Friday, February 25, 2011
Today's hearing was not immediately televised as it was held in a conference room. There was, however, a pool video and I DVR'd the InSession coverage. Since the hearing began prior to InSession going on the air, they saved it for later on and aired it in its entirety. As I was writing this article, WFTV finally posted the video which shows some pre-hearing banter.
As the hearing was called to order and the attorneys started to introduce themselves for the record, it was noted that Jose Baez wasn't there yet. Cheney Mason mentioned he had just flown in from Chicago. Jeff Ashton asked when his plane came in and Mason said, "last night". Jeff Ashton was in a hurry to get going because he had a trial at 9:30 AM. Judge Perry asked if Baez had an Orange County Bar card to get in the back door. Mason said he had no problem getting in. There wasn't a line at the back door, either.
Then, Brad Bischoff phoned in as we awaited Mr. Baez. There was more chit-chat about cell phones, Jeff Ashton mentioned "bat phones"!
About 4:10 into the hearing, Baez arrived with Michelle Medina.
The hearing opened with Baez Law Firm attorney Michelle Medina speaking to the two motions filed.
Judge Perry quickly settled the first, the The Motion to approve Hourly Rate and or Costs For Video Conferencing.
After considering the difference in the cost between flying experts from such places as Canada and Nebraska and all the costs of lodging and other transportation to sit around for a long time just to "flap their gums" as Judge Perry phrased it, it was decided the prices cited in the defense motion would be acceptable.
The only issues brought up by Jeff Ashton were if there was a motion to allow video testimony at the hearings and if there would be a way to show documents and photographs to the witnesses.
Medina replied that the defense had been urged to do as much as possible through video to save money concerning the witnesses.
Judge Perry stated that he had long ago advised that video-conferencing be used to save money and all parties were in agreement that this was the way to do this testimony.
Ms. Medina then spoke to defense attorney Ann Finnell's Motion for Additional Costs Related to the Engagement of a Confidential Mental Health Expert to Assist in Exploring Mitigating Factors.
She stated that there was an issue with the "mental health expert in the mitigating factors in the penalty phase." They want approval of "more costs" for "more collateral interviews done with the family as well as an evaluation and a couple of more visits that need to be made and we're about to..."
I started to get a bit confused here because the motion is about the Engagement of a Confidential Mental Health Expert. Where did the interviews come into this?
Judge Perry also seemed confused because he interrupted Ms. Medina to ask, "is this with the confidential expert or the mitigation specialist?" Medina said it was in regards to the confidential expert and they were about to hit the $2500 cap the Court had set.
Perry then asked about the number of hours they needed. Ms. Medina simply replied that the defense needed another $4500.
The judge then asked again about the hours. He did cut her a break by pointing out that Finnell had drafted the motion, not her.
Not to be unkind to a young, new attorney, but she needs to stop taking her public speaking lessons from Jose Baez. Her response was:
I do not have that information with me just because, I know there would be travels involved, visiting family members, immediate family members, as well as family members through(out)? the Anthony home and so I don't have that readily available, but I can supplement that.
Judge Perry said, "I'm a little confused, and maybe you can clear it up for me."
He explained that he thought that the confidential expert was to do an evaluation to see if there were mental issues or other issues (such as brain damage, childhood trauma, incompetence) to be dealt with in the penalty phase, should it become necessary.
He indicated that he was confused because mental health experts usually hone in on the individual and that it seemed as though they were using this person as a second mitigation person.
Medina said that before this expert could do his second evaluation, these interviews needed to be done. She said she could get more information.
At that point, Perry suddenly changed gears and said that he would grant the motion, because "we gotta get this thing movin' , the clock is tickin."
I think poor Judge Perry is so tired of the delays that he felt this one wasn't worth arguing over!
Mr. Bischoff reminded the judge he had filed a reply but at this point, he took no position. They now have $4500 subject to JAC rules.
Bischoff also indicated he had received motions for expedited transcripts. Perry said he'd already taken them out as he doesn't "do" expedited rates!
With that, the hearing turned to other matters.
Baez stated that he wanted to move the motion for K-9 alerts because two of the essential witnesses are unavailable. One is CSI Vincent, who witnessed one of the "alleged alerts" and one of his experts who will be in town the week of the 23rd. He wanted that motion moved to then, along with the other "forensic" motions.
Psst! Baez really wants those puppies to be a Frye issue.
Linda Drane Burdick answered that they could possibly stipulate to testimony from CSI Vincent. She also said that Dr. Furton, who was mentioned in an e-mail the previous day, had not been listed to deal with K-9 issues. In addition, in his deposition last Saturday, he had told them that he hadn't been asked to deal with any of that. In addition, the report that they had received pursuant to court order, did not mention this information either. If he were to testify, he would have to submit a supplemental report. Needless to say, Ms. Drane Burdick was surprised by this recent (since Chicago) turn of events! In fact, at his deposition, she had asked him questions about the K-9's, stating that he hadn't been retained for those purposes. In the end, she indicated her witnesses for that motion would be available the end of March and she would have no objection to the change of date.
Perry asked Baez for a reply. Baez said that in response they filed referred to the fact that he would testify to the K-9 alerts. Apparently, Linda Drane nodded and Baez pointed out that since she was nodding shes NOT surprised!
Let's think about this. Somewhere in January, the State received the "discovery" from the defense which was found wanting in detail according to the State and the judge. Then, just last Saturday, Furton denies any role in the K-9 alert issue. Wouldn't YOU be surprised?
Baez then adds that based on questions from Ashton at Dr. Fairgrieve's deposition, they decided to include Furton. I'm more confused than ever! He even offered to have Dr. Furton write a report on the cadaver dog issue. Perry's first response to this was, "He may not be testifying to the cadaver dog issue."
Perry then said that he was going to look at every expert's deposition and summarize them. He then said he would go through the reports. He told both sides that he hoped that they had filed all the documents with the court. He will likely strike any testimony that is brand-new, that's never been heard before. He alluded to the Federal Courts, where there can be surprises and said that it wasn't so in his court. It was a shortened version of his famous poker-playing analogy where each side sees the other's hand. Apparently, a tardy report from Dr. Furton is not welcome to the game.
Baez' next issues were the two motions that Jeff Ashton wanted heard on the 2nd and the 3rd (cholorform and root growth). Ashton replied to Baez that he only wanted his motions to strike Baez' motions to be heard. (There's a bit of a difference there!) Baez responded that it would be better in terms of judicial economy to hear them at the later hearings (I'm interpreting here.) Baez wants these both to be subject to Frye and Ashton has stated they aren't. There is an issue that experts will be needed to testify for these motions to be heard, whether or not they are Frye issues. There was a bit of tossing out legal references as to Frye vs. opinion testimony.
Judge Perry decided he would hear Ashton's motions next week.
Mason then speaks up about the lack of cooperation of the FBI without approval of the US Attorney. In the end, Perry asks Ashton to as for help with Nick Savage and Scott Bolin who will testify in the motions to exclude statements. Ashton indicated that the problem could be that they were only served subpoenas the week before.
Judge Perry then gives the countdown to the trial. "May 9 will be here before we know it." He tells the State they will have to help them as much as WE can.
Baez then told the judge that he was having a problem roping in witness Sylvia Hernandez, known for aiding in the passing of letters between Casey and Robyn Adams. Apparently, she's a police officer now and when the defense investigator went to interview her, he was told to leave town. She also didn't bother to show up for her deposition! Mason finally did admit she may not have been served in a timely manner.
Mason said he sent the Sheriff a letter and Judge Perry kindly offered to make another phone call to help out the defense team corral her!
There was some mention that she might be a crucial witness in the motion about "state's agent". Linda Drane indicated the defense investigator had contact with her at her home. Apparently it wasn't a pleasant experience on either side!
Finally, Judge Perry suggested she could be served when she appears in court as she takes the stand!
With that and a bit more chit-chat, the hearing ended.
Baez got the money he was asking for. Baez seems to be out a witness for the K-9 issue.
This hearing turned out to be quite pleasant, perhaps due to the close space and informality of the situation. But it did not convince Judge Perry to accept a late report!
Judge Perry's Order on the hearing today, financial issues.
Judge Perry's Order Setting Hearing On State's Motion For Rule to Show Cause
Watch the hearing: