Phillip Spector Legal Brief Supporting Writ of Habeas Corpus Filed by Dennis Riordan 6-18-2012 by...

Case 2:12-cv-05288-SJO-PLA Document 2 Filed 06/18/12 of 75 Page ID #:13

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. February 2 and 3, 2005: Events Before the Shooting . . . . . . . . . . . . . 4

B. February 3: The Shot and Its Aftermath . . . . . . . . . . . . . . . . . . . . . . . 5

C. Mr. Spector’s Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

D. The Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. The Initial Crime Scene Findings . . . . . . . . . . . . . . . . . . . . . . . 8

2. The Autopsy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. The Physical Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

a. Toxicology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

b. The Gun . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

c. DNA Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

d. Gunshot Residue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

e. Blood Spatter Evidence . . . . . . . . . . . . . . . . . . . . . . . . 12

f. Fingerprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

g. No Evidence of a Struggle . . . . . . . . . . . . . . . . . . . . . . 13

E. The Evidence Concerning Whether Lana Clarkson Committed Suicide or Shot the Gun Accidentally . . . . . . . . . . . . . . 15

1. Evidence That Intraoral Killings Are Almost Always Suicides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2. Evidence That the Trajectory of Intraoral Suicides Is Typically Upward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3. Evidence That Drugs and Alcohol Reduce Impulse Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

4. Evidence Relating to Clarkson’s Psychological State at the Time of the Shooting . . . . . . . . . . . . . . . . . . . . . . 15

5. Expert Testimony on Suicide . . . . . . . . . . . . . . . . . . . . . . . . . 18

-i-


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Table of Contents continued

F. The Failure to Investigate Clarkson’s Psychological History Before Concluding That She Did Not Commit Suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

G. The Expert Testimony on Who Fired the Fatal Shot . . . . . . . . . . . . 20

1. Lynn Herold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Stuart James . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

3. Werner Spitz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4. James Pex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

5. Vincent DiMaio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

H. The Prior Conduct Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

I. THE INTRODUCTION AGAINST PETITIONER OF TESTIMONIAL STATEMENTS OF THE VERY JUDGE BEFORE WHOM HE WAS BEING TRIED DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIALJUDGE AND REQUIRES HABEAS RELIEF . . . . . . . . . . . . . . . . . . . . . 27

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

B. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

1. The Herold Testimony at the Retrial . . . . . . . . . . . . . . . . . . . 27

2. The Lintemoot Testimony at the Retrial . . . . . . . . . . . . . . . . . 29

3. The Videotape of the 2007 Hearing . . . . . . . . . . . . . . . . . . . . 30

4. Use of the Videotape in Prosecution Cross-Examination at the Retrial . . . . . . . . . . . . . . . . . . . . . . 32

5. Defense Objections to the Videotape . . . . . . . . . . . . . . . . . . 32

6. Use of the Videotape During the State’s Closing Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

C. The Trial Judge Violated the Rule of Querciaand Progeny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

D. Petitioner Was Deprived of His Constitutional Right to an Impartial Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

E. The State Appellate Court’s Decision Requires Relief Under Section 2254(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

-ii-


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Table of Contents continued

II. THE STATE COURT’S RULING VIOLATED PETITIONER’S CLEARLYESTABLISHED RIGHT TO CONFRONT WITNESSES AGAINST HIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

A. The Crawford Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

B. The State Court’s Unreasonable Crawford Ruling . . . . . . . . . . . . . . 46

1. The “Context” Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

2. The Fidler Photographs Ruling . . . . . . . . . . . . . . . . . . . . . . . 49

III. THE PROSECUTION COMMITTED PREJUDICIAL MISCONDUCT BY ARGUING TO THE JURY THAT THE TRIAL JUDGE WAS A WITNESS AGAINST THE DEFENDANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

IV. THE PROSECUTOR COMMITTED MISCONDUCT BY ATTACKING THE INTEGRITY OF DEFENSE COUNSEL AND BY ARGUING THAT THE PETITIONER USED HIS WEALTH TO PURCHASE FALSE TESTIMONY . . . . . . . . . . . . . . . . . 57

A. The Prosecutor’s Arguments at Trial . . . . . . . . . . . . . . . . . . . . . . . . 57

B. The State Court’s Unreasonable Determination of Facts and Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

V. PETITIONER WAS PREJUDICED BY EACH VIOLATION OF HIS CONSTITUTIONAL RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . 63

A. Judicial Bias. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

B. Crawford error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

C. Prosecution Misconduct in Argument. . . . . . . . . . . . . . . . . . . . . . . . . 64

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

-iii-


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF AUTHORITIES

CASES

Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) 43

Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) 65, 66

Brown v. Lynaugh, 843 F.2d 849 (5th Cir. 1988) 37, 54

Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983) 59

Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) 3

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) 39, 40

Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003) 38

Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2010) 40

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) passim

Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) 63, 64

Detrich v. Ryan, 677 F.3d 958 (9th Cir. 2012) 42

Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) 54

Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) 39

Greene v. Fisher,__ U.S. __, 132 S. Ct. 38, 181 L.Ed.2d 336 (2011) 41

Hein v. Sullivan, 601 F.3d 897 (9th Cir. 2010) 60

Hurles v. Ryan, 650 F.3d 1301 (9th Cir. 2011) 39, 40, 42

In re Martin, 71 Cal.App.3d 472, 139 Cal.Rptr. 451 (1977) 37

-iv-


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Table of Authorities continued

Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) 40

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) 47

Merolillo v. Yates, 663 F.3d 444 (9th Cir. 2011) 64

Michigan v. Bryant, __ U.S. __, 131 S. Ct. 1143, 179 L.Ed.2d 93 (2011) 47

In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955) 37, 40, 42, 45

O’Neal v. McAninch, 513 U.S. 432 (1995) 65

Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) 41, 42

Parker v. Matthews, 2012 U.S. LEXIS 4306 (June 11, 2012) 59

People v. Carlucci 23 Cal.3d 249 (1979) 43

People v. Cook 39 Cal.4th 566 (2006) 43

People v. Rigney 55 Cal.2d 236 (1961) 43

People v. Spector, 194 Cal.App.4th 1335 (2001) passim

Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) passim

Rose v. Clark, 478 U.S. 570 (1986) 63, 64

Singh v. Prunty 142 F.3d 1157 (9th Cir. 1998) 51

Sizemore v. Fletcher, 921 F.2d 667 (6th Cir. 1990) 60

Smith v. Curry, 580 F.3d 1071 (9th Cir. 2009) 38, 44, 55

Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) 64

-v-


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Table of Authorities continued

Taylor v. Cain, 545 F.3d 327 (5th Cir. 2008) 49

Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) 3, 39, 64

United States v. Carter,236 F.3d 777 (6th Cir. 2001) 65

United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996) 56

United States v. Friedman, 909 F.2d 705 (2d Cir. 1990) 60

United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) 58, 59

United States v. Maher, 454 F.3d 13 (1st Cir. 2006) 48

United States v. Silva, 380 F.3d 1018 (7th Cir. 2004) 49

United States v. Smith, 962 F.2d 923 (9th Cir. 1992) 55

United States v. Walker, 673 F.3d 649 (7th Cir. 2012) 49

United States v. Wright, 625 F.3d 583 (9th Cir. 2010) 59

United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) 59, 66

Van Patten v. Endicott, 489 F.3d 827 (7th Cir. 2007) 41

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) 41, 42

STATUTES28 U.S.C. § 2254(d)(1) 3, 38, 41, 42

Cal. Const. art. VI, § 10 38

Cal. Evid. Code § 703 37, 52

Cal. Evid. Code § 703(b) 54

Cal. Penal Code § 187 3

-vi-


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

INTRODUCTION

Lana Clarkson, an actress, died of a gunshot on the morning of February 3,

2003. Eighteen months later, petitioner Phillip Spector, a renowned music

producer, was charged, and subsequently tried twice for Ms. Clarkson’s murder.

The pivotal issue in both of Mr. Spector’s trials was the identity of the party who

fired the fatal shot.

The prosecution alleged that Mr. Spector met Ms. Clarkson at a club,

brought her to his house in Alhambra, California, and several hours later shot her

in the mouth. As the prosecution stated in its first opening statement, Mr.

Spector “put a loaded pistol in Lana Clarkson’s mouth, and shot her to death.”

But much of the prosecution’s evidence concerned not the events of February 3,

2003, in Alhambra; it, rather, centered on incidents in Mr. Spector’s life

separated by decades and thousands of miles from the date and place of Ms.

Clarkson’s death.

The defense maintained that Ms. Clarkson was suicidal and despondent,

and shot herself, either accidentally or intentionally, while under the influence of

drugs and alcohol. Petitioner’s counsel told jurors at his first trial that Ms.

Clarkson’s wound was self-inflicted because “[t]he science will tell you ... that

Phillip Spector did not shoot Lana Clarkson, the decedent, that he did not hold

the gun, and that he did not pull the trigger.” The exculpatory nature of the

forensic evidence to which defense counsel referred was reflected in the impasse

reached at Mr. Spector’s first trial, and the length of the jury’s deliberations—

nine days—at his second.

Prior to Mr. Spector’s first trial, Los Angeles Superior Court Judge Larry

Fidler decided to televise the proceedings because of petitioner Spector’s public

status. The Los Angeles Times reported Judge Fidler ruled that cameras in the

courtroom “would have several benefits, including dispelling the public’s

perception that Spector and other wealthy individuals get special treatment.” But

Memo. of Pts. and Auths. rePet. for Writ of Habeas Corpus 1


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Judge Fidler did subject Mr. Spector to treatment very different from that

normally accorded criminal defendants, to Mr. Spector’s great detriment.

When Mr. Spector’s first jury declared itself hung after two weeks of

deliberations, Judge Fidler stated: “We don’t know how the gun got in her

mouth.” First Trial Reporter’s Transcript at 11878. Subsequently at Mr.

Spector’s second trial, Judge Fidler took extraordinary steps to assist the state in

securing a conviction in this high-profile prosecution. He admitted into evidence

over a Crawford objection a videotape of a pretrial hearing in which he himself

had made statements and gestures describing a witness’s testimony, and

permitted prosecutors to play the video twice during trial. The video was played

again in closing in order to support the prosecution’s argument that Judge

Fidler’s statements and gestures were dispositive proof of petitioner’s guilt—

indeed, the prosecutor argued it was “the one piece of evidence that [the defense]

could not explain away.” Judge Fidler overruled petitioner’s objections to the

video’s introduction as evidence and also to the prosecution’s display in closing

argument of the judge’s still photographs as one of the state’s witnesses. The

judge further refused the defense’s request to instruct jurors that he was not a

witness for either party.

The jury at Mr. Spector’s second trial found him guilty of second-degree

murder. The California Court of Appeal found that no error resulted from Judge

Fidler’s lending his support to the prosecution’s case through the admission into

evidence of his out-of-court statements, never subjected to cross-examination.

Bent on affirming Mr. Spector’s conviction in this highly publicized case, the

state appellate court refused on patently spurious grounds to confront the fact,

likely unprecedented in the annals of Anglo-American jurisprudence, that during

closing argument the prosecution displayed Judge Fidler’s photograph among

those of the state’s key witnesses.

“Every procedure which would offer a possible temptation to the average



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

man as a judge to forget the burden of proof required to convict the defendant, or

which might lead him not to hold the balance nice, clear and true between the

State and the accused, denies the latter due process of law.” Caperton v. A.T.

Massey Coal Co., Inc., 556 U.S. 868, 878, 129 S.Ct. 2252, 173 L.Ed.2d 1208

(2009) (quoting Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71

L.Ed. 749 (1927)). The prosecution’s remarkable reliance on the trial judge and

his testimonial evidence, never subjected to cross-examination, to gain a

conviction deprived Mr. Spector of a fair trial.

Each of the claims raised herein has been adjudicated in state court

proceedings, and the adjudication of each claim resulted in a decision by the state

appellate court that was (1) contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the Supreme Court of the

United States and within the meaning of 28 U.S.C. § 2254(d)(1); and/or (2) based

on an unreasonable determination of the facts presented at the relevant state court

proceeding and within the meaning of 28 U.S.C.

§ 2254(d)(2).

Mr. Spector is entitled to this Court’s order vacating his conviction and

ordering his release unless retried by the state within a reasonable amount of

time.

STATEMENT OF THE CASE

On September 20, 2004, over eighteen months after Ms. Clarkson’s death,

a Los Angeles grand jury issued an indictment charging Phillip Spector with a

single count of murder, Cal. Penal Code § 187, and alleged that in the course of

that offense he personally used a firearm, §§ 12022.5(a)(1), 12202.53(b). CT

1104.1 A jury trial began on April 25, 2007. CT 3589. On September 17, 2007,

1 “CT” refers to the state trial court Clerk’s Transcript on appeal, “RT” to the Reporter’s Transcript at petitioner’s retrial, and “FT” to the Reporter’s Transcript at petitioner’s first trial.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

after a week of deliberation, the jury first declared itself at an impasse. FT

11721. After supplemental instructions and another week of deliberation, the

jury declared itself hopelessly deadlocked on September 26, 2007. CT 5452.

The court declared a mistrial. CT 5513.

A retrial commenced on October 29, 2008. CT 5844. The jury retired to

deliberate on March 26, 2009. CT 6421. After nine days of deliberations, the

jurors returned a guilty verdict. CT 6457. Mr. Spector was sentenced on May

29, 2009, to 19 years to life in prison. CT 6516. Mr. Spector timely appealed.

CT 6519-21.

On May 2, 2011, the California Court of Appeal issued an opinion

affirming Mr. Spector’s conviction. People v. Spector, 194 Cal.App.4th 1335,

128 Cal.Rptr.3d 31 (2011), attached as Appendix A. That court issued an order

modifying its opinion without a change in judgment and denying rehearing on

May 26, 2011, Appendix B. The California Supreme Court denied review on

August 17, 2011, Appendix C. The United States Supreme Court denied

certiorari on February 21, 2012.

STATEMENT OF FACTS

A. February 2 and 3, 2005: Events Before the Shooting

Petitioner Phillip Spector and Rommie Davis were old friends who had

met in high school. 11 RT 1950. On the evening of February 2, 2003, Mr.

Spector and his driver, Adriano DeSouza, left Spector’s Alhambra residence,

picked up Ms. Davis at her home at around 7:30 p.m., and took her to the Beverly

Hills Grill. 11 RT 1957; 14 RT 2479. At the Grill, Mr. Spector saw Kathy

Sullivan, a waitress who was a friend of Mr. Spector. 12 RT 2149, 2157. After

dropping off Ms. Davis at around 10:45, Mr. Spector went to Trader Vic’s with

Ms. Sullivan, and later went to the House of Blues. 11 RT 1962; 12 RT 2152-54,

2159, 2174-75. They met Lana Clarkson, who worked there as a hostess. 12 RT

2179-82; 13 RT 2343.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

At about 2 a.m., DeSouza took Ms. Sullivan home. 12 RT 2185-87. When

he returned to the House of Blues, he heard Mr. Spector invite Clarkson back to

his home, known as the “Castle.” 14 RT 2505. Clarkson declined. 14 RT 2505.

Mr. Spector did not insist. 14 RT 2569. She accepted a ride to her car. 13 RT

2353.

DeSouza and Mr. Spector took Clarkson to a parking garage. 14 RT 2508.

After Clarkson exited the garage, she got back into the Mercedes and said to

DeSouza, “You know, I want to have a drink. I really need a drink, so I’m going

to go with him.” 14 RT 2509, 2570. The three arrived at the Castle at around 3

a.m. 14 RT 2517.

B. February 3: The Shot and Its Aftermath

At around 5 a.m., DeSouza was resting inside the car, parked in back,

when he heard a loud noise. 14 RT 2525. Before the noise he heard no yelling

or screaming. 14 RT 2584. He told the police he was awakened by the sound.

15 RT 2759-60. He walked around for a few minutes trying to find the source of

the noise and then got back into the car. 14 RT 2526. Three to five minutes

later, Mr. Spector came outside and stood on the porch holding a gun. 14 RT

2528. DeSouza testified that Mr. Spector said: “I think I killed somebody.” 14

RT 2532.

DeSouza testified that he saw blood on the top of Mr. Spector’s finger (14

RT 2534), but had told police he was not sure if Spector had blood on his hands

(15 RT 2761). Through the door, DeSouza saw Clarkson’s legs and then her

whole body. 14 RT 2535. Clarkson was slumped down in the chair. 14 RT

2538. DeSouza asked Mr. Spector what happened and Spector shrugged. 14 RT

2535.

DeSouza called 911 at 5:02 a.m., reporting that he had seen Mr. Spector

carrying a gun, that Mr. Spector had said that he thought he had “killed her,” and

that Clarkson’s body was on the floor. A transcript of the call was placed in



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

evidence as Exhibit 143. 14 RT 2544.

What DeSouza did or did not hear Mr. Spector say after the shot was

disputed at trial. DeSouza’s day had started at around 6 a.m. 14 RT 2559. He

did not sleep at any point during the day. 14 RT 2560. He worked until 5 a.m.

the next morning without having slept. 14 RT 2560. He did not eat between 7

p.m. on February 2nd and his multiple police interviews on the morning of

February 3rd. 46 RT 9090. When interviewed at the scene, DeSouza was

described by an investigating officer as “very agitated.” 15 RT 2785.

In his grand jury testimony, as in his interviews at the time of the incident,

DeSouza described Mr. Spector’s statement as: “I think I just killed somebody,”2

and, alternatively, as “I think I just killed her.” There was a running fountain

between them which DeSouza described as “fairly loud.” 14 RT 2581. DeSouza

believed Spector may have been drunk. 14 RT 2605. DeSouza had difficulty

understanding Spector when he drank, and sometimes Spector mumbled and was

hard to understand. 14 RT 2557, 2558. According to DeSouza, Spector had

slurred speech that evening and was hard to understand. Exh. 147 at 36.

DeSouza, a Brazilian national, is a native Portuguese speaker; he speaks

that language at home. 14 RT 2551. In an interview on February 3rd (Exh. 147 at

55-56), DeSouza told police officers that because of his imperfect English, he

could not be sure what Mr. Spector said to him outside the house. 14 RT 2662.

At the time of the charged incident, DeSouza had overstayed his student

visa and was working in violation of United States law. 14 RT 2654. He

admitted that he had lied on various government immigration forms. 15 RT

2746. When he told the police about his visa status they informed him that he

was immediately removable from the United States. 15 RT 2751. As a result of

2 For instances where DeSouza used the term “somebody,” see Exhibit 161 at 3, 8- 9, and 23; Exhibit 147 at 45, 55-56. For his use of “her,” see 13 RT 2282 and Exhibit 143, the 911 call.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

his cooperation with the prosecution in this case, the District Attorney helped to

defer any INS action. 14 RT 2654. Indeed, the DA wrote letters to immigration

officials asking that DeSouza be permitted to remain in the country indefinitely,

that he be able to work, and that his mother be able to visit. Exhs. 514, 515, 516.

Defense witness Elizabeth Loftus, a professor at U.C. Irvine and an expert

on eyewitness testimony (45 RT 8811-17), testified concerning factors affecting

the accuracy of DeSouza’s testimony in addition to his language issues. She

testified, inter alia, that: (a) poor lighting or other sensory conditions reduce

acquisition of information; (b) stress, distractions, and lack of sleep reduce

acquisition of information; (c) someone who had not slept in twenty-two hours

would have diminished sensory and cognitive abilities; (d) weakly obtained

information can be easily “corrupted” in memory by subsequent events or

questioning, especially repeated questioning, which can shape memories and

confirm inaccuracies. 45 RT 8821-38.

C. Mr. Spector’s Arrest

About forty minutes after arriving at Mr. Spector’s residence, police

officers approached and announced themselves. 15 RT 2789, 2791, 2841. Mr.

Spector was walking back and forth on the second story of the house. 15 RT

2794. Without having received any orders from the police, Spector came onto the

back porch to meet them. 15 RT 2795, 2844. He slurred his words, and was

described as frantic, dazed, and confused. 15 RT 2796, 2845. As officers

approached the house, he stated: “Hey guys, you’ve got to come see this.” 15 RT

2807.

Mr. Spector led them into the house. 15 RT 2795. Using a four-foot wide

plastic shield, the police took Spector to the ground inside the foyer and arrested

him. 15 RT 2811.

D. The Investigation

Both the Los Angeles Sheriff’s Department and the Coroner were involved



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

in the investigation of the Clarkson shooting, an inquiry that extended from

February 2003 to the time of the retrial in late 2008. Unlike defense experts, who

were cross-examined at length about their compensation for participation in the

case, there was no record of the amount of time or money spent by those

departments. For example, the chief Coroner, Dr. Lakshmanan,3 testified that

twelve members of his staff worked on the case. 31 RT 6014.

1. The Initial Crime Scene Findings

Paramedics and investigating officers found Ms. Clarkson’s body clothed

and slumped in a chair in a foyer. 16 RT 3060-61; Exh. 19. Her shoulder blades

hit the middle of the top cushion of the chair. 16 RT 3069. Her arms were down

by her sides and her head was turned to the left. 15 RT 2854. There was blood

on her face running down her chest. 16 RT 3064. Clarkson’s purse strap was

wrapped over her shoulder and around the right arm of the chair. 16 RT 3065.

A .38 Colt revolver loaded with five rounds (including a spent round under

the hammer) was found under Clarkson’s left leg. 15 RT 2814, 3079-80. A

drawer of a bureau nearby was open several inches. 15 RT 2850, 3170. Inside

the bureau was a holster for a .38. 16 RT 3085. A portion of Clarkson’s artificial

tooth was lodged in the sight of the gun, and other pieces of artificial tooth were

found on the floor nearby. 17 RT 3194, 3113.

In the living room, which was lit only by candles, police found a quarter-

full bottle of ginger ale, a brandy snifter, and an empty bottle of tequila. 17 RT

3117. Inside a bathroom near the foyer, investigators found a cloth diaper that

was wet and had blood on it. 17 RT 3120. Upstairs, they found a jacket with

blood on it, crumpled on the floor, not hidden. 17 RT 3127.

3 Lakshmanan Sathyavagiswaran is the Coroner of Los Angeles County. Because his last name is difficult to pronounce, at trial the parties referred to him as Dr. Lakshmanan. Petitioner follows that convention in this brief.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. The Autopsy

Deputy Coroner Louis Pena conducted an autopsy on February 4 and

finalized his report on September 19, 2003. 21 RT 4086. Pena testified that the

cause of Clarkson’s death was injuries to her head and neck caused by an

intraoral gunshot. 21 RT 4001. The bullet traveled through Clarkson’s mouth,

severed her spinal cord, and lodged in her head. 21 RT 4003. The trajectory was

front to back and slightly upward. 21 RT 4007. Pena testified that the shot fired

was a near or loose contact shot because there was no stippling in the mouth. 21

RT 4024. He opined that the bullet caused a complete transection of the spinal

cord, causing immediate loss of all function. 21 RT 4022.

When Dr. Pena had first arrived at the scene, he was told Mr. Spector

confessed to the shooting. 21 RT 4049. He admitted that after hearing this, he

had an inclination to prove that assessment correct. 21 RT 4089. Thus, he was

hoping the shot was not intraoral, common in suicides, because an external shot

would be obviously a homicide. 21 RT 4050.

There were three drafts before Pena completed his final autopsy report. 22

RT 4233. The original draft had no opinion regarding the manner of Clarkson’s

death — i.e., whether it was a homicide, suicide, or accident. 22 RT 4276. It had

been impossible for Pena to determine whether Clarkson had been killed or

committed suicide based on the autopsy. 21 RT 4051. In a report of a meeting

on July 22 (22 RT 4277), Pena wrote that the physical evidence in the case would

not support a finding of homicide; there would need to be additional

investigative input. 22 RT 4277-80.

Pena’s opinion that the death was a homicide was first rendered on July 29,

2003, a week after he stated he was unable to reach that conclusion. 22 RT 4287;

Exh. 569. Pena claimed he was able to render the opinion on the 29th because by

then he had received additional information from investigators. 22 RT 4288.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3. The Physical Evidence

The trial testimony concerning the physical evidence collected at the scene

was voluminous. As will be discussed below, the experts’ interpretations of that

evidence varied greatly. It is neither possible nor necessary to describe the

universe of the physical evidence in detail, so Mr. Spector limits the following

summary to that material which proved central to the opinions of the numerous

expert witnesses.

a. Toxicology

Mr. Spector’s blood tested positive for seizure medications and Prozac. 19

RT 3482. His blood alcohol level was .07. 19 RT 3484. Clarkson’s blood

alcohol level at the time of her death was .14 or .12. 19 RT 3486-87, 3494. She

also tested positive for Vicodin and Benadryl. 19 RT 3485. The amount of

Vicodin in Clarkson’s body was more than if she had taken two tablets,

suggesting recent use. 19 RT 3485, 3489, 3513.

b. The Gun

The .38 Colt involved in the shooting was a snub nose with a two-inch

barrel. 21 RT 3888. Given the artificial tooth material found in the sight of the

gun, the gun had to have been fired while inside Clarkson’s mouth no more than

1.5 inches. 21 RT 3920-21.

c. DNA Evidence

Both Spector’s and Clarkson’s DNA were on a number of items, including

a pair of false eyelashes (Clarkson was the major donor; that is, Spector’s DNA

could have been from touching them or saliva); and blood on Clarkson’s wrists

(Clarkson was the major donor). 19 RT 3635, 3636, 3639-40, 3650-51, 3662-65.

The rag that had been found in Spector’s bathroom had blood that was

diluted in some places; it looked as if it had been watered down. 19 RT 3680.

All four samples from the rag were Clarkson’s. 19 RT 3681. A swab of the

nipple of Clarkson’s left breast contained both Spector’s and Clarkson’s DNA,



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

with material suggesting saliva. 20 RT 3707. A sample taken from Spector’s

scrotum contained DNA from two people—Spector and another person who was

likely Clarkson. 20 RT 3715-16.

Seven samples were taken from the gun and one from the ammunition. 19

RT 3686. Clarkson’s DNA was found on the gun and ammunition. 19 RT 3689,

3692. Although Spector’s DNA was found mixed with blood and otherwise at

various locations around the scene, Spector’s DNA was not found on the gun. 20

RT 3778.

d. Gunshot Residue

Gunshot residue (hereinafter “GSR”) travels about 2.5 feet in a diameter

around a revolver when fired. 19 RT 3527. GSR contains three elements:

barium, antimony, and lead. 19 RT 3539-41. A particle that has all three of

these elements is a “highly specific” indication of GSR. 19 RT 3539-41. Under

FBI guidelines, in order to identify something as GSR, a sample must contain all

three elements. 19 RT 3555, 3576.

Coroner’s investigator Jaime Lintemoot collected possible GSR samples

from Clarkson’s hands with “sticky disks.” 17 RT 3262; 18 RT 3303. Lintemoot

found GSR on Clarkson’s thumb, webbing, and first two fingers of both hands.

19 RT 3521, 3542. The presence of GSR meant Clarkson either fired the gun or

that her hands were in the area when the gun was fired. 19 RT 3522.

After Mr. Spector was taken into custody and transferred to jail, police

conducted GSR tests on his hands. 18 RT 3402, 3405. Police found one particle

specific to GSR and one particle consistent with residue, i.e., with less than all

three elements. 19 RT 3580. Spector could have had this quantity of residue on

his hand simply by touching Clarkson or carpet or furniture, all of which were

covered with residue. 19 RT 3581.

GSR adheres to clothes better than skin. Police investigators did not test

Spector’s clothes for residue. 19 RT 3557. However, Sheriff’s criminalist Lynn



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Herold looked over Spector’s entire jacket under a microscope. 34 RT 6515.

Her original report stated that “no smokeless powder of obvious morphology

[i.e., shape] was seen.” 26 RT 5250. She testified, however, that she removed a

deformed particle of smokeless powder from Spector’s jacket. 25 RT 5036.

Other than the single particle, police found no other residue or powder on any

article of Spector’s clothing. 26 RT 5266.

e. Blood Spatter Evidence

As will become evident in Mr. Spector’s lead argument below, the issue of

the existence and location of blood spatter assumed great importance and was

hotly disputed at Mr. Spector’s second trial. The specific dispute centered on

prosecution witness Jamie Lintemoot’s testimony at the retrial that she had

observed blood spatter on the back of Clarkson’s wrists. 18 RT 3382-83.

In her contemporaneous report, Lintemoot noted that she observed small

red stains on Clarkson’s left and right hands and wrists. Exh. 583. She identified

two areas — a small area of stain and a large smear, both on the back of

Clarkson’s left hand, between the forefinger and the thumb as follows: “left wrist

– outside ‘blood splatter’ ”; “left wrist – inner larger area.” Exh. 613.

At a February 2004 meeting, the prosecution expressed concerns about

problems with Lintemoot’s collection and recording of blood spatter evidence.

28 RT 5598; Exh. 608. At the crime scene, Lintemoot had collected possible

blood swabs from Clarkson’s hands and wrists, but had not described precisely

where on the body they were; the photographs taken at the scene were too poor to

show the location of the blood. 28 RT 5599-600. Lintemoot used a tape lift on

Clarkson’s dress that disturbed blood evidence. 28 RT 5601. Clarkson’s body

was washed before there had been adequate documentation of the supposed

spatter. 28 RT 5600. Finally, and most dramatically, there was a blood purge

that occurred when Lintemoot turned Clarkson’s body in the Coroner’s office,

thus obscuring blood and other evidence on the body. 28 RT 5602.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

At the first trial, medical examiner Pena testified that there was blood on

Clarkson’s fingers. 22 RT 4257; 24 RT 4701. At the retrial, Pena first testified

that his prior testimony was wrong—he never documented blood on Clarkson’s

fingers. 22 RT 4259. Later, Pena retreated from that statement, telling the jury

that he saw blood on her fingers, but could not say whether it was blood spatter

or a stain. 24 RT 4703.

A criminalist testified that he observed nine stains on Mr. Spector’s jacket,

seven of which he confirmed as blood. 20 RT 3752. The lower front of

Spector’s white jacket had a series of fine blood stains. 18 RT 3349. There was

also a stain on the left cuff. 25 RT 5056. There was no blood on Spector’s pants

or shirt. 25 RT 5039. There was a single spatter stain on the backside of the

upper portion of the right arm of his jacket. 25 RT 5059.

f. Fingerprints

Investigators did not ask for fingerprints from the holster inside the bureau

drawer or from the handle of the drawer. 17 RT 3171-72. The tequila bottle

found in the living room had only Clarkson’s prints on it. 25 RT 4815.

At the first trial, the prosecution’s fingerprint examiner testified that he

had tested the gun and found no prints. 25 RT 4820. That examiner’s report was

peer reviewed. 25 RT 4822. A different examiner testified at retrial that he

could observe what he believed to be a small human ridge detail in a photograph

of the front strap of the .38 revolver. 25 RT 4807; Exh. 74. That examiner’s

conclusions were not peer reviewed. 25 RT 4830.

g. No Evidence of a Struggle

Clarkson was over six feet and 160 or 170 pounds, while Mr. Spector was

much smaller—five feet two inches and around 140 pounds. 14 RT 2577.

Investigators found no evidence of torn clothing, skin or DNA under nails, or

disturbed furniture suggesting there had been a struggle between Clarkson and

Spector. 17 RT 3203. A part of Clarkson’s artificial fingernail was broken off.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17 RT 3205, 3229, 3207. Medical examiner Pena testified that the foyer

contained no evidence of a struggle. 22 RT 4226. The bureau had various

photographs on it that were not disturbed, and he observed no scratches on

Clarkson. 22 RT 4228.

Dr. Lakshmanan agreed that it is difficult to force a gun into someone’s

mouth. 32 RT 6193. He testified that there was no evidence of trauma to

Clarkson’s mouth that would suggest the gun was forced into her mouth. 33 RT

6452. After looking back at his cases, he was unable to find a case in which a

gun was forced into someone’s mouth and discharged. 32 RT 6193.

Dr. Pena testified that injuries to the middle of Clarkson’s tongue were

caused by the firing of the bullet that killed her. 21 RT 4012. At the first trial,

Pena testified the gun was held loosely in Clarkson’s mouth before it discharged.

22 RT 4285. He also testified at the first trial that the gun was not forced down

Clarkson’s throat. 22 RT 4285. At retrial, Pena noted some bruising on the left

side of Clarkson’s tongue. He opined that the bruising was caused by blunt force

trauma, but his opinion was problematic due to the length of the gun barrel and

the location of the bruising. 21 RT 4103. He conceded that another cause (such

as the firing of the shot) might be more likely (21 RT 4109), and agreed that

there was no blunt force trauma elsewhere in the mouth or face. 21 RT 4055.

Pena also testified at the retrial that bruises on Clarkson’s left hand and

right wrist resulted from blunt force trauma. 21 RT 4030-31, 4110. He

suggested that Clarkson had been grabbed. 21 RT 4035. The bruises were not

documented at the scene by either Pena himself or the other investigators who

examined the body there. Moreover, n previous testimony Pena had stated that

he could not offer an opinion regarding the cause of the bruises, and could not

tell when they occurred. 24 RT 4689.

//

//



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

E. The Evidence Concerning Whether Lana Clarkson Committed

Suicide or Shot the Gun Accidentally

1. Evidence That Intraoral Killings Are Almost Always

Suicides

Pena agreed that intraoral gunshot deaths are usually suicides. 22 RT

4252. Dr. Lakshmanan testified that in his experience intraoral gunshot wounds

are almost always self-inflicted. 31 RT 6055.

2. Evidence That the Trajectory of Intraoral Suicides Is

Typically Upward

Lakshamanan testified that the trajectory of shots in the case of intraoral

suicides is typically front to back and rising, which was precisely the trajectory in

this case. 32 RT 6194. Pena agreed that the trajectory of the bullet in this case

was consistent with suicide. 21 RT 4053.

3. Evidence That Drugs and Alcohol Reduce Impulse

Control

Lakshmanan testified that the combination of drugs and alcohol in

Clarkson’s system may have reduced her impulse control. 32 RT 6204. Pena

testified that he could not rule out the possibility that a highly intoxicated

Clarkson pulled the trigger of the gun accidentally. 22 RT 4260. Pena agreed

that the intoxicants could have clouded Clarkson’s judgment and increased the

likelihood that she died as the result of suicide or an accident. 22 RT 4262.

4. Evidence Relating to Clarkson’s Psychological State at

the Time of the Shooting

To determine whether Clarkson may have committed suicide, Pena met

once with Clarkson’s mother Donna just days after the shooting. Donna told him

that Clarkson had not expressed suicidal ideation and had no psychiatric history.

22 RT 4295. Pena did not talk to any of Clarkson’s other family members,

friends, or co-workers. 22 RT 4292.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The evidence concerning Clarkson’s mental state was disputed. The

prosecution introduced evidence that Clarkson had immediate plans for her

future. She had signed on to take part in an exercise infomercial. 27 RT 5475.

She told the producer of the program on the Friday before the shooting that she

would be at a training session the following Monday. 27 RT 5480. Clarkson’s

mother testified that she went shopping with her daughter for shoes the day

before the shooting. 27 RT 5485. Clarkson had an appointment to go over her

taxes on the following Tuesday. 27 RT 5489. She was set to do a small

modeling job for Siemens on February 8th. 27 RT 5491; 46 RT 9011.

On the other hand, the defense introduced evidence that Ms. Clarkson had

been extremely despondent in the months prior to her death, was in deep

financial difficulties, and had a long history of drug and alcohol abuse. A

fraction of that evidence is summarized below.

Clarkson’s medical records established that she fractured both her wrists

around Christmas 2001. 22 RT 4292. Clarkson had been depressed over that

holiday period and into 2002. 22 RT 4292. She was under treatment for her

injuries for eight months, was unable to work, and took Vicodin for pain relief.

22 RT 4293. Her medical records revealed that she had debilitating migraines.

22 RT 4294. A medical questionnaire completed in 2001 stated that she had

“severe, constant” headaches and was seeing a neurologist to try to solve that

issue. 24 RT 4606. No cause was ever found for the headaches; the neurologist

prescribed Paxil and Elavil, which are mood stabilizers. 24 RT 4630. Clarkson

said she had neck pain, ringing in her ears, coughed up blood, and had dizzy

spells. 24 RT 4631. She reported that she was taking barbiturates to try to get

rid of the headaches. 24 RT 4607.

In the questionnaire, Clarkson reported: fatigue, a racing heart, faintness,

numbness, lack of concentration, lack of memory, and sleeping problems (24 RT

4632); she had used marijuana from age 13 to 37 (24 RT 4626). She stated that



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

she had been using Vicodin for eight months, and continued to use it after her

prescription ran out. 24 RT 4627-28.

Clarkson wrote a series of e-mails in the months before her death that

suggest she was seriously depressed by health and financial problems, a

floundering career, and a failed romantic life.

On December 8, 2002, just weeks before her death, Clarkson wrote to her

friend: “I am truly at the end of this whole deal. I’m going to tidy up my affairs,

and chuck it because it’s really all too much for just one girl.” Exh. 572. During

the same period she wrote: “This has definitely been the most difficult year of my

entire life” and that it had not gotten any better. Exhs. 659, 578.

In another message, dated December 3, 2002, Clarkson wrote: “I feel like I

am really losing it. I’m kind of feeling like giving up the dream and, therefore,

the struggle. Exh. 186. A couple weeks later, she wrote: “Over here things are

pretty bad. I won’t go into detail, but I am on the verge of losing it all. Just

hanging on by a thread.” 22 RT 4345.

In an undated message from this period, Clarkson referred to an episode in

which she and a man from whom she had borrowed money had a fight on a city

street: “You were screaming, calling me names, like ‘fucking bitch’ and lashing

out at me on Van Ness Boulevard.” 24 RT 4648. After detailing the miserable

weekend they spent together, she went on to discuss her dire financial straits and

asked him for $6,000. 24 RT 4649.

Clarkson received the part of Marilyn Monroe in a small play titled

“Brentwood Blondes.” 37 RT 7166-72. The pay for each performance was five

dollars. Clarkson proved difficult to work with, and was eventually fired by the

writer. 37 RT 7179.

David Schapiro became friends with Clarkson during the summer of 2002,

and they met regularly. 37 RT 7249. According to Schapiro, Clarkson was

disappointed that she had not become more of a star. 37 RT 7254. She was



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

unhappy about not getting any acting roles. She seemed generally depressed, and

at times became teary when discussing her situation. 37 RT 7254-55. In

December, Clarkson told him that her phone was disconnected and that she was

about to be evicted. She asked to borrow $600, and when Schapiro said he could

not afford the loan, she became angry. 37 RT 7274.

Clarkson's friend of ten years, Jennifer Hayes (41 RT 8090), described

Clarkson as being discouraged over her declining work opportunities (41 RT

8056, 8058), not being able to pay her bills (41 RT 8058), unsatisfied about her

new job at the House of Blues where she was “making nine dollars per hour

pulling out chairs for people she used to beat out [for acting] roles” (41 RT

8060-61), and her problematic consumption of alcohol and resulting depression

(41 RT 8069, 8070). In conversation at the beginning of 2003, Clarkson

expressed her depression about finances, job, and her acting career. She said she

was at the end of her rope: “I’ve had it.” She could not go on the way she was.

41 RT 8077.

Gregory Sims met Clarkson at a party just days before she died. 40 RT

7895-97. She spoke to Sims for around two hours. She was drunk and in a

distressed state. She cried for most of the conversation and talked about being

unhappy in life and giving up. 40 RT 7900-09. She said she hated the people in

the business and was unhappy that she had no children and that her relationships

failed. 40 RT 7903. Sims testified that Clarkson appeared extremely depressed

that night. 40 RT 7904. She told him she wanted to die. 40 RT 7908, 7978.

5. Expert Testimony on Suicide

Defense witness Richard Seiden, a psychologist and former professor at

U.C. Berkeley testified as an expert on suicide. 42 RT 8230. There are two

kinds of suicide: (a) premeditated and planned and (b) impulsive and spur of the

moment. The latter category accounts for forty percent of all suicides. 42 RT

8241. In the case of an impulsive suicide, there may be only five minutes or less



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

between contemplation of suicide and the act. 42 RT 8247.

Suicide is often driven by a health or financial crisis or failed relationship.

42 RT 8243. The immediate trigger for an impulsive suicide is often a fight or

heavy drinking or drug use. 42 RT 8248. Impulsive suicide is not correlated

with major, clinical depression. 42 RT 8253. Rather, it is tied to feelings of

hopelessness about oneself and the future. 42 RT 8253.

Based on an extensive review of Clarkson’s medical records and writings

and testimony from the first trial, Seiden listed various risk factors for suicide, all

of which were present in Clarkson’s life around the time she died: (a) depression

and hopelessness, (b) suicidal ideation, (c) unresolved and ongoing alcohol and

drug abuse issues, (d) tendency to binge and blackout drinking, (e) financial

setbacks and difficulties, (f) loss of a primary relationship, (g) career

disappointments and setbacks, (h) debilitating injury and chronic pain, and

(I) physical aggressiveness, physical recklessness, and tendency to impulsivity.

43 RT 8326-30; 44 RT 8652. Based on all of these factors, Seiden said it would

be wrong to rule out the possibility that Clarkson committed suicide. 43 RT

8330.

F. The Failure to Investigate Clarkson’s Psychological History

Before Concluding That She Did Not Commit Suicide

Dr. Pena had no psychology training. When necessary, the Coroner

consults with experts at U.S.C. on issues relating to the psychology of a

decedent. 43 RT 4265. Pena and Lakshmanan agreed that, in determining

manner of death, the decedent’s mental health history is relevant, as are recent

medical records and interviews with friends and family. 22 RT 4273; 28 RT

5649.

In a meeting on March 31, 2004, which included two assistant district

attorneys, Pena, and others, the attendees discussed the issue of the Coroner’s

conducting a psychological autopsy. 22 RT 4325. Assistant DA Douglas



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Sortino said that the Coroner should hold off on doing that. 22 RT 4326-27.

Pena testified that he later learned that the DA was already doing a psychological

investigation. 22 RT 4327. By the time of the meeting, the autopsy had already

been finalized, though it still had not been released. 22 RT 4328.

Lakshmanan testified that he received a letter in May 2004 from the

District Attorney informing him that the DA’s Office was conducting an

investigation and that the Coroner should hold off on any psychological autopsy

until the completion of that inquiry. 32 RT 6222. Four days later, the DA

informed the Coroner that it could release the autopsy report. 32 RT 6223. In

March 2005, the DA wrote the Coroner to say that it had completed its

investigation and that there was no reason to believe Clarkson had committed

suicide. 32 RT 6225. The letter contained a packet of materials relating to the

DA’s psychological investigation, including the e-mails and medical records

discussed above. 32 RT 6224-26. Lakshmanan, to whom the letter was

addressed, never looked at the materials and did not show them to Pena. 32 RT

6225.

Pena testified that, when he wrote his report regarding the manner of death,

he had no idea that materials relating to Clarkson’s psychological state were

being gathered by the DA and would be delivered to his boss. 22 RT 4327.

G. The Expert Testimony on Who Fired the Fatal Shot

Both parties called experts who opined on the identity of the person

holding the Colt revolver when it discharged. Needless to say, those ultimate

opinions, based on lengthy analyses of the physical evidence, were in conflict.

The key points of the experts’ testimony are briefly summarized below.

1. Lynn Herold

Dr. Herold was the prosecution’s chief forensic witness. At the first trial,

she opined that the evidence was as consistent with suicide as homicide. FT

6113. At the second trial, she offered a different opinion. She opined that, at the



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

time of the fatal shot, Mr. Spector was holding the gun, standing slightly to

Clarkson’s right and two to three feet from her mouth. 25 RT 5061. In Dr.

Herold’s opinion, Spector held the gun in his right hand and had his left arm

raised toward Clarkson’s mouth. 25 RT 5062. Clarkson was holding one or both

of his hands at the time of the shot. 25 RT 5063.

As will be much discussed in Argument I below, the cornerstone of

Herold’s dramatic change of opinion was the testimony of Lintemoot that there

was fine blood mist spatter on the back of Clarkson’s wrists. 25 RT 5069.

Herold’s view was that such spatter was inconsistent with Clarkson’s having

killed herself. 25 RT 5071, 5276.

Herold testified that the blood stains on Clarkson’s hands—that is, the

ones that do appear in the photographs Lintemoot had taken—could have started

as spatter and been smeared. 25 RT 5109.

Herold testified that the single stain on the upper rear of the right arm of

Spector’s jacket was an impact spatter stain and must have been exposed to the

shooting. 26 RT 5203. She believed it was possible that, if Spector were

positioned in the right way, the left front panel of his jacket could be exposed to

spatter while the front right panel was not. 26 RT 5206.

2. Stuart James

Defense witness Stuart James is a forensic expert with a specialty in

bloodstain pattern analysis. 29 RT 5712. Addressing Herold’s changed opinion,

he testified that photographs are used to document evidence and that a scientific

opinion cannot be based on another, non-expert’s description of evidence. 29 RT

5732. Specifically, oral description of blood stains cannot be a basis for analysis.

29 RT 5728-32.

Unlike impact spatter, which results from a gunshot or high-impact event,

satellite spatter occurs when blood falls onto other blood or hits a rough surface.

29 RT 5734. Satellite spatter may also occur in the case of rapidly flowing blood



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

that cascades, thus causing spatter on surrounding surfaces. 30 RT 5909. Impact

spatter and satellite spatter may be very similar in appearance and may be

difficult to distinguish. 29 RT 5742.

James concluded that at least some of the stains on Mr. Spector’s jacket

were from impact spatter and thus that Spector was within arm’s reach of the

spatter event. 30 RT 5952-53. It was impossible to tell whether the stains on the

left side of Spector’s jacket were impact or satellite spatter. 29 RT 5757. James

opined that the stain on the edge of the left cuff of Spector’s jacket was not

impact spatter. 29 RT 5759. Rather, it was a transfer stain—that is, it occurred

when the cuff rubbed some source of blood after the shooting. 29 RT 5759. The

stain had none of the directionality expected in the case of impact spatter. 29 RT

5760. James testified that his finding in this regard was peer reviewed by other

scientists. 29 RT 5760.

James found no spatter on the entire right front panel of Spector’s jacket,

including the front of the right sleeve. 29 RT 5762. As to the single spot on the

back of the right sleeve, if the spatter event was as Herold posited, the back of

Spector’s right sleeve would not have been exposed, even if his arm were bent.

29 RT 5769. There was no spatter below the right elbow or on the forward

portion of the right sleeve, which would be expected if the sleeve was exposed to

the spatter event. RT 5770.

Based on the photographs of Clarkson’s hands taken at Lintemoot’s

direction, there was impact spatter between Clarkson’s thumb and index finger.

29 RT 5797; Exhs. 546, 547. Such spatter could not have occurred if Clarkson’s

palms were out, ninety degrees to the floor, as was the prosecution’s theory. 29

RT 5798.

3. Werner Spitz

Defense witness Werner Spitz is one of the leading forensic pathologists in

the world. 33 RT 6476. He has supervised or conducted about sixty thousand



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

autopsies. 33 RT 6480. After reviewing all the relevant evidence, Spitz had no

doubt the manner of death in this case was suicide. 34 RT 6500, 6545.

Spitz has autopsied several hundred intraoral gunshot deaths and none was

a homicide. 34 RT 6501. The literature is clear that ninety-nine percent of such

deaths are suicides. 34 RT 6503. There was no evidence that the gun was forced

into Clarkson’s mouth. 34 RT 6505. There was no evidence of any struggle in

the form of scratches, skin under fingernails, or disruption of furniture or

clothing. 34 RT 6521. The trajectory of the shot in this case—midline and

slightly upward—is consistent with suicide. 34 RT 6504.

There was a considerable quantity of residue on Clarkson’s hands but none

on Mr. Spector’s jacket, which, under the prosecution’s theory, was very close to

the gunshot. 34 RT 6515. Although the prosecution theory was that Spector

held the gun with his right hand, there was no blood spatter on the right sleeve of

his jacket below the elbow. 34 RT 6515. The single spatter stain above the right

elbow on the reverse side of the sleeve would not have been exposed to the

spatter event under the prosecution’s homicide theory. 34 RT 6516. There was

no evidence of Spector’s fingerprints or DNA on the gun. 34 RT 6522.

The small tear on Clarkson’s tongue was caused by the bullet and

exploding gases from the shot. 34 RT 6535. The discoloration on the tongue

was not caused by blunt force trauma, but rather by the shot itself. 34 RT 6537.

Indeed, a gun with a 1.5-inch barrel could not have caused trauma that far back in

Clarkson’s mouth. 34 RT 6538.

In Spitz’s opinion, the areas on Clarkson’s wrists that Pena found to be

bruises were not created before her death. 34 RT 6527. The absence of bruises

in the initial photographs of Clarkson’s wrist suggests that the marks were caused

post-mortem. 34 RT 6530. The marks could have been caused after Clarkson

died, for example, when she was moved on the autopsy table. 34 RT 6532.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4. James Pex

Defense witness James Pex is also a very experienced forensic scientist.

36 RT 6945 et seq. Like Stuart James, he testified that, in order to do proper

spatter analysis, it is necessary to see the location, size, shape, and distribution of

the spatter stain. 36 RT 6963. One would not rely on another person’s

description of a stain to render an opinion. 36 RT 6964.

Pex testified from photographs that the stains on Clarkson’s hands were

impact spatter and that the hands could not have received such spatter unless they

were pointed toward the spatter event—that is, toward Clarkson’s mouth. 36 RT

6975. The fact that Mr. Spector had a single stain above the elbow on the rear of

the right arm of his jacket is inconsistent with his having been the shooter. 36

RT 6988.

Pex testified that there are spots of blood—impact spatter—on the front of

the gun’s grip that could not have hit the weapon if it was held in the normal

manner (i.e., the manner posited by the prosecution). 36 RT 7012-16; Exhs. 593,

628. Pex opined that he has never seen a homicide case with the sort of impact

spatter stains on the grip front that exist in this case, but has seen it in suicide

cases. 36 RT 7018-19.

Pex concluded that the gun was not held in the normal firing position and

that the blood on the gun and GSR was more consistent with the shot’s having

been self-inflicted. 36 RT 7027, 7028, 7034.

5. Vincent DiMaio

Defense witness DiMaio is one of the world’s leading forensic

pathologists. 40 RT 7684. After reviewing all the relevant evidence in the case,

he concluded that Clarkson died of a self-inflicted gunshot wound. 40 RT 7690.

Ninety-nine percent of intraoral gunshot wounds are suicides. 40 RT

7692. Although he had been involved with tens of thousands of autopsies,

DiMaio had never seen an intraoral homicide with a snub nose revolver. 40 RT



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7694. The residue on Clarkson’s hands and trajectory of the bullet were

consistent with suicide. 41 RT 7695, 7698.

Most intraoral suicides hold the gun with one hand, using the thumb on the

trigger and steady the gun with the other hand. 40 RT 7708. The pattern of

spatter on Clarkson’s hands was consistent with her having committed suicide in

this fashion. 40 RT 7708-09. Impact spatter on the grip suggested there was

nothing covering the front of the grip at the time of the shot, a fact left

unexplained by the prosecution’s evidence. 40 RT 7714-17; Exh. 593.

There were no external injuries to Clarkson’s mouth to suggest force was

applied to get the gun into her mouth. 40 RT 7717. A barrel of only 1.5 inches

could not have been forced into her mouth without evidence of such trauma. 40

RT 7718.

There was no blood spatter on Mr. Spector’s right cuff or sleeve of his

white jacket. 40 RT 7719. Other spatter spread at least to the hem of Clarkson’s

dress, into the gun’s barrel, and to the handle of the gun, so it would be on that

cuff and sleeve if Spector had fired the shot. 40 RT 7720. Stains on Spector’s

jacket suggest he was within a few feet of the event, but the absence of spatter on

his right cuff and sleeve demonstrates he was not the shooter. 40 RT 7742.

Mr. Spector’s DNA was not on the gun. 40 RT 7731. Had he handled it,

his DNA almost certainly would have been detectable on the gun. 40 RT 7731.

DiMaio found no evidence of a struggle. 40 RT 7732. The bruises on

Clarkson’s tongue were the result of discharge of gases in her mouth at the time

of the shooting. 40 RT 7733. The gun in this case was too short to reach the area

of supposed bruising. RT 7735. Furthermore, it is virtually impossible to push a

gun into a mouth with enough force to cause a bruise. 40 RT 7734.

DiMaio testified it was impossible to tell how the supposed bruises on

Clarkson’s wrists were caused because they were not photographed at the scene.

40 RT 7738.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

H. The Prior Conduct Evidence

Much of the testimony at petitioner’s first trial concerned not the events in

his home in February 2003, but those occurring in places as far flung as New

York and at times as distant as the mid-1970's. Jurors heard five women testify

that Mr. Spector had threatened them with a firearm in anger. People v. Spector,

194 Cal.App.4th at 1334-58.

Although intent, as opposed to identity, was never in dispute in this case,

jurors at the first trial also were regaled with testimony admitted on an intent

theory to the effect that, in the early 1990's, over ten years before the charged

offense, Spector twice had made vile and obscene comments about women to

Vincent Tannazzo, a security guard at a Christmas party at Joan Rivers’

apartment. Id. at 392-93.

At Spector’s retrial in 2008 and 2009, also presided over by Judge Fidler,

the court for a second time allowed the prosecution to put before the jury the

same voluminous “uncharged offense” evidence covering a span of thirty years,

with the most recent more than eight years before the charged event. Likewise,

the court again permitted the introduction of the Tannazzo evidence on the non-

disputed issue of intent. In none of the seven instances of prior uncharged

conduct did Mr. Spector commit either of the acts of which he was accused in

this case, that is: (a) putting a gun in a woman’s mouth; and/or (b) firing a shot.

Likewise, there was no evidence he had argued or became angry with Ms.

Clarkson before she died by gunshot.

//

//

//

//

//



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ARGUMENT

I. THE INTRODUCTION AGAINST PETITIONER OF

TESTIMONIAL STATEMENTS OF THE VERY JUDGE BEFORE

WHOM HE WAS BEING TRIED DEPRIVED HIM OF HIS

CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE AND

REQUIRES HABEAS RELIEF

A. Introduction

During a hearing outside the presence of the jury at petitioner’s first trial,

Judge Fidler commented by word and gesture on the testimony of a state criminal

technician, Jamie Lintemoot, concerning the location of blood found on Lana

Clarkson’s hands. Because the first trial was televised, the words and comments

were captured on videotape. Judge Fidler presided over the retrial as well. His

statements and gestures on the videotape were admitted into evidence as a

prosecution exhibit at the retrial over objection, and those statements and

gestures were a chief focus of the state’s closing arguments.

Petitioner was deprived of a fair trial because a defendant’s constitutional

right to an impartial tribunal bars a judge from serving as a witness in a trial he

presides over. The state appellate court’s affirmance of petitioner’s conviction

(a) was contrary to, and an unreasonable application of, the clearly established

law of the Supreme Court that a trial judge in a criminal trial may not assume the

role of a witness; and (b) was based on an unreasonable determination of the

facts presented at the relevant state court proceeding.

B. Statement of Facts

1. The Herold Testimony at the Retrial

The most significant difference between the first trial, where the jury hung,

and the second, where the jury convicted, concerned the testimony of Lynn

Herold. She was the criminalist from the Los Angeles County Sheriff’s office.

Much of the state’s forensic case rested on her testimony. At the first trial,



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Herold testified that, based on six years of investigation, she had been unable to

determine with scientific certainty that Phillip Spector fired the shot that killed

Lana Clarkson. FT 6113. She also offered no opinion that any of the evidence

admitted at trial was inconsistent with the conclusion that Clarkson shot herself.

At the second trial, however, Herold opined that Clarkson could not have

been the shooter. Specifically, Herold testified in response to a hypothetical

question from the prosecutor that the presence of “mist-like spatter or small

pinprick spatter” on the back of the wrists of Clarkson would be inconsistent

with Clarkson’s having held the revolver in a firing position at the time it

discharged. 25 RT 4976-77. Herold explained: “[B]lood, to get on that side due

to being mist-like and associated with the gunshot, would have to fly around a

corner to hit the target, and that doesn’t happen.” 25 RT 4977.

When cross-examined on the seismic shift in her position, Herold admitted

that she had seen all of the photographs taken of Clarkson’s hands, and none

showed misting blood on the back of Clarkson’s hands. 26 RT 5069. At a

meeting in her office in September 2008 with defense counsel, Herold had been

asked whether, “based on all of the evidence, [there is] a single piece of scientific

evidence that is inconsistent with the conclusion that Lana Clarkson shot

herself;” Herold replied, “No.” 26 RT 5068. She changed opinion after so many

years because, in December 2008, she had been given transcripts of the

testimony of Lintemoot at the second trial concerning “blood staining on the

hands.” 26 RT 5069-70. On redirect, Herold emphasized the importance of the

Lintemoot testimony concerning blood stains on the back of Clarkson’s wrists in

supporting her recent conclusion that it was “impossible” that Ms. Clarkson

could have been holding the firearm when it discharged. 26 RT 5276-77. But

Herold admitted that, apart from the Lintemoot testimony and the prosecutor’s

hypothetical based on it, no evidence in the case was inconsistent with

Clarkson’s having shot herself. 26 RT 5071, 5269.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. The Lintemoot Testimony at the Retrial

Lintemoot, a criminalist with the Los Angeles Coroner’s Office, had been

assigned the task of collecting evidence from Lana Clarkson’s body on February

3, 2003. 17 RT 3252-53. Lintemoot, then in her first year with the Coroner’s

office, was primarily a toxicologist, but did evidence collection from bodies

about twenty percent of the time. 17 RT 3252-53. At retrial, she testified that,

while at the crime scene in 2003, she had swabbed what appeared to be mist-like

blood drops from the back side of the right wrist (17 RT 3264) as well as the

back side of the wrist on the left hand. 17 RT 3266-67. The left wrist also

contained a smear or transfer blood stain. 17 RT 3266-67.

Lintemoot conceded that the photographs she had taken of Clarkson’s

hands did not show the possible blood drops she now claimed to have observed,

nor had she drawn a diagram of the drops at the time. 17 RT 3266; 18 RT 3292.

Lintemoot could not identify from the photographs of Ms. Clarkson’s hands what

was a spatter as opposed to a transfer because she was “not a blood spatter

expert.” 18 RT 3294-95. She later reiterated: “I can’t interpret blood spatter.”

18 RT 3296. She had no training that would allow her to opine from which

direction blood spatter had come. 18 RT 3297.

Lintemoot’s typed report (Defense Exhibit 583) referred to “small red

stains observed on both of the decedent’s hands and wrists.” Members of the

District Attorney’s office had criticized the lack of detail in the description of

blood in Lintemoot’s report in a meeting with Dr. Lakshmanan in 2004. 32 RT

6293. The DA’s representatives complained that Lintemoot had “collected three

swabs from the wrist and mentioned possible smears/spatter, though it was not

described;” and that Dr. Pena, who performed the autopsy, “did not describe or

mention any blood spatter on hands, and photos don’t show the same.” 32 RT

6294. Lakshmanan held a meeting with Lintemoot, Pena, and others on March

23, 2004. 32 RT 6297. At that time, Lintemoot read to Lakshmanan her



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

handwritten notes made at the scene, called a form 42, which did not refer to the

blood spatter on the “back” or “back side’ of Clarkson’s wrists, but rather to the

“outside” of the wrists. Exh. 613; RT 6303-05.

It was during Lakshmanan’s testimony that the prosecution requested

permission to play a video of Lintemoot’s testimony at a hearing held during Mr.

Spector’s first trial. 32 RT 6308-09. Defense counsel objected to the video’s

being played on relevancy grounds, but the objection was overruled, and the

video was admitted into evidence and played before the jury. 32 RT 6309-10.4

3. The Videotape of the 2007 Hearing

At the retrial, prosecutor Do stated on numerous occasions that the video

was of Lintemoot’s testimony before the jury on June 13, 2007, during Mr.

Spector’s first trial. 32 RT 6308, 6310. That assertion was in error. In fact, the

video was of testimony taken on May 4, 2007, at a hearing outside the presence

of the jury where Mr. Spector was not present. The hearing was one of several

held on an issue concerning whether attorney Sarah Caplan would be required to

testify concerning the possible disappearance of evidence related to the alleged

offense. The question of the location of blood spatter on Clarkson’s hands was

not broached at all during the direct examination of Lintemoot, called by the

defense at the Caplan hearing, nor during the prosecution’s cross-examination of

Lintemoot. FT of May 4, 2007, at 1768-86.

At the end of the defense redirect, defense counsel raised a different

subject, and the prosecution objected on the ground that the matter was outside

the scope of cross-examination. FT of May 4, 2007, at 1792. The defense

sought to question Lintemoot concerning the meeting held at Lakshmanan’s

office addressing the “complaint lodged as to the photo documentation of the

hands because ... there was no proper photographs of the hands, and there was no

4 The video is Exhibit 243 and the transcript was marked Exhibit 244. 32 RT 6309.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

proper photographs of the blood spatter.” Id. at 1793-94. Upon reopening ,

Lintemoot testified that she did “see red stains mist-like on the outside of both

wrists,” but could not state that it was blood spatter.” Id. at 1795. On recross, in

response to a question by the prosecutor as to whether she saw “mist-like

spatters,” Lintemoot replied “on the outside of her wrists.” Id. at 1797. The

following colloquy involving the court ensued:

Defense counsel Plourd: Not on her hands per se?

Lintemoot: Just in this area (indicating), two or three -

inch radius around, around the wrists.

The Court [gesticulating]: I would say it’s from – if you take

where the wrist joint is, the two to three-inch radius would be

in a circle from that point.

Would that be correct?

Prosecutor Jackson: The interior wrist, that portion of

the wrist joint –

The Court: That’s the exterior, isn’t it? The interior

would be this part, the exterior would be where she was

pointing.

Prosecutor Jackson: Actually, I was making a

differentiation between this part of the joint and that

part of the joint.

The Court: Why don’t you show us? That would be the

best.

Lintemoot: Exterior. So the outside of the wrist area.

Prosecutor Jackson: Okay. The outside of the wrist.

Lintemoot: Yes.

Id. at 1797-99.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4. Use of the Videotape in Prosecution Cross-

Examination at the Retrial

During the cross-examination of defense expert Spitz at the retrial,

prosecutor Jackson played the video of the Lintemoot testimony and distributed a

transcript of it to jurors. 34 RT 6621; Exhs. 243, 244. When asked where

Lintemoot indicated she “saw the blood on the outside of Lana Clarkson’s wrist,”

Spitz replied, “on the back of the hand, on the area of the thumb. On the side of

the thumb...” 34 RT 6621. A dispute then broke out between the prosecutor and

witness Spitz over whether Lintemoot had pointed to an area near the webbing of

the hand or the back of the wrist, and the video was played again, with stops and

starts. 34 RT 6623-24. The defense objected to the trial judge that the replay

“draws you into the case as a witness because she started over here, and then you

point like this and then she went like that.” 34 RT 6624. The court overruled the

objection, stating, “It speaks for itself. It speaks for itself in front of the jury, and

I don’t agree with your interpretation of what I was doing....” 34 RT 6625.

The video was played again (34 RT 6625), after which the prosecutor

asked Spitz: “Did you see where the court is pointing after Jamie Lintemoot

indicates where she saw it where the court is pointing and making a record for

the first trial?” 34 RT 6625 (emphasis added). Spitz replied that he had seen the

video, and in his opinion Lintemoot had pointed “to the radius here, and the ulna

here ... almost half of the back of the hand.” 34 RT 6625. After the video was

played once more, the prosecutor asked whether Lintemoot had pointed on the

video to the back of the wrist, the area where the prosecutor’s watch was located,

and Spitz replied that “I don’t think it would be accurate based on what the video

shows.” 34 RT 6626-27.

5. Defense Objections to the Videotape

Defense counsel moved to strike both the Lintemoot testimony “that she

saw micro spatter,” and the Herold blood spatter testimony based on Lintemoot’s



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

testimony, on the ground Lintemoot “has no expertise to make that statement.”

40 RT 7879. The defense noted that, during her testimony at the hearing outside

the presence of the jury, “[s]he points to the radial aspects of the hands. Then

there is confusion. What is he pointing to? I don’t know. The court then

indicates the backs of the wrists. I don’t know why the court did that.” 40 RT

7883.

The court replied: “Because I had the best view in the courtroom ... I had

the best view in the courtroom. I’m looking down at the witness.” 40 RT 7883.

Apparently under the mistaken view that the video testimony was taken before

the jury at the first trial, the court stated: “Everybody else — she didn’t show it

where the jury can see the top. The lawyers can’t even see it. The only person

who could see it is me, and I’m describing what I’m watching.” 40 RT 7883

(emphases added).

At the close of the evidence, defense counsel objected to the admission of

the Lintemoot video and transcript on the grounds, among others, that it was not

introduced as a prior consistent statement, nor was it produced during

Lintemoot’s examination, when she could be cross-examined on it. 46 RT 9140.

The defense noted that the video was used to cross-examine an expert, and

material used to test the opinion of an expert does not become admissible

material. 46 RT 9140.

Of critical importance, citing Crawford v. Washington, the defense

objected that “that video has the court making certain statements about what it

observed and the court doing that in a way that became testimony, and it cannot

be cross-examined.” 46 RT 9141. The court replied that, “at any time, in any

trial, a court may define and describe what a witness is doing ... I had the best

view of Miss Lintemoot, so it was appropriate for me to do it.” 46 RT 9142.

“The defense responded: “By taking a clip from a previous trial, we are denied

the right to cross-examine or to correct a record ... [I]f the testimony had come in



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

in this proceeding, we would have had the right to cross-examine, and we

didn’t.” 46 RT 9142-43. The defense added that “for the jury to see a clip in

which the court appears to be saying ‘this is where it was, on the back of the

wrist’ is highly influential and prejudicial.” 46 RT 9143. The court responded

that it did not “consider it a Crawford problem.” 46 RT 9144. The court

overruled all defense objections to admission of the video and the accompanying

transcript. 46 RT 9144.

6. Use of the Videotape During the State’s Closing

Argument

The state’s contention that there had been blood spatter on the back of

Lana Clarkson’s wrist was a cornerstone of its closing arguments. In the state’s

initial argument, prosecutor Do asserted: “The back spatter on Lana’s wrist

absolutely proves that she could not have held that gun.” 47 RT 9264-65.

Reiterating that claim as “an absolute,” Ms. Do then replayed the video “where

Jaime Lintemoot clearly explains where the back spatter is,” while misstating that

the testimony was that of Lintemoot before the jury on July 13, 2007. 47 RT

9275. Do then relied on the trial judge as a witness when she asked jurors to “see

with your own eyes where she and the judge indicated the back spatter was on

Lana’s wrist on the outside, at the joint, a two or three inch radius.” 47 RT 9275

(emphasis added). In replaying the video, Do specifically relied on Judge

Fidler’s words and demonstration to attack the integrity of defense counsel:

[J]ust so we are clear, let’s go through it in slow

motion. She is pointing to the backside of the wrist at

the joint area, just like she’s consistently testified.

Now, the judge who had the best position, seated next

to the witness, looks over to what she’s done in that

videotape, and then he describes it both by words and

by his own demonstration, and this is what he did.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

So, when Mr. Weinberg gets up here and tries to argue

to you that it wasn’t here and that it’s here, remember

this videotape because then he’s going to be telling you

you can’t believe your own eyes.

47 RT 9295 (emphasis added).

Do then characterized the blood spatter evidence as bearing on the most

important issue in the case. “Why is it the defense needs to go through this long

process of machinations of truth on this? Because this is the single piece of

evidence they cannot explain away. It is absolutely inconclusive with Lana

Clarkson holding the gun.” 47 RT 9297 (emphasis added).

Following the conclusion of Do’s argument, the defense noted its prior

objections to the Lintemoot video — “the issue of confrontation and lack of

cross-examination, et cetera, and also the fact that it functionally turned the court

into a witness and a witness that we could not cross-examine.” 47 RT 9319. The

defense then objected that:

[N]ot only was the tape played but ... three pictures

were flashed of Jaime Lintemoot and then three pictures

of the court, making the court a witness for the

prosecution. There were three pictures of you, your

honor, flashed on the screen in support of the testimony

of Jaime Lintemoot. I think that is totally inappropriate,

and it was intended to cloak Ms. Lintemoot’s suspect

testimony with the imprimatur of the court.

47 RT 9319 (emphasis added).

The defense requested a cautionary instruction that “nothing the court did

or said was intended to be evidence in the case. Ms. Lintemoot was the witness.

It’s what she said and did which was the evidence, and the court is not a witness

for either party.” 47 RT 9319. The court replied that it had already made its



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ruling “as to why its permissible. It’s not error to have used it in closing

argument.” 47 RT 9320-21.

In his rebuttal argument, prosecutor Jackson said of Lintemoot: “This is

where she was pointing to. This is where the court saw her pointing to. That is

where her finger ends up on the back of the wrists.” 48 RT 9609.

In instructing the jury, the court informed them that the exhibits in the case

were evidence. 48 RT 9658.

C. The Trial Judge Violated the Rule of Quercia and Progeny

At common law, trial judges possessed the power to comment on evidence,

and even give the jury their own view of a defendant’s guilt or innocence. See

James Bradley Thayer, Preliminary Treatise on Evidence at Common Law 188

n.2 (1898). But for nearly a century, the United States Supreme Court has made

clear that the common law prerogative must give way to the demands of the Bill

of Rights and the right to an impartial judge.

This privilege of the judge to comment on the facts has

its inherent limitations. His discretion is not arbitrary

and uncontrolled, but judicial, to be exercised in

conformity with the standards governing the judicial

office. In commenting upon testimony he may not

assume the role of a witness. He may analyze and

dissect the evidence, but he may not either distort it or

add to it.

Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933).

The Quercia rule is based in the United States Constitution. See id. at 469:

“Under the Federal Constitution the essential prerogatives of the trial judge as

they were secured by the rules of the common law are maintained in the federal

courts.”

Thus, the clearly established federal law can be stated succinctly: a judge



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

may comment on evidence, but he may not assume the role of a witness. In re

Murchison, 349 U.S. 133, 139, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (“[Because]

due process requires [a judge] to be impartial in weighing the evidence presented

before him,” the judge may not preside over a contempt hearing in which his

judgment is based “on his own personal knowledge and impressions of what had

occurred in the grand jury room ... the accuracy of which could not be tested by

adequate cross-examination.”); see also Brown v. Lynbaugh, 843 F. 849, 851 (5th

Cir. 1988) (“We conclude that Brown was denied a fair trial when the state was

allowed to establish the essential elements of the crime of escape through the

testimony of the presiding trial judge.”).5

That is precisely what occurred in this case. The trial judge’s videotaped

comments were the primary vehicle by which the prosecution rehabilitated the

credibility of one of its central forensic witnesses. The videotaped statements

were employed not merely as a “comment” on some other evidence, but rather as

independent evidence of a critical fact at trial. The prosecution itself conceded as

much when it argued that Judge Fidler’s videotaped statement “added to” its

evidence. Indeed, the prosecutor went even further, showing the jury a

photograph of the judge among those of its other witnesses, and referring to the

trial judge’s statements as the one thing that the defense could not explain. In

light of its own reliance on the videotaped statements of the trial judge as

prosecution evidence, the prosecution cannot now contend Judge Fidler did not

serve as a witness for the state.

Relying on their own interpretations of state law, including article VI,

5 California statutory law likewise bars a judge from testifying in a civil or criminal case unless he first discloses the nature of his testimony to the parties and offers them a chance to object; if any such objection is lodged, the judge must declare a mistrial and recuse himself. Cal. Evid. Code § 703; see also In re Martin, 71 Cal.App.3d 472, 482, 139 Cal.Rptr. 451 (1977) (holding that due process requires someone other than the original trial judge to hear contempt case arising out of that trial).



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

section 10 of the state constitution,6 California courts have occasionally allowed

trial judges an unusual amount of freedom to sway verdicts. Some of those

decisions, however, have crossed the federal constitutional line. Put simply,

regardless of what the California constitution allows, criminal trials conducted in

California must still abide by the rule of Quercia.

In fact, notably, the Ninth Circuit has recognized the failure of California

courts to abide by Quercia, and granted § 2254 habeas relief on precisely that

ground. In Smith v. Curry, 580 F.3d 1071 (9th Cir. 2009), for example, the Ninth

Circuit affirmed the grant of a habeas petition where a California trial judge

commented on the evidence impermissibly. Relying on Quercia, the Circuit

held:

An analysis of the Supreme Court’s decisions, dating

back to 1896, requires us to conclude that the California

Court of Appeal’s approval of the instruction in this

case, directing the jurors to the evidence the judge

believed supported conviction, crossed the boundary

from appropriate encouragement to exercise the duty to

deliberate in order to reach a unanimous verdict, and

went into the forbidden territory of coercing a particular

verdict on the basis of the judge's selective view of the

evidence. The state court’s decision upholding the

instruction as a fair instruction was an unreasonable

application of established Supreme Court law.

Id. at 1080.

The same is true in this case. The trial judge “went into the forbidden

6 See Cal. Const. art. VI, § 10: “The court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.”



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

territory” by assuming the role of a witness. That directly contravened and was

contrary to the rule of Quercia. The California Court of Appeal’s decision to

affirm the conviction violated the clearly established law of Quercia and its

progeny. Alternatively, it was an unreasonable application of Quercia’s rule.

D. Petitioner Was Deprived of His Constitutional Right to an

Impartial Judge

Quercia is a specific application of the general principle that a criminal

defendant is entitled to an impartial trial judge. Hurles v. Ryan, 650 F.3d 1301

(9th Cir. 2011). Even aside from the specific rule set forth in Quercia, the

defendant’s general due process right to an impartial trial judge was denied. If

the right to an impartial judge means anything, certainly it forbids the

prosecution’s relying on the trial judge as a state witness.

A criminal defendant’s right to an impartial tribunal—both judge and jury

—is an essential component of due process. See Arizona v. Fulminante, 499 U.S.

279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). That right is not merely a

personal right possessed by the individual defendant; rather, it implicates the

integrity of the entire judicial system. See Gray v. Mississippi, 481 U.S. 648,

668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987); Hurles v. Ryan, 650 F.3d at 1309.

In fact, the right to an impartial judge is so critically important that it is one of

the few constitutional errors that requires reversal regardless of any showing of

prejudice or harmlessness. See Chapman v. California, 386 U.S. 18, 23, 87 S.Ct.

824, 17 L.Ed.2d 705 (1967) (recognizing the right to an impartial judge as among

those “constitutional rights so basic to a fair trial that their infraction can never

be treated as harmless error”); Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437,

71 L.Ed. 749 (1927) (“No matter what the evidence was against him, he had the

right to have an impartial judge.”). The clearly established federal constitutional

right to an impartial judge cannot be doubted. Hurles v. Ryan, 650 F.3d at 1309.

Both the Supreme Court and the Ninth Circuit have applied that principle



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

in a variety of contexts, and have thus provided more specific guidance for its

application. For example, the Supreme Court has stated that a trial judge may not

become “embroiled” in a controversy with a litigant. Mayberry v. Pennsylvania,

400 U.S. 455, 465, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). And, most critically for

this case, a trial judge may not take the side of the prosecutor and act as “part of

the accusatory process.” Murchison, 349 U.S. at 137. Put simply, a trial judge

may neither act as prosecutor nor seek “to advance the position of the

prosecutor.” Crater v. Galaza, 491 F.3d 1119, 1132 (9th Cir. 2010). There is a

“due process violation when a judge holds two irreconcilable roles, such that her

role as an impartial arbiter could become compromised.” Hurles v. Ryan, 650

F.3d at 1310.

In this case, the state court trial judge intervened in the case to advance the

position of the prosecutor. He allowed the jury to see his videotaped comments

in which he took sides on a hotly contested issue of forensic evidence. And,

most shockingly, during closing argument he allowed the prosecution to display

his photograph as that of a supposed prosecution“witness.” In so doing, Judge

Fidler deprived petitioner of a constitutional right “so basic to a fair trial that [its]

infraction can never be treated as harmless error.” Chapman, 386 U.S. at 23.

E. The State Appellate Court’s Decision Requires Relief Under

Section 2254(d)

It is doubtful whether a situation quite like this has ever arisen. On that

basis, the state will no doubt argue that habeas relief is inappropriate because a

sui generis case cannot be contrary to clearly established law. That argument,

however, misconstrues federal courts’ power under § 2254. As the Supreme

Court has repeatedly explained, § 2254 has two distinct prongs.

First, habeas relief is appropriate if a state court’s decision was “contrary

to” clearly established federal law under § 2254(d)(1). A state court decision is

“contrary to” federal law under § 2254(d)(1) if it applies a rule that contradicts



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the governing law set forth in Supreme Court cases or if it “confronts a set of

facts that are materially indistinguishable from a decision of [the Supreme Court]

and nevertheless arrives at a result different from [Supreme Court] precedent.”

Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389

(2000); see also Greene v. Fisher, 132 S. Ct. 38, 42-44 (2011).

Second, habeas relief is appropriate if a state court’s decision involved an

“unreasonable application” of federal law under § 2254(d)(1). A state court

decision involves an “unreasonable application” of federal law under

§ 2254(d)(1) if “the state court identifies the correct governing legal rule from

this Court’s cases but unreasonably applies it to the facts of the particular state

prisoner's case” or if it “either unreasonably extends a legal principle from

[Supreme Court] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context where it should

apply.” Williams, 529 U.S. at 407.

The Supreme Court has specifically instructed that a state court decision

can be unreasonable if it wrongly applies a general principle to a specific fact

pattern.

AEDPA does not require state and federal courts to

wait for some nearly identical factual pattern before a

legal rule must be applied. Nor does AEDPA prohibit a

federal court from finding an application of a principle

unreasonable when it involves a set of facts different

from those of the case in which the principle was

announced. The statute recognizes, to the contrary, that

even a general standard may be applied in an

unreasonable manner.

Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662

(2007) (internal quotation marks and citations omitted); see also Van Patten v.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Endicott, 489 F.3d 827, 828 (7th Cir. 2007) (“Neither § 2254 nor [Supreme Court

doctrine] limits relief to the precise factual situations addressed in the Supreme

Court’s previous cases.”).

Here, where the judge acted as “part of the accusatory process”

(Murchison, 349 U.S. at 137), there is a clear violation of Supreme Court

precedent because the judge has adopted “two irreconcilable roles, such that her

role as an impartial arbiter could become compromised.” Hurles v. Ryan, 650

F.3d at 1311. At a minimum, the State unreasonably applied the above Supreme

Court precedent.7 At a maximum, the decision was directly contrary to existing

Supreme Court decisions.

In his state court appeal, petitioner argued that the use of the videotape

violated both California state law and the federal constitution. The California

Court of Appeal, however, focused on the former without meaningfully

addressing the latter. It ruled:

A trial court’s power, indeed its responsibility, to

clarify testimony is well settled in California. “A trial

7 As recently stated in Detrich v. Ryan, 677 F.3d 958, 972 (9th Cir. 2012):

A state court decision involves an “unreasonable application” offederal law under § 2254(d)(1) if “the state court identifies the correctgoverning legal rule from this Court’s cases but unreasonably appliesit to the facts of the particular state prisoner’s case” or if it “eitherunreasonably extends a legal principle from [Supreme Court]precedent to a new context where it should not apply or unreasonablyrefuses to extend that principle to a new context where it shouldapply.” Id. at 407 [Williams v. Taylor, 529 U.S. 362, 407 (2000).]The Supreme Court need not have applied a specific legal rule to aclosely analogous fact pattern for the state court’s decision toconstitute an unreasonable application of clearly established federallaw because “even a general standard may be applied in anunreasonable manner.” Panetti v. Quarterman, 551 U.S. 930, 953,127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

court has both the discretion and the duty to ask

questions of witnesses, provided this is done in an

effort to elicit material facts or to clarify confusing or

unclear testimony.” (People v. Cook (2006) 39 Cal.4th

566, 597.)

“Numerous courts including our own have recognized

that it is not merely the right but the duty of a trial

judge to see that the evidence is fully developed before

the trier of fact and to assure that ambiguities and

conflicts in the evidence are resolved insofar as

possible. [Citation.] As we expressed at length in

People v. Rigney (1961) 55 Cal.2d 236, 241: ‘A trial

judge may examine witnesses to elicit or clarify

testimony [citations omitted]. Indeed, “it is the right

and duty of a judge to conduct a trial in such a manner

that the truth will be established in accordance with

the rules of evidence.” ’ Similarly, as noted in People

v. Lancel[l]otti (1957) 147 Cal.App.2d 723, 730: ‘[I]t

has been repeatedly held that if a judge desires to be

further informed on certain points mentioned in the

testimony it is entirely proper for him to ask proper

questions for the purpose of developing all the facts in

regard to them. Considerable latitude is allowed the

judge in this respect as long as a fair trial is indicated

both to the accused and to the People. Courts are

established to discover where lies the truth when issues

are contested, and the final responsibility to see that

justice is done rests with the judge.’ ” (People v.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Carlucci (1979) 23 Cal.3d 249, 255, italics added.)

People v. Spector, 194 Cal.App.4th 1335, 1368-69 (2010).

That ruling was not just incorrect, but objectively unreasonable in two

respects. First, the state court failed to recognize that, although trial courts may

have some discretion to “clarify” testimony, they may not add to that evidence.

In other words, the state court failed to recognize that – even in California law –

there is a limit to a trial court’s common law prerogative to comment or clarify.

Thus, the state decision was also in violation of 28 U.S.C. section 2254(d)(2), an

unreasonable determination of facts. The state court’s conclusion that Judge

Fidler never departed from his role as an impartial arbiter was factually

unreasonable because the ruling ignores key facts, i.e., Fidler’s decision

permitting the prosecutor to show his photo to the jury in argument identifying

him and arguing that he was an important prosecution witness corroborating

Lintemoot’s testimony.

Second, and more fundamentally, the state court failed to recognize that,

whatever power state law gives to trial judges, that power must yield to the

demands of the federal Constitution. As the Ninth Circuit has previously

recognized, California courts have interpreted their own state constitutional

prerogative to comment so broadly that those interpretations have conflicted with

federal constitutional law. Curry, 580 F.3d at 1080. The state court refused to

recognize the federal limitations on a right to comment and clarify evidence

resulting in the state court judge’s being used as an important prosecution

witness. This was utterly prejudicial. The state court unreasonably applied

federal law. Indeed, it failed to apply it at all. Habeas relief is warranted under

Quercia.

//

//



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

II. THE STATE COURT’S RULING VIOLATED PETITIONER’S

CLEARLY ESTABLISHED RIGHT TO CONFRONT WITNESSES

AGAINST HIM

As demonstrated in the previous claim, the use of the trial judge’s

videotaped testimony violated the rule of Quercia and violated the defendant’s

right to an impartial tribunal. Aside from those problems, the use of the trial

judge’s testimony violated the rule of Crawford v. Washington, 541 U.S. 36, 124

S.Ct. 1354, 158 L.Ed.2d 177 (2004), because the statements admitted were

testimonial and the defendant had no opportunity to cross-examine the trial judge

regarding them. The ruling was thus both contrary to an existing Supreme Court

decision, or surely an unreasonable application of it.

A. The Crawford Right

The Confrontation Clause of the Sixth Amendment guarantees a criminal

defendant the right to confront and cross-examine witnesses against him. U.S.

Const. amend. VI. In Crawford, the Supreme Court clarified the scope of that

right. As the Court held in Crawford, the Confrontation Clause forbids

“admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” 541 U.S. at 53-54.

It is of course undisputed in this case, as in Murchison, that the defendant

did not have any opportunity to cross-examine the trial judge. 349 U.S. at 139

(reversing contempt conviction because judge relied “on his own personal

knowledge and impression of what had occurred in the grand jury room ... the

accuracy of which could not be tested by adequate cross-examination”)

(emphasis added).

A fair reading of the record also makes clear that the trial judge acted as a

witness for the prosecution. The state admitted a videotape of the judge’s

account of the expert’s testimony at an evidentiary hearing. In the videotape, the



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

trial judge asserted—both through oral statements and assertive gestures—that

Lintemoot saw blood spatter on the back of Ms. Clarkson’s wrists. Lintemoot’s

own statements about where she saw blood had been unclear and somewhat

inconsistent. Her initial written reports were vague and partially contradictory,

and her testimony at the evidentiary hearing years later and at the two trials were

equally so. The trial judge’s statement and gestures served to do much more than

merely “clarify”; they added the weight of the trial court to this critical

prosecution point. The judge allowed himself to be a witness for the prosecution.

Furthermore, as described in detail above, the prosecution expressly relied

on the trial judge as a witness during its closing argument. Having obtained a

conviction on that basis, the state may not now deny its own words.

B. The State Court’s Unreasonable Crawford Ruling

The California Court of Appeal denied the defendant’s Crawford claim. It

ruled that the trial judge’s statements were not admitted for the truth of the matter

asserted, and therefore were not testimonial:

We agree with the Attorney General that “the trial

court’s questions, clarifications, and gestures on the

videotape … were admissible for the non-hearsay

purpose of giving context and meaning to Lintemoot's

responses.” As the Attorney General points out, it was

Lintemoot who “had the final word and final

demonstration on this issue, as the trial court directed.

Its questions merely facilitated the gathering of

information from this witness and were not the

evidence itself.”

Because the trial court’s words and actions on the

videotape were not admitted for their truth, they did not

constitute hearsay, they were not “testimonial,” and



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

they did not violate Crawford.

194 Cal.App.4th at 1370.

1. The “Context” Rationale

The state court’s rationale was nothing more than a facile evasion of

Crawford. A court cannot dismiss Crawford claims simply by attaching a

“context” label to testimonial evidence. If that logic were accepted, any

statement could be admitted for context, and the rule of Crawford would amount

to nothing.

Crawford itself concerned statements by the defendant’s wife to police

during their investigation of assault and attempted murder. 541 U.S. at 38-40.

The Supreme Court ruled that those statements were testimonial and therefore

inadmissible. Of course, it would have been theoretically possible to argue that

Sylvia Crawford’s statements were not admitted for the truth of the matter

asserted—the state could have argued that they were admitted to explain the

course of the police investigation, and thus to provide “context” for the ultimate

arrest of Michael Crawford.

The same argument could have been made in Michigan v. Bryant, __ U.S.

__, 131 S. Ct. 1143, 1150-52, 179 L.Ed.2d 93 (2011), that the victim’s statements

were admitted to explain why the police reacted the way they did after the fatal

shooting. The same argument could have been made in Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 307-08, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009),

that the lab tech’s statement’s were admitted to provide context for the drug

investigation. Indeed, the same “context” argument could be made in any case.

Every piece of evidence sheds light on some other piece of evidence, so it can

always be said that the former is admitted to provide “context” for the latter.

But an argument about “context” has not even received serious discussion

in Crawford and its progeny for a very simple reason: the argument is a

transparent ruse. And yet, it is precisely the argument that was accepted by the



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

state court in this case.

Careful attention to hearsay law, which is incorporated in Crawford

doctrine, makes the error clear. The only way that the trial judge’s videotaped

statements could have meaning at trial was by virtue of the truth of the matter

asserted in those statements. Lintemoot’s testimony itself was unclear about

where she saw blood. The judge’s statements were supposedly admitted to

“clarify,” but the only way those statements could clarify anything was if the jury

accepted them as true. An out-of-court statement is hearsay “if the probative

value of the out-of-court statement depends on its being true.” Richard D.

Friedman, The Elements of Evidence 183 (2d ed. 1998). Even assuming that the

trial judge’s statements only served to clarify, their probative value for that

purpose depended on their being true. They were therefore testimonial hearsay.

Hearsay mechanics aside, the breadth of the state court’s rationale would

eviscerate the rule of Crawford. It is precisely for that reason that lower federal

courts have already recognized the danger of using “context” arguments to admit

testimonial evidence. The First Circuit, for example, recognized the problem in

United States v. Maher, 454 F.3d 13 (1st Cir. 2006):

The government’s articulated justification – that any

statement by an informant to police which sets context

for the police investigation is not offered for the truth of

the statement and thus not within Crawford – is

impossibly overbroad. It is overbroad even in classic

hearsay terms, as stated in the McCormick treatise.

What gives this situation added bite is that the

“context” rationale may be used by the prosecution not

just to get around hearsay law, but to circumvent

Crawford’s constitutional rule. As the Seventh Circuit

has warned, citing Crawford:



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Under the prosecution’s theory, every time

a person says to the police “X committed

the crime,” the statement (including all

corroborating details) would be admissible

to show why the police investigated X.

That would eviscerate the constitutional

right to confront and cross-examine one’s

accusers.

Id. at 23 (quoting United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004));

see also United States v. Walker, 673 F.3d 649, 658 (7th Cir. 2012) (“The

government repeatedly hides behind its asserted needs to provide ‘context’ and

relate the ‘course of investigation.’ These euphemistic descriptions cannot

disguise a ploy...”).

In fact, federal courts have already recognized that habeas relief is

warranted when hearsay evidence is admitted based on spurious “context”

arguments in state court trials. See Taylor v. Cain, 545 F.3d 327, 335-36 (5th

Cir. 2008). Denying Crawford claims simply by labeling testimonial evidence as

“context” evidence is both contrary to and an unreasonable application of

Crawford and its progeny.

2. The Fidler Photographs Ruling

The state appellate court’s ruling that Judge Fidler’s statements were not

admitted for the truth of what they asserted collapses if the state trial record

reflects that the statements were presented to the jury as the evidence of a

witness. That the statements were so presented is established by two indisputable

facts: (1) the prosecution exhibited three still photos of Judge Fidler along with

photos of the prosecution’s other witnesses in making its final argument that the

judge provided crucial evidence against petitioner; and (2) the judge refused to

give a cautionary instruction that “nothing the court did or said was intended to



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

be evidence in the case. Ms. Lintemoot was the witness. It’s what she said and

did which was the evidence, and the court is not a witness for either party.” 47

RT 9319, 9320-21.

In denying rehearing, the state Court of Appeal, while acknowledging that

the photo display had been cited multiple times in petitioner’s briefing, claimed

that “Spector did not properly raise this as an independent issue in his opening

brief, and therefore we decline to address it.” 194 Cal.App.4th at 1372 n.12. The

state will no doubt claim that this federal court cannot consider the significance

of the photo display because the facts establishing it are subject to a state

procedural bar. Not so. The Fidler display was a factual core of petitioner’s state

court appeal, and the appellate panel refused to confront it because to do so

plainly would have required reversal of petitioner’s conviction.

The Introduction of Appellant’s Opening Brief (hereinafter “AOB”) in the

state Court of Appeal stated:

In closing argument, the prosecution not only played

the video of the comments of Judge Fidler concerning

Lintemoot’s testimony, but also (a) declared the blood

spatter evidence to be the most important issue in the

case; and (b) displayed Judge Fidler’s picture, along

with that of Lintemoot, as persons who had supplied

crucial evidence supporting a guilty verdict. Under

California law, a judge may not offer evidence in a trial

over which he presides, and a mistrial must be declared

if he does.

AOB at 8.

Petitioner further noted in his AOB that his trial counsel objected

vehemently to the prosecution’s display of the photos during closing argument:

Following the conclusion of [prosecutor] Do’s



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

argument, the defense noted its prior objections to the

Lintemoot video — “the issue of confrontation and lack

of cross-examination, et cetera, and also the fact that it

functionally turned the court into a witness and a

witness that we could not cross-examine.” (47 RT

9319.) The defense then objected that not only was the

tape played but ... “three pictures were flashed of Jaime

Lintemoot and then three pictures of the court, making

the court a witness for the prosecution. There were

three pictures of you, your honor, flashed on the screen

in support of the testimony of Jaime Lintemoot. I think

that is totally inappropriate, and it was intended to

cloak Ms. Lintemoot’s suspect testimony with the

imprimatur of the court.”

AOB at 55, citing 47 RT 9319 (emphasis added).

As the AOB further noted, the judge overruled the objection to the use of

his photos in the prosecution’s closing, stating that he had already ruled “as to

why its permissible. It’s not error to have used it in closing argument.” AOB at

55, citing 47 RT 9320-21. The AOB also contended that the photos of the judge

were conclusive proof that he had served as a prosecution witness at petitioner’s

trial:

Most remarkably, as with witnesses such as Lintemoot,

during the state’s closing arguments prosecutors

displayed three still pictures of Judge Fidler as a party

who had provided evidence of guilt. Plainly, the

prosecution perceived it needed to rely on Judge

Fidler’s unsworn statements and demonstration to win

a conviction on the murder charge. (Singh v. Prunty



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(9th Cir. 1998 142 F.3d 1157 [“In the adversarial

process, the prosecutor, more than neutral jurists, can

better perceive the weakness of the state’s case.”].

AOB at 63 (emphasis added).

Petitioner reiterated the same point at page one of his reply brief in the

state Court of Appeal: “no California court (or, apparently, any court in this

nation) has ever approved admitting the out-of-court statements of the very judge

presiding over a defendant’s trial as evidence of that defendant’s guilt, much less

the posting during closing arguments of a photo of the trial judge as one of the

prosecution’s principal witnesses.” Reply Brief at 1 (emphasis added).

The significance of the photographic display cannot be avoided by

invoking a procedural bar in light of the arguments detailed above. The state

court’s evasion of the above facts adds to the unreasonable factual determination

of the bias and Crawford issues in the appeal. 28 U.S.C. 2254(d)(2).

Whether the photo display constitutes an “independent issue,” however

that may be defined, is irrelevant because it is simply a factual component of the

concededly preserved Crawford (and bias) claim. Petitioner’s opening and reply

briefs expressly cited and discussed the photo display, and trial counsel’s

objection to it, as factual cornerstones of his federal constitutional claims of

Crawford error and of the deprivation of his due process right to a neutral judge,

as well as of his statutory claim that a mistrial had to be declared because Judge

Fidler served as a witness against him. Cal. Evid. Code § 703. The state

appellate court opinion could not reasonably hold that Judge Fidler was not a

witness against petitioner, yet refuse to discuss the dispositive proof to the

contrary, i.e., the inclusion of the judge in the prosecution’s photo display of its

witnesses and argument that he provided crucial corroborating evidence to

Lintemoot. The prosecution’s reliance on the Judge Fidler photos to convict

petitioner, approved by the judge himself, must be addressed in these federal



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

proceedings. Their shocking use seals the case for habeas relief.

III. THE PROSECUTION COMMITTED PREJUDICIAL

MISCONDUCT BY ARGUING TO THE JURY THAT THE TRIAL

JUDGE WAS A WITNESS AGAINST THE DEFENDANT

Mr. Spector has already demonstrated in the preceding arguments that the

admission of “evidence” from the sitting trial judge as a witness for the State

violated his constitutional right to an impartial tribunal and confrontation.

However, the California Court of Appeal adopted the State’s position that “it was

Lintemoot who ‘had the final word and final demonstration on this issue, as the

trial court directed. Its questions merely facilitated the gathering of information

from this witness and were not the evidence itself.’ ” 194 Cal.App.4th at 1370

(quoting the State’s brief on appeal). If that were true (which it was not, see

Argument I, supra), and the judge’s videotaped statements were not evidentiary,

the prosecution was absolutely prohibited from arguing to the jury that anything

that Judge Fidler said or did on the videotape was evidence, much less evidence

that corroborated its vulnerable witness, Ms. Lintemoot. That, however, is

exactly what happened.

In final argument, the prosecution told the jury that Judge Fidler’s

statements and his gestures on the tape constituted proof above and beyond the

Lintemoot testimony. See 47 RT 9275 (referring to the tape, “see with your own

eyes where she and the judge indicated the back spatter was on Lana’s wrist on

the outside, at the joint, a two or three inch radius”) (emphasis added); 47 RT

9295 (“Now, the judge who had the best position, seated next to the witness,

looks over to what she’s done in that videotape, and then he describes it both by

words and by his own demonstration, and this is what he did”) (emphasis added);

48 RT 9609 (“This is where she was pointing to. This is where the court saw her



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

pointing to.”) (emphasis added).8

The Lintemoot-Fidler exchange on the videotape was made a key to the

prosecution’s case in the second trial (and not evidence in the first). To highlight

the tape and the judge’s comments, prosecutor Do’s closing argument was that

this was the one piece of evidence for which there was no defense answer: “Why

is it the defense needs to go through this long process of machinations of truth on

this. Because this is the single piece of evidence they cannot explain away.” 47

RT 9297.

If Judge Fidler were not a witness against petitioner, as the state

erroneously concluded, then the prosecution committed prejudicial misconduct

by placing before the jury photos of the judge mixed with those of its other

witnesses during its closing arguments and argued that he gave important

corroboration to Ms. Lintemoot’s testimony. The Due Process Clause of the

United States Constitution forbids prosecutors from engaging in conduct that

infringes on the rights possessed by criminal defendants. Donnelly v.

DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In this

case, the prosecutorial misconduct “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.” Id.

Indeed, this prosecution conduct was not only wrong, it was egregiously

wrong. The prosecutors surely knew they could not tell the jury that the sitting

judge in the trial was a key witness for the State. “It is difficult to see how the

neutral role of the court could be more compromised, or more blurred with the

prosecutor’s role, than when the judge serves as a witness for the state.” Brown

v. Lynaugh, 843 F.2d 849, 851 (5th Cir. 1988). Everyone knows this.9 The

8 The prosecution’s argument after RT 9545 was made during rebuttal whenpetitioner had no opportunity to respond to the argument.

9 In addition to the law and common sense, Cal. Evid. Code § 703(b) provides: “Against the objection of a party, the judge presiding at the trial of an action

(continued...)Memo. of Pts. and Auths. rePet. for Writ of Habeas Corpus 54


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

result was the type of case Alice encountered in Wonderland.

The Ninth Circuit has found Due Process violations for similar misconduct

in the past. In United States v. Smith, 962 F.2d 923, 936 (9th Cir. 1992), for

example, the prosecution:

invoked the integrity of the court. He stated: “But if I

did anything wrong in this trial, I wouldn’t be here.

The court wouldn’t allow that to happen.” This final

remark cannot be classified as simply an arguably

invited comment on the prosecutor’s special role.

Rather, unlike the other comments that courts have on

some occasions reluctantly overlooked, it placed the

imprimatur of the judicial system itself on [a witness’s]

credibility. That is something we simply cannot permit.

The Ninth Circuit found plain error and reversed, stating:

If the prosecution may invoke the court as the guarantor

of its truthfulness when the veracity of its star witness

is challenged and can then survive review for plain

error, both the actual likelihood and the perception that

an accused will receive a fair trial – a trial in which he

is presumed innocent and in which the government

must prove every element of the charge against him

beyond a reasonable doubt – are severely diminished.

That result is untenable.

Id. at 936. In this case, the prosecutorial misconduct in closing was far more

egregious than in Smith.

9(...continued) may not testify in that trial as a witness. Upon such objection, the judge shall declare a mistrial and order the action assigned for trial before another judge.”



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Similarly, in United States v. Frederick, 78 F.3d 1370, 1379 (9th Cir.

1996), the Circuit was concerned about a prosecutor’s argument to the jury that:

“It is also not [defense counsel’s] job to ask you to look at all of the evidence.

And he is asking you to look at little bits and pieces. The Government and the

Judge will be asking you to consider all of the evidence in making your

decision.” (Emphasis added). In finding misconduct, Frederick observed that

there were three components of error in the jury argument: “In her final comment

the prosecutor implied that 1) the government and the court were allied, 2) they

were allied against the defense, and 3) the government and the court wanted the

jury to seek the truth by considering all the evidence, in contrast to the defense

attorney, who was asking the jury not to see the truth.” Id. at 1380. As in this

case, the prosecutor’s comments “put the defense on a ‘different team’ from the

government and the judge.” Id. at 1380. The error was even more troubling

because the trial court did not strike the comments or give a corrective instruction

Id. at 1380-81. Neither did Judge Fidler in this case—indeed, he adamantly

refused any corrective action.

The mere statement of this issue—that the prosecution argued the judge’s

“evidence” as providing crucial support to the State’s case against petitioner—

justifiably causes one to wonder just what kind of trial petitioner had. On the

evidence, this was a thin case. The State’s scientific evidence was unconvincing

in the first case (thus the hung jury). But in the second case, the misconduct in

using the judge as State’s witness unfairly tipped the scales of justice against

petitioner. That alone should warrant habeas relief. A sitting trial judge cannot

be a witness against a criminal defendant and cannot be embraced as such by the

prosecutor in final argument to the jury.

//

//



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IV. THE PROSECUTOR COMMITTED MISCONDUCT BY

ATTACKING THE INTEGRITY OF DEFENSE COUNSEL AND BY

ARGUING THAT THE PETITIONER USED HIS WEALTH TO

PURCHASE FALSE TESTIMONY

A. The Prosecutor’s Arguments at Trial

In addition to the impermissible reliance on the trial judge as a supposed

witness, the prosecutor also committed repeated and egregious misconduct in

closing argument in his characterization of both defense counsel and defense

witnesses. The prosecutor strayed far beyond the bounds of lawful zealous

advocacy. This, for example, was the prosecutor’s final argument in rebuttal:

All told, the defense ended up, basically, changing

everything. When it didn’t work, they just changed it.

If you can’t change the facts, change the evidence. If

you can’t change the evidence, change the science, and

if you can’t change the science, folks, just go out and

buy yourself a scientist. That may work. There may be

some way to convince a jury ... of that. Don’t let that

happen. See this for what it was. This was a ‘pay to

say’ defense. You pay it; I'll say it, no matter how

ridiculous it is. I’ll even say blood flies around corners.

The total cost to the defense to hide the truth from you

folks, a staggering $419,000. Cogitate on that number

for just a second. A staggering 419,000 bucks to hide

the truth.

48 RT 9605-06 (emphases added).

That argument was simply one of many where the prosecutor was not

content to merely attack the strength of the defense evidence. Rather, he attacked

the integrity of defense counsel himself:



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

! “That's funny. My job, Ms. Do’s [co-prosecutor] job, is to give you

the truth.” 48 RT 9549. [Prosecutor] Jackson continued: “Mr.

Weinberg [defense counsel] doesn’t like the truth. He just moves

it.” 48 RT 9550.

! “Their [defense] version of the truth shifts with whatever direction

the wind blows.” 47 RT 9245.

! “I expect [defense counsel Mr. Weinberg] to do with this evidence

what he’s done with it all through the trial. Go through the

machinations of the truth to avoid it, to change it, to move it from

here to here. I mean, this is almost like an inside joke with us

because we’ve seen this moved to here.” 47 RT 9276.10

! “[B]ut the moment the evidence no longer suits their purpose, the truth,

their version of the truth begins to shift.” 47 RT 9296. Why does the

“defense need[] to go through this long process of machinations of truth on

this?” 47 RT 9297.

! “When the truth doesn’t suit the defense, just move the truth or mask

the truth.” 47 RT 9553.

! “You can write a check for $419,000 to hire paid-to-say witnesses to

get you out of what you have done.” 47 RT 9234.

! “They [defense experts] are willing, for a price, folks, and wait till

you get this price, they are willing to come in and say suicide.” 48

RT 9597.

Despite this litany, the state appellate court stated: “We do not think the

prosecution’s closing argument in this case was likely to have been construed by

10 This was a reference to the prosecutor’s purported insider information that they knew Mr. Weinberg was using “machinations” to avoid the truth. “When a lawyer asserts that something not in the record is true, he is, in effect, testifying. He is telling the jury: ‘Look, I know a lot more about this case than you, so believe me when I tell you X is a fact.’ This is definitely improper.” United States v. Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993).



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the jury as an attack on defense counsel’s personal integrity.” 194 Cal.App.4th at

1406. That ruling rested on an unreasonable determination of the facts and an

unreasonable application of clearly established federal law.

B. The State Court’s Unreasonable Determination of Facts and

Law

Case law, legal ethics, and the federal constitution prohibit the sort of

arguments made by the prosecution in this case. Counsel for either side “must

not be permitted to make unfounded and inflammatory attacks on the opposing

advocate.” United States v. Young, 470 U.S. 1, 9, 105 S.Ct. 1038, 84 L.Ed.2d 1

(1985).11 The Ninth Circuit has warned that “[i]mpugning opposing counsel’s

integrity is a very serious matter; it should be undertaken only after careful

analysis.” United States v. Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993). A

defendant has a right to the effective assistance of counsel, and where a

prosecutor unfairly attacks the defendant’s attorney, the problem is of

constitutional dimension. Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983).

In Rushen, the prosecutor “labeled counsel’s actions as unethical and

perhaps even illegal without producing one shred of evidence to support his

accusations.” Id. at 1194. The Ninth Circuit reversed the state conviction and

called it “egregious” for a prosecutor to resort to “these reprehensible means to

shortcut their responsibility to ferret out all admissible evidence and use only that

to meet their burden of proof.” Id. at 1195.

Contrary to the state appellate court’s ruling, this was far more than a

“colorful” attack on the expert witnesses – it was a baseless attack on defense

counsel for allegedly buying defense expert testimony with a singular goal: to

11 Recently, in Parker v. Matthews, 2012 U.S. LEXIS 4306, 14-15 (June 11,2012), the Supreme Court rejected a somewhat similar due process allegation ofmisconduct. But unlike this case, the prosecutor there told the jury “he was notalleging collusion” between the defense attorney and the expert. In fact, heemphasized he was not arguing either that the defense attorney was unethical orthat the doctor was perjuring himself.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

“hide the truth” from the jury. There was not the slightest evidence to support

the prosecution accusation that Mr. Weinberg bought false expert testimony to

get his client off as part of a “pay to say” machination. See United States v.

Friedman, 909 F.2d 705, 709 (2d Cir. 1990) (“By telling the jury, ‘While some

people ... go out and investigate drug dealers and prosecute drug dealers and try

to see them brought to justice, there are others who defend them, try to get them

off, perhaps even for high fees,’ the prosecutor managed in one breath to

undermine the presumption of innocence, the Government’s obligation to prove

guilt beyond a reasonable doubt, and the standards of propriety applicable to

public prosecutors”); Sizemore v. Fletcher, 921 F.2d 667, 672 (6th Cir. 1990)

(granting habeas relief where the prosecutor suggested “that the defendant could

afford to buy justice in court”).

In United States v. Wright, 625 F.3d 583, 610 (9th Cir. 2010), the Ninth

Circuit found error in the prosecutor’s argument that the defense included a

“trifecta” of bogus claims that he’d never before seen in prosecuting. This was

an improper denigration of the defense as a sham based on the prosecutor’s

allusion to his own experience and thus outside the record. On habeas review,

the Ninth Circuit has rejected the same types of arguments when made by state

court prosecutors. See Hein v. Sullivan, 601 F.3d 897, 913-14 (9th Cir. 2010)

(finding improper summation including demeaning defense counsel who

allegedly worked “cheap lawyer tricks”).

Notwithstanding the wall of authority prohibiting the sort of argument

made in Mr. Spector’s retrial below, the California Court of Appeal rejected his

misconduct argument based on an utterly tendentious ruling. It ruled that the

defense had attempted to “hide the truth” and thus that the prosecutor’s

arguments were proper. In support of that ruling, it cited the following example:

[T]he record shows that, while examining Dr. Pena and

trying to shake his conclusion that Clarkson had not



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

been suicidal, defense counsel asked: “Would it make

any difference in your assessment of Miss Clarkson’s

frame of mind if you knew that on December 8th of

2002 she had written [an e-mail] to a friend, David

Shapiro — ‘I am truly at the end of this whole deal.

I’m going to tidy up my affairs, and chuck it because

it’s really all too much for just one girl?’ ” During the

subsequent cross-examination of Shapiro, the

prosecution put Clarkson’s statement into proper

context by reading out the very next sentence in this

e-mail, which Clarkson had written after Shapiro

offered to lend her money. Clarkson’s e-mail actually

read: “I’m truly at the end of this whole deal. I’m going

to tidy up my affairs and chuck it because it’s really all

too much for just one girl to bear anymore. Don’t

worry, not before I pay you back.” Shapiro testified

this was just Clarkson’s way of being overly dramatic

and that his reply to her e-mail said, “ ‘Hey, do you

want a check or cash.’ ” Defense counsel's framing of

the question to Dr. Pena could be grounds for arguing

the defense was trying to hide the truth.

194 Cal. App. 4th at 1407. Thus, according to the state court, when a defense

attorney fails to give sufficient “context” for his questions on cross-examination,

he thereby opens the door to attacks on his integrity during closing argument.

The state court’s bizarre rationale is flatly inconsistent with the legal authority

presented above.

The prosecutor’s argument was unfair in several other respects as well.

First, Mr. Weinberg did not “go out and buy” the defense experts. Most were



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

hired before the first trial where they testified. This was long before Mr.

Weinberg was even on the case – he represented petitioner only at the second

trial. Second, the necessity of two trials was part of the reason the experts’ costs

were so high.

Third, the State’s own experts spent an enormous amount of time and

money working to prosecute Mr. Spector. They prepared and presented their

opinions over a six-year investigations and two six-month criminal trials. Dr.

Herold spent enormous amounts of time on the case – she spent an entire week

examining Mr. Spector’s white jacket. 26 RT 5223. Steve Renteria estimated he

spent up to 800 hours working the case. 20 RT 3833. Dr. Lakshmanan testified

that twelve members of the Coroner's office worked on the case, and their time

was never limited nor was any test foreclosed from being done. 31 RT 6014-16.

Although the state’s witnesses claimed ignorance of the amount of time and

money spent in the preparation and presentation of the state’s forensic evidence,

plainly the total exceeded hundreds of thousands of dollars.

At bottom, this was a case based in large part on forensic evidence that

was both hotly disputed and entirely circumstantial. The defense presented a

variety of experts who were leaders in their respected fields and who had

conducted intensive and serious examinations of the evidence in this case. Their

opinions undermined the merits of the State’s theory that Mr. Spector pulled the

trigger. Prosecution experts could dispute little of the substance of what the

defense experts said was true, to wit:

(a) 99% of intraoral shootings are suicides;

(b) impact blood spatter on the front edge of the gun grip would be

inconsistent with petitioner’s holding it in Clarkson’s mouth as his fingers would

cover it;

(c) there was no GSR or blood spatter on petitioner’s jacket sleeves or

shirt sleeves;



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(d) the physical evidence was consistent with Clarkson’s shooting herself;

and

(e) Clarkson wrote despairing emails in 2002 decrying her financial

condition, health, employment, and love life, and this despondency was

corroborated by testimony of several of her friends.

Unable to refute those experts on the strength of the merits, the

prosecution resorted to an extreme and impermissible form of impeachment by

bias. It argued that defense experts gave testimony that does “not in any way

shape, form or fashion fit into the science in this case. You have to ask yourself

why.” The prosecutor continued: “How much credibility are you going to give

the science experts when they have been paid this kind of money.” 48 RT 9607.

It is of course permissible for parties to impeach opposing experts with

evidence that they were paid to appear. The prosecutor in this case could have

argued that money could bias the conclusions of the defense experts. But the

prosecutor went far beyond that commonplace, permissible argument. The

prosecutor argued that petitioner’s counsel went out and paid enormous sums of

money to get experts to render knowingly false opinions – to say anything that

would get Mr. Spector off. That argument was unsupported by any evidence, and

it violated the Constitution. It was egregious constitutional error and an

objectively unreasonable application of the Supreme Court cases cited at the

outset of this argument. No fair-minded jurist could tolerate, much less find

lawful, the arguments made by the prosecution.

V. PETITIONER WAS PREJUDICED BY EACH VIOLATION OF HIS

CONSTITUTIONAL RIGHTS.

A. Judicial Bias.

In Rose v. Clark, 478 U.S. 570 (1986), the Court held that a harmless-error

test, rather than a per se reversal standard, usually is applied for most federal

constitutional trial errors. Id. at 578. Rose said that fundamental types of



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

constitutional errors require reversal per se. It included as fundamental the right

to trial before an impartial judge noting that without such a protection “a criminal

trial cannot reliably serve its function as a vehicle for determination of guilt or

innocence, [citation] and no criminal punishment may be regarded as

fundamentally fair.” Id. at 577-78. “Harmless-error analysis thus presupposes a

trial, at which the defendant, represented by counsel, may present evidence and

argument before an impartial judge and jury. [citations.]” Id. at 578. In Tumey v.

Ohio, 273 U.S. 510, 535 (1927), reversal was required because the judge had a

financial interest in the outcome despite the lack of a showing the judge was

improperly influenced by bias. Arizona v. Fulminante, 499 U.S. 279, 294 (1991).

B. Crawford error.

This error is usually subject to harmless error review. Merolillo v. Yates,

663 F.3d 444, 455 (9th Cir. 2011). However, where the unconfronted

“testimony” is that of the trial judge, the same analysis as with trial before a

biased judge must control and the error found structural for the reasons noted

above. Of course, even if assessed under a “harmless error” standard, the use of

such evidence at trial and in argument demonstrated the “substantial and

injurious effect or influence in determining the jury's verdict” that the judge’s

unconfronted evidence had on the case. Brecht v. Abrahamson, 507 U.S. 619,

637 (1993). See footnote 13 infra.

C. Prosecution Misconduct in Argument.

Here, the State, with full acquiescence of the trial judge, employed him as

a witness and argued his “evidence” as evidentiary support for its case. Then, it

denigrated defense counsel as so unconcerned with the truth (unlike the

prosecutors) that he ran out to spend a fortune of his client’s money to buy false

expert testimony and put before the jury. This federal due process claim turns

on the adverse affect to fair trial rights. Smith v. Phillips, 455 U.S. 209, 219

(1982). In reviewing improper remarks, the court must determine whether the



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

prosecutor’s comments “infected the trial with unfairness” and thereby “made the

resulting convictions a denial of due process.” Darden v. Wainwright, 477 U.S.

168, 181 (1986).

Darden set forth criteria for the prejudice inquiry: (1) the nature and

seriousness of the prosecutorial misconduct, (2) whether the prosecutor’s

statements were invited by impermissible conduct by defense counsel,

(3) whether the trial court instructed the jury to disregard the statements,

(4) whether the defense was able to counter the improper arguments through

rebuttal, and (5) the weight of the evidence against the defendant. Id. at 181-82.

Here, the prosecutorial misconduct was quite serious and was not invited

by impermissible conduct by defense counsel. Further, the trial court did not

instruct the jury to disregard the offending statements, and the defense was

unable to counter the improper arguments through rebuttal. (The prosecutor

alone had rebuttal argument.12) Finally, the weight of the evidence against the

petitioner was not strong. Id. at 181-83.

Surely then, the prosecution arguments had a substantial and injurious

effect or influence in determining the jury’s verdict. Brecht v. Abrahamson, 507

U.S. 619, 637-38 (1993).13 In assessing such impact, it must be kept in mind that

12 See United States v. Carter, 236 F.3d 777, 788 (6th Cir. 2001) (finding significant “[t]he prosecutor’s improper comments occurred during his rebuttal argument and therefore were the last words from an attorney that were heard by the jury before deliberations”).

13 Under Brecht, an error requires reversal if there is a reasonable probability thatthe jury would have reached a different verdict if the error had not occurred. Clarkv. Brown, 450 F.3d 898, 916 (9th Cir. 2006). It is the state which must meet thisstandard. United States v. Dominguez Benitez, 542 U.S. 74, 82, n. 7 (2004); Hertz& Liebman, Federal Habeas Corpus Practice and Procedure §31.2(b) (2011). Also,a court must grant relief if the record is so evenly balanced that the Court is ingrave doubt as to the harmlessness of the error. O’Neal v. McAninch, 513 U.S.432, 437, 445 (1995). Brecht adopted the harmless error test from Kotteakos v.United States, 328 U.S. 750 (1946). Brecht, supra, at 623, 637. In Kotteakos, the

(continued...)Memo. of Pts. and Auths. rePet. for Writ of Habeas Corpus 65


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

a prosecutor’s statement to the jury “carries with it the imprimatur of the

Government and may induce the jury to trust the Government’s judgment rather

than its own view of the evidence.” U.S. v. Young, 470 U.S. 1, 18-19 (1985).

The first trial, after two weeks of deliberations and four votes, reported

itself solidly deadlocked at 7 to 5, and, after further deliberations proved futile, a

mistrial was declared. The reason for that deadlock was stated by the trial judge:

“We don’t know how the gun got in her mouth.” FT 11878. Even with the

prosecution’s improperly making the trial judge a witness who supported the

prosecution theory of the case and the attack on defense counsel, the second jury

deliberated over nine days. The prosecutorial misconduct influenced the jury

because it directly related to the difference in the evidence between the first and

second trials. At the first trial, the prosecution criminalist, Lynne Herold, said

the forensic evidence was such that she could not say whether it supported

homicide or suicide. But in the second trial, six years after the death of Ms.

Clarkson, the blood spatter locations testified to by Ms. Lintemoot (as

corroborated by the trial judge), purportedly found on the back of Clarkson’s

wrists, was inconsistent with a self-inflicted wound. This testimony, of course,

was wholly dependent on that of Ms. Lintemoot’s testimony concerning the

location of blood, a matter that the prosecution characterized as the most

important evidence in the case: “Why is it the defense needs to go through this

long process of machinations of truth on this? Because this is the single piece of

13(...continued)Court explained that the relevant inquiry is into the “effect the error had orreasonably may be taken to have had upon the jury’s decision.” Kotteakos, supra,at 764. The Court acknowledged: “It may be, as the Court of Appeals found, thatthe evidence concerning each petitioner was so clear that conviction would havebeen dictated and reversal forbidden....” Id. at 776. Nevertheless, despite thestrength of the evidence of guilt, the Court reversed, id. at 777, because it thoughtit “highly probable that the error had substantial and injurious effect or influencein determining the jury's verdict.” Id. at 776. The focus of Brecht error analysis isthe effect of the error, not the strength of the evidence.



Phillip Spector Legal Brief Supporting Writ of Habeas Corpus Filed by Dennis Riordan 6-18-2012 by...

Documents

Transcript of Phillip Spector Legal Brief Supporting Writ of Habeas Corpus Filed by Dennis Riordan 6-18-2012 by...