Tuesday, August 10, 2010
This video of Tim Miller was posted on YouTube on December 15, 2008. Within the first couple of minutes, Miller again reviews the reasons he called off the searches. The area they wanted most to search, on Suburban Drive, was flooded. Mr. Miller, in his interview with the State says the same thing (p. 8). He clearly indicated that, if Caylee's remains were there, a search could easily destroy them or force them into the underlying soil.
Regardless of those facts, the defense went on an immediate rampage to get the TES records to prove that the area had been dry and searched. To do that, they petitioned the court twice and were rebuffed twice by Judge Stan Strickland for not filing their motion in a proper way.
By July 16, 2009, the defense manage to file a motion (link unavailable) which asked for TES records in the vicinity of Hidden Oaks Elementary School. At a hearing on August 27, 2009, Casey's then attorney, Todd Macaluso, made the following statement:
As Your Honor knows, the body of Caylee Marie Anthony was found very close to the Anthony home, and the body was found in a wooded area that if one were to search for a missing child, this is the first place you would go search. There is substantial evidence that we’ve discovered, and that’s been set forth in our brief, Your Honor, that the body or the remains of Caylee Anthony were placed there after Casey Anthony was locked up in the Orange County Correctional Facility. There is substantial evidence, and that proves, Your Honor, her innocence. That’s exculpatory evidence, it proves that somebody else placed the remains in the area where it was ultimately found.
Macaluso indicated that the evidence they would unearth would be exculpatory because it would prove Casey is innocent. He argued that if a person volunteered to search for a missing child and found the child, the remains, or evidence, there would be no expectation of privacy because the person would be a material witness.
In later motions, the defense claimed that they had two witnesses, Laura Buchanan and Joseph Jordan who would testify that the area was searched by them, that it was dry, and that there were no remains there. Later, Jordan was interviewed twice by LE (#1,#2) where he indicated that he had mid-identified the area where he searched and that he hadn't searched that location, since it was under water at the time. Laura Buchanan, the second witness, seems to be making herself scarce and has yet to be deposed by the State.
At that time, TES attorney Mark NeJame offered the names of 32 searchers who were within 50 yards of the area where Caylee's remains were discovered. Judge Stan Strickland ruled that the area relevant to the defense's argument would be so limited and that the defense could examine the other documents under the terms proposed by Mark NeJame.
In the hearing on July 15, Judge Belvin Perry did not address the TES issue in open court. The prosecution, defense, and NeJame met for a substantial period of time at the bar and when it concluded, Perry announced that Baez was withdrawing his most recent TES motion and that NeJame could file a motion to quash the motion based on bad faith. The defense would have until August 25 to review the documents with a special magistrate and would be able to take notes. They were to tag files which the special magistrate (a former judge) would copy and bring to the court for in camera review. The judge also said that he would not rule on the tagged files until after a hearing on the motion to quash.
On July 22, 2010, Mark NeJame filed his Motion To Quash The Court's Order On Defendant"s Application For Subpoena Duces Tecum For The Documents In The Possession Of Texas Equusearch Based On Bad Faith.
In this motion, ordered by Judge Perry at the July 15 hearing, NeJame outlines the entire history of the TES battle with the defense team. Dates and information here and above were taken from this motion. I've added a few dates in for myself as I feel they may be relevant.
September 18, 2009: a member of the Baez Law firm made an appointment to review the documents
Prior to the appointment, NeJame learned that they were planning to send "The Presentation Group" to copy all the documents from all the files. Baez cancelled the appointment.
October 15, 2009: NeJame's office contacted Baez to ask when he would pick up the 32 files. When asked to fax them, NeJame chose to have them hand delivered to Baez' office.
November 23, 2009: Baez files a new motion for a subpoena duced tecum based on the information provided by Joe Jordan and Laura Buchanan stating no body was found.
March 10, 2010: NeJame responded by pointing out that Joe Jordan was one of the 32 searchers whose records were provided to Baez, Laura Buchanan searched the area on her own, hence no official record.
April 5, 2010: Judge Stan Strickland denied the motion.
Although not in the motion, I would like to add these two:
April 16, 2010, 4:48 PM on a Friday afternoon: The defense files a motion for Judge Stan Strickland to recuse himself.
April 19, 2010: Judge Stan Strickland issues an Order and recuses himself from the case.
I have always wondered if the TES issue was one of the reasons that the defense wanted Strickland off the case. They wanted all the documents and weren't happy at all with Strickland's rulings on the issue.
April 23, 2010: Jose Baez and Cheney Mason appear at Mark NeJame's office to inspect the documents. Here are snips from paragraph 12, p. 9 of the motion.
...The office of the undersigned counsel also learned that when the meeting was scheduled, Mr. Baez had to leave within two hours from the start of the meeting to go to another appointment.
...With the $12 prepaid throw down by Mr. Mason and Mr. Baez' limited schedule, it is patently obvious that there was no real interest or good faith attempt to review any of the document that counsel for Casey Anthony has claimed were important.
...This is entirely consistent with the fact that it took them from August 22, 2009 until April 23, 2010, to finally get around to even coming by to peruse the documents...a full seven (7) months and twenty seven (27) days later.
In addition, during the inspection, the attorneys tagged files of searchers from 300 yards away to 8 miles away, clearly outside of the parameters they were given.
It's patently clear to me that, from the get-go, Baez and whichever attorneys were on the team at the time wanted ALL the documents. Since their original motion specified a specific search area and the defense agreed in August, 2010 to the solution provided by Strickland gave them everything they asked for.
Even now, they want another try at fishing in the TES pool of searchers, without any limitations.
This comes about now, even with Cheney's press conference on June 21, 2010. NeJame includes this portion in the motion:
Uh, yeah, it's been, the public has been made to believe that these people searched the exact area, um, where the body was, or tried to and couldn't. The fact is they didn't try to, and they didn't, they weren't there, and it was impassible at the time. So there's a lot of people who are mistaking things of what happened back in the summer of 2008 and what happened in the Winter of 2008.
If you pry apart the message, Mason said:
The searchers either tried to or were unable to search the area where the body WAS.
It was impassible at the time.
NeJame then went on to use this quote as the basis of his argument for bad faith on the part of the defense.
18. a. The defense took seven (7) months and twenty seven (27) days to review the files located at the undersigned counsel's office.
b. The defense stated in several of their motions that Joe Jordan was part of the search team that searched the exact area where Caylee's remains were found and that his name was not turned over to the defense in October 2009. The defense's position regarding Mr. Jordan formed a substantial part of the basis for their request for the records of the other searchers.
c. Laura Buchanan was named in several of the defense's motions as being another searcher who was in the exact area where Caylee's remains were located... It is not only unrealistic but it is ludicrous to expect TES to keep track of or to even have knowledge of the searches that volunteers conduct on their own and not under TES's guidance or supervision.
d. ... The defense only took two hours to review the same documents compared to the many hours up to several day (sic) to review. Instead of following the order which requires them to request an in camera review by the Court.. the defense filed a motion to Reconsider Certain Prior Rulings by a Disqualified Judge. The defense is clearly operating under bad faith and looking to harass the volunteers.
e. ... Mr. Mason's statement on June 21, 2010 blatantly and clearly contradicts the position they have held for the last 11 months.
(bold face mine)
There are NeJame's reason for asserting bad faith. For me, the bad faith seems to come more from the fact that the defense never showed much interest in tagging any additional searchers who could help their case. They flaunted the judge's ruling and turned it into a ridiculous farce.
Nejame winds up his motion by going back to Mason's statement in the presser.
19. ... it is patently obvious and apparent that the defense knows the conditions of the area, and that they are no longer in need of the names of any searchers to verify this information.
Furthermore, since the defense has become aware of this information, the original thirty-two (32) volunteer names that were turned over in October 2009 are no longer relevant and any further inquiries of any additional names would be a fishing expedition made in bad faith.
Now, let's get to the defense's Response To Motion To Quash The Court's Order which was published last night. As WFTV has now published links, we learn that it was filed at 4:54 PM yesterday. Here is where we find an awful lot of CARP!
The motion is filled with vituperative language at every turn and has whole sections which do no more than sling mud at Mr. NeJame. There are four "Exhibits" which mostly do more of the same.
The first argument the defense puts forward is prefaced by the following:
1. It is apparent that counsel for TES has chosen to not understand the clear and direct theories of defense with respect to his client's "searching" for the victim. This is really a simple proposition that everyone else seems to grasp.
Baez then explains the defense theory. Here are some snippets of it.
If any evidence exists of persons searching the specific area where the remains of the child were found, and no such remains were then present, but obviously showed up later at the same spot, then significant questions arise as to when and how the remains were placed in that location. It is the Defense position that Casey Anthony was either in custody or under such relentless and continuous public scrutiny that she could not have placed the remains of her child, where discovered, any time after the Texas Equusearch searches.
The final TES efforts at Suburban Drive were in early November. As Tim Miller stated in the video, the exact area where they were found was still not searchable due to the flooding. A quick study of the State's forensic botanist would show them that he estimated the body had been in the same location for a minimum of 3 months based on the plant growth through holes in the bones. In addition, there are other reports that stated that the body had been disarticulated in that location. I won't go into the gory details, but the position of the bones clearly demonstrated that. In addition, bones were located at a pretty good distance away from the bag. There were bones covered by soil that had to have been there when there was rain to wash the soil onto them.
Of course, somebody could have placed the body there. However, the fact is that from the time hurricane Faye hit until shortly before the body was discovered, the site was under water. In addition, Baez later differs from Todd Macaluso who claimed that would prove Casey's innocence, he did admit it did not rule out Casey as the killer. In that case, he would really know some truth of the matter from his client. Even he and his investigators have yet to find "Zanny" and LE hasn't found her either!
In his second argument, he pushes to justify having all the records by stating that some Equusearch searchers did search other places on their own. He wants the ability to contact them and ask.
By paragraph 3, he starts to throw accusations at TES and Mark NeJame:
Texas Equusearch has professed to have a desire of trying to help, and trying to seek the truth. Yet, when it comes down to inquiries about what evidence there may be regarding the search, they have taken a consistent position of obstruction. It may well be that it is more the influence of Texas Equusearch counsel for his own private and personal reasons, more so than the organization itself.
In paragraph 4, Baez states that
4. Counsel for TES...apparently acknowledges that it is the position of his client that their records do not indicate any searchers in the immediate area where the remains where found. If that is the case, then it is patently absurd for them to take an obstructionist position of trying to suggest or, for that matter, for the prosecution to suggest, that the remains were there the whole time and just simply not discovered.
Again, Baez needs to read the scientific reports, or check with his own experts on this. It seems to me that before he continues this endless battle, he needs to consider what they all have to say about how long the remains were in that location.
Paragraph 5 brings up a problem. Baez states that the defense theory was based on information received from Buchanan and Jordan. Yet, months before this, Macaluso used the same theory in open court! He then states that the defense had discovered two witnesses who said the area was not under water. That would again be Jordan and Buchanan. As I've said countless times, Jordan no longer agrees with that. Haven't they read his interviews? That leaves one deposition-shy witness!
By paragraph 6, he is discussing topography and the fact some areas were under water and some were not. Also,
Moreover, at the time of the TES searching, much of the area was so overgrown that it could not be seen from the road right away and, thus, a person walking along there could not even tell whether the critical area was actually underwater or not.
I would assume that Tim Miller and his crew as well as any others who might be searching the area would go off the "road right away" to check the area!
In paragraph 7, Baez tries to get around Cheney Mason's strange interview after the hearing. VIEW Baez states that in the depositions of State witnesses who searched the area had not been to the exact spot and that is was
... because the overgrown conditions made it basically impossible.
I read some of the interviews with some searchers. I'm not sure if they are the same ones the defense deposed, but I recall them talking about not searching there because of the water. I have to wonder if the defense has more information that they only searched along the "right away"!
Next up, Baez turns to the "right to privacy" issue. It's pretty much the same as he has said before, and I haven't heard any judge rule that it was a problem with that. He also indicates again that NeJame allowed Brad Conway to look at the documents. Again, I don't recall Strickland having a problem with that. Baez says something here that varies from what Mark NeJame has stated more than once:
That is that he allowed an attorney, not related to the Defense of Casey Anthony, to view al14,OOO pages of documents, making whatever notes and conclusions he wanted to do, and then allowing the State to do the same thing.
Baez then refers the judge to Exhibit A, an affidavit from Cheney Mason. He gives his version of events during their review of the documents in April and insists he was quite polite!
There follows a discussion of the boxes they were unable to view and then goes on another rant about Brad Conway being able to review the documents. We all watched the hearings, we know what NeJame told both judges about that review. Yet, Baez has to toss in some inaccuracies yet again!
There were no issues of privacy raised then; no indications that that lawyer was restricted from having copies or making notes; no indications that that lawyer had to pay cash in advance to look at the files. Where is the "bad faith" now?
From this point on, the motion goes into a major slam-job on Mark NeJame and is full of accusations which have absolutely no relation to the issues discussed in the motion. There are additional exhibits to back up the claims.
Entitled: Does TES counsel. NeJame, have an ulterior motive behind his efforts to thwart the Defense?
I won't even dignify this part by a major discussion. This is truly the CARP part of the motion.
Paragraph 12 accuses NeJame
-of soliciting George and Cindy as clients.
-doing a media blitz (just to say, he did that to improve their image)
-did not file any motion to protect them from the protestors
-represented them on TV (hello, Brad Conway doesn't do that?)
-made media comments in front of the Anthony house
-tried to undermine his (Baez') representation of Casey and take the case over
-asked to join the defense team (Baez turned him down due to lack of experience)
Baez utilizes Exhibit C to demonstrate this. You have to read this stuff to believe it! It's a copy of e-mails sent to Beth Karas prior to the July 15 hearing! Talking about leaks! The bulk of the information is an letter sent to NeJame and a reply.
The fact is, with all this CARP, one has to rely a great deal on credibility. Who do we believe, Mark NeJame or Cindy Anthony? Mark NeJame or Jose Baez. You pick.
The next CARP is the issue of conflict of interest. In this, Baez refers to Exhibit B. It's an unsigned letter from George and Cindy Anthony dated February 12, 2010 to NeJame, rescinding their waver. Again, ask the credibility question! Gee, can I rescind my waiver I signed with the insurance company and ask for more money?
The end of that particular paragraph ends with
This can under no circumstances be considered a knowing and voluntary waiver. Furthermore, after George and Cindy Anthony withdrew their waiver. Mr. Nejame falsely claimed that the waiver is "valid and cannot be recanted." This court cannot allow Mr. Nejame to continue in this matter given the obvious conflict of interest. Furthermore, it is the
defenses position that Mr. Nejame is using this case to further promote his own interests.
Pot, call the kettle!
The last accusation is that, oh my goodness, Mr. NeJame consulted with crime writer David Lohr about the possibility of ghost-writing a book! Baez even includes a transcript of a phone interview between NeJame and defense PI Jeremiah Lyons. The most interesting aspect of the interview, Exhibit D, is that Lohr claims NeJame told him Casey was offered a plea-deal for 10 years! There are statements from NeJame in this WFTV article.
Baez ends his motion by playing nicey-nicey with Judge Perry.
15. This Court, after having reviewed the history of this case, with respect to the subject ofTexas Equusearch documents, has crafted a method and announced intentions, by his Order, to allow a proper investigation of the Texas Equusearch documents under the control of a Special Magistrate (Jim Glatt). This process will eliminate all questions regarding the Defense's entitlement to full discovery, eliminate questions of impropriety, eliminate bickering between counsel, and allow this case to proceed on in an orderly fashion, respecting the due process rights of the Defendant, Casey Marie Anthony, as well as her Constitutional entitlements to the effective assistance of counsel and the Supreme Court Mandates, recognizing that "Death is Different". The TES Motion to Quash should be denied, summarily.
The fact is, were the judge grant the motion to quash, the defense would see no more of those documents!
I can't wait for this hearing!