CA vs. Spector – Another Career hangs in the Balance

Well, now 2 successful careers hang in the balance as a result of the Phil Spector trial – three if you count Spector’s himself.

Dr. Henry Lee will probably never go before a jury again wherein he isn’t asked by opposing counsel “isn’t it true that a judge in California made a finding of fact that you hid or destroyed evidence in a case?” An accusation likely to have ramifications on his career for as long as he has one.

Now, with hearings and arguments that occurred yesterday afternoon outside the presence of the jury, Sarah Caplan, one of Spector’s former attorneys, is facing that same scenario.

Caplan and Stanley White, the private investigator also present at the scene of the crime in the capacity of defense employees, were in the hallway yesterday after Detective Mark Lillienfeld finished his testimony, and it looked like they would be the next witnesses called. Instead, Caplan’s attorney came into the courtroom and announced that Caplan had every intentions of refusing to testify, causing the judge to recess court for hearings and motions.

Sarah Caplan testified in the “mini trial” outside the presence of the jury last month concerning the “missing piece of evidence” that ended with the judge ruling that she was a credible witness – more credible than Dr. Lee, when she testified that she saw Lee pick up a small white object and did not know what happened to it after that.

Now, since the judge has ruled that all of this evidence and all of these witnesses can be called during the Prosecutions case in chief, the prosecution has added Sarah Caplan to their witness list – placing Ms. Caplan in the unenviable  position of having to testify in a major criminal trial, for the prosecution, against her former client. This, of course, forces Ms. Caplan to choose between her professional oath of ethics and her duty to her client, and the Judge placing her in contempt and jailing her.

Hearings were held yesterday both in camera and in court outside the presence of the jury concerning this issue, with Ms. Caplan’s lawyer, Michael Nasatir, standing before the judge saying “Your honor, we beg you not to place Ms. Caplan in this position. Please do not make her choose between her career and jail” And the Judge responding “Sir, I beg you to not place me in the position of having to find Ms. Caplan in contempt. In 25 years I have never done so, but I assure you I will.”:

Judge Fidler stood by his previous ruling that the evidence Caplan had given in the “mini trial” was not privileged information between attorney and client , therefore, she could not be exempt from testifying to the same things in open court. Both Caplan’s attorney and a member of Spector’s current legal team, Roger Rosen, told the judge that Spector had ordered Caplan not to testify in the case. Rosen said that, although Caplan ceased being part of Spector’s defense team when he fired her colleague, Robert Shapiro, in 2003, her duty to him as a lawyer remained.

After Rozen and Nasatir spoke on behalf of Sarah Caplan, Caplan herself stood up and spoke before the judge, telling him that she was led to believe that the court had overruled the attorney/client privilege for the limited purpose of testifying in an evidentiary hearing on a very small issue, and that she never anticipated, and she believes that it is unprecedented, that an attorney would be forced to testify for the prosecution in their case in chief against a client or a former client, when the law and all the ethical obligations that she is sworn to uphold say otherwise. She also told the Judge that she had no desire to be contemptuous to his honor, but that her career and all of her former and future clients demand that she put her obligations and duty to them first.

Caplan and her attorneys argued that this is not a “privilege” issue now, even if the contents of her testimony is not privileged, they are saying it goes to the essence of a lawyer’s representation of a client and 6th amendment issues.

The Judge said that if he holds Caplan in contempt, that he may just put in her hearing testimony, since she will be jailed and could be deemed “unavailable”, so that any victory Caplan can claim will be a hollow one.

Roger Rozen then jumped up and said “Your honor, you can’t do that. During her previous testimony, she was a witness for the defense, and I took her direct testimony. The case would be reversed in this instance, as she would now be a prosecution witness, and I would be cross examining her. My questioning would certainly be different and would take a different stance if that had been the case during her previous testimony. Admitting her previous testimony in this circumstance would be reversible error.”

The Judge recessed court for the day so that he could take briefs and research all the collateral issues this situation is now introducing, and .also to research how exactly Caplan will and can refuse to testify, if she continues to refuse to testify. The defense has requested that her refusal to testify not be done on the stand, but outside the presence of the jury, but the judge does not know if he can hold her in contempt outside the presence of the jury, or if that is something that has to be done in open court with the jury present.

So the judge shelved all the questions until Monday, allowing all the attorneys involved to research their positions and file motions over the 4 day break.

All in all, the best day of the trial, for me. This is the thing I enjoy most about trials, and it was a treat to see so many attorneys arguing from such wide and disparate positions. And to have the judge in the middle of it all was just a bonus.