Casey Anthony's Attorneys Strike Back, Hearing Friday

Update!

January 13, 2011

WESH just released this video about Baez paying the fine today. Apparently, there is a letter from Cheney Mason asking the judge to remove the sanctions. What's his reason? Listen in!

Also, it seems that there is an excellent possibility that the motion will not be heard tomorrow at 2 PM. Casey Anthony is not expected to attend.

But, we know that, in this case, you never know what will happen.



When I planned this article, it was merely to say that we will have the next status hearing on Friday, December 14 at 2 PM. I was expecting to write about what hotels the defense would ask for versus the State's request. I was considering if the defense team would bring up the idea of a huge jury questionnaire similar to one they proposed for Casey's fraud trial. I was wondering if Judge Perry would deny them again saying that he didn't care for them.

Boy, was I ever wrong! Yesterday, the defense filed an astonishing motion: Motion for Reconsideration of the Court's Order Granting State's Motion for Sanctions/Motion to Compel and Request to Vacate Finding of Contempt. There had been rumblings at the last hearing, on January 3, that there were going to be some "papers" filed by the defense.

The motion is so astounding that it sent me off on an all-night search for past hearing, past motions, past reports. Thanks to the collective wisdom of such sites as Websleuths and the Hinky Meter, I was pointed in many different directions concerning the content. I would love to thank all the people who write and post at these and other sites I read, but that would be an article in itself!

After a nice, long cold winter's day nap, I have managed to put my opinions together enough to attempt to write about it.

I have a strong belief that this motion will be heard on Friday because the content is timely to the defense discovery issue.

Back on July 24, 2008, George Anthony was interviewed by Yuri Melich. When asked about his daughter, George made this statement:

And like my daughter takes things as far as she can take them. And then she piles on some other stuff.

This motion struck me the same way. The defense has been doing the least possible to provide discovery and when called on it with sanctions, they "pile on some other stuff".

First, let me give you a brief history of this "saga" as Cheney Mason refers to the whole discovery situation.

When Jeff Ashton made his first motion for discovery on November 19 (note how Mason points out that it was SIGNED on the 18th), he was looking for basic information about the opinions of the defense experts to make it possible for him to conduct depositions. Since Jose Baez had said there would be no reports, Ashton was granted the photographs, a list of defense experts, and the notes they took which weren't part of any work product on November 29.

Two days later, on December 1, Ashton filed a Motion For Clarification/To Compel Compliance With Order For Additional Discovery. This was the motion with all the e-mails back and forth between Baez and Ashton. It's the one with the list of experts and snippy comments and a recommendation from Baez to "give him a call" for more information.

This response from the defense did not please Judge Perry in the least and he called Baez up for one of those famous Q-A sessions before the bench.

On December 7, Baez filed a Notice Of In-Camera Inspection. (The defense somewhat met one of the requirements.)

COMES NOW the Defendant, CASEY MARIE ANTHONY, through the undersigned counsel, hereby gives notice that on Monday, December 6th, 2010, the undersigned counsel submitted notes taken by a defense expert during the evidence inspection to the court order the assertion that said notes are work product and as such respectfully requests the court's determination on the matter.

We've never heard if Judge Perry made a decision, but please note that Baez only submitted the notes of one expert!

On December 10, Baez filed the Defendant's Notice Of Supplemental Discovery which contained photographs from Dr. Werner Spitz and Dr. Jane Boch (sic) (The defense met the second requirement)

On December 10, Perry made his second Order which required more information from the defense than before. The defense deadline was December 23 at noon.

Unfortunately, the required document did not arrive until the following day. Even so, the defense did manage to supply some additional information about the testimony of the experts. The obnoxious language in Baez' Response To State's Motion For Clarification Of Expert Witnesses was that any number of witnesses would "rebut false claims" of the State's experts. However, Baez threw out a few more details, but not enough to do a decent deposition! There was an addendum with the CV's of the witnesses which made the reply about 300 pages.

At that point, Ashton decided to slam the defense with a Motion For Sanctions For Failure To Comply With Order Granting State's Motion For Clarification/To Compel Compliance With Order For Additional Discovery. Judge Perry again agreed with the defense in a hearing on January 3, 2011. The hearing was notable for the fact that Cheney Mason did most of the arguments. Even so, Baez did end up with a Q-A session with him. Judge Perry listened to Jeff Ashton summarize the defense's attitude towards reciprocal discovery. As I wrote in my January 3 article:

Ashton summarized the defense as showing "deliberate, willful, contemptuous behavior", that they will do discovery their way and ignore the court orders. Therefore, sanctions are appropriate.

Here is the judge's Order. By this point, Perry is ordering actual reports from the defense expert witnesses. If you read the two previous responses by the defense, you will see that each time, they add just the tiniest of snippets of information about the testimony.

In this particular Motion, it is obvious the defense does not want to abide by the orders sent down from the judge. I have a feeling the good judge will not be pleased on Friday.

The motion, authored by Cheney Mason, outlines the "saga", much like I did above, but with a defense slant. He first of all points out that the motion is "timely" (ie. not late).

In his next paragraph, he states that "The issue boiling over in this case is one dealing with discovery and alleged violations thereof." Apparently, Mr. Mason feels that what the defense has supplied is all they need to supply!

He brings up the vague nature of the judge's language in the first order in terms of what "subject matter" means. He argues that Ashton interpreted that as the "substance" of the testimony, but that he recognized his "mistake".

By the time we get to page 4, paragraph 6, we start to get the "sob story" of poor, newly-minted attorney William Slabaugh, Esq. Mason even includes an affidavit from the young man concerning his efforts to file the tardy documents on time on December 14, 2010. It states in part:

7. In the afternoon of December 14, 2010, I drove from Kissimmee to Orlando to file these documents with the Clerk of the Court, State Attorney's Office, and Judge Belvin Perry.

(If he left in the afternoon, he was already late; the deadline was noon!

8. Due to severe traffic conditions, I did not reach the doors of the Orange County Courthouse until 5:02 pm....

What is interesting here is that this is not the story Baez told in court on January 3. According to Judge Perry's order:

Defense counsel Jose Baez argued he filed the document one day late because he needed to obtain the experts' curriculum vitae, and acknowledged that he did not ask for an extension of time. He, too, failed to explain the non-compliance with the Order.

That's it guys, blame it on the rookie!

Nevertheless, Mason tries to put more of a spin on the lateness of the discovery material by saying that:

7....Most importantly, this good faith performance included all of the documentation that was not due for another eight days (December 23, 2010).

He does, in a way, admit that the information was a bit lacking when he says:

8. The defense response to the "clarification" Order indeed substantially complied with each of the five provisions orderd by the Court.

In the bulk of the motion, Mason graciously adds a few more details to the testimony of his experts and even deletes one from the list.

I won't bore you with all the information provided, but here are some highlights.

Dr. Henry Lee. Mason goes on and on about the fact that Lee discovered 17 hairs in the trunk of the Pontiac Sunfire. For an excellent article about that topic, do read JWG's excellent article on the Hinky Meter, Hair today, gone tomorrow.

He also claimed that Dr. Lee's value to the case had been diminished because his attempts to access the recovery site on December 12, 2008.

This brought to mind Judge Stan Strickland's Order of April 13, 2010.

Over the past 20 plus months, in-between media interviews, guest appearances on television shows, and press conferences, defense counsel has filed a litany of motions. The content of the motions has ranged quite broadly from a Motion to Disqualify the State Attorney's Offe, to a motion to stop law enforcement from securing and investingating the crime scene of a homicide, to a more recent motion wherein defense counsel invited the Court to simply "trust" him... (bold mine)

So, it seems that the odds are slim that we will see Dr. Lee at trial. The hair he found had no death band. End of Henry Lee's story. Or is the problem really one of payment?

Mr. Mason spend quite a bit of time discussing Dr. Werner Spitz. To show the defense's "good faith effort" they add more to what he would testify about, were he to testify. He's sounding "iffy" for trial, too, which is probably why Mason shared some tidbits about what he would say about Dr. Jan Garavaglia, the ME.

...Dr. Spitz, if called to testify would specifically additionally testify that the examination by Dr. Garavaglia was less than the appropriate standard for such medical examiner's protocol. Dr. Spitz would testify that the skull should have been opened by Dr. Garavaglia, which he did in the performance of his second autopsy. Dr. Spit discovered that there was a deposit of dirt/mud on the inside of the cranium, on the left side, which has not been discovered by Dr. Garavaglia.

My friends and fellow posters led me to the autopsy report. Two things were noted.

The inner aspect of the cranial cavity is examined with light and reveals sandy dirt and an
attached small incisor which is adhered to the inside of the calvarium with dirt. (p. 8)

In another area of the report it was stated that there were saline washes of the cranial cavity.

Dirt + Water = Mud, Dr. Spitz. Perhaps you omitted to read the autopsy report in depth?

This discovery of the "mud" on the left skull of little Caylee's remains by Dr. Spitz had led the defense to believe that the remains had been left on the left side and not upright as in "claims" made by investigators and the prosecution.

Could this be the "magic information" that will absolutely prove Caylee was moved? Nope, I don't think so.

Two of the experts, Dr. Kenneth Furton and Dr. Barry Logan will testify at the Frye hearing on decomposition odor.

Dr. Freeman, the epidemiologist, has been removed from the witness list.

As for the rest, the defense gave bits and pieces and when one reads the motion, it would seem they will have little to say that contradicts the State's case.

At the very end of the motion, Mason states that:

12. Your undersigned submits that in light of the history, as set forth above, (and Order entered causing disagreement between State and the defense; discussions as to the interpreting the "intent" of the Court, the responses, and now the supplements), that a determination of "civil contempt" is unnecessary to acquire compliance"

Well, good luck, Mr. Mason. Jose Baez didn't comply the first time and didn't comply the second time. Each time Mr. Ashton brought the situation to court, Judge Perry upped the ante. At the point he found Mr. Baez in civil contempt, he also ordered the reports from the experts and they could only testify to what they had reported and what the State learned through depositions.

The fact is, Judge Perry only ordered the defense to follow Florida Rules of Discovery. I don't believe that throwing out little tidbits of information is to the benefit of the Defendant, Ms. Casey Marie Anthony.

I'm am eagerly awaiting Judge Perry's reaction to this latest whine-o-rama and minimal compliance by the defense. I also wonder if Jeff Ashton will write a reply. I'm sure this motion has revved him up!

See you all at the hearing on Friday! 2 PM SHARP!

A showdown, and possible resolution?

I wasn't in court today, (still recovering with my back injury) but I did watch this morning's proceedings on Court TV and on KTLA's live stream coverage of the trial on the Internet.

Sara Caplan was wiping away the tears in her eyes with a Kleenex as she sat listening to Judge Fidler give his ruling. Judge Fidler said he did not want to be in the position he was in, and he admired Ms. Caplan for her principles, but the law was the law. She's being compelled to testify. She refuses, so Judge Fidler has no choice but to hold her in contempt. Lucky for Ms. Caplan that she's an attorney. Because of that, Judge Fidler is staying his contempt order until June 22nd, (that Fidler likened to contempt on "principle") and until all appellate issues have been exhausted. Fidler stated that Ms. Caplan wasn't going to jail today. Looks like this one might go all the way to the California Supreme Court, unless, there is some dramatic change in the direction of this case.

At the very last minute, Ms. Caplan's appellate attorney, Weberman, raised the question, "What if Dr. Lee doesn't testify?" And then a scramble took place where both sides agreed to try to work something out.

Did all of this drama really revolve around missing evidence, or does it really revolve around the prosecution getting leverage to prevent Dr. Henry Lee from testi-lying ~oops, I mean "testifying" in this case? Only time will tell which way this case unfolds.

Testimony in front of the jury will resume this afternoon at 1:30 pm PT.

Court TV's blog by Harriet Ryan

Los Angeles Times blog by Joe Spano and Peter Y. Hong

My trial notes for 5-22-07 are almost complete. Just need a little last minute editing.

Trial Notes, 5-23-07: Judge Fidler's Evidentiary Hearing: The missing evidence

A special thanks to Sherbie @ Court TV, for helping me with the actual transcription and edit of the Court TV Extra Coverage.

I have in my notes a partial quote by the Judge, (his role) "...safeguard the proceeding to ensure that nothing improper occurs." The judge cites several cases to support his ruling (for even holding the discovery hearing). At the point, Alan Jackson gets Sara Caplan kicked from the courtroom while he reads these rulings. This was all in relation to a last minute attempt by the defense, questioning the entire evidentiary proceeding to begin with. Judge Fidler, in response to that (reading the case law, where one prior ruling said, in conclusion for the court to "take action,") says, almost irritatedly to Mr. Plourd, "That's exactly what I'm doing (re, this proceeding). I'm taking action."

Sara Caplan took the stand again, and the defense asks her a few questions. Then Alan Jackson asks her I believe, one question.

The judge, not satisfied, asks Sara Caplan some questions.

J: Why are you changing your testimony?

J: Did you see Dr. Henry Lee pick something up and put it in a vial?

A: Yes.

The judge looks over her prior testimony and reads some of it back to her, and asks another question or two.

Then Alan Jackson gives his arguments to the court, going over the testimony that supports something was picked up, and never turned over to the prosecution. AJ, in questioning Dr. Lee's testimony says this great line, "Is Dr. Lee lying, or is he incompetent?"

Then Plourd gets up to argue the defense position.

"There were a number of criminalists at the crime scene. (snip) That piece definitely not there when those criminalists were there. (Referencing Sara Caplan: It was) Not her responsibility to observe or supervise Dr. Lee. There's no evidence she watched Dr. Lee's testimony on TV. (AJ said she probably did in his closing, which is why she was waffling on testimony today.) They've (prosecution) clearly lost something. There's no evidence that the defense lost anything. " Plourd keeps saying "Dr. Lee testified to..." Plourd's trying to say there's no clear evidence anything was lost by the defense. When Plourd sits down, Brunon stands up to speak. "From a legal point of view, the whole issue has been speculative. (snip) And, Mr. Jackson says, the case is damaged. We ask, In what way? Suppose Dr. Lee did pick something up and did lose it. Again, how does that specifically hurt their case?"

Dixon jumps up and says, "It goes right to the heart of this case!" (I don't have any notes as to what else he said after that.)

Nobody adds any more comments to the judge.

Then the judge says he's ready to rule.

Judge Fidler: "Lets review the facts, and let me tell you what I think the facts are. Famed situation from the movie Rashomon. Diamond said a tooth was found. (snip) Stan White said a fingernail. (snip) Sara Caplan saw an object. (snip) Dr. Lee testified he didn't find anything. He never had such an object."

This is now where, I believe the Court TV video coverage picks up.

Judge Fidler:
Dr. Lee testifies he never did that at all. Anything he gathered was placed in paper bindles. He didn't place any piece of evidence in a vial. The only thing he placed in a vial were the swabs that come in that vial that he used for presumptive testing, and he has testified very clearly he never had any such object. My duty, to the best that I can, is to resolve what the facts actually are because you have differing versions -- it's very clear. I wasn't there, you weren't there. What was done when people -- and they're not -- these versions, to me, are not reconcilable. It is not simply saying that everybody saw the same thing but they're describing it differently. That's very hard to do based on what's been presented to me.

So let me go through the witnesses and tell you what my conclusions are:

Mr. Diamond: In trying to judge his credibility, he's the person that interjected himself into this case to the degree that he was there at the scene. He was a research attorney or a law clerk -- he wasn't an attorney, because he's not an attorney -- he was serving as a law clerk. He comes forward some four years after the event and basically tries to tell the District Attorney, "There's something bothering me. I need to tell you things about the case you need to know."

The District Attorney does exactly the right thing because they realize what his position is, and he may be getting into privileged areas. They basically say, "Don't tell us, we don't want to be infected by this, if that's what you're doing. We'll set up an alternative procedure," which they do. They have the court appoint a Special Master which is the appropriate -- in my mind -- way to do it to protect privilege.

The Special Master makes an inquiry and quickly realizes that, despite his solemn obligation -- and those of us who all do criminal law and have for -- I couldn't add up the number of years between all of us sitting here in the courtroom because it would go into the hundreds -- realize that if you're going to practice criminal law, you may hear things or see things that you don't like; but when you represent a criminal defendant, there are privileges that attach to that, and you don't talk about it to anyone outside the immediate -- if you will -- "family," the defense team. And if Mr. Diamond is not happy with what is required of a criminal attorney or those working for a criminal attorney, then his choice is to not practice in that area of the law.

Privileges exist for a sound reason, because we want people -- whether it's the attorney/client privilege, to be able to talk to their attorney freely, without fear of being, having their words turned against them; or whether it's a priest/penitent privilege where someone wants to be able to talk to their spiritual advisor and not worry that it's going to be used against them; or whether it's a doctor/patient privilege, and somebody wants to be able to talk to their doctor without fear of that being used against them -- because those all have higher reasons why we do that. And if Mr. Diamond doesn't recognize that obligation -- and certainly in a report prepared by Professor Levenson, it appears to me that he was attempting to breach that privilege, and he wasn't allowed to.

Certainly, Professor Levenson informed me, and my words to her -- and she doesn't need to be told; she's a professor of ethical advocacy at Loyola, so certainly if anyone knows that field of law, it's her -- "We don't want to know; don't tell us. We don't even want to be -- we don't want to have to worry about evaluating it; you don't go into privilege." But in that, in doing so, Mr. Diamond indicated there might be something that was not privileged, which is the alteration of evidence, which is not covered by the privilege.

As the cases -- and I've cited the cases: Meredith and Fairbanks and other cases, and State Bar opinions and ABA opinions -- have all indicated that once (as the Fairbanks case citing Meredith said), once a defense attorney chooses to alter, manipulate, fabricate -- do anything with a piece of evidence -- that's a tactical decision and the privilege is waived. So Professor Levenson's inquiry went further. Mr. Diamond was called to the stand. Now, in judging his credibility, I've got to look at the overall picture, and I think I've stated, from what it appears, what he was trying to do, I have to weigh that in his credibility, in evaluating his credibility because -- and plus, I can evaluate and judge his credibility based on his appearance on the stand.

There are lots of things about Mr. Diamond -- whatever he saw, may have seen, thinks he saw -- that, certainly, his credibility does not go unquestioned. His testimony, the manner in which he testified -- the manner in which he attempted not to testify, as well -- certainly, I will judge his credibility. He is the only person that placed any object in Dr. Baden's hands, so I can't find that to be credible. No one else has stated that Dr. Baden had anything to do with this, and I'm not going to make any findings against Dr. Baden. And it has nothing to do -- we're in an awkward position; this is very rare, where the wife of the witness I'm talking about is sitting right in front of me. And I'll be real candid: If I thought Dr. Baden was being untruthful, I'd be the first to say it. So be it, that's the way it goes. But I can't find that, and I'm not finding that.

Then we have the testimony of Mr. White. Now, again, in judging credibility, let's say that Mr. White has a large personality. I don't think I know Mr. White from before. I just have to watch how he testifies and how he carries himself. I also look at the fact that, certainly, to a degree -- not in his testimony here -- but he certainly interjected himself into the case because he wasn't contacted by anyone to do with the case originally. He called, by his testimony, Mr. Shapiro and basically offered his services. That doesn't mean he's credible or not credible. Some of what he says is consistent with Ms. Caplan's testimony. Some is not. So he's just a piece of it. If all I had was Mr. White, I'm not sure where I'd go with this case.

Then we have Ms. Caplan. I don't think anybody was expecting the testimony she gave the first time she testified because it was sort of going by rote -- "Did you see anything, did you see anybody take anything," and it was sort of "No, no," and then all the sudden, just before lunch, Ms. Caplan, "Yes, I did." And you could get whiplash from watching necks spin around on that one, because, clearly, I don't think that was going to be what anyone expected the testimony to be.

And to some degree, Ms. Caplan -- and I am sure she has indicated that she understands her ethical obligations, and if you heard what I said citing from Meredith and Fairbanks -- she put herself at risk by testifying to what she did, because she became aware that an agent of the defense, based upon her testimony, had -- if not clearly or explicitly, had at least implicitly -- violated that responsibility. And she testified to that. She did so, and I find her to be very credible. She's the most credible witness of all.

What she has is this object, which she cannot identify, which she -- clearly, Mr. White makes it a fingernail. He says, "I recognize it. It's a fingernail. I'm experienced," and it has what he testifies is "bullet wipe". I believe Dr. Harold said that's a bad terminology, but we know what he's talking about talking about -- that, basically, a bullet passed over this object, which he calls a fingernail, and left evidentiary traces. He says he's experienced, he recognizes and sees it and told Dr. Lee that. By his own testimony, Dr. Lee says, "No, that's not what it is," and makes an instant determination.

Then you have Dr. Lee's testimony. The Court certainly recognizes that Dr. Lee has a very large reputation. He is a world renowned expert. He testifies that he never put anything in the vial, and that is inconsistent with Ms. Caplan's testimony. And if I have to choose between the two, I'm going to find that Ms. Caplan is more credible than Dr. Lee. Dr. Lee has a lot to lose if this turns out to be true. His explanation for Ms. Caplan's testimony is, "I believe she's mistaken; it's an honest mistake." Well, if you listen to her testimony -- originally and again today -- it's not just a mistake. An object was taken, put into a vial by Dr. Lee, and no one has that object at this point.

So, in making findings of fact, I find the following:

That Dr. Lee did recover an item. It is flat, it is white, it has irregular edges. I am unable to say that it is a fingernail. It is the size of a fingernail, and that's all I can say. That item has never been presented to the prosecution. And those are my factual findings.

Now, we'll talk about remedies. Normally, the remedy -- when I say "normally," there haven't been that many cases; there are certainly recorded cases and reported cases, and we talked about those -- is for the Court, when it finds that an object has been secreted or kept from the prosecution, is to order the party who has it to produce it. That's what you do. That's the first remedy -- you say, "Give it over to the prosecution." The prosecution, in essence, concedes that object is no longer with us; that if it ever -- and, clearly, the Court has found some object existed, but there is no object to order Dr. Lee to produce. It would be a hollow order. To the extent that I can make an order, if Dr. Lee has this object, he is to produce it forthwith.

Now, if I knew he had it, and he didn't produce it, the remedy is contempt of court. I don't see going there because I don't think he is now -- I mean, if he has it, if it suddenly appears, I order it be produced. I don't see going to the contempt sanction because I think it would be useless. You don't impose contempt when it is useless and does not have the coercive effect that it was meant to have. I am not going to hold Dr. Lee in contempt.

So now we come to the position of, "What do I do -- what is the remedy, if any?" The remedy is -- and I agree with something Mr. Plourd said -- the People have presented a prospective jury instruction which basically has me tell the jury that I have made findings that Dr. Lee is not credible -- I'll paraphrase -- and to use it as they have set forth. That interjects me into the case to a degree that is inappropriate. Judges should not be a part of the case, and it substitutes my findings of fact for theirs. The jury is the fact-finder in this case. I make preliminary findings of fact as to what evidence may be put before them, but I don't make ultimate conclusions of that nature. It's inappropriate. It carries way too much weight, and also, it can't be cross-examined, it can't be, really, argued -- and that's inappropriate.

So I'm not going to tell the jury that I find Dr. Lee has withheld a piece of evidence. But the People, when he testifies -- if he testifies -- may present all this evidence to question his credibility. He may be cross-examined on it, and you may present witnesses -- the witnesses that have testified in front of me and any other witnesses that you choose. And the defense may present any witnesses that they choose on this subject. And the jury will be told -- and it must be limited under California law, the existing law -- and it's very clear when you talk about either untimely disclosure of evidence or evidence tampering, if the jury cannot trace this to Mr. Spector (and there is no evidence to support that whatsoever), then you cannot allow them to speculate or use it against him on a consciousness of guilt. They have to be instructed and will be told that the sole purpose this can be used for is the impeachment of Dr. Lee.

To the extent it does or does not impeach him, if the People choose to go there, then the jury may consider that. They will be told -- and I have -- of course, I can't finalize any words at this time, or any appropriate instruction -- the sole purpose for considering that is in considering his credibility, and they find -- they'll find what they find. That's basically it. But it won't be used against Mr. Spector on the issue of guilt or innocence. It cannot be. The law is very proscribed on that, but clearly the People may go forward. We will worry about the language of any instruction to make appropriate -- to have the jury make appropriate credibility findings as to Dr. Lee.

Trial Notes, 5-16-07: Adriano DeSouza & Dr. Lee

I get an 8 am bus at Sepulveda. It’s only about 1/2 full, but will probably fill at the next stop. On the bus video transit news, they have a clip of the damaging testimony from DeSouza on the stand yesterday. “I think I killed somebody.”

On the Red Line train, I see a woman tweezing her eyebrows. Ehewwww! At the Pershing Square Station (the stop just before the Civic Center Station) there is a wild looking black woman, screaming something. It’s the same woman I saw on the escalator yesterday at Civic Center! She’s wearing the same clothes. “Stay outta my money!” She yells several times.

In the lobby, there were quite a few more cameramen with huge cameras going through security to get into court. The lines were very long at the security scanners. One cameraman squeezed in on the elevator I was on, and I ask him what trial he’s covering. He replied, “There an arraignment on the fifth floor today.”

On the 9th floor at court, Michelle, Dominick, and Ciaran (pronounced Keer'an) all sit together. The jury consultants from yesterday are back and standing with Lana’s family. One reporter noted that Lana’s mom had “a make over.” I don’t “see” what he’s seeing. All it looks like to me is that her hair is curled a bit more. Alan Jackson stops and speaks to Lana’s mother for a second before going into the courtroom.

Linda Kenney Baden and I are waiting for the restroom maintenance man to take the sign down on the women’s restroom so we can go in. I get the opportunity to talk to her about the broken foot. She is so nice! I commiserate with her, explaining that at one time, I had two different accidents where I broke bones in my foot, and one time, I broke the exact same bone she broke. I talk about being in a cast up to my hip for nine weeks, and once I got out of it, the only thing that really helped me was deep tissue bodywork, because I walked with a limp for quite some time. I also recommend to her to take bromelain on an empty stomach, because it will then act as an anti-inflammatory.

9:45 am. We’re getting a bit of a late start today. In a very irritated tone, the Judge lets the attorneys know that he is tired of wasting the jurors time. The defense is asking for the witnesses INS documents. Apparently, there is one form they are asking for, and they only have a copy of one side of it, and they are making a big deal about this.

I see Alan Jackson sitting in a familiar pose I often have noticed he takes. His elbows are on the arms of his chair, and his hands are splayed out, but his fingertips are touching. I’ve seen him put his hands in this pose when it appears he is thinking intently. Spector is the first to stand for the jurors to enter the courtroom.

The witness DeSouza is back on the stand. The witness says that Spector was not slurring his words when he made his statement. The two porch lights located on each side of the back door were on and an overhead light was on in the foyer. Up on the Elmo, there are close up’s of Lana’s face! Lana’s mother and sister in the front row, don’t look up at the screen. They look down the entire time photos of Lana are up on the screen. DeSouza says there is more blood on her face in this photo that there was when he saw her. DeSouza had to look twice past Spector, to see Lana.

Q: Did he say anything else?

DeSouza says that Spector didn’t speak after that.

Juror #9’s cell phone goes off, and he embarrassingly removes the battery. Alan Jackson takes a moment to confer with Pat Dixon, and the embarrassed juror #9, nervously taps his pen and looks out over at the gallery of reporters.

The 911 tape recording is played for the jury.

For some reason I turn around to look behind me and the petite, stunning law student I met at the Blake criminal trial is here! She’s impeccably dressed for court. It’s a total surprise to see her. She whispers, getting me caught up on what’s been happening with her.

Cross of DeSouza begins.

There was a lot of speculation as to who would stand up to perform the cross. Many thought it would be Bruce Cutler, the very theatrical New York lawyer, who has only presented the OS and performed one cross so far, but it’s Brunon who stands up and approaches the podium.

The witness says he started studying english around 13 years of age, three to four days a week. It was mandatory in school. When he was fifteen to eighteen he was in a different school, and he had a private english tutor then. I calculate it out. He was born possibly in 1970, and is approximately 37 years old today. DeSouza came to the US in 1997 to 1998. His status was as a legal visitor. The first time he came, he stayed eight to nine months. After his tourist visa expired, He remained in the US for a bit and applied for a student visa. He then returned home.

He reentered the US in 2000. This time, it was on a student visa. There is a little disagreement between the witness and Rosen. Sometime later, he withdrawals from school. This then violates his visa, but he didn’t return to Brazil. He stayed in the US.

Q: You didn’t respect the laws that let you come here, correct?

A: No.

I look over at the jurors and jurors # 8 and 9 are snickering, almost laughing. I’m guessing they think this question about obeying the laws is funny.

DeSouza says he stopped taking english classes in 2004. Rosen confronts the witness about not going home after he withdrew from school. Juror #8 finds this question and response funny, too. The tone that Rosen is taking with this witness, and the implication of his questions, is not going over well with this heavily mixed race jury.

The witness says that he talked about the event (the murder) with friends and family. I look on over at the jury and think that maybe they are getting bored with Brunon and these tedious questions. If it’s not boring the jury, it certainly is boring me. The cross is tedious.

DeSouza said that someone from a paper tried to interview him (after the event). The next day, he went back to Spector’s residence, to do some staging with the police (probably of the Mercedes). Rosen puts up on the Elmo, a copy of his own spreadsheet of billings. One column documents the number of times he has worked for Spector. It was just a spread sheet he designed, and he doesn’t remember preparing invoices. Rosen shows that DeSouza actually only drove Spector 10 times verses the 13-14 he originally said on direct, and I think, this is so petty.

Q: How did Mr. Spector address you?

A: They never called me the correct name. They never knew it.

DeSouza says that his conversations with Spector were all short. It’s now that Brunon asks DeSouza if he could describe Spector’s voice. DeSouza says that he’s not very good at that, and asks if maybe, Rosen would like him to demonstrate Spector’s voice. Brunon, pausing almost like he doesn’t know how to answer that says, “Sure.” And DeSuoza, says in a high pitched, whiney voice,

A: Adriano! Adriano!

There’s totally laughter throughout the courtroom. It’s hysterical! And what is so amazing, is this entire time DeSouza doesn’t even crack a smile. All this time, under this boring, excruciatingly detailed cross, he remains stoic. Not once do I see him even give the tiniest hint of smiling, ever.

Q: So he has a small voice?

A: Yes.

Q: And some have a big voice.

The judge makes a joke about Brunon’s voice, and the jury explodes in laughter again. During this cross, I don’t notice as much note taking by the jurors.

It’s 12 noon and the judge calls the noon recess.

Testimony in front of the jury will resume next Monday. In the afternoon session, the attorneys will continue with the evidentiary hearing in the missing evidence issue. Right when the noon recess was called, I asked Beth what her opinion was of the cross. She thought he was doing very good on the stand, “He’s telling the truth.”

Back inside the courtroom, and the hearing is about to begin. I notice Rochelle is wearing a blood red suit, and I mention this to Steven K. “The color of justice,” he replies. They’re real! I see an actual Team Spector Button! It’s huge. About 4-5 inches across. On the Court TV crime forums, someone came across a web site that supposedly belonged to Spector’s wife. On it, were statements about coming down to the courthouse between 9-4, and picking up a “Team Spector Button.” There was a lot of talk on the Court TV Spector Forum as to whether or not this was a “fake” web site, or if it really did belong to the wife. Someone posted that several news agencies reported that it was real, but there were still skeptics on the forum. Well, it’s true. A new public spectator, a trim, Asian woman had heard me talking about the supposed buttons to David K. Li. She asked me where she could get one. I told her, supposedly from the defense team. Supposedly you can get one. So she goes over to the bodyguards and asks for one, and this was the button she brought back that I saw.

Lana’s family is not here in the courtroom for the hearing yet. The state’s forensic expert is back in the courtroom. I think the woman’s name is Dr. Heard, but I’ll have to verify that. I can’t even take a guess as to her age, but she has real long slightly wavy gray streaked hair that looks like it goes down way past her waist. I finally see Lana’s family come back into the courtroom.

This is a very important moment, that everyone has been waiting for. Dr. Henry Lee is going to take the stand. Most have been speculating as to what he is going to say, to try to defend himself. There are several new people in the gallery that I’m guessing (by the way they are dressed) are from the district attorney’s office.

Dr. Lee takes the stand. Chris Plourd question’s the witness.

Dr. Lee states his name, says he is married and he lives and works in Connecticut. Dr. Lee says he’s a forensic scientist who has been in the field over 40 years, assisting law enforcement all over the world. He says that he has assisted in 6,000 or more cases. When he’s working on a case in Connecticut, and he is in charge, basically there is a standard operation procedure. They follow that procedure. Basically documentation of the scene, collect and preserve evidence, and transferring that evidence to the laboratory for analysis. Sometimes he comes to the scene as a consultant. In that case, he’s not in charge of of the scene. As a consultant, basically assist in certain aspects of the case, such as crime scene reconstruction, blood spatter interpretation, or gunshot trajectory determination.

Sitting at the prosecution table, Pat Dixon is absent, and there is a much younger, totally bald asian looking assistant there helping Alan Jackson. Dr. Lee has three pages of rough notes of his time at the crime scene.

Dr. Lee describes his role when he is assisting the defense, mentioning that the crime scene analysts have already been at the scene. He will document the scene, take pictures, observe the layout of the scene and take notes. If anything has a potential evidentiary value, he collects it. Subsequently, he will transmit (anything collected) it to the police department or law enforcement agency if they want it. If they don’t want it, I give it to lawyer.

Plourd puts up Dr. Lee’s notes he took at the scene, and goes over them with Dr. Lee., and he describes his procedure to go over the scene. He does an overview of the entire house, and takes photographs. Since the lighting in the house was poor, a private detective obtained special lighting to take some close up photographs at the scene. He set up a little laboratory area in another part of the house, to do some chemical testing at the scene. Up on the Elmo is an image of Dr. Lee at the crime scene. He took an overview shot before he set up the extra lighting, and there are some questions for Dr. Lee on the photographs up on the Elmo.

I notice in several of the photographs, that Dr. Lee has his very own “crime scene” ruler, complete with his name engraved into it, “Dr. Henry C. Lee, Chief Forensic Scientist Laboratory, State of Connecticut.” For some reason, I find that amusing that his measuring ruler has his name engraved into it.

More pictures are put up on the Elmo. Dr. Lee describes when he took the pictures and why.

Dr. Lee is now showing that he collected two items. There are images up on the Elmo of two pieces of yarn/thread like materials, and he’s saying that these threads are the only thing he collected. Pictures of the lower stairwell steps, the uncarpeted wood part, are put up on the Elmo. Dr. Lee says he took those pictures, because he said there looked like a “fresh cut or scraping of wood.” Dr. Lee now identifies photographs of what appear to be stains on the wood, and one of them he takes a collection of the stain. Dr. Lee then explains why he collected the threads and the blood stain. Throughout Dr. Lee’s testimony so far, the court reporter has to ask him to clarify what he said. She can’t understand him.

Q: Did you collect anything other than the two items that you just mentioned Dr. Lee?

A: No I did not.

Q: Did ever collect any type of a nail, either a portion of a human fingernail, or portion of an acrylic fingernail? Did you ever collect anything like that?

A: Definitely not.

Dr. Lee now describes photographs of the exterior stairwell wall. He performed some general swabbing, testing of this wall area for blood. There is a close up of this exterior stairwell wall, and there appear to be (according to Dr. Lee) gouges in the wood on this wall near the floor. Some damage to the molding. More photographs are put up of the exterior stairwell wall that appears to be marked up.

Just then, I have a coughing fit, and I don’t have any water with me. All I can think of at the time is, hoping for it to pass and I don’t have to be asked to leave the courtroom.

Q: Do you remember an attorney by the name of Sara Caplan being in or around the scene when you were looking at this particular wall?

A: Yes. There were some people in there.

Q: Okay. Do you remember an attorney by the name of Sara Caplan that was looking at this wall also and what did you do, and what did you remember about that?

A: Everybody try to assist me, sayed, “How about test this spot, or that spot. So, they try to point potential spot to me.

Q: Okay. So you visually examined this wall. Did you see some spots on this wall that you felt were important to do testing on?

A: I saw some area, potential to do test on. I did not see a, a blood drop on. If a blood drop I probably collect it.

More photographs are put up on the Elmo and described. One is a photograph of his working station and Dr. Lee describes it, shows his big magnifying glass he brings to a scene, and also points out the chemicals he uses for testing. He explains how he tests for blood using phenol saline. Dr. Lee has brought some vials to court and is now explaining what they are and how they are used. They are vials that have a cotton Q-tip type swab inside them. He shows the court that he takes this swab out, will swab an area to be tested, and then put the swab back in the vial.

Dr. Lee tries to say that Ms. Caplan was mistaken, and what she most likely saw was Dr. Lee swabbing the wall with one of these swabs, and then putting the swab back in the vial.

Several more photographs are put up on the Elmo, and Dr. Lee describes them.

A year later, Stan White supposedly sent Dr. Lee a package, wrapped up in a Macey’s paper bag. Dr. Lee says he did not see Mr. White collect anything at the scene. More pictures up on the screen of the front and back of this package that he was sent. Dr. Lee found a piece of red carpet inside. Since it contained blood, he sealed it in a biohazard bag. He said he couldn’t find anyone to determine what to do with it , so he kept it.

Now I understand why Dr. Herold was there. She was there to collect the evidence that Dr. Lee did bring to court with him. The examiner’s office will take possession of of the blood stained carpet. And the item is turned over to the crime lab right then.

Some photographs are put up on the Elmo, that the people entered earlier in the hearing, and Dr. Lee is asked to identify the items. He identifies them as the items he sent to the LA Sheriff’s crime lab. The court reporter asks Dr. Lee to repeat his words again.

Q: Now, your collection of these two items that we’ve been discussing, has an issue ever come up in this case where they wanted you to testify about your collection of these items before?

A: Yes.

Q: Okay. And, when was that.

A: That was ah, in ‘84.

Q: Okay, Ah, can we have a letter report marked next in order your honor?

Judge: Ah, 52.

Plourd. Is it ‘94 or 2004?

A: Ah... I mean 2004. 2004.

The document is a letter from Dr. Lee to Leslie Abramson, and it deals with him being called to testify, but he never testified. He had the items he collected with him, but since he never testified, he never handed them over.

Dr. Lee reviewed a transcript testimony of Stanley White regarding his observations.

Q: Do you have a different recollection than what he testified about as to anything of the things he saw or observed?

A: I feel very upset. I think my, (unintelligible word), my reputation severely damaged. Because he said things. I don’t know this person. I just don’t know why he did that. My recollection I did not have any conversation. My document, my pictures show the carpet there. Nobody cut into the carpet. ...  I never put biohazard material in my handkerchief. Just, nobody does that. Scientists, we’re all trained, to be objective; to be fair. Whatever we find, I reported. Nothing to hide about it. Remember one time he say, “That’s not a handkerchief now, all of a sudden it become a tissue. And he said the fingernail is red. Uh, he, I just don’t know what he’s talking about.”

Q: Dr. Lee, did you collect anything, or look at, or see anything that looked like a fingernail at that scene?

A: (Slightly chuckling) No, I did not see. I did not collect any fingernail. No, I did not collect any tooth. All I did was collect that two, thread like material. Which I documented when I picked it up.

There’s more questions about fingers, and that in over 6,000 crime scenes, Dr. Lee has only seen fingers a few times. And then bullet “swipe” is discussed, and how could all those investigators at the scene, miss a fingernail? Then there’s some talk about the gasses of the gun and whether or not it can melt the acrylic that the fake nails are made of.

Q: Did you review some testimony by a Sara Caplan?

A: Yes I did.

Q: Okay. And, uh, do you have any recollection that comports to what she saw?

A: I think she made an, honest mistake. When I use a swab, swab a surface, I put in a test tube, that looks like, something white. Maybe, she just make assumption; did not even check, what’s going on.

A few more questions about the tubes Dr. Lee uses are asked, as well as questions regarding how he was asked to stay on with the State Connecticut Crime Lab.

End of direct examination.

A recess is called. Alan Jackson is now able to take time to review the original photographs that Dr. Lee brought with him. These were the photographs that the prosecution has been asking for, for over a year. There’s lots of huddled discussion among the attorneys. Someone in the gallery makes a comment about how terrible it is that Mr. Jackson has to try to review the original negatives right there in the courtroom using the poor overhead fluorescent lighting.

Earlier in the day, around 9:30 am, I overheard Mr. Dunne describing how Cutler gave him a ride back to Pasadena when his driver didn’t show up. Dominick says Cutler is a really entertaining person. The break is still going.

Alan Jackson finally starts the cross of Dr. Lee.

Q: Did you recognize anyone there?

A: They all look alike to me.

I can’t believe it. Dr. Lee says the same joke he’s said in virtually every trial he’s testified in. There’s no jury here to laugh at his joke, and it’s not funny after it’s been told so many times.

Alan Jackson asked Dr. Lee directly, in person, in February 2006, for items he collected, and Dr. Lee doesn’t remember that.

Now Dr. Lee is explaining that he doesn’t document a “private case” as carefully as he would one for the state. “Not a state case,” he says.

Q: Why is it you don’t document as precisely?

A: I don’t document every conversation.

Now Dr. Lee is explaining that his secretary would have the documents that shows when he mailed his file to the District Attorney’s office. It’s not in is file. The secretary would have the FedEx slip. Dr. Lee says that since he does have the FedEx slip, that’s documentation.

Q: Why did you not keep a record in the file?

A: You have to ask them (his secretary).

Now Alan Jackson is asking Dr. Lee about paper bindles verses the type of collection paper that’s standard in Connecticut. In Los Angeles County, they use envelopes that are called bindles. In Connecticut, it’s a type of paper that’s folded and sealed somehow. But here, at this crime scene, Dr. Lee used “post it” paper. POST-IT paper! I can see it now, Dr. Lee will forever be called Dr. Post-it. And Dr. Lee sounds like he’s getting exasperated because in a very agitated tone he says, “It’s all paper! It all comes from the same place.”

Alan Jackson also gets Dr. Lee to admit that he didn’t document when he took his photographs at the scene.

A: I took that night. I don’t know what time.

Q: All those photographs were taken that night?

A: I don’t remember. (snip) Some maybe before the package, I sent it. (snip) I don’t remember exactly every one. I’d have to compare to my negative. Maybe you can help me.

Dr. Lee now says that with private consultation cases, all items he collects are stored at his home where he has a laboratory. Alan Jackson keeps insisting there was a court order for his file.

Q: Why didn’t you send it?

A: I only send what I collect. I was told only what I collected. I did not do any measurements. I just put my ruler there.

Q: Did you make a note as to when you received this piece of evidence? (I believe Jackson is talking about the rug swatch from Stan White).

A: No.

Q: Do you have an assistant? Do you have any procedures or protocols for your assistants to document (your case files)?

Alan Jackson asks Dr. Lee, or implies that Dr. Lee is sloppy. And I look over and Spector appears to be laughing! Dr. Lee gets real angry with his reply.

A: DON’T CALL ME SLOPPY!

Dr. Lee got very irate at any time it was insinuated he was not using proper procedures. Mr. Jackson is clearly rattling the great Henry Lee.

Q: So, if Ms. Caplan testified to you picking up ...

A: She must be mistaken.

Now, Alan Jackson puts up on the Elmo, a photograph of a small white object that appears to be sitting on one of the stairway steps. And he asks Dr. Lee about this photograph.

Q: Is that a small white object?

A: No. That’s a cut.

Sheesh! Looks like a small white object to me! Dr. Lee is actually trying to tell the court (what all of us in the courtroom can see with our own eyes), that this small white object lying on the steps that he photographed is a gouge, a cut in the wood. And this is supposed to be a world renowned criminalist?

And, as we already know, a week later, Judge Fidler ruled that Dr. Lee’s testimony was not credible.

Trial Notes, 5-2-07

On the Orange Line, the bus gets packed with standing passengers at the Van Nuys station. A young black woman with red and yellow dyed hair sitting next to me gets up to offer her seat to an elderly black woman who got on the bus at Van Nuys. I immediately felt guilty that I didn’t notice the elderly woman get in. Standing by the exit door is a short disheveled man with a hole in the top of his tennis shoe, carrying a coat and a big binder full of worn and wrinkled papers. He’s an interesting character, and I’m continually drawn to looking at that hole in his shoe.

The bus breaks very hard just past the Laurel Canyon exit and several passengers barely keep their balance. I reached out to stable a man in front of me. Several of the passenger exchange looks and gasps of exclamation, and nervous laughter. At the North Hollywood hub, I really push myself to try to lengthen my stride and walk as fast as I can to keep up with the other passengers. I don’t want to miss a train, but I’m also really feeling my years and the extra pounds I’ve put on since getting married. Downstairs, I’m fortunate I find a seat in the car I enter.

Each time I ride the train, I’m always trying to look out the reflective type windows and peer into the tunnels. I’m curious about the whole construction and design. On one trip, I count the number of tunnel lights, and look for the tiny service walkways that line the walls of the tunnels. I find the whole construction fascinating. I really pay attention this time when the train leaves the station, and I can feel it switching to the south bound track. A few stations down the line, a man in a nice gray suit with a battered leather briefcase gets on and takes the seat next to me. He’s reading a book about Thurgood Marshall. I ask him if it’s any good. He replies, “Yes, it’s by the same author who wrote “Eye on the Prize.” I kick myself for not bringing a book today. I purposefully removed as much as I possibly can from my tote to keep my handbag as light as possible, because of all the walking I’m doing taking the metro.

At the courthouse, the public security screening lines are pretty long today. It’s then that I notice that one of the security scanners is not being used. Usually there are three public lines, and a separate one for employees. Today, only two public scanners are in operation. (I always set off the alarm bells and have to lift up the cuffs of my jeans for the sheriffs. I think it’s something in my shoes that triggers them.) As I clear the 9th floor security station and round the corner, I don’t see the usual rush of reporters. I don’t know if I’ve come down here in vain. No Linda Deutsch; no Dominick Dunne; no Eric Leonard, or many of the other familiar faces that I’ve come to recognize, but just don’t know their names. I know I saw Russ in the parking lot, but he’s not up here.

A woman I saw flash a badge and breeze by security downstairs and rode up on the elevator beside me is waiting in the hallway along with several other unfamiliar faces. In the elevator, she was juggling holding several manila envelopes in the elevator, and I glanced over to read what it said on the outside of her leather billfold she had flashed to security: “Drug Enforcement Agency,” I see her enter Judge Fidler’s courtroom, and I wonder if what she’s delivering relates to Spector’s case, or some other case entirely.

I finally see a reporter, David K. Li, and two other female reporters I’ve seen before. It’s 9:15 am, and I see several people entering and exiting Fidler’s court, but no one I recognize or have seen before. I finally see Linda Kenny Baden arrive. She’s with another blond woman, possibly an associate, and they are both dressed in black. Kenney Baden doesn’t look that great in black, I’m sorry to say. It appears there is some sort of delay, that is being talked about by the other people with Kenney Baden. I over hear one of the group say to a reporter, “We were all asked to be here at 9:30 am.”

The prosecution’s clerk, Ed, and DDA Alan Jackson arrive, with a rolling cart that has their many files on the case. A reporter asks Alan a question I miss writing down and Alan replies, “I don’t know.” The few reporters that are here, and the public are allowed inside the courtroom, and I try to watch the interplay between individuals I don’t recognize. I observe two suited men who might be attorneys talking. One introduces the other to “...one of our investigators...” a man dressed very casually. The first thing that comes to my mind is, the man looks like he works under cover. It’s 9:28. What’s going on? Several people are here. The female DEA agent is sitting in the courtroom, waiting. Patrick Dixon arrives. I overhear Dixon talking to the Judge’s clerk saying that he called Roger Rosen....that’s all I can hear.

I’m sitting on the right side of the benches, and a black female sheriff comes over to me, asks if I’m with the defense. I tell her I’m a member of the public, and she motions to me to sit over on the left side of the courtroom benches. I move to sit beside this female reporter and David Li. The woman turns to me and asks, “Outside in the hallway, earlier, were you writing down everything I said? I reply, “I don’t even know who you are.” She introduces herself and says, “I’m paranoid Harriet.” I introduce myself and explain that I’m writing about the trial for the crime forums.

Shelly Samuels! I didn’t recognize her! Her hair is much shorter, and it’s been highlighted. She’s wearing a great suit. She ran into the courtroom, dropped something off, said hello to to her attorneys and left just as quick. I see Brunon has arrived. The Judge is asking the defense to...” update me as to Mr. Cutler’s health...” but, the defense isn’t even prepared to answer this. They don’t know if he will still be out, and just assumed that court would start on Monday, as “..to the matter of record...” One of the attorney’s spoke to him. He didn’t feel good yesterday, but he’s feeling better today. The attorney said that they could call him to find out the status of his health. Dixon jumps up and the people, “ask that that be done as soon as possible...” In other words, call him, find out if he’s going to make court on Monday. The Judge orders the defense to get on that. Call him now, I think. Then the Judge says “I need to see counsel in chambers.”

The Court TV guys who control the cameras are still are not here. It’s now that I remember that I hadn’t turned off my cell phone yet. Carp! I turn it off and it makes a huge noise shutting off. The same, black female sheriff yells at me to turn off my cell phone. I tell her that’s what I’m doing. I’m totally embarrassed! The court’s young media relations person arrives. The original press release it appears, was for 1:30 pm, and that’s why several of the reporters left. Dateline came and left. Eric Leonard came and left. She’s telling Harriet and David that she called as many people as she had in her cell phone. The cameramen finally arrive.

The reporters talked about why it’s not on record, why didn’t they announce the reason the judge and counsel went into chambers. They both think that’s unusual. 9:52 am, court comes back in session. The Judge talks about what’s going to go on this afternoon, and it will depend on time. There are two separate matters. This is where the judge talks about “....possibility at some point, that a piece of evidence should have been turned over to the prosecution....” There are lots of ifs, and’s and buts... ”The second issue appears to be concerning sanctions against the defense. The Judge just received the reply motion from the defense this morning and he hasn’t read it yet. And that appears to be it. Court appears to be over for this morning. It’s barely 10:00 am.

It’s now that I notice that there are now three black camera boxes mounted on the wall. I see the judge, out of his robes, opening envelopes from the DEA agent and the other “investigator” (the one that was being introduced to someone else) is there, observing the envelope opening, too. It is regarding another case, and not Spector.

The reporters are all struggling with what to do. It’s 3.5 hours before court resumes. There is literally nothing to do in the immediate vicinity. There’s not that much in the way of good eating... besides, it’s 10 am... and, there isn’t any shopping near buy. It’s the one day that I really wish I had brought a book. If I had a book, I could just go down to the cafeteria on the ground floor and read. But I get what I think (at the time) is a “great” idea, lol...(oh boy) and that’s to take the train back and exit or two, and see if I can spot a shop or something to occupy me for the next 3.5 hours. I take the train back one station to Pershing Square, and that drops me off at Hill and 5th Street. There’s a newspaper vendor right at the entrance to the subway, and I buy an Los Angeles Times and a Daily News. But looking around, there’s virtually nothing in the way of shopping. I think at first I’ll go to Pershing Square to read the papers, thinking there might be some food vendors there or something. Nada. And, the place is virtually deserted. Those that are there are in sleeping bags or under newspapers. That’s when I have my idea to walk down to the garment district, and see if I can shop for some new fabric. I still have about three-quarters of a mile to reach the heart of the fabric district. If I paid more attention to the Dash system, I’m sure I could have just hopped on any bus to get me closer, but I don’t take the time to find a map. I decide to walk.

I head east on 5th Street to Broadway and turn south. I’m now entering the jewelry district. Virtually every store is either a jewelry/diamond store or a fast food asian restaurant. The air is very muggy, and I really start to feel the weight of those two newspapers in my chenille tote. When I finally reach 9th street, I head east again. Coming up on Los Angeles street, I’m passing in front of the California Mart Building. Looking across 9th Street, I see the “New Mart” has completely taken over the entire building. As I pass, I’m transported back in time to 1979 and my first job here in California. I was working in the internal audit department of Manufacturer’s Bank, which used to be on the ground floor of the New Mart Building. This was the bank that was started to serve the specific needs garment industry. Years later, the bank was purchased by a Japanese Bank, and “Mitsui” was added to it’s name. The bank was sold again and the Mitsui was taken off. Sometime within the last few years, the original main branch was closed, and the Figueroa “Corporate Office” became the main branch of the bank.

Across Los Angeles street from the New Mart Building, a film crew is in full swing in front of the 860 Cooper Building. It doesn’t appear to be a big film production, but they have taken up the entire corner in front and on the side of the building. I finally reach Michael Levine’s. Imagine a moderate sized grocery store where you can see from one end of the store to the other. And virtually the entire store is filled with isle after isle of fabric. Directly across the street from the main store is Michael Levine’s Home Decorating store. A little bit smaller than the main store, but filled to the brim with upholstery and drapery fabric. I’m headed for the main store today, because I’m always looking for unusual cotton prints for my “Market” line of bags, and for the hot/cold packs I make. I find two great asian prints and get six yards or each. On my way back to the court house, it feels like I’m walking two miles instead of the three-quarters it really is back to the Metro subway station. On top of the newspapers, I feel even more weighted down by 12 yards of fabric. As I wind my way back up the streets, I notice several buildings have big signs posted on them that say “FILMING” and a phone number to call.

Finally back on the 9th floor, I see Alan Parachini and Pat Kellyhttp://sprocket-trials.blogspot.com/2007/05/trial-notes-4-30-07.html from the court’s public relations department. They are waiting for the throng of reporter’s to arrive. LKB and and her blond assistant arrive, and they head down to the other end of the hall. Linda Deutsch and a very tall gangly reporter I only know by sight arrive. Another reporter, Michelle Caruso, makes it back from lunch, and this whole group chat with a short, elderly woman they know who appears to be wearing an employee badge of the courthouse. (I later find out her name is Jeanne.) It’s obviously someone from the court or possibly the DA’s office that they haven't seen in a while. It’s a waiting game in the hallway, and as reporters arrive back from lunch they all check in with the court’s public relations office woman. Eric Leonard from KFI arrives and talks to Linda Deutsch. Dominick Dunne greets Linda Deutsch. I think it's around 1:15 pm, and reporter David K. Li has been wondering to several who will listen, why this “show” isn’t getting started.

The group of defense lawyers heads down toward this end of the hall, but stop at the elevator hallway, apparently waiting for the rest of the defense team to arrive. I notice that I have ink all over my hands, and I want to get up to wash them but I wait just to make sure I’m going to be able to get a seat in the courtroom. The stone bench I’m sitting on outside the court is uneven and wobbly. A juror from another trial is sitting on the same bench with me, and wonders out loud, why they can’t design something more comfortable besides these stone benches. The defense team starts to move again down this way. Phil is not in the group, but there are lots of unknown faces hanging out in the hallway.

A quite elderly woman (apparently a friend of Jeanne) I barely recognize from the Blake criminal trial approaches me and asks if I post on WebSleuths. “Not any more I reply.” She then asks me if I post on Court TV. “Yes, I reply. She then says, “I heard that you were going to be here.” And that’s it. No polite reintroductions; she just walks back over to her friend, who was the older woman chatting it up with several of the reporters. Ed, the prosecutions assistant arrives. There are a lot more individuals from the public who arrive, and I wonder if I’m going to get a seat. Nothing to worry about. I finally get in.

It’s Shelly Samuels! Shelly Samuels is here, along with several other individuals who appear to be attorneys. Is that LESLIE ABRAMSON!!!!???? She’s milling around with the defense attorneys. What in the world is she doing here? I over hear someone whisper that she represented Phil for nine months. So this must be a big discovery issue. The judge finally takes the bench. Spector is not here, taking advantage of hs 977 waiver. The judge starts to explain why everyone is here. Sometime within the last 10 days, someone contacted the district attorney’s office who was a former law clerk for Mr. Shapiro. Robert Shapiro was the first attorney that that Phil Spector hired. This set off alarm bells with the district attorney’s office, and they immediately contacted the judge.

The judge, sought the intervention of LAPD (who was not involved in the case) for discovery, and he appointed a Special Master, Professor Lori Levinson at Laloya University to conduct an investigation. This was to determine if the information this individual wanted to pass on was privileged information, or if it did concern some information that was not privileged. Professor Levinson kept in verbal communication with the judge, giving him updates. And within those discussions, Professor Levinson determined that there was something about some possible evidence that had been moved. The judge said he had an informal meeting with parties, and asked the prosecution if they had seen this “evidence.” They had not. So that’s what we’re here to find out if any of this information exists. Some have been subpoenaed; some are here voluntarily.

Mr. Brunon: “This appears to be...” He goes on that he’s concerned about the fact that conversation between referee and witness... that there’s a potential for prejudice against Phil Spector..... We don’t know anything. Just seems to me that we shouldn’t have this in a public forum. We ought not to air all this in a public forum.

Brunon wants this special hearing all in camera.

Judge: I believe this is no more than.... Ms. Abramson! Don’t shake you head at me...”

Leslie Abramson starts to talk, and one of the defense attorney’s stands up and says, “She’s assisting us....”

The judge speaks again. He appointed a Special Master. “If any evidence is moved, concealed, tampered with, not turned over...”

There’s more attorney’s talking and Leslie Abramson lifts up her arms, and/or makes a gesture and the judge says directly to Ms. Abramson, “Easy on the gestures.” Abramson replies, “You want me not to be Jewish?” The attorney for the witness who has come forward, wants to confer in camera with the judge. All the attorneys want to go in, but the judge says no. Two attorney’s from each side, the witness and his representative. Abramson wants to know if she can stand in the hall and listen, the judge says no.

They all meet in the judge’s chambers for the in camera meeting.

So this is why Shelly Samuels and all these attorneys from the DA’s office are here. It’s a tricky part of law. There may be officers of the court who have done something illegal. Sitting next to me in the back row, are three young journalism students from a local college. They are so young looking, I’m surprised they are in college; they look like they are in high school. In the morning session, they were in another courtroom listening to the Chester Turner case. This is a case where Turner is charged with killing (I believe) eleven women from 1987 to 1996. With the last killing Turner was caught, and he’s now finally on trial.

During the in camera meeting, I discuss today’s proceedings with the journalism students, and try my best to explain what’s going on, even though I’m a little confused myself. The in camera meeting is over and the judge takes the bench. This witness is in the courtroom and you can tell right away he does not want to be there. He is trying everything he can, to get out of testifying today. The judge says to the witness and his attorney, “That’s why you are here. There’s no criminal liability on your behalf. I’m not giving him immunity. If he chooses not to testify.....” The witness’s attorney tries to get his client out of taking the stand and says to the judge, “So, calling this an ordinary witness is not the case. We were misled as to why we were brought here today. I don’t think that is fair to Mr. Diamond (this is the witnesses name). Diamond’s attorney says to the judge, “I was never called by Lori Levinson...” And the judge immediately snaps back, “Don’t impugn Professor Levinson....!” The judge goes onto say, “We have decided there are no fifth amendment issues here.” (for his client)

You can tell the judge is getting somewhat exasperated. “You approached (the DA’s office). You said you have information! Take the stand and be sworn in! Fidler is irritated with this witness.

The prosecution starts to question the witness, Greg Diamond. Even a simple question about was he working for Bob Shapiro he can’t seem to answer without tap dancing around the question. At that moment in time, were you working in some capacity? Prior to that date, were you a law clerk of Bob Shapiro? Diamond finally answers, “Yes. I was a clerk and an intern.” He’s asked to name all the defense team at the time, and Diamond looks to the judge and asks, “Can I take the fifth?” The judge replies no. And Diamond is asked if, Sara Caplan, Dr. Michael Baden, Dr. Henry Lee, and other individuals, I think they ask if Bill Pavlic (sp?) was a member of the “defense team.”

Patrick Dixon: Who was Sara Caplan? Was she an employee of the bar?

Diamond: Yes.

Alan Jackson: Was it your understanding that Robert Shapiro represented Phil Spector?

Diamond: Yes.

Diamond is asked who all was there at Phil Spector’s house, right after the crime scene was released by the police to the defense.

Dixon: Did law enforcement leave there, and leave the defense team alone?

Diamond: Yes.

Dixon: Did you call the District Attorney’s office?

Diamond: Yes.

Dixon: Did you have a conversation with Alan Jackson?

Diamond: Yes.

Dixon: How long were you there with the defense team?

Diamond: I can’t recall.

Dixon: Three hours? Four hours?

Diamond: It was throughout the evening.

Judge: Were you doing anything to help Mr. Shapiro?

Diamond: I was not in a working capacity mode.

Judge: We have to hold... determine, why he was there; what his role was.

Getting this witness to answer questions is like pulling teeth from an pissed off cat. It’s unbelievable how much he is squirming on the stand, and being evasive. The witness is stalling in any way he can. Mr. Brunon interrupts and says something to the effect, “We need to know... get to evidence... if the people are conceding...

Judge: What was your understanding as to why you were there?

Diamond: I was an observer.

Judge (or Dixon?) Did Shapiro ask you to observe?

Diamond: No. I was there to observe. I was just there to observe. I was originally asked to go to Mr. Shapiro’s office.

Judge: We will assume he was there in a privileged capacity.

Diamond says that he did receive paychecks (from Bob Shapiro). More discussion as to whether or not what he observed or whatever was done in his presence is privileged.

Dixon: How long were you there?

Diamond: An estimate only... it could be three hours; maybe more.

Dixon: Did you see anyone pick up anything.

Now the witness is really getting squirmy on the stand.

Diamond: Your honor, may I ask again to my fifth amendment rights?

Judge: Certainly. There is no fifth amendment issue here.

Diamond: Can I have a continuance in this matter?

Judge: No sir.

Diamond confers with his attorney. He appears to be afraid to say what he needs to say. Maybe he’s afraid he’s going to be charged at a later date? Everyone is waiting on pins and needles to what he is going to say. Mr. Brunon addresses the judge, and the judge, with a bit of a smirk on his face makes the comment of Mr. Brunon’s concern for him. It’s funny because Mr. Brunon doesn’t represent Greg Diamond. Something is said and I miss it, all except the judge’s reply:

Judge: Any part of a rat’s anatomy. We are trying to approach real carefully.

The judge now gets tough with the witness.

Judge: Did you observe (someone pick up an item?)

Diamond: There was an item. (snip) It was whitish, white and quite small.

Dixon: Where were you when you saw this item picked up?

Diamond: I ws in the entry way, where (it) was found.

Inside, my mind is whirling. If this is all true, this could be huge.

Dixon: Who picked up this item?

Diamond: One of the members (of the defense team, who’s an attorney)

Dixon: Who picked it up?

Diamond: It was Ms. Caplan.

Dixon: After you saw this, what happened next.

Diamond: The item was turned over......

Dixon: to whom?

Diamond: Dr. Baden.

Dixon: Was there any conversation between the two?

Diamond: I don’t recall. (snip) He looked at the item.

Dixon: What happened next?

Diamond: As far as the item?

Dixon: Yes.
Dixon is now asking about the private investigator, Bill Pavlic, and if Diamond saw the private investigator take the item.

Diamond: I don’t recall.

Dixon: Were you contacted by officers of the LAPD?

Diamond: Yes.

Dixon: Did they interview you?

Diamond: Yes.

Mr. Brunon objects. He says something like, “based on questions...” but the judge shuts the defense down.

Dixon: Didn’t you tell detectives... during your interview with robbery~homicide, you saw Bill Pavlic take possession of the item?

Diamond: I don’t recall.

Dixon: didn’t you tell LAPD officers that he, (Pavlic) placed it in his pocket?

Diamond: No.

Judge: You heard words?

Diamond: Yes (snip) I observed that it was identified.

Judge: Somebody talked about what it was?

Diamond: Yes.

Dixon: When was the last time you saw it?

Diamond: I don’t recall.

Dixon: At some earlier time, did you tell someone...

Judge: You have no present recollection?

Diamond: I’m trying to answer as truthfully as I can.

Judge: Tell me everyone that you can recall who (may have touched the item)

Diamond: At this time... it’s a little cloudy...
 It was seen and it was observed. <--- can="" from="" my="" nbsp="" notes="" p="" said="" t="" tell="" this.="" who="">Diamond: I would like to answer; it’s a very serious question.
Judge: All my questions are serious. Just tell me who. Answer this question.

The witness doesn’t answer.

Dixon: Why can’t you answer. Please tell us.

There is a break or something. I can’t tell from my notes, and I’m vaguely remembering at this point, but at some point there is a break, or another in camera conference, and the Judge says that although the witness can’t claim the fifth as privilege, the judge did check case law, and he is required to offer to the witness to go in camera, to hear from the witness in camera to see if there is an issue of fifth amendment. So the judge and the witness, his attorney and the court reporter all go in camera.

 It’s 3:15. There is quite a bit of whispering and waiting in the courtroom. The judge emerges from in camera and says, “There is no basis to claim privilege. So, the witness has to continue to answer questions.

 Dixon: can you describe to the best of your ability.....
Diamond: An item was found lodged between the carpet and the staircase. (snip) The room is not very large.

I’m trying to make sense of my notes here, and also from memory. More questions are asked.

Diamond: Dr. Baden made mention that it was a fragment of a tooth.

More questions, and the witness testifies about Dr. Baden identifying the object as tooth material.

Dixon: Your memory was fuzzy?
Diamond: no.
Dixon: Didn’t you tell them.... (LAPD????)
Diamond: It was passed around.

Dixon asks more questions.

Diamond: Everyone had seen the item. I know Sara, Dr. Baden, Bill... all had seen it.

Dixon tries to get the witness to pin down the path of the item from person to person. But Diamond can’t precisely say who got it after Dr. Baden. Just that it was passed around. Dixon asks who on the defense team, who all had it?

Diamond: Everyone was mulling around as to what it was.
Dixon: Could you tell us was it passed? Were there other statements? What was alleged to be a piece of tooth?
Diamond: That’s the only statement that stays in my mind.
Dixon: Did you tell LAPD....
Diamond: No.
Patrick Dixon is trying to get the witness to say that Bill Pavlic had the item last. But he’s saying the detectives asked him that, but he’s not sure if Bill ever had it.
Dixon: When was the last time you saw the item? Who had it last?
Diamond: I don’t recall who might have had it the last time. Sara found it. Dr. Baden identified it. Bill Pavlic......
Dixon: Do you have any idea what happened to it?
Diamond: No.
Dixon: Do you know who has it?
Diamond: No.

There must be a break here, or something, because I have in my notes that Leslie Abramson says something. The attorney’s are conferring with the judge. It’s now that I’m able to lean forward to see the name on the badge of the elderly woman who was so friendly to the reporters. The attorneys want to ask the witness questions in another direction. Someone says, “I think this came out in the Vanity Fair article.

Dixon: Nothing further at this time.

Now, one of Spector’s defense attorney’s questions the witness. I find out later that this attorney is Plourd or Flourd.... I’ll have to check the online articles for his exact last name and the spelling.

Plourd: What is your current occupation?
Diamond: Paralegal secretary
Plourd: When did you pass the bar exam?
Diamond: I never showed up to take the exam.
Plourd: Do you have any projects you are trying to sell?
Diamond: I’m a writer, and I do have a project I sold to CBS.
Plourd: Any (projects that are) legal matters to entertainment?
Diamond: That one I did was a legal show.
Plourd: How did you get to the Alhambra property?
Diamond: I was in Sara’s car.
Plourd: Who else was in the car?
Diamond: In that car? Just us.

 Plourd then asks him about other vehicles on the property, and if there was a limo present.

Diamond: Yes, there was a limo present.

Plourd then asks him about what other individuals were there and/or how they got there.

Diamond: I’m certain there were other people... I just don’t recall.

As I’m listening to this testimony, I don’t know what to believe. Is this all some guys need for attention? Is this all just the idea of some guy looking to sell a story for a show? ??? Another individual, Stan White is brought in to stand in the gallery.

Plourd: Do you recognize this individual? 
Diamond: I don’t recall.

It appears for right now, they are done with this witness. Diamond says to the judge that he won’t be in town tomorrow. The judge tells the witness that he can’t leave the Los Angeles area, that he is subject to recall. He will be available to the court. The defense asks to bring in Baden, and the prosecution agrees. Dr. Baden had flown in from New York, and they wanted to try to get him back to New York as soon as possible, and not hold him over in Los Angeles another day. Dr. Baden is brought in, and Plourd starts asking him some questions.

Plourd establishes through questions who Dr. Baden is and where he is employed. If I’m reading my notes correctly, Dr. Baden is employed by the New York State Police as their chief pathologist. Plourd then has Baden go over his credentials, and some of the famous cases he’s worked on, such as John Belushi.

Plourd: In your career, how many times have you been to a death scene?
Baden: Thousands of times.

Dr. Baden says that Robert Shapiro hired him to work on the case. Dr. Baden states that he remembers Sara Caplan being at the scene, along with Dr. Lee and Bob Shapiro.

Plourd: Did you collect anything at the scene?
Baden: (very emphatically) No.
Plourd: Did you observe Sara Caplan (pick something up, or) give you anything to look at?
Baden: No.
Plourd: Did you make a comment, on anything, to make a determination (of anything) being tooth material?
Baden: No. That is beyond my scope.
Plourd: Did you see anybody else pick up an object.
Baden: No.
Plourd: Did you see Mr. Pavlic (with something)?
Baden: No. I didn’t see anyone pick up anything. I did not. I was just there to observe the death scene.

Alan Jackson then questions Dr. Baden.
Jackson: When were you contacted (hired by Robert Shapiro)?
Baden: Shortly after the death occurred.
Objection! Sustained!
Jackson: How much were you paid?
Baden: I don’t recall. My secretary would have (that information). I was called. (I’m currently paid) approximately about $7,500 to observe an autopsy. It was less then.

Just then, Leslie Abramson’s phone goes off. She yells out to the judge, “Sorry!!” and then leaves the courtroom. The prosecution then brings in Greg Diamond and asks Dr. Baden if he recognizes him. Same with Stan White. Dr. Baden did not recall either of these individuals at the crime scene and says he doesn’t recognize either of them.

Baden: They could have been there, but I don’t recall.
Jackson: Do you remember if members of the defense team (were there), Robert Shapiro, Sara Caplan, Investigator Bill Pavlic, Dr. Lee?
Baden: They may have. I just don’t remember.

Dr. Baden does remember Dr. Lee being at the crime scene. Dr. Baden denies what was claimed to have been found, and denies ever having identified something as part of a tooth.

Baden: (It) “never happened. Because I'm not a forensic dentist and I don't have that expertise.”

Jackson is blown away by this answer. He doesn’t have the expertise to identify possible tooth material? Isn’t he a medical examiner? Baden says that, “I can recognize and intact tooth (at autopsy) but a fragment? No. Not a piece at a scene. That’s Dr. Lee’s area of expertise. But certainly at the autopsy.”

Jackson then asks him about the broken nail, and Baden says that he couldn’t determine a broken nailat a death scene, but at an autopsy, yes. The two sides now argue to the judge about a specific point, and Jackson want to show that something “goes to bias.” I think it’s here that Baden says, (and I’m not sure from my notes), “I assume she didn't have a broken nail at work.” Jackson is done questioning and Plourd takes over.

Plourd: Ever been accused of mishandling evidence?
Baden: No.
Plourd: Did you ever find evidence?

Baden talks about finding a bullet at the scene when “Christian Brando died.” This is clearly a misstatement by Dr. Baden because Christian Brando was not the individual who died. Christian Brando was the individual who killed his sister’s boyfriend.

Baden: In my examination (of the Brando case) I found a bullet under a rug. I didn’t collect the item. I notified law enforcement.

Plourd: Do you recognize Leslie Abramson?
Baden: Leslie Abramson, yes.

Baden is asked when was the first time he was asked to put his conclusions on paper. I think this question is by Jackson. I believe from memory, it is here that Baden is asked about his conclusions about the crime scene. Baden is adamant that Lana Clarkson killed herself, and one of the things he is using to come to that conclusion is her broken thumb nail. He’s adamant about that, even though Jackson raises some good questions as to how he came to that conclusion.

It’s getting very late, probably past 4pm. Several individuals who have been waiting out in the hall, Robert Shapiro, Sara Caplan and others. The judge orders Stan White and Greg Diamond back to court tomorrow at 9:30am Sara Caplan and Robert Shapiro would be on 1 hours call/notice to appear. Bill Pavlic would be ordered to be at court at 10am tomorrow.

Outside the courtroom in the hallway, Linda Deutsch, Dr. Baden and the woman “Jean” all chat and catch up. In the elevator down, reporter John Spano tries to question Stan White about what he knows about what went on today. Spano was not in court all day, and missed most of what went on.

As I leave the courthouse, I’m really, really wanting to come back the next day to see what the next witnesses have to say about this supposedly found “tooth material.” But I can’t. I have clients I have to see. I’ll just have to find the time to watch Court TV Extra on the internet, and see how the questioning will unfold that way.

I hope you have enjoyed my trial notes. Please understand that my notes should not be used in place of a more exact transcript of the trial. Although I tried to be as accurate as possible when I was quoting someone, I’m sure you will find some statements that do not exactly match Court TV’s Extra coverage.