Tuesday, September 28, 2010
Watching yesterday's status hearing was excruciating. I sat at my computer with the video on the left, notes on the right. I focused my attention on getting the major details and names. My efforts produced a dazzling display of confusion which has taken quite a while to unravel.
The blame goes to Casey Anthony's "for all intents and purposes" lead attorney, Jose Baez. For the second hearing in a row, he has used his many-colored charts to figure out which witnesses have been deposed, which have been scheduled, and which had not been scheduled. His system clearly isn't working.
These names are very important due to looming deadlines imposed by Judge Belvin Perry, Jr., who, according to Diana Tennis, legal commentator for Fox35, is "micromanaging" the case. According to Tennis, "This is such a level of micromanagement I have never seen." I don't think I have to tell you why this is the case!
Due to technical difficulties, the audio did not come up until a few minutes into the hearing. At that point we heard Jose Baez state something about Tony Lazzaro's deposition. Linda Drane Burdick is heard to whisper, "that's past the deadline". Baez then flashed the infamous color-coded list and mentioned witnesses listed by the defense after May 24 (boldly highlighted in red). He then says they are already incorporated into his list (waves another list). He then goes on to mention names added to the State's witness list August 10, 30, and 31. (Remember, the 31st was the deadline for listing witnesses. I'm already confused and it's only 1:07 into the first part of the hearing.)
I promise not to micro-report the remaining hour, but this is an example of the confusion that reigned over the first section of the hearing.
Baez then mentioned that discovery was ongoing and that the defense had recently received 50 more pages.
Judge Perry then asked Baez how many expert witnesses would not be deposed by the September 30 deadline. Baez mentioned Neil Haskell, the State's forensic entomologist and hemmed and hawed about a couple more. He went off track to mention some other category of witnesses until Perry put him back on track. In the end, Baez managed to name 9 experts and explained in way too much detail why two of them wouldn't need to be deposed. (Actually, it may have ended up being 8 when Baez stated one of them, Sandra Cawn, or was it Maureen Bradley? was scheduled for Thursday. Jeff Ashton was able to clear up who one witness was as Baez didn't know what role she played. See what I mean about confusion?) After much color-coded chart-flipping, Baez came up with his final list.
When asked by Judge Perry when he believed that he would have the depositions completed, Baez answered, "I think, barring schedules the end of November".
Jeff Ashton rose to speak to the situation. He was willing to see a deposition slightly outside the deadline due to schedueling problems with Michael Rickenbach from the FBI lab.
As for Dr. Neil Haskell, Ashton pointed out that his report had been produced 1 1/2 years ago and the defense had never scheduled his deposition. He believed the defense should provide a motion showing just cause. Baez responded with a lengthy explanation of how he had wanted all his experts to examine the evidence at the same time and all the difficulties he had run into to carry out the examination two months ago. There was a longer explanation of lack of proper equipment, so on, and so on, to explain the delay. (I recall Dr. Haskell offering to have Dr. Huntington examine the insects with him from the beginning. I wish I could find that letter or e-mail!) Another reason Baez felt he needed more time was that the defense was fully booked for depositions which take time to prepare since they needed to go though 23,000 documents to do each one!
Ashton also indicated that they had a discussed the issue in a prior hearing and Baez had not approached him about the issue until three days ago.
Judge Perry then decided there was no need to file a motion for just cause and they would discuss the issue further.
Ashton blasted the defense by saying that they had chosen to delay looking at the evidence involved for 1 1/2 years! He accused the defense of not exercising it's due diligence in getting the evidence reviewed. It also should not have been a surprise to the defense as to what equipment would be available at the recent inspection. He said that to extend the defense would delay his preparation for the case since he has his own deadlines to meet.
Baez gave another rambling discourse about how ard they were working and all the discovery being dumped on them all the time. Judge Perry cut him off to tell him that all he was interested in was the expert witnesses, not other matters.
Judge Perry is my #1 hero of the day for reigning in Baez' ramblings and keeping him on track. After allowing Baez a few more moments of saying that "it just didn't work out", the judge ask him for numbers again. How many experts would not be deposed by the deadline.
Baez pointed out the name of someone who was scheduled, the judge reined him in again... how many would NOT be deposed by the deadline. Baez then went back to his chart of many colors and flipped back and forth for a while. Baez then said that they were all scheduled except for Dr. Sigmond who he had wanted to depose today, but the State was unavailable. There were cell phone people, no, computer people, who had to be rescheduled. Then there are the dog handlers, are they considered experts? Oh, and Stenger (OCSO). (At this point, my head was spinning and a headache was starting to make it's appearance in the back of my head.)
Jeff Ashton then mentioned Dr. Haskell. Baez said he was scheduled for the 22nd. Ashton said that he had a message from him earlier that day and Dr. Haskell had no knowledge of that date, and neither did he!
Judge Perry, perhaps to escape this issue, which had been under discussion and page-flipping for almost 20 minutes, resignedly extended the deadline to November 19. It would be the last extension Baez would receive during this hearing.
Perry then moved on to the evidence review. He asked if his experts had reviewed everything that was needed to be review. He reminded Baez that the deadline for that was October 31.
Baez indicated that only the hair and entomological evidence was left. When asked about the air evidence, Baez explained their visit to Tennessee to depose the scientists there. The only one not completed was the man who went to the junk yard to find control evidence (cars, mats, etc.).
There was then talk of the Cisco system. Baez did not go to the source at the court. He had signed on for himself. Linda Drane Burdick indicated she had spoken to the representative and had come to the conclusion that the Webex system might suit their needs better.
There was then discussion of stipulations that Casey Anthony has to sign concerning the examination of the entomological and hair samples. When Baez sort of tossed the topic off, the judge reminded him that "Death Is Different" and that his client was local. Baez agreed to see her the same day to have them signed. Jeff Ashton (hero #2 of the day), asked that Baez give him a list of the hair samples he wanted to add to the stipulation.
Next, the judge asked Baez if he would have all his experts listed by November 30. Baez responded that he wanted a one week extension because he and Mason would be going to New York for a big meeting with Linda Kenney Baden. Confused, the judge asked why, if he was going next week, they needed an extension, Baez said that he thought that the judge had said SEPTEMBER 30! Oopsie!
The next topic was the depositions of law enforcement people. (My headache moved forward a bit just hearing this.)
The judge then asked Baez if he had completed these depositions.
Baez responded that if the court were to give him the same extension, he would be able to complete them.
Judge Perry want to know WHY they weren't going to be completed. Baez claimed he had 8 no-shows at the marathon session on September 3. When Perry asked WHY, he stated he had problems in cooperation from the Orlando Police Department. Mason spoke for the first time and indicated that there were conflicts with vacations, sick people, sick family members, a person who had forgotten, and some who said they weren't served.
Perry then asked when he anticipated completing the 8. Baez said he's like the judge to give him the same extension he'd given before, November 16. Perry replied that he didn't like giving open ended extensions and to explain WHY he needed an extension.
Baez then said that he had scheduled December 1 for the "no-shows" and Judge Perry quickly responded that "that won't work, it was out of the question". He said they could fix up a "nice" Saturday schedule for them. He also said that the October 31 deadline was quite enough. Mason than stood and asked hero #3 for the day, Linda Drane Burdick, if there were 30 more in the same category.
She indicated that those who weren't there September 3 had been scheduled for October 7. When the judge asked for the names, Ms. Drane Burdick said that only 23 were deposed on the 3rd. She then read off her list of people and told Judge Perry that her records showed that they were either excused or hadn't been served. The judge began to say that he would extend the deadline if some of the 8 didn't show up. Linda Drane Burdick then reminded the judge that he had already extended this deadline once. From that point on, Judge Perry did not budge from that particular date. Baez tried to shoehorn in that he already had other witnesses scheduled for the 7th, but (drat) he didn't have that schedule with him.
Judge Perry pretty much ended that particular discussion by saying, "Bottom line is the 31st is the DROP DEAD DATE.
Oh no, it wasn't the end. It turned out that the defense had scheduled (John Allen) for a deposition last Friday and he had been sent out of town and couldn't be there. Also, although the defense had already deposed Yuri Melich for 8 hours, they were only half finished.
Perry reiterated that the deadline is October 31 and that they do have nights and weekends. Baez and Mason had a quick conversation and Mason was heard to remind Baez that they both had trials on a particular date.
My headache really started pounding away when I heard Judge Perry mention the "ordinary", or lay witnesses left to be deposed. Their deadline is also October 31. I was amazed to hear the list of names. Some of them are not minor players in this case by any means. The list included Richard Cain, Amy Huizenga, Tony Lazzaro, Tim Miller, and Cindy Anthony's brother, Rick Plesea. Others included the two jail snitches Robyn Adams and Myra Durkovich.
Naturally, there was an extended wait for this list due to the fact that Baez had to again peruse his multi-colored list. The silence in the courtroom was deafening. Baez also made a big deal out of the "late" witnesses by the State.
Note here that Judge Perry asks Baez HOW MANY? and Baez never answers with a number. He always has to go through the list and tell you the "unique" situations.
There was one ugly scene during the recitation of the names. When it came to Amy Huizenga, it was explained that she was working on a cruise ship and was only available on Saturdays when the ship docked in Miami. Cheney Mason approached the podium to tell the judge what HE thought of the idea of a trip to Miami on a weekend. He told the judge he didn't care about her work schedule and she would just have to take time off for his convenience!
Kudos to Linda Drane Burdick for standing up for Amy. She did wait around in the area for a year and a half and had been available at her workplace, "down the street".
The judge reminded the lawyers that October 31 is the deadline!
Then, we got to the "recently listed people". In all, there are 18 of the 70 people listed that the defense wants to depose. According to Baez, a lot are custodians of records and a lot of them that they can just be interviewed versus taking a deposition. Baez then rambled on about how it would have been nice to have A, B, and C witnesses. He said that when the did the LE depositions, some of those people were in minor roles, such as "delivery persons".
In addition, there were 7 or 8 witnesses from the jail and that "something funky" might be going on in the jail again. Linda Drane Burdick explained that the names came from internal documents concerning Sylvia Hernandez, the guard who assisted in the contact between Robyn Adams and Casey Anthony. These documents had only become available in late summer and that she had turned over the names and some taped statements to the defense.
Jose Baez then threw the court for a loop. He stated that the best place to do these depositions was at the jail and that he wanted Casey Anthony present because she did not remember the names.
The judge looked at him and said, "Why What?" You want your client present? What does the rule say?" Baez responded, "I'd have to file a motion, show good cause." (The words are approximate, but I have the feeling the judge was floored by this request. I don't think it's going to happen! Ever hear of photographs?)
The judge then steered Baez back to the "late" and corrected himself, "recently" filed names. Baez said he thought most would be quick depositions and wouldn't take much time.
Again, Perry broke through Baez' hesitant presentation to ask, "When will you have those done.?". When Baez hesitated, the judge added that he didn't think Baez would say by the end of October!
Linda Drane Burdick then addressed the court and said that she believed that the court had already stated that the defense would have up to December 31. The judge stated he would check the transcript. He also wanted both parties to draw up a list of these people.
Finally, we got to the last part of the status hearing. Judge Perry reminded the defense that the deadline for listing all penalty phase witnesses was November 30. He asked if Baez had apprised his new death penalty expert (Ann Finnell ) of the date. Baez stated that he had and when the judge asked about the mitigation expert, Baez said that they were working together towards that deadline.
Then, the dreaded "ANYTHING ELSE" part of the hearing. Jose Baez always has "something else". This time it was a motion he had filed that morning to have DNA testing done on the shorts and laundry bag.
As the motion had just been filed, Judge Perry did not yet have a copy. Jeff Ashton kindly lent the judge his and Perry read silently for a few moments.
According to the motion, the defense wanted to send the evidence to Richard Eikelenboom's Dutch lab, Independent Forensic Services. Baez spoke for a while about how this lab would be the best and that it was world-renowned for it's work. In addition, Eikelenboom was willing to do the work pro bono.
Although this is not a motions hearing, Jeff Ashton was willing to argue it. He pointed out that the bag had been tested and no DNA had been found. He wasn't sure if the shorts had been tested. He argued against sending it out of the country because the court would have no subpoena power for witnesses who worked in the lab. He also pointed out that shipping it overseas heightened the possibility for the evidence to be lost or damaged.
Mainly, he stated he had a problem with the Eikelenboom's, but he wouldn't go into it at the time. He said that the lab wasn't ASCLAD certified. In his own research, he had found a dozen certified labs who have done touch DNA testing for 7 to 8 years. He said that there was a Pennsylvania lab the he wouldn't object to. He would also require a stipulation as with the other testing.
I'll spare you the rest of the arguments but one. Baez indicated that the 15 ASCLAD certified labs in Florida were associated with law enforcement. (How in the world could he indicate that DNA testing done by law enforcement was biased? DNA is what it is and is used to clear people as much, if not more than it is to convict someone!)
Judge Perry said that he was like to allow the testing, but would not allow the evidence out of the country.
UPDATE! Today, Judge Perry ruled that the evidence will be sent to National Medical Services, Criminalistics Laboratory in Willow Grove, Pa. According to the Orlando Sentinel, both parties have agreed to using this lab.
Linda Drane Burdick brought up the last issue for the day. She mentioned the list of pending motions. Judge Perry said that he would be entering orders later in the day or today. He also indicated that there are some that are still not "ripe".
Drane Burdick also inquired if there would be a hearing on the Kronk motion. If there were to be one, she would not bother with a reply. The judge agreed with her. He also said that the witnesses wouldn't need to testify since they will assume that what the witnesses say is true. From that point, that testimony would have to be measured against the Hitchcock decision which says a person cannot be impeached by prior bad acts. Upon presentation, he would have to rule based upon exceptions and precedents that allow that type of evidence in at trial.
The next item brought before the court by Drane Burdick was that the defense had added two witnesses to their list after the deadline. One was already on the State's list, the other was totally new, but scheduled for a deposition. She said she would not expect a certification for good cause on the one witness, but was merely advising the judge of the situation in case there were more.
The final information was that she has not received statements, photograph, or other materials from the people listed on the defense witness list. She used a tape recording from David Lohr.
Jose Baez jumped all over that saying that a transcript and tape had been submitted with the motion. He also got another dig in at Mark NeJame when he mentioned that Lohr had discussed writing a book with him. He was "shocked" that she hadn't received it!
Drane Burdick said that she had seen the transcript, but not the tape and was using this as an example only. She didn't want to have to flood the court with motions to compel (and she's filed two already). She summed it up by saying that "They are in possession of items they have not turned over."
I absolutely loved the judge's reply, which also ended the hearing:
Only thing I want to say about that is, you all know what the rules are, please abide by, and if somebody feels that somebody's breaking the rules, file the necessary pleading and we will deal with it.
But I would not want to be caught violating the rules.