The Darwin Exception

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

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CA vs. Spector – No Fair! They’re Entertaining the Jury!

Posted by thedarwinexception on June 28, 2007

When you hear hoof beats outside you expect to see horses, not zebras – Alan Jackson

Well, I am changing my opinion on the defense attorneys. I like them now, well, at least I like Christopher Plourd. Why? Because he’s honest and realizes his shortcomings, and he is willing to admit to them in open court.

Today after the beginning of Alan Jackson’s cross examination of Dr. Vincent DiMaio, which turned really, really ugly very, very quickly, the judge announced there would be a short break. After the jury left the courtroom, Plourd took the opportunity to stand before Judge Fidler and ask that the Judge rein in Mr. Jackson. He complained to the judge that Jackson was yelling, editorializing, and “entertaining the jury”. He then said to the judge “The defense doesn’t do that, your honor.”

To which I can only say “You’re damned right, Mr. Plourd.”

For some reason all I could think of during this exchange was how quickly Law & Order was going to work this into one of their courtroom scenes. They can have Danielle Melman stand up before Judith Light saying “Your Honor – Jack McCoy is entertaining the jury. I *never* entertain the jury. This is not fair, your honor, if he’s not as boring as we are, how can we be expected to win?  And by the way, how come he gets all the cute assistants?”

But before this all happened, Dr. DiMaio continued his direct examination by Plourd, pointing out very surely and very smugly, that every single thing Dr. Pena, the State’s pathologist, testified to was wrong. He contradicted the findings that the tongues was bruised by “blunt force trauma” as Dr. Pena suggested, saying instead that the bruising was due to the build up of gasses in the mouth “exploding” when the gun was fired, which he compared to having an SUV dropped on your tongue.

DiMaio held his hands up to his mouth to demonstrate how the blood spatter would have been deposited on Clarkson’s hands. “It’s consistent with arms being raised in this position,” he said, forming a gun shape with one hand and holding it with the other. Of course, he did not point out that it might have been just as likely that Lana was holding the gun with both hands trying to deflect it away from her face.

DiMaio also completely contradicted Dr. Pena’s characterization of Lana as a “hopeful” person. He said that after reading her e-mails, and after examining her personal medical records he would characterize her as a depressed, broke woman with drug and alcohol problems, “no skills,” and diminishing prospects in Hollywood.

“She was an actress who was 40 years of age. I’m sorry. It’s sex discrimination but that’s the way it is,” DiMaio said with a shrug.

DiMaio also dismissed the prosecutor’s contention that the muzzle of the .38 Special blew a piece of Clarkson’s acrylic nail off as she tried to push the gun out of her mouth. He said it was much more likely that it was knocked off by the weapon’s recoil, as she pulled the trigger, and said that if her finger was in her mouth the blast would have melted the acrylic nail and left evidence of itself inside the mouth.

“You are putting your finger in a whirlpool of blood, tissue, soot and powder, and this finger and the whole length of the finger would be covered with blood, soot, powder and tissue,” he said.

DiMaio also made some claims that sent millions running to Google to research “twitching” and “heart beats after death”. He dismissed Dr. Lynn Herold’s claims that Spector moved Clarkson’s head after the shooting. He testified that a human heart can continue to beat after brain death or a severing of the spine. He pointed out that this was common knowledge back in the Wild Wild West, when the hangman’s noose was a common instrument of death. He said that after the outlaw was hanged (hung?) and the neck was broken it was not uncommon for the heart to continue to beat for up to 20 minutes. And the guy is from Texas, after all, he must know about this stuff.

He also pointed out that “involuntary twitches” and spasms are not uncommon after a suicide, and then he went on to spin this long gruesome ass yarn about an autopsy in Colorado “several years ago”. Apparently, this corpse, not at all uncommonly, still had “electrical impulses” swirling around inside the cranium. These “electrical impulses” reacted when the ME went to remove the brain, causing the corpse, which had already been dissected, by the way, and was now transected and had no internal organs, to actually sit up on the slab. Assuring at least one fucking nightmare for me tonight and at least one new story for Stephen King.

DiMaio said that these “electrical impulses” and “twitching” could very well have been happening to Lana Clarkson, and could easily account for the movement of her head after death. Although he did not speculate on whether or not these involuntary twitches and spasms would also have accounted for her getting up to retrieve a cloth diaper to clear some of the blood from her face.

Plourd then brought out some of the 3-D model visual aids for DiMaio to illustrate his points to the jury. DiMaio used a 3-D tongue to show the jury exactly how the bruising happened, according to his opinions. Then Plourd gave him a 3-D transparent model of a head and a long baton for DiMaio to illustrate to the jury the front to back, midline trajectory of the bullet that ended with the severing of the spinal cord.

He explains that this trajectory is consistent with Clarkson pulling the trigger herself, as the gun would have been straight up and down. It would have to have been, he goes on to say, since that would have been the most comfortable position for Clarkson, what with those broken wrists she had from her automobile accident. Which is a rather odd statement to make, since Lana didn’t have a car accident, she broke her wrists during a fall she took while entertaining some children during a charity event.

Then, the cross examination begins. Alan Jackson comes out locked and loaded, ready for a fight. This is not the same Alan Jackson we have seen before during direct examinations – this is an angry, animated, snarling Alan Jackson who opens his cross with the statement – “There are lies, damned lies, and then statistics.” And he challenges the fast and loose statistics that DiMaio quoted yesterday, starting with DiMaio’s claim that women tend to shoot themselves when they commit suicide. Jackson asks DiMaio exactly where he came up with the numbers he testified to yesterday and DiMaio cites one of his own papers. Jackson then cites back to him the findings of the CDC and the WHO, which state that the number one method of suicide among women is overdosing.

DiMaio waves away these studies, prompting Jackson to comment to DiMaio You obviously know more about this than the CDC”.

Then Jackson carries out the ultimate insult – he pulls out DiMaio’s own book and uses it to impeach him.

“Isn’t it true, Dr. DiMaio, that when a woman dies by gunshot wound that it’s 8 times more likely that she’s the victim of a homicide than a suicide?”

“Isn’t it true, Dr. DiMaio, that when a woman commits suicide that she is most likely to kill herself in private?

“Isn’t it true, Dr. DiMaio, that when a woman commits suicide that she is most likely to do so in her own home?”

“Isn’t it true, Dr. DiMaio, that when a woman commits suicide that she is most likely to shoot herself in a place other than her head?”

Dr. Dimaio can do nothing but say a subdued “Yes” to each of Jackson’s questions. Although he does manage to squeeze in another odd little opinion of his own – he says that it just “never happens” that someone commits homicide by putting a gun in their victim’s mouth – just doesn’t happen. Never.”

“Never”? Jackson asks him

“Well,” says DiMaio, “in my 56 years of being a Pathologist” (the number of years DiMaio has been a pathologist changes every time he quotes a number – it has been, depending on which figure you want to believe, 38 years, 50 years, or 30 years) “In my X number of years of being a pathologist I have only seen a homicide committed this way three times.”

“So this would be the fourth” Jackson says.

It is exchanges like these that cause the defense during the break to ask the judge to rein Jackson in. But the Judge tells the defense team that sure, there were objectionable behaviors from Jackson during his cross, but the defense needs to object if the want the judge to intervene “I’m not going to interrupt for you” he tells the defense.

And it certainly did get animated, with DiMaio at one point leaning over the witness box shaking his finger at Jackson, and in stark contrast to DiMaio’s calm, cool, authoritative, composed direct examination, at more than one point DiMaio got so flustered with the challenges Jackson was throwing at him that he would spit, sputter, stumble, stutter and
finally wave Jackson away with a curt “Never Mind:”.

Nowhere was the stumbling, sputtering, finger wagging more visible than when Jackson demanded DiMaio explain his findings concerning the Gunshot Residue found on both Phil Spector and Lana Clarkson. DiMaio testified on direct that the GSR on Phil Spector proved nothing – that GSR can be deposited on  a person just by being in the room when a gun was fired. At the same time, DiMaio also used the GSR on Clarkson to say that this “proved” she fired the gun. Jackson wanted DiMaio to explain this discrepancy and to explain how one thing can prove two different scenarios. He accuses DiMaio of being a biased witness, and not an objective scientist.

“Why did you say the particles on Clarkson’s hands were consistent with her firing the gun and not mention they were also consistent with her not firing the gun? asks the prosecutor. “You realize Dr. DiMaio, that this is patently false, GSR can’t be used to determine who fired a gun.”

“Because any scientist would know that” he explains “The people that are meant to read scientific reports realize that I don’t have to include ‘oh – this is also consistent with her being in the room with a gun that was fired’ – scientists would know that.”

“But you didn’t say that in your direct testimony, Dr. DiMaio, you didn’t include it’s also consistent with – you just said it’s consistent with her firing a gun. Why didn’t you include that it’s also consistent with *not* firing a gun?”

DiMaio sticks with his “scientists know it” answer, which doesn’t seem to be the answer Jackson wants.

“So are you saying, Dr. Dimaio, that you didn’t write your report for the defense- that you wrote it for the scientific community?”

“No, I’m not saying that” Dimaio answers, his voice getting more and more condescending – “I assumed they would have experts reading the reports I wrote.”

“Experts?” Jackson asks, incredulous “Well, what about this *Lay* jury? Why didn’t you include both consistent with and not consistent with for them?”

DiMaio hesitates as Jackson continues peppering him with variations of the same question. Finally, DiMaio blurts out, “Because that is how we testify!”

He again leans over the witness box and wags a finger at Jackson.

“You had scientific witnesses who were testifying when I was here who were not objective, who said things that were absolute nonsense,” he thunders at the prosecutor. “I told the jury the truth!”

“Actually what you told the jury was a half truth,” Jackson shoots back.

Jackson tries to defuse the situation by switching gears to questions about the transparent model head and the trajectory of the bullet. Dr. DiMaio asks Jackson if he would like DiMaio to demonstrate the trajectory of the bullet. Jackson says “Sure”. DiMaio immediately leaves the witness box and walks swiftly towards Jackson. Jackson, surprised, says to DiMaio “You want to demonstrate on me?” Prompting the judge, after the contentious exchange the prosecutor and witness just engaged in to ask Dr. DiMaio “Are you armed?”

Jackson also has DiMaio testify as to the amount that he is charging Spector for his services. DiMaio says he is charging $400 an hour – the same rate he is charging the State of California for other cases he is working on for them. As of yesterday, before he took the stand, his total bill was $26,400. He also elicited a chuckle from the gallery when he pointed out to Jackson that since he is charging Spector by the hour that the more Jackson talked, the higher the bill was going. One has to wonder, with the number of times that DiMaio has waved away the prosecutor in the middle of an answer with a curt “Never Mind”, if Spector thinks he is getting his money’s worth.

Cross examination will undoubtedly continue tomorrow. Hopefully DiMaio will spend the evening looking up sources to back some of his more questionable statistics and claims, such as 40% of all Death Certificates in the US are filled out incorrectly, Hispanic Women count in most national statistics as “Caucasians”, and the answer that they ended the day on, that Phil Spector had no blood spatter on his jacket sleeves. Because Jackson is going to really tear him up on that last one.

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3 Responses to “CA vs. Spector – No Fair! They’re Entertaining the Jury!”

  1. Que Barbara said

    I really appreciate your synopsisii of the trial. Do you think the jury is unbiased? I mean, unlike O.J, how many people under the age of 50 have heard of Phil Spector?

  2. William Dayton said

    NAIL Spector ass to the wall.. I set there and listen to this Lowlifr dr.(if thats what you want to call him) Talk trash about a woman who was MURDERED by spector, and this lowlife tells people (she did it.)She was depressed/life had no meaning anymore. I never hear so much BULL SHIT in my 65 yr. That the way i feel about DiMaio’S Wife…

  3. Hatpin said

    Interesting point of view, William. We could do with more people with your insight and thoughtfulness in today’s legal profession.

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