Kim of The Darwin Exception is BACK!

She hasn't blogged in well over a year, but I'm happy to report that Kim of The Darwin Exception is back in the saddle and giving her loyal readers her unparalleled witty take on the Casey Anthony Case. I for one, couldn't be happier. We first read Kim when she covered the initial Phil Spector trial from the comfort of her living room sofa. She gave her readers some of the best analysis of the legal maneuverings during that long drawn-out drama that ended in a mistrial. From T&T, welcome back Kim. You've been missed.

Darwin Exception Coverage to date
Casey Anthony Jury Selection
More Jury Action - Backstrikes
Casey Anthony - Jury Selection Some More
Court is in Recess

Phil Spector Retrial: Day Ten of Testimony

Thursday, November 20th, 2008

Prosecution Witness:

#15 Adriano De Souza (Spector’s alternate driver on February 2nd, 2003; under redirect)

Accredited press in the courtroom: Harriet Ryan of the Los Angeles Times

Happy Belated Thanksgiving everyone. I had hoped to have this entry up before yesterday, but what is it about “the best laid plans” that seem to go awry? It’s always something. On Tuesday, we had to scrap all our grocery and fabric shopping plans because the four-day-old Pepboys rebuilt starter we had just installed Saturday developed a cerebral aneurysm. After testing it with his super deluxe meter, Mr. Sprocket determined it was not long for this world. We have to take it back. He then said, “If we cool it off, it will start again.” We accomplished that and called all around the city to find a Toyota dealer that had our model in stock. So much for trying to save some $$$ on a budget, after market starter. We realize we need to spend the bucks on the bigger, genuine Toyota part.

At 5:00 pm we hit the road for Toyota of Torrance. We took water and a roll of paper towels to cool down the starter just in case we had to stop someplace and turn off the engine, like for dinner. After we picked up the new starter, I found a fabric store in the area and Mr. Sprocket stayed in the car. We didn’t get home until almost 9:30 pm. Ever since then I’ve been sewing, sewing, sewing to get some orders ready to ship tomorrow. That’s my excuse. Tomorrow morning I will hit as many Jo-Ann Fabric Stores as I can to clean up on their annual flannel sale. I bet Kim of Darwin will be doing the exact same thing. Then, it will be back to sewing the next round of orders all weekend. Enough about that. Here is what happened in the Spector trial on Thursday before the holiday break.

When Spector walked down the hallway towards 106, there was someone noticeably absent. It was Rachelle. Now, I did not attend every day of the first trial, but I have to say I believe this is the first time I’ve been to court on this case and she has not been here. Later, someone tells me they think they heard Spector talking to his counsel that she wasn’t feeling well.

Truc is wearing a beautiful gray pant suit. The jacket has a fitted waist and a pronounced flair over the hips. I can’t say it enough. She’s got a great wardrobe. Spector is wearing a black and white kerchief in his jacket pocket; black suit, white shirt. At the moment, his hands are not shaking.

Adriano De Souza is wearing a light blue shirt and a green tie. For now, there is no press in the room. Only me, Jon and San Diego Linda. This makes two days in a row that Linda has taken the two hour train ride to court. She really wanted to see as much of De Souza’s testimony as possible, so this is true dedication.

9:37 am: Cross examination of De Souza continues by Weinberg.

Weinberg states he wants to clarify De Souza’s testimony of his interaction with Spector. Unfortunately, I’m not sure from my notes if Weinberg is verifying prior testimony or if he’s asking new questions. [Yes, I saw the door open ... And at that time, you saw the gun?]

DW: You just stood there when you saw the gun?

ADS: Yes.

DW: You didn’t do anything?

ADS: Not at that time.

Weinberg presents the transcript of his interview with Officers Pineda and Kennedy.

9:39 am: Harriet Ryan and one other public person enters 106.

Jon leans forward and tells me, “Weinberg is mumbling.” I’m not positive, but I’m tending to agree. Jon sits a row behind me but he has much better hearing. He’s heard things at the counsel table that I’ve completely missed. One of the DA’s clerks enters.

DW: Why did you take the Mercedes when your car was there [closer to where he ran down the drive]? [...] Why didn’t you take your own car? [...] Instead of going to your car, you ran back to the Mercedes.

ADS: I don’t know, sir.

DW: You called Michelle Blaine then 911. Is that what Mr. Spector wanted you to do?

I see Sherri slip into the back bench row.

AJ: Objection! Calls for speculation! Objection!

Fidler: Sustained!

Fidler then explains why this is also improper cross. This is the type of questioning we are hearing. Many times asking “why he did something when there might have been a more “reasonable” thing to do, or suggesting with the question he did something irrational.

Weinberg is now crossing De Souza in detail about the first interview with detectives at the scene before he was taken to the police station.

Juror #5 has an interesting shirt on today. It’s not a t-shirt, but a type of scenic shirt that looks almost to be airbrushed. It also looks brand new. There are stars and stripes across the chest and shoulder area and there are “chopper” motorcycles on the lower part of the shirt that hangs down below his hips. The first thing I think of is, I wonder if this is a commemorative type shirt for the movie Easy Rider. From where I’m sitting I can’t tell if there are the actors from the movie sitting on the choppers or not.

Again, Fidler tells Weinberg in open court that he can’t take prior testimony (Grand Jury; first trial) out of context. This is the second time today. Weinberg comes back to Fidler and says “This is correct cross examination!”. Fidler told him that if he’s going to ask about a particular area, he must read the whole are to present context. When Weinberg balked, Fidler said to him, “I have ruled!”

Weinberg asks a new question and AJ objects again! “I think that misstates the evidence. Doug Sortino clearly states that he was paraphrasing,” AJ says. AJ then reads from the Grand Jury testimony.

Weinberg is now going over again that statement De Souza made. “I think so, I’m not sure, it’s my English.” He’s confronting him with what he said at the first trial, when Bradley Brunon asked him the exact same question.

Weinberg has to be told again that this is improper to read the first trial testimony into the record of this trial. There is a proper way to do it and he’s not doing it.

AJ: Objection! Again. This is improper impeachment.

Fidler: If you want to approach I’ll clear this up.

There’s a bench conference.

Weinberg comes back and asks about the “I think so. I’m not sure, it’s my English” statement again. AJ objects again and AJ say something then Weinberg says something, accusing AJ of editorializing.

Fidler: Lets all sit back and relax and we’ll get through it.

Fidler agrees. Weinberg has to read the entire context. Weinberg must have made a face at that time because Fidler says to him, “I don’t need your facial expressions.”

Weinberg is now asking De Souza questions about his own legal situation and being an illegal immigrant.

10:34 am: Detective Tomlin arrives. He’s always carrying a big,expanding brown file folder. Weinberg presents a document that De Souza says he’s never seen. It’s a letter Doug Sortino wrote on De Souza’s behalf to the INS/ICE to defer De Souza’s deportation. De Souza says he doesn’t know about this. He paid a lawyer to deal with these issues.

Weinberg then presents a letter from Sortino to the ICE requesting permission for De Souza to work while waiting to testify in this trial. Next is a letter to grant permission for De Souza’s mother to come to the US on a non immigrant visa because he was a witness in this case. It was denied.

De Souza states that yes, he would like to remain in the US.

DW: do you believe that your help in this case will help you stay in the US?

ADS: No. My lawyer told me it wouldn’t.

Weinberg goes back over what he thinks Spector said again. There are more and more objections, stating the question misstates the evidence. Weinberg is back over the “it’s my English” statement once again.

10:43 am: The Spector supporter with the white hair arrives .

Weinberg goes over De Souza’s testimony at the last trial. Weinberg now is speaking very fast and lowering his voice! He then say something else but he’s turned his back on the witness as he’s asking the question and he’s clearly mumbling.

AJ: Objection! Mr. Weinberg’s mumbling your honor!

Fidler: I’m sorry sir. You appear to be mumbling and dropping your voice and turning your back on the witness.

Fidler then states something to the effect that even the court reporter can’t understand you. And when Fidler says that, she shake’s her head in agreement.

Weinberg defends his cross examination.

Fidler: I’ve stated what I believe you’re doing.

Weinberg then says he has nothing more for the witness.

AJ stands up to redirect and rehab his witness.

10:47 am: Harried Ryan leaves the courtroom and a moment later we take the morning break.

During the break, Weinberg addresses the judge about proper impeachment. His voice is high and you can tell he is quite irritated! He’s complaining about Fidler’s rulings and that his questions were all proper impeachment; what’s within context and what’s out of context. Oh my! Weinberg is totally pissed at Fidler!

DW: It’s unfair! It’s highly prejudicial in front of the jury!

He goes on to complain about Fidler making him read text that is “fifteen pages down the line” and when he says that I know he’s totally exaggerating because I know Fidler did not rule once on making him read stuff that far afield.

Oh my! I can tell. Fidler looks really pissed!

Fidler: First of all, it is out of context and it is my responsibility to make sure the jury is not misled! Mr. Jackson?

AJ: Nothing further!

Spector greets the white haired man and walks out of court with him.

Jon and I are blown away by that exchange! I catch AJ’s eye in the well after the Judge left the bench and I say to him, “That was amazing!” AJ responds something like, “And I didn’t have anything to do with it!”

The woman who handled all the prosecution’s exhibits in the first trial stops by the courtroom ~I think to drop off something~ and says hello to the Clarkson family. Almost as quickly she leaves and waves goodbye to familiar faces. Someone in the gallery said they had “Never seen anything like it,” referring to the mumbling by Weinberg.

I almost forgot. I’m not sure when this happened ~I’m just remembering it~ it could have been during the break or before court started. Fidler informed the court that one of the jurors indicated that they were unable to see the gun demonstration the defense did so Fidler asks AJ to have De Souza re-demonstrate how Spector was holding the gun.

11:10 am: Break is over and we are on redirect.

Under redirect, De Souza states that he still hasn’t seen his mother in over four years. It’s at this time that AJ has De Souza re-demonstrate how he saw Spector holding the gun when he emerged from the rear of the residence.

AJ is looking around for the bailiff because he’s not in his booth. Once the gun was brought out, the bailiff moved to the back corner beside the jurors near the jury room door. AJ sees him finally and says, “You’re hiding back there!” The bailiff responds, “I’m a little person.” The courtroom breaks out in laughter because the bailiff is a larger man.

Weinberg makes a big deal because at one point De Souza drops his arm and Weinberg wants that noted for the record. De Souza clarifies that he just dropped his arm at that moment, holding the weapon. It had nothing to do with how he saw Spector with the gun.

AJ is starting to read from a transcript and Weinberg objects. Fidler tells counsel to approach the bench. As the bench conference is going on, a tall black man enters and sits in the spot Linda Deutsch usually occupies. A woman with short brown hair enters and sits in the bench row behind me. I can tell she’s not a reporter; she’s general public. Out of the corner of my eye I see her take out a little notebook and start to write.

Bench conference over. AJ brings back the point that at the Grand Jury hearing, Dough Sortino asked him directly what he heard Spector say. “I think I killed somebody.” Jon points out to me that Spector is writing on a notepad again and all I can think about is the hysterical OJ Simpson notebook.

AJ brings up the point that 45 minutes after the incident when De Souza was talking to Officer Pineda, De Souza said the exact same words. “I think I killed somebody.” The tape of that interview, which occurred on the street outside the castle gates is played for the jury. You can hear automobile street noise in the background, and parts of the tape are hard to understand because of the sound of the tape and the background noise. Although the jurors have a copy of the transcript, a transcript is not up up on the ELMO for the rest of the courtroom. I can hear some of Officer Pineda’s questions, but not all. Officer Pineda is a woman.

On the tape, the officers are asking De Souza about where Lana was; questions about where Spector was [standing]. I can hear the officers ask him about calling Michelle Blaine. The jurors are reading along with the audio tape. You can clearly hear dogs barking in the background on the tape.

Spector is leaning away from the defense table and I can just barely see the note paper he’s been writing on. He appears to be reading it now. Then his pen hits the paper and it’s almost like he’s editing it. On Spector’s left wrist is see a blue band, that looks like it’s plastic or hard rubber. His hands appear quite small.

Now the tape is hard to understand. It finally ends.

De Souza states that they were outside the front gate when that conversation took place. AJ would now like to play a video tape of De Souza’s interview at the police station. It’s 11:52 am, and AJ want’s to get started on it because the length of the tape will come up right against when court will end for the day. Court is going to end early it appears. I think a juror has an appointment.

The tape starts and at one and a half minutes in, AJ stops the tape to clarify the surroundings on the video and that Detective Tomlin is just out of camera range. You can barely see his hands in the video. De Souza testifies as to who was sitting where that was outside the line of sight of the video camera. AJ states that since Weinberg asked numerous questions about the “it’s my English....” AJ points to Detective Tomlin in the gallery and asks De Souza:

AJ: Is that Detective Tomlin, the handsome one?

The tape is then started again. Ah, here it is in my notes. They want to play as much of the tape as they can now, because it will come right up against at time that a juror has to leave. A large group of journalism students that came in at the break all leave along with several other people in the room.

11:58 am: Spector intently writes notes on a pad or paper. It looks like he is correcting something. His pen is on the page for a few seconds, then it lifts up and pauses. Then it’s back on the page again for a few seconds. Each time the pen hits the page, it looks like its on a different area of the paper.

The lunch recess is called. Jon takes off for a family vacation and I eat my lunch I brought in the courtroom cafeteria with Sherri and San Diego Linda.

Back inside the courtroom after lunch, Rachelle has arrived. She is wearing something very light colored today; not dark and dreary. Maybe she read the blog where someone said to me she looked dowdy and decided to wear bright colors. It’s a nice outfit. At first I think it’s white and navy blue tiny stripes, seersucker like from where I’m sitting but her accessories are black and white so the suit must be black and white. It’s a very form fitting short sleeved jacket and matching slacks. She’s wearing black and white patent leather heels. It looks like there is a white and black thick bracelet on her left wrist. The jacket has a tight waisted matching fabric belt with white piping around the edge. The short sleeves have little, oh I don’t know what you’d call them, a little flip of white fabric on the lateral edge with a button. With the outfit so light colored and the short sleeve, to me, it looks more feminine than the dark colors she’s been wearing.

As we wait for court to start Spector is turned around in his chair and staring at the gallery again. It could be my imagination but I think he’s staring in my direction so I look away from him and concentrate on the prosecution’s table. A new group of students enter and are tightly packed in the fourth and third rows.

The woman with the short brown hair is back and she’s sitting almost directly behind me now. There’s another public gentleman I’ve never seen before who enters and takes a seat.

1:34 pm: The jury comes back in and De Souza is back on the stand. The prosecution is playing the rest of the interview with De Souza at the Alhambra Police Station. More students enter the courtroom and sit in the second row, surrounding me. One of the PIO staff is here.

AJ addresses the court on some housekeeping matters. The jurors have an uncorrected copy of the audio transcript. Sherri comes in and sits in her usual spot: the back row. AJ states there is a word “shot” on the tape. It was mistyped on the page. Once that’s corrected, the prosecution is going to play the entire interview with De Souza.

My notes are not clear here, but I have AJ redirecting De Souza, having him clarify again about the “I think I killed somebody” statement that he heard Spector say.

Spector turns and faces the ELMO now to watch De Souza’s interview. The courtroom is filled with young students.

1:57 pm: Sandi Gibbons comes in and the sheriff in the back row pulls out a chair for her to sit in near the door. Before they started playing the tape, AJ stated that it was about an hour and fifteen minutes long.

2:08 pm: The students leave the courtroom in masse. The tape is hard to hear. I look over and see Rachelle close her eyes. Fidler is intently focused on the large computer monitor at his desk. I believe the tape also appears on his computer screen. The very pretty ADA who assisted in the first trial comes in and sits in Linda Deutsch’s favorite seat. The jurors don’t watch the screen much. They read along with the transcript.

2:20 pm; A tall, slender man wearing a suit comes in and sits beside Rachelle. I don’t believe I’ve ever seen him before. Certainly not at the retrial. During the playing of the tape, I close my eyes several times. My lack of sleep is really taking it’s toll.

Occasionally a juror looks up at the video but most are reading along with the written transcript. As I look at the time on the video now, about 1 hour in it says 10:38:22 AM, 2-03-03, I wonder when Lana’s family was finally notified. How long did it take to find her family and tell them the terrible news?

At this point on the tape, one of the detectives is telling De Souza, “It will be a high profile case. It will be in the news. His attorney will want to contact you.” Towards the end of the tape, when the detective is advising him, De Souza is asking for advice on what to do, I could swear I heard him sniffle, and see him rub his eyes, as if he might have ben crying...or he just could have been tired. By that time he had been up for over 28 hours.

The tape ends almost exactly at 2:45 pm. The jurors are excused until December 1st at 9:30 am. As the jurors exit the courtroom I see Juror #5’s shirt completely. It IS an Easy Rider shirt! It’s a photo of the two bikes on the road and that is Jack Nicholson on the back of one of the choppers, wearing a football helmet.

Spector greets the man who sat down beside Rachelle. In the courthouse hallway, he poses for a photo with Spector; Rachelle snaps the photo.

Phil Spector: Prosecution's Opposition Motion to Defendant's Plea of Once in Jeopardy to the Lesser-included Offenses of Second Degree Murder

Updated!
Originally posted July 24th, 2008
I'm reading the latest prosecution motion that was filed earlier today in opposition to the defense's plea of once in jeopardy to the lesser-included offenses of second degree murder. It's a detailed packed 24 pages long and clearly shows how much "spin" the defense is willing to create to try to prevent the next jury from even considering lesser offenses. Did any of you watch during the first trial, the jury instruction battle the prosecution and the defense went through? It was a part of trial strategy not to charge on the lesser included offenses from both sides. In fact, it was the defense who originally raised this issue through motions as part of it's trial strategy.

Although this stuff hurts my head to read, it's quite interesting to see the arguments and facts the prosecution lays out. I will try my best to have the most important sections of this motion up on the blog sometime tomorrow, so look for this entry to be updated.

Update: July 26th, 2008

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STEVE COOLEY
LOS ANGELES COUNTY DISTRICT ATTORNEY
ALAN J. JACKSON, DEPUTY DISTRICT ATTORNEY (SBN 173647)
TRUC T. DO, DEPUTY DISTRICT ATTORNEY (SBN 191845)
MAJOR CRIMES DIVISION
210 W. TEMPLE STREET, 17TH FLOOR
LOS ANGELES, CALIFORNIA 90012
92130 974-3800

ATTORNEYS FOR THE PEOPLE OF THE STATE OF CALIFORNIA

Superior Court of the State of California

For the County of Los Angeles

CENTRAL DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
PHILLIP SPECTOR,
Defendant.

Case No. BA255233

HON. JUDGE LARRY P. FIDLER

PEOPLE'S OPPOSITION TO DEFENDANT PHILLIP'S SPECTOR PLEA OF ONCE IN JEOPARDY TO THE LESSER-INCLUDED OFFENSES OF SECOND DEGREE MURDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.

Hearing: July 29, 2008
Time: 8:30 a.m.
Dept.: 106

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TO THE HONORABLE JUDGE LARRY P. FIDLER, DEFENDANT PHILLIP SPECTOR AND HIS ATTORNEYS OF RECORD, DORON WEINBERG AND DENNIS P. RIORDAN:

PLEASE TAKE NOTICE that on July 29, 2008 at 8:30 am or as soon thereafter as this matter may be heard in Department 106 of the above-entitled Court, the People of the State of California will oppose Defendant Phillip Spector's plea of once in jeopardy to the lesser-included offenses of second degree murder. The People's opposition will be based upon the attached memorandum of points and authorities, the files and pleadings in the above-entitled matter, the reporter's transcript of the trial, and on such further evidence and argument as may be introduced at the hearing of Defendant Phillip Spector's plea.

Dated: July 22, 2008
Respectfully submitted,

STEVE COOLEY
DISTRICT ATTORNEY OF LOS ANGELES COUNTY
BY: (signature)
TRUC T. DO
Deputy District Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES
I.
SUMMARY OF ARGUMENT
The court should deny Defendant Phillip Spector's (hereinafter "Defendant") plea of once in jeopardy to the lesser-included offenses of second-degree murder, namely voluntary and involuntary manslaughter, for the following reasons:

(1) Defendant cannot plead once in jeopardy to an offense he successfully persuaded this Court to not submit to the jury which had been empaneled to try him. United States v. Scott (1978) 437 U.S. 82, 89.

(2) The Court's mere refusal to instruct on the lesser-included offenses is not an acquittal of those offenses under double jeopardy principles. See Scott, 437 U.S. at 96-97. United States v. Martin Linen Supply (1977) 430 U.S. 564, 571-572; and Manokey v. Waters (2004 4th Cr. MD) 390 F.3d 767, 772-773 fn.7, 774-775, cert. denied by Manokey v. Waters (2005) 544 U.S. 1034.

(3)Neither double jeopardy nor judicial estoppel bar retrial of Defendant for the lesser-included offenses, where the People and Defendant requested the Court to not instruct on the lesser-included offenses as a matter of trial tactics. People v. Wilson, 43 Cal.App.4th 839, 841-849.

II.
STATEMENT OF FACTS
Notwithstanding the lengthy discussions had by the Court regarding instruction on lesser-included offenses, the defense cited only three (3) excerpts of the Court's comments on the subject. The defense has taken the Court's comments out of context to argue this Court reviewed the People's evidence and made a factual finding that the evidence was insufficient to prove voluntary and involuntary manslaughter. A thorough and fair reading of the entire record demonstrates that: (1) both the People and the

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defense requested the Court not instruct on lesser-included offenses for tactical reasons; and (2) irrespective of the parties' trial strategies, this Court independently determined that neither party had presented evidence or a theory to warrant the jury's consideration of lesser-included offenses. The court never impliedly or otherwise factually acquitted Defendant of voluntary or involuntary manslaughter.

When discussions of the proposed jury instructions began on August 29, 2007, the Court asked, "are the People seeking any lessers?" To which, the People answered, "no. . . not at this time." (RT vol. 64, 11003: 14-17). The Court then stated:

"I think we are all in agreement. Let me just get a statement --- besides which I think it is a correct statement of the law. I have for weeks now been thinking of alternatives, and 'what if this, what if that,' just sort of trying to get a head start on whether there is a possibility of voluntary manslaughter or involuntary, and based on the facts of this case and also based on the defense, I don't see it. The problem with a sudden quarrel would be there is the reasonable man standard, which I don't think anybody would say has possibly been shown, which would mandate a voluntary manslaughter. On an involuntary, given the fact that the gun is inside her mouth, you can't possibly get to things like misdemeanor manslaughter or anything else but where it comes to a second degree, if they find --- I mean, I don't see a theory."

(RT Vol 64, 11003: 18-11004:9).

The court then asked defense counsel, "So this is a knowing tactical decision, plus your belief in what the law shows; is that correct?" (RT 11004:8-9) (emphasis added). Dennis Riordan ("Riordan"), for Defendant, answered: "It is your honor." (RT vol. 64, 11004:10) (emphasis added). Mr. Riordan further explained:

"I will state for the record that unlike the situation in which there could be lesser-includeds [sic] --- and we are asking the Court to roll the dice for

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us --- this is actually a case in which tactics aside, we agree with the Court that there simply isn't sufficient evidence to support a theory other than either acquittal or second degree murder."

(RT Vol. 64, 11004:11-17) (emphasis added). The court responded: "Right. I mean, I think initially when the case started out there was a lot of talk of alcohol intoxication, but nothing was presented to the jury that would be sufficient to proceed with that. So based upon that, the Court will instruct only on murder." (RT Vol. 64, 11004: 18-23) (emphasis added).

Discussions on jury instructions continued on September 5, 2007. In response to the court's inquiry regarding Defendant's renewed objection to the 1101(b) evidence, Mr. Riordan stated: "Given the arguments and the jury instructions last week, both sides really agreed that this was an issue of identity and nothing else, and for that reason the court has decided that there will not be lesser included instructions which be given in a case where mental state was at issue." (RT Vol. 65, 11057:21-11058:16) (emphasis added). On September 6, 2007, Mr. Riordan further explained the defense's position on the lesser-included offenses:

"Okay. but the basis on which we agreed that there would not be lesser included is that the insertion of a gun in someone's mouth is so clearly not only an act dangerous to human life but one that any human being would know involved a conscious disregard of human life, that absent some affirmative evidence of, you know, intoxication or lack of mental state and the defendant testifying to that, that it removes the mental state element from the case, and therefore, there are no lessers."

(RT, Vol. 65, 11435:2-10) (emphasis added).

On September 7, 2007, the Court reiterated the following to guide the parties in closing arguments:

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"Just to make it clear, the theories have been presented by both sides. Both sides have pretty much up to this point agreed or stipulated that the only appropriate instruction is that of second degree murder, with no lesser. As I believe I have made it clear, and if I have not, I am not bound by that. If the evidence suggests whether or not the parties don't want me to give lesser, if there is a reasonable suggestion by the evidence that lesser be given, if there is some substantial evidence, reasonable evidence that the jury can consider, it doesn't make any difference what the parties or I think about it, it's whether its something that they should consider. At this point I haven't heard it, and I think that we are in agreement. Basically, the question is whether there is any evidence that would suggest other than a disregard, the instructions for second degree murder, conscious disregard for human life that is set forth in CALCRIM 520."

(RT Vol. 65, 11445:4-23) (emphasis added). Again, Mr. Riordan added:

"Your honor, I could not agree more with the Court that this is a case where lesser-includeds [sic] are not required and not justified, and that is because the People's theory throughout the case has been that Mr. Spector committed the act that caused the death of Miss Clarkson."

(RT Vol. 65, 11447:10-15). On September 10, 2007, after closing arguments, the Court instructed the jury on second-degree murder only.

On September 18, 2007, the sixth day of deliberations, the jury indicated they might be deadlocked. (RT vol. 59, 11712:24-27). At this time, the Court raised the possibility of a sua sponte duty to instruct the jury on a misdemeanor manslaughter theory of involuntary manslaughter under People v. Lee (1999) 20 Cal.4th 47, which held a trial court erred in failing to sua sponte instruct on that theory of involuntary

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manslaughter based on a brandishing of a weapon.(1) (RT Vol. 69, 1171f3:2-11715:3). On September 19, 2007, the court heard oral argument on this issue. Again, Defendant continued to object to any lesser-included offenses, filing a second memorandum of points and authorities to state his opposition on September 19, 2007.

The People, however, requested the court instruct on a misdemeanor manslaughter theory of involuntary manslaughter under Lee to avoid error only. (RT Vol. 70, 11755:6-22). In doing so, the People made clear that both parties had not requested instructions on the lesser for tactical reasons. Moreover, the People had never argued "there was no evidence" to support lesser-included offenses, but that the evidence went "beyond" the lesser-included offenses. On September 19, 2007, Deputy District attorney Alan Jackson ("Jackson") stated:

"Mr. Riordan indicated at first blush that there are three factors that he believes are determinative in this court's decision as far as giving an instruction or not giving an instruction concerning a lesser. He says, number one, there is no substantial evidence in the record to support it. ... [As to this argument,] there needs to be a distinction made between what the defense is saying is no substantial evidence supporting the theory. It's impossible to say that there is not substantial evidence in the record to support a misdemeanor manslaughter instruction. . . . I'll phrase it as a misdemeanor manslaughter instruction based on brandishing. That's impossible to say. When the Court spoke on the record, which Mr. Brunon quoted,

(1) In Lee, the defendant, who had a blood alcohol level of .33 to .39, retrieved a .357 magnum Smith & Wesson handgun during an argument with his wife. As the couple pushed each other with the gun between them the wife sustained a close contact gunshot to the head. There were no witnesses to the gunshot. A jury acquitted the defendant of second-degree murder and convicted him of voluntary manslaughter. Lee, 20 Cal.4th at 52-54. The California Supreme Court held the trial court erred in failing to sua sponte instruct on a "misdemeanor-manslaughter" theory of involuntary manslaughter, based on evidence of a brandishing of weapon. The court, however, affirmed the voluntary manslaughter conviction because it found the jury, having been instructed on two other theories of involuntary manslaughter, had the opportunity but rejected a verdict of involuntary manslaughter. Id at 62.

Page 8

And the Court indicated 'I don't see it.' And you remember that dialog that we all had, or had, and you said, 'if this is anything,' I mean he put the gun in her mouth. If the jurors believe the facts as they have been presented, the gun was actually inside her mouth, and everybody here at the table would agree that that is in fact assault with a deadly weapon, it goes' beyond brandishing. That word 'beyond' is the seminal phraseology. It is not that there is no evidence to support brandishing or support the misdemeanor manslaughter. It's that we all surmised that it was that the conduct was grave enough that it subsumed misdemeanor brandishing and went beyond it to a different degree. The same as Justice Brown articulated in her concurring opinion. I think that's why the Court pointed us to that language in Lee. In her concurring opinion, Justice Brown said something to the effect that in that case, under those facts in her opinion that a reasonable jury would have to believe that the conduct went there to the manslaughter and substantially further, but the manslaughter is in fact factually and legally subsumed within the conduct of the assault with a deadly weapon in that case. . . . So I want to make sure I start out by saying what the proper playing fields should be. . . . There is no reasonable argument that the facts don't support a brandishing. You can't assault someone with a gun without first brandishing that gun. Therefore, it is supported by the facts. The Court took the position, and I think we all did, that yeah, it is supported by the facts, but, my goodness, based on the facts, it appears to go beyond that as well. Actually going into an assault with a deadly weapon, actually putting a gun in someone's mouth. That is a far cry from saying the facts don't support it."

Page 9
(RT Vol. 70, 11748:13-11750:17) (emphasis added). The Court then asked the People, "notwithstanding Lee, if the facts are so clear, why didn't you argue them and why didn't you ask the Court to include the lesser?" (RT 11753:16-18). Mr. Jackson responded, "Strategically, we didn't want it, the defense didn't want it. . . . To answer the court's question pointedly, why didn't we ask for it, because it's a strategic position." (RT11753:24-25, 11755:6-9).

Defendant notably omitted the following comment by the Court in its analysis of the lesser-included offenses:

'The sole reason I did not give manslaughter instructions in this case originally was because we did not have a theory. I specifically asked is there any theory upon which a manslaughter conviction can rest? I said, I can't [think] of one because we did not see a brandishing. And the reason we did not see a brandishing was that everyone was in agreement that whatever happened in this case, it was a completed assault. It had to go beyond brandishing, which took brandishing away from the jury. It took it away from any possible consideration." (RT Vol. 70, 11860:17-26). "Both sides have told me consistently and I have agreed with you, there is no brandishing because it's gone beyond it in this case."

(RT vol. 70, 11861:18-20). Ultimately, the Court declined to instruct the jury on a misdemeanor manslaughter theory of involuntary manslaughter, finding "it would be inappropriate at this time [i.e. mid-deliberations] to instruct the jury with a new offense, that being the lesser offense of manslaughter, because I believe it's basically directing them, if at all possible, that's what they should find, and that is inappropriate," (RT Vol. 70, 11773:8-14).
--------------------
The next 10-24 pages outline section III, "Argument And Authorities." I will excerpt some of those sections. Here is an abbreviated list of the cases that are cited throughout the next fourteen pages.

Ohio v. Johnson (1984)
United States v. Scott (1978)
Green v. United States (1957)
People v. Lee (1999)
People v. Breverman (1998)
United States v. Martin Linen Supply (1977)
People v. Hatch (2000)
People v. Lagunas (1994)
Hudson v. Louisiana (1981)
People v. Trevino (1985)
People v. DePriest (2007)
Manokey v. Walters (2004)
People v. Asbury (1985)
People v. Wilson (1996)
--------------------

Page 10
excerpt:
The Double Jeoparyd Clause of the Fifth Amendment protects a criminal defendant from a second prosecution for the same offense after acquittal or conviction, and against multiple punishments for the same offense. Ohio v. Johnson (1984) 467 U.S. 493, 498. It does not, however, protect a criminal defendant from a second prosecution of an offense when "he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him."
end page excerpt:

Page 11
excerpt:
Here, Defendant, to use his own words, "went ot of his way" to consistently object to instructions on the lesser-included offenses, including filing two written memoranda of points and authorities in opposition to the lesser-included offenses (dated August 27, 2007 and September 19, 2007). It is transparent that Defendant objected to the lesser-included offenses strictly for tactical reasons, at one point "asking the Court to roll the dice for us." (RT Vol. 64, 11004:11-17). Indeed, prior to the mistrial, the People requested the jury be allowed to consider misdemeanor manslaughter to avoid error under Lee, but Defendant objected. (RT Vol. 70, 117565:6-22). While a trial court has a sua sponte duty to instruct on lesser-included
end page excerpt:

Page 12
excerpt:
offenses "even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given," People v. Breverman (1998) 19 Cal.4th 142, 154, the remedy for error (if not harmless) is reversal of his conviction. But it is patently absurd for a defendant to successfully object to the jury's consideration of a lesser-included offense for tactical reasons and then plead he is placed once in jeopardy of life or limb on that offense. The double Jeopardy clause of the Fifth Amendment was not intended for such gamesmanship.
end page excerpt:

Page 14:
excerpt:
By selectively taking, out of context, three (3) excerpts of the Court's comments from lengthy discussions of the appropriateness of the lesser-included offenses, Defendant has distorted factually the Court's analysis in its refusal to instruct on the lesser-included offenses. This Court did not, as Defendant contends, rule the People's evidence was insufficient or failed to prove the lesser-included offenses of voluntary or involuntary manslaughter. Rather, the court and both parties clearly recognized that the People's evidence, if believed by the jury, established that Defendant's conduct went beyond manslaughter.
end page excerpt:

Page 21:
excerpt:
Again, Defendant has misstated the facts. It is not true that the "prosecutor went out of his way to seek an order from the Court precluding the defense from making any argument regarding any lesser offense upon which the jurors had not ben instructed." (Defendant's Plea and Motion at 7:6-7). Defendant did. It is also not true that the People took "the position at the first trial that thre was no evidence to support instruction on the lessers." (Defendant's Plea and Motion at 7:11-12). The People never argued "there was no evidence to support instruction on lessers."
end page excerpt:

Page 23:
excerpt:

III.
CONCLUSION
This Court should deny Defendant's plea of once in jeopardy to any lesser-included offenses of second-degree murder. Defendant's Double Jeopardy claim flies in the face of logic and law. The protections of the double Jeopard clause were not
end page excerpt:

Page 24:
intended to enable gamesmanship, in which a criminal defendant may choose to not proffer mitigating evidence, successfully object to the giving of a lesser-included offense, and later complain he is oppressed by the Government's repeated attempts to convict him of the lesser-included offense. Finally, it is only by distorting factually the record and conflating the standard of review for sua sponte instructions and an 1118.1 or 1181 substantial evidence test, that Defendant has argued this Court acquitted him of the lesser-included offenses. The record is unambiguous. The Court and both parties clearly stated the People's evidence necessarily proved the lesser-included offense but had gone "beyond" the lesser to establish the greater offense of implied malice, second-degree murder. For that reason, this Court properly did not instruct on the lesser-included offenses since it is "required only where there is 'substantial evidence' from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense." DePriest, 42 Cal.4th at 50 (emphasis added).

Dated: July 22, 2008
Respectfully submitted,

STEVE COOLEY
DISTRICT ATTORNEY OF LOS ANGELES COUNTY
By: (signature)
TRUC T. DO
Deputy District Attorney
--------------------
Did y'all get all that? Read this stuff for hours and your head will pound a bit like mine did. Were you able to see the underhanded move the defense was trying to pull with it's motion? Just think about how much time it takes to craft something like this. To pick and choose tiny pieces of the trial transcript so that it appears your arguments are truly representing the trial record and then search case law, quoting it to bolster your arguments. And think about how long it takes to do the exact opposite. Research and present an opposition motion.

Consider that Riordan (who is working the case with Weinberg) is a formidable adversary in crafting jury instruction arguments. (Remember special jury instruction #3?) Kim of The Darwin Exception pointed it out last year in this entry:

The new lawyer on the Spector’s team, Dennis Riordan, was an advisory committee member of the task force that actually revamped the California jury instructions.

Don't underestimate Spector's new defense team. It's a safe bet they will be presenting more motions like this as this case gets closer to its retry date.

CNN.Crime

Tearing Down the Wall of Sound: Now in Paperback!

When Kim of The Darwin Exception posted that she had received her complimentary paperback copy of Mick Brown's book, a flash of jealousy passed my mind ~she got her book first, I thought, lol,~ but I knew my copy wasn't far behind. I finally got mine in the mail just two days later.

The paperback has a new afterword, a little over 30 pages that covers the mistrial. And just as Mick had promised, along with The Darwin Exception, T&T was credited in the Bibliography section under websites, AND I got a listing on the Acknowledgement page. How cool is THAT?

Here is a short excerpt from the afterword titled: "Trial and Error."

ACT I, pg 435-437:

In April 2007, more than four years after I had sat with Phil Spector in his Alhambra castle, I returned to Los Angeles to see him once again. This time there would be no castle, no "Phil show," no strains of Handel, no interview. The figure that now sat in the drab utiliarian surroundings of Department 106 of the Clara Shortridge Folz Criminal Justice Center in Los Angeles, on trial for murder, looked almost unrecognizable from the man I had met four years earlier. He was dressed in a beige, frock-coated, three-piece suit, with a deep purple shirt and matching handkerchief. His surgically tightened face was pale and wan, criss-crossed with lines and indentations, and he wore yet another new hairpiece--a blond pudding-bowl cut, possibly inspired by Brian Jones of the Rolling Stones, yet more reminiscent of Julie Andrews in The Sound of Music, lending him an unnervingly androgynous appearance. His hands trembled violently in his lap, and his eyes flickered from side to side, as if unable to fully comprehend exactly where he was and what had brought him here. He looked like a small boy who has set off a firework and discovered he's burned down a house.

Ranged in a series of swivel chairs on either side of him were the five principal members of his legal team: Roger Rosen, a dapper, pinch-faced man in rimless glasses; the bullish Bruce Cutler; Christoper Plourd, a ponderous, soft-spoken man who would handle much of the forensic testimony; the smooth Bradley Brunon; and Linda Kenny Baden, a full-figured woman with a curtain of improbably vivid blonde hair and sleepy eyes peering over spectacles. Kenny Baden would be an almost maternal presence at Spector's side throughout the trial, often draping her arm over his shoulder in a gesture that seemed as much designed to signal to the jury that Spector was "safe," if not altogether loveable, as to comfort him.

Directly behind Spector, on rows of wooden benches, sat his wife, Rachelle, and other supporters and members of the defense team, most of them similarly improbable blondes of an indeterminate age.

On the other side of the court sat the two men whose task it was to convict him. Leading the prosecution was Deputy District Attorney Alan Jackson, a boyish-looking forty-two-year-old with an Elvis Presley kiss-curl, who spoke with a slight Texas twang. He was being seconded by a man who was notionally his superior, Pat Dixon--a patrician looking man in his late fifties with an enthusiasm for competitive swimming and German sports cars. The pair was fresh from victory in the Mickey Thompson case, having secured the conviction of Michael Goodwin.

Behind Jackson, in the front row of the public gallery sat Lana Clarkson's mother, Donna, and her sister, Fawn, both wearing ribbons in Lana's favorite faux leopard-skin. They would occupy these same seats virtually every day of the proceedings over the next five months.

From the outset, it was clear that the trial would revolve around three central points; the body of circumstantial evidence against Spector; forensic evidence; and the state of mind of Lana Clarkson in the days and weeks immediately before her death.

In his opening statement for the prosecution, Alan Jackson told the jury that in the coming weeks they would be meeting "the real Phil Spector"--a man with "a rich history of violence against women involving guns," and who "when confronted with the right circumstances turns sinister and deadly."

Four women, Jackson went on, would testify that Spector had threatened them with guns after flying into a rage while drunk, and each incident would prove "strikingly similar to the next." These were the women--Diane Ogden, Dorothy Melvin, Melissa Grosvenor, and Stepanie Jennings--whose testimony of "prior bad acts" had already been presented to the grand jury. All of these incidents, Jackson said, demonstrated a recurring pattern of behavior in Spector. This pattern always began with Spector drinking to excess and moved on to "romantic interest," Jackson went on. It usually involved Spector and a woman being "home alone." When a woman tried to leave, Spector would become enraged and pull a gun, forcing her to stay.

The events of February 2 and 3 2003, conformed to that pattern, Jackson said. Lana was "simply the last in a very long line of women who have been victimized by Phil Spector."

Jackson then went on to outline the events of that evening, culminating in Clarkson's death, and what Jackson described as Spector's "confession" to Adriano De Souza--"I think I killed somebody."

As he talked, a photograph was projected onto the screen of Clarkson sprawled in a chair in the foyer of Spector's mansion, her head twisted to one side and her mouth bloodied. It was the first in a sequence of increasingly gruesome images that would be displayed in the months to come. Spector stared pointedly into the middle distance, his face registering nothing.

There were fourteen telephones in Spector's home, three of them within five feet of Lana Clarkson's dead body, but there had been "not one call for help from Philip Spector," Jackson went on. "So if he wasn't calling for help, what was he doing?" According to Jackson, Spector was making a "pathetic attempt" to clean up the crime scene, wiping the gun clean and placing it under Clarkson's left leg "attempting to set a stage for the crime." In cleaning up, he had removed gunshot residue from his hand, but "he didn't get it all off."

Jackson then turned to the forensic evidence. The "misting pattern" of blood spatter found on Spector's jacket had traveled "a maximum of three feet," Jackson said, and the same spatter pattern had been found in Clarkson's skirt; from that it could be concluded that Spector's jacket was the same distance from the fatal wound as Lana's dress. "Physical evidence and forensic evidence, all will give deep meaning to the defendant's confession, 'I think I killed somebody,' which still echoes in this courtroom today."

To read more, pick up the paperback!

This past Thursday, The LA WEEKLY came out with it's "LA PEOPLE 2008" issue. One of my favorite staff writers, Steven Mikulan, featured Alan Jackson in the issue as The Juror Whisperer. Check it out; it's a great read!

My Visit to the ER, Rachelle's emailing again & Obsessed people

Visiting the 'ER'
I was in an emergency room last Tuesday, and I actually ended up on the operating table. Yep. I kid you not, and it was all because of the Phil Spector trial. Yep. The reason I was there was because of someone I met early on at the trial, and because of them I was on the operating table on Tuesday. Thankfully, I'm okay, but maybe that's because it was County General's ER, which is located on the Warner Brother's lot in Burbank. Maybe I should back up and start from the beginning.

You may remember me talking about two trial watchers I met early in June, Margaret and her son David. We met in the hallway outside 106, and we had lunch together several times, all of us in deep conversation discussing the merits of the case and the testimony of the day. Margaret and I have a lot in common. We both sew, adore kitties and love watching trials. Since Margaret didn't want to take the Metro Gold Line train by herself, her son David came with her to court several times in June and July. David was the one who overheard "W" say "You snooze, you lose," when she sat down beside him at the morning break on June 11th, trying to take an accredited reporter's seat, who had left to stretch their legs and/or call in to their office. (You can find that story in this entry, here.)

When we first had lunch, Margaret had mentioned that David was on "hiatus," and that's why he could come to court with her. When he had to go back to work, he emailed me through the blog, and we kept in touch. I remember him telling me that he worked on a TV show, but I couldn't remember which one. As we kept in touch, I found out that he worked on the NBC show ER, but I didn't know what his job/title was. When the trial was all over, he invited me to have lunch with him and Margaret, to catch up on what was happening and we worked out a day and time. It was then that I found out that lunch would be on the Warner Brothers lot. We had a last minute change of plans when the October 23rd hearing was moved to the 22nd, but fortunately that worked out fine.

David set a time for 1:00 pm, and told me at which street and gate a drive on pass would be waiting for me. When the guard asked to see my driver's license to verify that I was Betsy Ross, I had to say, "Because you need to make sure I'm the real one, correct?" The guard had given me a map with a red marker showing me the route to get to my assigned parking space. I'm sure I would have been lost without it. When I passed through the security gate, David was right there driving one of the four-seater golf carts everyone uses to get around the lot and Margret was with him. I show him my pass with the parking lot space assigned to me, and off we go, David leading the way. It's a good thing he did because even with the map, I realized I would have been totally lost. Once we get my car settled in, I got on board the golf cart, and away we went.

As we exchanged our hellos, I said to David, "I know you work on the show, but I don't know what it is you do." David tells me he's an associate producer, and he's worked on ER for five years. It's then that I tell him that ER is one of my most favorite shows, I've watched it ever since it debuted, and I never miss an episode. David replied, "That's great! Sometimes, when friends and relatives come in from out of state, they like to visit the lot but they aren't necessarily fans of the show. So you really know the story lines, and characters." "Oh yes, I really love the show," I replied. " I was watching the last episode and I was in a panic when at the end of the episode, they panned in on Abby really looking at that bottle of wine. I was, 'Oh no Abby! Don't drink it!' So, please don't tell me what happens!" David smiled and said, "Oh I won't!" On our way to the cafeteria, David points out various ER 'points of interest' sets. I get to see the "L" overhead train tracks, the set that is across the street, (for some reason the name of that particular set escapes me; I'm drawing a blank on that right now) and we stop at the exterior set for when ambulances are bringing in new patients. It was quite surreal for me to be walking around on the set of a show that I've watched and loved for over ten years. As you might have guessed, everything appears bigger on TV.

We then stop off at one of the sound stages where they are filming, and outside, David introduces me and his mother to John Stamos. He's very gracious, and greets each of us with a hug and a cheek to cheek kiss. Back on the cart, we weave through a maze of streets to get as near as we can to "Ashely Blvd." where the cafeteria and commissary are. We pass on the fine dining in the commissary, and head into the cafeteria. This is better than some restaurants; Warner Brothers studio, feeds their employees well. Inside, it's almost like what you might find in an upscale mall, with several different types of food/sections. There's Poquito Mas, a Pasta & Soup section (I can't remember what it's called), a grill, an exceptional salad bar, a desert section, and a drinks section. I head directly to the grill to get a burger sans bun with onion on romaine lettuce. I add a side salad of romaine from the salad bar, grab a vitamin water, and David pays for lunch for all of us at the cashier. (Thank you, David!) We find a table in the quietest area, and settle in to eat lunch. I give David and Margaret a detailed run down on everything that happened at the trial (and behind the scenes) from the middle of August until Judge Fidler ruled a mistrial on September 26th.

After lunch, we head off to meet David's brother Kevin, who is working on a new TV show. Many times at lunch during the trial, David and Margaret would jokingly call Kevin "the good son." The show Kevin is working on is called Moonlight. Kevin introduces his mother and myself to several of his coworkers, and shows us all the sets on the show. I'm quite fascinated by the two story high, back drop black curtains that surround the main set. On the other side of them is a continuous, full blown city skyline. It for when they are filming inside the set, it appears as if the actors are in a building up high, and you can see the skyline of the other buildings through the "windows" of the set. Margaret and are are totally blown away at the artistic design of the sets on Moonlight, and when we drop by one location, cast and crew are in deep conversation on one set, so we don't get to see that one up close. Kevin points out to us the gentleman who designed all the marvelous sets.

In the house/apartment of the female lead, I notice that there are quite a few Asian touches scattered throughout the set. I'm a big fan of anything Asian, ~my own home is entirely decorated in an Asian theme~ and I closely inspect two painted glass framed images of a royal looking man and woman hanging on the wall of living room set. Margaret makes the observation that it all looks like it could be easily lived in. Everything is quite "authentic" looking. That you could just walk onto the set, plop yourself down on a sofa, and think you were home. Several sets not in use had linen coverings with labels to note which piece of furniture they were for. I ask David if they were to keep people off of the furniture, and he said that the covers were basically just to keep everything clean, because people come through these sets all the time, and this just makes it easier.

After getting to see all the sets for this show, we head on over to where they are currently filming on ER. On the drive over, David mentions several films that he's worked on, and that he worked with O.J. Simpson on his last film, Navy Seals. So we talk about OJ a bit and his latest legal trouble. "He was the nicest guy," David said. "There was a time when my mom and dad were at this film industry event with me, and O.J. was in deep conversation with my dad about sports. This happened one month before Ron and Nicole were murdered." How forkin' spooky is that?

When we reach the sound stage we make doubly sure out phones are turned off because they are filming. The actors are set up in the area where there are several beds for patients. We are watching from a part of the set not being used, which is the waiting area. There are a ton of people walking around behind the scenes, and I recognize a few of the favorite characters who have been with the show for a long time like John and Chuny, and a recent actor J.P. Manoux, who plays the part of Dr. Hauschka, Neela's overbearing taskmaster.

Every bed is filled with someone in it, wearing a hospital gown, and John Stamos (Dr. Gates), Linda Cardenllini (RN Sam) and Chuny are working on a patient. The director is off in another part of the set that I can't directly see, and he's shouting out stage directors to Sam. There is a goof and they have to shoot it over again. David had asked someone earlier to bring him his camera out from his desk area, and John Stamos graciously gets his picture taken with all of us. David then leads us on a trip to other ER sets. We pass by small rooms that look like they are small rooms with the remains of treating a patient already on the floor, complete with fake blood. We get to another area, and David takes us to their set for the second floor, and OR1. Operating 1. And that's how I ended up on a real operating table with real equipment in there. David took my picture from the observation booth. I had the best time, and I hope we get together again soon. David said that if the writer's strike happens, he may be showing up at some of the Spector pretrial hearings until it is resolved.

Rachelle mass emails, again.
Last week I got a few emails at my blog from different people telling me that they received an email from Rachelle Spector, asking them to go look at her website and see how she's supporting her husband. You just have to shake your head with a heavy sigh and hope that we don't see as much, or hear as much from the current Mrs. Spector until round two.

Obsessed people.
I normally don't write about Internet crazies, but something reached a limit for me today and I thought I might as well share. I mean, Kim of The Darwin Exception has kept me totally entertained with her stories about the woman who calls her "Kimmer" and the neighbor lady without any heat. So I thought I might as well share with you the latest drama about this sad woman from Patasa, or some place out in the underdeveloped world like that, who just sees red when the word "Sprocket" crosses her path.

This sad little old lady has followed me from crime forum to crime forum, for gawd knows what reason, and trashes me up one side of the room and down the other. I have zero clue what I could have ever done to her, to cause her to have all this pent up animosity, directed towards me. She is a sad creature to be sure, and I would show her some kindness and/or pity if she wasn't just drop dead crazy as a loon. What I've often seen her do, is, when someone challenges her on why she hates me so much, she never answers the question. She doesn't have one. She changes the subject and starts waxing poetic about how sad her life is, and how terrible it is that most of her time and energy is spent on her crippled daughter. She recently posted over on the CTV forums that her daughter was in an automobile accident over a year ago, and now her ankle is fused and she will "never walk normally again, never run again, never dance again." And on and on the pity party goes about how sad it is about her daughter, and I'm still not getting it as to WTF that has to do with why she can't stand me, and has to trash me every place that I hang out.

And then today, she sent me a threatening message, promising to send the police to my door, if I didn't STOP doing SOMETHING....some persecution, whatever, for some who knows what Genever-induced paranoid rambling perceptions she has, that are most likely self induced. Now I understand, that what happened to her daughter is sad, and I wouldn't want that to happen to anyone, but give me a forkin' break. Whose life does not have challenges? Far worse things have happened to other people and they get over it and move on with life. They go on to live productive and happy lives. Besides, it's not like the kid is dead and buried and her killer has not been brought to trial yet five years down the road. This old lady should be grateful she's not standing in Mrs. Clarkson's shoes.

And that brings me back to the Phil Spector mistrial. How long is it going to take, to get a conviction, and justice for Lana's family? That's an injustice for you. Don't forget Lana. Go light a candle for her, as many times as you can.

Scheduling Spector Murder Trial Round Two

Updated!
I had planned to go to this hearing today. I got out the door just a little late but then got hung up in nightmare traffic. Thirty minutes later and I still wasn't out of the San Fernando Valley. When I heard on KFWB that there was a bomb threat, streets were closed off, and that the suspicious item was at either the Federal Court Building or the Criminal Court Building, I turned around and headed home.

KTLA reported on the hearing via their Internet live streaming, but alas, I can't seem to get it to load. Thanks to all the great posters at the Court TV Phil Spector forum, I was able to find out what Judge Fidler's rulings were.

All parties are ordered back on October 23rd, at 9:00 am and Spector must be in attendance. Rosen, Brunon, and Kenney-Baden have all been released from their representation of Spector. Riardon and Plourd are left. I find it interesting the Plourd is left because from my accredited sources, Spector tried to fire Plourd after the "AHA" moment by Baden, but in an incamera hearing, Judge Fidler would not let him. Plourd is not necessarily a "bad" attorney, he's just boring at hell.

From what I can gather from the Court TV postings, Fidler is ordering the retrial to occur no later than 120 days from this date. Counsel needs to be ready, and if they can't meet that deadline, too bad. On the outside limit, that would put the retrial on the anniversary of Lana's death, February 3rd, five years later. Prayers for the Clarkson family and their friends, that Lana finally gets justice.

Update: October 4th, 9:15 am

Other reports on the hearing yesterday.

Harriet Ryan of Court TV.

The Darwin Exception.

Los Angeles Times.

And Alan Jackson's new look at the hearing.

Kim of The Darwin Exception: Take a Bow! & The Origins of Reasonable Doubt

Kim of The Darwin Exception has put up a "ten best" moments of the trial. It's exceptionally witty and thought provoking. Don't miss it.

Thanks to Lynn Gweeny, here is a link to a great article on The Origins of Reasonable Doubt, by James Q. Whitman. It's a PDF document that will download to your computer. Here is an excerpt from the document.

The “reasonable doubt” rule is notoriously difficult to define, and many judges and scholars have deplored the confusion it creates in the minds of jurors. Yet ”reasonable doubt” is regarded as a fundamental part of our law. How can a rule of such fundamental importance be so difficult to define and understand?
The answer, this paper tries to show, lies in history. The ”reasonable doubt” rule was not originally designed to serve the purpose it is asked to serve today: It was not originally designed to protect the accused. Instead, it was designed to protect the souls of the jurors against damnation. Convicting an innocent defendant was regarded, in the older Christian tradition, as a potential mortal sin. The purpose of the ”reasonable doubt” instruction was to address this frightening possibility, reassuring jurors that they could convict the defendant without risking their own salvation, as long as their doubts about guilt were not ”reasonable.” In its original form, the rule thus had nothing to do with maintaining the rule of law in the sense that we use the phrase, and nothing like the relationship we imagine to the values of liberty. This helps explain why our law is in a state of such disquieting confusion today. We are asking the ”reasonable doubt” standard to serve a function that it was not originally designed to serve, and it does its work predictably badly.

Rachelle Short update & Linda Kenny Baden's closing argument

UPDATED!
September 7th 8:10 am
Hold onto your hats folks! Rachelle Short, arm candy wife of the defendant is going to be interviewed by Jamie Floyd at around 8:30 am this morning! You can't miss this! I am surprised that she has shown such restraint up until now.

One of the Court TV posters, dsmith, pointed out to me that Rachelle was not a full on nude model in Playboy, but appeared in the Grapevine section. Phil Spector's Wikipedia page appears to verify this. Now, correct me if I'm wrong people. Is this the section of the magazine where people can send in their nudie shots? If that's the case, Rachelle sending in her nude pic to Playboy is an even sadder situation than I originally thought.

Since I went to court today and only hung out in the hallway, I didn't actually get to see much of Linda Kenney Baden's closing argument. However, when I got home I did get to see enough to have an opinion. And I did read a bunch on the CTV message board, where it was discussed in detail. I understand that it was quite obvious she was reading from a script for the first part of her closing, and that she wasn't at all connected with the material. Now, I wonder who forced her to do the entire closing, causing Roger Rosen to look like he had a permanently inflamed hemorrhoid he was dealing with. Gee Roger, you did all that work doing direct and cross examination, Linda gets to take a two week vacation at some spa, and you get shut out of the CLOSING? What in the world is up with that? Did Linda hold her hand up and say, "Me, me, me, Phil! Pretty Please! Can I do it ALL? Rachelle thinks I should do it Phil! Really she does! And you always give Rachelle what she wants!"

From what I did see and hear, she was rambling and lyin' all over the map. I saw the book demonstration also. Gee Linda, your bad back must be totally healed now with the way you effortlessly picked up those anchor sized books and threw them on the floor. I was also quite disgusted with how Ms. Baden, at every opportunity, put Lana out with the trash. This is exactly what Alan Jackson was talking about in his closing calling this defense a "checkbook defense." I'm tempted to rush off an email to Mick Brown and ask him, "Mick, tell me, off the record please, were you in pain listening to that closing?"

Just a little bit ago, Court TV poster Shrlck Homie made the following post on the Spector Forum about Linda Kenney Baden's closing:

"I could eat a bowl of alphabet soup and crap out a better CA (closing argument) than Linda Kenney Baden put forth."

Thank you for such an articulate post Shrlck Homie. I am of the same mind. It was a bunch of crap and it was a mess. I feel sorry for those who have to go back to 106 tomorrow because I hear, they are going to be force fed another hour or so more of this drivel. Those poor souls. I feel for them, really I do.

I'm currently working on getting all the Caption Contest entries together and announcing the winner. That should be up on the blog later tonight so please keep checking back.

Oh, and Kim at The Darwin Exception has her entry up covering today's sinister machinations.

Sucked into the Vortex of a Murder Trial: Attend at your own risk.

Updated!
Before I get into my story, I need to make some acknowledgements. Harriet Ryan, the Court TV blogger inside the courtroom got engaged over this past weekend. I would like to extend "Best Wishes" to Harriet and her fiance. Next, a belated shout out to Anthony Samuelson for concentrating his entire Saturday, August 25th entry on me. Thank You, Anthony. And, another very belated Thank You to Mick Brown of the UK Daily Telegraph, for mentioning me in his August 21st piece. I've tried and tried to get a direct link to the article to work, but Blogger is frustrating me at every turn. I'm using the same link that Kim, of The Darwin Exception used for her piece, and I just can't get it to work for me. However, you can go to Kim's entry I've linked above, and get to the article from there.

Second, a big thank you to all the Court TV posters who have been emailing me and sending me private messages (PM's) about my decision to walk away from the trial. Your support has been heartfelt and wonderful to hear, and I apologize that I am now a week behind in answering all my messages you have sent. Please know that I'm not ignoring you, and as soon as I can, I will write back.

Third, a shout out to a great Court TV poster, Dig, who shared with us this oh-my-gawd image of Linda Kenney Baden and Spector at the trial. Kudos to the pool photographer who captured this image. I challenge my readers to come up with the best caption for this photo. There will be a prize: Acknowledgement on the blog as "Best Caption Writer" for the week.

I've been gathering my thoughts for over a week now, to write about what has happened to other public individuals like me, who have attended high profile trials and written about them, either on blogs or the Court TV message board. I found some common themes, and I thought it would be interesting to point them out. I have to say that, unfortunately, not one individual wanted to have their Court TV member name used in this story, much less their real names. I agreed to protect all identities as best I could, just to get this story out there. Please understand that if you decide to leave a comment on the blog about this entry, and you identify a Court TV member hat name or real life name involved, your comment will not be published.

The Scott Peterson Trial
Scott Peterson wasn't any one famous, but the sudden disappearance of his very pregnant wife, Laci Peterson, created a media frenzy that continued long after he was convicted of first degree murder. During the Peterson trial, the Internet crime forums swelled with new members wanting to learn more about this case and talk about it with other interested people. Because the trial was not televised and under a gag order, the pubic could only rely on the media, and other public individuals who vied for one of the coveted seats, and took the extra step to write about what they observed. Many people waited anxiously for any report on the proceedings inside the courtroom, specifically wanting information on how the jurors were responding to testimony as well as what went on in the gallery. The interest that the general public had was so intense, that many people across various crime forums pooled their financial resources to purchase a daily transcript of the trial. It was offered to anyone willing to pay the $10.00 a month subscription. Users were given their own password to read the transcripts on a web site as they became available. The publics' demand for information inside the courtroom, ignited this new and unprecedented form of information gathering and sharing.

At the time, I was not a regular poster on the Court TV forums. There were however, several Court TV posters and a blogger or two, who made the trip to Redwood City several times to try to get a public seat at the trial. From what I've been told, there was a lottery everyday for the public, and there were always more people wanting to get in to see the trial than there were available seats. Interestingly, it was at the Redwood City Courthouse that a regular trial attendee named Valerie Harris, initially met Daniel Horowitz, who first came to prominence as a frequent Court TV legal analyst covering the trial. Harris, who had no legal training whatsoever, later volunteered her services to Horowitz when he was Susan Polk's defense attorney. When Horowitz's wife Pamela Vitale was brutally murdered, Harris stayed on to assist Susan Polk after a mistrial was called in the first proceeding.

There were two beloved Court TV women posters, who went to Redwood City several times to attend this trial and write about it on the Court TV message boards. Whenever they got a seat at the trial, they wrote about what they observed on their laptops from inside the courtroom. They had lots of fans, which in turn brought out many detractors. Both women got sucked into the vortex of that trial, although it was never their intention to be dragged into it. Here's what happened.

In August of 2004, on one trip to Redwood City, neither one of the women got a seat in the public lottery. Instead of a wasted trip, they decided to drive around to the various points of interest in the trial, such as the San Francisco Bay, Scott Peterson's warehouse, and the Peterson home in Modesto. From the comfort of their car, one of the women took many photographs of these points of interest, including several of the house and the driveway. When they got back home from their trip, the 50 plus images were put up on the Internet using a photobucket account, and a link posted on the Court TV forums for everyone to see the photos. In a few of the last images taken, one could clearly see in the driveway, a half used bag of cement. For those of you who think the DA's office or the local Sheriff's don't have the time or the staff to read the message boards, think again. The local Sheriff's office saw the photos and realized that these images were potential evidence that could be used to refute the defense's expert who testified on the cement. This information was passed onto the DA's office. The woman who actually took the photos was subpoenaed for the State's rebuttal case to authenticate the photographs. Gloria Alred, who was covering the trial as a legal analyst, offered to assist her and her friend as their legal counsel pro bono. Alred has made a name for herself by only performing pro bono work.

The women traveled together back to Redwood City for the photo taker's day in court. At the last minute, Mark Geragos, Peterson's lead defense attorney stipulated that the photographs were authentic and taken on the specific date the women said they were taken, thus alleviating the photographer from having to take the stand. Both women were, at times, harassed and threatened by other trial attendees throughout the trial. There were many unfounded accusations that were publicly made about them too, all of which I will not dignify by repeating them. They were completely outrageous. It should also be noted that ever since they were thrust into the limelight of this trial, they were also harassed on the Court TV message boards, and eventually stopped participating there altogether.

The Susan Polk Trial
In the Susan Polk trial, there were several Court TV forum members (collectively known as the "gavel groupies") who attended that trial on a regular basis and posted about it on the Court TV Susan Polk Forum. Once Polk decided to defend herself, Valerie Harris actually sat at the defense table with her. As part of the Polk defense, Harris was continually reading the Court TV message boards and bringing Court TV members post's to Susan. These posts were quoted throughout the trial as part of the defense strategy or, to make accusations towards some of the trial attendees in open court, clearly trying to intimidate them. Harris also participated on the Court TV message boards, posing as an impartial trial watcher trying to sway public opinion.

At one point in the trial, Polk pointed out one of the gavel groupies who had written something in jest about her. Judge Brady permanently ejected the Court TV poster from the courtroom. Brady then informed Polk and Harris that she could not control what the media, the newspapers or what someone writes on a message board. Still, that Court TV poster was just as embarrassed as I was when I was singled out in the Spector trial and falsely accused. Even more outrageous, Harris threatened the Court TV poster personally. Harris also gave a tour of the Polk house to some individuals who attended the trial, some of whom were posters on the Court TV message boards.

The Scott Dyleski Trial
At this time I have only received evidence that a few Court TV posters attended the Dyleski trial, but there may be more. Scott Dyleski was convicted of murdering Pamela Vitale, the wife of Daniel Horowitz. It should also be noted that Daniel Horowitz's current wife, who was almost a juror on the Polk trial, attended at least one of the Dyleski pretrial hearings with Harris. It's been verified by Esther Fielding that there was a public attendee at her son's trial who caused so much of an uproar in the gallery that they were actually called into the Judge's chambers. The consensus is, the individual was admonished for their behavior in chambers, verses publicly in the courtroom.

The Phil Spector Trial
Just in case anyone skipped over the fact, Roger Rosen made the following statement in open court, in a further attempt to try to get the Judge to eject me from the courtroom or, as many believe, intimidate me. This occurred right at the morning break, on Thursday, August 16, after I had already been publicly admonished by the Judge as the first order of business of the day. Special thanks to Court TV poster, kellabeck for the transcription.

RR: 15 seconds, your honor. It's been brought to my attention that some of the individuals who are covering the trial uh have directed some derogatory comments toward Mrs. Spector. And the family has asked me to bring this to the court's attention. The court can handle it any way it seems fit but it just seems to me-- you used a phrase a moment ago, we've got to get beyond this and I think there's just no room for that in this situation.

JF: I think I handled it. I wasn't told what the nature of the comments was. I was simply told that some people were expressing their opinions and that the jurors could overhear it and that's why I made the admonition I did so I think I have dealt with it.

RR: Thank you very much.

JF: If there's anything else, you let me know. We're in recess.

In Summation
I'm sure you can easily see the common thread running through most of these trials that was similar to the situation I experienced. Just like me, Court TV posters attended these high profile trials, wrote about them on the Court TV message boards and were somehow sucked into the vortex of the trial they attended through various means. There is another common thread that connects all of these trials that is not readily apparent to most people. And that is, W attended every single one of these trials. Yep. That's correct. While I was at the Spector trial, it was verified to me by two Court TV employees that W was at both the Peterson and Polk trials. I also received confirmation vial email, that W also attended parts of the Dyleski trial.

It has also been confirmed to me by various Court TV members, that W was a big presence on the Court TV forums that covered each trial, using several different member names on each board. In private messages to dini, W professed to be a personal friend of Valerie Harris. Who knows if that is true, or just W's perception of the relationship, or if this is a total invention to inflate W's self importance in the eyes of others. There are varying opinions as to how this individual was perceived on each one of the Court TV forums that discussed a case. It's also been confirmed to me that W's behavior at these other trials, mirrored precisely the behavior that I observed at the Spector trial. W consistently approached major players in each case, as well as those reporting on the trial. I think I need to point out that I found obvious evidence that under various member names on the Court TV message board, W often adopted the majority's position as to guilt or innocence of a particular defendant. Yet behind the scenes, unbeknownst to some members, there appears to be some evidence that W's allegiance was just the opposite. One has to wonder about the ultimate intent of this type of subterfuge.

You need to look no further than TV, the film industry and the best seller lists to understand that the general public will continue to have a fascination with murder, and murder trials. Like anything else that is reported on by the media, there will be the slightly bizarre characters who will also be drawn to these trials, desperately seeking their own 15 minutes, or gathering material, hoping to write a book and increase their tax bracket. My question would be, how can the courts balance the general publics' right to attend these trials, and at the same time, prevent the fringe element from using a murder trial to possibly disrupt the proceedings for their own self serving agenda.

Special thanks to my dear friend houdini, who helped extensively with the research and writing of this entry.

Update: Friday, August 31, 2:30pm
I was contacted via pm today by a Court TV poster who attended the Dyleski trial, who disagrees with Ms. Fielding about what happened in the courtroom during Scott Dyleski's trial. Thank you very much for contacting me. I received permission to quote the poster:

Quote:
I attended all three weeks of the Scott Dyleski trial in Martinez. The judge did publicly chastise a court attendee (a retired schoolteacher) for talking too loudly. However, I know of no incident that "caused so much of an uproar in the gallery that they were actually called into the judge's chambers." You should not take anything that Esther Fielding says as the truth. She is the mother of the convicted murderer Scott Dyleski. More than that, she outright lied in court during her testimony. She also destroyed evidence by burning Scott's possessions, instead of turning them to the police.

The retired schoolteacher who was publicly admonished by Judge Barbara Zuniga (a magnificent judge; you would have liked her) did not post on CTV, as far as I know. Also, she was admonished NOT for speaking too loudly in court, but for talking loudly about the trial during lunch in a small restaurant near the courthouse WITHIN EARSHOT OF 2 JURY MEMBERS, both women, who then reported the incident to the sheriff deputy posted to the courtroom.

Guest Entry by CCA: Being Followed

Thursday, August 23rd.

At the end of the day today, I was delayed inside the courtroom a few minutes, so by the time I did get down to the first floor I was rushing to catch the Red Line. Only then did I realize a tall white-haired man carrying a back-pack I have seen in the courtroom hugging Phil Spector, had been watching me much of the afternoon. He came down to the subway platform at Civic Center and appeared to be checking out the other people, as if looking for someone in particular. I think it's possible he did not see me behind two men also wearing suits.

I got on my subway car near the back end, so I could see the others getting on my car. The whited haired man was not there.

When I got off my car at Hollywood and Highland, as I walked back a few feet to get on the up escalator, I noticed the man rushing toward me. He pushed past several folks behind me, until he was touching me. It was just noisy enough on the lower escalator that I was not sure what he said. Since I am recovering from a recent surgery, I walked as fast as I could toward the next up escalator, and this man followed. Now it was quiet enough I could hear him asking me why I attend the trial.

Not knowing for sure who he is or what his interest is in the outcome, I only told him I follow the science and provide my impressions to people who want it. Up on the Hollywood Boulevard sidewalk, as I waited for the westbound 312/212 bus, he told me his name and asked mine.

The funny thing is this afternoon another trial watcher seemed to follow me to the Red Line, too. This person did get on the same subway car, but continued past Hollywood and Highland. While we were waiting for the correct train they keep looking at me, but said very little. Maybe they actually do routinely take the North Hollywood Red Line, and had, up to now, just been on a different one than me.

CCA

What a frightening situation CCA! Sounds like the Zodiac Singer to me.
Sprockey

P.S. And Kim of The Darwin Exception has a new entry up. It's rip-roaring hysterical!