Wall of Silence?: Defense Counsel In Phil Spector Retrial Moves To Exclude Testimony From Women About His Proclivity To Threaten Women With Guns

Six was apparently one too many for defense counsel in the upcoming retrial of Phil Spector for the murder of actress Lana Clarkson.  The first trial of Spector, who invented the Wall of Sound, worked with artists as varied as Ike and Tina Turner and the Ramones, and was married to one of my mom's favortes, Ronnie Spector, ended in a hung jury last year.  The reason for the indecision was apparently that jurors couldn't decide whether Spector shot Clarkson or whether the gunshot wound causing her death was self-inflicted.  This was despite the fact that Spector appeared in court with hair that would make Art Garfunkel blush and the testimony of five women who testified that Spector had a proclivity for threatening women with guns.

During the retrial, the prosecution might not have the benefit of either.  That's because earlier this week, prosecutors disclosed their intention to call a sixth woman to testify about Spector's alleged proclivity, prompting defense counsel the next day to move to exclude the testimony of all six women.  And, without having followed the specifics of the first trial too closely, my immediate reaction was to wonder why they didn't make a similar motion in the first trial.

Pursuant to California Code of Evidence Section 1101(a), "[e]xcept as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."  In other words, evidence that Spector threatened other women with guns would be inadmissible to prove that he had a propensity to threaten women with guns and that he likely acted in conformity with that propensity by threatening Clarkson with a gun.  Because the probative value of such evidence relies on the aphorism, "Once a criminal, always a criminal," California, like other states, proscribes its introduction into evidence.

California Code of Evidence Section 1101(b), however, indicates that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."

Under this section and the similar Federal Rule of Evidence 404(b) and state counterparts, courts allow for the admission of a pattern of prior crimes to prove modus operandi, common plan or scheme, or signature crime.  The theory behind such evidence is that it is being used, not to prove propensity.conformity, but to prove that nobody else besides the defendant could have committed the crime at issue. See, e.g., United States v. Powers, 59 F.3d 1460, 1474 n.2 (4th Cir. 1995).  So, for instance, evidence might indicate that two defendants had a pattern of crimes in which they stuffed towels in sinks and left them running after committing burglaries.  Or, a defendant might have a pattern of killing homeless individuals and tying red ribbons around the wrists.  Or, a defendant might have a pattern of killing victims, draining their bodies of blood, and neatly chopping their bodies into pieces.

All three of these examples would be the types of distinctive "patterns" that would allow for application of a modus operandi theory of admissibility, and even courts taking a more liberal approach would require substantial similarity among each of the crimes sought to be admitted.  And it seems to me that defense counsel has a compelling argument against admissibility beyond the fact that, unfortunately, threatening violence against women is not especially unique or distinctive.  And that is that with regard to the earlier incidents with other women, "None involved an act similar to the one that the state was attempting to prove here, i.e. that Spector fired a gun."

I simply don't see how the prosecution can argue that the allegations of the other women prove a modus operandi on the part of Spector when none of their allegations claimed that Spector committed the act at issue in his case:  shooting a gun and committing murder.  And, precedent from across the country also wouldn't seem to support admissibility either. See, e.g., Commonwealth v. Vedam, 502 A.2d 1383 (Pa. Super. 1985).

-CM