AG FILES 160 PAGE RESPONSE BRIEF IN SPECTOR APPEAL

Spector appellate counsel Dennis Riordan with his client

An "anonymous" reader was kind enough to obtain and post on Scribed.com a copy of the Attorney General’s Respondent’s Brief ("RB") in the Spector murder verdict appeal and then anonymously post the link in the comments following our most recent prior Spector Appeal Watch post.

The brief is quite lengthy (160 pages) and we are extremely busy with civil litigation work at the moment, but as soon as we have the opportunity to read and analyze it, we will be posting our thoughts and impressions.

In the meantime, we are posting it now so interested persons may begin reading.

Feel free to post your thoughts (of whatever persuasion) about the brief in the comments. As always, all points of view are welcome here.

Pursuant to 47 U.S.C. Section 230(c)(1) neither Blogonaut nor its editor are responsible for any content authored by third parties, nor do we moderate or control the comments.

--Blogonaut

UPDATE—OUR VIEWS ON THE PROSECUTION’S RESPONSE TO SPECTOR’S FIRST GROUND FOR APPEAL

We have now read the AG response to Spector’s first argument on appeal—that the trial court erred when it admitted into evidence over Doron Weinberg’s objection a Court TV video tape of the trial court demonstrating with his own wrist where (allegedly) criminalist Jaime Lintemoot testified she saw blood splatter on the back of Clarkson’s writs—testimony that later formed the lynchpin for the pathologist’s change in testimony from trial number 1 (the physical evidence did not exclude suicide) to trial number 2 (suicide excluded).

Frankly we are underwhelmed by the Attorney General’s argument on this ground for appeal, namely waiver (because Doron Weinberg did not object on the correct ground when the Court TV videotape was first used in front of the jury), that the trial court’s statements and gestures on the video tape were not “hearsay”, that the trial court had the right to clarify the evidence and his gestures and statements were not “testimonial”, and that any error was harmless.

We note that when the Court TV video tape was first used by prosecutors (when they examined certain experts) the People MISREPRESENTED to the trial court and to Mr. Weinberg what segment of the prior trial the video tape depicted. Specifically, prosecutors falsely claimed then, and through the evidence phase of trial #2, that the video tape consisted of Jaime Lintemoot’s testimony to the jury in trial #1. In reality, however, the Court TV footage depicted Lintemoot’s testimony during an evidentiary hearing which was not a part of the trial testimony in trial #1, and which the jury in the first case never saw.

The People (in our view) cannot now complain of the lack of a contemporaneous objection on the ultimate grounds urged when they were misrepresenting to the trial court the nature of the videotape when it was first shown as trial testimony elicited in Spector's presence (and with a reason to cross-examine on the blood spatter point)--when in fact the videotape was of an evidentiary hearing outside the presence of the jury in trial #1 from which Spector's presence was excused and during which the blood spatter allegedly observed on the witnesses' hands was a tangential point at most. Indeed, the misrepresentation PRECLUDED a contemporaneous objection on confrontation grounds when the Court TV videotape was first injected into the trial proceedings by the People!

In addition, Doron Weinberg did object to the admission of the videotape into evidence on the same grounds urged on appeal BEFORE the tape was admitted into evidence, thereby preserving the objection. Had this objection not been overruled, prosecutors could not have shown the video to jurors at all during summation-let alone over and over again.

Second, the AG’s hearsay analysis is flawed, because the video did not depict Lintemoot’s trial testimony at any point, but rather her testimony at a hearing outside the presence of the jury in trial #1 being held on an unrelated issue. (Spector COULD NOT HAVE waived his presence for testimony given to the jury—especially since he never understood that the testimony from that hearing he never attended would ever be shown to a jury in his case.) Nor could the trial court’s gestures be construed as part of Lintemoot’s “adoptive admission” because a nonparty witness cannot make “admissions”.

(See Evidence Code Section 1221: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” Not "witness"; "party".)

Clearly this rookie mistake is going to cost the AG credibility points with the court of appeal; this was in no sense an "adoptive admission"--and no reasonable appellate attorney would argue that it was.

Third, Judge Fidler’s words and gestures were not simply in the nature of additional questions posed to Lintemoot at the hearing. Rather, in other parts of the videotape the court is clearly describing where Lintemoot was pointing BECAUSE THE COURT WAS THE ONLY ONE IN THE COURTROOM WHO HAD A CLEAR VIEW OF WHAT THE WITNESS WAS POINTING TO. Indeed, the trial court stated on the record that this was so, and the AG concedes the point based on its examination of the videotape. Clearly, the judge’s words and gestures were testimonial in nature, and described something that occurred at a prior hearing out of the presence of the jury in a prior trial that no one else in the courtroom had a clear view of.

But even if Judge Fidler's words and gestures simply supplied meaning to the witness' testimony (a theory inconsistent with the trial court's rationale for admitting the videotape into evidence), the AG also fails to grasp that Lintemoot's testimony at the prior evidentiary hearing was also hearsay in its entirety ("a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated").

Fourth, the error was not harmless for any of the reasons urged by the AG.

The AG speculates that the jury would have come to the same conclusion as did Judge Fidler on the video tape even though the back of Lintemoot’s hand is not visible on the videotape—which in any event assumes that there can be instances wherein a trial judges testifies to his own jury on a critical point and not result in a reversal---a dubious proposition for which they cite no authority.

And finally, the AG ignores the pivotal nature of the point discussed by Fidler on the video: The sole justification for the pathologist’s change of testimony from suicide cannot be ruled out (trial number 1) to suicide is excluded (trial number 2).

Not only did the point go to the heart of Spector’s sole defense, it was the ONLY difference between trial #1 (hung jury) and trial #2 (which resulted in a conviction). Moreover, even with this improper testimony by judge Fidler being admitted, the jury in trial #2 deliberated for nine days before it voted to convict--surly a sign of a case wherein the evidence was not so overwhelming that an error of such undeniable prejudice going to the heart of the case would be considered "harmless".

We also note that under the California statute (Evidence Code Section 703) it is an automatic mistrial for the trial judge to testify in his own trial over the objection of a party ("the judge shall declare a mistrial and order the action assigned for trial before another judge") and that all parties are entitled to advance warning and an opportunity to object out of the presence of the jury BEFORE the judge's testimony makes it into evidence. Not only was the defense blinded sided by the initial use of this video by the people to examine its experts, as noted above the prosecution continued to misrepresent to the court and to defense counsel that the video consisted of the witness' prior trial testimony to the jury in trial #1--thus precluding a contemporaneous objection by defense counsel on "confrontation" grounds (because unlike the hearing actually depicted on the video, Spector WAS present during the prior trial testimony, and believing that this was the video being shown, it would not have occurred to a reasonable defense attorney to make an objection on confrontation grounds at that point).

Under these circumstances (which include the lack of any advance warning under Section 703 that the prosecution intended to inject videotaped testimony by the trial court into the very trial over which he was presiding, compounded by the prosecutor's misrepresentation of the videotaped testimony as consisting of prior TRIAL TESTIMONY) it appears to us that the People's waiver argument is particularly disingenuous.

We realize that these issues seem technical to a layperson, but on a point highly relevant to an important trial issue (indeed, the only issue in dispute), any jury would tend to adopt the interpretation of the evidence advanced by the authority figure in the trial—which is why the prosecution showed the videotape and stills from it over and over again during closing argument.

Advantage: Spector.