January 13, 2011
Also, it seems that there is an excellent possibility that the motion will not be heard tomorrow at 2 PM. Casey Anthony is not expected to attend.
But, we know that, in this case, you never know what will happen.
When I planned this article, it was merely to say that we will have the next status hearing on Friday, December 14 at 2 PM. I was expecting to write about what hotels the defense would ask for versus the State's request. I was considering if the defense team would bring up the idea of a huge jury questionnaire similar to one they proposed for Casey's fraud trial. I was wondering if Judge Perry would deny them again saying that he didn't care for them.
Boy, was I ever wrong! Yesterday, the defense filed an astonishing motion: Motion for Reconsideration of the Court's Order Granting State's Motion for Sanctions/Motion to Compel and Request to Vacate Finding of Contempt. There had been rumblings at the last hearing, on January 3, that there were going to be some "papers" filed by the defense.
The motion is so astounding that it sent me off on an all-night search for past hearing, past motions, past reports. Thanks to the collective wisdom of such sites as Websleuths and the Hinky Meter, I was pointed in many different directions concerning the content. I would love to thank all the people who write and post at these and other sites I read, but that would be an article in itself!
After a nice, long cold winter's day nap, I have managed to put my opinions together enough to attempt to write about it.
I have a strong belief that this motion will be heard on Friday because the content is timely to the defense discovery issue.
Back on July 24, 2008, George Anthony was interviewed by Yuri Melich. When asked about his daughter, George made this statement:
And like my daughter takes things as far as she can take them. And then she piles on some other stuff.
This motion struck me the same way. The defense has been doing the least possible to provide discovery and when called on it with sanctions, they "pile on some other stuff".
First, let me give you a brief history of this "saga" as Cheney Mason refers to the whole discovery situation.
When Jeff Ashton made his first motion for discovery on November 19 (note how Mason points out that it was SIGNED on the 18th), he was looking for basic information about the opinions of the defense experts to make it possible for him to conduct depositions. Since Jose Baez had said there would be no reports, Ashton was granted the photographs, a list of defense experts, and the notes they took which weren't part of any work product on November 29.
Two days later, on December 1, Ashton filed a Motion For Clarification/To Compel Compliance With Order For Additional Discovery. This was the motion with all the e-mails back and forth between Baez and Ashton. It's the one with the list of experts and snippy comments and a recommendation from Baez to "give him a call" for more information.
This response from the defense did not please Judge Perry in the least and he called Baez up for one of those famous Q-A sessions before the bench.
On December 7, Baez filed a Notice Of In-Camera Inspection. (The defense somewhat met one of the requirements.)
COMES NOW the Defendant, CASEY MARIE ANTHONY, through the undersigned counsel, hereby gives notice that on Monday, December 6th, 2010, the undersigned counsel submitted notes taken by a defense expert during the evidence inspection to the court order the assertion that said notes are work product and as such respectfully requests the court's determination on the matter.
We've never heard if Judge Perry made a decision, but please note that Baez only submitted the notes of one expert!
On December 10, Baez filed the Defendant's Notice Of Supplemental Discovery which contained photographs from Dr. Werner Spitz and Dr. Jane Boch (sic) (The defense met the second requirement)
On December 10, Perry made his second Order which required more information from the defense than before. The defense deadline was December 23 at noon.
Unfortunately, the required document did not arrive until the following day. Even so, the defense did manage to supply some additional information about the testimony of the experts. The obnoxious language in Baez' Response To State's Motion For Clarification Of Expert Witnesses was that any number of witnesses would "rebut false claims" of the State's experts. However, Baez threw out a few more details, but not enough to do a decent deposition! There was an addendum with the CV's of the witnesses which made the reply about 300 pages.
At that point, Ashton decided to slam the defense with a Motion For Sanctions For Failure To Comply With Order Granting State's Motion For Clarification/To Compel Compliance With Order For Additional Discovery. Judge Perry again agreed with the defense in a hearing on January 3, 2011. The hearing was notable for the fact that Cheney Mason did most of the arguments. Even so, Baez did end up with a Q-A session with him. Judge Perry listened to Jeff Ashton summarize the defense's attitude towards reciprocal discovery. As I wrote in my January 3 article:
Ashton summarized the defense as showing "deliberate, willful, contemptuous behavior", that they will do discovery their way and ignore the court orders. Therefore, sanctions are appropriate.
Here is the judge's Order. By this point, Perry is ordering actual reports from the defense expert witnesses. If you read the two previous responses by the defense, you will see that each time, they add just the tiniest of snippets of information about the testimony.
In this particular Motion, it is obvious the defense does not want to abide by the orders sent down from the judge. I have a feeling the good judge will not be pleased on Friday.
The motion, authored by Cheney Mason, outlines the "saga", much like I did above, but with a defense slant. He first of all points out that the motion is "timely" (ie. not late).
In his next paragraph, he states that "The issue boiling over in this case is one dealing with discovery and alleged violations thereof." Apparently, Mr. Mason feels that what the defense has supplied is all they need to supply!
He brings up the vague nature of the judge's language in the first order in terms of what "subject matter" means. He argues that Ashton interpreted that as the "substance" of the testimony, but that he recognized his "mistake".
By the time we get to page 4, paragraph 6, we start to get the "sob story" of poor, newly-minted attorney William Slabaugh, Esq. Mason even includes an affidavit from the young man concerning his efforts to file the tardy documents on time on December 14, 2010. It states in part:
7. In the afternoon of December 14, 2010, I drove from Kissimmee to Orlando to file these documents with the Clerk of the Court, State Attorney's Office, and Judge Belvin Perry.
(If he left in the afternoon, he was already late; the deadline was noon!
8. Due to severe traffic conditions, I did not reach the doors of the Orange County Courthouse until 5:02 pm....
What is interesting here is that this is not the story Baez told in court on January 3. According to Judge Perry's order:
Defense counsel Jose Baez argued he filed the document one day late because he needed to obtain the experts' curriculum vitae, and acknowledged that he did not ask for an extension of time. He, too, failed to explain the non-compliance with the Order.
That's it guys, blame it on the rookie!
Nevertheless, Mason tries to put more of a spin on the lateness of the discovery material by saying that:
7....Most importantly, this good faith performance included all of the documentation that was not due for another eight days (December 23, 2010).
He does, in a way, admit that the information was a bit lacking when he says:
8. The defense response to the "clarification" Order indeed substantially complied with each of the five provisions orderd by the Court.
In the bulk of the motion, Mason graciously adds a few more details to the testimony of his experts and even deletes one from the list.
I won't bore you with all the information provided, but here are some highlights.
Dr. Henry Lee. Mason goes on and on about the fact that Lee discovered 17 hairs in the trunk of the Pontiac Sunfire. For an excellent article about that topic, do read JWG's excellent article on the Hinky Meter, Hair today, gone tomorrow.
He also claimed that Dr. Lee's value to the case had been diminished because his attempts to access the recovery site on December 12, 2008.
This brought to mind Judge Stan Strickland's Order of April 13, 2010.
Over the past 20 plus months, in-between media interviews, guest appearances on television shows, and press conferences, defense counsel has filed a litany of motions. The content of the motions has ranged quite broadly from a Motion to Disqualify the State Attorney's Offe, to a motion to stop law enforcement from securing and investingating the crime scene of a homicide, to a more recent motion wherein defense counsel invited the Court to simply "trust" him... (bold mine)
So, it seems that the odds are slim that we will see Dr. Lee at trial. The hair he found had no death band. End of Henry Lee's story. Or is the problem really one of payment?
Mr. Mason spend quite a bit of time discussing Dr. Werner Spitz. To show the defense's "good faith effort" they add more to what he would testify about, were he to testify. He's sounding "iffy" for trial, too, which is probably why Mason shared some tidbits about what he would say about Dr. Jan Garavaglia, the ME.
...Dr. Spitz, if called to testify would specifically additionally testify that the examination by Dr. Garavaglia was less than the appropriate standard for such medical examiner's protocol. Dr. Spitz would testify that the skull should have been opened by Dr. Garavaglia, which he did in the performance of his second autopsy. Dr. Spit discovered that there was a deposit of dirt/mud on the inside of the cranium, on the left side, which has not been discovered by Dr. Garavaglia.
My friends and fellow posters led me to the autopsy report. Two things were noted.
The inner aspect of the cranial cavity is examined with light and reveals sandy dirt and an
attached small incisor which is adhered to the inside of the calvarium with dirt. (p. 8)
In another area of the report it was stated that there were saline washes of the cranial cavity.
Dirt + Water = Mud, Dr. Spitz. Perhaps you omitted to read the autopsy report in depth?
This discovery of the "mud" on the left skull of little Caylee's remains by Dr. Spitz had led the defense to believe that the remains had been left on the left side and not upright as in "claims" made by investigators and the prosecution.
Could this be the "magic information" that will absolutely prove Caylee was moved? Nope, I don't think so.
Two of the experts, Dr. Kenneth Furton and Dr. Barry Logan will testify at the Frye hearing on decomposition odor.
Dr. Freeman, the epidemiologist, has been removed from the witness list.
As for the rest, the defense gave bits and pieces and when one reads the motion, it would seem they will have little to say that contradicts the State's case.
At the very end of the motion, Mason states that:
12. Your undersigned submits that in light of the history, as set forth above, (and Order entered causing disagreement between State and the defense; discussions as to the interpreting the "intent" of the Court, the responses, and now the supplements), that a determination of "civil contempt" is unnecessary to acquire compliance"
Well, good luck, Mr. Mason. Jose Baez didn't comply the first time and didn't comply the second time. Each time Mr. Ashton brought the situation to court, Judge Perry upped the ante. At the point he found Mr. Baez in civil contempt, he also ordered the reports from the experts and they could only testify to what they had reported and what the State learned through depositions.
The fact is, Judge Perry only ordered the defense to follow Florida Rules of Discovery. I don't believe that throwing out little tidbits of information is to the benefit of the Defendant, Ms. Casey Marie Anthony.
I'm am eagerly awaiting Judge Perry's reaction to this latest whine-o-rama and minimal compliance by the defense. I also wonder if Jeff Ashton will write a reply. I'm sure this motion has revved him up!
See you all at the hearing on Friday! 2 PM SHARP!