LOS ANGELES – After days of hearings, the judge in the Phil Spector murder trial declined Tuesday to issue sanctions against defense attorneys for being late in disclosing evidence, but warned that if he finds by trial's end the prosecution's case was harmed he will take action.
Superior Court Judge Larry Paul Fidler rejected a prosecution request to ban testimony by defense witnesses whose information was revealed to prosecutors later than allowed.
"If you obtain a conviction," he told prosecutors, "and I excluded any defense witness, that would be grounds for reversal. That is an extreme remedy."
Before trial's end he said he would consider telling jurors that the defense had wrongfully withheld evidence. But he said he would have to be convinced of a significant violation that harmed the prosecution case before he would do so.
"If the people have not been prejudiced, I'm not going to give it," he said."
Spector, 67, is charged with the Feb. 3, 2003, murder of Lana Clarkson, who was killed by a gunshot wound to the mouth during a visit to the legendary music producer's mansion. The defense maintains the 40-year-old actress shot herself.
Tuesday's hearing took place while the trial was in recess because of the prior commitment of a juror. It was to resume Wednesday.
Similar hearings also were held last week while the jury was in recess because of a defense attorney's illness.
Left unresolved was the mystery of a missing piece of fingernail from Clarkson's body that was the center of much discussion during the hearings. Fidler said he is still awaiting testimony from Dr. Henry Lee on that issue.
Lee, a world famous forensic expert, is working on a case in China. In absentia, he has become a lightning rod for controversy.
In one of several rulings, Fidler ordered that Lee write a report stating whether he conducted any experiments affecting the case. The judge referred to a Court TV interview on the trial's opening day in which Lee discussed experiments involving the velocity of blood spatter in gunshot killings.
"If Dr. Lee conducted an experiment involving blood spatter for this case, that should be in a report," said Fidler. "If he did something to arrive at the comments he made on television, this should be reduced to writing."
Deputy District Attorney Alan Jackson complained that Lee's comments caught him unaware.
"I finish my opening statement and later that afternoon I see Dr. Henry Lee plastered all over Court TV talking about certain opinions I have never heard of, not seen in notes or reports," Jackson said.
"The next morning, (defense attorney) Ms. Linda Kenney-Baden gets up to give her opening remarks and echoes Dr. Lee. And she takes me to task for misleading the jury," he said.
Jackson was irate as he argued that if he had known of Lee's conclusions he might have changed his opening remarks to the jury.
"He knew that when my butt was in the chair, I couldn't get up and take him to task for this," said Jackson. "The defense doesn't seem to give a hoot about their discovery obligations."
Discovery laws, which require both sides to reveal their evidence to the other, are designed to prevent trial by ambush. Both sides are supposed to be aware of the other's evidence and witnesses well in advance of trial.
Kenney-Baden said she called Lee for information before addressing the jury. But she added she believed what he told her regarding blood spatter was not the result of experiments done specifically for this case.
Jackson also complained about the defense producing what it called a "lost box" full of reports at the last minute.
"I don't believe any of these mistakes can be deemed to be mistakes," Jackson said. "They are deliberate attempts to prejudice this jury."
Defense lawyer Christopher Plourd said he believes the defense is not obligated to disclose materials they do not intend to use at trial. The prosecution pointed to the belated disclosure of 55 photographs taken by Lee at Spector's home.
The judge ordered that the defense turn over photographs taken by experts if the experts made them part of a report or relied upon them for an opinion. He also ordered the turnover of notes that an expert relied upon in reaching an opinion.
At one point, defense attorney Brad Brunon told the judge that evidence sometimes arises at the last minute, saying, "Stuff happens."
Fidler replied, "These violations -- there are too many of them. This whole box of reports. To just say that's how it is, well, that's not how it is. "