2/28/11 10:15 am
The State has just filed the following motion listing motions to be heard Wednesday and their witnesses. I do believe the defense has the same obligation. Let's see!
We have two big days of hearings this week, March 2 and March 3. Both days, the hearings will begin at 9 AM. The hearing on the 2nd will end at 3:30 and the hearing on the 3rd is scheduled to last 8 hours. There is also a status hearing set for Friday, March 4 at 1:30 PM. Let's hope that between the first two days, the Court can manage to squeeze in the status hearing.
As usual, I've been doing my homework and have been reviewing the motions to be heard. Originally, these hearing were to include all motions in limine which do not involve Frye Hearings. Unfortunately, the situation has changed and we will be treated to two motions filed by the State against the defense. In addition, due to the fact that the defense is being recalcitrant in filing paperwork, there is no clear demarcation between motions in limine and motions in limine in regards to the Fry Hearings.
Are you confused? I certainly am!
There are two motions which Judge Perry has scheduled specifically to be heard on Wednesday, March 2.
The first is Linda Drane Burdick's Motion to Strike Defendant's Supplemental Witness List. I have a discussion of the motion HERE.
I just have a few additional thoughts to offer. In his Order, Perry indicates that:
However, the defense has not alleged that the individuals listed in the Supplemental Witness List filed February 14, 2001 were not previously known, nor have they set forth the date of the witnesses became known or any reason for the late disclosure.
If you look at Baez' Motion To Strike The Motion To Strike, he does make an attempt at giving good cause, but lists no dates when the witnesses became known to the defense. He does, however attempt to plead his case in general, which does not meet the criteria of the motion.
He also whines (again) about the fact that the State continues to release discovery. Last week, I watched the presser in which the indictment against Elisa Baker in the murder of Zahra Baker was announced. Among the comments made by the prosecutor was that they "would continue the investigation up to the day the trial begins." (Paraphrased) Jose Baez needs to learn that the investigation isn't over until the trial begins. In fact, it could possibly continue during the trial.
The next motion has garnered a great deal of publicity. Jeff Ashton has filed a Motion to Show Cause. Dated February 20, Ashton asks the court to hold Jose Baez in contempt of court for missing the February 17 deadline to "submit to the court in writing, the specific issues that will be objected to in accordance with Frye, including byt not limited to, those objections previously addressed in the motions."
Ashton kindly attached an e-mail from Baez which said that he was "confused" as to the language and thought that he only had to respond if he had any ADDITIONAL issues. He even said that Cheney Mason was even more confused than he was!
The interesting point is that Baez' deadline was the 17th. Ashton called him the 18th to ask (Baez always tells him to give him a call) about it. It then that Baez contacted Judge Perry's judicial assistant with his puzzling e-mail. The order was issued on February 7, and in the 10 intervening days, Baez NEVER telegraphed his "confusion" to the court to understand what he was to do.
On February 25, Judge Perry issued his Order and set the motion to be heard on the 2nd. I don't think the judge was very happy with Mr. Baez based on what he wrote. First, he copied the language from his February 7 order, providing the emphasis on the questioned language.
5. Frye Hearings: The motions addressing Frye issues pertaining to scientific evidence shall be held on March 23, 24, and 25, 2011. The Court will provide a schedule to counsel as to the order in which each motion will be heard. By February 17, 2011, at 4:00 pm., defense counsel shall submit to the Court and State in writing, the specific issues that will be objected to in accordance with Frye, including but not limited to, those objections previously addressed in the motions. (Emphasis supplied).
The part about "including but not limited to" seems to be the issue here. Do you understand that phrase? I certainly do! I have a feeling that Perry included this part because in his motions labeled "Frye", Baez did not state why they needed a Frye Hearing. At the February 4 status hearing, Jeff Ashton had told the judge that the motions were too general for him to know exactly what science was NOT generally accepted by the scientific community. That's what Frye is all about. Even I, a mere layperson who watches trials understands that. It was this information the judge was asking the defense to produce.
After the judge quoted his order, he wrote:
However, the Defense has not yet complied with this direction. Indeed, despite the clarity of language utilized in the Order, the Defense claims to be confused as to its meaning. Therefore, the Defense shall be given an opportunity to show good cause as required by Florida Rule 3.220 and this Court's general discovery order. (bold mine)
Whether or not the judge finds Baez in contempt of court, the arguments concerning the motion should be quite "interesting" to say the least. How will Jose Baez explain his confusion? Will he allow Cheney Mason again attempt to fight his battle? Will Mason, a distinguished attorney with 40 years of experience admit to Judge Perry that the Order confused him even more than Mr. Baez?
During Monday's hearing, there was a discussion about when the motions for which Jeff Ashton filed motions to strike should be heard. Baez wanted them heard during the hearings scheduled for the Frye motions. Jeff Ashton wanted them heard at the hearings this week. Jeff Ashton pointed out that he needed to have the motions heard sooner because he was essentially challenging that there was insufficient information in the defense motions to support the need for a Frye Hearing. Indeed, if they are not subject to Frye, the defense has the burden to prove the evidence should be excluded from the trial. If they are subject to Frye, the burden of proof goes to the State to prove the evidence should be included in the trial. Obviously, if the State needs to know which position they need to take to be prepared to argue the motion.
Baez doesn't want the State to have time to prepare for anything. The continual delays they have caused by missing deadlines has greatly shortened the time line for the State to do their preparation. My personal "aha" moment came at this point (and I guess I'm a bit slow on the uptake here). Trying to shoe-horn all the science into the "not generally accepted in the scientific community" has turned into a method to push off the burden of proof to the State.
Judge Perry wisely allowed that the two motions will be heard this week. The first motion of a scientific nature is the Motion to Exclude Unreliable Evidence (Plant or root growth evidence).
After listing nearly two pages of detailed discussion of what evidence is subject to Frye (which proves the defense knows the rules), the Baez states that:
1. Dr. Hall is listed as a prosecution witness. He is an alleged botany expert who claims t have the ability to calculate the period of time in which the remains of the victim had been in the particular location in which they were ultimately found based upon certain plant growth/plant root growth. (bold mine)
Baez went on, at great lengths to show that Dr. Hall was basing his opinion on his personal experience since the age of 10 (and Dr. Hall is now 70 years old). There were then many examples of how this testimony could not be acceptable to the scientific community and was subject to Frye.
In his Motion To Strike, Ashton replied, challenging the portion of the defense motion which makes it subject to Frye. The heart of his argument is indicated here (leaving out a lot of the legal details).
The application of the Frye test is limited to scientific testimony based upon novel scientific tests or principles. While the Defendant's motion acknowledges that Frye does not apply to pure opinion testimony, its limited quotation, taken out of context, is misleading....
In resolving the issue, the court focused on the difference between opinions based upon new or novel scientific research and those based simply in the training and experience of the expert.
In essence, both sides in a trial can place well-respected experts on the stand and let the jury decide, based on the evidence provided, which, if any, expert to believe.
The defense Motion To Exclude Unreliable Evidence Pursuant To Frye, Or In The Alternative, Motion In Limine To Exclude (Chloroform) is the second scientific motion mentioned on the Court Calendar to be heard this week. Not being the best in science, I will allow you to try and decipher this motion for yourself. Essentially, Baez attacks Dr. Arpad Vass and the Oak Ridge Labs. Personally, reading the motion made me dizzy, twice! It was interesting to note, however, that Baez included a slew of exhibits, all articles from the media concerning the release of information about high levels of chloroform in the car. They consider this to be "...ABSOLUTELY 100% FALSE, and constitute a fraud on the American public and potential jury pool of Miss Anthony."
Instead, I will refer you to Ashton's Motion To Strike to help you understand the hearings this week. In three short paragraphs, he clearly lays out his case.
1. The test instruments used in the detection of chloroform in this case is the gas chromatograph/mas spectrometer (GC/MS).
2. These techniques have been routinely accepted as evidence in courts throughout the State of Florida...
3. The motion contains only conclusory statements of counsel and no authorities suggesting that the procedure is not generally accepted.
There it all is, plain and simple. the State may have a Frye issue when it comes to using the same equipment to test for the elements of human decomposition, but not with the much simpler use for testing for chloroform.
For the motions, I am relying on Judge Perry's court calendar.
Motion: Mot. to Suppress Statements; Mot. in Limine to Suppress Video Footage; Def. Mot. in Limine to Exclude Evid. to Canine Searches & Alerts; Not. to Suppress Statements of LEO; States Mot. in Limine; States Mot. to Strike Def. Supp. Wit. List
ALSO TO BE HEARD: Rule to Show Cause; Mot. to Strike Def. Mot. to Exclude Unreliable Evidence (Plant or Root Growth) Mot. to Strike Def. Mot. to Exclude Unreliable Evidence Pursuant to Fyre (Chloroform)
We do know that the motion concerning canine searches has been moved to the end of the month.
Update: This motion will not be heard on Wednesday.
There is also another (non-Frye) motion which has not been mentioned in the Court Calendar. It is the defense Motion To Exclude Irrelevant Evidence Of Stain In Trunk Of Car and Jeff Ashton's Reply. I will mention it today because there is a scientific argument involved and it could be heard this week.
Baez doesn't want the stain admitted into evidence because "On August 7th, 2008, tests were conducted by the FBI laboratory which concluded that the stain was NOT biological material..." In addition, he states that "...Intelligence Analyst Karen Cowan with the FBI submitted a photo to a forensic photo analyst claiming that she possibly saw what 'appears to be the outline or silhouette of a child in the fetal position.'" Baez also writes that "A photographic technologist supervisor at the FBI laboratory responded by saying 'we do not report conclusions about what may or may not have left any marks or impression in cases like this.'...'IT IS TOO SPECULATIVE.."
Ashton's relatively brief reply indicated that the State challenged the accuracy of the initial statement that the stain was not biological material. He agreed that the results of the FBI testing showed that the stain was not of serological (i.e. blood, saliva or semen). He points out that:
What the defendant has neglected to include in her statement of facts is that the stain was examined instrumentally by the Oakridge National Laboratory which detected the presence of volatile fatty acids consistent with the byproducts of decomposition.
One little piece of science I've learned from this case is that these fatty acids do not contain DNA.
Ashton also says that Witnesses will testify as to the size and shape of the stain and the jury will be able to view photographs of the stain with alternative light sources.
According to Ashton, this is something for the jury to decide and as far as being overly prejudicial to the defendant, he says, "Is the Defendant is seriously concerned about a bias against sloppy car owners?
Well, I'm back to doing my homework for the case. Tomorrow I will deal with the motions that have nothing to do with science.