The Darwin Exception

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

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CA vs. Spector – 2 Buzzes, 2 Motions, 2 Drivers

Posted by thedarwinexception on September 24, 2007

So Christopher Plourd, for the defense, filed a motion this morning. They want *another* clarification of the jury instructions to be read to the jury or the judge to reinstruct the jury with a new instruction they have drafted.

“First, I did not intend to suggest that the defendant could be convicted of murder on the theory that he was legally responsible for Ms. Clarkson’s suicide. A person who aids, encourages or advises another to commit suicide is not guilty of murder, even if that person intended that the other person commit suicide and supplied the other person with means to do so.

Second, there is no evidence in the record that would support an inference that a second firearm was involved in the events that preceded the death of Ms. Clarkson. Therefore, you may not return a murder conviction on either the theory that Mr. Spector assisted her suicide or that he used a second firearm to force her to do anything.”

So, they basically want the judge to tell the jury that there can’t be a conviction based on the theory that Spector coerced, aided, abetted or encouraged Lana to turn the gun against herself. The defense feels that if the jury were to convict Spector on this theory – that he somehow encouraged her, or enticed her, into killing herself, that this would be a violation of the due process of the law – since it would basically turn their own evidence against them. They argued that there was scientific evidence that she held the gun inside her own mouth and that there was scientific evidence that she pulled the trigger herself – they don’t want the jury to be able to contemplate the judge’s suggestion that “He forced her to kill herself” and bolster that suggestion by saying “Well, maybe that’s why all that evidence shows that she was holding the gun!”

So the judge calls everyone together to hear the defense’s motion outside the presence of the jury – but not too far outside their presence, we hear the buzzer ring once two times while the hearing is being held. Once when they go for their morning break, and once when they again resume their deliberations.

Fidler takes the stand and tells all assembled that there is a concern on the part of the defense – that the instruction the court gave on Friday might indicate that it applied to the suicide scenario that the defense proffered, and that the hypothetical examples unduly restricted the defense. The defense also says that the scenario the judge gave regarding the “forcing of the gun into Lana’s mouth” is not factually possible.

Riordan, the mighty disembodied voice on the speakerphone, tells the judge that although the court’s instruction was clear that he was not giving every possible scenario, the judge gave an example that Spector forced the gun in her mouth.  Riordan says that while he agrees that forcible action is not suicide – that there could easily be an inference made by the jury that there’s no evidence of force- but the jury could also conclude that if you give a gun to a person who is drunk or suicidal,  that this would fit the definition of malice – it’s dangerous to human life, and the person giving the gun had acted without regard to human life. Riordan tells the court that although this does fit the definition of Murder in the second, that the legislature has decided that assisted suicide is not Murder, it’s charged differently.

As to the second part of the defense’s motion – Riordan explains that as the defense team was brainstorming, it was pointed out that if Spector had forced Lana to take the gun into her own hand and turn it on herself,  that this made absolutely no sense,  because once she has the gun in her hands, then force becomes a questionable issue – but someone on the jury could also say “he had other guns in the house” and the defense wants to make sure that the jury knows and understands  that there has never been evidence of a second gun being used in the death.

Alan Jackson stands to argue against the defense’s two part motion. He says that assisted suicide requires a showing of intent on the part of the person assisting the suicidal person – that one would have to show that Spector was intending on assisting Lana with her own suicide, and that this does not fit the facts of this case at all. Jackson also points out that the court tailored it’s comments in the jury instruction to say *force* – and that this word eliminates the possibility of assisted suicide. Once you FORCE someone to put the gun in their mouth – you have now gone outside the realm of suicide. As to the guns – Jackson says there is already an instruction limiting the use of the evidence of the other guns found in the residence. The jury knows that they can’t consider them for any other purpose. Jackson also points out that the defense is basically arguing the evidence, and since the court invited them to re-argue their case after the instruction was given – and the defense declined – it is now improper for them to ask the court to re-argue their case for them. Jackson concludes by telling the court that neither one of these instructions are necessary and they are both confusing. The court has instructed properly on these issues.

Riordan, the disembodied voice, counters that he is willing to bet that there is not a person on the jury who knows the laws with regard to assisted suicide. Although he agrees that the court used the word force, it didn’t tell the jury that what looks like suicide can’t be suicide if there is force involved.

The judge says that there is no reason to re-instruct the jury on the available use of the guns as evidence, that the introduction of another gun in his scenarios was neither implied or intended. But he says he does have to ask the prosecution what the harm would be in telling the jury that if they believe that Lana committed suicide, that this can’t be the basis for a guilty conviction and that none of the theories in the instruction would apply. 

Jackson says that all of this is spelled out quite clearly in all the *other* instructions – that the jury surely knows that if they believe that Lana committed suicide that they have to return a verdict of not guilty -t hat the defense argued this for 6 and a half hours in closing statements. These instructions and reinstructions have to stop – that the defense can’t come in here and make up a new instruction every time they think of a new theory. Where would this end? Jackson says Russian roulette would be murder in the second – but he isn’t going to request a jury instruction saying so. Jackson tells the court there’s nothing illegal, improper, or misguiding about what the jurors have in front of them in the form of instructions and to start dragging them back to court to keep reinstructing them is going to highlight the defense’s case, and since the prosecution already has the heavier burden, this would unduly prejudice them further.

The judge says that both sides are trying to parse words now, and although he understands, he doesn’t see the positions that the sides are taking. He understands them, but he doesn’t see them. He is going to give all of this some thought.

Before the judge can come to a decision, the jurors ring the buzzer twice -they have a question.

And actually, it isn’t a question it’s a request – they want a VCR. All of the evidence is back there with them, but, of course, for some of the media they have to specifically ask for players because those aren’t provided unless requested. And it’s unclear whether or not they have transcripts of the media, since transcripts are not evidence – they are only marked in court as “aids”.

It is later revealed that the jurors want to watch the interview of Adriano DeSouza with the police the morning of Lana’s death. It is interesting that they want to see this after the clarification of the instructions. They certainly didn’t want to see it before the clarification. What can this mean? Does one juror have a doubt based on DeSouza’s statement? Does one juror have a question about whether or not DeSouza could understand English? Is this replaying of the interview meant to cast doubt or dispel it?

I find it terribly, terribly reminiscent of that other Los Angeles case. That jury, as well, wanted to hear the drivers testimony before they came out with their verdict.

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15 Responses to “CA vs. Spector – 2 Buzzes, 2 Motions, 2 Drivers”

  1. Carolina said

    Riordan is an Asshole. He was brought aboard at the last minute after Phil’s “Dream Team” did everything but throw the kitchen sink at Lana Clarkson’s reputation, and put on that jokey blood spatter defense.

    Does anyone recall the fatal dog mauling verdict in San Francisco several years ago? Seems to me he had a hand in having that GUILTY verdict overturned. That was a shameful day in legal history because those two defendents deserved to serve long, long sentences for their lack of remorse and callous disregard of life.

  2. Katprint said

    Kim,

    We love your blog, but could you please clarify which “other Los Angeles case” you are referring to? Not OJ or Robert Blake, because they didn’t have drivers, so whom?

  3. Not OJ or Robert Blake, because they didn’t have drivers, so whom?

    Remember Allan Park?

    http://en.wikipedia.org/wiki/Allan_Park_%28witness%29

    Kim

  4. Marie said

    You are so right Kim.
    Very depressing memory – didn’t they come out right after that because they weren’t convinced he saw what he saw or something like that?
    But still a great blog. Thanks for the updates!
    BTW, the top 10 were great too – ah the memories. How’s that size 0 knitting going? Have you started yet?

  5. mbmb said

    I agree with you Kim…I remember thinking when the OJ jury asked for the driver’s testimony, that was it…they are going find him guilty! And, then I remember being so sick when they came back with a Not Guilty verdict. Please, Please….I want to be wrong thinking the same thing is happening again. You know…it always all comes back to OJ…what a shame. It’s like a giant circle. But, call me crazy…I’m still holding out some hope.

  6. AtwoodLady said

    Congrats to jury for asking for more info…….

    It is encouraging they are still a work in progress.

    AL

    PS…G (IMO)

  7. Tony from London, England said

    Yes, it is interesting that they are re-visiting the earwitness testimony of the driver, which is really crucial.

    As you know Kim, earwitness testimony is so error-prone that research has led to the belief that courts should have expert evidence regarding its inherent unreliablity.

    SEE: R. Bull and B. Clifford, Earwitness Testimony (1999) 149 N.L.J. 216

  8. Mort Snerd said

    Golly gee, if “earwitness testimony” is so error-prone, why bother with a trial?? All of the witnesses are required to talk to the court and jury, speak up, move the mike closer type of thing. What should we do? oh my, the sky is falling Henny Penny.

    Mortie

  9. Marie said

    Speaking of OJ trial – I was reading your blog to my stepmother and she said, did you know that people think Jason Simpson did it? I had never heard that, and looked it up on line and there is a bunch of info about it. Have you ever heard that rumor? Just curious.

  10. Very depressing memory – didn’t they come out right after that because they weren’t convinced he saw what he saw or something like that?

    Yes, it was like minutes after they re-read the testimony of Park that they came back – in the book “Madam Foreman” the jury foreperson wrote that “The only thing we disagreed on was the time in Parks’ testimony – so we wanted to hear that again.”

    I don’t know why that would have made a difference to them, but I’ve been re-reading this book and it still amazes me that she comes right out and says – SAYS: “We didn’t need to deliberate – we’d been deliberating for months.” Um, excuse me?

    Marta on KTLA had said something about this and that this infuriated her, so I dug the book out and sure as shit, the foreperson really does say that in the book. Unreal.

    This book is like a blueprint for “why juries fail”. One part that also stuck out to me was when the foreperson says “Based on the information that was presented, I felt there was a lot of evidence that pointed to Mr. Simpson’s guilt – for example, the blood, there was no question in my mind that it was Simpson’s blood. There were so many questions in my mind, however, and because we had no direct evidence and had to go on circumstantial evidence, I had no alternative at the time but to find him not guilty.”

    Now, what do we know about direct evidence and circumstantial evidence? What do we, as watchers of the Spector trial, know is the weight of each? What did Alan Jackson say in closing arguments and what did Fidler say in the instructions? Can you find someone not guilty if you believe from the evidence he committed the crime he is charged with, just because all of that evidence is circumstantial?

    BTW, the top 10 were great too – ah the memories. How’s that size 0 knitting going? Have you started yet?

    No, not yet. I got some luster sheen cotton on eBay that I’m waiting on – I’m going to make the christening gown with that, because it’s got a “shine” to it. I thought that would be pretty. Agree?

    Kim

  11. As you know Kim, earwitness testimony is so error-prone that research has led to the belief that courts should have expert evidence regarding its inherent unreliablity.

    Well, to be fair, most research and statistics in this area is regarding witnesses identification of people based on voice recognition. That’s a different kind of “earwitness testimony”.

    This goes all the way back to the Lindbergh case and Charles Lindbergh’s identification of Bruno Hauptman in the park based on the single utterance of “Hey You”. Lindbergh got on the stand in the Hauptman trial and testified that it was definitely Hauptman he heard. Of course, the jury *had* to believe him, he was Charles fucking Lindbergh.

    But I don’t think that *what* someone said is as prone to error and interpretation as is *who* said it, in the research on “earwitness testimony”.

    What someone said is a part of every case, at some level. If you start to doubt people’s ability to understand a simple 5 word sentence, every case would have to be thrown out.

    Kim

  12. I was reading your blog to my stepmother and she said, did you know that people think Jason Simpson did it? I had never heard that, and looked it up on line and there is a bunch of info about it. Have you ever heard that rumor? Just curious.

    Oh yes, this has been bandied about forever. A lot of people thought this. Jason had an airtight alibi – he was catering a dinner at a country club at the time of the murder.

    Kim

  13. Kim (Canada) said

    Still no Spector verdict….The Jeffs jury came back though with a “Guilty” verdict on both counts….

    Fonzie

  14. Cacafuego said

    The KTLA THs made a rather interesting comment before signing out today–that the Spector jury has ordered dinner in. Something they have never done before, as they normally leave around 4pm.
    Interesting. I suspect we’ll have a verdict on Hump Day.

  15. Kuk said

    I was not following the case and just read the blogs… Is this correct that there were no fingerprints on the gun? Did a victim wear gloves?

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