I wasn't in court today, (still recovering with my back injury) but I did watch this morning's proceedings on Court TV and on KTLA's live stream coverage of the trial on the Internet.
Sara Caplan was wiping away the tears in her eyes with a Kleenex as she sat listening to Judge Fidler give his ruling. Judge Fidler said he did not want to be in the position he was in, and he admired Ms. Caplan for her principles, but the law was the law. She's being compelled to testify. She refuses, so Judge Fidler has no choice but to hold her in contempt. Lucky for Ms. Caplan that she's an attorney. Because of that, Judge Fidler is staying his contempt order until June 22nd, (that Fidler likened to contempt on "principle") and until all appellate issues have been exhausted. Fidler stated that Ms. Caplan wasn't going to jail today. Looks like this one might go all the way to the California Supreme Court, unless, there is some dramatic change in the direction of this case.
At the very last minute, Ms. Caplan's appellate attorney, Weberman, raised the question, "What if Dr. Lee doesn't testify?" And then a scramble took place where both sides agreed to try to work something out.
Did all of this drama really revolve around missing evidence, or does it really revolve around the prosecution getting leverage to prevent Dr. Henry Lee from testi-lying ~oops, I mean "testifying" in this case? Only time will tell which way this case unfolds.
Testimony in front of the jury will resume this afternoon at 1:30 pm PT.
Court TV's blog by Harriet Ryan
Los Angeles Times blog by Joe Spano and Peter Y. Hong
My trial notes for 5-22-07 are almost complete. Just need a little last minute editing.
Showing posts with label Sara Caplan. Show all posts
Showing posts with label Sara Caplan. Show all posts
Thursday, June 14, 2007
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:
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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.
Wednesday, June 6, 2007
A "Joan of Arc" Moment
June 6, 2007
With her lips quivering, I could have sworn Sara Caplan was about to cry, or was on the verge of an emotional deluge. As Steven Mikulan described today's explosive events after court ended for the day, "It was her Joan of Arc moment. She was stamping out the flames at her feet."
Counsel for Sara Caplan, in his argument to Judge Fidler said, "She will not testify. In 40 years, I've never heard of a case where a former attorney has been forced to testify against her former client. I'm asking you with all due humility, your honor. Don't make her to testify against her client." Judge Fidler said that "My sense of justice is not only to Ms. Caplan, or Mr. Spector, or the prosecution, it's also to Ms. Clarkson and justice herself." Fidler reiterated his prior ruling, citing several cases including Meredith and Fairbanks that this issue of missing evidence is not covered under attorney client privilege. Ms. Caplan's counsel pleads to Judge Fidler, "It's not a choice for her. I'm quoting the cannons of ethics. She's being forced to come here. It's not right! It's not legal!"
Judge Fidler replies, I respectfully disagree. It is her duty. It is legal."
After several representatives of Spector's current legal team stand up to argue against Ms. Caplan testifying, Spector turns to watch Ms. Caplan's counsel who pleads, "I'm begging you not to do this." Judge Fidler replies back, "I'm begging you not to do this."
Judge Fidler said , "In almost 25 years on the bench, I've never held an attorney in contempt. I take this very seriously, and I think she is making a terrible mistake."
Then, in a last ditch effort, Ms. Caplan stood up to plead her case herself. With an emotionally heavy voice, Ms. Caplan stood before Judge Larry Fidler and quoted the Meredith case law back to him, stressing that in the Meredith ruling an investigator testified; nowhere did it state that an attorney could be called to the stand. Maybe it was Ms. Caplan's emotional state, who knows, but after her brave stand to defend herself, Judge Fidler blinked. "We're not going to be deciding this today in any event," he said. Fidler delayed making a decision again, saying he would be getting advice from other sources and everyone would be meeting back here, at 9:00 am Monday morning to continue the issue.
But Judge Fidler wasn't done. While Rosen was trying to argue that there was no need for Ms. Caplan to testify, "Because we have this other witness" (Stan White), Judge Fidler snaps back, "It's disingenuous to present that, because you know you're going to attack that witness."
What would happen if Judge Fidler held Ms. Caplan in contempt? Well, jail for one, until she testifies. Dominick Dunne said that he couldn't imagine that she would be put in jail. That could be a public relations nightmare for the court, and he felt that she would most likely be fined until she complied.
With her lips quivering, I could have sworn Sara Caplan was about to cry, or was on the verge of an emotional deluge. As Steven Mikulan described today's explosive events after court ended for the day, "It was her Joan of Arc moment. She was stamping out the flames at her feet."
Counsel for Sara Caplan, in his argument to Judge Fidler said, "She will not testify. In 40 years, I've never heard of a case where a former attorney has been forced to testify against her former client. I'm asking you with all due humility, your honor. Don't make her to testify against her client." Judge Fidler said that "My sense of justice is not only to Ms. Caplan, or Mr. Spector, or the prosecution, it's also to Ms. Clarkson and justice herself." Fidler reiterated his prior ruling, citing several cases including Meredith and Fairbanks that this issue of missing evidence is not covered under attorney client privilege. Ms. Caplan's counsel pleads to Judge Fidler, "It's not a choice for her. I'm quoting the cannons of ethics. She's being forced to come here. It's not right! It's not legal!"
Judge Fidler replies, I respectfully disagree. It is her duty. It is legal."
After several representatives of Spector's current legal team stand up to argue against Ms. Caplan testifying, Spector turns to watch Ms. Caplan's counsel who pleads, "I'm begging you not to do this." Judge Fidler replies back, "I'm begging you not to do this."
Judge Fidler said , "In almost 25 years on the bench, I've never held an attorney in contempt. I take this very seriously, and I think she is making a terrible mistake."
Then, in a last ditch effort, Ms. Caplan stood up to plead her case herself. With an emotionally heavy voice, Ms. Caplan stood before Judge Larry Fidler and quoted the Meredith case law back to him, stressing that in the Meredith ruling an investigator testified; nowhere did it state that an attorney could be called to the stand. Maybe it was Ms. Caplan's emotional state, who knows, but after her brave stand to defend herself, Judge Fidler blinked. "We're not going to be deciding this today in any event," he said. Fidler delayed making a decision again, saying he would be getting advice from other sources and everyone would be meeting back here, at 9:00 am Monday morning to continue the issue.
But Judge Fidler wasn't done. While Rosen was trying to argue that there was no need for Ms. Caplan to testify, "Because we have this other witness" (Stan White), Judge Fidler snaps back, "It's disingenuous to present that, because you know you're going to attack that witness."
What would happen if Judge Fidler held Ms. Caplan in contempt? Well, jail for one, until she testifies. Dominick Dunne said that he couldn't imagine that she would be put in jail. That could be a public relations nightmare for the court, and he felt that she would most likely be fined until she complied.
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.
Wednesday, May 16, 2007
Trial Notes, 5-16-07: Adriano DeSouza & Dr. Lee
I get an 8 am bus at Sepulveda. It’s only about 1/2 full, but will probably fill at the next stop. On the bus video transit news, they have a clip of the damaging testimony from DeSouza on the stand yesterday. “I think I killed somebody.”
On the Red Line train, I see a woman tweezing her eyebrows. Ehewwww! At the Pershing Square Station (the stop just before the Civic Center Station) there is a wild looking black woman, screaming something. It’s the same woman I saw on the escalator yesterday at Civic Center! She’s wearing the same clothes. “Stay outta my money!” She yells several times.
In the lobby, there were quite a few more cameramen with huge cameras going through security to get into court. The lines were very long at the security scanners. One cameraman squeezed in on the elevator I was on, and I ask him what trial he’s covering. He replied, “There an arraignment on the fifth floor today.”
On the 9th floor at court, Michelle, Dominick, and Ciaran (pronounced Keer'an) all sit together. The jury consultants from yesterday are back and standing with Lana’s family. One reporter noted that Lana’s mom had “a make over.” I don’t “see” what he’s seeing. All it looks like to me is that her hair is curled a bit more. Alan Jackson stops and speaks to Lana’s mother for a second before going into the courtroom.
Linda Kenney Baden and I are waiting for the restroom maintenance man to take the sign down on the women’s restroom so we can go in. I get the opportunity to talk to her about the broken foot. She is so nice! I commiserate with her, explaining that at one time, I had two different accidents where I broke bones in my foot, and one time, I broke the exact same bone she broke. I talk about being in a cast up to my hip for nine weeks, and once I got out of it, the only thing that really helped me was deep tissue bodywork, because I walked with a limp for quite some time. I also recommend to her to take bromelain on an empty stomach, because it will then act as an anti-inflammatory.
9:45 am. We’re getting a bit of a late start today. In a very irritated tone, the Judge lets the attorneys know that he is tired of wasting the jurors time. The defense is asking for the witnesses INS documents. Apparently, there is one form they are asking for, and they only have a copy of one side of it, and they are making a big deal about this.
I see Alan Jackson sitting in a familiar pose I often have noticed he takes. His elbows are on the arms of his chair, and his hands are splayed out, but his fingertips are touching. I’ve seen him put his hands in this pose when it appears he is thinking intently. Spector is the first to stand for the jurors to enter the courtroom.
The witness DeSouza is back on the stand. The witness says that Spector was not slurring his words when he made his statement. The two porch lights located on each side of the back door were on and an overhead light was on in the foyer. Up on the Elmo, there are close up’s of Lana’s face! Lana’s mother and sister in the front row, don’t look up at the screen. They look down the entire time photos of Lana are up on the screen. DeSouza says there is more blood on her face in this photo that there was when he saw her. DeSouza had to look twice past Spector, to see Lana.
Q: Did he say anything else?
DeSouza says that Spector didn’t speak after that.
Juror #9’s cell phone goes off, and he embarrassingly removes the battery. Alan Jackson takes a moment to confer with Pat Dixon, and the embarrassed juror #9, nervously taps his pen and looks out over at the gallery of reporters.
The 911 tape recording is played for the jury.
For some reason I turn around to look behind me and the petite, stunning law student I met at the Blake criminal trial is here! She’s impeccably dressed for court. It’s a total surprise to see her. She whispers, getting me caught up on what’s been happening with her.
Cross of DeSouza begins.
There was a lot of speculation as to who would stand up to perform the cross. Many thought it would be Bruce Cutler, the very theatrical New York lawyer, who has only presented the OS and performed one cross so far, but it’s Brunon who stands up and approaches the podium.
The witness says he started studying english around 13 years of age, three to four days a week. It was mandatory in school. When he was fifteen to eighteen he was in a different school, and he had a private english tutor then. I calculate it out. He was born possibly in 1970, and is approximately 37 years old today. DeSouza came to the US in 1997 to 1998. His status was as a legal visitor. The first time he came, he stayed eight to nine months. After his tourist visa expired, He remained in the US for a bit and applied for a student visa. He then returned home.
He reentered the US in 2000. This time, it was on a student visa. There is a little disagreement between the witness and Rosen. Sometime later, he withdrawals from school. This then violates his visa, but he didn’t return to Brazil. He stayed in the US.
Q: You didn’t respect the laws that let you come here, correct?
A: No.
I look over at the jurors and jurors # 8 and 9 are snickering, almost laughing. I’m guessing they think this question about obeying the laws is funny.
DeSouza says he stopped taking english classes in 2004. Rosen confronts the witness about not going home after he withdrew from school. Juror #8 finds this question and response funny, too. The tone that Rosen is taking with this witness, and the implication of his questions, is not going over well with this heavily mixed race jury.
The witness says that he talked about the event (the murder) with friends and family. I look on over at the jury and think that maybe they are getting bored with Brunon and these tedious questions. If it’s not boring the jury, it certainly is boring me. The cross is tedious.
DeSouza said that someone from a paper tried to interview him (after the event). The next day, he went back to Spector’s residence, to do some staging with the police (probably of the Mercedes). Rosen puts up on the Elmo, a copy of his own spreadsheet of billings. One column documents the number of times he has worked for Spector. It was just a spread sheet he designed, and he doesn’t remember preparing invoices. Rosen shows that DeSouza actually only drove Spector 10 times verses the 13-14 he originally said on direct, and I think, this is so petty.
Q: How did Mr. Spector address you?
A: They never called me the correct name. They never knew it.
DeSouza says that his conversations with Spector were all short. It’s now that Brunon asks DeSouza if he could describe Spector’s voice. DeSouza says that he’s not very good at that, and asks if maybe, Rosen would like him to demonstrate Spector’s voice. Brunon, pausing almost like he doesn’t know how to answer that says, “Sure.” And DeSuoza, says in a high pitched, whiney voice,
A: Adriano! Adriano!
There’s totally laughter throughout the courtroom. It’s hysterical! And what is so amazing, is this entire time DeSouza doesn’t even crack a smile. All this time, under this boring, excruciatingly detailed cross, he remains stoic. Not once do I see him even give the tiniest hint of smiling, ever.
Q: So he has a small voice?
A: Yes.
Q: And some have a big voice.
The judge makes a joke about Brunon’s voice, and the jury explodes in laughter again. During this cross, I don’t notice as much note taking by the jurors.
It’s 12 noon and the judge calls the noon recess.
Testimony in front of the jury will resume next Monday. In the afternoon session, the attorneys will continue with the evidentiary hearing in the missing evidence issue. Right when the noon recess was called, I asked Beth what her opinion was of the cross. She thought he was doing very good on the stand, “He’s telling the truth.”
Back inside the courtroom, and the hearing is about to begin. I notice Rochelle is wearing a blood red suit, and I mention this to Steven K. “The color of justice,” he replies. They’re real! I see an actual Team Spector Button! It’s huge. About 4-5 inches across. On the Court TV crime forums, someone came across a web site that supposedly belonged to Spector’s wife. On it, were statements about coming down to the courthouse between 9-4, and picking up a “Team Spector Button.” There was a lot of talk on the Court TV Spector Forum as to whether or not this was a “fake” web site, or if it really did belong to the wife. Someone posted that several news agencies reported that it was real, but there were still skeptics on the forum. Well, it’s true. A new public spectator, a trim, Asian woman had heard me talking about the supposed buttons to David K. Li. She asked me where she could get one. I told her, supposedly from the defense team. Supposedly you can get one. So she goes over to the bodyguards and asks for one, and this was the button she brought back that I saw.
Lana’s family is not here in the courtroom for the hearing yet. The state’s forensic expert is back in the courtroom. I think the woman’s name is Dr. Heard, but I’ll have to verify that. I can’t even take a guess as to her age, but she has real long slightly wavy gray streaked hair that looks like it goes down way past her waist. I finally see Lana’s family come back into the courtroom.
This is a very important moment, that everyone has been waiting for. Dr. Henry Lee is going to take the stand. Most have been speculating as to what he is going to say, to try to defend himself. There are several new people in the gallery that I’m guessing (by the way they are dressed) are from the district attorney’s office.
Dr. Lee takes the stand. Chris Plourd question’s the witness.
Dr. Lee states his name, says he is married and he lives and works in Connecticut. Dr. Lee says he’s a forensic scientist who has been in the field over 40 years, assisting law enforcement all over the world. He says that he has assisted in 6,000 or more cases. When he’s working on a case in Connecticut, and he is in charge, basically there is a standard operation procedure. They follow that procedure. Basically documentation of the scene, collect and preserve evidence, and transferring that evidence to the laboratory for analysis. Sometimes he comes to the scene as a consultant. In that case, he’s not in charge of of the scene. As a consultant, basically assist in certain aspects of the case, such as crime scene reconstruction, blood spatter interpretation, or gunshot trajectory determination.
Sitting at the prosecution table, Pat Dixon is absent, and there is a much younger, totally bald asian looking assistant there helping Alan Jackson. Dr. Lee has three pages of rough notes of his time at the crime scene.
Dr. Lee describes his role when he is assisting the defense, mentioning that the crime scene analysts have already been at the scene. He will document the scene, take pictures, observe the layout of the scene and take notes. If anything has a potential evidentiary value, he collects it. Subsequently, he will transmit (anything collected) it to the police department or law enforcement agency if they want it. If they don’t want it, I give it to lawyer.
Plourd puts up Dr. Lee’s notes he took at the scene, and goes over them with Dr. Lee., and he describes his procedure to go over the scene. He does an overview of the entire house, and takes photographs. Since the lighting in the house was poor, a private detective obtained special lighting to take some close up photographs at the scene. He set up a little laboratory area in another part of the house, to do some chemical testing at the scene. Up on the Elmo is an image of Dr. Lee at the crime scene. He took an overview shot before he set up the extra lighting, and there are some questions for Dr. Lee on the photographs up on the Elmo.
I notice in several of the photographs, that Dr. Lee has his very own “crime scene” ruler, complete with his name engraved into it, “Dr. Henry C. Lee, Chief Forensic Scientist Laboratory, State of Connecticut.” For some reason, I find that amusing that his measuring ruler has his name engraved into it.
More pictures are put up on the Elmo. Dr. Lee describes when he took the pictures and why.
Dr. Lee is now showing that he collected two items. There are images up on the Elmo of two pieces of yarn/thread like materials, and he’s saying that these threads are the only thing he collected. Pictures of the lower stairwell steps, the uncarpeted wood part, are put up on the Elmo. Dr. Lee says he took those pictures, because he said there looked like a “fresh cut or scraping of wood.” Dr. Lee now identifies photographs of what appear to be stains on the wood, and one of them he takes a collection of the stain. Dr. Lee then explains why he collected the threads and the blood stain. Throughout Dr. Lee’s testimony so far, the court reporter has to ask him to clarify what he said. She can’t understand him.
Q: Did you collect anything other than the two items that you just mentioned Dr. Lee?
A: No I did not.
Q: Did ever collect any type of a nail, either a portion of a human fingernail, or portion of an acrylic fingernail? Did you ever collect anything like that?
A: Definitely not.
Dr. Lee now describes photographs of the exterior stairwell wall. He performed some general swabbing, testing of this wall area for blood. There is a close up of this exterior stairwell wall, and there appear to be (according to Dr. Lee) gouges in the wood on this wall near the floor. Some damage to the molding. More photographs are put up of the exterior stairwell wall that appears to be marked up.
Just then, I have a coughing fit, and I don’t have any water with me. All I can think of at the time is, hoping for it to pass and I don’t have to be asked to leave the courtroom.
Q: Do you remember an attorney by the name of Sara Caplan being in or around the scene when you were looking at this particular wall?
A: Yes. There were some people in there.
Q: Okay. Do you remember an attorney by the name of Sara Caplan that was looking at this wall also and what did you do, and what did you remember about that?
A: Everybody try to assist me, sayed, “How about test this spot, or that spot. So, they try to point potential spot to me.
Q: Okay. So you visually examined this wall. Did you see some spots on this wall that you felt were important to do testing on?
A: I saw some area, potential to do test on. I did not see a, a blood drop on. If a blood drop I probably collect it.
More photographs are put up on the Elmo and described. One is a photograph of his working station and Dr. Lee describes it, shows his big magnifying glass he brings to a scene, and also points out the chemicals he uses for testing. He explains how he tests for blood using phenol saline. Dr. Lee has brought some vials to court and is now explaining what they are and how they are used. They are vials that have a cotton Q-tip type swab inside them. He shows the court that he takes this swab out, will swab an area to be tested, and then put the swab back in the vial.
Dr. Lee tries to say that Ms. Caplan was mistaken, and what she most likely saw was Dr. Lee swabbing the wall with one of these swabs, and then putting the swab back in the vial.
Several more photographs are put up on the Elmo, and Dr. Lee describes them.
A year later, Stan White supposedly sent Dr. Lee a package, wrapped up in a Macey’s paper bag. Dr. Lee says he did not see Mr. White collect anything at the scene. More pictures up on the screen of the front and back of this package that he was sent. Dr. Lee found a piece of red carpet inside. Since it contained blood, he sealed it in a biohazard bag. He said he couldn’t find anyone to determine what to do with it , so he kept it.
Now I understand why Dr. Herold was there. She was there to collect the evidence that Dr. Lee did bring to court with him. The examiner’s office will take possession of of the blood stained carpet. And the item is turned over to the crime lab right then.
Some photographs are put up on the Elmo, that the people entered earlier in the hearing, and Dr. Lee is asked to identify the items. He identifies them as the items he sent to the LA Sheriff’s crime lab. The court reporter asks Dr. Lee to repeat his words again.
Q: Now, your collection of these two items that we’ve been discussing, has an issue ever come up in this case where they wanted you to testify about your collection of these items before?
A: Yes.
Q: Okay. And, when was that.
A: That was ah, in ‘84.
Q: Okay, Ah, can we have a letter report marked next in order your honor?
Judge: Ah, 52.
Plourd. Is it ‘94 or 2004?
A: Ah... I mean 2004. 2004.
The document is a letter from Dr. Lee to Leslie Abramson, and it deals with him being called to testify, but he never testified. He had the items he collected with him, but since he never testified, he never handed them over.
Dr. Lee reviewed a transcript testimony of Stanley White regarding his observations.
Q: Do you have a different recollection than what he testified about as to anything of the things he saw or observed?
A: I feel very upset. I think my, (unintelligible word), my reputation severely damaged. Because he said things. I don’t know this person. I just don’t know why he did that. My recollection I did not have any conversation. My document, my pictures show the carpet there. Nobody cut into the carpet. ... I never put biohazard material in my handkerchief. Just, nobody does that. Scientists, we’re all trained, to be objective; to be fair. Whatever we find, I reported. Nothing to hide about it. Remember one time he say, “That’s not a handkerchief now, all of a sudden it become a tissue. And he said the fingernail is red. Uh, he, I just don’t know what he’s talking about.”
Q: Dr. Lee, did you collect anything, or look at, or see anything that looked like a fingernail at that scene?
A: (Slightly chuckling) No, I did not see. I did not collect any fingernail. No, I did not collect any tooth. All I did was collect that two, thread like material. Which I documented when I picked it up.
There’s more questions about fingers, and that in over 6,000 crime scenes, Dr. Lee has only seen fingers a few times. And then bullet “swipe” is discussed, and how could all those investigators at the scene, miss a fingernail? Then there’s some talk about the gasses of the gun and whether or not it can melt the acrylic that the fake nails are made of.
Q: Did you review some testimony by a Sara Caplan?
A: Yes I did.
Q: Okay. And, uh, do you have any recollection that comports to what she saw?
A: I think she made an, honest mistake. When I use a swab, swab a surface, I put in a test tube, that looks like, something white. Maybe, she just make assumption; did not even check, what’s going on.
A few more questions about the tubes Dr. Lee uses are asked, as well as questions regarding how he was asked to stay on with the State Connecticut Crime Lab.
End of direct examination.
A recess is called. Alan Jackson is now able to take time to review the original photographs that Dr. Lee brought with him. These were the photographs that the prosecution has been asking for, for over a year. There’s lots of huddled discussion among the attorneys. Someone in the gallery makes a comment about how terrible it is that Mr. Jackson has to try to review the original negatives right there in the courtroom using the poor overhead fluorescent lighting.
Earlier in the day, around 9:30 am, I overheard Mr. Dunne describing how Cutler gave him a ride back to Pasadena when his driver didn’t show up. Dominick says Cutler is a really entertaining person. The break is still going.
Alan Jackson finally starts the cross of Dr. Lee.
Q: Did you recognize anyone there?
A: They all look alike to me.
I can’t believe it. Dr. Lee says the same joke he’s said in virtually every trial he’s testified in. There’s no jury here to laugh at his joke, and it’s not funny after it’s been told so many times.
Alan Jackson asked Dr. Lee directly, in person, in February 2006, for items he collected, and Dr. Lee doesn’t remember that.
Now Dr. Lee is explaining that he doesn’t document a “private case” as carefully as he would one for the state. “Not a state case,” he says.
Q: Why is it you don’t document as precisely?
A: I don’t document every conversation.
Now Dr. Lee is explaining that his secretary would have the documents that shows when he mailed his file to the District Attorney’s office. It’s not in is file. The secretary would have the FedEx slip. Dr. Lee says that since he does have the FedEx slip, that’s documentation.
Q: Why did you not keep a record in the file?
A: You have to ask them (his secretary).
Now Alan Jackson is asking Dr. Lee about paper bindles verses the type of collection paper that’s standard in Connecticut. In Los Angeles County, they use envelopes that are called bindles. In Connecticut, it’s a type of paper that’s folded and sealed somehow. But here, at this crime scene, Dr. Lee used “post it” paper. POST-IT paper! I can see it now, Dr. Lee will forever be called Dr. Post-it. And Dr. Lee sounds like he’s getting exasperated because in a very agitated tone he says, “It’s all paper! It all comes from the same place.”
Alan Jackson also gets Dr. Lee to admit that he didn’t document when he took his photographs at the scene.
A: I took that night. I don’t know what time.
Q: All those photographs were taken that night?
A: I don’t remember. (snip) Some maybe before the package, I sent it. (snip) I don’t remember exactly every one. I’d have to compare to my negative. Maybe you can help me.
Dr. Lee now says that with private consultation cases, all items he collects are stored at his home where he has a laboratory. Alan Jackson keeps insisting there was a court order for his file.
Q: Why didn’t you send it?
A: I only send what I collect. I was told only what I collected. I did not do any measurements. I just put my ruler there.
Q: Did you make a note as to when you received this piece of evidence? (I believe Jackson is talking about the rug swatch from Stan White).
A: No.
Q: Do you have an assistant? Do you have any procedures or protocols for your assistants to document (your case files)?
Alan Jackson asks Dr. Lee, or implies that Dr. Lee is sloppy. And I look over and Spector appears to be laughing! Dr. Lee gets real angry with his reply.
A: DON’T CALL ME SLOPPY!
Dr. Lee got very irate at any time it was insinuated he was not using proper procedures. Mr. Jackson is clearly rattling the great Henry Lee.
Q: So, if Ms. Caplan testified to you picking up ...
A: She must be mistaken.
Now, Alan Jackson puts up on the Elmo, a photograph of a small white object that appears to be sitting on one of the stairway steps. And he asks Dr. Lee about this photograph.
Q: Is that a small white object?
A: No. That’s a cut.
Sheesh! Looks like a small white object to me! Dr. Lee is actually trying to tell the court (what all of us in the courtroom can see with our own eyes), that this small white object lying on the steps that he photographed is a gouge, a cut in the wood. And this is supposed to be a world renowned criminalist?
And, as we already know, a week later, Judge Fidler ruled that Dr. Lee’s testimony was not credible.
On the Red Line train, I see a woman tweezing her eyebrows. Ehewwww! At the Pershing Square Station (the stop just before the Civic Center Station) there is a wild looking black woman, screaming something. It’s the same woman I saw on the escalator yesterday at Civic Center! She’s wearing the same clothes. “Stay outta my money!” She yells several times.
In the lobby, there were quite a few more cameramen with huge cameras going through security to get into court. The lines were very long at the security scanners. One cameraman squeezed in on the elevator I was on, and I ask him what trial he’s covering. He replied, “There an arraignment on the fifth floor today.”
On the 9th floor at court, Michelle, Dominick, and Ciaran (pronounced Keer'an) all sit together. The jury consultants from yesterday are back and standing with Lana’s family. One reporter noted that Lana’s mom had “a make over.” I don’t “see” what he’s seeing. All it looks like to me is that her hair is curled a bit more. Alan Jackson stops and speaks to Lana’s mother for a second before going into the courtroom.
Linda Kenney Baden and I are waiting for the restroom maintenance man to take the sign down on the women’s restroom so we can go in. I get the opportunity to talk to her about the broken foot. She is so nice! I commiserate with her, explaining that at one time, I had two different accidents where I broke bones in my foot, and one time, I broke the exact same bone she broke. I talk about being in a cast up to my hip for nine weeks, and once I got out of it, the only thing that really helped me was deep tissue bodywork, because I walked with a limp for quite some time. I also recommend to her to take bromelain on an empty stomach, because it will then act as an anti-inflammatory.
9:45 am. We’re getting a bit of a late start today. In a very irritated tone, the Judge lets the attorneys know that he is tired of wasting the jurors time. The defense is asking for the witnesses INS documents. Apparently, there is one form they are asking for, and they only have a copy of one side of it, and they are making a big deal about this.
I see Alan Jackson sitting in a familiar pose I often have noticed he takes. His elbows are on the arms of his chair, and his hands are splayed out, but his fingertips are touching. I’ve seen him put his hands in this pose when it appears he is thinking intently. Spector is the first to stand for the jurors to enter the courtroom.
The witness DeSouza is back on the stand. The witness says that Spector was not slurring his words when he made his statement. The two porch lights located on each side of the back door were on and an overhead light was on in the foyer. Up on the Elmo, there are close up’s of Lana’s face! Lana’s mother and sister in the front row, don’t look up at the screen. They look down the entire time photos of Lana are up on the screen. DeSouza says there is more blood on her face in this photo that there was when he saw her. DeSouza had to look twice past Spector, to see Lana.
Q: Did he say anything else?
DeSouza says that Spector didn’t speak after that.
Juror #9’s cell phone goes off, and he embarrassingly removes the battery. Alan Jackson takes a moment to confer with Pat Dixon, and the embarrassed juror #9, nervously taps his pen and looks out over at the gallery of reporters.
The 911 tape recording is played for the jury.
For some reason I turn around to look behind me and the petite, stunning law student I met at the Blake criminal trial is here! She’s impeccably dressed for court. It’s a total surprise to see her. She whispers, getting me caught up on what’s been happening with her.
Cross of DeSouza begins.
There was a lot of speculation as to who would stand up to perform the cross. Many thought it would be Bruce Cutler, the very theatrical New York lawyer, who has only presented the OS and performed one cross so far, but it’s Brunon who stands up and approaches the podium.
The witness says he started studying english around 13 years of age, three to four days a week. It was mandatory in school. When he was fifteen to eighteen he was in a different school, and he had a private english tutor then. I calculate it out. He was born possibly in 1970, and is approximately 37 years old today. DeSouza came to the US in 1997 to 1998. His status was as a legal visitor. The first time he came, he stayed eight to nine months. After his tourist visa expired, He remained in the US for a bit and applied for a student visa. He then returned home.
He reentered the US in 2000. This time, it was on a student visa. There is a little disagreement between the witness and Rosen. Sometime later, he withdrawals from school. This then violates his visa, but he didn’t return to Brazil. He stayed in the US.
Q: You didn’t respect the laws that let you come here, correct?
A: No.
I look over at the jurors and jurors # 8 and 9 are snickering, almost laughing. I’m guessing they think this question about obeying the laws is funny.
DeSouza says he stopped taking english classes in 2004. Rosen confronts the witness about not going home after he withdrew from school. Juror #8 finds this question and response funny, too. The tone that Rosen is taking with this witness, and the implication of his questions, is not going over well with this heavily mixed race jury.
The witness says that he talked about the event (the murder) with friends and family. I look on over at the jury and think that maybe they are getting bored with Brunon and these tedious questions. If it’s not boring the jury, it certainly is boring me. The cross is tedious.
DeSouza said that someone from a paper tried to interview him (after the event). The next day, he went back to Spector’s residence, to do some staging with the police (probably of the Mercedes). Rosen puts up on the Elmo, a copy of his own spreadsheet of billings. One column documents the number of times he has worked for Spector. It was just a spread sheet he designed, and he doesn’t remember preparing invoices. Rosen shows that DeSouza actually only drove Spector 10 times verses the 13-14 he originally said on direct, and I think, this is so petty.
Q: How did Mr. Spector address you?
A: They never called me the correct name. They never knew it.
DeSouza says that his conversations with Spector were all short. It’s now that Brunon asks DeSouza if he could describe Spector’s voice. DeSouza says that he’s not very good at that, and asks if maybe, Rosen would like him to demonstrate Spector’s voice. Brunon, pausing almost like he doesn’t know how to answer that says, “Sure.” And DeSuoza, says in a high pitched, whiney voice,
A: Adriano! Adriano!
There’s totally laughter throughout the courtroom. It’s hysterical! And what is so amazing, is this entire time DeSouza doesn’t even crack a smile. All this time, under this boring, excruciatingly detailed cross, he remains stoic. Not once do I see him even give the tiniest hint of smiling, ever.
Q: So he has a small voice?
A: Yes.
Q: And some have a big voice.
The judge makes a joke about Brunon’s voice, and the jury explodes in laughter again. During this cross, I don’t notice as much note taking by the jurors.
It’s 12 noon and the judge calls the noon recess.
Testimony in front of the jury will resume next Monday. In the afternoon session, the attorneys will continue with the evidentiary hearing in the missing evidence issue. Right when the noon recess was called, I asked Beth what her opinion was of the cross. She thought he was doing very good on the stand, “He’s telling the truth.”
Back inside the courtroom, and the hearing is about to begin. I notice Rochelle is wearing a blood red suit, and I mention this to Steven K. “The color of justice,” he replies. They’re real! I see an actual Team Spector Button! It’s huge. About 4-5 inches across. On the Court TV crime forums, someone came across a web site that supposedly belonged to Spector’s wife. On it, were statements about coming down to the courthouse between 9-4, and picking up a “Team Spector Button.” There was a lot of talk on the Court TV Spector Forum as to whether or not this was a “fake” web site, or if it really did belong to the wife. Someone posted that several news agencies reported that it was real, but there were still skeptics on the forum. Well, it’s true. A new public spectator, a trim, Asian woman had heard me talking about the supposed buttons to David K. Li. She asked me where she could get one. I told her, supposedly from the defense team. Supposedly you can get one. So she goes over to the bodyguards and asks for one, and this was the button she brought back that I saw.
Lana’s family is not here in the courtroom for the hearing yet. The state’s forensic expert is back in the courtroom. I think the woman’s name is Dr. Heard, but I’ll have to verify that. I can’t even take a guess as to her age, but she has real long slightly wavy gray streaked hair that looks like it goes down way past her waist. I finally see Lana’s family come back into the courtroom.
This is a very important moment, that everyone has been waiting for. Dr. Henry Lee is going to take the stand. Most have been speculating as to what he is going to say, to try to defend himself. There are several new people in the gallery that I’m guessing (by the way they are dressed) are from the district attorney’s office.
Dr. Lee takes the stand. Chris Plourd question’s the witness.
Dr. Lee states his name, says he is married and he lives and works in Connecticut. Dr. Lee says he’s a forensic scientist who has been in the field over 40 years, assisting law enforcement all over the world. He says that he has assisted in 6,000 or more cases. When he’s working on a case in Connecticut, and he is in charge, basically there is a standard operation procedure. They follow that procedure. Basically documentation of the scene, collect and preserve evidence, and transferring that evidence to the laboratory for analysis. Sometimes he comes to the scene as a consultant. In that case, he’s not in charge of of the scene. As a consultant, basically assist in certain aspects of the case, such as crime scene reconstruction, blood spatter interpretation, or gunshot trajectory determination.
Sitting at the prosecution table, Pat Dixon is absent, and there is a much younger, totally bald asian looking assistant there helping Alan Jackson. Dr. Lee has three pages of rough notes of his time at the crime scene.
Dr. Lee describes his role when he is assisting the defense, mentioning that the crime scene analysts have already been at the scene. He will document the scene, take pictures, observe the layout of the scene and take notes. If anything has a potential evidentiary value, he collects it. Subsequently, he will transmit (anything collected) it to the police department or law enforcement agency if they want it. If they don’t want it, I give it to lawyer.
Plourd puts up Dr. Lee’s notes he took at the scene, and goes over them with Dr. Lee., and he describes his procedure to go over the scene. He does an overview of the entire house, and takes photographs. Since the lighting in the house was poor, a private detective obtained special lighting to take some close up photographs at the scene. He set up a little laboratory area in another part of the house, to do some chemical testing at the scene. Up on the Elmo is an image of Dr. Lee at the crime scene. He took an overview shot before he set up the extra lighting, and there are some questions for Dr. Lee on the photographs up on the Elmo.
I notice in several of the photographs, that Dr. Lee has his very own “crime scene” ruler, complete with his name engraved into it, “Dr. Henry C. Lee, Chief Forensic Scientist Laboratory, State of Connecticut.” For some reason, I find that amusing that his measuring ruler has his name engraved into it.
More pictures are put up on the Elmo. Dr. Lee describes when he took the pictures and why.
Dr. Lee is now showing that he collected two items. There are images up on the Elmo of two pieces of yarn/thread like materials, and he’s saying that these threads are the only thing he collected. Pictures of the lower stairwell steps, the uncarpeted wood part, are put up on the Elmo. Dr. Lee says he took those pictures, because he said there looked like a “fresh cut or scraping of wood.” Dr. Lee now identifies photographs of what appear to be stains on the wood, and one of them he takes a collection of the stain. Dr. Lee then explains why he collected the threads and the blood stain. Throughout Dr. Lee’s testimony so far, the court reporter has to ask him to clarify what he said. She can’t understand him.
Q: Did you collect anything other than the two items that you just mentioned Dr. Lee?
A: No I did not.
Q: Did ever collect any type of a nail, either a portion of a human fingernail, or portion of an acrylic fingernail? Did you ever collect anything like that?
A: Definitely not.
Dr. Lee now describes photographs of the exterior stairwell wall. He performed some general swabbing, testing of this wall area for blood. There is a close up of this exterior stairwell wall, and there appear to be (according to Dr. Lee) gouges in the wood on this wall near the floor. Some damage to the molding. More photographs are put up of the exterior stairwell wall that appears to be marked up.
Just then, I have a coughing fit, and I don’t have any water with me. All I can think of at the time is, hoping for it to pass and I don’t have to be asked to leave the courtroom.
Q: Do you remember an attorney by the name of Sara Caplan being in or around the scene when you were looking at this particular wall?
A: Yes. There were some people in there.
Q: Okay. Do you remember an attorney by the name of Sara Caplan that was looking at this wall also and what did you do, and what did you remember about that?
A: Everybody try to assist me, sayed, “How about test this spot, or that spot. So, they try to point potential spot to me.
Q: Okay. So you visually examined this wall. Did you see some spots on this wall that you felt were important to do testing on?
A: I saw some area, potential to do test on. I did not see a, a blood drop on. If a blood drop I probably collect it.
More photographs are put up on the Elmo and described. One is a photograph of his working station and Dr. Lee describes it, shows his big magnifying glass he brings to a scene, and also points out the chemicals he uses for testing. He explains how he tests for blood using phenol saline. Dr. Lee has brought some vials to court and is now explaining what they are and how they are used. They are vials that have a cotton Q-tip type swab inside them. He shows the court that he takes this swab out, will swab an area to be tested, and then put the swab back in the vial.
Dr. Lee tries to say that Ms. Caplan was mistaken, and what she most likely saw was Dr. Lee swabbing the wall with one of these swabs, and then putting the swab back in the vial.
Several more photographs are put up on the Elmo, and Dr. Lee describes them.
A year later, Stan White supposedly sent Dr. Lee a package, wrapped up in a Macey’s paper bag. Dr. Lee says he did not see Mr. White collect anything at the scene. More pictures up on the screen of the front and back of this package that he was sent. Dr. Lee found a piece of red carpet inside. Since it contained blood, he sealed it in a biohazard bag. He said he couldn’t find anyone to determine what to do with it , so he kept it.
Now I understand why Dr. Herold was there. She was there to collect the evidence that Dr. Lee did bring to court with him. The examiner’s office will take possession of of the blood stained carpet. And the item is turned over to the crime lab right then.
Some photographs are put up on the Elmo, that the people entered earlier in the hearing, and Dr. Lee is asked to identify the items. He identifies them as the items he sent to the LA Sheriff’s crime lab. The court reporter asks Dr. Lee to repeat his words again.
Q: Now, your collection of these two items that we’ve been discussing, has an issue ever come up in this case where they wanted you to testify about your collection of these items before?
A: Yes.
Q: Okay. And, when was that.
A: That was ah, in ‘84.
Q: Okay, Ah, can we have a letter report marked next in order your honor?
Judge: Ah, 52.
Plourd. Is it ‘94 or 2004?
A: Ah... I mean 2004. 2004.
The document is a letter from Dr. Lee to Leslie Abramson, and it deals with him being called to testify, but he never testified. He had the items he collected with him, but since he never testified, he never handed them over.
Dr. Lee reviewed a transcript testimony of Stanley White regarding his observations.
Q: Do you have a different recollection than what he testified about as to anything of the things he saw or observed?
A: I feel very upset. I think my, (unintelligible word), my reputation severely damaged. Because he said things. I don’t know this person. I just don’t know why he did that. My recollection I did not have any conversation. My document, my pictures show the carpet there. Nobody cut into the carpet. ... I never put biohazard material in my handkerchief. Just, nobody does that. Scientists, we’re all trained, to be objective; to be fair. Whatever we find, I reported. Nothing to hide about it. Remember one time he say, “That’s not a handkerchief now, all of a sudden it become a tissue. And he said the fingernail is red. Uh, he, I just don’t know what he’s talking about.”
Q: Dr. Lee, did you collect anything, or look at, or see anything that looked like a fingernail at that scene?
A: (Slightly chuckling) No, I did not see. I did not collect any fingernail. No, I did not collect any tooth. All I did was collect that two, thread like material. Which I documented when I picked it up.
There’s more questions about fingers, and that in over 6,000 crime scenes, Dr. Lee has only seen fingers a few times. And then bullet “swipe” is discussed, and how could all those investigators at the scene, miss a fingernail? Then there’s some talk about the gasses of the gun and whether or not it can melt the acrylic that the fake nails are made of.
Q: Did you review some testimony by a Sara Caplan?
A: Yes I did.
Q: Okay. And, uh, do you have any recollection that comports to what she saw?
A: I think she made an, honest mistake. When I use a swab, swab a surface, I put in a test tube, that looks like, something white. Maybe, she just make assumption; did not even check, what’s going on.
A few more questions about the tubes Dr. Lee uses are asked, as well as questions regarding how he was asked to stay on with the State Connecticut Crime Lab.
End of direct examination.
A recess is called. Alan Jackson is now able to take time to review the original photographs that Dr. Lee brought with him. These were the photographs that the prosecution has been asking for, for over a year. There’s lots of huddled discussion among the attorneys. Someone in the gallery makes a comment about how terrible it is that Mr. Jackson has to try to review the original negatives right there in the courtroom using the poor overhead fluorescent lighting.
Earlier in the day, around 9:30 am, I overheard Mr. Dunne describing how Cutler gave him a ride back to Pasadena when his driver didn’t show up. Dominick says Cutler is a really entertaining person. The break is still going.
Alan Jackson finally starts the cross of Dr. Lee.
Q: Did you recognize anyone there?
A: They all look alike to me.
I can’t believe it. Dr. Lee says the same joke he’s said in virtually every trial he’s testified in. There’s no jury here to laugh at his joke, and it’s not funny after it’s been told so many times.
Alan Jackson asked Dr. Lee directly, in person, in February 2006, for items he collected, and Dr. Lee doesn’t remember that.
Now Dr. Lee is explaining that he doesn’t document a “private case” as carefully as he would one for the state. “Not a state case,” he says.
Q: Why is it you don’t document as precisely?
A: I don’t document every conversation.
Now Dr. Lee is explaining that his secretary would have the documents that shows when he mailed his file to the District Attorney’s office. It’s not in is file. The secretary would have the FedEx slip. Dr. Lee says that since he does have the FedEx slip, that’s documentation.
Q: Why did you not keep a record in the file?
A: You have to ask them (his secretary).
Now Alan Jackson is asking Dr. Lee about paper bindles verses the type of collection paper that’s standard in Connecticut. In Los Angeles County, they use envelopes that are called bindles. In Connecticut, it’s a type of paper that’s folded and sealed somehow. But here, at this crime scene, Dr. Lee used “post it” paper. POST-IT paper! I can see it now, Dr. Lee will forever be called Dr. Post-it. And Dr. Lee sounds like he’s getting exasperated because in a very agitated tone he says, “It’s all paper! It all comes from the same place.”
Alan Jackson also gets Dr. Lee to admit that he didn’t document when he took his photographs at the scene.
A: I took that night. I don’t know what time.
Q: All those photographs were taken that night?
A: I don’t remember. (snip) Some maybe before the package, I sent it. (snip) I don’t remember exactly every one. I’d have to compare to my negative. Maybe you can help me.
Dr. Lee now says that with private consultation cases, all items he collects are stored at his home where he has a laboratory. Alan Jackson keeps insisting there was a court order for his file.
Q: Why didn’t you send it?
A: I only send what I collect. I was told only what I collected. I did not do any measurements. I just put my ruler there.
Q: Did you make a note as to when you received this piece of evidence? (I believe Jackson is talking about the rug swatch from Stan White).
A: No.
Q: Do you have an assistant? Do you have any procedures or protocols for your assistants to document (your case files)?
Alan Jackson asks Dr. Lee, or implies that Dr. Lee is sloppy. And I look over and Spector appears to be laughing! Dr. Lee gets real angry with his reply.
A: DON’T CALL ME SLOPPY!
Dr. Lee got very irate at any time it was insinuated he was not using proper procedures. Mr. Jackson is clearly rattling the great Henry Lee.
Q: So, if Ms. Caplan testified to you picking up ...
A: She must be mistaken.
Now, Alan Jackson puts up on the Elmo, a photograph of a small white object that appears to be sitting on one of the stairway steps. And he asks Dr. Lee about this photograph.
Q: Is that a small white object?
A: No. That’s a cut.
Sheesh! Looks like a small white object to me! Dr. Lee is actually trying to tell the court (what all of us in the courtroom can see with our own eyes), that this small white object lying on the steps that he photographed is a gouge, a cut in the wood. And this is supposed to be a world renowned criminalist?
And, as we already know, a week later, Judge Fidler ruled that Dr. Lee’s testimony was not credible.
Wednesday, May 2, 2007
Trial Notes, 5-2-07
On the Orange Line, the bus gets packed with standing passengers at the Van Nuys station. A young black woman with red and yellow dyed hair sitting next to me gets up to offer her seat to an elderly black woman who got on the bus at Van Nuys. I immediately felt guilty that I didn’t notice the elderly woman get in. Standing by the exit door is a short disheveled man with a hole in the top of his tennis shoe, carrying a coat and a big binder full of worn and wrinkled papers. He’s an interesting character, and I’m continually drawn to looking at that hole in his shoe.
The bus breaks very hard just past the Laurel Canyon exit and several passengers barely keep their balance. I reached out to stable a man in front of me. Several of the passenger exchange looks and gasps of exclamation, and nervous laughter. At the North Hollywood hub, I really push myself to try to lengthen my stride and walk as fast as I can to keep up with the other passengers. I don’t want to miss a train, but I’m also really feeling my years and the extra pounds I’ve put on since getting married. Downstairs, I’m fortunate I find a seat in the car I enter.
Each time I ride the train, I’m always trying to look out the reflective type windows and peer into the tunnels. I’m curious about the whole construction and design. On one trip, I count the number of tunnel lights, and look for the tiny service walkways that line the walls of the tunnels. I find the whole construction fascinating. I really pay attention this time when the train leaves the station, and I can feel it switching to the south bound track. A few stations down the line, a man in a nice gray suit with a battered leather briefcase gets on and takes the seat next to me. He’s reading a book about Thurgood Marshall. I ask him if it’s any good. He replies, “Yes, it’s by the same author who wrote “Eye on the Prize.” I kick myself for not bringing a book today. I purposefully removed as much as I possibly can from my tote to keep my handbag as light as possible, because of all the walking I’m doing taking the metro.
At the courthouse, the public security screening lines are pretty long today. It’s then that I notice that one of the security scanners is not being used. Usually there are three public lines, and a separate one for employees. Today, only two public scanners are in operation. (I always set off the alarm bells and have to lift up the cuffs of my jeans for the sheriffs. I think it’s something in my shoes that triggers them.) As I clear the 9th floor security station and round the corner, I don’t see the usual rush of reporters. I don’t know if I’ve come down here in vain. No Linda Deutsch; no Dominick Dunne; no Eric Leonard, or many of the other familiar faces that I’ve come to recognize, but just don’t know their names. I know I saw Russ in the parking lot, but he’s not up here.
A woman I saw flash a badge and breeze by security downstairs and rode up on the elevator beside me is waiting in the hallway along with several other unfamiliar faces. In the elevator, she was juggling holding several manila envelopes in the elevator, and I glanced over to read what it said on the outside of her leather billfold she had flashed to security: “Drug Enforcement Agency,” I see her enter Judge Fidler’s courtroom, and I wonder if what she’s delivering relates to Spector’s case, or some other case entirely.
I finally see a reporter, David K. Li, and two other female reporters I’ve seen before. It’s 9:15 am, and I see several people entering and exiting Fidler’s court, but no one I recognize or have seen before. I finally see Linda Kenny Baden arrive. She’s with another blond woman, possibly an associate, and they are both dressed in black. Kenney Baden doesn’t look that great in black, I’m sorry to say. It appears there is some sort of delay, that is being talked about by the other people with Kenney Baden. I over hear one of the group say to a reporter, “We were all asked to be here at 9:30 am.”
The prosecution’s clerk, Ed, and DDA Alan Jackson arrive, with a rolling cart that has their many files on the case. A reporter asks Alan a question I miss writing down and Alan replies, “I don’t know.” The few reporters that are here, and the public are allowed inside the courtroom, and I try to watch the interplay between individuals I don’t recognize. I observe two suited men who might be attorneys talking. One introduces the other to “...one of our investigators...” a man dressed very casually. The first thing that comes to my mind is, the man looks like he works under cover. It’s 9:28. What’s going on? Several people are here. The female DEA agent is sitting in the courtroom, waiting. Patrick Dixon arrives. I overhear Dixon talking to the Judge’s clerk saying that he called Roger Rosen....that’s all I can hear.
I’m sitting on the right side of the benches, and a black female sheriff comes over to me, asks if I’m with the defense. I tell her I’m a member of the public, and she motions to me to sit over on the left side of the courtroom benches. I move to sit beside this female reporter and David Li. The woman turns to me and asks, “Outside in the hallway, earlier, were you writing down everything I said? I reply, “I don’t even know who you are.” She introduces herself and says, “I’m paranoid Harriet.” I introduce myself and explain that I’m writing about the trial for the crime forums.
Shelly Samuels! I didn’t recognize her! Her hair is much shorter, and it’s been highlighted. She’s wearing a great suit. She ran into the courtroom, dropped something off, said hello to to her attorneys and left just as quick. I see Brunon has arrived. The Judge is asking the defense to...” update me as to Mr. Cutler’s health...” but, the defense isn’t even prepared to answer this. They don’t know if he will still be out, and just assumed that court would start on Monday, as “..to the matter of record...” One of the attorney’s spoke to him. He didn’t feel good yesterday, but he’s feeling better today. The attorney said that they could call him to find out the status of his health. Dixon jumps up and the people, “ask that that be done as soon as possible...” In other words, call him, find out if he’s going to make court on Monday. The Judge orders the defense to get on that. Call him now, I think. Then the Judge says “I need to see counsel in chambers.”
The Court TV guys who control the cameras are still are not here. It’s now that I remember that I hadn’t turned off my cell phone yet. Carp! I turn it off and it makes a huge noise shutting off. The same, black female sheriff yells at me to turn off my cell phone. I tell her that’s what I’m doing. I’m totally embarrassed! The court’s young media relations person arrives. The original press release it appears, was for 1:30 pm, and that’s why several of the reporters left. Dateline came and left. Eric Leonard came and left. She’s telling Harriet and David that she called as many people as she had in her cell phone. The cameramen finally arrive.
The reporters talked about why it’s not on record, why didn’t they announce the reason the judge and counsel went into chambers. They both think that’s unusual. 9:52 am, court comes back in session. The Judge talks about what’s going to go on this afternoon, and it will depend on time. There are two separate matters. This is where the judge talks about “....possibility at some point, that a piece of evidence should have been turned over to the prosecution....” There are lots of ifs, and’s and buts... ”The second issue appears to be concerning sanctions against the defense. The Judge just received the reply motion from the defense this morning and he hasn’t read it yet. And that appears to be it. Court appears to be over for this morning. It’s barely 10:00 am.
It’s now that I notice that there are now three black camera boxes mounted on the wall. I see the judge, out of his robes, opening envelopes from the DEA agent and the other “investigator” (the one that was being introduced to someone else) is there, observing the envelope opening, too. It is regarding another case, and not Spector.
The reporters are all struggling with what to do. It’s 3.5 hours before court resumes. There is literally nothing to do in the immediate vicinity. There’s not that much in the way of good eating... besides, it’s 10 am... and, there isn’t any shopping near buy. It’s the one day that I really wish I had brought a book. If I had a book, I could just go down to the cafeteria on the ground floor and read. But I get what I think (at the time) is a “great” idea, lol...(oh boy) and that’s to take the train back and exit or two, and see if I can spot a shop or something to occupy me for the next 3.5 hours. I take the train back one station to Pershing Square, and that drops me off at Hill and 5th Street. There’s a newspaper vendor right at the entrance to the subway, and I buy an Los Angeles Times and a Daily News. But looking around, there’s virtually nothing in the way of shopping. I think at first I’ll go to Pershing Square to read the papers, thinking there might be some food vendors there or something. Nada. And, the place is virtually deserted. Those that are there are in sleeping bags or under newspapers. That’s when I have my idea to walk down to the garment district, and see if I can shop for some new fabric. I still have about three-quarters of a mile to reach the heart of the fabric district. If I paid more attention to the Dash system, I’m sure I could have just hopped on any bus to get me closer, but I don’t take the time to find a map. I decide to walk.
I head east on 5th Street to Broadway and turn south. I’m now entering the jewelry district. Virtually every store is either a jewelry/diamond store or a fast food asian restaurant. The air is very muggy, and I really start to feel the weight of those two newspapers in my chenille tote. When I finally reach 9th street, I head east again. Coming up on Los Angeles street, I’m passing in front of the California Mart Building. Looking across 9th Street, I see the “New Mart” has completely taken over the entire building. As I pass, I’m transported back in time to 1979 and my first job here in California. I was working in the internal audit department of Manufacturer’s Bank, which used to be on the ground floor of the New Mart Building. This was the bank that was started to serve the specific needs garment industry. Years later, the bank was purchased by a Japanese Bank, and “Mitsui” was added to it’s name. The bank was sold again and the Mitsui was taken off. Sometime within the last few years, the original main branch was closed, and the Figueroa “Corporate Office” became the main branch of the bank.
Across Los Angeles street from the New Mart Building, a film crew is in full swing in front of the 860 Cooper Building. It doesn’t appear to be a big film production, but they have taken up the entire corner in front and on the side of the building. I finally reach Michael Levine’s. Imagine a moderate sized grocery store where you can see from one end of the store to the other. And virtually the entire store is filled with isle after isle of fabric. Directly across the street from the main store is Michael Levine’s Home Decorating store. A little bit smaller than the main store, but filled to the brim with upholstery and drapery fabric. I’m headed for the main store today, because I’m always looking for unusual cotton prints for my “Market” line of bags, and for the hot/cold packs I make. I find two great asian prints and get six yards or each. On my way back to the court house, it feels like I’m walking two miles instead of the three-quarters it really is back to the Metro subway station. On top of the newspapers, I feel even more weighted down by 12 yards of fabric. As I wind my way back up the streets, I notice several buildings have big signs posted on them that say “FILMING” and a phone number to call.
Finally back on the 9th floor, I see Alan Parachini and Pat Kellyhttp://sprocket-trials.blogspot.com/2007/05/trial-notes-4-30-07.html from the court’s public relations department. They are waiting for the throng of reporter’s to arrive. LKB and and her blond assistant arrive, and they head down to the other end of the hall. Linda Deutsch and a very tall gangly reporter I only know by sight arrive. Another reporter, Michelle Caruso, makes it back from lunch, and this whole group chat with a short, elderly woman they know who appears to be wearing an employee badge of the courthouse. (I later find out her name is Jeanne.) It’s obviously someone from the court or possibly the DA’s office that they haven't seen in a while. It’s a waiting game in the hallway, and as reporters arrive back from lunch they all check in with the court’s public relations office woman. Eric Leonard from KFI arrives and talks to Linda Deutsch. Dominick Dunne greets Linda Deutsch. I think it's around 1:15 pm, and reporter David K. Li has been wondering to several who will listen, why this “show” isn’t getting started.
The group of defense lawyers heads down toward this end of the hall, but stop at the elevator hallway, apparently waiting for the rest of the defense team to arrive. I notice that I have ink all over my hands, and I want to get up to wash them but I wait just to make sure I’m going to be able to get a seat in the courtroom. The stone bench I’m sitting on outside the court is uneven and wobbly. A juror from another trial is sitting on the same bench with me, and wonders out loud, why they can’t design something more comfortable besides these stone benches. The defense team starts to move again down this way. Phil is not in the group, but there are lots of unknown faces hanging out in the hallway.
A quite elderly woman (apparently a friend of Jeanne) I barely recognize from the Blake criminal trial approaches me and asks if I post on WebSleuths. “Not any more I reply.” She then asks me if I post on Court TV. “Yes, I reply. She then says, “I heard that you were going to be here.” And that’s it. No polite reintroductions; she just walks back over to her friend, who was the older woman chatting it up with several of the reporters. Ed, the prosecutions assistant arrives. There are a lot more individuals from the public who arrive, and I wonder if I’m going to get a seat. Nothing to worry about. I finally get in.
It’s Shelly Samuels! Shelly Samuels is here, along with several other individuals who appear to be attorneys. Is that LESLIE ABRAMSON!!!!???? She’s milling around with the defense attorneys. What in the world is she doing here? I over hear someone whisper that she represented Phil for nine months. So this must be a big discovery issue. The judge finally takes the bench. Spector is not here, taking advantage of hs 977 waiver. The judge starts to explain why everyone is here. Sometime within the last 10 days, someone contacted the district attorney’s office who was a former law clerk for Mr. Shapiro. Robert Shapiro was the first attorney that that Phil Spector hired. This set off alarm bells with the district attorney’s office, and they immediately contacted the judge.
The judge, sought the intervention of LAPD (who was not involved in the case) for discovery, and he appointed a Special Master, Professor Lori Levinson at Laloya University to conduct an investigation. This was to determine if the information this individual wanted to pass on was privileged information, or if it did concern some information that was not privileged. Professor Levinson kept in verbal communication with the judge, giving him updates. And within those discussions, Professor Levinson determined that there was something about some possible evidence that had been moved. The judge said he had an informal meeting with parties, and asked the prosecution if they had seen this “evidence.” They had not. So that’s what we’re here to find out if any of this information exists. Some have been subpoenaed; some are here voluntarily.
Mr. Brunon: “This appears to be...” He goes on that he’s concerned about the fact that conversation between referee and witness... that there’s a potential for prejudice against Phil Spector..... We don’t know anything. Just seems to me that we shouldn’t have this in a public forum. We ought not to air all this in a public forum.
Brunon wants this special hearing all in camera.
Judge: I believe this is no more than.... Ms. Abramson! Don’t shake you head at me...”
Leslie Abramson starts to talk, and one of the defense attorney’s stands up and says, “She’s assisting us....”
The judge speaks again. He appointed a Special Master. “If any evidence is moved, concealed, tampered with, not turned over...”
There’s more attorney’s talking and Leslie Abramson lifts up her arms, and/or makes a gesture and the judge says directly to Ms. Abramson, “Easy on the gestures.” Abramson replies, “You want me not to be Jewish?” The attorney for the witness who has come forward, wants to confer in camera with the judge. All the attorneys want to go in, but the judge says no. Two attorney’s from each side, the witness and his representative. Abramson wants to know if she can stand in the hall and listen, the judge says no.
They all meet in the judge’s chambers for the in camera meeting.
So this is why Shelly Samuels and all these attorneys from the DA’s office are here. It’s a tricky part of law. There may be officers of the court who have done something illegal. Sitting next to me in the back row, are three young journalism students from a local college. They are so young looking, I’m surprised they are in college; they look like they are in high school. In the morning session, they were in another courtroom listening to the Chester Turner case. This is a case where Turner is charged with killing (I believe) eleven women from 1987 to 1996. With the last killing Turner was caught, and he’s now finally on trial.
During the in camera meeting, I discuss today’s proceedings with the journalism students, and try my best to explain what’s going on, even though I’m a little confused myself. The in camera meeting is over and the judge takes the bench. This witness is in the courtroom and you can tell right away he does not want to be there. He is trying everything he can, to get out of testifying today. The judge says to the witness and his attorney, “That’s why you are here. There’s no criminal liability on your behalf. I’m not giving him immunity. If he chooses not to testify.....” The witness’s attorney tries to get his client out of taking the stand and says to the judge, “So, calling this an ordinary witness is not the case. We were misled as to why we were brought here today. I don’t think that is fair to Mr. Diamond (this is the witnesses name). Diamond’s attorney says to the judge, “I was never called by Lori Levinson...” And the judge immediately snaps back, “Don’t impugn Professor Levinson....!” The judge goes onto say, “We have decided there are no fifth amendment issues here.” (for his client)
You can tell the judge is getting somewhat exasperated. “You approached (the DA’s office). You said you have information! Take the stand and be sworn in! Fidler is irritated with this witness.
The prosecution starts to question the witness, Greg Diamond. Even a simple question about was he working for Bob Shapiro he can’t seem to answer without tap dancing around the question. At that moment in time, were you working in some capacity? Prior to that date, were you a law clerk of Bob Shapiro? Diamond finally answers, “Yes. I was a clerk and an intern.” He’s asked to name all the defense team at the time, and Diamond looks to the judge and asks, “Can I take the fifth?” The judge replies no. And Diamond is asked if, Sara Caplan, Dr. Michael Baden, Dr. Henry Lee, and other individuals, I think they ask if Bill Pavlic (sp?) was a member of the “defense team.”
Patrick Dixon: Who was Sara Caplan? Was she an employee of the bar?
Diamond: Yes.
Alan Jackson: Was it your understanding that Robert Shapiro represented Phil Spector?
Diamond: Yes.
Diamond is asked who all was there at Phil Spector’s house, right after the crime scene was released by the police to the defense.
Dixon: Did law enforcement leave there, and leave the defense team alone?
Diamond: Yes.
Dixon: Did you call the District Attorney’s office?
Diamond: Yes.
Dixon: Did you have a conversation with Alan Jackson?
Diamond: Yes.
Dixon: How long were you there with the defense team?
Diamond: I can’t recall.
Dixon: Three hours? Four hours?
Diamond: It was throughout the evening.
Judge: Were you doing anything to help Mr. Shapiro?
Diamond: I was not in a working capacity mode.
Judge: We have to hold... determine, why he was there; what his role was.
Getting this witness to answer questions is like pulling teeth from an pissed off cat. It’s unbelievable how much he is squirming on the stand, and being evasive. The witness is stalling in any way he can. Mr. Brunon interrupts and says something to the effect, “We need to know... get to evidence... if the people are conceding...
Judge: What was your understanding as to why you were there?
Diamond: I was an observer.
Judge (or Dixon?) Did Shapiro ask you to observe?
Diamond: No. I was there to observe. I was just there to observe. I was originally asked to go to Mr. Shapiro’s office.
Judge: We will assume he was there in a privileged capacity.
Diamond says that he did receive paychecks (from Bob Shapiro). More discussion as to whether or not what he observed or whatever was done in his presence is privileged.
Dixon: How long were you there?
Diamond: An estimate only... it could be three hours; maybe more.
Dixon: Did you see anyone pick up anything.
Now the witness is really getting squirmy on the stand.
Diamond: Your honor, may I ask again to my fifth amendment rights?
Judge: Certainly. There is no fifth amendment issue here.
Diamond: Can I have a continuance in this matter?
Judge: No sir.
Diamond confers with his attorney. He appears to be afraid to say what he needs to say. Maybe he’s afraid he’s going to be charged at a later date? Everyone is waiting on pins and needles to what he is going to say. Mr. Brunon addresses the judge, and the judge, with a bit of a smirk on his face makes the comment of Mr. Brunon’s concern for him. It’s funny because Mr. Brunon doesn’t represent Greg Diamond. Something is said and I miss it, all except the judge’s reply:
Judge: Any part of a rat’s anatomy. We are trying to approach real carefully.
The judge now gets tough with the witness.
Judge: Did you observe (someone pick up an item?)
Diamond: There was an item. (snip) It was whitish, white and quite small.
Dixon: Where were you when you saw this item picked up?
Diamond: I ws in the entry way, where (it) was found.
Inside, my mind is whirling. If this is all true, this could be huge.
Dixon: Who picked up this item?
Diamond: One of the members (of the defense team, who’s an attorney)
Dixon: Who picked it up?
Diamond: It was Ms. Caplan.
Dixon: After you saw this, what happened next.
Diamond: The item was turned over......
Dixon: to whom?
Diamond: Dr. Baden.
Dixon: Was there any conversation between the two?
Diamond: I don’t recall. (snip) He looked at the item.
Dixon: What happened next?
Diamond: As far as the item?
Dixon: Yes.
Dixon is now asking about the private investigator, Bill Pavlic, and if Diamond saw the private investigator take the item.
Diamond: I don’t recall.
Dixon: Were you contacted by officers of the LAPD?
Diamond: Yes.
Dixon: Did they interview you?
Diamond: Yes.
Mr. Brunon objects. He says something like, “based on questions...” but the judge shuts the defense down.
Dixon: Didn’t you tell detectives... during your interview with robbery~homicide, you saw Bill Pavlic take possession of the item?
Diamond: I don’t recall.
Dixon: didn’t you tell LAPD officers that he, (Pavlic) placed it in his pocket?
Diamond: No.
Judge: You heard words?
Diamond: Yes (snip) I observed that it was identified.
Judge: Somebody talked about what it was?
Diamond: Yes.
Dixon: When was the last time you saw it?
Diamond: I don’t recall.
Dixon: At some earlier time, did you tell someone...
Judge: You have no present recollection?
Diamond: I’m trying to answer as truthfully as I can.
Judge: Tell me everyone that you can recall who (may have touched the item)
Diamond: At this time... it’s a little cloudy...
It was seen and it was observed. <--- can="" from="" my="" nbsp="" notes="" p="" said="" t="" tell="" this.="" who="">Diamond: I would like to answer; it’s a very serious question.
Judge: All my questions are serious. Just tell me who. Answer this question.
The witness doesn’t answer.
Dixon: Why can’t you answer. Please tell us.
There is a break or something. I can’t tell from my notes, and I’m vaguely remembering at this point, but at some point there is a break, or another in camera conference, and the Judge says that although the witness can’t claim the fifth as privilege, the judge did check case law, and he is required to offer to the witness to go in camera, to hear from the witness in camera to see if there is an issue of fifth amendment. So the judge and the witness, his attorney and the court reporter all go in camera.
It’s 3:15. There is quite a bit of whispering and waiting in the courtroom. The judge emerges from in camera and says, “There is no basis to claim privilege. So, the witness has to continue to answer questions.
Dixon: can you describe to the best of your ability.....
Diamond: An item was found lodged between the carpet and the staircase. (snip) The room is not very large.
I’m trying to make sense of my notes here, and also from memory. More questions are asked.
Diamond: Dr. Baden made mention that it was a fragment of a tooth.
More questions, and the witness testifies about Dr. Baden identifying the object as tooth material.
Dixon: Your memory was fuzzy?
Diamond: no.
Dixon: Didn’t you tell them.... (LAPD????)
Diamond: It was passed around.
Dixon asks more questions.
Diamond: Everyone had seen the item. I know Sara, Dr. Baden, Bill... all had seen it.
Dixon tries to get the witness to pin down the path of the item from person to person. But Diamond can’t precisely say who got it after Dr. Baden. Just that it was passed around. Dixon asks who on the defense team, who all had it?
Diamond: Everyone was mulling around as to what it was.
Dixon: Could you tell us was it passed? Were there other statements? What was alleged to be a piece of tooth?
Diamond: That’s the only statement that stays in my mind.
Dixon: Did you tell LAPD....
Diamond: No.
Patrick Dixon is trying to get the witness to say that Bill Pavlic had the item last. But he’s saying the detectives asked him that, but he’s not sure if Bill ever had it.
Dixon: When was the last time you saw the item? Who had it last?
Diamond: I don’t recall who might have had it the last time. Sara found it. Dr. Baden identified it. Bill Pavlic......
Dixon: Do you have any idea what happened to it?
Diamond: No.
Dixon: Do you know who has it?
Diamond: No.
There must be a break here, or something, because I have in my notes that Leslie Abramson says something. The attorney’s are conferring with the judge. It’s now that I’m able to lean forward to see the name on the badge of the elderly woman who was so friendly to the reporters. The attorneys want to ask the witness questions in another direction. Someone says, “I think this came out in the Vanity Fair article.
Dixon: Nothing further at this time.
Now, one of Spector’s defense attorney’s questions the witness. I find out later that this attorney is Plourd or Flourd.... I’ll have to check the online articles for his exact last name and the spelling.
Plourd: What is your current occupation?
Diamond: Paralegal secretary
Plourd: When did you pass the bar exam?
Diamond: I never showed up to take the exam.
Plourd: Do you have any projects you are trying to sell?
Diamond: I’m a writer, and I do have a project I sold to CBS.
Plourd: Any (projects that are) legal matters to entertainment?
Diamond: That one I did was a legal show.
Plourd: How did you get to the Alhambra property?
Diamond: I was in Sara’s car.
Plourd: Who else was in the car?
Diamond: In that car? Just us.
Plourd then asks him about other vehicles on the property, and if there was a limo present.
Diamond: Yes, there was a limo present.
Plourd then asks him about what other individuals were there and/or how they got there.
Diamond: I’m certain there were other people... I just don’t recall.
As I’m listening to this testimony, I don’t know what to believe. Is this all some guys need for attention? Is this all just the idea of some guy looking to sell a story for a show? ??? Another individual, Stan White is brought in to stand in the gallery.
Plourd: Do you recognize this individual?
Diamond: I don’t recall.
It appears for right now, they are done with this witness. Diamond says to the judge that he won’t be in town tomorrow. The judge tells the witness that he can’t leave the Los Angeles area, that he is subject to recall. He will be available to the court. The defense asks to bring in Baden, and the prosecution agrees. Dr. Baden had flown in from New York, and they wanted to try to get him back to New York as soon as possible, and not hold him over in Los Angeles another day. Dr. Baden is brought in, and Plourd starts asking him some questions.
Plourd establishes through questions who Dr. Baden is and where he is employed. If I’m reading my notes correctly, Dr. Baden is employed by the New York State Police as their chief pathologist. Plourd then has Baden go over his credentials, and some of the famous cases he’s worked on, such as John Belushi.
Plourd: In your career, how many times have you been to a death scene?
Baden: Thousands of times.
Dr. Baden says that Robert Shapiro hired him to work on the case. Dr. Baden states that he remembers Sara Caplan being at the scene, along with Dr. Lee and Bob Shapiro.
Plourd: Did you collect anything at the scene?
Baden: (very emphatically) No.
Plourd: Did you observe Sara Caplan (pick something up, or) give you anything to look at?
Baden: No.
Plourd: Did you make a comment, on anything, to make a determination (of anything) being tooth material?
Baden: No. That is beyond my scope.
Plourd: Did you see anybody else pick up an object.
Baden: No.
Plourd: Did you see Mr. Pavlic (with something)?
Baden: No. I didn’t see anyone pick up anything. I did not. I was just there to observe the death scene.
Alan Jackson then questions Dr. Baden.
Jackson: When were you contacted (hired by Robert Shapiro)?
Baden: Shortly after the death occurred.
Objection! Sustained!
Jackson: How much were you paid?
Baden: I don’t recall. My secretary would have (that information). I was called. (I’m currently paid) approximately about $7,500 to observe an autopsy. It was less then.
Just then, Leslie Abramson’s phone goes off. She yells out to the judge, “Sorry!!” and then leaves the courtroom. The prosecution then brings in Greg Diamond and asks Dr. Baden if he recognizes him. Same with Stan White. Dr. Baden did not recall either of these individuals at the crime scene and says he doesn’t recognize either of them.
Baden: They could have been there, but I don’t recall.
Jackson: Do you remember if members of the defense team (were there), Robert Shapiro, Sara Caplan, Investigator Bill Pavlic, Dr. Lee?
Baden: They may have. I just don’t remember.
Dr. Baden does remember Dr. Lee being at the crime scene. Dr. Baden denies what was claimed to have been found, and denies ever having identified something as part of a tooth.
Baden: (It) “never happened. Because I'm not a forensic dentist and I don't have that expertise.”
Jackson is blown away by this answer. He doesn’t have the expertise to identify possible tooth material? Isn’t he a medical examiner? Baden says that, “I can recognize and intact tooth (at autopsy) but a fragment? No. Not a piece at a scene. That’s Dr. Lee’s area of expertise. But certainly at the autopsy.”
Jackson then asks him about the broken nail, and Baden says that he couldn’t determine a broken nailat a death scene, but at an autopsy, yes. The two sides now argue to the judge about a specific point, and Jackson want to show that something “goes to bias.” I think it’s here that Baden says, (and I’m not sure from my notes), “I assume she didn't have a broken nail at work.” Jackson is done questioning and Plourd takes over.
Plourd: Ever been accused of mishandling evidence?
Baden: No.
Plourd: Did you ever find evidence?
Baden talks about finding a bullet at the scene when “Christian Brando died.” This is clearly a misstatement by Dr. Baden because Christian Brando was not the individual who died. Christian Brando was the individual who killed his sister’s boyfriend.
Baden: In my examination (of the Brando case) I found a bullet under a rug. I didn’t collect the item. I notified law enforcement.
Plourd: Do you recognize Leslie Abramson?
Baden: Leslie Abramson, yes.
Baden is asked when was the first time he was asked to put his conclusions on paper. I think this question is by Jackson. I believe from memory, it is here that Baden is asked about his conclusions about the crime scene. Baden is adamant that Lana Clarkson killed herself, and one of the things he is using to come to that conclusion is her broken thumb nail. He’s adamant about that, even though Jackson raises some good questions as to how he came to that conclusion.
It’s getting very late, probably past 4pm. Several individuals who have been waiting out in the hall, Robert Shapiro, Sara Caplan and others. The judge orders Stan White and Greg Diamond back to court tomorrow at 9:30am Sara Caplan and Robert Shapiro would be on 1 hours call/notice to appear. Bill Pavlic would be ordered to be at court at 10am tomorrow.
Outside the courtroom in the hallway, Linda Deutsch, Dr. Baden and the woman “Jean” all chat and catch up. In the elevator down, reporter John Spano tries to question Stan White about what he knows about what went on today. Spano was not in court all day, and missed most of what went on.
As I leave the courthouse, I’m really, really wanting to come back the next day to see what the next witnesses have to say about this supposedly found “tooth material.” But I can’t. I have clients I have to see. I’ll just have to find the time to watch Court TV Extra on the internet, and see how the questioning will unfold that way.
I hope you have enjoyed my trial notes. Please understand that my notes should not be used in place of a more exact transcript of the trial. Although I tried to be as accurate as possible when I was quoting someone, I’m sure you will find some statements that do not exactly match Court TV’s Extra coverage.
The bus breaks very hard just past the Laurel Canyon exit and several passengers barely keep their balance. I reached out to stable a man in front of me. Several of the passenger exchange looks and gasps of exclamation, and nervous laughter. At the North Hollywood hub, I really push myself to try to lengthen my stride and walk as fast as I can to keep up with the other passengers. I don’t want to miss a train, but I’m also really feeling my years and the extra pounds I’ve put on since getting married. Downstairs, I’m fortunate I find a seat in the car I enter.
Each time I ride the train, I’m always trying to look out the reflective type windows and peer into the tunnels. I’m curious about the whole construction and design. On one trip, I count the number of tunnel lights, and look for the tiny service walkways that line the walls of the tunnels. I find the whole construction fascinating. I really pay attention this time when the train leaves the station, and I can feel it switching to the south bound track. A few stations down the line, a man in a nice gray suit with a battered leather briefcase gets on and takes the seat next to me. He’s reading a book about Thurgood Marshall. I ask him if it’s any good. He replies, “Yes, it’s by the same author who wrote “Eye on the Prize.” I kick myself for not bringing a book today. I purposefully removed as much as I possibly can from my tote to keep my handbag as light as possible, because of all the walking I’m doing taking the metro.
At the courthouse, the public security screening lines are pretty long today. It’s then that I notice that one of the security scanners is not being used. Usually there are three public lines, and a separate one for employees. Today, only two public scanners are in operation. (I always set off the alarm bells and have to lift up the cuffs of my jeans for the sheriffs. I think it’s something in my shoes that triggers them.) As I clear the 9th floor security station and round the corner, I don’t see the usual rush of reporters. I don’t know if I’ve come down here in vain. No Linda Deutsch; no Dominick Dunne; no Eric Leonard, or many of the other familiar faces that I’ve come to recognize, but just don’t know their names. I know I saw Russ in the parking lot, but he’s not up here.
A woman I saw flash a badge and breeze by security downstairs and rode up on the elevator beside me is waiting in the hallway along with several other unfamiliar faces. In the elevator, she was juggling holding several manila envelopes in the elevator, and I glanced over to read what it said on the outside of her leather billfold she had flashed to security: “Drug Enforcement Agency,” I see her enter Judge Fidler’s courtroom, and I wonder if what she’s delivering relates to Spector’s case, or some other case entirely.
I finally see a reporter, David K. Li, and two other female reporters I’ve seen before. It’s 9:15 am, and I see several people entering and exiting Fidler’s court, but no one I recognize or have seen before. I finally see Linda Kenny Baden arrive. She’s with another blond woman, possibly an associate, and they are both dressed in black. Kenney Baden doesn’t look that great in black, I’m sorry to say. It appears there is some sort of delay, that is being talked about by the other people with Kenney Baden. I over hear one of the group say to a reporter, “We were all asked to be here at 9:30 am.”
The prosecution’s clerk, Ed, and DDA Alan Jackson arrive, with a rolling cart that has their many files on the case. A reporter asks Alan a question I miss writing down and Alan replies, “I don’t know.” The few reporters that are here, and the public are allowed inside the courtroom, and I try to watch the interplay between individuals I don’t recognize. I observe two suited men who might be attorneys talking. One introduces the other to “...one of our investigators...” a man dressed very casually. The first thing that comes to my mind is, the man looks like he works under cover. It’s 9:28. What’s going on? Several people are here. The female DEA agent is sitting in the courtroom, waiting. Patrick Dixon arrives. I overhear Dixon talking to the Judge’s clerk saying that he called Roger Rosen....that’s all I can hear.
I’m sitting on the right side of the benches, and a black female sheriff comes over to me, asks if I’m with the defense. I tell her I’m a member of the public, and she motions to me to sit over on the left side of the courtroom benches. I move to sit beside this female reporter and David Li. The woman turns to me and asks, “Outside in the hallway, earlier, were you writing down everything I said? I reply, “I don’t even know who you are.” She introduces herself and says, “I’m paranoid Harriet.” I introduce myself and explain that I’m writing about the trial for the crime forums.
Shelly Samuels! I didn’t recognize her! Her hair is much shorter, and it’s been highlighted. She’s wearing a great suit. She ran into the courtroom, dropped something off, said hello to to her attorneys and left just as quick. I see Brunon has arrived. The Judge is asking the defense to...” update me as to Mr. Cutler’s health...” but, the defense isn’t even prepared to answer this. They don’t know if he will still be out, and just assumed that court would start on Monday, as “..to the matter of record...” One of the attorney’s spoke to him. He didn’t feel good yesterday, but he’s feeling better today. The attorney said that they could call him to find out the status of his health. Dixon jumps up and the people, “ask that that be done as soon as possible...” In other words, call him, find out if he’s going to make court on Monday. The Judge orders the defense to get on that. Call him now, I think. Then the Judge says “I need to see counsel in chambers.”
The Court TV guys who control the cameras are still are not here. It’s now that I remember that I hadn’t turned off my cell phone yet. Carp! I turn it off and it makes a huge noise shutting off. The same, black female sheriff yells at me to turn off my cell phone. I tell her that’s what I’m doing. I’m totally embarrassed! The court’s young media relations person arrives. The original press release it appears, was for 1:30 pm, and that’s why several of the reporters left. Dateline came and left. Eric Leonard came and left. She’s telling Harriet and David that she called as many people as she had in her cell phone. The cameramen finally arrive.
The reporters talked about why it’s not on record, why didn’t they announce the reason the judge and counsel went into chambers. They both think that’s unusual. 9:52 am, court comes back in session. The Judge talks about what’s going to go on this afternoon, and it will depend on time. There are two separate matters. This is where the judge talks about “....possibility at some point, that a piece of evidence should have been turned over to the prosecution....” There are lots of ifs, and’s and buts... ”The second issue appears to be concerning sanctions against the defense. The Judge just received the reply motion from the defense this morning and he hasn’t read it yet. And that appears to be it. Court appears to be over for this morning. It’s barely 10:00 am.
It’s now that I notice that there are now three black camera boxes mounted on the wall. I see the judge, out of his robes, opening envelopes from the DEA agent and the other “investigator” (the one that was being introduced to someone else) is there, observing the envelope opening, too. It is regarding another case, and not Spector.
The reporters are all struggling with what to do. It’s 3.5 hours before court resumes. There is literally nothing to do in the immediate vicinity. There’s not that much in the way of good eating... besides, it’s 10 am... and, there isn’t any shopping near buy. It’s the one day that I really wish I had brought a book. If I had a book, I could just go down to the cafeteria on the ground floor and read. But I get what I think (at the time) is a “great” idea, lol...(oh boy) and that’s to take the train back and exit or two, and see if I can spot a shop or something to occupy me for the next 3.5 hours. I take the train back one station to Pershing Square, and that drops me off at Hill and 5th Street. There’s a newspaper vendor right at the entrance to the subway, and I buy an Los Angeles Times and a Daily News. But looking around, there’s virtually nothing in the way of shopping. I think at first I’ll go to Pershing Square to read the papers, thinking there might be some food vendors there or something. Nada. And, the place is virtually deserted. Those that are there are in sleeping bags or under newspapers. That’s when I have my idea to walk down to the garment district, and see if I can shop for some new fabric. I still have about three-quarters of a mile to reach the heart of the fabric district. If I paid more attention to the Dash system, I’m sure I could have just hopped on any bus to get me closer, but I don’t take the time to find a map. I decide to walk.
I head east on 5th Street to Broadway and turn south. I’m now entering the jewelry district. Virtually every store is either a jewelry/diamond store or a fast food asian restaurant. The air is very muggy, and I really start to feel the weight of those two newspapers in my chenille tote. When I finally reach 9th street, I head east again. Coming up on Los Angeles street, I’m passing in front of the California Mart Building. Looking across 9th Street, I see the “New Mart” has completely taken over the entire building. As I pass, I’m transported back in time to 1979 and my first job here in California. I was working in the internal audit department of Manufacturer’s Bank, which used to be on the ground floor of the New Mart Building. This was the bank that was started to serve the specific needs garment industry. Years later, the bank was purchased by a Japanese Bank, and “Mitsui” was added to it’s name. The bank was sold again and the Mitsui was taken off. Sometime within the last few years, the original main branch was closed, and the Figueroa “Corporate Office” became the main branch of the bank.
Across Los Angeles street from the New Mart Building, a film crew is in full swing in front of the 860 Cooper Building. It doesn’t appear to be a big film production, but they have taken up the entire corner in front and on the side of the building. I finally reach Michael Levine’s. Imagine a moderate sized grocery store where you can see from one end of the store to the other. And virtually the entire store is filled with isle after isle of fabric. Directly across the street from the main store is Michael Levine’s Home Decorating store. A little bit smaller than the main store, but filled to the brim with upholstery and drapery fabric. I’m headed for the main store today, because I’m always looking for unusual cotton prints for my “Market” line of bags, and for the hot/cold packs I make. I find two great asian prints and get six yards or each. On my way back to the court house, it feels like I’m walking two miles instead of the three-quarters it really is back to the Metro subway station. On top of the newspapers, I feel even more weighted down by 12 yards of fabric. As I wind my way back up the streets, I notice several buildings have big signs posted on them that say “FILMING” and a phone number to call.
Finally back on the 9th floor, I see Alan Parachini and Pat Kellyhttp://sprocket-trials.blogspot.com/2007/05/trial-notes-4-30-07.html from the court’s public relations department. They are waiting for the throng of reporter’s to arrive. LKB and and her blond assistant arrive, and they head down to the other end of the hall. Linda Deutsch and a very tall gangly reporter I only know by sight arrive. Another reporter, Michelle Caruso, makes it back from lunch, and this whole group chat with a short, elderly woman they know who appears to be wearing an employee badge of the courthouse. (I later find out her name is Jeanne.) It’s obviously someone from the court or possibly the DA’s office that they haven't seen in a while. It’s a waiting game in the hallway, and as reporters arrive back from lunch they all check in with the court’s public relations office woman. Eric Leonard from KFI arrives and talks to Linda Deutsch. Dominick Dunne greets Linda Deutsch. I think it's around 1:15 pm, and reporter David K. Li has been wondering to several who will listen, why this “show” isn’t getting started.
The group of defense lawyers heads down toward this end of the hall, but stop at the elevator hallway, apparently waiting for the rest of the defense team to arrive. I notice that I have ink all over my hands, and I want to get up to wash them but I wait just to make sure I’m going to be able to get a seat in the courtroom. The stone bench I’m sitting on outside the court is uneven and wobbly. A juror from another trial is sitting on the same bench with me, and wonders out loud, why they can’t design something more comfortable besides these stone benches. The defense team starts to move again down this way. Phil is not in the group, but there are lots of unknown faces hanging out in the hallway.
A quite elderly woman (apparently a friend of Jeanne) I barely recognize from the Blake criminal trial approaches me and asks if I post on WebSleuths. “Not any more I reply.” She then asks me if I post on Court TV. “Yes, I reply. She then says, “I heard that you were going to be here.” And that’s it. No polite reintroductions; she just walks back over to her friend, who was the older woman chatting it up with several of the reporters. Ed, the prosecutions assistant arrives. There are a lot more individuals from the public who arrive, and I wonder if I’m going to get a seat. Nothing to worry about. I finally get in.
It’s Shelly Samuels! Shelly Samuels is here, along with several other individuals who appear to be attorneys. Is that LESLIE ABRAMSON!!!!???? She’s milling around with the defense attorneys. What in the world is she doing here? I over hear someone whisper that she represented Phil for nine months. So this must be a big discovery issue. The judge finally takes the bench. Spector is not here, taking advantage of hs 977 waiver. The judge starts to explain why everyone is here. Sometime within the last 10 days, someone contacted the district attorney’s office who was a former law clerk for Mr. Shapiro. Robert Shapiro was the first attorney that that Phil Spector hired. This set off alarm bells with the district attorney’s office, and they immediately contacted the judge.
The judge, sought the intervention of LAPD (who was not involved in the case) for discovery, and he appointed a Special Master, Professor Lori Levinson at Laloya University to conduct an investigation. This was to determine if the information this individual wanted to pass on was privileged information, or if it did concern some information that was not privileged. Professor Levinson kept in verbal communication with the judge, giving him updates. And within those discussions, Professor Levinson determined that there was something about some possible evidence that had been moved. The judge said he had an informal meeting with parties, and asked the prosecution if they had seen this “evidence.” They had not. So that’s what we’re here to find out if any of this information exists. Some have been subpoenaed; some are here voluntarily.
Mr. Brunon: “This appears to be...” He goes on that he’s concerned about the fact that conversation between referee and witness... that there’s a potential for prejudice against Phil Spector..... We don’t know anything. Just seems to me that we shouldn’t have this in a public forum. We ought not to air all this in a public forum.
Brunon wants this special hearing all in camera.
Judge: I believe this is no more than.... Ms. Abramson! Don’t shake you head at me...”
Leslie Abramson starts to talk, and one of the defense attorney’s stands up and says, “She’s assisting us....”
The judge speaks again. He appointed a Special Master. “If any evidence is moved, concealed, tampered with, not turned over...”
There’s more attorney’s talking and Leslie Abramson lifts up her arms, and/or makes a gesture and the judge says directly to Ms. Abramson, “Easy on the gestures.” Abramson replies, “You want me not to be Jewish?” The attorney for the witness who has come forward, wants to confer in camera with the judge. All the attorneys want to go in, but the judge says no. Two attorney’s from each side, the witness and his representative. Abramson wants to know if she can stand in the hall and listen, the judge says no.
They all meet in the judge’s chambers for the in camera meeting.
So this is why Shelly Samuels and all these attorneys from the DA’s office are here. It’s a tricky part of law. There may be officers of the court who have done something illegal. Sitting next to me in the back row, are three young journalism students from a local college. They are so young looking, I’m surprised they are in college; they look like they are in high school. In the morning session, they were in another courtroom listening to the Chester Turner case. This is a case where Turner is charged with killing (I believe) eleven women from 1987 to 1996. With the last killing Turner was caught, and he’s now finally on trial.
During the in camera meeting, I discuss today’s proceedings with the journalism students, and try my best to explain what’s going on, even though I’m a little confused myself. The in camera meeting is over and the judge takes the bench. This witness is in the courtroom and you can tell right away he does not want to be there. He is trying everything he can, to get out of testifying today. The judge says to the witness and his attorney, “That’s why you are here. There’s no criminal liability on your behalf. I’m not giving him immunity. If he chooses not to testify.....” The witness’s attorney tries to get his client out of taking the stand and says to the judge, “So, calling this an ordinary witness is not the case. We were misled as to why we were brought here today. I don’t think that is fair to Mr. Diamond (this is the witnesses name). Diamond’s attorney says to the judge, “I was never called by Lori Levinson...” And the judge immediately snaps back, “Don’t impugn Professor Levinson....!” The judge goes onto say, “We have decided there are no fifth amendment issues here.” (for his client)
You can tell the judge is getting somewhat exasperated. “You approached (the DA’s office). You said you have information! Take the stand and be sworn in! Fidler is irritated with this witness.
The prosecution starts to question the witness, Greg Diamond. Even a simple question about was he working for Bob Shapiro he can’t seem to answer without tap dancing around the question. At that moment in time, were you working in some capacity? Prior to that date, were you a law clerk of Bob Shapiro? Diamond finally answers, “Yes. I was a clerk and an intern.” He’s asked to name all the defense team at the time, and Diamond looks to the judge and asks, “Can I take the fifth?” The judge replies no. And Diamond is asked if, Sara Caplan, Dr. Michael Baden, Dr. Henry Lee, and other individuals, I think they ask if Bill Pavlic (sp?) was a member of the “defense team.”
Patrick Dixon: Who was Sara Caplan? Was she an employee of the bar?
Diamond: Yes.
Alan Jackson: Was it your understanding that Robert Shapiro represented Phil Spector?
Diamond: Yes.
Diamond is asked who all was there at Phil Spector’s house, right after the crime scene was released by the police to the defense.
Dixon: Did law enforcement leave there, and leave the defense team alone?
Diamond: Yes.
Dixon: Did you call the District Attorney’s office?
Diamond: Yes.
Dixon: Did you have a conversation with Alan Jackson?
Diamond: Yes.
Dixon: How long were you there with the defense team?
Diamond: I can’t recall.
Dixon: Three hours? Four hours?
Diamond: It was throughout the evening.
Judge: Were you doing anything to help Mr. Shapiro?
Diamond: I was not in a working capacity mode.
Judge: We have to hold... determine, why he was there; what his role was.
Getting this witness to answer questions is like pulling teeth from an pissed off cat. It’s unbelievable how much he is squirming on the stand, and being evasive. The witness is stalling in any way he can. Mr. Brunon interrupts and says something to the effect, “We need to know... get to evidence... if the people are conceding...
Judge: What was your understanding as to why you were there?
Diamond: I was an observer.
Judge (or Dixon?) Did Shapiro ask you to observe?
Diamond: No. I was there to observe. I was just there to observe. I was originally asked to go to Mr. Shapiro’s office.
Judge: We will assume he was there in a privileged capacity.
Diamond says that he did receive paychecks (from Bob Shapiro). More discussion as to whether or not what he observed or whatever was done in his presence is privileged.
Dixon: How long were you there?
Diamond: An estimate only... it could be three hours; maybe more.
Dixon: Did you see anyone pick up anything.
Now the witness is really getting squirmy on the stand.
Diamond: Your honor, may I ask again to my fifth amendment rights?
Judge: Certainly. There is no fifth amendment issue here.
Diamond: Can I have a continuance in this matter?
Judge: No sir.
Diamond confers with his attorney. He appears to be afraid to say what he needs to say. Maybe he’s afraid he’s going to be charged at a later date? Everyone is waiting on pins and needles to what he is going to say. Mr. Brunon addresses the judge, and the judge, with a bit of a smirk on his face makes the comment of Mr. Brunon’s concern for him. It’s funny because Mr. Brunon doesn’t represent Greg Diamond. Something is said and I miss it, all except the judge’s reply:
Judge: Any part of a rat’s anatomy. We are trying to approach real carefully.
The judge now gets tough with the witness.
Judge: Did you observe (someone pick up an item?)
Diamond: There was an item. (snip) It was whitish, white and quite small.
Dixon: Where were you when you saw this item picked up?
Diamond: I ws in the entry way, where (it) was found.
Inside, my mind is whirling. If this is all true, this could be huge.
Dixon: Who picked up this item?
Diamond: One of the members (of the defense team, who’s an attorney)
Dixon: Who picked it up?
Diamond: It was Ms. Caplan.
Dixon: After you saw this, what happened next.
Diamond: The item was turned over......
Dixon: to whom?
Diamond: Dr. Baden.
Dixon: Was there any conversation between the two?
Diamond: I don’t recall. (snip) He looked at the item.
Dixon: What happened next?
Diamond: As far as the item?
Dixon: Yes.
Dixon is now asking about the private investigator, Bill Pavlic, and if Diamond saw the private investigator take the item.
Diamond: I don’t recall.
Dixon: Were you contacted by officers of the LAPD?
Diamond: Yes.
Dixon: Did they interview you?
Diamond: Yes.
Mr. Brunon objects. He says something like, “based on questions...” but the judge shuts the defense down.
Dixon: Didn’t you tell detectives... during your interview with robbery~homicide, you saw Bill Pavlic take possession of the item?
Diamond: I don’t recall.
Dixon: didn’t you tell LAPD officers that he, (Pavlic) placed it in his pocket?
Diamond: No.
Judge: You heard words?
Diamond: Yes (snip) I observed that it was identified.
Judge: Somebody talked about what it was?
Diamond: Yes.
Dixon: When was the last time you saw it?
Diamond: I don’t recall.
Dixon: At some earlier time, did you tell someone...
Judge: You have no present recollection?
Diamond: I’m trying to answer as truthfully as I can.
Judge: Tell me everyone that you can recall who (may have touched the item)
Diamond: At this time... it’s a little cloudy...
It was seen and it was observed. <--- can="" from="" my="" nbsp="" notes="" p="" said="" t="" tell="" this.="" who="">Diamond: I would like to answer; it’s a very serious question.
Judge: All my questions are serious. Just tell me who. Answer this question.
The witness doesn’t answer.
Dixon: Why can’t you answer. Please tell us.
There is a break or something. I can’t tell from my notes, and I’m vaguely remembering at this point, but at some point there is a break, or another in camera conference, and the Judge says that although the witness can’t claim the fifth as privilege, the judge did check case law, and he is required to offer to the witness to go in camera, to hear from the witness in camera to see if there is an issue of fifth amendment. So the judge and the witness, his attorney and the court reporter all go in camera.
It’s 3:15. There is quite a bit of whispering and waiting in the courtroom. The judge emerges from in camera and says, “There is no basis to claim privilege. So, the witness has to continue to answer questions.
Dixon: can you describe to the best of your ability.....
Diamond: An item was found lodged between the carpet and the staircase. (snip) The room is not very large.
I’m trying to make sense of my notes here, and also from memory. More questions are asked.
Diamond: Dr. Baden made mention that it was a fragment of a tooth.
More questions, and the witness testifies about Dr. Baden identifying the object as tooth material.
Dixon: Your memory was fuzzy?
Diamond: no.
Dixon: Didn’t you tell them.... (LAPD????)
Diamond: It was passed around.
Dixon asks more questions.
Diamond: Everyone had seen the item. I know Sara, Dr. Baden, Bill... all had seen it.
Dixon tries to get the witness to pin down the path of the item from person to person. But Diamond can’t precisely say who got it after Dr. Baden. Just that it was passed around. Dixon asks who on the defense team, who all had it?
Diamond: Everyone was mulling around as to what it was.
Dixon: Could you tell us was it passed? Were there other statements? What was alleged to be a piece of tooth?
Diamond: That’s the only statement that stays in my mind.
Dixon: Did you tell LAPD....
Diamond: No.
Patrick Dixon is trying to get the witness to say that Bill Pavlic had the item last. But he’s saying the detectives asked him that, but he’s not sure if Bill ever had it.
Dixon: When was the last time you saw the item? Who had it last?
Diamond: I don’t recall who might have had it the last time. Sara found it. Dr. Baden identified it. Bill Pavlic......
Dixon: Do you have any idea what happened to it?
Diamond: No.
Dixon: Do you know who has it?
Diamond: No.
There must be a break here, or something, because I have in my notes that Leslie Abramson says something. The attorney’s are conferring with the judge. It’s now that I’m able to lean forward to see the name on the badge of the elderly woman who was so friendly to the reporters. The attorneys want to ask the witness questions in another direction. Someone says, “I think this came out in the Vanity Fair article.
Dixon: Nothing further at this time.
Now, one of Spector’s defense attorney’s questions the witness. I find out later that this attorney is Plourd or Flourd.... I’ll have to check the online articles for his exact last name and the spelling.
Plourd: What is your current occupation?
Diamond: Paralegal secretary
Plourd: When did you pass the bar exam?
Diamond: I never showed up to take the exam.
Plourd: Do you have any projects you are trying to sell?
Diamond: I’m a writer, and I do have a project I sold to CBS.
Plourd: Any (projects that are) legal matters to entertainment?
Diamond: That one I did was a legal show.
Plourd: How did you get to the Alhambra property?
Diamond: I was in Sara’s car.
Plourd: Who else was in the car?
Diamond: In that car? Just us.
Plourd then asks him about other vehicles on the property, and if there was a limo present.
Diamond: Yes, there was a limo present.
Plourd then asks him about what other individuals were there and/or how they got there.
Diamond: I’m certain there were other people... I just don’t recall.
As I’m listening to this testimony, I don’t know what to believe. Is this all some guys need for attention? Is this all just the idea of some guy looking to sell a story for a show? ??? Another individual, Stan White is brought in to stand in the gallery.
Plourd: Do you recognize this individual?
Diamond: I don’t recall.
It appears for right now, they are done with this witness. Diamond says to the judge that he won’t be in town tomorrow. The judge tells the witness that he can’t leave the Los Angeles area, that he is subject to recall. He will be available to the court. The defense asks to bring in Baden, and the prosecution agrees. Dr. Baden had flown in from New York, and they wanted to try to get him back to New York as soon as possible, and not hold him over in Los Angeles another day. Dr. Baden is brought in, and Plourd starts asking him some questions.
Plourd establishes through questions who Dr. Baden is and where he is employed. If I’m reading my notes correctly, Dr. Baden is employed by the New York State Police as their chief pathologist. Plourd then has Baden go over his credentials, and some of the famous cases he’s worked on, such as John Belushi.
Plourd: In your career, how many times have you been to a death scene?
Baden: Thousands of times.
Dr. Baden says that Robert Shapiro hired him to work on the case. Dr. Baden states that he remembers Sara Caplan being at the scene, along with Dr. Lee and Bob Shapiro.
Plourd: Did you collect anything at the scene?
Baden: (very emphatically) No.
Plourd: Did you observe Sara Caplan (pick something up, or) give you anything to look at?
Baden: No.
Plourd: Did you make a comment, on anything, to make a determination (of anything) being tooth material?
Baden: No. That is beyond my scope.
Plourd: Did you see anybody else pick up an object.
Baden: No.
Plourd: Did you see Mr. Pavlic (with something)?
Baden: No. I didn’t see anyone pick up anything. I did not. I was just there to observe the death scene.
Alan Jackson then questions Dr. Baden.
Jackson: When were you contacted (hired by Robert Shapiro)?
Baden: Shortly after the death occurred.
Objection! Sustained!
Jackson: How much were you paid?
Baden: I don’t recall. My secretary would have (that information). I was called. (I’m currently paid) approximately about $7,500 to observe an autopsy. It was less then.
Just then, Leslie Abramson’s phone goes off. She yells out to the judge, “Sorry!!” and then leaves the courtroom. The prosecution then brings in Greg Diamond and asks Dr. Baden if he recognizes him. Same with Stan White. Dr. Baden did not recall either of these individuals at the crime scene and says he doesn’t recognize either of them.
Baden: They could have been there, but I don’t recall.
Jackson: Do you remember if members of the defense team (were there), Robert Shapiro, Sara Caplan, Investigator Bill Pavlic, Dr. Lee?
Baden: They may have. I just don’t remember.
Dr. Baden does remember Dr. Lee being at the crime scene. Dr. Baden denies what was claimed to have been found, and denies ever having identified something as part of a tooth.
Baden: (It) “never happened. Because I'm not a forensic dentist and I don't have that expertise.”
Jackson is blown away by this answer. He doesn’t have the expertise to identify possible tooth material? Isn’t he a medical examiner? Baden says that, “I can recognize and intact tooth (at autopsy) but a fragment? No. Not a piece at a scene. That’s Dr. Lee’s area of expertise. But certainly at the autopsy.”
Jackson then asks him about the broken nail, and Baden says that he couldn’t determine a broken nailat a death scene, but at an autopsy, yes. The two sides now argue to the judge about a specific point, and Jackson want to show that something “goes to bias.” I think it’s here that Baden says, (and I’m not sure from my notes), “I assume she didn't have a broken nail at work.” Jackson is done questioning and Plourd takes over.
Plourd: Ever been accused of mishandling evidence?
Baden: No.
Plourd: Did you ever find evidence?
Baden talks about finding a bullet at the scene when “Christian Brando died.” This is clearly a misstatement by Dr. Baden because Christian Brando was not the individual who died. Christian Brando was the individual who killed his sister’s boyfriend.
Baden: In my examination (of the Brando case) I found a bullet under a rug. I didn’t collect the item. I notified law enforcement.
Plourd: Do you recognize Leslie Abramson?
Baden: Leslie Abramson, yes.
Baden is asked when was the first time he was asked to put his conclusions on paper. I think this question is by Jackson. I believe from memory, it is here that Baden is asked about his conclusions about the crime scene. Baden is adamant that Lana Clarkson killed herself, and one of the things he is using to come to that conclusion is her broken thumb nail. He’s adamant about that, even though Jackson raises some good questions as to how he came to that conclusion.
It’s getting very late, probably past 4pm. Several individuals who have been waiting out in the hall, Robert Shapiro, Sara Caplan and others. The judge orders Stan White and Greg Diamond back to court tomorrow at 9:30am Sara Caplan and Robert Shapiro would be on 1 hours call/notice to appear. Bill Pavlic would be ordered to be at court at 10am tomorrow.
Outside the courtroom in the hallway, Linda Deutsch, Dr. Baden and the woman “Jean” all chat and catch up. In the elevator down, reporter John Spano tries to question Stan White about what he knows about what went on today. Spano was not in court all day, and missed most of what went on.
As I leave the courthouse, I’m really, really wanting to come back the next day to see what the next witnesses have to say about this supposedly found “tooth material.” But I can’t. I have clients I have to see. I’ll just have to find the time to watch Court TV Extra on the internet, and see how the questioning will unfold that way.
I hope you have enjoyed my trial notes. Please understand that my notes should not be used in place of a more exact transcript of the trial. Although I tried to be as accurate as possible when I was quoting someone, I’m sure you will find some statements that do not exactly match Court TV’s Extra coverage.
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