As we all know, Jose Baez filed an Emergency Motion To Appoint Special Magistrate During Inspection Of Discovery With Expert Witnesses. In court yesterday, Baez began his argument for the Special Magistrate with the contents of his motion.
Baez stated that a special magistrate was necessary to properly accomplish the defense's goal of being able to test, examine the evidence and discuss it. The special master would help accomplish the goal of maintaining the chain of custody.
He also said that the presence of Sheriff's office personnel would hamper their ability to do a thorough job of examining, testing, and discussing the evidence.
Baez also cited 3.220B. It doesn't lay out the meant to appoint a special master, but that there was a part that would allow the judge to appoint a special master since it outlines that the court has the right to state how the inspection would take place. Mindful of Perry's financial admonitions, he pointed out that this would be judicial economy since this proper and thorough examination and discussion would preclude having to bring the experts back for a second look.
At this point, Judge Perry asked Baez to tell him what role he intended the special master to have. He asked a second question, which was whether the defense intended to test or inspect the evidence. There is a big difference between the two which Baez had slipped into his argument earlier.
Baez skipped answering the first question and went on to say that the defense intended to inspect the evidence. As for the role of the special master, Baez did not give specifics. He stated that 8:08
I think the role of the special master could be, the State and the defense could outline certain rules that must be adhered to during the inspection, and, the special master would be there to ensure that these rules are laid out and to assure that of course there could be no tampering of the evidence, there's no manipulation of it in any way, shape or form, and these types, and the pieces and articles of evidence that we wish to inspect, and I can lay that out for the court, is specifically those that were recovered or collected at the recovery site, where Caylee Marie Anthony's remains were found. That is the majority of what we are looking for. It's not, these are not items that, without proper handling or care, could not be inspected and not contaminated in any way, provided that it, it is done with proper procedures, as would be with any, any authorized member of the State. We are at a disadvantage with this, with this evidence, because we didn't collect it, although we asked to be present while it was collected, and were denied that right, we don't, we don't, quite frankly, we don't know what it may or may not show or if it has any relevance or value at all. But the nature of which, it's not contraband, it is not anything that is dangerous, there aren't any firearms involved or things like that, so, I think, with the narrow request that we've asked for, if both sides can work together, I don't believe it would be unreasonable.
Okay, friends, read that answer carefully! What Baez could have said was that the special master (where did the term "special magistrate" go?) would observe the procedures and be sure that procedures agreed to by both sides would be followed.
But no! Baez had to go on and on, stringing one piece of information after another concerning anything BUT the role of the special master. He had to go into the fact that the defense team gathered at Suburban Drive that December evening to watch from behind the crime scene tape was not permitted by Judge Strickland to step over the tape and take part in the original investigation. In fact, the judge even mentioned that motion in his Order when he recused himself last April 19.
The content of the motions has ranged quite broadly from a Motion to Disqualify the State Attorney's Office, to a motion to stop law enforcement from securing and investigating the crime scene of a homicide...
(Sorry, I just had to put that in. Things would go much more efficiently if Mr. Baez could learn to stay on the topic at hand.)
Perry then asked Baez if he had any criminal case law to back up his motion. Baez said that he could not find any cases in Florida, but that co-counsel Linda Kenney-Baden had been able to do so in "multiple cases", including a case in California, The People of California vs. Phil Spector.
Yes! He said it! He mentioned the Phil Spector case which was a big mistake! For those of us who followed the case with Sprocket here at T&T know full well that Dr. Henry Lee had gotten into major trouble for tampering with evidence! In fact, when he was to be called to the stand, Lee just happened to be in China and had not been subpoenaed by the defense before he left.
Baez then went back to the fact that they had been denied the opportunity to inspect the evidence when it was collected. It pretty much sounded as though he should get special treatment because of that adverse Strickland ruling I cited above.
At this point, Linda Drane Burdick spoke for the prosecution. She said that the State has no desire to restrict access to the evidence. She also said that Baez had only told her last Tuesday that the only dates available for the inspection were July 13 & 14, days when she and Aston were to be in Tennessee doing depositions with the Oak Ridge Labs scientists.
She then went into detail about her contact with the Sheriff's Office (which had not been noticed about the hearing) as to how the inspection could take place. Her concern came from the fact that on Wednesday, Baez had told her he wanted to be alone with the evidence so he could converse with the experts. She said that the Sheriff's office could arrange a separate room for conversation.
Drane Burdick also mentioned that the only area available for the number of people Baez wanted to bring (assuming some of the interns working on the case would be there as well), was the entry bay at the evidence section, which is not air conditioned. She also indicated that where Baez had previously viewed evidence was not the same location where the evidence was stored. She indicated that the evidence was too voluminous for it all to be transported and viewed there.
She also had questions about the equipment that would be available, the space is not air conditioned, there are time restrictions. She had asked Baez what he wanted to look at and he had said "everything". She thought that the list could be narrowed down. She asked for a list of items and the order he would inspect them. She told him she would come in the following week to go over the evidence he wanted, even though she will be on annual leave.
Then, she indicated that the Sheriff's office wanted to video tape the inspection, without sound to maintain the integrity of the evidence. Then, she mentioned the motion for sanctions concerning the out-of-state evidence of which they were not notified. (Remember the garbage bag?)
Ms. Drane Burdick then brought up how the inspection would take place. She stated that she had gone "round-and-round" with Baez about the procedures and safety precautions (gloves, hairnets, craft paper, how the evidence is opened). Apparently these simple issues had not been resolved and she was unsure if two days would be enough time to examine every single piece of evidence. She was willing to fashion whatever remedy would work for both parties.
Apparently, in the past, any efforts by the State to assist in getting evidence to their experts was turned down.
Judge Perry then took his turn, pointing out that there seemed to be a lack of trust and confidence between both sides. Linda Drane Burdick indicated there was nothing she wanted to say in open court. THEN, she mentioned the 700 pound gorilla seated in the room, Henry Lee. She pointed out that a member of the defense team had accused him of "some sort of tampering with the evidence".
Baez' only response was to mention that the OCSO had hired Dr. Lee to train some of their members.
Judge Perry asked the defense if they wanted to waive the chain of custody?
We all know how important chain of custody is. In this case, had Baez wanted to do whatever he wanted to do with the evidence, he could have answered "yes". Of course, he said "no" which pretty much sank his motion for the judge. From what Drane Burdick had stated, the defense did not want to talk about the fine details of how the inspection should take place. If you go back up to the quote from Baez I posted here, you will see that he had no suggestions as to how the special master would deal with the chain of custody, nor did he state what procedures would be followed. All he said was that the defense was "gypped" out of a chance to view the evidence as it was collected and he wanted to do what he wanted to do how he wanted to do it.
Baez closed his argument with his main points. The videotaping of the session was OUTRAGEOUS! He mentioned that his client couldn't even buy a bra without it being made public (don't know how that fits in here.) Baez then asked for a sidebar and came back to indicate he can work it out with counsel to make it feasible. If there were to be any objection, then they all could meet with the judge. Baez said that his client had absolutely no privacy in any aspect of the case.
At this point in the hearing, Judge Perry resolved the issue for both parties. He first said that he and his people had searched the case law and had found none to support the motion. He also said that while this case was different, it is like hundreds of others. He that the court has no control over what the news media considers newsworthy. He said that under the rules of discovery and the 6th Amendment, the defense has a right to examine the evidence. He then set out how it would be done.
1. The evidence will be moved to air-conditioned facilities.
2. There will be a separate room for discussion.
3. Since the defense refuses to waive chain of custody which must be maintained in court by prosecution, officers from the Sheriff's Office will be present.
4. The examination will be videotaped (without sound) and (after an objection by Baez), will be redacted to show the opening of the evidence, the inspection of the evidence, and the sealing of the evidence.
5. The defense has until July 8 to provide a list of the evidence they want to examine.
6. During the days the examinations will take place, he will have someone available to take calls if he is needed to make a decision.
7. All those inspecting will wear proper attire (hairnet, gloves)
That was the end of the agenda for the hearing.
ANYTHING ELSE?Judge Perry, being the polite jurist he is, then asked the attorneys present if there was anything else.
There was silence from the prosecution side, but Jose Baez spoke up, hesitantly at first, but quickly gained momentum. He told the judge that at the last status hearing, which he had not attended, nothing was mentioned about the new discovery coming out. While he and Mason were not available, 5000 pages were released to the media. Letters to Casey from people across the country had been made public. He said that he didn't understand the State's intention in releasing all of this. He stated that his co-counsel (Mr. Mason) said he didn't have enough experience to figure it out. He said the discovery was in violation of Judge Strickland's order, that the defense get documents 10 days after State becomes aware of them. He indicated that some of the documents were from 2009. This also included the interview with Debbie Polisano, whom they had just deposed. (I checked, and the interview itself was only released recently, but a summary of it had appeared in a report released earlier this year.)
Judge Perry asked Baez if he had filed a motion for sanctions. Baez briefly started to talk about the previous motion (which was denied) and then simply says "no".
Baez then went on to argue that he didn't see the relevance of the letters to the case and also said that, given the strict deadlines in the case, he didn't know how he could carefully scrutinize all the letters to see which ones the prosecution will used in the trial. (Shades of TES and TIPS)
Baez continued by saying that the separation of powers was not a factor in this case. He accused the jail with colluding with LE to make the case for the prosecution! He accused the jail of colluding with LE to have Casey write letters to another inmate... and on and on...
At this point, Judge Perry gave what will go down in this case's history, the "Mr. Baez, bear in mind..." . Over and over, he started his statements, "bear in mind..." and went on to indicate that he had worked long hours and was very tired and wasn't appreciative of having to hold this hearing in the first place.
I'm supposing that Baez didn't get the idea and rattled on. Strict deadlines, MY CLIENT AS SHE SITS HERE TODAY IS INNOCENT, she's under lockdown 23 hours a day, she can't see her family, can't communicate with them (we've learned otherwise).
Perry gave Baez the simple way to deal with the situation. File a Federal Suit against the OCSO claiming cruel and unusual punishment. He then mentions that there have LEGIONS such cases and they haven't prevailed! Inmates have no privacy!
Judge Perry pointed out that, at the last hearing, he had instructed the prosecution to go to the Sheriff's Office and find all material they had not received. He wanted for this situation not to happen further down the road. (Apparently, that's when the prosecution got all this information.) He also reminds the Florida public records act. IF Baez knew that the prosecution had these records earlier and was sand-bagging them, then he should file his motion.
Summarizing, Perry said that he wanted to see a fair trial for both sides of the case. When he asked if there was anything else he had to say about the issue, Baez wisely said "no".
Finally, Linda Drane Burdick mentioned that the tips were available and were $2,260, $260 over budget. Baez whined a bit and said that Drane Burdick had only told him today, and Drane Burdick quickly agreed. He also asked the judge to grand an immediate order for the overage and the judge told him to follow proper procedures. He could pick up the documents and the Sheriff's office would have to wait to be paid. Then, the judge went on to another hearing, the "Hawthorn matter."
Watch the hearing:
Part 1 Part 2