January 20th, 2009
#31 Dr. Lynne Herold (LA Co. Sheriff's Office senior criminalist, blood spatter analyst and crime scene re constructionist; under second cross examination)
Accredited Press inside the courtroom: Harriet Ryan of the Los Angeles Times
Just so you know, this was a very difficult day to take notes. Many of the questions were long and complicated, referring to first trial testimony or grand jury testimony. Often times, Weinberg was on this third question before I even got the entire first question and answer written down. And I have to say this about Dr. Herold because it's something I've noticed. I'm taking a guess that she's generally a happy person because she smiles a lot. Or, another possibility could be because she found some of Weinberg's questions humorous, such as, "Do you remember being shown this photograph by the defense in the first trial?" Dr. Herold has stated many times on the stand that she reviewed every photograph taken in this case by various agencies: Alhambra, LA Co. Coroner's office and the LA Co. Crime Lab many times in her reconstruction of the crime scene. She's looked at all the photographs so many times, often with a loop magnifier. But when she's asked a question like this from Weinberg, she smiles that big smile of hers and gives a laugh because she can't remember "every photo" the defense team presented to her in the first trial. When that question was asked towards the end of the court day, I chuckled along with her.
When I take the red line train in the afternoon, two sheriff's board our car and check every one's ticket one by one. When I finally get up on the 9th floor at 1:24 pm, Linda-in-San-Diego is in the hallway. She tells me she has been here all morning because there wasn't a later train that she could take.
I see Fawn emerge from the ladies room and she has a friend with her. Mrs. Clarkson does not come to court today. (I'm not positive, but I believe at the end of the court day I overheard Fawn say her mother has a sore throat and is resting.) Inside the courtroom about 1:29 pm I see Pat Kelly from the PIO is in the back row, sitting next to the bailiff, Mr. Williams. The courtroom is busy and there are documents being dropped off for other cases. Judge Fidler emerges from his chambers, out of his robe, to sign documents for (what I believe are) undercover detectives. I note that he is wearing a pale green shirt and a dark green sweater vest.
A few Spector fans show up. It's a youngish looking couple I've never seen before and a much older, short balding man I've never seen before either. Rachelle Short gets Spector's attention at the defense table to let him see that the older gentleman is here.
A few weeks ago, I heard from a reliable source inside the courtroom that this is the first trial where Weinberg has presented a case in front of a jury in fifteen years. (1/21/09 1:06 pm: Please see my comment addressing this.)
It's 1:38 pm and we haven't started yet. I see the defense's model head exhibit is sitting on the defense table. Wendy asks counsel if they are ready and Weinberg says he needs a few more moments. Truc takes the time to leave the courtroom for a moment.
1:40 pm: Harriet Ryan of the Los Angeles Times enters and takes her usual seat in the back row. A few minutes later the jury is called. Dr. Herold is still on the stand. AT 1:43 pm Judge Fidler takes the bench.
AJ gets up to present more redirect testimony. He says that he just has a couple of points to go over before he is finished with his redirect. His first question is about the mottling on the gun and he presents another photo to Dr. Herold that he publishes to the jurors. He doesn't have an enlargement of the photo, so I don't get to see the specifics that Dr. Herold is testifying to. Dr. Herold states that this is a photo that she took through the stereo microscope. It's the left side of the gun, and I believe they are concentrating on the area of the frame that is in front of the cylinder and below the barrel. Dr. Herold describes the mottling in this area that she sees on the gun.
The next questions have to do with Lana Clarkson's shoes, and Weinberg's questions about the fingerprint found on the "sole" of one of the shoes that could not be sourced to anyone. From what I gather of Weinberg's cross on this issue (with Dr. Herold and other witnesses) the defense has implied that the print got there via the officers involved in the "take down" of Spector in the foyer area because, if there is a print on the sole of your shoe and you are walking on your shoes it most likely would not be there for very long.
In redirect, AJ has Dr. Herold describe exactly where the print was found via an evidence photograph that she directed to be taken in the lab. It's a photo that has four images on it showing all four sides of both shoes. One photo is of the bottom of the shoes. You can see on the soles, that there is an area of the arch of the sole that is a contour and this area of the sole does not "hit the ground" so to speak. It's "up off the ground." The print was located in the arch area of the right shoe, near the pinkie toe side. This testimony easily negates the defense's suggestion at to "when" that print could have been placed on the sole of the shoe.
AJ now moves onto the blood on the inside portion of the right chair arm. This was an area that Mr. Weinberg went into lengthy detail on in cross. A photo is put up on the ELMO and Dr. Herold identifies the specific stains she was talking about under cross. There are two stains that were discussed. One stain (that had a green marker on it labeled 40-2; it was tested by Steve Renteria for DNA) is clearly a back spatter stain that tells you directional spatter. It is the classic "exclamation point" type of spatter and one of the things a blood spatter analyst looks for. The other stain is lower down on the chair arm, and it does look like it has a "tail" to it but it's totally different than the first stain. This stain has a gravity pulled tail. Dr. Herold testifies, "The exclamation point stain is the type of shape that you look for to solidly identify size and width. [...] The other shaped stain [...] I can't assign it the nice directional drop you would do an analysis on."
AJ goes over the size of blood found on all the items of evidence and asks Dr. Herold to outline the size of blood comparisons on various items. Then AJ has Dr. Herold do a demonstration. He makes a sub millimeter dot with a pencil lead on a piece of white foam board and asks Dr. Herold to place one of her red arrows on the board towards the dot. Dr. Herold states that the dot would be a sub millimeter by the size of the lead (that AJ told her it was; .7 millimeter). When she is discussing the size of drops that were found on Spector's white wool jacket, many of the stains were sub millimeter.
The next item discussed is the booking photos of Spector at the Alhambra Police Station and Weinberg's questions on cross as to whether or not she could see the "white, mineral staining" in the photos. AJ asks, "How would you describe the resolution of the Polaroid photos?" "Poor," Dr. Herold testifies. AJ then asks Dr. Herold if the sleeve was wet (at the time the photo was taken) would she necessarily see the white mineral stains. Dr. Herold testifies that she went back over the photos with a jeweler's loop and she could not tell from the photo if the stains are present. She also states, "The minerals could possibly not have been completely dry and the minerals crystallized yet." There are a number of things that can affect the rate of drying (Dr. Herold names them) and whether or not those minerals would be visible.
AJ is finished with his cross at 2:00 pm and Weinberg gets up to recross the witness.
DW: Mr. Spector to your knowledge was subdued by a number of officers?
Dr. H: I was told that, yes.
DW: And that he was transported and his clothes collected.
Dr. H: I have supposed that. [...] I have not seen any of the police reports. I was told there was an altercation. [...] The only thing (I reviewed) beyond lab reports is a paramedic report.
DW: Have you ever encountered any reference anywhere to the shirt being wet when they apprehended (Mr. Spector? [...] Have you seen any reference anywhere? [...] Did you conduct any research to see if his sleeve was wet at the time of the arrest?
Dr. H: I don't know what you mean by research.
I believe Weinberg explains that by any questioning of anyone else. There are several more questions about possible research or questioning she did (or didn't do).
Dr. H: No, I don't believe I did.
Weinberg moves onto the stains on the chair and the directional spatter. He asks her about its direction and if it's a few degrees off from "straight down." He is asking Dr. Herold if the drop "came from above. [...] Ms. Clarkson wasn't above the drop was she?"
Dr. H: We have a perspective issue here.
Dr. Herold outlines how that area of the chair was exposed to her mouth and was a target for the directional spatter.
DW: Isn't that evidence of another spattering event close and above the arm (of the chair)?
Dr. H: Yes and no.
I think I see where Weinberg is going with this. If there is a "second" spattering event, he can suggest in argument that this second spattering event was the source of the blood on Spector's jacket. Weinberg is on these specific blood stains and won't get off of it. I can see why now. Dr. Herold states there was other directional spatter on the purse strap. Weinberg asks her if the stains on the chair are secondary spatter from the purse. Dr. Herold says no. Weinberg asks her if there is any spatter on the arm or purse that could be secondary spatter. Dr. Herold is firm in her "no" answer and goes onto explain why. Weinberg moves on but says that he will return to this issue. I think he has to because this must be crucial to his closing argument.
With Weinberg's next comments, AJ objects to the "editorializing." Fidler sustains the objection but also states that "you both do it."
Weinberg then goes over his meeting with Dr. Herold back last year before the trial started. (I believe this was in September.) "I had asked you whether you could say that Phil Spector could have shot Lana Clarkson. [...] On redirect Mr. Jackson asked if you could put Phil Spector's finger on the trigger. [...] And you said it has something you can't necessarily find [...] fingerprints or DNA [...]" Dr. Herold states, "That's not exactly what I remember what was said." She clears up what was specifically said. "Unless you have a way to time the placing of a fingerprint or the DNA, it won't tell you [who pulled the trigger]," Dr. Herold continues.
DW: Is it possible for a person to fire that gun without pulling the trigger?
Dr. H: No.
DW: Is there any physical evidence to suggest that Ms. Clarkson was shot in any other way?
Dr. H: No. The gun had to discharge for her to be shot.
DW: Does the physical evidence establish that Phil Spector shot the gun?
Dr. H: The physical evidence tells you where the objects were in relation to each other. [...] To the best of my ability I can account for all the items and the blood [on them] with the demonstration (that the prosecution presented with Ms. Do).
Given the testimony (by Jamie Lintemoot) of the spatter on her wrists [...] limits that possibility as to where her hands were during the spattering event. (I believe this is Dr. Herold's statement and not a question by Weinberg. I'm sorry that my notes are not clear here.)
There is an objection around this time. AJ wants Dr. Herold to be able to finish her answers. Dr. Herold often pauses to think and sometimes Weinberg takes that as if she's finished with her answer and continues with another question, sometimes talking over her. Dr. Herold apologizes and then Fidler tells her there's nothing to apologize about. There is some laughter from the bench, Dr. Herold and the jury over this.
DW: Have you worked other cases where there were two people and it wasn't possible to determine who did the shooting?
Dr. H: Yes.
DW: How many cases?
Dr. H: I'm thinking back to the last two years.
Dr. Herold makes a general encompassing statement about women (girlfriends, wives) who were shot by either boyfriends or husbands). There is a question about "other potential sources of spatter" but I don't have the surrounding questions as to which it relates.
DW: Did any of these cases involve intra oral?
Dr. H: I can't remember. [...] The one's I'm thinking of are head wounds.
DW: Isn't it true that you've never examined [an intra oral gunshot wound]?
Dr. H: If I said that it's not true.
Dr. Herold states that she has worked cases and seen [others] in the lab. Most have been "through and through" [gunshot wounds] though.
Weinberg now goes back over the conversation he had with her. He also mentions her testimony in the first trial and her testimony at the grand jury. He then says, "[...] And I asked you if there was a single piece of evidence that said (I think he continues about whether or not Weinberg now goes back over the conversation he had with her. He also mentions her testimony in the first trial and her testimony at the grand jury. He then says, "[...] And I asked you if there was a single piece of evidence that said (I think he continues about whether or not Spector fired the weapon) [...]" Weinberg goes on to mention her testimony last Thursday, that is in contrast to her prior testimony. He mentions her commenting on Jamie Lintemoot's testimony. (I apologize my notes are not more clear here. I was writing as fast as I could.)
DW: When did you learn that Jamie Lintemoot said anything about back spatter?
Dr. H: December 30th, 2008. [...] I am aware that Jamie Lintemoot testified in the first trial. [...] I've always said that the photos of that spatter were insufficient to determine (anything) about it.
Weinberg puts up Jamie Lintemoot's report up on the ELMO, and Dr. Herold testifies that she doesn't believe she's seen Jamie Lintemoot's report. Weinberg highlights the following statement in the report. "Small red stains were also observed on both the decedent's hands and wrists."
DW: Jamie Lintemoot wrote in March, 2003, "Small red stains were also observed on both the decedent's hands and wrists."
Weinberg asks Dr. Herold what she considers the "area of the hand," and AJ objects.
DW: Are you aware that Jamie Lintemoot refers to the "meat of the hand...."
AJ: Objection! Misstates the evidence. (I'm sorry, but I do not have in my notes whether or not Judge Fidler sustained or overruled the objection. I'm tending to believe he sustained it.)
Weinberg is now asking Dr. Herold about a meeting held in the Coroner's office in March of 2004. Dr. Herold states she doesn't know; she would have to look up the answer. She states she wasn't there at the meeting.
DW: You know there were several questions about handling of the evidence at the coroner's office.
Dr. H: I don't know.... I was told....
DW: You're also aware are you not that the tape lift hand compromised the blood stain evidence?
Dr. H: No I am not. I was the one who inquired about the size of the tape lift. [...] I was concerned about the size used because that's a lot of area to cover in the electron microscope. [...] Then I went back and scanned the tape lift. It did cause the blood stain to fracture and move around. [...] So I talked to her (Jamie Lintemoot) about using tweezers to pick up fibers, and that was Monday morning quarterbacking.
DW: Isn't it your recollection that your question was that it compromised the evidence?
Dr. H: I wasn't there. I wouldn't say it compromised it to the point... you could still reconstruct it.
Dr. Herold makes it clear that "she" didn't use the term "compromised." She wasn't at the meeting. (Whomever was at the meeting used the term.)
Weinberg now moves onto the hand photos, and what she knows about what photos are available of the hand.
DW: Are you depending on (for your analysis) where Jamie Lintemoot said the blood was?
Dr. H: Yes and no. [...] I'm depending on the photographs and the testimony given to me on December 30th, 2008. [...] She and I talked and she described it as "pinprick and small sized on the back of the wrists to me. [...] She was distraught that the photographs did not photograph what she had seen.
Dr. Herold goes into more detail about this issue.
DW: (Your) conversation with Jamie Lintemoot, was when?
Dr. H: [It] must have been in the spring of 2003.
DW: Do you have any note telling you about Jamie Lintemoot telling you about the blood on the wrists?
Dr. H: No.
DW: Do you know if Jamie Lintemoot is a blood spatter expert? (I believe Weinberg asks this next statement as a question.) She said she couldn't describe the stains because she's not a blood spatter expert? Yes, Dr. Herold replies.
2:45 pm: The afternoon break is called.
This is an area of Dr. Herold's testimony that is very damaging to the defense and Weinberg has to find a way to discredit her any way he can. Later in the afternoon, Weinberg will ask questions that will give him the opportunity to argue that his experts are the more knowledgeable experts because the specialize in blood spatter analysis only.
At the break, the older, short Spector fan is introduced to Weinberg and shakes his hand. Harvey with the shock of white hair arrives and sits with the other defense supporters. At the defense table, I can see that Spector has a little "man bag" with him today.
3:01 pm: Wendy calls the jury and by 3:04 pm we are back on the record.
Weinberg continues with the point about Jamie Lintemoot's testimony.
DW: I want to make sure I understand the history here. [...] You spoke to her in the spring of '03?
Dr. H: Yes.
DW: Did you speak to her since?
Dr. H: No.
DW: Its' only when you were told that she testified that you rethought the (case)?
Dr. H: I was asked a question to review the transcript?
DW: Who asked you to do that?
Dr. H: Mr. Jackson.
DW: Where did Jamie Lintemoot state it as high impact?
Dr. H: She didn't. I did.
Weinberg goes over this in more detail. Weinberg I believe asks, "The first time [...] she now tells it as mist like spatter?"
Dr. H: No, no. Back in the spring, she described them as small pin prick [like stains]. [...] Again, [...] she used those terms; small, pin prick; so I was conservative and said the photographs could not determine [...] At that time, I wasn't willing to make any interpretation.
DW: Because as a scientist, if you can't see it you can't define it?
Dr. H: In some cases, that's true.
Weinberg continues to ask her about the evidence that she reviewed.
DW: In fact, you've been previously asked to answer hypotheticals at the grand jury and at the first trial?
3:15 pm: The Spector supporters who came to court today, reenter the courtroom.
This is a complicated question where, Dr. Herold is read her testimony from the grand jury. It appears that during the grand jury, she was asked a similar question regarding Jamie Lintemoot's testimony and she answered differently then. Dr. Herold explains the difference.
Dr. H: So, yes, I made a statement at the grand jury that appears different, but we were talking about a different location (that was pointed out to me).
Weinberg then moves to questions she was asked at the first trial, and if she remembers a specific question about misting. She replies, "Well, I've testified (at the grand jury and first trial), I can't keep track of all the testimony." Weinberg reads her the first trial testimony question and asks her, "At the first trial, you would not commit; [...] Do you remembr saying that?" (Weinberg is implying that she changed her testimony in this trial from the first trial.)
Dr. H: However, there is a difference. What I said that time and [...] they didn't specify a position (of the spatter, given the hypothetical she was given). [...] I was more definitive in that [answer]. I said the hands would have to be up and facing the [spattering event]. [...] That's different than this trial where I was asked [...] and Jamie Lintemoot's testimony as to where it was located.
With this last exchange, to me, Dr. Herold stands her ground that her answers were different because the questions were different.
DW: What means do you have to confirm or verify (this)?
Dr. H: I have no means to (verify). I have been asked to interpret her testimony.
DW: Now you've taken at least two classes on blood stain analysis. [...] Isn't it true that as a scientist you're only supposed to (opine on what) you can personally observe or see?
Dr. H: And that's what I've done until the attorney's get a hold of a case and ask me to do (hypothetical interpretations).
DW: Okay. I think we can move on.
DW: You stated that you can exclude Mr. Spector from being more than two to three feet away. [...] Your testimony says nothing about what Mr. Spector could have been doing? [...] He could have been helping her? [...] He could have been recoiling from her?
Dr. H: Unlikely because of the right (side) panel (of the jacket).
Weinberg asks her several more rapid fire questions about what Spector "could have been" doing, at the time the gun was discharged.
DW: You're not a specialist (in blood spatter) are you?
Dr. H: I would answer that I am, it's not the only thing I do. [...] Not all cases are served by having a specialist because you (could have) other materials (that the specialist would not see or be able to interpret).
Dr. Herold gives the example of the tooth material found on the rear portion of the gun sight.
Dr. H: And that a strict specialist would not have seen or identified that material. [...] Once you understand blood stain analysis, you apply it to every other single case (you observe).
Dr. Herold states that on strictly reconstruction analysis, she performs about ten to twenty a year.
DW: Is it in your opinion there was only one blood spatter event?
Dr. H: Yes and no. [...] There were at least three bloody objects moving about: Spector, the bloody rag, the gun. [...] There was blood that moved or removed (and) dripped blood on the banister. [...] All are a result of the gun shot, but all were moved/removed subsequently.
Weinberg then moves onto questions about satellite spatter.
DW: Isn't it a fact that there was satellite spatter from the blood flow out of her mouth?
Dr. H: No.
DW: Are you aware that Dr. Henry Lee and Stewart James wrote a report....
AJ: Objection! Facts not in evidence.
Counsel approach the bench to argue the objection out.
3:30 pm: Sandi Gibbons from the DA's office and Pat Dixon enters a few moments later. They sit beside each other. While counsel are at the bench, I whisper to Sandi, asking her about the Roman Polanski hearing for tomorrow. She tells me the hearing is off and that she will tell me later the details.
Spector's #1 fan arrives and sits with the defense. My understanding is this individual is a school teacher. This could be why they are often coming to the trial so late in the day.
DW: Could reasonable experts have a difference of opinion?
Unfortunately, I don't get Dr. Herold's answer exact; I just have pieces of it. She says something to the effect of, "The experts have not had an opportunity to discuss (as a group?) [...] I believe I'm the one who has evaluated all the evidence and have eliminated one possibility."
DW: Do you consider Stewart James a recognized expert?
Dr. H: Yes. [...] Yes I know him and yes I consider him to be an expert.
Weinberg now moves onto the distance of spatter and the size of the spatter on Spector's white ladies wool jacket that have been described as a millimeter or less.
DW: In fact, some of the droplets on Spector's jacket were larger than that?
Dr. H: Some of them were; not all of them.
Weinberg goes over the gases expelled from the discharge of the weapon and where they would go.
Dr. H: No. That's a misinterpretation of the physics of the gasses.
Next come questions about a book that Kish and James wrote together and Weinberg questions her about questions where AJ read from the book. Here is the quote from the book. "Shooting into exposed blood will tend to have the small spatter go farther out to four feet."
DW: And then you went onto say, "But that's blood into blood? Do you remember saying that?
Dr. Herold asks to see the transcript. Sandi Gibbons exits 106. The jury and everyone else waits for Dr. Herold to read the transcript. A few jurors yawn. Dr. Herold explains that yes, blood into blood can go father as forward spatter. That will not change the millimeter size. Forward or back, (that small sized spatter) can only go as far as four feet.
DW: You've stated that the blood spatter did not go beyond the hem of her skirt....
Dr. H: Yes.
DW: And I asked you days ago, if the blood could have gone to the hose, and if it could have fallen off (when she was moved by the coroner's or when she was put on the exam table) or when the panty hose were removed. You said you didn't think that was the case.
Dr. H: No. I don't believe that's what I said.
Dr. Herold goes onto describe what she did and did not observe regarding the pantyhose.
DW: Did you check the packaging for flakes?
Dr. H: Yes. (Another question about blood on the hose.) Well, I know there was blood because of the purge.
DW: In fact there were flakes on the packaging....
Dr. H: Yes, but that's different from spatter.
DW: You talked about flakes. Mr. Jackson asked about flakes and you said no.
Dr. Herold explains that she took that to mean spatter. Weinberg states that he doesn't want to go into anything lengthy at this hour so he moves onto another area. 3:51 pm: Pat Dixon leaves. Weinberg moves back to the gun.
DW: Didn't you state that (on this area of the gun) you saw an area of cloth impression?
Weinberg is using a prosecution photo that has a big red arrow on it.
Dr. H: I don't know who put the arrow there or what the purpose of the arrow is.
TD: I put the arrow there.
Weinberg is now asking for the prosecutions large photo exhibits, #204 which is an enlargement of #78. It's a photo of the blood smear on the right side of the gun. Weinberg goes over her testimony that she saw fabric pattern on the gun. Dr. Herold believes she testified at the grand jury that blood was moved or removed.
DW: But you never said (at the) last trial or the grand jury "fabric impression?" [...] Do you remember if you were shown this photo by the defense at the first trial?
Dr. Herold smiles and laughs and says, "I don't know if I've been shown this specific photo or not. Weinberg goes on to say, "Last year this was (labeled defense exhibit) six X (XXXXXX). This year we got smarter and started with number 500.
DW: Do you remember being asked if there were ridge like impressions?
AJ interrupts the questioning asking for context be added.
Judge Fidler responds. "Here's what we're going to do. We've reached the hour. She can look at it over night and we'll be in recess until tomorrow am."
As the people in the gallery exit, the short bald man (I think he is even shorter than Spector) and Spector hug in the aisle. Spector shakes the hands of the couple who come and says, "Congratulations." Fawn and her friend exit the courtroom. Weinberg and AJ discuss an issue in the well and I believe AJ says he has to think about it.
As I exit the Clara Shortridge Foltz Criminal Justice Center, I see the three Spector fans on the southeast corner of Broadway and Temple. They are looking across Temple street at the building on the northeast corner. One individual was pointing at the building and comparing it to a large piece of photo paper with three black and white photo images on it. I could not see what the images were as I passed.