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.

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

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

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

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

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

J: Why are you changing your testimony?

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

A: Yes.

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

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

Then Plourd gets up to argue the defense position.

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

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

Nobody adds any more comments to the judge.

Then the judge says he's ready to rule.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q: Did he say anything else?

DeSouza says that Spector didn’t speak after that.

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

The 911 tape recording is played for the jury.

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

Cross of DeSouza begins.

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

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

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

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

A: No.

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

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

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

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

Q: How did Mr. Spector address you?

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

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

A: Adriano! Adriano!

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

Q: So he has a small voice?

A: Yes.

Q: And some have a big voice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A: No I did not.

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

A: Definitely not.

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

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

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

A: Yes. There were some people in there.

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

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

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

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

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

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

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

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

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

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

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

A: Yes.

Q: Okay. And, when was that.

A: That was ah, in ‘84.

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

Judge: Ah, 52.

Plourd. Is it ‘94 or 2004?

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

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

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

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

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

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

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

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

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

A: Yes I did.

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

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

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

End of direct examination.

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

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

Alan Jackson finally starts the cross of Dr. Lee.

Q: Did you recognize anyone there?

A: They all look alike to me.

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

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

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

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

A: I don’t document every conversation.

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

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

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

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

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

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

Q: All those photographs were taken that night?

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

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

Q: Why didn’t you send it?

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

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

A: No.

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

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

A: DON’T CALL ME SLOPPY!

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

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

A: She must be mistaken.

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

Q: Is that a small white object?

A: No. That’s a cut.

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

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