| | | SCIENCE AND STORIES | | |
They cannot scare me with their empty spaces
Between stars—on stars where no human race is.
I have it in me so much nearer home
To scare myself with my own desert places.
—“Desert Places,” Robert Frost
You hear the 187 homicide call go out at 5:00 a.m. on February 3, 2003. It is a shooting death. You hear from dispatch that it involves a “celebrity,” and an eyewitness claims the suspect said, “I think I killed somebody.”
It’s a cool, windless morning. You drive through a blue-collar neighborhood with small houses next to a freeway. You arrive at a gated hill in Alhambra with a plaque on the wall marking “Phil Spector’s Pyrenees Castle.” You drive through the gate on a road winding around the hill and emerge in a large stone courtyard with a roaring fountain. It is a castle—a three-million-dollar home set on a hill overlooking three-hundred-thousand-dollar homes. Your backup also rolls into the courtyard, and you all get out.
When you approach the front door, it opens, and the suspect, a small older man with stringy hair, nods inside and says, “You’ve got to see this.” But he does not comply with your commands to take his hands out of his pockets. He is shot with a Taser and tackled by three LAPD officers. He slurs obscenities at you and is taken into custody.
When you look inside, there is a blond woman slumped in a chair, with a gunshot wound to the face. There is a gun on the floor. Later, you verify that the gun belongs to Phillip Spector. You find a white coat on a bedroom floor upstairs. When inspected closely, there appears to be blood spatter on it. You interview a limo driver at the scene, Adriano DeSouza, who says he was sitting in his car outside the front door when he heard a pah sound, then saw Spector walk out of his front door, holding the gun.
At the scene and the station, the suspect protests his innocence, and claims that the woman shot herself. You smile and shake your head. That same day, Pat Dixon, a chief deputy district attorney, arrives at the crime scene to confirm evidence that will obviously be used in the indictment. An Alhambra police officer writes in her report and later testifies to the grand jury that Spector says, “I didn’t mean to shoot her.” Later, when you do more investigation, you find out the suspect, Spector, has pulled guns on women before. Many times before.
For police and prosecutors, the case seems obvious, even easy. You have an eyewitness that will testify he sees the suspect walk out of the house with a gun in his hand, confessing he killed the victim. You have blood spatter on the coat he was wearing. You have a history of him pulling guns on women. What more do you need? It’s obvious. He killed her.
Yet there are nagging details that confound the obvious. The coroner initially concludes that the manner of death was accidental. Seven months and nineteen days later, he changes that conclusion to homicide. The prosecutors finally charge Spector with Lana Clarkson’s death. But not for nine months and seventeen days.
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Dare to be Different” was the theme of Spector’s high school prom and, for most of his life, he lived by that theme. Born in New York City, he moved to Los Angeles with his family after his father committed suicide when he was nine. He attended Fairfax High School and formed the musical group the Teddy Bears with two other students. He wrote and performed “To Know Him Is to Love Him,” a number one hit in both the United States and the United Kingdom. The title was taken from the inscription on his father’s gravestone. Later, in a British documentary, The Agony and the Ecstasy of Phil Spector, Spector spoke about the loss of his father, “I miss what I would have been. I might have been a different person.” He would say the same thing about his son Phillip Spector Jr. who died tragically of leukemia at nine, the same age Spector Sr. was when he lost his father.
After the Teddy Bears broke up, Spector moved back to New York and produced a string of twenty hit records and was a millionaire by the time he was twenty years old. During this time, he started working on his famed Wall of Sound, which he described as “the Wagnerian approach to rock and roll.” He considered himself more of a composer than producer and once said about his work, “Most producers don’t create, they interpret. I create a sound of what I imagine in my head.”
However, he grew impatient with musicians who could not fulfill his musical vision and a public who did not appreciate the lush, soaring scores that he composed. He would become reclusive for periods of time and became combative in some of his recording sessions, famously threatening musicians and firing off guns on occasion. As a prank, he fired his gun off next to an angered John Lennon, who famously exclaimed, “Phil, if you are going to kill me, kill me. But don’t fuck with my ears, I need ’em.” Apparently, Leonard Cohen, Debbie Harry, and the Ramones all had similar stories. However, rather than immediately firing Spector and calling the police, John Lennon and the others seemed tolerant of Spector’s gunplay, threats, and sometimes outlandish costumes, considering it all part of Spector’s eccentricity and genius. They felt Spector was more than an engineer, building a signature sound for their record. He seemed to understand their passion and their pain. He once said, “Hurting is a natural phenomenon with art.”
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A few days after his arrest, Spector hired Robert Shapiro of O. J. Simpson fame and paid him a one-million-dollar retainer. Shapiro, whom I worked with on O. J.’s case, quickly went to his starting O. J. lineup and called Dr. Henry Lee and Dr. Michael Baden, the famous forensic scientist and forensic pathologist, respectively. Shapiro, attorney Sara Caplan (also from Simpson’s criminal case), Lee, and Baden toured Spector’s home on February 4, 2003. As with Simpson, both Baden and Lee inspected Spector’s body to see if there was any discernable sign of a struggle between him and Clarkson. They found none.
At nine thirty that evening, after the police had completed their investigation of the scene, both of the experts spotted missed evidence and noted inconsistencies by LAPD’s crime scene investigators. Notably, they found blood on the bannister and other areas of the foyer. This was promising news for Spector as it could call into question the initial investigation or even find exculpatory evidence that could exonerate him.
However, as the investigation dragged on for months, Spector grew unhappy with Shapiro’s performance, feeling that he was not working hard enough on the case. He fired Shapiro and asked for most of his one-million-dollar retainer back. Shapiro refused, and Spector then hired Leslie Abramson and Marcia Morrissey of Menendez Brothers fame, who called Spector “an idol, an icon, and the definition of cool.” Six and a half months later, Abramson and Morrissey resigned after it was revealed that Spector had also hired Bruce Cutler, unbeknownst to them. Cutler was the son of a detective turned criminal defense lawyer who famously gained acquittals for New York Gambino family head John Gotti in the 1980s. When hired, Cutler immediately set about to reestablish Spector’s credibility, speaking about Spector’s “genius” and his “talent.”
It is at this point where celebrity and strategy clash in a high-profile criminal case. The temptation for a celebrity, whether it is an O. J. Simpson, a Michael Jackson, a Martha Stewart, or a Phillip Spector, is to rehabilitate their image. To do this, the client wants the attorney to reinstate his or her credibility, not only by denying culpability for the alleged crime but also by reminding the press and the public of the great things he or she has done. Some attorneys believe this is the best strategy: to wage a public relations battle in the effort to show that an important person would never risk their reputation by doing something like this, or to make jurors believe that someone with his or her accomplishments would never commit a crime.
However, what ends up happening in reestablishing the credibility of the important celebrity is that you subconsciously create a higher standard of conduct. Celebrities, through supermarket tabloids and social media, become icons the general public places on a pedestal. The public then raises that pedestal high enough so that they will not see the blemishes or the flaws. The public (including the jury) believes these divine beings will not fall prey to the same follies as us mere mortals. They are considered more than us, and thus should know better. In a jury’s mind, they carry a moral obligation of higher conduct. A booking mug shot makes a deified celebrity mortal; they tumble from that high pedestal and fall into a chasm below us, earning our derision and contempt, their blemishes now more hideous. Our shining examples are tarnished and we now become superior to them. In light of the accusations, we then contemptuously see them as arrogant, superior, and thinking they can “get away with it.”
So rehabilitation attempts in a criminal case can be counterproductive because they shine a white-hot spotlight on the celebrity and any problematic evidence in the case.
Cutler started assembling his trial team and brought in Roger Rosen, an experienced Los Angeles lawyer who had worked on numerous high-profile cases, including the Twilight Zone manslaughter case against director John Landis, and a Hell’s Angels case with famed True Believer attorney Tony Serra. Spector also hired Linda Kenney Baden to take the lead on the forensic case. Baden, a former Monmouth County prosecutor and active member of the American Academy of Forensic Sciences, was a legal specialist in scientific issues. She had worked on the Jayson Williams case, where the New Jersey Nets star was accused of manslaughter, and the Michael Skakel case, where Skakel, a nephew of Robert Kennedy’s widow, was accused of murdering his next-door neighbor when Skakel was a teenager. Linda’s husband, Dr. Michael Baden, had discovered the extra evidence when Shapiro was still handling the case.
Linda brought in noted San Diego forensic attorney Chris Plourd to second-chair the forensic part of the case. Plourd, now a California judge, was appointed to the Department of Justice’s National Commission on the Future of DNA Evidence as well as appointed by the California Supreme Court to the California Judicial Council Science and the Law Steering Committee. Blasier, whose incisive work greatly clarified the scientific issues in the Simpson case, also worked on the Ted Kaczynski Unabomber case. He was also brought on by Linda to take on the motions for these forensic issues. Like patent attorneys in civil litigation, forensic attorneys are the science geeks of the legal world. They are the pocket-protector litigators who have pioneered the new era of science technologies applied to criminal cases. They study mitochondrial DNA, blood spatter, gunshot residue, and make sure that scientific standards are scrupulously observed in the criminal justice system. They would prove to be essential in Spector’s case.
This was the team. And like all teams of highly skilled, experienced, and successful professionals, they had egos. Big but necessary egos in the tough world of criminal law. They all had opinions about how to try cases, having tried hundreds of cases among them. This is a natural and even healthy tension that occurs when these high-powered litigators argue, collaborate, and try to figure out the best strategy for a difficult defense. But it is important to try to keep that tension focused on differences in strategy and not differences in personality.
Like Rosen on the defense, Judge Larry Paul Fidler was born and raised in Los Angeles. After graduating from Loyola University Law School, he became a court clerk in Judge Gordon Ringer’s court—a judge who famously subpoenaed President Richard Nixon to testify in a case linked to the Watergate scandal. After clerking for Ringer, Fidler went to work as a criminal defense lawyer for Howard Weitzman, who represented a long list of celebrity clients: John DeLorean, the head of the DeLorean Motor Company, in a drug sting case; Michael Jackson in his first molestation case; and O. J. Simpson. Weitzman was the first attorney that Simpson hired when he flew back from Chicago. Fidler was first appointed to the municipal court by first-time governor Jerry Brown, and was later appointed to the superior court by Governor Pete Wilson. He eventually became the presiding judge of the criminal courts in downtown Los Angeles. He handled his fair share of high-profile matters, including the Reginald Denny case preliminary hearings, involving a truck driver who was pulled from his truck and beaten during the Rodney King riots; the Sara Jane Olson case, an accused member of the infamous Symbionese Liberation Army that had kidnapped Patty Hearst; and the Rampart Division scandal, where officers of the LAPD were accused of planting evidence, racially profiling gang members, and stealing their drugs and money.
Rosen had numerous cases in front of Fidler and had a good relationship with him over the years. He, and most of the defense team, thought because of this relationship and Fidler’s former work as a defense lawyer, he would at least give the defense a fair shake in trying their case. They were wrong.
As I have said before, high-profile cases change the way that judges, lawyers, and witnesses act in court. The knowledge that the “world is watching” tends to make them look beyond the evidence and toward how the public will view them in light of rulings, arguments, and testimony. Cameras in the courtroom become mirrors by which judges, lawyers, and witnesses judge themselves through the reflective eyes of the public. This self-reflection creates a projected legacy that makes them mindful of how they themselves will be judged. In essence, each participant in a high-profile trial is a defendant in the public forum, seeking both acquittal and praise for their actions.
Fidler, in a hearing to decide whether to televise the trial against the defense team’s objection, set the agenda for media exposure in this case. “We have to get by that case,” he said, referring to the Simpson trial. “There’s going to come a time that it will be commonplace to televise trials. If it had not been for Simpson, we’d be there now.” Fidler added, “You expose yourself as a judge to greater scrutiny.”
Judges, no matter how well intentioned they are, are usually not aware of the reverberant impact that “gavel to gavel” coverage of a trial has on witnesses, attorneys, jurors, and the entire process. I have always felt that the judge, the attorneys, and the media should sit down in a pretrial conference and collaboratively discuss their concerns and legal rights in order to establish a set of ground rules for the trial. I feel this is a better way of reconciling the inevitable tension between the press’s First Amendment rights and the defendant’s Sixth Amendment rights. By granting greater access for the media, you inevitably compromise a defendant’s rights to an impartial jury. By restricting media access, you impinge on the press’s and the public’s First Amendment rights. It’s a tough call for a judge, but in a high-profile trial, the First Amendment wins almost every time.
In keeping with his views about “the public’s right to know,” Fidler released Spector’s grand jury transcript to the public. This is rarely done, but Fidler argued that there had already been so much publicity in the case, the release of the transcripts would not have a prejudicial effect.
This is another disadvantage for a defendant in a high-profile case. The press naturally wants to see the grand jury proceeding. In a grand jury, the defense has absolutely no right to question any of the witnesses. In fact, they’re not even present. It is the prosecution’s show, and they obviously only put on witnesses and evidence that will support their view that the defendant should be charged with the crime and why he or she is probably guilty. At the end of the process, the grand jury’s only job is to decide if there is sufficient evidence to take the case to trial. But for the public, it is a jury that has already ruled that the evidence against the defendant is credible. Thus starts the long parade of guilt conclusions in a media trial before the case actually goes to a jury. The press starts broadcasting evidence that was either contained in the grand jury hearing or that is leaked to them by the prosecution or police, some of which would never see the light of a courtroom. This, coupled with the perp walk, which are staged photos of the arrest, and the booking mug shot all combine to convey the guilt of the defendant before the trial even begins.
The defense can only sit idly by, biding their time while anemically muttering the timeworn trial agitprop, “Keep an open mind. Wait until the evidence is all in. Remember, innocent until proven guilty.”
It is at this point where the clients call me. When the perp walks, mug shots, 911 tapes, and security camera footage have been released. When the police or prosecutor’s leaks have already poisoned part of the public. When the damage has been done, and the prospect of finding an impartial jury and the likelihood of a fair trial is a question mark, if not a remote possibility. When the scales are tilted and the zeitgeist in the case becomes when, not if, the defendant is convicted.
Linda Kenney Baden, who knew my Chicago partner Paul Lisnek, set up a meeting with Spector and Blasier, whom I knew from the Simpson trial. When I first heard about Spector’s case, the facts sounded pretty tough. A guy who owns guns comes out of his house with a gun, saying, “I think I killed somebody.” Pretty clear. But when Blasier called me and gave me a quick rundown of the forensics, I was hooked. The thing that intrigued me was the white jacket.
Spector had a habit of wearing long dinner jackets. He wore them during the trial, and he was wearing a long white coat the night Clarkson died. The police found the coat on the floor of his bedroom. According to the police, Spector was wearing the coat when he forced the gun into her mouth and fired. According to the forensic analysis, there were seventeen tiny specks of blood spatter on the coat, almost all on the left-hand side of the coat and very few on the sleeve. My first impression was if Spector had been holding the gun at the time of the discharge, and the gun was in Clarkson’s mouth, there should have been a great deal more blood, tissue, GSR, or bone or tooth fragments on the jacket.
To demonstrate this point, I asked a graphics team I knew to create an animation to show that the gunshot in the mouth would create a tremendous amount of physical material to have been lodged on the jacket, especially the right arm, which Spector used as his dominant hand. I wanted to show Spector and the lawyers what I hoped would be a central image in refocusing jurors on the science in the case.
It is always strange when you go to the house and meet a defendant for the first time. Like a juror, you are always comparing the image of the person you see before you to the “monster” the prosecutors are saying committed the alleged crime. And when you meet at the place where the district attorney is saying the crime was committed, you immediately start doing your own investigation, looking for clues to try to figure out what happened on the night where someone lost his or her life.
When I stood looking at “the Castle” from the courtyard, I made a mental note about how loud the fountain was from that vantage point. This would become an issue later in the trial. When the door opened, I walked immediately into the foyer where Clarkson was found, looked at a chair exactly like the one she was sitting in. I took a moment to take it all in. There were the two white chairs. There was the staircase. There was the table next to the chair with the drawer that held an empty holster. There were two silent suits of armor that stood sentry, witnesses to whatever happened that night. There was the white John Lennon piano that he used to record the song “Imagine.” There was the living room and the coffee table that held a Jose Cuervo tequila bottle, a Canada Dry Ginger Ale bottle, and brandy snifters. The white jacket, the white chairs, and the white sofas would become grim canvases on which we had to create a picture of the last hours of Clarkson’s life.
I sat down with Spector and Blasier. Blasier is a small, crisp man with a thin mouth and sharp mind. I shook Spector’s pallid, trembling hand. He had a sadness about him, an aloofness that is the nurtured habit of the disaffected loner. The rebel continually looking for a cause. He learns by challenging. He tests by confronting. He looks not at the center of a picture for answers but at the margins for the boundaries. And no doubt, this is the source of his genius and his grief. For he has pissed off a lot of people.
In a first meeting with clients, I always believe it is best to let them see the case through a juror’s eyes. Too often the defense team approaches their cases with an advocate’s eye, always looking to shape, argue, and angle the case toward a winning position. However, without the jury view, the defense is looking through the ivory tower of Century City skyscraper windows. My job is to press the elevator button and bring everyone down to the ground floor, put them in a pickup instead of a BMW, and drive them through the razor wire of South Central and the Asian markets of San Gabriel. To see if they think the case looks like such a winner from a street corner in Pico Rivera or Inglewood instead of a corner table at Spago in Beverly Hills with crisp tablecloths and unctuous waiters.
Some consultants like to curry favor by telling the client what they want to hear. I give the bad news first, the cold water, and the wake-up call. Because everything that follows in terms of developing evidence, themes, and arguments stems from two simple questions: what will make the jury want to convict, and what will make the jury want to acquit? The prosecution goes first, and the jury hears all of the negative evidence in their case. That is where it is important to start. Once you have defined all of the bad stuff the district attorneys will be throwing at your guy, you can start mapping out your countertactics and affirmative strategies.
So I outlined the tough positions for Spector first, most of them obvious. The women that would testify about his penchant for gunplay, the eyewitness account by the limo driver, the alcohol, his house, his gun, blood on his jacket. Then the not so obvious issues. He did not call 911 after the shot. He was inside the house for forty minutes alone before the police showed up. The callous statements to the police. The famous fright wig appearance on May 23, 2005, where he showed up for court with a massive puffy perm. His current gaunt appearance, intense stare, and shaky demeanor. Younger woman and older man. Beauty and the beast. Power and vulnerability. Celebrities use and discard people. Celebrities get away with murder from O. J. to Robert Blake.
Until you can outline all of the issues that the opposing side, the judge, or the jury can use to beat you, you cannot effectively present your case to address the concerns of the jury. You certainly can’t pick a jury. Because, in a criminal case, a defendant is defending against the prosecution’s case, a judge’s attitude or rulings, and all of the loose threads that jurors will use to weave their own tapestry of what happened. Because all criminal defendants live with a juror’s double portrait: the image of the kind of person who could have committed the crime, and the demeanor and perceived attitude of the defendant sitting in court. Jurors are constantly comparing these two portraits to ask themselves, “Does he look like he did this?”
At the end of our meeting, Spector looked a little stunned, but he understood. It wasn’t just about the evidence. It was also about the atmospherics surrounding the evidence.
The optics and frame of reference for the jury had to be changed. And this is where Baden’s, Plourd’s, and Blasier’s expertise became essential. We would focus on the science and not the story. The prosecution’s case was all about the sensationalized Lifetime movie about Spector: abuser, alcoholic, powerful manipulator, and his hapless victim, Lana Clarkson, the happy yet vulnerable actress. The more we focused on refuting these past incidents with women and guns, his drinking, and his overall conduct, the more this played into the prosecution’s made-for-TV movie. But the forensic evidence had none of the problematic personality issues. It demanded cold, clear-eyed analysis and not tabloid TMZ-style speculation.
Blasier arranged for me to meet with Cutler, lead counsel on the case. I met him for drinks at the Ritz-Carlton hotel in Pasadena, where Spector was putting him up. Cutler had the build of a meat packer and the vocabulary of an English scholar. He loved words and used them as weapons and for wooing judges and juries. He crushed my hand, ate bowls of salted nuts, and discussed his career and thoughts about the case.
Cutler was East Coast and old school in his advocacy style. He was used to pushing and cajoling judges, juries, witnesses, and opposing counsel. It was a persuasion model with the attorney at the center of the case, using their strength, skill, eloquence, and influence as the moving force. It is a style that works well for some juries but not for others. He confessed he had never used a jury consultant and did not necessarily see the need. He trusted his instincts and his experience.
I realized that Cutler was also not a big fan of the forensic evidence in the case. He was Spector’s champion—wanting to prove to the jury that his client was a genius, that the women who dared testify against him were opportunists, and the police and prosecutors were just out to besmirch Spector’s accomplishments and good name. Spector liked this strategy, of course, because he wanted to restore his reputation. Cutler was enamored of big conspiracy themes and the grandiose character story of Spector’s rise as an artist. This story suited Cutler’s own character and sensibilities.
Nevertheless, even though Cutler and to a certain extent Spector were skeptical of my work, I persuaded them to conduct a focus group in the case to test evidence, themes, and approaches to the trial. While mock trials are more like full-blown dress rehearsals, focus groups are more like conversations that allow you to dig into a jury’s thinking about the case a little deeper, probing into how they use the issues in the case to construct their own narrative.
We did two focus groups, one in the morning and one in the afternoon. We tried two separate strategies. In the morning group, we tried a strategy centered on Cutler’s themes: we strongly questioned the motives of the women testifying against Spector and focused on the lack of any real motive or evidence that proved Spector killed Clarkson. In the afternoon group, we tried the science strategy where we focused more on the forensic evidence that actively disproved that Spector was holding the gun at the time, showing that Clarkson was holding the gun, and evidence that indicated Clarkson may have been suicidal.
If you listen to jurors, if you really listen to them, they will not only tell you what they think of your case, but they will also tell you what you’ve missed. As a group, they can be excellent detectives and scientists. This phenomenon was made popular in a 2004 book by James Surowiecki called The Wisdom of Crowds, in which he argues that groups, in certain situations, make better decisions than individuals.
Of our two focus groups, the morning group leaned more toward conviction, and the afternoon leaned more toward acquittal. Neither group was unanimous, and both raised serious questions about the evidence on both sides. This is actually the best possible result in a focus group, because you can learn from the results and refine your case. And despite all of the negative publicity about Spector, both groups of jurors provided hung juries. Although Spector and some of the attorneys were disappointed that we did not get acquittals in these groups, in most criminal defense cases, a hung jury is a huge win.
More importantly, some of the jurors latched on to the forensic evidence as their reasonable-doubt anchor. We needed to do a lot more work to make the science clearer and more understandable, but it got traction. Since Spector’s history of using guns around women was so compelling to some jurors, we needed to make sure that the forensic evidence was equally compelling. Since CSI was at the height of its popularity, I felt if we could give our jurors virtual lab coats and make them the crime scene investigators and the scientists, we would stand a better chance of them seeing the evidence the way we saw it.
We learned a few additional important points from the focus groups. The more we were able to show through the forensic evidence that Clarkson had been holding the gun, the more jurors were willing to accept that she may have had problems that led to her suicide, or a drunken and reckless handling of the gun, which resulted in an accidental discharge. Additionally, when jurors were able to focus on the forensics that put the gun in Clarkson’s hand, they also postulated that she could have gotten the gun out of the holster in the drawer next to the chair in which she was sitting.
Finally, even though the focus groups did not give us a statistically significant profile of pro-prosecution versus pro-defense-leaning jurors, we had an indication of who we wanted on the jury: smart and skeptical jurors.
I also had the good fortune in this next period to get to know two lawyers who would end up taking the leads in the case: Linda Kenney Baden on the science issues, and Roger Rosen on the non science issues. Even though Dame Helen Mirren played her excellently in the David Mamet HBO movie, Phil Spector, Baden always reminded me of the first actress who was slated to play her, Bette Midler. Baden was bright, brassy, did not suffer fools, and had a wicked sense of humor. She knew the science, the law, and had the rare ability to make the arcane understandable. Rosen was trim and affable, a gentleman’s gentleman, always polite, and carried himself with the kind of integrity you look for in a defense lawyer. And where Cutler was a jackhammer in his advocacy style, Rosen was an ice pick, cool and pointed.
As the trial approached, we tried to forge a unified strategy for presenting tough facts to a tough audience. I met with Cutler again, and it appeared he wanted to pursue his original theme of focusing on Spector’s character. Although he was reluctant to disclose his specific strategy, it seemed as if he wanted to portray Spector as a misunderstood romantic regarding his relationship with the five women who were supposed to testify that Spector threatened them with a gun. Cutler’s strategy alarmed me, as I knew these five women were the most dangerous aspect of the case. All of them had had some relationship with Spector. All of them would testify that he had pulled a gun on them and threatened them. If Cutler attacked the credibility of these women, jurors could see this as another of Spector’s assaults. In a case where the defendant will not testify, the personality of the lawyer becomes the attitude of the defendant.
California’s 1101(b) statute regarding witnesses specifically allowed, under a judge’s discretion, that the past conduct of a defendant can be admitted for limited purposes: to show that the defendant was in fact at the scene when there is a question about whether he or she was present, to show that the injury or death the defendant caused was not an accident, or to show that the defendant had the intent to commit the crime. The defense lawyers argued to Fidler that the 1101(b) evidence may have been relevant if Spector had previously shot someone. But he never had. This evidence is not supposed to show a pattern of conduct because pattern evidence is prejudicial. It can easily lead a jury to leapfrog the evidentiary necessity of proving the circumstances of the crime and allow them to speculate, “Well, he did it before so of course he did it again.”
1101. (a) Except as provided in this section . . . evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .
—California Evidence Code
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This highlights another codified contradiction in our criminal justice system. The 1101(a) section says you can’t use this evidence to show character. The 1101(b) section says you can use it to show motive and intent. For a jury, character, motive, and intent are inextricably tied together. Juries also love patterns. They use character evidence to search for motive. This prompts them to look at the defendant and evaluate, “Is he the kind of guy who would do something like this?” Despite the law, having five women testify that Spector threatened them with a gun was entirely about character.
So Cutler’s “misunderstood romantic” angle concerned me. I saw it potentially as a case killer. Because the more time you spend on this evidence, the more weight you give it in the jury’s collective mind. It tells the jury that you think it is important. Then the case becomes about Spector’s alleged abusive relationship with women instead of what the science says happened that night in that entranceway.
Even if it would be possible to discredit one or two of these women, there is no way a jury would dismiss all five of them testifying about incidences that occurred over a thirty-year period. My thought was to treat these witnesses respectfully and lightly, emphasizing that all of these incidences occurred after they had been in a relationship with Spector. All of these women stayed in contact with him and, although frightened by his behavior, never actually felt in danger of being shot. Jurors can understand that a defendant like Spector can be dysfunctional or even abusive without being a murderer. But it was best to minimize the potential damage of this “character” evidence and get them off the stand as quickly as possible.
This is one of the challenges as a consultant, whether you are working for a criminal defendant or a corporation in a civil lawsuit. Defense attorneys like to defend. They are reactive and are trained to be. But sometimes the vehemence of defending against accusations actually lends greater weight and credibility to the charges themselves. Think about it personally. You hear a crash in the other room in your house, and you walk in to find your seven-year-old daughter staring horrified at the broken pieces of your favorite golfing or fishing trophy. She immediately starts protesting that it’s not her fault, starts pointing fingers at her brother, the dog, gremlins, and aliens. The more she protests, the more you are convinced she is guilty. Now think of bank, oil company, automotive company, and tobacco company CEOs in congressional hearings.
Now think of the same crash in the other room. You walk in, and your daughter calmly says she is sorry that your favorite trophy got broken, she knows how important it was to you, and here is what happened. Think of your willingness to listen to what she has to say. You still may be suspicious (given her history of breaking things) but you will be more open to listening to the explanation and less skeptical of her excuses. With a reactive refutation, protests, and blame shifting, it is much easier to come to a simplified guilt conclusion. In accepting even partial responsibility, you have the appropriate tone and context for a plausible defense.
The second challenge you have as a consultant is convincing the client that there are nuances to the story. Remember, prosecution case stories are usually two dimensional in character development—good and evil, Clarkson good, Spector bad. Part of your challenge is bringing dimensionality to the case story so the jury can appreciate the complexity of human behavior. Spector himself has talked about his battles with his demons in the British documentary The Agony and the Ecstasy of Phil Spector. “I may not believe in God, but I sure the hell know there’s a devil.” Clarkson had them as well. But until your client understands the importance of character complexity for the jury, they will always be reactive, protesting that their motives are entirely pure.
Finally, as a consultant, you have an integrity issue. The client ultimately makes the call. And the attorneys are the ones who are ultimately trying the case. But I’ve worked on a thousand trials, and I’ve helped pick hundreds of juries. I have to give the client the clear, unvarnished risks and rewards of their chosen strategy. On one hand, I want to honor the experience, instincts, and choices of the attorneys who are on the front line of the case. On the other hand, there are times where I am convinced they are dead wrong and it is my job to push them toward a strategy that I am convinced will work, based on my experience, instincts, and research. Sometimes it’s a hard choice. But in a tough fact case, when a man’s life is on the line, what I want and even what they want is not important. It’s what the jury needs.
JURY SELECTION
In a high-profile case where the jury pool has already seen and heard the press coverage about how bad a guy your client is, jury selection is jury de-selection. Michelangelo once said, “I saw the angel in the marble and carved until I set him free.” So the art in jury selection is in the carving. You are not picking positive jurors, you are eliminating negative jurors. Hopefully, when the carving is done, you have a receptive audience.
To do this, you have to identify jurors with attitudes that are most harmful to your case. It’s not about race, gender, or age. It’s all about attitude. These personal experiences and core beliefs control how jurors view the evidence. And unless you know how those experiences and beliefs will interact with the evidence and arguments in the case, you do not have an accurate barometer for the jury’s reaction—how warm or chilly they will be to your case. More importantly, jury selection, if done correctly, is a preview of jury deliberations. You are trying to get jurors to speak with you and each other about how they see the issues in the case to gauge their worldview, how they best like to get and use evidence, and, most importantly, how their personalities will interact with you, your client, opposing attorneys, the judge, each other, and ultimately the case. In Spector’s case, there were a lot of negative attitudes I saw as important in identifying pro-prosecution jurors. These were:
So I designed a questionnaire to discover jurors who had these attitudes. Cutler and Spector were horrified when they saw the questionnaire. They did not understand that jury selection is an exercise in masochism, counter to your every instinct as an advocate. The necessity is to get a juror to articulate, first on paper and then in open court, how much they hate your case, your client, and maybe even you. Cutler and Spector’s understandable natural instincts were to rehabilitate Spector’s image, so they wanted to put only good things about him in the questionnaire. But unfortunately, when you do that, you don’t identify your negative jurors. And you can’t carve to set the angel free.
But they listened to me. Fidler sent out the questionnaires to prospective jurors, and they filled them out three weeks in advance. The district attorney’s office volunteered to copy them and notified us when they were done. I went down to pick up the boxes of questionnaires. Now, even though I have primarily worked for the defense on criminal cases, I have done work on occasion for U.S. attorneys and for prosecutors in other jurisdictions. I had even been hired by Bill Hodgman in the same Los Angeles district attorney’s office to help them on a case. No matter who hires me, I always believe in maintaining a civil and friendly relationship with the opposing side in a case. But when I walked into lead attorney Pat Dixon’s office to pick up the questionnaires and introduced myself, he refused to shake my hand, gesturing dismissively to the boxes on the floor. It was then that I realized the office had clearly gotten the message to win this case at all costs. Give no ground. And do not give the slightest impression of friendliness. This was war.
The problem with hostile gamesmanship in trials is you motivate the other side. Yes, everyone wants to win. But when the other side talks trash or does the heavyweight stare down, it just makes you want to beat them even more. There are times when the judge in a trial demands cooperation between counsel. Professional courtesy is useful when you have to work out trial issues with your opponents. But when you get the take-no-prisoners approach from the other side, it makes negotiating the smaller concessions that much tougher. However, we soon found out the DA’s scorched-earth policy, especially when supported by the judge, gave them a strong strategic advantage in the case.
We read three hundred juror questionnaires and rated them on a one-to-five scale, with one being the worst and five being the best. The jurors rated one you have to get rid of, and the jurors rated five are the ones the prosecutors will strike if they’re paying attention. You also make a list of “hardship” and “cause” challenges. Hardships are jurors who say they cannot sit on long cases because they would have extreme financial difficulty in sitting on a case, are taking care of small children or elderly parents, or have pre-paid travel plans. Cause challenges are jurors who have stated a bias in the questionnaire or in voir dire questioning that would impair or prevent them from being a fair and impartial juror in the case. This is why we were careful to include a number of questions to discern whether jurors had a bias in the thirteen categories I previously listed. You want to articulate the specific bias that you are asking the judge to excuse the juror for. The judge can grant unlimited cause challenges, but you have a limited number of peremptory strikes where you can dismiss jurors without a reason. The more cause challenges you get granted, the less you have to use your strikes on the really badly biased jurors. You can then use your strikes on the more marginally negative jurors, leaving truly neutral, impartial, or even positive jurors. Again, the art is in the carving.
One of the luxuries we had in the case with a sophisticated judge like Fidler was our ability to have the questionnaires three weeks before jury selection in order to fully evaluate them. Most of the time, you do not get a questionnaire at all and have to make on-the-spot decisions on jurors that you are hearing from that same day. When you do have a questionnaire, it’s usually very limited, and you only have overnight or an hour to review and rate the jurors.
We were concerned that there might be “stealth” jurors: prospective jurors who would give socially acceptable answers about fairness on their questionnaires, while hiding a true agenda to get on the jury to convict Spector. Some stealth jurors want the fame from sitting on a famous case. Some want to write the book and capitalize on the talk show circuit. Some have a political or social cause they want to advance and see the case as a platform for that agenda. But most stealth jurors want to convict the defendant.
California statutes allow you to investigate jurors. However, Fidler, at the request of the prosecution, did not allow us the names of the jurors, giving Spector what they call an “anonymous” jury. Anonymous juries have more typically been used in gang cases where there is fear of jurors being intimidated or tampered with. But some judges are using the anonymous system to prevent the media from obtaining information about jurors. I understand the instinct. However, the media, with its investigative resources, knows who all the jurors are by the end of the case. Without names, it is difficult for us to conduct background checks through Google searches, publicly available Facebook pages, or Twitter feeds. There are strict ethical rules about doing these searches. You may not “friend” a juror on Facebook or follow them on Twitter, as that would constitute contact, no matter how virtual it may be. You may only look at publicly posted information that anyone with public access may obtain. And while jurors these days are pretty savvy with their privacy settings, you can still obtain useful information to help fill in a portrait of a particular juror. You want to have the fullest picture you can of a juror who will ultimately be ruling on the life and future of your client.
Once we had read and rated the questionnaires, we created a comprehensive selection plan. This meant creating summary sheets for each juror based on their questionnaire responses. We then sat down with the attorneys to discuss the plan: here are the jurors we need to develop cause challenges on to save our precious peremptory challenges, here is the profile of jurors whom the prosecution and their consultant will likely try to eliminate, here is the profile of jurors they will want to keep on the jury. Finally, here is the profile of the types of jurors we would ideally like on our final panel. And you also need to look at the sequence of jurors that will be called into the box—where there is a good streak of jurors or a particularly bad streak. This is important so that you do not run out of challenges when there is a particularly bad group of jurors coming up that the prosecution can load onto the panel.
This is where we play jury-selection chess. You plan your moves carefully, also anticipating the prosecution’s probable moves, knowing that you will also have to improvise on the fly. I knew the prosecution would have a consultant on their team, given their zeal for a conviction in this case. I also knew it would probably be Howard Varinsky, an excellent consultant from the Bay Area who had handled a number of high-profile jury selections for prosecutors: the cases against Scott Peterson, Michael Jackson, Martha Stewart, and Dr. Jack Kevorkian.
From reading the questionnaires, we also knew we had a very tough panel of jurors. A lot of them had heard about the case. About a quarter already thought he was probably guilty. More than half thought a criminal defendant should prove his or her innocence and should testify to defend themselves. A fair number thought celebrities took advantage of others and got special treatment. Many thought a homeowner who owned a gun should be held responsible for a death, whether they pulled the trigger or not. There were only a few jurors whom we thought would be most receptive to our case, and those could be easily identified by the district attorneys and their consultant and eliminated through peremptory challenges. Jury selection is about reducing the risk you have on the jury. But when you have a tough case and an even tougher jury pool, sometimes you have to play high-stakes poker. That is, you actually have to up the ante and increase the risk for both sides.
The Los Angeles Times wrote an article titled “Spector Jury Selection a High-Stakes Battle of Wits” that came out on the first day of jury selection. In it, a Texas consultant was quoted as saying how we were looking for jurors enamored of celebrity and how important opening statements were and how the trial would “be over before one shred of evidence is presented.” This was a massive oversimplification of a commonly held myth.
Another phenomenon you have to deal with in high-profile cases is a slew of experts speculating and second-guessing every move you make. It’s tough, because the media in these cases covers the horse race—who’s winning and losing the case at any given time—instead of the nuances of the justice system. For full disclosure, I am one of those talking heads. However, I have tried to take an educational approach to my commentary, because the public does not have an accurate picture of the complexity and dynamism of these cases.
When we sat down to map out the jury-selection plan, it was decided that Rosen would do a majority of the voir dire, as he had the most experience with Los Angeles juries. Cutler had never tried a case in Los Angeles before, so as lead attorney, he would ask some initial questions to build rapport and get a better feel for L.A. juries.
The district attorney went first with prosecutor Pat Dixon leading off as the senior attorney on the case. He was a thirty-year veteran and head of the major crimes division in the office. He was tall, silver haired, and had a smooth, severe demeanor. However, a majority of the prosecution’s voir dire was done by Alan Jackson, a young but experienced district attorney who had finished successfully winning a conviction the previous year of the cold-case murders of racing’s Mickey Thompson and his wife. Jackson was charming, quick, and aggressive. A shock of dark hair would flop onto his forehead, creating the impression of a handsome and trim version of Bob’s Big Boy. Both of the prosecutors wore the uniform: dark suit, white shirt, striped tie.
Without a hint of an accent, Jackson told jurors to forgive him if he lapsed into his native Texas idiom and uttered “y’all” occasionally. It was the rapport-building phase of voir dire and all attorneys have their shtick—cocktail-party banter that is planned ahead and uttered to juries dozens of times. These are planned and specifically designed stories to let jurors know that the prosecutor is just like them.
The rapport-building phase is part of the mythical Persuasion lore in the Book of Trial Rules—an unspoken set of conduct that all attorneys learn to influence juries. As with all lore, some of these rules are based on survival, some on common sense, and some on pure myth—what one lawyer did a long time ago that has been repeated over the years, whether it worked or not. Some of these commonsense persuasion rules include remembering jurors’ names, standing respectfully when they enter the courtroom, and acknowledging their personal struggles if they talk about the loss of family members or medical problems. Most attorneys think of rapport building in terms of telling quaint personal stories to show that they are similar to jurors. “Oh, I see that you went to school at the University of Nebraska. My brother went there. Go Huskers.”
Attorneys then turn to the second chapter in their Book of Trial Rules: Indoctrination. Like most myths, indoctrination has a grain of truth. A principle called the primacy effect states that jurors are most receptive to information they first hear. And advocates like to start selling their cases early and often. As a result, many attorneys get up and examine jurors like a witness. “Would you have a problem voting to convict Mr. Spector, if we proved our case to you beyond a reasonable doubt?” The myth behind indoctrination is it presumes that jurors are passive, neutral, and compliant. And maybe they are for the short time that the attorneys are talking to them in jury selection. But then jurors are their own dynamos of decision making for the rest of the case.
But the problem with most attorneys in jury selection is that they really don’t care about the jurors. They care about the case. They feel the facts that they have spent months, if not years, working on will overcome all obstacles—a judge’s rulings, a witness’s shortcomings, and juror predispositions. It’s a useful delusion. But it prevents attorneys from understanding that the facts of their case are only as good as the jury’s interpretation of those facts. Their mistaken assumption is that a case presentation is a straight-chute data dump directly into an empty file folder in the jury’s collective brain. Not so. As soon as the words leave the attorney’s or witness’s lips, the information goes through a series of filters, subfilters, chutes, tunnels, and tracks that Rube Goldberg would be proud of. Thus, the check marks on the verdict form are as much a product of the juror’s own life experiences and psychological/cognitive processes as the evidence itself.
Treating jury selection as a necessary nuisance results in many a surprise verdict for attorneys and clients. It is a shame, because the jury-selection process is a real opportunity for attorneys to build real credibility and rapport with jurors by actively engaging them in a discussion about the case and the client. If jurors are engaged, they are more tuned in to what the attorneys and the witnesses are trying to communicate, and the attorneys are more tuned in to what the jury wants to hear.
Jackson, in his voir dire, was charming, authoritative, and managed to ask some jurors about the answers in their questionnaire. He then ran through a series of indoctrination questions about burden of proof and circumstantial evidence, all designed to extract a series of promises from them. Some jurors smiled, some nodded. But in the mostly one-way communication, the jury heard him, but he did not hear them.
Then Cutler, natty in an impeccable suit and pocket square, rose and addressed the jury. In his rapport-building section, he spoke in his native Brooklynese about not understanding Los Angeles: the continuous traffic and the lack of good delicatessens. I could see the jury looking at him quizzically, not understanding why he was vaguely insulting their city. In his indoctrination section, he then spoke about “the deleterious and dangerous rumors” in the press about Spector. He told them they should not automatically conclude Spector killed Clarkson because she was found dead in his home. He finally sat down. And that was it. If you really look, you can see it in the air between the lawyer and the jury. There is either a connection or no connection. Cutler had not flipped the switch.
Luckily, I had been working with Rosen to do the jury-selection work that needed to be done. While much is made of lawyers and consultants rigging a jury to acquit their client, it is a practical impossibility. Most of the time, you are just hopeful that you will be able to get rid of most of the jurors who already think your client is guilty. In most jurisdictions, the conviction rate hovers around the 90 percent mark. Research also shows that jurors who have been exposed to pretrial publicity are more likely to convict. So you are mainly looking for jurors to just give you a fair listening.
Some say that voir dire means to speak the truth. Some say that it is derived from two French verbs meaning “to see” and “to speak.” Despite this debate, good voir dire is where jurors spend most of the time speaking and telling you their truth. Great voir dire, if you are really listening to jurors, is a preview of deliberations, where jurors are reenacting, prior to hearing the evidence, how they will ultimately be discussing the case. But you have to ask really good questions and listen carefully to get them to tell you what their truth really is.
Most jury selections unfortunately end up with lawyers telling jurors how they should think about the case. They talk at the jurors. Jurors will then nod dutifully and parrot back their agreement. “Yes, I can be fair and impartial. Yes, I would be willing to consider circumstantial evidence.” When, in the back of their minds, they are really saying, “I’ll tell you what you want to hear. And I know what you are trying to get me to do. I will agree with you here in open court in front of all of these people. But, when push comes to shove, I will only do what makes sense to me.” Mind you, these are subconscious thoughts. Jurors want to be obedient and deferential to authority so, when confronted with a stern proclamation from an officer of the court, they try to be agreeable. But unless you ask good questions and listen carefully, they will not tell you candidly how they really feel.
Rosen did a masterful job when he got up in front of jurors. He engaged them in a conversation instead of a lecture. He got them talking instead of doing most of the speaking himself. And, most importantly, he did an excellent job of listening to them. For a consultant like me, this is the whole ball game. When jurors feel listened to, they are more likely to express their true feelings and not hide behind socially acceptable answers. And while I am trained and experienced in reading nonverbal behaviors—microexpressions, paralinguistic clues, and vocal idiosyncrasies—the real skill in voir dire is getting jurors to truly express their deepest feelings and experiences, some of which they themselves are not aware of. This is the essence of real rapport, where jurors share something personally meaningful and feel that the attorneys listen, acknowledge, and validate their experience. When you are able to really listen to jurors and find out what is important to them, you are building an audience for your case and understanding how to shape your evidence to meet their expectations.
Rosen’s skill also allowed us to get more challenges for cause on jurors by getting them to state they couldn’t be fair. Fidler had to excuse them, enabling us to save a number of our peremptory strikes. Additionally, he was able to get jurors to talk to each other, which allowed me to create a projection of how the jury would likely deliberate with each other. Seeing that dynamic was extremely useful in determining what our final jury panel would be.
Given the challenges of the case and the final jury pool, I felt that we had to raise our risk tolerance. Normally, you strike all the strong jurors that you think will go against you. And in truth, your main focus is not on the final twelve but on the two or three jurors that will be opinion leaders in the deliberation room.
Prosecutors need consensus, a get-along jury to render a unanimous verdict. They have traditionally eliminated African Americans and liberals, knowing these demographics are more skeptical of authority and police investigations. Prosecutors typically favor Asians, engineers, and conservatives, thinking them more deferential toward authority, respectful of law enforcement, and suspicious of sneaky defense lawyer tricks. These stereotypes and easy labels often replace meaningful information about juror attitudes toward the specific issues in a case. Jury feelings about police investigations and gun ownership are too granola crunchy for hard-evidence prosecutors. But these attitudes are the engine that will drive any verdict.
I knew we needed a strong, skeptical, and very independent jury. Not sheep. Defense lawyers, especially in tough fact cases, are also looking for outlier jurors, lone wolves who might split or hang the jury and take a few jurors with them.
So the peremptory-strike chess match began. Each of us went back and forth a few times, alternately chanting the phrase, “If it would please the court, we would like to thank and excuse . . .” In California, we have a procedure called back strikes. At any point, you can accept the panel of jurors. If the other side accepts as well, you are done and you have a jury. However, if they keep striking jurors, you can go back and start striking additional jurors and you are one strike ahead of them. If you pass twice and they keep striking, you are two strikes up on them. This way, when they are done, you can go back and cherry-pick certain jurors that you then want to take off after they are done, having a better means to shape the final panel. However, there is also a risk to this strategy.
At a key point midway through the strike section, the prosecution passed on the panel and accepted, thinking we would keep striking. In a traditional case, they had good reason to think we would. We had three engineers; a vice president of marketing for New Line Cinema; and an NBC producer who had covered the O. J. Simpson and Michael Jackson cases, and even the Spector case early on. These were traditionally conservative, pro-prosecution jurors. But we were not in a traditional case.
We took a break and went back into the jury room to discuss the panel. The lawyers all wanted to strike the engineers, the executive, and the NBC producer. I told them no. We had to accept the jury that we had, even though we had seven strikes left. They were stunned and started to argue with me. We asked the judge for more time. I explained to them that we had exactly what we needed on this panel. A group of highly intelligent, skeptical, and independent jurors. Jurors who could understand all of the science and forensic evidence that would be the cornerstone of our case. Jurors who would not be cowed or charmed by Alan Jackson and the prosecution. I specifically knew that the NBC producer would have a lot of experience with the forensic evidence and would know the reputations of our experts: Dr. Henry Lee, Dr. Werner Spitz, Dr. Vincent DiMaio, and Dr. Michael Baden. More importantly, he just seemed like a fair guy. While one of the civil engineer jurors who was a Mormon concerned most of the team, he knew about guns, had known friends who had been involved in accidental shootings, and had two co-workers who had committed suicide. More than anything, I wanted to keep this juror. He was smart, and he had a specialty in hydrological engineering, making him more receptive to the blood spatter arguments we would be making. He understood that accidental shootings happened and that people who are suicidal may not show it outwardly. I knew he was foreperson material.
I explained that, while risky, you want jurors who have had tough and even tragic life experiences in defense cases. They understand that sometimes bad things happen to good people. Jurors who are sheltered and have never had a tragedy are more reliant on the police and prosecutors to keep them safe, taking them at their word. I further explained to the team that while one strong juror could bully a group of weaker jurors into a verdict, if you had several, the chances of one juror strong-arming the others was minimized. In fact, you increased the chances of disagreement with a number of alpha jurors. I convinced the team to stop and accept the panel, a move I knew would surprise the prosecution. I also had looked ahead and knew that we would run out of strikes just when we got to a very bad group of jurors.
When we went out and accepted the panel of jurors, the prosecution looked astonished. But you could almost hear the jaw of the NBC producer hitting the floor of the jury box. He could not believe it. Never in a million years did he think he would be chosen for this jury. Later, Linda Deutsch, who covers all of the high-profile trials for the Associated Press, came up to me and told me we had made a good choice. She said she knew the producer and said that he was a very fair guy.
OPENING STATEMENTS
Jury selection is a lot like matchmaking. You are not only looking for how jurors will react to the evidence, you are also looking to see how their personalities interact with the attorneys and key witnesses. Given this dynamic, I was concerned after voir dire that Cutler would not be a good match stylistically for the kind of jury we wanted in the case. So I was conflicted. Even if there are differences of opinion on a high-profile team, I always try to arrive at an agreement to meet the wishes of both the client and lead attorneys, but more importantly, to serve the needs of the case. Cutler still voiced his opposition to making the science a key issue in the case. But we had just picked a jury who would be receptive to the science. We were at a crossroads.
I spoke to both Rosen and Linda Kenney Baden about these concerns, and they told me I should speak to Spector. After I did so, Spector made the decision to have Cutler share the opening statement with Baden. During a break in court one day, Cutler came up to me, red in the face, and said, “I’m going to kill you.” Even though I knew it was an expression, given Cutler’s past representation of Gotti, I did get a little worried.
I knew that Cutler would not be receptive to any of my suggestions, so I started working with Linda on the science side of the case for her portion of the opening statement. I wanted to find a theme that I felt characterized the prosecution’s case and focused the jury on the forensic evidence. I came up with the phrase, “Is it story or is it science?” I wanted the jury to understand that the prosecution’s case was a contrived story that was dependent on a lot of speculation and bad character evidence about Spector. I wanted to contrast this with the hard science that showed Clarkson was holding the gun when it went off. We wanted to show that the prosecutors had manufactured this soap opera and then tried to make the evidence fit their story of the case.
It is important in an opening statement to organize the important evidence for the jurors in the case. Clear evidence increases the salience of those facts for the jury. We wanted to leave them with ten key scientific facts that would show that Clarkson was holding the gun when it went off.
On the day of opening statements, Jackson’s presentation was crisp, animated, and strong. He had a PowerPoint with a black background and Courier font, making it look like a crime novel. He spent a great deal of time on Spector’s history of guns and women, his drinking, and the events on the night of the shooting, ending with his statements to the limo driver DeSouza. He made a number of points about Spector’s not calling 911 and attempts to cover up his crime. It was short on detail but it was a compelling argument, laying out the challenges I knew we would have in the trial.
When Cutler got up to give his portion of the opening statement, the prosecution told Judge Fidler that they would not be introducing some of the police statements made by both the officers and Spector at the time of his arrest. Because the prosecution did not introduce them, we could not bring them up either. Cutler had apparently based most of his opening statement on these exculpatory statements and was surprised that Fidler was now ruling that he could not use them. Cutler told the judge that he felt “like he had his pants down and was naked before the court,” and that it was unfair. Fidler replied that it was the law.
So Cutler got up and, with very dramatic gestures, spoke about Spector’s talent and genius and about Clarkson’s suicide. He berated the police investigation and exclaimed that they “had murder on their minds.” In Shakespeare’s words, he “tore a passion to tatters, to very rags, to split the ears of the groundlings.” There were a number of sustained objections, and he sat down.
Baden, by contrast, got up and spoke of the forensic evidence and the science in the case. She was pointed, clear, and measured in her opening, laying out the ten points we had outlined in her PowerPoint. The jurors were attentive, even if the press made the most out of the more dramatic prosecution opening and the fireworks between Cutler and Fidler.
Mick Brown from the British newspaper The Telegraph was covering the trial and wrote the following day, “Conventional wisdom has it that the job of counsel in any criminal trial is to present the jury with a narrative they can latch onto, and Mrs. Kenney Baden’s address was a master class, presenting a series of telling points, helpfully numbered one to ten, describing how the copious amounts of blood-spatter and gun shot residue on Lana Clarkson’s hands and dress, and the relatively small amounts of both found on Spector pointed to the fatal wound being self-inflicted.”
DEFENSE TEAM ON TRIAL
After opening statements, we learned exactly how desperate the district attorneys were for a win in a big case. Unbeknownst to us, the prosecutors and the judge were investigating evidence tampering on the part of prior attorneys Shapiro, Caplan, and noted forensic experts Dr. Michael Baden and Dr. Henry Lee. Armed with statements by Shapiro’s former law clerk Gregory Diamond, who was trying to sell a Hollywood screenplay, and would-be investigator Stanley White, who had accompanied Shapiro and the rest of the experts on the scene, the judge appointed a special master to look into allegations that either Baden or Lee had picked up and taken evidence from the scene.
This investigation was going on without our knowledge when we were in jury selection and preparing for opening statements. Instead of delaying opening statements, holding hearings, and making rulings, Fidler waited until after our opening statements to hold hearings on these issues. By then, we had told the jury that they would hear from the esteemed forensic experts Lee and Baden.
Fidler then held a series of hearings where he forced everyone to testify about what they had allegedly seen during that walk-through. There were conflicting accounts from both of the prosecution’s witnesses: White saw Lee pick up something, and Diamond saw Baden pick up something, then recanted and said he did not see Baden pick anything up. Defense investigator Bill Pavelic said he didn’t see anyone pick up anything. Fidler also forced Spector’s former attorney Caplan to testify under threat of contempt, despite ethical rules by an attorney not to compromise the defense of her client, even a former client. She testified she saw Lee pick up something.
Both Baden and Lee testified they did not pick up anything. Both of these men had sterling reputations and had worked with prosecutors (including Los Angeles police and prosecutors) and defense attorneys alike for decades without the hint of impropriety. They had nothing to gain and everything to lose by hiding evidence. More importantly, if they had found something that had been missed by LAPD investigators in their thirty-six hours on the scene, it would have benefited the defense to turn it over.
But despite inconsistent and ambiguous testimony from the witnesses and the inherent credibility of Lee and Baden, Fidler ruled as a matter of fact that Lee had improperly taken evidence from the scene and Baden had not taken anything. This made it impossible for Lee to testify, as the judge would instruct the jury on his finding, and the prosecutors would be able to cross-examine him on this contrived piece of fiction.
In the Simpson case, the experts, including Lee and Baden, had hurt the prosecution badly. They were going to ensure that it didn’t happen again.
THE PROSECUTION STORY
Since the prosecution knew the science was their weak suit, they led with emotion. No doubt they had done a focus group and knew, like we did, that jurors would conclude, despite physical evidence, that if Spector had held a gun on women before, he had done it this time as well. If you have one or two witnesses testifying against you, you may be able to discredit one or both of them. But five, no.
Again, it was my feeling that we should get these women on and off the stand as quickly as possible. The more time you spend on certain witnesses, the more important those witnesses become for the jury. Additionally, I felt we needed to treat these women with kid gloves when they were on the stand. Even if there were inconsistencies in their stories or questionable motivations for their testimony, it needed to be done with a light touch. If an attorney beats up a witness on the stand, jurors can easily believe that the defendant beat up the witness on the night in question. The witness’s testimony becomes a reenactment of the incident they are testifying about. If they are scared and weeping on the stand, the jurors have a picture of the way they felt that night. If the attorney questioning them is combative and sarcastic, they can easily transfer that behavior to the defendant’s conduct that night.
Rosen had prepared to use the softer touch with these women. He planned his questions to be short and to the point, get in and get out. The most recent incident with one of these women was more than a decade before Clarkson had been at the house. Many of these women still maintained relationships with Spector, even after these incidents. Some of them did not actually feel they were in danger, even when Spector had held guns on them. So using a softer touch made sense to bring out these important points.
Cutler was given the cross-examination assignment of one of the women from Spector’s past, Dianne Ogden. She seemed like an easy witness because she actually still had feelings for Spector. On the stand, she confessed that she still loved Spector and had never truly feared for her life. But then, for some reason, Cutler decided to aggressively cross-examine Ogden. He started shouting at her, accused her of lying, and then she started to weep. Judge Fidler admonished Cutler twice to “lower his tone.” It was a disaster. She appeared victimized by the defense, and by transference, Spector, one more time. It was the last witness Cutler would handle in the trial.
Adriano DeSouza was up next, and he proved to be a good witness for the prosecution. He was clear and consistent in his testimony about the events of the evening. He had driven Spector around that evening and had seen him get progressively drunker and more cantankerous. However, he also testified that Clarkson had willingly agreed to come to Spector’s house. As in previous statements, he again clearly stated that he had heard a pah sound when he was sitting listening to music in the town car, then Spector had emerged from the house a few seconds later, gun in hand, stating, “I think I killed somebody.”
Courts have relied on eyewitness testimony as the main staple of evidence since the onset of trials. Thousands of defendants enter plea deals or are convicted every year based on a witness’s assured recollection. It also fits our common sense: if an independent person said they saw someone commit a crime, well, they must be right. Yet the fallibility of eyewitness testimony has been known in the research community for almost forty years. The Innocence Project, headed by Barry Scheck and Peter Neufeld, has calculated that nearly 75 percent of the 301 convictions overturned by DNA evidence have been as a result of mistaken eyewitness identification.
Elizabeth Loftus, a cognitive psychologist, has studied the malleability and fallibility of human memory for thirty years. She has conducted numerous studies that show how memories can be constructed, contaminated, and distorted. In one of her famous studies, participants who saw slides about an automobile accident and were asked how fast the cars were going when they smashed together remember seeing broken glass, even though there was none. In another study, researchers in Canada were successful in planting memories in about half of their subjects that they were attacked by a vicious animal when they were children.
There are five essential areas where eyewitness testimony has been shown to be inaccurate. First, leading questions, suggestive language, or additional information given to the witness affects how they remember an event. Second, inattention blindness suggests that some witnesses who are focused on certain events may completely miss other central aspects of the crime. Third, studies have shown that we are much more mistaken when identifying suspects of a different race or culture. Fourth, lineup misidentification occurs frequently where law enforcement intentionally or subliminally points a witness toward a certain suspect. Fifth, the trauma of a violent crime can profoundly alter the memory of that event.
New Jersey now gives an instruction to jurors about some of the potential problems with human memory. The science is so convincing in this area that other states are considering a similar instruction.
But the law treats the brain like a recording device. If a witness said they saw or heard something, it must be digitally stored on the brain’s hard drive with perfect clarity, retrievable at a moment’s notice. The law rarely appreciates the myriad of psychological factors that can affect that memory. The brain is actually more like an abstract painting than a photograph, with the witness freely interpreting the colors and shapes on the canvas according to his or her state of mind.
And so it was with Adriano DeSouza. It was hard to conclude from his testimony that he was lying when he saw Spector step out of his house that night. No doubt, he thought he did see Spector with a gun and thought he heard him say, “I think I killed somebody.” But defense attorney Brad Brunon cross-examined DeSouza and ably brought up a number of factors that could have affected what he saw and heard: It was after four in the morning and DeSouza had been up for more than twenty-four hours. He had been listening to music in his car with the air running, and had been dozing when he heard the gunshot. The fountain in the courtyard next to the car was very loud, and opera was playing in the house. Spector had been drinking all evening, was slurring his words, and also spoke naturally in a softer tone. Although he spoke English fluently, DeSouza primarily spoke Portuguese at home.
When you play back the 911 recording, the first thing DeSouza says to the 911 operator is, “Yeah, I hear the uh, uh, uh, uh, like a noise, and then he opened the door and I think he—I killed her.” Then the operator asks him to clarify. And it is not certain whether DeSouza thinks that Spector killed her or he thinks Spector said he killed her and was uncertain about it.
The team never wanted to concede that Spector ever said the words, “I think I killed somebody.” However, it was always my belief that any homeowner like Spector would feel a degree of responsibility if a guest has killed themselves with one of the homeowner’s guns. This guilt could have led Spector to believe that he himself had killed Clarkson by allowing her access to the gun.
Also, DeSouza said he saw Spector come out of the house with a gun in his right hand. This would have been difficult for Spector, given his shakiness, as he would have had to turn the door handle and, while holding the gun, work the latch with both hands, leaving much more blood evidence than had been found. DeSouza also says he saw the brown handle of the gun grip, despite Spector’s hand covering it. Psychologists call this confabulation—a trick of the mind to interpose elements of a crime to help make sense out of it for the witness, whether they actually saw it or not.
Despite these inconsistencies, there was no knockout on cross-examination of DeSouza. He was as strong a witness as we knew he would be. However, we had hoped we had raised a few questions about what DeSouza saw and heard, just to take some of the momentum out of the prosecution’s case.
The prosecution then went into its forensic case, conveniently slotted at the end of their emotional evidence. The first part of their case had all been focused on a simple circumstantial equation: Spector, when drinking, used guns to coerce women to do what he wanted. They hoped they had made their case to the jury as they knew they would be playing defense on forensics.
They led off with Dr. Louis Pena, the deputy coroner, followed by Steve Renteria, a criminalist with the Los Angeles County Sheriff’s Department, and then went on to Dr. Lynne Herold, the senior criminalist for the sheriff’s department. All three testified to support a few main propositions of the prosecution’s case: that Clarkson and Spector had struggled, that the gun and bullets belonged to Spector, that blood spatter and gunshot residue showed he was within three feet of her when she was shot, and that he had tried to wipe down the gun and clean up evidence. Most importantly, they testified that Clarkson had not committed suicide.
Although Pena and Herold had only seen one inside-the-mouth gunshot wound between them in their thousands of autopsies and crime scene investigations, they dismissed the statistical evidence that 99 percent of all intraoral gunshot wounds are suicides. They dismissed the evidence that guns are the leading cause of suicide. They also dismissed the fact that women, although less frequently than men, use guns as the leading cause of their suicides. In his testimony, Pena relied on the textbooks of two of our experts, Dr. Spitz, a noted forensic pathologist, and Dr. Vincent DiMaio, a gunshot wound specialist, because of his unfamiliarity with the subject.
They also dismissed the lack of struggle evidence, the angle of the wound, the blood spatter, and the gunshot residue on Clarkson. Instead, these three scientists ventured into the realm of pure speculation, concluding that women don’t commit suicides with purses over their shoulders, that women rarely shoot themselves when they commit suicide, and that they never commit suicide in strangers’ houses. Pena also said that he relied on an investigator’s reports in changing his conclusion from “accidental” to “homicide,” rather than his own independent scientific evaluation. Barely a month after Pena had testified that women do not use guns to commit suicide, his boss, Dr. Lakshmanan Sathyavagiswaran, presented a paper discussing fifty women who had committed suicide by gun.
Pena said that he had concluded that Clarkson had “no evidence to indicate depression or any psychiatric disorder for depression.” Yet he did not look at any of her computer files or perform a psychological autopsy. So he had no idea of her psychological state at the time he opined that she had no indication of depression.
The political pressure to conform opinions to the prosecution party line is not new. Coroners are elected officials. They have never gotten into trouble for supporting a prosecutor’s or police officer’s testimony. But they have lost their jobs for going against those they routinely work with. Criminal defense lawyers rarely have political ambitions. But there is a direct line from the district attorney’s office to a judgeship, city council, assembly seat, or even higher.
Dr. Michael Baden recalls a story when he was first hired as a medical examiner in New York. On his first day of work, he was greeted by Frank Hogan, then district attorney for New York County, and chief medical examiner at the time, Dr. Milton Helpern. They told him, “Justice is a three-legged stool: the police, the prosecutors, and the medical examiner’s office. We are all part of a team.” Baden knew at that moment that his medical and scientific objectivity was secondary to the primary goal: to help law enforcement prosecute cases. That pressure becomes especially intense when the autopsy findings don’t match the police investigation, for example, when an entrance wound in a suspect’s back suddenly looks more like an exit wound. Baden explains that we all want to believe we live in a High Noon town, where Gary Cooper is the sheriff, and not an Unforgiven town, where Gene Hackman is the sheriff.
This is why, in its 2008 report, the National Academy of Sciences (NAS) criticized most of the forensic labs across the country, stating that there was very little science in forensic science. Bite mark, bullet lead, and microscopic hair analyses were all used and misused. There was vast inconsistency in the use of fingerprints, with some labs using nine points to match the fingerprints of a suspect and some using as little as four. The NAS recommended greater consistency and scientific standards in these labs. But more importantly, it recommended that forensic labs be independent, accessible to both prosecutors and defense attorneys alike to avoid the three-legged stool approach to justice. When we tried to enter the NAS report into evidence, Fidler would not allow it.
Again, to dispel any notion that Clarkson was depressed or suicidal, the prosecution ended their case with a number of witnesses testifying to Clarkson’s happiness and hopefulness. Her agent spoke about her talent and promising prospects for her getting work in the future. Michael Bay, director of many blockbuster movies such as the Transformers series, testified to her talent and prospects of getting work. Her mother spoke about shopping for shoes with her upbeat daughter. A demo reel that she produced highlighting her comedic talents was played for the jury. In one of the skits, she plays a blackface Little Richard selling products on QVC, and in an outtake she is seen peeling off the prosthetic latex of the character. Despite the prosecution’s efforts to create the image of happiness and light, cross-examination, done delicately by Rosen and Brunon, started to reveal the woman behind the mask, a darker and more complex picture of the troubled actress, struggling with age, beauty, money, and health.
Lawyers, judges, and legal experts all prefer the comfortable confines of linear reasoning to the complex world of psychology. They render the richly textured portrait of human experience, emotion, and choices into a single still image of that person. They then tell you the photograph is the sum total of that person.
Clarkson was neither “happy-go-lucky” nor was she “suicidally depressed.” She may have been both, depending on the day, her mood, and whether an audition had gone well or poorly. These adjective labels merely describe the myriad of moods we all encounter as we live our lives. Spector, when he was interviewed at the police station the morning after the shooting, said, “And I don’t know what her fucking problem was, but she certainly had no right to come to my fucking castle and blow her fucking head open.” The prosecutors puzzled over this statement, not sure whether to use it as evidence. Was the crudeness of the statement indicative of the callousness of a murderer? Or is it merely an insensitive statement of Spector’s innocence?
While both prosecution and defense lawyers struggle to define the characters of both victims and defendants, the real question for jurors is how the full portrait of that person makes them act in a particular way. In many ways, jurors have a much richer appreciation of the often chaotic and contradictory human condition than those in the legal profession. Jurors want to be inside the case, to be a part of it and get to know the real characters so they can make the important decision about guilt or innocence. They want to join Clarkson and Spector as they step from the town car and into the Pyrenees castle on that cool February night. They want to walk with them up the steps, the courtyard fountain rushing in the background, and step inside with them, the front door closing softly behind them.
THE SCIENCE DEFENSE
It was toward the end of the prosecution’s case that lead attorney Cutler decided to take a leave to film his short-lived, ironically named television show Jury Duty. In it, “Judge” Cutler would preside over a jury of three celebrities who would hear small claims of real cases. In discussing his decision to leave the trial, Cutler reasoned, “Getting away from the pressure cooker is good for me. I can see more clearly.” Cutler also stated he would be back in time for closing arguments and would be reading transcripts and watching the trial online. It was stunning and unprecedented that the lead lawyer for a client on trial for murder would leave the trial for weeks to film a television show. But since we knew that Cutler did not have much faith in the scientific evidence, it may have been a blessing.
We led off the case with the two renowned experts, DiMaio and Spitz. Both had virtually “written the book” on their specialties, and the coroner and medical examiner had both relied on DiMaio’s and Spitz’s texts in conducting their work. Along with James Pex, another forensic scientist, they tried to explain to the jury the scientific basis for the conclusion that Clarkson had been holding the gun when it went off.
First, the prosecution contended there was a struggle between Spector and Clarkson, using some bruising at her wrists as evidence. However, there was no sign of a struggle in the living room or in the foyer where Clarkson was shot. Additionally, there were no other cuts or bruises on her body from a struggle and no tissue, hair, or DNA from Spector under her fingernails. It would be assumed that no one would willingly let a gun be put in their mouth, yet there were no cuts or bruises around her lips and no damage to her teeth or gums from a gun trying to be forced into her mouth. All of the teeth that were broken were from the inside out from the blast of the gun in the mouth. The only bruise was on the tongue, which was again consistent with the blast from the gun as it went off. Then there was the size and age difference. Clarkson had at least seven inches, thirty pounds, and twenty-five years on Spector. Clarkson worked out regularly. Spector did not.
The autopsy also showed a slight upward trajectory to the bullet. This is consistent with the angle of someone who is holding the gun themselves. Spector would have to be kneeling in front of Clarkson in the chair in order to get that same trajectory. Then the expulsion of blood, tissue, gunshot residue, and teeth would have been sprayed over Spector’s hair, face, and the upper portion of his jacket.
Which leads us to the cloud. When there is no exit wound, the pressure of gases from a gunshot blast builds up and those gases are expelled out of the only available orifice. That cloud of matter leaves a pattern that can tell forensic scientists much of how the shooting happened. Two of the experts concluded that this cloud of matter can travel up to six feet and even Pena has seen spatter that had covered an entire room. One of Clarkson’s teeth ended up on the stairs twelve feet from where she sat, demonstrating the force of this gunshot blast. With that cloud, you would expect to see a volume of blood, tissue, and gunshot residue all over Spector’s white coat, especially covering the right arm that Spector would have used to shoot the gun.
Spector’s coat became a morbid canvas for the final portrait of Clarkson. Yet there were only sixteen small spatter droplets on the left-hand side of Spector’s coat and nothing on the right side or right sleeve of the coat. Nothing except one small spatter on the right triceps side of the arm by the elbow. The laws of physics and gravity apply, even in the lofty heights of the Pyrenees castle. And blood spatter cannot shoot from Clarkson’s mouth and then turn a corner to land on the elbow side of the jacket of the extended or bent arm of a shooter.
The spatter did cover the front of Clarkson’s dress. But you would expect to see a void or space where Spector’s shooting arm had been. There was no such void. Yet there was blood spatter and gunshot residue on Clarkson’s hands exactly where you would have expected them if she had been holding the gun.
If Spector were in front of her as the prosecution alleged, he would have not only blocked and been a sponge for this cloud of matter, he would have also blocked the tooth that flew out of Clarkson’s mouth and landed twelve feet away on the stairs.
And since the gun was a key piece of evidence for the prosecution, they argued that Spector had wiped it down. Yet there was checkering on the gun grip and crevasses on the gun that would easily have contained Spector’s DNA. Yet none was found. The only DNA that was found on either the gun or the bullets was Clarkson’s.
Where else did they find Clarkson’s DNA? On Spector’s hands, showing that he did not wash them. This is especially important, as they only found one particle of gunshot residue on Spector’s hands. One. They had discovered many particles on the back of Clarkson’s hands, and they did not even swab the palms, as they do in many other state forensic labs.
They also found Clarkson’s DNA on Spector’s genitals along with another unidentified person’s. They found Spector’s DNA on her nipple. Since the prosecution’s theory is that he forces women at gunpoint to stay to have sex with him, why would Spector have forced the issue if he had already had sexual contact with Clarkson?
Then there were the statistics. Ninety-nine percent of intraoral gunshot wounds are self-inflicted. Pena, the deputy coroner, had never seen an intraoral gunshot wound that was a homicide. Spitz, in his fifty-four professional years of conducting sixty thousand autopsies, had never seen it.
So how did the blood get on Spector’s jacket? We will never know for sure, although two theories could explain it. First, Spector could have been within the experts’ six-foot spatter zone. He could have been moving to her as she shot. Dr. Baden also proposed a theory that he discovered during the trial. Even with an intraoral wound, she could have exhaled agonal breaths, which are the final breaths of a dying person. As Spector reached her, these agonal breaths could have expelled spatter droplets that could have gotten on the coat as he reached her. In fact, the grand jury was told about these agonal breaths and the possibility of spatter occurring this way. Yet it never made its way into trial.
As Jackson knew that his case could fall on the credibility and opinions of our experts, he took a no-holds-barred approach to them, excoriating them for how much money they had been paid, small inconsistencies in their reports or testimony, or the fact that they had not examined other small elements of the case. Later, in closing arguments, Jackson would call our use of these experts a “checkbook defense.” The phrase was immensely ironic when the prosecution themselves have used the same experts on their cases and spent significantly more money prosecuting Spector than he had in defending himself.
While many in the public grouse about inequity of high-profile defendants paying for experts, they often don’t consider the personnel, resources, and budget that the prosecution brings to bear in these high-profile cases. If the government decides a case is important, they have virtually unlimited resources to bring to the case. They don’t just hire outside experts—they pay the salaries of every single person working in a crime lab, not to mention funding the crime lab itself. Almost all criminal defendants are overwhelmed by these resources and don’t have the money to challenge the investigation or evidence against them.
THE JURY VISIT
A picture may be worth a thousand words, but it doesn’t tell the whole story. Juries must rely on descriptions and pictures of a scene where the alleged crime happened. But what they want is a fuller, three-dimensional portrait of the scene. The prosecution usually controls the visual evidence in a case because the medical examiner and police control the scene during the investigation—it’s incredibly rare for a defense attorney or expert to be present at the scene of an alleged crime during the initial investigation. Thus, the police take pictures of what they deem to be important.
We wanted the jury to have a full picture of the case. We wanted to demystify the Pyrenees Castle, the “crime scene,” and let them do a little investigation for themselves. We wanted them to see the foyer, the chair where Clarkson sat, and the drawer that contained the empty holster. We wanted them to have a full view of that entranceway and that living room so they could evaluate the forensic evidence for themselves.
We asked Fidler to allow a jury visit. This would entail a field trip where jurors would be loaded in several vans and would then tour the scene in a highly controlled manner. There would be ground rules about where they would be able to look and how long they would be able to spend at the site. The judge agreed and it was arranged.
I sent a note to the defense team, asking to make sure that the fountain in the courtyard was turned on. I wanted the jurors to hear how loud the fountain was, to understand that it could have interfered with DeSouza’s hearing Spector accurately when he came out of the house. Unfortunately, Spector mistakenly copied a disgruntled former employee when forwarding my email. She gave it to the prosecution, and they accused me of trying to manipulate the site visit. The fountain was either on or off. I had just asked that the fountain be turned on to represent what the sound would have been on the night of the shooting. The judge shrugged this off, and the jury visit was on.
On August 9, 2007, the jurors toured Spector’s home. They were limited to the courtyard, foyer/entranceway, and living room. They wanted to see other rooms in the house, but the judge denied their request.
Most significantly, the jurors had taken copious notes and had compiled a list of ten questions they wanted answered as a result of their visit. The questions revealed that they had been paying close attention and were tracking some of the forensic issues. Unfortunately, the judge told them that they could not ask questions. But this told me that they were indeed a strong and independent group, intelligently tracking the scientific evidence in the case. The civil engineer who had a specialty in hydrology helped compile the jury questions, another indication that he was a strong candidate as foreperson.
LANA CLARKSON
Depression is the inability to construct a future.
—Rollo May, psychologist
Everyone is afraid of suicide. Nobody wants to accept the possibility that someone they know who can look so normal one day can take their own life the next. It is always sudden, always unexpected. It defies logic and is deeply disturbing, because we all go to bed at night thinking no matter how bad a day we had, things will somehow turn around.
Even within our team, there was reluctance to present this theory, even with the strength of the forensic evidence. That is why I felt it was important to redefine suicide for the jury. The prosecution had a simplified argument that suicide is always a carefully planned and intentional act. They also presented testimony to the jury that women don’t shoot themselves, they don’t kill themselves in other people’s houses, they don’t kill themselves after they have just gone shopping, and they don’t kill themselves when they tell people “things are looking up.”
Medical examiners and coroners have struggled with this issue. Estimates suggest that there are up to 20 percent of deaths in which the mode of death is undetermined. And yet uncertainty is the bane of a prosecutor’s existence. Ambiguity is not tolerated, especially in a big case. It is understandable, this necessity to jump to conclusions. Especially when the medical examiner’s job is to create certainty in cases. Things look like they are. Uncertainty for a jury means reasonable doubt and acquittal. And that goes in the loss column. The one-hour TV procedural at ten o’clock is the place for mystery, not a real crime investigation. Because when a woman is dead with the gun of another man at her feet, you want to know. Even if you never really will. You want to feel like you do know.
Except when there are real unanswered questions and a legitimate mystery.
The psychological autopsy was developed in the 1960s in the Los Angeles coroner’s office to specifically deal with this kind of uncertainty. It is a medical procedure where, in conjunction with the coroner’s officer, professional psychologists, psychiatrists, and other mental health professionals go back and try to discover if there is something in a decedent’s background that would explain whether they would have killed themselves, lacking any other mode of death. A psychological autopsy can assist in clarifying this mode.
In March of 2004, when the investigators started looking at Clarkson’s computer, these questions must have arisen because Steven Dowell, a criminalist from the coroner’s office, suggested that a psychological autopsy should be done. After all, they had a box of letters that spoke to Clarkson’s psychological state. However, in two meetings in May of 2004 and March of 2005 when a psychological autopsy was suggested, the district attorney claimed they had never heard of the procedure. Spector had already been indicted and charged, and so what did the district attorneys do? They told Dowell they had already established that Spector was the only one responsible for Clarkson’s death. So Pena’s superiors locked up all these documents and did not show them to anyone, including Pena.
What did the computer files and this box of letters describe about Clarkson’s life? She had had an accident where she had broken both wrists (possibly explaining the wrist bruising), and pharmacy records showed that she had a dependence on Vicodin—at one point up to eighty pills in a month. There were times when she drank so heavily she would black out. The night she died, her blood alcohol content was 0.12.
Clearly dismayed by the lack of career advancement, she also had severe money problems, having to borrow from friends. She had just broken up a month before with a man she had called the “love of her life.” In an email, she had said that she had a desire to “chuck it all” because “it was just too much for one girl to bear.”
Reflecting these two portraits of Clarkson, her friends had differing things to say about her in court. Her best friend, oddly named Punkin Pie, discussed her depression in court, and Alan Jackson excoriated her for her traitorous, yet true, picture of the friend she loved.
We even had a hearing so that Fidler could decide whether madam Jody “Babydol” Gibson would testify. She had notified the defense that Clarkson had worked for her as an escort from 1992 through 1998 and that Clarkson had even had a gun fetish.
In high-profile cases, you always have witnesses who come out of the woodwork to testify. Many have hidden agendas: aspiring actors, dilettantes with screenplays or books they want to promote, or folks who just want to feel the spotlight warmth of public attention for a few days. Some genuinely want to help. The investigators vet them like senatorial candidates to see where their skeletons hang and how they might be pilloried in cross-examination. Because your case’s credibility can hinge on their testimony. Ultimately, the lawyers have to make a call to see whether the witness will add to or detract from the case.
We felt we had to present the evidence to the court on the issue of Clarkson’s familiarity with guns. We knew she used to go to the Beverly Hills Gun Club and had trained with guns for acting parts, so she was not afraid of weapons. But “Babydol” was trying to promote a book and had some obvious baggage. The judge ultimately ruled that Gibson’s testimony was prejudicial and would not be allowed. We were both disappointed and relieved that this evidence about Clarkson would be excluded.
When we speak about suicide, we are often mistaken from a scientific standpoint. For a forensic pathologist, a suicide is a self-inflicted death, whether intentional, accidental, spur of the moment, or reckless. These pathologists see bodies frequently without notes and without explanations. In fact, one of the coroner’s forms in Clarkson’s case said “Suicide/Accident” at one point in the investigation. Whether Clarkson found the gun in the drawer in the foyer and decided to handle it, play with it, or was acting out a role, we will never know. Whether she was playing with the gun sexually with Spector and it accidentally went off, we will never know. But the forensic evidence and her own computer files strongly suggested she had the gun in her hand.
CLOSING ARGUMENTS
As the defense case started winding down, we wondered who would be giving the final summation of the case. Cutler was fully expecting, having been absent from the case for most of the trial, to return to give closing arguments. Which was impossible. He had alienated the jury in voir dire, had to punt in opening statements when the judge ruled against him, and had badly scorched a sympathetic witness. And he had also been gone for most of the trial. He couldn’t close. He had no rapport with the jury, no on-the-ground knowledge of the infinite subtleties of the day-to-day trial events, and he failed to appreciate the most important evidence in the case, the science.
Finally, Spector decided that Linda Kenney Baden would do the closing arguments.
While many attorneys start writing their closing arguments during the trial, we were given less than two weeks to write a closing argument in a six-month trial. We worked without sleep, me, Michelle Ward, and Jonathan Ross from my office. We reviewed trial transcripts of testimony, organized the evidence, crafted the language, and developed a PowerPoint of images and summary bullets for jurors to note and hopefully use in deliberations.
Some feel closing arguments should be short, an hour at most. But in a long trial, you often need to spend real time in closing to remind the jury of testimony that happened months before, to give the defense weight, to interpret what all that evidence means, and how it all fits into a verdict.
On September 5, 2007, Jackson gave a strong and compelling recap of all the evidence in the case, mirroring his opening statement and emphasizing all of the women that Spector had held a gun to, the testimony of DeSouza, and deriding all of our experts and thus the science as a “checkbook defense.”
The following day, Baden spent a day going through all of the evidence in her closing argument: explaining but not excusing Spector’s behavior with the women, how DeSouza could have misheard Spector, and extensively going through the science that showed Clarkson holding the gun when it went off.
She also outlined the motivation and the trajectory of the decision to prosecute Spector. Detective Paul Fournier, in his initial communication on the first day of the investigation, stated, “This is going to be a high-profile case, no doubt about it. He’s a man with a lot of money, okay, he’s wealthy and it’s going to be considered high profile, okay? It’s going to be in the news and it’s gonna be . . . I know, it’s going to be a big thing.”
The coroner’s office put in their business records on that first day that the case involved a celebrity, and the investigator from the crime lab put that the case was going to be high profile in the first line of his report.
And Pena went to Spector’s house, unusual for a deputy coroner. Even though Pena could not find the gunshot wound at the scene, he wrote “homicide” on his notes when he returned to the office, even before he performed the autopsy. He testified that he was “hoping” for a gunshot wound outside the mouth because it would have “made things easier.”
The prosecutors were so confident in this jury, their evidence, and the court’s rulings, Fidler decided to only instruct jurors on a second-degree murder charge. Second-degree murder does not require “express malice” or a deliberate intent to kill, but “implied malice,” where the person who kills another shows an abandoned and malignant heart. But most importantly, the person charged with second-degree had to be the one holding the weapon. With the second-degree murder charge, Spector had to have an intent to harm or at least a reckless disregard for human life. A manslaughter charge would have made it much easier for a jury to convict Spector, as they would only have to have found that he had either acted in the heat of passion or failed to act with “due caution.”
THE VERDICT
As Tom Petty says, the waiting is the hardest part. It’s even harder when what you’re waiting for is a life-changing verdict. So you become superstitious. You tip more heavily. You wear your lucky ties. You try to do everything the same lest you jinx the verdict. And you wait. I broke a tooth, which I did not take to be a good sign.
A quick verdict often means an acquittal. A longer verdict usually means the jury is finding a way to convict. And when it drags on too long, it probably means there is a split and maybe a hung jury. But there are no hard-and-fast rules. There’s always a chance the jury can go either way no matter how long or short they take.
The jury was out for three days, and then an odd thing happened on the fourth day. There was notice from the court at the end of the day. We were told to come down to Judge Fidler’s courtroom. We were not told there was a verdict. Just come down to court. The jurors were gathered, and we were told that there was a question from the jury. They had apparently informed the court the day before that they were hung 7–5 (not saying whether it was for acquittal or conviction) and were confused about one of the instructions.
A 7–5 split is a significant calculus in a criminal verdict, especially for a prosecutor. While they may be able to dismiss one or two holdouts in a hung jury as an anomaly or a glitch in jury selection, a 7–5 split is undeniably a statement about the merits of the case. In a significant split after the jury formally hangs, the prosecutors must think long and hard about re-trying the defendant or about offering a much better plea deal. When only one or two jurors are causing the hung jury, the prosecutors are much more likely to re-try, especially in a high-profile matter.
The court brought the jury in and proceeded to ask them about where they were confused about the instructions. This was highly unusual to do in open court as the deliberation process is sacrosanct, and it is problematic to start asking jurors to openly disclose details about their decision-making process. Instead of just giving what they call an Allen or “dynamite instruction,” which basically tells jurors to try harder to come to a verdict, Fidler told them to come back the following day. He then told us he was considering giving the jury a brand-new instruction on a manslaughter charge.
This was stunning to us. On a legal level, prosecutors had tried their case thoroughly as a murder case, including arguing throughout that Spector had acted with malice aforethought, the legal definition of murder. A manslaughter charge, which they had never breathed a word about, would have allowed the jury to find Spector guilty if he acted with a conscious disregard for human life. This would have allowed the jury to reach a compromise in order to find him guilty, with the defense never having had a chance to address the evidence of manslaughter. Fidler instructed us to come back the next day, and the appellate team immediately started their research. Their conclusion was that this would be an unprecedented ruling and probably a slam-dunk appeal to get the verdict overturned if Spector was found guilty.
Obviously, Fidler came to the same conclusion. The next day he informed us that he would not give the manslaughter instruction. Instead, he decided to define the second-degree murder instruction further for the jury. This was also highly unusual, as most judges, when juries have questions about instructions in deliberations, just read them the instruction again and tell them to do their best.
So Fidler brought the jury in and instructed them that they could find Spector guilty under three scenarios: he was guilty if he intentionally killed her, as the prosecutors had alleged; if the gun had gone off accidentally while he was holding it as a result of reckless behavior; or if he had somehow been responsible for the gun going off, even if he were not holding it. Some examples Fidler gave were if Spector had been holding the gun and it had fallen out of his hand and had gone off in her mouth, he would be guilty. Or if Spector had left his gun on a table, and there was an earthquake or a big gust of wind and the gun fell off, discharged, and killed someone, he would be guilty. Even if he forced her to put the gun in her mouth somehow and it had gone off accidentally, he would be guilty.
It was here where we really felt that Fidler had clearly decided he wanted to steer the jury toward a guilty verdict. The last two scenarios had never been put into evidence or argued by the prosecutors. We felt the effect was that it gave jurors the ability to arrive at a pseudo-manslaughter verdict without explicitly instructing them on this inappropriate charge. We made our objections, but the jury was so instructed and retired to deliberate toward what we thought would be a guilty verdict.
But then an amazing thing happened. The jury stayed split. Three of the five jurors moved toward guilt but two jurors remained unconvinced. The foreperson, the hydrological engineer that our team had initially been so worried about, and a court clerk from another courtroom downtown were the holdout jurors. The clerk said finally she would change her vote to guilty but the rest of the jurors, in an extraordinarily respectful gesture, insisted that she vote not guilty if she truly did not feel that the prosecutors had proven their case.
So the jury finally delivered their verdict on September 26, 2007—they had hung. A hung jury is the verdict when twelve people cannot unanimously decide on a verdict. The jury we selected seemed to respond to the scientific issues, yet were conflicted between the natural pull of the testimony of the past women and the limo driver. In essence, this jury reflected exactly what we saw in our focus groups before the trial.
Spector was released later that day, and news helicopters caught him dancing with his young wife next to the fountain by his front door where he had emerged one cool February morning.
AFTERMATH
As Spector danced in his driveway, prosecutors vowed to re-try him. The public was outraged that the jury would not convict. Court TV hosts Nancy Grace and Ashleigh Banfield excoriated the jury foreperson, a most principled and conscientious man, on their shows. Both he and his children received death threats. Even Spector’s family was divided, with his daughter believing in her father’s innocence during the trial and his son voicing a belief in his guilt.
The second trial started close to a year after the first one concluded, with a few cast changes. The entire defense trial team was replaced by Doron Weinberg, an experienced Bay Area lawyer who specialized in retrials. Jackson returned to re-try Spector, but Dixon was replaced by Truc Do, a female lawyer who eventually became a white-collar criminal defense attorney. The evidence played out similarly to the first trial, with significantly less public interest. Although the defense asked Fidler to recuse himself for bias, he refused and conducted the second trial, including making sure that the jury received a manslaughter instruction.
This time, the prosecution knew the defense game plan. They tried a shorter, more streamlined case. I consulted with Weinberg on jury selection, and during the case he ably tried the defense’s theory of Clarkson’s final moments. This time, the jury finally convicted Spector after a week of deliberations. In post-trial interviews with jurors after the second trial, they described the prosecution’s version of events to be “more likely” to have happened than the defense’s version.
“More likely to have happened” is a civil standard of proof called “preponderance of evidence,” which is not the standard in a criminal trial. In a criminal trial, as most people know, a jury must find a defendant guilty “beyond a reasonable doubt.” However, there are no hard-and-fast rules to what a reasonable doubt is. Each juror brings his or her own unique definition of what a reasonable doubt is.
Despite the appellate issues regarding the legality of the testimony of the numerous women who testified about Spector’s penchant for guns, and Fidler’s conduct in the two trials, the California appellate court refused to overturn the verdict. It is now on its way up to the U.S. Supreme Court on the issue that Fidler made himself a witness during the second trial when he concluded for the jury that a waffling coroner’s assistant was pointing to a particular part of her hand where she saw Clarkson’s blood spatter. Jackson used the tape of Fidler’s conclusion in his closing argument.
Despite years of trials, millions of dollars, and thousands of hours of research and analysis, only Spector will ever know what really happened that night. The trial revealed the loneliness, desperation, and dark sides of both Spector and Clarkson. We all have our demons, specters we try to shake—outrun, outwit, outdrink. But these ghosts catch us in our darkest hours. Maybe the ghosts of John Lennon and Spector’s father and son visited Spector early that morning on February 3, 2003.