My rebuttal to US Magistrate Paul Abrams's report recommending denial of Phil Spector's appeal to the District Court:
The report opens with the "Statement of Facts", but it is just a recital of the Calfornia Court of Appeals decision. This recital is heavily weighted on the side of the prosecution; for example, it cites the prosecution's version of the five women who testified about supposed gun incidents, but does not even mention the defense rebuttal to their testimony, nor Judge Fidler's refusal to allow certain key defense witnesses to take the stand (such as Jody Gibson, et al), and for cutting off Nicole Spector's character witness testimony as being irrelevant, thus indicating a double standard.
With respect to the cited Supreme Court decision of 1996, (in: IV "Standard of Review") which "places a new constraint on federal habeas corpus appeals", that decision has not impeded District Courts from recently freeing several innocent people who had been convicted of crimes in State court and who had lost State court appeals and had been imprisoned for years. Therefore it is really not a "new" constraint. Also, the standard of "unreasonable" is subjective, and evidently depends upon the criteria of the judge in the appeal case. For every case that Magistrate Abrams cited as the accepted standard for "unreasonable", the defense could show many other cases applying different criteria.
Furthermore, it appears to me that the phrase used in the LIndh case (pg. 7) -- "state court decisions be given the benefit of the doubt" -- is taken out of context and elevated to a much higher governing principle than was intended in that case. The fact is that in all of the cases in which a District Court granted a habeas appeal the judge was in fact overruling a state court decision and definitely did not give the state court decision the benefit of the doubt. Similarly, the issue of whether the conviction was "merely erroneous" is not the substance of this habeas appeal -- the issue is due process of law in all of its aspects during the second trial. In addition, the defense points to precedents involving criminal convictions, not just in civil suits, and the precedents cited in criminal cases are more relevant to this case than those cited from civil court decisions.
With respect to the AEDPA's deferential standard, if every District Court applied Magistrate Abrams's defintion of the deferential standard, no state court judgment would ever be overturned. But many are overturned, thus indicating that they applied criteria different from this magistrate's criteria.
On page 9, lines 1 - 5, this report does criticize the California Court of Appeal for not accurately stating the petitioner's description of prosecutorial misconduct, and addresses that issue on the merits (as he views them).. Similarly, beginning on pg. 16, (Additional Relevant Facts), this report takes note of many important facts which were not included in the California Court of Appeal's decision. But by terminating part 2 (pg. 19) with the prosecutor's verbatim version of the facts without an equal verbatim summation of the defense's rebuttal of said facts, indicates at the very least a lack of "equal time" if not a preconceived bias in favor of the prosecution's version.
With regards, to the section "Right to an Impartial Judge" (pg. 19), this report cites Quercia, and especially the phrase: that the judge must "make it clear to the jury that all matters of fact are submitted" to the jury for its determination. However, I do not recall Judge Fidler specifically telling the jury that his own testimony/"clarification" was submitted to the jury for its own independent evaluation. Nor did the prosecution's closing statement to the jury qualify the inclusion of the judge's testimony by saying that the judge had to instruct the jury to make an independent determination, simply because the judge never made such a statement to the jury during the trial. Therefore not only did Judge Fidler disobey the ruling in Quercia, the prosecution multiplied the damage in its closing statement. This is precisely the situation which the 9th Circuit Court forbade in US vs. Laurins (cited on pg. 20). However, Magistrate Abrams's
report incorrectly applies the Quercia doctrine in this case, because the Quercia judge accused a witness of "lying", but that did not happen in the Spector case. The defense could demonstrate that the utilization of the Quercia principle in order to justify Judge Fidler's actions is an apples-and-oranges comparison.
Similarly, on pg. 22 this report utilizes the Jaynes case to demonstate how a judge is permitted to "comment" on evidence. However, the Jaynes case judge's commentary was immediately followed by an explicit statement to the jury, consistent with Quercia, that they were free to make an independent evaluation of the evidence -- which Judge Fidler did not do, and neither did the prosecution's closing statement which repeated the judge's opinion on the evidence, and in fact the prosecution urged the jury to believe the judge.
Furthermore, the Jaynes evidence was about forged checks. However, in the 2nd Spector trial, the issue in question was Judge Fidler's description of Jamie Lintemoot's testimony in the 1st trial. That is, Judge Fidler was speaking as an "eyewitness" -- he did not comment on physical evidence but was really trying to re-enact what he recalled Lintemoot had been pointing to on her hand or wrist. Therefore Judge Fidler became a witness in the case without having been put on the list of witnesses nor subject to cross-examination. Judge Fidler's testimony inherently conflicted with his role as judge in the case, which in itself should be grounds for a mistrial. In addition, by utilizing videos and stills showing the judge's involvement as a witness actually compounded the damage. Therefore this report's conclusions on pg. 26 -- that no jury instruction was necessary, and that Judge Fidler was not a witness -- are not supported by the facts in this case.
With regards to section "b. Confrontation Clause" (pg. 26), first of all, the California court of appeal decision cited on pg. 27 is not binding on the District Court. But more importantly, Magistrate Abrams's claim on pg. 27 that Judge Fidler's statements "were not directed at any contested fact, nor did they involve facts underlying the actual crime for which petitioner stood trial" indicates a total lack of understanding of the issues contested at the trial. The defense could show pages and pages of transcripts of trial argument and testimony dealing precisely with the "contested facts" which were forensic evidence and the interpretation of that evidence.
Magistrate Abrams's reveals even more of his lack of familiarity with the trial by stating on pg. 27 that the petitioner "had an opportunity to contest the trial judge's observations". The defense in fact could point to numerous objections and motions for a mistrial, but Judge Fidler overruled them. Furthermore, this report fails to recognize that it was procedurally impossible for the defense to have called Judge Fidler to the stand as a witness and cross-examine him. Therefore Judge Fidler's testimony, by being immune from cross-examination, became the prosecution's only evidence or testimony which the defense could not dispute. Every other piece of forensic evidence was disputed. Therefore the jury in the 2nd trial saw the balance of evidence weighted in favor of the prosecution, whereas in the 1st trial, with exactly the same evidence except for Judge Fidler's testimony, the jury could not reach a unanimous decision.
In "Grounds for Prosecutorial Misconduct" (pg. 29), Magistrate Abrams extends his erroneous conclusion about Judge Fidler's testimony to reject the petitioner's claims for relief on the grounds of prosecutorial misconduct. But with a correct understanding of the 2nd trial, it would become clear that the prosecution utilized Judge Fidler's improper testimony as the key element of its whole case.
Regarding the Prosecution's Attacks on the Integrity of the defense (starting on pg.33), this report, just like the prosecutor Truc Do, attacks the defense for paying defense witnesses, as if this was the first time in history that a defense had ever paid experts to testify. But this, in fact, goes on in every trial, just as the prosecution pays its experts to testify. And it should be noted that press reports stated that the prosecution of Phil Spector spent $30 million of the taxpayers' money, several times more than what Spector was reported to have spent on his defense. Therefore the prosecution was unjustly attacking the defense's integrity.
Prosecutor Truc Do's analogy to the shifting sand dunes in Vietnam, illustrating how she alleged that the defense was "shifting the truth", should have been ruled irrelevant and stricken from the record, because none of the jurors had ever seen those shifting sand dunes in Vietnam, and therefore it was a rhetorical embellishment which contributed to her unjustified assault on the integrity of the defense.
All of the above prosecutorial attacks on the integrity of the defense must therefore be seen as "arguments calculated to arouse the passions or prejudices of the jury" just as this report cites the Viereck decision (pg.38), even though this report draws the opposite conclusion. Granted, there have been many cases in which prosecutors were even more abusive than in this case (as cited in this report), but that does not mean that the abuses in this case were harmless, because the abuses were easily understood by the jurors, and even easier to understand than forensic science, and hence the impact was felt very clearly.
Therefore when considering all of the aforementioned, the 9th Circuit Court should rule in favor of Phil Spector's habeas corpus appeal.
