Update 3!
I'm here on the 9th floor with Dr. Adams. There is no one that I can see from the Spector trial, although Judge Fidler's clerk, Wendy just arrived. Hopefully the courtroom will be opened soon. Dr. Adams is still watching that dual jury trial in 107. The two juries are in deliberations, yet there is another case with the same judge that is starting jury selection for another trial. One of the juries is using courtroom 104's jury room for their deliberations. Dr. Adams just ran off since his courtroom opened just as I wrote this.
I'm having trouble keeping connected to the net in the hallway. When I tell Dr. Adams that before he took off, he tells me that all the CourtTV personnel, anyone on a laptop in the back row during trial number one had the same problem.
The hallway is somewhat empty. They're are people on benches, but it is no where full. I think one of the court reporters just went into 106. It's a face I've not seen before.
I just got kicked from the net again, but it could be because I was looking at the phone, and just jiggled the wire a bit. It's a waiting game now, to be let into 106.
Although I promised myself I would try to learn to use the built in keypad for my macBook, I procrastinated. So, I'm cheating. I've got my Logitech wireless mouse on the bench beside me, and I'm using that.
There is a mix of people in the hallway. Court employees, attorneys, and those waiting for trials that must still be in deliberations.
And y'all will just have to bear with me and my terrible spelling. I probably won't have time to spell check everything before I post it.
There was this one attorney in the hallway, but it appears that he's waiting for 108 to get started. I've seen his face before, but I don't know his name.
There's is quite a bit of chatter from the people in the hallway. Some are reading books while others are catching a last minute bit of breakfast. The hallway is getting busier, but no familiar faces other than Wendy, the clerk, who already arrived.
A reporter, a woman I've seen before has shown up.
A juror on another trial comes by and thinks I'm working. "That's a good idea." I explain that I'm a blogger, writing about the Spector trial. He wants to know how I'm connected, and I tell him my husband figured everything out, using our cell phone to "tether" to the net. The juror, Larry, and I talk about the Spector trial for a bit. But it looks like he might have to go into a courtroom soon.
I'm inside the courtroom!
The female reporter is arranging with the bailiff to set up sound for the hearing. She's from radio. I just got the courage to ask her which station she's from. It's KNX.
There are a total of five people in the gallery. (That includes me.) Wendy is talking to some one who is at her desk. The bailiff is at her station.
Another trial watcher enters, a young man in jeans, tennis shoes and carrying a red notebook. I've never seen him before, and he sits on the plastic chairs against the back wall near the door. I'm hoping my battery holds out for the next hour. I can see that from now on, even in the hallway, I'm gong to have to hook up the Mac to an outlet. During Spector I, power was provided for those on laptops. Now there is an outlet, or what looks like an outlet from here, all the way in the far left corner, right where the still photographer would set up, and behind where the CTV video control operators would sit at their little console station. I'm going to go check it out.
Darn! The problem with tethering the phone is, any movement with the phone wire can cause it to disconnect, but yes, if I have to, I could move down there and use the outlet.
Ah, the guy with the notebook appears to be an undercover detective. He's talking to other people in the courtroom, and it's clear from the conversation. It's most likely they are here to get documents signed by Judge Fidler, but I won't know until I actually see the Judge.
The bailiff leaves to get a defendant. Wendy just asked her to go get someone. Maybe the black man at Wendy's bench is the individuals attorney. Yep. I just heard him say, "I wanted to get on that case."
There's Judge Fidler.
He's signing documents for three gentlemen who have been waiting. Two of the gentlemen leave. The one who appears to be an attorney is still here.
The defendant comes in. His attorney is a woman, and the man who stayed behind must be the prosecutor.
The woman reporter from radio, leaves and tells me that the hearing is at ten am. Now it's coming back to me. I do remember meeting her at Spector 1, but for the life of my fading brain, I can not remember her first name, and I'm too embarrassed/shy to ask. But she addressed me by my first name, so she remembers my first name like a good reporter would.
Court is in session for another case. Defense attorney is asking to put the matter over for Feb. 1st. They are still hammering out charges. Everything is agreed to, and the defendant in his blue jail uniform, is taken back.
Alan Parachini, head of the court's public relations office comes in, and the KNX reporter tries to arrange with him to get the audio sound set up. Alan looks good. His hair is a bit shorter. I'm not sure if she got that approved or not, but I think so. They chat a bit, but I'm not really following the conversation.
The courtroom is very quiet. Probably no one will show until about 20 minutes from now, if they are on time. Alan left, the reporter is here with someone (another staffer?), and they talk. It's just the three of us in the gallery. I ask the reporter if they will have sound, and she tells me that Channel 5 will be filming, so they will take sound off of them. Understand, Ch. 5 will not be live. They will have to wait to take the film back to a truck or studio before they can put it on the net.
The court reporter is all set up (She handled the 30 second hearing earlier.) and Wendy and her chat a bit.
The Spector's and two bodyguards just walked in. Steven, Mikulan from the LA Weekly, who just arrived and sat down beside me, said they had to use the public metal detectors today. The place they used to go to was locked. (The private service elevators.)
Rachelle and Spector are sitting in the front row, Rachelle has her arm around Spector. She's wearing what looks like from here, a suede tan colored suit. Here hair is pulled back into a ponytail, and she has these little childlike tiny flower clips in her hair.
Damn. What happened to my last entry?
Doron Weinberg shows up. Rachelle gets up and gives him a hug and a big smile, Spector smiles, and they exit the courtroom. Alan Parachini is in the back row, texting on his blackberry, and Ciaran McEvoy from City News sets up. Steven suggests I plug into the wired box in the back corner, but I tell him I better ask first.
The Spector's and bodyguards reenter the courtroom. Doron goes up to speak to Wendy. The Spector's are back in the front row, sitting next to the wall. One of Alan's staff enters, a cute young woman I remember from Spector 1. I wish I could remember all their names. Doron hands Alan Parachini his business card, and leaves the courtroom. This all looks good towards a deal being inked. Let's hope so!
Another reporter entered earlier and is sitting in row 2 behind the KNX reporter. They are all chatting it up, and then the KNX reporter asks me if I remember "Circus of the Stars." And, it's vague, but I barely remember a show like that.
The family, their counsel, Alan Jackson, Pat Dixon, and Ric Ocampo (sp? do I have that name right?) all arrive. The attorney's greet Mr. Weinberg, and Rick is chatting with him still standing in the aisle.
I catch Mr. Jackson's eye, and he waves to me. Linda Deutsch arrived with the big group, and another reporter just arrived with Sandi Gibbons. Sandi and Linda Deutsch chat a bit, and Alan Jackson is talking to Ciaran and Steven.
KTLA (Channel 5) has NOT shown up, so KNX is trying to quickly set up their microphone. I notice Rachelle is wearing some gold hoop earrings that look like they might be about 1.5 inches across.
Rod Lindblom, one of the family attorney's looks back, catches my eye, smiles and waves.
There is a bit of chatter. The reporters are trying to set up a microphone at the judge's desk. Mr. Weinberg paces. Jackson and Mr. Taylor are chatting.
The bailiff announces: "Cell phones off please!" The attorney's stand. Spector is at the table.
The Judge takes the bench.
Weinberg says he is prepared to be accepted at his attorney.
He is the soul counsel for the defense at this time. Chris Plourd is in San Diego and is unavailable since he in another trial after the one he currently in now.
35,000 pages, including trial transcript. Weinberg is giving a list of things he has to go over.
In order for me to get to the level of knowledge about the trial and the .... he needs about five months. And then, more time after that. Plourd isn't free until September anyway.
The Judge asks to hear from the people. Jackson and Dixon confer.
Dixon says they want something as soon as possible. I would ask at this time not to set (a date of) September, and come back in February, to see where we are.
Weinberg responds, referring to Plourd's schedule. "He is in trial right now." Mentions the trial/defendant. He won't be done with that, until March 12. And then, another trial after that. Brown and the one he is in now will keep him tied up until the earliest, August/September.
Judge Fidler speaks. "I think I have a resolution that will solve it for everybody. Set it as the beginning in July, up to mid August."
Just depends on Mr. Plourds trials.
Weinberg asks not to do that. Plourd won't be ready until at least July, most likely August.
Now Weinberg mentions a family vacation that he always takes in August, 2 weeks, and goes on about his boys being at an age where, this is the last time they he will probably be able to vacation with them.
Judge Fidler responds, "We will come back in May, and see what your needs are."
Alan speaks. He has a request. They may be looking at other experts. "I don't want to wait until May to know about other experts." Waiting until May is okay as far as checking where we are.
Doron is still stalling about that.
Judge says, "discovery compliance date." Doron says a date in March. Alan looks at calender. Alan leans over the gallery wall and asks John Taylor about March and he says okay.
Judge just needs the "zero of 60" date for legal purposes. Thursday March 22nd, is the next trial date time. 9:00 am. That's just a check in date.
And that's it.
The judge leaves the bench.
Then Doron asks the judge back, and asks about the Spector's gag order from first trial.
Doron asks if they can be relieved at the gag order.
Fidler responds. Any potential witness, anyone acting on their behalf, at this time he is going to keep the gag order in place.
Judge says, everyone else can, but he doesn't believe the participants should. Keep that order in effect.
How does the Judge want to schedule motions? The Judge replies, to get with the DA, work something out, and then schedule it with the clerk.
And that's it for sure. Everyone slowly mills out of the courtroom, chatting with those they know and exchanging pleasantries, talking about other cases. Etc.
The Spectors finally leave the courtroom with their attorneys.
Hopefully, I'll have more later.
The bailiffs say they are going to take the Spector's down using the service elevator.
Updated! 12:15 pm
It appears I have my dates totally off. I missed it totally when they said Friday, March 7th, for the next pretrial hearing, and it's Thursday, May 22nd, for the next "zero-sixty" countdown. The time I believe for the first hearing would be 10:00 am and in May, it would be 9:00 am.
Outside the courtroom, I met two very nice ladies, Sherri and Robin, trial watchers just like me, who saw my Market Tote and asked me, "Are you Sprocket?" Yep, that's me! We talked about the first trial a bit, and they both said that they are going to attend the second trial. Robin and Sherri said that originally, they were going to fly up to San Francisco for the Barry Bonds hearing, but they couldn't get a flight. Another thing one of them asked (I'm sorry I can't remember which one) was, "Does he always look like that?" And I ask, "You mean like, Medicated? Yep. That's how he always is." I'm looking forward to seeing both of them at the next pretrial hearing. It will be nice to have some other trial watchers to discuss the case with and hopefully have lunch with.
On my drive home, I finally remembered the KNX reporter's name. Claudia! I hope I don't forget it again.
Update: 1:35 pm
I know that Alan Jackson leaned into John Taylor and appeared to be asking him about a check in date for the next pretrial hearing sometime in March. And I thought at first, I heard March 7th, then the date "Thursday, the 22nd was passed around, after Wendy said "the 23rd, they were dark."
Linda Deutsch of the AP has a report up, but it doesn't mention a date in March. It just mentions the May 22nd date. I've sent out a few emails, asking friends in the courtroom for clarification on the next pretrial hearing date.
Update: 2:05 pm
Thank you so much Sandi Gibbons! There are two dates. March 7th and May 22nd. Both hearings are at 9:00 am. The first date is being called a "discovery compliance hearing," but will probably be more of a status hearing, to see how far the defense is, in going through all the material from trial #1. The May 22nd date is a trial date, but it is not a "firm" trial date. It will also function as a status hearing, to see how much longer the defense will need to get ready, and what is happening with Plourd's two cases, one in Imperial County and one in San Diego County. Those two cases will be the ones to watch, to see how far they get and if they have any set backs.
Showing posts with label Pat Dixon. Show all posts
Showing posts with label Pat Dixon. Show all posts
Friday, December 7, 2007
Friday, June 15, 2007
Trial Notes, 5-29-07
I get out of the house way late, and decide to drive to the North Hollywood Red Line station to catch the train. I make great driving time, however, I can't find a parking spot in the lot. The only spaces that are available are for permit parking. Thankfully, a woman stopped me from parking in one of these spaces or I'd have gotten a ticket. I take a chance and park on the street. I make the train I normally would have made to reach downtown by 9:05 am.
I forgot to grab the extra large tote I had packed with a cushion for court. I at least remembered to put a new book in my bag, since I finished my last book on surviving dangerous situations. I will have something to read to pass the time.
9:10 am. I see Dominick and Ciaran sitting together. Two trial watching men (Richard and Ron) who have been attending quite a bit of the trial, say hello to Dominick. Finally, I get into the courtroom at 9:30 am. Lana's family hasn't arrived, and I don't think they will. Dr. Pena, the medical examiner is expected to testify today. I see that Alan Jackson has a whole stack of photos in his hand. Steven says, "it will be Kenney Baden's day today. This is where she earns her air fare."
The bailiff comes over to talk to the Court TV camera operators to tell then, "Fox 11 is on the phone. Fox is not getting a picture." One of the men replies, "It's an optical issue and we have someone working on it." 9:35 am. No judge, no jury. Ah! Now they're called. The defense informs the judge that, "Dr. Spitz and Dr. DiMaio will be here assisting us." Rosen brings up a point about Greg Diamond. A lengthy motion was filed by the defense this morning. Alan Jackson hasn't had a chance to review it. It has to do with two huge notebooks sent to him by Alan Jackson that supposedly he (the medical examiner?) hasn't looked at. The huge binders are about the psychological aspects of the victim. Alan Jackson andRosen temporarily resolve the issue.
Dr. Pena enters the courtroom. Dr's Spitz and DiMiao sit over on right, behind the defense area of the courtroom. Dr. Pena takes the oath. Alan Jackson conducts the direct examination. Louis Pena, forensic pathologist. Dr. Pena goes over what a forensic pathologist does. They determine "Cause of Death" and "Manner of Death." Dr. Pena has a medical degree in pathology. He did his residency inLos Angeles and in West Los Angeles. He testifies that he's board certified in pathology. He's performed over 3,300 autopsies. He's testified approximately 260 times in court.
Q: Is there a difference between "Cause of Death" and "Manner of Death?" (These are often abbreviated as COD and MOD.)
A: Cause of Death is the specific injury. (Dr. Pena gives examples.) If the Manner of Death can not be determined through the autopsy, then I need input. I will investigate from information provided. It's a team effort, putting the information together. Hopefully, from that I can then decide if the death is from natural causes, an accident, a homicide or a suicide.
Dr. Pena testifies that Ms. Clarkson's death is assigned a case number by the medical examiner's office. Coroner's case #2003-00937. Dr. Pena describes how cases are assigned a unique number, and no two cases have the same number. Since the decedent was not known, Dr. Pena went to the death scene around 5:00 pm on Monday afternoon. Dr. Pena explains that when he does go to a death scene, he does tend to remember the circumstances much better. Looking at the body, at the scene, helped him to come to a conclusion about the case.
Dr. Pena discussed with with Jamie Linetmoot, how to best preserve the clothing from purging from Ms. Clarkson's mouth and nose. Dr. Pena states that Ms. Clarkson's head is wrapped in a sheet/towel for transport. When Ms. Clarkson was placed on the examination table, she purged onto the table. Blood and tissue contaminated the right side of Ms. Clarkson's jacket.
Dr. Pena testifies to all the individuals who observed the autopsy. Tomlin, Forneya, Dr. Baden, Barlian Nelson, Jamie Lintemoot, another gentleman and Dr. Sherry. (sp? on the names) Dr. Pena states that it was a courtesy to Dr. Baden for him to be there.
Q: Is it normal for investigators to be there at autopsy?
A: At a homicide, yes, it is.
More photos, close ups of Lana's head are put on the overhead screen. There are three photos. A: As she arrived at the medical examiner's office. B: Photo of Ms. Clarkson after she had been washed off. C: After autopsy. The dentist came down and examined the two fractured upper front teeth. (The look like they are totally gone in the photo.)
Q: Did you have any findings regarding any wounds?
A: Do you want me to start with the head wound?
Dr. Pena states the bullet nicked the top part of the tongue. The bullet hit C1 & C2 and tore apart the spinal cord. The spinal cord was completely severed. Pena shows the jury on himself the trajectory of the bullet. The bullet fractured the base of the skull, hit the dura and ruptured the dura. The bullet lodged into the occiput bone of the skull. (This bone is at the base of the skull.) Dr Pena says, "A gun shot (GS) wound to the head and neck that cause her to die immediately." Up on the screen is an ME's office form with a diagram of the head; it's a side view, showing the trajectory of the bullet. The bullet ended up at the back of the head, still inside the skull. When hitting any hard bone, bullets can change direction. Dr. Pena states that the bullet could have changed direction. The bullet first grazed the top of the tongue. He goes onto to describe a specific type of injury to the very back of the tongue, but I can't read my note to get the correct word. Dr. Pena describes it. "Think of it, like a star burst. It sort of splits the flesh." Dr. Pena goes over more of the descriptions on the ME documentation form #24, where all the tongue injuries are described in detail.
(As I transcribe my notes here, I search my Webster's Medical Dictionary for this word that I can't tell exactly how it's spelled. I think I've found it. Sulcate (sul'kat). Grooved; furrowed; marked by a sulcus or sulci.)
Dr. Pena testifies that sulcate appears in the middle of the tongue. There are bruises by the back of the tongue. These are superficial. There is a bruise on the left side of the tongue. Dr. Pena says that the back of the tongue bruises could be from the bullet hitting the spinal column.
Q: What may have caused the bruise on the left?
A: I sought out opinions from my colleagues, and asked them to review the file.
In Dr. Pena's opinion, the bruise is consistent with a blunt force trauma. That bruise on the left side of the tongue did not occur from the bullet. It is his opinion that it occurred prior to Ms.Clarkson's death. He can't state when it occurred, only that it is recent, and premortem.
The jurors appear transfixed. Some lean in to listen to Dr. Pena. Dr. Pena then goes into explaining "sooting" and "stippling," and that it is burned and unburned powder hitting the skin. The difference is in how far away the end of the gun is from skin/tissue. Dr. Pena identified "psudostippling inside the oral mucosa. The weapon recoiled and hit her two teeth. The inter oral marks are due to those porcelain crowns breaking and shattering."
Q: Is it common for a bullet to shed or split when it hits bone?
A: Yes.
It's now that Alan Jackson goes through the demonstration on the screen, showing that, although the trajectory of the bullet appears to be upwards and toward the back of her skull, this does not tell us what position Ms. Clarkson's neck could have been in. It could have been tilted back. It's very clear from his demonstration up on the screen, that even though the bullet trajectory is fixed from where it exited the gun to where the bullet lodged, there is no way to know what position her head and body were in. The bullet trajectory is slightly upward, towards the back of the skull. But that does not mean that Ms. Clarkson's head was in the upright position when she was killed.
Dr. Pena testifies that Ms. Clarkson's death was immediate. She would have been immediately unconscious. Her body would have gone limp immediately. Dr. Pena now moves on to other injuries he found on Ms.Clarkson's body. There are bruises on the edge of the hand/wrists. There are bruises on either side of the left hand/wrist area, and and another bruise high up on the left forearm.
The court takes it's morning recess, and I get up to stretch my legs and back out.
Back on the record, Beth Karas enters the courtroom. Looking over at the jury, Jurors #8 and #9 joke. I see Jurors # 5 and #6 whisper. Alan Jackson is going over the wrist bruising again with Dr. Pena, who states he looked at these bruises under a microscope. Dr. Pena states that these bruises appeared to be about the same age . In Dr. Pena's opinion, they were recent to her time of death. There was no evidence of inflammation in these bruises. Dr. Pena states that based on the location of the wrist bruises and their age, they are consistent with someone grabbing Ms. Clarkson's wrists. Dr. Pena states he looked at Ms. Clarkson's bruises at the death scene. New images are put up on the overhead screen. These same images are handed to the jurors to look at. They are of Lana's hands at the scene.
Dr. Pena testifies that Steve Dowell did a GSR test for the top of the tongue and from the oral mucosa area, just inside the mouth. He also tested the hands and forearms for GSR. Dr. Pena states that he took blood from Ms. Clarkson's heart and from her femoral artery. (The femoral artery is located in the thigh.) He also took a vial of blood for DNA studies. The blood would be for toxicology studies and for blood alcohol content (BAC) analysis. The draw from the femoral artery is considered more accurate for BAC. The femoral BAC was .12. The heart BAC was .14. Normally, they do a screen that covers illegal drugs, and Dr. Pena also did a screen for "bases," which cover psychological drugs.
There was an over the counter medication in her system: Aleve. There was Vicodin. Both of these were in the low therapeutic ranges of .03-.07. There was no indication of higher levels (above .07) .
Q: Were you able to make a "Cause of Death" determination?
A: Yes. Gun shot wound to head and neck.
Q: Could you make a determination as to "manner of death" just by the autopsy?
A: No, I could not. (snip) The manner of death is homicide. (snip) It was not a typical scene for a suicide. Especially when it was (in the home of ) someone they had never met before. There are some exceptions to that, for example, suicide by cop. I've never had a case where someone just met someone and goes to their home and never been there before and just shoots themselves.
How would she have known that the gun was there in that drawer? I factored in the purse still on the shoulder. ... There was no evidence to substantiate depression. No diagnosis from a psychotherapist in her medical records. She was taking Paxil and Elavil but these were prescribed by a neurologist for a chronic problem with headaches. The Elavil she tried for a month. The Paxil works in the brain chemistry to help affect the blood vessels and work on headaches. (snip) She had no history of prior idealation or suicide attempts. She had all the medication in the world to commit suicide but she used them as prescribed. (snip) She did not possess or own a firearm.
Q: Based on everything, taking everything into consideration, based on the totality of the circumstances, what is the manner of death?
A: This is a homicide.
And direct examination ends. There is a bit of a hearing now, outside the jury's presence. Wow! It's not Linda Kenney Baden. It's going to be Chris Plourd who does the cross. The Judge and the attorneys banter back and forth a bit here, using "farm analogies," and the phrase, "cow out of the barn" is used. The Judge asks, "Didn't anyone grow up in the city?" Everyone laughs. The arguments continue as to what Plourd can cross Pena on. The Judge finally says that it will be on a "question by question basis, as to what they can ask. They cannot refer directly to inadmissible evidence. They cannot state precisely what might have been said." This is all referring to Spector's self serving statements that Dr. Pena was told, and used to come to his conclusion as to MOD.
Plourd begins his cross of Dr. Pena. He asks Dr. Pena what his specialty is in pathology. Dr. Pena says it's the heart. He's written some articles on it. Plourd holds up a textbook by Spitz and another one by someone else. Dr. Pena says that yes, he has referred to these books, but he also takes into account his experience of those 3,300 autopsies, and what he's seen in the field.
The lunch recess is called, and cross stops for now. Down in the first floor cafeteria, I call home and find out my husband is not feeling well. He injured his ribs on a job a few weeks ago, and they are still bothering him. I take off from court and go home in the hopes that I can work on him and make him feel a bit more comfortable.
Update:
One of the things I just remembered from this day. When Plourd asks Dr. Pena about Dr. Spitz's book and Dr. DiMaio, Dr. Pena smiled and waved to them from the witness stand.
I forgot to grab the extra large tote I had packed with a cushion for court. I at least remembered to put a new book in my bag, since I finished my last book on surviving dangerous situations. I will have something to read to pass the time.
9:10 am. I see Dominick and Ciaran sitting together. Two trial watching men (Richard and Ron) who have been attending quite a bit of the trial, say hello to Dominick. Finally, I get into the courtroom at 9:30 am. Lana's family hasn't arrived, and I don't think they will. Dr. Pena, the medical examiner is expected to testify today. I see that Alan Jackson has a whole stack of photos in his hand. Steven says, "it will be Kenney Baden's day today. This is where she earns her air fare."
The bailiff comes over to talk to the Court TV camera operators to tell then, "Fox 11 is on the phone. Fox is not getting a picture." One of the men replies, "It's an optical issue and we have someone working on it." 9:35 am. No judge, no jury. Ah! Now they're called. The defense informs the judge that, "Dr. Spitz and Dr. DiMaio will be here assisting us." Rosen brings up a point about Greg Diamond. A lengthy motion was filed by the defense this morning. Alan Jackson hasn't had a chance to review it. It has to do with two huge notebooks sent to him by Alan Jackson that supposedly he (the medical examiner?) hasn't looked at. The huge binders are about the psychological aspects of the victim. Alan Jackson andRosen temporarily resolve the issue.
Dr. Pena enters the courtroom. Dr's Spitz and DiMiao sit over on right, behind the defense area of the courtroom. Dr. Pena takes the oath. Alan Jackson conducts the direct examination. Louis Pena, forensic pathologist. Dr. Pena goes over what a forensic pathologist does. They determine "Cause of Death" and "Manner of Death." Dr. Pena has a medical degree in pathology. He did his residency inLos Angeles and in West Los Angeles. He testifies that he's board certified in pathology. He's performed over 3,300 autopsies. He's testified approximately 260 times in court.
Q: Is there a difference between "Cause of Death" and "Manner of Death?" (These are often abbreviated as COD and MOD.)
A: Cause of Death is the specific injury. (Dr. Pena gives examples.) If the Manner of Death can not be determined through the autopsy, then I need input. I will investigate from information provided. It's a team effort, putting the information together. Hopefully, from that I can then decide if the death is from natural causes, an accident, a homicide or a suicide.
Dr. Pena testifies that Ms. Clarkson's death is assigned a case number by the medical examiner's office. Coroner's case #2003-00937. Dr. Pena describes how cases are assigned a unique number, and no two cases have the same number. Since the decedent was not known, Dr. Pena went to the death scene around 5:00 pm on Monday afternoon. Dr. Pena explains that when he does go to a death scene, he does tend to remember the circumstances much better. Looking at the body, at the scene, helped him to come to a conclusion about the case.
Dr. Pena discussed with with Jamie Linetmoot, how to best preserve the clothing from purging from Ms. Clarkson's mouth and nose. Dr. Pena states that Ms. Clarkson's head is wrapped in a sheet/towel for transport. When Ms. Clarkson was placed on the examination table, she purged onto the table. Blood and tissue contaminated the right side of Ms. Clarkson's jacket.
Dr. Pena testifies to all the individuals who observed the autopsy. Tomlin, Forneya, Dr. Baden, Barlian Nelson, Jamie Lintemoot, another gentleman and Dr. Sherry. (sp? on the names) Dr. Pena states that it was a courtesy to Dr. Baden for him to be there.
Q: Is it normal for investigators to be there at autopsy?
A: At a homicide, yes, it is.
More photos, close ups of Lana's head are put on the overhead screen. There are three photos. A: As she arrived at the medical examiner's office. B: Photo of Ms. Clarkson after she had been washed off. C: After autopsy. The dentist came down and examined the two fractured upper front teeth. (The look like they are totally gone in the photo.)
Q: Did you have any findings regarding any wounds?
A: Do you want me to start with the head wound?
Dr. Pena states the bullet nicked the top part of the tongue. The bullet hit C1 & C2 and tore apart the spinal cord. The spinal cord was completely severed. Pena shows the jury on himself the trajectory of the bullet. The bullet fractured the base of the skull, hit the dura and ruptured the dura. The bullet lodged into the occiput bone of the skull. (This bone is at the base of the skull.) Dr Pena says, "A gun shot (GS) wound to the head and neck that cause her to die immediately." Up on the screen is an ME's office form with a diagram of the head; it's a side view, showing the trajectory of the bullet. The bullet ended up at the back of the head, still inside the skull. When hitting any hard bone, bullets can change direction. Dr. Pena states that the bullet could have changed direction. The bullet first grazed the top of the tongue. He goes onto to describe a specific type of injury to the very back of the tongue, but I can't read my note to get the correct word. Dr. Pena describes it. "Think of it, like a star burst. It sort of splits the flesh." Dr. Pena goes over more of the descriptions on the ME documentation form #24, where all the tongue injuries are described in detail.
(As I transcribe my notes here, I search my Webster's Medical Dictionary for this word that I can't tell exactly how it's spelled. I think I've found it. Sulcate (sul'kat). Grooved; furrowed; marked by a sulcus or sulci.)
Dr. Pena testifies that sulcate appears in the middle of the tongue. There are bruises by the back of the tongue. These are superficial. There is a bruise on the left side of the tongue. Dr. Pena says that the back of the tongue bruises could be from the bullet hitting the spinal column.
Q: What may have caused the bruise on the left?
A: I sought out opinions from my colleagues, and asked them to review the file.
In Dr. Pena's opinion, the bruise is consistent with a blunt force trauma. That bruise on the left side of the tongue did not occur from the bullet. It is his opinion that it occurred prior to Ms.Clarkson's death. He can't state when it occurred, only that it is recent, and premortem.
The jurors appear transfixed. Some lean in to listen to Dr. Pena. Dr. Pena then goes into explaining "sooting" and "stippling," and that it is burned and unburned powder hitting the skin. The difference is in how far away the end of the gun is from skin/tissue. Dr. Pena identified "psudostippling inside the oral mucosa. The weapon recoiled and hit her two teeth. The inter oral marks are due to those porcelain crowns breaking and shattering."
Q: Is it common for a bullet to shed or split when it hits bone?
A: Yes.
It's now that Alan Jackson goes through the demonstration on the screen, showing that, although the trajectory of the bullet appears to be upwards and toward the back of her skull, this does not tell us what position Ms. Clarkson's neck could have been in. It could have been tilted back. It's very clear from his demonstration up on the screen, that even though the bullet trajectory is fixed from where it exited the gun to where the bullet lodged, there is no way to know what position her head and body were in. The bullet trajectory is slightly upward, towards the back of the skull. But that does not mean that Ms. Clarkson's head was in the upright position when she was killed.
Dr. Pena testifies that Ms. Clarkson's death was immediate. She would have been immediately unconscious. Her body would have gone limp immediately. Dr. Pena now moves on to other injuries he found on Ms.Clarkson's body. There are bruises on the edge of the hand/wrists. There are bruises on either side of the left hand/wrist area, and and another bruise high up on the left forearm.
The court takes it's morning recess, and I get up to stretch my legs and back out.
Back on the record, Beth Karas enters the courtroom. Looking over at the jury, Jurors #8 and #9 joke. I see Jurors # 5 and #6 whisper. Alan Jackson is going over the wrist bruising again with Dr. Pena, who states he looked at these bruises under a microscope. Dr. Pena states that these bruises appeared to be about the same age . In Dr. Pena's opinion, they were recent to her time of death. There was no evidence of inflammation in these bruises. Dr. Pena states that based on the location of the wrist bruises and their age, they are consistent with someone grabbing Ms. Clarkson's wrists. Dr. Pena states he looked at Ms. Clarkson's bruises at the death scene. New images are put up on the overhead screen. These same images are handed to the jurors to look at. They are of Lana's hands at the scene.
Dr. Pena testifies that Steve Dowell did a GSR test for the top of the tongue and from the oral mucosa area, just inside the mouth. He also tested the hands and forearms for GSR. Dr. Pena states that he took blood from Ms. Clarkson's heart and from her femoral artery. (The femoral artery is located in the thigh.) He also took a vial of blood for DNA studies. The blood would be for toxicology studies and for blood alcohol content (BAC) analysis. The draw from the femoral artery is considered more accurate for BAC. The femoral BAC was .12. The heart BAC was .14. Normally, they do a screen that covers illegal drugs, and Dr. Pena also did a screen for "bases," which cover psychological drugs.
There was an over the counter medication in her system: Aleve. There was Vicodin. Both of these were in the low therapeutic ranges of .03-.07. There was no indication of higher levels (above .07) .
Q: Were you able to make a "Cause of Death" determination?
A: Yes. Gun shot wound to head and neck.
Q: Could you make a determination as to "manner of death" just by the autopsy?
A: No, I could not. (snip) The manner of death is homicide. (snip) It was not a typical scene for a suicide. Especially when it was (in the home of ) someone they had never met before. There are some exceptions to that, for example, suicide by cop. I've never had a case where someone just met someone and goes to their home and never been there before and just shoots themselves.
How would she have known that the gun was there in that drawer? I factored in the purse still on the shoulder. ... There was no evidence to substantiate depression. No diagnosis from a psychotherapist in her medical records. She was taking Paxil and Elavil but these were prescribed by a neurologist for a chronic problem with headaches. The Elavil she tried for a month. The Paxil works in the brain chemistry to help affect the blood vessels and work on headaches. (snip) She had no history of prior idealation or suicide attempts. She had all the medication in the world to commit suicide but she used them as prescribed. (snip) She did not possess or own a firearm.
Q: Based on everything, taking everything into consideration, based on the totality of the circumstances, what is the manner of death?
A: This is a homicide.
And direct examination ends. There is a bit of a hearing now, outside the jury's presence. Wow! It's not Linda Kenney Baden. It's going to be Chris Plourd who does the cross. The Judge and the attorneys banter back and forth a bit here, using "farm analogies," and the phrase, "cow out of the barn" is used. The Judge asks, "Didn't anyone grow up in the city?" Everyone laughs. The arguments continue as to what Plourd can cross Pena on. The Judge finally says that it will be on a "question by question basis, as to what they can ask. They cannot refer directly to inadmissible evidence. They cannot state precisely what might have been said." This is all referring to Spector's self serving statements that Dr. Pena was told, and used to come to his conclusion as to MOD.
Plourd begins his cross of Dr. Pena. He asks Dr. Pena what his specialty is in pathology. Dr. Pena says it's the heart. He's written some articles on it. Plourd holds up a textbook by Spitz and another one by someone else. Dr. Pena says that yes, he has referred to these books, but he also takes into account his experience of those 3,300 autopsies, and what he's seen in the field.
The lunch recess is called, and cross stops for now. Down in the first floor cafeteria, I call home and find out my husband is not feeling well. He injured his ribs on a job a few weeks ago, and they are still bothering him. I take off from court and go home in the hopes that I can work on him and make him feel a bit more comfortable.
Update:
One of the things I just remembered from this day. When Plourd asks Dr. Pena about Dr. Spitz's book and Dr. DiMaio, Dr. Pena smiled and waved to them from the witness stand.
Thursday, June 7, 2007
The Hearing Regarding Sara Caplan ~ Draft
Updated 1/24/15 spelling of Mr. Nasatir's name.
Updated 6-8-07
Prior to this point in the trial, Judge Fidler ruled that Stan White and Sara Caplan's testimony in the evidentiary hearing could be used to impeach Dr. Henry Lee, in the people's rebuttal case. Sometime after that, the prosecution must have presented a motion to be able to have Sara Caplan and Stan White testify in the body of their case in chief. I don't know specifically the argument they used, but in any event, the judge ruled that they could present these witnesses now. Fast forward to Wednesday. The prosecution was ready to call Sara Caplan and Stan White, but the defense stood up and notified the court that Sara Caplan informed them that she was not willing to testify. Below is my transcript of the hearing. It should not be used in place of an official court transcript.
Note~draft version; still needs to be edited:
Rosen: Indicated to the court several moments ago, and also, I just wanted to emphasize one point of it that, Ms. Caplan has made it very clear through her counsel to me, that she does not want to be put in the position where she has to testify against Mr. Spector, her client. And I just wanted... I know I spoke to that in more general terms a moment ago, but I want to speak to it at this point, in the very specific terms that I just have. So I’ve made my record that the court understands where we are on this, and I think the court may want to hear from Mr. Jackson, Mr. Dixon, as to where we’re going on this.
Dixon: Well, where we’re going is, we’re planning on calling Ms. Caplan. She’s already testified in this, um, trial, though not before the jury. Ah, I would also point out everything I know, is that she’s, um, Mr. Spector’s is not her client at this time. I don’t think there’s any indication of that. And I just don’t see any, legal, reason, for privilege, um, that would prevent her from testifying at this time.
Judge: Mr. Rosen?
Rosen: I know that just because she’s not currently representing him does not mean that the privilege evaporates into thin air and goes away. Privilege lives, and it lives beyond the relationship. And the court I know, knows that. And that’s the only thing I wanna indicate. And, ......some decisions to make here now. And also as I indicated to the court, you know, Mr. Nasatir has now joined us your honor. He’s in the courtroom. If the court wants to hear further, um... in terms of what I’ve already brought before the court moments ago, he’s also available to speak to the court.
Dixon: Your honor on that issue of privilege, the court, I think, um, went into this, and then, made it’s rulings, listened to the arguments and made a rather bright line as to where the privilege was and were it wasn’t. And, what subject matters. And I, I don’t know, that, I mean, ... the court obviously. But I don’t know that we need to relegate that. We, I, as an offer of proof, we’re basically, and the court heard the testimony, and asked Ms. Caplan the same questions that were asked before, on direct, and in cross examination, when she testified at the earlier hearing.
Judge: Thank you.
Rosen: Just one final thing. I, I know that I did say this previously, and I’m going to say it again. Is Mr. Spector’s position, that he asserts the privilege that he does not want Ms. Caplan testifying in this case against him.
Judge: He may not want Ms. Caplan to testify. First, she is not testifying against him. Nor is she testifying, will be expected to testify to any privileged communications. She is testifying, or would be expected to testify to observations that are clearly not privileged under California law, and under United State Supreme Court law. She has no right to claim the privilege to non-priviledged matters. If she chooses not to testify, make no mistake. And Mr. Nasatir, if you want to address me, and Ms. Caplan is in the courtroom, I will hold her in contempt. In almost 25 years on the bench, I have never, held an attorney in contempt. I take this extremely seriously, and I think she is making a terrible mistake. Mr. Nasatir?
Nasatir: Thank you for the opportunity to allow me to address the court. In forty years of criminal law practice, I have never heard, of an attorney, being called by the people, to testi~ or be called by the state, to testify against their client, or their former client. I think this is, without precedent as far as I know. Maybe there are one or two situations, do not, that do not apply here, in this case. It’s not just a privilege issue. I know your honor, uh, allowed me, and I thank the court, for allowing me to be heard in chambers yesterday, where I voiced these same arguments. But, besides, the attorney client privilege, there’s the word product privilege, which comes under that privilege. And then, there’s the attorney client relationship, which relates to this case with the sixth amendment to the United States Constitution, the due process clause, and our State of California Constitution, your honor.
And lastly, there is the attorney duty of loyalty, to her client. Her former client. Your honor, if, imagine the most dangerous person, which Mr. Spector is not. Imagine the most dangerous person, in the world, who was your client, and the people call you as a witness. Ha, Who were formerly his attorney, and his attorney has to testify. This is not an investigator, this is an officer of the court. This is a person who has, ah, other than an investigator, as like a mirror (?), this is an officer of the court, who has ethical duties, handed down to her, through centuries, and by the State of California State Bar. It’s, unprecedented.
I’m asking you, with all due humility your honor. Don’t, place, a defense attorney, in the position, of having to testify, against her former client. The attorney, you’re stepping between the attorney client relationship. That still exists. He has ordered her, not to testify. He is her client. This was an evidentiary hearing. At the evidentiary hearing, which, uh, I understand the defense, asserted the attorney client privilege. The court overruled it, and asserted all privileges, and objected to the testimony. The court, indicated, that, it would not hold, the testimony of, the people who testified in the evidentiary hearing, including my client, against Mr. Spector. Because he was not present. And the court, was going to fashion, another remedy. Which, and did fashion a remedy, which was, it would be allowed for impeachment against Henry Lee.
Somewhere between that ruling, and now, thee, my client, has become, a witness for the prosecution; to testify against her own client. Mr. Spector wasn’t there. He wasn’t present. This is her jury trial. This is the jury that’s going to decide, his guilt or innocence, in an issue of life and death. Of life, and, and, and, serious prison time, for her client. She can’t do it! And I’m asking you, to, reconsider your ruling, with all humility your honor. I thank you for hearing me, and I’m appealing to, your, sense of justice, not to do this, to my client Ms. Caplan.
Judge: Thank you. Is there anything else you wanted to offer?
Nasatir: No your honor.
Judge: My sense of justice applies not only to Mr. Spector, and counsel, and the prosecution, also to Ms. Clarkson; and to justice itself. Now, you tell me not to put myself between Mr. Spector, and Ms. Caplan, when Ms. Caplan went to a scene. And she observed, by her own testimony, that she gave under oath, someone, manipulate, take. (and because of the situation we find ourselves uh, in now) either conceal or destroy evidence, there is no privilege, not to testify, to her observations. There is none. It is not privilege material. Meredith makes that clear, Fairbanks makes that clear, Lee makes that clear.
And even an attorney’s sacred obligation, to his or her client, does not permit them to violate the law. And the courts have held, that that is not privileged. And therefore she has no opportunity, or she has no right if called, not to testify. And if she refuses to testify, I must use the power given to me, which I have never used in 25 years, to see that the law is followed. No other individual when it comes following the law, their obligation is to follow the law. And if she chooses, not to testify, and if I order her to testify and she refuses that order, then I will hold her in contempt.
Nasatir: I understand the court’s position your honor. It’s not a choice. It’s not a choice for her.
Judge: She has a choice.
Nasatir: It’s a duty. It’s a duty. And it’s always been a duty. And it always been a sacred duty. And she, hold that dear. And she holds that sacred. And she want’s me to tell the court, she does not want to be contemptuous, of the court, in any way. This is not just a privilege matter. You, it, we, keep talking about privilege in this courtroom. I understand the court’s ruling that it’s not attorney client privilege. It’s much more than that. It’s the sixth amendment. It’s the attorney client relationship. It’s putting the officer of the court whose sworn the to be, the only friend, a defendant has, under the constitution; only person that advocates for his interests, at every peril. And I’m quoting the cannons of ethics. At every peril. The only person your court is putting in, in a position, to have them called, by the prosecutors! And subpoenaed by the prosecutors! She’s here pursuant to subpoena. She’s being forced to come here. And now she’s being forced to testify against her own client. It’s not, right. It’s not, legal. And I’m asking the court, not to punish her, for, exercising her duty as an officer of this court.
Judge: I must respectfully disagree. It is right. It is legal. It is the law. And it is her obligation.
Nasatir: I’m sorry sir. As the, Uh, your honor, this is a, gentleman who is assisting us, uh, if it goes that far with appellate matters. His, his name your honor, escapes me for a moment.
Weberman: Chance Weberman.
Nasater: Chance Weberman, your honor, thanks you.
Judge: All right.
Nasatir: Thanks Mr. Weberman. I got all wound up there you know.
Judge: All right.
Nasatir: Your honor, uh, all I want to say is also, you have, less, drastic, alternatives in this case. You can, instruct the jury. This can be done by stipulation. Which, this can be done, by, an admonishment to the jury.
Judge: Stipulation how, Mr. Nasatir?
Nasatir: Well, uh,
Judge: Please tell me who?
Nasatir: Uh, rather than, than an attorney, uh, I don’t know. We haven’t explored it. I asked, I asked that it be explored the other day, and it wasn’t. But, you can instruct the jury. You can fashion another remedy like you did the other day, like we thought that was the ruling after the evidentiary hearing. That, it can be introduced for impeachment if Henry Lee testifies. That was the prior ruling. That was of the evidentiary hearing. And, also your honor, as I understand it, Stan White was an investigator, involuntarily here. He can testify to the same thing. Why make an officer of the court testify, in this situation, where you have less drastic alternatives, that you can fashion. And I know, that you’re a brilliant jurist, who can...
Judge: Easy Mr. Nasatir.
Nasatir: Who can...
(Laughter in the courtroom.)
Judge: I don’t want to have to dry my robe off, okay.
(More laughter erupts.)
Nasatir: Who has an, active legal mind, who can, who can draft, draft, a less, drastic alternative, especially, when you have this same testimony, coming from Stan White.
Judge: Well, I’ll answer the last one first. I don’t make credibility calls, the jury does. But I would say that Mr. White’s credibility, because of the way he got into the case, and many other factors, is subject to great deal more impeachment than Ms. Caplan’s is. She’s virtually an unimpeachable witness from the people’s standpoint. Her credibility, is unimpeachable.
Nasatir: Thank you.
Judge: And there’s a big difference, with that, and perhaps Mr. White. I’m not saying there is, or there is not, that’s for the jury to draw. I made to draw that decision, or, to draw that conclusion. I made certain, findings, when I made, the findings in this case, the factual findings that I did. But the people definitely are in a different position having to call Mr. White, or relying on Mr. White alone than they are with Ms. Caplan’s testimony.
And by a stipulation, the jury, an anonymous person, they don’t know who it is, in judging credibility, that’s basically useless. If there’s a, a stipulation, if there’s an offer to stipulate that Ms. Caplan would be sworn, called and testify, that’s something else.
Nasatir: That’s the same thing.
Judge: Well... but,
Nasatir: I’m asking, I’m asking for the court...
Judge: I should tell you that there’s a chance that her testimony would have been inter, introduced in the trial in any effect, if I held her in contempt, obviously I would stay any such sentence. I’m required to as a matter of law. And I would in any event, to allow you to test it. But at some point she may be unavailable as a witness. And then there’s a question of whether her prior testimony which was subject to cross examination is admissible at the time of trial. So her victory may be, if there ever is, if you want to call it a victory, I do not.
Nasatir: (Unintelligible)
Judge: Might be very hollow.
Nasatir: This is not a victory.
Judge: I understand.
Nasatir: It’s not a situation where, where, we’re, we’re in opposition to the court, by anything... Nothing, in what I’ve said, indicates that she wants to be contemptuous of this court. She want’s to follow the law as she’s been taught in law school, as she’s read by the cannon of ethics, and as she’s been advised by attorneys. And, under these circumstances, in a jury trial, being called by the people, her clients. They’re trying to deprive her client of his liberty. She cannot testify under those circumstances.
Judge: Um, thank you.
Dixon: Your honor...
Judge: Mr. Dixon.
Dixon: I’d briefly point out two things. One, everyone seems to have forgotten that at the hearing, the defense, Mr. Spector’s lawyer’s called Ms. Caplan to the stand. It’s, no one seems to really recall now. But, she took the stand. She took it voluntarily. She went through direct and cross examination, and because of that, we are now calling her. But, had she originally did it voluntarily, and she did it on behalf of Mr. Spector’s lawyers, and came to court to testify. Um, secondly, if I don’t know how this is all going to play out, but if there’s going to be a refusal to testify, I think it should be outside the jury’s presence.
Judge: Well, the question is, whether, if I hold her in contempt, and normally you would, you would take any proceeding where someone is going to claim a privilege, (cough) excuse me, and do it outside the presence of the jury, I’m not sure, for the purpose of holding her in contempt, ~~ not that I want to, and I beg you Mr. Nasatir, to reconsider your position. I know the position you find yourself in. I know the position Ms. Caplan finds herself in. I hope you understand and respect the position I find myself in. I’m basically begging you not to do this.
Nasatir: I’m begging you not to do this.
Judge: Well, I guess we’re, we’re basically neither one is to answer the other’s request then. It’s what’s going to happen. Um, I have to take a look at whether or not it’s appropriate um, to go through with the contempt proceedings if she can claim the privilege, and refuse to answer outside the presence of the jury, and still be held in contempt. I’m not sure about that.
Rosen: Your honor.
Judge: Yes,
Rosen: In the hearing, outside the presence of the jury, and this is demeaning (?) the interrogation of Mr. Dixon, but, cross examination by the defense. The court basically ordered us to get Ms. Caplan here for the purposes of that hearing, and when we put Ms. Caplan on, and I was the lawyer that did put her on. I called her, and I examined her on direct, not on cross. And secondly, the purposes for which we presented her at that time were somewhat different. And the examination, and I can tell the court this, the examination was not tailored, to be examination in front of the jury. Because certainly, we know in situations where, that may be a, a, sign on the door post before we walk through the door, we as defense lawyers, ~and especially those who’ve been around as long as Mr. Brunon, Mr. Cutler, Ms. Baden and myself Mr. Plourd and certainly Mr. Dixon and Mr. Jackson, are going to tailor their questioning a lot differently.
In those instances for example where there’s a deposition in a criminal matter and statements. So, in that particular hearing that we had, it was not cross examination by the defense. I put her on, as I always, I put her on direct, and I didn’t do a cross examination. But I can tell the court, I would never have. And certainly, if I had, any, premonition, what so ever, that that testimony was going to be wound, wound up at some point, being read to a jury because of, of the um, declaration by a judicial officer that she was unavailable for future purposes, the questioning would have been done a lot differently. So, I think it’s port important to put that in context, because it has been a bit since we visited that particular issue your honor.
Judge: Thank you.
Brunon: Can I just be...
Judge: Just a second. I think Ms. Caplan wishes to be heard.
Nasatir: Your honor, may Ms. Caplan address the court?
Judge: Of course she may.
Caplan: Your honor, when I was initially contacted by this case, Mr. Wiley of the prosecutors office, called me and said that the court was ordering my presence, and their office was ordered to serve me with a subpoena, which I accepted by fax. I did not know what this was about. I was led to believe that the court had overruled the privilege for the limited purpose of an evidentiary hearing on a very small issue. I never, anticipated, and I believe it’s unprecedented, that a lawyer, would ever be called to testify in a prosecutions’ case in chief against a client or a former client, when the law and all the ethical obligations that I, .... as an attorney would testify.
The attorney in that case knew it was evidence. I do not know what I saw. I did not see it leave the premises. I saw something. It was not my call to make. You have an alternative here, where, this Mr. White claims to have, known what it was, claims to have seen exactly where it is. I don’t remember. And, he claims that, he discussed it with Dr. Lee. I did not. I never saw it leave the premises. Under these circumstances, and the court in Meredith, limited it’s holding to the narrow circumstances in that case. They had the investigator testify, because he was the one who saw it in the location that it was. Not the attorney. They kept the source of the information privilege. And the um, I’m sorry. I’m just so upset over this.
Judge: I understand.
Caplan: I have never in my life, thought I would have to be put in a position like this and it’s a horrible situation to be in. I have no desire to be contemptuous your honor.
Judge: I understand. I understand fully. We’re not, (cough) excuse me. (Cough) We’re not going to be deciding this today in any event. I, I need too much time to review some matters, before we go forward with ah, Ms. Caplan. We know what her position is, so the people are going to be forced to move forward with other witnesses, assuming that you have them. You know her position is clear.
Dixon: Ahm, we, we need a few minutes to ah,
Judge: That’s fine.
Dixon: Check on the alternative witnesses.
Brunon: Judge I need to just ask
Judge: Yes?
Brunon: I agree with Mr. Dixon. This issue needs to be resolved outside of, of the, jury.
Judge: I tend to agree with you that normally that’s done. There are some things in the contempt procedure that make me question that. But I’ll have to, seek some guidance on that.
Brunon: Because your honor, and I agree with the legal area, beyond the, normal ah, process of determine privilege issue outside the presence, we have the additional uh, factor in this case, is that, there, this is not admissible against Mr. Spector per say in any event. So, we have that second level that sometimes we, we have to accommodate some way, even in this uh, process now.
Judge: I understand.
Rosen: Also, we just want to keep in mind, that, the footnote to all this is that, as Ms. Caplan said, and as Mr. Nasatir said, “It’s not that, the government is not without another opportunity, and that is Stan White.
Judge: I’ve, I’ve responded to that, Mr. Rosen. I, I think in the, wh, and I’m going to be very honest. The defense has made noises before about attacking Mr. White’s credibility. And then to say, “Well, use Stan White. That ‘s okay. That’ll get the job done.” That’s basically disingenuous. It’s basically disingenuous. Because I know for a fact that you’re going to go after Mr. White. You’ve already indicated. I don’t know whether you plan to attempt use other things against him that haven’t even been brought out yet. But you’ve mentioned, and, based upon that, to say that, “Just go ahead and use Stan White.” That's, that’s just not right. That’s just, not, right.
Rosen: The truth is he’s not my witness.
Judge: Well, I understand that. But what you’re doing is you’re trying to set up a situation, or establish a set of facts, or, or, ah, a certain aura, that, that there’s no need to call Ms. Caplan, because we have this other witness. But when you plan to attack the other witness, and that witnesses credibility, when Ms. Caplan could not be attacked in such a fashion, please don’t do that. It’s disingenuous. Very clearly is. And I think we should drop that. You’ve made the point, I’ve responded to it. We really need to move along from that point.
Jackson: Your honor, at this time, ah, I guess we have no choice, ah. As the court knows, we were, we had a certain witness list planned for this afternoon. With, ah, the people’s apology, um, given the circumstances that Mr. Nasatir has ah, has brought before the court and Ms. Caplan has brought up, I think Mr. Dixon and I need a few minutes to find out if we can get another witness here. I do believe that we will not be able to fill up the entire afternoon, but we may be able to accommodate the court with at least one more witness.
Judge: Well, you go ahead and do that, and in the mean time, I’m going to excuse Ms. Caplan and Mr. Nasatir, order you back, ah, we won’t be in session tomorrow; for good cause. I’ll get into that later. We won’t be coming back until, ah, Monday. So, lets put you on call for Monday, at nine o’clock, and we’ll, if we need you we’ll call you.
(A few more words, reintroducing Mr. Chance Weberman, who will take over if the case goes into another direction.)
Other News:
Check out Steve Huff's The True Crime Blog for the latest news on the abduction and murder of Kelsey Smith.
Updated 6-8-07
Prior to this point in the trial, Judge Fidler ruled that Stan White and Sara Caplan's testimony in the evidentiary hearing could be used to impeach Dr. Henry Lee, in the people's rebuttal case. Sometime after that, the prosecution must have presented a motion to be able to have Sara Caplan and Stan White testify in the body of their case in chief. I don't know specifically the argument they used, but in any event, the judge ruled that they could present these witnesses now. Fast forward to Wednesday. The prosecution was ready to call Sara Caplan and Stan White, but the defense stood up and notified the court that Sara Caplan informed them that she was not willing to testify. Below is my transcript of the hearing. It should not be used in place of an official court transcript.
Note~draft version; still needs to be edited:
Rosen: Indicated to the court several moments ago, and also, I just wanted to emphasize one point of it that, Ms. Caplan has made it very clear through her counsel to me, that she does not want to be put in the position where she has to testify against Mr. Spector, her client. And I just wanted... I know I spoke to that in more general terms a moment ago, but I want to speak to it at this point, in the very specific terms that I just have. So I’ve made my record that the court understands where we are on this, and I think the court may want to hear from Mr. Jackson, Mr. Dixon, as to where we’re going on this.
Dixon: Well, where we’re going is, we’re planning on calling Ms. Caplan. She’s already testified in this, um, trial, though not before the jury. Ah, I would also point out everything I know, is that she’s, um, Mr. Spector’s is not her client at this time. I don’t think there’s any indication of that. And I just don’t see any, legal, reason, for privilege, um, that would prevent her from testifying at this time.
Judge: Mr. Rosen?
Rosen: I know that just because she’s not currently representing him does not mean that the privilege evaporates into thin air and goes away. Privilege lives, and it lives beyond the relationship. And the court I know, knows that. And that’s the only thing I wanna indicate. And, ......some decisions to make here now. And also as I indicated to the court, you know, Mr. Nasatir has now joined us your honor. He’s in the courtroom. If the court wants to hear further, um... in terms of what I’ve already brought before the court moments ago, he’s also available to speak to the court.
Dixon: Your honor on that issue of privilege, the court, I think, um, went into this, and then, made it’s rulings, listened to the arguments and made a rather bright line as to where the privilege was and were it wasn’t. And, what subject matters. And I, I don’t know, that, I mean, ... the court obviously. But I don’t know that we need to relegate that. We, I, as an offer of proof, we’re basically, and the court heard the testimony, and asked Ms. Caplan the same questions that were asked before, on direct, and in cross examination, when she testified at the earlier hearing.
Judge: Thank you.
Rosen: Just one final thing. I, I know that I did say this previously, and I’m going to say it again. Is Mr. Spector’s position, that he asserts the privilege that he does not want Ms. Caplan testifying in this case against him.
Judge: He may not want Ms. Caplan to testify. First, she is not testifying against him. Nor is she testifying, will be expected to testify to any privileged communications. She is testifying, or would be expected to testify to observations that are clearly not privileged under California law, and under United State Supreme Court law. She has no right to claim the privilege to non-priviledged matters. If she chooses not to testify, make no mistake. And Mr. Nasatir, if you want to address me, and Ms. Caplan is in the courtroom, I will hold her in contempt. In almost 25 years on the bench, I have never, held an attorney in contempt. I take this extremely seriously, and I think she is making a terrible mistake. Mr. Nasatir?
Nasatir: Thank you for the opportunity to allow me to address the court. In forty years of criminal law practice, I have never heard, of an attorney, being called by the people, to testi~ or be called by the state, to testify against their client, or their former client. I think this is, without precedent as far as I know. Maybe there are one or two situations, do not, that do not apply here, in this case. It’s not just a privilege issue. I know your honor, uh, allowed me, and I thank the court, for allowing me to be heard in chambers yesterday, where I voiced these same arguments. But, besides, the attorney client privilege, there’s the word product privilege, which comes under that privilege. And then, there’s the attorney client relationship, which relates to this case with the sixth amendment to the United States Constitution, the due process clause, and our State of California Constitution, your honor.
And lastly, there is the attorney duty of loyalty, to her client. Her former client. Your honor, if, imagine the most dangerous person, which Mr. Spector is not. Imagine the most dangerous person, in the world, who was your client, and the people call you as a witness. Ha, Who were formerly his attorney, and his attorney has to testify. This is not an investigator, this is an officer of the court. This is a person who has, ah, other than an investigator, as like a mirror (?), this is an officer of the court, who has ethical duties, handed down to her, through centuries, and by the State of California State Bar. It’s, unprecedented.
I’m asking you, with all due humility your honor. Don’t, place, a defense attorney, in the position, of having to testify, against her former client. The attorney, you’re stepping between the attorney client relationship. That still exists. He has ordered her, not to testify. He is her client. This was an evidentiary hearing. At the evidentiary hearing, which, uh, I understand the defense, asserted the attorney client privilege. The court overruled it, and asserted all privileges, and objected to the testimony. The court, indicated, that, it would not hold, the testimony of, the people who testified in the evidentiary hearing, including my client, against Mr. Spector. Because he was not present. And the court, was going to fashion, another remedy. Which, and did fashion a remedy, which was, it would be allowed for impeachment against Henry Lee.
Somewhere between that ruling, and now, thee, my client, has become, a witness for the prosecution; to testify against her own client. Mr. Spector wasn’t there. He wasn’t present. This is her jury trial. This is the jury that’s going to decide, his guilt or innocence, in an issue of life and death. Of life, and, and, and, serious prison time, for her client. She can’t do it! And I’m asking you, to, reconsider your ruling, with all humility your honor. I thank you for hearing me, and I’m appealing to, your, sense of justice, not to do this, to my client Ms. Caplan.
Judge: Thank you. Is there anything else you wanted to offer?
Nasatir: No your honor.
Judge: My sense of justice applies not only to Mr. Spector, and counsel, and the prosecution, also to Ms. Clarkson; and to justice itself. Now, you tell me not to put myself between Mr. Spector, and Ms. Caplan, when Ms. Caplan went to a scene. And she observed, by her own testimony, that she gave under oath, someone, manipulate, take. (and because of the situation we find ourselves uh, in now) either conceal or destroy evidence, there is no privilege, not to testify, to her observations. There is none. It is not privilege material. Meredith makes that clear, Fairbanks makes that clear, Lee makes that clear.
And even an attorney’s sacred obligation, to his or her client, does not permit them to violate the law. And the courts have held, that that is not privileged. And therefore she has no opportunity, or she has no right if called, not to testify. And if she refuses to testify, I must use the power given to me, which I have never used in 25 years, to see that the law is followed. No other individual when it comes following the law, their obligation is to follow the law. And if she chooses, not to testify, and if I order her to testify and she refuses that order, then I will hold her in contempt.
Nasatir: I understand the court’s position your honor. It’s not a choice. It’s not a choice for her.
Judge: She has a choice.
Nasatir: It’s a duty. It’s a duty. And it’s always been a duty. And it always been a sacred duty. And she, hold that dear. And she holds that sacred. And she want’s me to tell the court, she does not want to be contemptuous, of the court, in any way. This is not just a privilege matter. You, it, we, keep talking about privilege in this courtroom. I understand the court’s ruling that it’s not attorney client privilege. It’s much more than that. It’s the sixth amendment. It’s the attorney client relationship. It’s putting the officer of the court whose sworn the to be, the only friend, a defendant has, under the constitution; only person that advocates for his interests, at every peril. And I’m quoting the cannons of ethics. At every peril. The only person your court is putting in, in a position, to have them called, by the prosecutors! And subpoenaed by the prosecutors! She’s here pursuant to subpoena. She’s being forced to come here. And now she’s being forced to testify against her own client. It’s not, right. It’s not, legal. And I’m asking the court, not to punish her, for, exercising her duty as an officer of this court.
Judge: I must respectfully disagree. It is right. It is legal. It is the law. And it is her obligation.
Nasatir: I’m sorry sir. As the, Uh, your honor, this is a, gentleman who is assisting us, uh, if it goes that far with appellate matters. His, his name your honor, escapes me for a moment.
Weberman: Chance Weberman.
Nasater: Chance Weberman, your honor, thanks you.
Judge: All right.
Nasatir: Thanks Mr. Weberman. I got all wound up there you know.
Judge: All right.
Nasatir: Your honor, uh, all I want to say is also, you have, less, drastic, alternatives in this case. You can, instruct the jury. This can be done by stipulation. Which, this can be done, by, an admonishment to the jury.
Judge: Stipulation how, Mr. Nasatir?
Nasatir: Well, uh,
Judge: Please tell me who?
Nasatir: Uh, rather than, than an attorney, uh, I don’t know. We haven’t explored it. I asked, I asked that it be explored the other day, and it wasn’t. But, you can instruct the jury. You can fashion another remedy like you did the other day, like we thought that was the ruling after the evidentiary hearing. That, it can be introduced for impeachment if Henry Lee testifies. That was the prior ruling. That was of the evidentiary hearing. And, also your honor, as I understand it, Stan White was an investigator, involuntarily here. He can testify to the same thing. Why make an officer of the court testify, in this situation, where you have less drastic alternatives, that you can fashion. And I know, that you’re a brilliant jurist, who can...
Judge: Easy Mr. Nasatir.
Nasatir: Who can...
(Laughter in the courtroom.)
Judge: I don’t want to have to dry my robe off, okay.
(More laughter erupts.)
Nasatir: Who has an, active legal mind, who can, who can draft, draft, a less, drastic alternative, especially, when you have this same testimony, coming from Stan White.
Judge: Well, I’ll answer the last one first. I don’t make credibility calls, the jury does. But I would say that Mr. White’s credibility, because of the way he got into the case, and many other factors, is subject to great deal more impeachment than Ms. Caplan’s is. She’s virtually an unimpeachable witness from the people’s standpoint. Her credibility, is unimpeachable.
Nasatir: Thank you.
Judge: And there’s a big difference, with that, and perhaps Mr. White. I’m not saying there is, or there is not, that’s for the jury to draw. I made to draw that decision, or, to draw that conclusion. I made certain, findings, when I made, the findings in this case, the factual findings that I did. But the people definitely are in a different position having to call Mr. White, or relying on Mr. White alone than they are with Ms. Caplan’s testimony.
And by a stipulation, the jury, an anonymous person, they don’t know who it is, in judging credibility, that’s basically useless. If there’s a, a stipulation, if there’s an offer to stipulate that Ms. Caplan would be sworn, called and testify, that’s something else.
Nasatir: That’s the same thing.
Judge: Well... but,
Nasatir: I’m asking, I’m asking for the court...
Judge: I should tell you that there’s a chance that her testimony would have been inter, introduced in the trial in any effect, if I held her in contempt, obviously I would stay any such sentence. I’m required to as a matter of law. And I would in any event, to allow you to test it. But at some point she may be unavailable as a witness. And then there’s a question of whether her prior testimony which was subject to cross examination is admissible at the time of trial. So her victory may be, if there ever is, if you want to call it a victory, I do not.
Nasatir: (Unintelligible)
Judge: Might be very hollow.
Nasatir: This is not a victory.
Judge: I understand.
Nasatir: It’s not a situation where, where, we’re, we’re in opposition to the court, by anything... Nothing, in what I’ve said, indicates that she wants to be contemptuous of this court. She want’s to follow the law as she’s been taught in law school, as she’s read by the cannon of ethics, and as she’s been advised by attorneys. And, under these circumstances, in a jury trial, being called by the people, her clients. They’re trying to deprive her client of his liberty. She cannot testify under those circumstances.
Judge: Um, thank you.
Dixon: Your honor...
Judge: Mr. Dixon.
Dixon: I’d briefly point out two things. One, everyone seems to have forgotten that at the hearing, the defense, Mr. Spector’s lawyer’s called Ms. Caplan to the stand. It’s, no one seems to really recall now. But, she took the stand. She took it voluntarily. She went through direct and cross examination, and because of that, we are now calling her. But, had she originally did it voluntarily, and she did it on behalf of Mr. Spector’s lawyers, and came to court to testify. Um, secondly, if I don’t know how this is all going to play out, but if there’s going to be a refusal to testify, I think it should be outside the jury’s presence.
Judge: Well, the question is, whether, if I hold her in contempt, and normally you would, you would take any proceeding where someone is going to claim a privilege, (cough) excuse me, and do it outside the presence of the jury, I’m not sure, for the purpose of holding her in contempt, ~~ not that I want to, and I beg you Mr. Nasatir, to reconsider your position. I know the position you find yourself in. I know the position Ms. Caplan finds herself in. I hope you understand and respect the position I find myself in. I’m basically begging you not to do this.
Nasatir: I’m begging you not to do this.
Judge: Well, I guess we’re, we’re basically neither one is to answer the other’s request then. It’s what’s going to happen. Um, I have to take a look at whether or not it’s appropriate um, to go through with the contempt proceedings if she can claim the privilege, and refuse to answer outside the presence of the jury, and still be held in contempt. I’m not sure about that.
Rosen: Your honor.
Judge: Yes,
Rosen: In the hearing, outside the presence of the jury, and this is demeaning (?) the interrogation of Mr. Dixon, but, cross examination by the defense. The court basically ordered us to get Ms. Caplan here for the purposes of that hearing, and when we put Ms. Caplan on, and I was the lawyer that did put her on. I called her, and I examined her on direct, not on cross. And secondly, the purposes for which we presented her at that time were somewhat different. And the examination, and I can tell the court this, the examination was not tailored, to be examination in front of the jury. Because certainly, we know in situations where, that may be a, a, sign on the door post before we walk through the door, we as defense lawyers, ~and especially those who’ve been around as long as Mr. Brunon, Mr. Cutler, Ms. Baden and myself Mr. Plourd and certainly Mr. Dixon and Mr. Jackson, are going to tailor their questioning a lot differently.
In those instances for example where there’s a deposition in a criminal matter and statements. So, in that particular hearing that we had, it was not cross examination by the defense. I put her on, as I always, I put her on direct, and I didn’t do a cross examination. But I can tell the court, I would never have. And certainly, if I had, any, premonition, what so ever, that that testimony was going to be wound, wound up at some point, being read to a jury because of, of the um, declaration by a judicial officer that she was unavailable for future purposes, the questioning would have been done a lot differently. So, I think it’s port important to put that in context, because it has been a bit since we visited that particular issue your honor.
Judge: Thank you.
Brunon: Can I just be...
Judge: Just a second. I think Ms. Caplan wishes to be heard.
Nasatir: Your honor, may Ms. Caplan address the court?
Judge: Of course she may.
Caplan: Your honor, when I was initially contacted by this case, Mr. Wiley of the prosecutors office, called me and said that the court was ordering my presence, and their office was ordered to serve me with a subpoena, which I accepted by fax. I did not know what this was about. I was led to believe that the court had overruled the privilege for the limited purpose of an evidentiary hearing on a very small issue. I never, anticipated, and I believe it’s unprecedented, that a lawyer, would ever be called to testify in a prosecutions’ case in chief against a client or a former client, when the law and all the ethical obligations that I, .... as an attorney would testify.
The attorney in that case knew it was evidence. I do not know what I saw. I did not see it leave the premises. I saw something. It was not my call to make. You have an alternative here, where, this Mr. White claims to have, known what it was, claims to have seen exactly where it is. I don’t remember. And, he claims that, he discussed it with Dr. Lee. I did not. I never saw it leave the premises. Under these circumstances, and the court in Meredith, limited it’s holding to the narrow circumstances in that case. They had the investigator testify, because he was the one who saw it in the location that it was. Not the attorney. They kept the source of the information privilege. And the um, I’m sorry. I’m just so upset over this.
Judge: I understand.
Caplan: I have never in my life, thought I would have to be put in a position like this and it’s a horrible situation to be in. I have no desire to be contemptuous your honor.
Judge: I understand. I understand fully. We’re not, (cough) excuse me. (Cough) We’re not going to be deciding this today in any event. I, I need too much time to review some matters, before we go forward with ah, Ms. Caplan. We know what her position is, so the people are going to be forced to move forward with other witnesses, assuming that you have them. You know her position is clear.
Dixon: Ahm, we, we need a few minutes to ah,
Judge: That’s fine.
Dixon: Check on the alternative witnesses.
Brunon: Judge I need to just ask
Judge: Yes?
Brunon: I agree with Mr. Dixon. This issue needs to be resolved outside of, of the, jury.
Judge: I tend to agree with you that normally that’s done. There are some things in the contempt procedure that make me question that. But I’ll have to, seek some guidance on that.
Brunon: Because your honor, and I agree with the legal area, beyond the, normal ah, process of determine privilege issue outside the presence, we have the additional uh, factor in this case, is that, there, this is not admissible against Mr. Spector per say in any event. So, we have that second level that sometimes we, we have to accommodate some way, even in this uh, process now.
Judge: I understand.
Rosen: Also, we just want to keep in mind, that, the footnote to all this is that, as Ms. Caplan said, and as Mr. Nasatir said, “It’s not that, the government is not without another opportunity, and that is Stan White.
Judge: I’ve, I’ve responded to that, Mr. Rosen. I, I think in the, wh, and I’m going to be very honest. The defense has made noises before about attacking Mr. White’s credibility. And then to say, “Well, use Stan White. That ‘s okay. That’ll get the job done.” That’s basically disingenuous. It’s basically disingenuous. Because I know for a fact that you’re going to go after Mr. White. You’ve already indicated. I don’t know whether you plan to attempt use other things against him that haven’t even been brought out yet. But you’ve mentioned, and, based upon that, to say that, “Just go ahead and use Stan White.” That's, that’s just not right. That’s just, not, right.
Rosen: The truth is he’s not my witness.
Judge: Well, I understand that. But what you’re doing is you’re trying to set up a situation, or establish a set of facts, or, or, ah, a certain aura, that, that there’s no need to call Ms. Caplan, because we have this other witness. But when you plan to attack the other witness, and that witnesses credibility, when Ms. Caplan could not be attacked in such a fashion, please don’t do that. It’s disingenuous. Very clearly is. And I think we should drop that. You’ve made the point, I’ve responded to it. We really need to move along from that point.
Jackson: Your honor, at this time, ah, I guess we have no choice, ah. As the court knows, we were, we had a certain witness list planned for this afternoon. With, ah, the people’s apology, um, given the circumstances that Mr. Nasatir has ah, has brought before the court and Ms. Caplan has brought up, I think Mr. Dixon and I need a few minutes to find out if we can get another witness here. I do believe that we will not be able to fill up the entire afternoon, but we may be able to accommodate the court with at least one more witness.
Judge: Well, you go ahead and do that, and in the mean time, I’m going to excuse Ms. Caplan and Mr. Nasatir, order you back, ah, we won’t be in session tomorrow; for good cause. I’ll get into that later. We won’t be coming back until, ah, Monday. So, lets put you on call for Monday, at nine o’clock, and we’ll, if we need you we’ll call you.
(A few more words, reintroducing Mr. Chance Weberman, who will take over if the case goes into another direction.)
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Wednesday, May 23, 2007
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.
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, 5-23-07
It’s almost 9:15 am. There is not one recognizable soul in the hallway. So, I'm wondering if they started early. Inside the courtroom, I only see Court TV reporters Harriet Ryan and another whose name I don't know. The defense attorneys are here, but not the prosecution. Another case is having a hearing in Fidler’s court. Slowly, some reporters start to show up. Steve Dunleavy, Steven from LA Weekly, and David K. Li. Russ arrives with Alan P. from the court’s public relations office. It’s 9:20, and the courtroom is virtually empty. Lana’s mother, sister and attorney arrive. Plourd, Rosen and Linda Kenney Baden are here. Everyone is waiting to see if Robert Shapiro shows up today and will be put on the stand. David K. Li asks if Linda Kenney Baden’s name is written with a hyphen or without a hyphen. Alan says, “I’m the Public Information Officer. I can provide that.” It’s determined there is no hyphen in her last name.
Brunon arrives. I’m wondering if the prosecutors are still with Shapiro. Everyone is expecting him. Steve Dunleavy, the famous New York Post reporter is admiring the shine on David K. Li’s shoes. “That’s one hell-of-a shine,” he says. “I can see my face in it.” Patrick Dixon finally enters the courtroom. The LA Times reporter Peter Y. Hong arrives as well as the prosecutor’s clerk who controls all their photo and document exhibits on the Elmo.
9:30 am.
No Alan Jackson. No Judge. Sara Caplan arrives. The tall black haired attorney for Lana’s family arrives. Linda Deutch finally slips into the courtroom. Russ, Steve Dunleavy, Steve Mikulan and another reporter all kvetch a bit. Rosen and LKB are in deep conversation. A gentleman I’ve seen before chats with the attorneys on both sides and now is chatting with LKB.
The prosecutions case file (it’s transported into court each day on a rolling cart, usually by Ed) finally gets here, and Ed goes through a few items. Sara Caplan and Linda Deutch chat a bit now. Cutler arrives along with the young bald Asian prosecutor we saw a few days ago. Ah, the gray suited man with stark white hair is Sara Caplan’s attorney. The judge is finally on the bench.
The defense is trying to get some sort of discovery issues. They are stating that the prosecution has stuff they’ve not received. Now I have some notes that I am having a hard time deciphering.
After discussing how we should do this, asked his boss Doyle to speak with Captain Kyle Jackson; to the Robbery Homicide Division and what they needed and how to proceed. Maybe I can figure this out later.
The defense is now asking for anything the prosecution has from Bill Pavelic. Something about an e-mail from Pavelic to an “E. Wiley.” And that’s it.
The defense makes a motion to object to the entire proceedings. The Judge responds that his role is to safeguard the process, to ensure that nothing improper occurs. The judge cites a case to support his ruling. Jackson gets Caplan kicked from the courtroom for a moment. The judge reads the ruling. “That’s exactly what I’m doing. I’m taking action.”
Sara Caplan takes the stand again. Her attorney sits in the jury box, and Rosen is asking the questions. She states she had worked on cases with Dr. Lee before. From what she recalls, about three or four times. “It didn’t look like what was in those vials.” Now, with the way Rosen is asking the questions, he’s implying that the white particles on the floor... trying to imply that the white particles might be the falling down ceiling.
Now Alan Jackson asks her a question.
A: The object I saw on the ground was not cotton swabs.
Then the judge says he has some questions for Ms. Caplan. The judge is looking over a transcript of her prior testimony and reads it back to her.
Q: Why are you changing your testimony? Did you see Henry Lee pick something up and put it in a vial?
A: Yes.
I think there is one more question or two and then Alan Jackson gets up to present arguments to their position. One of his most memorable statements is, “Is Dr. Lee lying or is he incompetent? Which is it?”
When Alan Jackson finishes, Chris Plourd gets up to argue the defense position. Plourd argues about the number of criminalist at the crime scene. That “piece” definitely not there when those criminalists were there. It was not Sara Caplan’s responsibility to observe or supervise Dr. Lee. “There’s no evidence that Sara Caplan watched Dr. Lee’s testimony on TV. They (the prosecution) clearly lost something. There’s no evidence that the defense lost anything.” Plourd keeps using the phrase over and over again, “Dr. Lee testified to....” He tried to say there’s no clear evidence something was picked up. Then Brunon gets up to speak. “From a legal point of view, the whole issue has been speculative,” he says. “Mr. Jackson says his case is damaged. We ask, in what way?” Brunon says, “Suppose Dr. Lee did pick something up and do lose it. Again, how does that specifically hurt their case?”
Patrick Dixon jumps up, and he appears really upset in his tone. “It goes right to the heart of this case your honor!”
The judge is ready to rule. The complete transcript of that ruling can be found here. And for those who missed it, Judge Fidler ruled that Dr. Henry Lee was not credible, and that Sara Caplan's testimony was the most credible. He also states that the people can call any witnesses who testified at this hearing to impeach the testimony of Dr. Lee.
It’s 1:05 pm. Lunch is almost over. Spector and his wife and bodyguards arrive and go into the courtroom. They immediately exit the courtroom, and head down towards the other end of the hallway. I’ve heard that the court has given them a room that they can gather in to conference. There is a group of six new trial watchers waiting together in the hall. At first, I thought they were here for another trial, but after seeing them speak to one of the court public liaison's staff, I’m pretty sure it’s a good bet these individuals are part of some sort of production company. I can just tell by the way they look and are interacting with each other. Besides, why would a group of people coming down to court, contact the court’s public liaison office? Cutler arrives and enters the courtroom.
There’s a mass of people waiting butt not so many that I won’t get in. My thought is more about getting my same bench seat. A deputy approaches who is packing double heat. Steven says, “Two guns! Boy! Is he ready for trial!”
1:28 pm. Everyone is almost here, waiting to get into court. A woman with a juror badge is looking for Eric Leonard, and was asking some of the other reporters if he’s around. She’s a fan, and wanted to try to see him. One of the Court TV cameramen explains gives the woman a description of what Eric looks like, and that Eric is probably in the media room on the 12th floor. Linda Deutch arrives, and Dominick Dunne is here.
1:35 pm. The Judge finally takes the bench. A new witness takes the stand, and I notice that Patrick Dixon is chewing gum. Steven whispers to me, “In his twenty five hundred dollar suit.”
The next witness is David Ridgs, and he’s a paramedic-firefighter for the Alhambra Fire Department. Alan Jackson conducts the direct examination. The witness talks about his training and explains that an EMT paramedic has more training than an EMT1, 2, or 3. When it comes to declaring death, the witness testifies that the pronouncement can only come from an MD. However, a paramedic can make a determination of death, and that happens through an assessment of the four basic life functions.
Ridgs testifies that they are on shift for 24 hours, and that he started at 8 am the prior day. Ridgs and his partner got the call out and stopped at the staging area. Staging areas are usually used in regards to crew safety. They staged at Grandview and Norwood, and that it wasn’t “out of the ordinary” to stage at a death scene.
1:45 pm Beth Karas comes into the courtroom. This is around the time she usually comes in for the afternoon session, after she’s finished giving on air commentaries. The jury is alert and watching the witness. The witness says they arrived at the staging scene around 6:05 to 6:10 am. The paramedics initially met with police officers at the gate and then at the north side of the address. The witnesses understanding of the initial call was that there were shots fired and there may be a shooting victim. In his career, the witness testified that he made maybe twenty or more death determinations.
I see Alan Jackson lean into Lana’s mother and whisper to her. This is something that I see a lot in the days ahead. Mr. Jackson will let Lana’s mother know when photo’s of her daughter’s body are up on the screen, so she can avert her eyes. There’s a close up of Lana’s face on the Elmo. Her head is slumped to her left. There are close up photos now of Lana’s right side, and the witness is asked about blood on Lana's left side.
A: No significant amount of blood on (Lana’s) left side.
Q: Did there appear to be any more on her right?
A: Yes. (snip) The majority of blood was on the patient’s right side even though she was leaning to the left.
Q: Did you notice the blood on her chest?
A: Yes.
Q: Did you check for vital signs?
A: Yes.
Q: Did you check the carotid?
A: Yes. (snip) If I recall, I checked the carotid pulse on the right; the exposed side.
The witness testifies that he manipulated the victims head to check her airway. Lana’s mother has a tissue to her face. She’s looking down. She doesn’t look up. She now hold the tissue in her hands, looking down. Something comes over me, watching Lana’s mother. It’s an overwhelming sense of sadness I feel for her.
The witness testifies that he looked for a gun shot wound, but the officer at the scene asked him to keep the (movement of her body) to a minimum. The coroner would determine cause of death, once he got there. Using a heart monitor, the witness attached patches to determine if he could see a heart rhythm. He couldn’t find one. Lana had been dead enough time for a determination at 6:25 am.
Direct testimony ends, and Linda Kenney Baden will conduct the cross.
The witness is asked who he saw in the foyer area. He saw six people.
Q: Were you ever asked to diagram the area?
A: No.
Q: Did yo know any of the six people? (I think there might have been a photo up on the Elmo that the witness was asked to look at; not sure.)
A: No.
Q: Did yo you see any of these (six people) wearing gloves?
A: I can’t remember.
Q: Even though you told the police off they could preserve the scene, they could do (that) without you?
A: That’s correct.
Q: There is going to be some disturbance of the scene? (Regarding his handling of the body to determine if the victim is dead.)
A: That’s correct. (snip) We were advised by our captain that shots were fired.
More detailed questions are asked.
Q: You could not find a gun shot wound?
A: That’s correct.
Q: Why did you make these notes?
A: My captain, Mark Lingle, said this might be a crime scene.
LKB is now crossing the witness with his interview with detectives. Images of the lower steps are put up on the Elmo. The step! I can see the wood of the first step! There isn’t any “gouge” in it like Dr. Lee claims. At least, from this angle of the photo, I’m not seeing a “gouge.” My back is killing me! These court benches with be what eventually wrecks my body. My low back is aching terribly, and I try to stretch it out while I am sitting.
More photos of Lana dead in the chair she was sitting in.
Q: Who asked you to leave those patches there?
A: A police officer who was photographing (the scene).
The witness now reviews a report. Now, with these next rapid fire questions, LKB is trying to say that in his exam, he moved her head to where it was in the photographs, and it was his manipulation that smeared the blood. In the images, I’m noticing, one of the patches to the the heard has a blood smear from where the patch was.
The witness says that he’s not experienced in microscopic blood flow.
Q: Did you ever see any of the foyer officers again?
A: I could have. I don’t remember.
LKB asks if he saw the tazer leads, and the witness replies that he only remembers seeing the leads themselves.
Q: Did anyone explain to you (what happened) before you arrived?
A: No.
Q: Did anyone explain to you that there had been an altercation?
A: No.
Q: Did you have any other interviews besides the one in March, 2007?
A: Not that I recall.
Redirect of the witness. The prosecutor gets the witness to say that the images of Lana up on the screen are exactly how he found her when she first arrived. Mr. Jackson gets the witness to make it clear, that at the time of his interview with detectives, he didn’t have access to those photographs to refresh his memory.
Recross of the witness. There are more questions regarding the prior statement that Lana’s chin was resting in the “center of the chest,” and if he had ever seen a tazer lead under a shoe at the crime scene before.
The judge finally calls the afternoon break. The famous law professor, Stan Goldman, is in the courtromm talking to Beth Karas, Harriet Ryan and other Court TV people in the room. I listen in as best I can and scribble some notes. They are discussing the legality of the Dr. Henry Lee debacle, entering into another trial in the future. The professor can’t conceive of a situation where that could come in. It’s now that Beth talks to me about what I had observed/overheard between Cutler & Rosen days ago. She tells me, that as long as I am not purposefully trying to invade a private room that the defense is meeting in, anything that I observed or overhear here in the courtroom I can write about. That’s what I had thought.
Spector sits at the defense table. The chair is turned around 180 degrees from the defense table, and he appears to be staring at the floor. His wife is on the first bench, attending to some items in her purse. Spector yawns. His hands are clasped, and they’re shaking slightly. It appears to be a blank stare on his face, and then he yawns again.
3:10 pm Break is over. I overheard Steve Dunleavy recounting the story where Spector attacked him. Dunleavy repeats Spector’s statement to him, “I’ll kill you!” with the ‘karate’ type movements directed towards him, and the threatening message Spector left on his answering machine days later. Spector had purposefully shoved into Dunleavy with his shoulder, and in response to that, Dunleavy punched him in the nose!
The next witness is called. Peneda Rodrigeuz? Do I have that right? Esther is her first name. Peneda is her married name, Rodriguez was her maiden name I think. I do not note who does the direct examination of this witness, but I think it's Patrick Dixon. She was a detective and assigned a regular type car, not a black and white. She heard the radio traffic and telephoned the watch commander that she was in route.
Q: This was a serious crime in your city and you needed to be involved.
A: That’s correct.
She identifies the residence via images up on the overhead screen. She notified her supervisor after arriving at the scene. Sergeant Santana (sp?) authorized that a GSR kit should be utilized at the scene. She performed the GSR test kit on Adriano DeSouza, and then drove DeSouza to the police station. The officer explains the training she received for performing the GSR test. (Now my notes are not clear as to whether or not she performed the GSR test on DeSouza at the scene, or at the police station.) She then describes her procedures for performing the test, then booked the test into evidence.
The direct examination is done, and Linda Kenney Baden will cross the witness. The witness testifies that yes, she filed a report regarding everything she did.
Q: In fact, you made an assumption it was a crime scene.
A: That’s correct.
Q: In the reports you drafted on February 3rd and February 7th, you called the address a crime scene?
A: Yes.
Linda Kenney Baden paces a bit. LKB asks if she did anything else at the scene. She spoke to DeSouza at the scene, and was making inquiries about the scene with the other officers present. There are a few more questions, asking the witness if she spoke with the EMT, etc.
Cross is finished, and redirect begins.
The witness is asked why she thought it was a crime scene, and she explains. Redirect is finished, and LKB recrosses the witness again.
Q: Was that the only reason? Because you had talked to DeSouza, is that correct?
A: That’s correct.
And this witness is excused for the time being.
I don’t have any more notes in my book, but I do specifically remember out on the street, as I was waiting for the light to cross, I turned to one of the group of six people who I thought were from a production crew, and asked why did they decide to come to court today. The man replied, “Just thought we’d come down and watch the trial.” Steven was walking with me, because I remember saying, “Well, there’s more to that story....” and we both had a chuckle.
Brunon arrives. I’m wondering if the prosecutors are still with Shapiro. Everyone is expecting him. Steve Dunleavy, the famous New York Post reporter is admiring the shine on David K. Li’s shoes. “That’s one hell-of-a shine,” he says. “I can see my face in it.” Patrick Dixon finally enters the courtroom. The LA Times reporter Peter Y. Hong arrives as well as the prosecutor’s clerk who controls all their photo and document exhibits on the Elmo.
9:30 am.
No Alan Jackson. No Judge. Sara Caplan arrives. The tall black haired attorney for Lana’s family arrives. Linda Deutch finally slips into the courtroom. Russ, Steve Dunleavy, Steve Mikulan and another reporter all kvetch a bit. Rosen and LKB are in deep conversation. A gentleman I’ve seen before chats with the attorneys on both sides and now is chatting with LKB.
The prosecutions case file (it’s transported into court each day on a rolling cart, usually by Ed) finally gets here, and Ed goes through a few items. Sara Caplan and Linda Deutch chat a bit now. Cutler arrives along with the young bald Asian prosecutor we saw a few days ago. Ah, the gray suited man with stark white hair is Sara Caplan’s attorney. The judge is finally on the bench.
The defense is trying to get some sort of discovery issues. They are stating that the prosecution has stuff they’ve not received. Now I have some notes that I am having a hard time deciphering.
After discussing how we should do this, asked his boss Doyle to speak with Captain Kyle Jackson; to the Robbery Homicide Division and what they needed and how to proceed. Maybe I can figure this out later.
The defense is now asking for anything the prosecution has from Bill Pavelic. Something about an e-mail from Pavelic to an “E. Wiley.” And that’s it.
The defense makes a motion to object to the entire proceedings. The Judge responds that his role is to safeguard the process, to ensure that nothing improper occurs. The judge cites a case to support his ruling. Jackson gets Caplan kicked from the courtroom for a moment. The judge reads the ruling. “That’s exactly what I’m doing. I’m taking action.”
Sara Caplan takes the stand again. Her attorney sits in the jury box, and Rosen is asking the questions. She states she had worked on cases with Dr. Lee before. From what she recalls, about three or four times. “It didn’t look like what was in those vials.” Now, with the way Rosen is asking the questions, he’s implying that the white particles on the floor... trying to imply that the white particles might be the falling down ceiling.
Now Alan Jackson asks her a question.
A: The object I saw on the ground was not cotton swabs.
Then the judge says he has some questions for Ms. Caplan. The judge is looking over a transcript of her prior testimony and reads it back to her.
Q: Why are you changing your testimony? Did you see Henry Lee pick something up and put it in a vial?
A: Yes.
I think there is one more question or two and then Alan Jackson gets up to present arguments to their position. One of his most memorable statements is, “Is Dr. Lee lying or is he incompetent? Which is it?”
When Alan Jackson finishes, Chris Plourd gets up to argue the defense position. Plourd argues about the number of criminalist at the crime scene. That “piece” definitely not there when those criminalists were there. It was not Sara Caplan’s responsibility to observe or supervise Dr. Lee. “There’s no evidence that Sara Caplan watched Dr. Lee’s testimony on TV. They (the prosecution) clearly lost something. There’s no evidence that the defense lost anything.” Plourd keeps using the phrase over and over again, “Dr. Lee testified to....” He tried to say there’s no clear evidence something was picked up. Then Brunon gets up to speak. “From a legal point of view, the whole issue has been speculative,” he says. “Mr. Jackson says his case is damaged. We ask, in what way?” Brunon says, “Suppose Dr. Lee did pick something up and do lose it. Again, how does that specifically hurt their case?”
Patrick Dixon jumps up, and he appears really upset in his tone. “It goes right to the heart of this case your honor!”
The judge is ready to rule. The complete transcript of that ruling can be found here. And for those who missed it, Judge Fidler ruled that Dr. Henry Lee was not credible, and that Sara Caplan's testimony was the most credible. He also states that the people can call any witnesses who testified at this hearing to impeach the testimony of Dr. Lee.
It’s 1:05 pm. Lunch is almost over. Spector and his wife and bodyguards arrive and go into the courtroom. They immediately exit the courtroom, and head down towards the other end of the hallway. I’ve heard that the court has given them a room that they can gather in to conference. There is a group of six new trial watchers waiting together in the hall. At first, I thought they were here for another trial, but after seeing them speak to one of the court public liaison's staff, I’m pretty sure it’s a good bet these individuals are part of some sort of production company. I can just tell by the way they look and are interacting with each other. Besides, why would a group of people coming down to court, contact the court’s public liaison office? Cutler arrives and enters the courtroom.
There’s a mass of people waiting butt not so many that I won’t get in. My thought is more about getting my same bench seat. A deputy approaches who is packing double heat. Steven says, “Two guns! Boy! Is he ready for trial!”
1:28 pm. Everyone is almost here, waiting to get into court. A woman with a juror badge is looking for Eric Leonard, and was asking some of the other reporters if he’s around. She’s a fan, and wanted to try to see him. One of the Court TV cameramen explains gives the woman a description of what Eric looks like, and that Eric is probably in the media room on the 12th floor. Linda Deutch arrives, and Dominick Dunne is here.
1:35 pm. The Judge finally takes the bench. A new witness takes the stand, and I notice that Patrick Dixon is chewing gum. Steven whispers to me, “In his twenty five hundred dollar suit.”
The next witness is David Ridgs, and he’s a paramedic-firefighter for the Alhambra Fire Department. Alan Jackson conducts the direct examination. The witness talks about his training and explains that an EMT paramedic has more training than an EMT1, 2, or 3. When it comes to declaring death, the witness testifies that the pronouncement can only come from an MD. However, a paramedic can make a determination of death, and that happens through an assessment of the four basic life functions.
Ridgs testifies that they are on shift for 24 hours, and that he started at 8 am the prior day. Ridgs and his partner got the call out and stopped at the staging area. Staging areas are usually used in regards to crew safety. They staged at Grandview and Norwood, and that it wasn’t “out of the ordinary” to stage at a death scene.
1:45 pm Beth Karas comes into the courtroom. This is around the time she usually comes in for the afternoon session, after she’s finished giving on air commentaries. The jury is alert and watching the witness. The witness says they arrived at the staging scene around 6:05 to 6:10 am. The paramedics initially met with police officers at the gate and then at the north side of the address. The witnesses understanding of the initial call was that there were shots fired and there may be a shooting victim. In his career, the witness testified that he made maybe twenty or more death determinations.
I see Alan Jackson lean into Lana’s mother and whisper to her. This is something that I see a lot in the days ahead. Mr. Jackson will let Lana’s mother know when photo’s of her daughter’s body are up on the screen, so she can avert her eyes. There’s a close up of Lana’s face on the Elmo. Her head is slumped to her left. There are close up photos now of Lana’s right side, and the witness is asked about blood on Lana's left side.
A: No significant amount of blood on (Lana’s) left side.
Q: Did there appear to be any more on her right?
A: Yes. (snip) The majority of blood was on the patient’s right side even though she was leaning to the left.
Q: Did you notice the blood on her chest?
A: Yes.
Q: Did you check for vital signs?
A: Yes.
Q: Did you check the carotid?
A: Yes. (snip) If I recall, I checked the carotid pulse on the right; the exposed side.
The witness testifies that he manipulated the victims head to check her airway. Lana’s mother has a tissue to her face. She’s looking down. She doesn’t look up. She now hold the tissue in her hands, looking down. Something comes over me, watching Lana’s mother. It’s an overwhelming sense of sadness I feel for her.
The witness testifies that he looked for a gun shot wound, but the officer at the scene asked him to keep the (movement of her body) to a minimum. The coroner would determine cause of death, once he got there. Using a heart monitor, the witness attached patches to determine if he could see a heart rhythm. He couldn’t find one. Lana had been dead enough time for a determination at 6:25 am.
Direct testimony ends, and Linda Kenney Baden will conduct the cross.
The witness is asked who he saw in the foyer area. He saw six people.
Q: Were you ever asked to diagram the area?
A: No.
Q: Did yo know any of the six people? (I think there might have been a photo up on the Elmo that the witness was asked to look at; not sure.)
A: No.
Q: Did yo you see any of these (six people) wearing gloves?
A: I can’t remember.
Q: Even though you told the police off they could preserve the scene, they could do (that) without you?
A: That’s correct.
Q: There is going to be some disturbance of the scene? (Regarding his handling of the body to determine if the victim is dead.)
A: That’s correct. (snip) We were advised by our captain that shots were fired.
More detailed questions are asked.
Q: You could not find a gun shot wound?
A: That’s correct.
Q: Why did you make these notes?
A: My captain, Mark Lingle, said this might be a crime scene.
LKB is now crossing the witness with his interview with detectives. Images of the lower steps are put up on the Elmo. The step! I can see the wood of the first step! There isn’t any “gouge” in it like Dr. Lee claims. At least, from this angle of the photo, I’m not seeing a “gouge.” My back is killing me! These court benches with be what eventually wrecks my body. My low back is aching terribly, and I try to stretch it out while I am sitting.
More photos of Lana dead in the chair she was sitting in.
Q: Who asked you to leave those patches there?
A: A police officer who was photographing (the scene).
The witness now reviews a report. Now, with these next rapid fire questions, LKB is trying to say that in his exam, he moved her head to where it was in the photographs, and it was his manipulation that smeared the blood. In the images, I’m noticing, one of the patches to the the heard has a blood smear from where the patch was.
The witness says that he’s not experienced in microscopic blood flow.
Q: Did you ever see any of the foyer officers again?
A: I could have. I don’t remember.
LKB asks if he saw the tazer leads, and the witness replies that he only remembers seeing the leads themselves.
Q: Did anyone explain to you (what happened) before you arrived?
A: No.
Q: Did anyone explain to you that there had been an altercation?
A: No.
Q: Did you have any other interviews besides the one in March, 2007?
A: Not that I recall.
Redirect of the witness. The prosecutor gets the witness to say that the images of Lana up on the screen are exactly how he found her when she first arrived. Mr. Jackson gets the witness to make it clear, that at the time of his interview with detectives, he didn’t have access to those photographs to refresh his memory.
Recross of the witness. There are more questions regarding the prior statement that Lana’s chin was resting in the “center of the chest,” and if he had ever seen a tazer lead under a shoe at the crime scene before.
The judge finally calls the afternoon break. The famous law professor, Stan Goldman, is in the courtromm talking to Beth Karas, Harriet Ryan and other Court TV people in the room. I listen in as best I can and scribble some notes. They are discussing the legality of the Dr. Henry Lee debacle, entering into another trial in the future. The professor can’t conceive of a situation where that could come in. It’s now that Beth talks to me about what I had observed/overheard between Cutler & Rosen days ago. She tells me, that as long as I am not purposefully trying to invade a private room that the defense is meeting in, anything that I observed or overhear here in the courtroom I can write about. That’s what I had thought.
Spector sits at the defense table. The chair is turned around 180 degrees from the defense table, and he appears to be staring at the floor. His wife is on the first bench, attending to some items in her purse. Spector yawns. His hands are clasped, and they’re shaking slightly. It appears to be a blank stare on his face, and then he yawns again.
3:10 pm Break is over. I overheard Steve Dunleavy recounting the story where Spector attacked him. Dunleavy repeats Spector’s statement to him, “I’ll kill you!” with the ‘karate’ type movements directed towards him, and the threatening message Spector left on his answering machine days later. Spector had purposefully shoved into Dunleavy with his shoulder, and in response to that, Dunleavy punched him in the nose!
The next witness is called. Peneda Rodrigeuz? Do I have that right? Esther is her first name. Peneda is her married name, Rodriguez was her maiden name I think. I do not note who does the direct examination of this witness, but I think it's Patrick Dixon. She was a detective and assigned a regular type car, not a black and white. She heard the radio traffic and telephoned the watch commander that she was in route.
Q: This was a serious crime in your city and you needed to be involved.
A: That’s correct.
She identifies the residence via images up on the overhead screen. She notified her supervisor after arriving at the scene. Sergeant Santana (sp?) authorized that a GSR kit should be utilized at the scene. She performed the GSR test kit on Adriano DeSouza, and then drove DeSouza to the police station. The officer explains the training she received for performing the GSR test. (Now my notes are not clear as to whether or not she performed the GSR test on DeSouza at the scene, or at the police station.) She then describes her procedures for performing the test, then booked the test into evidence.
The direct examination is done, and Linda Kenney Baden will cross the witness. The witness testifies that yes, she filed a report regarding everything she did.
Q: In fact, you made an assumption it was a crime scene.
A: That’s correct.
Q: In the reports you drafted on February 3rd and February 7th, you called the address a crime scene?
A: Yes.
Linda Kenney Baden paces a bit. LKB asks if she did anything else at the scene. She spoke to DeSouza at the scene, and was making inquiries about the scene with the other officers present. There are a few more questions, asking the witness if she spoke with the EMT, etc.
Cross is finished, and redirect begins.
The witness is asked why she thought it was a crime scene, and she explains. Redirect is finished, and LKB recrosses the witness again.
Q: Was that the only reason? Because you had talked to DeSouza, is that correct?
A: That’s correct.
And this witness is excused for the time being.
I don’t have any more notes in my book, but I do specifically remember out on the street, as I was waiting for the light to cross, I turned to one of the group of six people who I thought were from a production crew, and asked why did they decide to come to court today. The man replied, “Just thought we’d come down and watch the trial.” Steven was walking with me, because I remember saying, “Well, there’s more to that story....” and we both had a chuckle.
Tuesday, May 22, 2007
Trial Notes, 5-22-07
Updated
I get to the Orange line a few seconds too late and miss the 8 am bus. I catch the next one about five minutes later. I finished y book over the weekend, and forgot to put another inside my purse this morning. On the transit news feed, there’s an ad for FOLICARE. It’s for male pattern baldness. There are a few beside me on the bus who could use this product, but they don’t seem to be interested.
Passengers perk up when news of the Spector trial comes on the screen. Other news reported was about the young actor who crashed his car and a passenger was killed. He took a guilty plea. I didn’t catch whether he’s been sentenced yet. I see a grown man totally engrossed in a Superman Comic Book, with his girlfriend asleep, leaning on his shoulder. Even though I was late, I still make the 8:30 Red Line train. This is good. It means I should get to the rear of the Criminal Court Building by about 9:05 am. I see a woman applying her make up on the train. I make a judgment call, that she’s putting on way too much blush on her face. The air is not very good on the train today. It’s quite stuffy.
I finally reach the 9th floor. I see Mr. Dunne and the Dunleavy guy who was here yesterday. Michelle is sitting with Dominick. The auburn haired Dateline reporter is here. Harriet Ryan and David K. Li are chatting away. No Spector yet. DeSouza arrives with his entourage. Two hefty bodyguard like guys accompany him into the courtroom. Right afterwards, the jurors file past the hallway into the courtroom. Now the Spector entourage arrives. His purchased wife Rachelle Short on one arm, and a bodyguard on either side of them and one in front.
An inmate from the jail is brought into court 107 in a wheelchair. I notice injuries to his scalp as he passes me. Mr. Dunne smiles and says hello. John Spano (who was yawning when he arrived in the hallway) is looking around smiling going, “Okay! Here we are again!” We are finally led into the courtroom, and the reporters are all settling into their favorite viewing spots. It’s 9:30 and we haven’t started yet. I see the court reporter emerge from the judge’s chambers.
The family arrives with their tall attorney with jet black hair. The Dateline reporter moves in to talk to the attorney, and it’s just the two of them by themselves talking now. Ed arrives and it looks like he got a haircut. And he’s not wearing his glasses. I wonder if he’s got contacts in. The attorney’s exit the judges chambers now, so they were in camera. Jackson and Dixon step off by themselves right next to the witness box to discuss something. There are five elderly gentlemen all sitting together in the row behind me. These are some new trial watchers that I haven’t seen before. Rochelle is writing on some paper; looks like a notepad. It’s hard to see from where I’m sitting.
The judge is on the bench and there is something, possibly about what was said in chambers. There are no improprieties on behalf of juror #6. The hearing they just had will be part of the official transcript. Private information will be redacted from the e-mails. Spector and the defense attorneys stand, everyone else gets up, and the jury files in.
DeSouza is still on redirect. The prosecution resumes playing the video tape exhibit of DeSouza's interview with detectives. The jurors have copies of the transcript of the interview. Most are not watching the video, but reading along with the transcript. Oh wait, #9 is watching the video. Looking at the thickness of the transcript the jurors are holding, it appears they are not even half way through this video.
So, I settle in to watch the jurors. Mostly the jurors are reading, and I see the judge is watching the video. It’s very difficult to understand because the sound quality is terrible. The judge is looking at the transcript now. I write out this note to Steven: “CAN YOU UNDERSTAND ANYTHING?” Steven shakes his head no. Adriano DeSouza is sitting in the front row. How strange that must be for him, to watch and listen to his interview with police. I’m wondering what Rochelle is writing in that notepad, since she’s still writing. One of the bodyguards is reading a book while the video plays. Judge still watching the video.
From the video:
“Why did you call the secretary first?”
I don’t know. I don’t know.
I note the date and time on the tape: 2-3-0 12:24:51 am
Now, DeSouza is explaining his movements after calling Michelle Baine, Spector’s secretary. And then, there it is on the tape. “I think I, killed; I think I killed somebody.” This is so damaging to the defense. I see Rachelle is resting her hand to her face, her fingers on her forehead; her thumb on her chin. I see juror #9 say something to juror #8. #8 looks over the gallery, almost like he’s searching for a face. Michelle and Dominick exchange notes. On the video now, DeSouza is imitating for the detectives how Spector was talking and slurring his words. The detectives go through his statements again.
DeSouza: “I think I killed somebody.”
Detective: “You’re sure about what you heard?”
DeSouza: “Yes.”
It’s 10:15 am and they’re almost through the tape. Maybe 10 to 15 pages more of video. The still photographer drops his camera! It lands on one of the Court TV camera operator’s head! Everyone turns to look to see what happened. Juror #9 looks out at the gallery. He doesn’t follow the last few pages of transcript. On the video, the detective tells DeSouza, “It’s going to be a big case. Whomever he (Spector) hires, I can guarantee, he will hire investigators to look into you and try to talk to you.”
It was obvious on the video that DeSouza was totally freaked out by what happened. The attorneys have a side bar at the bench at the end of the video. Jackson collects the transcripts, and DeSouza is back on the stand.
Unfortunately in my notes, I forget to document if DeSouza is under cross or direct. I believe he’s under cross, and that Brunon is conducting it.
DeSouza says that Detective Pinyeta (sp?) gave him a ride to the police station. 5:10 am was the 911 call. Around 6 am, DeSouza says that was the next time that he saw Spector again. That was when the police escorted him from the house. Brunon is really trying to get DeSouza to say he could be wrong about what he heard. The prosecution objects now to several questions in a row being improper. The defense is really try to get him to focus on the fact that on the tape, after he tells them Spector’s words, “I think I killed somebody,” right afterwards on the tape he says, “I think, I’m not sure.” DeSouza explains on the stand, “I said that to Mr. Pinyeta because I’m not sure he understood what I said.”
Spectors elbows are on the table; fingers inter clasped and his hands shaking. Now the defense is going over the condition of Spector and whether or not he was drunk at the time he emerged from the house. Also re questioning DeSouza on the “shoulder shrugging.” The defense is digging away at those inconsistencies. I mostly see Mr. Jackson from the back, his fingertips pressed together. His chin resting on his fingers. I’m betting he’s really focused right now. Juror #9 yawns the same time I do. I watch Spector clench his hands together into a fist like clasp. I can’t see totally, but it sure looks like Rachelle is taking notes still on that pad. Maybe she’s writing a letter? She appears now to be looking at the jury. She looks up, then looks down for a bit, but I can’t see her hands. So I’m not sure what she is doing, except looking down at her lap a lot.
Q: You said: “I want someone to direct me.” What did that mean?
A: To help me to explain what I had to do.
The defense asks DeSouza more questions on the deportation issue and then Brunon finally says, no more questions.
Jackson steps up to do the redirect.
Q: Who asked Lana back to the Castle?
A: Phil
Q: Did he ask one time?
A: No.
Q: Did he ask two times?
A: No.
Q: Did he ask three times?
A: Around three times.
Q: You were subpoenaed?
A: Yes.
Q: Are you mistaken about what you saw, what you heard that day?
A: No.
And DeSouza is finally off the stand! The court is on break. The cameraman who was hit in the head with a camera had a set of headphones on, so maybe it didn’t bump his head too hard. Another reporter leans into him and says, “The judge was concerned about you. He looks over at you a few times.” The camera operator replies, “Maybe he was looking at you,” (meaning, the cameraman who dropped the camera!)
Spector is standing alone at the defense table. He comes over to his wife and they both exit the courtroom. I talk for a bit to Dominick, but a man interrupts by coming up to Dominick and fawns all over him. Dominick says, “It’s always nice when people say something nice to you.” I reply to him, “You have a big fan club.” Mr. Dunne replies, “It happened to me late in life. I still have trouble getting used to it. That was a terrible cross by Brunon from start to finish!” We then discuss Dr. Henry Lee. Dominick does not hold back on how he feels about how he feels about Dr. Lee. I say, “It will be interesting to see if they put Dr. Lee on the stand.” Dominick replies, “Did you see that? him on the stand, where he got all arrogant? I’ve head him tell that joke so many times.”
We talk about the missing evidence and I tell Dominick, “I think Dr. Lee lost it. He said on the stand it was a private case and not a state case. That procedures were not as precise. He kept claiming, no one told him what to do with the evidence. I don’t believe it. I think he lost it. Dominick says, “I can’t stand him. The jurors (in the past), they fawn all over him, even though there was no jury there.”
Back in the courtroom, it’s 11:20 am and we’re back on the record.
The next witness is Sandra Hill, and Dixon will take her direct examination.
Sandra is a Public Safety Dispatch Supervisor, in charge of the sheriff’s office computerized systems. She’s worked for the Sheriff’s Dept. seventeen years. She is also familiar with the 911 system in Los Angeles County. The witness goes into detail on how 911 calls made from cell phones were routed back in February, 2003. The system archives all calls on a DVD, and they are held for 180 days. She testifies that “We search for calls on our system for that date (2-3-07). We only found one call. The computer searches by date and by location.” There is a two page document of that single call put up on the Elmo.
Rosen gets up to cross the witness.
Rosen is plodding through everything, going over the witness’s testimony in detail. I think the defense strategy is to put these jurors to sleep!
Q: Can you tell (from the report) if an ambulance was sent?
A: No, I can not.
Redirect:
The witness says the training process for 911 operators is a very lengthy process. At least four weeks. After that, there is one on one training to ensure they are properly trained to handle calls.
Recross
Rosen: This will be brief.
Judge: I wouldn’t believe it.
Rosen points out that the call says, “lady lying on the ground.
I see the judge rub his face.
The witness replies that the operators are trained to write what was said.
When the witness is finally done with cross, the judge jokingly says that she can discuss her testimony.
The next witness is called. Gamaliel Catalan. Unfortunately, I don’t have in my notes who conducts the direct examination. I believe it’s Dixon though. She is a communications Supervisor for Alhambra P.D. He supervises the communication center. Two shifts of employees. The witness says that they are the Public Safety Answering point.
It’s 12 noon, and Judge Fidler says, “And although we’re on the edge of our seats...”
Laughter fills the courtroom.
Updated 6-14-07 12:12am
Lunch is about over. It’s about 1:18 pm, and a man comes up to court with some papers for Spector. It’s a large envelope, and it gets passed to the two bodyguards there. One reporter says, “Maybe it’s a fingernail.” Finally, we are allowed to enter the courtroom. Cutler saunters in. Linda Deutsch and Roger Rosen are having a conversation. Steve Dunleavy, the legendary New York Post reporter who punched out Spector years ago is in the courtroom today. Rochelle has her hair up and pulled back, and it’s obvious she’s got a hair piece, blondish curls handing down. Steven speculates that maybe it’s one of Phil’s hair pieces on her head. The court is now trying to determine if the coroner has a conflict of scheduling. He’s scheduled to testify in courtroom 104 regarding a child abuse case.
Direct continues of the communications supervisor, Gamaliel Catalan.
Catalan testifies that he located one call, transfer from the CHP. A search of their records revealed “no calls” to be found from that residence made from land lines. The 911 call document is put up on the screen.
Direct is over, and Rosen steps up to cross the witness.
This is unbelievably tedious. Rosen is asking what term would you use to describe the document. He’s asking what all the little codes mean, and the witness explains. Rosen then asks if he can tell which words are spoken by the dispatcher, and which were spoken by the caller.
A: No.
Rosen then goes on with his tone of voice, that this is a big deal, that we can’t tell who said what. Rosen points out on the document that at 5:56:10 am, one subject confirmed dead. And the witness replies that just means the dispatcher documented information he received over the radio.
Q: Do you know who handled the call?
A: Bobbick.
Q: do you know which officer, CHP she spoke with?
A: I don’t know.
Cross if finally finished, and redirect begins.
Q: What type of training (do the dispatchers receive)?
A: 120 hours of basic dispatch training, then they are one 24 hour training.
Q: Why is it important to be accurate?
A: To dispatch resources in an accurate manner.
There are a few more questions about the dispatchers probing the caller to get more information and then redirect is done.
Recross.
Q: Is it correct that you have found errors have occurred?
A: Human nature.
And finally, we are done with this witness. The next witness is Officer Sean Heckers. I forget to write in my notes who is performing the direct examination.
Officer Heckers is a with the City of Alhambra, and on February 3, 2003, he was assigned to patrol duty.
Q: Were you in uniform, and drove a black and white?
A: Yes sir, I did.
Q: How long at that time (were you with the Alhambra PD)?
A: Eight years.
Q: What shift (were you working)?
A: Day. I started a 6 am and went to 6 pm.
Q: How many days?
A: Three days a week.
Q: Had you ever been to 1700 Grand View before?
A: No I had not.
The witness confirms that he was just ordered to report there and assist. He was assigned to transport Spector back to the Alhambra police station. He identifies Spector as the individual he transported. The witness says his memory is not clear as to whether or not he was handcuffed while in the cruiser, but it’s rare that a suspect wouldn’t be handcuffed when being transported.
The witness testifies that he was told to administer a GSR residue kit. He explains the kits are uniquely numbered and what the kit consists of, and the procedures that are followed to administer the test. The witness was previously with the San Marino, PD. This was the first time he did the GSR test kit in the field. Once the test was completed, he booked it into evidence.
Q: Do you remember if an Alhambra paramedic or fireman came by?
A: To be honest, I can’t recall.
Q: Did you go to another facility, to have a sex test kit done?
A: Yes.
Q: What was the facility?
A: San Gabriel Valley Medical Center.
After this test, Officer Gullam Santan (sp?) escorted Spector back to the station. Photos of Spector were put on the screen. These are his Polaroid booking photos. He was then taken to the jail. End of direct examination.
Linda Kenney Baden is to do the cross. I can see that she’s working from a large spiral notebook. “I’m not sure I’ve met you. You look like the Judge’s brother,” LKB says. And the judge makes a comment about that. The witness states that he didn’t know Spector, just knew of the property. LKB now goes over the witnesses transcript of his (prior grand jury???) testimony. LKB asks him in detail about the GSR test, going over every tiny detail of the test, and asking him if he knows “why” certain procedures are followed. LKB is also trying to insinuate, through her questions, that GSR could have been in the back of the patrol car where Spector was handcuffed with his hands behind his back.
LKB asks how many suspects in that car a week before? Two weeks before? How about on the bench that Spector sat on at the jail? What type of guns do they carry in your department? All these questions to try to imply that the GSR found on Spector wasn’t from the murder weapon, but from the police car or bench he sat on, at the station.
Break is finally called. Spector left the courtroom. Rachelle sits in the back row with a bodyguard. Roger Rosen comes over to Dominick to deliver a message from someone they must both know. Rosen chats a bit about his computer workstation in the house, or his daughter’s workstation. It was a funny conversation. Rosen says he’s not real computer literate. Steven says, “We know where this GSR stuff is going!” There are some new trial watchers in the gallery staring at Steve Dunleavy.
Break is over, and we’re back on cross.
LKB continues with the GSR nightmare cross. Boring, boring questions. LKB paces when she asks questions, and her tone is a bit loud and has an accusatory tone. The prosecution just made it’s second objection to a question, and the Judge calls up counsel for a side bar. Then the Judge is in his chambers, the attorneys are in front of the clerk’s desk, and it’s a waiting game here. Now, we’re back on the record.
There are more questions about Spector being handcuffed in front verses being handcuffed in back. Baden asks if the other officers had guns, and then the type of vehicle Spector was transported in. This is all just to get these questions in the jurors mind. Now she’s talking about the rape kit exam, and if Spector disrobed in front of him.
Q: Did you see the nurse (Caruso) pluck anal hairs from him?
A: I don’t recall that specifically.
Q: Were you there when genital hairs were plucked?
A: Yes.
Q: After he disrobed, and went through the sexual assault exam, did you see Nurse Caruso, swab under his nails (and use) a light source through his hair?
A: I believe so.
Now, more questions back on GSR, and if he knew the reason why it was important to fill out all the documentation. (It’s basically a trick question, because if you don’t give every possibility, then the attorney can come back and say, “Well, what about this? Didn’t you learn this reason, too?")
Cross is finally over and redirect begins.
There are questions about the patrol cars being cleaned on a regular basis, and it’s here where we learn that the back seats of patrol cars are plastic and contoured, so that you can have your hands rest more comfortably behind your back while sitting in the car. And the witness testifies that the presence of guns in the back of a patrol car is very rare.
LKB is not going to let this go, she has to recross! Groan!
Q: You can’t testify to the technicality of GSR transfer can you? You can’t testify as to cleaning, how often? How many suspects who could have had GSR (on them)?
Finally, she’s done, and the prosecution has no more questions. We’re finally onto the next witness, Michael Brown (Fireman Brown), and Patrick Dixon handles the direct examination.
He is employed by the Alhambra fire Department. At the time of the event, he had been a firefighter/paramedic for one year. Fireman Brown details his training. In Alhambra, they rotate onto a fire engine in addition to paramedic work. He testifies that he was dispatched ot Alhambra Jail at 6:16 pm on February 3, 2003, for a patient who was tazed.
Q: What does “tazed” mean?
The witness says that he just knows what the public knows, and describes what he knows of tazing. The break is finally called. I’m about to fall asleep.
Q: So, it was at Alhambra Police Station where you met Phil Spector?
A: That’s correct.
Q: You went to see if he was okay?
A: Yes. It’s very common that we go down there to check on a patient.
The witness saw him on a silver bench. His partner evaluated Spector, and he documented everything. They work together. They evaluate for basic human functions. A.B.C. Airway, Breathing, Conscious. The witness states that Spector, “Wasn’t talking too much.”
Q: Did he seem to be okay?
A: Yes.
Q: Were there any marks on his skin from the tazer?
A: No.
The witness and his partner went through the primary and secondary assessment. They asked Spector if he wanted to go to the hospital. He declined. They took a medial assessment, listed meds, etc. Anything Spector might be taking. And that’s it. Direct is done.
LKB performs the cross, and starts as usual, by introducing herself. LKB gets the witness to verify that he and his partner were called at a little after 6:00 pm, and that he filled out some forms documenting the visit and treatment. LKB gets the witness to admit that they only spent about seven and a half minutes with Spector total. She now asks about the tazering of Spector.
A: I was looking over my partner’s shoulder. The barbs were not attached. The witness said he looked down Spector’s shirt.
Q: But you didn’t see down “here” (LKB points to her waist area).
A: No, I did not.
The witness states that an EMT-Paramedic has more advanced training than just a regular EMT. LKB is now going over the report he filled out with him. On the report is written “diabetes.”
Q: What are you looking for when someone is tazered?
A: Checking to see if the barbs are still in the skin. If the patient is uncomfortable; in pain.
THIS IS SO BORING! Finally! Cross is finished and redirect starts.
Dixon gets the witness to state that if there are no medical complaints, then the Paramedics give no treatment.
LKB gets up to RECROSS! Sheesh!
Q: You gave him a glaucoma score? Did not find any obvious signs of alcohol?
A: No.
Court is finally over for the day. The witness is done. Finally! Steven said that he needed a tazer jolt. Tomorrow they will continue with the inquiry into the missing evidence.
I have already transcribed the judge’s ruling and posted it here, but I still need to add a few notes covering where Sara Caplan was called to the stand one last time.
I get to the Orange line a few seconds too late and miss the 8 am bus. I catch the next one about five minutes later. I finished y book over the weekend, and forgot to put another inside my purse this morning. On the transit news feed, there’s an ad for FOLICARE. It’s for male pattern baldness. There are a few beside me on the bus who could use this product, but they don’t seem to be interested.
Passengers perk up when news of the Spector trial comes on the screen. Other news reported was about the young actor who crashed his car and a passenger was killed. He took a guilty plea. I didn’t catch whether he’s been sentenced yet. I see a grown man totally engrossed in a Superman Comic Book, with his girlfriend asleep, leaning on his shoulder. Even though I was late, I still make the 8:30 Red Line train. This is good. It means I should get to the rear of the Criminal Court Building by about 9:05 am. I see a woman applying her make up on the train. I make a judgment call, that she’s putting on way too much blush on her face. The air is not very good on the train today. It’s quite stuffy.
I finally reach the 9th floor. I see Mr. Dunne and the Dunleavy guy who was here yesterday. Michelle is sitting with Dominick. The auburn haired Dateline reporter is here. Harriet Ryan and David K. Li are chatting away. No Spector yet. DeSouza arrives with his entourage. Two hefty bodyguard like guys accompany him into the courtroom. Right afterwards, the jurors file past the hallway into the courtroom. Now the Spector entourage arrives. His purchased wife Rachelle Short on one arm, and a bodyguard on either side of them and one in front.
An inmate from the jail is brought into court 107 in a wheelchair. I notice injuries to his scalp as he passes me. Mr. Dunne smiles and says hello. John Spano (who was yawning when he arrived in the hallway) is looking around smiling going, “Okay! Here we are again!” We are finally led into the courtroom, and the reporters are all settling into their favorite viewing spots. It’s 9:30 and we haven’t started yet. I see the court reporter emerge from the judge’s chambers.
The family arrives with their tall attorney with jet black hair. The Dateline reporter moves in to talk to the attorney, and it’s just the two of them by themselves talking now. Ed arrives and it looks like he got a haircut. And he’s not wearing his glasses. I wonder if he’s got contacts in. The attorney’s exit the judges chambers now, so they were in camera. Jackson and Dixon step off by themselves right next to the witness box to discuss something. There are five elderly gentlemen all sitting together in the row behind me. These are some new trial watchers that I haven’t seen before. Rochelle is writing on some paper; looks like a notepad. It’s hard to see from where I’m sitting.
The judge is on the bench and there is something, possibly about what was said in chambers. There are no improprieties on behalf of juror #6. The hearing they just had will be part of the official transcript. Private information will be redacted from the e-mails. Spector and the defense attorneys stand, everyone else gets up, and the jury files in.
DeSouza is still on redirect. The prosecution resumes playing the video tape exhibit of DeSouza's interview with detectives. The jurors have copies of the transcript of the interview. Most are not watching the video, but reading along with the transcript. Oh wait, #9 is watching the video. Looking at the thickness of the transcript the jurors are holding, it appears they are not even half way through this video.
So, I settle in to watch the jurors. Mostly the jurors are reading, and I see the judge is watching the video. It’s very difficult to understand because the sound quality is terrible. The judge is looking at the transcript now. I write out this note to Steven: “CAN YOU UNDERSTAND ANYTHING?” Steven shakes his head no. Adriano DeSouza is sitting in the front row. How strange that must be for him, to watch and listen to his interview with police. I’m wondering what Rochelle is writing in that notepad, since she’s still writing. One of the bodyguards is reading a book while the video plays. Judge still watching the video.
From the video:
“Why did you call the secretary first?”
I don’t know. I don’t know.
I note the date and time on the tape: 2-3-0 12:24:51 am
Now, DeSouza is explaining his movements after calling Michelle Baine, Spector’s secretary. And then, there it is on the tape. “I think I, killed; I think I killed somebody.” This is so damaging to the defense. I see Rachelle is resting her hand to her face, her fingers on her forehead; her thumb on her chin. I see juror #9 say something to juror #8. #8 looks over the gallery, almost like he’s searching for a face. Michelle and Dominick exchange notes. On the video now, DeSouza is imitating for the detectives how Spector was talking and slurring his words. The detectives go through his statements again.
DeSouza: “I think I killed somebody.”
Detective: “You’re sure about what you heard?”
DeSouza: “Yes.”
It’s 10:15 am and they’re almost through the tape. Maybe 10 to 15 pages more of video. The still photographer drops his camera! It lands on one of the Court TV camera operator’s head! Everyone turns to look to see what happened. Juror #9 looks out at the gallery. He doesn’t follow the last few pages of transcript. On the video, the detective tells DeSouza, “It’s going to be a big case. Whomever he (Spector) hires, I can guarantee, he will hire investigators to look into you and try to talk to you.”
It was obvious on the video that DeSouza was totally freaked out by what happened. The attorneys have a side bar at the bench at the end of the video. Jackson collects the transcripts, and DeSouza is back on the stand.
Unfortunately in my notes, I forget to document if DeSouza is under cross or direct. I believe he’s under cross, and that Brunon is conducting it.
DeSouza says that Detective Pinyeta (sp?) gave him a ride to the police station. 5:10 am was the 911 call. Around 6 am, DeSouza says that was the next time that he saw Spector again. That was when the police escorted him from the house. Brunon is really trying to get DeSouza to say he could be wrong about what he heard. The prosecution objects now to several questions in a row being improper. The defense is really try to get him to focus on the fact that on the tape, after he tells them Spector’s words, “I think I killed somebody,” right afterwards on the tape he says, “I think, I’m not sure.” DeSouza explains on the stand, “I said that to Mr. Pinyeta because I’m not sure he understood what I said.”
Spectors elbows are on the table; fingers inter clasped and his hands shaking. Now the defense is going over the condition of Spector and whether or not he was drunk at the time he emerged from the house. Also re questioning DeSouza on the “shoulder shrugging.” The defense is digging away at those inconsistencies. I mostly see Mr. Jackson from the back, his fingertips pressed together. His chin resting on his fingers. I’m betting he’s really focused right now. Juror #9 yawns the same time I do. I watch Spector clench his hands together into a fist like clasp. I can’t see totally, but it sure looks like Rachelle is taking notes still on that pad. Maybe she’s writing a letter? She appears now to be looking at the jury. She looks up, then looks down for a bit, but I can’t see her hands. So I’m not sure what she is doing, except looking down at her lap a lot.
Q: You said: “I want someone to direct me.” What did that mean?
A: To help me to explain what I had to do.
The defense asks DeSouza more questions on the deportation issue and then Brunon finally says, no more questions.
Jackson steps up to do the redirect.
Q: Who asked Lana back to the Castle?
A: Phil
Q: Did he ask one time?
A: No.
Q: Did he ask two times?
A: No.
Q: Did he ask three times?
A: Around three times.
Q: You were subpoenaed?
A: Yes.
Q: Are you mistaken about what you saw, what you heard that day?
A: No.
And DeSouza is finally off the stand! The court is on break. The cameraman who was hit in the head with a camera had a set of headphones on, so maybe it didn’t bump his head too hard. Another reporter leans into him and says, “The judge was concerned about you. He looks over at you a few times.” The camera operator replies, “Maybe he was looking at you,” (meaning, the cameraman who dropped the camera!)
Spector is standing alone at the defense table. He comes over to his wife and they both exit the courtroom. I talk for a bit to Dominick, but a man interrupts by coming up to Dominick and fawns all over him. Dominick says, “It’s always nice when people say something nice to you.” I reply to him, “You have a big fan club.” Mr. Dunne replies, “It happened to me late in life. I still have trouble getting used to it. That was a terrible cross by Brunon from start to finish!” We then discuss Dr. Henry Lee. Dominick does not hold back on how he feels about how he feels about Dr. Lee. I say, “It will be interesting to see if they put Dr. Lee on the stand.” Dominick replies, “Did you see that? him on the stand, where he got all arrogant? I’ve head him tell that joke so many times.”
We talk about the missing evidence and I tell Dominick, “I think Dr. Lee lost it. He said on the stand it was a private case and not a state case. That procedures were not as precise. He kept claiming, no one told him what to do with the evidence. I don’t believe it. I think he lost it. Dominick says, “I can’t stand him. The jurors (in the past), they fawn all over him, even though there was no jury there.”
Back in the courtroom, it’s 11:20 am and we’re back on the record.
The next witness is Sandra Hill, and Dixon will take her direct examination.
Sandra is a Public Safety Dispatch Supervisor, in charge of the sheriff’s office computerized systems. She’s worked for the Sheriff’s Dept. seventeen years. She is also familiar with the 911 system in Los Angeles County. The witness goes into detail on how 911 calls made from cell phones were routed back in February, 2003. The system archives all calls on a DVD, and they are held for 180 days. She testifies that “We search for calls on our system for that date (2-3-07). We only found one call. The computer searches by date and by location.” There is a two page document of that single call put up on the Elmo.
Rosen gets up to cross the witness.
Rosen is plodding through everything, going over the witness’s testimony in detail. I think the defense strategy is to put these jurors to sleep!
Q: Can you tell (from the report) if an ambulance was sent?
A: No, I can not.
Redirect:
The witness says the training process for 911 operators is a very lengthy process. At least four weeks. After that, there is one on one training to ensure they are properly trained to handle calls.
Recross
Rosen: This will be brief.
Judge: I wouldn’t believe it.
Rosen points out that the call says, “lady lying on the ground.
I see the judge rub his face.
The witness replies that the operators are trained to write what was said.
When the witness is finally done with cross, the judge jokingly says that she can discuss her testimony.
The next witness is called. Gamaliel Catalan. Unfortunately, I don’t have in my notes who conducts the direct examination. I believe it’s Dixon though. She is a communications Supervisor for Alhambra P.D. He supervises the communication center. Two shifts of employees. The witness says that they are the Public Safety Answering point.
It’s 12 noon, and Judge Fidler says, “And although we’re on the edge of our seats...”
Laughter fills the courtroom.
Updated 6-14-07 12:12am
Lunch is about over. It’s about 1:18 pm, and a man comes up to court with some papers for Spector. It’s a large envelope, and it gets passed to the two bodyguards there. One reporter says, “Maybe it’s a fingernail.” Finally, we are allowed to enter the courtroom. Cutler saunters in. Linda Deutsch and Roger Rosen are having a conversation. Steve Dunleavy, the legendary New York Post reporter who punched out Spector years ago is in the courtroom today. Rochelle has her hair up and pulled back, and it’s obvious she’s got a hair piece, blondish curls handing down. Steven speculates that maybe it’s one of Phil’s hair pieces on her head. The court is now trying to determine if the coroner has a conflict of scheduling. He’s scheduled to testify in courtroom 104 regarding a child abuse case.
Direct continues of the communications supervisor, Gamaliel Catalan.
Catalan testifies that he located one call, transfer from the CHP. A search of their records revealed “no calls” to be found from that residence made from land lines. The 911 call document is put up on the screen.
Direct is over, and Rosen steps up to cross the witness.
This is unbelievably tedious. Rosen is asking what term would you use to describe the document. He’s asking what all the little codes mean, and the witness explains. Rosen then asks if he can tell which words are spoken by the dispatcher, and which were spoken by the caller.
A: No.
Rosen then goes on with his tone of voice, that this is a big deal, that we can’t tell who said what. Rosen points out on the document that at 5:56:10 am, one subject confirmed dead. And the witness replies that just means the dispatcher documented information he received over the radio.
Q: Do you know who handled the call?
A: Bobbick.
Q: do you know which officer, CHP she spoke with?
A: I don’t know.
Cross if finally finished, and redirect begins.
Q: What type of training (do the dispatchers receive)?
A: 120 hours of basic dispatch training, then they are one 24 hour training.
Q: Why is it important to be accurate?
A: To dispatch resources in an accurate manner.
There are a few more questions about the dispatchers probing the caller to get more information and then redirect is done.
Recross.
Q: Is it correct that you have found errors have occurred?
A: Human nature.
And finally, we are done with this witness. The next witness is Officer Sean Heckers. I forget to write in my notes who is performing the direct examination.
Officer Heckers is a with the City of Alhambra, and on February 3, 2003, he was assigned to patrol duty.
Q: Were you in uniform, and drove a black and white?
A: Yes sir, I did.
Q: How long at that time (were you with the Alhambra PD)?
A: Eight years.
Q: What shift (were you working)?
A: Day. I started a 6 am and went to 6 pm.
Q: How many days?
A: Three days a week.
Q: Had you ever been to 1700 Grand View before?
A: No I had not.
The witness confirms that he was just ordered to report there and assist. He was assigned to transport Spector back to the Alhambra police station. He identifies Spector as the individual he transported. The witness says his memory is not clear as to whether or not he was handcuffed while in the cruiser, but it’s rare that a suspect wouldn’t be handcuffed when being transported.
The witness testifies that he was told to administer a GSR residue kit. He explains the kits are uniquely numbered and what the kit consists of, and the procedures that are followed to administer the test. The witness was previously with the San Marino, PD. This was the first time he did the GSR test kit in the field. Once the test was completed, he booked it into evidence.
Q: Do you remember if an Alhambra paramedic or fireman came by?
A: To be honest, I can’t recall.
Q: Did you go to another facility, to have a sex test kit done?
A: Yes.
Q: What was the facility?
A: San Gabriel Valley Medical Center.
After this test, Officer Gullam Santan (sp?) escorted Spector back to the station. Photos of Spector were put on the screen. These are his Polaroid booking photos. He was then taken to the jail. End of direct examination.
Linda Kenney Baden is to do the cross. I can see that she’s working from a large spiral notebook. “I’m not sure I’ve met you. You look like the Judge’s brother,” LKB says. And the judge makes a comment about that. The witness states that he didn’t know Spector, just knew of the property. LKB now goes over the witnesses transcript of his (prior grand jury???) testimony. LKB asks him in detail about the GSR test, going over every tiny detail of the test, and asking him if he knows “why” certain procedures are followed. LKB is also trying to insinuate, through her questions, that GSR could have been in the back of the patrol car where Spector was handcuffed with his hands behind his back.
LKB asks how many suspects in that car a week before? Two weeks before? How about on the bench that Spector sat on at the jail? What type of guns do they carry in your department? All these questions to try to imply that the GSR found on Spector wasn’t from the murder weapon, but from the police car or bench he sat on, at the station.
Break is finally called. Spector left the courtroom. Rachelle sits in the back row with a bodyguard. Roger Rosen comes over to Dominick to deliver a message from someone they must both know. Rosen chats a bit about his computer workstation in the house, or his daughter’s workstation. It was a funny conversation. Rosen says he’s not real computer literate. Steven says, “We know where this GSR stuff is going!” There are some new trial watchers in the gallery staring at Steve Dunleavy.
Break is over, and we’re back on cross.
LKB continues with the GSR nightmare cross. Boring, boring questions. LKB paces when she asks questions, and her tone is a bit loud and has an accusatory tone. The prosecution just made it’s second objection to a question, and the Judge calls up counsel for a side bar. Then the Judge is in his chambers, the attorneys are in front of the clerk’s desk, and it’s a waiting game here. Now, we’re back on the record.
There are more questions about Spector being handcuffed in front verses being handcuffed in back. Baden asks if the other officers had guns, and then the type of vehicle Spector was transported in. This is all just to get these questions in the jurors mind. Now she’s talking about the rape kit exam, and if Spector disrobed in front of him.
Q: Did you see the nurse (Caruso) pluck anal hairs from him?
A: I don’t recall that specifically.
Q: Were you there when genital hairs were plucked?
A: Yes.
Q: After he disrobed, and went through the sexual assault exam, did you see Nurse Caruso, swab under his nails (and use) a light source through his hair?
A: I believe so.
Now, more questions back on GSR, and if he knew the reason why it was important to fill out all the documentation. (It’s basically a trick question, because if you don’t give every possibility, then the attorney can come back and say, “Well, what about this? Didn’t you learn this reason, too?")
Cross is finally over and redirect begins.
There are questions about the patrol cars being cleaned on a regular basis, and it’s here where we learn that the back seats of patrol cars are plastic and contoured, so that you can have your hands rest more comfortably behind your back while sitting in the car. And the witness testifies that the presence of guns in the back of a patrol car is very rare.
LKB is not going to let this go, she has to recross! Groan!
Q: You can’t testify to the technicality of GSR transfer can you? You can’t testify as to cleaning, how often? How many suspects who could have had GSR (on them)?
Finally, she’s done, and the prosecution has no more questions. We’re finally onto the next witness, Michael Brown (Fireman Brown), and Patrick Dixon handles the direct examination.
He is employed by the Alhambra fire Department. At the time of the event, he had been a firefighter/paramedic for one year. Fireman Brown details his training. In Alhambra, they rotate onto a fire engine in addition to paramedic work. He testifies that he was dispatched ot Alhambra Jail at 6:16 pm on February 3, 2003, for a patient who was tazed.
Q: What does “tazed” mean?
The witness says that he just knows what the public knows, and describes what he knows of tazing. The break is finally called. I’m about to fall asleep.
Q: So, it was at Alhambra Police Station where you met Phil Spector?
A: That’s correct.
Q: You went to see if he was okay?
A: Yes. It’s very common that we go down there to check on a patient.
The witness saw him on a silver bench. His partner evaluated Spector, and he documented everything. They work together. They evaluate for basic human functions. A.B.C. Airway, Breathing, Conscious. The witness states that Spector, “Wasn’t talking too much.”
Q: Did he seem to be okay?
A: Yes.
Q: Were there any marks on his skin from the tazer?
A: No.
The witness and his partner went through the primary and secondary assessment. They asked Spector if he wanted to go to the hospital. He declined. They took a medial assessment, listed meds, etc. Anything Spector might be taking. And that’s it. Direct is done.
LKB performs the cross, and starts as usual, by introducing herself. LKB gets the witness to verify that he and his partner were called at a little after 6:00 pm, and that he filled out some forms documenting the visit and treatment. LKB gets the witness to admit that they only spent about seven and a half minutes with Spector total. She now asks about the tazering of Spector.
A: I was looking over my partner’s shoulder. The barbs were not attached. The witness said he looked down Spector’s shirt.
Q: But you didn’t see down “here” (LKB points to her waist area).
A: No, I did not.
The witness states that an EMT-Paramedic has more advanced training than just a regular EMT. LKB is now going over the report he filled out with him. On the report is written “diabetes.”
Q: What are you looking for when someone is tazered?
A: Checking to see if the barbs are still in the skin. If the patient is uncomfortable; in pain.
THIS IS SO BORING! Finally! Cross is finished and redirect starts.
Dixon gets the witness to state that if there are no medical complaints, then the Paramedics give no treatment.
LKB gets up to RECROSS! Sheesh!
Q: You gave him a glaucoma score? Did not find any obvious signs of alcohol?
A: No.
Court is finally over for the day. The witness is done. Finally! Steven said that he needed a tazer jolt. Tomorrow they will continue with the inquiry into the missing evidence.
I have already transcribed the judge’s ruling and posted it here, but I still need to add a few notes covering where Sara Caplan was called to the stand one last time.
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