Wednesday, May 23, 2007

Trial Notes, 5-23-07: Judge Fidler's Evidentiary Hearing: The missing evidence

A special thanks to Sherbie @ Court TV, for helping me with the actual transcription and edit of the Court TV Extra Coverage.

I have in my notes a partial quote by the Judge, (his role) "...safeguard the proceeding to ensure that nothing improper occurs." The judge cites several cases to support his ruling (for even holding the discovery hearing). At the point, Alan Jackson gets Sara Caplan kicked from the courtroom while he reads these rulings. This was all in relation to a last minute attempt by the defense, questioning the entire evidentiary proceeding to begin with. Judge Fidler, in response to that (reading the case law, where one prior ruling said, in conclusion for the court to "take action,") says, almost irritatedly to Mr. Plourd, "That's exactly what I'm doing (re, this proceeding). I'm taking action."

Sara Caplan took the stand again, and the defense asks her a few questions. Then Alan Jackson asks her I believe, one question.

The judge, not satisfied, asks Sara Caplan some questions.

J: Why are you changing your testimony?

J: Did you see Dr. Henry Lee pick something up and put it in a vial?

A: Yes.

The judge looks over her prior testimony and reads some of it back to her, and asks another question or two.

Then Alan Jackson gives his arguments to the court, going over the testimony that supports something was picked up, and never turned over to the prosecution. AJ, in questioning Dr. Lee's testimony says this great line, "Is Dr. Lee lying, or is he incompetent?"

Then Plourd gets up to argue the defense position.

"There were a number of criminalists at the crime scene. (snip) That piece definitely not there when those criminalists were there. (Referencing Sara Caplan: It was) Not her responsibility to observe or supervise Dr. Lee. There's no evidence she watched Dr. Lee's testimony on TV. (AJ said she probably did in his closing, which is why she was waffling on testimony today.) They've (prosecution) clearly lost something. There's no evidence that the defense lost anything. " Plourd keeps saying "Dr. Lee testified to..." Plourd's trying to say there's no clear evidence anything was lost by the defense. When Plourd sits down, Brunon stands up to speak. "From a legal point of view, the whole issue has been speculative. (snip) And, Mr. Jackson says, the case is damaged. We ask, In what way? Suppose Dr. Lee did pick something up and did lose it. Again, how does that specifically hurt their case?"

Dixon jumps up and says, "It goes right to the heart of this case!" (I don't have any notes as to what else he said after that.)

Nobody adds any more comments to the judge.

Then the judge says he's ready to rule.

Judge Fidler: "Lets review the facts, and let me tell you what I think the facts are. Famed situation from the movie Rashomon. Diamond said a tooth was found. (snip) Stan White said a fingernail. (snip) Sara Caplan saw an object. (snip) Dr. Lee testified he didn't find anything. He never had such an object."

This is now where, I believe the Court TV video coverage picks up.

Judge Fidler:
Dr. Lee testifies he never did that at all. Anything he gathered was placed in paper bindles. He didn't place any piece of evidence in a vial. The only thing he placed in a vial were the swabs that come in that vial that he used for presumptive testing, and he has testified very clearly he never had any such object. My duty, to the best that I can, is to resolve what the facts actually are because you have differing versions -- it's very clear. I wasn't there, you weren't there. What was done when people -- and they're not -- these versions, to me, are not reconcilable. It is not simply saying that everybody saw the same thing but they're describing it differently. That's very hard to do based on what's been presented to me.

So let me go through the witnesses and tell you what my conclusions are:

Mr. Diamond: In trying to judge his credibility, he's the person that interjected himself into this case to the degree that he was there at the scene. He was a research attorney or a law clerk -- he wasn't an attorney, because he's not an attorney -- he was serving as a law clerk. He comes forward some four years after the event and basically tries to tell the District Attorney, "There's something bothering me. I need to tell you things about the case you need to know."

The District Attorney does exactly the right thing because they realize what his position is, and he may be getting into privileged areas. They basically say, "Don't tell us, we don't want to be infected by this, if that's what you're doing. We'll set up an alternative procedure," which they do. They have the court appoint a Special Master which is the appropriate -- in my mind -- way to do it to protect privilege.

The Special Master makes an inquiry and quickly realizes that, despite his solemn obligation -- and those of us who all do criminal law and have for -- I couldn't add up the number of years between all of us sitting here in the courtroom because it would go into the hundreds -- realize that if you're going to practice criminal law, you may hear things or see things that you don't like; but when you represent a criminal defendant, there are privileges that attach to that, and you don't talk about it to anyone outside the immediate -- if you will -- "family," the defense team. And if Mr. Diamond is not happy with what is required of a criminal attorney or those working for a criminal attorney, then his choice is to not practice in that area of the law.

Privileges exist for a sound reason, because we want people -- whether it's the attorney/client privilege, to be able to talk to their attorney freely, without fear of being, having their words turned against them; or whether it's a priest/penitent privilege where someone wants to be able to talk to their spiritual advisor and not worry that it's going to be used against them; or whether it's a doctor/patient privilege, and somebody wants to be able to talk to their doctor without fear of that being used against them -- because those all have higher reasons why we do that. And if Mr. Diamond doesn't recognize that obligation -- and certainly in a report prepared by Professor Levenson, it appears to me that he was attempting to breach that privilege, and he wasn't allowed to.

Certainly, Professor Levenson informed me, and my words to her -- and she doesn't need to be told; she's a professor of ethical advocacy at Loyola, so certainly if anyone knows that field of law, it's her -- "We don't want to know; don't tell us. We don't even want to be -- we don't want to have to worry about evaluating it; you don't go into privilege." But in that, in doing so, Mr. Diamond indicated there might be something that was not privileged, which is the alteration of evidence, which is not covered by the privilege.

As the cases -- and I've cited the cases: Meredith and Fairbanks and other cases, and State Bar opinions and ABA opinions -- have all indicated that once (as the Fairbanks case citing Meredith said), once a defense attorney chooses to alter, manipulate, fabricate -- do anything with a piece of evidence -- that's a tactical decision and the privilege is waived. So Professor Levenson's inquiry went further. Mr. Diamond was called to the stand. Now, in judging his credibility, I've got to look at the overall picture, and I think I've stated, from what it appears, what he was trying to do, I have to weigh that in his credibility, in evaluating his credibility because -- and plus, I can evaluate and judge his credibility based on his appearance on the stand.

There are lots of things about Mr. Diamond -- whatever he saw, may have seen, thinks he saw -- that, certainly, his credibility does not go unquestioned. His testimony, the manner in which he testified -- the manner in which he attempted not to testify, as well -- certainly, I will judge his credibility. He is the only person that placed any object in Dr. Baden's hands, so I can't find that to be credible. No one else has stated that Dr. Baden had anything to do with this, and I'm not going to make any findings against Dr. Baden. And it has nothing to do -- we're in an awkward position; this is very rare, where the wife of the witness I'm talking about is sitting right in front of me. And I'll be real candid: If I thought Dr. Baden was being untruthful, I'd be the first to say it. So be it, that's the way it goes. But I can't find that, and I'm not finding that.

Then we have the testimony of Mr. White. Now, again, in judging credibility, let's say that Mr. White has a large personality. I don't think I know Mr. White from before. I just have to watch how he testifies and how he carries himself. I also look at the fact that, certainly, to a degree -- not in his testimony here -- but he certainly interjected himself into the case because he wasn't contacted by anyone to do with the case originally. He called, by his testimony, Mr. Shapiro and basically offered his services. That doesn't mean he's credible or not credible. Some of what he says is consistent with Ms. Caplan's testimony. Some is not. So he's just a piece of it. If all I had was Mr. White, I'm not sure where I'd go with this case.

Then we have Ms. Caplan. I don't think anybody was expecting the testimony she gave the first time she testified because it was sort of going by rote -- "Did you see anything, did you see anybody take anything," and it was sort of "No, no," and then all the sudden, just before lunch, Ms. Caplan, "Yes, I did." And you could get whiplash from watching necks spin around on that one, because, clearly, I don't think that was going to be what anyone expected the testimony to be.

And to some degree, Ms. Caplan -- and I am sure she has indicated that she understands her ethical obligations, and if you heard what I said citing from Meredith and Fairbanks -- she put herself at risk by testifying to what she did, because she became aware that an agent of the defense, based upon her testimony, had -- if not clearly or explicitly, had at least implicitly -- violated that responsibility. And she testified to that. She did so, and I find her to be very credible. She's the most credible witness of all.

What she has is this object, which she cannot identify, which she -- clearly, Mr. White makes it a fingernail. He says, "I recognize it. It's a fingernail. I'm experienced," and it has what he testifies is "bullet wipe". I believe Dr. Harold said that's a bad terminology, but we know what he's talking about talking about -- that, basically, a bullet passed over this object, which he calls a fingernail, and left evidentiary traces. He says he's experienced, he recognizes and sees it and told Dr. Lee that. By his own testimony, Dr. Lee says, "No, that's not what it is," and makes an instant determination.

Then you have Dr. Lee's testimony. The Court certainly recognizes that Dr. Lee has a very large reputation. He is a world renowned expert. He testifies that he never put anything in the vial, and that is inconsistent with Ms. Caplan's testimony. And if I have to choose between the two, I'm going to find that Ms. Caplan is more credible than Dr. Lee. Dr. Lee has a lot to lose if this turns out to be true. His explanation for Ms. Caplan's testimony is, "I believe she's mistaken; it's an honest mistake." Well, if you listen to her testimony -- originally and again today -- it's not just a mistake. An object was taken, put into a vial by Dr. Lee, and no one has that object at this point.

So, in making findings of fact, I find the following:

That Dr. Lee did recover an item. It is flat, it is white, it has irregular edges. I am unable to say that it is a fingernail. It is the size of a fingernail, and that's all I can say. That item has never been presented to the prosecution. And those are my factual findings.

Now, we'll talk about remedies. Normally, the remedy -- when I say "normally," there haven't been that many cases; there are certainly recorded cases and reported cases, and we talked about those -- is for the Court, when it finds that an object has been secreted or kept from the prosecution, is to order the party who has it to produce it. That's what you do. That's the first remedy -- you say, "Give it over to the prosecution." The prosecution, in essence, concedes that object is no longer with us; that if it ever -- and, clearly, the Court has found some object existed, but there is no object to order Dr. Lee to produce. It would be a hollow order. To the extent that I can make an order, if Dr. Lee has this object, he is to produce it forthwith.

Now, if I knew he had it, and he didn't produce it, the remedy is contempt of court. I don't see going there because I don't think he is now -- I mean, if he has it, if it suddenly appears, I order it be produced. I don't see going to the contempt sanction because I think it would be useless. You don't impose contempt when it is useless and does not have the coercive effect that it was meant to have. I am not going to hold Dr. Lee in contempt.

So now we come to the position of, "What do I do -- what is the remedy, if any?" The remedy is -- and I agree with something Mr. Plourd said -- the People have presented a prospective jury instruction which basically has me tell the jury that I have made findings that Dr. Lee is not credible -- I'll paraphrase -- and to use it as they have set forth. That interjects me into the case to a degree that is inappropriate. Judges should not be a part of the case, and it substitutes my findings of fact for theirs. The jury is the fact-finder in this case. I make preliminary findings of fact as to what evidence may be put before them, but I don't make ultimate conclusions of that nature. It's inappropriate. It carries way too much weight, and also, it can't be cross-examined, it can't be, really, argued -- and that's inappropriate.

So I'm not going to tell the jury that I find Dr. Lee has withheld a piece of evidence. But the People, when he testifies -- if he testifies -- may present all this evidence to question his credibility. He may be cross-examined on it, and you may present witnesses -- the witnesses that have testified in front of me and any other witnesses that you choose. And the defense may present any witnesses that they choose on this subject. And the jury will be told -- and it must be limited under California law, the existing law -- and it's very clear when you talk about either untimely disclosure of evidence or evidence tampering, if the jury cannot trace this to Mr. Spector (and there is no evidence to support that whatsoever), then you cannot allow them to speculate or use it against him on a consciousness of guilt. They have to be instructed and will be told that the sole purpose this can be used for is the impeachment of Dr. Lee.

To the extent it does or does not impeach him, if the People choose to go there, then the jury may consider that. They will be told -- and I have -- of course, I can't finalize any words at this time, or any appropriate instruction -- the sole purpose for considering that is in considering his credibility, and they find -- they'll find what they find. That's basically it. But it won't be used against Mr. Spector on the issue of guilt or innocence. It cannot be. The law is very proscribed on that, but clearly the People may go forward. We will worry about the language of any instruction to make appropriate -- to have the jury make appropriate credibility findings as to Dr. Lee.