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, 5-2-07

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.