Phil Spector Retrial: Day Twenty-one

January 5th, 2008

Prosecution Witnesses:

#29 Dr. Louis Pena (LA Co. Deputy Coroner; performed the autopsy on Ms. Clarkson; 1st cross examination complete)

Accredited Press inside the courtroom: Harriet Ryan of the Los Angeles Times, Steve Mikulan of the LA Weekly and Linda Deutsch of the Associated Press all for short periods in the morning session only.

The last I heard, court was supposed to start at 9:00 am for a 402 hearing with Dr. Pena and I made a point to get to court early. Linda in San Diego had taken the train up and I got a chance to catch up with Dr. Carroll Adams on what's happening in the Cameron Brown retrial in 107, Judge Pastor's courtroom. There will be a pretrial hearing in that case tomorrow. Originally, it was scheduled for January 20th, but that date was canceled. It's very possible this trial will start right around the time that Spector ends and I'll get a chance to drop in on most of it. If you don't know about this case, Cameron Brown was charged with throwing his four year old child off Inspiration Point in Rancho Palos Verdes almost eight years ago. The first trial ended in a hung jury. It was not because some jurors thought he was innocent; they could not agree on the degree of guilt. I think this will be an interesting trial and I hope to attend some of it. It just depends on how long the trial will be and whether or not I can stay caught up on sewing. Pastor's court starts promptly at 8:30 am and that will factor into my decision.

Court in 106 didn't start until 9:30 am and the first hour was taken up with a collateral issue as well as the parties trying to push for or against this 402 hearing. Weinberg didn't want it, he argued that it "wasn't proper in this case," the judge did, mentioning the cases that supported his position for the hearing. No matter what Fidler said, like the energizer bunny, Weinberg kept coming back with many of the same arguments I've heard four or five times before and stating his position to Fidler that he would not be asking Pena any questions that were not asked in the first trial. He also stated he would not be presenting any documents that had not already been admitted in the first trial.

Spector's adopted son Donte is in court today sitting next to Rachelle Short in the front row. There are a few other public people in court today as well as two young 30-ish looking young men, one of which I believe used to work in Weinberg's office. There was also another slightly older gentleman who along with these two, greeted Weinberg in the hallway. All three men sat in on the morning session. Spector is wearing a black suit, and a black shirt with a white collar. No two toned shoes today. He's wearing an almost neon blue tie with a light blue handkerchief in his suit pocket. Rachelle is wearing nondescript dark colors. There is a long black scarf wrapped around her neck and she is swathed in her familiar dark purple blanket.

Weinberg then argues that he doesn't want to ask Dr. Pena questions on the stand, he wants to present questions he will ask Pena outside the presence of the prosecution. He wants to know if the limitations he's already been given (no psychological autopsy questions) just cover this cross or do they also cover if Weinberg presents Dr. Pena as his own witness. Fidler has to think about that for a moment and then address it. He asks to hear from the people.

Truc Do presents the people's position on the psychological autopsy and reminds the court that the coroner's office does not perform a psychological autopsy when there is a finding of homicide. It's only done where there is a finding of suicide or there is a question as to whether or not the death is an accident or a suicide. Juror #5 is not wearing a t-shirt today.

Weinberg argues that the purpose of cross examination is not to ask Dr. Pena his opinion on a psychological autopsy, it's to get in what he did nor did not consider when he came to his conclusion. "I'm not going to ask him his opinion; I'm going to asks him if he considered (specific things)."

Truc defends the prosecutions position again and Weinberg comes back with quotes directly from the autopsy report where Dr. Pena states the specific things he utilized to come to the conclusion of homicide. (No evidence of clinical depression in the medical file, speaking to Mrs. Clarkson about her daughter's state of mind.) Fidler states he will limit what Weinberg can cross at this time until the psychological autopsy position is resolved. Weinberg continues to argue his position with the court . Fidler's tone in response appears (to me) to get a bit terse. He can't specifically rule because Dr. Pena has changed his testimony on several things. He feels that he needs to hear some of Dr. Pena's answers before he will rule how far Weinberg can go. Weinberg comes back again to the judge, continuing to press his opinion.

10:20 am: Detective Tomlin enters the courtroom. I also notice that Harriet Ryan is in the back row in her usual spot. I'm not positive when she came in. Weinberg also informs the court that his co-counsel, Jennifer Barringer is ill and will not be back for several weeks. One of his assistants will be handing all the defense AV (audio and video) exhibits.

At this point, nothing is settled. Weinberg states that he still has many questions to go before he reaches the point of contention. One of Mrs. Clarkson's attorneys Bill Ferguson, enters the courtroom and the jury is called. Mrs. Clarkson is not in the courtroom. During the first trial she and her daughter Fawn, would leave the courtroom during Dr. Pena's testimony.

Weinberg refreshes Dr. Pena with the questions they ended with before the holiday break. Questions about the bruises, questions about Dr. Pena going to the scene, and that there was no evidence of a struggle at the death scene. Weinberg puts up a an image of the bureau with the open drawer and asks Pena to focus on the several picture frames on top. Pena agrees that the photos were not knocked over, and that "everything you saw gave no indication that had been a struggle." Dr. Pena agrees.

Through the next hour or so of questioning, Weinberg points out several inconsistencies in Dr. Pena's testimony from the first trial, this trial and the grand jury. He asks Dr. Pena how many draft reports he had before his final report was issued. There were three drafts. Weinberg questions him in detail about hand written changes to the first draft and what his thought process was. Weinberg tries to get Dr. Pena to state that there "is evidence" as to the position of Clarkson's head when her spine was transected. Weinberg states that the trajectory of the false teeth and how far they traveled tells us what position her head was in. Dr. Pena refuses to comment. He states, "That's a tough one."

There are many questions about how many intra-oral gun shot autopsies Dr. Pena previously looked at. Since 1994, he's performed 273 autopsies that were ruled suicides. Four were women that used a handgun intra-orally. The Dr. Lachmana study is brought up again. I think Dr. Pena held up pretty well under this section of cross.

11:11 am: Linda Deutsch enters and sits in her favorite spot.

There are several questions about when Clarkson was photographed at the coroner's office and when her body was cleaned for autopsy. Dr. Pena is asked about testimony he gave in the first trial, where Chris Plourd asked him questions about observing blood "spatter" or blood "stains." In several areas of questioning, Dr. Pena has stated that the testimony he gave at the first trial "is incorrect." Dr. Pena went on to explain that during the first trial, he was on the stand for four days and he was exhausted. And when Plourd asked him to identify a spot of Clarkson's hands he said blood "stains" verses blood "spatter," he clarifies that "spatter" is not a term that the coroner's office uses.

At this point, the prosecution objects to a question the defense asks and the jury is asked to step into the jury room for a few minutes. The jury is called back in for another ten minutes of cross and then the lunch break is called.

After lunch, when I get back up on the 9th floor, Donte is in the hallway talking to the defense team. Each time I've seen Spector supporters in court, I've seen them leave with Spector at the lunch break, but I've never seen them arrive back to court with him. It makes me think that they don't even lunch with Spector, although I don't know for certain one way or the other.

I forgot to mention that there is a second podium in the courtroom in the well of the court that Weinberg has placed extra files on and it blocks my view of several of the jury members.

While we wait for court to resume, Rachelle and Donte chat. I hear the noise of a cell phone keys being punched and on of the bailiffs tells Donte to tun his phone off. There is no accredited press for the afternoon session.

1:36 pm: Cross examination resumes and Weinberg brings up another inconsistency in Dr. Pena's testimony from the first trial. During the morning session Dr. Pena did state that he suffers from short term memory loss which is why when he is asked what he testified to during the first trial, he has said he doesn't remember. Weinberg points out that Dr. Pena rendered his opinion on MOD months before he received the final forensic evidence from the Sheriff's crime lab. Dr. Pena in his defense states that he had the verbal, oral data, just not the final reports.

Dr. Pena states that he interviewed Mrs. Clarkson three days after the death and this was the only person from he family he interviewed. Weinberg asks if he talked to anyone else about Clarkson's "state of mind." Very few jurors appear to be taking notes. Weinberg brings up something from Clarkson's medical file, that back in '94 she sought help for depression and Pena states that he did not know that. Pena states that he knew from the medical records she was a social drinker.

Weinberg asks, "Didn't you say, "If it wasn't for that statement (Adriano De Souza's testimony of what Spector said to him.) we wouldn't be here to me and Ms. Matros back in May 2008?" Dr. Pena replies, "I'm not saying I didn't say it. I'm saying it's not in my notes of the meeting and I don't remember."

Weinberg questions Dr. Pena's logic about searching for a weapon. Dr. Pena has stated he felt that if Clarkson was searching for a weapon, there would have been more drawers open. Weinberg asks, "How do you know the drawer wasn't (already) open?" Dr. Pena says he doesn't. There are more questions like this and I start to nod off.

There is another short break for arguments outside the presence of the jury. Fidler rules against the prosecution and states that Dr. Pena could be crossed on matters that he did not testify to under direct. All the meetings, manner of death and how Dr. Pena reached his conclusion of homicide were ruled acceptable for cross. Fidler states there is no definite ruling yet on psychological autopsy coming in, but that relates to a suicidologist. Fidler states, "However, what we have here is a coroner, not a suicidologist. It's what the doctor relied on to do his job. [...] I can't prevent the defense from crossing him, he used these issues to determine MOD." Fidler addresses Truc Do and says, "If you have some other offer...."

Truc Do presents her argument that it's tenuously related... it's collateral. Fidler responds that it's not collateral. Truc Do argues there is a difference between a collateral issue and collateral impeachment. There will be no 402 hearing. Weinberg effectively sidestepped Judge Fidler having this hearing. Fidler states he is seeing where the questioning is going of Dr. Pena and nothing appears out of order. He rules, "At this point, I feel it is fair game for cross."

2:24 pm the jury is called back in. Weinberg is able to cross Dr. Pena in detail asking him if he considered x, y, and z, (the statements Clarkson made in emails.) and would they change his opinion.

Weinberg then begins with the emails. Question after question is asked and several of Clarkson's emails are read in court. Weinberg continued asking whether or not that information changed his opinion to MOD. At one point, it's almost as though they are getting combative with each other. I think Dr. Pena defended his logic and conclusions well. At one point, Dr. Pena asked to read the entire email and he felt the email was a positive, upbeat one and not a depressive one. Dr. Pena's answers several times that "it made no difference (to his conclusion) to know this email." When he says that, I hear Spector's #1 fan (who is sitting in the row behind me to my right) make some audible sounds, in response to that. I note out of the corner of my eye that her arms are crossed across her chest and it sounds to me as though she can't believe Dr. Pena's answers.

2:52 pm: The afternoon recess is called. During the break, regarding the defense's cross on the emails, I overhear someone standing in the gallery say, "It's a bullshit, desperate attempt to bait the jury. It didn't work in the first trial and it won't work this time."

3:08 pm: The jury reenters the courtroom. Another email, written to a "Peter" is presented and Weinberg tries to state that the email is not dated. Truc Do corrects Weinberg and states it's dated 12-15-02. "Would it have made any difference to you?" Dr. Pena says no. Another email dated 12-16-02 is presented that also talks about Clarkson getting the Marilyn Monroe part. "Would it have made any difference to you that shortly after she got the Marilyn Monroe part, she was fired (from it)?" Dr. Pena says no.

The first cross ends with a whimper. Judge Fidler then ends court for the day since the HVAC (air conditioning) is not working and it's quite warm in the courtroom.

Court resumes at 9:30 am tomorrow for redirect. Court will only be half day because Judge Fidler has a personal appointment.