Lana Clarkson's Self-Inflicted Gun Shot Wound

1. If, as you speculate (because none of us were on the jury) Spector’s out-of-court admission to Adriano de Souza was the reason he was convicted, what does the state have to lose through a retrial excluding evidence of Spector's past bad behavior?

2. Why is it that you believe admitting evidence that Spector told a security guard at a Christmas party 10 years ago that all women deserved a bullet in their heads was properly admitted as a generic threat and that evidence that Spector got drunk and menaced women with guns 30, 20, and ten years before Lana Clarkson's killing were properly admitted notwithstanding the Evidence Code Section 1101 prohibition from presenting character evidence to show a propensity to commit the crime?

As to the decade old statement, how is what women "deserve" a statement of intention to actually shoot all women in the head? If it was not, it was not properly admitted as a “generic threat”.

As to the "bad acts":

First, all doubts about admitting this evidence must be resolved in Spector's favor.

Second, the list of PERMISSIBLE uses of bad acts under 1101 includes:

1. To show identity (who did the shooting); 2. To show intent; 3. to show the lack of accident or mistake; 4. to show motive.

To use bad acts to show identity--who done it--a connection between the aspects of the prior acts and the charged crime must be established without any reliance on the 1101 evidence itself that is so strong it meets the "Ewoldt test". But Judge Fidler ruled the Ewoldt test was not met, and he refused to allow the bad acts to show identity.

But here is the problem: Fidler struck the word "identity" from the instruction and substituted that the bad acts could be used to show that Spector was the person who was holding the gun when it discharged, in other words, different wording but same use--to show "who done it". This is a distinction without a difference. It is still using the bad acts to show identity.

But not so fast you say. The evidence was also admissible under these other theories (2,3 and 4), so the jury properly heard the evidence anyway, right?

Wrong.

Not only was "intent" or "mistake" or "lack of accident" not an issue in case--because the prosecution's second degree murder theory was "implied malice" (once Spector was shown to have put the gun in her mouth, no intent or lack of accident was required AND the admissibility rules do not allow bad acts to be used to show a defendants state of mind at the time of the crime (intent, motive, etc.) unless the fact that the defendant was the shooter is not disputed in the trial.

This is because using bad acts to infer intent REQUIRES AN ASSUMPTION that the defendant is the guy who did it.

Therefore, unless it was agreed by the defense that Spector was the shooter, and the only argument boiled down to Spector's thinking when he did it (e.g., was it intentional or an accident), it was not permitted to use the bad acts to prove issues 2, 3, or 4 UNLESS the stringent "Ewoldt test" was met.

But Judge Fidler MADE A FACTUAL FINDING that the Ewoldt test was NOT met, and issues 2 and 3 were not a factor in the case under implied malice.

Therefore, neither the "what women deserve" comment or the bad acts from 30, 20, and ten years earlier should have been allowed into evidence.

But what about your argument that the jury would have convicted anyway?

This is belied by the facts that the prosecution gave the evidence so much weight in its closing argument. They did not mention it in passing. They compared each victim to the cylinders of a gun, click, click, click, click, click--Lana got the sixth cylinder with the bullet, bang. They argued Spector was a murder waiting to happen. And that Lana's killing was essentially inevitable once she got into that car.

So, can we really say for sure that Spector would have been convicted based on the testimony of de Souza, his suspicious behavior that night, and the forensics--without ANY reference any bad behavior by Spector before the night in question?

The first jury hung.

The second jury deliberated 9 days.

Clearly, both juries thought it was a close case.

Therefore, I am curious to know why you believe that admitting the "bad acts" evidence was not error and why you would be against simply allowing Spector another trial without this evidence--especially if de Souza is enough?

PS: I don't know where the "thumbs down" came from--I did not put it there.

Last edited by S.Pellegrino; 03-18-2011 at 11:07 AM.

http://boards.insessiontrials.com/showthread.php?377972-Phillip-spector-legal-thread-wrongful-death-case-pending-murder-appeal