It wasn't a good day for the defense yesterday. They withdrew the second mental health expert, Dr. William Weitz, making most of the issues to be discussed moot.
They lost their opportunity to keep pictures from being introduced at the trial. They did have one objection that Judge Perry sustained. It was the objection to the smiling face of Casey taken just prior to her initial arrest on July 17, 2008. However, if the defense opens the door by asserting that when being interviewed by LE, she had been under the domination and control of the "big, bad, gun-toting detectives" we heard about when the defense tried to have all her interviews excluded. Then, the state can introduce the photograph to rebut the claims made. If this were to happen, I would imagine it would be during the cross-examination of Yuri Melich, John Allen, or Appy Wells.
Here's a brief explanation about the introduction of photographs into the trial. The state chose those photographs they would like to introduce as they interview the pertinent witnesses. Jose Baez objected to a few of them now, to exclude them from being used at trial. When Judge Perry denied the objection, it meant that the state could proffer them at the trial during the testimony of the witness.
For example, when Ricardo Morales takes the stand, he will be asked when and where he took the photographs. He will be asked to identify the "Big Trouble" T-shirt and identify the picture. The defense will then object to the admission of the photograph at that time and state their reasons. The judge will then make a ruling and, if Mr. Baez is overruled, the photograph will be admitted and published to the jury. The same will happen with other photographs, even if the defense did not object during the hearing. The state will have to lay the foundation for the relevance and tell the judge why it is more probative than prejudicial to Casey Anthony. (The photograph on the right is cropped.)
For the most part, these objections will be immediately ruled on by Judge Perry and the trial will move on. If the defense feels that some of the sealed photographs of the remains are cumulative versus probative, the jury might be asked to leave during the discussion. While I cannot be totally sure, I do believe that the sealed photographs will only be shown to the jury and go with them into deliberations. If the photographs are projected onto a screen, the TV cameras will not show them.
As for the hearing itself, it was almost all wait. There were long side-bars and two in-camera sessions due to the nature of the topics discussed concerning the mental health issues. The last side bar lasted nearly an hour and Casey Anthony, for the first time, joined the attorneys and judge in the jury room to participate in the discussion. When she returned to the courtroom and sat between Baez and Cheney Mason, she appeared extremely anxious, wringing her hands and making faces that showed her anxiety. It must not have been a pleasant experience for her. It would seem that reality is setting in and she is realizing her outlooks aren't exactly rosy.
There was a lot of interesting discussion and question-answer sessions between Jose Baez and Judge Perry. Due to sound issues on the live feeds, I waited until this morning to listen to the parts I couldn't hear before summarizing the actual hearing.
The hearing opened and Jeff Ashton was the first to speak, addressing the state's Motion For Examination By Mental Health Expert. It is a short motion and Ashton stated that it spoke for itself in that it cited two cases, Dilbeck and Hickson, which support that the defense will present mental health testimony which is based on the doctors' examination of Casey Anthony. After Hickson, the court recommended and implemented new rules allowing the defendant to be tested by State for mental defense in mitigation case. The Dilbeck case extended this to capital cases in the mitigation phase.
We know that it is a unique move the defense is trying to make here; they want to extend the issue to their case-in-chief.
Ashton pointed out to the judge that as the situation has progressed, the courts have routine found that the rules should continue to accommodate them. Ashton said that the court gives the court the power to submit the defendant to state testing.
Ashton indicated that the logic here is that the defendant herself is like a piece of evidence and should be examined by both sides, in this case, by experts.
He then addressed the defense response, beginning with paragraph 2. With this alternative, calling a defense witness who didn't interview defendant, Ashton stated that no such expert has been provided.
As to paragraph 3, Ashton said that the state has no objection to the defense being present, because there are rules in other situation that allow for it. He did point out that the attorneys for both sides should be there, but they couldn't interfere with the examination.
As to paragraph 4, he stated that the areas of inquiry those used by the defense experts should guide the questions. The topics were broad but they should be limited to the subject matter the defense went into, however, not necessarily to the specific relevance cited by the defense.
Ashton then addressed paragraph 5, that if none of the experts are called by the defense, the evidence wouldn't be used by the state in their case in chief. The state would be willing to litigate the use of Casey's statements to impeach the statements made by any of the mental health experts.
Jose Baez then stood to address the court with a "brief response," and for once, was true to his word.
He indicated that the key issue was that there is no law that permits the state to demand that the defendant be examined. Because this is not a mental defense, it is just being used to rebut consciousness of guilt raised by the state.
He's correct on that! He and his team are trying to sneak this testimony in through the back door.
Baez used the tattoo as an example. The state wants to use the nature of the tattoo to infer Casey's state of mind or consciousness of guilt. The defense should be able to rebut the state with something more "qualified" than speculation.
(So, they need mental health professionals to tell the jury what Casey Anthony told them about why she got her tattoo. Sounds like a game of telephone used with the purpose of getting Casey's side out without have to put her on the stand.)
Baez ended by saying again that this is NOT a mental health defense. He said that the state is asking the court to do something it has never done before. (Pot-call the kettle black!)
Judge Perry then referenced the two depositions that the defense filed under seal and the ones filed by the state under seal. They contain certain impressions by the mental health experts are basing their testimony almost entirely by what was told to them by a "certain person who will not testify."
Perry then referenced an opinion by Justice McDonald in the Hickson case. The opinion talked about allowing Mr. Hickson to testify through Dr. Krop's testimony. (Note: Dr. Krop is on the defense mitigation witness list.) He then asked how Baez could "get around that?"
Baez replied that this testimony had a different context; it was going to rebut the state. These experts relied on more than one person's conversation, they had other types of testimony and pieces of evidence provided to them.
Perry then asked Baez about a diagnosis. Perry then asked what would these doctors be testifying to and that the reports included Traumatic Stress.
Baez said that he thinks that the issue here is that because a mental health defense is not being asserted and the defendant has not been diagnosed as having a mental defect, there are aspects of behavioral science that would be discussed. He also said that these witnesses have expertise laymen don't. They would be testifying to alternatives to consciousness of guilt.
As Baez was speaking, he paused frequently to "collect his thoughts" and thread through the labyrinth he had created with his attempt to include mental state issues into the case without having his client diagnosed with any known and named mental disorder. I have to wonder if this problem has arisen because his client and her family refuse to admit to the possibility that there are any mental health issues in the family. It could also be that another of the doctors have examined Casey and given her a diagnosis the defense couldn't use to diffuse consciousness of guilt as mental defenses rarely work at trial. The defense may want to save it for the mitigation phase, where it could save her life.
Perry then asked what these experts would be testifying to.
Baez responded with a spaghetti mix of words which I interpreted to mean that they would testify to other reasons to explain Casey's behavior which can be assumed through her statement and actions. They would testify that the supposed consciousness of guilt could be something else. He indicated that a lot of the evidence that will be presented at trial would be irrelevant to consciousness of guilt because of what these witnesses would say.
Here's my hypothetical for this. The expert will state that Casey lies as a coping mechanism, she pretends to have fun while her child is missing due to being in the denial phase of grief, and her flat demeanor was due to the traumatic stress of her situation. Got it?
Judge Perry then broached the problem of the heresay rule and asked Baez to explain how he would get around it. Would the experts be reading reports that someone else said? They have not been cross-examined. Would there be individuals who testify to create a predicate for the introduction of these witnesses? He said that he wanted to avoid sending the jury in and out, "like a Pop Tart!"
Baez again had a hard time answering, again. The "ah's" and "uhm's" peppered his comments.
Finally, he said that they could be given specific hypotheticals and that they would have to lay out specific predicates (whatever that means). He added that there may be another "angle" by which they could have this evidence admitted. He said that a trial's not a scripted event. They are aware of the rules of evidence and will be able to answer objections.
Can anyone tell me if he actually answered the question?
Perry then asked what specific topics would they testify about.
Baez responded that they would testify to topics of psychology and the effects of trauma.
(I noticed that when Jeff Ashton wrote his Motion in Limine of April 13 stated that, "...certain statements were attributed to the Defendant as to events which are remote in time to the events surrounding the death of Caylee Anthony..." Could these statements be ones that throw her family members under the bus?)
Judge Perry then asked if there was anything else.
Jose Baez said "no." (I expect he was glad to be off the hot seat!)
Jeff Ashton spoke next to answer to the fact that neither of the experts is diagnosing a psychiatric disorder like PTSD or clinical personality disorder.
What came next was a big surprise. Judge Perry said he was called by the state and defense over the phone the previous day and that he had agreed to terminate the deposition at the request of the defense. He added that they all know the contents of Dr. Danziger's deposition. He started to say that there were certain things in that deposition...and at that point, he called the attorneys to the bench for a lengthy conference.
When the bench conference was over, Perry called for a ten-minute recess. Judge Perry, Jose Baez, Cheney Mason and Mason's clerk went back to the judge's chambers.
When the defense lawyers returned and Judge Perry resumed the bench, all the lawyers immediately approach the bar.
Baez said that the defense was withdrawing Dr. Weitz and the other motions are moot!
Jeff Ashton agreed with the exception of his motion in limine.
(I wish I knew what went on in that ex-parte hearing in chambers! It's so unusual for a judge to confer with only one side. I wonder if he read the riot act about heresay laws and the unusual methods the defense was using to get that testimony into trial. Whatever he said, by not ruling on the motions and having Baez withdraw it, Judge Perry has successfully removed one item from the appeal that will occur should Casey be convicted.)
Jose Baez then addressed the photographs to which the defense objected. I was surprised that they had so few objections.
Baez first objects to photographs of stickers taken from the Anthony home stating that they don't relate to any evidence in the case. It relates to the Phantom Sticker. He said that the analyst will testify that she saw something in the shape of a heart and can't say it was a sticker. It could be a leaf! It's not probative of anything.
He added that there was no proof there were ever any stickers on the duct tape. There is 0, not a shred of evidence that there was a sticker on the duct tape.
Jeff Ashton said that he doesn't agree with counsel's interpretation of what the witness said. He also pointed out that the motion on the sticker hasn't been ruled on yet. If it's allowed, the court would have to hear testimony about it. The analyst would say it appeared as if there were a residue on the sticker and he doubted a leaf would leave residue on the duct tape. He said that the motion is premature. The defense could object at trial.
Baez said that he would make a proffer, that the witness says she doesn't know what was on the duct tape. He indicated that residue is a matter of interpretation and that she saw it and it disappeared the next moment. He blamed Yuri Melich because used it when he erroniously put down that it was residue of a heart-shaped sticker on a search warrant for the Anthony home.
Judge Perry asked what she testified to in the deposition. Baez said she saw something heart-shaped.
Baez then added that there is no size, dimensions, photo of the item. It disappeared into thin air. The examiner and perhaps and unlisted lab person could testify to it.The jury shouldn't speculate.
He also said that one of the pictures has writing on it too. It's an attempt to link it to Ms. Anthony to the evidence, to say it was a "psychological love gesture" as an example. He said that it would be 100% speculative.
Perry asked Jeff Ashton where they were found. He said that they were found in the Anthony home. Some were found in Casey's room.
Perry asked where in the home they were found.
Ashton said that he would have to go back to the the CSU reports. He also added that the supervisor of the analyst who is on the witness list also saw heart shape.
Perry said that the pictures will be received and Baez' request will be denied without prejudice should the defense establish a foundation.
Next was the Bella Vita tattoo. Baez said he is renewing his objection on previously stated grounds. Again the judge ruled it may be admissible pending proper foundation by the state.
The most hotly contested picture was the picture of Casey Caylee in home of Ricardo Morales, in his bedroom to be exact. The room was disheveled
Baez said that the state's purpose is to show the T-shirt was or may have been found where the remains were recovered. He said that other assertions, "things" could be made from it. They are in the boyfriend's house, in the bedroom, slightly disheveled and Caylee has a little bruise on her face. The shirt is not clearly displayed. He suggested the photo be cropped.
Ashton stated that never noticed the bruise, but it does tie the shirt to the crime scene. It wasn't known to Cindy or George Anthony. It was possibly in the exclusive posession of the defendant.
Perry asked if there were other photos.
Ashton said that the pictures were from different dates. Ricardo Morales said it was a shirt that Casey kept for Caylee and didn't buy it for her.
Baez continued his objection that the photograph could lead people to start people guessing and speculating.
Perry asked if there were any other pictures taken the same day.
Ashton said that he thought were from from two different dates.
Perry asked Ashton that if it is the only photo from the date,, is the bruise caused by anything other than what Baez said (fall against a table).
Ashton said he didn't really know.
Perry asked if it could be airbrushed or photo-shopped out.
Ashton then showed Perry a second which is from a separate date.
Perry then asked if one could interpret it as a bruise and speculate. Finally, after a lot of this back and forth, told the attorneys to get together to stipulate to the nature of the bruise or airbrush it out.
Baez asked if the picture could be cropped.
Perry said that he was only concerned about the bruise.
Ashton said that they can stipulate to the jury that the bruise was not something nefarious.
Baez also objected to the Casey Anthony picture taken the day she was arrested. He pretty much said that Ms. Anthony will be in the courtroom and the jury will be able to see her. The smiling picture would lead to speculation about its relevancy.
Linda Burdick said that this picture was introduced in a previous motion that Casey was being held under the influence of the officers. The picture went to the fact that she was happy after her trip to Universal with the detectives. The picture would tell the jury that the photo was taken of a cooperative Casey Anthony. She stated it was etter than the officer's description of her cooperation. She asked were was the prejudice.
Baez said that a smiling person doesn't necessarily make them happy, that the picture had no relevance.
Perry gave Baez is one "win" for the day and said the objection is sustained unless the issue of happiness or unhappiness comes up in cross, the state can use it in rebuttal.
The last picture was of Casey Anthony hugging Tony Lazzaro at Fusian. Baez said that these photographs are not evidence of flight, were taken after the crime was over, have nothing to do with the crime, are highly prejudicial and indicative of nothing that has to do with a 1st degree murder case.
Frank George spoke for the state. It was very difficult to hear him as he didn't speak from the podium. He said Fusian photos chosen were taken at different times of night and showed different activities
Baez repeated that the alleged crime was over when the pictures were taken. They are not relevant to the crimes as charged. To add to his repetition, he said again that they were not evidence of flight.
Judge Perry asked the date it was taken.
George said it was taken June 20, 2008 and that Casey Anthony had said that she was looking for her daughter during this time frame. These photos were taken when Casey said that she was looking for her daughter.
Perry again denied the objection, pending foundation.
Baez' only objection to the crime scene and autopsy photos were that they were duplicative (cumulative) and could be argued at trial.
Ashton said that of the 400-500 photos, they had chosen the ones they did for a specific reason.
Baez then went on the jury issues. He filed a motion the judge got during the break. He believed a change of venue is in order, and the defense doesn't believe that 5 days is sufficient time to empanel 20 people. He objected to the idea of coming back to Orlando after 5 days.
Judge Perry told him that if there is progress, they won't stop and even mentions using the weekend! He said that "This is what's going to happen."
There's going to be some press in that area (not as much as you've seen here). There will be press generally throughout the rest of Florida, very similar to what is here.
One can try to see IF you can get a jury in the proper venue. You can try to empanel a jury in Orlando and then go somewhere else. But they are trying to go somewhere else.
If the first attempt fails, go somewhere else.
Baez responded that jury selection could be the most important aspect of the trial. He then said that if the media is the culprit that caused the damage, place restrictions on them!
Perry responded that we don't live in Egypt, Libya... there's a thing called the First Amendment and it's in the Constitution. He said that he can't control the media.
Then Baez suggested they turn off cameras in the courtroom under discretion of the court.
Perry, seeming a bit amused, explained that the Florida Supreme Court turned the cameras on, but he's never heard of them turning them off.
He also told Baez that the media would have a 48 hour reversal! (I have to wonder if Perry was thinking, "hint, hint, wink" when he said that.)
Baez continued to argue about turning the cameras off. He said that there have been jurisdictions that have had the cameras turned off. (Apparently not jurisdictions in Florida!)
Baez ended his argument by saying that Ms. Anthony's rights are the only ones that matter.
Perry said he knows of no decision and that he would first have to apply to the laws of Florida.
CheneyMason piped in that some places block cell phones. The rest of what he said was unintelligible to me.
Baez then renewed his motion for more advanced notice. He said he wanted to know how the jurors there will be summoned.
Perry addressed the jury issue first. They would be chosen the same way as every court in Florida based on drivers license records and a formula. He added that they wouldn't know what trial they would be coming in for.
Baez, who has money issues as we all know, wanted to know the jury location early so he could deal with planning, budgeting, staff considerations.
Judge Perry pointed out that they knew what to pack and that ill will be hard to find a hotel over $50 a night. He also said that only one person on each side is to know the destination and that they need to leave by 8 AM that morning for 9:00 jury selection. (He's narrowing it down a little more today.)
Jeff Ashton wanted to be able to tell his family where he is. Judge Perry asked if he had a cell phone and that he could call his family at 8 AM! The judge, who seemed to be running out of patience with Mr. Ashton, told him to "tell Mr. Lamar if you want him to replace you."
Then, Cheney Mason piped in for a second time to indicate that the defense wouldn't miss him. He actually said it twice. Linda Burdick had to restrain Mr. Ashton at that point and the judge reminded Mason about addressing other attorneys.
Ashton wants to see the questionnaire. He said he didn't want it to be more than one page.
Ashton then noted that Dr. Danziger was removed from both phases. He wanted to know if the same was true for Dr.Weitz. Baez said he was just being withdrawn from guilt phase only. Ashton said that they still want to unseal the deposition for their expert to see.
At 3:05, all the attorneys, Casey Anthony and the Judge go back to the jury room to hold an in-camera session. This is the first time Casey was included. It didn't end until 3:54. Casey and her team didn't look too happy.
It was one of those times it would have been nice to be a fly on the wall!
Jeff Ashton mentions something about the State's Motion in Limine as open business. I don't quite understand why, though. He does have another Motion to Unseal Depositions of Defense Expert Witnesses.
The judge then asked for input about the statement of fact which will be used to summarize the case for prospective jurors. This is due by next Thursday.
Perry also wanted the attorneys to give him times for the status hearings.
There was a discussion of the number of seats needed for trial.
Perry mentioned that the defense wants to sit against the side wall.
He also asked about any changes to equipment in the large courtroom to be used for trial.
It seems there have been some renovations to that courtroom.
Ashton is to check it out.
Finally, Judge Perry brings up the defense Fourth Penalty Phase Response and the newly added late witnesses.
Ashton only remembered the Dr. Weiss and Dr. Danziger. Judge Perry reminded him about the others.
Apparently, we will hear about it at next week's status hearing, whenever it is!
Watch the hearing: Part 1 of 4 | Pt 2 | Pt 3 | Pt 4