Sunday, March 15, 2009

Phil Spector Retrial: Day Fifty-seven Part II, REBUTTAL!

March 12, 2009

Defense Witnesses:
#18 Dr. Elizabeth Loftus (professor of psychology at UC Irvine; testimony complete)

Prosecution Rebuttal:
#35 Steven Katz (LA Co. Sheriff's Lieutenant; former detective and partner to Detective Lillienfeld; testimony complete)

Accredited Press inside the courtoom: Harriet Ryan of the Los Angeles Times; Linda Deutsch of the Associated Press; Steven Mikulan from the LA Weekly

When Spector arrives in 106, I notice there is a button on the lapel of his jacket. It's not one of the big "Obama" or "Team Spector" buttons. This is much smaller and there are several words on it. He passes so quickly I can't read what the button says. I know he has to take it off once he's at the defense table.

9:38 am Harriet Ryan arrives. A few minutes later Wendy is calling the judge. There are no supporters sitting over on the defense side of the room.

There's no jury yet. Fidler informs the court that he received a note from Juror #11. "I'll just read it," he says.

"Harvey Fisher was scheduled to play in a foursome. When we recognized each other he switched to another group. We did not speak." Jackson asks the court to explain the foursome. There's a bit of embarrassment and laughter from the courtroom. Fidler answers, "Must be golf."

The jury is brought in. There are a few more people in the gallery today than usual. Juror #7 waves to the bailiff for another notebook. She is a juror who takes quite a few notes, but not as many as Juror #1.

Dr. Elizabeth Loftus takes the stand and a bit of her thirty-seven page CV is presented to the jury. She is a professor of psychology at UC Irvine and also a professor of law since 2002. Before that she taught at University of Washington in Seattle for 29 years. She has also received six honorary degrees at several universities, including the law degree from John Jay Criminal Justice. She is also a member of many honorary societies. She's also a member of the National Academy of Scientists.

9:49 am Linda Deutsch arrives.

Dr. Loftus states it's an honor to be elected to that organization. Weinberg states he's not going to go through all of her CV, but then he starts reading from it. She was selected as one of the top 100 most distinguished psychologists.

Dr. L: Yes. I believe that's how I got the job at Irvine.

After she said that, she did something interesting with her face; it was an expression that I've seen featured on that new show on Fox, Lie To Me, but for the life of me I can't remember what emotion they said it meant.

Dr. Loftus is the author of 22 books, two of which are Eyewitness Testimony and Memory. She obtained her Ph. D. in 1970 and has been testing and publishing on memory ever since. AT some point, its mentioned that after the 60 minutes show she did on Sunday, she was contacted by the FBI to write an article.

Dr. Loftus is asked questions about memory.

Dr. L: In general, memory doesn't work like a video tape. It's much more complex. In general, there are three main stages. 1: acquisition, which is the laying down stage. 2: retention and then 3: retrieval. To explain these basic elements and how they're put down, she gets up from the witness box and stands in front of the bulletin board and draws on some white paper that has been put up there to show the three different elements. She now looks like she's a professor, teaching a class.

DW: The final memory produced; how reliable is it?

I look on over at the jury. $5's arms are crossed. #11 is not taking notes.

Dr. Loftus states that the more time you have to look at something will result in better memory. In studies, she has found that subjects are not very good at estimating time. "They tend to over estimate. They think they have longer than they did," she testifies. Dr. Loftus states that in regards to auditorally, some of the same laws apply, no matter if visual or audio. She testifies that there are some laws that apply to visual memory that don't apply to auditory, but those mostly have to do with expectations in regards to racial identity.

Dr. Loftus states that at an event, if the lighting is better, the subject takes in better information. If the lighting is poor, they take in fewer informational details. Weinberg asks her about information taken in that auditory. "It's kinda like lighting. If there's distraction you may not take in as much memory."

DW: How about focus?

Dr. L: Certainly if you are distracted it could affect the accuracy (of the memory).

DW: What about the witnesses condition?

Dr. L: Certainly if the witness is tired or overly stressed, that can affect the accuracy of the acquisition of memory.

DW: How about if someone was up for 22-27 hours?

Dr. L: Although I can't cite a study, in my opinion it would be.

DW: Lets talk about stress.

Dr. L: If someone is stressed, it could affect the acquisition, especially for peripheral information.

Dr. Loftus explains some studies that have been done on soldiers and the stress that they are under in interrogations. The stress is so great that they are unable to correctly identify the individual who tortured them.

Dr. Loftus gives the example of a test study they've done with a two minute bank robbery. There are two versions of the tape. The tapes are basically very similar except at the end of one, a young boy gets shot in the face. What they've found in their studies is that, the subjects could not remember many of the common elements of both films. They determined that the subjects focused on the violence and that caused them not to be able to accurately remember peripheral information. "Stress creates problems for memory. [...] There is a fair degree of consensus that stress affects memory. [...] The peripheral details specifically (are affected in memory).

DW: Have you also studied expectations?

Dr.L: Yes. People in her field have studied this.

She gives the example of a black man and a white man on the subway. The white man is holding a weapon and as the story is told and migrated to one person after another, the black man is holding the weapon. What they've found is when it comes to racial components, "If someone has a particular expectation, it affects what they actually see."

DW: Sometimes people hear or see what they expect to see rather than....

Dr. L: Yes. [...] Tendency to fill in the facts is how memory works.

DW: Is there any way to determine if the filled in memory is correct?

Dr. L: In the lab we know because we have to tape but it's difficult to tell in the real world. There really isn't no way to tell the difference.

DW: Because people think they've seen it?

Dr. L: There's no way to tell.

DW: People do create false memories?

Dr. L: That's what the research shows.

DW: Honest people?

Dr. L: These are people that don't know that they have created false memory.

Juror #8 is fiddling with her hair again.

DW: Once memory is acquired, can it be corrupted?

Dr. L: Yes. [...] Sometimes people are exposed to post event information. That is, they get exposed to new information that they are given. New information or they hear another witness. That post (information) can (possibly) destroy (their previous memory).

10:21 am: Louis Spector and Frieda arrive in 106.

DW: So even if memory is fresh it can be affected by other factors?

Dr. L: Yes.

DW: Not anything nefarious?

Dr. L: Yes.

Dr. Loftus clarifies that she doesn't study lying. There are other professors who study that.

DW: Your studies are mostly of honest people try to do an honest job?

Dr. L: Right. [...] Leading questions show the witness can succumb to post event information.

Dr. Loftus gives the example of lab tests they have done with suggestion. Having a subject watch a video of a car stopping at a stop sign and then asking them about the car at the yield sign.

Dr. L: We can do it to ourselves. Our own inferences and events can distort our own past memories.

Next is a whole discussion about how the level of confidence on one's memory is associated to accuracy.

Dr. L: The level of confidence is only weakly related to accuracy. [...] Confidence is malleable. [...] You can make someone more confident via your feedback.

DW: The mind can amend it's own memory?

Dr. L: Yes.

10:29 am: I observe Tran Smith whispering to Spector and then right afterward, placing his hand on Spector's right shoulder for a moment. Rachelle's eyes are closed.

DW: There can be negative suggestion so that a witness can change their memory?

Dr. L: Absolutely. There was a study by Wells at Ohio State University.

DW: After the first retrieval, memory can be affected and at subsequent retrievals?

Dr. L: Things that happen at subsequent retrieval states can act like (post additional information is added).

DW: The number of times something is said, does that tell us something about accuracy?

Dr. L: No, it's not related.

DW: What about confidence?

Dr. L: You're a little bit more accurate if you're confident But the connection is a weak one.

DW: Confidence is malleable, what does that mean?

Dr. L: It can be changed. Just like accuracy.

I take the time to look on over at the jury. #8 and #9 are not taking notes. #10 has his had over the lower part of his face. To me, #5 looks like she has a frustrated look on her face.

An example of police line ups is given and that clapping occurred after an identification. Dr. Loftus states that external event, "...could have an effect on memory." I think there might have been a few more questions and then the direct exam is finished.

10:44 am: The morning break is called. Weinberg asks that the diagram that Dr. Loftus drew be admitted into evidence. Truc Do, Jackson and Weinberg talk in the well. I believe I overhear Jackson ask about Dr. Loftus's fees. $500.00 an hour. Weinberg greets Linda Deutsch. Linda and Harriet Ryan ask him some questions. I ask Jackson if he's celebrated his new position yet. He indicates that he really hasn't had the time since he's been up very late working on this information. "This stuff, the language, it's so archaic," he replies. Jennifer Barringer approached Harriet Ryan to speak to her. Linda Deutsch asks about Dr. Loftus's CV, and then I see Linda Deutsch speak to Dr. Loftus.

During the break, I get the opportunity to meet two lovely T&T readers who drove all the way from Costa Mesa to attend the trial. We discussed the jury instructions yesterday and what might happen. The involuntary manslaughter charge is the one that has everyone talking. Because of that I will add some more arguments that were presented on Wednesday so you can get a flavor of how the arguments went and what the issues are, specifically.

Fidler stated yesterday that, "The decision (Lee) isn't easy to understand the basis (of adding involuntary), but where's the difference? (Between Lee and Spector.) There are some more known facts with Lee."

Weinberg pointed out yesterday in one of their many arguments against is that there are, "...two significant differences between this trial and the last trial. The court is going to give an 1101(b) instruction that states Spector's prior history can be taken into account. So, you're saying on one hand it's an accident, (involuntary) and on the other hand you have the 1101(b) showing an absence of mistake." Weinberg goes over the prosecution's theory in the last trial about the blood evidence and what it proves. "In this case, this trial, (the prosecution states) all this blood evidence is only explained (by the gunshot, back spatter), but we also have Ms. Clarkson grasping each others hands and the gun went off. [...] You can't look at all that and conceive there was a brandishing." Weinberg goes over all they new prosecution theory about the physical evidence and continues, "Because the prosecution said there was a struggle and it only happened this way (you can't then also argue brandishing)."

Truc Do then presents an excellent argument describing the differences and that "...at minimum, he pulled the gun."

Dennis Riordan argues, "There's no way to connect this brandishing with the gun inside the mouth." Fidler responds with, "Clearly with Lee, it's up against the head. That goes beyond waving the gun around. That goes beyond brandishing. [...] In Lee, (it's the) same. There's no substantial brandish because it's a contact wound."

Riordan continues, "The act of a gun in the mouth is not a misdemeanor. [...] But if you've got a crime that can't be categorized..." Weinberg adds, "The Lee case doesn't stand for... [...] But yet the court say you should give this [...] under the defense request. [...] Lee is concedingly opaque." Jackson states, "I will simply add that the brandishing begins with Lee. A murder gets through brandishing, assault, and then gets to murder."

The defense argues that in Lee, there very clearly was a struggle. (And this is true. In Lee, another witness was present who saw Lee retrieve the gun and go after his wife; the daughter. We don't have that here.) The arguments continue, and I believe this statement is by the prosecution. "All we know for certain is, (the gun ends up in the mouth). How did it get there? We don't have to define that. Did he do it with conscious or unconscious disregard?" Weinberg responds to that with, "You can't have opposite theories that are mutually exclusive."

Fidler asks, "What if Lee stands for the proposition that (if) you don't have a witness [...] that in every case Lee stands for you have to give a lesser included?" Riordan responds with, "If Lee stood for that, it doesn't state it." There were a few more arguments after that and then Fidler states that he is going to hold off unless someone can give him case law where a defendant requested lesser and it was turned down.

11:06 am: The jury is called. A few people tell me they think Dr. Loftus did a good job on direct. A man who came in yesterday carrying a book and said hello to Susan is back in the courtroom sitting by Rachelle. The bailiffs tell us everyone in the courtroom has to move down all the way to the left. They must be bringing in a class of students. Yes. That's exactly what happens.

11:08: Fidler takes the bench.

Jackson steps up to cross Dr. Loftus.

AJ: You have been supplied with certain documentation, certain reports (have you not)?

Dr. L: I was provided with the 911 transcript and interview transcripts.

AJ: The words ADRIANO DE SOUZA never came out of your mouth, correct?

Dr. L: That's correct.

DW: Your Honor, may we approach?

There's a bench conference. I can see Jackson presenting his arguments at the bench and then it's over.

Fidler: We're going to strike the last two questions and answers.

AJ: You're not here to render any kind of opinion in this case?

Dr. L: Correct.

AJ: You're not testifying whether someone is right or wrong [...] (You're stating about certain) specific (situations?) and stimuli that might affect memory in general?

Dr. L: That's correct.

AJ: Several of the studies that you've dealt with involve repressed memory prior to 1990?

Dr. L: No. After 1990 I focused on memory that happened years ago.

AJ: After 1990, much of your memory focused (on recovered memory)?

Dr. L: Most of my work is on malleable memory and false memory.

AJ: Most of your work is on child molestation memory that comes to the forefront?

Dr. L: Most commonly they are suggesting there was years of abuse and now (years and years later) they are just remembering.

Dr. Loftus talks about how roughly half of her testifying is in civil verses criminal cases. She's testified in criminal cases about 100 times.

AJ: The lions share of your criminal work is for the defense?

Dr. L: I've consulted with the prosecution probably five to six times but have only testified once for the prosecution.

AJ: Your a professional defense witness insofar as ....

Dr. L: Only once have they (prosecution) asked me to testify. [...] I'm not knocking on their door.

AJ: This is your book (one of the 22), Witness For The Defense, with your picture on the book?

Dr. L: Well it's an old picture.

AJ: Do you believe that it's your job to be as neutral and as independent (as possible) as a (previewer?) of facts?

Dr. L: I try to be.

AJ: Have you admitted in the past that it's difficult for you (to remain objective)?

Dr. L: Yes, if I believe if the person is innocent. [...] But sometimes it's hard.

AJ the reads a quote from one of her books and asks her if she agrees with that.

Dr. L: I would agree with myself.

AJ: You're certainly not suggesting that any witness in this case is wrong?

Dr. L: Correct.

Jackson asks Dr. Loftus to explain "verbatim" verses gist.

Dr. L: Verbatim is the actual words that are said and gist is the (overall scene).

AJ: Verbatim is sometimes called surface words?

Dr. L: I don't think I've used "surface words" but have seen verbatim verses gist.

AJ: Unless you have a special reason to remember those words, they drop off after a few days?

Dr. L: Yes.

AJ: Gist lasts longer than verbatim?

Dr. L: Yes. Gist; that's true. Gist lasts longer than verbatim.

AJ: Lets talk about out of context events that might stay in memory longer.

Jackson gives Dr. Loftus an example of a statement such as, "I got a flat tire last night."

AJ: The gist could be?

Dr. L: Car trouble.

Jackson then goes through some examples of variation of that statement that could be remembered.

AJ: Is there anything different in the gist?

Dr. L: There is a similarity in the gist.

AJ: Dr. Loftus, let's say I told you I got a flat tire last night. And within seconds, you called the Judge about that flat tire. Because you're the one making the information to the Judge, that would not be subject to post incident information?

Dr. L: That's correct. [...] Yes, it would be less subjected to post event (information).

Jackson clarifies that quite a few of Dr. Loftus's studies have been on weapon focus. That she has performed a lot of studies on what people fixate on.

Dr. L: Yes. If there's a weapon people fixate on it. [...] If there isn't one there, then ....

The eye tends to literally drop to that weapon and how well they (the subject) can identify (it). Dr. Loftus states this results in a, "....reduced ability to focus on other aspects such as the face of the individual holding the weapon."

Jackson goes over with Dr. Loftus the phenomenon of expectation. Someone seeing a weapon where none exists and there is an expectation of that. People can mistale an inoculous item for a weapon. Two studies are discussed. The first study investigated information of "racial cues" on identifying weapons. People misidentified tools as guns when identifying a black man. Jackson asks her about a black face verses a white face. Dr. Loftus states, "There's something about being primed with a black (face) and an innocent object (that get's transposed), primed with a gun."

The second study she did and wrote about was "Cross a Thin Blue Line" (I think that's the full name of the study). This was the study of police officers who shoot a white verses a black individual. There is a racial inherent in the study. Dr. Loftus states, "Those are some of the studies. I also mention the 1940's study, (I stated earlier)."

Jackson now asks Dr. Loftus about the connection between confidence and accuracy, and the fact that there are other studies that show there is a strong link and not necessarily a weak one.

AJ: There is a whole different group of psychologist that disagree. That there is a collection of psychologists taht there is a strong correlation between confidence and accuracy?

Dr. Loftus explains that there was a review that took every study that looked at the connection between confidence and accuracy and in averaging out all these studies, there is a connection, it is slightly higher for those with confidence but the overall review of all the studies...the majority of psychotherapists agree. The connection is weak.

Jackson then confronts her with a quote from her book "Eyewitness Testimony" that there are other studies that sow there is a high correlation between accuracy and confidence. "Did I read that correctly?"

Dr. L: Yes, you read that correctly.

So what everyone in the room takes from this is that there are a wide variety of studies that look at confidence and accuracy.

Now Jackson goes over stress and memory. Jackson put up on the ELMO an image from one of Dr. Loftus's books, it's Yerkes Dodson Curve. And it describes the level of memory performance upon waking, increase awareness, alert arousal (the optimum time) and the downward curve where extreme stress will bring it down. The best description of the curve would be an arch, like the one in St. Louis, MO. The top of the arch is "alert arousal" and as more stress is added, then then the level of memory performance decreases.

Pat Dixon enters 106.

The "alert arousal" is where you are at your peak.

Jackson gives an example of someone just holding a gun and not doing anything with it. He asks at what point on the curve would the level of memory awareness be. Then, he demonstrates pulling the gun on someone.

AJ: But now, I point the gun at you and that certainly would raise someone's (stress levels)?

Fidler: And on that note, we'll break for lunch.

During the lunch hour, I almost miss eating, choosing to have a long chat with Ciaran McEvoy, reporter for the Los Angeles Daily Journal on the front steps of the Criminal Court Building. Ciaran interviewed Weinberg several months ago and wrote an article featuring him. Ciaran found Weinberg to be a very likable person. When he was doing background for his article, Ciaran thoroughly researched the allegations that Weinberg and a co-counsel received under-the-table monies from a drug trafficker they represented. There was an order to show cause hearing in Federal court in San Francisco. Weinberg hired John Kerker, considered on the nation's top trial lawyers to represent him. The Judge found the allegations to be meritless. This all happened quite a few years ago during the federal government's "war on drugs" campaign. I want to make it clear that Weinberg was never charged with any wrong doing.

I had just enough time to grab a quick lunch and make it back inside 106 before court resumed. In the second row to my left of where I usually sit is Steven Mikulan from the LA Weekly. I give Steven a brief update on the latest with the jury instructions as well as what Dr. Loftus has testified to so far.

1:37 pm, Fidler takes the bench.

Jackson picks back up where he left off discussing stress and it's effect on memory performance. Dr. Loftus states that in relation to Yerkes Dodson Curve, "I can't precisely place things at one specific spot (on the curve)." Jackson then reads from her book, Eyewitness Testimony. I think I have the quote right he read: "When a gun is present there is a gun focus perphrial...." This was in regards to weapon focus studies. In going back to the example Dr. Loftus gave of the boy being shot in the face in the bank robbery film, Jackson asks, "But they didn't tend to forget the boy shot in the face?"

Dr. L: Correct. I didn't see any evidence of that.

AJ: As yoy get new information about events, your stress level can change?

Dr. L: Yes.

Jackson then goes over with Dr. Loftus what an "orienting response" is and "seeing things in and out of context." Jackson asks about examples of out of context events or items.

AJ: Some studies have been done for things that are novel and out of context?

Dr. L: We know that the eye is drawn to the unusual object of the scene. We know that's to be true.

AJ: An orienting response actually leads to higher levels of (accuracy)?

Dr. L: I don't know (that study) speficially, but I agree; it's drawn (the eye) to an unusual item at the scene.

So, in essence, it's possible the eye will be drawn to an unusual object.

AJ: And most of your study....?

Dr. L: Well, we do a lot of study of other items; stop sign to yield sign; car yellow or green.

AJ: Another group works on study memory and spoken statements? [...] (And the) role of arousal for the studies in conversation? [...] High interactional statements and low inter-actional statements?

Dr. L: I don't know those terms. I don't know what them mean.

AJ: Statements that deal with a great deal of speaker and listener interaction?

DW: Objection! Sidebar.

AJ: (Are you aware of) studies that focus on remembering? That study shows that (certain) words have a higher memory impact in conversation?

Dr. L: That wouldn't surprise me if that situation was found.

Jackson goes onto ask if Dr. Loftus is familiar with these studies that shows the information has a higher practical content [...] that surface words [...] have an impact on the person.

Dr. L: If you have a study that shows that....

Jackson gives the example of being called into her bosses office and her boss tells her, "I have cancer." That's a type of conversation that would stick with someone, because it's conveying dramatic, high impact information. ( Through many of Jackson's examples, he would use that example of Dr. Loftus being called into the bosses office and the stress level that might occur. For some reason, Dr. Loftus all through out Jackson's cross was not very receptive to these examples of being called into the office.) Jackson makes the point that statements with high impact words in out of context situations would stay with an individual longer, because they have an impact on the listener.

AJ: (That the) familarity of the speaker has a higher level of (recall experience?)?

Dr. L: That would not surprise me.

Jackson asks Dr. Loftus if studies show that a higher level of intelligence correlates to better memory (retrieval). Jackson give an example of someone who is college educated, been in the military.

DW: Objection!

Fidler: Overruled!

AJ: Higher levels of education do indicate having higher levels of memory recall?

Dr. L: Yes. That's the general understanding.

Jackson asks several more questions that I don't get and then his last question to Dr. Loftus:

AJ: You're not saying that anyone in this case is right or wrong?

Dr. L: Correct.

Weinberg gets up to redirect his witness. He brings up out of context statements that Adriano De Souza made to Detective Tomlin.

DW: What if someone says at one point "not sure" then later says they are?

Dr. Loftus says there might be a situation where in their confidence, they're not sure.

The afternoon break is called at 2:45 pm. The two ladies who drove up from Costa Mesa say goodbye. They are leaving early to beat the traffic. During the break I ask Josh (Linda tells me he prefers to be called Joshua) when does he start working as a DDA. "In June," he replies with a big smile on his face. He will start in misdemeanor court, which is where all new DDA's start. There was a point in Jackson's cross where he did get confused with one of Dr. Loftus's quotes from her many books. He was asking her about it but it was from a book of hers that he didn't have so he wasn't able to show it to her.

In my opinion, I don't know how this helped the defense that much. Dr. Loftus admitted that she doesn't specifically study about remembering words, and that she wasn't an expert on that. And, she wasn't giving the jurors an opinion on any individual's specific testimony. I note that Harriet Ryan has left already but Linda Deutsch is still here. Steven Mikulan left at the break. I will add that Dr. Loftus at times was very funny on the stand and appeared to communicate well with the room. There were many times though when Jackson asked her a question about something she wrote and she said she couldn't remember.

3:07 pm: Fidler retakes the bench and Weinberg continues with his redirect.

Weinberg then turn's Jackson's example of a flat tire around, giving a different hypothetical by replacing the statements with similar statements that Adriano De Souza gave, such as, "... they said they think they had a flat tire."

AJ: Objection! Incomplete hypothetical!

There's a sidebar at the bench. Dr. Loftus stares at the jury during the arguments at sidebar. When Weinberg returns to the podium, he changes his question. There are quite a few more questions but I'm tired and I don't write them down. When Weinberg is finished, there is no recross from the prosecution. Weinberg rests his case and the people call Detective Steven Katz, their second rebuttal witness.

Truc Do presents the witness. Officer Katz works for the LA Co. Sheriff's office at a Leutenant. He is no longer a detective. He is a shift watch commander. He's been with the department 26 years. He was asked to conduct an investigation at the house after the shooting death of Lana Clarkson. When he first arrived, he did not collect any evidence, he just examined items visually. Truc Do states that Officer Katz has been asked to testify about three things: 1.) When and how many times did he handle the gun; 2.) (I miss this but I believe it's about his documentation of the evidence he observed); 3.) What lights were on outside and immediately inside the residence.

Officer Katz states that the coroner's staff arrived at 5:45 pm and the gun was left in place for the coroner to observe. The gun was handled by himself once at 6:00 pm.

TD: Did anyone else handle that gun?

SK: No.

TD: So just once, and no one else?

SK: Yes mam.

Once the coroner left the scene, he described everything that was going on and Detective Lillienfeld was writing evrything down that he stated was going on. He was describing the blood to Detective Lillienfeld who wrote it down. The gun was left in place for 12 hours. The blood on the gun appeared to be dry.

SK: There was no transfer of blood onto my gloves from the firearm.

Truc Do has Officer Katz look at his notes and Detective Lillienfeld's notes. Katz goes over his notes and how he wrote his notes. He describes leaving space between each item he noted on his pad because he knew he would be going back later, and filling in informaiton.

SK: But I left space because i knew i would be puttin in evidentiary other info at another time. That's pretty standard and how I do it.

Later, he transferred some of the information notes from Detective Lillienfeld's notebook to his at a more convenient time. Truc Do asks him if he went over any documentation while he was waiting out in the hallway all day. Katz states, "I went through my notes while waiting."

Katz details what lights were originally on at the scene, and that he was there (until?) 11 pm. He states that he took notes as to what lights were on, when the detectives were at the scene. Katz explains how the scene was "secured." The outside sconce lights right outside the rear entrance were on.

TD: Lights were not turned on by you or any officers?

SK: Yes man.

Katz testifies that the outside porch ceiling lights were also on. Inside the foyer, a sconce light directly beside the rear entrance was on. The candle sconces were also on.

That's it for direct and Weinberg starts cross.

Officer Katz states that he arrived at the scene around 1:30 or 1:15 pm. "I'm not sure when Tomlin or Fortier arrived. The lights in the sconces were on when they got there.

DW: Do you know whether the front door was open?

TD: Objection!

Fidler: Sustained!

DW: Do you know whether the Alhambra Police (when they) arrived if they turned on the lights?

SK: I don't know.

With respect to the gun, Weinberg confronts him that he put the information about bullets, that was put in his report on page 11 (the typed report), then the put in the report, later, about Dr. Pena.

DW: Why would you write in your hand writen notes...

Weinberg asks this question with an incredulous tone in his voice. Weinberg then puts up a series of photographs that were taken of the gun while Katz is holding it. There are quite a few photos of the gun taken at the scene.

DW: How long did you handle the gun?

SK: Maybe a minute.

DW: All those photos, taken within a minute?

SK: Yes. I was [....] The photographer was moving around me, taking photos as I was handling the gun.

Weinberg asks him something about why he picked the gun up at that time and Katz replies something to the effect of, "If you knwo of some other way to pick up the gun, I'd like to hear it."

DW: Bob Kyle stated he arrived at 6:00 pm and he testified that the gun was already picked up.

TD: Objection! Your honor, this is not appropriate.

DW: Are you aware that Bob Kyle testified that when he arrived the gun was picked up? [...] (Are you aware that) Dr. Pena testified they arrived at 5:45 pm, and they were not allowed into the house?

SK: We were not finished. [...] When they cam in the gun was still there.

Weinberg now confronts Katz with Jamie Lintemoot's testimony, where she said that when they arrived it had already been removed by detectives.

Truc Do asks to approach I think after this question.

Weinberg then confronts Katz with his last note in his notebook where it says at 18:00 hours (6:00 pm), "Recovered Weapon." Weinberg confronts him with "why" he didn't add the word "examined" when he indicated he recovered the weapon. To me, Officer Katz replies with one of the best lines of the trial, not only by what he says but the way he delivers it. "Mr. Weinberg, I know it upsets you that I didn't write examined ... (but the truth is, that's when the weapon was recovered and documented).

I believe there is redirect but I don't write any more notes. Court finishes a few minutes before 4:00 pm. The jury is excused and ordered back on Monday at 9:30 am. There is a short discussion about the prosecution's rebuttal case. They think they will finish testimony next week and we may get to argument by the end of next week.

It's at this time that Fidler addresses Spector and he formally gives up his right to testify. Weinberg tells Wendy that Spector has a "medical appointment" Monday at 3:30 pm. They will need to leave court by 2:30 pm on Monday to make that appointment. As I was leaving court, I see that Dr. Loftus was still on the 9th floor. I think she might have gone in and listened to another trial in another courtroom. I see her approach the defense team, smiling, and then sit with them for a bit before I stepped into the elevator bay to go home.

There is a T&T reader who has been transcribing some of the relevant police reports containing Spector's statements at the scene, that are in PDF format on the LA Co. Superior Court web site into text format for me. I hope to get all her efforts into a blog entry sometime soon.

Here are the cases that are being used to decide on jury instructions.

People v. Sears (1970) 2 Cal.3d 180, 190 [84 Cal. Rptr. 711, 465 P.2d 847] This case is being used by the defense to give a special instruction.

And the other case having to do with adding a lesser charge in jury instructions is People v. Lee. Here is the beginning of the actual decision: (Thank you so much to the individual who forwarded the text of the complete ruling to me.)

THE PEOPLE, Plaintiff and Respondent, v. STEVEN B. LEE, Defendant and Appellant.

No. S060352.

SUPREME COURT OF CALIFORNIA

20 Cal. 4th 47; 971 P.2d 1001; 82 Cal. Rptr. 2d 625; 1999 Cal. LEXIS 1309; 99 Cal. Daily Op. Service 1644; 99 Daily Journal DAR 2094

March 4, 1999, Decided

SUBSEQUENT HISTORY: Rehearing Denied April 14, 1999, Reported at: 1999 Cal. LEXIS 2192.

PRIOR HISTORY: Superior Court of the City and County of San Francisco County. Super. Ct. No. 145602. Lenard D. Louie, Judge.

DISPOSITION: The judgment of the Court of Appeal is reversed.

SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY

In a prosecution for murder, defendant was convicted of the voluntary manslaughter of his wife. There was evidence that defendant quarreled with his wife, the quarrel escalated into shoving and pushing, defendant broke off the argument, defendant went to another room and obtained a loaded gun, and the gun was fired at close range while in contact with the victim's head. There was also evidence that defendant was intoxicated. (Superior Court of the City and County of San Francisco, No. 145602, Lenard D. Louie, Judge.) The Court of Appeal, First Dist., Div. Three, No. A070167, reversed, concluding that even though the evidence was sufficient to support a conviction of second degree murder, defendant's conviction of voluntary manslaughter was reversible, because the evidence of provocation was insufficient.

The Supreme Court reversed the judgment of the Court of Appeal. It held that the Court of Appeal erred in reversing defendant's conviction. The lead opinion stated that the Court of Appeal erred in reversing the conviction on the ground that the evidence was not sufficient to establish that defendant acted under provocation by the victim. Further, the Court of Appeal erred in finding that, because the jury might have convicted defendant of involuntary manslaughter had such an instruction been given, the error in permitting the jury to return a voluntary manslaughter verdict was prejudicial. The verdict established that, in convicting defendant of voluntary manslaughter under the instructions given, the jury necessarily found all of the facts necessary to establish second degree murder even if the jury incorrectly believed that malice was negated by heat of passion or intoxication. Therefore, although the trial court erred in failing to instruct on misdemeanor manslaughter as a form of involuntary manslaughter, that error could not have prejudiced defendant, because the involuntary manslaughter instructions that were given permitted conviction of that offense on other proper theories. Thus, since the jury rejected a finding of involuntary manslaughter, and since the evidence was sufficient to convict defendant of a greater crime than that for which he was convicted, any error was favorable to defendant. He could not complain of errors favorable to him. (Opinion by Baxter, J., with George, C. J., and Chin, J., concurring. Concurring opinion by Brown, J. Dissenting opinion by Mosk, J., with Werdegar, J., concurring. Dissenting opinion by Kennard, J.)

13 comments:

Anonymous said...

I wonder what possible good Elizabeth Loftus was supposed to be doing for the defense? They didn't address the de Souza thing directly, and in fact she seemed to support the theory/fact that if something was really shocking that it is often remembered better. Last trial the defense focused on his English. This trial it's supposedly memory. The problem is, that the jury is people and they know they can remember key events in their own lives, especially powerful key events like a wedding, funeral, big sports event. And something like that, you'd replay it in your mind.

I personally think that at this point Weinberg knows the case is lost and is now hoping either for a mistrial or for some lesser sentence.

The jurors must be awfully happy to see this thing wrapping up. It sounds as if the day with Loftus must have been awfully tedious.... and from what I've read, rather pointless.

Christine

Anonymous said...

Thank you so much Sprocket.

Anonymous said...

Sprocket,
I am confused about whether a manslaughter conviction will be allowed. "Fidler states that he is going to hold off unless someone can give him case law where a defendant requested lesser and it was turned down." Did you mean that he is going to make the decision at a later date?

Also, I agree with Christine about the Loftus testimony. What was the purpose? I can not imagine that anyone would discount the De Souza testimony because of generalized testimony like this.

Ray

GuiltyIndeed said...

Thanks for great reporting

Anonymous said...

I assume the cop's line to Weinberg about knowing any other way to pick up a gun, was the line you referred to last week?

Anonymous said...

Thanks Betsy! This was a day you did NOT take a lot of notes? wow. Like Ray, I am a little confused: isn't the DA the side that is requesting a lesser charge? Why would a case where a defendant requested lesser come into play?

I see those commercials with Robert Shapiro and I grin a little. He and PS has been stuck in each others's craw for years, with no end in sight. They deserve each other!

I guess next up is Nili and some others that Pie bad-mouthed PS to. Wonder if Pie avoided a subpoena up to this point.

Does anyone know the sentencing date for Lori Drew (the myspace suicide case)? It is a different court there, of course, but I can't find anything recent on it when googling.
Wes J.

Anonymous said...

This whole tactic of trying to discredit DeSouza's testimony by challenging his memory is pointless for one simple reason: Within minutes of the shooting, DeSouza was on the phone with 911 saying his boss shot somebody. So it was a tramatic event AND it had just happened moments before.

The only bright sides to Dr. Lofton's testimony is:

1) It makes the defense look desperate when they grasp at straws like this.

2) It wastes more of PS's money.

shari said...

Sprockie, that was a great line from a frustrated cop just doing his job, and getting his bones picked apart by a lawyer trying to get a real slimeball out of trouble. I hope the jury got a chuckle out of it. Great job!!!!!!!!! S.

Anonymous said...

Phil having doctor appointments worries me. I hope he doesn't get himself admitted to some hospital just to stall this trial. Thank You Sprocket for a job well done.

Anonymous said...

Since it is the jury’s job to analyze the evidence in the case, why shouldn’t they have more than one count to choose from? The state might think it was first-degree murder based upon the evidence but the jury might see it as second-degree or less. Isn’t that the whole point, for the jury to make a determination based upon the facts as they see them? To me, that is a simple argument with which to counter Whineberg.

Sprocket, thank you for your wonderful work!

woot said...

I think the witnesses that called themselves friends of Lana got an eye opening experiance from TD, as did the experts and everyone else TD handled in this trial. Pretty sure Pie saw this and wanted no part of it. What a powerful team, AJ and TD. They took over the experienced experts with what appeared to me more knowledge in thier (the experts) own field. What a team!

Anonymous said...

Wes J,

The sentencing hearing in the Drew case is currently set for April 30th; however, there is still a Motion to Dismiss before the court that the judge has not ruled on. There was a hearing in January and he said he would have his ruling "in the next couple of weeks". I haven't been able to find anywhere if that ruling has been made or not.

On Spector:
I think that by having a lesser charge be an option for the jury, they decrease the risk of having a hung jury or a mistrial declared. I'm sure they REALLY don't want to run the risk of having to try him a third time. It would be interesting to know what special instructions Weinburg is wanting. Also, (at least in Texas) the attorneys have no control over settings in other cases. If you are in trial, or have other hearings set that conflict with a court setting, you can file a Notice of Conflicting Setting and have it moved. It's really not a big deal; it happens all the time.

Sprocket said...

Professor Loftus:

In my mind, (just my opinion), Loftus was not able to help the defense discredit De Souza. IMHO, There has not been a single witness that has been able to discredit De Souza's statement he said Spector say to him. Think about that. His testimony stands alone and was unimpeachable.

Loftus did agree with Jackson that highly charged words and items "out of context" will be things that are remembered more. The example being if you were called into your boss's office and he told you, "I have cancer." That's a highly charged statement with powerful information. You'll remember that and it will stay with you a long time. You won't "forget: that.

You'll remember that more than the peripheral details. Let's talk about what a peripheral detail is: the "a lady on the floor" would be such a peripheral item. The defense made a big deal about this. The problem is, De Souza visually described to Kennedy and Pineda the position he saw the body in; he described blood on her face. He clearly saw Lana, dead in the foyer. That's what Ester (Pineda) Rodriguez testified to on the stand as they went through that audio tape a third time. She verified that she was verbalizing on the audio tape what De Souza was visually describing and the position of Lana's body.

Manslaughter:
The Judge will rule this week on whether or not the jury instruction will be added.

Lori Drew:
This was in Federal Court, in a building 3 blocks away from the State Criminal Court. I don't know the status of this case.