Wednesday, January 12, 2011

Casey Anthony's Attorneys Strike Back, Hearing Friday

January 13, 2011
WESH just released this video about Baez paying the fine today. Apparently, there is a letter from Cheney Mason asking the judge to remove the sanctions. What's his reason? Listen in!

Also, it seems that there is an excellent possibility that the motion will not be heard tomorrow at 2 PM. Casey Anthony is not expected to attend.

But, we know that, in this case, you never know what will happen.

When I planned this article, it was merely to say that we will have the next status hearing on Friday, December 14 at 2 PM. I was expecting to write about what hotels the defense would ask for versus the State's request. I was considering if the defense team would bring up the idea of a huge jury questionnaire similar to one they proposed for Casey's fraud trial. I was wondering if Judge Perry would deny them again saying that he didn't care for them.

Boy, was I ever wrong! Yesterday, the defense filed an astonishing motion: Motion for Reconsideration of the Court's Order Granting State's Motion for Sanctions/Motion to Compel and Request to Vacate Finding of Contempt. There had been rumblings at the last hearing, on January 3, that there were going to be some "papers" filed by the defense.

The motion is so astounding that it sent me off on an all-night search for past hearing, past motions, past reports. Thanks to the collective wisdom of such sites as Websleuths and the Hinky Meter, I was pointed in many different directions concerning the content. I would love to thank all the people who write and post at these and other sites I read, but that would be an article in itself!

After a nice, long cold winter's day nap, I have managed to put my opinions together enough to attempt to write about it.

I have a strong belief that this motion will be heard on Friday because the content is timely to the defense discovery issue.

Back on July 24, 2008, George Anthony was interviewed by Yuri Melich. When asked about his daughter, George made this statement:

And like my daughter takes things as far as she can take them. And then she piles on some other stuff.

This motion struck me the same way. The defense has been doing the least possible to provide discovery and when called on it with sanctions, they "pile on some other stuff".

First, let me give you a brief history of this "saga" as Cheney Mason refers to the whole discovery situation.

When Jeff Ashton made his first motion for discovery on November 19 (note how Mason points out that it was SIGNED on the 18th), he was looking for basic information about the opinions of the defense experts to make it possible for him to conduct depositions. Since Jose Baez had said there would be no reports, Ashton was granted the photographs, a list of defense experts, and the notes they took which weren't part of any work product on November 29.

Two days later, on December 1, Ashton filed a Motion For Clarification/To Compel Compliance With Order For Additional Discovery. This was the motion with all the e-mails back and forth between Baez and Ashton. It's the one with the list of experts and snippy comments and a recommendation from Baez to "give him a call" for more information.

This response from the defense did not please Judge Perry in the least and he called Baez up for one of those famous Q-A sessions before the bench.

On December 7, Baez filed a Notice Of In-Camera Inspection. (The defense somewhat met one of the requirements.)

COMES NOW the Defendant, CASEY MARIE ANTHONY, through the undersigned counsel, hereby gives notice that on Monday, December 6th, 2010, the undersigned counsel submitted notes taken by a defense expert during the evidence inspection to the court order the assertion that said notes are work product and as such respectfully requests the court's determination on the matter.

We've never heard if Judge Perry made a decision, but please note that Baez only submitted the notes of one expert!

On December 10, Baez filed the Defendant's Notice Of Supplemental Discovery which contained photographs from Dr. Werner Spitz and Dr. Jane Boch (sic) (The defense met the second requirement)

On December 10, Perry made his second Order which required more information from the defense than before. The defense deadline was December 23 at noon.

Unfortunately, the required document did not arrive until the following day. Even so, the defense did manage to supply some additional information about the testimony of the experts. The obnoxious language in Baez' Response To State's Motion For Clarification Of Expert Witnesses was that any number of witnesses would "rebut false claims" of the State's experts. However, Baez threw out a few more details, but not enough to do a decent deposition! There was an addendum with the CV's of the witnesses which made the reply about 300 pages.

At that point, Ashton decided to slam the defense with a Motion For Sanctions For Failure To Comply With Order Granting State's Motion For Clarification/To Compel Compliance With Order For Additional Discovery. Judge Perry again agreed with the defense in a hearing on January 3, 2011. The hearing was notable for the fact that Cheney Mason did most of the arguments. Even so, Baez did end up with a Q-A session with him. Judge Perry listened to Jeff Ashton summarize the defense's attitude towards reciprocal discovery. As I wrote in my January 3 article:

Ashton summarized the defense as showing "deliberate, willful, contemptuous behavior", that they will do discovery their way and ignore the court orders. Therefore, sanctions are appropriate.

Here is the judge's Order. By this point, Perry is ordering actual reports from the defense expert witnesses. If you read the two previous responses by the defense, you will see that each time, they add just the tiniest of snippets of information about the testimony.

In this particular Motion, it is obvious the defense does not want to abide by the orders sent down from the judge. I have a feeling the good judge will not be pleased on Friday.

The motion, authored by Cheney Mason, outlines the "saga", much like I did above, but with a defense slant. He first of all points out that the motion is "timely" (ie. not late).

In his next paragraph, he states that "The issue boiling over in this case is one dealing with discovery and alleged violations thereof." Apparently, Mr. Mason feels that what the defense has supplied is all they need to supply!

He brings up the vague nature of the judge's language in the first order in terms of what "subject matter" means. He argues that Ashton interpreted that as the "substance" of the testimony, but that he recognized his "mistake".

By the time we get to page 4, paragraph 6, we start to get the "sob story" of poor, newly-minted attorney William Slabaugh, Esq. Mason even includes an affidavit from the young man concerning his efforts to file the tardy documents on time on December 14, 2010. It states in part:

7. In the afternoon of December 14, 2010, I drove from Kissimmee to Orlando to file these documents with the Clerk of the Court, State Attorney's Office, and Judge Belvin Perry.

(If he left in the afternoon, he was already late; the deadline was noon!

8. Due to severe traffic conditions, I did not reach the doors of the Orange County Courthouse until 5:02 pm....

What is interesting here is that this is not the story Baez told in court on January 3. According to Judge Perry's order:

Defense counsel Jose Baez argued he filed the document one day late because he needed to obtain the experts' curriculum vitae, and acknowledged that he did not ask for an extension of time. He, too, failed to explain the non-compliance with the Order.

That's it guys, blame it on the rookie!

Nevertheless, Mason tries to put more of a spin on the lateness of the discovery material by saying that:

7....Most importantly, this good faith performance included all of the documentation that was not due for another eight days (December 23, 2010).

He does, in a way, admit that the information was a bit lacking when he says:

8. The defense response to the "clarification" Order indeed substantially complied with each of the five provisions orderd by the Court.

In the bulk of the motion, Mason graciously adds a few more details to the testimony of his experts and even deletes one from the list.

I won't bore you with all the information provided, but here are some highlights.

Dr. Henry Lee. Mason goes on and on about the fact that Lee discovered 17 hairs in the trunk of the Pontiac Sunfire. For an excellent article about that topic, do read JWG's excellent article on the Hinky Meter, Hair today, gone tomorrow.

He also claimed that Dr. Lee's value to the case had been diminished because his attempts to access the recovery site on December 12, 2008.

This brought to mind Judge Stan Strickland's Order of April 13, 2010.

Over the past 20 plus months, in-between media interviews, guest appearances on television shows, and press conferences, defense counsel has filed a litany of motions. The content of the motions has ranged quite broadly from a Motion to Disqualify the State Attorney's Offe, to a motion to stop law enforcement from securing and investingating the crime scene of a homicide, to a more recent motion wherein defense counsel invited the Court to simply "trust" him... (bold mine)

So, it seems that the odds are slim that we will see Dr. Lee at trial. The hair he found had no death band. End of Henry Lee's story. Or is the problem really one of payment?

Mr. Mason spend quite a bit of time discussing Dr. Werner Spitz. To show the defense's "good faith effort" they add more to what he would testify about, were he to testify. He's sounding "iffy" for trial, too, which is probably why Mason shared some tidbits about what he would say about Dr. Jan Garavaglia, the ME.

...Dr. Spitz, if called to testify would specifically additionally testify that the examination by Dr. Garavaglia was less than the appropriate standard for such medical examiner's protocol. Dr. Spitz would testify that the skull should have been opened by Dr. Garavaglia, which he did in the performance of his second autopsy. Dr. Spit discovered that there was a deposit of dirt/mud on the inside of the cranium, on the left side, which has not been discovered by Dr. Garavaglia.

My friends and fellow posters led me to the autopsy report. Two things were noted.

The inner aspect of the cranial cavity is examined with light and reveals sandy dirt and an
attached small incisor which is adhered to the inside of the calvarium with dirt. (p. 8)

In another area of the report it was stated that there were saline washes of the cranial cavity.

Dirt + Water = Mud, Dr. Spitz. Perhaps you omitted to read the autopsy report in depth?

This discovery of the "mud" on the left skull of little Caylee's remains by Dr. Spitz had led the defense to believe that the remains had been left on the left side and not upright as in "claims" made by investigators and the prosecution.

Could this be the "magic information" that will absolutely prove Caylee was moved? Nope, I don't think so.

Two of the experts, Dr. Kenneth Furton and Dr. Barry Logan will testify at the Frye hearing on decomposition odor.

Dr. Freeman, the epidemiologist, has been removed from the witness list.

As for the rest, the defense gave bits and pieces and when one reads the motion, it would seem they will have little to say that contradicts the State's case.

At the very end of the motion, Mason states that:

12. Your undersigned submits that in light of the history, as set forth above, (and Order entered causing disagreement between State and the defense; discussions as to the interpreting the "intent" of the Court, the responses, and now the supplements), that a determination of "civil contempt" is unnecessary to acquire compliance"

Well, good luck, Mr. Mason. Jose Baez didn't comply the first time and didn't comply the second time. Each time Mr. Ashton brought the situation to court, Judge Perry upped the ante. At the point he found Mr. Baez in civil contempt, he also ordered the reports from the experts and they could only testify to what they had reported and what the State learned through depositions.

The fact is, Judge Perry only ordered the defense to follow Florida Rules of Discovery. I don't believe that throwing out little tidbits of information is to the benefit of the Defendant, Ms. Casey Marie Anthony.

I'm am eagerly awaiting Judge Perry's reaction to this latest whine-o-rama and minimal compliance by the defense. I also wonder if Jeff Ashton will write a reply. I'm sure this motion has revved him up!

See you all at the hearing on Friday! 2 PM SHARP!


FRG said...


Congratulations for your article! So well written! Thank you so much!

Whine-o-rama!!! I like that! LOL

On page 11 CM writes:

11. “The Court’s Order imposing sanctions in this case reveals misunderstandings and misapprehensions by the Court in certain aspects. “

I would never dream CM make such a bold statement! That's an insult to Judge Perry!

Judge Perry wrote in his order on January 6, 2011 that JB could contest the amount of the sanctions! There we have one more stupid motion.

When people were speculating that maybe JB was not handing over to the Prosecutors his experts reports because the reports were not favorable and maybe they had nothing to rebut Prosecution's experts... I thought... "of course not"! Now I am not so sure! All that was because JB wanted to play his game.

This is nothing but "Chewbacca defense", I am sorry to repeat this over and over. A bunch of "smoke and mirrors" it is!!

I am so looking forward to the hearing this Friday!

You article is so good that there is nothing left to say! LOL

You are great!!!

Bettychand said...

Another great article Ritanita. I really like the way you gather your thoughts and then just share them with such clarity.

This rescheduled hearing Friday is scheduled for 2 pm. (I noticed Jeff Ashton has another status hearing scheduled for 1:30 that day.)

I wonder if this will even come up on Friday? I hope Judge Perry just says, btw, your motion? Denied.

ritanita said...

Thanks, Bettychand, the error has been corrected.

katfish said...

Those e-mails (re expert witness discovery) that were exchanged between Baez and Ashton reminded me of a kid(Baez)in a schoolyard saying "nana booboo, I know something that you don't know....and I'm not telling because I like to see you squirm".

Ashton didn't take the bait and filed the motion to clarify immediately.

The defense response to Ashton's
motion to clarify seemed to say...."Go ahead tattle tail....
everybody knows that death is different and that makes me the favorite,so I can do what I want...when I want, nana booboo!"

Once again the state didn't take the bait and filed the motion to compell and for sanctions.

The defense response this time was to have Jose's big brother (Mason)come in to fight his battle for him. When the judge asked Baez to speak for himself he seemed to say the first thing he could think of...."I was trying to do a good job for the court, that's why it was late....yeah, that's it...and remember death is different.

Judge Perry being the firm but fair disciplinarion took Jose's candy money instead of his whole allowance,with a firm reminder he would be tougher if it happened again.

Now comes big brother once again
to fight widdle Jose's battle for him...."The problem is not his lil brother's's he way the judge gave them the assignment,even though he put it in writing he didn't use BIG LETTERS for poor widdle
it's not fair to take his widdle
brudders candy money. If the court doesn't agree....well...then
it's their baby brother's fault....and guess what....the baby doesn't get candy money yet let's just forget the whole thing.

I say the judge needs to put "the defense boys" in the corner with dunce hats until they complete the assignment and cough up the cash.

I feel kind of bad making light of this serious situation but....those defense boys made me :)

ritanita said...


Without a little humor, this case would be even more devastating to follow. You are a hoot! I've had some very similar thoughts.

The defense is running out of time to put its defense together. If they put half the effort into their case they put into the nonsense, Casey would be better represented.

Whenever I hear the defense say "death is different", all I think of is Caylee. At this point, she is the one justice should speak those words to.

iwishiwas said...

Can you comment on the part where Mason writes: The Court included that in the Order that the State experts had been "retained at tax payer's expense". This is not accurate. Some of the experts have or will submit requests for reimbursement of expenses in accordance with the schedule of the JAC.(It also should not be overlooked that the State bears no such burden or restrictions...

Besides being wordy with "that in the Order that the", it seems to criss cross the lines between the State and Defense.
It also ignores the obvious - the taxpayers are paying the entire bill, funding both sides, thank you. The State doesn't have some magic money machine to draw an infinite sum of prosecution costs from. They have a budget and they follow guidelines in selecting and securing experts and witnesses.

Am I confused or confusing? I can't tell. It just seems to be talking in circles...

ritanita said...


I wish I knew! I do know that there's a snafu with Dr. Lee. He claims to be owed quite a bit by the defense (JAC) for his time examining the evidence. Somehow, I don't think his half-price is anywhere near what the JAC will allow. Anyway, Baez hasn't put the paperwork together yet anyway.
(Forget the "pro-bono" talk on Nancy Grace way back when!)

As for the other experts, it is possible that they have been paid by the defense... back when they had money. However, I wouldn't count on it.

After reading about the witnesses, I don't think most of the big-name people will make it to the trial (Lee, Spitz, Reichs).

I would hope that those experts who will testify are working at JAC rates and doing their paperwork.

Baez isn't so good with paperwork when it comes to money issues. We'll probably never know until they are questioned at trial by the State.

KZ said...

"And like my daughter takes things as far as she can take them. And then she piles on some other stuff."

The Hinky Meter" (Valhall)has coined a word for this: lawn-yopping. (Lagniappe-- check out the Hinky Dictionary!)

Thank you, Ritanita, for the faithful updates! Friday may be interesting!

Sprocket said...

The only thing that I hope doesn't happen, is that down the pike, some time, some how, Anthony gets a new trial because of ineffective counsel.

I don't think Mason is that much of an improvement/help over Baez at this point.

Anonymous said...

Good Afternoon from No Snow Florida....I'm in Tampa and tomorrow I'll be listening for a rumble from Orlando....Mr Mason has bump his head hard to even word a motion such as this imply that the Chief Justice of District 9 for the State of Florida is "confused" or has"misapprehension" "misunderstanding"...Blows my mind! The tone of this motion is so narcissistic & arrogant...the how dare say we did something wrong attitude is incredulous....from time to time I read the at the Florida Bar website and it is pathetic to see the Attorneys that have fallen from Grace...Pretty soon Jose A Baez,(still on the fence about Mason & his 40 yrs) will share Their name with the Hall of Shame

Anonymous said...

It is now becoming clearer to me why Mr. Baez didn't want to share any reports with the DA; Dr. Freeman gone, Dr. Spitz a maybe, and Dr. Lee a maybe. Not looking good for the defense.