Phil Spector Retrial: Day Thirty-seven

February 3rd, 2009: Six Years Later

Defense Witnesses: #1 Dr. Lakshmanan Sathyavagiswaran ( LA County Chief Medical Examiner & Coroner; currently under first cross by Truc Do)

Discovery hearing with Dr. Lynne Herold outside the presence of the jury.

Accredited Press inside the courtroom: Harriet Ryan of the Los Angeles Times, for a short time in the morning session

Court was supposed to start at 9:00 am to have a hearing outside the presence of the jury with Dr. Lynne Herold on the stand. But par for the course in 106 these days, it doesn't get started until about 9:20. At 9:00 am Truc was here and at 9:05 am, AJ brought their cart and both sides are setting up. Truc is in that suit that looks dark brown in some light and almost charcoal in others. It's the one with the short, form fitting jacket that has a tiny thin ribbon tie. The skirt has those long, two inch wide pleats all along the back. Wish I had photos to show you how her wardrobe is stylish and professional.

There are two people in the gallery holding files, waiting for Fidler to come out and sign documents. Dr. Herold is sitting in a chair along the short wall of the well behind the prosecution table. When Dr. Fidler comes out, Dr. Herold says she hasn't seen him (Fidler) with his robes off. He replies, "I wear it in the car." Dr. Herold replies, "At least you wear clothes underneath." Smiling, Judge Fidler says, "There are stories..."

The documents are signed and Fidler goes back into chambers. Weinberg starts to move the podium is if he's going to use it but apparently changes his mind. He addresses Dr. Herold when he's standing next to her. "How are you?" he asks. "Fine, thank you," she replies.

9:14 am: The jury enters. They have always been here on time. Only the one time can I remember one juror being late. Right after they enter, Pat Kelly from the PIO enters and talks to the sheriff's. Sheriff Williams is in the box and there is another sheriff in the back row.

I have to note that I've been spelling the regular bailiff's name wrong. It's KYLES, and not Kyle. He's not here today. At the moment, Wendy is not at her desk but a moment after I write this, she comes out from the jury room. Diane is the court reporter set up for the morning. At 9:17 am Wendy calls the judge and at 9:19 am, Spector, his bodyguard and his number one fan enter 106. Rachelle is not with them.

When the day starts, there are very few people in the courtroom. But over the course of the day that changes as people come and sit in for a few hours and then go.

Dr. Herold takes the stand. Weinberg first questions her on "cloth patterns" and "when was the first time she made that observation. Dr. Herold replies that she doesn't have the specific date, but it was when she first observed the item. She then decided to send the item for chemical processing for ridge detail and fabric impression.

Weinberg challenges her on her case file. "You never said fabric." Dr. Herold replies, "It was evident to the technician." Weinberg asks, "In 2003, did you use or write the words fabric or cloth with ridge detail?" "I'd have to go back through my notes," she replies. "When did you (first) talk to the prosecution? [...] The question is whether there is evidence of fabric (impression in your notes). [...] You did not use the words fiber or cloth in the first trial." "I was not asked about it," Dr. Herold responds. Weinberg asks if the enlarged photographs of the gun were produced specifically for her to talk about fabric pattern.

Weinberg then takes a tactic that he utilizes throughout most of the hearing. "It's not what you think has happened. It's (what you documented in your notes.). Dr. Herold insists she can't answer the question as stated. Weinberg won't let this go and won't get off the point.

Dr. Herold explains that in her mind, she did talk about fabric when she testified that the gun was wiped either with the diaper/rag or via the bloody pants pockets. These items are fabric.

9:30 am: The Clarkson family enter 106.

Weinberg moves onto the "reconstruction" or more aptly, the demonstration she did with Alan Jackson and the one she directed Alan Jackson and Ms. Do. Weinberg confronts her on her testimony that she previously stated "they practiced." (Her and Mr. Jackson.) Dr. Herold states that this was referencing the demonstrations in the first trial. Weinberg presses on and asks, when she was working with Ms. Do and Mr. Jackson, did you say, 'No, it had to like this or that?' Dr. Herold questions back. "In the courtroom?"

Dr. Herold states that there was no practicing with Mr. Jackson other than what was performed at trial. She states there was a short meeting with Mr. Jackson and Ms. Do in a conference room before her testimony in the second trial. They did not practice; she was asked questions, which she answered. Judge Fidler asks her if there was anything they did in the conference room that was not from the first trial. Dr. Herold states only the one difference was the positioning of Lana Clarkson's hands, taking into consideration Jamie Lintemoot's testimony.

Weinberg then moves onto the discussion she said she had with Ms. Lintemoot, where Ms. Lintemoot described to Dr. Herold the blood stains she observed as "pin prick" type stains. Weinberg asks her if this discussion occurred at a private meeting. Dr. Herold says no. "When," Weinberg asks. "There was a meeting at the coroner's office. It was an organizational meeting. It was the same time I asked her about the tape lift."

A suited man with a briefcase enters 106. In my opinion, Dr. Herold has effectively deflected the first two accusations of discovery violations. Weinberg continues to ask question after question about Jamie Lintemoot's testimony. Weinberg then tries to say that she never alerted anyone to this evidence. "Did you ever say to the prosecution, 'Hey, Jamie Lintemoot saw pinpoint and we should look into this?' " "No," Dr. Herold replies. "Did you ever discuss with your coworkers?" he presses on. "Yes," Dr. Herold states. "You asked if I took any steps to tell any of you. No. Other than her tech reviewer." Dr. Herold clarifies that it's not her job to initiate an investigation into Jamie Lintemoot's observations. She testifies as to why she was so conservative in the grand jury and the first trial. It's because there wasn't any photographic evidence documenting the blood.

9:53 am: Spector's adopted son Donte and a young friend with very curly, wild black hair enter 106 and sit in the second bench row. Later in the day, I find out that the younger man wanted to have his photo taken with Spector. That's accomplished in the parking lot near the Mercedes. I start to wonder if this is the "new" hot thing to put on one's resume. Getting one's photo taken with a man on trial for second degree murder. To each his own, I guess.

The next item Weinberg brings up is that on November 17th, 2008, she asked the fingerprint section to look at photographs. Dr. Herold replies that isn't correct. She states that she was just the "conduit" between the two parties (The prosecution and Mr. Falicon (It's now that I learn how Dr. Herold pronounces her coworker's last name: Fal' uh kin.). That's because on her desk is a file of every photograph that has ever been taken in. (I'm not sure if that's just for this case or for every photograph in the lab.) She was involved because she had to get the slide of the photo for him to review.

I think there is a bit more on that but I didn't take many notes on this examination.

Judge Fidler asks the people if they have any questions. From my notes, I have that AJ only has one question. "When I asked you to blow up photos of the gun, did I tell you what I was going to discuss?" "No," Dr. Herold replies.

Weinberg then goes onto his arguments that he feels supports the contention that there are discovery violations with this testimony of Dr. Herold and why it should be stricken from the record. Weinberg states that, "Every expert I've spoken to, ridge detail, says that refers to fingerprints. [...] When she said fabric pattern, that was in no prior notes. [...] Either Dr. Herold is not telling the truth about not discussing this (with the prosecution) prior (to her testimony) or there's a distinct (effort?) to (sneak in this testimony) and surprise the defense.

Weinberg continues with his arguments on the rest of the issues he's brought up to the court.

AJ then steps up to present his argument and his presentation of the facts as he sees them. Regarding the first point (fabric pattern), she stated at the first trial and at the grand jury, 'something came in contact [...] with either the diaper or the pants pocket.'

AJ presents Jamie Lintemoot's testimony on June 13th, 2007 during the first trial. He details the court (Fidler) even questioning Ms. Lintemoot during her testimony.

AJ explains that a demonstration is not an experiment and goes over in detail the process. AJ states that the day he asked Dr. Herold to consider the questions before her, he sent an email to Mr. Weinberg with the questions. This is the same thing he did when he got Dale Falicon's report about the print and he faxed it to the defense, that same day.

Weinberg states his arguments all over again. "The testimony for this trial is totally new. (The gun she sees evidence of fabric impression.) [...] Jamie Lintemoot never said pinprick patterns on the back of the (wrists)..."

Fidler interjects. You're making a credibility issue about Dr. Herold. Where is the discovery violation?

Weinberg goes over Jamie Lintemoot's testimony again and gives his version of AJ's communication with him. He denies that he got discovery in a timely manner. When he does, to me, Fidler starts to look irritated. It's 10:18 am.

Fidler asks the people if they have any comment. AJ just sits there for a time. He's speechless. He clarifies his version of the email communication. After that, Weinberg gives the court one last shot at his version of events in the email issue.

Fidler then goes on the record. "This is too bad that both sides can't stand each other. [...] The one thing I appreciate, that you both have kept this out of (in front of) the jury." He goes onto mention something about that they've been polite and helpful to each other while in front of the jury.

Fidler states that, "I'm not going to make any finding that she's (Dr. Herold) not credible. I think opposite that. She's very detailed." He goes onto say that on the contrary, he finds her to be more credible. She tends to be difficult, but she's a scientist and won't be pinned down. Then Fidler goes over every issue that Weinberg raised and states he does not find any discovery violation. He does say that on the demonstration, there's something new but it's not major. He does mention that, if there is a change, then that needs to be communicated to the party. AJ speaks up and says, that was already done. He states that he emailed Mr. Weinberg with what Dr. Herold would say when the issue of Jamie Lintemoot's testimony added to the reconstruction equation.

Weinberg is not happy with this ruling. Fidler states that he understands, but that he disagrees with Weinberg. There is no discovery violation.

I have this one note on my pad, but I'm not sure who says it. I have Weinberg's initials by it but I'm thinking that maybe Fidler said it. By itself, it's hard for me to remember what it's referencing: My information is that that value is not used or is useful and that it's on it's last legs, and it's not (more) powerful than it was at (the) last trial.

10:32 am: The jury is called. As the jury enters I look on over at Spector and I see him yawn.

Dr. Lakshmanan is back on the stand under direct examination.

My trial notes will be delayed a day or so over the next several days. I got home late tonight because on the way home from court, Mr. Sprocket and I tried to drop off an arrangement at Lana's niche. Unfortunately, the Hollywood Forever Cemetery was closed and we got caught up in a couple of hours of Hollywood traffic nightmare.

More to come....