Monday, November 29, 2010
Now we know the reason Judge Belvin Perry moved the hearing up to 1:00. He is hearing another case and the jury was to return to court at 1:45. For this, we thank you, judge, it made both parties to get to the point and get the job done.
Casey entered the courtroom sporting an orange blouse and shackles. Many people have noted that orange isn't the best color at this time as it is reminiscent of jail garb! I hope Casey liked it, as it had no ruffles, just some rusching on the sleeves.
The hearing opened with Judge Perry addressing Jeff Ashton's Motion To Compel Discovery. Mr. Ashton simply went through the items he wanted from the defense.
He indicated that the prosecution had given the defense over 10,000 pages of expert evidence and the defense had given them none. (Remember Linda Kenney-Baden's 91 page motion.) Thanks to Nums34 we have the link for the gargantuan motion. He pointed out that he had done a great deal of work to supply the defense with the discoverable information that they had asked for. We have proof of that by scanning through the discovery to see e-mails and other documents provided to the defense.
Ashton pointed stated that if they are listed as witnesses, he wanted their reports, as well as fees, expenses, travel. He stated that all this information, "is grist for cross examination". (includes prior to indigency).
Ashton also explained that he wanted the notes taken by these witnesses during the examination of the evidence. He pointed out he also wanted notes taken for the investigator since he had observed that Dr. Henry Lee had someone taking notes for him. (I have to wonder if this person's expenses were included in Mr. Lee's $8000 bill for those three days.)
He also indicated that some of the notes between the experts and the defense could contain work product, however, he left it open that the court could examine them to determine what could be considered work product. Ashton explained that these notes would help the prosecution to determine what type of testimony a witness might give. He gave the example of Dr. Scott Fairgrieve, a forensic anthropologist from Canada. The prosecution had been assuming he would testify to information about the remains. As it turns out, Fairgrieve will testify about cadaver dog scent issues! (This leads me to wonder if Judge Perry would certify him as an expert in THAT field.) Without this pertinent knowledge, the prosecution would be ill-prepared to depose these witnesses. These communications would act in place of reports, if none exist.
Ashton also asked for all the expenses incurred by these witnesses, including transportation, lodging, and entertainment (perhaps meaning meals?) as these are usually part of the discovery.
He indicated that all of these sorts of information had been provided to the defense a long time ago.
As to the photographs, Ashton indicated that with the civilian witnesses, they either had not received them or received them shorty prior to deposition. (And we do know that one particular document was not presented to the prosecution until during a deposition.)
Jose Baez then rose to speak to Mr. Ashton's motion. Beginning with "a page from Mr. Ashton's book", stated that concerning this sort of discovery, "There is nowhere in the rules that outline the types of discovery" Baez also said that he doesn't want to pull agreements or give him an accounting. He said that Ashton could ask the experts directly himself in his depositions.
Baez also claimed that none of that had been given to the defense by the State.
On the contrary, in over 116 depositions, Mr. Ashton objected to giving them any communications. Now, after the defense has done their depositions with experts he's filed a "mirror" motion asking for the same information.
Baez said that he had not asked any of his experts to write reports, due to their working pro bono and under the current indigency status of Ms. Anthony. He also said that there had been no wining or dining. (I suppose the experts were never given any food to keep them going during their inspection!)
Let me stop here for a moment to explain. While Mr. Baez gives the excuse of low pay or pro bono status as the reason for not having reports written, let me tell you this. Many defense attorneys do not have their expert witnesses turn over reports, just so they don't have to turn them over to the prosecution. That's the real reason why. Baez then went on to say that when they had asked the prosecution to turn over information on the 300 witnesses, they had said "no". (What Baez left out was that the State, in it's discovery had turned over audio and written transcripts of the witnesses to the defense. Heck, we've read about Amy Huizenga, Jesse Grund, the Anthony's, and many other people's involvement in the case. Mr. Baez is being extremely disingenuous here.)
Baez then says that if communications between witnesses and the defense are to be released, then in his "mirror motion", he would have to go back and re-interview these witnesses.
Hello! Baez is mixing his oranges and apples here. He's talking about civilian witnesses, when the topic is expert witnesses. Baez & Co. has tons of information from the State expert witnesses, including reports!
Judge Perry then asked Mr. Baez to back through his arguments, one by one. He told Baez he had already addressed #1 (contracts and agreements). Baez also addressed #2 (communications). Now, he wanted Baez comments on #3 (bills and payments submitted), #4 (travel, expenses), #5 (notes taken by or for experts), and #6 (photographs and video).
Baez began with #4, saying that at a time when there is so much work to be done, it would be burdensome for them to pull all these records. (Heck, my husband uses Quicken and can pull that sort of stuff up in two minutes! I suppose that digging all the receipts out of cardboard boxes laying in dark corners could set a member of Baez & Co. back days!) Baez pointed out that the prosecution could simply ask the experts for this information during the depositions.
Baez had no problem turning over the photographs as they were clearly discoverable. He was also willing to turn over any notes taken during examination that don't involve work product.
Judge Perry then backtracked to the fact that none of the defense experts were going to be turning over any reports. He asked if the State's experts had turned over reports and Baez responded that many of them had. All the judge had to say about that was "OK".
Ashton briefly replied to Baez by pointing out that they had turned over such notes to the defense a year-and-a-half ago, approximately 10,000 pages. Likewise with the photographs the State is requesting. He also said that they had provided the defense with all the bills they had received. (Remember, a lot of the work done for the State is done by government employees who work on a regular salary.)
Judge Perry asked Ashton for a justification under rule 3.220 concerning what he had asked for. Ashton gave his justifications and the judge pointed out that much of what he was asking for in the first 4 items could be learned through deposition and subpoena duces tecum. He also pointed out that the rules of discovery were never meant to shortcut an attorney's responsibility to do his own investigation. (He usually tells Baez this.) Ashton agreed, but pointed out that many of the experts are out of state, making it a cumbersome procedure. In addition, one witness is in Canada, a whole different country. He again pointed out that the State had provided much discovery which saved the defense from slogging through all those procedures.
What struck me the most as Ashton was arguing his points was that the defense had two years to jump through the hoops of the subpoena duces tecum, and they did take their time. The State is running into the same issues, but just under six months till trial and with deadlines for depositions. As with the Laura Buchanan document, the State had to stop the deposition, get the document and then reschedule. At this point, I doubt there is enough time. Essentially, the defense had "all the time in the world" and the State is battling short-term deadlines (4 weeks) with a burdensome task. It's not fair, but it's the law.
Ashton did go on and point out the inequity of the situation and made my favorite comment of the day: "I can't imagine it's all that difficult for Mr. Baez to go to his trust account records and determine how much money was paid to a particular expert, or how much money was paid for that person's travel."
Baez got in his last licks on this by stating that, while they did receive a great deal, the State had given them misinformation that they had to go directly to the FBI for materials they wanted. He also brought up the issues they had with the Oak Ridge Laboratories. He said he was denied billing information and they had to jump through the hoops.
Judge Perry then pointed out that it was obvious that most experts don't work for free, that's how they earn their living, whether employed by the government or outside entity. He also said it goes to their bias, and could be obtained by deposition or subpoena.
Judge Perry denied #1, #2, #3, and #4 without prejudice as some of the information may not become available through the depositions.
He granted #5 and #6 concerning notes taken and the photographs or videos during the examinations. Since the experts are not creating reports, the defense will have to turn over to the State the subject matter to which they will testify prior to their depositions.
Since the deadline for providing a list of expert witnesses is tomorrow, November 30, the judge originally gave the defense two weeks to provide the information and three weeks to provide the notes and photographs. Jeff Ashton pointed out that they were trying to take the depositions of these witnesses this month and the deadlines would make that impossible. At that point, Jose Baez and Ashton agreed that Baez would provide all the information in writing by this Friday by 4:00 PM.
The discovery motion settled for the time being, the judge began the status hearing. He first brought up the Roy Kronk motion (which has been sitting in my motions pending file since November 19, 2009. The judge asked Jose Baez if he wanted it heard or if he should just deny it since he had no interest in calling that motion up. Baez got to his feet, buttoned his jacket, and informed he would probably withdraw the motion and file it closer to trial. (Hmm... could it be that with the latest deposition of Brandon Sparks, the motion is falling apart some more?) Baez stumbled through a few hesitant words until Judge Perry gave his "Please bear in mind" speeches about those pesky deadlines! The judge clearly stated that if Baez set that motion beyond the deadline, he definitely would not hear it, especially since it was already known to the court. Baez backed off with a few mumbled words about speaking with his team.
Baez stated "yes sir" when asked if all the depositions with the State's expert witnesses had been completed.
Judge Perry then asked Baez if all examination of evidence was complete since the deadline was October 31. Baez responded that all that was left was the DNA evidence. According to John Ashton, the shorts and laundry bag have yet to be sent out to the lab. The judge expected to have the results of that testing within the next 45 days (give or take a few days), starting today. Judge Perry also made Baez state that there WOULD be a report on the DNA testing.
One thing I noticed in the DNA testing was that Jose Baez said he had just handed the stipulation to Ashton! I thought that had been dealt with much earlier at a previous hearing!
Ashton was reminded of the February 28 deadline for defense expert witness depositions.
Baez said he would be in compliance with tomorrow's deadline for the listing of expert witnesses.
Ashton indicated they had scheduled two of the four currently listed experts for depositions in December.
Then, Jeff Ashton dropped a bomblet on the court. Mr. Baez had informed him that Mr. Petraco, the hair expert witness would not be on the witness list. Baez response was that he believed so, "unless it changed from today to tomorrow". Go figure that one out!
Ashton also indicated that they were having difficulties in getting responses from Dr. Lee concerning the scheduling of his deposition.
They were also trying to schedule the botanist, Dr. Brock. (As Ashton was saying this, Baez got up an faced the rear of the courtroom to wave people in to sit in the front row.)
Jeff Ashton brought up the Frye hearing. From what he understood, the defense is going to challenge the use of the decomposition odor base only (application of data to data base and not the testing procedure.) Aston wanted to know of any scientific witnesses the defense would be using so he could prioritize them.
Baez agreed and said he would be willing to discuss how the hearing would be held.
Perry reminded him that the deadline for such motions was February 28.
Baez also said that as of today, they had concluded the LE depositions, not including the no-shows and two officers involved in a criminal investigation.
At this point, Baez is driving me crazy with the "playing with his pen". He plays with it, opens and loudly snaps it shut, very distracting!
He also plans on "knocking out" as many of the civilian witnesses as possible in December. (Isn't December 31 the deadline for those listed after May 28?) When Baez indicated he had a trial during one of those weeks, as did Linda Drane Burdick, the judge reminded him that, "that's why we have Fridays and Saturdays". Baez assured the judge that they would be done "long before trial". (Jose, remember the word so dear to Judge Perry's heart: DEADLINE.)
Judge Perry then gave another "bear in mind" speech about the deadline for non-forensic scientific motions without witnesses were to be filed and heard no later than December 31, 2010 (in reference to Roy Kronk).
Finally, we got to the issue of Penalty Phase witnesses. Ann Finnell said that she had a list of 50 known witnesses to turn over to the prosecution. She said she was not prepared on the mitigation expert yet and asked for more time. She said she would hope to be able to list one within the next 60 days. (It looks like Jeanene Barrett is out. I heard somewhere that she is not licenced in Florida and cannot receive compensation from the JAC. I have not been able to confirm it, but it's a possibility.) The judge gave her until January1 to find one, considering her considerable experience in the field.
She also brought up her motion to seal penalty phase discovery. Unfortunately, it can't be heard today since the media was not noticed of the hearing. The judge agreed to keep the witness list sealed until a hearing could be held on December 20, at 1:30.
At that point, all the attorneys went up to the bench for a side bar. Casey spent her time writing notes to her "prisoner-sitter" and had a good old time.
When the attorneys returned to their places, it was announced that the TES records were done. The defense will be required to give the state a list of witnesses from that exercise by December 31, and the State has until March 30, 2011 to complete their depositions.
There was one more matter brought up at the end of the hearing with Cheney Mason and the JAC. Apparently, the court stenographer in Tennessee charged more than the agreed price by $1 per page. Judge Perry suggested he sign contracts with transcriptionists prior to hiring them.
With that, the hearing was adjourned.
I must say, with a limit of 45 minutes, the defense managed to cut down on the verbiage and get their messages across. Perhaps the judge should set time limits in the future?
View the hearing: