Phil Spector Retrial: Day Forty

February 9th, 2009

Defense Witnesses: #4 Dr. Werner Spitz (Well known forensic pathologist & coroner; testimony complete)

#5 James Pex (blood spatter expert; testified outside the presence of the jury only, for a discovery issue investigation)

Accredited Press inside the courtroom: Aphrodite Jones for about 15 minutes during the discovery hearing)

When I was in the lobby, I saw Juror #9 from the first trial, Ricardo. I called out to him, waved and he came right over and gave me one of his big smiles and a hug. (Ricardo is a hugger. Once inside 106 when he saw the court reporter Diane, he hugged her, too.) He said that he read my coverage of Spitz and had to come down to see this guy again.

9:34 am: Inside the courtroom, AJ and Truc are already set up, Linda from San Diego is here but no Spector. Spector arrives one minute later with Rachelle. She's wearing an outfit I don't think I've seen before. Spector is wearing a black suit with a white shirt and a white silk kerchief in the lapel pocket of his jacket. Cindy is already set up as the court reporter. The regular bailiff Kyles is here along with sheriff Williams. Ricardo talks to Donna and Fawn. Dr. Spitz is on the stand.

9:37 am: Wendy calls the jury. The DA's clerk is here in the front row and there is one other person in the back row who has been here many times now.

9:38 am: AJ finally notices Ricardo smiles and mouths a silent "hello."

Dr. Spitz was under cross, redirect, recross and redirect for most of the day. There were a few more interesting moments that occurred with Dr. Spitz. Weinberg made a valiant effort to rehabilitate his witness on redirect. He brought out that Dr. Spitz was upset last Thursday because, "I got irritated because my honesty had been questioned. [...] I've nothing to hide or (need to) lie to anyone or whether I've been honest. [...] It's been insinuated that I've withheld information."

DW: Were you called as an expert on the OJ case?

AJ: Objection: Relevance!

Fidler: Sustained!

Weinberg asks to approach. There's a sidebar.

DW: Have you declined to participate as a witness as an expert to a case with at least enough notoriety? [...]

Weinberg then brings up the JonBenet case.

AJ: Objection! Sustained!

DW: Were you hired by the Boulder Police Dept. in a case involving a six year old girl?

Fidler sternly addresses Weinberg in a loud voice from the bench. "Mr. Weinberg! I'm going to do this from the bench! I just made a ruling and you just chose to ignore it!"

Fidler sounds very pissed to me.

Through most of the redirect, Weinberg presented questions to Dr. Spitz regarding the questions he was asked on cross, with the insinuation that it was Mr. Jackson who misrepresented the facts to him in the questions, or misrepresented statements that Dr. Spitz said in the first trial. So the tactic to rehabilitate Dr. Spitz was through accusing Mr. Jackson of misrepresenting the facts.

There were more incredible moments on the stand like there were on Thursday. One example was under one of the recrosses by AJ. Dr. Spitz was confronted with his testimony from the first trial about the "Thrombocytopenia." (sp?) AJ reads into the record the first trial direct testimony he gave on this issue. During the last trial, he was referencing bruising because he gave the explanation that, (the Acyclovir medication), was like taking aspirin. "I got a bruise every time I bumped into furniture" so Dr. Spitz stopped taking it because people were thinking that he was beating his wife. From what AJ read into the record, it was clear (to me) that Dr. Spitz in the first trial, was indicating that he was talking about bruising. Dr. Spitz, in answering that question, was insistent that he was talking about "bleeding from the mouth."

Dr. Spitz got angry and loud again when AJ was simply trying to get him to agree to what he said under direct about the "trajectory of the bullet." Dr. Spitz replied in a firm voice, "I did not say that! I never intended to say that!"

AJ walked away from Dr. Spitz stating, "I did not want to offend your personal space by sticking a (imaginary) gun in your face." (There was a demonstration by AJ with his hand in the shape of a gun as part of the question.) Dr. Spitz, angry, still disagrees with the statement! It was incredible! Just like he was on Thursday. AJ then asks him if he agrees with what that paper on the three intra-oral homicide cases states, that in the three horizontal trajectories, and those cases were ruled homicides. Dr. Spitz won't even agree with that!

Fidler steps in and asks Dr. Spitz the exact same questions that AJ asked. This time, Dr. Spitz answers that he agrees.

It clearly showed (to me) that Dr. Spitz wasn't willing to agree to any question that AJ presented, even if those questions were simply to confirm ( at first) what Dr. Spitz said on direct.

There was another unbelievable series of questions during the morning session, that ultimately ended with Dr. Spitz accusing AJ. It started with AJ was asking Dr. Spitz if he knew the details about the seven incidents involving the five PBA women. Dr. Spitz at first says "I would have to study each and every case. Dr. Spitz asks, "Were there police reports?" Then Dr. Spitz says, "I don't know what transpired in each of these cases. [...] So to ask me about these women, I don't know enough about that."

So that's what AJ does. First, he confronts Dr. Spitz with a statement he said on Thursday.

AJ: You stated something about people when they do things when young.

(This in reference to people when they are young, do foolish things. On Thursday, Dr. Spitz went on about himself that when he was young he did foolish things.)

AJ then goes through each event that happened with each witness. AJ asks Dr. Spitz, "Did you know that Mr. Spector was 37 years old? [...] ...was 46 years old? .....was 42 years old?"

Dr. S: No. I'm aware of none of this.

Are you aware, are you aware, are you aware. The rest of the incidents testified to are indicated: The second incident with Diane Ogden and his age. The incident with Melissa and Spector was 53 years old. The incident with Stephanie Jennings and he was 55 years old. Each and every time Dr. Spitz answers, "No, I was not."

AJ: Does this sound like a "youthful experience" to you?

Dr. S: No, it probably doesn't. I'm totally unaware if people were injured or how this figures into this case.

Then there are questions on "coincidences" and Dr. Spitz states that he doesn't believe in coincidences. "I think that in a situation of coincidence we are lagging behind in our understanding." AJ asks him another question, a hypothetical, of man with Spector's history with women, and a stranger entering that individual's home just happens to find a gun and killing themselves, "That would be a heck of a coincidence wouldn't it?" Dr. Spitz replies, "That would all be a study in the evidence to the contrary."

AJ then goes over each PBA incident in detail, outlining the incidents more specifically and telling Dr. Spitz the weapons that were pulled on the women and where the guns were pointed at their face and what they remembered about the guns being pointed at their faces. Each and every incident that was testified to by the 1101(b) witnesses is detailed for Dr. Spitz.

AJ: Did you consider these incidents in coming to a conclusion in this case?

Dr. S: I am aware that these ladies brought these out [...] there are some incidents but nothing happened.

AJ is almost stunned. His voice is raised in the next question.

AJ: You call pulling a gun out on someone as NOTHING HAPPENED?

Dr. S: But are there police reports? Are there seven police reports?

AJ states that there are not seven police reports; there are two.

Dr. S: I just think it's very strange that if someone did this to someone else, they didn't go tell the police.

AJ states, "If you assume those to be true, it's up to the jury to decide."

AJ then goes on to try to ask Dr. Spitz some hypothetical questions, starting them off with, "Assume that this is true..."

AJ: Ultimately, if you assume those (incidents) to be truthful, would you consider it on how you would (MOD the case)?

Dr. S: I can't give you an opinion on something I know little about! I CANNOT ASSUME!

And then Dr. Spitz, angry, accuses AJ of lying to him or misrepresenting facts to him.

Dr. S: I can't assume! You asked me some questions that I researched over the weekend and found them not to be true so I can't assume!

AJ is stunned into silence by the accusation. He tells the court that he is "counting to ten" out of respect to the court. I'm quite impressed that AJ stopped himself rather that lose his temper in responding to Dr. Sptiz's accusation.

Towards the end of the second cross of Dr. Spitz, it was clearly evident that Dr. Spitz was getting confused and angry again. Several times he rambled off on a tangent that didn't have anything to do with the question. At least once, and I believe there was a second time, Judge Fidler ruled that his answer was "non responsive," and AJ had to ask the question again.

After the back and forth with Dr. Spitz his testimony was finished around 2:25 pm. (I wish I had the time to detail all of it but I'm sorry; I just don't. For example, there were more moments where Dr. Spitz insisted that Jamie Lintemoot was indicating in her video demonstration the "radial area near the thumb" and NOT the area where she wore a watch.)

After Dr. Spitz was released, a short break was called. Outside in the hallway, I was told that Rachelle hugged Dr. Spitz and said goodbye to him.

After the short break, outside the presence of the jury, AJ brings up discovery issues regarding the defense's next witness, James Pex.

AJ states that the prosecution has been provided three power power point presentations. AJ states that he first received the power point presentations not very long ago. He's struggling for the date he first received them. (California Evidence Code states that all discovery must be turned over 30 days before a witness testifies.)

Weinberg steps in and states that the discs were turned over to the prosecution "After Mr. Pex came to California to meet with us in advance. They first got the discs in January.

AJ states that last Tuesday, (February 3rd) he received an eight page document of hand written notes of James Pex that detail extensive experiments he did that go all the way back to September of 2008. (Yep. That's right September of last year, and AJ just got the hand written notes seven days ago.) AJ received the power point presentation eleven days ago. Those hand written notes detail at least nine different experiments dated from September 3rd forward. There were five different "drip into drip" experiments from 25 inches above the floor. There were at least four shooting experiments.

2:43 pm: Two suited gentlemen leave who were sitting on the defense side of the room. Rachelle and Spector still haven't returned from the break.

AJ states that Mr. Pex purchased an exact duplicate of the gun. There were various experiments performed with the gun. AJ states that on December 5th, Mr. Pex came to this courtroom and examined the death weapon, the Colt Cobra. AJ details that the defense had a latent print expert review a "latent print exemplar.....that's an oxymoron...." AJ states that there was an extensive amount of testing.

AJ shows various images in the power point presentation, images of someone holding a gun and he's never seen any of this before. That the work was clearly done months ago.

Weinberg states that "Not a single thing here was suggested by me. I didn't get them until he (Pex) brought them on January (?)" Weinberg goes onto say that all the stuff in the power point, that he didn't request it and that he's not going to use. "There isn't anything in here not (indescribable ?) and is understandable," Weinberg continues.

AJ goes on to counter Mr. Weinberg. "Two of the defense leading experts did experiments totally on their own but Mr. Weinberg stated in opening statements and demonstrated a position of Lana Clarkson's hands and it just happens to be the SAME POSITION in this power point presentation. [...] I find it incredible to believe that Mr. Pex has been billing all along for this case, approximately $45,000 and I find it hard to believe that Mr. Weinberg was not communicating all this time with his witness. [...] And the photos and notes clearly show they were clearly designed to replicate the evidence before us."

It's close to 3:00 pm, and Fidler decides to let the jury go. They were going to be released early today anyway because one juror has an appointment. 3:07 pm, the jury is brought back in and he excuses them for the rest of the day. As the jury exits I watch their faces. Not a single juror looks at Spector when they walk by him.

Weinberg accuses the prosecution of waiting until the last moment with the purposeful intent to derail the defense case.

Fidler states that the issue here is a possible discovery violation and a possible 352 violation.

Spector decides not to stay for this hearing and he and Rachelle leave the courtroom.

Weinberg states, "The level of disingenuous is mind boggling. [...] They are continuing to sabotage our case." To support that allegation, Weinberg brings up issues that were already ruled on by Judge Fidler as not being discovery violations such as the "reconstruction" demonstration by Dr. Herold and AJ. He's complaining about issues that Fidler already ruled on last week to bolster his argument, today. That's embarrassing since Fidler already ruled that these issues were not discovery violations. In regards to the photos of someone holding a gun in the exact same manner in the power point presentations Weinberg says, "What's the difference between me standing up here and holding my hands (in the same manner) as the photos. It's just a teaching aid."

In the gallery, Aphrodite Jones's phone goes off and she's asked to leave the courtroom. Another woman in the row behind her leaves with her.

Mr. Pex is brought in and sworn in at 3:17 pm. AJ question's Mr. Pex first.

AJ asks several questions about the hand written notes and ensures that the copies he has in his hands, are the same original notes he handed to the defense.

Pex confirms that he had told Weinberg in December, and told Weinberg that all that he was doing was photo documented. Pex states that he contacted a latent print expert (the name is stated into the record but I miss it) and had him look at photos of the front strap on the gun. This was on December 5th. The print expert didn't think the gun had been wiped.

AJ: And you were going to testify to that?

JP: No. Mr. Weinberg would have to call the print expert.

Pex testifies that he has a testing range in his home and he explains the process of testing in his home. He tested in several ways to recreate the possibility of either Phil Spector or Lana Clarkson holding the weapon.

AJ: Were all the photographs (he took) included in the power point presentation?

JP: No.

AJ: Does Mr. Weinberg have those photographs?

JP: I believe so.

AJ: Do you have them with you?

JP: Yes.

Pex states that he didn't "inform anyone" on the drip into drip experiments.

DW: Why are we questioning the witness about things the defense isn't going to use?

With this question, Fidler gets noticeably irritated with Weinberg. "You may not agree with it Mr. Weinberg, but what a potential expert witness does, whether or not they used it, that's discoverable. [...] (You're familiar with it Mr. Weinberg, that's 'Hornbook Law.' That's a given. [...] If you think that's different, we can discuss it at a later time. [...] Overruled!"

Whoa! In my perception, Fidler just smacked down Weinberg and told him that this testing, the purchase of the gun with his knowledge and the photographs Pex took of his experiments, all that he knew his witness did is discoverable whether he intended to use it or not. And the prosecution gets the presentation 11 days ago and the hand written notes seven days ago? To me, that's a clear discovery violation. But what will Fidler ultimately do with it? You can bet that if the prosecution tried to pull a stunt like this, they would be sanctioned, immediately.

Pex testifies that the intent of the satellite spatter tests was, like the bullet trap (in the firearm testing he performed) to create teaching demonstrations for Mr. Weinberg. It wasn't meant to recreate. (However, some of the firing test with the gun were clearly meant to recreate events in this case.)

AJ asks Pex who was at that December meeting and he can't recall. AJ clarifies exactly how many experiments he did by asking Pex specifically about each one. Pex states that his conclusions will be different from the last trial.

There is some information as to specific dates that Pex can't remember but he thinks he has that information back at his hotel.

Weinberg then questions Pex and in my opinion, he was trying to lead him and put words in his mouth. We pass 4:00 pm. Fidler decides to give Pex time to go to his hotel and get the documents and then he also adds something that I don't get exactly. It sounded like, "And you may want to change your testimony tomorrow."

Fidler states that they will start tomorrow at 9:00 am outside the presence of the jury to finish up on the discovery issue. He states that he does have another case issue to litigate around that same time, so it might be a few minutes after.

Court resumes tomorrow morning at 9:00 am. Jurors were ordered back at 9:30 am.

As always, special thanks to Sedonia Sunset for her time in helping to edit this entry.