Burton Katz
To testify or not, that is the question
Judge Larry Paul Fidler found former Phil Spector attorney Sara Caplan in direct contempt of court for failing to testify before the Spector trial jury. Previously, Caplan had testified outside the presence of the jury that she had observed noted criminalist Dr. Henry Lee pick up an object and place it in a vial at the crime scene the day following the death of Lana Clarkson. Another witness described that object as being a portion of an acrylic fingernail, which the prosecution believes was blown off when she was resisting Spector’s alleged act of forcing the barrel of the gun into her mouth.
The “piece of evidence” was never turned over to the prosecution. Lee has vehemently denied having recovered any such item and thus a conflict exists between what Caplan and others purportedly observed and Lee’s angry denial.
There are no eyewitnesses to the shooting death of Clarkson. What, in fact, happened is open to speculation and conjecture. Conjecture based upon the crime scene artifacts and the circumstantial evidence in this case. The defense theory is that Clarkson decided, for whatever reason, she would kill herself in Spector’s home; the prosecution theory is that an inebriated Spector, following his habit and custom of threatening women with guns after they refused to succumb to his demands of sex or refusal to stay with him, resulted in the tragic shooting death of Clarkson at Spector’s hand.
The fulcrum of the case for the defense turns on the crime scene forensics as interpreted by its noted experts. The burden is thus thrust upon Lee and perhaps noted forensic pathologist Dr. Michael Baden, among others, to explain the blood splatter evidence and the wounds sustained by Clarkson consistent with the defense theory that Spector was standing some distance from Clarkson when the gun discharged the fatal bullet that lodged in her brain.
Since the jury was not there, they must rely upon the reputations, trustworthiness and credibility of the experts who will try to convince them Spector could not, and did not, cause the gun to fire the fatal bullet.
The assumption is the jury will find such testimony credible and worthy of belief. Judge Fidler has ruled Caplan’s testimony, first presented outside the presence of the jury, should be repeated in front of the jury, so the jurors will have the benefit of evidence strongly suggesting that Lee recovered and then withheld material crime scene evidence from the prosecution. A jury could very likely conclude, as did Fidler, that Lee was “lying” when he denied recovering and withholding evidence from the prosecution. Such a finding by the jury would be devastating to the defense and would assuredly cause them to reject the defense expert’s interpretation of the crime scene forensics.
This testimony is so critical to both sides that the case is likely to be won or lost on Caplan’s testimony before the jury. Thus, the conundrum. She is a former Spector lawyer. She has a duty to zealously defend her client and to safeguard confidential information she has acquired in the course of her attorney-client relationship. However, she does not have the right to “obstruct justice.” It is one thing to refuse to testify about advice given to a client or statements made by a client in confidence, and another to suppress evidence of a crime involving the tampering of evidence or the very destruction of evidence.
Caplan has testified under oath she observed Lee pick up a small object and place it in a vial. This alleged crime scene evidence was not turned over to the prosecution as required by law. If true, she is a percipient witness to the tampering and withholding of evidence by the defense. She may not refuse to testify on the grounds of an attorney-client relationship. Justice requires she testify. Justice requires that the jury be told of any wrongful attempts to tamper with or suppress evidence incompatible with a witnesses’ theory of the case.
In short, the jury should be informed that a percipient witness says Lee recovered and withheld evidence; the jury should be able to decide whether they believe Caplan or Lee. If they believe Caplan, Lee’s credibility is destroyed and his critical testimony regarding blood spatter patterns will be rejected. Caplan is in an unenviable Catch 22 situation. If she testifies, she will be regarded as a pariah among her colleagues. No one in the defense community will trust her to protect her clients. No clients will come to her. If she doesn’t testify, the prosecutors and judges will find her to be an obstructionist who protected a malignant act of evidence suppression and possibly be jailed. Her only hope is both sides will stipulate to her “testimony.”