I’ve lost track of time, as we all have.
—Defense lawyer Roger Rosen
PHIL SPECTOR ATTORNEY Linda Kenney Baden returned to court last week after a three-week illness. She looked good, appearing younger, relaxed and a little lighter than when she left. Even the unruly Baden split ends had been quelled. Bruce Cutler also returned after an even lengthier absence — to announce his withdrawal from the case. On Monday, when the trial’s testimony finally ended, Cutler’s short exit statement was a long-overdue admission of what had been obvious since May 7, when Spector permanently benched his high-profile lawyer following a disastrous cross-examination of witness Dianne Ogden. (After Ogden had testified that Spector had attempted to rape her, Cutler loudly and derisively dismissed the petite mother’s charges, only to be reprimanded by Judge Larry Paul Fidler.)
Before Cutler’s exit — the New York lawyer called it quits after Spector told him he had someone else in mind to present the defense’s closing arguments to the jury — he and Baden must have felt like two Rip Van Winkles as they rejoined a trial dominated in its last days by eye-glazing arguments over the microscopic differences between bullet diameters, the widths of spinal cords and how much of a spinal cord not completely obliterated by a .38-caliber slug could possibly survive to send impulses to a corpse’s heart and lungs. The corpse in question, of course, belonged to Lana Clarkson, who, in 2003, came to Spector’s home for a nightcap and left in a body bag.
How did it come to this? Four months ago lawyers with crisp silk kerchiefs tucked into tailored chalk stripes promised an unambiguous narrative of guns, booze and madness that would condemn or redeem Spector. Toward its end, however, the trial became lost in the trackless wastes of esoteric expert testimony, as well as in pointless debates over whether or not Clarkson was drunk two Christmas Eves before her death. In four months Lana Clarkson was transformed from a person to a body to an anatomical concept. In other words, this trial became a runaway train.
Although it had begun to subtly stray sometime in late July, the trial unmistakably unraveled two weeks ago when defense pathologist Dr. Michael Baden (Linda Kenney Baden’s husband) introduced the astounding theory that the bullet fired from a Colt .38 special did not completely sever Clarkson’s spinal cord and that the shattered cord’s vestigial cabling permitted minutes of “agonal” breathing. The defense’s earlier scenario had Clarkson exhaling one last gasp — Spector’s lawyers now claim a perimortem coughing fit could account for the flecks of blood found on their client’s cream-colored jacket. Dr. Baden seemed uncomfortable ventriloquizing this novel opinion, as did Dr. Werner Spitz, recalled to the stand to counter Dr. John Andrews, the prosecution’s rebuttal witness to Baden. Gone was the sardonic certainty of Spitz’s earlier appearance, replaced by flailing, almost apologetic allusions to a medical textbook that he claimed buttressed Baden’s testimony — but which Spitz had only first encountered the night before.
The trial, which for weeks suffered its own form of agonal breathing, finally ended its evidentiary phase on Monday after several days of surrebuttal, in which defense witnesses rebutted the prosecution’s rebuttal witnesses. This saw the return of earlier defense witnesses — not to restate their original testimony, but to refute the expertise or memories of those whom prosecutors had called in to contradict them. The nonscientific surrebuttals concentrated on whether or not Clarkson was a drinker and pill popper, if she had been hurtfully ignored at a party by film director Michael Bay and if her overall state of mind was so deeply depressed that she lived one snub or drink away from committing suicide.
To prove this last matter, defense attorney Roger Rosen called Dr. Mary Goldenson, a Brentwood psychologist who admitted that, yes, Clarkson once had called to inquire about scheduling an appointment shortly before the actress’s death. Rosen also called back paramedic Daniel Stark to dispute his partner’s report that Clarkson was sober when they responded to a 2001 slip-and-fall accident.
But wasn’t it the defense’s Bruce Cutler, way back last spring, who told the jury it wasn’t a crime for a person to enjoy a few drinks at night, that cocktails and late-night dinners were not a recipe for death? If all the testimony about Clarkson’s party habits was meant to persuade the jury that Clarkson sometimes drank too much, then perhaps the defense succeeded. But to get jurors to believe that, while the cops had murder on their minds in regard to Spector’s connection to her death, Clarkson had suicide on hers seems far-fetched. And even if Michael Bay had deliberately turned his back on Clarkson or told her to talk to his hand a few weeks before her death, how could that conceivably push her to kill herself? The defense may as well cite Clarkson’s purchase of stationery as proof of her intent to write a suicide note.
DAYS BEFORE THE END of final testimony, Judge Fidler asked Spector if he wanted to waive his right to take the stand on his own behalf. Spector’s voice sounded like wind escaping from a crypt: “Yes,” he rasped, and with one word answered the question that had dominated hallway conversation for weeks.
There’s always speculation in murder trials over whether or not defendants will testify, and, if not, if this will hurt their cases in the eyes of the jurors. The great American living room, raised on TV courtroom dramas from Perry Mason to Law and Order, has been nurtured on fictitious trials in which the villain, either through trickery or because of vanity, decides to take the stand and, in a moment of neurotic catharsis, admits his crime.
In real life, the O.J.s and Robert Blakes never testify and do just fine. I doubt that the jurors in Department 106 really expected Phil Spector to appear in the witness chair, or that they will count it against him. What they think of his innocence or guilt is another matter.
As the jurors begin their deliberations, however, it will be Cutler’s controversial absence from the trial that people will argue over for months. After his ignominious smackdown by Judge Fidler, Cutler had maintained the fiction that he would be brought back as a closer during concluding arguments, to which reporters only responded with courteous nods. The truth was that Cutler was too much of a showman for the button-down committee of attorneys hired by Spector, and it was no secret that his superstar antics rankled some of them. From May 7 onward, Cutler looked every bit the odd man out as Team Spector strategy discussions proceeded without him and he stopped joining fellow attorneys at bench conferences with the judge and prosecutors. His lonely exile from the action was only italicized whenever he spoke to reporters of his colleagues as “they” and not “we.”
It’s been said that Cutler’s trademarked theatrics, which heavily rely upon melodramatic gestures and use of his booming voice, were ill-suited for a California jury and were only playable in the New York courts — especially the state’s ethnically dense Eastern District, in which Cutler had cut his teeth first as a prosecutor and then as a trial lawyer. One has to question, however, if Cutler’s outsize courtroom persona is valid anywhere except on the stage or screen. Fittingly, Cutler had enjoyed a sort of Elba period in which he shot episodes of a reality TV show called Jury Duty, in which he played a judge. Sadly for him, he was never allowed to return and perform the role that brought him to California so many months ago — a defense lawyer.