The Darwin Exception

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

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Archive for July, 2007

CA vs. Spector – If You Subpoena Him, He Will Come, Unless he’s Busy

Posted by thedarwinexception on July 31, 2007

So, after a long 4 day weekend we are back to testimony, and anticipation is high. That anticipation is dashed when the first witness of the day takes the stand – a nice enough fellow, I suppose, not very pompous or arrogant, in striking contrast to the defense’s other recent experts, DiMaio and Spitz, although this guy really has nothing to be all that pompous about, since it is brought out rather early in his direct examination that he doesn’t hold a Master’s degree, he doesn’t hold a PhD, and he has a degree in Zoology, which makes me wonder what exactly he will testify about – or if the defense is going with some new theory – like a band of marauding Rhino’s armed with Colt Cobra pistols gunned down Lana.

But Mark Scott Taylor holds himself out as a DNA expert, and it is interesting to note that he was a technical advisor for the show “Quincy ME”, and often appeared on the show as Quincy’s assistant. He was also a technical advisor for the movie “Fast Times at Ridgemont High”, which Lana had a small part in. Although I can’t imagine why that movie needed a technical advisor. Although it has been years since I’ve seen it.

So Taylor starts explaining PCR, and the amplification of DNA to extract a DNA profile from a reference sample by identifying alleles and then testing the reference sample against an evidence sample to see if there is a match in certain sequences and then either excluding or including certain people as the donator of the sample.

I have absolutely no idea why this witness was even called – I was not even aware that there was any DNA samples that were in question in this case, but then the Defense asks Taylor if two people drink from a glass after kissing if it would be possible to find two people’s DNA on the glass. Taylor says yes, that could be possible, but, again, I think that suggesting only Lana was drinking that night is pointless, since we have the receipts form the several bars that Phil was at and they all show that he was drinking, and even his first companion that evening commented on the fact that he was drinking, which was unusual for him when they went out for their regular dinner dates.

The defense then asks how much DNA is present in saliva compared to other samples from the body – and Taylor says that since saliva is from a mucous membrane, where cellular material is always being produced and always being “sloughed off” that saliva has a lot of cells in it, and therefore a rich amount of DNA. Taylor says that saliva or cheek swabs are the preferred method of collection of DNA for a person, as it’s the strongest most concentrated sample they have to work with.

The defense then asks if someone could sneeze and transfer DNA, and Taylor again says yes, that’s possible. He goes on to explain that testers can tell when a sample contains saliva because they test for proteins in the sample. He references that old grade school experiment that most people took part in, wherein kids would touch their tongue to a potato and have it taste salty, bitter, sweet, etc. He explains that this effect is due to a protein in saliva called amylase. DNA experts test for this protein and if it is present, they can determine that a sample is from saliva. It doesn’t mean that it is exclusively saliva, but that saliva is present.

In this case, Taylor’s lab received a sample to test that originated from the Los Angeles Sheriff’s Department – it was a split of a sample, which means that it was divided for the defense and the prosecution.

Taylor testifies that the sample was packaged in a coin envelope that contained a glassine envelope, which are basically those wax paper looking envelopes you sometimes get wedding favors or Halloween candies wrapped in. Inside this envelope was one of Henry Lee’s famous post it notes that contained the samples of dried blood Lee collected from the stairs in the foyer of the Castle. Taylor testifies that he did presumptive testing on the flakes which were positive for blood. He then did DNA testing on the sample, and there was a single source for the sample – Lana Clarkson. He prepared a slide out of the material for microscopic testing and determined that the sample contained not only blood but some sort of cellular material indicative of the presence of other tissue besides blood – although he would not venture a guess as to what kind of tissue this was – he would leave that to more qualified people such as a pathologist or histologist.

So apparently the defense has called this witness to refute the testimony that there was no blood spatter beyond the hem of Lana’s dress. If there was back spatter that included tissue that reached the stairs, this would belie that claim, and maybe this one little piece of spatter actually did hit Lana’s dress, fly over the carpet on it’s way to the left panel of Spector’s jacket and got caught in a cross wind or something.

I think the bigger issue of this evidence is that it’s kind of setting up Henry Lee – since he is the one that collected this sample, it would stand to reason that he would have to be called to authenticate it. And this witness also seems to not have a problem with Post It notes, so maybe that is to pre-empt any cross examination in front of the jury of Lee about his collection methods, the way there was in front of the judge during the mini trial.

During Cross examination, Jackson brings up the witnesses lack of credentials and lack of a Master’s degree. The witness explains that the did all the course work for the degree, he just never got around to writing his thesis. Which to me seems like a waste, but, whatever.

Jackson also asks about the damned post it notes, and the witness says that it is nit unusual anymore to see samples come that have been collected via this method. Jackson brings up that there are a plethora of specialty companies that make evidence collection paper goods, but the witness points out that these are really just plain old manila envelopes with “CORONER” or “EVIDENCE” stamped on them. (And they probably charge a whole lot more for them than plain old manila envelopes, too, for that stamp being there).

I’m sick of hearing about post it notes, frankly, although this trial has opened my eyes to the advisability of buying some 3-M stock, since “post it notes as evidence collection tools” seems to be on the rise.

Jackson then gets the witness to admit that his Laboratory is not ASCLAD (American Society of Crime Laboratory Directors) certified. And I really, really expected the guy to say “well, we did all the course work, we just haven’t filled out the application.”

The next witness is Steven Dowell, another repeat witness we have seen before. He works in the coroner’s office. He is here to testify about a meeting between him and Dr. Pena, along with Dr. Anselmo, the dentist. This  meeting was to discuss one of the vials that contained Lana’s tooth material, which was
broken and had the sample lost out of it. We already knew this happened, as Dr. Pena testified about it, as did Dr. Lynne Herold. So why the defense is making an issue out of it is beyond me. I suspect that they are doing so only to either a.) confuse the jury with all the talk about the “small flat white object” Dr. Lee lost/found/didn’t find or to b.) counter any “adverse implication” jury instruction the judge might give because of the sample from a.). If the judge has to tell the jury “If the defense found something and didn’t turn it over to the prosecution, you can infer that this evidence would have been either advantageous to the prosecution or adverse to the defense.” If the defense makes a big stink about this sample also being lost, it may either reflect badly on Dr. Pena, who was a very good witness to the prosecution, and may also lead to their own “adverse implication” instruction from the judge to kind of cancel out the one the prosecution may get.

The cross is one question – “You followed the proper procedures when you found this sample missing, right? You documented it, photographed the vial, wrote this in your notes and informed the proper people, right?” The witness says “Right.”

The next witness convinces me that the defense is putting on “fillers” while they wait for that slow boat from China to bring Henry Lee back to the United States. That’s the only reason this guy was called, I’m sure. He is Richard Munisteri, in house counsel for the House of Blues and he says absolutely nothing that couldn’t have been stipulated to by both sides. Munisteri authenticates the time cards and schedule for The House of Blues for the week Lana died, noting that she was off on Tuesday (Punkin’s regular party night and probably the night of the after party that Greg Sims testified about), and she pulled a double on the day before she died – because, of course, depressed, suicidal people who are just waiting for someone who owns a gun to bring them home so they can kill themselves always do things like work a double shift for the extra money right before they die. They’re just far sighted and looking at the long term picture that way.

The court comes back from the lunch break to the stunning news that despite the four days of vacation both sides have had, the defense has no more witnesses lined up for today. They do offer, however, to go ahead and submit Henry Lee’s earlier testimony into the record, since he is now an “unavailable witness”. He is unavailable to the defense since they can’t get him back today, tomorrow or Thursday, and since significant portions were presented before, during the mini trial and Jackson had every opportunity to cross examine Lee then.

The prosecution strenuously objects – they contest the fact that Lee is unavailable, and the defense case started on June 26th – plenty of time for them to get Henry Lee here is they wanted to do so. It seems that Lee has always been here before when they needed him, he was there in mere hours after the murder for the murder scene investigation. The prosecution points out that the last time Lee testified he was in Italy and the defense got him here. The prosecution says that this is a last minute call on their part. They ask to have the defense show an offer of proof that they have tried unsuccessfully to get Lee here.

The defense argues that it is irrelevant whether or not Lee has been here in the past – he’s not here now. They make a representation to the court that they have had contact with Lee and with his office, and Lee has said that he is out of the country and unavailable and it’s not that he is unavailable to communication – but they can’t issue a subpoena to him in a foreign country. The defense says that Lee will be back next week, but that isn’t germane to whether or not he is here now. The defense says that they can make a further offer of proof, if the court would like, and the judge tells him “well, you better.”

The defense then explains that Henry Lee had a pre-existing trip planned to China, and that he left on that trip and he’s still on it – the defense thought that their case would last longer, but they deleted some witnesses, shortened some others, and it went quicker than they expected.

The judge asks “Are you ready to rest?”

The defense says “tomorrow or at least, we are the point of resting this week, we have three or four short witnesses tomorrow morning, and we should be done after that. Subject to the introduction of our exhibits, of course,  and we have the viewing, and and we would like a rebuttal list, which we have asked for and haven’t gotten.”

To which the prosecution adds that “this is because they told us they would be going through next week.”

The judge asks about the rebuttal case and the prosecution offers that it shouldn’t take more than 2 or 3 days.

Getting back to that “offer of proof” the defense was giving to the court regarding Henry Lee and his availability, the defense says they have no more than what they’ve already offered – Lee is on a trip and has said he won’t cut his trip short.

The judge asks when they originally subpoenaed Lee to appear in this trial, and the defense says that they never actually officially subpoenaed him – it was just a handshake contract where Lee would be available as long as it didn’t interfere with his pre-existing plans.

The judge kind of raises his eyebrows and asks if the defense doesn’t think that it’s a pre-requisite to put their witnesses under subpoena? The judge then says “I saw in the press that he was taking this trip – he announced it in a media interview – Lee said he didn’t think he would be necessary to your case, that you had other witnesses – and I am assuming you could read the same papers as I did and you could have and should have put him under subpoena at that point.”

The defense says that they didn’t think it would be necessary to subpoena Lee – that trials don’t’ often keep pace in a way that is predictable and that since they deleted some witnesses and shortened others and that is the status, and in addition, we though\t it would satisfy the prosecution that Jackson already had the opportunity to cross examine Henry Lee.

The defense also says that if and assuming that Henry Lee is available next week, and they either call him in sur-rebuttal or if they re-open their case to call him that it would sure be nice to have that jury instruction the court is going to give the jury regarding the “small white missing/lost object”. You know, so they can tactically know what to ask Lee.

Jackson gets up and offers that there is precedent vis a vis People vs. St. Germain, for subpoenas that are issued in one jurisdiction to be recognized and enforced in foreign countries, and that saying that Lee is beyond the court’s power is not entirely true. If the defense had subpoenaed Lee, then the court would have some power to force his appearance.

Jackson also argues that he did *not* have the opportunity to cross examine Lee, especially on some of the issues he believes the defense wants to raise, such as the 72 inch span of the blood spatter, and the blood Lee says he found on the wall. Jackson says that he did not feel he had the ability to cross examine on these issues during the mini trial, and that he focused his cross to the “small white object”.

The defense says that Jackson had the opportunity, and “exploited it” and says we learned all about camera technology during that cross.

Fidler then rules that the defense will not be able to offer Lee’s prior testimony into evidence. He rules that the defense has not shown that Lee is unavailable – just the opposite of due diligence – that the witness should have been subpoenaed, especially once they learned he was leaving the country . The defense had said that “we can’t interfere with his schedule” but the judge tells them yes, they most certainly can, that Henry Lee’s personal trips do not take precedence over this trial, and that if he had been subpoenaed, then he would have had the opportunity to come before the court and tell the court that he needed to leave the country. But as it stands, he is not an “unavailable witness”, because he was never formally a witness under subpoena. The judge also tells the defense that no, their case in chief is not over tomorrow, that they requested a viewing of the scene and that is not happening until August 9th. Then they can rest their case and if they want to call Henry Lee in the meantime, that’s fine.

The judge also upbraids the defense for asking for the jury instruction regarding the little while object in advance. He tells them “No, I am not ready to formulate that instruction, and I’m not going to. I haven’t even seen all the evidence relating to it as of yet, and although it might be nice for you to have that in front of you for strategy’s sake, sorry, you aren’t getting it.”

Fidler also take this opportunity to talk to Phil Spector directly. He mentions that under case law, harkening back to the Charlie Manson case, wherein a prosecution attorney was killed by the Manson family during the trial, there is case law that deals with attorneys who argue cases when they were not present at the trial. When the prosecutor in the Manson case was killed, another attorney was allowed to step in and argue the case before the jury, after familiarizing himself with the proceedings. This case was overturned on appeal, since the attorney was not present for the testimony of witnesses that he argued about in front of the jury. Fidler tells Spector that he understands that Bruce Cutler is prepared to argue portions of the closing arguments before the jury, despite the fact that he was not present for much of the defense case. The judge asks Spector if this is agreeable to him, and that if he asserts this to the court, that he is waiving his right under the law to later assert that this was not fair. Spector tells the judge “I’ll discuss it with him.”

The last issue that Rosen takes up with the court today are 11 photos he has of Lana Clarkson holding guns on movie sets or as part of movie roles. The judge had previously ruled such photos inadmissible and after viewing them, upholds the same ruling. The judge points out that holding a gun at the direction of a movie director is not the same thing as familiarity, and that if the defense wanted to bring in the people who trained her with the weapons, that would be a different matter, but photographs of her holding guns says nothing about her familiarity or expertise with such weapons.

The judge then brings the jury back in and tells them that, be it good news or bad, they are done for the day. He also teases them with the info that the defense case is almost over, that they may get to go on a field trip, and that court will resume tomorrow. He doesn’t tell them that tomorrow’s witnesses are slated to be computer experts – he does want them to come back, after all.

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