Saturday, September 29, 2007

California V. Celebrities


The Cool Justice Report
Sept. 29, 2007

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

The box score stands at Celebs 3, California 0, with one draw.

The new Hollywood pastime, the celebrity criminal trial, crawled to a draw this week in the murder trial of aging music producer, Phil Spector. Spector stood accused of shooting a former ingénue, Lana Clarkson, in his Alhambra mansion. Jurors began their task in April this year, but reported they were hopelessly deadlocked this past week.

As a result the judge declared a mistrial. Given the fact that celebs like O.J., Robert Blake, and Michael Jackson could not be convicted, the mistrial is a victory of sorts for the state.

The Spector case was a contrast of old fashioned circumstantial evidence versus high tech forensic science. On the one hand a parade of former Spector paramours testified that the music mogul had a penchant for threatening women with pistols. Spector's driver that evening, a man with limited English language skills, claimed that Spector had emerged from the house shortly after a gunshot was heard, holding a pistol and exclaiming that he thought he had killed someone. Lana Clarkson's body was slumped in a chair in the foyer of the mansion, purse on her arm, a single gunshot wound to the head.

Back before the days of sophisticated forensic analysis that type of circumstantial evidence, though not direct, would have been sufficient to convict. It appears that 10 of the jurors thought so; 2, however, would not bend in their belief that the state had failed in its burden of proof.

On the other side was an array of experts, including world-renowned criminologist, Dr. Henry Lee and celebrity pathologist, Dr. Michael Baden. Baden's wife, Linda Kenney Baden, was one of several lead counsel on the defense team. The experts maintained that science, and not the frailties of human recollection, should control in the courtroom. Weeks were devoted to debating blood spatter. The defense maintained that the pattern of blood spraying from the wound, coupled with the angle of the path of the bullet, supported its theory that Lana Clarkson's death was a suicide. They maintained that the physical evidence demonstrated that Spector could not have fired the shot.

In keeping with the traditions developed in the typical Hollywood celeb trials there was the mandatory breakdown in the defense team. First out of the box was Robert

Shapiro, leader of the O.J. dream team. Spector retained Shapiro for a cool million. They shortly parted ways and a lawsuit ensued between them over the money. (Celebrity criminal trials need a good civil suit or two, just in case there is an acquittal in the criminal case.)

Next up was Bruce Cutler, fiery New Yorker, famous for defending late mob magnate, John Gotti. Cutler planned to split time between the trial and the filming of yet another "Judge" show, where Cutler dons the fake judicial robes to preside over a panel of celebrity jurors. Dr. Baden's wife was brought on to handle the forensic part of the case. An odd decision, since jurors could be left to question the objectivity of her husband, Dr. Michael Baden, whose testimony was key to the defense blood spatter theory.

Cutler took center stage in the opening argument. Unfortunately, immediately before opening statements, a ruling by the trial judge that he was limiting certain testimony that the defense had hoped to offer, appeared to fluster Cutler as he stumbled through his remarks. Confidence in Cutler eroded further as he struggled in an initial cross-examination and was berated by the judge. As the case wore on Cutler returned to the filming of his reality show, promising to return for the summations.

In the tradition of Michael Jackson, Spector would attend each day with a different style, usually one flamboyant wig or another. Most lawyers want their clients to dress down in a conservative fashion. Celebrities, on the other hand, ascribe to the freak show theory of trial dress.

Through all of this the panel of jurors listened and absorbed months of material. Lawyers pay tens of thousands of dollars for daily transcripts of the testimony. Teams of younger associates synopsize and catalogue the evidence for use in summation. Meanwhile, twelve people, selected largely at random from the community, are expected to absorb and understand often complex scientific points. No forensic issue in this case was conceded. Highly credentialed experts debated every issue. In the end the case was a no decision -- a mistrial.

In the scheme of criminal defense the next best thing to an acquittal is a hung jury. We tell our clients that no one has ever gone to prison on a mistrial. If the jury reports that it is deadlocked each state and the federal courts have a coercive jury instruction that is then given to them. It is coercive in that it challenges those in the minority to strongly reconsider the position of the majority. Judges abhor hung juries. Not that they believe that the jury did not honestly try to reach a verdict, but rather, it means the process starts all over again. Here, in a case that took nearly 6 months to complete, each side had hoped for a verdict ending it.

The only remedy for a deadlocked jury, once the court has failed after several attempts to get it to reconsider, is to declare a mistrial. The process must begin again. This time each side is armed with volumes of transcripts of the testimony. There will be no surprises. Lawyers will reconsider theories and methods of attack.

Many legal analysts believe that retrials largely favor the prosecution. My experience has been otherwise. Cross-examination of pivotal witnesses can be more powerful when armed with a transcript of their earlier testimony, particularly if they vary from it. Jurors are left to wonder why an earlier panel failed to convict on the same evidence.

Whatever refinements in strategy and approach each side adopts, the costs will be staggering. The average criminal murder defendant usually has one lawyer, most times a public defender, and not a dream team. Indigent defendants often have to fight to get the court to authorize experts for the defense. They don't have jury consultants and media advisors. Spector and the state of California have spent millions for a no decision, with millions more to be expended.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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