“California Code of Civil Procedure Section 170.1: “(a) A judge shall be disqualified if any one or more of the following is true: …(6) (A) (iii)… A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
Now, this is outrageous.
The Los Angeles Superior Court judge who is presiding over retrial of the People of the State of California vs. Phillip Spector—previously admitted that he disagrees with THE REQUIREMENT THAT ANY CRIMINAL JURY UNANIMOUSLY find the defendant guilty before imposing punishment!
Why is this startling news?
Because the California Constitution REQUIRES that no criminal defendant be punished unless a jury of 12 UNANIMOUSLY votes that guilt has been proven beyond a reasonable doubt.
Because Judge Fidler TOOK AN OATH to “…support and defend the Constitution of the United States and the Constitution of the State of California…” (Cal. Const. Art. 20, Sec. 3.)
If Judge Fidler is “frustrated” in general by the CONSTITUTIONAL requirement of a conviction by a unanimous jury—despite SWEARING UNDER GOD to uphold the constitution—imagine how “frustrated” Judge Fidler was by the 10-2 hung jury in the first Phil Spector jury trial.
How can a trial judge who has not only disagreed with a fundamental constitutional provision, but is on record as saying that he is “frustrated” by it, be considered “unbiased” in a case directly implicating the very constitutional provision that is the source of his “frustration”—a FIVE MONTH retrial caused by the failure of a prior jury to unanimously agree on e verdict?
In our opinion, a reasonable person aware of the facts could entertain a doubt that Fidler could impartially preside over the Phil Spector retrial, and under the applicable law, Judge Fidler should have disqualified himself.
SOURCES:
http://www.law.com/regionals/ca/judges/sup_la/fidler.htm
(“Behind the Bench, Brief Profiles of California Judges, Larry Fidler.”)
(Constitution of the State of California…” (Cal. Const. Art. 20, Sec. 3.)
CCP Section 170.1: “(a) A judge shall be disqualified if any one or more of the
following is true: …(6) (A) (iii)… A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
34 comments:
If Judge Fidler does not believe in the Constitutional right to a unanimous verdict of guilt in all criminal cases then what is he doing presiding over this--or any--criminal jury trial?
In my opinion, Judge Fidler is a disgrace to the bench.
He (according to a documentary) tried to coerce a high profile defendant into televising his arrangement.
Fidler believes that the exclusionary rule should be curtailed and takes issue with the California Constitution as it relates to criminal jury trials.
No wonder Fidler tried to rig the hung jury in the first Phil Spector trial into convicting.
This is not right.
This assault on our Constitution cannot stand.
My question is did Judge Fidler disclose the fact that he disagrees with the California Constitution in several important respects and then allow Phil Spector the right to challenge him for bias?
Certainly, if a juror disagreed with the unanimous verdict requirement, or other important constitutional protection—like the requirement that the jury find guilt beyond a reasonable doubt—the defense would have every right to inquire and be informed of that and then decide whether to peremptorily excuse that juror.
But with Judge Fidler, the defense never got that chance.
"Something's happening here ....What it is ain't exactly clear."
But you better stop, turn around....
Do we still stand for due process, fair trials, justice and the american way, or are we going to allow this rogue publicity loving judge to hijack our values?
Let your "freak flag fly"!
Make your views known, or foever remain silent.
Remember the Chicago 7 (or 8)?
Kent State?
Abu Ghraib?
Guantanamo?
Yes? Well wake up and defend our Constitution, or surrender it.
To paraphrase George Sr.: “This assault on or civil liberties and the rule of law cannot stand”.
Agree with "this is not right".
A decision of a judge based on anything but his fair reaction to the facts and the law as distinguished from any agenda or bias is corruption--whether or not money changes hands.
What can we do to get Judge Fidler off the bench what recourse do we have as fed up citizens to remove him and send a message to all Judges in our county civil and criminal that we the taxpayers pay your salary and that you will abide by the oaths that you took to uphold the laws of our state? Should we start a petition Does the California Supreme Court remove Judges?
If you feel that Judge Fidler has violated one or more cannons of judicial ethics, you may file a complaint with the State of California, Commission on Judicial Performance.
Web site:
http://cjp.ca.gov/
Complaint form:
http://cjp.ca.gov/userfiles/file/Appendix/Complaint_form.pdf
If you are going to file a complaint against a judge, make sure you review the cannons of judicial ethics (see below link), think through your complaint, and proof read it carefully.
http://www.lectlaw.com/files/jud32.htm
Unless you have several hundred thousand dollars to try to obtain enough signatures for a recall effort, and then a high six figure to million dollar campaign budget to support the recall, forget the recall route.
Unfortunately, the odds of defeating an incumbent judge, absent a scandal, are between slim and none. (There is the alleged scandal surrounding the Roman Polanski case.)
I would go the complaint route.
My main curiosity is how hiz honor is going to try to fix the case this time?
I think he will try to heard the jury to a manslaughter verdict then sentence Spector to 14 to life + the gun enhancement, i.e. life.
Isn't PS ony charged with second degree murder?
Yes, Phillip Spector is charged with second degree murder, which is punishable by 15 years to life in state prison.
But when the first jury became deadlocked (initially at 7-5—it was not known whether the majority favored guilt) Judge Fidler announced that he was going to change course and give the jury the option to convict on manslaughter charges.
Ultimately, Judge Fidler only withdrew the murder instruction and remade it to give to tell the jury (incorrectly in our view) several possible additional ways that Spector could have committed murder (like by “forcing” Clarkson to put the gun in her own mouth). This change in the murder instruction caused 3 additional jurors to change their vote to guilty.
However, at the conclusion of the second trial, Judge Fidler is expected to additionally instruct the jury on the so called “lesser included offense” of manslaughter, which is punishable by 14 years to life.
The worry is that a jury might reach a compromise verdict, with the jurors leaning toward not guilty thinking that by voting for the lesser charge of manslaughter, they are cutting Spector a break—without knowing they are dooming him to spend the rest of his life in prison.
As Phillip Spector’s age, 14 to life is still life.
Unfortunately, the jury cannot be informed by Spector’s defense attorney about this, since the jury is not allowed to consider punishment in reaching their verdict.
Our belief—and we may be wrong—is that Judge Fidler wants to see a conviction here, and that he will therefore instruct on manslaughter, despite finding in the first trial that IF Spector did it, the only way it could have happened is that he put the gun in Clarkson mouth. This act (reasoned Fidler during the first trial) was so inherently dangerous that either Spector is guilty of murder or nothing at all.
We think that Fidler was right the first time and should not instruct this jury on manslaughter.
The speculation that Spector may have forced Clarkson to put the gun in her own mouth finds not support in the evidence.
This judge has been quoted as saying he would like to change the constitutional requirement in criminal cases that a jury verdict be unanimous, so expect Judge Fidler to do whatever he can to try to make this second jury more likely to convict without making a reversal by the court of appeal a foregone conclusion.
How can Fidler include a lesser charge if the DA did not indict him on Manslaughter?Last trial brilliant appellate attorney, Dennis Riordan came amd really reined in the jury instructions and JF with his ill thought out plan,that was reversablr err, to add a lesser charge.
This time if JF tries it I hope they immediately go for a Writ and nip it in the bud this is insanity with JF.
Please do not post addresses or phone numbers for Ms. Ross or anyone else.
Such posts will be deleted.
In addition, Ms. Ross does not need to be “Stopped”. This is America, and everyone has the right to form and freely express opinions whether we disagree with him or her or not.
Last, there is absolutely NO EVIDENCE that Ms. Ross or any other blogger is communicating with any members of they jury or that Ms. Ross in cahoots with any member of the Clarkson family. That kind of talk is irresponsible nonsense.
We do not agree with Ms. Ross, but we would defend with our last breath her right to express it.
Clear enough?
Ms. Rosss' address should be removed from this blog. This blog has been mainly comprised of intelligent persons sharing information based upon facts and laws and not the one-sided slanderous self serving banter that goes on in Sprocket aka Betsey Ross' blog, which unfortunately she is entitled to do, even though I think several persons that she has written about have good defamation and libel suits against her.
However, I shudder to think if the address listed is correct for her and someone who is as mentally unstable as she has shown herself to be, does something crazy. Remember this blog is getting the real truth out about the travesty that this case has become and the ramifications that it has to all of us if Judge Fidler sets precedent for other rogue judges to violate our Constitutional Rights.
Sorry Blogonaut I did not see that you had removed Ms. Ross' address before I posted my opinion to do so. Thank you for keeping the integrity of your blog you're a Class Act.
Dear Anon@ March 5, 2009 10:25 AM:
We had already deleted the post with Ms. Ross’ phone number, address and psychical description immediately when we returned to the office and saw it.
We feel that the intent of the post was clear and we are appalled.
Thank you for suggesting that the post be deleted.
This is a celebrity case, and such cases bring out a lot of unstable people.
Publishing personal contact information in the internet with a physical description is at a minimum irresponsible.
From a non-legal background, I find your posts enlightening. I've learned more about the law from this trial than anything else (besides when I defended myself in a red light camera violation for making a rolling right hand turn, aargh, I didn't win).
I'm assuming JF's biasness (is that a word?) can be used in PS's favor, if needed, in an appeal. Is that correct?
Dear KeaLani808:
The word would be “bias.”
There are two ways that this could become an issue on appeal.
The first is technical, and relates to the procedural point that before the retrial, Sector filed a formal motion to disqualify Judge Fidler for actual bias. (The legal standard is, could a reasonable person aware of the facts set forth in Spector’s motion entertain a doubt about Fidler’s ability to be fair.)
The technicality is that instead of following the normal course of action of allowing a neutral judge assigned by the Judicial Council to rule on Spector’s disqualification motion, Fidler took the risky and unusually step of ruling on the motion himself. If a court of appeal later determines that this move was wrong, then Spector has an automatic new trial.
Second, the alleged bias on Fidler’s part would have to be so manifestly obvious from the trial record that a court of appeal could find that Spector was prejudiced. Depending on how obvious Fidler is from here on out, that issue remains to be seen.
Last, it may be that the (in our view) stronger showing that Lana Clarkson was suicidal and may have taken her own life this go around may be brining Judge Fidler around to the view that a not guilty verdict in this case might be the appropriate verdict.
Keep in mind that the first Spector defense team (led by Bruce Cutler) was transparently overreaching from day-one, and that Fidler may have been a tough sell to warm up to the defense conducted by Doron Weinberg, but come around he might.
How this will all pan out is in flux and hard to predict.
And therein lies the confounding, yet fascinating nature of jury trials.
Hi Blogonaut,
I am also curious how the judge can add Manslughter the lesser offense at the end of the trial, What law gives him this power?
Thanks for the clarity on the powers of the judge to give a lesser included charge. From what you describe it seems that Manslaughter would still require fingerprints on the gun significant blood spatter, GSR etc. and in my mind I can't get the gun in PS's hand only Lana's.
This also jogs my memory back to the Heidi Fleiss jurors who when deliberating were met with a lesser charge of Pandering and thought that they were doing Heidi a favor by finding her guilty of this lesser charge. Unfortunately Pandering in the state of California holds a mandatory 3 year sentence. I believe it was overturned on appeal because the jurors admitted that while deliberating they found her erroneously guilty because they believed the sentence would have been minimal.
I have faith that Doron is aware of the tricks up the sleeve of JF and will address these issues very carefully and hopefully Riordan will come back for the jury instructions phase and he will keep a leash on JF.
Make no mistake, Doron Weinberg is one of the most experienced and competent criminal trial lawyers in this state, an Dennis Reardon is easily the most skilled state court, criminal appellate lawyer in California.
I have seen Doron argue (albeit 30 years ago)--quiet, thoughtful, cogent, organized, persuasive.
I have read Dennis's briefs, they (unlike most) do not bore, they sing......
This duo is not only aware of the issues, and the nuisances of the issues, they are state of the art—period.
I really cannot believe that Phillip Spector was saddled with Bruce Cutler first go around.
In any event, everything I have brought up or could hope to bring up on this site has not only already occurred to these experienced journeymen of the law, they have broken it down into nuanced permutations and looked at all angles.
Now, forgive me while I sign off and turn the music up on my computer to Joan Baez, performing “Winds of the Old Days”…..
How can a judge, in SOME circumstances instruct a jury on manslaughter when only murder is charged?
The answer is somewhat technical, but here goes:
A trial court in a criminal case has a duty to instruct on general principles of law applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, “ ‘ “ ‘those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.’ “ ‘ “ (People v. Valdez (2004) 32 Cal.4th 73, 115.)
This obligation includes the duty to instruct on a "lesser included offense" if the evidence raises a question as to whether the elements of the lesser-included offense are present. ( Valdez, at p. 115; People v. Breverman (1998) 19 Cal.4th 142, 154.)
The test for determining a lesser included offense is whether the more serious charged offense necessarily includes the commission of another, less serious crime. (People v. Pearson 42 Cal.3d 351, 355.)
For example, the crime of assault with a deadly weapon necessarily includes the “lesser included” offense of simple assault.
The question of whether Judge Fidler can (or is obligated to) instruct the Spector II jury that the crime of manslaughter is a “lesser included offense” of the crime charged in the Information (murder) depends on the facts that have been directly proven and are reasonably inferable from the facts that have been proven.
The elements of second degree murder are the intentional killing of a human being WITH malice aforethought, but without premeditation and deliberation OR an unlawful act performed by the defendant that is substantially likely to result in death, without regard for the consequences.
The elements of voluntary manslaughter are the intentional killing of a human being (or an act resulting in death performed with conscious disregard for human life) WITHOUT malice aforethought.
It us undisputed that Lana Clarkson died from an intra-oral (inside the mouth) gun shot.
The question then becomes, could there be circumstances under which Spector is responsible for putting the gun in Clarkson’s mouth, then accidentally discharging the weapon, so as to justify Judge Fidler instructing the jury on the “lesser included offense” of voluntary manslaughter, in other words that this act was without malice.
In the first trial, Judge Fidler ruled that the IF Spector did it, he first put the gun in Clarkson’s mouth and that such an act would necessarily have been so inherently dangerous to human life that even if Spector accidentally pulled the trigger he is necessarily guilty of malice, and therefore murder, and not manslaughter.
We agree with Judge Fielder’s initial assessment.
Either there is reasonable doubt that Lana Clarkson out the gun into her own mouth and pulled the trigger (Spector is not guilty) OR Spector put the gun in Clarkson’s mouth, and accidentally or intentionally pulled the trigger (Spector is guilty of second degree murder)—but we can see no scenario supported by the evidence whereby Spector put the gun in Clarkson’s mouth and is guilty of only manslaughter.
This is a complex issue that is hard to follow even with legal training.
But the fact that Fidler only changed his mind AFTER the first jury was unable to reach a verdict on Second Degree Murder is suspect to say the least.
Unfortunately Bruce Cutler was out of his element in LA. In New York where he practices they expect a show. LA judges are not so humored by courtroom antics. Cutler did the right thing when the animosity spewing from Fidler towards him was palpable, in leaving the case. He did leave us with a Johnnie Conchranesq line when he stated in his opening statement, the "Police had murder on their minds" when investigating and prosecuting this case. It succinctly sums this case up until this very moment.
Just because Judge Fidler does not 'believe' in the Consitutional requirement of a unanimous verdict (as opposed to most other states), does not mean he will not comply. Lood at it this way: The City Attorney must defend the illegalities of a city's moron mayor and city council, even if that City Attorney personally believes these actions were illegal and unethical/ Particularly if that City Attorney has passed the Bar Exam, and the mayor has flunked it four times.
Jake:
We agree--to point.
But the defense made a motion to DQ Fidler based, in part, on his (some might argue) extraordinary efforts to make sure the hung jury reached a guilty verdict.
Fidler never disclosed his "frustration" with our constitution --the very constitution he took an oath to uphold.
If a juror felt that way the defense would have a right to know so they could peremptorily challenge that juror.
At a minimum, Judge Fidler should have disclosed those his views--especially in view of the close hung jury (10-2) and the Judge's (conscious or unconscious) propensity to tip the scales next go around toward a conviction.
If Judge Fidler believes that a 10-2 vote should have convicted Spector, he should have told the defense that before presiding over a retrial.
Arguably, in Fidler’s mind, Spector has already been "convicted" by a majority verdict, so how can it be said that a resonable person could not entertain a DOUBT about his ability to be fair on a retrial.
Another censored comment, AMONG DOZENS BY US, that Sprocket would not allow to be published:
Anakerie said...
Sprocket, thank you again for giving us a peek inside that courtroom! We would be lost without you, Joe Friday and My 2 Cents!
I am wondering what Mrs. Spector's presence inside the courtroom has to do with whether or not testimony can be heard on Friday... All she does is sit there and watch, right? Oh yeah, I forgot. She has to hold Phil's hand when he walks from his car to the courtroom...
OUR RESPONSE (CENSORED BY SPROCKET):
Dear Anakerie:
Hopefully you will never realize this first hand, but criminal prosecutions (even the prosecution of innocent persons) is not always something that happens to "someone else".
God forbid if you are ever charged with a crime, would you not want your spouse by your side to support you and (as you put it) hold your hand)?
Why then (guilty or not guilty) do you begrudge Phillip Spector that support?
Or are "guilty folk" (as defined by you or Sprocket as judge and jury before a fair trial runs its course) not entitled to the same basic human needs and support that the rest of us who meet your "approval" enjoy?
Or perhaps you know Rachael Spector or have walked a mile in her shoes to judge her in this harsh and unfair manner?
My view: You are jealous of Rachel Spector’s youth and beauty and the well earned success (and the trappings thereof) that Phillip Spector enjoys, and are lashing out from your less privileged world.
For then same reason that people sometimes “key” fancy cars they cannot afford, resent beauty they will never have, and are jealous of the success of others.
Why the effort to demonize the judge? Anyone, including the judge, is entitled to hold and express opinions regarding the law and judicial processes. And no judge is obligated to disclose his opinions merely because some defense lawyer makes accusations against him. Ultimately, the issue is the propriety of his rulings. The author of this blog disagrees with some of those rulings and obviously is disappointed that the jury convicted, but it didn't really take a "hanging" judge or jury to convict in this case. After all,while holding the bloody gun in his hand Mr. Spector was told the driver he thought he killed "somebody," then he wiped off the gun, wiped the body, and cleaned himself up! Incredibly, he then tried to argue that the blood spatter evidence, which he had so thoroughly compromised, established his innocence! If this case is "disgraceful," Judge Fidler is far down the list of those who made it so.
While it is true that this appeal is likely to be resolved on the propriety of Judge Fidler’s rulings, the litigants in criminal and civil cases (all of the litigants) are entitled to have a judge preside over the matter who is not only in fact fair and open minded, but also lacks even the appearance of bias.
That is why the procedural rules in California give litigants the option of moving to disqualify the judge “for cause” whenever a person aware of the facts “could” (not would, could) entertain a “doubt” about the judge’s ability to be impartial.
The defense team in Spector II felt that relatively low standard for disqualification for cause was met, and filed a 40 page disqualification motion.
In most cases (unless the motion is clearly untimely or the facts alleged in the supporting affidavits are clearly insufficient on their face to require disqualification) the presiding judge, or the Judicial Council, is supposed to assign a neutral judge to read, evaluate, and rule on the disqualification motion. The judge who the litigants seek to disqualify is not supposed to hear the motion himself for obvious reasons.
Yet, Judge Fidler decided the motion himself.
That is part of the problem we have on that issue—in addition to our questions about whether a person aware of the facts could entertain a doubt about Fidler’s impartiality.
I attended the last two months of this trial. There are most certainly appealable issues - that will cost Mr. Spector even more money. Judge Fidler was certainly annoyed at times with the Defense team, but also with the Prosecution - though not as much.
It is my opinion that the arrogance and out of court antics of Rachelle Spector severely irritated Judge Fidler.
Not to mention she flipped the bird to the wife of a very influential Hollywood agent in the parking lot of the courthouse. Needless to say, she at that moment destroyed any aspirations of a career in mainstream Hollywood.
Although there are certainly issues worthy of legitimate appeal, it was Dr. James Pex who sank this case for the Defense. Although Alan Jackson gets most of the 'limelight', it was brilliant attorney Truc Do who caught Dr. Pex's contradictions - or in laymens' terms > lies.
Dr. Pex kept giving phony smiles to the jury, and unprofessionally gave a 'thumbs up' gesture to the Defense team upon leaving the stand in full observance of the jury. Weinberg looked at me and shook his head in disgust. He then made some commnents to Judge Fidler - which I will not discuss until all appeal issues have been resolved.
Judge Fidler did not want either side objecting to leading questions beyond the minimum, which Doron Weinberg took full advantage of during his direct examination of witnesses. Mr. Weinberg is an outstanding attorney, but I questioned him on some of his jury panel approvals - which again I will not discuss until the case is totally resolved - but for you defense attorneys, you should well know you do not want jury panelists that are originally from a third world nation where the wealthy do get away with murder. America gives them the opportunity to take a stand against corruption and the class system that has kept their people down for so long.
Truc Do was the true genious in this case, but perhaps without the charisma of Weinberg or Jackson. I hope she puts in her 20 with the DA, and then goes on to become a successful private appellate lawyer.
Blogonaut,
Has the 1101 always been on the books or is this something new? Thanks.
Dear Aloha:
California Evidence Code Section 1101 was originally codified as Code of Civil Procedure Section 2053, enacted 1872.
The section was enacted as an Evidence Code Section in 1965, and later amended in 1986, 1995, and 1996. (Stats.1965, c. 299, Sec. 2, operative Jan. 1, 1967. Amended by Stats.1986, c. 1432, Sec. 1; Stats.1995, c. 439 (A.B.882), Sec. 1; Stats.1996, c. 261 (S.B.1876), Sec. 1.)
The Law Revision Commission Comments make explicit that Section 1101 codified existing law:
“Section 1101 is concerned with evidence of a person's character (i.e., his propensity or disposition to engage in a certain type of conduct) that is offered as a basis for an inference that he behaved in conformity with that character on a particular occasion. Section 1101 is not concerned with evidence offered to prove a person's character when that character is itself in issue; the admissibility of character evidence offered for this purpose is determined under Sections 351 and 1100.
…
“CRIMINAL CASES Section 1101 states the general rule that evidence of character to prove conduct is inadmissible in a criminal case. Sections 1102 and 1103 state exceptions to this general principle. See the Comment to Section 1102.
“EVIDENCE OF MISCONDUCT TO SHOW FACT OTHER THAN CHARACTER. Section 1101 does not prohibit the admission of evidence of misconduct when it is offered as evidence of some other fact in issue, such as motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident. Subdivision (b) of Section 1101 makes this clear. THIS CODIFIES EXISTING LAW. People v. Lisenba, 14 Cal.2d 403, 94 P.2d 569 (1939) (prior crime admissible to show general criminal plan and absence of accident); People v. David, 12 Cal.2d 639, 86 P.2d 811 (1939) (prior robbery admissible to show defendant's sanity and ability to devise and execute deliberate plan); People v. Morani, 196 Cal. 154, 236 Pac. 135 (1925) (prior abortion admissible to show that operation was not performed in ignorance of effect and, hence, to show necessary intent). See discussion in California Criminal Law Practice 491-498 (Cal.Cont.Ed.Bar 1964). [7 Cal.L.Rev.Comm. Reports 1 (1965)].
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