The Hearing Regarding Sara Caplan ~ Draft

Updated 1/24/15 spelling of Mr. Nasatir's name.

Updated 6-8-07

Prior to this point in the trial, Judge Fidler ruled that Stan White and Sara Caplan's testimony in the evidentiary hearing could be used to impeach Dr. Henry Lee, in the people's rebuttal case. Sometime after that, the prosecution must have presented a motion to be able to have Sara Caplan and Stan White testify in the body of their case in chief. I don't know specifically the argument they used, but in any event, the judge ruled that they could present these witnesses now. Fast forward to Wednesday. The prosecution was ready to call Sara Caplan and Stan White, but the defense stood up and notified the court that Sara Caplan informed them that she was not willing to testify. Below is my transcript of the hearing. It should not be used in place of an official court transcript.

Note~draft version; still needs to be edited:
Rosen: Indicated to the court several moments ago, and also, I just wanted to emphasize one point of it that, Ms. Caplan has made it very clear through her counsel to me, that she does not want to be put in the position where she has to testify against Mr. Spector, her client. And I just wanted... I know I spoke to that in more general terms a moment ago, but I want to speak to it at this point, in the very specific terms that I just have. So I’ve made my record that the court understands where we are on this, and I think the court may want to hear from Mr. Jackson, Mr. Dixon, as to where we’re going on this.

Dixon: Well, where we’re going is, we’re planning on calling Ms. Caplan. She’s already testified in this, um, trial, though not before the jury. Ah, I would also point out everything I know, is that she’s, um, Mr. Spector’s is not her client at this time. I don’t think there’s any indication of that. And I just don’t see any, legal, reason, for privilege, um, that would prevent her from testifying at this time.

Judge: Mr. Rosen?

Rosen: I know that just because she’s not currently representing him does not mean that the privilege evaporates into thin air and goes away. Privilege lives, and it lives beyond the relationship. And the court I know, knows that. And that’s the only thing I wanna indicate. And, ......some decisions to make here now. And also as I indicated to the court, you know, Mr. Nasatir has now joined us your honor. He’s in the courtroom. If the court wants to hear further, um... in terms of what I’ve already brought before the court moments ago, he’s also available to speak to the court.

Dixon: Your honor on that issue of privilege, the court, I think, um, went into this, and then, made it’s rulings, listened to the arguments and made a rather bright line as to where the privilege was and were it wasn’t. And, what subject matters. And I, I don’t know, that, I mean, ... the court obviously. But I don’t know that we need to relegate that. We, I, as an offer of proof, we’re basically, and the court heard the testimony, and asked Ms. Caplan the same questions that were asked before, on direct, and in cross examination, when she testified at the earlier hearing.

Judge: Thank you.

Rosen: Just one final thing. I, I know that I did say this previously, and I’m going to say it again. Is Mr. Spector’s position, that he asserts the privilege that he does not want Ms. Caplan testifying in this case against him.

Judge: He may not want Ms. Caplan to testify. First, she is not testifying against him. Nor is she testifying, will be expected to testify to any privileged communications. She is testifying, or would be expected to testify to observations that are clearly not privileged under California law, and under United State Supreme Court law. She has no right to claim the privilege to non-priviledged matters. If she chooses not to testify, make no mistake. And Mr. Nasatir, if you want to address me, and Ms. Caplan is in the courtroom, I will hold her in contempt. In almost 25 years on the bench, I have never, held an attorney in contempt. I take this extremely seriously, and I think she is making a terrible mistake. Mr. Nasatir?

Nasatir: Thank you for the opportunity to allow me to address the court. In forty years of criminal law practice, I have never heard, of an attorney, being called by the people, to testi~ or be called by the state, to testify against their client, or their former client. I think this is, without precedent as far as I know. Maybe there are one or two situations, do not, that do not apply here, in this case. It’s not just a privilege issue. I know your honor, uh, allowed me, and I thank the court, for allowing me to be heard in chambers yesterday, where I voiced these same arguments. But, besides, the attorney client privilege, there’s the word product privilege, which comes under that privilege. And then, there’s the attorney client relationship, which relates to this case with the sixth amendment to the United States Constitution, the due process clause, and our State of California Constitution, your honor.

And lastly, there is the attorney duty of loyalty, to her client. Her former client. Your honor, if, imagine the most dangerous person, which Mr. Spector is not. Imagine the most dangerous person, in the world, who was your client, and the people call you as a witness. Ha, Who were formerly his attorney, and his attorney has to testify. This is not an investigator, this is an officer of the court. This is a person who has, ah, other than an investigator, as like a mirror (?), this is an officer of the court, who has ethical duties, handed down to her, through centuries, and by the State of California State Bar. It’s, unprecedented.

I’m asking you, with all due humility your honor. Don’t, place, a defense attorney, in the position, of having to testify, against her former client. The attorney, you’re stepping between the attorney client relationship. That still exists. He has ordered her, not to testify. He is her client. This was an evidentiary hearing. At the evidentiary hearing, which, uh, I understand the defense, asserted the attorney client privilege. The court overruled it, and asserted all privileges, and objected to the testimony. The court, indicated, that, it would not hold, the testimony of, the people who testified in the evidentiary hearing, including my client, against Mr. Spector. Because he was not present. And the court, was going to fashion, another remedy. Which, and did fashion a remedy, which was, it would be allowed for impeachment against Henry Lee.

Somewhere between that ruling, and now, thee, my client, has become, a witness for the prosecution; to testify against her own client. Mr. Spector wasn’t there. He wasn’t present. This is her jury trial. This is the jury that’s going to decide, his guilt or innocence, in an issue of life and death. Of life, and, and, and, serious prison time, for her client. She can’t do it! And I’m asking you, to, reconsider your ruling, with all humility your honor. I thank you for hearing me, and I’m appealing to, your, sense of justice, not to do this, to my client Ms. Caplan.

Judge: Thank you. Is there anything else you wanted to offer?

Nasatir: No your honor.

Judge: My sense of justice applies not only to Mr. Spector, and counsel, and the prosecution, also to Ms. Clarkson; and to justice itself. Now, you tell me not to put myself between Mr. Spector, and Ms. Caplan, when Ms. Caplan went to a scene. And she observed, by her own testimony, that she gave under oath, someone, manipulate, take. (and because of the situation we find ourselves uh, in now) either conceal or destroy evidence, there is no privilege, not to testify, to her observations. There is none. It is not privilege material. Meredith makes that clear, Fairbanks makes that clear, Lee makes that clear.

And even an attorney’s sacred obligation, to his or her client, does not permit them to violate the law. And the courts have held, that that is not privileged. And therefore she has no opportunity, or she has no right if called, not to testify. And if she refuses to testify, I must use the power given to me, which I have never used in 25 years, to see that the law is followed. No other individual when it comes following the law, their obligation is to follow the law. And if she chooses, not to testify, and if I order her to testify and she refuses that order, then I will hold her in contempt.

Nasatir: I understand the court’s position your honor. It’s not a choice. It’s not a choice for her.

Judge: She has a choice.

Nasatir: It’s a duty. It’s a duty. And it’s always been a duty. And it always been a sacred duty. And she, hold that dear. And she holds that sacred. And she want’s me to tell the court, she does not want to be contemptuous, of the court, in any way. This is not just a privilege matter. You, it, we, keep talking about privilege in this courtroom. I understand the court’s ruling that it’s not attorney client privilege. It’s much more than that. It’s the sixth amendment. It’s the attorney client relationship. It’s putting the officer of the court whose sworn the to be, the only friend, a defendant has, under the constitution; only person that advocates for his interests, at every peril. And I’m quoting the cannons of ethics. At every peril. The only person your court is putting in, in a position, to have them called, by the prosecutors! And subpoenaed by the prosecutors! She’s here pursuant to subpoena. She’s being forced to come here. And now she’s being forced to testify against her own client. It’s not, right. It’s not, legal. And I’m asking the court, not to punish her, for, exercising her duty as an officer of this court.

Judge: I must respectfully disagree. It is right. It is legal. It is the law. And it is her obligation.

Nasatir: I’m sorry sir. As the, Uh, your honor, this is a, gentleman who is assisting us, uh, if it goes that far with appellate matters. His, his name your honor, escapes me for a moment.

Weberman: Chance Weberman.

Nasater: Chance Weberman, your honor, thanks you.

Judge: All right.

Nasatir: Thanks Mr. Weberman. I got all wound up there you know.

Judge: All right.

Nasatir: Your honor, uh, all I want to say is also, you have, less, drastic, alternatives in this case. You can, instruct the jury. This can be done by stipulation. Which, this can be done, by, an admonishment to the jury.

Judge: Stipulation how, Mr. Nasatir?

Nasatir: Well, uh,

Judge: Please tell me who?

Nasatir: Uh, rather than, than an attorney, uh, I don’t know. We haven’t explored it. I asked, I asked that it be explored the other day, and it wasn’t. But, you can instruct the jury. You can fashion another remedy like you did the other day, like we thought that was the ruling after the evidentiary hearing. That, it can be introduced for impeachment if Henry Lee testifies. That was the prior ruling. That was of the evidentiary hearing. And, also your honor, as I understand it, Stan White was an investigator, involuntarily here. He can testify to the same thing. Why make an officer of the court testify, in this situation, where you have less drastic alternatives, that you can fashion. And I know, that you’re a brilliant jurist, who can...

Judge: Easy Mr. Nasatir.

Nasatir: Who can...

(Laughter in the courtroom.)

Judge: I don’t want to have to dry my robe off, okay.

(More laughter erupts.)

Nasatir: Who has an, active legal mind, who can, who can draft, draft, a less, drastic alternative, especially, when you have this same testimony, coming from Stan White.

Judge: Well, I’ll answer the last one first. I don’t make credibility calls, the jury does. But I would say that Mr. White’s credibility, because of the way he got into the case, and many other factors, is subject to great deal more impeachment than Ms. Caplan’s is. She’s virtually an unimpeachable witness from the people’s standpoint. Her credibility, is unimpeachable.

Nasatir: Thank you.

Judge: And there’s a big difference, with that, and perhaps Mr. White. I’m not saying there is, or there is not, that’s for the jury to draw. I made to draw that decision, or, to draw that conclusion. I made certain, findings, when I made, the findings in this case, the factual findings that I did. But the people definitely are in a different position having to call Mr. White, or relying on Mr. White alone than they are with Ms. Caplan’s testimony.

And by a stipulation, the jury, an anonymous person, they don’t know who it is, in judging credibility, that’s basically useless. If there’s a, a stipulation, if there’s an offer to stipulate that Ms. Caplan would be sworn, called and testify, that’s something else.

Nasatir: That’s the same thing.

Judge: Well... but,

Nasatir: I’m asking, I’m asking for the court...

Judge: I should tell you that there’s a chance that her testimony would have been inter, introduced in the trial in any effect, if I held her in contempt, obviously I would stay any such sentence. I’m required to as a matter of law. And I would in any event, to allow you to test it. But at some point she may be unavailable as a witness. And then there’s a question of whether her prior testimony which was subject to cross examination is admissible at the time of trial. So her victory may be, if there ever is, if you want to call it a victory, I do not.

Nasatir: (Unintelligible)

Judge: Might be very hollow.

Nasatir: This is not a victory.

Judge: I understand.

Nasatir: It’s not a situation where, where, we’re, we’re in opposition to the court, by anything... Nothing, in what I’ve said, indicates that she wants to be contemptuous of this court. She want’s to follow the law as she’s been taught in law school, as she’s read by the cannon of ethics, and as she’s been advised by attorneys. And, under these circumstances, in a jury trial, being called by the people, her clients. They’re trying to deprive her client of his liberty. She cannot testify under those circumstances.

Judge: Um, thank you.

Dixon: Your honor...

Judge: Mr. Dixon.

Dixon: I’d briefly point out two things. One, everyone seems to have forgotten that at the hearing, the defense, Mr. Spector’s lawyer’s called Ms. Caplan to the stand. It’s, no one seems to really recall now. But, she took the stand. She took it voluntarily. She went through direct and cross examination, and because of that, we are now calling her. But, had she originally did it voluntarily, and she did it on behalf of Mr. Spector’s lawyers, and came to court to testify. Um, secondly, if I don’t know how this is all going to play out, but if there’s going to be a refusal to testify, I think it should be outside the jury’s presence.

Judge: Well, the question is, whether, if I hold her in contempt, and normally you would, you would take any proceeding where someone is going to claim a privilege, (cough) excuse me, and do it outside the presence of the jury, I’m not sure, for the purpose of holding her in contempt, ~~ not that I want to, and I beg you Mr. Nasatir, to reconsider your position. I know the position you find yourself in. I know the position Ms. Caplan finds herself in. I hope you understand and respect the position I find myself in. I’m basically begging you not to do this.

Nasatir: I’m begging you not to do this.

Judge: Well, I guess we’re, we’re basically neither one is to answer the other’s request then. It’s what’s going to happen. Um, I have to take a look at whether or not it’s appropriate um, to go through with the contempt proceedings if she can claim the privilege, and refuse to answer outside the presence of the jury, and still be held in contempt. I’m not sure about that.

Rosen: Your honor.

Judge: Yes,

Rosen: In the hearing, outside the presence of the jury, and this is demeaning (?) the interrogation of Mr. Dixon, but, cross examination by the defense. The court basically ordered us to get Ms. Caplan here for the purposes of that hearing, and when we put Ms. Caplan on, and I was the lawyer that did put her on. I called her, and I examined her on direct, not on cross. And secondly, the purposes for which we presented her at that time were somewhat different. And the examination, and I can tell the court this, the examination was not tailored, to be examination in front of the jury. Because certainly, we know in situations where, that may be a, a, sign on the door post before we walk through the door, we as defense lawyers, ~and especially those who’ve been around as long as Mr. Brunon, Mr. Cutler, Ms. Baden and myself Mr. Plourd and certainly Mr. Dixon and Mr. Jackson, are going to tailor their questioning a lot differently.

In those instances for example where there’s a deposition in a criminal matter and statements. So, in that particular hearing that we had, it was not cross examination by the defense. I put her on, as I always, I put her on direct, and I didn’t do a cross examination. But I can tell the court, I would never have. And certainly, if I had, any, premonition, what so ever, that that testimony was going to be wound, wound up at some point, being read to a jury because of, of the um, declaration by a judicial officer that she was unavailable for future purposes, the questioning would have been done a lot differently. So, I think it’s port important to put that in context, because it has been a bit since we visited that particular issue your honor.

Judge: Thank you.

Brunon: Can I just be...

Judge: Just a second. I think Ms. Caplan wishes to be heard.

Nasatir: Your honor, may Ms. Caplan address the court?

Judge: Of course she may.

Caplan: Your honor, when I was initially contacted by this case, Mr. Wiley of the prosecutors office, called me and said that the court was ordering my presence, and their office was ordered to serve me with a subpoena, which I accepted by fax. I did not know what this was about. I was led to believe that the court had overruled the privilege for the limited purpose of an evidentiary hearing on a very small issue. I never, anticipated, and I believe it’s unprecedented, that a lawyer, would ever be called to testify in a prosecutions’ case in chief against a client or a former client, when the law and all the ethical obligations that I, .... as an attorney would testify.

The attorney in that case knew it was evidence. I do not know what I saw. I did not see it leave the premises. I saw something. It was not my call to make. You have an alternative here, where, this Mr. White claims to have, known what it was, claims to have seen exactly where it is. I don’t remember. And, he claims that, he discussed it with Dr. Lee. I did not. I never saw it leave the premises. Under these circumstances, and the court in Meredith, limited it’s holding to the narrow circumstances in that case. They had the investigator testify, because he was the one who saw it in the location that it was. Not the attorney. They kept the source of the information privilege. And the um, I’m sorry. I’m just so upset over this.

Judge: I understand.

Caplan: I have never in my life, thought I would have to be put in a position like this and it’s a horrible situation to be in. I have no desire to be contemptuous your honor.

Judge: I understand. I understand fully. We’re not, (cough) excuse me. (Cough) We’re not going to be deciding this today in any event. I, I need too much time to review some matters, before we go forward with ah, Ms. Caplan. We know what her position is, so the people are going to be forced to move forward with other witnesses, assuming that you have them. You know her position is clear.

Dixon: Ahm, we, we need a few minutes to ah,

Judge: That’s fine.

Dixon: Check on the alternative witnesses.

Brunon: Judge I need to just ask

Judge: Yes?

Brunon: I agree with Mr. Dixon. This issue needs to be resolved outside of, of the, jury.

Judge: I tend to agree with you that normally that’s done. There are some things in the contempt procedure that make me question that. But I’ll have to, seek some guidance on that.

Brunon: Because your honor, and I agree with the legal area, beyond the, normal ah, process of determine privilege issue outside the presence, we have the additional uh, factor in this case, is that, there, this is not admissible against Mr. Spector per say in any event. So, we have that second level that sometimes we, we have to accommodate some way, even in this uh, process now.

Judge: I understand.

Rosen: Also, we just want to keep in mind, that, the footnote to all this is that, as Ms. Caplan said, and as Mr. Nasatir said, “It’s not that, the government is not without another opportunity, and that is Stan White.

Judge: I’ve, I’ve responded to that, Mr. Rosen. I, I think in the, wh, and I’m going to be very honest. The defense has made noises before about attacking Mr. White’s credibility. And then to say, “Well, use Stan White. That ‘s okay. That’ll get the job done.” That’s basically disingenuous. It’s basically disingenuous. Because I know for a fact that you’re going to go after Mr. White. You’ve already indicated. I don’t know whether you plan to attempt use other things against him that haven’t even been brought out yet. But you’ve mentioned, and, based upon that, to say that, “Just go ahead and use Stan White.” That's, that’s just not right. That’s just, not, right.

Rosen: The truth is he’s not my witness.

Judge: Well, I understand that. But what you’re doing is you’re trying to set up a situation, or establish a set of facts, or, or, ah, a certain aura, that, that there’s no need to call Ms. Caplan, because we have this other witness. But when you plan to attack the other witness, and that witnesses credibility, when Ms. Caplan could not be attacked in such a fashion, please don’t do that. It’s disingenuous. Very clearly is. And I think we should drop that. You’ve made the point, I’ve responded to it. We really need to move along from that point.

Jackson: Your honor, at this time, ah, I guess we have no choice, ah. As the court knows, we were, we had a certain witness list planned for this afternoon. With, ah, the people’s apology, um, given the circumstances that Mr. Nasatir has ah, has brought before the court and Ms. Caplan has brought up, I think Mr. Dixon and I need a few minutes to find out if we can get another witness here. I do believe that we will not be able to fill up the entire afternoon, but we may be able to accommodate the court with at least one more witness.

Judge: Well, you go ahead and do that, and in the mean time, I’m going to excuse Ms. Caplan and Mr. Nasatir, order you back, ah, we won’t be in session tomorrow; for good cause. I’ll get into that later. We won’t be coming back until, ah, Monday. So, lets put you on call for Monday, at nine o’clock, and we’ll, if we need you we’ll call you.

(A few more words, reintroducing Mr. Chance Weberman, who will take over if the case goes into another direction.)

Other News:
Check out Steve Huff's The True Crime Blog for the latest news on the abduction and murder of Kelsey Smith.