The Darwin Exception

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CA vs. Spector – A Week of Hearings

Posted by thedarwinexception on May 5, 2007

No live testimony all this week – but we are promised that Monday we will hear from the next witness. This week was devoted to hearing two separate motions that the prosecution has asked the judge to rule on regarding evidentiary discovery violations.

First off, though, the judge took the bench and asked the defense team if Bruce Cutler would be ready to go on Monday. The entire defense team kind of looked at each other and shrugged. (Funny sidenote: one of Cutler’s co-council replied to the judge “I read in the LA Times that he *is* feeling better.”) The judge then told them “Go find out” and he left the bench.

Half an hour or so later, the judge re-took the bench and the defense team assured him that Cutler would be in court and ready to proceed on Monday. This seemed to satisfy the judge. Cutler’s illness is reportedly related to his diabetes and his medications regulating it. That’s all I know, and nothing “official” has been released regarding his condition.

The issues at hand in the courtroom are two fold. The prosecution filed a motion requesting sanctions against the defense. The complaints are as a result of the interview Dr. Henry Lee gave to Catherine Crier on her show, in which he referred to “experiments” he conducted and “opinions” he has reached regarding the blood spatter evidence in the case. Lee told Crier that he had done new tests that showed that high-velocity spatter produced by a gunshot wound could travel six feet, twice the distance the prosecution says is possible.

The prosecution states in their motion that these “experiments” that Lee talks about are proof that the defense has not complied with discovery rules of evidence, since the prosecution has received no “test” results or reports that have the stated conclusions that Dr. Henry Lee has been giving in interviews.

“This claim and claimed experiment are not contained in any reports or notes provided by the defense, and the People were caught completely unaware that such testimony or evidence would be forthcoming,” Alan Jackson wrote. Jackson also noted that the day after Lee’s Court TV appearance, defense lawyer Linda Kenney Baden mentioned a six to seven foot range in her opening statement. But this was *after* the people made their opening statement, and without Lee’s conclusions at their disposal, the prosecution could not rebut or comment on this forthcoming testimony.

The prosecution does not say what kind of sanctions they want the judge to impose, and before they actually ask for anything, they get to the second allegation of “evidence withholding” that they want the judge to address. This one dates all the way back to 2003 and Spector’s *first* attorney, Robert Shapiro.

In 2003 the prosecution had heard rumors that a “piece of evidence” was found at the crime scene by defense investigator’s – it was also rumored that this evidence was a piece of Clarkson’s acrylic nail – from her right thumb, which would ultimately be the hand she pulled the trigger with – if she had pulled the trigger.

In July of 2004 an in camera hearing was held with a different judge, prosecutor and defense attorney than the ones in court today – that hearing resulted in a decision that this “evidence” did not exist.

That seemed to satisfy the prosecution that the alleged evidence did not exist – until they got a call from a former law clerk of Shapiro’s – a guy named Gregory Diamond. He claims that this evidence actually *does* exist.

Judge Fidler says he has appointed a special master, Loyola Law School professor Laurie Levenson, to interview Diamond, and determine which part of what he knows is protected under attorney/client privilege. Levenson has identified one area that prosecutors may be entitled to know.

“An allegation of physical evidence that the individual felt had been moved,” the judge says.

Finally Diamond takes the stand. Reluctantly. In a black velvet jacket. That’s when things get *really* crazy.

The courtroom is packed, but before any of them hear a single word of testimony, Diamond’s attorney resigns in protest. Then Diamond attempts to “take the fifth”. Twice. The judge tells him he cannot take the fifth since there is no jeopardy attached to his testimony – he isn’t being charged with anything. The judge tells him this – twice.

Diamond consults with his (resigned) attorney half a dozen times. And then finally, the prosecutor and the Judge – working as a team – drag out some testimony from the witness.

Diamond says he was present at Spector’s house Feb. 4, 2003, the day after the shooting, with a defense team that included Dr. Michael Baden and Dr. Henry Lee. An associate of lawyer Robert Shapiro, an attorney named Sarah Caplan, found a small white object lodged between the carpet and the staircase in the foyer. It was passed among the defense team and Dr. Baden said it was a tooth fragment. He says he can’t remember who was holding it when he last saw it.

Dr. Michael Baden takes the stand and refutes all allegations made by Gregory Diamond. Baden says he doesn’t even remember Diamond beng part of the group that went to Spector’s home to invesitgate the crime scene, that Baden never found a “small white object” as Diamond described, and that in his 47 years of working as a freelance forensic pathologist (for which he commands a $7,500 fee for “reviewing” an autopsy, he testifies), he has never been accused of tampering with evidence.

After Baden testifies (out of order – he was put on the stand in the middle of Diamond’s testimony because he had to get back to New York – those $7,500 cases are stacking up), Diamond comes back into the courtroom with a new attorney, a bottle of water and a sandwich from Starbucks.

He takes the stand and immediately turns to the judge and asks “Can I make a statement?” The judge snaps at him “No, Mr. Diamond, you may not, witnesses do not make statements, they testify!”

The L.A. Times, The New York Times, The Smoking Gun and Court TV. This is the list of agencies that Diamond admits to peddling his story to over the last few weeks. “I wanted the people to know something,” he says. “I had some concerns I wanted to address and get off my chest.” None of the news organizations published or broadcast stories based on Diamond’s account. He leaves the stand looking beaten down. The judge tells him he may be called back to the stand Friday and he is barred from discussing the case with anyone but his attorney, the defense and prosecutors. “Your honor, I’m not going to be in the LA area,” Diamond complains. “You’re going to remain sir,” Fidler tells him curtly. Next up, former defense private investigator Bill Pavelic. Diamond is lying, he says, there was no “small white object” found by the defense at the death scene.

Sara Caplan, the one who Diamond says plucked a piece of evidence from Spector’s carpet, is next to take the witness stand. No, she tells a defense lawyer during direct examination, she never picked up anything off the floor of Spector’s foyer. “Absurd,” she pronounces. She’s been a criminal defense lawyer for 25 years, long enough to know about evidence contamination and ethical responsibilities.

Alan Jackson begins what seems certain to be a cursory cross-examination. But several minutes in, Caplan makes a statement that takes the prosecutor and others in the courtroom by surprise. She never touched any small piece of evidence, but she did see one, she acknowledges. “It was flat with uneven edges … about the size of my fingernail, perhaps,” she recalls. She says she pointed it out to criminalist Dr. Henry Lee, and he used tweezers to place it in a vial. She says she has no idea what it was. Jackson asks her what became of the item and she shrugs.

Next up is Stanley White, another defense investigator of Shapiro’s and another allegation of hidden evidence against Spector’s legal team. Like Caplan’s account, this one also involves Dr. Henry Lee. White testifies that during the defense’s visit to Spector’s home Lee announced that he had found a piece of human tissue in the foyer. White said he took a close look at the item as Lee held it in his hand. It looked like “a defensive-wounded fingernail,” White said. The noted criminalist disagreed with his assessment, White recalled. “Dr.
Lee said to me, ‘You’re crazy.’ I said to Dr. Lee, ‘You need glasses.'” He says the quarter-inch object looked like a nail with “soft lead transfer” from a revolver. White also managed to get a little dig in when he pointed out on the stand “I told Shapiro, that’s what he gets for hiring Dr. Lee.”

In his Feb. 2007 report on his visit to the crime scene, Lee writes that he recovered two white pieces of thread, but makes no mention of the flat object described by Caplan or the fingernail detailed by White.

So, we have Diamond saying Caplan found a “piece of tooth”, and handed it to Baden. Baden says “never happened”. Then we have Caplan saying “No, I never found a tooth, but I pointed out a ‘small white object’, and Lee picked it up. Then we have Stanley White saying Lee found a piece of tissue, which White identifies as a fingernail – with gunpowder on it.

And Lee is in Asia at the moment, not expected to return for two weeks. The judge promises to reconvene this hearing if he must in order to get Lee on the stand. The court in this case will not hear evidence on Friday’s, anyway, so this particular issue could take up several Friday sessions. “We are a long way from” determining the facts, Fidler tells the lawyers.

But Monday there will be testimony – Cutler or no Cutler. Judge Fidler tells the defense they should be ready to cross-examine witnesses even if Cutler is not well enough to return to court. “There is a defense team of one, two, four -at least five attorneys. We should be able to proceed,” the judge says.

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