Thursday, June 23, 2011
This morning, there were no "issues” before court started at 9:00 AM when Chief Judge Belvin Perry walked into the courtroom.
Oops, Jose Baez did have an issue and stepped up to the bar. Perry reminded him that these issues were to be taken up prior to the session at 8:30 AM.
After a short side bar, the jury was brought in. Jose Baez called his first witness of the day, Susan Mears.
She was there to introduce the GatorAde bottle, the cardboard from inside the bottle, the Disney Bag, and the syringe.
The items were introduced into evidence and the witness was excused.
Baez then called Stephen Shaw to the stand. Baez asked to re-certify Mr. Shaw as a trace evidence expert.
Baez showed four pieces of evidence to Shaw to be identified. They are the photos of the hairs from his recent study. They are ante-mortem hairs stored after the study done for the case.
Jeff Ashton had an objection to these items being entered into evidence. The objection was overruled.
Baez reviewed Shaw's study. After two leading questions, Baez remembered how to ask an open-ended questions. We were treated to a repeat of the background of the study. He again explained how he put hair from living people under different conditions to see if he could reproduce hair banding. There were more leading questions and compound questions.
Baez then showed the exhibit used by Ms. Lowe earlier in the case to explain hair banding. He then referred to Mr. Shaw’s study and focused on one of the hairs that an expert mis-labeled as post-mortem root banding before checking with the other examiner.
More leading questions, the third time Baez got it right.
Shaw said the examiners didn't know if he had put post-mortem banded hairs among the hairs in the test. (We remember this, we heard it all in the prosecution case, minus the PowerPoint!)
Baez then showed the picture of the hair the second examiner mis-identified. Shaw testified that the hairs looked clearly different from ones with post-mortem banding. The third slide shown had striations in the area, but wasn't post-mortem root banding. Baez went through all the hairs with the witness. (I think that his goal was to have someone on the jury believe it looked just like post-mortem root banding.)
Baez asked if there were any more studies going on at the FBI. Shaw said that there weren't, but there are three others going on elsewhere.
Baez then took him to his report. It had to do with Shaw's study of the hair mass and the duct tape. The results of the examination was that were no hairs suitable for testing on the duct tape. They were consistent with the hair mass. He also collected textile fibers from the mass.
Baez had no further questions.
Ashton pointed out that all the hairs that were suitable for testing were consistent with the hair in the hair mass. He also had Shaw state that none of the hairs Baez showed him came from the tests from the hairs decomposing in the cars. He then introduced pictures of those hairs for identification and put them into evidence.
I had forgotten, but in listening to Bill Sheaffer on WFTV, I was reminded that the PowerPoint presentation wasn’t allowed when Shaw was on the stand for the prosecution. Baez opened the door and Jeff Ashton managed to get the entire power point in, not just the few slides that Baez used with the jury. So Baez, after fighting to have the PowerPoint program excluded from testimony, managed to open the door for the whole thing to be explained to the jury!
The first pictures were the before and after pictures of hairs placed on a window sill.
The second group were hairs stored on the dashboard of a car for 202 days. Again, they were before and after pictures. The study went 6.7 months starting in August. There were no decompositional changes.
Next were the hairs stored in the trunk of the same cars for the same period of time as the other hairs on the dashboard.
On and on went Ashton, having Mr. Shaw identifying all the hairs in the slide show.
In addition, Mr. Shaw had another opportunity to explain the positioning and nature of the root banding comparing the hairs from the living people to the hairs with true root banding.
(I found it interesting that the hairs stored indoors or in a car, had no decompositional changes. Also, not all the hairs stored outdoors in varying situations had decomposition, but not post-mortem root banding.)
To summarize, Ashton asked if there were any hairs stored in vehicles which showed post-mortem banding. Shaw answered that there were none.
On re-direct, Baez asked if he put any of the hairs in garbage. Shaw said that he hadn't.
He then asked why the hairs from living people had the number of days listed, but the post-mortem individuals didn't have the dates.
Baez asked how long the hair on the body ouside on the grass had been there. Shaw looked in his report: 2 1/2 months. They were in Tennessee in the winter time.
Baez pointed out that the environmental conditions were different.
Another hair was in place for about a month.
The one stored inside a house was there for one month. Shaw didn't know if there was heating or air conditioning.
The hair found in a vehicle was collected a little less than a month.
The next hair in the house was there for 2 weeks. He didn't know the conditions.
(I think you have the idea as to Baez' questions on these!)
Baez then asked if they got different results from different environmental conditions. Shaw agreed.
He then asked if he had replicated the conditions for hair Q-12. Shaw said he hadn’t been able to.
One thing that was clear after all of this was that post-mortem banding only occurs with people who are dead, although it can't be said with scientific certainty.
Shaw said that hair banding is well established in the scientific community, the same as he had said in the prosecution case if chief. Baez again got him to say that all death banded hair comes from dead people. Shaw said that was true. He said he did try to replicate it, but couldn't.
Baez said to him that they want to learn definitively that all post-mortem banding comes from dead people. He wants to learn more. Shaw said he wanted to continue to learn.
Baez then asked if he would want to know what conditions would cause root banding.
Shaw said that in his experience with many cases, he had never had a problem finding the root banding.
Ashton did re-cross. Shaw pointed out that his studies entail the study of hair from all over the world.
Baez was up on re-re-direct. The questions he asked were both objected to and sustained and Baez quit while he was behind.
Mr. Shaw was excused.
Judge Perry then called a 15 minute recess.
After the break, we heard from Dr. Barry Logan. Dorothy Sims did the direct examination.
Dr. Logan is a toxicologist and an analytical chemist. He gave his educational and professional background. He said he had practiced forensic toxicology for 20 years. He has a background in GC/MS. He said he has performed thousands of tests and trains others in its usage. He is a reviewer for articles to be published in professional journals. At present, he is the National Director for Forensic Services at NMS labs in Pennsylvania.
Sims also made sure that he said that the money he earns for his work on the case goes to the company.
He has published 80 articles, mostly on analytical chemistry. He then gave an explanation as to what an analytical chemist does.
At this point, I was beginning to wonder how long his CV would go on.
The first question Ms. Sims asked that was relevant to this case was when she asked Dr. Logan if there were any working groups studying decompositional analysis.
This immediately brought an objection from Jeff Ashton and a side bar.
The objection was sustained and Ms. Sims continued with her questioning, but not before crossing out any number of questions she was going to ask. She went back to his background. He discussed the process of accreditation of labs. He was on the board that established the rules concerning that. He said that the lab he works for is accredited by the ABFT. He said that their DNA lab has accreditation through another organization.
We all know where this is heading!
Dr. Logan was offered as an expert in his scientific fields and the accreditation process.
Jeff Ashton chose to voir dire. He asked Logan what types of testing he does and he answered at length . Ashton asked when was the last time he performed tests himself. Ashton wanted to know what he did in analytical chemistry.
Ashton pointed out that he basically looked for drugs and supervised people who did so. He asked if Logan considered himself an expert in all fields of analytical chemistry. He said no. Ashton asked if most of his work was in toxicology. Furton’s last experience with cryotrapping was 20 years ago.
Ashton stated he should only be certified in forensic toxicology. As it turned out, it caused all sorts of problems for Ms. Sims in questioning Dr. Logan.
Sims asked his involvement in the Academy of Forensic Science. He said he was on the board and described what the organization did.
Judge Perry stated he will only be accepted as a forensic toxicology.
Sims began with the use of the GC/MS in the lab. She asked what he was given to study.
Dr. Logan said he was given material about the FBI studies and reports from the Oak Ridge Lab concerning the vehicle. He received miscellaneous documents including the autopsy. He also read articles related to the topics involved in the investigation. He also read Dr. Arpad Vass' material.
Ms. Sims then took on the gist of the examination, a comparison between forensic labs and research labs. She set up the easel and drew a line down the middle. When Ms. Sims mentioned that he was the chairman (member?) of the Association of Crime Lab Directors, Jeff Ashton had another objection.
I had a feeling that this had to do with the fact that Dr. Logan had only been certified to testify to forensic toxicology. I can't wait to see if I was right!
After a side bar, Sims began questioning Logan about the requirement are for... objection/sustained.
She asked about the differences between a forensic lab and a research lab. (He gave a fairly decent comparison, from what I could tell. He spoke too fast for me to get it all down.) Essentially a forensic lab runs tests for various purposed and a research lab works to expand scientific knowledge.
Sims asked if research labs do proficiency testing... objection/sustained.
Sims then asked if Oak Ridge had been certified as a forensic lab, objection/sustained.
Sims then tried to ask if they use quality controls.. objection/sustained
Then, she asked about validation. Logan went again through the requirements for forensics labs (which runs tests in bulk).
Sims asked if validation testing was done in the Oak Ridge lab... objection/sustained.
Logan then went through the materials he received from Oak Ridge. He also went over the OCSO report. He also reviewed deposition testimony by Dr. Vass and Dr. Wise. He read the bench notes as well.
As a result of his research, he reached the conclusion that ...objection/sustained.
Sims went to the material to ask if there were validation studies done. objection/bench conference/sustained.
Sims skipped over to another question. Logan said that there were no formal protocols for the tests that were done at Oak Ridge. Before Logan could continue his answer, Ashton objected that his testimony wasn't about forensic toxicology.
Logan then went on to say why the protocols were necessary when I lost the feed. The next thing I saw was another bench conference.
After the side bar, Ms. Sims continued. She asked if he found any documentation of protection against contamination. Logan said he found no mention of it.
She tried to ask about other similar items and was and Ashton objected/sustained.
She was able to get Logan to say that he saw no reference to quality assurance. Before he got to far into any details ... objection/sustained.
Next Sims asked about proper controls for control samples at the Oak Ridge Lab. Logan said there weren't. Ashton objected again that his testimony was not about toxicology.
Sims got on track by asking about standards used in toxicology... objection/sustained since there was no toxicology being discussed.
She then went back to the bench notes and how they mentioned how the negative and positive control samples were utilized. Objection/sustained/not toxicology
Dr. Logan was getting frustrated by now.
The next question... objection/sustained.
Sims asked Logan to describe a blank sample. He said it was a sample known not to contain the compound being tested for. If a blank sample were run and the computer wasn't reset, and you had to go back... objection/sidebar/overruled. Logan said you wouldn't get a reliable result.
Not seeing a positive control when one should see one, would say there is a problem and they need a proper protocol to objection/sustained/strike/question re-asked without the last part.
The purpose of a blank sample was to be sure the test doesn't give a false positive result.
She asked about a closed valve messing up or destroying a run. Logan thought and said he couldn't answer it as asked.
When Sims went on to the triple sorbent traps freezing... objection/sustained.
Then she asked whether any of the techniques were changed in the middle of the experiment. Logan said that they were changed over the weeks as the various tests were run. When asked to explain why... objection/sustained.
Sims went into the fact that the samples were not run the same day, which meant they were not tested under the same conditions. The standards were run weeks later.
Sims then moved on to fatty acids. Logan said that he had run thousands of such tests. There were times when oleic, palmitic, stearic, and myristic acids were found.
Logan said they occur in many situations and listed them. (We were back to the compounds that appear in adipocere and other items as well such as meat, butter, cheese, etc.) He testified that the paper towels would have one of the acids because of the presence of cheese. There was a question about acids in meat pizzas. Objection/sustained.
Logan said he'd read publications about the fatty acids in pizza. Ashton had multiple objections.
To be fair, Judge Perry had overruled some of the objections Ashton made, but nowhere near the number he sustained.
There was another side bar.
I was so grateful Judge Perry called for lunch before any more of this direct examination continued!
Lunch seemed to speed by. It was again time to listen to Dorothy Sims attempt to question Dr. Barry Logan.
Ms. Sims said she had one more question. She asked where the four fatty acids were found.
Logan said they were found on a paper towel.
Ashton asked if he was testifying that all of the three fatty acids were found in vegetables. Logan said they were, in oily vegetables like palm oil. They were not in cabbage. Logan agreed that they are all found in decomposition.
Ashton said that the same fatty acids are found in milk and cheese. Ashton had asked if the carbon chains different. Ashton gave the numbers. Logan gave the numbers for the different acids. Ashton asked if there are compounds in dairy products processed for human consumption that are not in adipocere? Logan agreed.
Logan agreed that there are challenges in testing forensic samples. Ashton asked if there are challenges that are not in protocols. Logan said that a new protocol would have to be developed.
Ashton asked if the protocol for testing human decomposition is published. Logan said it was, but not all the steps.
Ashton then asked about blanks. He said that they are basically room air to see if there are contaminants in the ambient atmosphere. If a blank shows unexpected results, the air contamination and the machine would need to be checked. Logan said that the test would be stopped, the problem solved and the test would continue. Ashton used the example with the problem with the valve. Logan admitted that with both problems noted in the bench notes, that was what was done in this case; he agreed that they fixed the problem and re-ran the tests.
Ashton was finished.
Dorothy Sims came up for re-direct.
She asked Logan a question that he answered about the problems he had just talked about.
She then asked ... objection/sustained.
Then she went on to the published protocols. She asked if there were protocols for sampling air from a car. Logan answered that there weren’t.
When she asked about protocols for sampling carpet, Logan said there weren't any.
Sims asked if he could reproduce the experiments of Dr. Vass and Dr. Wise. He said that he couldn't. With that question, she was finished with the witness.
Ashton then asked Logan if his lab couldn't do that kind of test if he wanted to. Logan said they could do that type of test.
Ashton then went to the items used in the tests that were in evidence and piled them up on the edge of the witness stand and asked Logan if he had ever seen the items. (Let’s just say that Jeff Ashton wasn’t in a good mood and SLAMMED the items down in front of Dr. Logan.)
At first, Ashton and Sims spoke with the judge. Then, Sims brought in reinforcements, Baez and Mason. Judge Perry then dismissed the jury.
Judge Perry gave a case for Ashton to research. Jose Baez said he'd look up the other case.
Ashton spoke first. He said that the final question where Sims asked if he could reporduce the results, it opened the door to his question.
Sims stated that in this case, there would be no way the test could be reproduced because of the lack of standards or protocols. She also asked for Ashton's question to be stricken and a curative instruction be given to the jury.
The decision Perry read underscored the fact that it was the prosecution's responsibility to prove the case. It was not the defense's burden to do so. In this case, it would be to test the evidence themselves.
He then read the case Jeff Ashton referenced.
Perry ruled that the defense's objection was sustained. Before lunch, he had asked the defense to read a decision about the defense's attacking the validity of the test results.
Judge Perry also said that Dr. Logan was not qualified in air sample analysis. Back in the hearings, Perry had said he would not be qualified because he had only read two articles on the subject.
He told the defense to tread very lightly in this area because, it looked like they were cracking the door open and Mr. Ashton looked ready to run a Mack truck through it.
At that point, the objection to the line of questioning about the cans was sustained.
Ms. Sims requested a curative instructive to the jury because of Ashton's actions in coming up to the witness box with the evidence. Judge Perry said she did not object to that, she objected to the question!
Then, she asked the items be removed.
Mr. Mason then came up and spoke more to the fact that the burden of proof issue would be a good curative instruction.
Ashton asked, to what question.
Ashton pointed out that his question was that if the evidence were sent to you, could you have tested it? It was not stated in the question that the defense had sent the evidence. He also pointed out that Ms. Sims had previously asked if he could reproduce the test.
Then, Ashton went through all the steps of the test Vass did, and Logan said yes, he could do those steps, except that he had no machine for cryotrapping. He then added that he could not run the test because he would need to know the machine settings. He would have to review the article because he was not sure if that information was in it.
Jeff Ashton said he would withdraw the question rather than walk in the quicksand of the situation.
Perry pointed out to the defense that, in order to impeach Dr. Vass’ test, the defense would have to have an expert to show that his conclusion was different and they don't have that.
The attorneys were instructed to read yet another case during a 10 minute recess.
Judge Perry returned and read the curative instruction. It was a simple one which said that the State of Florida had the sole burden of proving the case and the defense had no such burden.
The jury was brought in and Jeff Ashton continued with his cross examination.
Ashton asked if his lab did air sample analysis and he said it didn't. He also indicated that Dr. Logan had not done any such tests since his student days.
Dorothy Sims wisely decided she had no more questions.
Jennifer Welch was then called back for the umpteenth time to testify.
Jose Baez questioned her. He asked about the numerous items were collected from the site. He asked if any socks or shoes of Caylee Marie Anthony were found at the scene. She said there were none.
Baez asked if that showed that Caylee was barefoot. Objection/sustained.
The next witness was Cindy Anthony. Baez asked her if she used the desk top computer in the spare bedroom. Cindy said that everyone had access to the computer, even Casey's friends.
Baez asked if Cindy did any searches for chloroform. She said that she did. She said that she was actually searching for chlorophyll. She was doing this to find out if it could be causing problems for her dog.
She explained that plants with red and brown foliage naturally produce chloroform. She knew she ran them in March because there was a scare about using hand sanitizers around children. She also said that she looked up acetone, hydrogen peroxide and alcohol. In addition, she said that a friend of hers had an accident and she did searches about injuries.
Baez then mentioned they had her work records. She said she took off some days in March. Her work schedule would show she was working because her supervisor might have done it by accident. (objection/sustained to the last question). Then, she testified that she worked on salary and she filled out cards with times so as to only show a 40 hour work week. (Is that telling the truth, Cindy?)
Baez then showed her pictures of the trunk of the Sunfire. He asked her where it was purchased. She said that and George purchased it in 2000. George and Lee drove it mostly. Lee used it the most until 2005 when he got a Mustang. The car was then given to Casey to use, although George would drive it sometimes.
Then, Baez showed her the stain in the trunk of the car. She testified that the stain was there when they bought the car. When she saw the trunk in July, 2008, she saw the indentation of a gas can, but no new stains.
Baez had no more questions.
Linda Burdick, asked if, even though her time cards said she was at work on Monday, March 17, 2008, was she home from 1:43-1:55 PM? Cindy said she took time off to get ready for Casey's birthday.
The same was for March 21, 2008, was she home certain times in the afternoon. She said that the trigger was the computer entries. She said that she could tell the times if she looked at her work computer. She had never returned to work. If she wanted to, she could go and find out that she left? Cindy said no and went on what seemed like forever to explain about passwords to her e-mails and computer which she was sure were gone by now.
Ms. Burdick’s tone of voice became sarcastic as she questioned Cindy. Whenever she pushed her on the issue, Cindy kept explaining and explaining. (She reminded me of when Casey would embellish her lies.)
Burdick asked her if she was aware of the importance of the computer searches in August of 2008. Cindy claimed that Yuri Melich informed her in September, 2008. Cindy said, at her deposition that she searched for chloroform. Burdick reminded her that Cindy testified she had searched for chlorophyll and had spelled it for her (wrong). Ms. Burdick also reminded her that she had said she hadn't looked up chloroform.
On the stand, Cindy said she didn't search for "how to make chloroform." Cindy said she only recalled typing in the word chloroform.
Cindy said she did not search for other terms like neck breaking. She did recall a pop-up of a skate-boarder which said it was a "neck breaking" feat. (Wow! I can't remember pop-ups from yesterday!)
Cindy also said her memory was better now.
Cindy denied making some of the searches and made some of the others, including inhalation. Burdick asked if she'd remembered now because she changed her medication. Burdick mentioned the medication change a few times, in fact. (Ms. Burdick was VERY angry.)
Linda Burdick asked Cindy which search engine she used. Cindy said whatever was up, Google or Yahoo. She didn't know what browser she used. She said that the computer was on most of the time, and she couldn't remember which profile she used. She said there was no password on the desktop. (That's why nobody could get into Casey's records since she wouldn't give them the correct password.)
Ms. Burdick went on to some of the other searches, such as household weapons, chloroform habit, chloro-2. Cindy said she hadn’t. She say that she was on drug library, sci-spot (several times). She said she didn't know what her computer did when it was running.
She did not have MySpace or Facebook in March, 2008.
She then pointed out where the stain was in the Pontiac when she bought it. (I missed the print screen button for that one, but let’s just say the area she circled WASN’T the area where the stain was!)
Baez asked a few questions and Cindy was finished.
Sandra Osborne was the next witness. She did the search of the Anthony family computer.
Baez started questioning her about the man who followed her into court and was it the same man who followed her into court the last time. Objection/sustained
She repeated how she extracted the data from the computer using Net Analysis. Baez attempted to say that Cacheback was a competing product.
She turned her materials to the detectives who in turn gave them to the prosecutors. Then, Jose Baez showed her a disk she didn't recognize and it didn't have her handwriting.
Baez was so confusing me with his questions here.
Baez then showed her an Excel spreadsheet. She said her superior, Sgt. Stenger had done it. Baez asked if she said in a report that she prepared the spreadsheet.
Here, there is a lot of talk about exporting files, yadda, yadda...
We are apparently talking about the deleted FireFox search files.
When Baez showed her a spreadsheet, she said it wasn't one she produced. She did recognize some of the content.
Baez then asked for the material to be moved into evidence. Ms. Burdick objected because it was not the reports Ms. Osborne prepared.
Baez then showed her the original that was turned over to the defense.
Ms. Osborne said it was not the spreadsheet she prepared. It was the one prepared by Sgt. Stenger.
That item did not make it into evidence either.
On cross, Linda Burdick asked if the Anthony desk top computer had a password account with the password Rico 123.
Baez asked if anyone could use the account if the computer were turned on. She said it could happen.
She was excused but asked to stay in the building.
Sgt. Kevin Stenger was the next witness. Baez then went through the Net Analysis report that was conducted. He used two different programs to do that. The second program was Cacheback. He didn't do the search and the recovery of the material. Det. Osborne did that. Stenger did recognize the computer print out on the screen.
Before being put into evidence, Linda Burdick asked if he was submitting the one document or the entire disk. Stenger was asked by Baez to scroll through the entire disk while there was a side bar.
While trying to straighten this mess out, we were given a short recess.
When Judge Perry returned, there was a discussion between Linda Burdick and Jose Baez as Judge Perry waited.
Finally, we seemed to be ready to move on. It would seem the defense printed out the entire report.
Judge Perry asked if the state had looked at the documents. Linda Burdick hadn’t and it took a good deal of time to do so. It appeared that Baez had them and was having help in marking them.
It was now headache time after a long, confusing, crazy day in court.
Finally, after a total of about 20 minutes, both sides were ready to proceed. The jury was brought in and Jose Baez continued with his direct examination of Sgt. Stenger.
Sgt. Stenger had reviewed the material and it was offered into evidence. Ms. Burdick indicated that there were tabbed pages which would be entered into evidence.
So, we were treated to Mr. Baez removing the tabbed pages from Sgt. Stenger's copy.
The evidence is a report of the deleted Firefox history using Net Analysis. It was run before he had the Cacheback. There were problems with this report and he asked Mr. Bradley of Cacheback because dates and times were not being displayed correctly due to the change to daylight savings.
In addition, Sgt. Stenger could not say if the reports were identical.
The issue was the previously mentioned search on March 21. It was the sci-spot site. It showed that the site was visited once. Then, he showed the Cacheback report which said the site was visited 84 times. Baez then went on to the Net Analysis report with a reference to MySpace. It showed that site was visited 84 times. In the Cacheback report, there was no report of the MySpace at the time.
He also led Stenger through the progression of entries and how they added up.
Score one for Baez!
There was a bit of confusion here because Sgt. Stenger created the reports but Mr. Bradley presented them and they were put into evidence. Baez asked Stenger why the prosecution had Bradley testify...objection/sustained
He then asked if he'd ever had another expert testify to his reports? objection/sustained.
At that point, Baez quit trying to ask questions.
Linda Burdick asked how he prepared the Cacheback reports. Stenger said that he set the program to display the dates and printed them out. The information he used came from the program. He had Mr. Bradly examine the data because he was the person who wrote the software.
Ms. Burdick had page 1 of the exhibit displayed for the witness. He asked if any of the Google searches were displayed. There was one Google search in the view. It was "how to make chloraform" (misspelled). It would not appear that way if a person typed in chlorophyll.
Ms. Burdick asked how one could tell if the time was accurate. Sgt. Stenger said he checked the dates to see if they were correct. She then asked which report had the accurate time. Stenger said that the dates and times appeared to be accurate.
The particular internet history for that particular (chlorAform) entry was made 14:16:34. The time between the MySpace entry and the how to make chloroform search was 20 seconds.
Jose Baez then came up for re-direct.
Baez asked if, in the Net Analysis report, the chloroform report was only being visited for the first time. Stenger answered that the person visiting the chloroform site spent 3 minutes on the site.
Baez asked if he had any other problems with Cacheback. Stenger said he had none.
Linda Burdick pointed out that the user could be opening new tabs in their search. They could be up for minutes or hours before they were closed. Stenger agreed and said the history showed the sequence, but not how long the user was on the site or if there were copies printed out.
Baez asked if the report showed the tab information. Stenger said it didn’t Baez asked if he was speculation. (Speculation is one of his favorite words.)
Baez then asked if he knew if any pages about chloform were found in searches of the house. Stenger said he didn't know.
Sgt. Stenger was excused.
Judge Perry then asked for the next defense witness. Their was a brief conference at the side bar.
When the side bar broke up, Judge Perry told the jury that they have legal matters to take care of and dismissed them for the day.
Jeff Ashton said that two FBI agents, one of them, Nick Savage and Erin Martin were outside. Ashton said that they had no direct evidence and Ashton wanted a proffer as to their testimony.
Cheney Mason said he didn't want to do that because he didn't want to disclose what they were going to say.
Ashton already said that they had an issue when an FBI agent was asked if she was to conduct a paternity test.
Mason indicated that an FBI agent had memorialized in an e-mail some information that was crucial to the case. It had something to do with the duct tape. Ashton said the tape was not on trial and spoke very eloquently to the issue.
Mason said, "what is your pleasure, your honor?" Judge Perry said he wanted to hear it. The FBI agents weren’t witnesses, they were only being questioned as a proffer of evidence.
FBI Agent Nickolas Savage was called first. He was the lead agent on the case for the FBI.
He was at a meeting with prosecuters in February 2009. Mason asked if the possibility of duct tape being over the mouth was a possibility. Objection/work product
Mason asked if he tried to find some photographs for the prosecution. He also asked if he communicated with Karen Cowan who communicated with the lab. He asked if Savage had asked for photographs which may have been taken by the Orange County ME's office. Savage said possibly yes.
Savage didn't remember receiving an e-mail from Erin Martin. Jeff Ashton noted the e-mail had been sent to someone else.
Mason showed Savage the e-mail and he recognized it. He hadn't seen it until someone from Mason’s office showed it to him.
Savage then looked at the e-mail for a long time and then said it was the first time he had seen it. He had recollected another e-mail they had shown him.
Ashton volunteered to discuss the admissibility issue, but had no questions.
Mason then said he'd have Erin Martin on the stand to explain more.
When Erin Martin took the stand, Cheney Mason asked if she remembered sending an e-mail to Karen Lowe. Mason showed it to her and she read it. She did remember it.
She read it for the court. Apparently, it dealt with the fact that the jpeg's had not been saved and that she was surprised that the ME"s office had not taken any pictures of the skull and duct tape with a scale.
Ms. Martin left the stand.
Jeff Ashton objected on grounds of relevance and hearsay.
As for Mr. Savage, Mason said that his testimony would show that Mr. Ashton created a weapon by trying to get the photographs to see if they had scales on them.
The FBI response was that they just said they didn't have the pictures.
Mason felt it was possible Brady material. The prosecution tried to create something, a duct tape weapon. (Like, they had the width of the duct tape and even had a video superimposition of ONE layer of duct tape.)
Ashton stated that it was an attack on the prosecution. His interpretation was that he was pursuing information to prove a material fact of the case.
Mason read from the e-mail indicating that they wanted to know the measurements to decide if it could be the cause of death.
Apparently, there were measurements which weren't sent to Savage (because the jpegs were lost or deleted).
Judge Perry ruled that Savage's testimony did not go to prove anything in the indictment. If it were an attack to prove fabrication to create evidence, it would go to dismissal of the charges.
Therefore, the objection would be sustained.
As for Erin Martin, Ashton made the state's argument. Anything she knew, she heard from someone else.
Mason said that they had presented a motion for mistrial based on the video superimposition. The prosecution didn't have it, so they made it up!
Ashton pointed out that the defense had the information for the past three years.
Judge Perry asked him to discuss the current evidence which was proffered.
Judge Perry made the exact same decision.
Court will go until 2:30 or 3:00 on Saturday with a quick break for lunch.
Court was in recess until tomorrow at 9:00 AM. If there are any issues, the Court will hear them at 8:30.