Phil Spector: Judge to Change Jury Instructions

I can't understand the Judge in the Phil Spector case. Yes, if you're a prosecutor or a judge, it's a drag to try a case for five months and get a hung jury. But when the jury is deadlocked, you don't get a do-over on the charges or the instructions just to force a verdict. That's a recipe for reversal, in my opinion.

Yesterday, the Judge said he was contemplating allowing the jury to consider a lesser charge to solve the impasse. At least a good night's sleep cured him of that.

But today, while deciding against allowing the jury to consider a lesser charge, he decided to modify a critical jury instruction by striking a central statement from it. To make up for any prejudice, he said he'll allow the attorneys to present additional closing arguments.

As the LA Times characterizes it, he "threw the prosecutors a life preserver."


He ruled he would strike an instruction to jurors stating prosecutors must prove Spector held the gun that went off in Clarkson's mouth.

The instruction stated: "If you do not find the prosecution has proved beyond a reasonable doubt that the defendant committed that act, you must return a verdict of not guilty."

Fidler said he now believes that sentence, which he earlier had approved after it was proposed by the defense, "misstates the law" and called it an "absolute error."

This jury has been deliberating a week. You can't change the instructions at this late date. Clarifying or answering a question is one thing. To change the substance of instructions is another.

The defense, wisely in my view, refused the offer for additional argument and again requested a mistrial.

If Phil Spector gets convicted now, I sure hope he gets bail pending appeal.

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    bad this and that (none / 0) (#1)
    by 1980Ford on Wed Sep 19, 2007 at 11:40:03 PM EST
    First, remove any prior bad jurors (who don't jump for joy at the death penalty), then allow in prior bad acts, and then strike prior bad jury instructions.

    When will people remember that our Founders thought our government could not be trusted, should not be trusted.

    Absolute power corrupts absolutely.

    But (none / 0) (#12)
    by Abdul Abulbul Amir on Thu Sep 20, 2007 at 12:49:36 PM EST
    But they can be trusted to run the health care system.

    I don't think the trial judge can cure the jury (none / 0) (#2)
    by oculus on Thu Sep 20, 2007 at 01:32:35 AM EST
    instruction error at this point, but it surely is incorrect.  Nice job of persuasion by defense counsel.  

    I agree (none / 0) (#3)
    by Deconstructionist on Thu Sep 20, 2007 at 07:21:17 AM EST
      that substantively amending jury instructions is error (judges have to be very careful in even "clarifying" an instruction) but what puzzles me is that Levenson is commenting about the case when it is stated she was previously appointed a special master in the case. That sounds highly unethical to me even if the scope of her appointment had nothing to do with this particulkar issue.

    Should this person even be a judge (none / 0) (#4)
    by Saul on Thu Sep 20, 2007 at 08:38:46 AM EST
    Looks like a judge should know the law better than anyone else.  If Jeralyn is correct and you are not even allowed to redo the charges and instructions then what is this judge doing seating on the bench.  Looks like this is a basic knowing the law 101.  If this judge does not know the basic it time for him or her to go.

    Two points - make that three: (none / 0) (#5)
    by scribe on Thu Sep 20, 2007 at 09:19:57 AM EST
    First, there is no doubt this is a substantive change and the case should be tossed as a result.  The jury instructions are usually forms with limited places for the judge to insert things.  Those things which can be inserted are like the defendant's name, the alleged victim's name, the type of weapon in issue, the date of the alleged offense, and so on.

    Second, I'd like to hear comments on why TL is right (or wrong) to say that the defense was wise to refuse argument and stand only on demanding a mistrial again.  I have no issue with demanding a mistrial - but refusing argument is another thing.  If I were the defense counsel, I'd figure out some way to argue to the jury that "the judge threw the prosecution a life preserver" and, "therefore, you as fair-minded reasonable jurors must acquit, because the need for a life preserver like this change in the substantive nature of the instructions constitutes ample proof that the prosecution has failed to prove its case beyond a reasonable doubt."

    Frankly, this judge's behavior is down in the dregs with another judge's (in a different state), whose re-election campaign billboards I saw recently.  The billboards (and truck-mounted advertising) stated:
    "Re-elect so and so as judge (in the relevant criminal court).  
    Endorsed by Congressman W, County Party Chair X, Sheriff Y and State Police Union Local Z."

    Really fair, balanced trials are guaranteed in both courts.

    This was clearly a special instruction (none / 0) (#8)
    by oculus on Thu Sep 20, 2007 at 11:11:48 AM EST
    drafted and submitted by defense counsel.  I'm assuming the prosecutor objected but the judge accepted it.  

    that's correct, (none / 0) (#13)
    by scribe on Thu Sep 20, 2007 at 01:20:19 PM EST
    per today's NYT, but the problem is:  (a) the judge had ruled the proposed instruction was acceptable,
    (b) the case had been tried around that instruction, though it apparently had not been given or decided upon before the close of the evidence and (c) the judge really invaded the secrecy of the jury deliberations by his questioning yesterday.

    As to (a) and (b), from the article:

    The instruction said that to be guilty of second-degree murder "the defendant must have committed an act that caused the death of Lana Clarkson." Furthermore, it stated, the prosecution must prove that the specific act committed was pointing a gun at her, "which resulted in that gun entering Ms. Clarkson's mouth while in Mr. Spector's hand."
    Judge Fidler ruled that the instruction had misstated the law, which prosecutors argued allows for the jury to consider other theories of how the killing took place. The government objected to the instruction when it was originally conceived by the defense.

    First of all, who conceived the instruction is of little importance, once the judge decides to give it.  It only matters on appeal, when the prosecution might be able to raise the issue as a protective cross-appeal in the event Spector is convicted and the conviction later reversed on appeal.  Let's get that issue out of the way.

    But, more to the point this indicates to me that the prosecution may have charged that (1) he committed an act that caused the death and (2) (A) the only act in issue which could have killed her (per the evidence) was a gunshot or (B) the prosecution charged he cause of death was gunshot.

    Changing the instruction now to remove (2), effectively means the defendant was not tried on the charges against him - a straight-up due process violation and a Confrontation violation.

    As to (c) above, from the article:

    At one point on Wednesday, Judge Fidler elicited a back-and-forth with several jurors as he sought to pinpoint what issues they were stuck on.

    They reported they had differing notions of reasonable doubt, how to weigh the evidence and how to interpret an instruction the judge gave them regarding what the prosecution must prove to reach a conviction on second-degree murder, the charge in this case.

    Dennis Riordan, one of Mr. Spector's lawyers, described that dialogue as "extraordinary" and "a tremendous window into deliberations," and, unsuccessfully, called for a mistrial.

    Judge Fidler, after listening to lawyers debate, agreed to withdraw the instruction regarding second-degree murder that at least five jurors, by a show of hands, indicated had been confusing.

    The Judge has made himself the thirteenth, and deciding, juror.  He has denied the defendant his jury trial right.


    I agree (none / 0) (#14)
    by txpublicdefender on Thu Sep 20, 2007 at 02:41:06 PM EST
    This judge has royally screwed up.  You can't ask the jurors what they're confused about.  You can't substantively change the instructions while the jury is deliberating, and in specific response to a declaration from the jury that they are hung.  What we have:

    1.  Jury says they can't agree to convict based on instruction ABC.
    2.  Judge says, "Oh, forget about instruction ABC."

    It seems like the judge is clearly sending a message to the jury that they should convict.

    At most (5.00 / 1) (#15)
    by Deconstructionist on Thu Sep 20, 2007 at 02:58:58 PM EST
     he should give the jury an allen charge and send them back to deliberate a while longer. If the jury remains deadlocked then he should declare a mistrial.

    By this point, (none / 0) (#16)
    by scribe on Thu Sep 20, 2007 at 03:37:41 PM EST
    he's so screwed up the trial that the only way to do anything remotely resembling "right" would be to declare a mistrial.

    At this point, an Allen charge is not much different than telling them to convict - his pointed questioning polluted the deliberations.


    Should have given Allen charge (none / 0) (#18)
    by oculus on Thu Sep 20, 2007 at 05:39:09 PM EST
    instead of questioning the jury.  This is classic.  Defense counsel intentionally builds in error to the trial.  

    defense counsel? (none / 0) (#19)
    by txpublicdefender on Thu Sep 20, 2007 at 07:00:01 PM EST
    How was this defense counsel intentionally building in error?  They objected to all this nonsense the judge is doing.  It's the prosecution and the judge that are building in the error.  

    I don't know what the judge was thinking--asking the jurors what they were confused about.  That is just asking for a reversal.


    The erroneous jury instruction was submitted (none / 0) (#20)
    by oculus on Thu Sep 20, 2007 at 07:26:44 PM EST
    by defendant.

    So what? (none / 0) (#21)
    by txpublicdefender on Thu Sep 20, 2007 at 07:52:54 PM EST
    I don't understand how that makes it error that the defense purposely built in.  The defense argued a legal position on behalf of their client.  The judge agreed with the defense and instructed the jury accordingly.  The defense wasn't doing that to build in error.  They were doing it to get a favorable instruction.

    To me, the defense attorney took advantage (none / 0) (#22)
    by oculus on Thu Sep 20, 2007 at 08:03:08 PM EST
    of a not-too-bright judge.  But, its invited error as to the instruction for purposes of appeal.

    If (none / 0) (#23)
    by Deconstructionist on Fri Sep 21, 2007 at 07:48:57 AM EST
      the defense appealed on the basis of that instruction it would be invited error, but since that instruction is more favorable to the defense than a correct statement of law it would be harmless error in any event so obviously the defense did not request it for the purpose of building an appeal record.

      Defense lawyers always try to get theory of the defense instructions that basically "argue" that if you fail to find certain facts an essential element has not been established and/or if you find certain facts a potential defense has been established.


    Exactly (none / 0) (#24)
    by txpublicdefender on Fri Sep 21, 2007 at 10:22:39 AM EST
    The defense can't appeal the error of including the instruction in the first place.  Each side always tries to get favorable instructions no matter how bright the judge is.  It's done not for the purpose of building in error, but for actually winning the case with the jury.

    CA (none / 0) (#6)
    by eric on Thu Sep 20, 2007 at 10:03:54 AM EST
    I just don't understand all of the crap that goes on in the courtroom in California.

    join the club (none / 0) (#7)
    by Deconstructionist on Thu Sep 20, 2007 at 10:13:18 AM EST
      just the incredible length of so many trials in California is bafling. 5 months for a single defendant case relating to single act of violence?

      Most complex multi-defendant, multiple count  white-collar cases involving reams of evidence relating to patterns of conduct which unfolded over months or even years don't take that long.



    Don't forget, the lead defense attorney (none / 0) (#9)
    by oculus on Thu Sep 20, 2007 at 11:12:50 AM EST
    had to participate in filming a TV show during the trial.

    LA is the perfect example (none / 0) (#10)
    by Slado on Thu Sep 20, 2007 at 12:30:37 PM EST
    of how our jury system can break down.

    Frankly if you end up on a jury in LA there is somethig wrong with you.

    Anyone with common sense knows this guy is guilty but if there isn't tapped video evidence of it a stupid LA jury doesn't seem capable of making a decision.  

    No one asks, we'll who else could have done it?  Instead they seem to as in the OJ and Blake trial is it possible that they guy couldn't have done it even though every shred of common sense says he did?  Yes and it's possible Brittney will make a comback so he's innocent.

    The sad thing is only rich Hollywood celebrities get this sort of justice.


    A few years ago, there wasn't a sufficient (none / 0) (#17)
    by oculus on Thu Sep 20, 2007 at 05:34:29 PM EST
    number of jurors to send a panel to the courtroom for trial of an accused felon who was in custody and refused to waive time.  So, the marshals did a press gang across the street at an upscale watering hole in the Music Center.  

    Either that (none / 0) (#11)
    by Deconstructionist on Thu Sep 20, 2007 at 12:33:06 PM EST
    or it took  the celebrity crime wave to draw attention to how bizarre things are in LA courts.

    I don't typically throw out (none / 0) (#25)
    by Deconstructionist on Fri Sep 21, 2007 at 10:39:56 AM EST
    bizarre hypotheticals, but is it possible that Fidler just didn't want to sit through another 5 months of this case and gave the "on second thought,  maybe this or this or that  happened" and if so you can convict instruction to ensure HE is done with it?

      With a mistrial, in the normal course of events, it would still be his case. Now, whether we still get a deadlock and mistrial or a conviction and then the seemingly inevitable reversal, one can surmise, the defense would have ample grounds to ask him to recuse.

    I doubt it (none / 0) (#26)
    by txpublicdefender on Fri Sep 21, 2007 at 01:00:09 PM EST
    I think the judge was just trying any which way he could to not declare a mistrial, even though it is pretty clear that he should, at this point.

    I still find is questioning of the jurors to be extraordinary.  Questioning them as to the source of their confusion?  Remarkable.

    Interestingly, in Texas, we would never have had this type of issue.  "Theory of the case" instructions are prohibited because they are regarded as the judge "making a comment on the evidence," which is prohibited.  I often wish we could have had those types of instructions, though.  I remember talking to jurors occasionally, after guilty verdicts, and the prosecutor, judge, and myself all being shocked at the "theory" of how the crime had occurred that the jurors had come up with to convict.  Calling it a "reasonable inference from the evidence" would be laughable.