The Darwin Exception

because it's not always survival of the fittest – sometimes the idiots get through

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CA vs. Spector – Blood Soaked Sponges

Posted by thedarwinexception on June 25, 2007

Lynn Herold is on the stand again – this time under the cross examination of Linda Kenny Baden. The rest of the courtroom is asleep. At least, I’m betting they are asleep, because if I wasn’t knitting while I was listening to this, I’d be asleep, too. I can’t imagine being in the jury box wihtout being able to knit while I sat in there. And I could use the knitting needles to wake up my fellow jurors, too.

I don’t know why it is that all of this evidence is palatable and interesting and vibrant when being presented by the prosecution, and then, for some reason, the minute the defense gets up to cross examine the witness, it’s like you are being slowly sucked into Hell. Maybe because they question each witness with only a view to setting up their own witnesses and with efforts to demean and impeach the credibility of each witness, therefore making their cross examination seem like one long movie trailer for a really bad Pauly Shore movie.

But, Linda Kenny Baden is cross examining Lynne Herold, trying to get her to concede things that Herold is just not going to concede. No way, no how. Please stop beating the dead horse, Linda Kenny Baden – please.

Although one part of the cross examination did get a little “testy”. Herold, probably as tired of the “set up our witnesses, please, since we know you actually learned your profession from them” questions, was asked about whether some of the microscopic blood spatters could dry and sort of flake off, since Herold testified that she didn’t measure the amount of spatter on the dress “as compared to” the number of spatters on Spector’s dinner jacket. Baden, of course, trying to set up her own forthcoming witnesses, is trying to establish that there was a lot more spatter on the dress than you can see, and that some of it may have “flaked off”, thereby establishing that there was more blood on the dress than was on the jacket, furthering their theory that Spector was nowhere near Clarkson when she was shot.

So, Herold said “I guess, that’s true, blood spatter may flake off over time, for instance, I didn’t find any spatter on Spector’s coat and pants, but that doesn’t mean it wasn’t there. He was moving around, it certainly could have dried and flaked off…”

Well, didn’t *that* piss Linda Kenny Baden off! She was angry. She snapped back to attention and said “Where in your report do you reference that??”

And Herold responded to this request with “well, look, as we say in the business, absence of evidence doesn’t mean evidence of absence.” So they exchanged a few zings, and that livened up the testimony for a bit.

It’s clear from Baden’s line of questioning of this witness that the defense is going to try to establish that an intra oral gunshot wound is different from any other kind of head wound and that gasses that build up in the mouth in this kind of wound, and this kind of wound with no exit, such as Clarkson’s, means that all blood spatter distances and patterns can just be thrown out the window, that there are no established guidelines, and that physics just can’t deal with this kind of wound.

Herold has repeatedly (and repeatedly) said that there isn’t a lot of literature to suggest that this might in any way be true, and she has repeatedly tried to stress to the jury that despite “accepted” limits and “published” journals saying “spatter can only go this far”, that the crime scene is what it is, and that most criminologists will work from the crime scene evidence forward, not from established “patterns” forward.

The substance of this part of the cross examination is actually pretty interesting if it could ever get some momentum, and if you hadn’t already been lulled into a coma by the time we got here. Linda Kenney Baden is pointing out lab experiments in which animals or blood-soaked sponges are shot and the resulting spatter measured. In some of these, according to Kenney Baden, the spatter went way farther than the 4 feet Herold has called the “theoretical” maximum.

But Herold dismisses them all. Experiments can’t replicate what happens to real people because, she said, “We don’t shoot people.”

She insists that the laws of physics are on her side and support a 2-to-4-foot range.

“There is no other case like this case. It is a unique case unto itself,” she adds

But Baden isn’t giving up. From the questioning, it is clear that she plans on bringing in experts to say that intra oral wounds are just a different kind of wound, with blood spatter being able to go much, much further than what Herold has suggested, because of the build up of gasses in this type of wound. The defense is hoping that this will explain the blood spatter on Spector if he is more than the 2 to 3 feet away from Clarkson that Herold says the blood can go. Of course, this means that the defense is also going to have to explain how the blood flew 6 feet without hitting anything *other* than Spector, such as the carpet in between them or the wall he would have had to have been next to.

To this end, and in trying to explain away the absence of blood on other objects in the room any further away from Lana than the hem of her dress, , Herold also testified under cross examination about the myriad types of luminol testing and different types of luminol, higher PH, lower PH, the lower PH doesn’t cause the blood to luminese as brightly, on and on with more than you ever wanted to know about luminol testing, laying the groundwork for the defense’s case and why there was no blood on any object in the room except Phil Spector’s jacket 6 feet away from where Clarkson was shot.

In other, more stimulating Spector news, Sara Caplan got a stay. So she isn’t going to jail just yet. An appeals court stayed Judge Fidler’s order that she be held in contempt of court for refusing to testify. Interestingly, it was Spector’s attorneys, not Caplan’s who got the stay. The defense filed an appeal Friday. Caplan’s lawyers still have until Monday to file their own writ.

The Court of Appeals did not set a date for a hearing, but wrote that the stay would remain in effect “pending determination of the petition or further order of this court.” 

“They have issued a stay basically on any further action by the judge regarding Sara Caplan,” said the defense attorney.

Also, Bruce Cutler, lead attorney for Phil, is “taking a break” from the trial. He told people last week that he would return July 23 and would offer one of the closing arguments. Roger Rosen is now sitting in the seat at the defense table vacated by Cutler

Because God hates us all, there will probably be another day of cross examination of Lynne Herold by Linda Kenny Baden tomorrow.

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