SPECTOR APPEAL: TRIAL JUDGE IMPROPERLY TESTIFIED ON VIDEO TAPE

Phil Spector trial judge Larry Fidler

Constitutional prohibition on trial judge giving testimony threatens to derail conviction

By Blogonaut

March 11, 2010


Phillip Spector’s Opening Brief on Appeal (“AOB”) contains a very surprising issue, and one that if found by the court of appeal to be error is almost certain to result in a reversal and remand for a new trial. Here is the story:

At the first trial the prosecution’s criminalist Lynn Herold testified (and later reiterated in a December, 2008 statement) that after 6 years of investigation, the physical evidence could not exclude the possibility that Lana Clarkson committed suicide.

But by the time the state criminalist testified in trial #2 she had dramatically changed that opinion, stating that blood spatter allegedly noted by rookie evidence technician Jamie Lintemoot on the back of Clarkson’s hand—“evidence” that the criminalist was allegedly unaware of until she testified in trial #2 and that Lintemoot never documented —persuaded the criminalist that suicide was impossible.

Understandably, defense counsel Doron Weinberg vigorously cross-examined Lintemoot on this alleged blood spatter evidence, because Lintemoot’s report was so vague on where the blood was seen on Clarkson’s hand that she was called into a meeting with the coroner (who did not see the blood) and criticized about the inadequate documentation.

To counter Weinberg’s implication based on his reading aloud from Lintemoot’s prior trial testimony (in trial #1) that the blood was not on the back of Clarkson’s hand at all, the prosecution was allowed to introduce a Court TV video tape of Lintemoot’s prior testimony pointing to areas on her hand where she claims to have seen blood on Clarkson’s hand.

Prosecutor Truc Do falsely represented to the court (and falsely told the jury during her part of the closing argument when the video was again shown to the jury several times) that the Lintemoot video taped testimony took place in front of the jury during trial #1, and therfore explaned the very prior testimony that Doron Weinberg had called into question by showing Lintemoot's clarifying gestures (allegedly) while giving that prior testimony.

But the prior testimony by Lintemoot was not part of the prior trial evidence at all, instead taking place out of the jury's presence during a hearing related to whether one of Spector’s lawyers in trial #1 could be compelled by the prosecution to testify that she saw Dr. Henry Lee remove an object from the crime scene during a defense visit. In other words, Lintemoot's gestures on the video tape did not explain the prior testimony that Weinberg read from at all. The video tape was made at an entirely different hearing.

But the error is far worse than prosecutor Truc Do's misrepresentation of when the testimony was given (and therefore whether the video tape was even relevant).

Trial Judge Larry Fidler is depicted in the video tape as well, describing for the record the areas on Lintemoot’s hand where Judge Fidler claimed he saw Lintemoot pointing to while on the witness stand to show where the blood was on Clarkson’s hand (which only the judge could see clearly at the hearing).

In other words, the video tape showed the very judge who was presiding over the retrial trial giving what amounted to video taped testimony about where on Clarkson’s hand Lintemoot claimed during the first trial to have seen blood splatter—blood spatter that was never seen by anyone else and that was not described as to precise location in Lintemoot’s report.

Blood spatter that was so crucial to the case it caused the state’s criminalist Lynn Herold to change her testimony during the first trial from “suicide cannot be ruled out” to suicide is “impossible”.

In addition, prosecutor Truc Do admitted during her closing argument in trial #2 that Lintemoot’s testimony regarding blood spatter evidence was the most important in the case, stating that this “…this was the single piece of evidence that [the defense] cannot explain away. It is absolutely [inconsistent] with Lana Clarkson holding the gun.”

All of this is very problematic for the prosecution because as a matter of federal constitutional law (as well as California statute) a trial judge may not testify to the jury in the very matter that he is presiding over.

But the prosecution showed the video tape of Judge Fidler explaining exactly where he saw Lintemoot testify she saw blood spatter on Clarkson’s hands to the jury several times during its summation to bolster Lintemoot’s undocumented assertion during trial #2 that she saw blood on the back of Clarkson’s hands—which in turn was the sole foundation for criminalist Lynn Herold’s change in testimony in trial #2—for the first time testifying that suicide was impossible.

The bottom line?

If the court of appeal concludes that showing Spector’s retrial jury the video of Judge’s Fidler describing where on Clarkson’s hand Lintemoot allegedly saw blood spatter was the equivalent of Judge Fidler “testifying” in trial #2—and under the case law we do not see any way around that conclusion—then Spector’s conviction must be reversed unless the error was “harmless” as a matter of law.

But how can the error be harmless if prosecutor Truc Do has already told the jury during her summation that the location of the Lintemoot observed (but undocumented) blood splatter was the most important evidence in the case as well as “the single piece of evidence that [the defense] cannot explain away”?

And how can this error be harmless if Lintemoot’s undocumented testimony that she saw blood spatter on Clarkson’s had was the sole reason why the state’s criminalist changed her testimony, claiming for the first time in trial #2 that a Clarkson suicide could not have happened?

Stay tuned, as we intend over the coming days to highlight the other arguments on appeal Spector makes in his AOB.

However, we believe that this issue—standing alone—is sufficient to virtually guarantee Phil Spector a new trial.