523 Octavia Street San Francisco, CA 941 TEL. (415) 431-3472 PAK (415) 352-2703 DENNIS P. RIORDAN (SBN 69320) : é 3 DONALD M. HORGAN (SBN 121547) RIORDAN & HORGAN 523 Octavia Se San Francisco, TEL. (415) 431 Sin bak (413) 552-2703, Attorneys for Defendant PHILLIP SPECTOR SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES ) CASE NO. BA255233 ) ) MOTION FOR MISTRIAL DUE TO ) PROSECUTORIAL MISCONDUCT PEOPLE OF THE STATE OF ) CALIFORNIA, 3 Plaintiff, Hi ’) vs. i ) PHILLIP SPECTOR, ) d Defendant, ) TO STEVE COOLEY, DISTRICT ATTORNEY FOR THE COUNTY OF Los ANGELES, AND DEPUTY DISTRICT ATTORNEYS ALAN JACKSON AND TRUC D PLEASE TAKE NOTICE that on Monday, November 3, 2008, or as soon as the matter may be heard, defendant Phillip Spector will seek the Court’s order declaring a mistrial as the result of prosecutorial misconduct in the opening statement, Specifically, assertions by Deputy District Attorney Jackson in his opening that the defendant possessed a personal trait of hating women, and had a personal history of rage against, and abuse of, women, constituted an impermissible use of evidence toprove character and propensity. California law bars any argument in this case that defendant Spector has a character or propensity to assault and abuse women, and, as the prosecutor well knows, the evidence deemed admissible against Spector has not been, and could not be, admitted to prove any character trait or propensity on defendant's part. ‘The prosecutor's misconduct has put the defendant in the untenable position of having either to accept the district attorney’s assertions, or to offer evidence to rebut the prosecution’s improper claims regarding his character and personal history, which, under California evidentiary rules, would open the flood gates to the admission of additional prejudicial evidence by the District Attorney, based on the contention that the state has the right to rebut Spector’s good character evidence. The prejudice to Spector from the District Attorney's misconduct in opening argument is extraordinary and irremediable For that reason, a mistrial is appropriate. The motion is based on this notice of motion and motion, the accompanying, memorandum of points and authorities, the complete court record in this matter, and any additional argument or evidence that is adduced at a hearing on this matter. DATED: November 3, 2008 Respectfully submitted, WEINBERG & WILDER. RIORDAN & HORGAN PS ORON WEINHERO—— Attorneys for Defendant PHILLIP SPECTORCe aan eun 10 i 12 13 14 1s 16 7 18 19 20 2 2 2B 25 26 27 MEMORANI OF AND 0 After voluminous briefing and argument by the parties, this Court ruled that the District Attorney would be permitted to offer testimony of five women who cannot provide direct evidence of the events of February 3, 2003, the date of Lana Clarkson’s death. Rather, the five women will testify as to past incidents in which defendant Spector allegedly brandished a gun in their presence. In a parallel ruling, the Court held that the prosecution could offer the testimony of Vincent Tannazzo regarding statements allegedly made by Spector fifteen years ago about wanting to shoot a woman or women. ‘On what precise “limited purpose” grounds the evidence was admitted -whether to prove Spector’s motive, to prove the shooting was not an accident, or to prove the identity of the person who introduced the gun into the events of February 3°, 2003~may yet be finally determined, but there can be no doubt as to what this evidence was not admitted to prove. The Court did not admit the evidence to prove that Spector had a character trait of hating women or raging against women, or a propensity to violently abuse women, thereby supporting an inference that he acted in conformity with those traits or propensity on the date of Ms. Clarkson’s death. The ban of character evidence under Evidence Code section 1101 (a) applies in this case, and it is absolute. People v. Alcala (1984) 36 Cal.3d 604, 631 (“California’s codification of the common law rule... is absolute where it applies. However probative to common sense, evidence must be excluded under section 1101(a) if the inference it directly seeks to establish is solely one of propensity to commit crimes in general, or of a particular class.”) Given the remarkable volume of uncharged offense evidence the Court has ruled admissible in this case, the barrier between the limited purpose for which the evidence of uncharged acts was admitted and its use as character evidence will not be easy to maintain, but that only means that the Court will have to be particularly vigilant to avoid a violation of the strictures of section 1101(a). The Court must ensure that the prosecution does not argue that the five women were victims of Spector's rage and 3