Phil Spector Retrial: Day Thirty-two

Updated!

The Defense Begins
Hello everyone, I'm at the Tokyo Library on the extended lunch break. I'll have a full report on today's events much later tonight.

Several motions were presented this morning to Judge Fidler today outside the presence of the jury. Weinberg made the expected motion to dismiss the case, basically arguing that there wasn't one piece of scientific evidence that proved Lana Clarkson didn't shoot herself. The motion was denied.

The next motion was regarding the "emails." I will have more on this later, but the tentative ruling by Judge Fidler is, that unless the defense can show to Judge Fidler that the fountain in the rear courtyard of Spector's house only has one speed or level, (i.e. "on" or "off"), then during a jury visit, the fountain will not be on. The prosecution was requesting that because of the information revealed in the emails, they were objecting to a jury visit during the retrial. Fidler over ruled the prosecution's request. It will be interesting to see how this plays out if Weinberg still wants to proceed with a jury visit if the fountain is off. I will say this about fountains. I have several. One on my front porch, several table top fountains in my house and a large one in the back yard. Each fountain I have as a flow control on the fountain pump itself; not with an switch to adjust the water flow. It remains to be seen what type of controls the fountain has on Spector's property.

Fidler also made some rulings as to what the suicidologist Dr. Seiden can and can not say to the jury. There are tentative rulings, and more to be argued later. Look for my update later tonight.

Updated Monday, January 26th, 2009, 11:00 pm:

Defense Witnesses:
#1: Dr. Lakshmanan Sathyavagiswaran, (Chief Medical Examiner and Coroner for Los Angeles County; currently under direct examination)

Accredited Press inside the courtroom:
Morning Session: Harriet Ryan of the Los Angeles Times
Afternoon Session: Harriet Ryan, Linda Deutsch of the Associated Press, Kathryn, US corespondent for The Telegraph, UK ,and a representative from Bloomberg News. Partway through the afternoon session, Aphrodite Jones, crime author, arrived.

I miss my 8:30 am train but I get inside the courtroom just in time. There's virtually no one in the courtroom except me and Donte, one of Spector's adopted sons. He's sitting in the back row on one of the plastic chairs intently texting on his phone. I'm wondering if anyone told him that Spector would not be here in the morning since they are only going to argue motions. Speaking of emails today, maybe he got left off the email list.

Harriet Ryan is here in her usual bench seat along the back wall. AJ, Truc, Weinberg and Susan are here and Cindy is the court reporter covering the morning session. Bailiff Kyle is not here so Sheriff Williams is the bailiff box. There are other Sheriff's filling the second seat where Williams usually sits. The court clerk, Wendy is absent this morning. Weinberg asks Williams if he minds if he goes and looks at the calendars behind Wendy's desk that detail the dark days for a three month period at a time. For those of you who haven't been inside 106, behind Wendy's desk area, there are three calendars hanging in a row on the back wall. There are always three calendars up there covering a 90 day period. The days where court is dark are marked out with a black "X."

A public person, an older gentleman who was here a few weeks ago is back and peppering me with lots of questions and opinions. He doesn't stay long since he has to go to another court for his jury duty service at 10:00 am.

Allan Parachini comes out of the Judge's chamber's area and greets Harriet Ryan. 9:41 am, Josh, the people's clerk comes in with papers for AJ. The thing that is holding up the hearing for motions is the fact that there is no clerk. I don't know if that's a rule that there must be a clerk before the Judge can take the bench. I know the Judge came out for a moment to start court but when he realized there was no one to replace Wendy he went back into chambers. Court staff try to drum up a clerk to sit in for the morning session.

Allan Parachini and Harriet whisper very quietly in the back row. A clerk is found! But it's not a clerk, it's an administrator, upper level I believe, a woman that Allan knows and smiles and greets her when she comes in. She fills in for Wendy. Allan stays to talk to Harriet and at 9:47 am the inner doors close. Fidler takes the bench at 9:49 am. Judge Fidler states that there are two motions that he's aware of that are still to be litigated: reviewing the scene and the scope of the defense expert testimony or if there will be any expert. Fidler states that they will start with the scene first but Weinberg interrupts and asks for his motion to be heard that he believes supersceeds. Fidler apologizes and says, "Of course."

This is the standard defense motion for a dismissal citing that the prosecution has not met their burden. (I'm not positive if this is for dismissal or a motion for "acquittal," since I do have that word in my notes.) Weinberg outlines every issue that he feels supports his motion stating there isn't enough evidence (to continue the trial). He starts with the autopsy and the fact that the examination could not determine manner of death. He moves onto the testimony of Dr. Herold and that the scientific evidence can't put the gun in Spector's hand, "...except for one pseudo exception, the evidence is consistent with Lana Clarkson [...] making the shot herself." As to "...the blood on the back of the wrist, and "if" it was there, [...] that's not evidence, it's lay opinion."

Weinbergs argument moves onto blood spatter analysis and the fact that Jamie Lintemoot "even by her own opinion" was not a spatter expert. Weinberg states that Adriano's testimony was "problematic." There are more arguments and I'm sure you get the gist of where he was going.

When it's the people's turn, AJ gets up and states, "The evidence is overwhelming. Very seldom do we have so much evidence. He also mentions something to the effect (to counter a statement by Weinberg) that it's "rarely" a single piece of evidence that points to guilt but a totality of the evidence. AJ then goes onto outline his first point, the "pattern of violence" that, when presented with a particular set of circumstances, he (Spector) reacts violently." AJ moves onto the scene and the fact that "clearly he had an amorous intent," specifically mentioning the 2 missing viagra tablets in the three-piece blister pack found in his valise. Lana's position in the chair and her ready to leave in the fact that she had her jacket on, her purse on her shoulder and her shoes. That the "gun was Spector's. He would be the only one who knew where it was."

The five 1101(b) witnesses are mentioned by name. Adriano who was approximately 15 feet from the event when the gun was discharged. AJ goes over the events right after the gun being fired in detail, and Spector's statement and actions directly afterwards, that when De Souza asked him, "What happened, sir?," Spector just shrugged his shoulders in response. "The consciousness of guilt. He didn't call for help. He didn't cry out for help, or say a woman just shot herself." AJ also details the manipulation at the scene with the bloody diaper (rag), attempting in his drunken state to clean up the scene.

10:03 am, Pat Dixon enters and sits in the back row on the right. "And the only evidence that fits the scientific evidence is the scene Ms. Do and I presented to the court."

Weinberg gets one more rebuttal argument to the people's presentation. "With the litany of evidence and how much (0f it) is fabricated, [...] Mr. Jackson said this is a pattern and the court admonished (the people for using that term). Evidently there is nothing this court can do stop Mr. Jackson from using this evidence for what the court told him not to. [...] What does that have to do with Dorothy Melvin? [...] He wanted her to leave because he thought she was stealing. [...] What does that have to do with Stephanie Jennings? He wanted her to go to a party. [...] What does this have to do...? It's completely fabricated and consistently used by the prosecution and the law forbids [it]. That evidence shouldn't be used for pattern."

Fidler then interrupts Weinberg because he doesn't want to lose a train of thought he's got going that contradicts the argument about the prosecution using the word pattern to describe the 1101(b) witnesses. He says, "There was a later discussion. We had a big talk about it. [...] And then we discussed whether or not 'pattern' was acceptable language for the case."

Not long after this, Judge Fidler rules and states, "The fact that there is another explanation is irrelevant to the fact whether or not the case can proceed." Ergo, motion denied. Spector doesn't get a pass, you must put on a defense.

The email issue is discussed. Fidler doesn't buy Weinberg's argument that the defense jury consultant was trying to say, "The fountain shouldn't be toned down. There's no suggestion that the defense is going to do anything. [...] There's is no reason the visit will be inappropriate. [...] The fountain was under the control of LE (for two days). [...] The fountain wasn't manipulated last time. [...] There's nothing that could affect the fairness."

AJ doesn't go over every point in their motion, but does point out the words, "...make sure it's up 'full bore,' which may suggest that it could be in a different position. [...] The email says, we don't want the prosecution to control the jury view. We want to control the jury view. [...] The reason we did include the email, is to establish that Mr. Spector said, ' If things don't go the way I want them to go I will speak up.' [...] That's why we don't think it's a good idea in this case."

Weinberg immediately objects to the word "up" stating that's not in the email. He continues to defend Spector's email and pleads with Fidler that, "You have seen Mr. Spector's behavior through both trials. He's not going to act out."

I could swear Judgle Fidler almost rolls his eyes and replies that "full bore" is clearly an indication that a more reasonable inference can be drawn (that full bore does mean "up"). "I'm sorry, but there may have been manipulation. There is not enough evidence to support that so..." Fidler rules that, "...there will be a jury visit but the fountain will be off. If necessary it will be explained to the jury without casting any aspersions." Weinberg responds, "I'll consider that, your honor."

They try to hammer out a date for the jury visit. Fidler explains to Weinberg that it's the Sheriff's office that has to arrange with the Alhambra police the jury visit and it is a complicated thing. It can't be accomplished this Thursday, but next Monday is a possibility as well as the following Thursday.

Weinberg then comes back and says, "I think the courts ruling is unfair and seriously prejudice's the defense." Weinberg brings up the recording, but Fidler counters that the tape recording is misleading. Weinberg believes that there is only an on or off setting for the fountain. Fidler states that if Weinberg presents him evidence that there is only an on or off setting on the fountain then he will revisit his ruling. Michelle Blaine on her blog states that when she worked for Spector, the fountain had three settings: low, medium and high.

Then AJ brings up the last point in the prosecution's motion and that's Mrs. Spector's presence at the jury viewing. "She should not be allowed to stand there as the dutiful wife." Fidler states that at the first viewing, "In hindsight, Mrs. Spector should not have been there." It's her home and she can be upstairs, but not in view of the jurors during the visit.

The last issue that Weinberg brings up is the media presence at the viewing. He outlines the fact that at the last trial, only one reporter was allowed to go. Weinberg now tells the court, "I've been asked," to get the court to approve both Linda Deutsch and Harriet Ryan attending the visit. I'm surprised at this because I was under the impression that he was not going to bring this up to the judge, or mention the reporter's names. Fidler states, "I don't frankly care." The people do not appear to have any objection. Fidler replies, "If that works out for everyone they will coordinate with Mr. Parachini.

The last issue that is argued is Dr. Sieden and what he's allowed to opine on for the defense. The case that is being used as a partial guide is a 2008 Federal case, Moses vs. Payne (sp?) , Judge Fidler states his position and that one issue he is firm on is "trial by mathmatics. [...] Statistics have no place in court." Weinberg feels that the court needs to separate out the "expert testimony from the psychological autopsy" issue.

10:39 am: Donte leaves 106.

Weinberg argues that the Federal case mentioned Moses vs. Payne (sp?) "...has no value to California. [...] Dr. Sieden will talk about understanding the nature of suicide. [...] The people put on witnesses to suggest that because Lana Clarkson was making plans, she couldn't have committed suicide. Now having the prosecution put on those witnesses, [they want to] now preventing the defense from putting on an expert. [...] It would be patently unfair to allow the prosecution and then not allow the defense (to counter that testimony). [...] We have never suggested that Dr. Sieden would or should do a psychological autopsy. "

As Fidler is listening to Weinberg, I see a slight furrowing of his upper brow and forehead and his hand is resting in front of his mouth, elbow on his desk. Fidler responds, "Are you suggesting that he be allowed to use statistics?" Weinberg responds, "There is a line between what is a statistic and what science teaches us." He goes on to mention the prosecution's witnesses and what they suggest. He then replies, "In fact, a majority [of suicides] doesn't happen that way." Weinberg says that statistics is an overly broad comment. Fidler is clear. "I"m not going to allow that type of testimony. [...] (To infer) ....the majority.... the numbers are completely misleading. [...] When you say that, it's misleading.

Weinberg responds, "Well, you allowed it at the first trial." I think Fidler is a teeny bit irritated by that and responds, "It wasn't objected to. I rule on objections that are before me." Weinberg asks, "If medical science says (intra-oral gunshot wound) is virtually always suicide, what is wrong with saying..?"

Fidler replies, "There is a lot wrong with using numbers. [...] when someone uses numbers, it's allowing an expert to use numbers for an issue they are not allowed to testify to."

There is more argument back and forth by both sides. AJ asks if the issues covered "in camera" will be addressed. Weinberg states that at this time, he is not intending to go there. Fidler also replies that he did some serious rethinking about that issue. That's interesting because it means Fidler could reverse his in camera ruling. Weinberg says again that he doesn't think he is going to go there.

They really haven't hammered out what Sieden can and cannot testify to. Fidler states that "Clearly under California law, Dr. Sieden can testify generally. [...] Factors that are common for suicide; factors beyond the realm of common knowledge. [However,] he can not make conclusions about Lana Clarkson or if she fits into a pattern."

AJ then says to the court that he wants to understand that the door is not closed, and repeats what he believes is is understanding about Fidler's tentative ruling.

1. No statistics, subject to what Dr. Pena testified to or case law. (If Dr. Pena testified to statistics, then the defense can present.)

2. Dr. Sieden can not opine that she committed suicide

3. Dr. Sieden can not opine that she was suicidal or that she fell into a group with those risk factors.

The details of how Spector's emails fell into the prosecution's hands are cleared up by Weinberg. Spector was trying to send the email to a different Michelle and the email program automatically dropped in Michelle Blaine's name. Weinberg asks that the attachment to the people's motion (which is a copy of the email) not be made part of the public record. Fidler replies, "I don't think it's appropriate to seal it." Besides, it was already in the public domain.

And that's it for the morning session.

In the afternoon session, several members of the press showed up, more people from the general public and several supporters for Spector. There is a still photographer from the Associated Press in the gallery near the end of far left end of the second bench row. He has a big camera with a telescopic lens on a tripod. Some of the Spector supporters are men I think have come to court before one or two times. Then Harvey with the white hair arrives and later in the day the short tiny woman with blond hair shows up. Rachelle is wearing a very light brownish colored, form fitting pantsuit and for the first time during this trial, her hair is not in a clip holding it all together tightly in the back. Her hair is French braided into two braids on each side of her head. It's very similar to how she sometimes wore it at the first trial. Spector is in a black suit, big dark red kerchief in his suit pocket and a white shirt.

Before court even begins, or Dr. Lakshmanan Sathyavagiswaran even takes the stand, there are more arguments as to where Weinberg is going with this witness and whether or not Dr. Lakshmanan can talk about the study he did regarding LA County suicides from 2004 through 2006.

When Dr. Lakshmanan does take the stand at 1:54 pm, he is asked endless questions about Jamie Lintemoot's activities at the scene and what "his understanding was" of where Jamie Lintemoot was describing the blood found on Lana Clarkson's hands and wrists.

Through this witness, Weinberg is trying to ask questions about what the coroner's office does and doesn't do in regards to investigating a decedent's "state of mind." There were several objections and a few bench conferences and towards the end of the day the jury was asked to step out of the room for more arguments and that continued until a few minutes before 4:00 pm.

All and all, I would have to say that the defense case did not start off with a bang but more like a perpetually stalling car with many stops and restarts. Court continues tomorrow at 9:30 am.

I had hoped to transcribe the people's motion completely to deny the jury visit, but it's way late and I'd like to get to bed before midnight. Below is the email that was attached to the people's motion.

From: PHILLIP SPECTOR
Subject: Re: FW: Site visit
Sate: August 9, 2007 7:41:07 PM PDT
To: ROGERJROSEN
Cc: rgabriel, kennybaden, dnacjp, sbrunon, brunonlaw, chelle@rachellemarie.com, michelle@btprods.com, jennifer.barringer, tawni.tyndall

roger: re richard's email below. the prosecution is not allowed to bring anything. i won't allow it. it's still my fucking house. evidence, and exhibits are not prosecution props. and the prosecution will do no leading around. or rachelle and i will join in too. i am warning you now. this is still my house. not the judges. you better take control of this situation or i will. i will not have dickhead or jerkoff running things. or they will run into me. tell me now. or i will have four bodyguards here. not that i need them. i have a big mouth. and nobody with substitute anything for the mercedes. the mercedes is gone. phillip.

On Wednesday, August 8, 2007, at 7:35 PM, Richard Gabriel wrote:

Roger:

Fountain will be on full bore for site visit tomorrow, yes? Also, will prosecution and you be narrating by pointing out certain things during the site visit or will the jury just arrive, stand in the courtyard, go in through the front door and visit the rooms in silence? What is the procedure? I read a Court TV article which said that: The prosecution will bring some if its own props to the jury view. In addition to evidence photos, which they are expected to use inside the house to identify the locations of evidence, the authorities are also bringing a black Crown Victoria Sedan. I ask because jurors may use tomorrow to make some concrete conclusions about the case and I don't want narration from prosecution of fidler. I don't want them subtly directing the jury's attention to things they want them to focus on. This means having them spend more time in the bathroom or the living room than in the foyer or the courtyard.

Special thanks for Sedonia Sunset for helping with my edit this morning. Sprocket.