The Darwin Exception

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

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CA vs. Spector – Some Things Take Thinking

Posted by thedarwinexception on August 15, 2007

 Okay, right here and right now, I want some props, people. I want you all to say “Yup, Kim called it”. Right here, yesterday, in my trial wrap up for the day, did I or did I NOT tell you all that Michael Baden was going to get up on the fucking witness stand and spout some crazy ass fucking theory like “Lana died of Leukemia before the bullet ever hit her?” Yes, yes I did. I told you then and I will tell you now, the guy is a fucking lunatic. You never know what his crazy ass is going to say or what kinds of shit he’s going to dig out of his ass to make the person paying him the big bucks and  buying his wife her antibiotics look completely and utterly innocent.

I swear to God, if he wasn’t like 15 kinds of pathologists, the guy could give Robin Cook a run for his money in the “Unbelievable Medical Thriller” shelf at Waldenbooks. How he dreams this shit up is just beyond me.

I told you he was “special”.

So Baden takes the stand again today to continue his long ass resume. He’s done 20K autopsies in his career, and he says it was routine for him to go to death scenes – and he’s gone to more than 2,000 of those in his career. He says it’s helpful for the ME to go to the actual death scene to help determine the time of death, which is always easiest to determine at the scene itself so the ME can pinpoint the exact state of the body. It’s also nice if the ME can be there so he can observe the scene itself, see if there are any signs of struggle or if the body looks to have moved after death, and also to interview any witnesses who might be at the scene. The police interviews witnesses too, but the ME can ask more medical related questions. The ME can also see if there are any bullets at the scene or if there is evidence of medicines and prescriptions.

Baden then gets into his experience with other gun cases in LA county and describes getting a phone call from Marlon Brando, who wanted him to do a second autopsy on the man Brando’s son Christian had killed. Brando did that and was instrumental in recovering a lost bullet that none of the police had been able to find at the scene. Oh – and the judge in that case? Our own Judge Fidler.

They finally get tot eh case at hand and Plourd elicits that Baden had been called into this case by Robert Shapiro, Spector’s first attorney. Shapiro asked Baden to attend the autopsy and make sure that Shapiro got Baden’s opinion on the findings right away, rather than Shapiro having to wait the usual months it takes for ME’s to get the final autopsy reports to the attorneys.

Baden called the ME’s office and spoke with Dr. Lakshmanan Sathyavagiswaran who he had known for years, as Lakshmanan had been a resident who moonlighted in Baden’s ME’s office back in New York. The ME held off on the autopsy of Lana Clarkson for a few hours to allow Baden to fly in and be there.

Baden says that Dr. Pena did a “very fine autopsy” and that he has no issues with the things Pena did or his competence in performing them. Pena established that there was no gunshot residue on the face and used a flashlight to look inside the mouth to see the soot and debris and gunshot residue present.

Baden testifies that his primary concern at the autopsy and his first and overriding responsibility was to determine whether this was a homicide or not a homicide.

He then goes on to say that he determined that this was not a homicide, and was, in fact a self inflicted wound. He was able to determine that mostly because of the nature of the wound – the fact that it was intra oral – he says that 99% of all intra oral wounds are self inflicted wounds. He says that there are patterns of injury that clearly suggest either homicide or self inflicted wounds – a wound i the back, for instance, will probably be a homicide. In that same regard, an intra oral wound suggests that it is self inflicted.

Baden then describes some of the steps that Dr. Pena took in performing the autopsy. First off was an examination of the outside of the body – the torso and extremities to see if there were any obvious signs of a struggle or trauma. The only significant bruising that was found was bruising on the left side of the mouth which Baden opined was a result of “stretching” of the mouth as the gasses built up in the oral cavity and were released. Also noted was a injury to the right thumb nail, and a black eye on the left that Baden determined was caused by blood flowing around the eye under the skin.

Baden determined there was no evidence of a struggle – there was some tiny marks on the forearm that Pena excised and took slides of but they were “non specific” meaning they could have been caused by any number of things including banging against a door or table.

When the doctors examined the internal organs they found two notable things. The first thing was a blotchy hemorrhage that was visible on the surface of the lungs. This indicated to Dr. Baden that there was inhalation of blood. The second notable thing found was in the weight of the lungs. The weight of the organs is always taken at autopsy and can be a guide for the ME when looking for disease. A normal human adult heart will weigh 300 grams. If the heart at autopsy weighs 400 grams or more this is usually a sign of disease.

Normal adult lungs will have a combined weight of 600 grams – and there are 454 grams in a pound. In this autopsy, Lana’s lungs weighed over 1800 grams – which is three times the normal weight for an adult set of lungs. This meant to Dr. Baden, that while she was alive, her lungs weighed 600 grams and as she was dying her lungs filled with about 1200 grams of edema fluid and blood. This had to have happened after she was shot and before her heart stopped beating and this would have taken a couple of minutes. Dr. Baden says that this fluid would not have gotten into the smallest air sacs and alveoli of the lungs through the force of gravity. He says that this never happens and can’t happen – he doesn’t say why exactly it can’t happen, just that it can’t.

The ultimate cause of death was gunshot wound – the path of the bullet was such that it discharged into the oral cavity along a line that corresponded with the middle of the tongue. The bullet continued, as Pena described in the autopsy report, straight from the front of the mouth to the back of the mouth and slightly upward. The bullet then went through the upper portion of the spinal cord and into the back of the brain causing multiple fractures of the spine bone and the bottom of the skull. There was no exit wound.

When a gun is discharged there are a plethora of gasses and debris that are associated with this event. When those gasses are discharged into an oral cavity, these gasses have to either come out of the exit wound, go into the cranial cavity and cause an explosion of the cranium, or come back out of the mouth the way they came, along with tissue, blood, saliva and mucus.

Since there was no exit wound in this case, and no explosion of the head, then all the gasses and debris had to come out of the mouth and nasal passages and the nose. And this debris and gun shot residue would also be on the hands of the person who discharged the weapon. In this case, Lana had copious amounts of gunshot residue on her hands, which is to be expected if she is the one who pulled the trigger.

Dr. Baden then explains that the gasses themselves can cause injury to the body – the burnt and unburnt gunpowder, and the flame associated with the discharge of the bullet can cause the braking of capillaries and cause little hemorrhages, and these little marks were present in the mouth of Lana Clarkson.

He also explains that blunt force trauma can be found inside the mouth after such an event – the force of the gasses and the bullet can cause the tongue to go backwards in the mouth and strike other landmarks in the oral cavity such as the hard palate. This palate, while bony, is rather thing and the gasses can cause fractures to it and various bony parts of the mouth and can cause damage and injury and bruising to the tongue. In Lana’s case there was some fresh subcutaneous bruising to the tongue where it had been pushed up against the back teeth and the upper jaw. There were also teeth marks on the tongue.

Baden says that he disagrees with Dr. Pena’s conclusion that the injury to the tongue was caused by the gun being forced into the mouth. Baden says that the tongue is mobile, and has no subcutaneous tissue under a layer of fat like the skin does that can cause hemorrhaging. Also, there is nothing on the outside of the mouth to suggest injury – no bruising or cuts on the lips and no injury to the teeth.

Baden also says that while Dr. Pena noted that there was bruising on one side of the tongue, he did not note the corresponding bruise on the other side of the tongue, which would discount the bruising of the tongue by the gun and suggest rather bruising by the back molars. (There is a picture of the tongue here where you can note the bruising that Baden testified about.)

Plourd takes Baden back to the autopsy of Lana Clarkson, and asks some further questions about all that blood and fluid in the lungs. Plourd asks if there was any injury to the lungs and asks if there was any physical reason for all the blood and fluid. Baden says that the only way all this fluid could have gotten there was through the inspiration of blood from the bleeding points in the mouth. This took several minutes and had to occur after the shot but before the heart stopped beating.

Baden then explains that the heart kept beating for several minutes – she lost consciousness immediately, but the heart has it’s own intrinsic mechanism to keep beating, and this would not be affected by the transection of the spine. The heart will continue to beat for many minutes after the brain stops sending signals to the heart. 

Plourd then asks what effect the spinal cord injury would have had on the ability to breathe. Baden says that if a bullet completely severs the spine than there would be no signal to the diaphragm to continue with  the activity of breathing. 85% of the mechanism of breathing is done by the diaphragm – the brain tells the diaphragm to go down and the ribcage to expand – if the spinal cord is severed than there can be no more signals to diaphragm – the victim might be able to take in one or two breaths through reflex, but essentially that person wouldn’t breathe a lot of material in through this shallow panting or gasping.

And this is where Michael Baden goes off the deep end, and proves me to be right – that he will say anything, pull anything out of his ass to say what the defense needs him to say. The defense had to explain somehow just exactly how it was that all of that blood got into the lungs, and they had to explain how it was that Lana was able to cough and breathe so that when Phil Spector came rushing to her aid after she shot herself she was able to take that last gasp of air and spit up that blood onto Phil Spector’s jacket. This was required now that Henry Lee was not going to come in and save the day and prove that Phil was on the other side of the room. And it wasn’t working that on Cross examination Alan Jackson was able to have expert witness after expert witness that was called by the defense agree that it would be impossible to take deep breaths or cough or exhale with any force after the spinal cord was severed. This would not do – they needed an alternative theory – and who better than Michael Baden – the king of alternative theories, to come in at the last hour and bring something provocative and authoritative with him.

Baden explains to the jury that it is a fact that there was over a quart of fluid inside the lungs. It is also a fact that this would have taken many minutes to breathe in – but we saw the spine at the autopsy and it was severed. How do we reconcile those two facts? That there was obvious breathing for several minutes, yet the spinal cord was severed. It is obvious. The spine *wasn’t* severed – the spinal cord was still intact for several minutes as Lana lay dying and breathing after she was shot. There were still some nerve fibers attached which allowed her to breathe in and out for a number of minutes. It was only during the transport of the body, the move form the chair to the body bag to the ambulance to the ME’s office and to the autopsy table that the spinal column was completely severed.

And now the defense has what it needs – a way for Lana to be sitting there breathing and later aspirating blood onto the white dinner jacket, but still have a spinal cord transection when she gets to the autopsy table.

The judge calls for a break, but the attorneys, especially Alan Jackson are on their feet asking for the judge’s attention. The judge chastises the lot of them and tells them that the breaks are not just for the benefit of the jury but also for the benefit of the court reporter – who also might need a break. He asks the attorney when they expect her to take a break – Jackson wants something, Plourd wants something, and she has to be here recording all of this. The attorneys apologize and say they’ll take a break now.

When the jury comes back in the attorneys go straight to a sidebar where Alan Jackson asks the judge to strike this witnesses testimony because of a blatant and flagrant discovery violation. He is pissed. Nowhere in Baden’s report does he talk about this “severing of the spinal cord due to transportation”, and this new opinion was not brought tot he attention of the prosecution at all – either in report form, note form or even verbally byt he defense.

The judge sends the jury back out to the jury room and takes the matter up in open court, and there is a voir dire of the witness by Alan Jackson to find out exactly when he came up with this theory and to investigate the defense’s discovery obligations with regards to the theory.

Jackson shows Baden the 3 page report that Baden had written discussing his conclusions. Jackson asks if this report is the extent of his written materials concerning the case. Baden says it is. Jackson asks if he has any notes concerning the autopsy or his conclusions and Baden says no.

Jackson asks Baden to point out in the report where it says that the spine was not severed by the bullet. Baden says he can’t because that’s not in his report – it was only later, after Pena testified, that he realized that the number and amount and force of the breaths taken by Lana were going to be an issue.

Jackson asks “When did this come up?” Baden says in the last week or two after he heard the testimony of Drs. Spitz and Dimaio. Jackson asks who he discussed this new theory with and Baden says he talked with Plourd about it – eventually. He talked to him about it a few days ago – after Spitz testified. Jackson asks who called who to discuss this and Baden says he discussed it with Plourd when Plourd was preparing Baden for his testimony – a couple of days ago. The only reason he discussed it with Plourd was because that’s when Baden realized that there was a difficulty between the breathing that had to have occurred and the spine being severed. He discussed this with no one else, not Spitz, not his wife – nobody.

Jackson asks who brought up this fact – that there was a “difficulty” with the breathing and the spinal injury and Baden says no one brought it up to him – it was just that he was explaining to Plourd that something didn’t make sense – it was obvious from the evidence that there was inhaled blood and over a quart of fluid yet the spinal cord was completely severed – the only way this could have happened was if some of these tracts were not severed.

Jackson asks exactly what day this was and Baden says “Thursday – I don’t recall – it was after I flew to LA and after Spitz testified and over the weekend when I started to talk to Plourd.”

Jackson then asks Dr Baden – :well, isn’t it true that you were out here in LA prepared to testify two weeks ago?” Baden says no, he was not prepared to testify then, the only reason he was out here was because his wife was ill.

Jackson says “Oh, ok, so if the defense said in open court that you were in the hall prepared to testify and then had you on their witness list as ready to be the next in line to testify – that would have been a lie – they would have just been leading us on?”

The doctor says they would have been mistaken.

Jackson then asks the doctor about his opinion and why it wasn’t mentioned way back in 2003. “Doctor, you were at the autopsy – you saw the weight of the lungs then, you saw the wound, you saw the tongue, you saw the spinal cord…” Baden interrupts to tell Jackson that he didn’t inspect the spinal cord – that it was removed for the neuropathologist.

Jackson says – but you were there when it was removed -all of this was done at the same time.” Baden says “I *looked* at the spinal cord but further studies were done on it.”

Jackson says “Sure, but you got those reports of those studies 8 or 10 months later along with the full autopsy report – so you should have known all of this at that time at the latest.”

Baden counters that he didn’t get the full autopsy report 8 or 10 months later. He says yes, he knew the lungs were heavy, and he knew that the spine had been transected.”

And Jackson interrupts to say “Exactly, Doctor, so if you knew these facts then, then there are no NEW medical findings – all of these facts were available to you back in 2003 and you were aware of them then.”

Baden says “Well, I knew the lungs were heavy and I knew the spine was damaged, but I didn’t know this was an issue.”

Jackson asks the doctor if he amended his report or write a new report when he came up with this new theory. The doctor says he didn’t.

Jackson asks if he made any notes based on his conversation with Plourd abut this new opinion. And Baden says that he arrived at this opinion on Sunday – I just discussed it with Plourd and then “I had an AHA! moment, it became clear to me what had happened.- sometimes, Mr. Jackson, things take thinking.”

Jackson asks if Plourd was taking notes – the Doctor says he doesn’t know, Jackson asks if he had a pad in front of him, or maybe a pen in his hand, and the Doctor again says he doesn’t know – he says Plourd was listening and I was talking.

Baden then admits that although the first sentence of his report stated that “I have reviewed the autopsy materials…” the whole “lungs weigh three times what they should” just didn’t “register” with him – he missed that fact. He did not start thinking about it to try to clear up the difficulty between the breathing in of  blood and the transection of the spinal cord until after he reviewed the testimony of Pena, Spitz and Dimaio. It wasn’t until then that he sat down, thought about it, and then on Sunday had his :Aha!” moment while discussing the issue with Plourd.

Jackson passes the witness and the defense has no questions – only Plourd does stand to tell the judge that he wasn’t in town when Baden arrived and it was only Sunday that they could get together. The judge asks Plourd if this is his excuse for not telling the prosecution about this new theory and Plourd says no.

Alan Jackson then states his argument to the court. He wants the testimony of Dr. Baden stricken – if not in full then at least the parts that relate to this new theory. Jackson says tot eh court “Your honor – it is unfathomable that I wouldn’t have this information before he took the stand. This is the centerpiece of his testimony. I can’t articulate this any more than I did at the earlier sidebar – and it’s clear to me now why the defense wanted this witness to testify even though they had already called 4 other forensic pathologists – THIS testimony is what they wanted – they have brought Lana back to life your honor – they had to explain how she was able to breath after she was dead – and Lo and behold – they found a witness that would bring her back to life so she could breathe, while I am staring at a report that say absolutely NOTHING about this. I would find it pretty remarkable if this was the first time they heard of this – we know their level of preparedness – we know Linda Kenney Baden’s level of preparedness – and she’s married to this witness – we know Christopher Plourd’s level of preparedness – and he had to know what questions to ask to elicit this testimony – this can’t be the first time he’s heard of it. This is sandbagging and blindsiding, your honor, the very things that the discovery rules seek to do away with. The bell has been rung – but you need to strike this testimony, preclude them from discussing it any further and tell the jury to disregard it.

The Judge asks Plourd to respond to the arguments – and he prefaces it by saying “And please don’t tell me you didn’t realize the import of this testimony – you have a lot of explaining to do Mr Plourd.”

Plourd says that he did first learn of this opinion on Sunday, and he discussed what he could of it with the other counsel. He didn’t feel that it was something that was subject to discovery because he wasn’t even sure they were going to go into this.

The judge seems a little incredulous at this statement and says “You *had* to know how important this was – why wasn’t the prosecution notified? The minute this witness makes an oral report to you –  you are obligated to write a report and give it to the prosecution.”

Brad Brunon then gets up to address the court and says “This is not the first time that expert testimony has evolved – none of the experts know for sure what they are going to say when things can get brought up in cross examination – different avenues can be explored during cross and areas of importance become apparent. The other side could challenge something you haven’t thought about. Does that have to be discovered? Dr. Pena decided that the bruising on the tongue was as a result of the gun being forced into the mouth – he decided this on the stand – we didn’t get apoplectic about it. If the prosecution needs time to address this – so be it – but for them to blame Linda Kenney Baden, who is laying in a sick bed – of being dishonest is just terrible.”

Plourd then adds that he did talk to a couple of experts about this issue – so that he could get a handle on it, but that he had no discussions with Linda Kenney Baden about it – she has been unavailable and is truly very ill. Plourd says that he was really on his own in making a decision about all of this.

Roger Rosen, realizing he is the only person at the defense table who hasn’t said anything – gets up and tells the court that he is the “charge d’affair” in all of this and that Linda Kenney Baden has done nothing on the case in the last couple of weeks – he says that if Alan Jackson needs some time for this issue – they won’t object.

Alan Jackson then gets up and adds: “About the Pena thing and the tongue bruising – as soon as we talked to Pena and realized he was going to say this – we did exactly as the code requires and we talked to the defense and told them what Pena said. And it wasn’t when he was on the stand – we told them on Friday before he testified on Monday.”

Dixon, realizing he’s the only attorney in the courtroom who hasn’t added his two cents – tells the court that he thinks it’s crazy to think of this as “new information”, since Baden had all this info way back in 2003.

The judge then makes his findings. He says :Are trial fluid? Sure. And people do change their opinions, but this was a knowing and blatant discovery violation – just like the missing box – and don’t think I’ve forgotten about that – there have been other discovery violations by the defense in this case, and I am factoring those into my decisions. There is a violation here and I don’t know what the solution is. I don’t know what I am going to do, I need to think about it. But, you are NOT to discuss this further with Dr. Baden – the prosecution will have time to prepare. This was not esoteric – it was patently clear and I am not accepting that the information had to be vetted through other expert – the reason that the prosecution wasn’t told this information was so they would be unable to rebut it.

The jury is finally brought back in and Baden continues with his testimony. He explains that when he got to the autopsy the body had already been unclothed and washed. He then learned that a chip of the acrylic piece that was on the nail had been missing. He says that this is a common injury when people have fired a weapons using their thumb – the injury comes from banging the nail against the trigger guard.

Sometime later, after the autopsy, he got all the autopsy materials, reports and some investigative reports form the sheriff’s department from the new attorney representing Phil Spector – Leslie Abramson. Baden reviewed the material sand discussed the case with Abramson. It was then that he came to the opinion and understanding as to what had happened. His opinion was that Lana Clarkson had died of an intra oral gunshot wound and that this wound was self inflicted – he based that opinion on several factors – but largely from the placement of the injury – intra oral wounds are almost always self inflicted. The injury to the thumb was also consistent with other injuries to thumbs in persons he had seen who have fired a weapon. He also based his opinion on the location and amount of gun shot residue on the hands of Lana – this was also consistent with her being the one who fired the weapon – as well as the blood stains and tissue material on her hands and jacket – this also indicates a self inflicted wound.

Plourd asks the doctor if he also consider state of mind in his decisions and conclusions, and the doctor says yes, he did. He explains that if there is an indication that a death is self inflicted, then the next step is to determine if it was intentionally inflicted or not. Suicide is intentional, but a self inflicted wound can also not be classified as suicide – if it was not intentional it could also be an accident or undetermined.

Baden then says that ME’s have to look at the history of the decedent to see if there was a history of depression, or any statements  made, orally or in writing, that might indicate that a person intends to kill themselves – these are essential signs. In addition, the pathologist needs to look at cause and mechanism of death to see if a person intended to kill themselves – for instance did a person climb over obstacles in order to throw themselves out a window – the climbing over obvious barriers would indicate they intended to do so rather than that they were pushed.

Plourd then asks how depression relates to gunshot wounds and Baden states that in a great majority of the suicide cases the victims have a history of depression in their past and have seen doctors or psychologists to treat this illness – depression is a high risk factor for suicide. But Baden also says that he cannot know what was in Lana’s mind and that after reviewing all the reports he doesn’t think he could come to a definite conclusion as to whether she shot herself intentionally – he can say that she pulled the trigger, but he does not know if it was intentional. He says that all the signs are there that this was a typical self inflicted wound – the gun was straight in the mouth and angled upward, there was no sign of a struggle or fight, the victim was drinking that evening and had drugs in her system and the victim had a history of depression. All these things point to a self inflicted wound.

Plourd then asks about Lana’s position in the chair at the time the gun went off – Baden responds that you can’t assume from her position in death that this was her position when the gun went off. He believes that her right thumb was on the trigger of the weapon, and her hand was on the grip, the left hand was in close proximity or on top of the right hand at the time of discharge. This takes into account the blood spatter on her hands and clothes and the tissue on the buttons of her left sleeve.

 Baden says he can extrapolate the direction that eh head was facing because of the tooth material that was ejected from the mouth. These materials were ejected away from the body and some distance to the staircase directly across from the body.

Baden says he can also determine that the lips were loosely applied to the barrel of the gun. If the lips were tightly on the gun there would be tears on the outside of the cheeks from the blast effect and if the mouth were wide open there would be no injury at all to the sides of the mouth.

Baden testifies that he looked at the garments of both the deceased and Spector – he testifies that the absence of tissue and blood below the elbows on Phil’s jacket means he could not have shot the gun, which the blood on the right shoulder of Lana’s black jacket suggests to him that she was the one that discharged the weapon.

Baden testifies that Abramson has given him background materials on Spector and that he reviewed them. He doesn’t say how they influenced him, or what he thought of them, or if the incidents that were outlined suggested a pattern, he just says he reviewed them.

Baden says he does not agree with Pena’s notation in the autopsy report that the decedent suffered from “No psychological history”. After reviewing Lana’s medical records Baden believes she has had a history of depression and notes that in one of her medical reports from her wrist injury there is a notation that she was taking Paxil and suffered from migraine headaches.

Plourd then tried to get into the whole :Lana is hearing voices again” testimony, and the judge sustains the objection with the admonition to the attorney that he has already ruled on the admissibility of this evidence.

The court takes a break and the lawyers argue about some letters the defense wants to introduce and Alan Jackson asks the court for guidance with regards to his cross examination of Dr. Baden Jackson tells the court that he needs to cross examine Baden on the issue of this “unsevered spine until transport” issue, but the minute he does that, it will pave the way for the defense to question him again, thus creating another violation. He asks again for the court to strike that portion of the testimony.

The Judge answers that in order to strike the testimony, he has to make three findings – that there was an intentional violation of the discovery rules (which he says he has found),  the violation has to be for the purpose of an improper tactical advantage (which he has found), and then the third thing is that has to have exhausted all other lesser sanctions. He says he needs to see what the prosecution can do on cross and through other expert witnesses before he makes a final ruling and decides on sanctions.

But the judge says that he is not going to allow the defense to get back into this are with the witness at this point.

Plourd then goes through some emails with Baden – the same ones they spoke of during the break in front of the judge. There are some emails to her friend Jennifer (not Hayes) that mention that Lana recommends a certain doctor to her friend, although Lana hasn’t seen her yet herself – but she wanted to see the doctor – the email alludes tot eh fact that Lana says she may be having problems with addictions to her pain pills – but the wording of the letter is such that it’s hard to tell if it was a joke – and since they didn’t actually read the whole letter – it’s hard to know the context.

Another email indicated she was depressed and wanted to go to a doctor in Mexico for some pills.

Baden says these letters are very important because they show she was unhappy and depressed. Baden says she also had a recent love interest that didn’t work out, and she was having financial difficulties, and that these were two of the most common reasons for people to end their lives.

Plourd then asks Baden about the button on the ends of Lana’s sleeve and asks why those buttons were important, and Baden explains that they were important because they had tissue on them, which means that they were up b\y her face, facing the mouth when she was shot. That places the gun in her hands, with her hands in front of her face – although he wont’ say that the Self inflicted wound was suicide – only that she could have been playing with the gun or that the gun accidentally went off – he does not know if it is suicide or not.

Alan Jackson get sup to cross and he stars with Baden’s last statement. “You say that this is not necessarily suicide, you know that it’s a self inflicted wound, but maybe not suicide. You say she may have been playing with the gun or looking at the gun, right?” Baden says that this is what he has determined.

Jackson then says “But isn’t it so doctor that you told this jury that you had determined that her thumb was on the trigger, her hand was on the grip steadying the weapon, that the left hand was on top of the right hand, that the barrel was one to two inches into her mouth, that the barrel and the sight were behind her teeth – but you believe she was just playing with the gun or looking at the gun?”

Baden sputters “well, she was playing recklessly….”

Jackson says “So she recklessly put her thumb on the trigger and she recklessly squeezed the trigger with enough force to discharge the gun?”

Baden again shifts in his seat and says “Well, some people don’t know if the gun is loaded.”

Jackson then tells the doctor to turn to the jurors and face them and put his hands up in front of his face in the exact way that he believes Lana had them when the buttons were facing her mouth. Baden gets his hands about halfway up to his face before he realizes that he is not going to get those buttons to face his mouth unless he contorts his arms into some pretzel like position. He drops his hands and Jackson says to him with a chuckle You realize the problem with that, don’t you doctor?”

Dr. Baden says “Well, men’s and women’s clothes are different – her buttons were on the inside seam.” Jackson is incredulous and says “You think the buttons were on the *inside* seam of the jacket? Did you LOOK at the jacket, doctor? Didn’t you testify that you went to the crime lab and actually examined the clothes?”

Baden then takes a different tack and says “Well, it depends on how loose the garment was and how they were wearing it.” And Jackson says “Oh – so Lana twisted the jacket around until the buttons were facing her mouth and then discharged the gun?”

Jackson says tot eh doctor – “Doctor, did you know that after Lana was transported and after she got to the medical examiner’s office that when she was taken out of the body bag and placed on the table that she was turned on her side and when this happened there was a purge of blood that came out of her mouth and traveled down her left side -t hat there was so much blood that it soaked through her jacket on the left side and the left side of her dress to the point that her undergarments were soaked. Don’t you think that it’s a more reasonable assumption that the tissue matter on these button got there at some point during or after this purge of blood?”

Jackson puts a picture up on the ELMO of the buttons and points to the area of the jacket that are soaked red with blood and asks the doctor if this is blood. He says no, he can’t tell what it is. 

When Jackson realizes that this witness is going to refuse to see things that are obviously there and refuse to consider other theories or testify with any sore of professionalism, Jackson starts asking the witness about his bias. He asks Baden what his professional obligations are when he is testifying in a case such as this, and Baden says that he thinks that his obligation as an expert is the same in anything he does as a pathologist – to be unbiased and objective.

Jackson questions the witnesses objectivity, and Baden says that the value of an experts opinion depends on the knowledge of the expert and the ability to convey that knowledge in a professional manner – he says that an expert witness is unbiased by definition, since they are experts, and that you can have *unbaised* people who are wrong – the hallmark of an expert witness is his knowledge. Baden says that an expert witness should be have the same opinion of a case no matter which side they were testifying for. He says he “works for the court.”

Jackson then asks the witness – “Who does you wife work for, Doctor?” And Baden answers “WHOM” – although I’m not sure if he was vetted as a grammar expert. Michael Baden points out that he was on this case LONG before his wife was brought in and that his conclusions were reached LONG before she came in (except for the one he testified to today, of course, since that was his “AHA!” moment from this past Sunday – and that took some thinking.)

Baden then says that, in part, his wife is paid to give Phil Spector advice. And one wonders if she also advised her husband to have an AHA moment.

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18 Responses to “CA vs. Spector – Some Things Take Thinking”

  1. Lajet said

    thanks you thank you. I new yesterday was exciting but missed a lot of stuff. You did a great job of recapping it.

  2. annie said

    Yes, Kim, you were right! Wasn’t this an incredible travesty of justice? Loni on KTLA said the judge could impose other sanctions against the lawyers, such as fines or contempt of court. It will be interesting to see how this plays out. I’ll bet they don’t get any major sanctions, but maybe that’s my cynicism showing. Another excellent blog!!

  3. A.D.A. said

    “Yup, Kim called it!”

  4. poplife said

    Thank you for that wonderful entry and your attention to detail. I missed trial yesterday and you brought it to life for me.

  5. susanp said

    You are the best. I got up early this morning to check for your recap-but it wasn’t there. Thank goodness it finally came in. Everyone in this country should be very suspicious of everything Lee and Baden will testify too (for the right amount of money) after the OJ case. By the way, do we know that Mrs. Baden is really sick? Just wondering.

  6. Weirdsley said

    Love your writing Kim! And congrats on the Blue Ribbon!

    I believe Dr. Baden got his degree from that hallowed institution that has turned out so many of the expert witnesses in this case – the University of Bullshit and Nonsense. (UBN)

  7. Rflintstone said

    I wouldn’t hire these guys to fight a traffic ticket for me! Unbelievable

  8. Opus the Penguin said

    So Baden is “15 kinds of pathologists”. I didn’t even know there were that many different kinds. Does he hold 15 degrees?

  9. luvgabe said

    So Michael Baden said in court that “an expert witness is unbiased by definition, since they are experts”! That should immediately disqualify and discredit him to the jury.

    An “expert witness” is used because of his/her professional knowledge & training. But “knowledge” does not equal “unbiased.” Being human, experts can also be very very biased. If it weren’t so, we wouldn’t have so many bitter feuds among the intelligentsia & in academia.

  10. Carolina said

    kim,

    GIRRRL, I am addicted to your blogs, You were sooo right re: MB. Please tell me you are going to post this evening! I was absolutely mesmerized by AJ’s cross today, did you notice how PS finally woke up and PAID ATTENTION? He sure got shortchanged by MB. i think the “Wall of Sound” is falling in on this weasel.

  11. […] CA vs. Spector – Some Things Take Thinking  Okay, right here and right now, I want some props, people. I want you all to say “Yup, Kim called it”. […] […]

  12. CCMSW said

    I am quoting another poster from the Court TV boards. Remember that Phil moved her head from one side to another when he cleaned her face with the diaper.

    THAT was when the final transection happened! Phillip started and ended it.

    Hope Alan Jackson considers this….maybe Murder 1?

    Still happy with yourself Mr. Plourd?

  13. CCMSW said

    Another thought: With Baden going down in flames, Lee running away, DeMaio and Spitz going no where.

    That only leaves us with Dr. Perper and his bumpy head.

    Help!

  14. Holy Toledo said

    You’re batting a thousand, Kim. Are you on steroids? You called it.

    Yep, her lungs were full of something but it didn’t come to him until the timing was just right, like on the paid liar stand when the USS Defense has hit an iceberg and is going down and the Wall of Sound is one big swoosh.

    Is there enough oxygen in the courtroom for this expert? He’s so full of himself.

  15. Gail said

    Great report Kim! Yep, you called it! I can hardly stand to watch the ‘so called’ big B, he makes me want to throw-up! Yet I fear he will be unscathed somehow in the end. Such conniving little twits they are, the whole lot of the D team. Dirty tricks and swarmy experts are all they have, as the evidence is so screaming PS is GUILTY to me! I’m just so disgusted and worried too, if the D keeps this up, who knows what might happen.

    Kim, keep up the great reporting. I love your blog! You are SO appreciated!

  16. Jassyca said

    You were right on the money on this “Doctor” Baden. tsk..

    Now, can someone tell me how in the world does the defense think that this latest “theory” is a good idea? I mean, yeah, they’re desperately trying to explain how blood got on Phil’s jacket but.. good lord, are they complete idiots and don’t see all the ramifications that this new theory implies?

    Okay, new theory is: her spinal cord supposedly wasn’t severed and her lungs were supposedly filling with blood and, what, that triggered a reflex reaction from her, a cough? But she supposedly only coughed once and once only? I mean, they’re trying to say she might’ve been alive for up to another 5 minutes and if all this blood is leaking into her lungs, wouldn’t she involuntarily cough as long as she was still breathing? And if one cough was enough to spatter all those itty bitty tiny drops on Phil, shouldn’t there be even MORE on herself: from all the coughs AND the initial spatter from the shot? Then why does she have about the same amount on her as Phil had on him? (Oops #1.) Okay, supposed I buy the idea that she only coughed once. And managed to miss herself. And, damn the luck, the one and only time she coughed, it happened to be *after* Phil ran over to her to see if she was okay. Uh huh. Suuuure he did. Now, once he was that close and she coughed up BLOOD on him, then what? He did NOT immediately think, “oh my god, I better call 9-1-1” and instead he decided to go chat up the driver? (Oops #2) And, upon returning to the house, again instead of calling 9-1-1, he instead thought oh, before I call for an ambulance, I really better take off this jacket and clean myself up a bit. Because, you know, appearances are SO important. (Oops #3)

    And what’s the jury supposed to think about all that? I’ll tell you what they’ll think: #1 this is BS and #2 What kind of callous cold-hearted mother fucker stands there with their thumb up their ass and does NOTHING as someone drowns in their own blood right in front of them?

    Isn’t there some law in California that one can be charged with if you do not render aid or call for aid for someone who is in need of immediate medical attention?

    I can’t believe the defense thought this would be a good theory to throw out there in front of the jury.

  17. september said

    Kim,

    Just found your blog thanks to CTV message board. You are just as funny and informative as advertised.

    Suggestion, you really should consider writing fiction. Your style reminds me alot of Joan Hess. Her Maggody series is very funny. I think you could easily produce a best seller.

    But please don’t stop the blogging I just got hooked.

    Have a great weekend.

    9

  18. pj said

    just love your take on all this courtroom drama – and you were 100% right : )

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