Tuesday, May 10, 2011
Today turned out to be a very unusual one. The morning session went well. 42 prospective jurors were questioned about hardships and 15 will be called back for further questioning. That means that, at this point, there are approximately 37 jurors on call-back status.
At the end of the morning session, Jeff Ashton informed the Court that he had contacted the FBI, and they will provide the complete list of compounds in the database to the defense. Then, Baez pushed on to say that he wants a copy of the entire study!
Judge Perry said that they were quite "pacific" yesterday that Baez wanted the list of 468 compounds and now he's getting them! He said he was willing to listen to whatever else he has to say. However, the judge clearly wasn’t thrilled with Baez. Perry said that he wanted Baez to quote him page and line where Vass had refused to answer his questions pertaining to the study. He also told Baez that the failure to ask the question does not amount to someone suppressing the information.
At that point, there was a break for lunch.
When the afternoon session began, the tables were turned again to face the gallery and Judge Perry got ready to go through the same procedure as he had done Monday, when the judge gave instructions, summarized the case and read the indictment against Casey Anthony.
Then, fifty brand-new prospective jurors were brought into the courtroom
Judge Perry asked the people, by a show of hands, how many had other jurors mention the Casey Anthony case to them. Apparently, a lot of hands went up. Then, he asked for a show of hands as to who had conversations about the case. Enough hands went up that Perry had to dismiss the entire group. Jose Baez smirked and Ann Finnel’s jaw literally dropped and her eyes were as wide as saucers.
It was later mentioned by Judge Perry that, by pure happenstance, one of the prospective jurors was a witness in the trial, a searcher for TES. This person had apparently asked other people if they were called for the Casey Anthony case. He also arranged for more personnel to be in the main jury room to avoid another situation such as this. According to Perry, this could set jury selection back by a half day to three days.
The chairs, which had been facing the gallery were then flipped around to face the bench and the attorneys and accused again faced the bench.
Perry then said that he had already ordered jurors for Wednesday and Thursday. He will bring in 50 more on Wednesday morning.
For those who return, he is planning on 5 jurors per hour and they will see how far they can get based on Mr. Mason's questionnaire.
Perry also told those assembled that they will have question folks on Saturday if they have to. Otherwise, they are all to be ready Monday morning.
Now, I was hoping that the day was over and there would be nothing much to post. Unfortunately that didn’t happen. Judge Perry decided that, since they have time, they will hear on Baez issue with the data base.
Baez told Perry that his main argument about it is that it is a violation of 3.220 (rules of discovery). He said that the State of Florida is the proponent of this evidence, and they need to disclose the basis for which they are relying on their opinions, meaning the entire data base.
From this point on, it was very hard to follow Baez’ rapid pace and tossing about of exotic terminology he is so fond of using. Some of it was plain confusing to me. Baez said that Vass' study encompassed many years and they may run into a situation where compounds are not discovered until they are irrelevant to this case. (Understand that, anyone?) There was more which I could not follow.
One thing that stuck out was when said that Vass is considered by himself and Jeff Ashton as an expert on human decomposition. (That was another nasty, wasn’t it? I get very angry every time Baez belittles Arpad Vass who has a world reputation in his field. I even knew about his work before Yuri Melich ever sent the samples to him.)
Ashton replied that the defense says it's a violation of 3.220, but doesn't say what provision in the rules that say that the defense has to supply information they don't have. Ashton indicated all the reports have been provided to the defense.
It all came down to who makes the call to the FBI. (This is so old, it’s as old as the case itself!) Ashton said that Baez, Sims, and Kenney-Baden know that Paula Wolf, a contact with the FBI had been very helpful to them. He felt that the defense had gone above and beyond the rules. He felt direct communication with the FBI would have been more productive for them. Ashton said that he doesn't feel he should have to obtain any additional information that the defense wants (Vass' original study).
To summarize, Ashton stated that Baez' in deposition with Vass, he never asked when which compounds appeared.
Baez said the state is trying to hide the ball. He added that doesn't mind calling the FBI, but he thinks they have a policy of turning materials over to a prosecutor.
He went through past encounters where they didn’t talk to defense lawyers.
His point seemed to be that the state is putting forth this testimony and it's their job to provide the information in discovery.
Baez said that the defense will contact Paula Wolf themselves, but he didn’t think it will help.
Judge Perry then spoke to both attorneys. He brought up the traditional "trial by ambush" story, but pointed out that the discovery rules were never meant to take the place of both sides doing their own homework. He also indicated that the research by Dr. Vass was to be found in Dr. Vass’ 2008 paper. (At that point, my tv video froze and my live-stream feed disappeared.)
When live action resumed, it would seem that Judge Perry had repeated that the defense didn't ask the pertinent questions in deposition, but that he may question Dr. Vass again about them in a deposition. They might have to do it by telephone and the defense motion is denied.
Baez nattered on a bit more, but the judge reminded him that he can depose Vass about the compounds. Baez again reminded Perry that he doesn't have the study.
Perry then brought up Marsh v. Value and pure opinion testimony. He said that the defense has four lawyers and that Ms. Sims was brought on board for her expertiese in forensic science and it's not like they're short handed.
Baez mentioned a "predicate of reliability" and Jeff Ashton leaned back in his seat and shook his head in the negative.
I again relaxed and said, “thank goodness it’s over”. I was wrong, so very wrong.
Jose Baez then mentioned that the defense had also filed another motion this afternoon about Oak Ridge which the judge hadn't seen.
Judge Perry took a 10 minute recess to go over it.
Baez filed a motion for reconsideration of the air tests (he mistakenly put post-mortem hair banding).
Perry then reminded Baez that Vass could testify to his opinions and that his decision did not reach a Frye conclusion.
Miss Fry(?), Cheney Mason's dark-haired assistant presented the motion. She asked the judge something about the odor and the judge favored her with the answer that people use their olfactory senses to discern certain odors. Dr. Vass can open a can and say that it smells like decomposition since he knows the odor well from his work.
She then referred to Arpad Vass' novel research and his conclusions and how they don't meet the Frye standards. She spoke so fast there is no way I can tell you everything she said. The judge had to remind her several times to slow down, but her “slow down” was still very rapid.
Judge Perry sent her to page 21 of the order, the first paragraph and has her read a section.
She said that there were over 150 independent articles about the one in the decision and in this case, there was only one.
Perry then asked her if the GC/MS was reliable. She agreed.
She sped on and then mentioned Vass' pecuniary bias and institutional bias.
Perry brought up the disagreement between Dr. Furton and Dr. Vass. He asked if Furton's point of view was purely his opinion. She said it wasn't.
She read a lot more very fast. She mentions "predicates" some more and said that there was no predicate of reliability.
The defense was asking for a rehearing on this or that the testimony of Dr. Vass be disallowed on this topic.
It would seem that the Vass’ opinion is not backed up by independent opinions.
Jeff Ashton replied that the only difference in the two motions was the voice speaking them.
Perry again went back to the order he put out over the weekend. It does not say that his testing and his testing alone leads to a conclusion under Frye. He was basing his opinion coupled with his testing on that. There were certain defects, one being the sole witness. Based on Beary, his opinion is based upon things that are accepted such as GC/MS, and the laser induced test (performed by Dr. Martin). Vass also said that he cannot say with certainty that the odor is related to death, but that it was consistent with it.
As far as I can tell, Perry ruled on this much in the way he did on the testimony of Dr. Hall with root growth. It will be opinion based on testing.
The motion was denied.
At that point, Judge Perry told the attorneys that there will be a fresh group of jurors ready tomorrow at 9 and there will be more staff to ensure that conversation there will not take place again. He added that tomorrow will be a long day with two new groups being questioned.
Thank goodness, I said, I can’t take anymore. I was again sadly mistaken.
Jose Baez then mentioned that there is an issue of the hair which will significantly bear on the ruling Judge Perry made admitting the testimony. He said that when he took the deposition of the hair experts, they then went back and did other experiments. They feel some of the results could be beneficial to the defense.
Dorothy Sims then spoke to the issue. She said that the FBI decided to conduct an experiment with hair exposed to various environmental conditions. They learned in May of this and another deposition was taken May 3. In the beginning of the deposition, there were 28 photos referenced and sent to the defense. She asked for copies of hard data which she could look at. It took more than a half-an-hour to send them via PDF. By then, Mr. Ashton had other obligations and the deposition had to be ended prior to receiving all the pictures.
As it turned out, more than 750 photos were taken. Most of the material was sent to the FBI field office in Orlando where she viewed them on Friday. She wasn’t allowed to make copies of them or the written documentation that went along with them.
Sims said that the FBI exposed hairs to well water and there appears to be a "mimic" of post-mortem hair banding. She said that she wasn't allowed to take copies, but their expert could be brought to the field office. (Reminder: their expert is Dr. Petraco.)
She then asked if the Court could call the FBI to obtain copies of the materials. (Does this sound familiar?)
Steven Shaw was the expert being questioned. He said that he didn’t believe that the hair exposed to well water, was hair banding, but others who examined it did.
Judge Perry asked Ms. Sims how long she had done forensic portion of trials and she responded, ten years. In her ten years, Perry asked how often she had seen different experts look at the same thing and come up with different opinions. She said frequently.
Jeff Ashton said that the State of Florida is not in possession of the FBI materials. The FBI has gone above and beyond to accommodate the requests of the defense. He also told Judge Perry that this is ongoing research. The incomplete results of this study say that experts in the field have not identified these hairs as having a death band.
Ashton added that this material is not yet published, but they allowed Ms. Sims to look at everything. He pointed out that 600 of the photographs are "before" hairs. If the defense wants to call their expert, Mr. Petraco, then bring him on and let him testify!
Ashton said he even tried to get them to send copies to New Jersey, but it wasn't possible.
Judge Perry asked Ms. Sims if this is ongoing research. Sims responded that the material that has been gathered is possibly exculpatory. Perry repeated the question and she said that it is still ongoing. Her burden would be to have Dr. Shaw to testify by phone. It will be her burden to prove the testimony is exculpatory when the research is still ongoing.
The judge said that he has no evidence to make a decision on this. His rulings will stand.
Perry added that Mr. Shaw would not be re-deposed, but would rather have him testify by phone. She had not shown him that the testimony is exculpatory or has the capabilities of being exculpatory. "It could be a fishing expedition, it could not be a fishing expedition."
Sims said that there was also a hair taken from a 3-year-old Caucasian girl and put it in the trunk for 6 months... Judge Perry pointed out that just because people go out and do research doesn't make it discoverable.
The judge indicated again that a phone call with the expert (and Ashton, Vass, and Perry) will be the way to go.
The call will take place Friday morning at 8 AM.
Jury Selection begins at 9 AM tomorrow.
Watch the day's events:
Part 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9