A Non-Day In Court: Will Baez Be In More Trouble?
Judge Perry entered the courtroom at 9:00 AM this morning. As is not unusual, the session began with a bench conference.
When it broke up, Jeff Ashton spoke first. He said that only took Dr. Rodriguez deposition on Saturday and needed time to study it before he cross examines the witness. He also said Rodriguez said that, from his personal experience, a person cannot distinguish the smell of decomposition. In addition, there were other non-disclosed issues which came up but he thinks he can do it on the fly.
Ashton also told the judge that Dr. Eikelenboom showed up yesterday at their offices yesterday to be deposed, Mr. Baez had sent him there. Ashton turned down the opportunity. He never had a report from Dr. Eikelenboom which gave any opinions. He received more discovery yesterday and a PowerPoint presentation. He wanted to prepare another package of sanctions. According to Ashton, the doctor is going to testify to non-results in touch DNA. Ashton said he needed time to depose him.
Jose Baez again pointed out that the prosecution had the right to take depositions. (This is essentially the same argument Baez gave Saturday.)
Baez said that this was done deliberately by the prosecution to limit the testimony. He said that the prosecution did this twice, once with Dr. Rickenbach. Then, there was the late disclosure of photographs from the FBI. (Shaw)
As to Dr. Rodriguez, "all" he was going to testify to is that one can't tell where the duct tape was originally placed.
As to Eikelenboom, Baez wanted him to testify to low copy DNA and degradation of DNA. He said it was a common issue that the prosecution knew of. (Baez was then still arguing that there could have possibly been DNA on the duct tape.)
Baez stressed that he was the one who told Dr. Eikelenboom to go to the State's Attorney's Office and Mr. Ashton himself turned him away. Then, he turned over the discovery to the prosecution.
As for extra time, Baez said that for 7 or 8 months, Ashton sat and decided not to take depositions. He now wanted to delay the trial. Baez then told Perry that the order was very clear. It was to prevent any "gotchas" and Ashton did not take the depositions. He said he warned the court about this during pre-trial hearings. Jose Baez said that he was extremely disturbed by that and he labored daily, nightly on the case. Then, Baez went on to point out that normally, experts do not have to turn in reports.
(Essentially, for Baez, it's all the prosecution's fault.)
Ashton's actions were "repulsive" and "not under the law" according to Baez. Ashton should have known what was going to be testified to.
Judge Perry then had both attorneys look at the clock. Each gave a different time. Ashton said it was 10:25, Baez, 10:26 (Ashton was correct.). Perry said that the two of them can never agree with anything. He then pointed out that the jury had been already sitting for at least 25 minutes. From now on, Perry said, attorneys will have to report at 8:30 to deal with such situations and Saturday will now be a full day.
Perry then addressed the rules of discovery. He went back to the early motion by the State, dated December 10, 2010. The pertinent portion of the order. Both the state and defense are required to provide the information by (That was the time Baez sent the kooky e-mails to Ashton). That order indicated that some of the reports stated NOTHING.
The second order on January 6, 2011, again showed a lack of understanding (by Baez, in my opinion) about what the court had meant. That order asked for a list of the experts' opinions and a summary of them. The example used was that of Dr. Henry Lee. Perry added that the defense had to provide written reports. (We just saw that problem addressed Saturday with Dr. Rodriguez.)
Judge Perry said that depositions did not alleviate the requirement of the report to contain all opinions. He then brought up the PowerPoint demonstration that the prosecution was not allowed to use because the defense claimed they had not received color pictures of the slides.
Then, he mentioned that, in a case of repeated violations, the strongest sanction would be to disallow the testimony. The Supreme Court had never ruled on a case that exclusion would be proper. However, he said, that in the case of repeated violations, he didn’t believe it would be upheld.
Perry was then back to "gamesmanship" in the trial and the friction between the attorneys. He said that was what the Florida Bar would have to deal with. The sanctions from Saturday will be dealt with after the trial.
Dr. Rodriguez testimony will be delayed. Judge Perry said there will be a short day on Wednesday due to him and that he'd already explained the situation to the lawyers.
He told the lawyers to go through the reports of all their experts and make sure their opinions are in the reports and depositions. Enough is enough! Both sides were now forewarned that exclusion, even at the price of doing it all over again, may be the proper remedy if it continues.
When Judge Perry asked who the defense's next witness would be, Baez said it was Dr. Richard Eikelenboom. They were in the process of picking up the third witness and it would take 30 minutes.
The jury will be freed from the jury room for a while and the trial will continue at 10:25.
Judge Perry said he'd now consider starting the trial at 8:30 every day out of concern for the sequestered jury. He also said that he was considering cutting down on the lunch hour, if necessary, to get this trial moving.
At about 11 AM, Judge Perry came out and announced that, by joint stipulation, court would be in recess tomorrow.
One thing I do have to say. The defense is doing a good job of attempting to have a trial by ambush! So far, it isn't working. Judge Perry has to be more than upset. As for the jury, how can they help but be frustrated with all the delays since the defense case started.
See you in court at 9:00 AM tomorrow! Maybe we will have some testimony!