The Darwin Exception

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

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CA vs. Spector – The Defense Begins

Posted by thedarwinexception on June 26, 2007

Sarah Caplan is one step closer to going to the hoosegow. Yesterday afternoon the Court of Appeals denied her motion concerning her refusal to testify about missing evidence. Judge Fidler again stayed her appeal, allowing her to argue her case in front of the California Supreme Court.

Fidler told the lawyers “If the Supreme Court justices do not grant relief, the stay will be lifted and we will proceed accordingly,” Fidler said he would give Caplan until Thursday afternoon to take her case to the state Supreme Court. If the high court justices do not act by then, Fidler said, “she is to be present in court and she is to be prepared to go into custody.”

Because of these developments, once Herold was (thankfully) through with her testimony this morning, the State waived it’s right to rest their case in chief, choosing to instead wait until the Caplan matter is resolved, either by her coming into court to testify, or the judge throwing her in jail and therefore deeming her “unavailable”, which would then grant the court the opportunity to read her earlier testimony into evidence before the jury.

The court also explained that rather than delay court even more than it’s already going to be delayed – by a week off next week – he is going to allow the defense to begin calling it’s own witnesses before the state formally rests it’s case.

The jury did hear a bit about the whole “Caplan matter” yesterday afternoon during the re-direct examination of Dr. Lynn Herold by Alan Jackson. Jackson set up a “hypothetical” question, using names and facts we know to be true when he asked Herold “Suppose a team of defense attorneys – not these particular defense attorneys, but an earlier team – went to Mr. Spector’s house, and suppose a criminologist – Dr. Henry Lee – was seen to have picked up a piece of evidence by one of the defense attorney’s – Just assume her name is Sara Caplan – and suppose she came into the courtroom and testified – under oath – that she had seen this happen, and she described it as a small white object that looked like a fingernail – and suppose this evidence was not turned over to the prosecution despite a court order to do so, and suppose this object was last seen in Dr. Lee’s possession and has not been seen since  – would this evidence help you in your determination of what happened in this case?”

I mean, really, talk about your far fetched hypothetical questions!

But, thankfully, this was the last question that Jackson asked her, after shoring up her testimony and using her to point out that Baden had not managed to get her to change her initial testimony, change her opinion on manner of death, or change her conclusions on the most important matter she testified about – the distance that the blood spatter could have traveled.

During her cross examination of Herold, Baden did bring up one new and far fetched scenario- she suggested that the reason that Dr. Herold saw blood spatter on the back of Spector’s cuffs of his dinner jacket was because Phil Spector could have been walking or running toward  Clarkson with his arms up  rather than standing in front of her when a gunshot killed her.

Herold did concede that he could have been moving when the back spatter was deposited on the jacket, but that was as far as she would speculate in the whole “running at her with his arms over his head” scenario.

But Herold would not accept the studies involving shooting of calves and other animals that Baden cited referring to how many feet blood spatter could trace and Herold said she was unfamiliar with a paper in which another expert said that blood spatter in a suicide can travel 6 feet. “I’m not familiar with that paper and I will not comment on it unless I can see it,” she said.“You are not a medical doctor, are you?” asked Kenney-Baden.“No,” the witness said, smiling. “I’m a real doctor, as opposed to a body mechanic.”As jurors and the audience laughed, she added, “A standard lab joke.

Not so prone to making such jokes was the first witness called to the witness stand by the defense – Dr. Vincent DiMaio – the “Godfather of Pathology”, best known for some of his controversial autopsies and decisions when he was  Chief Medical Examiner of Bexar County, Texas, which ultimately resulted in Governor Rick Perry passing into law Texas HB 1068 in 2005, in an effort to protect the citizens of Texas from unscrupulous behavior by Medical Examiners and Crime Labs.

Perhaps this rather cloudy past is what motivates the prosecution to have a little chat with the judge before the jury comes back into the courtroom for the beginning of the defense’s case. They bring to the judge’s attention the fact that DiMaio has been known before to kind of “circumvent” court’s rulings about admissible and inadmissible evidence, and read a ruling to the judge from a prior case DiMaio testified at. In that case, ignoring the judge’s warnings not to mention specific facts not in evidence and facts that had been ruled to be inadmissible, DiMaio took the stand and immediately referred to them anyway. The prosecution reminds the court that there are already rulings in place that say that the “journal” or “life story” of Lana Clarkson has been ruled not to be relevant and that witnesses, even expert witnesses,  may not testify that based any of their conclusions or findings on this document.

Christopher Plourd, defense attorney, tells the judge that DiMaio thinks it would be “malpractice” not to have considered Lana Clarkson’s state of mind and that he relied on her partially finished and wholly inadmissible memoir to do so. Too bad, says the judge. DiMaio’s medical responsibility “does not trump the court’s ability to make sure the jury only has admissible, appropriate evidence to consider,” Fidler says.Plourd then goes through a lengthy list of documents that DiMaio says he relied upon in drawing his conclusions: emails, letters, statements…Fidler explains after each one that if they have not been introduced and accepted by the court during the prosecution’s case in chief, they will not be ruled admissible now. Fidler also warns Plourd that if DiMaio is going to refer to any of these things, Plourd had better make damned sure they have not been previously ruled on. He tells Plourd that if DiMaio refers to any of documents that have been previously ruled inadmissible, the witness will be immediately excused and his entire testimony stricken.With that, Plourd sits down.DiMaio has been given the appellation by some as “Liar for Hire”, and although his first hour on the stand is spent going through his extensive CV and accomplishments in the field of Pathology, including the editorship of the USA’s only peer reviewed journal for Forensic Pathologists, called the “Orange Journal”, and explaining that until 2005 there were no national standards for autopsies, that it was pretty much left up to each medical examiner to do whatever the hell he wanted, and that with the backing of the National Association of Medical Examiners, an organization DiMaio is a leading member of, there were finally standards put into place, but once he gets to the specifics of *this* case, it’s glaringly apparent that the guy has been paid to be here, and that he has been paid to say exactly what he is saying, despite his attempts to assure the jury he is no “hired gun”. “I don’t advertise or anything like that,” he tells them. “If the case is interesting – I am retired now so I can choose – and if I feel I want to work the case, I work the case.”

Nearing the end of court time for today – there is no court this afternoon, DiMaio finally got past explaining the shooting of calves, the importance of gun barrel length and the number of grains in a .38 caliber bullet, and got to the crux of his testimony. “People think the most difficult cases are homicides. That’s not true. It’s suicide. People do not want to accept suicides. They will try to make suicides homicides.” He offered.

DiMaio then drops his bombshell – this was a suicide, plain and simple. She shot herself “Anything else is speculation” he tells the jury. He does not qualify his opinion with “Is consistent with a suicide”, “Could be a suicide”, “is possibly a suicide” – he just rules it a flat out suicide, no questions asked, no ifs, ands or buts.

DiMaio then explains that the jury needs to look at all the other factors involved, including Lana Clarkson’s BAC at the time of her death, which was tested and determined to be .12. DiMaio explains to the jurors that “Drunk people do stupid things”, which, really, could be an explanation for Phil Spector’s behavior that night, since his BAC was determined to be .08 hours after the murder. DiMaio goes on to tell the jury that once you get above a .10 BAC, “Hey, anything can happen”.

DiMaio then goes on to even greater levels of unbelievabilty when he explains to the jurors that most women who kill themselves do so with a gun – in direct opposition to known facts and studies that claim that most women who attempt suicide do so with drugs,  pills and self poisonings

In 2003 Colonel Philip Shue died during the early morning hours when his 1995 Mercury Trace crashed into a group of small trees. The responding officers noted that he had duct tape around his ankles and both wrists. The autopsy noted a large 6 inch incision down the midline of his chest, the excision of both nipples, multiple other incisions on his chest, a missing earlobe, an amputated left digit finger, multiple head injuries, contusions, abrasions, and a puncture wound in his right calf.

The autopsy was performed by the Bexar County Medical Examiner’s Office. Dr. Vincent DiMaio ruled this death a suicide, too.

There will be testimony tomorrow. Next week court will be dark for the 4th of July holidays.

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2 Responses to “CA vs. Spector – The Defense Begins”

  1. Kitt said

    What a piece of work! (DiMaio, that is.)

    Thanks for the recap.

  2. Julie said

    Thanks for the recap, Kim! I don’t have the patience to sit through actual CourtTV testimony anymore (too many years of Law and Order makes anything else seem just damn boring), so I depend on your Cliffs Notes versions. I guess the one-sentence moral of the story today is that this Dr. DiMaio is just, as we say in the south, “dumber than drain hair”…

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