Burton Katz
Spector fate hangs in balance
Why is it that celebrity trials are never easy? Just when you think everything is OK, a kink arises that threatens to send the case down a perilous and twisted path. Presumably the judge and the lawyers have fine tuned their roles and perfected their quest for an error free performance. But this being the human theater, it is never error free.
Most of the time errors are not deemed prejudicial. But in the trial of music producer Phil Spector, a potential error has arisen that threatens the integrity of the entire trial; a trial that took approximately five months at a cost of millions to the defendant and the public.
Let me share a little insider secret about judicial error. The instructions given by a trial judge are frequently a basis for reversal. They are written and officially approved by a committee of judges appointed to insure that correct and precise language will be used. No ad-libs. Just the approved words. Trial judges are taught never to stray from the officially approved jury instructions. This is because it is thought that these Solomonic men and women have clarified obtuse legal language, making it more understandable, clearer and, above all, fairer.
Any trial judge who strays from the officially approved language is inviting reversible error. No matter how compelling a case is otherwise or how overwhelming the evidence is, a serious error in jury instructions results in reversals, especially in murder cases and more importantly in murder cases like the Spector case that are based on circumstantial evidence. The more serious the case, the more appellate scrutiny is likely to result in reversal.
That brings us to this case. Spector, if convicted of second-degree murder, faces what could be the rest of his life in prison (15 years to life). Here, Judge Larry Paul Fidler initially gave what is known as a pinpoint instruction at the request of the defense. It did not contain language from approved jury instruction. It was a formula instruction that told the jury that a particular scenario had to exist before it could convict Spector. It was an unduly limiting instruction favorable to the defense as it limited the scenarios that would constitute implied malice required for second-degree murder.
Fidler instructed that the defendant must have committed an act that caused the death of Lana Clarkson. The court then specified a single scenario that would qualify as malice, the act of pointing a gun at her, which resulted in the gun entering her mouth while in Spector’s hand.
During its deliberations, after nearly seven days, the jury was hung at 7-5. Apparently, among other things, they were divided over whether Spector had himself put the gun into Clarkson’s mouth before it discharged. The jury was rightfully confused as there were other scenarios in which Spector could have caused the death of Clarkson, but not have physically himself held the gun at the time of discharge.
The judge admitted that he had been in error in giving such a limited instruction. That took guts. However, the judge was now faced with a real dilemma. If he fails to give further clarifying instruction, the jury will surely hang and all is for naught. If he gives corrective instruction, he may be found to have unduly enhanced the prosecution theories without ever having been argued and without the defense’s right to rebuttal.
Fidler decided to assist the jury in salvaging the case at the risk of reversible error. He instructed the jury that they could convict under other possible circumstances, including scenarios in which Spector forced Clarkson to put the gun in her mouth resulting in its discharge; or pointing a gun at or against her head at which it entered her mouth and discharged; or during a struggle over the gun it entered her mouth and discharged.
The defense vigorously objected, stating that it placed special emphasis on conviction and was coercive in effect. The judge refused to give further defense instructions regarding the possibility that Clarkson shot herself.
At this writing, the jury has now requested a video player presumably to watch the police interview of Spector’s chauffeur, Adriano DeSouza, who had testified that he saw Spector with a gun immediately following shots and heard Spector state “I think I killed somebody.” If they believe DeSouza got it right, then all the king’s men, including the mighty titans of defense forensics, will not save the day.
But if there is a conviction, this jury will be pruned, hounded and dissected. And Fidler’s career may hang in the balance. As Henry Ward Beecher said about laws, like clocks, they must be occasionally cleansed and wound up, and set to true time. The latter task may well be in the hands of the Appellate Court.