The judge in Phil Spector’s murder trial scolded the music producer’s defense team Thursday for a “deliberate and egregious” violation of discovery rules that was done “to throw the prosecution off their game.”
Superior Court Judge Larry Paul Fidler dressed down the lawyers outside the jury’s presence and said he would be drafting “a pinpoint instruction” at the end of the case that would tell jurors what had happened.
Fidler said the instruction would not be aimed at Spector. “Mr. Spector is not part of this,” he said. “It does not go to guilt or innocence. It goes to the prosecution’s ability to present its case.”
The issue has been percolating in the trial since Tuesday, when defense witness Dr. Michael Baden sprang a new forensic theory involving the shooting death of actress Lana Clarkson at Spector’s home.
Baden testified he recently concluded Clarkson’s spinal cord was not completely severed when a bullet tore through her mouth on Feb. 3, 2003, supporting a defense claim that she could have spewed blood onto his jacket with her dying gasps.
Baden’s theory offers an explanation of how Spector could have gotten specks of blood on his jacket if he didn’t shoot her, which prosecutors contend he did. Spector’s lawyers say Clarkson was depressed and shot herself.
Baden conceded during his testimony that he had an “aha!” moment last Sunday and came up with the theory. Prosecutors said they did not learn of it until he testified and were unable to rebut it.
“When Dr. Baden testified as to the theory it was not just an ’aha!’ moment for him, but for me,” the judge said. “It was a major piece of evidence and a change of tactic.”
The judge noted that he and most of the veteran lawyers in the case “grew up under a different system.”
Before an initiative changed the law, “The prosecution gave discovery (of their evidence) and the defense didn’t” under Fifth Amendment prohibitions against self-incrimination.
After the initiative passed, he said, the U.S. Supreme Court and the California Supreme Court ruled that discovery had to be reciprocal. “It is given very grudgingly and a majority of people don’t like it,” he said. “But it is controlling.”
Defense attorney Bradley Brunon argued that most of the defense team did not know about Baden’s planned testimony and said no harm had been done because the prosecution had been able to do extensive cross-examination in subsequent days.
The judge was unconvinced.
“There was a violation. It was to gain a tactical advantage and to throw the prosecution off their game,” he said, adding there had been prior discovery violations by the defense. He said there must be a remedy.
“This is the kind of thing that is going to deter the defense bar,” he said, referring to the remedy he had not yet revealed. “It’s the only way we will put an end to this game playing.”
Judge explodes at attorney
Brunon responded that the judge’s comments regarding a deterrent effect was out of line. “The court should not be sending messages,” he said. “We’re not here to establish lessons but to resolve the discrete issue in this case.”
He also said the only lawyer who knew of the new theory was Christopher Plourd, who questioned Baden.
“It doesn’t change the fact that a member of the team did it,” said Fidler.
In the heat of argument, Brunon said, “To interpret it that way is the court putting the thumb on the scales.”
The judge exploded at Brunon: “That’s very insulting and you’d better withdraw that comment.” The attorney immediately withdrew it and during a break he apologized to the judge again. Fidler said they would move past it.
Before Baden resumed his testimony, the judge addressed another issue, saying an alternate juror had to bow out of the case because of a family illness.
Fidler said the alternate was “distraught” about leaving after devoting so much time to the case and he warned that other jurors might bow out if the case continues beyond its estimated time. Testimony began at the end of April.
Baden, in his third day on the stand, later testified that a photo of Clarkson’s hand with a piece of acrylic missing from her thumbnail “indicates that her right thumb was on the trigger when the gun was fired.”
Spector, 67, is accused of shooting Clarkson, 40, at his suburban Alhambra mansion 4½ years ago, hours after she went home with him from her job as a House of Blues hostess.