Guest Column

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Burton Katz

Spector fate may hang on final argument

Some trial lawyers insist that the only two phases of a trial that count for a hill of beans are jury selection and final argument. They say that what happens between is simply the latticework that gives form and texture. Hyperbole? Probably. But, there is a little wisdom to this view. I am assuming that we have an unbiased and open-minded jury. Thus we are left with the impact of the final arguments. Here, where there are no eyewitnesses to the death of Lana Clarkson and substantial conflicting circumstantial evidence, including clashing expert opinions, the battle will be won or lost in final summation.

The themes of the arguments presented by the prosecution and defense are compelling. The district attorney says this is simply a “bought” defense written with copious quantities of ink on a boundless checkbook; hence the expression “checkbook” justice. The defense has argued that the district attorney, having lost big celebrity cases to their substantial embarrassment (read O.J. and Blake), is desperate to win a celebrity case. Thus they will exaggerate evidence, misdirect jurors and railroad the legendary music producer in order to garner a notch on the prosecutorial gun belt.

Prosecutor Alan Jackson hammered his theme: “He had one thing on his mind, she had another,” he said. Spector wanted sex, Clarkson wanted to go home. On five other occasions with five other women, Spector had intimidated “dates” with a gun when they declined his demand to stay with him. A pattern of violent behavior toward women who refused his demands, after he consumed alcohol and or drugs, was established.

But more importantly, Jackson argued that Spector had boasted “they [the women] deserve a bullet in their heads.” The district attorney told the jurors he simply was acting in accordance with his violent habitual conduct toward women when he killed Clarkson. It doesn’t matter whether he intended to kill Clarkson, Jackson explained to the jury. All that is necessary for second-degree murder is a killing with malice. No actual intent to kill is required. The doing of an intentional act in reckless disregard of the known risk of death or serious bodily injury fulfills the requirement of malice. Recklessly pointing a loaded gun at a victim is enough to support second-degree murder, even if the gun unintentionally discharges.

Willfully shoving a loaded gun into the mouth of Lana Clarkson is enough of an act to constitute murder. That it may have accidentally discharged does not negate the crime of murder.

Co-prosecutor Pat Dixon pointed out that there was a 40-minute hiatus between the killing and the arrival of the police, giving Spector all that time to “stage” the crime scene. Rather than trying to help Clarkson, Spector “planted” the gun on Clarkson to make it look like a suicide, Dixon argued.

Compelling evidence for the prosecution is the testimony of Spector’s chauffeur Adriano De Souza, who testified that, after he heard a gunshot, Spector appeared outside, holding a gun in a bloody hand and said “I think I killed somebody.” However, the defense also ably argued their case. And they need reach only one juror to hang the jury. Indeed they need only raise a reasonable doubt to secure an acquittal.

The defense directly attacked the testimony of Adriano De Souza by saying it was only a product of “confabulation.” Confabulation means that one mixes true facts with false or fantasy facts or puts together a story from various sources that are not true. De Souza may have believed what he heard and saw, but it didn’t happen that way; his imagination filled in the void, the defense argued. Linda Kinney Baden raised a strong defense by bringing in forensic pathologists Vincent DiMaio, Werner Spitz and Michael Baden. All voiced the opinion, to a “degree of medical certainty,” that Clarkson killed herself.

The defense also presented expert testimony that the blood spatter found on Spector was not consistent with him being within three feet of Clarkson when the gun exploded in her mouth. While the prosecution’s experts refuted this evidence, the defense argued nevertheless that reasonable doubt must be found on the strength of the forensic evidence and their experts.

While the evidence should drive the verdict, a confabulatory argument, artfully presented, can alter the result. That is the power of final argument.