LET’S ALL JUST REFLECT A MOMENT SHALL WE?

SPECTOR ORAL ARGUMENTS TODAY: JUSTICE ALDRICH APPEARS HOSTILE TO SPECTOR APPEAL, KLINE SYMPATHETIC, KITCHING AN ENIGMA

Justice Aldrich of the three judge panel that will decide Spector appeal ***BREAKING NEWS***** Los Angeles, CA We asked a person attending the oral arguments in the Spector appeal this morning to email us with their impressions for the one hour hearing. Here are the highlights from our field report: Justice Aldrich took the lead in questioning by the three justice panel and appeared hostile to Spector’s grounds for appeal. According to our informant: “Justice Aldrich really pounded the appellate. He told Dennis Riordan that the cases cited in the appeal briefs didn't relate to this one.” Apparently, the major points focused on by the court were the Jaime Lintermoot and Judge Fidler testimony regarding the blood spatter, the Ewoldt case regarding the standards for admissibility of the testimony of the five women regarding prior gun brandishing incidents. Dennis Riordan was described a “passionate Presiding Justice Klein (who was appointed to the court of appeal by Jerry Brown in 1978) seemed the most sympathetic to Spector’s arguments that the testimony of the five women was prejudicial. According to our source at the hearing, Justice Kitching said very little. Our source also said:

“The AG brought up the Doctrine of Chances to which Dennis stated on rebuttal it was not admissible. He continued to point out that there was no evidence of forcing the gun, no gun in mouth, and no evidence of anger at Lana Clarkson this was in regard to Doctrine of Chances. The AG was arguing that it was only a matter of time that something like this would happen because according to these women this is what he did.”

The bottom line, according to our source:

Aldrich did ask the AG how the “doctrine of chances theory” differed from plain old character-propensity evidence, but “I would have to say based on what I observed today that Justice Aldrich is squarely on the side of the prosecution. Justice Klein though getting a little impatient with Dennis during the Lintermoot discussion, I guess she felt he was repetitive, did grill the AG on the 5 women and how highly prejudicial they were in the case and also the Doctrine of Chances. Justice Kitching said very little.

PHIL SPECTOR MAKES FINAL PLEA FOR NEW TRIAL ON MURDER CHARGE

Philip Spector confers with his appellate lawyer Dennis P. Riordan

***BREAKING***

Legendary music producer Phil Spector’s appeal from a Los Angeles murder conviction rendered in what many—including this blog—believe was a prejudicial trial atmosphere flowing from a parade of irrelevant prior paramours (who sold their sensational stories to the tabloids before testifying) and related prosecutorial misconduct—is still winding itself through the California Court of Appeal.

But Spector advanced another step closer to freedom yesterday with his filing of the final reply brief in the music great’s appeal.

We will have more on this later—we just obtained Phil Spector’s final plea minutes ago—but offer the brief up for you edification and comment.

--Blogonaut

UPDATE: 12-14-2010 at 1:52: pm:

We have now read through Spector's final reply and we are reminded of the Joe Lewis vs. Max Schmeling fight #2--it's one sided, and it's a complete route.

As initially reported here, and as the AG later conceded in a hastily filed "errata" filed days after our initial post concerning the AG brief pointing out some "rookie mistakes", the AG apparently delegated this appeal to an inexperienced lawyer, whose faulty analysis infected the People's brief from start to finish.

The People's Evidence Code analysis of the admission of Judge Fidler's testimony from trial #1 in trial #2 was particularly flawed, and we predict that it will result in a reversal of this wrongful conviction.

But that is not all. The People, through their fact-intensive "harmless error" analysis of the evidence (essentially, the argument that all the evidence favors a conviction, so Spector would have been convicted with or without the error complained of) apply the wrong standard of review.

While in many an appeal context the courts are required to accept the prosecution's interpretation of the trial facts (giving "deference" the the implied findings by the jury)--in analyzing whether or not alleged error by the trial court is "prejudicial", the deferential standard does not apply.

Rather, an appellate court is required in cases such as this to consider all of the evidence (including that favoring an acquittal) in assessing whether or not justice miscarried. This the AG failed to do.

Another costly, blunder!

Not only a brief that pays due deference to the written expression at its finest, this is a brief that not only sings--it takes full advantage of an AG brief riddled with legal and tactical errors.

This case is going to be reversed, we feel it.

Dennis Riordan and Charles Sevilla once again demonstrate that they are among the best of the best when it comes to appellate advocacy!

Holly crap--the brief is that good, the mistakes of the attorney general that breathtaking.

Wow! (Game, set, match Spector.)

Read Spector's Final Reply Brief filed yesterday in the Court of Appeal

AG FILES 160 PAGE RESPONSE BRIEF IN SPECTOR APPEAL

Spector appellate counsel Dennis Riordan with his client

An "anonymous" reader was kind enough to obtain and post on Scribed.com a copy of the Attorney General’s Respondent’s Brief ("RB") in the Spector murder verdict appeal and then anonymously post the link in the comments following our most recent prior Spector Appeal Watch post.

The brief is quite lengthy (160 pages) and we are extremely busy with civil litigation work at the moment, but as soon as we have the opportunity to read and analyze it, we will be posting our thoughts and impressions.

In the meantime, we are posting it now so interested persons may begin reading.

Feel free to post your thoughts (of whatever persuasion) about the brief in the comments. As always, all points of view are welcome here.

Pursuant to 47 U.S.C. Section 230(c)(1) neither Blogonaut nor its editor are responsible for any content authored by third parties, nor do we moderate or control the comments.

--Blogonaut

UPDATE—OUR VIEWS ON THE PROSECUTION’S RESPONSE TO SPECTOR’S FIRST GROUND FOR APPEAL

We have now read the AG response to Spector’s first argument on appeal—that the trial court erred when it admitted into evidence over Doron Weinberg’s objection a Court TV video tape of the trial court demonstrating with his own wrist where (allegedly) criminalist Jaime Lintemoot testified she saw blood splatter on the back of Clarkson’s writs—testimony that later formed the lynchpin for the pathologist’s change in testimony from trial number 1 (the physical evidence did not exclude suicide) to trial number 2 (suicide excluded).

Frankly we are underwhelmed by the Attorney General’s argument on this ground for appeal, namely waiver (because Doron Weinberg did not object on the correct ground when the Court TV videotape was first used in front of the jury), that the trial court’s statements and gestures on the video tape were not “hearsay”, that the trial court had the right to clarify the evidence and his gestures and statements were not “testimonial”, and that any error was harmless.

We note that when the Court TV video tape was first used by prosecutors (when they examined certain experts) the People MISREPRESENTED to the trial court and to Mr. Weinberg what segment of the prior trial the video tape depicted. Specifically, prosecutors falsely claimed then, and through the evidence phase of trial #2, that the video tape consisted of Jaime Lintemoot’s testimony to the jury in trial #1. In reality, however, the Court TV footage depicted Lintemoot’s testimony during an evidentiary hearing which was not a part of the trial testimony in trial #1, and which the jury in the first case never saw.

The People (in our view) cannot now complain of the lack of a contemporaneous objection on the ultimate grounds urged when they were misrepresenting to the trial court the nature of the videotape when it was first shown as trial testimony elicited in Spector's presence (and with a reason to cross-examine on the blood spatter point)--when in fact the videotape was of an evidentiary hearing outside the presence of the jury in trial #1 from which Spector's presence was excused and during which the blood spatter allegedly observed on the witnesses' hands was a tangential point at most. Indeed, the misrepresentation PRECLUDED a contemporaneous objection on confrontation grounds when the Court TV videotape was first injected into the trial proceedings by the People!

In addition, Doron Weinberg did object to the admission of the videotape into evidence on the same grounds urged on appeal BEFORE the tape was admitted into evidence, thereby preserving the objection. Had this objection not been overruled, prosecutors could not have shown the video to jurors at all during summation-let alone over and over again.

Second, the AG’s hearsay analysis is flawed, because the video did not depict Lintemoot’s trial testimony at any point, but rather her testimony at a hearing outside the presence of the jury in trial #1 being held on an unrelated issue. (Spector COULD NOT HAVE waived his presence for testimony given to the jury—especially since he never understood that the testimony from that hearing he never attended would ever be shown to a jury in his case.) Nor could the trial court’s gestures be construed as part of Lintemoot’s “adoptive admission” because a nonparty witness cannot make “admissions”.

(See Evidence Code Section 1221: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” Not "witness"; "party".)

Clearly this rookie mistake is going to cost the AG credibility points with the court of appeal; this was in no sense an "adoptive admission"--and no reasonable appellate attorney would argue that it was.

Third, Judge Fidler’s words and gestures were not simply in the nature of additional questions posed to Lintemoot at the hearing. Rather, in other parts of the videotape the court is clearly describing where Lintemoot was pointing BECAUSE THE COURT WAS THE ONLY ONE IN THE COURTROOM WHO HAD A CLEAR VIEW OF WHAT THE WITNESS WAS POINTING TO. Indeed, the trial court stated on the record that this was so, and the AG concedes the point based on its examination of the videotape. Clearly, the judge’s words and gestures were testimonial in nature, and described something that occurred at a prior hearing out of the presence of the jury in a prior trial that no one else in the courtroom had a clear view of.

But even if Judge Fidler's words and gestures simply supplied meaning to the witness' testimony (a theory inconsistent with the trial court's rationale for admitting the videotape into evidence), the AG also fails to grasp that Lintemoot's testimony at the prior evidentiary hearing was also hearsay in its entirety ("a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated").

Fourth, the error was not harmless for any of the reasons urged by the AG.

The AG speculates that the jury would have come to the same conclusion as did Judge Fidler on the video tape even though the back of Lintemoot’s hand is not visible on the videotape—which in any event assumes that there can be instances wherein a trial judges testifies to his own jury on a critical point and not result in a reversal---a dubious proposition for which they cite no authority.

And finally, the AG ignores the pivotal nature of the point discussed by Fidler on the video: The sole justification for the pathologist’s change of testimony from suicide cannot be ruled out (trial number 1) to suicide is excluded (trial number 2).

Not only did the point go to the heart of Spector’s sole defense, it was the ONLY difference between trial #1 (hung jury) and trial #2 (which resulted in a conviction). Moreover, even with this improper testimony by judge Fidler being admitted, the jury in trial #2 deliberated for nine days before it voted to convict--surly a sign of a case wherein the evidence was not so overwhelming that an error of such undeniable prejudice going to the heart of the case would be considered "harmless".

We also note that under the California statute (Evidence Code Section 703) it is an automatic mistrial for the trial judge to testify in his own trial over the objection of a party ("the judge shall declare a mistrial and order the action assigned for trial before another judge") and that all parties are entitled to advance warning and an opportunity to object out of the presence of the jury BEFORE the judge's testimony makes it into evidence. Not only was the defense blinded sided by the initial use of this video by the people to examine its experts, as noted above the prosecution continued to misrepresent to the court and to defense counsel that the video consisted of the witness' prior trial testimony to the jury in trial #1--thus precluding a contemporaneous objection by defense counsel on "confrontation" grounds (because unlike the hearing actually depicted on the video, Spector WAS present during the prior trial testimony, and believing that this was the video being shown, it would not have occurred to a reasonable defense attorney to make an objection on confrontation grounds at that point).

Under these circumstances (which include the lack of any advance warning under Section 703 that the prosecution intended to inject videotaped testimony by the trial court into the very trial over which he was presiding, compounded by the prosecutor's misrepresentation of the videotaped testimony as consisting of prior TRIAL TESTIMONY) it appears to us that the People's waiver argument is particularly disingenuous.

We realize that these issues seem technical to a layperson, but on a point highly relevant to an important trial issue (indeed, the only issue in dispute), any jury would tend to adopt the interpretation of the evidence advanced by the authority figure in the trial—which is why the prosecution showed the videotape and stills from it over and over again during closing argument.

Advantage: Spector.

SPECTOR MURDER APPEAL: COURT OF APPEAL EXTENDS DUE DATE FOR PROSECUTION BRIEF

Phillip Spector appellate counsel Dennis P. Riordan appears to consult a higher authority (Spector seated to Riordan’s right)

The California Court of Appeal for the Second Appellate District in Los Angeles today granted the request of the California Attorney General for more time to oppose music producer Phil Spector’s appeal from his 2009 conviction and life sentence arising out of the producer’s alleged second degree murder of failed actress-turned-cocktail hostess Lana Clarkson.

The attorney General represents the People of the State of California in most felony appeals arising out of the California Superior Court.

The new due date for the AG brief is August 9, 2010.

Further extensions in the briefing schedule are anticipated in light of the length of the trials (in each instance six months) and the substantial, multiple issues raised by Spector in his Opening Brief on Appeal.

Stay tuned here for the latest legal developments and legal analysis.

PHIL SPECTOR WRONGFUL DEATH CIVIL TRIAL GOES TO MEDIATION

Legal News Analysis

By Blogonaut

Several readers have emailed us asking for our views on news reports that the parties have agreed to mediate the civil wrongful death action filed by Lana Clarkson’s heirs in 2005.

According to news accounts both sides in the civil suit—which seeks money damages on behalf of Lana Clarkson’s heirs on the theory that the music producer caused her death—have agreed to mediate the dispute.

Mediation is a nonbinding form of informal dispute resolution where the parties agree to appear in front of a neutral party (who is either an attorney or a retired judge) who essentially guides formal discussions among the parties and attempts to help the parties reach a settlement agreement of the dispute. It is a nonbinding process, because the matter will not settle unless a mutual agreement is reached on the terms of a settlement that both sides signoff on.

So what are the advantages to the plaintiffs and to Phil Spector in mediating?

1. The litigation is bound to be expensive.

Although a Los Angeles County jury found the music producer guilty of the malice murder of Lana Clarkson last year, that conviction cannot be used or even mentioned in any civil trial unless and until it is affirmed on appeal, and it is looking more and more like the conviction is substantially likely to be reversed.

In addition, according to news reports, if the civil case has not settled by next October, the court will be setting a trial date—meaning that it is unlikely that the appeal will be resolved before the case gets to trial in any event.

Therefore, the same very expensive expert testimony that was presented during the criminal trial would have to be presented during the civil trial on the issue of suicide vs homicide.

2. The result of any civil trial is uncertain for both sides.

The prior alleged “victim” testimony presented to the jury in the criminal case might not be admissible in the civil trial—and without it who knows what the verdict on liability will be?

In addition, wrongful death damages consist of two components: The lost earning potential of the decedent and monetary compensation for the lost care comfort and companionship of the lost loved one to her heirs. The first component in this case is negligible and the second very hard to value. Typically, wrongful death awards without a substantial lost earnings potential are in the hundreds of thousands of dollars and not millions.

But how about punitive damages? While punitive damages are possible, unlike the OJ wrongful death case where you had two victims with their throats cut (in other words an undeniably cold-blooded, intentional and premeditated act) the basis for punitive damages in the civil case here is far from certain.

In addition, since OJ the United States Supreme Court has held that in most cases, a ratio of punitive damages to compensatory damages greater than 1:1 will be overturned as unconstitutional. Therefore, with compensatory damages expected in the hundreds of thousands—and not millions—of dollars, there is little likelihood of a ten million or twenty million award of punitive damages in this case. But unlikely does not mean impossible, and there is great uncertainty for Phil Spector in taking the civil case to trial as well.

General damages, such as for lost care, comfort, and companionship, are largely up to the jury to fill in the blank on the jury form with little guidance from the court, and will rarely be overturned on appeal unless clearly excessive.

3. Unless the case settles, it could take years for Donna Clarkson to see any money.

While the case is expected to go to verdict sometime in 2011, even if the jury awards substantial compensatory and punitive damages to Donna Clarkson, that does not mean Phil Spector has to write her a check.

Assuming that Phil Spector has the financial ability to post a bond in the amount of 1.5 times the judgment, the judgment will be stayed during an appeal process that could last anywhere from a minimum of two years (until 2014) or, if the case goes all of the way to the United States Supreme Court on the issue of punitive damages, many years.

Remember, some of the victims of the Exon Valdez oil spill are just getting their last payment and a full 1/3 of the Exon Valdez plaintiffs died before receiving ten cents of their award—because the case was tied up in the appellate courts for years.

Therefore, it makes a lot of sense for both sides of this civil case to not only mediate their differences, but to work hard at a mutually agreeable settlement.

That does not mean a settlement that will make both sides happy; there is no such thing. Any settlement, by definition, requires true compromise on both sides.

So, dear readers, you now know what we think of the reported mediation in the Phil Spector wrongful death case, what do you think?

All comments (with one notable exception) are welcome.

SPECTOR APPEAL: TRIAL JUDGE IMPROPERLY TESTIFIED ON VIDEO TAPE

Phil Spector trial judge Larry Fidler

Constitutional prohibition on trial judge giving testimony threatens to derail conviction

By Blogonaut

March 11, 2010


Phillip Spector’s Opening Brief on Appeal (“AOB”) contains a very surprising issue, and one that if found by the court of appeal to be error is almost certain to result in a reversal and remand for a new trial. Here is the story:

At the first trial the prosecution’s criminalist Lynn Herold testified (and later reiterated in a December, 2008 statement) that after 6 years of investigation, the physical evidence could not exclude the possibility that Lana Clarkson committed suicide.

But by the time the state criminalist testified in trial #2 she had dramatically changed that opinion, stating that blood spatter allegedly noted by rookie evidence technician Jamie Lintemoot on the back of Clarkson’s hand—“evidence” that the criminalist was allegedly unaware of until she testified in trial #2 and that Lintemoot never documented —persuaded the criminalist that suicide was impossible.

Understandably, defense counsel Doron Weinberg vigorously cross-examined Lintemoot on this alleged blood spatter evidence, because Lintemoot’s report was so vague on where the blood was seen on Clarkson’s hand that she was called into a meeting with the coroner (who did not see the blood) and criticized about the inadequate documentation.

To counter Weinberg’s implication based on his reading aloud from Lintemoot’s prior trial testimony (in trial #1) that the blood was not on the back of Clarkson’s hand at all, the prosecution was allowed to introduce a Court TV video tape of Lintemoot’s prior testimony pointing to areas on her hand where she claims to have seen blood on Clarkson’s hand.

Prosecutor Truc Do falsely represented to the court (and falsely told the jury during her part of the closing argument when the video was again shown to the jury several times) that the Lintemoot video taped testimony took place in front of the jury during trial #1, and therfore explaned the very prior testimony that Doron Weinberg had called into question by showing Lintemoot's clarifying gestures (allegedly) while giving that prior testimony.

But the prior testimony by Lintemoot was not part of the prior trial evidence at all, instead taking place out of the jury's presence during a hearing related to whether one of Spector’s lawyers in trial #1 could be compelled by the prosecution to testify that she saw Dr. Henry Lee remove an object from the crime scene during a defense visit. In other words, Lintemoot's gestures on the video tape did not explain the prior testimony that Weinberg read from at all. The video tape was made at an entirely different hearing.

But the error is far worse than prosecutor Truc Do's misrepresentation of when the testimony was given (and therefore whether the video tape was even relevant).

Trial Judge Larry Fidler is depicted in the video tape as well, describing for the record the areas on Lintemoot’s hand where Judge Fidler claimed he saw Lintemoot pointing to while on the witness stand to show where the blood was on Clarkson’s hand (which only the judge could see clearly at the hearing).

In other words, the video tape showed the very judge who was presiding over the retrial trial giving what amounted to video taped testimony about where on Clarkson’s hand Lintemoot claimed during the first trial to have seen blood splatter—blood spatter that was never seen by anyone else and that was not described as to precise location in Lintemoot’s report.

Blood spatter that was so crucial to the case it caused the state’s criminalist Lynn Herold to change her testimony during the first trial from “suicide cannot be ruled out” to suicide is “impossible”.

In addition, prosecutor Truc Do admitted during her closing argument in trial #2 that Lintemoot’s testimony regarding blood spatter evidence was the most important in the case, stating that this “…this was the single piece of evidence that [the defense] cannot explain away. It is absolutely [inconsistent] with Lana Clarkson holding the gun.”

All of this is very problematic for the prosecution because as a matter of federal constitutional law (as well as California statute) a trial judge may not testify to the jury in the very matter that he is presiding over.

But the prosecution showed the video tape of Judge Fidler explaining exactly where he saw Lintemoot testify she saw blood spatter on Clarkson’s hands to the jury several times during its summation to bolster Lintemoot’s undocumented assertion during trial #2 that she saw blood on the back of Clarkson’s hands—which in turn was the sole foundation for criminalist Lynn Herold’s change in testimony in trial #2—for the first time testifying that suicide was impossible.

The bottom line?

If the court of appeal concludes that showing Spector’s retrial jury the video of Judge’s Fidler describing where on Clarkson’s hand Lintemoot allegedly saw blood spatter was the equivalent of Judge Fidler “testifying” in trial #2—and under the case law we do not see any way around that conclusion—then Spector’s conviction must be reversed unless the error was “harmless” as a matter of law.

But how can the error be harmless if prosecutor Truc Do has already told the jury during her summation that the location of the Lintemoot observed (but undocumented) blood splatter was the most important evidence in the case as well as “the single piece of evidence that [the defense] cannot explain away”?

And how can this error be harmless if Lintemoot’s undocumented testimony that she saw blood spatter on Clarkson’s had was the sole reason why the state’s criminalist changed her testimony, claiming for the first time in trial #2 that a Clarkson suicide could not have happened?

Stay tuned, as we intend over the coming days to highlight the other arguments on appeal Spector makes in his AOB.

However, we believe that this issue—standing alone—is sufficient to virtually guarantee Phil Spector a new trial.

LONG AWAITED PHIL SPECTOR OPENING BRIEF ON APPEAL FILED

Appellate attorney Dennis P. Riordan confers with his client

*****BREAKING NEWS*****

March 10, 2010

Imprisoned music producer Phillip Spector has just filed his long awaited Opening Brief on Appeal (“AOB”)—all 164 pages of it!

This brief is the foundation for the music producer’s bid for a reversal of his second degree murder conviction and for a new trial.

We are reading and analyzing Spector’s AOB as we speak, and we will be posting our analysis early next week.

Many thanks to top notch Phillip Spector appellate counsel Dennis P. Riordan, who was kind enough to provide us with an electronic copy of the AOB for our review. (It is always a treat to read a brief filed by the venerable Riordan & Horgan.)

We note from the cover page of the AOB that Mr. Riordan’s co-counsel in the matter is famed criminal appellate attorney Chuck Savilla of San Diego, California.

Now that is an appellate dream team!

Stay tuned, because from here on out it gets very interesting.

PHIL SPECTOR SON SAYS HOW HE FEELS ABOUT RACHELLE, BLOGONAUT

We have received a comment from “GP Spector”, who we believe to be Phil Spector’s son Gary Phillip Spector. (Gary has posted elsewhere as "GP Spector" in the past, see e.g., this E-online post.)

You can read our response, here . (Scroll down.)

GP Spector said...

I would like to say, I have never really been to this site though a few have mentioned it to me. Now that I've been here, I was surprised at all the "valid" legal information regarding my father's case, that has been discussed.

What impressed me the most, for the most part, is the mostly neutral position of Blogonaut towards my father and his case. I was impressed that he did his best to hold to the facts of the case in almost all discussions.

I too have done the same thing during the entire Trial period and there were those (I saw one seems to be a repeat offender here ;-) ) has accused me of being against my own father just because I would not blindly support him, just because he is my father. I chose to take a purely neutral position during the Trial so that I could objectively listen to both sides to come to my own conclusion.

From what I observed, I was not in any way impressed with any of the Defense's tactics or the eggspurts that they chose to use use, during either Trial.

I was very impressed with how well the Prosecution presented their case and their seemingly credible witnesses.

I just find it very odd that it is his wife, that has chosen the past few days, to have published on the web, no less than 5 UK interviews stating how my twin brother and I have brought more pain to our father (than apparently this case or his prison time), by testifying against our own father in Court. When the fact is, I was never even in the Courtroom, let alone California at anytime while my father was in Court and my twin, though he was there as much as he could be, also never testified against our father.

As much as it hurts me that my father is in prison, I could find no fault with the legal system, the Judge, Jury or the Posecution's case.

As much as I do not like what has happened, I do not see any
chance of winning an Appeal with what I am reading from his wife, in regards to what she claims to be "forensic evidence". Every last piece of evidence she claims, had already been proven inaccurate during the trial.

September 10, 2009 1:25 AM

PHILLIP SPECTOR APPEAL UPDATE: SPECTOR REQUESTS EXTENSION TO BRIEF APPEAL

**BREAKING**

September 9, 2009

Los Angeles, California

Phillip Spector’s lawyer on appeal, the venerable Dennis P. Riordan of San Francisco, has just filed with the California Court of Appeal for the Second Appellate District a request that the court extend the music producer’s time to file his opening brief on appeal “30 days from the ruling on appellant’s motion to augment the record on appeal.”

We previously posted that on August 8, 2009, Riordan filed a motion to “augment” (supplement) the record on appeal previously transmitted by the Los Angeles Superior Court to the court of appeal July 7, 2009. The “motion to augment,” which is an entirely routine house keeping measure to insure that all parts of the trial court record that Spector’s counsel needs to refer to in the all important factual record provided to the court of appeal, is still pending and awaiting decision.

Such motions, while routine, are nevertheless important, because a criminal appeal in California is not an opportunity to retry the case; the court of appeal may not reweigh the evidence or the credibility of the trial witnesses.

In addition, the factual contentions made by the parties to an appeal must be set forth in the record on appeal (consisting of the transcript of oral proceedings at trial (the so called “reporter’s transcript”) and the written pleadings filed by the attorneys for both sides in the trial court + any relevant orders issued by the trial court (the so called “clerk’s transcript”).

As an appellate attorney might say, “If it is not in the trial court record, it does not exist”.

Indeed, whenever the party to an appeal sets forth a fact in his or her brief, it must be supported by a page citation to the official record on appeal or at best the factual assertion will be disregarded or in egregious cases the court might strike the entire brief.

In addition, any claims of error by the trial court in respect to the ruling on motions to limit or exclude evidence (or other motions made during or after trial-such as a request for post conviction bail) must be supported by producing the transcript of the hearing on the motion, all of the papers filled for and against the motion, as well as any written orders by the trial court.

Bottom line: Spector’s filing of his opening brief on appeal + any motion for release from custody pending appeal is on hold until the request for extension (and probably the motion to augment the record as well) is decided.

Stay tuned here for the latest development in the Phillip Spector appeal.

PHILLIP SPECTOR APPEAL UPDATE: RECORD ON APPEAL FILED

On July 27, 2009, the Los Angeles County Superior Court Clerk and Court Reporter filed the official trial court record on appeal—triggering a due date of September 9, 2009 for the music producer’s appellate counsel to file his opening brief on appeal.

The case has been assigned to Division Three of the Second Appellate District; meaning that three of the following judges will most likely hear the appeal:

Presiding Justice Joan D. Klein
Associate Justice H. Walter Croskey
Associate Justice Patti S. Kitching
Associate Justice Richard D. Aldrich

The three judges to whom the case has been assigned is not publicly known at this time.

More later.

PHILLIP SPECTOR APPEAL WATCH

Phillip Spector at counsel table with his appellate attorney Dennis Riordan

Many Blogonaut readers have asked some very intelligent questions over the last few weeks following music legend Phillip Spector’s sentencing on May 29, 2009, on second degree murder charges, ranging from where will he be housed within the prison system to what are the chances of his being released on bail pending appeal, to does he go free if he wins the appeal.

A coin dealer was the last to post the question: How could this not have been viewed as an accident and why was Spector not offered a plea bargain through which he would be out of prison by now?

In view of the expressed interest in the Spector appeal from both sides of the courtroom gallery, we will be closely motoring the status of the appeal in People vs. Phillip Spector, California Court of Appeal No. B216425, and relating to you any and all developments here as soon as they happen--including an in depth analysis of the augments on appeal, and full coverage of Spector's highly anticipated motion for bail pending appeal.

As of today, June 25, 2009, the appeal is the infancy of a minimum one and a half to two years (or more) process.

But here is the time line to date:

Trial Court Judgment Date (sentencing): 05/29/2009

Noticed of appeal Notice of appeal lodged/received by Court of Appeal: 06/01/2009

Due date for lodging the record on appeal (Court File/TR-Transcript): 07/20/2009

Once the record on appeal is filed, the California Court of Appeal for the Second Appellate District (in lawyer parlance, the CA/2) will notify Phillip Spector appellate counsel
Dennis P. Riordan that he has 40 days to file Spector’s opening brief on appeal.

It is common, especially in view of the anticipated gargantuan size of the trial court record following a six month retrial with many written motions, orders, and rulings), for that 40 days to be extended at least 30 days, maybe even several times.

Spector’s opening brief on appeal will, however, frame the issues that he is raising on appeal, by listing them and providing both legal and factual support for his reasons that the trial court erred, justice miscarried, and that he should be afforded a new trial.

From what we know about the proceedings in the lower court, we view Spector’s chances on appeal to be excellent—with the wild card being will he be released on bail pending appeal?

Stay tuned here for in-depth coverage and analysis of this appeal as it progresses.
.
In the meantime, if you write us at the upper left hand contact link, we will try to incorporate your questions and our answers, based on our best impressions as a California lawyer.
.
Please keep in mind that we are not privy to defense or prosecution strategy on appeal, and are not offering legal advice to the parties or their family members--just our journalistic take and comment based on the information available.