CA vs. Spector – Of Shoes and Forgeries and Badens
Posted by thedarwinexception on August 13, 2007
After a week of a disjointed schedule, with half days, no days, and field trips, we are back to a full day of testimony today. But, as is usual, the day starts with the attorneys addressing the judge and asking for rulings.
Today Rosen and Plourd ask the court to rule on the admissibility and privilege issues regarding the three letters that Lana’s mother had brought to the prosecution’s attention. They say that they would like to Call Dr. Mary Goldenson, who is a psychotherapist that Lana contacted regarding some personal issues, but had never actually gone to see because there was some problems with her SAG insurance approving the visit.
The defense is aware of this doctor from emails in Lana’s computer where she speaks to a third party regarding her limited contact with the doctor. The defense’s position is that because Lana refers to this phone conversation she had with the doctor, that she has essentially waived the patient/doctor privilege. The judge does not agree. He thinks that privilege still is in place, as it would be if a potential client called Mr. Rosen and said “I committed a robbery – I want to have a consultation – how much do you charge?” When Mr. Rosen then tells this individual his exorbitant fee (Judge’s words, not mine), that does not mean that Rosen would be able to break the attorney/client privilege, and Mr. Rosen agrees with this scenario. But he still thinks that Lana waived privilege.
The Judge tells the defense to find him case law where privilege would be broken in this case, and Dixon reminds the court that Donna Clarkson is here to assert privilege, and the judge says that they need to get together and stipulate that she is the correct party to assert that privilege.
The defense then recalls the witness James Pex. Between the last time he testified and today Pex has received some records – the audit reports from ASCLAD concerning the LA County Sheriff’s Offices Crime Laboratory inspection report of 2006.
This is the report that is generated when a crime lab applies for Certification from ASCLAD – which is the American Society of Crime Laboratory Directors. This society is the governing body of a movement to standardize and unify crime lab procedures around the country. Accreditation is completely voluntary. It is not a state or national requirement that crime labs be accredited or certified by this society. But if a lab applies for accreditation, ASCLAD has a list of techniques and parameters that the lab must meet in order to “pass” the inspection. ASCLAD will come to the facility and ensure that all the procedures are scientifically sound and proper and that there is proper documentation and enforcement of the regulations already in place. The visiting auditor will then write a report noting any areas that need to be addressed to pass the inspection and will score the lab in three areas – “essential” procedures and techniques, “important” procedures and techniques and “desirable” procedures and techniques.
The witness is asked if, after looking at the report, if he could tell whether or not the LA County Sheriff’s office Crime Lab passed the accreditation for crime scene processing – and the witness responds that the lab chose not to apply for this accreditation.
The witness then explains that the lab was accredited in 2003 and then went through an audit process in 2004. There were a great number of people on the inspection team who initially went to the lab for the audit from 12/5 to 12/10 of 2004. The lab did not meet the requirements for accreditation and there were some findings that the lab appealed to the ASCLAD board. ASCLAD made some initial decisions in April of 2005, and there was remediation and follow up done by the lab through November of 2005 to come into compliance with ASCLAD standards – the lab was granted accreditation in January of 2006.
The shortcomings the lab had that the defense is focusing on are in the area of testing of blood. Pex testifies that the procedures for testing blood – both presumptive testing, confirmatory testing and DNA testing are in the “essential” category of the ASCLAD requirements. The lab needs to demonstrate that their procedures and techniques are those that are generally used and accepted in the field and that the lab maintains the proper documentation and written procedures for their stated protocol.
The LA County Sheriff’s Crime Lab was using three different presumptive tests for the determination of the presence of blood, and these presumptive tests were not sensitive to the fact as to whether the sample was human blood – just that it was blood, but unlike it is required in the accepted standards, the technicians were not indicating in their reports that the samples were tested only as to “presumptive testing” – the reports were written as though these tests had determined that the samples were human blood.
ASCLAD standards require that a sample can not be determined to be human blood until the sample has been visually tested by a technician under a microscope.
The human hemoglobin assay that the LA Sheriff’s office was using was also found to be lacking in the proper documentation. There was no evidence of cross checking the chemicals uses to ensure that they didn’t react positively with other substances besides blood – or react as human blood when the sample was actually outside the species – such as reacting positively to cat blood or dog blood or even hamburger meat.
On cross examination, Alan Jackson asks the witness if he is a trained histologist, and although the witness says that he took histology as part of his studies, and that he’s seen a lot of tissue samples in his time, he eventually agrees that no, he has no advanced degree in histology, as the prosecution witness Lynne Herrold does.
Jackson then gets into all the ASCLAD stuff the witness testified to on direct, and gets the witness to agree that even though a laboratory does not seek out to be accredited by ASCLAD, that does not mean that the lab isn’t proficient in the testing and procedures that they are doing, or that they are subordinate to other labs that happen to be accredited. The witness agrees that his only means that the labs procedures have not been validated.
Jackson then points out that ASCLAD does not set the protocols that labs must follow -they only put a “Stamp of approval” on the protocols that a lab already has in place. The witness agrees that this is the case.
Jackson also points out that ASCLAD has only been in existence for a short while, and that the lab that the witness ran – the Oregon State Police Crime Lab – was probably doing proficient and scientifically sound work before they were accredited in 1985 by ASCLAD – and the witness says that yes, they were.
Jackson then gets a direct hit when he asks the witness about the “module” that Plourd had discussed with him on direct – the “crime scene processing” module that the LA County Sheriff’s Crime Lab did not seek accreditation for. Jackson asks the witness if it is true that this certification is only 4 or 5 years old, and that before then there wasn’t even a program for accrediting labs in this “module” and the witness agrees that this is true.
And then Jackson gets the witness to admit that of the three areas that ASCLAD rates on for accreditation, the LS County Sheriff’s Crime lab scored a perfect score of 100% on the “Essentials” portion of the testing, and above average scores in each of the “desirable” and “important” areas in 2006.
Jackson also asks about the defective reporting the ASCALD auditor found. The witness agrees that he doesn’t know *whose* reports the auditor was referencing, that he can’t say it was Lynne Herrold’s reports.
Jackson then asks about blood collection, and asks the witness if “real life” is like in CSI, where the technicians just daub a cotton swab with blood and pronounce “Yup- it’s blood”. And the witness says “no – and that’s why I don’t watch CSI – and why you don’t watch Perry Mason.” Even DNA tests will not tell you that a sample is blood – because DNA can come from any bodily fluid.
Unlike the “CSI Scenario”, where the technicians just magically pronounce a daubed q-tip blood, there is a process that has to be done before a sample can be determined to be blood – and more importantly, human blood. First there has to be a visual inspection – the technician sees that it’s red, it looks like blood, and possibly could be blood, then the technician will look at the blood on a slide under a microscope, and then they will perform confirmatory testing – such as a Kessel Meyer test – then they may do other testing such as a DNA test. So long as the technician is careful and takes the right steps, then they can come to a conclusion that the sample is actually blood.
But, the witness adds, the reports that the technician writes have to indicate the tests they did along the way and they have to indicate that the sample is “presumptively” blood. Employees have to meet the ASCLAD standards and protocols, even though it’s the lab itself that is certified.
Jackson then asks some general questions about the sample collection and blood testing, and has the witness admit that although Herrold and the lab did not collect and test every single spot of blood from the jacket , that this was routine and that not every blood drop has to be collected and tested – that this is a discretionary decision that must be made, keeping in mind that some samples are too small to collect without consuming the whole stain, and that some samples have to be left for other repurposes, such as defense testing or court demonstrations.
Jackson then asks the witness about his overall process and mind set in gathering evidence and reaching conclusions, He asks the witness if it would be important in his thought process that a defendant was seen wearing the garment in question moments after the shot was fired, and that the defendant was seen waving a gun and with blood on his right had. Jackson asks if this would be considered by him in determining whether or not droplets that looked to be blood with the naked eye actually were blood.
The witness says he would take that into consideration, yes. He wouldn’t necessarily rely on it – but he would take it into consideration.
On redirect the Defense gets in a hit of their own when they have Pex testify that none of the ASCLAD standards supports the identification of blood based on the visual inspection of a sample with a stereoscopic microscope at the 63 X magnification Lynne Herrold said that she used to identify the stains on Spector’s jacket. The defense puts a bunch of pictures up on the ELMO of different amounts of blood at different magnifications and the witness testifies as to their magnification and density. It is obvious from the photos that even at 100 X magnification the basic cell structure of the blood cells are not discernible.
Plourd then asks the witness about the testing of the jacket and what the witness had previously testified to – that not all spots need to be tested. Plourd asks the witness to assume that some of the spots tested negative in a presumptive test for blood,, and asks what that would mean in reaching his conclusions. The witness says that in that case, not all the spots could be presumed to be blood, and the technician would have to document carefully which were blood and which weren’t. He also says that if all the reagents were working properly that all the spots should show a presumptive positive for blood.
The witness is then excused after a few more rounds from each side of “hypotheticals” – assume, doctor that this and this and this and this and this is true – then what? Honestly, the hypotheticals got so convoluted and so rambling on each side, and the objections became so repetitive and overblown that the whole thing got to be silly.
Not that recalling Pex to tattle on someone else’s audit report wasn’t silly to begin with. Why didn’t they call Lynne Herrold to testify about the lab? And why bother with this shit, anyway? I guess that old saying is true – “if you can’t argue the facts, argue the methods, if you can’t argue the methods, argue the police.” Or something like that – it all boils down to the same thing, though – the defense is basically cooking spaghetti – they are throwing it all on the wall and seeing what sticks.
After the break the judge tells the attorneys, before the jury comes in, that he has found case law on point with regards to the privilege question between Lana and the psychotherapist she contacted only via a brief telephone conversation. He has found that case law supports his opinion that privilege is still intact.
Bradley Brunon for the defense then asks the judge about the letters from Fox, NBC and Showtime, and the email conversation between Lana and her friend Hugo Quackenbush and her relying on these letters to solicit another loan from him. The defense offers that Donna Clarkson, Lana’s mother, initially bought these letters to the prosecution’s attention after she found them while going through some of Lana’s personal papers. It seems to be stipulated that both sides consider these letters to be forgeries. The prosecution was able to contact another of the letter’s purported authors, and he, too, in addition to the witness that the defense would like to call, has also denied authorship. Because the letters state that the “Lana Unleashed” video is a “wonderful project” and that the attached Networks are very interested in going forward with casting Lana based on this DVD, the defense feels that these letters show the state of mind of Lana and amplify the desperation and pressure she was feeling in the several months preceding her death.
The prosecution then argues their points against allowing these letters to be admitted into evidence. The offer that they *might* have been relevant when the Agent Nick Terzian was testifying – but that the prosecution, after doing their own investigation into the letters, also determined that they were not legitimate. The prosecution cannot say who wrote the letters, and they point out that the defense can’t say who wrote them, either, and if they do not know who wrote them, they certainly can’t be relevant to determine Lana’s state of mind. If the letters had been found on her computer, there might be some evidence that she wrote them herself and knew that they weren’t what they purported to be, but as it stands, there is no evidence that Lana didn’t know they were real.
The defense counters that the letters were found in a scrapbook type of book that they refer to as her “red book”, which was a resume of sorts and filled with references, photos and documents pertaining to her career. In a letter she wrote to Hugo Quackenbush in 2002, appealing to him for another loan, there was a direct quote from the forged letter – and Lana should have known that these letters weren’t real, since they contained factual as well as spelling errors.
The judge says that he is satisfied that there is enough here to say that Lana knew the letters were not true and that they show a state of mind. The judge also asks if Lana did not write them – then where did they come from?
Alan Jackson gets up makes a very eloquent pleas to the judge. Jackson says that his objection to these letter sis now and always has been their relevance. Jackson says “let’s assume Lana manufactured these letters to embellish her resume and get additional funding to continue with her DVD production. What does that have to do with who pulled the trigger the night of her death?” Jackson tells the judge that the only reason the defense wants to introduce these letters is to devalue Lana as a person, to drag her through the mud and argue to the jury “Look what kind of person she was!” Jackson says that the defense has already used the phrase “master manipulator” to describe Lana, and that he is now asking the court to not allow this to go any further or be brought in front of the jury. Even if Lana did author these letters herself, that has nothing to do with her state of mind the night she died.
But the judge disagrees with Jackson and says that this is a question for the jury to decide – her state of mind is something that they will have to determine.
With that – the defense calls their next witness – Donna Clarkson, mother of the deceased and foundational witness to authenticate the forged letters.
She reluctantly tells the jury that she found the letters in Lana’s “red book” that the book was nearly empty and she added many things to it, that some time before (not after as the defense first asks her) Nick Terzian’s testimony, she came across the letters again, and brought the “red book” in to the prosecutors. She can’t remember exactly where in the Venice cottage she found the red book, and she can’t say when she first read the letters – she said she has been through Lana’s things a number of times. She also says that she never talked to Lana about these letters or any of the things in the red book.
She says that she has talked to Hugo Quackenbush on the phone and she knows that he is a friend of Lana’s who loaned her money, maybe even on more than one occasion. She says she has never seen any correspondence between Hugo and Lana discussing these loans.
On cross examination Alan Jackson asks the witness about the headshots Lana had taken in early 2003 or late 2002. He puts several of the new pictures she had done on the ELMO and asks the witness to identify her daughter. Presumably to illustrate that suicidal depressed actresses who are fed up with Hollywood and their dying careers don’t have new headshots done.
He then asks the witness when the last time she spent time with her daughter was. She says that that very day she and Lana went shopping for shoes. Donna paid for her daughter’s purchases, and although Lana only asked for one pair of flat shoes to work in, Donna bought her daughter 7 pairs. Lana left her mother still shopping around 5:15, since she had to be to work at 6.
Next the defense calls the purported author of one of the letters – Marc Hirschfeld who was an executive vice president of casting at NBC. He knew Lana and had hired her for several projects before he was with NBC. He had been an independent casting director and worked on shows like Who’s the Boss and The Jeffersons, and he says he hired Lana for several different shows he worked on.
Hirschfeld says the last time he talked to Lana was in 2001. He describes their relationship as friendly, and he says Lana had called him to tell him she had a new demo reel of her work and she would like him to look at it and give her some feedback on it. He says that he received the DVD a few weeks later and he looked at it.
The witness is then shown the letter that bears the NBC letterhead and his purported signature. He says that the letterhead is an NBC letterhead, but not one that he uses. And the signature is not his.
The letter is addressed to Lana at Living Doll Productions and the witness says that this is the address he has used to send Lana letters before – but not this particular letter.
The witness is asked if there are various misstatements in the letter and he says there are.
Plourd reads the first line of the letter “I finally got a chance to look at your submission – you’ve really grown to be a beautiful and talented performer”. The witness says that this sounds like something he would say, but that he didn’t say it in this letter.
The next line of the letter reads “From the early days when I cast you in “3’s Company” I knew that someday you were going to break out.” The witness says that this line is untrue, as he was never a casting director for the show “3’s Company”.
“You’ve done it, Kid, I hope you can complete the project in the next couple of weeks, I will need to see the completed piece before I can bring it to the attention of the President of casting:.” The witness says that he would never use the phrase “You’ve done it, Kid” and that there is no “president of casting” at NBC.
“I will certainly be willing to do so once I have seen the whole thing and ensure that it is up to NBC standards. I believe that even if this project doesn’t get picked up, that I can get you to casting on some of our upcoming shows. There is one show in particular I have in mind for you.” The witness says that he had no particular show in mind for Lana.
The letter is signed above the signature of Marc Hirschfeld and the title given to him underneath his name is “Vice President of Talent and Casting – NBC Networks”. The witness says that this is not his title, never was his title and that he works not for NBC Networks, but NBC Entertainment.
On Cross, Alan Jackson asks the witness if he ever did wrote some letters to Lana Clarkson about her career, and the witness says that yes, he did. She really did ask him for feedback on her DVD, and he gave it to her via letter. He said he was positive and encouraging, and that he liked her work and though she was a good actress. He told her he was looking forward to working with her again, and that he would keep her in mind. He says that he meant all these things and wouldn’t have taken the time to write a letter unless he did mean it.
On redirect the witness is asked if he actually recalls the contents of the letter he sent to Lana and he says “Not verbatim, but what I said was an accurate summation.”
He is then asked if the letter he sent stated that if the letter wasn’t satisfactory that the recipient could forge one they liked better and put his name on it. The witness says no.
The defense then calls Michael Baden, and spends the rest of the afternoon having him relate his vast experience and extensive CV. They also get the witness to admit first thing that Linda Kenney Baden (still not in court because of her undiagnosed virus), is his wife. Although with all the jobs he seems to currently have and is rattling off for over two hours, one wonders if he ever sees her, anyway. He sits on the board of some commission in New York State that
investigates each and every death of a prisoner in any kind of county or state facility. He also sits on the same sort of board that investigates the death of any patient in a mental health facility. If that doesn’t keep him busy enough, he also works with the New York State police department as a sort of free lance pathologist who gets sent around to any of the 52 counties in New York State that *don’t* have a medical examiner (10 of the 62 total counties in New York do have a ME), whenever they need a helping hand.
And between all those jobs, and all the testifying he does and making up shit he does for his testimony (and don’t say he doesn’t – remember Seymour Schuss? And what about the whole Ted Binion “burking” thing? Have you ever heard of anyone being killed by “burking” outside of that trial?) and his guest spots on Greta Van Susteren 3 times a week – when does he have time for a wife? And somebody ought to let him know she’s sick. He probably doesn’t even know – or maybe Greta told him. Never mind.
Baden testifies that he is board certified in three different branches of pathology – anatomical pathology, clinical pathology and forensic pathology. Anatomical and clinical pathology deal with natural deaths – forensic deals with unnatural deaths.
Baden was also chairman of the House Select Committee on Assassinations board of forensic pathologists. Along with Werner Spitz. Imagine those after parties!
As I said, they went through almost the entire afternoon session reading off his papers authored, books co written, cases solved, TV shows starred in and government panels appointed to – and they still didn’t get through it all. And during this whole, dry, boring presentation – all I kept wondering is “Hey! If you are so damned wonderful and certified in so many “specialties” and “sub specialties” – why the hell is your wife’s virus *undiagnosed*? Huh? Why is that? Answer me *that* Mr. Baden!”
Hopefully tomorrow we will get through the CV and find out what he actually has to add to this case, if anything. And let’s hope it’s at least something *new*. Although let’s face it, this is Michael Baden. He could say that yes, Phil pulled the trigger, but that’s not what Lana died from – she happened to drop dead of Leukemia at the very instant the gun was fired. He could! If he can testify with a straight face that a guy dropped dead of a fucking aneurysm at the very moment he was getting beaten to death, you never know what this guy is going to say.
That’s what makes him so special.