Phil Spector Retrial Day Eleven of Testimony

December 1st, 2008

Prosecution Witnesses:

#15 Adriano De Souza (alternate driver; testimony completed)
#16 Officer Brandon Cardella (Alhambra Police Dept. first responder to the scene and involved in the "take down" of Spector; testimony completed)

Accredited Press in the courtroom:
Harriet Ryan of the Los Angeles Times (short period in the afternoon session)

What a tiring day today. I'm starting late writing up my notes because we had to go shopping after Mr. Sprocket picked me up at the Red Line station.

When I finally get inside the courtroom, Spector and his team are already there along with Rachelle and De Souza is back on the witness stand. He's wearing a black, short sleeve sweater vest, a white shirt and a dark colored tie.

First off, a whole half our of court was wasted this morning outside the presence of the jury. Weinberg was objecting to Fidler about several rulings he made during his cross examination of De Souza on November 2oth.

The first thing Weinberg complained about was the transcription error with one of the audio tapes the prosecution played and the fact that the prosecution made a correction and the defense didn't get the corrected copy FIRST, before it was given to the jury. And, a juror spoke to the court verbally and the attorneys were not notified about it. Fidler explains exactly what happened to Weinberg. That Fidler did not speak to the juror; the juror told Wendy during lunch break. Weinberg then wants the Judge to direct the jurors to make all their further communications with the court "in writing" so that there is a record. It's a minor thing; it wasn't like a discovery violation or anything and I think that's resolved.

The second issue has to do with how Weinberg was shut down in many of his questions to De Souza. He says there were "Several rulings where the jury is forced to accept the prosecution's version of events." This is all about when Weinberg was questioning De Souza about the 911 call and the "I think he, he killed someone," as well as the "I don't know. It's my English" statements De Souza made during the police interview.

On and on and on and back and forth it goes between AJ and Weinberg and Fidler. Fidler first agreeing with AJ's position. Then Fidler comes around the Weinberg's position. Weinberg going on and on, something about Fidler's rulings are "directing the jury to accept the prosecution's theory..." about what De Souza meant or said. Fidler goes back and with AJ and Weinberg over what was said, what exactly was asked, and he reads over the transcript from last Thursday.

While Fidler is looking for the exact part of the transcript they are arguing over, I note that it's so quiet in the courtroom you can hear the jury talking it up in the jury room.

AJ pipes in that "The defense is not entitled to mislead the jury." And all this time, all this back and forth about what and how Weinberg is able to cross De Souza, he's sitting there, on the stand. No one asks him to step out of the room. I'm amazed.

Back and forth. Back and forth it goes over this one issue. Weinberg complains again, "If Mr. Jackson is right, the defense has to accept the prosecution's [interpretation of what De Souza meant]. It's all about the, "I'm not sure. It's my English" statement and what De Souza really meant. Weinberg is arguing about what that actually meant and he should be able to cross him on it.

Fidler sides with Weinberg on the question and how it was asked, but it appears they are not done arguing this point. They keep at it and all I can think of this is a total waste of time and energy. Fidler finally rules that he can cross with the questions he wants and he appears to have won this round.

The third thing he complains about is Fidler's ruling on his mumbling. Unforkin'believeable! He's complaining that "Mr. Jackson raised his voice and yelled at witnesses! But now there is this ruling about 'his' courtroom drama. I can't help but think Fidler is not happy about Weinberg constantly challenging his rulings and taking up the court's time.

Fidler states that "If you do a preamble and preface it... [that's acceptable] [...] The way it was done. I thought it was objectionable. [...] I ruled."

See, Weinberg didn't do that. He didn't ask the witness if Spector "spoke like this," and then give the example of the mumbling.

During this whole half hour of wasted time, De Souza is on the stand just sitting there, waiting. You can tell that tempers are on edge here. Fidler then gives both sides instructions on impeachment or rehabilitating a witness. And he makes a suggestion about the reading of transcript of the grand jury and the first trial, to maybe not make so many objections to save time. He states that it is their right to do so, make the objection, but since this stuff is going to come in, maybe to save time not to object so much.

At 10:03 am Fidler then says something that I didn't quite catch about either animosity or tension in the room or short tempers or something and right afterwards says, "Let's bring out the jury. I hope every one's Thanksgiving was nice!"

Once the jury is seated AJ states that the playing of the tape on Thursday concluded their redirect. Weinberg gets up to recross De Souza.

Weinberg really goes in to cross De Souza hard on several points. He questions him about how long he studied English, and that in 2003, he spoke English pretty good and that he could understand people as long as they didn't speak to fast. With that stated, he then challenges him on "why didn't you" say something a different way, that was clearer? Weinberg is back on the 911 call and what he said, asking De Souza what he meant and since there appear to be words missing and he meant to say something else more, "Why didn't you just say that?" De Souza responds several times to these questions, "Well, like I said sir, I was in shock."

He then puts the 911 phrase he said to the operator up on the ELMO, and says to De Souza, "What do you think that phrase means?" [...] When LE showed up, you said a complete phrase. [...] And then Pineda showed up and you said, 'I think I killed her.' "

Weinberg keeps going over this, hammering De Souza on the fact that the 911 call statement appears incomplete. "And what I'm trying to understand [is] what does this phrase mean? [...] Isn't it what you were trying to say is, 'I think he killed her?' "

While Adriano is trying to answer these badgering questions, a slight smile starts to appear on his face. Weinberg presses on. "If that is what you've said, then why didn't you say that?" [...] Isn't it in fact true that you think you heard something but you're not sure?" (Regarding the shot being fired.)

Weinberg then moves on to how he saw Spector's hand on the gun. He asks him in detail how his fingers were and if there was his pointer finger on the trigger. He then asks De Souza if Spector had his jacket on or off. Was it buttoned or unbuttoned. De Souza states that he doesn't know; he doesn't remember. Weinberg asks him if it could have been a shadow against Spector's clothing that he saw, and not a gun, since Spector was wearing a black shirt against a white jacket. De Souza is clear. He saw a gun.

Weinberg then puts up the sketch drawing that De Souza did for police of the grounds and where he placed the car, Spector and his own car.

Weinberg makes the point again that De Souza ran back to the Mercedes to get Spector's car, even though Spector [supposedly] had a gun. He's now challenging De Souza about what he "could see" of Lana in the doorway by leaning to one side. He puts up a photo of the house shot from the other direction out the back foyer and from this straight on angle of the photograph it appears that he could not have seen Lana's face.

"Isn't it true that it's all a blur in your mind?" Weinberg asks De Souza. "No sir. I was in shock," he responds. He then questions him about not remembering who he spoke to whom, where and if he knew he was being tape recorded or not. " You're certain you saw a gun and not a shadow?" Weinberg asks again.

Weinberg then moves onto De souza's status. AJ is objecting because most of this was not covered in redirect. Fidler allows Weinberg to reopen this area of questioning. And then it's the confrontation of the paper documents. Weinberg points out that on his initial visa application as a student and four subsequent documents where De Souza signed that he "certified" that he would only be in the country to study. But he started working a few days after he arrived in the US. So, he knew he was lying when he signed those documents and you "disobeyed the laws of this country."

Weinberg then goes on to question him about his family coming to the US in August of 2002. He asked for a month off from school to visit with his family. De Souza explains that his family paid for the trip but they couldn't get the visa. Weinberg then asks with an incredulous tone in his voice, "And you're saying that you didn't know they couldn't get a visa?" Weinberg gets De Souza to admit that he "could have" left the US to visit his family but he didn't.

10:45 am: The morning break is called. A few observations here. Mrs. Clarkson is by herself in the front row. There's no one else here supporting here. I don't ask her, but I'm guessing that no one could come. This is the first time I've even seen her on that front row bench by herself. It makes me sad.

After the break, Weinberg is challenging De Souza on many points of his testimony.

DW: It was your hope to stay in the US?

ADS: Yes sir.

He has a home, a wife. Weinberg implies that maybe De Souza's help to the prosecution in this case has been influenced by his desire to stay in the US.

ADS: No sir.

DW: Isn't it true that you were fashioning your testimony to support the prosecution? [...] Were you trying to fashion your testimony to help the prosecution in this case? [...] You told the jury in the first trial that Ms. Clarkson was 'reluctant to enter the car.' You told this jury that she was happy [to get a ride to the castle].

Objection! Outside the scope! Over ruled!

ADS: Once she was in the car, she was happy.

Then Weinberg winds up his cross with several issues in De Souza's testimony where there are discrepancies. He testified in the first trial the gun handle was black. In this trial, that it was brown. "Isn't it true that you were fashioning your testimony to help the prosecution?"

ADS: No sir.

Now a discrepancy about the blood on Spector's finger. He told a detective that he thought there was blood, he wasn't sure. In this trial he testified that he was certain [he saw blood]. "Were you fashioning your testimony to help the prosecution?"

ADS: No sir.

I wonder if this line of questioning is effective to discredit De Souza. Hardly a juror is taking notes.

Weinberg then goes onto the blood on the face. "Several hours after [the incident] you said you couldn't remember which side [of Lana's face] had blood, but one and a half years later you could tell from a photo there was more blood. And then another question about "fashioning his testimony" to help the prosecution.

DW: As a result of your assistance to the prosecution, you got to stay in the country [...] Are you telling us that it had no influence on your testimony?

ADS: No sir.

Re redirect!

AJ gets De Souza to state that it was his belief that he was in the country legally. He asks him if there have been any promises to him after the disposition of this case.

ADS: No sir.

AJ: After the shot was fired, were you fully awake? (This was an issue Weinberg brought up on cross.)

ADS: Yes.

AJ: Were you fully awake, when Spector said, 'I think I killed somebody?'

ADS: Yes.

AJ: Were you fully awake when you saw the gun in his hand?

ADS: Yes.

AJ then asks him about why he went to work while he was going to school. "Why didn't you stay home?" De Souza states, "I had plenty of time to do it. I like to work sir."

AJ elicits that De Souza told the officers that he was working [while on a student visa]. "Did you try to hide anything?" he asks. "No," De Souza replies. De Souza also testifies that he contacted a lawyer about being in the country after the shooting. De Souza was never contacted by the INS/ICE in any way. He contacted them, first, through his attorney.

AJ then asks the most powerful questions.

AJ: Before anything about your immigration status ever came up, didn't you tell officers there was a gun?

ADS: Yes.

AJ: That there was blood (I think he clarifies on Spector's finger)?

ADS: Yes.

AJ: What Spector said to you [that night] 'I think I killed somebody.'

ADS: Yes.

AJ: Was it possible you saw a shadow? [referring to Weinberg's question about a gun]

ADS: No sir.

AJ then rehabilitates De Souza on why he went for the Mercedes, back towards Spector with the gun, instead of his own car.

AJ: Did you have the keys to your car in hand?

ADS: No.

AJ: Were you closer to the Mercedes?

ADS: Yes.

AJ: Were the keys in the car? [Mercedes]

ADS: Yes.

AJ: Was the door open?

ADS: Yes.

AJ: Was that the car you were driving that night?

ADS: Yes.

Then AJ clears up the intent of the questioning of his Grand Jury testimony, and the questions by Doug Sortino, and who said what. Doug Sortino was the one who was asking him what Spector said in a paraphrasing manner. He clarified in his Gran Jury testimony and he was clear about what he heard Spector say. 'I think I killed somebody.'

AJ: Are you changing your testimony to help the prosecution?

ADS: No.

AJ: Why are you here today?

ADS: To tell the truth.

And that's the end of re redirect and there is no more cross! Faster than I predicted, De Souza is off the stand!

The next witness is officer Brandon Cardella, from the Alhambra Police Dept. He's been an officer for the department for about 10 years now. Truc Do presents the witness. Since I am way tired and I have several sewing orders to work on, I will try to briefly summarize his testimony.

This officer led the team of first responders to the shooting at 1700 S. Grand View Drive. There were five officers. He describes exactly what they did and why they did what they did. He met De Souza on the street and interviewed him for about five minutes. He was the one in front of the five officers who entered the residence in a single file. He was the one holding the clear plastic shield. He knew there was a victim before they took Spector down. He testifies about being approximately 20 feet from Spector, who was at the rear entrance of the castle when he said, "Hey guys ya gotta come in and see this!" After Spector refused several commands to get his hands out of his pockets, one of the officers deployed the tazer darts. The tazer didn't appear to have any effect on Spector. The group then charged Spector and knocked him to the ground in the foyer, staying as close to the stairwell as possible so as not to disturb Ms. Clarkson's body.

Once Spector was on the ground he was not involved in cuffing Spector. He testifies how he first addressed Ms. Clarkson and got no response. He observed that she wasn't breathing. He used two fingers and touched them to her left wrist to take a pulse. He observed the gun under her left calf. Approximately 40 minutes had passed by the time they got Spector in cuffs from the time of his arrival. He's certain that in the take down, he did not disturb the gun. He was at the residence (logging in and out of the crime scene log) from 5:03 am until 6:40 am. At that point he returned to the Alhambra Police Station and wrote up his report. He took "mental notes" not written notes at the scene for when he wrote up his report, later. "I think I killed her," was the direct quote in the paragraph of his interview with De Souza. Everything else was paraphrasing.

During Weinbergs initial cross, he makes a big deal out of the fact that Cardella was subpoenaed about a month ago, but the prosecution issued him a subpoena a little over a week ago. He also made his questions sound like something wasn't right that he didn't testify at the Grand Jury or the first trial. Cardella doesn't remember being interviewed by Detective Lillienfeld or Detective Bennett.

Weinberg makes like it's a big deal that the officer didn't want to talk to Weinberg's investigator who tried to interview him, and that he told the investigator that "everything is in his report." Cardella explains that the investigator contacted him while he was at work. I think but I'm not sure that Cardella told the investigator he could do it another time. (Ah! I found the note. Yes he did say that he could talk to the investigator at a later time.)

Supposedly, Cardella was given a subpoena to bring the clear plastic shield to court and he didn't. He states that he didn't know anything about that subpoena. He states that he wasn't told about why he was asked to testify. Weinberg then crosses him on his career and the report he made. I have in my notes there are "pointless questions about his police report."

Weinberg tries to get Cardella to say that Spector's statement to them about you gotta come in and see this, was an invitation to the officers to enter the residence. Cardella holds his ground and doesn't agree with that. He felt it was more like Spector making a statement; not an invitation. Cardella testifies that he had no idea who Spector was [at the time of the shooting]. He also confronts him on what he actually said to Spector, regarding getting his hands out of his pockets. Apparently, Detective Lillienfeld's report has him using slightly different words.

Every tiny inconsistency is brought out. Weinberg then asks questions that are certainly inclined to try to confuse the jury. At least, it appears that way to me. "Are you telling me that no one picked up the gun to see if it was loaded or not?" Cardella states he doesn't remember if he put gloves on or not before he touched Ms. Clarkson. More questions along this vein, with Weinberg's questions having an 'unbelievable' tone to them. At the end of his report he wrote that it didn't appear that the homicide had occurred at that location where Ms. Clarkson was found.

The afternoon break is called around 2:45 pm. During the break, AJ and Truc are in deep conversation standing in front of Ms. Clarkson. They are speaking very low. I can't overhear a word. Also during the break I get to say hello to Harriet Ryan. She tells me she is working on four other stories along with this one. She's very busy with all that she's been assigned to cover.

When the break is over, there are more questions about Cardella being shown photographs by Detectives if the injuries on Spector's wrists could have been caused by the take down and the handcuffs. He told Detective's the injuries could have been caused by the struggle and Spector and the handcuffs.

Do redirects Cardella.

Cardella clarifies that he doesn't have any training in crime scene analysis or blood spatter analysis. That his statement at the end of his report was just a guess. He did not have to move Ms. Clarkson to check her wrist for a pulse. Cardella states that when an officer gets a subpoena, it goes to a subpoena control person first. During the first trial, he was injured. He was off work on an "IOD;" a disability. He doesn't know if he was subpoenaed for the first trial. Due to his injuries, he was told not to be worried about appearing. That's the big mystery as to why he was never called. A disability. Big deal Weinberg; big deal.

Do gets Cardella to admit that he could have possibly been incorrect about De Souza telling him that he "entered the house." Cardella also explains why the initial officers did not pick up the gun or disturb any evidence. "There's no reason to. [...] First off, it hadn't been photographed yet. [...] It's evidence." Apparently, they are trained to let the crime scene investigators collect evidence. Cardella clarifies that when he was ordering Spector to take his hands out of his pockets, he wasn't asking him nicely. He was speaking with force and using expletives. "Get your f***ing hands out of your pockets!" He said that for the first time and the second time. He states that Spector's statement about seing the body, was more like a voyer statement and not an "invite."

Weinberg recrosses Cardella and asks just a few questions about writing his report right after being at the scene only one-and-a-half hours. "You were using your best memory, correct?" [...] In your ten years on the force, you've never quoted anyone incorrectly?" "No," Cardella answers.

DW: Do you think Spector could have been surprised to be treated as a suspect?

Objection! Calls for speculation! Fidler agrees, and the objection is sustained.

Weinberg still tries to get Cardella to state that Spector's statement was an "invite" into the house. As he's stating this, he's waving his arm, as if he's motioning an indication to enter.

There's no re redirect of the witness and we are finished for the day.

I will not have any later detail notes on this days testimony.