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A noted forensic pathologist injected a new scientific opinion on Lana Clarkson’s death into the Phil Spector murder trial Tuesday, setting off angry protests from prosecutors who accused defense attorneys of withholding the information from them.
Dr. Michael Baden, one of the nation’s foremost forensic experts, set off the dispute by testifying that he attended Clarkson’s autopsy four years ago, studied reports afterward and recently concluded her spinal cord was not completely severed when a bullet tore through her mouth at Spector’s mansion on Feb. 3, 2003.
The opinion supports defense claims that Clarkson could have spewed blood onto Spector’s jacket with her dying gasps after she was shot. Other defense experts have said she fired the gun into her mouth.
Baden’s theory offers an explanation of how Spector could have gotten specks of blood on his jacket if he didn’t shoot her.
Superior Court Judge Larry Paul Fidler dismissed jurors from the courtroom while Baden was questioned about the process that led to his opinion and lawyers were quizzed about why they did not tell prosecutors their plans before Baden took the witness stand.
As lawyers yelled over each other in the hearing without jurors present, the judge declared: “All of you stop it! There has been an allegation of a discovery violation. When there are allegations of misconduct, I will get to the bottom of it and no one will stop me.”
After hearing from Baden and the lawyers, Fidler ruled for the prosecution saying there had been, “A deliberate and knowing violation of the discovery statute. … The reason prosecutors weren’t told was to have the effect that the prosecution would be unable to rebut it.”
He said he would ponder a remedy and asked lawyers for briefs on the prosecution demand that the testimony be stricken from the court record.
Defense attorney Christopher Plourd, who met with Baden before he took the stand, said the first time they discussed the opinion was on Sunday, although Baden had written a report on his other findings earlier in the case.
Prosecutor Allan Jackson suggested in questioning Baden that he had discussed the matter with his wife, Linda Kenney-Baden, who is a member of the defense team. But Kenney-Baden has been ill and absent from court for weeks, and Baden and the lawyers said she was too ill to have any input in the case.
Baden said he had recently been pondering why Clarkson’s lungs were filled with blood and other fluids and were three times the normal weight at the autopsy. On Sunday, he told the judge he had “an ‘aha!’ moment and shared his opinion with Plourd.
He told jurors, “My opinion in this case is there was an incomplete transection of the spinal cord and the rest was torn during transportation (to the morgue). After Ms. Clarkson was shot through the spine there were still some nerve fibers that allowed her to breathe for a few minutes,” Baden said.
“The pouring of fluid into the lungs continued,” he said. “She’s unconscious. she’s irretrievably injured but the fluids kept pouring in for several minutes.
“As we breathe out,” he added, “some of that blood will come out of the mouth or nose.”
Another defense expert, Dr. Werner Spitz, had testified that Clarkson could have taken agonal breaths and sprayed blood on Spector even if he was standing two to three feet away from her. He also concluded she shot herself.
Spector, the 67-year-old music producer who made hits decades ago with his “wall of sound” recording technique, is accused of murdering Clarkson, 40, on Feb. 3, 2003, after she went home with him from her job as a nightclub hostess. She was best known for her 1985 role in the cult film “Barbarian Queen.”
The defense contends a depressed Clarkson killed herself and Spector was too far away to have pulled the trigger of the gun that went off in her mouth.
Baden said he was aware of Spitz’s testimony as well as that of Deputy Los Angeles County Medical Examiner Dr. Louis Pena who concluded Clarkson’s death was a homicide.
Jackson complained that the defense had hidden what was “the centerpiece of Dr. Baden’s testimony.”
“This is what they wanted out of Dr. Baden,” he said. “Now they’ve brought Lana Clarkson back to life. They were getting nothing about Lana Clarkson coughing blood on Phil Spector. And now they have Dr. Baden on the stand and I’m staring into a report that doesn’t mention it.”
The judge told Plourd, “You had to know how important this testimony was and why wasn’t the prosecution notified?”
Both Plourd and defense attorney Bradley Brunon suggested that such developments arise during trial and were not purposely withheld.
“As testimony develops, this is a natural evolution, especially when there are complex issues,” said Brunon.
Plourd said, “It’s an interpretation of known facts” and failing to tell prosecutors about it was not a violation. The judge disagreed.
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