Guest Column: The curse of the suicide defense

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The Phil Spector murder case

By Burton S. Katz/Retired L.A. Superior Court Judge

Bruce Cutler, the third lawyer for Phil Spector in the past year, ripped into the district attorney’s office, accusing them of building a case out “of lies and half-truths.”

Cutler, who is not exactly a shrinking violet in matters of murder and intrigue, is apparently upset over the grand jury’s return of a first degree murder indictment against Spector and the district attorney’s resolve to prosecute without giving him the benefit of a preliminary hearing.

It is well known that Cutler, who is reputedly a mob lawyer, represented alleged Mafia Godfather John Gotti, among others. It is kind of disingenuous for Cutler to scream about grand jury indictments being used to charge Spector with a crime, since that is the way of life in the East, especially in matters of organized crime.

Make no mistake about it, Bruce Cutler is a very good trial lawyer and deserves to be taken seriously by the district attorney, even if his pronouncements of “outrage” amount to nothing more than entertainment fodder for the media. District Attorney Steven Cooley, who fortunately is not a political dilettante but a seasoned prosecutor, understands the distinction and will make sure that he has assigned serious and competent prosecutors to meet the many challenges that this case poses. Unlike some district attorney’s in the past, he is not afraid to assign his very best trial lawyers, even were they to gain sufficient notoriety and celebrity to launch a successful campaign for his job. Come to think of it, he probably has nothing to worry about as the newly minted celebrity trial lawyers will be diverted by offers to host CNN’s “The Larry King Show,” or other inevitable offers, perhaps from Fox.

This case will turn upon Spector’s state of mind at the time of the alleged slaying. While this is no doubt a homicide, meaning that the death occurred at the “hands of another,” that finding is in no way dispositive of the charge. To make some sense out of what I am saying and to demonstrate that this case is not a slam dunk on the degree of the alleged crime let me digress to discuss a few legal concepts.

A homicide can be justified (self-defense), excused (legal accident or mistake), or murder based upon an intentional killing with malice aforethought. It is first degree if the killing was willful, premeditated and deliberate; otherwise it is second degree murder.

The key difference between first and second is the concept of premeditation and deliberation. A deliberate, premeditated intent to kill can be formed in a very short period of time, arguably within minutes or seconds, so long as the judgment to kill manifests a weighing and consideration of whether to kill or not.

In second degree murder, the unlawful killing with malice can result from an intentional killing or from an act, the natural consequences of which were dangerous to human life (brandishing a gun). No intent to kill is required in the latter situation.

The concept of manslaughter comes into play if there is evidence that the killing arose out of a sudden quarrel or heat of passion in the absence of malice aforethought. The heat of passion must arise from provocation that would “arouse passion” in an ordinary person and he/she must act under that influence. Finally, the concept of involuntary manslaughter may be pressed if there is any credible evidence that Spector-in the commission of an unlawful act, not amounting to a felony, which is dangerous to human life-resulted in Lana Clarkson’s death. Here there is no intent to cause serious harm or death, just an act committed without due caution and circumspection. (Spector displayed gun that misfired while he or she was handling the deadly weapon?)

Now the analysis becomes even murkier. The only purported eyewitness is Spector himself. While he has already hurt his case by allegedly making statements to the police and others that indicate he shot her (accidentally?), he now is claiming that Clarkson committed suicide. Everything will be in play with the suicide defense.

Thus, we can look forward to evidence of Spector’s past and present mental history, including the abuse of alcohol and drugs, any evidence that he may have recklessly threatened other persons with a gun in the past, statements he has made that relate to his state of mind as well as Clarkson’s mental state regarding any thoughts of well being or suicide, if any.

Defense attorney Cutler is sophisticated enough to understand the nuances of this case. If Spector forces Cutler to deny Spector’s hand in the killing in the face of what may prove to be overwhelming evidence to the contrary, then he will undermine his credibility in asking a jury to find Spector guilty of one of the lesser offenses. That is the curse of all defense attorneys. Save this article for future reference, and stay tuned. The E-ride is just beginning.