Casey Anthony Frye Hearing Day 3: Part 1

The hearing Friday, April 1 frazzled me no end. I'm sure it frazzled you too! I had to go to sleep on my notes and come back with a clear mind today. While the testimony from Awilda McBride and Cindy Anthony went fairly smoothly, the expert testimony was a total hash for me. I thought I "got the science" when Dr. Vass testified last week, but these new witnesses had my head spinning like the girl in "The Exorcist" while pounding like any good Excedrin headache should.

Court came to order today promptly at 8:57. Present for the State were Jeff Ashton, Linda Burdick, and Frank George. For the defense, Jose Baez, Cheney Mason, and Dorothy Clay Sims were in attendance.

Witness #1: Awilda McBride

Testimony started with the defense questioning Awilda McBride, who was a missing person's investigator July 15, 2008. Det. Melich told her to pick up the trash bag from Johnson's Tow Yard. She was accompanied by George Anthony who identified the bag for her based on the contents.

This is the first time I've heard that George was part of the trash-bag retrieval.

Jose Baez worked mightily with leading questions to get Ms. McBride to admit that the garbage bag was opened prior to her entering the forensics bay and that the odor emanating from it caused the stink in the bay. When the questioning was complete, it was abundantly clear from Ms. McBride that the bay "stunk" prior to the opening of the trash bag.

Baez then showed her two pictures of the bag and asked if she saw maggots. McBride said that she didn't know what she was seeing.

Baez then showed her a photograph of the trash and asked her if the garbage was dry as it appeared in the picture. McBride stated it wasn't. Baez then asked to have a picture admitted into evidence. Jeff Ashton objected to the picture because the witness testified the garbage wasn't the way the witness remembered it. There was a brief side bar about the issue and the defense withheld the exhibit for introduction at a later time.

Jeff Ashton began his cross examination by asking McBride if the vehicle was in the bay before the garbage was brought in and if it smelled before the bag was open. She said that it did. Baez objected, stating she had not testified to that. Judge Perry overruled it. She then testified that opening the garbage didn't change the smell of the room. She stated that the bag had no noticeable odor.

On re-direct, Baez asked her if she had previously turned in the garbage and left the room. McBride said that she didn't believe so. Baez also elicited testimony that she couldn't tell where the smell came from. She couldn't tell if it came from garbage or car.

Now, that answer made no sense to me. She previously testified she smelled the odor in the bay prior to opening the bag which didn't have much of an odor at all. I think Baez had confused her with his questions.

On re-cross, Ashton asked her when she put garbage in HER trunk and removed it, did the trunk have a residual odor. She said that it didn't.

Baez asked her how long the garbage was in her trunk McBride answered that it was there for 30-40 minutes at night. Baez then told her that it wasn't there 2 1/2 weeks in hot Florida sun and she responded no.

Baez asked that she not be released yet, which means we may hear from her again today.

Unfortunately, that was not to be. You have to know that she will testify in the spoliation motion sooner or later

At the end of her testimony, Ashton asked which motion they were discussing and Baez replied that it was both for the air and chloroform motions.

You will note that later in the hearing, Baez' expert, Dr. Furton will essentially testify to all three motions at once, leaving the listener to have to separate the different threads of evidence. He will discuss cadaver dogs, chloroform, and decompositional odor in such a confused fashion as to cause major headaches in the viewing community.

Witness #2: Cindy Anthony

Cindy Anthony was called to the stand to testify as to what she did to the car when she brought it home. She went through all the details of how the car was pulled into the garage, George Anthony opened all the windows and the trunk to air it out. She pointed out that the odor permeated the entire car. When George went back to work, she stayed behind for about 45 minutes.

During that time, she removed various items from the car, including Casey's work bag, Caylee's doll, Mama,a backpack, and other items. She said that she sprayed the car with a whole can of Febreze and put drier sheets in the trunk. She then shut the garage door and went to work. She also said that nobody from Oak Ridge Labs came and tested the air in the house or the garage.

Jeff Ashton cross-examined Cindy and had her confirm that the family had no chloroform in the garage or the house.

Ashton then referred to her 2009 deposition. P. 323 where she claimed she didn't put the drier sheets in the trunk.

Cindy then went on her familiar ramble about how traumatic everything was at the time and how things come back that she had forgotten, that she was on new medication for depression. She then told Ms. Burdick, she had told her that, remember? (The last time she called her Linda when directing her rant to co-counsel. I have a feeling Ms. Burdick might have shaken her head "no" at that statement.)

Ashton asked Judge Perry to direct Cindy to not direct comments to Ms. Burdick.

Ashton asked her if she knew the chemical components of Febreze and she said she didn't know, even though she'd looked on line and the ingredients were not on the can. Ashton asked her if she sprayed because there was a bad odor in the car. The answer was obvious.

There's one thing I do know, there isn't any major amount of chloroform in Febreze, it's a carcinogen and if one were to spray enough, it would knock out the sprayer! I even went so far as to go the the Hinky Meter searchable data base and looked for the word "Febreze" under all possible spellings and couldn't find it listed at all. I suppose Mr. Ashton is saving some of his impeachment ammunition for the trial.

Witness #3: Dr. Kenneth Furton

Reporting on Dr. Furton's testimony is tough! At the last hearing, I was able to summarize Dr. Vass' testimony in complete sentences as he testified. What he said was clear and concise to the layman. Today's questioning by Jose Baez was difficult to follow and Jeff Ashton was constantly objecting to the testimony. There were plenty of fireworks in the courtroom during his testimony!

Jose Baez indicated that Dr. Furton would testify about air and chloroform first and the canines second. He then had the doctor lay out his basic credentials.

-Professor at Florida International University (FIU)
-He works with GC/MS in his analysis of chemical components of decomposition
-His work is focused on identifying target chemicals that can be used to locate forensic specimens.
-He has done research with odor signatures over the last 20 years
-He is studying how dogs are able to locate forensic specimens to develop a machine to do such detection. (Does this sound familiar?)
-He works with drugs, explosives, human remains.

Baez then began to question Dr. Furton about all the professional organizations he belongs to and why it is so important to be a member of them. Furton gave a rather impressive list of organizations and offices he holds in them.

Baez then asked if Dr. Vass belonged to any such organizations. Jeff Ashton objected and Judge Perry sustained.

Furton further testified that he had read all the articles and published an article about the topic of odor signature analysis of human remains in 2003. At the present time, he has two dissertations he is advising students on. One is for an MA, another is for a PhD.

When Baez asked him who was the first to write a paper on signature odor on human remains, Furton said he wasn't sure. He did state that he was one of the early researchers in this area. According to Furton, there is wide disagreement between the various studies with many inconsistencies. He testified that odor signatures of decomposition are not generally acceptable in the scientific community.

Baez then wanted to use a chart (which had been previously rolled up in front of Casey) that Dr. Furton said he had put together which provided a comparison of the compounds discovered in all the studies.

We all know that Mr. Baez, as with any defense lawyer, wants to hold his cards close to his vest. Florida law does not allow this. For this reason, I'm going to go through what happened next in detail.

Jeff Ashton was on his feet in a nano-second, vigorously objecting to the use of the chart since it had not been provided to the State two days prior to the hearing. In addition, at deposition, Furton had said that he didn't know the compounds and now he knows them. Baez tried to fend off the objection by saying that Furton had not changed his opinion, but had gone out and done some homework on the issue. (Hello? Furton knew what he would be deposed on and he didn't do his homework ahead of time?) There was also an issue as to if a paper Furton mentioned was mentioned in his report.

The judge took a 5 minute recess and returned and "laid down the law" to the defense. The judge read the discovery order which said both sides had to turn over any exhibits to the opposing side 2 days before a hearing. In addition, all material in reference to the expert's testimony was to be in the report or the deposition. He then asked Jeff Ashton to explain why he felt the exhibits were not in conformity.

Ashton replied that the information is not in the report Furton made. In addition, during his deposition, Furton stated that he did not know which chemicals were common among the various studies, he had said he didn't know. He pointed out that between the deposition and the hearing, Furton had "found" the answer. Ashton added that it is the duty of the defense to turn over any new material or change in opinion, which is a discovery violation.

Baez replied that Furton hadn't changed his opinion and explained that he didn't know the exact answer to the specific chemicals and went back and found them. He added that these rules were to apply to the trial only. Baez went on and on about the order and that it had been Mr. Ashton had asked if these rules applied to hearings.

Ashton then said that the issue did not only relate to the order, but also to the continuing requirement to disclose and was willing to pull the case law on this. He also said that he "saw it coming" and that hearing couldn't be "free-for-alls" which ignored the rules of discovery.
Baez had the responsibility to inform him of this further research and it shouldn't have been a surprise. He asked for sanctions.

Clearly this is willful, clearly this is deliberate, ambush.

Baez said:

"...this is not a change in his opinion, so the case that was just cited by Mr. Ashton clearly does not apply. This, to claim that this is willful is about a big a stretch as the science they're trying to introduce. This, ah, this issue about us standing silent, uh, well, actually. This issue of the exhibit, I will voluntarily withdraw. But all that this witness has done is follow up on information that was asked of him to substantiate the opinion that he gave..."

As he continued explaining how this was not a new opinion, Baez mentioned that Furton did this on his own, and not at the request of counsel. According to Baez, Furton did all this research because he wanted to be able to "educate the Court better on these issues."
At this point, the judge allowed Ashton to voir-dire the witness to find out if he had changed his opinion. In his questioning, Ashton elicited the following information from Dr. Furton.

Since his deposition 2/19/11 his graduate student and he submitted a paper in which she included a chart comparison chart of the VOC's (volatile organic compounds) which supports the opinion he gave during his deposition. It is under review and has not yet been published.

It seems this was the student's dissertation and Furton said he mentioned it at the deposition and Ashton discounted it because it was a dissertation. When Ashton asked if he knew about the chart prior to the deposition, Furton stated that Ashton didn't ask him that question.

Ashton started to get hot under the collar at this point and began repeating "Did you reveal that to me?" (Concerning the comparison chart) Logan kept saying that Ashton hadn't asked him that question. As the back-and-forth went on, Ashton became loud and angry and Jose Baez got up to object and Ashton kept going.

At this point, Judge Perry, for the first time I can recall, shouted at them, "Just a second, gentlemen" a few times, even when Furton answered the question with a "no."

Then, Perry asked Baez in a soft voice, "What is your objection, sir?"
From best I could hear, Baez said that it was argumentative and that the witness should be able to complete his answer. Perry asked the court reporter to ask the question again for Furton to answer.

When asked the final time, Furton answered, "No I didn't because I was never asked that question."

Ashton then approached the witness with the copy of the deposition and pointed out the relevant section. He asked if Furton had told him that the dissertation was available when Ashton had asked if he knew the common compounds. At this point, Furton started going on about the entire situation, he hadn't changed his opinion, etc. When Ashton asked him if he knew the information was available, Logan continued to waffle on. In the end, it turned out that at the time of the deposition, Furton didn't know that the study existed!

Get this little sleight of mouth, people. Furton kept saying that it was Ashton's fault for not asking the exact question to elicit the information. The fact is, Furton either didn't know that his graduate student had already made a chart or Furton suggested she make a chart to improve her dissertation, thus supplying him with information he was lacking at the deposition.

After an extended period of time in which Dr. Furton could not remember when he shared his information with the defense, we learn it was sometime in March. Since the original dates for the hearings were March 23 an 24, the defense probably had the information then.

The judge reminded Baez that he had withdrawn the exhibit, but that if he hadn't, he would not have allowed it in since it clear violation. Furton would be able to testify about the compounds as his knowledge of them did not change his opinion.
Think of all the time and effort that would have been saved had the defense followed the rule! Think how much shorter this article would have been!

Baez was then permitted to continue questioning the witness. He reviewed his previous testimony concerning the fact that studies do not agree on the number of compounds or which compounds constitute human decomposition. He asked about the issue in terms of Vass' study
and the Greek study (no I don't know how to spell the name). Furton also testified that even now, he would have to rely on a table to be able to talk about all the different compounds.

Furton replied that he had seen the compounds in this case and Vass relies on 5 with only one in common with the Greek study. There was more talk about garbage in the Greek study.

Both with Dr. Vass and Dr. Furton, Baez keeps bringing up garbage. Personally, I see the comparison as one comparing the garbage in a landfill to the tied, virtually odorless bag in the controlled environment in the trunk of Casey Anthony's Pontiac.

With the mention of the garbage and the number of common compounds found in the Greek garbage study and Vass' work on this case, Jeff Ashton objected and Baez went with what is now the new defense mantra: The question wasn't asked in the deposition.

Ashton again argued that this information should have been in the report and that it seemed as though there were some opinions for the report and "some for later." He felt he should be able to rely on the "good faith of counsel in instructing his witness to comply with the court's order."

As Ashton was speaking, Cheney Mason came to the podium and whispered in Baez' ear and Baez then added that the rule didn't apply to hearings, only at trial. He also said that he couldn't control what questions Mr. Ashton would ask.

Ah, Mr. Baez, the purpose of the reports is to give all the opinions so that Mr. Ashton has some idea about what questions to ask. I have a slightly more than a sneaking suspicion that the judge did indeed think the defense reports have left out a bunch of opinions! Consider what the judge said about the "reports" filed by the psychiatrists the other day. He called them letters!

At that point, Judge Perry said that he had had enough. He would allow Furton to testify and that the State can take a new deposition. He then said that he has a disk with every deposition taken and that by trial he will have read them all. He said he wanted all the reports filed and that he would read every report. If something testified to at trial is not in them, if somebody gets caught hiding something, they testimony may be stricken and the jury told to disregard. In addition, he will permit the State to recall a witness (Dr. Vass?) if they need to.

It is getting tiresome to see all the court time wasted by the fact that the defense keeps trying to ambush the state with new things here and there. It is also interesting to note that Baez is always complaining that the State is giving them too much discovery. You can be sure that the State's Assistant Attorneys will never be called out for failure to disclose. I just have to wonder how many more times we will be hearing the same objections by the State.

Well, at this point we are still far from lunch and I've perhaps written enough for one sitting. I'll continue on to report on this contentious hearing in another post.

Watch the hearing. Links are posted HERE. Thank you WFTV!

He told both sides to go to their favorite ATM and get some money out because he was going to ask them to volunteer $100 to the United Way every time they talked out of turn, talked too loudly (in an argumentative way) or used such phrases as Baez used (crazy level of chloroform). If they didn't do so voluntarily, he would hold them in contempt of court which would go on their record.