Burton Katz
Phil Spector trial: New evidence borders on the comic
In the comics’ trade, writers often become obsessed with creating what’s known as false epiphany characters. B-level characters like Nightwing, perpetually poised to be taken “out of the shadow of the bat,” often experience a phenomenon of sudden intuitive realization. This new breakthrough story for the character is attempted in order to push him out of obscurity and into the realm of the big boys. In the case of real-life character Phil Spector, on trial for the murder of Lana Clarkson, lower-tier player forensic pathologist Michael Baden experienced an epiphany fit for an Oprah Winfrey “aha” moment in his surprising testimony as a defense witness. But would it pass the sniff-test at Comicon?
Nearly four years following Baden’s visit to the Spector crime scene the day following Clarkson’s death, Baden had an epiphany: He said on Sunday, the day before his testimony, that he had an “aha moment.” Baden said he had not focused on nor realized the significance of the copious amounts of blood and tissue in Clarkson’s lungs until the day before his testimony.
This, in turn, caused Baden to offer a new defense theory justifying any blood spatter that may have fallen upon Spector. Baden surmised that Clarkson did not die immediately from her fatal gunshot wound, but must have lived at least several minutes beyond impact. Baden’s breakthrough story develops.
In order for this to happen, the spinal cord would not have been instantaneously severed, as previously thought, but would have been sufficiently intact to allow her to continue breathing. When Spector came over to offer assistance, she aspirated blood and tissue onto him. In order to explain the fact that the spinal cord was completely severed when observed by the coroner, Baden offered an explanation that this occurred when the body was moved from the crime scene, placed into a body bag and transported.
The defense has an absolute duty to immediately notify the prosecution of this new theory. This is new evidence in the form of expert opinion. Even on a Sunday, every defense lawyer knows the drill: You call the district attorney command post. They in turn contact the prosecutors. But they didn’t do this nor did they advise the prosecution before Baden took the stand on Monday.
They sprung a surprise. “I have no doubt, let me say that as clearly as I can, that this was done to gain tactical advantage,” an outraged Judge Larry Fidler declared. The judge furiously noted prior devious defense tactics, citing famed criminalist Henry Lee’s apparent withholding of evidence that he had collected in a vial. Evidence that Spector’s own original attorney had allegedly seen gathered by Lee in contradiction to Lee’s strong denials.
The judge didn’t believe Lee then, and now he didn’t believe the defense’s claims of innocent omission. Fidler was saddled with the difficult task of imposing an appropriate sanction. The danger is that if the sanction is too strong, such as the striking of Baden’s opinion, then the defendant may be deprived of presenting possibly crucial evidence to the jury. An appellate court could indeed reverse a prosecution verdict on a denial of fundamental fairness. However, if the judge does nothing of any significance, then he has in effect rewarded the defense for its own misconduct.
Fidler reluctantly allowed the testimony to stand, but not without cautionary instruction directing the jurors on the weight to be given to the defense’s failure to notify the prosecution.
Since there will be another instruction given to the jury regarding Lee’s alleged intentional withholding of crime scene evidence, the cumulative effect may well be devastating to the defense. The prosecution will no doubt argue that the defense will do anything to prevail, including tampering with or manufacturing evidence. The three forensic heroes, Baden, DiMaio and Spitz reportedly have collectively received more than $300,000, giving more adhesion to the prosecution argument that the defense has been bought and paid for.
All serial comics end with a great cliffhanger, and the Spector trial at the close of this chapter offers no less. Baden’s testimony may still be all the defense needs for reasonable doubt, as the doctor opined “with reasonable medical certainty,” that there was no evidence that Spector’s finger was on the trigger when the gun discharged; that Clarkson shot herself.