The Darwin Exception

because it's not always survival of the fittest – sometimes the idiots get through

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Archive for June, 2011

A Crazy Saturday

Posted by thedarwinexception on June 29, 2011

It’s Saturday again. I hate Saturdays.

Ashton starts out the day with drama. At 8:40 he had been handed documents that the defense wants to use with their witness Dr. Kenneth Furton. After quickly looking through the documents, Ashton noticed that the doctor has done additional research since Ashton’s deposition with him, such as additional resources for Chloroform, In his deposition when asked about sources of chloroform, he said he didn’t know off the top of his head, and now he has a specific slide he wants to present with several sources laid out.

Also in his deposition he was asked about possible sources for the odor signature, and he replied that he wasn’t fully aware, that it could be various things, and now Ashton has been handed slides where he is going to point out specific sources and causes of this odor.

So now, once again we are in the position of expert witnesses having supplemented their opinions without notice to the state. Ashton only had ten minutes to look at the report he was handed, but he would like a full Richardson Hearing on the matter.

The judge says “well we won’t be having one today…we’ll have one at the close of testimony, but he will not testify to anything that is not in his report – he can come back next week to finish up.”

Baez says that the state is incorrect – Furton has been asked about these issues – these are issues that are central to the case…..

The judge says all he needs to know from Baez is whether this witness’s opinions have changed since he was deposed, and if they have, has he issued a supplemental report.

Baez says he doesn’t see any new opinions here that have not already been disclosed either in depositions, reports or Frye hearings. Baez says “I guess the more that you make this argument, the more that it becomes real even though it’s not true. So Ashton can continue to make this allegation and continue to make this allegation, and maybe they come to fruition in his world. But I believe them to be untrue.”

Ashton says he would like a chance to argue before the court before Dr. Furton testifies, after he has a chance to fully look at the report and compare it to the deposition so he can fully document where the doctor’s opinions have been supplemented.

Baez then says Ashton is asking for more time to review the doctor’s deposition – he doesn’t even know if it’s new testimony or not. Baez says “He’s saying just let me go ahead and make the accusation, even though I don’t have the proof…If Mr. Ashton has specific evidence of new opinions, fine, but he shouldn’t be standing here in front of the court making allegations he has no evidence for..”

Ashton gets up and gives one illustration of his objection. He points to a specific passage in the deposition where the doctor is asked about the source of the chloroform and the doctor answers that any answer he gave would be pure speculation. Ashton points out that the answer is vague and not tied to any concrete information. The Power Point slide has specific chloroform levels from specific items from the trunk. And Ashton says that this is just one example that he was able to find quickly.

Baez says that these amounts were from the testimony of Dr. Rickenbach, Which opposing counsel got from Dr. Rickenbach, and which wasn’t in his report. Baez says it’s a little silly for counsel to say he isn’t aware of this information when it was elicited by him from his own witness.

The judge requests a copy of the Doctor’s report, and the judge would like to know if this demonstrative aid is of the type that the defense objected to when the state didn’t provide notice to the defense.

Baez then says that they are not going to go through this, and they will have the doctor tailor his testimony to items that the state is fully aware of. Baez says there is nothing secretive going on – if the state objecting to the power point presentation, they will take out any slides he has legitimate concerns about. The defense says they will take it from there – this has really gone on long enough and the defense is not willing to go through this. Baez says the witness has plenty to say and all of this may be unnecessary.

The judge says all he can do is go over the doctor’s deposition and report and go from there. He says that you would think that this would have grown old by now, but some things never change.

Mason asks for a sidebar, they speak for a bit then everyone goes into the judge’s chambers.

Casey emerges from the holding area, crying. The lawyers have an informal chat in the sidebar area, without the judge, who is still behind closed doors, then Ashton motions for the court reporter and everyone goes into the back room area again, leaving Casey crying at the defense table with Dorothy Sims. A few minutes later Casey, too, goes behind the closed doors.

After 20 minutes or so, Casey emerges. This time dry eyed. She reads intently the real time computer, which, presumably, since the court reporter went behind the closed doors, is still reporting what the attorneys are talking about with the judge.

Twenty minutes later, the attorneys emerge, along with the court reporter. And the judge.

The judge asks in open court if both sides concur that a legal issue has arisen unrelated to the issue that we talked about first thing this morning dealing with Dr. Furton that would necessitate us recessing for today?

The state and defense both concur. The judge recesses court until 8:30 am Monday morning. And has the court reporter go with him to chambers. Again.

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