The Darwin Exception

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CA vs. Spector – Tears for Caplan, Motions for the Defense

Posted by thedarwinexception on June 18, 2007

Monday was the day Sara Caplan had been dreading for at least a week – it was the day Judge Fidler put her on the stand – outside the presence of the jury – and allowed Prosecutor Alan Jackson to ask her 7 questions that everyone knew she was going to refuse to answer. It was a formality, but a powerful and riveting one.

It didn’t take long for Caplan to stop answering questions – in fact, the only ones she answered were “What is your name” and “How long have you been an attorney” – to each of the subsequent questions she answered by invoking her clients rights under the 6th, 14th and 15th amendments to the United States Constitution. The 6th amendment one I could understand, that one involves a person’s right to adequate and competent counsel, but I’m not quite sure why the other two amendments were mentioned.

As the questioning progressed, Caplan got more and more weepy, by the time she uttered  “With all due respect, your honor, I cannot”, to Fidler’s 7th warning of “The court has already ruled on this matter, and found that you must respond to the question, will you, under penalty of contempt?” she was practically sobbing.

The judge stayed her sentence until Friday – with promises of more time if necessary, in order for Caplan’s attorney to file an appeal. If the appeals court sides with Judge Fidler, Caplan could be jailed for “coercive contempt” until the end of the trial. Coercive contempt is just as it’s name implies, the person who is held in contempt is jailed as a way to “coerce” them into doing as the court orders – testify. They can be released at the end of the trial, or when their testimony is no longer considered vital to the court.

Before Caplan took the stand and refused to testify, both sides went into the judge’s chambers to try to work out an agreement that would be amenable to both sides, to try to limit the penalties everyone knew would befall Caplan. A stipulation was offered by the prosecution, but the defense refused it. Prosecutors had suggested that the judge tell jurors Caplan was “unavailable” to testify and that instead, they would hear the testimony she gave at last month’s hearing. The defense, however, could not accept this. Spector’s lawyers have previously said they would have more vigorously questioned Caplan at that hearing had they known it might be presented to a jury.

After the morning break for the in camera hearing, the lawyers are in court looking grim,, and the judge announces that after a “frank” and “off-the-record” conversation, no deal could be reached.

In other court news, the defense again files a motion and asks for hearing on ruling for a mistrial. This time the defense cites “outrageous government conduct”,  based on an “open letter” former defense investigator Bill Pavelic wrote to the judge, the prosecution, the police and the defense.

Here’s the memo
from Pavelic’s personal site. There are a lot of allegations here, most of which Pavelic repeated on Court TV , which was the basis for the Prosecution’s motion to the court regarding defense witnesses “running around talking about the case”. And just like everything in the L.A. legal world always does, it all comes back to OJ Simpson.

Prosecutor Dixon told the judge he wouldn’t respond to the defense’s motion unless Pavelic made the same wide-ranging allegations cited in his memo on the stand, in open court, under penalty of perjury. Defense attorney Plourd hesitated, saying that he had no control over Pavelic, who stopped working for the defense in April 2003. The judge recommended a subpoena and said short of Pavelic swearing to the validity of the accusations in the memo on the stand under oath, the defense could forget about a hearing.

The memo is long, boring, and full of delusions of grandeur on the part of the author, and I think the most interesting part of it is the little tidbit that Pavelic quotes Stanley White as saying Oliver Stone is going to do a movie on the Phil Spector case. That would be cool. The photo at the end of the memo, however, is very, very interesting. Pavelic says he took it as a souvenir during the search of Spector’s home by the defense team. Visible are Stan White, Robert Shapiro, Sara Caplan and possibly Henry Lee. Caplan testified that Stan White was doing perimeter security during the search, but this photo clearly puts him in the house and, even more telling, he is holding a flashlight  – he testified that he shone a flashlight on the fingernail he alleged that Lee found., and Caplan testified that she never saw Pavelic with a flashlight.

So, oddly enough,. although Pavelic denounces Stanley White in his “memo” as a snitch, a liar and a perjurer, the photo he includes actually discredits Caplan’s testimony and bolsters Pavelic’s.

Besides all this “out of the presence of the jury” excitement, there were also several witnesses who testified.  Sheriff’s department criminalist James Carroll, a firearms examiner, explained the specifics of the Colt Revolver that killed Lana Clarkson. The whole gun is seven inches long, but the barrel is
just two inches, which is why it’s called a snub-nosed revolver, he says.

Carroll says that the gun was in good working order and that it could not have gone off unless someone pulled the trigger. In single-action mode, he says, the gun requires about four pounds of pull to fire. In double-action mode, that goes up to about 11 pounds of pull.

He allows that in single-action mode, the gun may discharge if a shooter has his finger on the trigger and a second person slaps or strikes his hand.

“Yes,” he said, but “your finger would have to in one way or another pull the trigger.” 

Jurors also heard from another criminalist who testified about the results of gunshot residue tests performed on the hands of Clarkson and Spector. The tests showed extensive residue on Clarkson’s hands and two tiny particles on Spector’s.

Steven Dowell, an employee of the coroner’s office who performed the tests on Clarkson’s hands, said the presence of residue did not necessarily mean Clarkson fired the revolver.

“The conclusion I would reach is, therefore, the decedent may have discharged the firearm or otherwise had her hands in the immediate area of the gun,” he testified.

“There is no scientific way for you to tell?” asked Deputy District Attorney Patrick Dixon.

“No,” he said.

Under cross examination,. Dowell was grilled by Defense Attorney Linda Baden about exactly how gunshot residue may have gotten on Spector’s hands. Dowell conceded that GSR is a very mercurial substance. If someone shoots a gun in an enclosed area, the GSR may end up deposited as far as 5 feet around the gun, and 12 feet from the barrel. It is also possible for GSR to be transferred in several different ways, including touching something that has GSR on it, wiping the GSR from your hands or person onto other surfaces, and “airborne contamination”. He also explained that GSR can stay on clothes indefinitely unless the clothes are washed. If you go hunting in a jacket, fire a gun, hang that jacket in a closet and don’t take it out until a year later, that jacket can still have GSR on it. It can also contaminate other clothes it may rub up against, and there are no tests to determine the age of GSR.

Dowell also testified about the particular ammunition that the Colt Revolver was loaded with. That ammunition has not been sold since the 80’s.

Next on the stand was Christine Pinto, a senior criminalist with the LA County Sheriff’s department, whose specialty is trace evidence. Her opening testimony was basically a rehash of Dowell’s, she said the presence of the particles found on Spector’s clothing and hands was “consistent” with someone firing a gun or being nearby when a gun was fired, but she described the results of being of limited value because the particles were easily transferred by touch and could be washed off or worn away through normal activities.

“I cannot identify the shooter based upon the results of the test,” she said.

There is no testimony Tuesday  morning – a juror has a graduation ceremony to attend. But the prosecution said that they have only one more witness before they rest their case, since Ms. Caplan will not be testifying. Then the defense will begin. There is time off for the Fourth of July holiday, but the defense plans on being done “in a couple of weeks”.

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