Casey Anthony: The Mitigation Witnesses And A Taphonomy Expert

According to what we have heard, the motion for discovery by Jeff Ashton is the only one to be discussed. However, two more motions have been filed. Just in case they come up, here's my take on them.

On November 23, attorney Ann Finnell filed the Defendant's Motion To Seal Penalty Phase Discovery Response. This motion comes after Judge Belvin Perry's Order denying the previous motion filed by Andrea Lyon on April 28, 2010. Lyon's motion, entitled Defendant's Motion for Protective Order with Respect to Penalty Phase Discovery, essentially stated that the defense wanted Perry to:

...enter an order protecting Miss Anthony from having to reveal any information relating to any potential penalty phase proceeding to the State prior to the time that she is actually convicted of First Degree Murder, should that event occur.

In a ten page memorandum of law, Ms. Lyon cited quite a bit of legal precedent and Casey Anthony's constitutional rights.

In sum, Rule. 3.220 does not require pretrial disclosure of penalty phase discovery. Extending Rule 3.220 to require penalty phase discovery before trial would raise serious constitutional questions, and the Florida Supreme Court has expressly declined to do so. To compel disclosure before trial would severely prejudice Miss Anthony's defense, violate her constitutional rights, and likely violate the witnesses' right to privacy under Article 1, section 23, of the Florida Constitution.

The defense argued Florida Rule of Criminal Procedure 3.220 does not require pre-trial disclosure of penalty phase discovery materials, so there should be no requirement to provide a list of mitigation witnesses prior to trial. The state argued the defense chose to participate in discovery, which triggered reciprocal obligations that include the sentencing phase of a capital trial... " (bold mine)

With this order denied, the judge did give the defense an "out" concerning the names of the witnesses.

2. If a particular witness will face public harassment, the defense may file a specific motion regarding that witness and the Court will consider a restriction on public disclosure of the name and address.

Surprisingly, in her motion, Ann Finnell chose to ask that all witness names and addresses be sealed from the public and the media. As we heard at the last hearing, she is having difficulty getting witnesses to speak to her. Apparently, Finnell believes that:

To date witnesses in this case, especially defense witnesses, have already been subjected to intense media pressure and harassment by the media and the public at large. This has resulted in a chilling effect with some witnesses becoming reluctant to come forward with information for fear of harassment and stalking. (bold mine)

Furthermore, Finnell also asks the judge, should he deny this motion,

...Defendant objects to any disclosure at this time and requests this Court delay disclosure of any kind until after the innocence/guilt phase of the trial. (bold mine)

Valhall, over at the Hinky Meter went to a great deal of effort to list all the defense witnesses who are not on the State's witness list. I have to agree with her that these people haven't exactly been featured in the media.

However, I know for sure that two of the defense witnesses, psychic Gale St. John and her daughter, Tamara have been harassed by the defense investigator, Jeremy Lyons. After speaking with Lyons once and essentially saying that she didn't have anything to offer, Lyons has called her constantly. HERE is a broadcast of Gale's that talks about the harassment and even plays the audio of one of his phone messages.

She then repeats the video of her "search" on Suburban Drive. If you watch carefully, you will see that Travis Sanders and the dog get sick just about where the remains were found. They then pull up further up the road and briefly walk the dog in the grassy area, a goodly distance away.

As for Travis Sanders, he's managed to escape the harassment by making himself totally unavailable somewhere in Northern California!

If Ms. Finnell knew more about harassment in this case, she would know that most, if not all the harassment, comes from the defense towards the State's witnesses. Think Roy Kronk, for one. Think all of the TES searchers who have been cold-called. I'm sure of you can come up with some more.

While I really don't care if the names are sealed or not, it does bother me that MSM and bloggers and posters on message boards are included in the harassment. We write what we see. While there are "haters" out there, there are many more of us who "call it as we see it".

As to Ms. Finnell's assertion that witnesses won't speak for fear of harassment, I really wonder if this is the ONLY reason. The defense cannot force mitigation-type witnesses to testify, it has to be voluntary. In this case, the mitigation witnesses will only be called for two reasons: to say how wonderful Casey is, such a good mother, good student, etc., and to bash Casey's upbringing by testifying about her parents, George and Cindy and the terrible values they taught their daughter.

People who would be unwilling to get up on the stand in court and do those things probably wouldn't want to talk to an investigator. They don't want to be involved, they don't want to be out there in public trash-talking family or friends. The defense can't force the issue.

Many years ago, early on in my teaching career, I was asked to be a mitigation witness for a student who had been in my homeroom for 10 minutes a day. It was a military murder trial and the officer spent the day at the school talking to all this man's former teachers. He came into my room at the end of the day, introduced himself to me, and asked me what I knew about "Pete". Unfortunately, I had nothing positive to say since my only experience with the then student had been dealing with his awful behavior, curses, and threats. The officer sighed and told me it hadn't been a good day for him.

I later learned from others that there was nobody who could credibly speak to any positive qualities they had observed in this future murderer. That was it, we never did hear what happened.

It will be interesting to see, should we get to a penalty phase, who volunteered to testify for Casey.

There is another motion floating out there in which the defense is asking for an expert in taphonomy. In the May 6 hearing setting the budget with the JAC, the following discussion took place. This is from my original article where I posted my notes and the dialogue is approximate:

Baez: Taphonomist. Taphonomy is the study of human decomposition.

Ashton: It’s not a recognized area of forensic science.

Baez: Ashton needs to Google it!

Bischoff: We need more information about this. Don’t they already have a forensic anthropologist?

Baez: I’ve labored hard over many hours to find the best experts for defense. Taphonomy IS a science.

Perry: Let me cut you short! We meed to have a Rogers hearing on this; file a motion and set a hearing pretty quickly. The expert can appear by video

Ashton: I need more information.

Perry: Provide (the State) with a CV of the particular witness. Have that witness appear by video conferencing, it can be done easily

In his Order, the judge denied the taphonomy expert without prejudice. He never seems to have followed Judge Perry's advice, and has now filed a new motion.

I'll write more about it when I can get my hands on a copy.

See you in court Monday!