Guest Column

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Burton Katz

The Battle of Spector

A trial fought by experienced and skilled attorneys is like a horse race conducted by veteran jockeys. There are some who prefer to sit back and wait until the right moment to challenge the leader, as Street Sense did in the 2007 Kentucky Derby, and some who remain comfortably ensconced in the middle of the pack, moving up here and there, ever poised for the moment to seize the reigns, while finally there are the front runners who think they can go the distance wire to wire.

The prosecution, unlike the defense, has to get out in front and make a compelling case for conviction, lest the jury will wonder why they are there. The defense has the luxury of sitting back, picking away at the elements of the people’s case, nipping at its hoofs with the hope that the cumulative effect will be to raise a reasonable doubt. If the defense is lucky, by the time its case in chief is presented, it may be unnecessary to call the defendant to the stand. If not, then the pressure is on them to present such a compelling defense, often through its forensics, that it will become unnecessary to call the defendant as a witness.

It is a truism that the jury wants to hear from the defendant; that if he does not testify, it is a sign that he has something to hide. Yet a jury acquitted O.J., Blake and Jackson without so much as a peep from the witness stand.

It would seem that the defense strategy would be to keep Phil Spector off the stand. He is very vulnerable to a wilting cross-examination that would focus on his past violence toward women. Especially where he used a gun, after drinking, to enforce his will. It would be difficult to explain the meaning of his threats to shoot, kill and maim women who found themselves in circumstances not too dissimilar to Lana Clarkson.

Spector wants to walk from this trial a free man, and that, my friends, dictates the course the defense must take. They have no choice. Spector has spoken.

But back to the horse race. The prosecution took a commanding lead with the testimony of four women who testified to being threatened with a gun by an angry, drunken Spector. They said Spector had pressed a handgun against her cheek (Dianne Ogden), pointed it at her face (Melissa Grosvenor), struck her in the head (Dorthy Melvin) and held a handgun while sitting in a chair blocking the door (Stephanie Jennings). A fifth witness, Devra Robitaille, yet to testify, says Spector held a gun against her forehead. All of these incidents occurred when the women, who were alone with him, wanted to leave his presence. Clarkson was found in a chair in the foyer near an exit door, with her coat on and her purse draped over her shoulder. Strong circumstantial evidence that she intended to leave, but was prevented by a gun-laced violent act that tragically resulted in her death.

The prosecution lengthened their lead when they struck at the very underbelly of the defense case, namely, its forensics. They presented evidence outside the presence of the jury that the renowned criminalist, Henry Lee, had tampered with crime scene evidence. Based on the testimony of a defense investigator (a former Sheriff’s homicide detective) and an attorney working for Spector’s former defense attorney, Robert Shapiro, Judge Larry Fidler impliedly found that Lee lied when he denied recovering a small white object compatible with a portion of an acrylic finger nail that the prosecution theorizes was blown off when Clarkson resisted the ramming of the gun into her mouth.

Lee has vehemently denied recovering or withholding evidence and has issued a strong statement of innocence; however, at this time it is not before the judge and the latter will permit the prosecution to present its theory to the jury that Lee recovered and withheld evidence favorable to the prosecution. This seriously damages the defense and raises the specter of a contrived defense. Add to that an apparent conflict between attorney Linda Kinney-Baden and her husband, noted forensic pathologist Michael Baden, who will be called by the defense to explain wounds and crime scene artifacts favorable to the defense, and one wonders whether the jury will place any credence in the defense forensics. And that is the heart and soul of their case.

But, like the Kentucky Derby, this is a long race, and the defense made some moves when they got Deputy Medical Examiner Louis Pena to agree that there are limits to medical science and that he could not tell who was holding the gun, despite the fact that he has ruled that Clarkson died at the hands of another. There are still too many furlongs left to call this one.