The Darwin Exception

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

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CA vs. Spector – 11th Hour Science from the 11th Expert

Posted by thedarwinexception on August 8, 2007

Court begins today with a questioning of one of the jurors – it is juror number 6 – he is a film executive with “New Line Cinema”, a company which has had prior dealings with Michael Bay. Since Bay testified yesterday, the court wants to make sure that this juror is not tainted by this prior relationship. The Juror says that he has never met Mr. Bay, that yes, his company may have had some dealings with Bay, but he was not party to these and his ability to deliberate will not be clouded by Bay’s appearance on the stand.

The court seems satisfied with the juror’s answer.

The defense then presents Jan Leetsma to the jury. This is the neuropathologist they called in at the last hour, which  the judge agreed was a discovery violation, but ruled that he could be called, anyway. This is the 11th expert witness called by the defense, including several recalls of the prosecution’s expert witnesses. But this is the 11th expert – here to bolster the defense’s ever changing theory of the case, and the ever evolving theory of the blood and how it ended up where it ended up and how it landed on the left panel of Phil Spector’s jacket. The expert witnesses called have said that the blood on the jacket could be satellite spatter, impact spatter or, lately, expired blood from the “involuntary expirations” in Lana’s agonal moments. In opening statements Linda Kenney Baden never mentioned these “expirations”, and certainly never suggested that Lana’s final breaths carried with them blood and particles which landed on the jacket – this is a recent theory introduced by Werner Spitz. In opening statements, Baden postulated the theory that the spatter was impact spatter and that it could have traveled 6 feet, placing Spector far enough away so that he couldn’t have been holding the gun. It seems that this new theory of “exhale spatter” is in response to the no-show of Henry Lee, who was to testify that the spatter could travel that 6 feet, in contrast to Dr. Lynne Herold, who said it could travel only 3 feet, placing Spector right back at Lana’s side.

But Jan Leetsma is not here to opine on whether this was a self inflicted wound or a homicide, his conclusions do not depend on how the wound was inflicted. He is only here to comment on whether or not her legs and feet and head could have moved after death, even after her spine was transected by the bullet.

Which is probably why I like this witness. He is what a paid witness should be – he is not rigid in his opinions, he doesn’t testify in absolutes and he allows for other possibilities and says many times to both direct and cross examination questioning “I’m not saying that this is what happened here – I’m just saying this is what could have happened”. Which is refreshing for a defense witness.

He makes the science easy to understand, and refuses to go into areas outside his area of expertise. And when all is said and done, it’s hard to remember who exactly called him, because he offered such broad and basic conclusions, both sides can pick and choose portions of his testimony to fit their theories.

And yeah, he’s 5 years older than dirt, and yeah, he’s been in the business so long that he testifies that he’s been “grandfathered” in and doesn’t have to meet all those pesky “continuing education” and “re certification” qualifications that the whippersnappers these days have to meet, and yeah, he’s probably deaf as a post, since the very first question Plourd asks him on direct is “How are you employed, sir?” and the witness answers “Just Fine!”, but, well, that kind of just adds to his charm – and to the bizarre nature of this case in general, where even the most innocuous question can induce laughter in the courtroom.

The witness testifies to his credentials, and then gets to the specifics of this case. He testifies that he is only going by photographs and other medical reports – he did not see the body nor the crime scene first hand.

Leetsma says that the projectile went to the back of the mouth and penetrated the skull base. The bullet severed the spinal cord at the point that the spinal vertebrae articulates or meets with the base of the skull. The bullet then went on to shatter the back of the skull, and came to rest under the skin at the back of the scalp.

He then testifies in generalities, and says that when the spine is severed there is an immediate loss of control. All voluntary motor actions cease. There is no breathing or moving that is voluntary or conscious. The communication with the upper brain, which tells your body to do these things in interrupted so all voluntary functions are interrupted. Consciousness resides in the brain stem, so that when this part of the brain is injured, consciousness ceases.

He then goes on to testify as to what the pressures will do when there is a gunshot wound to the head. He has seen firsthand via demonstrations of videos of gunshot wounds to the head what can happen – which the prosecution objects to, since the witness has no way of knowing if the people in those cases had their spines severed. The judge says that he can testify as to his knowledge.

The witness says that when a bullet is fired into the head, the gasses and the “pressure waves” from the bullet are like the ripples in a pond when a stone is thrown in. Those “pressure waves” disrupt the brain activity and brain tissue and “turn off” the centers of the brain that control different functions in the body. But that even after the brain centers are “turned off” there can still be involuntary movements in the form of spasms and reflexes. Even though the brain is a “control center” – there are still muscles and centers within the body that will react despite the fact that they have no controls placed on them.

The witness testifies that the position that Lana was found in in the chair in the foyer may not have been exactly the position she was in at the time of the “catastrophic event” – and to find how much or why she moved, we have to step back and look at the physiology and the anatomy of what happened. The doctor is shown a picture of  Lana in the chair after death (which I will not reproduce here, for many reasons, but if you would like to see it, it is here.)

In the image Lana is seen slumped down in the chair, and her legs are stretched out in front of her. Her head is also turned to the left side, although there was no blood found on that side of either her body or the chair, all the blood was found on the right side. The defense is attributing this to the “involuntary movements” after death. The Prosecution attributes it to Phil Spector moving the body during his wiping of the face with the wet diaper.

 The witness testifies that if Lana was sitting in a “standard” position at the time of the gunshot, with feet flat on the floor, back flush with the back of the chair, that after the gunshot, she could have slumped down into the position we find her in in the picture due to either gravity or just relaxation, but there are two other possibilities, as well, reflex movements after the bullet severed her spine, or movements as the result of decerebrate posturing. Decerebrate posturing, the witness testifies, is commonly illustrated by referring back to when you dissected frogs in biology. The frogs are commonly killed by inserting a needle in the back of the head (commonly known as “pithing”). At the moment that the needle is inserted, the frog will straighten out it’s limbs and the back will arch and the head will be thrown back in a rigid position. Then, the posturing will cease, and the animal can feel no more pain and is, for all intents and purposes, dead.

The doctor testifies that this same reflex is also present in humans, and that at the time of the injury, the body can display decerebrate posturing, and that this could account for Lana’s lags being kicked out in a straight position and her body being slumped down in the chair.

The doctor then testifies that the breathing function would also have ceased immediately. All volitional breathing was not functional after the spinal cord was severed. But, there are other systems and muscles involved in breathing, besides the center of the brain that tells your body to take a breath or exhale a breath, including the intercostal muscles. The intercostal muscles come in 2 varieties – internal and external. They lift the rib cage as a result of impulses from the spinal cord and even without the brain attached to the spinal cord, these nerves can still have triggers that may stimulate these muscles and this can cause a small amount of inspiration or breathing in. The internal intracostal muscles can also contract involuntarily, causing a small exhalation.

The doctor then addresses the fact that Dr. Pena had found blood in the alveoli, an issue DiMaio testified to extensively. This witness does a much better job at explaining that the blood can’t get into these bottom most portions of the lungs without some kind of help to “push it along”. He explains that you can fill the bronchial airways with blood and although it may be able to get into some portions of the lung passages, it’s difficult to get it all the way to the alveoli without some sort of pressure behind it simply due to the denseness of the blood matter.

He also explains that this blood and gasses and pressure that came from the bullet moving into the mouth would have distended the cheeks and the face, and those gasses and pressures and blood would have had to go “somewhere”. Most of it would have pooled in the back of the throat and some would have gone the “path of least resistance” which was the nasal cavity to the esophagus, to the air passages in the lungs, and he says this would have caused an irritation in the throat, similar to the feeling you would feel when something has “gone down the wrong throat” (I always say went down the wrong hole” but he says “wrong throat”). Our basic response when this happens is to cough, and how much of that cough is controlled by systems and reflexes located above the brain stem is unknown, so this feeling may have triggered an involuntary cough reflex in Lana – not that it would have been a full fledged cough, because she would not have been able to block that airway and produce what is a “normal cough”, but the basic reflexes the muscles produce in forming a cough may have been present.

This basic reflex to cough could have triggered the remaining chest muscles and abdomen reflexes with a vomiting or expulsion of air, gas and whatever particles were in her mouth. He says this, of course, would have been a one time event, although the muscles would still have been there and could have been capable of repeating this process.

The doctor also answers a question designed to bolster another of DiMaio’s claims, that the heart can beat after death. The doctor agrees with DiMaio and says yes, this is certainly medically possible. He explains that the heart has it’s own internal pacemakers, and it will be and be productively fulfilling it’s pumping functions regardless of whether or not the brain is attached to it. The brain’s neuroconnections can certainly cause the heart to beat faster, or they can tell the heart to slow down, and sometimes the brain can even stop the heart, but the heart can continue to beat whether the brain is connected or not.

On cross examination, Alan Jackson first has the witness testify as to when he was first approached to be a witness, how he was contacted and by whom. The witness says he was approached by Linda Kenney Baden, and that they emailed each other quite a bit as to travel arrangements and such, and that he spoke with Christopher Plourd via telephone about the content of his testimony

Jackson then asks the witness about the videos he testified that he had seen concerning head wounds and sucides. Jackson asks the witness directly if, for the purposes of his testimony here today, if it actually makes a difference if this wound was homicide or self inflicted. The witness says no, this is not important to his conclusions, that he is only testifying as to what happened after the shot was fired. Who pulled the trigger makes no difference. Jackson then asks if in those videos, if any of them showed the exact injuries that are seen in this case, and the witness says he does not know, but probably not, since it would be very difficult to reproduce the wounds exactly.

Jackson then gets to the heart of why it’s important whether or not Lana’s legs moved. Spitz had testified that the reason there was no blood found below the hemline of the dress was because Lana’s legs were folded underneath her – they only extended outward the way they were as she was found was because of the flailing and reflexive movements after death. Jackson asks the witness about the timeline of Decerebrate posturing, asking if it happens in minutes, seconds, milliseconds, or “instantly” – the witness seems to agree that it happens at the instant of the gunshot, for relative purposes of the word “instant”.

Jackson then sits in the chair, and demonstrates this decerebrate posturing, sitting upright in the chair, then slumping down afterwards. He asks the doctor is this moves the thighs, or makes them exposed considering that Lana was wearing an above the knee dress. The witness agrees that the covering or uncovering condition of the thighs is not going to change much after the posturing, although since the hips can be elevated slightly during the posturing, the dress may have not moved with the skin, being caught on the surface material of the chair.

Jackson then asks about his testimony concerning the head moving. The doctor had said it could flop form one side or the other due to the flexing of the neck muscles at the time of the decerebrate posturing. Jackson asks him about the pooling of the blood on the right side of the chair, explains to  him that the blood had run down the chair, down to her purse, pooled enough in the bottom of the purse and then leaked through that to form a 1 to 2 foot wide puddle on the floor underneath the purse. Jackson asks him how long such an event would take, and the doctor says he does not feel competent enough in the area to really give a reliable answer, but he eventually agrees it would take several minutes.

Jackson asks him how, then, the movement of the head could have been caused by decerebrate posturing, since the posturing occurs “instantaneously” with the gunshot wound, and the pooling of this blood would have taken several minutes. Could the head have been to the right side for several minutes, then decerebrate posturing kicked in and flopped the head to the left side?

This is where the doctor’s Alzheimer’s kicks in and he says “sure, since decerebrate posturing can take up to 5 minutes to kick in.” Jackson is taken aback by this, since the doctor just testified minutes ago that decerebrate posturing was instantaneous, even demonstrating the proximity to the gunshot by slapping his hands on the witness stand in a “one two” pattern.

Jackson asks him about this earlier testimony, and the doctor says no, he never said that, he was talking about something else entirely, which Jackson is still mystified about, since he didn’t *ask* the doctor about anything else. The doctor chalks it up to a “mistake” on his part, and Jackson asks the doctor if he has made any *other* mistakes in his testimony, and the doctor says that if he has, he assumes Jackson will point them out to him.

At this, Jackson says he will “mercifully” move on from this subject, which he explains is no “diss” to the witness, but probably his own confusion leading to the misunderstandings.

Jackson then gets the witness to repeat his earlier assertions on direct that the things he is testifying to, including the gasses and expirations of blood are not to be construed as “actually occurring” in this case, only that these are possibilities.

Jackson then asks the witness if he believes that the best evidence in this case of how far any spatter went is where it actually ended up? And the witness agrees that this is true.

Jackson then asks about the “involuntary reflex” movements the doctor testified to earlier, and asks how long these can occur after death, and the doctor explains that there has been literature written by people who noted such movements as far back as the French Revolution – when the guillotine was a routine instrument of death. These observers noted that these involuntary movements were seen up to hours after the head was cut off.

Jackson then asks about the small panting breaths the witness testified to, and he emphasizes that these were not normal inhalations and exhalations, and he demonstrates in such a way that when the judge clarifies his actions to the court reporter for the record, he describes Jackson’s actions as those of an “exhausted Chihuahua”.

Jackson does get Leetsma to contradict DiMaio’s testimony that these breaths would have been of such force that DiMaio had made a raspberry sound when describing them. Leetsma says that no, this could not have happened, as that much force would indicate that the brain stem and spinal cord were still intact.

Jackson asks the doctor is the fact that Lana was sitting in a chair upright for 12 hours could be the cause of the alveoli being filled with blood. Leetsma concedes that it is conceivable, and that it is a good hypotheses, and that it may be valid, but in his own experience he would expect something denser than the blood itself to help the blood flow that far down, that these are narrow passages the blood would have to flow through. Jackson asks if the spinal fluid mixed with the blood would be dense enough, and Leetsma says “possibly”.

Jackson then wraps up his cross by asking if, 10 seconds after the transection of the spine, was Lana able to cough, sneeze, scream or exhale deeply, and the doctor answers no to each.

On redirect, Plourd emphasizes a few key points he wants the jury to be particularly aware of, and gets the doctor to repeat his opinion that Lana could have taken a few involuntary breaths and could have “coughed” involuntarily, as well. But it’s a small victory, since the kind of cough that Leetsma seems to be attributing to the involuntary reaction certainly isn’t enough to spit 18 spots of blood on the front of a jacket farther away than an outstretched arm with a gun in the hand.

After the jury files out for the break the judge addresses the issue put forth by the defense in an objection to the prosecution calling the fifth “prior bad acts” witness Devra Robotaille.

The judge says he has looked at relevant case law and needs to ask the prosecution why they did not call this witness during their case in chief.

Jackson answers that when they learned the whereabouts of this witness their case in chief was already in full swing, and they didn’t have the time they needed to prepare insofar as checking to see if she had done interviews or spoken to the media. By the time they were prepared, they had already presented the 4 prior bad acts witnesses, and felt that she wasn’t needed. It wasn’t until the defense put on their case in chief and started impeaching these witnesses that they felt she would be necessary to bolster the testimony of the other four.

The defense responds by pointing out that since the prosecution provided then with an interview done with this witness dated well before jury selection, their claim that they didn’t find her until after they started their case in chief is disingenuous. And they defend their impeaching of the prior bad acts witness Melissa Grosvenor by stating that she had done questionable things on her own, and they had to bring those things out for the jury, she basically impeached herself. And bringing on this witness to bolster Grosvenor is improper rebuttal – if they want to bring on a witness who testifies to her personal credibility, that would be proper, but a blanket witness to testify basically that there is “strength in numbers” is improper. The defense argues that this decision to hold back on this one “prior bad acts” witness was a tactical and strategic move.

The judge says that he is prepared to rule on this matter and says that he has decided after reviewing case law that this witness is proper rebuttal. He has relied on two issues addressed in the case law – is the use of this rebuttal to corroborate prior witnesses – or are the people calling the witness to gain unfair advantage? He says this witness is to corroborate prior witnesses and that the people gain no advantage since by the defense’s own argument they’ve known about her since March. The second issue was to ensure that the presentation  is orderly – and he admits that if the lawyers looked at where they were now, with the prosecution presenting rebuttal witnesses against a defense case that hadn’t even formally rested yet, they had to agree that this was not an issue.

So she will be allowed to testify.

The Prosecution then enters two photographs of the sign outside the Spector castle into evidence with a stipulation from the defense that the photos represented the sign as it appeared on the night Lana died.

We then have a new prosecution witness, Pauline Rosenfield, who is an employee of Cedar Sinai hospital and is presumably here to meet the requirements the judge set down at the end of Daniel Sparks testimony. The defense had lodged an objection to Sparks authenticating the forms that were used and filled out on the night that Lana broke her wrists. He also had identified himself on the radio call made to Cedars, but wasn’t able to lay the foundation for the training or capabilities of the nurse on the other end of the call. The judge has temporarily overruled the objection, telling the prosecution that they would need to call someone to authenticate these forms and the training and scope of the nurse’s duties. He had also deemed that the forms were “normal and ordinary” business records kept in the daily course of operations of the “county”, therefore the witness Sparks was able to testify about them. He later decided that these forms would need to be authenticated by *someone* since he was not confident that they actually were “government forms”.

Rosenfield goes through her extensive CV, testifying that she has been a nurse over 30 years with Cedars, and is the Quality Improvement Program supervisor, as well as the pre hospital care coordinator for the MICN’s – the Mobile Intensive Care Nurses.

She testifies that she is an employee of the hospital, not the county, that she doesn’t know either of the paramedics, Stark or Liverpool, that she can identify Nurse Leavitt’s voice on the tape because Leavitt speaks with an Australian accent, that when Leavitt was filling out the form she was not under the supervision of this witness, that John Little, who worked for the fire department, initially contacted her about receiving a copy of this form “for the DA”, and that he also contacted her about getting a copy of the tape. She was later called by Jean Dailey, also purportedly from the DA’s office, and it was to Ms. Dailey that she turned over the tape after copying it to DVD, and listening to it.

On cross, she is grilled about “subjective opinions” and “mistakes” that paramedics make all the time. She is also asked if people sometimes deny alcohol use even though they have been drinking.

The defense also severely downplays the role of the nurse in these situations, saying that they are merely operators who write down what they are told by seemingly incompetent paramedics who are only relaying what they are told by the drunk patients.

And what this all means as far as whether or not Stark’s testimony will stay on the record is anyone’s guess.

As the witness is excused Juror Number 2 brings to the court’s attention that he, too, knows one of the witnesses, but it will not affect his impartiality. The judge thanks him for bringing this to the court’s attention.

The judge then congratulates a juror who has recently had a new baby in the family, and one of the lawyers jokingly asks if it was conceived during the trial. The judge laughs and says “Oh come on, we haven’t been here that long!”

The judge then tells the jurors that after the viewing tomorrow morning he will be able to give them a fairly accurate estimate of how much longer the trial will run.

One hopes it will be some time before the new baby starts school.

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12 Responses to “CA vs. Spector – 11th Hour Science from the 11th Expert”

  1. C Carroll Adams, PhD said

    Hi Kim,
    Love your blog. I attend the PS trial daily.

    Today just before court, Michael Christenson of CTV corrected our spelling of the doctor’s name, and when sworn in he confirmed it. Correctly he is:
    Jan Edward Leestma, MD. It is pronounced Least Ma
    Yes, have the newspaper articles about him get it wrong, which was why we were having a lively debate while the def and pros were in chambers.

    Of course despite Leestma’s increased charm over Werner Spitz, nearly every medical statement of fact he made is a controversial opinion.

    On cross Leestma could not remember his sworn testimony from the previous minute. Depending on when AJ asked the cross questions this guy would say anything that popped into his head, much of which helped the pros and none cleared PS.

    What did surprise me was that AJ never asked how much Leestma was paid. You must remember he tends to testify with Mike Baden, Werner Spitz and Henry Lee.

    Take good care and do keep blogging, Carroll

  2. A.D.A. said

    “Discretion is the better part of valor.”
    Your sensitive, intelligent reporting is so superior. This post especially conveys the horror of this exercise, this hideous monstrosity of a trial.
    I’d rather be murdered by a crack addict than by a celebrity creep like Phil Spector.

  3. Sprocket said

    Another great read Kim!

  4. pk said

    Fantastic reporting – Alan Jackson doesn’t miss a beat in this trial, in my opinion – I’m so glad Lana has him on her side!

  5. luvgabe said

    Expert reporting, Kim! You are truly gifted at this.

  6. IdyllEyes said

    This recap is excellent. I watch the live stream daily but count on your concise,spot-on prose to put it all together for me. Thank you for your efforts!

  7. […] up on its web site. I am therefore obliged to rely on Kim’s account in her DarwinException blog (here) and, as usual, it is so comprehensive that I doubt I missed very […]

  8. […] CA vs. Spector – 11th Hour Science from the 11th Expert Court begins today with a questioning of one of the jurors – it is juror number 6 – he is a film executive with […] […]

  9. Today just before court, Michael Christenson of CTV corrected our spelling of the doctor’s name, and when sworn in he confirmed it. Correctly he is:
    Jan Edward Leestma, MD.

    Thanks for the heads up on the spelling – I’ll remember it for the future, but I’m not going back and changing the post – I’m WAY too lazy for that!

    On cross Leestma could not remember his sworn testimony from the previous minute.

    That WAS rather amusing, was it not?

    What did surprise me was that AJ never asked how much Leestma was paid.

    I was waiting for that, as well.

    Kim

  10. Mick Brown said

    Hi Kim,

    I’m the author of a book on Phil Spector, Tearing Down the Wall of Sound. I’ve come rather late to your coverage of the trial, but can I say I think it’s absolutely first-class, and mandatory reading for me in England. I’d like to maybe write something about your blog for the Daily Telegraph. I wonder if you could drop me an e-mail?
    Thanks so much.
    All best
    Mick Brown

  11. Veronique said

    Yo Kim, you’re going international! Congrats!

    V.

  12. […] up on its web site. I am therefore obliged to rely on Kim’s account in her DarwinException blog (here) and, as usual, it is so comprehensive that I doubt I missed very […]

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