LOS ANGELES – The judge in Phil Spector's murder trial told a former attorney for the record producer Thursday that she will be held in contempt if she refuses to testify about seeing a defense forensic expert handling possible evidence from the death scene that was never given to the prosecution.
In a hearing without the jury present, Superior Court Judge Larry Paul Fidler said he wanted to avoid the extreme action of holding attorney Sara Caplan in contempt but saw no recourse in the law.
The threat triggered immediate private talks between the defense and prosecution, and then a meeting in the judge's chambers. When Fidler emerged, he said the parties were trying to reach a stipulation -- usually an agreement in which a statement is read to the jury -- but it was not certain that would happen.
"If it is arrived at it will prevent Ms. Caplan from being held in contempt," the judge said before deferring the issue until Monday and ordering the trial to resume with other witnesses.
The deferral postponed his plan to place Caplan under oath without the jury present to hear her formal refusal before ruling her in contempt and ordering her jailed to coerce her testimony. Fidler, however, had already said he would immediately stay the order so that it could proceed directly to an appellate court.
Fidler said it will never be known what the item was that Caplan described in an earlier hearing, but that the jury was entitled to know that something was allegedly placed in a vial by famed forensic expert Henry Lee and was never provided to the prosecution.
"I do not have the right to usurp the jury's findings on credibility," the judge said, noting that he cannot simply tell the jurors that Lee's credibility is in question.
Lee has denied to the court that he ever had such an item but the judge has made a formal finding that Lee did remove something from the scene. If Lee testifies for the defense, the prosecution would want to call Caplan to impeach his credibility.
"As distasteful as it is, she (Caplan) has an obligation to testify. I'm not happy being placed in this position," the judge said.
The prosecution believes the object could be a missing fingernail from actress Lana Clarkson, who was shot at Spector's suburban mansion on Feb. 3, 2003. The defense claims Clarkson shot herself.
Caplan, a member of Spector's original defense team, testified in the earlier hearing without the jury present that she saw Lee pick up a small white object when the team inspected the death scene after sheriff's investigators were through with it.
The defense argued that Caplan should not be ordered to testify on grounds of attorney-client privilege and of broader ethical responsibility to a client.
But the judge, obviously troubled by the action against the highly regarded criminal defense attorney, said that precedent clearly showed that attorney-client privilege did not apply to the issue of destruction of evidence. But he said he wanted his ruling tested by an appeals court.
"You're not going to jail today," he reassured Caplan, who wiped her eyes with a handkerchief after personally imploring the judge not to proceed.
She claimed she had been misquoted by the prosecution about her testimony.
"I don't know what I saw. I don't know that it was removed from the premises. I don't remember where it was," she said.
But the judge said, "Ms. Caplan has clearly testified she observed Dr. Lee put something in a vial. It was white, hard, with rough edges. You cannot reconcile Dr. Lee's testimony and Ms. Caplan's testimony."
Of the item, Fidler said, "It could have been of great value. Now we will never know. The people have been prevented from putting on their entire case. The jury is entitled to know that."
Spector, 67, rose to fame in the 1960s with a revolutionary recording technique known as the "Wall of Sound."