March 26th, 2009: Continuation of Day 4 of Closing Argument & Jury Instructions. (unedited entry)
I get up inside the courtroom at 9:08 am. Jackson is putting a huge board up over by the jury with the 14 defense points. I bet this is the board where he is going to knock out each and every one of those points.
The cameraman is setting up right behind me to my left. More press enter the courtroom and set up their laptops in the back row. Yesterday, there were some signs taped to the back of the benches that said RESERVED. There was one where Linda Deutsch usually sits and one where Harriet Ryan usually sits. Their names were written in right below the huge printed letters.
9:13 am: Wendy calls the judge. I see Steven Mikulan from the LA Weekly in the back row, who is writing on the LA Weekly's LA DAILY blog. I know there is someone in the back row on Twitter, posting short items periodically, but I'm not sure if it's the very tall slender man or one of the other reporters that I have not personally met. Harriet Ryan is here. (Her latest story is already up, here.)
Over on the defense side of the room, the benches are not packed with supporters like they were on Tuesday for Weinberg's closing arguments. Tawni Tyndall is there, along with Rachelle and Mrs. Weinberg. Harvey with the white hair is in the back row, and there are I think two people sitting behind Rachelle, but I believe one of them must be either a reporter (doesn't look like it) or a clerk for the defense. It's a 30's looking dark haired woman in a black skirt suit and she's got a legal pad on her lap. Beside her is a young man I've never seen before. Compare that to the six women friends of Lana Clarkson who are sitting in the second row behind Mrs. Clarkson and her daughter, Fawn.
Fidler asks Jackson about how much longer he has. He informs the court he has about 25 minutes. Some people in the courtroom are quite happy about getting 25 minutes of Jackson closing verses 10 minutes.
Weinberg then speaks to Fidler "off the record" even though court is on the record. He's upset that yesterday, just past 4:00 pm (when court usually ends) he "...realizes there apparently was some sort of agreement between the prosecution and the court to go until 4:30. The defense had no notice that this this was agreed to. What if our client had an appointment?" Wendy explains that she had received a note from Mr. Jackson requesting to go to 4:30 pm and she passed it onto the Judge. She inquired of the jurors if they could stay until 4:30 pm, and they didn't have any problem with it. She apologizes for any misunderstanding.
There are some last jury instructions that still have to be resolved . In instruction 315, Weinberg wants the word "noise" added in the part where the types of distractions are listed. Fidler denies the request stating he feels the instruction as written is adequate. Weinberg is objecting to some of the language in the 1101(b) instruction. He goes on and on and on with his argument about this. Fidler patiently explains to Weinberg that "We've discussed this at length. I totally disagree. If it's taken out of context, yes, but if you read the paragraph in context it makes perfect sense."
The last issue is that special instruction that Weinberg wants. The court has to stop for a moment, while the jurors file into the jury room at 9:23 am. A few moments after them, Spector enters the courtroom with Rachelle. Rachelle is wearing a stark white suit. It's different than the one with all the zippers on it.
Weinberg then objects to the prosecution "rewriting" their special jury instruction #1. Fidler explains that the instruction, as it was originally written by the defense, "If it doesn't track the other instructions, then it won't be given."
Weinberg argues that there is "nothing legally incorrect in the instruction the way the defense wrote it." Fidler a bit irritated states, "I could not agree with you less." Weinberg goes on and argues some more, stating basically the same thing he said before.
Fidler says, "What I'm saying is, in it's present form, I won't give it." Weinberg responds, "Then I ask for the opportunity to amend the instruction." Fidler replies, "Okay." So this means that Fidler will not read to the jury the instructions directly after Jackson is finished. The defense will probably call Riordan for advise during the break.
Jackson gets up to speak to the jury.
"Folks, thank you very much for your patience. I've only got about a half hour more." Jackson proceeds to go through the 14 points that the defense began and ended their case with. "With the slightest scrutiny you will see that each one falls like a tin soldier."
1. Intra-oral gunshot wounds are 99% suicide. "Statistics don't tell us anything about real life. [...] But everybody watches the game," Jackson states. Jackson then proceeds to give the jury a long example to "hit home" his point. There's a strenth Jackson has that few have and that is he a powerful orator. He can draw his audience in when he's showing them an example. You can't help but pay rapt attention to the details of what he is telling you.
Jackson takes the jury back to 1941, when our country was wracked by crisis and a looming world war. "We were just recovering from the stock market crash and the great depression. During this turbulent time, the country turned to a great American sport, and that was baseball. They were following it with more passion than we do today. [...] And the big star of the time that emerges was Joe DiMaggio who was playing for the New York Yankees. He started the season and for 10 games in a row, he hit safely."
And then he hit 20 games in a row safely. Soon, this was big news with Joe DiMaggio never missing a hit in 20 games. [...] Then it was 30 games and the whole country took notice. Then it was 40, 45, then 50 games in a row that Joe DiMaggio hit safely. [...] Joe DiMaggio was the obsession of this country in 1941. The supermarkets would close during the games and people would listen to the game on their transistor radios, transfixed. [...] And then he hit 55 games safely."
"When it came to game 56, the experts said, 'My God, this is impossible! It can't happen.' The 56th game, was against the Chicago Indians. 'The experts said, the odds, the statistics, it will never happen,' that Joe DiMaggio would hit 56 games safely."
Jackson continued. "Now, do you cut your radio off? Do you just turn off the game because the statistics say it can't happen? Mr. Weinberg says yes, turn your radio off. Or do you listen to the game, or watch the pitch? [...] Joe DiMaggio got 3 hits off that game 56. [...] Statistics; it means nothing. [...] Just because it's improbable, doesn't mean anything in this case. [...] It means absolutely zero in reality."
Once Jackson is finished with the first point, he marks a big red X over the item with a huge red magic marker. He does this each and every time he's finished explaining why that evidence doesn't "prove" what Weinberg said it proves.
Jackson addresses the next point, #2 Blood on front strap and the grip.
"Phil Spector had his hand on the grip and Lana Clarkson ended up dead! He got blood everywhere! He got blood on the door latch, on the door knob and the banister. To assume that he got blood everywhere else but not on the gun is ridiculous. [...] We know that only Phil Spector could have left the fingerprint that was left in blood on the front strap of the gun because Lana Clarkson didn’t get up afterwords and leave it there."
“DW: Objection! Detective Katz...
Jackson, with a big smile on his face says, "Actually, Dale Falicon said, latex gloved hands can leave a print if it’s “wet blood.” There’s no question the print was left in wet blood. Detective Katz didn’t leave that print (because he handled the gun about 14 hours later. Phil Spector left that print on the gun and the smear on the gun proves it was Phil Spector."
Jackson crosses off number two on the board.
#3 Spatter on the gun grip. "I've got two words for that," Jackson explains, "James Pex. The perjurer. [...] He’s the only person who said that spatter was on the gun grip.
DW: Objection! Dr. Di Maio also said...
Jackson, smiling again, responds to that, “Dr. Di Maio said he didn’t consider it. He said he only considered the blood on the metal. He didn’t consider the blood on the grip because he said, 'That’s argumentative.' James Pex came in here and six years later and told you he found new evidence. He said something no one else has ever said before." Jackson goes onto explain how he feels about his job as a prosecutor. He's speaking now with quite a bit of emotion. "I take my job as a prosecutor seriously. Very seriously. And that word, perjury is something I've never had to say before (to a jury). [...] Mr. Weinberg would have you just dismiss that as a mistake. [...] It was more than a mistake. [...] He falsified evidence!"
Jackson crosses off number three on the big board.
(It's around this time, in the packed courtroom I start to have a coughing fit. I'm all the way down on the far left of the second bench row. I can't get up to leave. I'm embarrassed because I'm interrupting Jackson's fantastic argument with my coughing. I don't have any water and I'm looking furiously around me to see if there is anyone I know near by me, that has any, but everyone has their eyes focused on Jackson. I turn my head into my right shoulder and put my mouth right up against my upper arm and cough into in like that, trying to muffle the sound as much as possible until the fit has passed.)
#4 No Phil Spector DNA on the gun.
"The evidence shows it doesn’t matter. The defense desperately needs something, some that shows science. That’s a complete red herring. No one ever tested his gun for DNA because it was his gun found in his home. [...] Steve Renteria tested areas for blood, for Lana Clarkson’s blood. He took samples to test the blood on the gun. Spector’s DNA would have been overwhelmed by the copious amount of blood that was on the gun. [...] The banister was tested and there was no DNA from Philip Spector there. The bloody diaper was tested and there’s no Phil Spector DNA found on the diaper. Steve Renteria was interested in the blood that was on that rag. [...] Is the defense saying that the banister in his own house, he never touched? That the diaper that came from his house, he never touched? [...] (That's the logic the defense would have you believe.) The fact that Phil Spector's DNA was not found on the gun was of no consequence. It was tested for blood."
Jackson takes the marker and crosses off another number.
#5 No spatter on Spector's right sleeve. "The absence of evidence is not evidence of absence. You cannot; you must not believe that if something is missing it is of great importance." Jackson explains further that every expert who testified in this trial, even the defense experts who have written that phrase in their books tell you, you cannot make scientific conclusions about something you "expect to see." Jackson then goes over to Truc Do and performs two different demonstrations for the jury, showing how Lana's hands up near the gun could have prevented spatter from getting on Spector's sleeve. "What it proves is where Lana Clarkson's hands were."
Jackson crosses this point off with the red marker.
#6 No GSR on Spector's clothing. "Just cross this off. His clothing wasn't tested for GSR. He's got too many guns. If they were so certain there would be no GSR on Spector's clothing, why didn't they test for it? They had access to the evidence. The reason they didn't test it is because if they did and found GSR, they would say it was meaningless because he has guns (all over the house).
Jackson crosses this point off with the red marker.
#7 No Foreign biological material on Spector "For this, see number five. By the way, foreign biological material? That's what blood is. As far as to where it is on the sleeve, number seven is the same as number five. [...] Besides, even their own defense experts said that 70 percent of the time you do not get back spatter in a gunshot event. [...] Absence of evidence is not evidence of absence."
Jackson crosses off point number seven.
#8 No evidence of a struggle. "OH REALLY?" Jackson asks in a slight, mocking tone. "There were bruises on both bones of the right wrist. Contusions (on the inside) of the bottom lips. Regardless of what the defense said about the crane of the gun, you stick a gun in someone’s mouth the tongue is going to go someplace. [...] The defense would like you to believe that the bruising on the tongue on both sides was the same. Exactly the same. That's totally not true. Dr. Pena looked at that tongue. He took samples from it on both sides. On the right, it he determined it was postmortem congestion. [...] The bruise on the left was completely different. If there was no evidence of a struggle, how did the bruises get there? No evidence of a struggle except for the presence of a dead woman in your foyer!"
Jackson marks the next item off on the display.
#9 No Phil Spector DNA under Clarkson's fingernails "Ask yourselves about the other five women he pulls a gun on. [...] There wasn't a fistfight where people were scratching at each other with physical contact in those instances. [...] There wasn't a physical fight between Lana Clarkson and Phil Spector."
Jackson crosses out this point with the red marker.
#10 Spatter on Lana Clarkson's hands. "Everyone knows this showed physically, scientifically that Lana Clarkson didn't hold the weapon. She could not have." Jackson then reminds the jurors by gesturing with his hands where they saw with their own eyes that Jamie Lintemoot indicated she saw blood spatter. He then compares that on his hands to where Mr. Weinberg would have them believe she was indicating. While he's doing this, there are images up on the screen of Jamie Lintemoot indicating where she saw blood and right after that where Fidler indicated for the record that she demonstrated.
Jackson crosses off this item on the big display board.
#11 Directional Spatter on Lana Clarkson's hands "This is consistent with Lana's hands being up in a defensive posture."
Jackson marks through this item with the red marker.
#12 GSR on Lana's hands "Her hands were in a defensive position. It wouldn't matter where her hands were! She was in a geomorphous cloud. She would have GSR on her ear! If you tested her face, her thighs, you would find GSR.
Jackson marks this item off of his display.
#13 Trajectory of the tooth fragments "If the teeth came out via 'gases,' there would not be any dentin on the back of the gun sight," Jackson explains. "The left tooth breaks off and flies to her right. The right one ends up on her abdomen. It tells us she could not have been sitting up; that she was in that position when she was shot." A photo of Lana's slumped position, where she was clearly retreating from Spector is up on the screen. "The only other explanation for that tooth not flying off to her right is because of where Phil Spector is standing. He's standing over her, within 2 to three feet of her."
Jackson marks a big red x through this item.
#14 The broken thumb nail "Mr. Pex stated the broken thumb nail proves Lana Clarkson's thumb was on the trigger. [...] Well I've got just one question for Mr. Pex: Where's the nail? If it broke when it was in the house, the Sheriff's crime lab would have found it. They never found it."
Jackson marks off the last item on the display.
It's 10:05 am, and Jackson continues with his closing argument. "Mr Weinberg tried mightly to reduce Phil Spector's pattern of violence to just some bad things. [...] He then stood up here and called every one of those women liars and having an agenda. [...] He reduces this to some character assassination. [...] Those shifting sands. [...] When Weinberg was questioning Dorothy Melvin, he brings up Phil Spector pulling guns on other men." (Now in closing argument, he tells you not to believe her.) "Five women who never met. [...] Shifting sands. Now, all these women have an agenda. Five women who never met were all liars? [...] Each incident proves, those women walked away by just luck. They got the empty chamber."
"When it's a woman. Alcohol. Loss of control. Phil Spector reaches for a gun. Think about these women." And as Jackson reads the name of each woman, their photo appears up on the screen in a circle. "Devra Robaitille. A woman. Alcohol. Loss of control. Phil Spector reaches for a gun. CLICK! Dianne Ogden. A woman. Alcohol. Loss of Control. Phill Spector reaches for a gun. CLICK! Melissa Grosvenor. A woman. A loss of control. Phil Spector reaches for a gun. CLICK! Dorothy Melvin. A woman. A loss of control. He reaches for what? A gun. CLICK! Stephanie Jennings. A woman. Alcohol. Loss of control. Phil Spector reaches for a gun. CLICK! February 3rd, 2003. Lana Clarkson. A woman. loss of control. Phil Spector reaches for a gun. POW! She got the bullet. Lana Clakrson got the bullet. It's as simple as that."
"When you walked into this courtroom six months ago, you didn't know me. You didn't know Ms. Do, Mr. Weinberg or the Judge. You didn't know each other. But things have changed. Six months ago you didn't know Phil Spector, or what he does. But certainly over the last six months, things have changed."
"So I want to take you on a journey, to the parking lot of the House of Blues. It's a little after two in the morning. You can see the valet taking care of the last few cars in the lot. You can see this black Mercedes, brand spanking new. You can see Phil Spector, walking with a tall, beautiful blond. And you're just standing there, just looking. And you listen as Phil Spector starts talking to Lana Clarkson. And you listen as he invites her back to the castle."
"Phil Spector says to her, 'No, come back to my castle tonight. Just for one drink.' And she continues to say no, she's got things to do in the morning. (I have in my notes here that Weinberg says something at this point but I'm not sure if it's an objection, or part of Mr. Jackson stating that Weinberg would say this is an invention.) And Lana begs off, she tells him, 'No, I've been working all night, I need to get home.' And Phil Spector once again asks her, 'Come on, come on, we won't stay long.' [...] And then you see the driver open the door. You watch. You hear, a tiny crack in her voice, finally relenting. She just accepted his offer."
"If at that moment, right there, you could say one thing to Lana Clarkson... If you got only one shot, to say one thing, what would it be? What would you say? What would you tell her? If I asked you that question six months ago, you would have shrugged your shoulders. (You wouldn't know what to say to her.) But now you do. So let me ask you what it is you would say? You're all thinking the same thing, 'Lana, Don't go.' Say, 'Don't go.' You'd say, 'Lana, whatever you do, don't go.' And the reason you say that is because you know something she doesn't. Because you know the real Phil Spector. Like Dianne Odgen said, 'The demon behind the music.' Phil Spector is guilty of Lana Clarkson's murder. She's entitled to your justice."
Since Weinberg still wants to get his version of his special instruction before the jury, the Judge tells the panel that they will need to go into the jury room for just a moment. They file back in and Weinberg gets up to argue for a mistrial. Weinberg states there are two aspects to move for a mistrial. He first argues the "alcohol, women, loss of control...all the elaborate pattern." There's more, but I miss getting it down. Then Weinberg moves onto another issue and he appears to be quite a bit upset about this one. It's the broken acrylic nail. "For Mr. Jackson to say the acrylic nail was not in the house [...] At the last trial, that someone picked it up. And for him to say (in argument that it wasn't there is) beyond my imagination!" Weinberg goes on about how Stan White testified that it was a nail and that it had bullet wipe on it. "There's no way. [...] This man litigated for months that Henry Lee picked up that nail. [...] For him to say now... [...] And the court precluded us from calling Dr. Lee..."
Fidler addresses the first point. "Motion for a msitrial for pattern evidence is denied. [...] Mr. Jackson?"
Jackson's voice is raised and accusatory. "Is it a nail? I don't know. The reason we don't know is because Dr. Lee, HE STOLE IT! It was never determined because HE STOLE IT! We don't know because HE STOLE IT!"
Fidler addresses Weinberg. "I don't know what Dr. Lee found. (The court didn't preclude Dr. Lee.) The defense chose not to call him. [...] (What Dr. Lee recovered...) It was never established that it was a nail. It was possibly a nail, it was a triangular shaped item but it was never shown that it was a nail. [...] The prosecution is not bound to argue the same theory as in the last trial. (They can present a different theory.) (Weinberg, you were just out foxed by a younger, smarter fox on this issue.) [...] The motion for a mistrial is denied. [...] Work with each other regarding the instruction. [...] Let me add that the instruction as it was first written, is argument."
There is a short break. Jackson and Truc Do hug Mrs. Clarkson. At 10:47 am, we are back on the record but the jury is not present. Weinberg tells the court that he's had the opportunity to consult with Dennis Riordan. "It's his opinion that we are entitled to a pinpoint instruction to focus on anything that has not been proven as we have offered." Weinberg is not willing to rewrite his instruction. Judge Fidler tells him the instruction as offered he will reject. Weinberg responds, "With that ruling, our position is to accept the one (rewriting of his instruction) offered by the prosecution." Truc Do tells the court they have just a few moments to get the modified instructions ready for the jury, to make the necessary copies. I write in my notes that Donte is here. Truc Do says, "One moment your honor, we're having copies made." Fidler states that the reading of the instructions should take abut 45 minutes, which is what I predicted. The prosecution packs up their materials.
As all this is going on, I wonder, where are all the fans that were here for Weinberg's closing? Lana's family is here and sitting directly behind them are six of Lana's girlfriends who came to each day of closing arguments. Where are all of Spector's close family that came on Tuesday? I would think they would want to hear the opposing side's argument.
10:57 am: We're about ready for the Judge. Jackson makes a last minute check of his phone after the bailiff Kyles reminds everyone that their phones need to be turned off and that while the instructions are read to the jury, no one will be allowed to enter or leave. Fidler takes the bench.
Fidler addresses the jurors. "We have arrived at that part of the trial where I will be instructing you on the law (and what the) law requires." The Judge has a bit of a pause there and says something that makes the courtroom laugh. "Do not snack on pistachio nuts before you are to give jury instructions. I now know what my cat goes through when he gets a hairball." Fidler starts the instructions right at 11:00 am. I don't copy a single one down. Spector is staring straight at Fidler. At 11:15 am, I see that Rachelle is having a tough time keeping her eyes open.
11:34 am, from my notes we are all done with instructions. Weinberg asks to approach. There's a problem with an instruction. A typo, or something. I see that Weinberg is making an argument to the bench. The Judge indicates to the jurors and gallery that there is a paragraph in the instruction that should have been removed and it was missed and read to the jury. At first, the Judge was going to reread the instruction. But Weinberg and the people both agree to just have it removed from the written instructions that are given in hard copy to the jurors. That way, it won't stand out in the jurors minds. 11:36 am: The bailiff is sworn in to take charge of the jurors. He also swears to take care of the alternates. 11:37 am. The alternates are told that they would be escorted to another courtroom, #107, but they ask to get their belongings out of the jury room first.
That task is accomplished and once they finished, the twelve jurors start to gather up their notebooks and stacks of audio transcripts. Officer Williams takes the alternates to 107. The jurors now file into the jury room.
11:40 am: Fidler asks both parties about logistics and how they will handle possible read backs. Weinberg tells the court that he can be here in 15 minutes. Spector wishes to be present for all read backs, so those will happen in open court verses in the jury room by the court reporter. Weinberg requests that only the bailiff has contact with the jurors. Wendy will have phone contact if there is an emergency with a juror who might be sick. The Judge rules that 45 minutes will be the outside time limit for read backs if Spector wants to be here. We find out the jurors indicate they will not work through lunch this first day. We are asked to leave the courtroom. Outside in the hallway we learn that a single buzz indicates the start and stopping of deliberations. Two buzzes means the jurors have a question. Three buzzes means they have reached a verdict.