The Darwin Exception

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

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Can’t We All Just Get Along???

Posted by thedarwinexception on June 21, 2011

I’m sick and tired of expert witnesses. I’m really looking forward to some kind of real guts and glory in the defense’s case – something that tries to make sense of their convoluted theory and “story” of what happened. Of course, I’m not even sure the defense has fleshed out their theory entirely. I think some of the details are a little fuzzy. I can imagine that Baez doesn’t know what happened to Caylee’s body after she “drowned in the pool” because Casey doesn’t (shouldn’t) know what happened to the body. I can imagine her tearful story to Baez went something like “My father had the body in his arms and Caylee was wet and dead…..and then he took her and I don’t know what happened after that….then, I left for my job and I couldn’t go home, because I was so upset and so afraid of my father, and then my mother started calling me asking about Caylee and I realized my father hadn’t told her what happened – and I didn’t know what to do so I just kept saying Caylee was fine….I didn’t want to contradict my father because, you know, of his penis being in my mouth when I was young.” So, since Casey can’t tell him what happened to the body after the drowning thing, Baez has to make this shit all up – and obviously, he is not as skilled as Casey in filling in the details.

But you have to wonder when, exactly, Casey told Baez this “real truth” and what precipitated her telling him all this. When did Baez find out about the “Cindy left the ladder on the pool” thing – and which came first? Casey’s story of accidental drowning, or Baez’s discovery of the ”ladder” incident. And who initially offered the drowning scenario? Was it Baez or Casey? This might affect whether or not Casey testifies. Baez can’t suborn perjury. He can not put Casey on the stand and allow her to lie about any material fact. If he knows that she is lying, he can face severe penalties – he could be disbarred – even jailed.

So what Baez knew, when he knew it, and what he believes to be true, may all be important. And even more importantly what we can assume that he’s creating out of whole cloth to fit “facts” and “coincidences” in the testimony of others may point out where facts end and fiction begins.

But, it’s another Monday morning in the trial, and as is usually the case, the defense has a delay. The judge reminds the attorney’s that when they have issues, they need to inform the court officer at 8:20 that they have these issues, so we are not wasting the jury’s time and postponing the beginning of the court day.

But for this morning, we start with a sidebar.

And when we get back to open court, Ashton is immediately at the lectern, reminding the judge that he had left the option of a sanction package with the witness William Rodriguez, open for later consideration. Ashton tells the judge that the state did depose the witness on Saturday, and Ashton has just received a transcript of that deposition. He has only briefly read the transcript, and he would like to have the opportunity to read it again before cross examination, so he would like the defense to postpone calling the witness.

There is one particular area that the witness proposes to give testimony on that Ashton does not believe the witness is qualified to give testimony on. This witness believes that “other people” cannot distinguish the smell of human decomposition from other odors. This is just a personal opinion of his, Ashton believes, because the witness cannot cite studies that would back up this statement. Ashton would like to have a hearing on this issue.

Ashton says he also has an issue with another defense witness – Dr. Richard Eikelenboom. Ashton says he doesn’t want to argue sanctions right now, but he wants the court to know it’s coming. Ashton says that he received a ½ page report from this witness, and this report contained absolutely no opinions whatsoever. Eikelenboom showed up Friday at the courthouse, which prompted the State to ask the defense why this witness was there, since the submitted report had contained no opinions or conclusions. Eikelenboom also showed up at Ashton’s office on Sunday afternoon for a potential deposition – Ashton sent hm away, since he could not depose the witness without a report that listed conclusions or opinions regarding this case. Yesterday Ashton received a 2 page report and a 45 slide PowerPoint Presentation from the defense counsel.

Ashton provides the court with the 2 page report and the Power Point presentation and says that he is willing to depose Mr. Eikelenboom Tuesday evening, and do what he can, and he will be preparing a sanctions package for the court, since this is, in his opinion, another deliberate violation of the court order.

Dr Eikelenboom states his specialty as “Trace DNA Evidence” He is prepared to give his opinion on negative DNA evidence. Ashton says he is not prepared at this time to argue the Doctor’s opinions or qualifications, since he has not deposed the witness yet, but he will be ready to do so after he does depose the witness Tuesday evening, should the defense produce him.

Baez gets up to respond to Ashton’s request of the court – to delay both Rodriguez and Eikelenboom.

Baez says that the prosecution has the right to depose the defense’s witnesses – and these two witnesses were both listed timely within witness lists submitted to the court and they both provided reports under time constraints. Baez told both witnesses to put together something as quickly as possible in order to comply with the courts order.

Baez says that the court’s order specifically stated that the witnesses could not testify to anything that was not first disclosed in either written reports OR depositions. Baez accuses the state of intentionally limiting the defense’s witnesses ability to testify by not conducting depositions. Baez says that it is n intentional act because Ashton has had sufficient time to co-ordinate these witnesses, set them for depositions, and conduct those depositions.

Baez says that he could put together the same sanctions package for the state since they have violated the courts order, too, one with Dr. Rickenbach, when an objection was sustained after the state tried to elicit testimony that was not earlier disclosed; and then also with the late disclosure of photographs on the morning of trial. In both of these cases the issue was addressed, and we moved on. There were no sanction packages or threats of contempt.

Baez says that the court has made it clear that this is not a game. And that gamesmanship has been exercised by both sides. Baez says that he feels this is a complete exercise of gamesmanship, yet again, byt the state. And this has been carried out by Mr. Ashton since the very beginning. Baez says that Ashton is a skilled and experienced prosecutor that knows that he should take depositions from expert witnesses. Baez says he would venture to guess that Ashton has never been involved in a trial that had expert witnesses that he hadn’t first deposed – but in this case, he was armed with a court order that he could play games with and use as a sword as well as a shield by ignoring and avoiding his responsibility as a prosecutor by not conducting depositions.

Baez continues – As it pertains to Dr. Rodriguez, the remedy for the court is to give the state time to take his deposition – these things happen all the time – and these are really minor issues. The duct tape opinion that Dr. Rodriguez is going to express is that there is no scientific basis to render an pinion as to where a piece of duct tape is on a surface deposit site. There are too many things that can alter the location of this duct tape. Aside from being common sense, this is being testified to by someone with the experience to do so.

With regards to Mr. Eikelenboom, because of the failure of the state to take his deposition and discover what he might be able to testify to…One of the original issues that the defense wanted him to testify about was DNA – low copy number DNA, all of which was furnished to the state, not only in pleadings to the court, but this is a common issue that the state is on notice of. Their claim and argument is that the reason there is no DNA on these items is because of the elements, knowing full well that DNA degrades, and that there still should be DNA on these items. And someone could potentially testify to that.

Baez says that some of the issues that came up with this case have come up recently. Baez reminds that court that on Saturday he made everyone aware that he would be exercising conducting depositions on all witnesses for which the state had failed to do so.

Baez says he asked Mr. Eikelenboom to go to the prosecutors office on Saturday afternoon for a deposition. He did, and he was turned away. Specifically by Mr. Ashton. Not a secretary, not an associate – Mr. Ashton himself told him to go away.

Baez then told Mr. Eikelenboom to prepare a report immediately, which he did. And Baez says that he immediately forwarded this report to Mr. Ashton, along with any demonstrative aids that Eikelenboom might use in his testimony.

All of this is merely information that explains DNA and it’s processes. Ashton would need very little preparation for this material.

Baez says that Ashton’s wanting more time to review depositions is not a very good argument, since Ashton had 7 or 8 months to take depositions and review them and chose not to. To delay now for his failure to act in the past is not a good argument and a delay of the process.

Baez says the judge’s order was fairly clear – and e reads it to include two aspects of the discovery process – reports and depositions. Ashton failed to take depositions. Baez says that he told the court this in a status hearing, and said then that this might be a problem later.

Baez says that he did not intentionally disobey the court’s order. He says that he has labored n this cause daily and nightly. Baez says that the law does not compel them to submit written reports from witnesses, but he knows that this is the courts order, and he has tried to comply. But the way the state is failing to complete depositions allows the state to limit the defense’s due process – the state is using the order as a sword and a shield. And now to bring sanctions against the defense because the state failed to follow it’s own regular standard operating procedure? Baez accuses Ashton of failing to take depositions in an effort to take Casey Anthony’s life – and go after her lawyer, too.

When Baez is through, the judge asks both lawyers to turn around and look at the clock and tell him what time it is. Ashton says it is 9:25. Baez says it is 9:26. The judge says that this tells him that the two attorneys will never agree on anything, and will never interpret anything in the same way.

The judge says that the jury has been sitting back there for more than 25 minutes. The judge orders that henceforth and forevermore, the attorneys are required to be in court at 8:30. So if they have any matters to take up, they will take them up then. At 9:00 court will start. And we will not have….this. On Saturday, they will work a full day. (the bastards). The judge tells the defense to have witnesses assailable for a full day Saturday.

The judge says that there are specific rules regarding discovery, but that the court has much leeway to expand, limit or restrict discovery as it sees fit, and set timelines and deadlines as necessary.

The judge reads it’s order from December 2010, a response to a state pleading. The court order sets out that all expert witnesses would supply their CV, their area of expertise, their opinions and the areas on which they would render those opinions.

The judge says he thought that this would settles the matter – but here we go again.

In January, 2011, the court issued another order – in response to another state’s motion to compel, again there was a lacking in understanding of what the court had required. This order explained further that all expert witnesses, in this case Dr. Henry Lee, would be required to submit a complete statement of opinions that he witness would express, and the reason for those opinions.

The judge then addressees the attorneys, saying that in those two written orders from the court, the court was very clear that both the state and the defense would be required to have all of their expert witnesses submit statements concerning all opinions they would testify to, and the reasons for those opinions.

The judge says that depositions are only to expound upon opinions and statements expressed. The judge says that the depositional process was not to be used as an alleviation of the responsibility to submit reports. This was never the court’s intent. The judge says that this court does not make threats – it simply follows the rules. When the state wanted to use a demonstrative exhibit that had not been disclosed to the defense, the court precluded the state from using that exhibit.

The judge says that case law frown upon excluding evidence in cases of discovery violations – so as to not unduly punish the defendant. But the Florida Supreme Court left the door open in cases where “someone” repeatedly violates court orders as the final ultimate sanction. There has never been a case where that final and ultimate sanction has been imposed and upheld by a court that the judge knows of, but one would surmise that if “someone” continuously violates a court order with impunity whether or not the court would be left powerless or if the Supreme Court would say “this is the case where the ultimate sanction was proper”.

The judge then acknowledges the friction and the gamesmanship between the attorneys – and he notes that this is something the Florida Bat will have to deal with. He says that at the conclusion of this trial, he will deal with the violations that might have occurred during it. It is not proper for the court to deal with it now.

The judge says that he will grant the state’s request to defer the testimony of Dr. Rodriguez. He says there will be a short day on Wednesday for his own personal reasons.

He suggests to both the state and the defense that they go through all their witnesses and make sure that their opinions are all disclosed in written reports.

The judge says that exclusion – even at the price of having to do it all over again – may be the proper remedy if it continues.

The judge then asks who will be the defense’s next witness – and they don’t have one. It will be 30 minutes until they pick up their next witness.

The judge says that he is thisclose to starting the court day at 8:30. He says he’s been accommodating to the work schedule, but he has a sequestered jury to think about. The judge says the unprofessionalism is going to stop or he will work them some fierce hours.

In 30 minutes they come back – only to find out that through a joint stipulation between the state and the defense, they will be n recess until 9:00 tomorrow morning.

The judge does not look happy.


6 Responses to “Can’t We All Just Get Along???”

  1. This judge was pissed, but he kept his cool as a judge and he chooses his words carefully as he knows there will be an appeal.

    • I think you are so right. The judge is obviously past the end of his rope with Baez but he keeps his words, his rulings and his tone of voice, very, very even keeled – especially in front of the jury. I’d hate to see him in chambers with Baez, I’ll bet the shit hits the fan back there – but I really respect this judge for how well he maintains his composure.

  2. Suzanne said

    I’m also impressed by his manner. No snide remarks, no scoring points – just following the letter of the law and keeping any personal feelings to himself (just about). Baez on the other hand shows his frustration and irritation so clearly – it shows in the way he holds himself, drags himself over to the defence desk, it shows in his face. He needs to rein that it because it looks so unprofessional.

  3. Kelly Green said

    I can’t wait for Rodriguez to claim “other people” are unable to distinguish the smell of human decomposition from other odors. I was an EMT for 20 years and there are 3 odors that violently assault the olfactories: human decomposition, gangrene, and wet gangrene. All 3 odors are distinctive, unique, absolutely disgusting, and unforgettable. Of the 3 odors, human decomposition is the least offensive and wet gangrene–well, the odor of wet gangrene makes everybody puke (think the colon, intestine, and bowel rotting all the way through and into the abdominal cavity). Can’t distinguish the smell of human decomposition…bullshit!

  4. Simply Unbelievable said

    Just watching the parade of contracted-to-lie defense witnesses is enough to make anyone puke!

    The People of the State of Florida should NOT be paying for this mockery of the justice system on behalf of the “indigent defendant.”!

  5. I’m just waiting for the judge to announce that one of the jurors slit their wrists over this trial. I work from home and we watch it starting at 5:30 am.
    We don’t get up at 5:30 to watch the trial it’s just that it’s so Dog Dam hot out here, if it don’t get done by 9:am when it hit’s 100. It don’t get done.

    I’m in and out and over the last couple days have not viewed those entire trials and I tell you this thing is getting boring, the technical scientific [bovine Fecal Matter] and the constant objections about all these experts.

    I said once that I would be a lousy juror as once the question was asked and the answer given and the objection and the judge saying we were to disregard the question.

    Hey the bullet is already out and I heard it and it’s not going back in the barrel.

    Baez is looking for a mistrial.

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