Casey Anthony Frye Hearings: Day 5, Status Hearing

If you watched the Frye hearings on the motions, you probably already heard most of what came up in the closing arguments . The only new information discussed was the stain in the trunk. I did enjoy listening to the defense present the same information minus those little "details" that came out in the hearings.

Dorothy Clay Sims began by doing her closing on the botany motion (with the apparently required Power Point Presentation). She reviewed all the basic facts testified to by Dr. Hall at the last hearing.

Among other things, she said, "He doesn't know the plants that are identified with the remains." She pointed out that he did not follow the roots to the plant. If you saw the last hearing, you know all she brought up on the issue.

She then demonstrated how small 2 mm is to Judge Perry with a ruler. Sims also noted that in his report, Hall mentioned 2 mm and at the hearing the size grew larger. (I believe in the report that he mentioned thicker and thinner roots in making his estimates.)

Sims said that Hall had no standards and experiments for his conclusions. He hadn't tested the growth of root into and around the bones. He didn't analyze the soil.

She then went on to praise her expert, Dr. Jane Bock.

Sims cited case law that said that the expert witness has to have studies and other empirical data upon which to base his opinions.

Sims wanted to go onto the root banding and Ashton stood (forgetting to object). Judge Perry allowed Ashton to close on the botany before moving on to the root banding. (I was so pleased by that since at the last hearing, the testimony and cross about the two issues got so mixed up.)

Ashton stated that Ms. Sims Power Point presentation materials did not approach Frye. The court had already ruled that Dr. Hall was going to provide his opinion testimony.

He said that Dr. Hall is a qualified forensic botanist who has a broad range of knowledge based on his experience as a botanist. There is nothing in his proposed testimony that is beyond his area of expertise. Ashton added that his testimony is confirmatory of a lot of other testimony as well.

He also told the Court that the State had no burden of proof in this motion since there is no Frye issue based on the judge's earlier decisions on the botany motions. He also said there is no legal precedent to exclude his testimony.

Dr. Bock opined that all the root growth could have grown/fallen in a week.

The decision as to testimony of the experts was one the jury would make. He ended his brief comments by simply saying that this motion must fail.

Sims came back and said that Dr. Bock had researched about specific plants with known root growth.

Then she went to hair-banding. She said that the banding is subject to Frye, as it hasn't been allowed in Florida. She added that there is no specific working group on hair-banding data. She said that there is no study of how long the hair should be, where the band should be and whether root-banding is a sign of death.

Sims said that Karen Lowe stated she was not an expert on hair. She mentioned the other darkening of hair in live studies when she hadn't seen the photographs.

Going back to the working groups, she said that there were no standards on hair decomposition. She referred to the death-band hair as the "dark" hair (as in the other studies done by the FBI on hair from living people which had been studied to attempt to re-create root banding).

Returning to Lowe's testimony, Sims said that there was no blind verification, the person who went in after her knew what she was looking for.

Sims then brought up error rates. (If I hear error rate again where I don't think it applies, I'm going to be sick.)

Judge Perry mentioned that error rates do not apply to Frye in Florida.

Perry asked her if she knew of any Frye cases where error rate was taken into consideration. She said there weren't.

She went on and on about blind verification.

She is making a valiant effort here, bringing up the National Academy of Science report. Ms. Lowe indicated that the hair displayed characteristics of a death-band. Then, we were back to the National Academy of Science report. We knew this sort of challenge would be coming up ever since the Academy released the report. Now, defense lawyers tout its results and claim everything is "junk" science.

Then, she went on to a report she gave Jeff Ashton the other day. It mentioned something about 60% of overturned cases were due to problems with the forensic evidence.

The judge asked if the courts had disallowed hair comparison.

Sims replied that this is different because the State is saying that the hair came from a decomposing body.

Perry then asked about the New York case cited by the State. Sims admitted that the hair-banding was allowed at trial.

We had more of the same for a while. Sims stated that if invalid science is used, this expensive trial could be tried twice.

It was then Jeff Ashton's turn.

Ashton pointed out that the defense did not present any argument against the root banding, in terms of expert opinion. He drove the point home by saying that hair-banding being an indicated sign of death and the defense had presented no testimony to rebut the State's case.

Ashton simply indicated that hair-banding is a scientifically accepted concept. The motion should be denied.

Dorothy Sims consulted with Cheney Mason and then approached the podium again.

She said that the State brought up the standards in the Frye hearing. The State only had one expert, Ms. Lowe testify. She quoted Ramirez again and went on to another case that seemed to say one expert was not enough in the situation.

Ashton objected to the discussion of the Ramirez decision. Apparently, a man was exonerated based on hair analysis. The judge also pointed out that the case also involved witness mis-identification.

Ashton interrupted again, and so did Mason. (Where are the $100 dollar bills?)

Sims decided to move on and said that just since the hair-banding was accepted in New York didn't mean it was accepted in Florida. She also pointed out that the defense motion was also related to Lowe's training in hair identification.

Baez then approached the podium and started a bit of banter with the judge and Perry shut him down fast! They were not there to make small talk, they were there to argue the motion to exclude the stain in the trunk of the car.

Baez promised he would keep his comments brief.

He started by saying that probative value of the stain was outweighed by the prejudicial effect of the testimony. He said that he doesn't have to bring up evidence that most people have stains in the trunk of their car.

He then said that the stain had to have relevance to the case. The garbage bag was wet and moist, there was (sic) gasoline cans in the car. Presumptive tests used Blue Star and there was a glow that showed that there was a possibility of blood.

The test found that there was no DNA on the stain and was not serological of nature.

Ashton had stipulated to that. But, Baez pointed out, there was mass hysteria about the stain that it looked like the outline of a child. Baez even called it "stigmata-type" evidence.

Baez asserted that after all the tests were in, it was NOT biological in nature. The State went to GREAT EXPENSE to do these tests and found nothing.

He then went on to point out that presumptive tests (for blood, etc.) can have false positives.

Baez was insinuating that the stain came from the wet, moist garbage bag.

Next, it was Jeff Ashton's turn. He indicated there was no testimony presented in support of the motion. In his response, he clearly pointed out that the defendant has the burden of proof here. He said they have not agreed and there was nothing attatched to the motion (photographs) he received. He stated that even attaching the pictures would not make it proof. Dr. Vass found that there were elements which contained compounds consistent with human deposition.

Baez responded that he had proof that he he filed the attachments with the court. He mentioned that if they would have to STOP the trial to have a hearing, they could do that.

The judge asked if there is testimony concerning the composition of the stain.

Baez said there was testing for chemicals that were found in the stain. Baez also said that the chemicals are consistent with a plethora of other items. (Velveeta Defense)
Baez said that the non-physicist Arpad Vass would testify and Madhavi Martin would testify that there are other possible causes of the stain.

The judge indicated that Vass said the stain was consistent with decomposition.

Baez went back to the DNA and lack therein.

Ashton said that there were volatile fatty acids possibly consistent with decomposition, possibly of a human nature. Dr. Martin's LIBS testing was also mentioned. Ashton also said that DNA is not present in decomposition because decomposition destroys DNA.

Judge asked if there was any testimony regarding the composition of the stain...Baez answered Vass and Martin had that information.

After a 15 minute break so Mr. Baez could get his act together for the next scene, he began his chloroform closing.

He pointed out that the testimony came from Dr. Vass. Referring to yet another Power Point presentation, Baez read an e-mail from Dr. Vass and the reply from LE. They are a discussion of a possible source of chloroform.

This sent LE to the Anthony computer where they found the searches for chloroform on the computer on March 17 and 21, 2008.

He referred to non-chemist, alleged scientist Dr. Arpad Vass as having added LE information to his report and it added an incredible amount of pre-trial publicity which led to the speculation that the child was killed with chloroform.

We had yet another denigration of Dr. Vass and how his report is not quantitative.

Baez then mentioned that Vass did have Dr. Wise, who worked for him (pause while the judge pulls up the document in question).

As he began to speak, Ashton objected that the deposition was not introduced into evidence. The judge allowed Baez to continue.

Then, there is a problem with Mason's computer and court takes a brief recess.

Baez is not saying anything new here. He is pretty much summarizing what has already been said.

When the hearing continued, Baez said that the chemist at Oak Ridge had a conversation with Dr. Vass in which he said the levels weren't "valid" (my best guess as to what he meant). Baex said yet again that Vass is not qualified to testify to the chloroform. There is no impartial and independent witness to the results.

Baez went back to Dr. Rickenbach's testing which showed very low levels of chloroform and Dr. Sigmund' statement that the primary peak was gasoline.

Dr. Furton testified that the FBI estimation would be the most reliable and that Vass' method of deciding levels were crude and not generally accepted in the scientific community. All the chemists agreed, but the "non-chemist" was the only one to testify to high levels.

Baez pointed out all the witnesses who weren't called by the State to testify.

The judge then asked why they hadn't heard from the hair expert and that the same reasoning in regards to his not being called to testify could be applied in this situation as well.

Perry also told Baez that he had asked him not to read the New York case with Petraco's testimony, yet wanted him to read the testimony of the State experts who weren't called.

Mason then called Baez over for a brief consultation. When Baez returned to the podium, he started talking about the error rate in root growth. Perry shut that down immediately. That issue was over.

At the very end, Baez mentioned a case in which the results of the NMS lab were erroneous. Jeff Ashton made the obvious connection of the lab and its current director, Dr. Logan.

Ashton then had his chance to rebut what Baez said.

He said the defense was trying to make a simple issue complex. He pointed out again that Frye does not require agreement among various experts.

The GC/MS is a generally accepted method for testing for chloroform. Vass looked at the relative size of the peaks and Furton agreed with this procedure, to determine comparative amounts of compounds. That's all that Vass did. The defense had made this simple conclusion into something massive.

The only issue here was if Vass used scientifically accepted methods. The problem was that there was such a large amount of chloroform he was unable to quantify it.

Dr. Rickenbach's analysis has been accepted by the defense, as with Dr. Wise. The defense could have called them.

Ashton stated that there is no rule that more than one person has to testify to meet the criteria of the Frye hearing. He also said the State has met its burden of proof based on the Frye standards.

As to relevance, it is up to the defense to prove it is irrelevant and they had heard no testimony about that during the hearing.

Ashton ended by stating that the jury should be the one to make the decision about Dr. Vass.

Baez gave a brief rebuttal. He said that he is not in agreement with what Mr. Ashton said. They do not agree in any way, shape, or form of the methods used by Dr. Vass.

Then he went on about error rates again, as well as a lot of stuff we've heard too many times before in these hearings.

Baez again asserted that Vass' methods are not generally acceptable. He also said that the judge decides on the experts, not the jury.

Baez ended by saying it wasn't their burden to prove and that's why they didn't call the other witnesses.

Next up are the canine alerts and we hear from Mr. Baez again.

Baez pointed out that this is only the second time this kind of testimony has been entered into a case, and the other case was overturned.

Baez started with the fact that Bones and Gerus had weak alerts in the Anthony back yard the first day and didn't alert at all the second day. (Conveniently Baez left out that the CSI's had moved a great deal of soil in those spots. I do think Judge Perry remembers all these "little details.)

Baez used the term, "unverified alerts" because there was no body in the car. He also mentioned that there was no car line-up and the fact that the handler knew the car was the "crime scene."

He then went on to reliability. (Baez, drop the clicker!) He said they have to rely on the credibility of the handler.

In Forgey's case, LE witnesses testified that there was only one car analyzed. Forgey stated that he only tested one car in his report and at the bond hearing. He would "bet the house" that in the Grand Jury testimony, there was only mention of one car.

Forgey never mentioned any false positives in any report. There is no documentation of the unverified alert from the Anthony back yard and that these facts call into question all the records that were submitted.

There is no evidence of double-blind training in the logs.

Forgey is the only K-9 handler in Orange County. Then Baez brought up the SWGDOG guidelines, and how the organization's guidelines were not followed in the training of the dogs.

Judge Perry asked about the original publication of the guidelines and Baez said they came out in March, 2009. Baez also said they were the LATEST guidelines. I don't recall any mention of PREVIOUS guidelines in any of the testimony.

Both dogs were never trained on residual odors, they could be alerting to live human beings.

Baez actually said that the State wanted to have the dog get on the stand to testify on something that wasn't there. He then went on to another slide to bring in other cases. The dogs scented drugs and there were no drugs found in the case.

Linda Burdick objected to Baez wanting to include video of the court video in his argument. The judge allowed it.
When the video was over, Baez attempted to explain the similarities between the cases.

Baez then played two more clips. It's hard to understand (even the closed caption at InSession said Unintelligible), and at this point I just want it to be over.

Judge Perry said that there was a problem in that the clips are not very helpful. Baez is saying that the evidence is so unreliable it shouldn't be admitted. It could be used for probable cause versus positive proof of a body. He also pointed out that the Simms case was one of ineffective counsel, that the attorney did not challenge the canine evidence.

The problem is that the other clips do not discuss case law, yet Baez goes on about "significant issues".

We had a lot more argument by Baez at this point.

One comment was that Gerus didn't alert at Suburban Drive. (Forgey said that he didn't alert on Suburban Drive because he wasn't allowed near the crime scene!)
Other line-ups from other cases were brought in. One was knives and one was of shirts. Baez was now trying to say there should have been a car line-up.

At this point, Baez was putting up slides we couldn't read and went on and on and on and on about his issues with the cadaver dogs. (It was like listening to a skipping record, remember them?) Case, prongs, comments, Court should rely on these cases, shouldn't rely on those cases.

Pass the Advil, please.

Linda Burdick corrected Baez about the date of the guidelines being published in September, 2009. She added that the guidelines have no relevance in the argument before the Court.

Dr. Furton testified that both handlers and both dogs were sufficiently trained. The only issue raised by Furton was the sufficiency of the records. The records were training record for Gerus, but Bones' record did contain operational outcomes as well.

She indicated that the credibility of Det. Forgey is not before the court. The issue was if the dogs and handlers were appropriately trained according to Florida case law.

The Ramos case was a matter of scent discrimination, that the dog was able to identify a specific person based on the dog and handler's training. In this case, the dogs were trained to a specific substance.

Burdick continued by pointing out that the use of cadaver dogs in many situations has shown that dogs are reliable in the location of human remains. For the Court to admit the evidence, they only have to prove that the dog and handler had been trained by a nationally known expert in the field and were certified.

Other jurisdictions have handled cadaver dog cases, the only additional requirement they seem to impose is whether or not the dogs had a reliable performance history.

Both dogs had undergone quality training in their field. Gerus was evaluated by experts quarterly, unlike lawyers!

Forgey had trained many dogs in many disciplines and the records show that both dogs have recovered human remains in real cases.

The only time there is a "false positive" is in training circumstances. In operational cases, there is an "unconfirmed alert" according to Dr. Furton.

Burdick stated that the alerts were not unconfirmed. At the house, the alerts by Bones and Gerus were confirmed by each other. As to the car, Gerus was the only dog used, but there is ample corroboration such as the hair evidence, air evidence, admissible lay opinion testimony as to the odor as well as the expert opinion testimony.

Independently, the cadaver dogs don't prove the case, but taken together, a deceased body was in the trunk of the car.

Not even Det. Forgey would testify that Caylee Marie Anthony's body was in the car.

The judge then asked about probable cause. Burdick said that she had no case law of that. However, she said that there is probable cause and reasonable suspicion that there was a dead body in the car.

Of course, Baez had a brief rebuttal. He said that there was no agreement on probable cause as a pre-trial standard. It varies by where one lives.

He had some more things to say, but I pretty much tuned him out since he was just repeating what he said on his first go-round.

Baez did misstate the information about Gerus saying that he did not alert at Suburban Drive. In my memory, Forgey stated that he took the dog out to Suburban after the remains were found in the hopes he could find more bones and wasn't allowed in the are where the CSI's were working. (I'm sure someone will tell me if I mis-remembered!)
Well, this line did me in totally! And I quote from Mr. Baez himself, "Put a square peg through a circle hole and take no judge where he has gone before." What this had to do with the cadaver dogs, I have absolutely no idea.

The lunch break was called and court was in recess until 1:30.

Baez stated that everything was finished, and that Judge Perry should rule on the pleadings. Although Ashton did not file a response, he said his response was "failure of proof". Based on this, I don't think the State really cares about the heart-shaped sticker being allowed into evidence.

Both sides agreed to the TV stations the jurors can watch.

Ashton said he had started his depositions with the mental health witnesses and has scheduled them to be completed next week. He stated that, based on the testimony he's heard so far, it is likely he would file a motion in limine after completing the depositions. He stated that the subject of the motions would deal with having this testimony at the proper time in the trial. According to Jean Casarez on InSession, this would mean that Ashton does not want Baez to use this information in opening statements.

I'm sure we are all looking forward to reading this motion.

Judge Perry then closed the hearing with a great deal of information about the details of jury selection. Of major importance was that fact that he informed both parties that if they were unable to impanel a jury at the first location, they would return to Orlando and attempt to impanel a jury there. If that were to not be possible, there would be a secondary location chosen.

Let's hope that the judge is correct about being able to chose the jury on the first try!

Another change was that the first day of testimony will be Tuesday, May 17 to allow lawyers time to get prepared after a week of being away on jury selection.

There will be weekly status hearing from now on, the dates to be announced. The next hearing is slated for Friday, April 15 at 1:30 PM. At that time, the motions concerning the new witnesses should be heard.

Hearing links at WFTV.