Casey Anthony Hearing: Day 1 March 23, 2011

Today's hearing started promptly at 9:00 AM. The first issue to be discussed was the post mortem root banding issue.

Jeff Ashton began by asking Judge Perry if he had received the State response to the hair banding motion (the one that is 388 pages long). The judge indicated that he had been in Tallahassee all week and hadn't seen it yet. Ashton began his presentation by referring to the transcript of the New York case that was attached. He, of course, mentioned the former defense witness Nicholas Petraco who argued successfully for the defense in the New York case.

Dorothy Clay Sims objected, saying that transcript was not complete and verified. Jeff Ashton pointed out that all of Petraco's evidence in, including cross examination.

Sims indicated that there was no cover sheet or certification clause. Judge Perry said that Petraco is in the defense's employ and asks if she asked him if it was his complete testimony.

Sims said he is a non-testifying expert and that she could present testimony helpful to the defense. Unfortunately, she didn't bother to bring pertinent materials to back up her assertions.

Judge Perry said that she can turn it in and he will reserve his ruling.

Jeff Ashton called Karen Korsberg Lowe, an FBI analyst at Quantico (via video). Due to a lack of sound, we missed the first portion of her testimony. I would imagine that Ashton asked her about her background and experience in this field of forensics.

Based on Ashton's questions, it would seem that she identified hair Q-12 as the one with post-mortem banding. She also gave a short history of research into post-mortem banding. Once we got sound, Lowe read off titles and basic content of peer-reviewed journal articles on the topic. She indicated that post mortem banding is often seen in persons who are deceased and that the FBI has been examining hairs for this artifact.

Dorothy Clay Sims objected to this information. She said that Jose Baez had gotten a call from the FBI saying they have research about this, but has not yet been or will not be provided to the defense. Therefore, they wouldn't be able to cross examine the witness.

Jeff Ashton stated that the State had just learned this also on Friday. He added that Ms. Lowe would not testify to this today. Apparently, the research has not undergone peer-review at this point.

The report is of a study from the Body Farm and is not yet complete. The testing mentioned in the report apparently tested hair from living people. The hair had been exposed to the elements (water, soil, etc.) and no root banding had been observed. Judge Perry asked if any of her testimony would be from this study and he was assured by Ashton that none of her testimony would involved in this new study. In fact, at this point the manuscript of this report is not yet available and it is not known when it will be available.

The judge indicated that there needs to be threshold questions asked. He also indicated to Ms. Sims that there are probably other studies and, "whose responsibility is it?" He said he can't determine if it's exculpatory unless he knows what's in it.

Ashton repeated that his witness would not discuss this in her testimony. At this point, he was finished with his direct examination.

Dorothy Sims was up next and began a dizzying array of questions concerning hair banding.

Unfortunately, a large number of her questions were ones not related to a Frye hearing and Jeff Ashton was constantly objecting to her questions. They were the sort of question that could be asked at trial, where her testimony is always subject to objection. What she was asking will go to weight to the jury.

Ashton continued to object to issues which don't directly deal with Frye issues.

The judge sustained the majority of the objections since Sims kept wanting to go into credibility and other issues about the hair beyond the banding.

Sims asked Lowe about a Power Point presentation. Sims asked about an example (of root banding) she used, saying that the banding on that hair was much closer to the root than the darkened area to Q-12 (the sample from the trunk of Casey's car). Sims wants the power point Lowe used in teaching. She even asks Lowe if she can measure the distance of the root band on the photocopy of the picture to show the distance to the root end. Ms. Lowe explained that she would not be comfortable doing that, that it would be more appropriate to measure the distance to the end of the root by doing it under a microscope with the original hair.

Ashton said he thinks Linda Kenney-Baden provided it a year ago and Lowe explained that "this" is the slide used in the presentation used at the school. That was the only slide she had on this topic.

Sims then asked if she had ever testified in a case where a single hair has been used

Lowe stated that she hadn't and she would would testify Q-12 was CONSISTENT with decomposition.

At this time, Ashton again objected that Sims questions went well beyond the confines of a Frey hearing and the judge reads the Frye rules to Ms. Sims and said that her questioning sounded more like a deposition than a Frye hearing.

Sims argued that her motion contained information which made this is MORE than a Frye hearing, there are other issues she needed to argue.

Judge Perry said, "I don't know how many more times I can say this, this is a FRYE HEARING!"

Nevertheless, Sims continued on with her questioning and Jeff Ashton was constantly on his feet objecting, and the judge mostly said "sustained".

Sims is finally allowed to ask if ONE hair was enough to draw the conclusion.

Lowe stated, "it is consistent with a dead person"

At this point, Jeff Ashton was so ready to object that Judge Perry had to remind him to wait for the question to be completed BEFORE he objected.

Sims then brought up a study in progress which demonstrated that post-mortem root banding can be mimicked by tests done on hair from living people put out in the elements (dirt, water) . Lowe kept saying NO! The hairs from that ongoing experiment putrefied at the root and became darkened.

Sims seemed to confuse the darkening of the hair shaft from a live person with banding which has only been observed post mortem.

There was also some discussion as to whether hair banding could be caused by enzymes from food items. Lowe said it could but was not the same as post mortem banding. It did not go around the width of the hair shaft.

During the 10 minute break, I watched the commentary on InSession, An ex-FBI expert said that the defense tipped their hand. They are trying to say that the food in the trunk caused the hair banding. The state witness was adamant she can tell the difference.

After the break, Sims began to conclude by saying that there is no criteria with which to indicate that root banding has occurred, there are no standards of how many micro-meters away from the root or the maximum or minimum length. She stated that there is nothing written as to measurements, it's her conclusion confirmed by another examiner.

She went on to say that there is no error rate. To have an error rate, you need to know how many hairs with PM banding came from a live person vs. dead person. There haven't been any such cases based on what she has said. (She completely ignored the fact that there are no examples of post mortem banding from live people.)

Ashton: objected, stating that quality control is not part of Frye.

Judge Perry sustained the objection.

Sims said that there was no study done on her personal error rate and that the evidence was less strong because there was only one hair.

Ashton: objected Judge: sustained

Sims indicated that scientists don't know cause of root banding.

Sims also questioned Lowe, asking her if she is an expert in causes of root banding. Lowe replied that she is an expert in hair analysis.

Okay, folks. About this time, we developed some huge thunder storms that kept me off the computer the rest of the night. Here are my slightly edited notes from the rest of the hearing!
Please note that I have done my best to proof them and have them make sense. Let's hope the thunder-boomers stay away today and tonight!

Banding was not destroyed.

Sims asks if banding can be caused by enzymes in lab.

Sims asks again about lab enzymes causing a band... Lowe says it is different.

Sims is going on now about toddler vs. adult hair (objection-sustained).

Hair was preserved so defense expert could examine it!

No published criteria... is her methodology for comparison. Sims keeps going on... studies of male vs. females.

DONE!

Sims brought up other issues not dealing with Frye. Perry pointed out her motion deals with facts dealing w/Frye. She will have to file another motion!

Perry. Point out any issues in your motions not related to Frye. She sits down.

Ashton then cross examines.

Ashton: Error rate: does that term apply to measurement error rate?

Lowe: Would be for something that is reproducible, regular, recurring.

Ashton: No lab in world has error rate about how often their experts are wrong.

Sims: Objection

Error rate is being misinterpreted that doesn't apply to this situation. (Expert opinions)

Ashton mentions the Lynch article Sims was asking her about. He asks her to read it into the record the summary.

The expert examiner can identify post mortem root banding.

Enzyme banding cannot be mistaken for post mortem root banding.

Sims then questioned if error rates do not apply to an opinion? "You can be wrong, can't you?"

Lowe responded that an error rate has to be for reproducable results.

At the end of this Frye Hearing, the Judge quickly granted the defense 300 more investigative hours.

The hearing broke for lunch. When we returned, it was on to the K-9 issues. Yuri Melich was the first witness for the defense. On July17-18 he called out deputy Forgey (cadaver dogs) Melich wanted to know if his dog would go over car to detect human remains vs. other remains. Forgey said he'd try. The car was driven outside the bay at Forgey's request and positioned just outside the bay door. It was in the rear parking lot of the sheriff's office.

Baez then asked Melich to draw a diagram and show the position of the cars and asked if the dog search any other cars. Melich said that the dog stopped at end of car near trunk and sat down. That was the dog's alert.

The dog did not alert on Tony Lazzaro's car. It was in another forensic bay.

Baez asked Melich if Forgey went to Anthony home after the car search.

Melich said it could have been Sgt. Allen who sent them out. There were a couple other tips where he had requests for dogs which he was there for. Nothing found.

The State had no questions

Next witness:Gerardo Bloise (CSi with OCSO)

He was there for vehicle inspection and Moved car out of garage for Forgey. He testified Forgey walked around the car with his K-9

He also drew a picture showing Forgey started with driver's door and went back and alerted at the trunk. He was not there for the search of Lazzaro car. He was at Anthony home for dog search.

Forgey was at the home the same day. When Bloise was there and they found some soil disturbed. He did his inspection and that's it. He didn't see the dog alert, didn't go to the back yard. He said that the dog was probably on a leash. Can't say about in yard because he didn't go in the back yard.

Bloise stated that Forgey is the only one who can testify about the back yard. Bloise was there when the second K-9 came out. (Dept. Brewer). He was aware her dog (Bones) alerted.

State: No questions

CSI Michael Vincent was the next witness. He was also present for cadaver dog investigation of Casey's car.

It's obvious that Baez is trying to catch people in small discrepancies. He asked Vincent if HE drove the car out! Vincent said, no... Bloise did. Vincent didn't recall where Forgey started the search and the doors weren't open. He said that the dog was not on leash. The dog alerted at right rear corner of the vehicle. (Sat down)

Vincent was not there for inspection of Lazzaro car, but was at the Anthony home for cadaver dogs. He was not in back yard during the search.

Was informed dog alerted on 3 spots in back yard. He wasn't informed of this at that time because Forgey suggested another dog for verification.

He was present when Dep. Brewer came but didn't see the dog deployed. Vincent didn't know if Forgey in yard when Brewer searched.

Both dogs alerted on three spots. Excavated 2 spots that night, the other the next day. No human remains were found. He didn't know if dogs were deployed again.

State: No questions

20 minute break pending the arrival of the next witness

The next witness was Dr. Scott Fairgrieve.

Baez had him give his credentials. Fairgrieve stated that there are no national standards for cadaver dogs. There are groups that do have training manuals.

He studied the records of Genus and Bones, the dogs used in this case.

Dogs should be trained at all phases of human decomposition.

Limitations. Conditioned to respond to a certain stimulus. Can't interview the dog. It is important that the dog and handler work as a team.

Use of a cadaver dog has been to assist in searching for human remains as efficiently as possible.

Baez: Can dogs alert to decomposition not from a human body? Possibly... blood through a cut, semen stains, urine stains, fecal matter, other things that have cells that will decompose.

Fairgrieve: A soiled diaper could work unless a dog hasn't been "proofed off" of that. Can alert to skin cells, hair, fingernail clippings. Teeth

Linda Burdick objects at this point because his deposition gives no information about residual odor. He's not qualified to give an opinion nor has he given one in the deposition.

Here it comes. The judge made a very strong ruling about the fact that if it's not in a report or a deposition, it's out!

Judge Perry will let him testify and then cross will determine what's allowed in.

Fairgrieve: Residual odor: an instance where a item that's produced a scent may be left in an area and then removed and then the scent may be retained in that spot.

Baez: How long can it last? No answer

Baez then asked about scent line-ups and Fairgrieve said they includes multiple vehicle searches.

Fairgrieve: First, handler has no previous knowledge or expectation. Other vehicles should be part of the line-up. No specific number. Should be videotaped. Handler can give cues to dog to alert. Even inadvertent.

Burdick again objects. This information is not in the disclosure. He adopted his deposition all the positions he will take.

Fairgrieve: Has read studies on handler bias. Gerus training logs: thorough, detailed various types of targets used in his training. Stuck to the basics.

Baez: Any training on residual odor?

Fairgrieve: Not to his knowledge. He reviewed his records from 2003 to 2008. Dog trained on bone, decomp, blood, clothes with scent, soil from beneath a body, cremated remains, ADIPOCERE! Wide variety, no fingernails, no hair.

Baez had Fairgrieve define a false positive.

Fairgrieve: No remains found. (like in the back yard). There is no test to verify false positive. (Meaning there could have been decomposing remains that were removed from the area.)

Burdick: Cross

She gets him to admit to the fact that he is not an anthropologist or chemist. Has limited experience with dogs to searches.

Fairgrieve: he has been involved with archaeological digs. Cadaver dogs are the easiest to employ to locate the buried remains.

Burdick: Has he ever been involved in training of a cadaver dog?

Fairgrieve: He observed and supplied samples.

Burdick: It is not easy to find suitable human remains to use in training?

Fairgrieve: He agrees. He got involved in the field because he is "the guy with the old bones".

Burdick: Did he supply placentas? No Some tissue? No Teeth yes Dry Bone - yes his own blood yes.

Fairgrieve: His involvement is observation. Never had a dog on/off lead or made determination ... watched others do that work. Primary research - burned human remains. Published research has nothing to do with training, deployment, or reliability of K-9's. He's watched cadaver dogs on 10-20 cases, not in training or certification.

Burdick: Most of what he's testifying is based on his own observation?

Fairgrieve: He has observed dogs as to if they are or are not signaling to various materials. He's not testifying about these dogs.

Note, Ms. Burdick has done a good job of impeaching Dr. Fairgrieve as an expert in the field. He has kept up with the literature, not authored any. He claims no expertiese in the chemistry of scent detection.

This sort of questioning went on longer. I'll spare you the remainder.

Baez got up to rehabilitate the witness and elicited the following information:

Dr. Fairgrieve is a forensic scientist, not a dog handler. As as such, he reads articles in his field. It is recognized as an acceptable method of professional development. He is an expert in buried remains, among other things.

Dog hits can be viewed as a presumptive test needing further corroboration.

My note:

Baez just proved the State's point. Dog alerted, further testing showed the fatty acids in the stain, possibly other human remains odors.

Sgt. Kristin Brewer was the last witness of the day. She was the dog handler of Bones. She is from Osceola County. She obtained Bones from Sgt. Fogery and she helped her to train him.

To make an extremely long story short, she was the second dog handler called out to Hopespring Drive. Since Gerus, Fogery's dog had made a weak alert in the back yard, he wanted another dog to check.

She marked the areas where her dog alerted on pictures of the Anthony's back yard.

More on canines coming up at the hearing today!

Casey Anthony In Court For Hearings On DNA, K-9 Search