Phil Spector: Prosecution's Rebuttal Motion to Defense's Recent Motions

If you go to the Los Angeles County Court's website, you can download copies of the latest motions filed in Spector's retrial. Spector's defense attorneys filed several motions. One motion is to bar some of the prosecution's expert witnesses from testifying and another argues to prohibit the possibility of lesser included charges, such as manslaughter. The prosecution has filed rebuttal motions today on both of these issues.

I am including the text of one of the prosecution's motions here for your review. (I hope to have the other motion up tomorrow.) For the record, I am actually reading the paper document and typing this into blogger. I'm not receiving the document on a disk or in digital format.

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STEVE COOLEY
District Attorney of Los Angeles County
By: ALAN JACKSON, Deputy District Attorney
Major Crimes Division
Los Angeles county District Attorney's Office
210 W. Temple Street, 17th Floor
Los Angeles, CA 90012

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

THE PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff,
vs.
PHILLIP SPECTOR,
Defendant.

CASE NO. BA255233

PEOPLE'S OPPOSITION TO DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY UNDER CAL. EVID. CODE § 720, 801 AND 803; MEMORANDUM OF POINTS AND AUTHORITIES

DATE: July 29th, 2008
Time: 10:00 AM
Court: Department 106

TO THE HONORABLE JUDGE LARRY P. FIDLER, DEFENDANT PHILLIP SPECTOR AND HIS ATTORNEY OF RECORD, DORON WEINBERG: INTRODUCTION

On July 15, 2008 the People received via U.S. mail defendant Phillip Spector's motion to exclude the testimony of prosecution expert witnesses Louis Pena, Lynne Herold and Steve Renteria. First, the defense team requests this court to exclude Dr. Pena's testimony that Lana Clarkson's death was the result of a homicide because they claim Dr. Pena's opinion was not based on the application of his skills as a forensic pathologist, but rather on "extrinsic factors."(1) Second, the defense argues that Dr. Herold's testimony regarding the distance blood spatter can

(1) The People will discuss this issue under separate cover.

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travel should be excluded because Dr. Herold is not a blood spatter expert. Third, the defense contends that Mr. Renteria's testimony regarding evidence located as a result of Luminal testing should be excluded because the testimony fails to comport with the third prong of the Kelly rule. The People respectfully request that this court deny such contentions based on the arguments set forth below. Specifically, Dr. Herold's training, background and experience in the field of criminology qualify her as an expert on the subject of bloodstain pattern analysis. Next, Mr. Renteria exercised proper procedure in conducting Luminol testing and thus satisfied the third Kelly prong. Accordingly, the defendant's motion to exclude the testimony of Dr. Herold and Mr. Renteria is without merit and should be denied.

ARGUMENT

I. DR. HEROLD'S TESTIMONY REGARDING THE DISTANCE BLOOD SPATTER CAN TRAVEL IS ADMISSIBLE UNDER EVIDENCE CODE SECTIONS 720, 801 AND 803.

In the People's first prosecution of Spector, Dr. Herold was called as an expert witness to opine on matters such as bloodstain pattern analysis, including how far blood spatter can travel. Dr. Herold has extensive training, background and experience in the field of criminology, including bloodstain pattern analysis. She has worked either as a forensic scientist or criminalist with Los Angeles county since 1982. (RT 5758). She is a member of the International Association of Bloodstain Pattern Analysts. (RT 5891). She has practical and laboratory experience and expertise in the area of bloodstain pattern analysis, including having taken courses in bloodstain pattern evidence provided by the Federal Bureau of Investigation and California Criminalistics Institute. (RT 5760). Dr. Herold has also qualified as an expert in the field of bloodstain pattern analysis on numerous occasions in both state and federal court. In this case, her testimony is replete with analysis of blood spatter and how far it can travel. Thus, contrary to the defense's contention, Dr. Herold not only offered testimony on subjects "sufficiently beyond common experience that [such] opinion would assist the trier of fact" but

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she is also qualified to testify as a blood spatter expert because she has "sufficient knowledge, skill, experience, training or education to qualify as an expert on the subject matter of her testimony." (Cal. Evid. Code § § 801(a), 720). Dr. Herold's testimony is also admissible under California Evidence code § 803. In California "the court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole significant part on matter that is not a proper basis for such an opinion." (Cal. Evid. Code § 803). In this case, Dr. Herold's testimony is clearly based on the proper training, background and experience in the area of bloodstain pattern analysis. Accordingly, she may opine on the issue of blood spatter and the distance it can travel.

Additionally, the defense argues that because their three experts in the field of spatter analysis (James Pex, Stuart James and Vincent Di Maio) all disagreed with Dr. Herold's conclusions regarding how far the blood spatter traveled in this case, she is not a blood spatter expert. Specifically, the defense contends that because their experts testified that spatter can travel far beyond three feet, an opinion not shared by Dr. Herold or the rest of the scientific community, she must be precluded from testifying on the subject area of blood spatter pursuant to California Evidence Code § § 720, 801, 803.

Differences in an expert witness's opinion, however, go to weight, not admissibility. (People v. Bui (2001) 86 Cal. App. 4th 1187, see also Us. v Rham (1993) 993 F.2d 1405; U.S. v. Bilson (1981) 648 F.2d 1238). In Bui, an expert witness for the prosecution relied on scientific literature, statistical data, and an epidemiological study in forming an opinion concerning the effects of methamphetamine on human behavior. The defense disagreed with the conclusion that the expert drew from such materials and, instead, relied on its own expert's testimony. The court held that the defense's criticism of the prosecution expert testimony went to weight, not admissibility. Moreover, the court stated that if the defense wished to cast doubt on the prosecution's expert's reasoning it could do so "via cross-examination or rebuttal by a defense expert." (Bui Cal. App 4th at 1193).

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For the foregoing reasons, Dr. Herold's expert opinions regarding blood spatter analysis are admissible under California Evidence Code § § 720, 801, 803.

II. MR. RENTERIA EXERCISED PROPER PROCEDURE IN CONDUCTING LUMINOL TESTING AND THUS SATISFIED THE THIRD PRONG OF THE KELLY TEST.

Mr. Steven Renteria has worked as a forensic criminalist for the Los Angeles Sheriff's Department for 23 years. (RT 4866). He has received formal training regarding DNA analysis from both the Federal Bureau of Investigation and California Department of Justice (RT 4911). He has worked with DNA analysis since 1990. (RT 4911). In this case, his job was to locate bloodstains on the stairs, carpet and woodwork around the foyer of Spector's home. (RT 4902). On the evening of February 4, 2004, one day after Spector shot Lana Clarkson to death in the foyer of his Alhambra home, Mr. Renteria conducted Luminal testing to locate the blood evidence. (RT 4902). The Luminol, a chemical that when sprayed on blood reacts with iron in the blood and thus makes a bluish-purplish light in a dark room, detected no signs of blood on the wall or carpet or opposite the victim's position in the chair. (RT 4903, 4907-4904).

The defense, however, quarrels with the procedure used by Mr. Renteria when he conducted Luminol testing on the evening of February 4, 2003. They argue, once again, that because their experts (mainly, James Pex and Stuart James) disagree with the way in which Renteria conducted the Luminol testing, his testimony regarding such procedure should be excluded under the third prong of the Kelly test established in People v. Kelly (1976) 17 Cal.3d 24. Specifically--and somewhat desperately--the defense argues that because Mr. Renteria did not literally crawl around on his hands and knees to attempt to find blood spatter evidence, his technique fails the third Kelly prong.

The third prong of the Kelly test makes certain that the proponent of the evidence demonstrates that correct scientific procedures are used in the particular case. (Id. at 30). Throughout his testimony, Mr. Renteria described in detail the way in which Luminol testing should properly be conducted, which included a discussion of why the testing should be

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conducted at night.(2) (RT 3905). It is clear from Mr. Renteria's training, background and experience and his testimony at trial, that he employed the "correct scientific procedures" when conducting the Luninol testing on February 4, 2003. Therefore, because Mr. Renteria's testimony reveals that his testing and procedural methodology were consistent with that employed by the scientific community, his opinions and conclusions relating to his Luminol testing are clearly admissible.

If, however, there is any doubt by the court that the "correct scientific procedures" were used by Mr. Renteria in conducting Luminol testing in this case, such a finding should go to the weight, not the admissibility, of his testimony. In People v. Brown (2001) 91 Cal.App. 4th 623, the court found that under the third prong of the Kelly scientific evidence admission test, the question of whether proper DNA and statistical significance test procedures were used went to weight, not admissibility. The court went on to explain the rationale behind this premise:

The Kelly test's third prong does not cover all derelictions in following the prescribed scientific procedures Shortcomings such as mislabeling, mixing the wrong ingredients, or failing to follow routine precautions against contamination may well be amenable to evaluaton by jurors without the assistance of expert testimony. Such readily apparent missteps involve the degree ofprofessionalism with which otherwise scientifically accepted methodologies are applied in a given case, and so amount only to careless testing affecting the weight of the evidenc and not its admissibility. (Id at 647). [emphasis added].

Any potential doubt by the court in this regard, though, should be laid to rest given the arguments set forth above. Mr. Renteria did in fact use the correct procedures when conducing Luminol testing in this case and beause the correct procedures were followed, criticisms of the techniques go to the weight of the evidence, not its admissibility. (Id.) Thus, Mr. Renteria's opinions and conclusions related to Luminol testing are admissible.

(2) Mr. Renteria conducted the Luminol testing at night because detections of blood evidence are more accurate when the area being tested is devoid of ambient light.

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CONCLUSION

For all the foregoing reasons, this court should deny Defendant's motion to exclude the expert testimony of Dr. Herold and Mr. Renteria.

Dated July 24, 2008
Respectfully submitted,

STEVE COOLEY
District Attorney of Los Angeles County
By (signature here)
ALAN JACKSON
Deputy District Attorney

Attorney for Plaintiff

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