February 11th, 2009
Defense Witnesses: #5 James Pex (blood spatter and gunshot residue expert; testimony complete; witness has not been released yet)
Accredited Press inside the courtroom: An unidentified woman for possibly all of the morning session
Not knowing if court starts at 9:30 or 10:30 am, I decide to get here early. At around 9:28 am, I'm inside the courtroom and Fidler is hearing other cases being forwarded. Right afterwards, one of the DA's interns (I think his name is Robert) is at Wendy's desk area, placing pages in the prosecution's evidence book. Cindy is the court reporter covering the first half of the morning session. I overhear that the start time was moved to 10:30 am.
There is a nicely dressed youngish woman sitting in the second bench row off to my left in Linda Deutsch's regular seat. She has a paper note pad with her that is commonly called a reporter's notebook. During the first trial, I used they same type of pad. Then she opens up what appears to be a leather holder for a small legal pad but there is this thin, flat computer looking thing inside with a large screen. I'm fascinated because I've never seen anything like it before. I wonder if it's an e-book or something similar, and yep that's what it is. It's a Kindle.
At 9:30 am, Spector rushes into 106 with his bodyguard and stares at the defense table, with a stunned look on his face. Apparently, no one on the defense team told him the time had been moved to 10:30 am. It's either Cindy or Wendy who informs Spector, "They changed it to 10:30." Spector, possibly addressing his bodyguard, repeats the same statement.
I decide to go hang out in the cafeteria and make a few phone calls for the next hour.
10:23 am: I'm back inside the courtroom, waiting. The young reporter looking woman is still here and there are a couple other people in the gallery. James Pex is standing in the gallery. I know Weinberg is here because I saw him in the elevator bay earlier. Susan and Tran are in the courtroom and the defense team is all set up.
10:26 am: Weinberg enters and talks to Pex.
When Truc and AJ enter, I notice Truc is wearing a black suit with faint pinstripes. The jacket has a deep V-neck in front with a 3 inch ruffle around the collar. The matching skirt is A-line until it hits above mid thigh and then it has flare pleats at the sides and back.
Truc and Cindy jokingly chat as Truc sets up the computers. Wendy goes to call the jury then notices that Spector isn't here. I hear Weinberg say, "I messed up. I forgot to tell him." Sherri is here in the back row chatting it up with officer Williams. It's 10:35 am and we are waiting for Spector. A few members of the DA's staff enter and Detective Tomlin enters with the chair Lana died in. The sheriffs' take it out of the box and for now, set it beside the bailiff box. When I see that chair I'm thinking, 'Please not another long discourse on the spatter on the chair.'
10:38 am: The Clarkson family arrives with their counsel, Bill Ferguson. I saw Mr. Ferguson here early around 9:30 am.
10:39 am, Spector arrives with Rachelle and then another woman who was here earlier in the morning who sits in the row behind Rachelle. I did not see if Rachelle and this other woman acknowledged each other. Pex joins Rachelle in the front row.
10:41 am: The jury enters 106 from the jury room. The chair is now placed near the jurors in the well as the inner courtroom doors close. I do not think Spector stood as the jurors entered.
Weinberg starts off by having Pex look at one or more close-ups of the checker pattern on the grip of the gun and identify it again as directional back spatter. Weinberg puts up photos of each side of the gun on the overhead. Pex identifies a drop on the grip (I believe left side) near a set screw as spatter. He identifies blood on the right side of the handle as spatter, also.
DW: Those spatter marks here, are front facing?
JP: Yes. This one here is in a valley; but this one here....
Pex states he's looked at the photos a number of times and he's certain of his conclusion.
Detective Tomlin must have left because he reenters and sits in the first bench row.
10:48 am: I notice Pat Dixon in the back row with another woman who might be part of the DA's staff.
Pex testifies that his work was peer reviewed. Pex states that when he was director of a lab (in I believe Coos Bay, Oregon), it was a member of ASCLAD. He's not a member now but he was one when he retired. Pex states that ASCLAD recommends per review.
A gentleman who came yesterday taking notes is back. More Spector supporters enter 106. Several of them I do not recognize. Weinberg now is trying to show the chair to the jury and AJ moves all his papers off his area of the table so that the chair can be placed on top of it for easy viewing by the jurors. AJ sits in one of the padded chairs in the well behind the prosecution area and watches Weinberg while he points out areas on the chair to Pex to identify.
Pex and Weinberg think that tilting the chair for the jurors on the table will be better, but a few of the jurors ask them to get out of the way, and them to put the chair on four legs and just use the pointer.
Pex testifies about various stains on the chair and the red directional arrows on the slip dress.
I note that AJ and Truc take no notes during Pex's testimony identifying bloodstains on the chair. As I see the chair up on that table a wave of sadness washes over me.
(I have to say that Weinberg did not put on gloves when he handled the chair and was not careful where he placed his hands when picking it up to place it on the table. I could have sworn that he put one of his hands on the top right backside of the chair where there are blood stains. I was informed that someone observed Weinberg, at some point during the day, place some file papers on the seat of the chair.)
11:00 am: Louis Spector and Frieda enter and sit in the third bench row.
Weinberg is finished with the chair as an exhibit and it goes back over beside the bailiff's box. Weinberg then asks Pex about crime scenes. Pex testifies that it would be a fair statement to say that in his work (for Oregon) he's been to hundred's of crime scenes. Weinberg puts up a photo of Lana in the chair from the direction of looking at the back door towards the motor court and fountain.
DW: Can we be confident... (unfortunately, I don't have the complete question)
AJ: Objection! Speculation!
Weinberg asks the question again slightly different with the "Can we be certain..."
AJ: Objection! Speculation!
It's at this time that I notice white-haired Harvey is in 106 and sitting next to Rachelle. The image of Lana in that chair is still up on the ELMO. Mrs. Clarkson, her body turned away from the screen toward the jury, starts to sniffle.
Now Pex is testifying that in his opinion, there is evidence that the gun was picked up by the police. He testifies that he reviewed a final report by Lillienfeld and Katz. He reviewed the report and the handwritten notes. The hand written notes Pex says is a chronicle of what they did at the scene.
Pex states that the notes have specific times. The notes state when the gun was examined to when the coroner arrived. The hand written notes state a 16 hundred something hour time as well as the type of bullet in the gun. Weinberg asks if the notes state the gun was picked up and examined. Then later, there's a 1700 hour time (I didn't write down the exact minutes; just noted the hour designation) is noted when the coroner is called. Pex states something to the effect that the report and the notes say the same thing. A question is asked about the coroner and the time.
AJ: Objection: According to the report, (the notes say Katz) contacted Pena at the scene.
From what I'm gathering it appears to be in contention wether the gun was left in place until the coroner arrived at the scene.
Weinberg states he has nothing further and AJ asks to approach the bench.
Fidler then informs the jury and the gallery that we will resume at 1:30 pm this afternoon. Fidler tells the jury that they will get the caterers here as soon as possible.
I tell Sherri that I'm going to head over to the Tokyo Library so I can check my E-mail.
1:27 pm, I'm back inside 106. There are more Spector supporters showing up for the afternoon session. Some are new and some are from this morning. The prosecution team isn't here yet. The court reporter, Cindy, sets up. Spector is here and at the defense table in front of him I see the man bag and an orange drink.
Pex is back on the stand under cross now.
AJ enters into evidence all the pages of Katz's handwritten notes. Pages of the notes are up on the ELMO and the lights are dimmed for the jury. AJ asks if he received these in the last couple of weeks and Pex replies that he had them in discovery for some time.
1:42 pm: More Spector supporters enter 106. The defense side of the room is getting filled up with people. Pex verifies the pages he has comports with what AJ has. Pex states that there is a page that he is missing. As Pex is looking over the pages to confirm this, he has trouble reading. Judge Fidler gets up and slowly tuns on a set of spotlights over his desk. The lights come on slowly like a dimmer switch is being turned. AJ says, "Your Honor, I think we need soft music."
Another Spector supporter enters and then moments after that individual, two more people enter.
AJ then goes over the notes in detail. You can see from the first page there is a time at the top, 16 hundred something, and then neatly written paragraphs in block letters separated by several spaces. AJ points out that there are numbers surrounded by a box for many of the items listed. The first box number is number 2 at the bottom of page three of Katz's notes. The next page at the top, the next boxed number is a number 1 and so on with various numbers not in any chronological order. AJ establishes that the notes are not in any particular "time" order. There was the 16 hundred something at the top of a group listing. You can see how Katz's notes are nice and neat with space around them to later add things. On another page you can see the listing for 17 hundred something and the notes "Pena contacted at scene."
AJ establishes that it is a reasonable assumption that those boxed numbers are numbers that are associated with items of evidence. I notice on the notes that off to the side by some of the boxed numbers, written in noticeably smaller block lettering are some "J" numbers. J numbers, as we have learned, are evidence item numbers. Underneath the listing for the Colt Cobra, you can see off to the left in much smaller print, the type of cartridges that were received from the weapon (the four S&W) and off to the right in tiny lettering again, the one Speer cartridge.
(My impression after viewing the handwritten notes up on the ELMO is that Katz is a neat note-taker. The types of bullets found in the weapon were added later under the gun paragraph. Otherwise, the number and type of bullets would have been written as part of the same paragraph that describes the gun. He wouldn't have put that information off to the side and below it if he truly retrieved the weapon at the time he first observed it.)
Then AJ presents the last page of Katz's notes that Pex was not provided by Weinberg. And there it is plain as day; 1800 hours: PISTOL RECOVERED.
AJ You were not given this information by Mr. Weinberg? [...] Would that make a difference in your opinion?
JP: It would raise some questions.
Then AJ does the same thing with Detective Lillienfeld's notes and the clarity that those notes provide.
JP: You know what you've shown me seems reasonable, (but) I think you should call the people and ask them.
AJ: Do you think you should have been given all the notes?
Pex answers in the affirmative.
AJ then goes over Pex's billing invoices with him. The billing invoices reveal that Pex has billed so far over $66,000 for his participation in this case. (I don't get the exact number; it's something like 66,823.??) Under direct, Pex only revealed the 48,000 he earned from the work he did at the last trial.
AJ gets Pex to reveal that even though he was titled a Deputy Medical Examiner when he worked for the State of Oregon, he did not go to medical school. He took an eight hour course which then allowed him to pronounce people dead. From that, he was deputized a Medical Examiner.
AJ goes over with Pex images from one of his three, power point presentations on gunshot residue. Burnt and unburnt gunpowder is described in detail and AJ gets Pex to admit that one image in his power point presentation is of unburnt gunpowder. AJ puts up a comparison slide of four images and asks Pex if he was willing to identify three of the photos as smokeless powder that have irregular shapes. The fourth is a clear, round shape. The three slides are of smokeless powder of "non-obvious morphology."
JP: If they are deformed from the original shape, I cannot determine just from a visual alone.
Pex states that he would need to test the material. Besides, there is no measurement scale next to the images, so he has no idea about their size. AJ says well, what if I told you that these particles came from inside Lana Clarkson's mouth? Pex still won't commit. Then AJ puts up the slide of the image Dr. Herold identified as smokeless powder. Dr. Herold's photo looks exactly like the other three images that have irregular shapes; and it has the right color.
AJ asks Dr. Pex if he was told that this particle was found on Spector's sleeve, he still wouldn't make the connection that this was smokeless gunpowder. "I find that to be dangerous testimony," Pex responds. AJ asks Pex a few more questions about this issue.
AJ: Can you rule it out? (I think AJ is asking if Pex could eliminate it as smokeless powder.)
JP: I can't say.
Then AJ presents Pex with enlarged photos. These photos are big. I think they are bigger than the photos that were made of the spatter on the jacket cuff. It's a photo of the gun by Lana's left leg at the crime scene. Two copies are given to the jurors. One for the front row and one for the back row.
AJ: What do you notice about the stock? (of the gun) [...] And that appears to be a smear, a transfer pattern? [...] The pattern appears contiguous?
I'm disappointed that the enlarged photo is not put up on the ELMO. But even where I'm sitting I can see that there appears to be a much larger area of blood on the grip of the gun than what appears in the LA Co. Sheriff's Crime Lab photos taken months later.
Pex, confronted with enlarged photos of the gun at the scene that show the blood, replies, "Along the wooded portion it does appear to be blood." AJ has him look at a specific smear area on the grip.
AJ: The photo, while not of good quality or a close up, does show a much larger smear pattern?
Pex takes out a photographer's loop and looks at the photograph close up. Pex replies, "There's vacant areas. It's not a very good photo."
There are many people in the courtroom now. I see Pat Dixon in the back row off to my left.
In the power point presentation, there were experiments that were performed with a Colt Cobra 38 Special on October 14th, 2008. A firearm that Pex testified he purchased a few days before that date.
AJ goes over every single image involving the Colt Cobra and spatter. With each slide, he asks Pex specific questions about each image such as how the test was performed, what he did, who's hands are in the photo, etc. Pex performed an experiment to demonstrate that after time, dried blood on a weapon will fall off.
(To me, this would tend to support AJ's contention that the firearm had much more blood on it when observed at the scene than it did when it was photographed at the LA Co. Sheriff's Crime Lab.)
For this specific test, AJ asks Pex who's gun was it, when was it purchased. He asked Pex how far away was the tip of the weapon from the bloody sponge he shot into. No more than 1/4" Pex replies.
AJ asks him a series of rapid fire questions about the test. How long after the test did he photograph the Colt Cobra? What did he do with the weapon? He put it in a paper bag. How soon afterwards did he do that? Who provided the bag? He did. Where did he store the bag? On his desk. In his office? Yes. Many questions like this. After a week, he took the weapon out and rephotographed the weapon to show that there was much less blood on the weapon.
In the power point presentation, there is a side view photo of a right hand holding the Colt Cobra in the normal position. The weapon is facing towards the left so you can see the fingers of the right hand. In the photo, there are two arrows pointing labeled A and B. One points to the ring finger and one points to the index finger. With the way the firearm is held in the photo, the medallion on the left side of the gun is covered by the thumb of the right hand. The next photographs in the series show what Pex has identified as his own right hand, after he fired the Colt Cobra no more than 1/4" away from a bloody sponge. The photo of his hand Pex says, is to show the back spatter that you would expect to see on a hand holding the weapon in the standard position.
The next photos are close up photos of Pex's right hand ring and index fingernails after firing the Colt Cobra. The "A and B" letters are on these close up photos of fingernails in the power point presentation. AJ asks him if in one of the photos, a ruler beside one of the nails was "beside his fingernail or added to the image later." Pex said the photo was taken of his finger right beside the ruler.
2:30 pm: Pat Dixon leaves 106.
AJ then enters into evidence Pex's handwritten notes. He then presents to Pex the copies AJ has of his handwritten notes on the experiments that he performed on September 3rd, 2008. (Some of those experiments on that date were made with his own weapon, a Smith & Wesson, revolver.) He verifies with Pex that the copies he's presenting Pex are the same notes he took on September 3rd. The top page of the notes is put up on the ELMO and AJ asks Pex to identify the scrawled "AJJ" at the top of the page and the date, February 3rd, 2009. AJ gets the witness to verify that AJ received these notes on February 3rd, 2009. AJ then enters a CD into evidence. AJ shows Pex the CD and gets Pex to verify that he turned that CD over to the prosecution just the day before. That photos on the CD they received yesterday, that was the first time the prosecution had ever seen them.
Under cross, Pex states that he conducted other tests and that the purpose of the tests was just to educate Mr. Weinberg.
AJ then tells the court that they are loading this disc into Ms. Do's computer. The image of the two files on the CD are now up on the ELMO for the court to see. He informs the court that a screenshot will be made of computer screen and that will be entered into evidence. Truc opens one of the files and up comes a listing of fifty images. AJ informs the court of the same thing, that a screenshot will be made of the listing of images and that will be listed into evidence.
AJ then has Truc open up one of the images. And lo and behold, the image up there is a close-up photo of a fingernail showing spatter. And then another photo with a ruler beside it. And another photo of a hand with spatter and another photo of a fingernail with spatter. Truc then displays up on the ELMO a side-by-side comparison of the fingernail with the ruler image, beside an image from the power point presentation. They are the exact same image. You can see the close up detail of the imperfections in the nail are the same in each photo. This side by side comparison is done for all four images on the CD to the power point images.
With the photo of the hand AJ asks Pex, "You testified that this was photo of your hand where you fired the Colt Cobra."
When I saw the first side by side image comparison that was displayed on the ELMO, this huge wave of realization swept over me. All I could think was, oh my God, oh my God, oh my God. This witness swore on the stand to the court yesterday that all of the testing performed on September 3rd, was never to be presented to the jury. He lied to the Judge. And here are photos he took of testing that couldn't have possibly have been performed with the Colt Cobra, because it wasn't purchased until October, 2008.
AJ: Yesterday, you falsified an experiment for the jury did you not?
A smile comes across Pex's face.
JP: I cannot tell you if..... (Unfortunately, I don't have the rest of Pex's reply.)
The photos in the power point presentation of the fingers were dated October 14th, 2008 and supposedly created with the Colt Cobra. AJ went through every slide image with Pex and Pex verified that the photos were his hand and he testified that "this was from the Colt Cobra."
Judge Fidler calls for a recess and the attorney's will address this issue outside the presence of the jury. The prosecution asks the court for Pex to leave the courtroom. Pex leaves. The gallery is abuzz with chatter. Many people appear to be in a state of shock. Two ladies behind me in the third row had just come to court for the day. They don't understand what just happened and I explain it to them. Once they grasp it, both of their jaws drop.
Once the jury steps into the jury room arguments start. I'm not sure if it's AJ or Fidler who says something to the effect of, "(the) legal step is...." I believe AJ states that Pex perjured himself on the stand.
AJ: He switched those photos and sold them to the jury and he lied to the court! I asked him (in discovery) 'I'm asking your Mr. Pex did any of the experiments he did were ever to be shown to the jury?' (And he responded) 'Just to educate Mr. Weinberg.' [...] He married that photo (of the side view of the hand holding the Colt Cobra) with the prior September 3rd images! If he continues to talk.....
DW: I think we are getting ahead of ourselves. [...] I don't know where the pictures came from.
There it is. The exact same type of denial he did when he told Fidler he didn't know about any prior testing his experts did.
DW:My understanding with the experiments, the experiment that was specific to the Colt Cobra was the one that (demonstrated) how blood falls off. [...] This is really a small matter. All this shows is an illustration of how spatter gets on hands. [...] No prosecution expert is going to come in here and say that's false. [...] The principle point is that (there's) nothing's wrong with the testimony and there's nothing wrong with the exhibit(s). [...] The basic point is it matters not. [...] The fingers covering the handle... no one disputes that. [...] This is a complete manufacturing by the prosecution. [...] All those photos show is that you get spatter on the fingers.
AJ: This is not a minor issue. This was the heart and soul of his testing that he never testified to before. [...] For him to suggest that this is a minor matter, Mr. Weinberg, he knows better. [...] I went through the slides again, and I'm sure you thought, Judge, what is he doing going over the defense's case again. [...] Everytime he said, 'This was the testing from the Colt Cobra.' Your honor, this was even brought out on direct by Mr. Weinberg. [...] Mr. Weinberg asked him directly. It was Mr. Weinberg who asked his own witness if THIS gun was the one used!
DW: What Mr. Pex talked about was spatter on the grip. The fact that the hand covers the grip. [...] The point is that this is a secondary and irrelevant part of the demonstration.
I have in my notes that Weinberg is grasping for phrases. He's sputtering, trying to defend his witness's experiment.
DW: (The point of this) is to try to discredit Pex on a... [...] They (prosecution?) manufactured an issue. [...] Those photographs are meaningless. They just show what happens to a hand.
Judge Fidler, a very irritated tone in his voice says something to the effect of, Regardless of what you think Mr. Weinberg, "I cannot agree with you. [...] He told me that none of these experiments on September 3rd would be before the jury! THAT'S A DISCOVERY VIOLATION!"
There it is. Fidler states the defense has perpetrated a discovery violation; something Weinberg has from virtually day one accused the prosecution of doing.
Judge Fidler states "I'm simply going to advise him of his rights and have us go forward." Fidler states that he suspects the witness will go forward with testifying.
Pex is brought back into court and he takes the stand.
Fidler: Given what they have alleged you may wish to have an attorney present. If you can't afford one, one will be provided for you.
There it is. Fidler read Pex his rights.
Pex then says, "I've read my transcripts from yesterday. I don't need one."
Interesting. Judge Fidler predicted this correctly.
3:24 pm: We go back on the record. AJ enters all the images from the CD into evidence and after that informs the court he has nothing more.
Weinberg gets up to redirect his witness. He first goes over the formal written report by Katz with Pex. He asks a question that AJ objects to and Fidler sustains the objection. Weinberg asks another question that's also objected to and also sustained. Weinberg was asking Pex to "interpret" Katz's written report. For his explanation for the objections, Fidler says, "This is going far afield of the issue. [...] We are now having people interpret other's notes."
DW: You testified that you identified blood spatter on the gun. [...] What was the purpose of showing blood on the fingers?
JP: It was to show [...] it was the purpose of showing spatter.
Weinberg asks another question.
AJ: Objection! Leading!
Weinberg asks another question that I miss.
AJ: Objection! Leading!
And that's it. Weinberg has no more redirect.
Fidler asks AJ if he wants to recross.
AJ: Based on this witness's testimony, we're not going to question anymore.
The jury is released for the day and court will resume Tuesday morning at 9:30 am.
The jury exits.
3:39 pm: I'm not sure if it's Fidler or AJ, but I believe it's AJ who states, "We still find ourselves in a quandry... I don't feel I can continue to cross a witness to suborden perjury.
Fidler doesn't necessarily agree with that, gives an example and (from my memory) AJ responds to the Judge with either, "All right," or "I understand" or "Fair enough."
AJ: This is the very reason we asked for the discovery in advance. [...] The photos.... [...] I feel like for us to just let this drop....
Fidler states that he is not going to make a decision at this time. He doesn't have enough evidence before him. He states he needs to hear testimony and the parties need to present motions. Fidler informs AJ that Pex is not released, he is still under subpoena. He has to be made available. And that's it. Fidler states they are just waiting for Allan Parachini to have a meeting with him and his staff to go over what their needs are about the jury visit.
It's almost 4:00 pm and court is over for the day. Court resumes Tuesday morning at 9:30 am.
Special thanks as always, to Sedonia Sunset, for her expert editing help.