The Darwin Exception

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

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Plant Lady, Cell Mates & The Return of Orlando Dick

Posted by thedarwinexception on June 23, 2011

So, let’s hope the judge has cooled off from yesterday – otherwise, the attorney’s might be in for a load of shit.

And Ashton has the balls to stand up and say “Judge I have some issues to address before court begins” – which is brave after the dressing down the attorneys got yesterday for doing the exact same thing.

Ashton wants to address the discovery issues regarding Mr. Eikelenboom that they touched upon briefly yesterday. They completed his deposition yesterday – and they’ve provided the court with a rough copy of the transcript.

Ashton says it is the state’s opinion that a clear violation of the discovery rules has occurred, and after review of the case law the judge had pointed them to, the state feels that exclusion of the witness outright is not necessary, and they won’t be asking that he witness not testify. That would not be in the best interests of the defendant, or this case.

The state would, though, ask for sanctions in the following way: Inclusion of this incident in the court’s contempt proceedings that it is contemplating holding at the end of the trial, Ashton says that the state has been able to overcome the procedural prejudice in most aspects of the testimony, and he believes that he will be able to cross examine him effectively.

The only concern that Ashton has is with one particular area that the witness intends to give his opinion on – the witness intends to tell the jury that DNA can be obtained from decompositional fluid. If the discovery rules had been obeyed, this is a subject that would have been addressed in a pre-trial Frye hearing. The witness admits in his deposition that this is an opinion that is not supported by any peer reviewed research –or any research at all. This opinion is based on some anecdotal research of his own. (And these opinions were formulated on Saturday – at lunch.) Also according to his deposition, this witness was never informed of the court’s order, and was not aware that he had to submit a report.

So, the state would ask that the witness be precluded from testifying concerning the lack of DNA evidence in the carpet stain in the trunk. If the court were to conduct a full and fair Frye hearing, the proponent would not be able to show general acceptance of this principle, and the defense has already had one witness testify on this issue, Miss Seubert from the FBI testified about various bodily fluids and whether or not you’d be able to get DNA.

Ashton says that aside form this issue, they should be able to address the rest of his testimony in cross examination. Ashton also has a written instruction for the jury he would like the judge to consider giving at the time the witness testifies:

All reports of experts were required to be provided well before the beginning of this trial. The report of Richard Eikelenboom was not provided to the state until Sunday, June 19th, 2011 . You may consider this fat when judging the credibility of the witness, the witnesses’ testimony and in determining what weight it should be given in your deliberations.

The judge then asks for Baez’s response to Ashton’s comments. Baez says that he filed a response with the court in December, 2010, when the court had asked what Eikelenboom would be called to testify about. In that response, Baez had listed the witnesses CV, his expertise as DNA, Crime Scene Analysis and Trace Recovery. He also stated in that response, to both the court and the Prosecution, that if Mr. Eikelenboom were to be called, he would testify regarding DNA, Crime Scene Analysis and Trace DNA evidence. Baez also stated in this response that the witness had reviewed all reports and photographs taken at the recovery site and personally inspected many of these items. Baez also included in this report the very broad and all encompassing statement of “If Mr. Eikelenboom were to be called to testify, the substance and facts that he would be expected to testify to would be to rebut any false claims raised by the state’s forensic experts dealing with the subject of DNA, Crime Scene Analysis and Trace Recovery. Until that occurs it is difficult to give a complete summary of his opinions, and the grounds for those opinions.”

Baez says that he raises this because this is a very complex case, especially forensically. What he would like Eikelenboom to testify to is the issue of degradation of DNA. This notice that he gave in the response to the court should have been sufficient to put the state on notice that this is the issue he would be testifying to.

Baez thinks that this witness and this situation is completely separate from the Rodriguez issue, and Baez would like the court to consider them separately.

Baez says that this witness was not to create a “gotchya” moment, and yes, this witness’s opinion was formulated on Saturday, while he and Baez were talking and Baez was asking him questions.

Baez says one remedy the court could consider is to call the witness to testify solely on those issues that deal with DNA degradation. Baez says that while he would love to argue the whole issue of exclusion with Ashton, regarding the DNA from decompositional fluid, Miss Seubert testified to that, and no objection was raised by the state and Ashton never asked for a Frye hearing then. Baez accuses Ashton of inflaming the court into thinking that sanctions are warranted, and creating a ruse of an issue, when the fact of the matter is, it’s not so.

Baez proposes, in an effort to move things along, to have Eikelenboom testify solely on the explanation of DNA, specifically the low copy number DNA, which Miss Seubert couldn’t explain because, unfortunately, the FBI doesn’t do that sort of DNA. This witness is uniquely qualified for this testimony. Baez would also have this witness testify to DNA degradation. And that would be all that this witness would testify about. Baez feels this would resolve the issue and they can move forward.

Ashton responds by pointing out that he state did not offer any DNA evidence in this case. All DNA testimony was elicited by the defense. The defense is, therefore, rebutting their own witness with this witness.

Ashton also says that he’s not sure what Baez was saying – but if he is saying that the witness is not going to give an opinion regarding collecting DNA from decomp fluid, then Ashton is fine with this witness. As long as the witness is not going to testify regarding the carpet stain, Ashton has no problem with the witness. That is the only area that Ashton felt there was procedural prejudice. But if this is Baez’s intention, then that resolves this issue. Ashton feels the instruction, though, would still be necessary, and the other procedures, later in the trial, would also be necessary. But as far as the witness goes, if that’s what he means, that’s fine.

Judge Perry then addresses both sides, saying that, at some point, the court granted the defense’s motion to have certain items – the shorts Caylee was wearing and the bag she was found in – tested for DNA (at taxpayer’s expense). These items were sent to National Services Medical Laboratory in Pennsylvania. The defense never requested neither the tape nor the carpet samples be tested. The judge then asks if he understands correctly, that this witness would testify about DNA being on the tape – and he wants to testify about the carpet samples and colleting decomp fluid from the carpet sample for DNA in the decomp fluid. Ashton agrees that this is correct.

Ashton then tells the judge that, according to his deposition, the witness was not aware of which items were sent for DNA testing, and what the results were. He was never informed of this. The judge asks – so he was never informed that these items could have been tested but were not? And Ashton repeats – I believe this witness would say that he believes they could have been tested – but he was unaware that they were not.

In response to this, Baez says that they are talking about 2 different types of DNA testing. The testing this witness does is low copy number DNA. They utilize a special kit called a mini filer, which allows you to get DNA from very, very minute amounts. That type of testing is unique. The defense requested permission to have them test items, and that was objected to by the state, and their objection was sustained, which meant that the defense was not afforded the opportunity to have this witness test the items, due to this being a very specialized field of DNA, which this witness is a pioneer of. As an alternative, the defense was granted the ability to have certain items sent to an ASCLAD certified lab. Baez says that he asked specifically for a different type of DNA testing for these items, since he felt it was going to be the best chance to get some results. The type of testing was not low copy number DNA, but YSTR

The judge asks Baez if Baez is saying that there is no certified lab in the entire United States that does low copy number DNA tests. Baez answers that his understanding is that the only lab that does this is the New York City crime lab. This technique is quite prevalent in Europe, though. The judge asks if Low Copy DNA has been Frye-proofed yet. Baez says that the method has been introduced in many cases across the country, but whether or not it has been Frye tested in Florida, he can not say.

Ashton offers that in the witness’s deposition, he explained that low copy DNA testing is not unique to his lab, and it’s not a unique process. The witness stated that what he does is, rather than run the regular PC R replication process 24 times, he’ll run it 30 times. The witness did not state in his deposition that the process was not used in the United States.

Baez says that this information is absolutely not true. There is a special kit called a mini filer that is used in the Low Copy DNA processing, and he is sure Mr. Ashton is aware of this kit. It is not just extra runs in the PCR process. Nr. Eikelenboom is well known in the DNA community as being a pioneer in this area; He does something a little bit different, not only in the replication process and the use of the mini filer kits. The witness is here – he can testify to the uniqueness of his process and what he does that is different.

Baez says that the defense would object to any special instruction to the jury that would punish the defense, since the state had not taken this witness’s deposition until very recently, and he is not testifying in any specialized area the state is not familiar with and especially sine the defense is conceding to limiting his testimony.

The judge then decides the issue, saying that he will grant the state’s request for the instruction and at this time would prohibit the testimony concerning the possibility of DNA testing of the decompositional fluid from the trunk of the car. What the court will do, out of an abundance of caution, since it looks like we are going to be doing this for the next two weeks, if you want to schedule a Frye hearing, giving the state at least one week’s notice, I will consider doing that, to see whether or not it would be admissible. But for the time being, it is not going to admitted as a sanction for not disclosing it. The judge says he is not going to permanently shut the door on it, with proper notice; he will permit anyone who has an expert to testify by video conferencing, if you want to conduct a Frye hearing.

Baez goes to the lectern to object to the state’s instruction. The judge asks if he has an alternative one. Baez says that they did not know the judge would be requesting one, but that the defense can prepare one. The judge asks who is going to be their first witness. Baez says that to delay the need for the instruction immediately, they can call Dr. Jane Bock. The judge tells Baez to go ahead and prepare one, and between the two versions, the judge will create a final version of his own.

The defense calls Jennifer Welch to the stand (I think this is the fifth time she has been called). She is (still) a CSI Investigator for the Orange County Sheriff’s Department. She authored a report dated February 1st, 2009. She says she doesn’t have one with that date on it, Dorothy Sims, who is doing the direct exam, asks the witness if she has the “End of Day Observations” with regards to clearing of the scene December 12th – 14th. The witness has that report. Sims asks the witness if she can explain what her observations were.

Welch testifies that on that day, December 14th, 2009, she observed that the area had been completely cleared of leaf litter and branches. This had commenced on the 12th. In the flatter areas of the surface, the area had been cleared to a depth of 0-4 inches, in the places where there were tree roots and crevices, the area had been cleared to a depth of 0-10 inches,.

Sims then asks if she has another report – one with page 22 on the bottom, and the witness says yeah, that’s the one she just testified to.

Good God. Sims only examines like 1 out of 20 witnesses, and it’s for life altering testimony like “We picked up leaves” – you would think Sims could be more on the ball, right? What a crack defense team this group is. Casey has the “Dream Team”, too. Only hers is the Nightmare version of the dream.

Sims says “Did you read the last sentence?” The witness looks and says “Yeah that was that thing I said about the tree roots.”

Well, you know, give Sims a break. The witness read three sentences. You can’t expect Sims to keep track of all three sentences and stand at the lectern at the same time.

The witness testifies that when she took the photographs upon first arriving at the scene, she did not move the remains or clear away anything that was on top of the skull or on top of the evidence. The overhanging vines were cut and tied back, but the evidence itself was not disturbed in any way.

The witness confirms that when the photographs are entered into the OCSD evidence database, they are entered by Call Numbers. Sims asks the witness if she is familiar with a photograph with the call number of 1932. The witness says she has no such call number. Sims finally finds a picture of the cleared scene for the witness to identify.

Sims then asks the witness what happened to the log that was next to the skull initially. The witness says it was moved by Chief Medical Investigator Hansen and Welch’s supervisor during the process of clearing the scene.

Sims shows the witness another picture – this time of the bags once the overhanging vines had been removed, but the ground vegetation was still in place.

Sims is done.

Ashton asks the witness if she can orient the first photo – she says she can’t. There are no landmarks to help with knowing where exactly this picture was taken.

Ashton is done

Sims asks again about the call numbers. They are database generated. Sims asks if she has the call numbers. The witness says she does. Sims asks the witness if she would be able to verify call numbers from the photos taken on December 11th. The witness says that unless she had her report in front of her and the call numbers, she wouldn’t be able to tell on which specific day the photo was taken. Sims says “But you would be able to verify that it was taken sometime from December 11th through the end of the investigation?” The witness says yes. Sims says “And do you have those all numbers readily available?” The witness says she does. Sims says “And would one of them be 1838?” The witness look sand says “I don’t have a all number 1838.” Sims asks her what call numbers she has and the witness reads them all out. Sims is done.

The witness steps down – still subject to recall.

I wonder if the jury found that exchange as amusing as I did.

The defense then calls Dr, Jane Bock. She is a botanist. Her specialties are plant anatomy, plant ecology and forensic botany. Forensic botany is the application of plant science to the law. She has a PhD in botany. She is a retired botany professor. She has authored about 80 peer reviewed articles and written 3 books. She is accepted as an expert.

In this case, Dr. Bock reviewed the crime scene photos taken by the OSD and the photos taken by the medial examiner. She also visited the recovery site and read the Medial Examiners report, the description of the site Jennifer Welch compiled. She read a report by another Botanist, David Hall.

Bock visited the site on February 1st, 2009m she had a photographer with her, a Patrick McKenna, He took several photos of the scene and of her work.

Sims (still doing the questioning today) shows her an enlarged photograph taken while she was at the site. She identifies “leaf litter” in the photograph and defines “leaf litter” as leaves that fall off trees,. (Good God. How stupid are the people in Florida since I moved away – first we have someone googling “Shovel” then we have someone saying “explain “leaf litter” to me, Dr”.)

Sims asks the witness – after having read the reports, reviewed the photos and visited the site, if she has formulated an opinion as to the shortest period of time that Caylee’s remains could have been at the site. (Which is an odd question – it doesn’t matter the minimum time – you’d think, if the defense is arguing “someone moved the body”, that they would be more interested in maximum time. Or maybe Sims is leading up to that…..)

The witness says two weeks is the minimum time the body could have been placed at the site, and when Sims asks if the witness could tell when the body was placed there – the witness answers “no”.

Now Sims asks “And what is the basis for your belief that the body was placed there two weeks prior to its discovery…” and you know, this is disingenuous and misleading. That’s not what the witness said at all. She said “at a MINIMUM – two weeks…” which means it could have been there NO LESS than two weeks – but it could have been more. The body could have been placed there a year before – the witness never said “Oh. The body hadn’t been there more than two weeks….” I hope the state clears this up on cross. Or even that the witness herself clears it up.

The witness doesn’t seem too interested in clearing up her testimony – she answers Sims question regarding why she came to that (misstated) conclusion with “because of the leaf litter.”

Sims also asks about the vegetation that was found inside the car, and if this vegetation was the same as the vegetation at the scene. Ashton makes a foundational objection, Sims hasn’t even established if this witness ever looked at the vegetation from the car. And now I’m thinking maybe Sims misspoke with the “minimum” thing – maybe she meant to ask “maximum”. Sims is so flighty and unorganized I’m thinking that could be a possibility.

Sims lays the foundation and re-asks the question. Bock says that the vegetation in the car was not consistent with the vegetation at the scene. Bock says that the vegetation from the car was from a Camphor tree. There is not a camphor tree at the site.

Sims asks the witness if the field of Botany trains botanists to estimate the lifespan of a root by measuring the diameter of that root – even if they don’t know the species of the root.

This generates a sidebar. The objection is sustained – and Sims comes back to the lectern and starts asking “Dr. Hall” questions. The witness tells her “I’m Dr. Bock.” Told ya Sims was flighty and unorganized. Good God.

Sims asks the witness if, by looking at the photographs of the vegetation and tree roots at the scene, if she is able to tell how old those roots are.

The witness says no, she can’t, because she doesn’t know what plant those roots came from, and size and growth rate vary greatly among plants due to different environmental factors. In order for the witness to determine how fast a particular root was growing, first she would need to determine what plat the root came from; then she would conduct time spaced observations on growth rates.

Ashton crosses the witness: Ashton establishes that the witness is from Colorado. He asks her if most of her experience is in that part of the country. The doctor says no, it’s not. Ashton asks the witness how much experience she has working in Florida as a botanist. The witness testifies that her PhD thesis work was done in Florida in 1966. Her thesis involved moving up and down the state studying the distribution of water hyacinths in freshwater bodies. She has also worked on other research projects in Florida, like studying the food habits of the tortoise, which is an endangered species and a vegetarian.

Ashton asks if most of the doctor’s work is in grasses and studying grasslands. (Well, this just gets more and more exciting – distribution of water hyacinths, feeding habits of tortoises – grasslands. Cross botanist off my list of “jobs I could tolerate doing.”) Bock says that a large part of her work is studying grasslands and grasses here and in South America.

Ashton asks her if she would agree that different parts of the country have differing plant ecologies. The doctor says yes.

Ashton asks the witness to describe the area where the body was found, based on her visit there and her review of the photos as the clearing unfolded. The witness says that in the ecological classifications the area would be known as a “swamp hardwood” area. But the witness also says that part of the plants that are common there are upland plants. Ashton asks her if this is an area that would be underwater frequently, but the witness doesn’t understand what his valuation is of “frequent”. Ashton asks her if the plants that she found there required a great deal of water, and she said yes, at certain times of the year. The witness agrees that it is an area that is underwater occasionally – or wet.

Ashton then asks the witness about her “two week minimum” thing – and asks her if that estimation was based on all the botanical evidence in the area and she says it is. Ashton asks her about the roots growing through the hair mass and he asks her if it is her opinion that those roots could have grown that much in two weeks in December

She says they could have “accumulated there” in two weeks, yes. And Ashton asks her if there is a difference between “grown there” and “accumulated there”. She says there is. . Ashton says that he specifically wants to know if they could have grown there. She says yes. Ashton asks if that is also true of the canvas laundry bag with the roots actually growing into the fabric, could those roots have grown there in two weeks. The witness says yes. He asks if she saw the photographs of the bones, with the roots actually growing into the bone. He asks if that, too, could have happened in two weeks. She says she isn’t a bone expert, but from what she knows of root penetration, she suspects so.

Ashton asks if she has ever had contact with a skeleton with root growth in it before, and she says she has – with a skeleton that had been in place for many years. Ashton directs her to her deposition where she said she had no experience with bones, and the witness clarifies by saying that her answer in her deposition was to a question dealing with her teaching experience – but she belongs to an organization where she came into contact with a crime scene and there were forensic anthropologists and forensic archaeologists and she observed this skeleton that had been there for 10 years. She did see root growth on this skeleton.

Ashton asks the witness if she has seen the photographs of the skull in its pristine condition before debris was removed where there is leaf litter at least up to the bottom of the nose. She says yes, but she doesn’t know when individual leaves were removed.

Ashton shows her the photograph and asks if she sees leaves up to the nose/ear area. She says she sees one leaf on top of the skull. Ashton says he isn’t asking about the leaves on top of the skull. She says she supposes that could be leaf litter – but it could also be humus. Ashton says whatever it is; it has risen to the level of the bottom of the nose/ear level. The witness says “ok” Ashton asks if it is her testimony that this leaf litter could accumulate in that form in two weeks.

The witness says that there are other considerations about this picture. Ashton asks her to answer the question he asked. She says “yes”. The he shows her another photo – this one of the skull when it was first brought to the Medical Examiner’s office. This picture illustrates the roots and vegetation growing into the skull, and shows the leaves and debris that was collected with the skull. The leaves are in varying stages of decomposition. Some are green, some are yellow, some are completely brown and some are grey. Ashton asks if this is a reflection of variation in decomposition levels. The witness says yes and it is also a reflection of when the leaves fell from trees. Some fall from trees when they have no chlorophyll left, others are blown into a place, others shed their leaves when the leaves are still bright green and the chlorophyll hasn’t retreated.

Ashton asks yes, but are you saying that all this debris and all these leaves right around the skull could have all occurred in a two week time period in December. The witness asks if he is talking about the left side or the right side of the skull and Ashton answers with “either side.” The witness says she is not entirely certain how this collection of the skull was made. Ashton explains to her “hypothetically” how the Media Investigator collected the skull – scooping some of the debris as best he could that was around it. The witness says that she imagines some of those leaves were pushed toward the skull and Ashton says he doesn’t know how they couldn’t have been.

But Ashton wants her to acknowledge that the leaves themselves are at varying degrees of decomposition, and must have fallen at different times. She does finally concede this point. Ashton says that some of these leaves have been off the tree a lot longer than 2 weeks. She says yes, and lying under other things, perhaps. Ashton says that his point is that if these leaves have fallen to the level that they are shown in the photograph, then that skull has been there a lot longer than two weeks. The witness answers that given his hypothesis that the skull had laid there undisturbed, the answer would be yes.

Ashton says well, if you aren’t basing your two week timetable on the leaf litter what are you basing it on? She said that as shown in the picture she took when she was at the site on February 1st the ground was covered in leaves, and this leaf litter had accumulated on ground that was scraped bare by the 15th of December.

Ashton asks the witness if she is familiar with leaf fall rates for trees that are indigenous to Florida, what times of year they drop their leaves and at what rate? The witness says yes, she is.

Ashton shows her the large photograph that was taken on February 1st when she was at the site in 2009. There is obviously less foliage and leaf litter, but the witness says that as far as equivalency to the photo of the skull, this is “about the same”. Ashton asks her if she measured the amount of leaf litter when she was there, and the witness says no – but she asks Ashton if anyone else did and he quips “:The neat thing about his is you don’t get to ask me questions.”

Ashton asks the witness if it is true that the photograph she took was of an area stripped of overhanging vines. She says she wasn’t there before, but she did see overhanging vines in the other photographs. Ashton asks if the area in her photograph would be better able to have leaf litter blown about by winds than the area would have when it was densely overgrown and had hanging vines everywhere. The witness says no. She says there are just as many impediments to blowing leaves in the cleared picture as there were in the uncleared picture.

Ashton wants to know why, in the cleared photograph, there is a lot more leave fall and drift on the left side of the picture than on the right. Ashton asks if that isn’t from wind scattering the leaves. The witness says not necessarily, she can think of several reasons – one of them being looky-loos. She says that a lot of people were visiting this site in February – and they could be the source of the leaf pattern. Wind action and animals are others. And the leaf fall themselves. Some of the trees in the picture are evergreens – they drop pine needless and there are other trees in the picture that shed in the fall and winter.

The doctor says that she can’t exactly place on the picture where the skull was recovered from, she wasn’t actually told first hand. Her photographer had been to the site before with some other forensic expert witnesses, and he told her about where the skull was recovered from, but she’s not sure in this picture where that would be.

Ashton says to the witness – the bottom line doctor, is that you aren’t able to render to this jury an opinion on when Caylee’s body was left at the site, are you? The witness says “I thought I had rendered one.” He asks her in another way “Are you prepared to render an opinion as to when Caylee’s remains were placed at the site.” And she says “no”. And Ashton says: “So you can’t render an opinion as to when she was placed there.” And again she says “I thought I did render one.” And Ashton says “Now you’ve lost me….” And she lost me, too. I wish he would bring up the minimum/maximum of two weeks thing. Ashton asks one more time – when do you think these remains were left there? And she says “A couple of weeks before.” Ashton then directs her to her deposition – where she said she wasn’t able to render an opinion as to when the remains were left at the site.

After looking at her deposition, she says that yeah, she doesn’t know exactly when the remains were placed there – but her best guess is what she has testified to today.

Okay – finally Ashton gets to the minimum/maximum thing. He says to her that on direct she said it was a minimum of two weeks – and he asks her if now she also thinks it was a maximum of two weeks – she says no. Ashton asks her if she is of the opinion that the body was only there for two weeks. She says it’s possible. And Ashton says – but it’s also possible it was there much longer. And she says yes.

Ashton is done.

Re-direct – The plant lady, despite the jury having seen the skull with vines and roots growing through it, states unequivocally to Sims that roots can’t grow through bone. When asked if a root can grow through a hole in a bag, the plant lady will only give the limited answer of “depends on what type of root it is.” I don’t like experts who state obvious things are impossible. Like plants can’t grow through bags with holes in them. That’s just stupid. I distrust everything else she says because I know she was lying about that.

Sims then asks the witness about the log that was, at one time, next to the skull at the recovery site. Sims asks if there was leaf litter on the log. The witness says no, there wasn’t, and this inspired her to look at the log closer.. She was curious as to whether or not the log had been turned over or if it had laid there for a long time. Sims asks the witness if there was anything in the documentation about the scene that addressed the log – its dimensions, weight, and any vegetation that was on top of it or near it. The witness says that in Welch’s report she stated that it took two people to move the log. Sims asks if there was any mention of the plant material that was underneath the log. The witness says no, there wasn’t. Sims asks what this description of the vegetative material underneath and around the log could have told the witness, and she says that it would have been helpful in determining how long the log had been there, how far along in the decompositional process it was and what kind of plants were around it.

Yeah, I don’t understand all the fascination with the log. Who gives a fuck how long it had laid out in the woods? What does that have to do with anything? Even if Casey had beat Caylee to death with the log – how long it had laid out there still wouldn’t have been important. The defense just continues to confuse me with their emphasis on things that I find so trivial.

Now the plant lady is drawing on the magic easel. I’ll bet Baez told Sims to have the plant lady draw on the magic easel. The plant lady is drawing humus and leaf litter. Sims gets her to say that if the humus is wet, that items placed on it will sink. I guess Sims is saying that the skull was placed there and it sank into the leaves. Up to the ears.

Re-cross. Yeah, Ashton asks if that’s what she is saying, that the skull sank. She says it could have – she doesn’t know. Ashton sys could it have also been placed there and the leaves fell around it over a period of several months. She says maybe. She also says it could have been pushed into the leaves.

Ashton asks the witness if she is aware that one of the bones from the skeleton was found buried in 4 inches of muck. She says she wasn’t aware of that. Ashton asks her if that would change her opinion on how long the skull had laid out in the woods – if she knew that the hip bone was buried in 4 inches of muck. She says that maybe a dog buried it. Ashton almost chokes trying to hold back his laughter. “A dog buried it?” He asks incredulously. “They do that, you now” she says. ”Or coyotes. I don’t know if you have coyotes here.” Ashton tells her no, Florida doesn’t have coyotes – but he’s already picking his stuff up and making a hasty retreat.

The witness makes like a plant lady and LEAVES. (Get it?)

Once she is gone, the judge takes up the matter of the special instruction the prosecution gets to have as a sanction for Mr. Eikelenboom’s late discovery. The judge fashioned it from the proposed instructions submitted by both sides. He reads it to the attorneys:

“All expert witnesses were required by order of the court to provide reports of their findings by providing 1. A Complete statement of their opinions 2. The reasons for those opinions or conclusions and 3.. Any data or other information considered by the witness in formulation their opinions or conclusions. These reports were due at a time prior to the trial in this cause. The report of this witness was not provided to the state of Florida until Saturday June 18th 2011.You may consider this fact when judging the credibility of the witness’s testimony.”

The judge asks the state if Eikelenboom provided a partial report. Ashton says no, he provided an affidavit. In his deposition he referred to it as that – an affidavit. The judge holds up the ½ page affidavit and asks the state “Is this what he provided?” The state confirms.

The defense objects to the instruction and renews all previous motions and objections regarding this matter.

The judge says before he brings the jury in and reads them the instruction; he needs to have the witness brought in so he can make an inquiry of the witness. He need\s to make a three pronged finding for the record before he can impose the sanction.

Mr. Richard Eikelenboom takes the stand for questioning by the court.

In response to the judge’s questions, the witness tells the court that he was first retained by the defense in July 2010, when he was first contacted to examine the evidence in the case. The witness says that except for the affidavit, he was not told that he had to write another report outlining his opinions. The judge reads the court’s order to the witness and asks if he was ever informed of such, the witness says no, he was never told these things. The witness says that prior to February; he was living in the Netherlands. He was communicating with the defense team via phone, email and Skype. Between December of 2010 and May 1st 2011, he was never asked to summarize his findings into a report format. His primary contact person from the defense team was Jose Baez. The judge asks if between May 1st and now he was ever asked to submit a report. The witness responds that last Saturday he talked to Baez after they went to the prosecutions office to do a deposition and were turned away. At that meeting with Baez, he was asked to write a report. So on Saturday night, they wrote a short report. Between December 2010 and May 2011, he has communicated with the defense team about examining the evidence, then again after he examined it, then he kind of lost track of the case and didn’t hear anything for quite a while. But he was readily available, and the defense could have contacted him at any time.

Baez then asks the witness some questions. He asks if this is the first time he has ever been asked to submit a preliminary report on a case. He says that he has written reports for cases on specific tests that he has run. Baez then asks if most communication he had with Eikelenboom was done through Eikelenboom’s wife or Miss Medina. The witness agrees, they had little direct contact. The affidavit was written because this was what his wife told him to do. The affidavit he submitted was what he thought was required. He never spoke with Miss Medina directly, nor did he talk to Baez.

Baez asks the witness if he remembers exactly what his wife told him was required. He doesn’t remember exactly, He doesn’t remember the conversation at all. He remembers the affidavit, it was a busy time for him, and this is when they were transferring from Holland to the US. The opinions he formulated were only formulated on Saturday, as he and Baez were talking and discussing the case. These were not opinions that he had before and that they discussed in the past.

Once he formulated these opinions, they went to the Prosecutors office to undergo a deposition. Ashton refused them entry – he was rude. Miss Medina then had him write a report with his opinions, which he did and emailed to Baez.

Ashton then asks the witness if there is any opinion he formulated on Saturday afternoon that could not have been developed 4 months ago in a sit down meeting with Baez. The witness says it depends on if the information was available 4 months ago. Ashton asks if there was any new information that Baez gave him on Saturday, and the witness says the information was new to him, because he didn’t follow the case. Ashton asks if he was given any new reports or factual information that he didn’t have already. The witness says yes, between Friday and Saturday he got crime scene pictures and FBI reports. He received the entire folder just last week, after he got the subpoena and realized that he was to testify.

The judge then makes the following findings of fact: The violation of the court order was willful, not inadvertent; that it should have been clearly conveyed to the witness what was required. This violation was substantial, not trivial, since it is in relation to DNA. Because the violation has already delayed testimony and cause hardship on the state, therefore it is prejudicial to the opposing party.

The court is limiting this witness’s testimony in the area of DNA analysis on the decompositional fluid. The court is giving the Defense until Saturday to request and make motions for a Frye hearing. The Frye hearing will be held on Tuesday of next week.

The jury is returned after the doctor removes the information regarding DNA testing of Decompositional fluid from his power point presentation. The judge reads the special instruction to the jury.

The witness is brought back to the stand. He is a former employee of the National Laboratory in the Netherlands. This is the forensic institute for the Justice Department. in the Netherlands. He and his wife now own a company called “Independent Forensic Services”.

Ashton wants to voir dire the witness. He points out that the highest degree this witness has obtained is what is referred to as an engineer’s degree in Holland. It is equivalent to something above a bachelor’s degree, but not quite a Master’s degree. And his degree is in biochemistry – with a specialty in Luminol. And also specialized study and experience in trace recovery. He was not certified by the National Laboratory to do DNA analysis. He did trace recovery. And even though he has no training in, or experience in performing, DNA tests, he and his wife opened a business and appointed the witness “Director of DNA”.

The state objects to his qualifications as an expert.

Baez gets up to rehabilitate what sounds like lousy credentials. He asks the witness how many cases the witness worked on where he recovered and processed DNA in the Netherlands, prior to opening his business,. This is the wrong question, because the answer seems to be “none”. The witness doesn’t come right out and say “none”, he explains that he was the co-coordinator of cases – he would receive the results of the DNA tests and determine the next step that the case needed to go through. It was only when he opened his own business that he actually started doing the testing himself. His business was accredited in the Netherlands – something similar to ASCLAD accreditation here in the US. In the Netherlands his laboratory was contracted by the government to perform DNA testing, and he was called as an expert witness over 70 times.

He worked on the JonBenet Ramsey case and testified as an expert 3 times in Colorado.

Baez offers him as an expert, the state objects. The court accepts him.

They break for lunch and Baez has another issue he needs the court to resolve. This morning the defense was given some documents, including a CD disc including documents and information recovered from the Anthony’s desktop computer. The state had this information in April and the state’s witnesses already testified about it. One of the things the defense found on this disc was photographs of the “shot girls” which may have been viewed on the Anthony home computer. This is interesting because in Mr; George’s questioning of the witnesses he referred to the fact that Casey Anthony would instruct the girls on the clothes that they should wear. This leads Baez to believe that the state had prior notice of this discovery. Law Enforcement had this computer since July 16th, 2008, going on 3 years now and the defense is just now getting these items and reports – after the state’s compute experts have testified. The defense objects to any presentations relating to these computer items.

Burdick responds to Baez’s motion. She says that the discovery items were related to a brief investigation at the end of last week. Apparently a citizen called the Orange County Sheriff’s Department about an inmate who may have had contact with Casey Anthony at a time when the inmate was in the Orange County Jail. That matter was investigated Thursday or Friday of last week, a report was generated, a statement was taken over the phone from that witness, a transcript was produced immediately, and was turned over. The witnesses name was April Whalen, apparently her child died in a swimming pool and the child was found by the child’s grandfather, who immediately started administering CPR and called 911. Miss Whalen was in an adjacent cell to Casey for a brief period of time. Miss Whalen says that she did not talk to Casey, but she doesn’t remember if she talked to other inmates, and that is being explored right now, if there was indirect contact between Miss Whalen and Casey.

With regards to the computer information, this is just filtered items from the hard drive that Mr. Baez has had for years. This information will only be used in rebuttal is Miss Anthony or anyone else were to make claims about the computer usage on June 16th, because there was a lot of it. This information does rebut a lot of what Mr. Baez stated in opening statements. This will be used as a demonstrative aid either in rebuttal or during Miss Anthony’s cross examination.

The judge asks questions to clarify that the computer information is just a redacted version of what has always been on the hard drive. Miss Burdick says this is so. She says that she would have expected Baez to concentrate on the activity on June 16th, but if he didn’t, the state did, and since the state has already suffered the penalty of exclusion by not turning over their PowerPoint presentation, they decided to turn this demonstrative aid over as soon as possible.

The judge asks if they are going to use Miss Whalen, and Burdick says that based on her statement, no, but as the investigation continues, there may be something from it that might prove useful in a rebuttal case.

The court finds that items 1 through 6 are not a discovery violation.

Baez says that the discovery of the computer material was a violation because the expert’s reports didn’t specifically report on the activity of June 16th.

Burdick says that they had the hard drive – they could have filtered the information if they wanted to. In Baez’s opening statement he laid out a timeline for the morning of June 16th. The activity from the computer and the instant messages contained therein negate that timeline.

The judge asks if the state had provided reports to the defense regarding the computer activity of June 16th. Baez says no. Perry asks if the defense has the hard drive – Baez says yes, but that’s everything, billions of pieces of data. And their computer experts issued reports on opinions on what information they had. This did not include information on the 16th,

The judge says that the 16th was the last day the victim was seen by her grandparents, and after hearing the defense’s opening statement, it is clear that the 16th was a date of great importance. A so-called timeline of activity, dealing with how all the players spent their day on the 16th. It seems like a review of these dates with regards to the computer would have been important.

If the hard drive was provided to the defense, it was left up to you to decide what kind of searches and filtering you wanted to perform, and what days you chose to look at. And if you chose not to look at any particular date, that’s not the state’s fault. You knew what dates were important. What you choose to do with evidence given you is your business.

The judge is allowing the exhibit.

Eikelenboom is back on the stand, and he is explaining touch DNA. Rather than obtained through bodily fluids such as blood, semen or saliva, touch DNA is obtained through the hands when an object is touched. There are different factors that determine if one will get a DNA profile from touch.

This is when Eikelenboom brings out his PowerPoint presentation.

There are skin cells, or epithelial cells on the hand. There are several layers of skin, and it is the lower layers that will contain DNA. Slight touches will generally not yield enough cells for a DNA analysis, but with violent crimes, where there is more vigorous holds, grabs and forceful contact, the chances of getting the cells needed for a DNA profile increase.

Unlike blood or urine or semen, there are no presumptive tests for skin cells. The examiner will use an alternate light source to look for sweat stains. This is to just form a working hypothesis of where there might be touch or skin cells.

If no sweat is found, the examiner will just put forth conclusions as to where there might have been force applied, and look for skin cells there. For instance, in a rape case, if clothing is torn, you can look in those areas for skin cells. Also, skin cells can be obtained from someone wearing clothing. Or from touch or “forceful grip”.

But even when you find skin cells, it is still difficult to determine if you will obtain a DNA profile. The top layers of the skin – especially the hands – are dying skin cells, and they do not have enough DNA for a profile. Sticky or rough surfaces (such as duct tape) are generally better at holding and receiving skin cells.

If duct tape is applied to someone’s face, as in this case, Eikelenboom would expect to find a DNA profile on the stick side. He would expect to find skin cells and also saliva cells from the lips and mouth. If the duct tape was in the elements, he would expect the DNA to break down, but with PCR methods today, this DNA could be amplified to find a profile.

Baez asks Eikelenboom if he is aware that there were two partial DNA profiles on the duct tape. One on the sticky side and one on the non-sticky side. These were from the examiners at the FBI lab. Baez wants to know if this DNA could have over-ridden any other DNA samples that were on the duct tape. Eikelenboom said maybe – it depends on how much DNA was originally there from both samples.

Baez then asks about insects and maggots, and whether or not Eikelenboom has ever successfully extracted DNA from insects. Eikelenboom said that he has been successful in extracting DNA from maggots – if the maggots have been feeding on blood and the blood has not been digested, it is possible to extract that blood and obtain a DNA profile.

Baez is through with direct. Ashton crosses the witness. Eikelenboom says that he is currently working on his PhD at the University of Denver. In the business that he owns with his wife he has a lot of advisors who are more experienced in DNA. They started the business in the Netherlands, and moved to the US where there is more work. Ashton asked the witness if testifying in this case would be good for his business. The witness says he doesn’t need the work; in fact his lab isn’t even technically open yet to receive work. And good help is hard to find. There aren’t a lot of good DNA technicians out there. There are other labs that do the same work that he does, but he is more experienced than they are.

Ashton then seizes on this statement and asks about what it is, exactly, he does that is so different from other labs. Basically all he dies is run extra replication processes through PCR. Instead of running 24 amplification cycles, he runs 30.

The witness says that he must have answered the question wrong. He explains that his “process” is not only running the tests on the DNA – but finding the DNA to begin with, which half the difficulty is. This is also part of his specialized abilities. No matter how sensitive the technique is, if you can’t find the DNA to begin with, the techniques won’t be useful.

He and his company came up with an alternative to the traditional method of swabbing samples to retrieve DNA – they used a cutting method, cutting actual samples out of the material and dissolving these samples in a test tube to obtain DNA. This is where his methods are very successful. He has been very astute at knowing where, exactly, to cut the samples. Otherwise, you could take thousands of samples before finding skin cells.

Ashton says he wasn’t really concerned about the sampling; he was more interested in the actual testing. Ashton says that his testing methods are really nothing unique, that it’s simply running the amplification PCR extra cycles. The witness agrees.

Ashton asks if the witness has ever run DNA testing on the Megaselia scalaris, the humpback fly. The witness says no. Ashton clarifies that when the witness is able to obtain DNA from insects and maggots, the time period between the feeding by the insect and the testing by the examiner has to be short – otherwise, the maggot will have ingested all the blood that contains the DNA sample. The witness says yes, or if the insect dies shortly after feeding.

Ashton asks the witness what environmental affect is the most destructive to DNA. The witness says he thinks it is a combination of moisture and temperature. A hot, wet environment is the worst for DNA. Along with a bacteria filled environment.

Ashton then asks specifically about the duct tape. He points out to the witness that if you put a piece of duct tape on a person’s mouth and then rip it away, that you will probably bring the top layer, dying skin cells and also the living sub-surface skin cells. Ashton then points out that if you place duct tape on the mouth, and then don’t rip it away, that only the dying, top layer cells will be on the tape. The witness says that it depends on how forcefully one had applied the tape. But Ashton points out that no matter how forcefully the tape is applied, it still will only be in contact with the top, dying cells, and the witness agrees.

Ashton asks that if one was to place this duct tape on someone’s face, and not rip it off, and instead put that person with that tape on their face into a swampy area, an erstwhile dump, that is prone to flooding, in the hot summer sun of Florida, and left that person there to rot until all of their skin cells decomposed, that the likelihood of obtaining any skin cells from that duct tape were extremely remote.

The witness says that in the scenario that he has described, it would be possible to lose all the cells, but he only need a very few cells in order to create a profile using low copy number DNA.

Ashton then asks why it is that scientists don’t’ swab the outside of a bone to collect DNA – why they swab the inside of the bone for marrow – isn’t that because there isn’t expected to be cells on the outside of the bone – those cells decompose. The witness agrees that it would be very difficult to get cells from the outside of the bones.

Ashton points out that in the contaminated masking tape, the only thing that would be overwritten in an existing DNA profile, would be the very same areas that the second DNA profile had. Since the contaminating profile had only one location defined – allele 17 – the only thing it would mask is allele 17 at any underlying DNA profile.

The witness says that this sample would have been a good one for his testing methods. He thinks that they might have gotten a more complete profile. Ashton asks if he asked to re-test the tape, the witness he mentioned to Baez that he could test it. Ashton asks if he knows if any other of the pieces of evidence were tested or re-tested for DNA. The witness has no knowledge of what was tested or wasn’t.

Baez asks about the witness’s laboratory, and the fact that it’s in a barn. Baez points out that this witnesses lab is internationally known and respected. Regarding the “getting work from this case” and the exposure he would receive by testifying, the witness has already had national exposure (through the JonBenet case, assumedly), and that the witness doesn’t need additional exposure to drum up business.

After a sidebar, Baez is allowed to ask the witness specifically about the cases the witness has worked on (Ashton opened that door by questioning the witnesses pecuniary interests and his seeking exposure).

The witness testifies that he was first involved in a case in the US in the Masters case. This was the 1987 death of Peggy Hettrick. Timothy Masters was convicted of her killing in 1999. In 2008, the case was re-opened and the conviction was vacated due to the DNA on the victim. The sample collected was only a partial profile, which was sent to Eikelenboom to amplify using his techniques. The DNA was later found to be consistent with Hettrick’s ex-boyfriend, not Timothy Masters.

This case garnered Eikelenboom and his laboratory international attention.

Baez then asks about the “extra PCR cycles” Ashton spoke of as being the only thing this witness does in his process. Baez has the witness explain about the more sensitive mini kits that this witness uses. These “kits” contain more sensitive chemicals. This witness uses a “mini filer”. This witness also uses a longer extraction time. And special filters. He says that it is a whole process and every step is important. This is what allows his lab to extract DNA when other labs can’t (This was objected to and stricken).

The witness then describes and illustrates the machines that he uses. Which is all irrelevant – because he didn’t find anything with his fancy machines, you know.

Baez then asked the witness to illustrate some of the items that he was able to obtain DNA from even though they had been exposed to the elements. He showed some items from the Hettrick case, then some other items that had sat outside, or sat in the water.

Baez asks if the witness was willing to do testing on some of the evidence in this case – and willing to do it pro-bono. The witness says he was. Baez asks if it was the prosecution that objected to the witness testing the items. And that brings a sidebar.

After the sidebar, the jury is sent for the break, and the attorneys hash out some other issues. Baez wants the court to take judicial notice that there are other forms of DNA testing which were not done. The judge says that there is a danger in taking judicial notice of also burden-shifting. And since these cases are routinely overturned- some things are better left unsaid.

After the break Baez asks the witness about the partial DNA fragment found on the tape – the one with the 17 allele. The witness explains that while you need 13 allele matches to positively match a DNA profile to a person – you only need a non-match at one allele to exclude someone as a match.

Ashton is up for questioning again: He asks about the early days of DNA testing, the days of RFLP, when testing could only be done on quarter sized samples of blood or bigger. These days, with PCR amplification, one can get a DNA sample from a drop of blood. As these samples became smaller, the concerns for contamination have become greater. Since profiles have now become possible on even specks of blood, there are concerns that the blood samples may not even have anything to do with the crime at hand – the sample could have been left there at a different time.

Ashton says that if the witness had tested the tape in this case, there are three results he could have obtained.

1. He could have found nothing – but that doesn’t mean anything, the DNA could have decomposed or degraded.
2. He could have found Caylee’s DNA
3. He could have found an unknown profile – and there would have been absolutely no way to know if it had anything to do with this crime or not.

The witness points out that in the third scenario – he may have been able to exclude someone. But Ashton says the tests are so hypersensitive – it picks up DNA profiles that sometimes have nothing to do with the crime at hand.

Ashton has the witness pull up again the power point slide with the items of evidence that the witness has found DNA evidence on. None of these evidence items were associated with skeletonized remains.

Ashton is through.

Baez asks the witness if it makes a difference whether or not the items were associated with skeletonized remains. The witness was testing the items, not the bodies, whether they were skeletonized or not.

Baez also says that the three results that he could have obtained from testing the duct tape –there was also a 4th result. He could have found no evidence of the duct tape being wrapped around the victim’s mouth.

Baez is through.

Ashton then asks if the DNA on the tape would also decompose. The witness says it would have.

Ashton is through.

The witness is finally excused.

The next defense witness is Yuri Melich. AKA Orlando Dick.

Baex asks about the search warrants that were served on the home. The first one was in August. Baez asks if the witness found any print outs of papers regarding chloroform. He didn’t. The witness also didn’t find any containers, receipts or chemistry kits or any implements used to make chloroform.

There was a second search warrant executed in December. During this search warrant the witness also didn’t find any rags or containers, no implement used to create chloroform. No receipts or papers concerning chloroform.

Baez asks if he was specifically looking for that –and the witness says he would have to look at the specific search warrant. The witness agrees that anything relating to chloroform would have been in within the scope of the search warrant.

Another search warrant was executed on December 20th, and during this search he also didn’t find anything to do with chloroform. This search warrant did not include anything to do with chloroform. They had already searched for that, and had no reason to include it again.

During the entire investigation, the witness has never found anything to do with chloroform in the Anthony home.

On cross Burdick has the witness point out that during the first search time period, there had not yet been results from the Oak Ridge lab, which included the information that there was high levels of chloroform in the car. When the investigators finally received this information from the lab, Casey was out of jail and living at home.

On redirect Baez asks if Casey’s being out of jail precluded them from searching the home. The witness says he could have executed a search warrant at any time. After he received the lab results, the next time he got a search warrant was 4 months later. The witness says that in August when they got the results of the chloroform levels, they were still looking for a live child, Baez points out that Casey was charged with murder on October 14th, so they were obviously not looking for a live child then. Baez asks why it still took 2 months to get a search warrant that included chloroform. Did the detective not think it was important enough?

The witness is excused.

The defense’s next witness is Dr. Marcus Bain Wise. He is a research scientist at Oak Ridge National Laboratory. His specialty is analytical chemistry. He has a PhD from Purdue. He has been at Oak Ridge for 27 years. This is the first time he has ever testified in court. And now this is the first time he has ever been accepted as an expert witness.

Baez asks the doctor the difference between a research scientist and a forensic scientist. The witness says that many times a forensic scientist is a research scientist, that a forensic scientist may run tests to push forward the science of forensics. A research scientist’s main job is to work on challenging problems and solve them through science.

Baez then asks what the difference is between a research lab and a forensic lab. The doctor says that a research laboratory generally doesn’t run forensic samples and that it usually doesn’t have the necessary protocols set up to do so. A forensic lab is set up to handle, document and test samples of evidence.

In the research lab, they don’t have written, rigid steps of protocol that are set up. They have protocols, but they are not written and no reports have to be written. They also are not subject to proficiency exams. The witness says they don’t have any quality control protocols in place.

Baez asks about contamination, and the witness doesn’t really know what Baez means – he says “”Contaminated with what?” As an analytic chemist he is aware of contaminates, but they don’t worry about that in a research setting.

They were given items to test in this case, and he was asked to perform some gas chromatography tests on some items to determine qualitative analysis (what was in the sample). Dr. Vass asked him to run the tests. Vass was not in when this witness picked the samples up from Vass’s office.

The witness ran the test for what was in the sample, (qualitative sample) he did not run a test to determine the amount of the items in the sample (quantitative sample).

He found chloroform in the sample, but it was not quantified because that would have been a meaningless number. Chloroform is a volatile chemical. It evaporates rapidly to the point where it disappears. The rate at which it decreases depends on a number of factors – the temperature, the chemical makeup of the surface, whether or not it is exposed to air or closed up.

A closed trunk of a car would slow down the evaporation.

If they had made a quantitative analysis of the amount of chloroform on that small piece of carpet that they had, it would have been a snapshot of that one little piece of carpet at one period of time. It would not have been representative of the entire piece of carpet, and it would not have been indicative of how much chloroform was originally on that piece of carpet or the entire carpet, which could have been 5 times as much, or 5000 times as much.

He was also given a gas bag sample of air from the trunk. This sample showed no chloroform. This was not surprising to the doctor, because gas bag samples typically diffuse after a couple of days.

The doctor then goes through all the same steps that Dr. Vass testified that he went through in what they did with the carpet sample – putting it through the gas chromatograph, heating it up, running it against the sample of chloroform that they bought – and all along at every step Baez points out that he wasn’t measuring the quantity.

Baez looks at the doctor’s handwritten notes and points out that the doctor noted that there was a large peak of benzene from one of the air samples that was put through one of the triple traps. The doctor says that this would indicate that there was a benzene contamination in that air sample.

Baez asks the witness if Dr. Vass is a chemist. The witness says that he is a scientist with many years experience working with the triple sorbent traps. It may not be his title, but he has many years on the job experience. Baez asks the witness if the Lab hired him as a chemist because of his PhD or because they wanted him to have on the job training.

Baez asks if they are close – the witness says they are.

Baez asks if this witness has anything negative to say about Vass. The witness says he is talented and experienced.

Back to the doctor’s notes – Baez asks about when the trap froze up. The doctor says this is a common occurrence and they simply heated up the trap to make it free flowing again.

The trap froze up again while running another sample – the air sample from the passenger area of the car.

Baez continues to go through the doctor’s handwritten notes, specifically noting every time the doctor put in little asterisks that denoted something happening. Even earth shattering things like “I forgot to turn the machine back”. Baez makes great mountains out of these molehills, saying that “none of these ‘mistakes’ would have happened if you had protocols in place.” But personally, I think these things probably happen all the time. It doesn’t change the chemical composition of the samples that were run. It’s the whole OJ effect – just because the DNA samples were picked up without gloves, that doesn’t change the DNA into OJ’s and fuck the whole thing up. Baez is trying to show that because someone forgot to turn a dial to the right before running a sample that this means that the test that identified chloroform is unreliable. I don’t think it washes.

The doctor seems to think this, too. He points out that yes, adjustments were made during testing, but he voluntarily changed settings and that didn’t make the results any less reliable.

Baez isn’t convinced of that – he keeps going on the notes asking “were there things that messed up this run? Did you catch yourself in an error there?” It’s all pathetic, actually.

And all the while the doctor keeps looking at the jury and smiling while he answers. I don’t know if he just isn’t bothered by Baez, if he thinks Baez is silly, or if it’s a smile that says “Don’t worry; I’m going to beat the shit out of this guy when he leaves the building.” I‘m hoping it’s the last one.

Then Baez starts asking about soil samples and the protocols the lab has for collecting them. The witness says that these protocols are for diminishing the chances of contamination.

Baez asks if this witness if he recommends collecting samples from locations that are free from trash, debris and chemicals that could result in false positives. The witness answers that it depends on what the objective is. He notes that some samples that might come from a trash heap – you have to take samples from wherever there are.

Baez asks the witness if he’s aware that there was trash in the vehicle where the carpet was collected from. He says he knew that. He does not know where the trash was.

Baez asks if the witness requested a non stained portion of the carpet as a control sample – to see if the chloroform was coming from some other point source. The witness says that he didn’t request the samples at all.

Baez then says – “but, instead, as a control sample, you tested this carpet against cars from a junkyard, right?” The witness says he wasn’t the one who decided what comparisons were made or what the control samples were to be. The witness says he doesn’t know exactly where the control samples were taken from. Baez asks if the witness was a co-author of the report. The witness was. Baez asks if the report says that the cars were from a junkyard. He says yes, they were. Baez then tries to imply that the witness was lying before when he said he didn’t know that the cars were from a junkyard.

Baez asks if this witness made an addition to the report. He did. The witness added to the report that these compounds found could have been from many different sources.

Baez then asks the witness if he is aware that the air samples were sent to his lab six weeks after the carpet samples were sent. The witness is unaware of the air samples at first. He then says he was told about the air samples and where they were taken from. The witness tries very hard not to speculate on the air quality at different periods of time.

Ashton crosses the witness. Ashton immediately establishes that this witness has had extensive work in collecting environmental air samples as part of his work. The witness also has worked closely with Dr. Vass in Vass’s work with decompositional research.

IN the carpet sample from the trunk, the highest peak and major component was chloroform. They also saw peaks associated with gasoline. The chloroform was greater than gasoline. The witness says he would not have been surprised to find gasoline in the trunk of a car, but the chloroform surprised him, because, firstly, chloroform is a suspected cancer causing agent, and something he would not expect to find in the trunk of a vehicle. He cannot say where it came from.

When the witness first saw the chloroform he and Vass contemplated why it was there. They looked at some MSDS sheets for car related products and couldn’t find any place it might have come from. They were not able to find any source for its existence.

Ashton then asks about polymers and their ability to trap chloroform. The doctor explains that any carbon based molecule (such as plastics) have the ability to adhere chemically to other carbon based molecules, which most volatile chemicals contain. (This means that if the car liner was any type of “indoor/outdoor carpet” which contains plastics, then it would be good at “trapping” the chloroform before all of it evaporated.)

Ashton then has the witness again go through all the reasons he couldn’t make a quantitative analysis. .The piece of carpet he had could have been the “most stained” or the “least stained”. It was only one small piece of the puzzle. The actual quantity could not be known.

Ashton asks about the control air samples or “blank” air samples that the doctor ran against the air samples from the car. The doctor had described them as “mostly” clean. He used that qualifier because no matter where you take air from – any room – is going to have contaminants in it, if you look hard enough.

Ashton asks about all the notations in the doctor’s report – all the little asterisks with noted problems. It is his responsibility to note these so that when they compile protocols and standards for other labs, they know the kinds of things that can go wrong and what to include in standards and procedures. The doctor says there was nothing extraordinary that went wrong, there was nothing out of the ordinary that he didn’t note and couldn’t account for or fix right away.

Ashton asks about the witnesses work with Dr. Vass. At the lab all the scientists work together and learn from each other and work outside of their specialties. Vass has worked on many of the projects this witness has done, and this witness has worked on Dr. Vass’s projects.

Baez gets back up for re-direct – Baez asks if this witness has worked on the Labrador. This witness is a co-inventor but not really a beneficiary. The witness says that all scientists are required to report inventions. Only a minimal royalty is received, if the patent is licensed to any non government entities.

Baez asks about the connection between the Labrador project, the money, and this case. The doctor really smacks Baez down by pointing out that the people who are going to buy the Labrador are first responders, they aren’t going to give a rat’s ass if the Labrador is mentioned in a court of law. And Labrador was not used in this case whatsoever. There is not a relationship between this case and Labrador.

Baez is done. (for now)

Ashton asks about the Labrador and if it was built for the military. Wise says it was. He doesn’t get money if the government uses it – so no royalties would be coming to him.

Then Baez has one more question about the Labrador and the royalties. If the government uses it, they don’t pay royalties. But If Law Enforcement buys it – he might. He doesn’t know.

Finally the witness is excused. The lawyers better behave and stop the delays. I can’t stand too many more of these long ass days. We’re already working all day Saturday.

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4 Responses to “Plant Lady, Cell Mates & The Return of Orlando Dick”

  1. Impressive! I am in awe of the details and your diligence!

  2. caroline said

    Kim, you are to be commended for your usual exemplery attention to detail. Jose Baez has proven to be my antidote to insomnia. I fall asleep listening to him talk.

  3. V. said

    Kim, your powers of transcription are amazing. Thank you!

  4. The Labrador, woof- woof.
    Baez kept beating a dead horse on that one.
    In fact I was going thru our junk drawer looking for a razor blade.

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