusions he made about all the bruises.

When we get back from lunch, Weinberg requests clarification on some issues of cross examination and the limits that have been imposed on him. Previously in one of the bench conferences, Weinberg wants to be clear on the parameters that have been placed on him. He argues that it's the job of the coroner to determine manner of death in addition to cause. The witness did, in that determination. "In the document that he generated [autopsy report] he made reference to certain aspects of suicide. [...] As reasons as to why he rejected suicide. The entire process by what everybody functions is.... the state of her life had to be included. [...] When Dowell raises the question of psychological suicide, Doug Sortino says, 'we're already doing that.' " Weinberg is arguing this point again. "But when Dr. Pena makes notes within his report, thi it's part of cross examination. (Dr. Pena on February 4, 2003, in one of his preliminary pages of the autopsy report made a tentative diagnosis of homicide.) I'm having trouble trying to eliminate that because he says that within the autopsy. [...] I should be able to cross on a psychological autopsy."

Judge Fidler states, "It's not as clear cut as both sides would like me to believe."

Weinberg presses on. "That statement of no suicide adulation was based entirely on talking to Donna Clarkson and nobody else. [...] That's not objective."

I can faintly hear the jury laughing in the jury room.

Weinberg states he should be able to question Dr. Pena on his determination that she didn't have a history of depression. He reads from medical reports that she did go see a psychiatrist, one visit and listed several depression related complaints, one of which is crying all the time. Weinberg then brings up the "Ah-ha" moment again. Weinberg argues that he should be able to cross on things Dr. Pena said in the first trial, but not in this one to impeach him. "He said, women don't shoot themselves in the face; don't shoot themselves in the mouth," Weinberg argues. He then brings in the the study that Dr. Lachmana did on intra oral gunshot wounds in Los Angeles County over several years. There were 700. 80 of them women. 24 of those, intra oral. Lachmana presented a presentation to a symposium, looking at those 24 suicides. He found one patient that was different that the rest, a hypothetical case based on Ms. Clarkson. (I believe I have that argument correct from Weinberg.) "Dr. Pena said it [about the women shooting themselves in the face] without research which tells us something about his method. [...] That was an incorrect statement and he had nothing to support that."

Truc Do defends the prosecution's position that the court already ruled on this issue.

Fidler still thinks that the issue is beyond...more complex that what both sides are arguing. Fidler tells Weinberg that he has some cases in mind to review on this issue but he can't get the correct answer by tomorrow. He tells Weinberg that he will have to stay away from those areas until the new year. Dr. Pena will not be excused and he will be able to readdress this once Fidler rules.

Truc speaks up and suggests that they break for the day so that everyone can research this issue. Weinberg agrees, stating something to the effect that he should have thought about suggesting that. Fidler agrees and the attorneys are ordered back at 10:00 am tomorrow. The jury is ordered back at 10:30 am. Fidler informs the court that they are starting late tomorrow because he has a heavy calendar. All his case load that is usually taken care of on Friday has been moved to Wednesday morning because he's going on vacation.

The Trials & Tribulations of Scout

Please send our kitty Scout your good thoughts and prayers. As you can see, he is recovering from surgery he had today to clean out an abscessed bite wound from (we think) a new kitty in the neighborhood. Scout was an abandoned kitty who showed up on our back patio about three years ago, trying to find shelter from a heavy rainstorm. We started taking care of him, leaving food out and making a wind protected warm bed to sleep in until we gained his trust. It took some time, but Mr. Sprocket slowly won me over to letting Scout come inside, meet the other kitties and be a full fledged member of the household. He is the most sweetest natured, friendliest kitty ever now and he just loves to be petted. I remember the first time we brought him inside. He immediately approached Sprocket and Jumpy, gave them each a head butt and tried to lick them. Scout is our only kitty that was allowed to go outside for a few hours each day. Sadly for him, that will have to change.

Scout's surgery is a steep, added expense that has taken us unexpectedly. Because of this I have finally relented to Mr. Sprocket's daily suggestion to put a Paypal button on the blog. If you feel you are in a position to help us offset the cost of his emergency surgery and post-op care, we would be forever grateful for your donation.

Scout & Jumpy in happier times