Phil Spector Retrial: Day Forty-eight, Another Discovery Violation?

February 25th, 2009

Defense Witnesses:
#12 Dr. Vincent Di Maio (famed forensic pathologist, author and former Bexar County, Texas coroner; testimony complete)

#14 Gregory Sims (acquaintance/friend of Lana Clarkson; hosted an impromptu party at his hotel suite a week before Lana died; currently under cross examination)

Special Hearing outside the presence of the jury:

#4 Tawni Tyndall (defense investigator; Tawni is the fourth witness to testify in a hearing(s) outside the presence of the jurors)

Accredited Press inside the courtroom: None identified

Just when I think not much will happen in a short, half day of trial testimony, we have a day like today. I am wondering if down the road, what happened today will be compared to Baden's "AHa" moment in the first trial.

I get to the Criminal Court building about 9:20 am. Right before I enter, I realize that I have left my steno notebook at home. There's no time to walk three blocks to the underground city and buy one from CVS. I'm just going to wing it and hope there is someone who can let me have some paper.

When I get inside 106, I see the DA's clerk, Josh is sitting at the end. I tell him I forgot my notebook and ask if I could have 4-5 sheets from his yellow legal pad. Kindly, he immediately tears out five sheets of paper from his pad. I'm fortunate that I have a book with me that I can use to write on. For a moment there, I thought I was going to have to write in the margins of the book I've been reading on the train, The Tipping Point.

There's a man who has been sitting in the back row a few times, now sitting in the first row. He looks like he's either a reporter or a young attorney. The large, soft-leather briefcase he carries makes me thing he might be an attorney, but the reason I think he might be more of a reporter is that he doesn't wear a suit jacket; just a white shirt and tie. Bailiff Kyles comes over to inquire who he is and he then moves to the second row, close to the jurors.

9:32 am: The jury is called. There are three Spector supporters in the second row sitting behind Tawni Tyndall and Rachelle Short in the first row. Dr. Di Maio is back on the stand under redirect. The jurors ask for more notebooks after they come in, and the Bailiff, Kyles, tells them to speak up, because he's only making one trip. Juror #3 gets a new book and another juror gets a second book from a juror that already had one.

9:35 am: Donte Spector enters 106.

Weinberg is going over with Dr. Di Maio the distance that spatter may travel. Dr. Di Maio states that not only does he refer to the experts in Europe, but that his opinions stem from "...that and practical experience and articles." Weinberg asks if it's also based on personal observation, and Dr. Di Maio answers, "Yes."

DW: You have reviewed and seen spatter travel various distances?

Dr. DM: Yes.

Weinberg now asks him the question Mr. Jackson asked about GSR and it being microscopic.

DW: Those are what analysts consider. [...] But in the firing of a bullet, there are other items that could be (considered?) to make up GSR: soot, gunshot fragment, burnt, and partially burnt gunpowder?

There are more questions detailing what you can and can not be seen visually to the naked eye.

DW: Scientists would agree that... (there's more of the question but I miss it)

AJ: Objection! Scientists would agree....

Fidler: Sustained.

DW: Is the term GSR used sometimes to describe both, loosely?

Dr. DM: Yes. Technically, it's incorrect, but used loosely, yes.

DW: Do you know Dr. Spitz? [...] Have you written articles with Dr. Spitz and you have an opinion about Dr. Spitz?

Dr. DM: He's considered to be the (number one ) standing pathologist in the US.

Dr. Di Maio talks about how there is a friendly competition between the two since they both have books out on similar subjects.

Weinberg now asks questions about his starting point for his mode of death (MOD) to be intra-oral suicide. "And that standing alone, give you a probability....?" Weinberg asks.

AJ: Objection!

Fidler: Sustained!

Weinberg now moves onto horizontal verses vertical and that suicide gunshot wounds go upward. "Are the diagrams anatomically correct?" (He's asking about the diagrams in the coroner's report!)

Dr. DM: No. Women's heads are different.

Dr. Di Maio goes onto explain that even when they autopsy them they cut open the skulls in a different place than they do men.

DW: In regards to intra-oral (suicides) you would expect it to go upward?

Dr. DM: Suicide; yes. To go up.

DW: You expect it to go through the hard or soft palate?

Dr. DM: That's typically the case.

Weinberg then goes over the text of the autopsy report that details the trajectory of the bullet.

Course: Hemmoragic wound trac passes through the oral cavity, dorsum of tongue, hard and soft palate and into the soft posterial pharyngel tissue...

DW: So it did pass through the soft palate?

Dr. DM: Yes.

Now there are several questions about what he could see in the photos of Lana Clarkson's hands at the scene.

DW: Did you see blood spatter in the photo?

Dr. DM: Only on a photograph of Ms. Clarkson's left hand.

DW: Is this the only blood spatter you have seen?

Dr. DM: Yes. It's on the radial aspect of the left hand.

Weinberg wrestles with which side that Dr. Di Maio is talking about on the wrist. Weinberg keeps wanting to use the terms "inner and outer" getting them mixed up in pure anatomical terms. He asks if one side is the lateral side, (pointing to the medial) and Dr. Di Maio corrects him that the other side is the lateral side.

DW: Have you ever seen a photo, or other documentation, recordation, (of blood spatter) on the backs of Ms. Clarkson's wrists?

Dr. DM: No. Just on the backs of hands.

DW: Would you as an expert, consider (a) blood stain that is not recorded?

Dr. DM: If it's not recorded [...] especially not documented. If only going by memory, you can't really consider it.

Weinberg now asks Dr. Di Maio to consider a hypothetical and he gives an example that is almost the exact events of Jamie Lintemoot's involvement in the case.

DW: Assume an employee in your office, not a spatter expert. Assume that they have a photographer (photograph the scene). Assume further she writes notes of blood on wrists. And later writes a report of blood on both hands and wrists. Assume further she's at a meeting where she describes and explains to medical staff that she saw blood on right wrist on the back.

(At this point, Josh hands me a spiral notepad! I'm saved! I can only guess that he obtained one from the Bailiff for me.)

DW: And assume further that she testifies further that [...] then testifies further that she didn't mean to characterize and that she saw pinprick like spatter on the back of wrists.

AJ: Objection. That's an incomplete hypothetical.

Fidler asks for a sidebar. I think he is addressing AJ when he says, "I think I know what you're going to say."

At the sidebar, Fidler speaks and during that, Weinberg has a tiny "no" shaking of his head. Now shaking his head again. AJ is speaking but his back is directly towards me, facing the judge so I can't hear anything he says. At one point I "think" I hear Truc Do address Weinberg and say, "....Want me to get it for you?"

As I look around the courtroom I notice there are two new Sheriff's in the back of the room. The young Asian man whom I'm guessing is a part of the DA staff enters and sits in the third bench row. Dr. Di Maio is leaning back in the witness chair, looking off toward the jury.

I could swear I heard Fidler say, "Don't do that! [...] False!" Weinberg had stepped away from the bench for a moment. Understand that's what I think I might have heard but I'm not positive at all. After the sidebar, Weinberg leans over and speaks to Susan below a whisper.

Weinberg then gets back to redirecting his witness.

DW: Rather than give you a complicated hypothetical... [...] If you as a medical examiner have reviewed the records and the phrase "back of wrists" doesn't appear anywhere and only photos that show blood [...] Would any verbal statement by (a) person, can you ( consider it)?

(Right after Weinberg states that he won't give his witness a complicated hypothetical, I look over at the jury. Most of the back row is smiling.)

Dr. DM: No it would not. It's too long. Too many bodies. You can't really consider (it).

Weinberg now puts up on the screen an image of Lana's right hand and the chipped nail.

DW: Have you seen that in connection with people who have shot themselves?

Dr. DM: Oh yes. [...] It happens all the time.

DW: Have you seen this phenomenon, a broken nail [...] with broken nails in connection with suicides in intra-oral wounds?

Dr. DM: Yes, certainly.

DW: And have you seen it with suicide in intra-orals?

Weinberg now moves onto the "KM" testing that Steve Renteria did. At first, Dr. Di Maio is confused by the term "KM" testing and Weinberg explains "Kastle-Meyer." Weinberg puts up on the ELMO a diagram that I don't remember. It was created by Steve Renteria and it's a schematic drawing of a jacket that has hand written notes on it as to where he did KM testing for blood. Weinberg points out an area of the jacket at the top that tested KM negative. He asks Dr. Di Maio what it means on the diagram where it says "KM +" and Dr. Di Maio testifies that means it was positive.

DW: How many places do you see (that show positive for blood)?

Dr. DM: Only five. One, two, three, four. I believe it's four.

DW: So about four perhaps five spots are confirmed blood?

Dr. DM: Yes.

DW: You just made mention of a spot on the back of the jacket. Is there any way that spatter could have gotten on the back of the jacket?

Dr. DM: No sir.

DW: There was a fair amount of blood on the gun?

AJ: Objection! Vague.

Fidler: Clarify please.

DW: Do you have any idea (of a) way that blood could get on the handle from a spatter event? [...] Could that amount of (blood) have gotten there anyway?

Dr. DM: If it's falling against a hand or a dress.

DW: So it could be do to spatter smearing? [...] So that amount of blood could have gotten on it?

Harvey with the shock of white hair enters 106 and sits beside Rachelle.

DW: But if the gun is held in a position, being (of the handle being exposed)?

At this point, I write that Dr. Di Maio is rambling. I can't catch exactly what point he's making and it doesn't make any sense which makes it harder to take notes. My notes here are quite scattered and unconnected. (But if blood get rubbed again it, it could get there. See?) Another suited man enters who looks like an attorney. The next statement, I'm not sure if it's asked as a question or answered. "The mouth would be propped open [...] due to the gases [...] and out comes material."

DW: And additional (material) comes out the nose?

Dr. DM: Oh yeah. Yes.

Weinberg plays the animated video again of a photo of a Golt Cobra that morphs into an animated gun that goes off into a diagram of a woman's head. It shows the wound track into the head and the spatter that comes out of the mouth and nose.

DW: Again, this is not intended to reproduce anything in this case. [...] But this is a general indication?

Dr. DM: Yes. It comes out as mist and droplets. [...] They (experts) all agree on that. They only argument is how far it goes. [...] That's right. It stops when smaller and the larger drops go farther.

I look on over at the jury. It appears that #5 has her eyes closed for a moment. #4 is rocking in his seat and I can see no note taking from jurors #4 through #9 as well as #17 and #18. Understand that from where I'm sitting, I cannot see clearly the lap of jurors #1-3, or #10-14.

Weinberg now moves onto the "checkering" and the little raised spaces and the groves on the handle of the gun. A photo of the checker pattern is up on the ELMO.

DW: There are a few of these little projections that have blood droplets on them?

Weinberg then asks about the amount of blood on the gun.

Dr. DM: There's not that much blood on the gun.

There now are questions about the swabs that were taken of the gun to test for DNA. Weinberg asks if all of them tested to Lana Clarkson and Phil Spector's (DNA) was not connected to any of the seven spots (tested). Weinberg then gives Dr. Di Maio a hypothetical. Say someone took a gun and forced it in the mouth (and shot them). Then a few minutes later they went outside to speak to somebody and then they came back inside and (placed? dropped?) the gun.

DW: Would you expect that person's DNA to be on the gun?

AJ: Objection! Foundation! (I believe this is sustained because of the following questions.)

DW: Does your work involve DNA experience?

Dr. DM: Well, yes.

Dr. Di Maio goes onto state that he's worked two cases where he had to determine whether or not DNA was involved/found on a weapon. At this point, Fidler states he's going to allow him to continue to testify. Dr. Di Maio goes on to talk about one of the first cases of DNA testing was done through his office. (I'm assuming that was back when he was Bexar County Coroner.)

DW: Have you supervised any DNA testing?

Dr. DM: I'm not a DNA analyst. [..] I've seen some results.

DW: Not that you've done any testing, but you've reviewed?

There's more testimony about DNA transfer and prior cases he's been involved in. He rambles on about one case that he was involved in where he refused to testify.

Alan Jackson objects, and Fidler steps in to question Dr. Di Maio.

Fidler: Are you an expert in DNA transfer?

Dr. Di Maio pauses. He hems and haws. He states that he doesn't, "...think there is any training in transfer DNA available." AJ renews his objection to strike all testimony of DNA based on the answer. (Unfortunately, I don't have the ruling here. At the same time, I can't believe Weinberg is trying to get Dr. Di Maio to testify about transfer DNA. He clearly stated he's not an expert. But listen to some of the next questions that come. He is still trying to get this testimony in.)

DW: Do you have experience in determining the presence or absence of DNA on objects?

Dr. DM: Years ago, I set up a laboratory....

Several more questions then on transfer DNA.

Dr. DM: Transfer occurs. [...] Everyone knows that.

There are questions about if he's consulted on cases involving DNA. And Dr. Di Maio states, "There isn't much in the literature on transfer DNA." The witness states that he's read what literature there is on it.

AJ: Objection! Again.

I believe it's at this point that AJ states that he can read the literature too. I'm not clear on my notes here, it's either Fidler or AJ that states something about "not casting aspersions," and Fidler states, "But to determine a ruling, I have to listen to it." (The question.) AJ then replies, "Then I have to listen to it, too." Fidler states, "If you wish to stay in the courtroom."

Dr. DM: Basically, I have case materials. [...] There are limited studies. [...] Transfer (DNA) the actual incident (of studies) [...] Nobody knows. [...] I've read the literature in the field.

DW: You're familiar? Do you have an opinion?

AJ: Objection!

Fidler states again he needs to hear the hypothetical before he can rule. Weinberg gives the same hypothetical again about someone firing a gun then goes outside to speak to someone then comes back inside and puts the gun down.

Fidler: I'm going to sustain the objection.

AJ asks to "move to strike" all DNA testimony. (I'm not certain, but I believe Fidler responds that only those points where there's limited knowledge. That part in my notes isn't clear and I'm sorry about that.)

Weinberg now goes back to a question that Mr. Jackson asked. "What part of your analysis (included) that there was little spatter on the right sleeve?'"

Dr. DM: You had to have (an) arm, six inches from the mouth and material would have come out on the right sleeve.

Weinberg then lists a litany of areas where there was spatter and then the last listing is, "There was no spatter on the right sleeve? [...] Was it significant to you there was no evidence of bruising to Ms. Clarkson's face? That was inconsistent with blunt force trauma?'

Dr. DM: Yes.

Weinberg then asks about the size disparity between the two individuals. And he asks a hypothetical about a struggle of wrist grabbing. It's similar to what the prosecution contends in their demonstration of where Spector was grabbing Lana's wrists.

DW: Would the size (of the individuals) make a difference?

Dr. DM: Yes.

More questions about a struggle and no evidence of the gun being forced into the mouth. Weinberg mentions the difference in height, age, weight.

DW: Would that make a difference?

Dr. DM: Yes.

Weinberg asks one more time what his conclusion is about the manner of death, and that he has, "no doubt" about it?

Dr. DM: That's correct.

AJ steps up to recross and states he's going to be brief. He asks something about anything Dr. Di Miao has heard to change his opinion and then he asks him if he was being as truthful as possible.

AJ: If the facts in this case establish that Mr. Spector was within arms length of Ms. Clarkson. [...] If the facts of this case establish that she could not be holding the gun. [...] And if in fact that Mr. Spector walked out of the house and admitted that (he killed her); would that corroborate or contradict (your conclusion)?

Dr. DM: You could use it for corroboration but I don't really use witness statements.

I seem to remember he had one more question but I don't have it in my notes. Weinberg then asks a few more questions.

DW: You don't make your (determination) on any one fact?

Dr. DM: No. I kind of refer to it as a puzzle. [...] You consider the (spec?) but you have to disregard it. [...] And when you par it down, your conclusion is beyond a medical certainty?

Dr. DM: Yes.

It's 10:30 am and the morning break is called early. This break lasts almost a half hour.

Weinberg wants a hearing about the ruling of striking Dr. Di Maio's testimony on transfer DNA. Because of the limitations Fidler has placed in this testimony of Dr. Di Maio, he's now asking that Jamie Lintemoot's testimony about the spatter on the back of the wrists and Dr. Herold's testimony about the fabric pattern be striken from the record.

Fidler: Motion to strike is denied.

Totally ignoring the court's ruling Weinberg presses on and asks if the court is finding Jamie Lintemoot is a blood spatter expert.

(I don't have it in my notes but I believe AJ speaks a few sentences. I believe these statements are AJ's.) "She is trained to recognize spatter. She is not a spatter analyst."

Weinberg speaks again about Lintemoot's testimony. Fidler, sounding exasperated, "The statement you just made is exactly what the prosecution just said!

DW: That's not what I'm talking about.

Fidler: We'll talk about it now.

I'm shaking my head in disbelief. In my opinion, it's a desperate attempt to get Jamie Lintemoot's testimony tossed on describing the spatter on the wrists.

Weinberg presses on, arguing his points to Fidler and he's not saying anything that I haven't heard before. I look over at Spector and his right hand, resting in his lap is shaking.

DW: There's not a shred of evidence that she was talking about blood on wrists.

Alan Jackson and Truc are standing off to the side by the jury box. They are not even sitting at their seats. It's like they are watching a train wreck. I take the time to look at Truc's outfit. It's a basic black pantsuit. Her top has ruffles around the V front and little tiny stretch pleats around the bottom It's a cute, tiny, black and white check print. Weinberg is now trying to say that Jamie Lintemoot's demonstration of where she saw spatter was NOT in the "watch" area on the wrists but in the area near the webbing between the thumb and forefinger.

Oh my gosh! Fidler's tone is not happy!

Fidler: I HAVE THE BEST VIEW OF THE COURTROOM! AND I DESCRIBE WHAT I'M WATCHING.

Weinberg continues to argue with the judge.

DW: The court tells me I have to accept her altered testimony and (the) court allowing the most important, single piece of evidence in the prosecution's case and I (think it's fabricated). [...] I believe two things. That the defense should not be constrained because she came in here six years later and said, no, no, no.

Weinberg continues with his argument.

Fidler asks the people if they have anything to say.

AJ: I don't think there's anything to say that. [...] The argument is ridiculous.

Fidler tells him that he has never precluded him from using that in argument. Fidler goes on about the hypothetical he tried to present to the jury, where he left out an important part of Lintemoot's testimony.

Fidler: You can't pretend that the testimony didn't take place and I put the word pretend "in quotes," and that's why I objected and ruled to it.

I think that's it. Fidler leaves the bench. AJ leans in and asks Mrs. Clarkson, "How are you holding up?" She leans in quite close to AJ to answer him so I do not hear what she says. I see Spector sitting in the second bench row, talking to a gentleman with salt and pepper hair. The supporter is wearing black rimmed glasses and has a bit of a beard under his nose and around his mouth. I see a gentleman in the gallery on the plastic chairs sitting with a much younger man. The Bailiff asks him who he is and I overhear that he's a witness. More Spector supporters show up.

1o:58 am: Wendy calls the jury.

The next witness is Gregory Sims.



Gregory H. Sims testifying for the defense at the first trial in 2007.

Mr. Sims is wearing black pants, a bright white shirt and a black jacket with no tie. Sims states he is an independent producer and personal manager. "That means I produce films outside the studio system."

Sims testifies about what work he's produced. "I did a couple of the early George Clooney films. I did an Amanda Peet project Touch Me." He also produced a critically acclaimed project Suddenly Naked. He state's he's represented Golden Globe and Academy winners. Recently, he's been involved on the music side, working with a superstar in Europe. He's been in the entertainment business for over 30 years.

Weinberg gets the witness to state that he is not here as a volunteer, he was subpoenaed. He testified last year under subpoena also.

DW: Did you know a woman who is known by the name of Punkin Pie? [...] How long have you known her?

GS: Since 1989.

DW: How did you meet?

GS: Originally on a film I produced called To Die For, a retelling of the Dracula story.

DW: Did you develop a personal friendship?

GS: Yes. [...] More so when she did her music producing.

DW: And you've remained friends to this day?

GS: Yes sir. [...] She's a close friend.

Sims states he knew her more, spent more time with her as to her promotions. He explains that Pie did the promotions on Tuesday nights at a club/restaurant called The Backstage. She knew several owners of that club, including Ian Copeland, who passed away.

DW: There were performances there?

GS: There were.

DW: There were also lots of people you knew there?

GS: (I) did a lot of networking there. [...] You never knew what celebrities or who would show up there.

DW: Do you know when that began, her promotions?

GS: I think the 70's.

DW: If you were in town, you would be at the Backstage on Tuesday nights?

GS: Mostly.

Sims testifies that he knew Lana Clarkson through Punkin. He met her at the Backstage at first. Sims states that they were never anything more than friends.

DW: Would Lana participate in those Tuesdays?

GS: She was there quite a bit.

DW: Did you know about their relationship?

GS: They were best friends. [...] They would say they were best friends. [...] Pie always had the same table (at Backstage). They were always hugging, and kissy face with each other, like best friends are. [...] They were close friends.

Sims states that in 2001 he was involved in a small, low budget film where Lana had a small part. It was not a significant role. During that time, 2003, when he was in town he lived and worked out of a hotel suite in Century City.

DW: You entertained and hosted parties there?

GS: I did.

Weinberg now gets his witness to testify about an impromptu party that happened in his suite in early 2003 on a Tuesday night. As the Backstage closed, people would show up at his hotel suite and it turned into a big party. He came home at midnight that night and most everyone came.

Weinberg puts up a photo on the ELMO of Lana with some other people. Sims identifies Pie and Lana in the photograph.

DW: Does that photo look like the Backstage Cafe?

Sims stares intently at the photo.

GS: I don't know. It doesn't. [...] Everybody looks familiar. [...] I don't know who the guys are.

Weinberg asks how many people were at that party in his suite at the high point and Sims states, "About 40."

DW: You learned that Lana Clarkson died on a Sunday? [...] Do you know when this party occurred in relation to her death?

GS: It was a week before. A matter of days.

DW: Pie and Lana came to the hotel?

GS: Pie left before Lana.

Sims played host and saw her drink alcohol. She was drinking a lot that night. Weinberg now asks if there was a point where only one guest was left, and that was Lana.

GS: It was about 1:30 or 2. (am)

DW: Did Lana indicate to you in any way (her state of mind)? [...] And she was talking and opening up?

GS: She was in a distressed state.

DW: She was inebriated?

GS: Yes.

DW: Was she depressed?

AJ: Objection! He's not a psychologist or psychiatrist.

Fidler states that he could give a "lay person's opinion."

GS: My lay opinion [...] she was very depressed. [...] I talked to her for about an hour-and-a-half. [...] She did most of the talking. [...] I was a shoulder to cry on.

DW: Did she cry?

GS: She was part weeping. [...] She talked about being very unhappy in (her life? career?). She said, "I hate all the motherfucker's in this business!" [...] Her career was not going very well. [...] I talked about my kids and she was interested in that. She wanted some and it was a very bad night for her, that's all.

DW: Was there a particular topic? Job? Career?

GS: I'd just state it was a bad night.

DW: What did she say about her career?

GS: That it wasn't going very well.

Weinberg asks questions about her demeanor that night and Sims states something to the effect that she was in a bad state.

GS: She was generally a very upbeat person.

The degree to which she was distressed was extreme. There are questions about the small film role she had in his production. Sims states, "I didn't produce it. I sold it. She was dating a friend who (directed? produced?) it."

DW: How much was she paid?

AJ: Objection! Foundation!

Fidler asks the witness if he knows. Sims states that he thinks it was a SAG minimum wage. Everyone on the film got SAG minimum wage. She worked one day so that would be about three to four hundred dollars.

Sims states she had talked about a relationship that had just finished.

DW: Did she continue to drink when she talked?

GS: She did. [...] Her intoxication reached a point where she wasn't functioning very well. [...] And she would repeat and repeat. She did talk about being at the end of her rope. [...] And I talked to her about talking to someone, therapy. And I can't remember if she said that she was going or had gone. [...] And I was talking to her about all the members of my family who went to therapy and how it helped.

DW: Was there anything hopeful about her tone that night?

GS: No.

DW: Had you ever seen her in that tone before?

GS: No.

Weinberg asks about the highs and valleys of an actor's career and what Sims has seen.

GS: I've seen people in a bad way. That's as down as I've seen anybody.

DW: Was there any resolution to the discussion?

GS: No. At some point Pie came and took her away. [...] Both of us helped her get to the elevator. [...] My recollection is she talked about how she didn't want to go on.

DW: Roughly, what time did Pie come back?

GS: About 3, 3:30 (am).

DW: And she continued to drink the entire time?

GS: She did. [...] She was not real functional at that point. [...] We had to support her and help her walk.

DW: What was your concern?

GS: I felt badly about her. [...] I felt badly for her.

DW: Did you discuss with Pie your (concerns?) observations?

GS: It was something that Pie was more familiar with.

DW: Did you see Lana after that?

GS: No.

DW: Did you tell anybody besides Pie?

GS: In the immediate days, no. [...] I might have discussed (it) with my wife.

DW: Did you discuss (it with anyone) later? [...] Was it your intention to get involved in this case? [...] Did you get involved prior?

GS: One of the people I talked to was my friend Lisa Bloom. At that time, she was not working for Court TV. (Later) she became an anchor on Court TV [...] and her producer called me. [...] At the time (it happened) I think she was working for her mother's law firm.

Sims states he got a call after the trial started. (The producer) wanted to know if I would be willing to talke about the Foundation Room and the entertainment industry. After a few days he did agree because Lisa wanted him to do it. "Mainly because Lisa is a good friend. [...] She was at my wedding."

DW: Did you do it because you got paid or wanted to get involved in the trial? [...] Have you given your best memory on that Tuesday-Wednesday?

GS: Yes sir.

DW: Have you exaggerated any part of it?

GS: No.

When AJ gets up to cross, one of the first things he asks is, when was the last time he talked to Tawni Tyndall.

GS: Today.

AJ asks when was the last time before that.

GS: Yesterday.

AJ asks when was the last time he went over with her the sum and substance of last year's testimony.

GS: Yesterday.

AJ asks if Mr. Weinberg was present at that meeting. Sims states that yes, he was. Sims states that the conversation took place at an office on Hill Street. (Weinberg has rented office space in Pershing Square for his participation in this trial.)

AJ: Was Ms. Tyndall taking notes?

Sims isn't sure.

AJ: Was Mr. Weinberg taking notes?

GS: Maybe.

AJ: Were you shown your testimony from last year?

(If I'm remembering correctly, I think Sims says he wasn't.)

AJ: And you were going over with Mr. Weinberg the questions you would be asked?

GS: Minimally.

AJ: Your honor, may we approach.

At the bench, I see that AJ speaks and as he's speaking Weinberg shakes his head. Weinberg continues to shake his head when he addressed Judge Fidler. Some of the jurors whisper among each other.

Fidler then addresses the jurors. It's 11:30 am, and Fidler tells them it's doubtful that they will get back to them. Since three of you have asked off for religious purposes, he is releasing them now.

After the jurors exit, Fidler asks AJ if he wants the witness to step outside or stay.

AJ: It would be beter if Mr. Sims steps outside.

I note that the young man who came with him stays in the courtroom. AJ goes over a point and then says, "Ms. Tyndall may become a witness. Could we have her step outside?" Ms. Clarkson's attorney leans into AJ and tells him that Sim's had a friend come with him. I hear AJ state that he can't kick him out. Tran Smith gets up from the defense table and asks the young man who came with Sims to step outside.

AJ: I don't know what else to say. Yet again, the prosecution has been blindsided by another defense discovery violation.

AJ then goes into a chronology of Sim's interviews. But he gets it mixed up at first and then corrects himself. The witness first went on Court TV. Then he had a phone interview with Tawni Tyndall. Then interviewed by Tawni Tyndall.

AJ: NONE of those particulars include this statement. NOT ONCE did he say in prior testimony that Lana Clarkson said that she was so despondent that she didn't want to go on.

AJ goes onto say that "Up until this point, we've had no other witnesses besides Punkin Pie to make that type of statement."

AJ: Now, all of a sudden for Mr. Sims to come to court and say.... (Mr. Weinberg said,) "Yes, he told me last night at 6 pm that she was in such dispair that she didn't want to go on." [...] It should have been memorialized! We should have been told! The entire defense case rests (on this issue of suicide) and now this statement. And Mr. Weinberg said "I didn't think it was all that much different." (Weinberg must have said that at the sidebar.) Not once in this transcript (I think he means prior trial testimony) did he say that she was so despondent she couldn't go on.

I believe AJ also added that when Sims testified before, he stated that he had seen people with that type of ups and downs before.

AJ: This is a major, MAJOR discovery violation.

DW: My reading of it was this was no different from other people. [...] That to me, is consistent (with his prior testimony) that she had hit a wall. [...] I heard what the man said was entirely consistent with his testimony before. She hit a wall. [...] To me, the entire meaning of that (his testimony was) she was at the end of her tether. [...] I do not consider his testimony... (From memory, I believe here, Weinberg says either inconsistent, or a discovery violation.)

Fidler states that he wants to hear from Ms. Tyndall, "I'd like to find out before we go on." Tyndall is called to the stand.

Weinberg leaves the courtroom and we are expecting him to come back in with Ms. Tyndall. But at least 30 seconds or a minute pass before he comes back inside 106 without Ms. Tyndall and says to Fidler, "Do you want me to tell you what Ms. Tyndall says?"

Fidler: No. I want her brought in.

DW: Oh, I'm sorry your honor. (I misunderstood.)

I was struck dumb by what Weinberg just did. My jaw literally dropped and then I got very mad. It was clear to me, sitting in the gallery that Fidler stated he wanted to hear from Ms. Tyndall directly, but Weinberg conveniently went out and spent time talking to her and ignored what the judge instructed.

Tawni Tyndall enters the courtroom. She stops and places her large bag on the floor by the second bench row on the defense side.

Fidler: Would you come on up please. Come over and be sworn in.

Tyndall is sworn in and takes the stand.

Alan Jackson addresses Judge Fidler. "Do you want to ask or do you want me to ask?" Fidler responds, "Why don't you. I don't want to take a particular side."

AJ asks Tyndall about the first time she spoke to Mr. Sims on the telephone. And from the get go, Tyndall is vague in her answers and many times states she did not recall. Tawni Tyndall pauses noticeably before she answers.

TT: I don't recall. I believe so. [...] I served him a subpoena at the Backstage. [...] I may have taken some notes later.

AJ: At some point, you did sit down and have a substantial interview? [...] And we received those notes.

AJ asks, "In that first interview, did Mr. Sims ever express to you that (the statement about Lana not wanting to go on)? [...] Your notes (of your interview with Mr. Sims) certainly say nothing to the effect that Lana couldn't go on?" There's a pause.

TT: I don't think so.

AJ moves onto asking questions about yesterday. He asks her if Sims said that yesterday, about him saying "Lana Clarkson, end it all or end her life."

TT: We weren't discussing anything new.

AJ asks if she took any notes. Tawni pauses before she answers. At first she says no, then adds that the only notes she took were timekeeping notes.

AJ: For what purpose?

TT: For billing purposes.

AJ: For billing purposes? Do you have those?

TT: Yes. In my bag.

AJ asks another question I miss and then with another pause, Tyndall says, "I believe he said something about having some recollection about her ending her life."

AJ: Is there a reason that you did not memorialize (it)?

TT: Well, that had been said before.

AJ: By other witnesses yes, I'm talking about yesterday.

TT: I'm explaining why. [...] Mr. Weinberg asked if he had any questions. I heard... [...] during (about the) last trial.

AJ: What did Mr. Weinberg say when Mr. Sims said that?

Tyndall pauses.

TT: I don't recall.

AJ: Where did the conversation go from there?

Tyndall pauses again before answering.

TT: I just don't remember.

AJ: After that phrase was used, where did the conversation go from there?

TT: I just don't remember. [...] Mr. Weinberg had a folder that was lighlighted.

(Are any of you dear readers, believing her at this point?)

AJ: There was follow up conversation about that specific (issue)?

(I'm sorry, but I don't have her answer.) AJ confronts her.

AJ: Ms. Tyndall. You're a professional investigator and you know what this trial is about. [...] And the defense case is centered around suicide.

Tyndall then makes her biggest pause yet before answering.

TT: I don't know that the defense case centers on suicide. [...] Accident is a possibility.

With an incredulous tone in his voice, AJ asks, "You won't even concede?" Tyndall replies again that it could be suicide or it could be an accident. AJ asks her another question about the interview.

TT: I'm telling you I don't remember. [...] We did discuss the fact that they were in that room that night.

Tyndall goes onto say that she recalls that they discussed several things. AJ lists specific items for her. That she was drinking. She was fully dressed. She was crying. She was sitting on the bed. Tyndall states that she doesn't recall the particular order. AJ asks her again about the "not wanting to go on" statement.

TT: I'm sure it was explored but to what degree... (Tyndall can't remember).

AJ then asks to see her notes. He then asks for ALL her notes involving this witness. Weinberg objects to the prosecution seeing all the notes and requests that Fidler review them. Tyndall at some point (I think it was earlier) had retrieved her bag. When Fidler asks to see the notes she starts pulling papers out of her file folder and hands them to Fidler.

Fidler asks if Weinberg has any questions for the witness. Weinberg then goes onto ask leading question after leading question.

DW: You don't remember specific words that Sims used?

TT: No, I don't.

DW: The meeting was set up so that I could meet Mr. Sims?

Tyndall states the meeting went from about 5:15 to 6 pm. Less than an hour.

AJ: Objection! Leading.

Fidler, smiling, tells Weinberg to ask in a nonleading manner. After Fidler instructs Weinberg, he pauses, almost as if he is struggling to ask a question without leading. I can't remember if he asks one more question. I seem to remember that he does. Before Tyndall leaves the stand she has the audacity to ask for her notes back from Fidler! He tells her that she will get them back, but that he's going to review them. Tyndall leaves the stand. I think she exits the courtroom, but I'm not certain at this point.

AJ then tells the court that he only has one other thing to suggest, about the statement Lana said, "I don't want to go on."

AJ: All I want to do is put him, Mr. Weinberg, an officer of the court under oath. However the court wants to do that, because he's the only other witness (that can testify to what was said)."

Fidler: I'm not putting him on the stand under oath. He can make a statement. [...] (Addressing AJ) Do you want to talk about Mr. Sims today or do you want to wait until tomorrow?

AJ appears to be struggling with the enormity of what just happened. He tells the court he is deciding. He puts both his hands to his face and rubs his face. I couldn't help but think that he had to be quite upset about what just happened. That those statements got before the jury and the first time he heard them was from the witness stand. He had no warning. This is exactly what happened the first trial with the Baden "Aha" moment. Baden made statements before the jury that the prosecution never heard until they were spoken in front of the jury.

AJ then heads towards the exit and states, "Since he's already here." I think that he's just going to speak to him outside but Sims comes back in and he takes the stand.

AJ: When you were just outside, just now, what did Ms. Tyndall say? What were you talking about?

GS: That you guys were just discussing what my testimony was. [...] Whether I had to come back at 9:30 [...] I wasn't really talking to her.

AJ: You were talking about your conversation last night? [...] Did you tell them or reveal to them (about) Lana Clarkson revealing she didn't want to live? Want to go on?

The witness looks a little panicked.

AJ: All I'm asking you is in (the) course (of your discussion) at what point did you reveal to them (the statement) I don't....did you say, "I don't want to live?" [...] I'm asking what you said to them.

The witness appears a bit frightened and AJ tries to put him at ease. "I'm not accusing you of anything and I'm not trying to put you on the spot. I know that's a pretty hot seat. I've been there. All I'm asking is you've got some information." (I'm trying to get that information from you.) "Who else was there?"

GS: Susan was there.

AJ: You did tell them statements you indicated today? [...] Are you telling me you did not tell them? [...] After you said, (the phrases) were there more questions about it?

GS: Probably. To some degree.

AJ: When you made statements to Mr. Weinberg, do you remember at what point was it in the conversation?

GS: Vaguely. In the middle, maybe.

AJ: That's all your honor.

The witness is ordered back at 9:30 am, and court will start at the same time.