Monday, February 23, 2009

Phil Spector Retrial: Day Forty-six & A Special Visitor

February 23rd, 2009

Defense Witnesses:
#10 Detective Richard Tomlin (LA Co. Sheriff, Homicide Division, lead detective on the case; testimony complete)
#12 Dr. Vincent Di Maio, famed forensic pathologist, author and former Bexar County, Texas coroner; currently under direct examination)

When I arrived in 106 around 9:40 am, my jaw almost dropped when I saw who was sitting in the second bench row right beside where I normally sit. It was none other than every one's favorite diarist, Dominick Dunne. And sitting to his left was another gentleman I greatly admire, Steve Mikulan from the LA Weekly. Except for the virtually empty courtroom, it was almost like being back at the first trial.

First off, I was so happy to see him I had to give him a hug. Dominick looks wonderful. The treatments he's been getting are doing wonders. It looks like he's slimmed down just a few pounds and his eyes have a bit of a sparkle to them. Dominick was in town to see the Oscars and attend Vanity Fair's annual party. He stated that he had just dropped in on the trial for pleasure and was not covering it for his magazine. He flies back home, tomorrow. Steve and Dominick discussed the Oscar results, Barak Obama, Caroline Kennedy and ponzi schemer Bernie Madoff, who is the hot topic in New York these days.

Dominick and AJ had a very warm reunion when Jackson realized Dominick was sitting in the same seat he occupied during the entire first trial. Before court started, I updated Dominick on the trial and pointed out the various players on the defense team. Dominick was surprised to learn that Weinberg is handling the entire case himself. When Mrs. Clarkson arrived in 106, she and Dominick exchanged warm greetings. Donna was happy to see Dominick and that he was looking so well. Dominick commented that the whole atmosphere in the courtroom was a different vibe than the first trial and that the makeup of the jury is also quite different than the first trial.

After the morning session ended, the three of us headed to the cafeteria. Over lunch we found out more about the treatments Dominick has been getting and that next Sunday he heads to Germany for another round. Dominick reminisced about the great little group we had (with Ciaran) during the first trial. Although Steven sent Ciaran an E-mail as soon as he saw Dominick at court, he wasn't able to join us for lunch. Afterwards, Dominick had to run with more places to go and people to see before he heads back home. Even though his visit back to 106 was short, it was quite memorable.

The first issue that is litigated before court starts is whether or not the prosecution, as part of their cross examination of Detective Tomlin can introduce VincentTannazzo's audio taped statement for the jurors. Last Thursday during a side bar, Fidler ruled that the prosecution could not play the tape. Today in court however, Fidler stated that he came into court on Saturday and reread almost all of Detective Tomlin's direct testimony and researched case law on this point. The tape was not introduced whenTannazzo took the stand as the first witness for the prosecution.

In a stunning move, Judge Fidler reversed his earlier ruling about playing the tape. He stated that one point is that can come in as a non-hearsay purpose. It's admissible on those grounds to show what Detective Tomlin did because of the information he was given. Fidler states that it's also admissible under 356 of the CA. Evidence Code. "I'm going to find for those reasons the tape will be played for the jury." Even after the Judge had ruled, Weinberg did what we have often see him do, he continues arguing his position to the judge.

DW: The court is creating a new exception to the hearsay rule. (To say a non-hearsay purpose is to lose the meaning of the words. [...]

(I'm not sure about the next statement. I have, 'This statement comes in because how many trappings of truth it is.' And unfortunately, it's not jogging my memory on what other words that were said to make more sense of it.)

Fidler responds, "That's not clearly correct. You're the one who raised the challenge. [...] The jury will be admonished (that it comes in) not for the truth of the matter (statements).

Even after that, Weinberg continues arguing with Fidler's ruling.

DW: It doesn't eviscerate the hearsay rule.

Fidler has to tell Weinberg, that he's heard him but he disagrees with him and that he has ruled!

The next issue discussed outside the jury's presence is whether or not to excuse juror #5 and Fidler asks if anyone wishes to be heard. Weinberg stumbles through his words and states, "I would think we should inquire and apprise him that the case will come to a conclusion soon."

Fidler replies, "I will ask him if he can truly not afford...."

Wendy speaks up and states that she has had an in-depth conversation with him about this issue. Fidler tells the clerk, "Bring him out." Fidler states he has numbers in an envelope and he will pick one out in case they have to replace him.

Fidler asks both sides how much longer they will be. Weinberg pauses and says that his case will take five or six more court days. AJ states that he will have three days after that. Fidler then figures in time for jury instructions, closing arguments and jury deliberations. He states that means, two-and-a-half, two weeks more of trial. (Which in reality probably means three more weeks. I know thatTruc is concerned that the projected end of the trial is getting awfully close to her vacation, scheduled to start one month from now.)

After the juror is excused a new juror is selected from the alternates.

Around the time the new juror is selected Rachelle is nodding off. She can't stay awake and leaves the courtroom.

Truc Do continues with her cross examination of Detective Tomlin, which is more like a direct examination. She starts off with going over Tomlin andFortier's detailed interview with De Souza. To verify parts of De Souza's interview Truc plays several excerpts from the tape and after each small segment, asks Tomlin follow up questions. One point that I thought was important was Truc Do going over the "It's my English" statement by De Souza. Tomlin states that, "I took it to mean that whether or not he knew that we understood what he was saying."

TD: And you were here when Mr. De Souza testified and said exactly that? [...] that he wasn't sure that they (LE) understood what he was saying?

Truc Do then goes over Dorothy Melvin's testimony.

TD: Did it seem that she was jumping around in ehr thoughts and she had to reach back to that event over ten years ago?

RT: Yes.

Truc Do goes over the facts that are documented in his interview and his notes and Melvin's testimony that Spector hit her twice over the head and threatened her with a pump action shotgun. Tomlin's hand written notes are reviewed and compared to the narrative formal report he prepared. She tries three times to get a question to Tomlin about whether or not Melvin was talking about more than one event involvingSpector at the Joan River's parties.

TD: Is it possible that she was talking about two...

Objection! Speculation! Sustained!

TD: In your mind was it possible she was talking about more than one incident?

Objection! Speculaton! Sustained.

And one more question along the same lines that is sustained.

TD: Did you follow up with Ms. Melvin (about the Joan River's parties)?

RT: No. Again, the focus of the investigation was the 2003 incident. It was not about 1993 or Joan River's Christmas parties.

Then the Vincent Tannazzo interview was played for the jury. It's a 20 minute tape. Before the prosecution can even play the tape, Weinberg objects and Fidler states, "this is received solely for what this witness did and why he did certain things." He goes onto explain the two reason the tape is being presented.

Although the jurors had a transcript to read along with the recording, those of us in the gallery could not hear most of what was said. Dominick said at lunch he couldn't understand it and SteveMikulan said it sounded like those black boxes they retrieve from accidents.

I can hear snippets of the tape. "Fucking cunt this..." was a phrase repeated too many times to count as well as "I ought to put a fucking bullet in her head now..." Another phrase I can make out that I remember fromTannazzo's testimony on the stand. "But those two Christmases I'll never forget."

During the playing of the tape I step outside the courtroom to phone ritanita to give her the news about Juror #5 being excused and a new juror selected. Once outside, I see Rachelle sitting on a hallway bench intently texting on her pink blackberry. There are no Spector supporters in the morning session.

The jurors intently read along with the transcript. It must bring them back to the very beginning of the trial and putting those words in front of them all over again.

11:22 am: I see Weinberg look over on at the jury as the tape is played and he yawns. I've never seen him yawn in court before. Right afterwards, his nervous habit of plucking his lip with his forefinger comes out.

Another part of the tape I can hear: "Vinnie, get up here. Phil Spector pulled out a gun." Then: "Pat him down in the elevator." I remember these statements from his testimony.

11:26 am: Rachelle reenters 106 and wraps the blanket around her.

After the tape plays there are a few questions for Detective Tomlin and then cross is finished.

11:38 am: Weinberg steps up to redirect.

and Kennedy before he interviewed De Weinberg's redirect of Tomlin continued well into the afternoon session, past the afternoon break. As hard as he tried, I don't think he made much progress in his accusations that Detective Tomlin did not follow accepted investigative procedures in interviewing De Souza, Tannazzo and Melvin. Accusation after accusation after accusation that the investigation was flawed and that officers used leading questions with De Souza. Weinberg focused on the discrepancies he felt were present in De Souza's various statements as to what Spector said when he emerged from the residence as well as the description he first gave that Ms. Clarkson was "on the floor." The phrase "I think I killed somebody" was put before the jury almost every five or ten minutes throughout the redirect examination.

Weinberg continued to bring up the fact that Tomlin did not review Officer Cardella's report or the audio interview by Detective's Pineda and Kennedy before his interview with De Souza. Detective Tomlin replied, "In an ideal world [...] this was a fluid investigation." Tomlin testified many times today that the reports were not even completed when he sat down to interview De Souza. (In my mind, it would have been unrealistic for Detective Tomlin to wait until Cardella wrote up his report of his activities at the scene, or listen to the audio of Kennedy and Pineda questioning De Souza, before he did his own, methodical and detailed examination of De Souza. Many times Tomlin stated, "The interview speaks for itself."

In the afternoon, it appeared to me as if Weinberg was asking the same questions he asked in the morning session. he kept going back to the same points he wanted to make a third and forth time. I also noticed that Weinberg turned around to look at the clock a few times. I wondered, what is he doing? Is he stalling, trying to drag out the redirect? During the break I overheard him ask Truc Do how much she would have on cross and she said not much at all, just a few questions. In Truc's short recross, I believe she effectively cleared up any issues regarding De Souza's interview at the front gate with Pineda and Kennedy.

It wasn't until 3:40 pm that Weinberg called his next witness, Dr. Di Maio. The last 20 minutes of the court day was spent discussing Di Maio's CV. He talked about the coroner position's he's held, the organizations he belongs to, the awards he's been presented, the Forensic Pathologist Journal he edits, the books he's written and the various California CountyDA's who have hired him as a expert witness.

Court resumes tomorrow at 9:30 am.


Anonymous said...

I'm glad you could touch bases with Dominick, Sprockey. Seems like "ol' home days".

I haven't been following this trial as closely as I followed the first one, but I'm still hoping for justice for Lana's family.

Thank you for your service to us in covering this trial!

Anonymous said...

Did he know about your blog, and has he read it?

Unknown said...

I'm not sure I get it-- the same experts the jurors chose to disbelieve the first time around are being called again, to say the same things. The prosecution, who has effectively dealt with their evidence before (and presumably discredited it) will be prepared to deal with their issues again.

I guess the Defense is really being directed by the Accused; who else would repeat a failed strategy and expect different results? On balance, I suppose the Defense is also prepared for the Prosecution's case, having heard it all before and studied the tactical errors.

Justice shouldn't be a conducted like a heavyweight title fight re-match, but I guess that's just our "adversary" legal system. Sigh. Looking forward, as always, to your reports from ringside.

Sprocket said...

Dominick knows about this blog. He read it regularly during the first trial and has kept as much as his time permits. Most of his energy and focus has been on his memoirs and getting well.

Dominick did not know who was currently on the stand because he had just attended the Academy Awards. He also didn't know what Weinberg looked like.

Anonymous said...

It is interesting to hear that there isn't that much more time for the defense witnesses, and that the case will be wrapped up in the foreseeable future.

I would also imagine Spector is beginning to realize that chances are good that this time there could be a conviction. Seems to me the Pex fiasco was a turning point, and of course the prosecution has dealt with a lot of the issues which were left hanging the first time around.

I'm dying to find out how the jury votes, but at the same time will be sorry that this chapter in the annals of true crime will be completed, as the characters are all so interesting.

Anonymous said...

356 of the EVIDENCE code, dahlink.

356 of the Penal code bans changing the label of lumber.

Anonymous said...

I read the article yesterday on and glad they exposed the "liar for hire" tactics to a broad audience. So Dr. Lee feels "smeared"...its about time...and who would hire Pex after this? Thanks for all this work.

DiMaio was shredded by AJ last time and I expect more of the same this time around....why wouldn't the defense see this? This is one witness I am glad is not on television, all those facial tics working against each other on my flat screen, it might blow out the circuitry.
Wes J.

Sprocket said...

Shoot! I'm sorry! I made a mistake. I meant California EVIDENCE Code and not Penal Code. I've corrected the entry.

356. Where part of an act, declaration, conversation, or writing is
given in evidence by one party, the whole on the same subject may be
inquired into by an adverse party; when a letter is read, the answer
may be given; and when a detached act, declaration, conversation, or
writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may
also be given in evidence.

Anonymous said...

I already forgot from the first trial....did the medical examiner who conducted the autopsy on Lana conclude homicide?

Anonymous said...

Thank you for the update, it does seem strange to use the same experts whom AJ demolished in the first trial.
Such happy news about Dominick, I'm looking forward to his memoirs.

Sprocket said...

Autopsy Report

Yes. Dr. Pena concluded homicide. That's why there is a trial.


Please drop into "Dominick's Diary" and leave him a message. He reads all the messages that are left for him. He also checked in a day or so ago and left a short message there. There is a link to Dominick's Diary in the list of PLACES TO GO.

Dominick say he had a tiny bit left of his memoirs to finish. He measured with his thumb and forefinger, a space of about 1/2 inch. So just a little bit left for him to complete.

I can't say it enough. He looked great. He says it's all due to the stem cells he's receiving. Hopefully, that treatment will be available to us in the US soon.

Anonymous said...

One thing about juries...they don't like to be lied to

Anonymous said...

I could not be happier to find this blog. I followed the first trial intensely as I am a Texas prosecutor who frequently follows major cases.

I have to say I look forward to reading about this trial in the coming days, as I catch up on where it has been.

I have alot of admiration for Alan Jackson and his quest for justice for Lana and her family.

More later,


shari said...

Sprocket, we are all SO PLEASED to know Dominick Dunn is doing well. If you see him again please let him know that all of us who blog here wish him much happiness and great health. He is such a wonderful man.
as ALWAYS, Sprocket you are doing such a great job!!!!!

Barrier Island Girl said...

Thank you so much for all the time you put into your blog. I can't imagine the hours it takes for you to transcribe it all after a full day going/coming and trying to stay focused during the trial.

I was very upset when they decided not to air the Spector trial on Court TV, so I especially appreciate your effort.