The Darwin Exception

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

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Falling on the Sword

Posted by thedarwinexception on June 27, 2011

I am slowly getting caught up. Every time I do – something happens. I was sicker than a dog all day long on Wednesday- so that didn’t help. Then we bought the kid a swing set. So, there you go….

And now I’m adding pictures – mostly for my friend Jill. She’s Canadian.

Today court starts with a “quick” sidebar. Then we have the defense’s first witness of the day. – Susan Mears – who just testified yesterday.

She is here to get the Gatorade Bottle, and what looks to the be the cardboard the syringe was in, the Disney bag, and after some back and forth – it’s determine she also has the syringe itself.

The items are entered into evidence and she is excused.

Next up is Stephen Shaw (again – this soap opera really needs some new actors.) He is again accepted as an expert in trace evidence hair and fibers.

Remember this guy’s dead hair study? The one where he left hairs in the car and on the windowsills and in trunks? Yeah, that guy and that study.

Baez shows him some pictures of his hairs. The ones he studied and took pictures of. He had 600 hairs form 15 individuals as samples he ran the study on. He was trying to determine if the post mortem root banding he saw on dead people’s hair could be replicated in live individuals. He had based this study on a master’s thesis from someone at John Jay College who had suggested that additional research was needed in the area.

Baez shows the witness the witness’s big visual aid to the characteristics of post mortem root banding. Then Baez shows the witness a slide of a hair taken from a living individual that was stored in water for 17 days. It is one of the hairs that one of the two examiners who examined all the hairs in the study and gave their opinions on initially mis-identified as showing post mortem banding.

Baez then shows the witness the other hair that was misidentified as having post mortem banding by the other examiner. Each of the two examiners had initially identified one ante-mortem hair as a post mortem hair in their initial examination. Later, when they did the second portion of the examination and conferred with each other, they correctly identified both hairs as not showing root banding.

Baez tries to convince the witness that he ante-mortem hairs really do look a lot like the post mortem root banded hairs, but the witness says that he sees huge differences and that they look nothing alike. Beats me. They just look like hairs with black stuff on them to me. I can’t tell if one is banded because it’s above the root tip or in the middle of the root tip or submerged in water for 17 days or in the trunk of a car. They just look like hairs with black stuff.

The witness testifies that there are no other studies currently being done at the FBI on this subject with living individuals. But he witness continues to study the subject.

Baez then directs the witness to his report dated January 27th, 2009. This is the report he wrote after examining the hair mass and the three pieces of duct tape. He found hairs on the duct tape, and all of them were consistent with the hairs in the hair mass.

He also recovered textile fibers, but he did not test them.

On Cross – Ashton has the witness repeat the all o the hairs found on the duct tape came from the same person that the hair mass came from.

Ashton then points out that all of the slides that Baez showed him of the hairs were just a small sample from the hairs he studied. Ashton points out that none of the hairs that Baez showed him were the hairs that the witness out in car trunks and studied.

And now, despite the fact that Baez objected to the never ending power point presentation being introduced during the state’s case in chief (based on a discovery violation – the defense only got black and white photos – not color ones, like in the presentation), Baez has just opened the door to the prosecution going through the entire thing with the witness the way they wanted to begin with. Now the jury gets to see every damned hair in all its glory – sitting in dirt, sitting on windowsills, sitting in cars, sitting in trunks.

And the long and short of it is that absolutely none of the hairs – at all – showed decompositional post mortem banding no matter where they sat, no matter how long they sat (7 months in some cases), and no matter how much direct sunlight they were exposed to.

The power point presentation – and Ashton – are done.

Baez gets up and asks the witness if he put the hairs in garbage. The witness didn’t. And why that would make a difference I have no clue. I can’t imagine the garbage giving off some magical power to turn ante-mortem hairs into post –mortem hairs.

Baez also notes that in the captions on the pictures in the power point presentation, the hairs from the living people have the number of days before they were collected noted. But all the post mortem hairs don’t have any dates as to how many days they sat around before they were collected. The witness says yeah, he didn’t note that on the slides.

(Probably because, you know, they already had post mortem banding on them…sitting outside wasn’t going to take the banding away – so it wasn’t as important to note how many days it sat on the dashboard…)

Baez then goes through the slides asking what the environmental conditions were for the post mortem hairs – cars in the winter in Tennessee – obviously not summer in Florida – and even the hairs that were placed indoors, Baez makes a huge deal out of the fact that Shaw doesn’t know if they had heat or air conditioning.

The witness says that he didn’t replicate the conditions in this case – in fact; he doesn’t even know all the conditions in this case.

Baez asks if, one day, the science would develop enough and the witness would learn enough that this witness would hope to be able to pick up a hair and be able to tell if it’s from a dead person. The witness doesn’t fall for this, and says “Post mortem banding is based in science – I’m just trying to learn more. I tried to replicate post mortem banding in this study – I put hairs in dirt, where I thought decomposition would occur, I put hairs in hot cars purposefully in direct sunlight. I couldn’t replicate post mortem banding. This is a well established science because of the work of experienced scientists in this field. I don’t “hope” to do anything but learn more.”

Baez kept on goading him saying “Yeah, but one day you’d like to know what environmental factors play a role in this post mortem banding and be able to pick up a hair and be able to tell it’s from a dead person.” The witness again doesn’t fall for it and instead says “There are hundreds of forensic scientists who work with these hairs every day in forensic cases that include all kinds of environmental factors.”

Ashton gets up to questions the witness again. He asks the witness if the hairs that he bases his opinions on are just these hairs from the winter in Tennessee – or the millions of hairs from all the literature and all over the world. The witness says all the hairs from all over.

And it’s hard to remember that this witness is a defense witness.

The witness is excused.

The defense’s next witness is Dr. Barry Logan. He is a forensic toxicologist and analytical chemist. He is from Scotland. He has been practicing about 27 years. He runs a Gas Chromatograph Mass Spectrometer daily –and has for the last 27 years. He also teaches classes on how to use it. Currently he works for NMS labs. He is the national director for their forensic services. They are one of the largest forensic labs in the United States. Their lab is accredited, which is kind of like a person being certified. A person is certified, a lab is accredited.

He is offered as an expert in like 1,900 areas. Analytical Chemistry, Toxicology, Forensic Science, laboratory accreditation standards, Gas Chromatography Mass Spectrometer and Cryotrapping.

The prosecution accepts him as an expert in Forensic Toxicology, but they want to voir dire on the other areas. (This could take all day…..)

Ashton asks what kind of analytical chemistry the witness performs besides that related to toxicology. The witness says it’s hard to separate the two. He says that his lab performs other testing besides forensic applications. The witness explains that toxicology is the study of biological samples- he runs chemical analysis on materials that are not biological in nature, although they might be in a forensic setting.

Ashton says then that the witness would agree his experience is limited to toxicology applications or supervising people who might be looking for drugs.

The witness says not everything they look for is drugs – it might be industrial chemicals, for instance, or poisons. Ashton says “Yes, but you don’t supervise that lab – you supervise the toxicology lab.” Ashton says that Analytical Chemistry is a very broad field – hugely broad. He asks the witness if the witness thinks of himself as an expert in every area of analytical chemistry. The witness gives up and says no, he doesn’t.

Ashton continues that this witness’s expertise is really limited to toxicology, isn’t it? The witness says that that is where the bulk of his experience is. Ashton asks if this witness’s last experience with cryotrapping was in graduate school – over 20 years ago. The witness admits it is. Ashton asks the witness to confirm that he is not an expert in all areas of forensic science. The witness confirms this.

Ashton tells the court that he would object to this witness being certified as an expert in anything other than forensic toxicology.

Sims starts pleading to the court at the lectern – saying that this witness has a degree in chemistry with honors – and the judge says if it’s going to be a long one, she can come to sidebar.

Sims wants to ask the witness one questions – the judge grants her leave to do so. She asks the witness what exactly his duties were when he served as the Vice President of the American Academy of Forensic Sciences with regards to all the disciplines that this organization oversees. He says that he served on the board of the organization. The board promotes scholarships, research and education within the community of the forensic sciences – it is a way to bring all the disciplines together. (Which is mumbo-junbo, you know. That’s like some guy who sits on the board of Budweiser being certified as an expert in Beer Making. He’s not. He may have a passing acquaintance with the process, but chances are he couldn’t work the factory line of Budweiser.)

The judge must think so, too. He accepts the witness only as an expert in the field of forensic toxicology. I hope that Sims legal pad she keeps writing on isn’t filled up with questions about the shoddy lab work over at the Body Farm – you know that’s why she wanted this witness certified in accreditation practices, right?

But, Sims soldiers on with what little she has to work with now. She asks the doctor if he uses the Gas Chromatograph in his lab (since he’s no longer an expert in it, as she wanted him to be…) He says he uses it.

She asks what materials he received and reviewed in this particular case. He says that he received some analytical reports from the FBI lab with respect to some evidence that was collected from the trunk of Casey’s vehicle. He also received a series of reports from the scientists at the body farm, also related to chemical evaluations done on material from the trunk of the vehicle. He also received miscellaneous other documents related to the investigation, including the autopsy reports. He wasn’t provided any articles, but he did read articles on his own.

He reviewed the 2008 article by Dr. Vass about his decompositional studies and the odors.

She then wants to go over some forensic lab stuff (and if she gets into accreditation and procedure – you know she’s going to get shut down….) And Ashton asks for a sidebar before she even spits out the unabbreviated form of ASCLAD.

After the sidebar, about the only question she gets to ask without being objected to on this topic is the very broad “what is the difference between a forensic lab and a research lab?”

The doctor says that a forensic lab is one that does analysis simply for the purpose of it being presented in a court of law or some kind of administrative review board. Forensic labs can do research, this helps them to develop new and improved ways of testing for things that haven’t been able to be detected in the past. Research labs are generally academic labs whose mission is to discover new things where their application isn’t necessarily clear of what the ultimate value will be. They make discoveries that may have applications in medicine, technology or space travel, in any variety of different fields based on discoveries of new compounds or chemicals or objects.

She then asks what validation testing is. The doctor says that when a laboratory develops a new test, before they start applying it, particularly in a forensic laboratory when you are dealing with evidence, the test has to be fully characterized, to figure out what its level of sensitivity is, whether there are things that could interfere with it to cause a false positive result, if there are limitations to the test that would cause it to fail to find what it was developed to test for (a false negative), and then you have to decide what materials are suitable to apply the test to.

Sims asks the witness if validation studies were done on the materials he reviewed from the Oak Ridge Lab. Ashton objects (basis of knowledge) and the doctor refers to his notes to determine if he knows whether or not validation tests were done. He reviewed all the bench notes by Dr. Vass and Dr. Wise, and the depositions that they both gave. After he reviewed all the bench notes, he reached a conclusion on what they had done – but being just an expert in Toxicology, he isn’t allowed to share his conclusion (ha!) When Sims asks again, in a different form of the question, whether there were validation studies done on the methodology Vass used, there is a sidebar.

When they come back from sidebar, she asks Dr. Logan if there were established published protocols for the tests that Vass did. He says that there were no formal protocols on the tests that were run. Sims asks if a test is run outside of established protocols what kinds of problems can occur. The doctor says that if you conduct testing without established protocols, that there is no way to ensure that the test is going to be conducted in the same way every time, to ensure that the results can be replicated, that the instrument is going to be set up correctly to do the test, whether there are things that could produce false positives or false negatives with the test. If there are no written procedures or protocols, there’s no way to ensure that two people doing the test on different days are going to get the same results. For a reliable test it’s critical that you have a written procedure.

The doctor also testifies that the written report does not outline any protections or precautions that may have been taken to avoid contamination. He also saw no evidence of any quality assurance protocols. And there was no proficiency testing or blind testing referenced. And there was no mention of control samples.

After asking about 40 questions in a row that are meant to denigrate the testing of Dr. Vass, and which are deemed “outside the witness’s expertise”, Dr. Logan is allowed to testify about what “blank samples” are. He says that they are samples that are known not to contain the chemical that you are testing for. Logan says that if you run a blank sample but the machine isn’t calibrated correctly, you won’t get reliable results. (This is to try and cast doubts on the results because of Dr. Wise’s “mistakes” and all those entries with the asterisks next to them.). If you are running a blank sample and the sample shows positive, it means that you have either contamination or a problem with the way the test was performed.

Sims then goes through every little “asterisk” in Dr. Wise’s notes, asking what the significance is of every “mistake” Dr. Wise made. The problem is that these questions are rather disingenuous. Dr. Wise knew they were a screw up, that’s why he notes them with little “asterisks”. I would think this testimony would have a greater impact if Dr. Wise hadn’t already identified them as “mistakes” in his notes. It’s not as though those tests with the “asterisks” attached were counted in the final results. Those were the runs that were discarded and redone. The whole line of questioning is silly.

Sims then asks the witness about fatty aids. (Specifically the ones found on the paper towels that were identified as adipocere by Dr. Vass when Dr. Haskell sent him the samples….) The witness says that these fatty acids are also found in bleach products, dairy products (cheese, butter and milk), and animal and plant materials. Sims asks him, as a toxicologist, what conclusions he would reach if he tested say….a paper towel….and he found the presence of these four fatty acids – oleic acid, palmitic acid, stearic acid and myristic acid. He aid he would conclude they were on the paper towel. Which, you know, that’s not really an answer.

Sims then asks him what the ratio of fatty acids is in a meat pizza. That was deemed “outside his area of expertise”, too. And you can tell the doctor is getting really, really pissed at not being able to answer questions he obviously knows the answers to. I’m betting the next time someone says to him “You aren’t an expert in all areas of forensics, are you, sir?” He’s not going to give in and say “no”. He’s going to tell them “Fuck yes! I am! I know the ratios of fatty acids in pizza!!”

Sims asks the doctor if he’s read published materials that would estimate the amount of fatty acids in pizza (really? There are published studies about this? Who knew?) He replies that he has reviewed the ratios of fatty acids in foodstuffs, including pizza. When Sims asks what his conclusions are – Ashton says he has multiple objections. They go to sidebar and then to lunch. If the doctor comes back after lunch for more of this, he’s a fool.

Yeah, he comes back. I hope he’s being paid really, really well for this. He has to be humiliated. Poor guy.

Sims only has one more question for the Doctor – she asks him where the 4 fatty acids in this case were found. He says on a paper towel.

Ashton gets up to cross. He asks the doctor if the doctor is saying that all 4 of these fatty acids are found in combination in vegetable materials. The doctor says “huh” and Ashton asks again if al these fatty acids are found in vegetable material all together and the doctor says yes. Ashton asks what vegetables? And the doctor says “oily ones – like palm oil”. And Ashton says “OK – but not like cabbage. Not like that kind of vegetable.” Ashton says “And they are also present in decomposing animal fat, right?” And the doctor agrees that they are.

Ashton asks if the carbon atom chain in adipocere and dairy products is the same. The doctor replies that adipocere and dairy products both contain the same fatty acids. Both contain the 4 they have been discussing. And they both contain other fatty acids. Ashton asks if it’s true that the carbon chains for milk cheese and butter is 4-10 carbons long and the one for adipocere is 14-18 carbons long. The doctor explains the lengths of the carbon chains (and I don’t think Ashton knows what he’s talking about, here….. The carbon chains can be hundreds of molecules longer in one compound than another – yet they can be closely related. I don’t think Ashton quite knows the complexities…) The doctor only answers Ashton “The chains are quite complex.” Which ain’t no lie.

Ashton asks if there are other compounds that are in adipocere that aren’t in butter and milk – and Logan says yes. Ashton then asks if it’s possible to determine the difference, then, with chemical analysis. The doctor says yes, if these other compounds are tested for.

Ashton then has the witness testify that it’s not unusual for there to be special challenges when using the GCMS in analyzing evidence, particularly forensic samples, since they are rarely pure. The witness says that they have set protocols, which helps with some of the challenges. Ashton asks the witness what a scientist should do when faced with challenges that are not covered in the protocols. Dr. Logan says the scientist should develop new protocols, or adjust the existing protocol to accommodate the special challenge. Ashton asks if this is an acceptable scientific procedure, and Logan says yes.

Ashton asks if the protocols for testing decompositional odors are published. The doctor says that the principles are published, but not how the test is performed. Ashton asks – so the steps are not published, how to run the tests step by step, how to set up the triple sorb filters, what the settings should be on the GCMS? The doctor says some of those things are in the literature – but not all of them.

Ashton then asks about blanks – he asks if blanks are room air with the same ambient chemicals present in the testing area. The doctor says that’s one example. Ashton asks what a scientist should do if a blank shows some unexpected results. The doctor says one should investigate that – to see if it is contamination or if the machine is set up improperly. Then re-test the sample to make sure it gives the proper result. Ashton says “OK, so the proper procedure is to stop what you are doing, correct he problem and then run the test again?” (Which is kind of what Wise did….only when he followed this “proper procedure – it gets dragged into court as “mistakes” invalidating all of his results……)

Ashton then asks the doctor precisely that – “OK – so from the bench notes you read, that’s exactly what occurred in this case, right?” Logan says “Well, the bench notes contained Wise or Vass’s opinion as to why the test failed and then what they did to make sure the test worked the next time…” (Which I guess is a yes…)

Ashton is done with the witness – Sims on re-direct. She asks about the word ”challenges” as Ashton used it in his questioning and what it meant to Dr. Logan. Logan says he took it to mean something that was unusual or unexpected about the sample that was being tested. Sims asks if there are any protocols in the literature about how to collect air from the trunk of a car. The witness says no. Sims asks if there are protocols about how to collect carpet from the trunk of a car – how thick it needs to be, or how big that sample needs to be.

Sims then asks if this doctor, based on the reports from Wise and Vass can replicate the testing that they did. The doctor says no. Sims asks why that is, and the doctor says there is a lot of detail missing, either from the bench notes or from the original journal article itself, about what the expected sensitivity of the test is, what other causes there could be from identified chemicals, so if he did the test there would be no way to know if that was the same way Oak Ridge did the test.

Sims is through. Ashton gets back up for re-cross. He asks the doctor – “Your laboratory couldn’t do this test if you wanted to, could you?” The doctor says “Which test” and Ashton explains “the carpet test – your laboratory doesn’t do this testing.” The doctor says “We would be capable of doing that test.” Ashton says “All right….” And he goes and gets the 4 cans with the carpet samples in them. He puts them on the rail in front of the witness and says “Have you ever seen any of those?” The witness says no. Ashton asks the witness “If you have been sent one of those, could you have tested it?”

This causes a protracted sidebar and arguments. The state says that by virtue of the defense asking the witness if the witness would be able to replicate the test results, that this has opened the door for the state to ask if the witness tried to run the test- or even if he is capable of doing so,

The defense says no – that would mean that defendant’s couldn’t ask any witness about the replication of any test results. The witness said he couldn’t replicate the test – that doesn’t mean the state gets to shift the burden from the state to the defendant with regards to running tests.

The judge reads and looks into several cited cases – cases cited by both the state and the judge himself (I love this judge – he always cites case law).

The judge agrees with the defense and sustains the objection.

But he cautions the defense that they already addressed this issue in the Frye hearing. This witness was not certified as an expert in the area of testing air samples. If the line of questioning continues down the path it is headed – the defense is going to open the door- and it looks like Mr. Ashton has a Mack truck waiting to burst through it.

The defense asks for a curative instruction about how dramatically Mr. Ashton approached the witness with the evidence. The judge says this would cause an instant replay for the jury. They then ask for a curative instruction on the burden of proof. As an abundance of caution – the judge will give that.

Ashton then asks about his own line of questioning – and whether he can rebut the defense’s question of “can you replicate these test results” with a question of their own asking “why not?” The judge allows Ashton to proffer the witness – Ashton asks “Can you collect the air sample?” Witness says “yes” Ashton asks “Can you heat it overnight?” Witness says “Yes”. Ashton asks “can you put it into your GCMS at the right settings?” Witness says “no” Ashton asks “Why not?” and the witness says that there were no bench notes or notes in the Journal article saying at what settings to set the GCMS. Ashton says “there’s nothing in the notes?” And the witness says he will have to look. Ashton asks him to.

Then the judge kind of steps in, and Ashton says he will withdraw the quotation – and the judge says “No….the defense kind of went there.” Then he explains to the defense that if they want to impeach an expert’s testimony, the only way to do that is to have another expert give a different opinion. But now, see, what they have here is just a guy – not an expert – trying to rebut the expert’s opinion…that’s the problem with this whole line of questioning.” Now the judge is in a quandary and he doesn’t know what to do. He gives them a 10 minute recess to read more case law.

When they come back from break he gives the jury the curative instruction reminding them that it’s a well honored principle that the defendant doesn’t have to prove a thing or offer any witnesses – that it’s the state’s burden to prove guilt beyond a reasonable doubt.

Ashton then continues to question the witness asking if his laboratory performs air sample analysis. The witness confirms that his lab doesn’t do these tests. And the witness himself hasn’t performed these tests since he was a graduate student 20 years ago. The witness confirms this as well.

Ashton is done and the witness is excused.

Jennifer Welch is the next witness. Hopefully she has a cot set up somewhere in the courthouse. Baez asks the witness if there were any socks or shoes collected from the scene. She says no, there were none.

And that’s it.

I hope she didn’t have to come all the way across town for this.

The defense’s next witness is Cindy Anthony. Baez asks her if she used the computer that was at her home – the desktop. She says yes. He asks where this computer was kept and she says in the spare room – Lee’s old room. Baez asks who used that computer – and she says anyone that needed to – even friends of Casey’s that were at the house used the computer.

Baez then asks her if she did a search on the computer anytime in March that might have used the word “chloroform”. She says Yes – and the state’s premeditation goes out the window.

She says that the reason she did this search was that she originally was looking up chlorophyll – she was concerned about her smallest Yorkie puppy – she was tired all the time and both of the dogs were eating the bamboo leaves in the backyard, so she was looking up items that were in the back yard that might be making her puppy sick.

And here we go again with the bamboo in the back yard. First Casey is borrowing shovels to dig up bamboo roots, now here’s Cindy looking up bamboo causing chloroform on the computer. And the bamboo is innocently sitting in the backyard going “What the fuck, people???”

So she says that she started looking up chlorophyll and that prompted her to look up chloroform. And this is a crock of shit, you know, right? Because this bitch is a NURSE – and she doesn’t know how to spell chloroform? Remember, it was spelled wrong the first time. I don’t believe her for a minute. Which is sad. Because I’d hate to think she’s lying for her daughter. I understand that someone had to fall on the sword for Casey – and you know what that argument sounded like: George: “There is no way in hell I’m saying I molested her so she gets away with this – you’re just going to have to blow a hole in the premeditation thing and say you looked up chloroform.” Cindy:”And I can say I saw the ladder next to the pool, too!” George: “Ooooohhhh – good one, Cindy!” It’s not pretty, folks, but there’s absolutely no other way to explain this “falling on the sword” shit. This family puts the “fun” in “dysfunctional”.

Baez asks Cindy how the hell you confuse “chlorophyll” with “chloroform” and she says oh, no. She didn’t mix them up! If you look up chlorophyll, there are some bacteria that are associated with chlorophyll production, and looking that up, it comes from some different species of plants that have red and brown coloring. And that prompted her to look up chlorophyll (she says chlorophyll here – but I think she’s getting them mixed up – again – I think she meant to say chloroform here.) because some species of algae because some species of seaweed and algae and stuff produce chloroform.

Again – crock of shit. Why?? Because number one – this is the bitch that can’t remember details from the days and weeks after her granddaughter went missing – remember the whole “Oh I remember now because I changed my meds” thing? But she remembers in detail what colored flowers of algae and seaweed produce chloroform and chlorophyll three years later? Hell, I looked up the side effects of Paul’s new meds last week – fuck if I can remember what the medication was – or what the side effects are. Do you think I’ll remember three years from now what they were? Number two – why look up chloroform and chlorophyll because “seaweed and algae” produce it?? Didn’t she say she was concerned about her dogs eating something that was making them sick? Where the hell are they eating seaweed and algae in her backyard? They don’t live on the fucking ocean. That would be like Paul saying “I have a stomach ache” and me telling him “pregnancy can cause that – maybe that’s what you’ve got.” It’s fucking IRRELEVANT. It’s not germane to the issue. Just like looking up “seaweed and algae” because your dogs might be eating plants that make them sick.

Baez then asks Cindy how she knows she ran these searches in March, 2008. She says because she also ran a few other searches at the same time, there was a scare about using hand sanitizers around small children, it was in an email that went around her work. One of the nurses sent it to her knowing that Caylee could be affected. “And that scare came out in March”. Ummmm……no it didn’t – that scare came out in May of 2007. There was a Fox News Report on it at the same time. She says at the same time that she was looking up the stuff about he dogs, that she was looking up the ingredients in the hand sanitizer – “alcohol”. (Again – she’s a nurse and she has to look on the internet to see what “alcohol” is? But, then again, these are the same people that google “shovel”. I guess googling “alcohol” is no big deal.) But she says she was googling stuff she had in the house – like acetone, peroxide, rubbing alcohol.

Baez asks if she ran any other searches – ones that might have to do with injuries. Yes, she says a good friend of hers was in a car accident and had multiple head and chest injuries and she was looking up specific terminology that someone was asking her to look up (Really??? She’s a nurse and she has to look up “specific terminology” related to head and chest injuries?) She doesn’t have access to the internet at work (Sucks if you come in with chest and head injuries – I guess they won’t be able to google for the correct terminology to diagnose you.)

Baez says that it’s interesting that she brings up work – because they have her work records in evidence, and it seems that Cindy was at work on these days. She says yeah, but she would take days off during March because of important holidays in that month (St. Patricks’ Day?) Baez says “why would the work records show that you were working?” And Cindy says “it was an error, her supervisor might have just filled out her time card for her if she wasn’t there. “ Which makes no sense. Supervisor: “Oh! Cindy isn’t here today – let me just fill out her time card for her – and mark her as here…”

Cindy says that she was salaried at the time, so she would falsify her actual hours worked daily because she was not allowed to show overtime. So some days she would mark eight hours, even though she only worked four, to make up for other days when she worked 12.

Baez then shows Cindy a picture of the trunk of the Sunfire, She identifies it. She and George bought the car in 2000 – for Lee. Lee and George drove it. They bought it for Lee when he was a junior in High School. He drove it until 2005 – then it was passed on to Casey.

She then identifies a stain in the trunk and says that this stain was there when they bought the car. (George testified it was a new stain – that he did all the detailing on the car and he had never seen that stain before.)

Cross by Burdick. (I hope she brought all those questions that Cindy couldn’t remember the answers to before. Seems her memory has improved greatly.)

Burdick asks her if it is her testimony that despite the fact that her work records show she was working on March 17th and March 21st that she was actually home between the hours of 1:43 and 1:55 pm on March 17th. Cindy says it’s possible, yes. No, Burdick doesn’t want to know if it’s “possible” – she wants to know if she was. Cindy says if that’s when those computer “entries” (her word) were made, then she was home. During that week was Casey’s birthday and her anniversary, and she did go home early a couple of days.

Burdick asks the witness if, even though her works records establish that she was working, it is her testimony that she was home on March 21st between the hours of 2:16 and 2:28 pm. Cindy again says “It’s possible” and Burdick again says, no, were you home between those hours. Cindy says that nothing triggers anything to make her remember that day – except for the computer searches. She says if she had access to her work computer – she could tell you what time she went home (And don’t even THINK the state isn’t sending someone right now to get that computer and analyze it.) Burdick asks Cindy if she has looked in the last three years and seen what time she went home on those dates. Cindy says she has not gone back to work since July 15th, 2008. Burdick asks if they still exist and Cindy says yes. Burdick asks if she could have gone back if she wanted to and asked what time she went home on those days – even though her work records say she was working. And Cindy says no, she couldn’t have. And Burdick says “Why? They won’t let you in the door?” And Cindy says no, that’s not the reason. The reason is because she had a working password and she was an employee and only she would know through her emails what time she left. (And if she thinks that IT doesn’t know her password – she’s outside her mind). She says that no one else knew her password and she’s sure all that stuff is (she hopes) lost by now. Burdick gives her a dismissive look and says “you’re guessing…” Cindy tries to talk over her and say “No! I’m not guessing!” But Burdick talks over her, as well, and repeats “You’re guessing.”

Cindy is allowed to finish her answer and she rambles on about how if she’s not there to put in a new password every 30 days…I don’t know, I guess it’s like Mission:Impossible and the whole system implodes or something. She goes on about how it’s “against policy” for even her supervisor to know her password, so no one would be able to save the world and enter the super sekkrit password. But, I’m telling ya, from experience, IT has access to her password.

Burdick asks if her company regularly backed up her emails, and Cindy says some foolishness about email having memory that only lasted so long. And it depended on if they deleted them or not how long they lasted. I think Cindy is confusing “space” with “memory”. And if she wasn’t there to fill up the mailbox with more emails, seems to me the ones that were there would stay forever. As long as you had the sekkrit password, of course.

Burdick counters this with the fact that Cindy knew as early as August of 2008 that these computer searches were an issue. Cindy says no, the first tie she knew of these searches was when Detectives Melich and Allen came to her house asking if she knew why Casey might have performed these searches. Burdick wants to know when that was. Cindy says that was prior to Casey’s arrest on check charges. (Ummm….hold the phone – she’s a defense witness right now. Open the door much??? The state can now bring up her prior arrests, you know.) Burdick says “OK – this would have been in September of 2008. But you didn’t tell them that you made those searches?” Cindy says that she told Law Enforcement. She says “In fact, I told you I made those searches in my 2009 deposition.” Burdick says “No, you told me in your deposition that you searched for chlorophyll.” And Burdick says that Cindy spelled chlorophyll for her. Burdick asks if Cindy remembers denying that she made any searches for”How to Make Chloroform” Cindy says she didn’t look up “How to Make Chloroform” she just looked up “chloroform”.

She says she looked up Chloroform, not “hoe to make chloroform” and when you look up chloroform it tells you what the chains are. (I have no fucking idea what that means. WTF are “chains”?)

Burdick says “You have testified, in the past, that you looked up chlorophyll, correct?” Cindy says “Correct – at the same time I looked up chloroform.”. Burdick says that Cindy suggested that Google search asked you if you wanted to change the spelling of chlorophyll when you searched for it, because you spelled it wrong. Did you enter into the google search engine HOW TO MAKE CHLOROFORM?” Cindy says she does not remember entering those words in – but she does remember googling chloroform. And she remembers talking about it with Burdick in her deposition. Burdick asks her once again if she typed those exact words in the google search bar. Cindy again says she “doesn’t remember typing that in – but she googled chloroform.”

She says she did not search for “self defense”, “household weapons” or “neck breaking”, although she does remember a youtube video pop-up that showed a skateboarder on a turnstile and the caption said a “neck breaking feat.”

Burdick asks Cindy if this is stuff she’s remembering now, since she changed her medication in July 2009.

Burdick asks if she looked up the word “shovel” Cindy says no, she wouldn’t need to look up the word shovel (but she needs to look up the word alcohol…) Burdick asks if, on March 17th, if she looked up the word “inhalation”. Cindy says “probably.” She again says she searched for alcohol, acetone, peroxide, hydrogen peroxide….and Burdick asks again if this is all stuff she’s remembering sine changing her medication. Cindy says no, she always remembered it, because of the email that she got regarding the hand sanitizer.

Burdick asks Cindy what browser she uses. Cindy says “I’m not even sure what you are referring to….”– but this is someone who knows how to delete a search history – and ummm….yeah – why would she delete these searches is they were all so innocent. Someone had to manually go in and delete them, it wasn’t automatic. And the look Burdick gave Cindy kind of said that, too. “Really, lady?? And you deleted the history?”

Burdick asks her which profile she uses,, and Cindy says that the desktop was left on 100% of the time, it was rarely shut down, when you wanted to go on the computer, all you had to do was refresh it. Burdick asks her if she knows that there are 2 profiles on the desktop – User and Casey. Cindy says she didn’t realize that – and that‘s not the way she would log on – she never had to enter a password.

Burdick then asks if she searched for “making weapons out of household products” – she didn’t. And “”chloroform habit” – she says she’s never heard of this one. “Chloro2” – she says she doesn’t remember – she knows there’s chlorophyll 1 and 2.

Burdick asks if she was on – Cindy says “all the time”. –she doesn’t know. – she says she doesn’t know if it came up that way. Burdick then asks if she was on this website 84 times. She says she was on it several times. Burdick asks again “were you on that website 84 times?” Cindy says she doesn’t know. She says that you would need to go to the chlorophyll website and see how many times she was on that and compare it.

Burdick asks if Cindy searched chlorophyll 84 times to see the effects on her animals. Cindy says she didn’t do 84 searches of anything but she doesn’t know what her computer does while it’s running. (And don’t you hate that – while your computer is running and it makes these random google searches for ‘how to make weapons out of household products’. I know that always freaks me the fuck out. Damned computer.)

Burdick then asks Cindy if she had a MySpace account in March of 2008. Cindy says she didn’t. Which is rather odd, considering that all this chloroform and neck breaking searching was happening in between trips to MySpace. It was like “search for chloroform – go look at pictures on MySpace – search for “neck breaking” – log into MySpace – look at pictures on Photo Bucket – search for chloroform again, log into Facebook…. She and Casey must have been sitting there together looking up chlorophyll and surfing.

Burdick then shows Cindy the trunk of the car picture, and asks her where the stain was when she purchased the car. She locates it near the letter B – which doesn’t help the defense at all the decomposition stain was on the spare tire cover.

Burdick is done.

Baez is back. He want sot make sure – the password was on her work computer – not her home one. Yeah, she agrees with that. Baez then asks if she would go on after Casey used it – she says it was on all the time. She would sometimes come home from work and Casey would be on the computer and she would ask if she could get on for a few minutes. And yes, she told the prosecutor about the whole chlorophyll/chloroform thing back in 2009. This is nothing new.

Baez is done.

Cindy is excused.

The defense’s next witness is Sandra Osborne. She is a detective and computer forensic examiner. She is re-accepted as an expert witness.

She was the first computer expert to receive and examine the Anthony desktop. She is the one that found the “hit” on the word chloroform when doing the keyword search. She turned all this information over to her supervisor.

Baez hands her a disc and asks if she recognizes it. She says No, it’s not her handwriting and she’s never seen it before. It’s a disc containing the Firefox deleted internet files. He then shows her a printed out portion of the Excel spreadsheet that was generated from the Firefox deleted internet files. She says this is something that her colleague prepared –the one that actually worked on this file – Sgt. Stenger. She had nothing to do with analyzing the file once she recovered it.

Baez then asks her about her report – the one thing he can actually attribute to her. He asks her if, in her report, she says that she prepared the spreadsheet. She clarifies that in her report she is indicating that she copied the search, exported that and gave it to her Supervisor.

Baez then shows her the Excel spreadsheet displaying the deleted history data, and asks if she recognizes it. She says it is in a different format than what she exported – she can tell because her columns were compressed, these are expanded. (But he data is still the same). When the defense shows her the report with the columns compressed – she says it was Stenger’s report – not hers. She only exported the data, she didn’t put it in report format. Stenger did that.

So, Baez has no more questions. He will have to introduce this specific report through Stenger who she purports is the actual author.

The state crosses – and Burdick seizes on this opportunity to reinforce the fact that Cindy doesn’t know what the hell she’s talking about when it comes to her own computer. Burdick asks the witness if there was a password on the profile “User” on the Anthony’s computer. This witness says there was. I mean, I can understand Cindy’s confusion about that. My computer is the same way – I leave it on all the time, and yeah, there’s a password when you first boot up – but not when the computer is on, the screensaver is on and you simply move the mouse to get the computer out of “hibernation”. But we are talking Florida here- land of the storms and power surges. I can’t believe that the power never went out in the Anthony home. They had to have shut the computer off at some point. And if they didn’t manually shut it down or restart it when bad weather came around, the power surges would do that for them. Somebody would have had to have known there was a password on the “User” profile. And what that password was.

And isn’t it odd that the password was “RICO238”? That seems like a Casey thing, and since the password was set in May, and this was the password, it just all seems a little weird. It does look like someone was hiding something.

The witness is excused, and Baez wants her to stick around. He may recall her.

The defense calls Kevin Stenger. He is a sergeant and computer examiner with the OCSD. He is re-asserted as an expert witness. Baez asks him about the report that NetAnalyis generated from the deleted internet history on the Anthony computer.

OK – this is really funny – because now this witness says he’s not the one who did the recovery – Osborne is. I think they need to have them both on the stand at the same time.

But Stenger does admit that the NetAnalysis report Baez is showing him is the one generated. Baez (finally- and after a break for the witness to review the entire document) gets the month of March of that report entered into evidence.

Baez asks this witness to again go through the entire episode of asking Mr. Bradley for his help with the software that Bradley wrote for analyzing computer data. The NetAnalysis program had a glitch with displaying the correct date and time when daylight savings time kicked in. So Stenger used 2 different programs – NetAnalysis and CacheBack. He doesn’t know if these two programs generated the same number of files or the same data in their analysis.

Baez then directs the witness to a specific date in the NetAnalysis report – March 17th, 2008 at 14:16 hours. The website that is addressed at this time is http://www.sci /chemistry/ chloroform /htm. The witness says that this site was visited one time, according to the NetAnalysis report. Baez then shows the witness the report from CacheBack, and shows him the same entry. The CacheBack report says that this site was visited 84 times.

Baez then directs the witness again to the NetAnalysis report and asks him what site was visited at 14:16. The witness says there are 4 websites listed at that time. The first one is myspace.Com. It shows that this website was visited 84 times. This site is not even listed on the CacheBack report.

So according to the NetAnalysis report, the sci spot site was visited once, and MySpace was visited 84 times.

Baez then directs the witness to the time of March 20th, 2008 at 13:39 hours. The witness acknowledges that MySpace was visited 83 times the day before. Then Baez points the witness to March 19th, 2008 – the day before that, and MySpace is shown to have been visited 82 times. (He is trying to illustrate that this number is a counter – not a denotation of the times visited on one day or at one time.) Baez directs the witness to March 13th, 2008, there was an entry there that was typed for MySpace 81 times.

And there are no mentions of MySpace on the CacheBack report. The witness explains that there wouldn’t be – except for the time that it had in common with the single date that it was generated for. The CacheBack report was only generated for a single day. March 21st, 2008. So, Baez says, that report doesn’t show the natural progression of the numbers – the 81 times, the 82 times, the 83 times. It only reports on the one day – and the 84 times.

Stenger re-iterates that the NetAnalysis report was the one that had the bug in it – it was having problems with Daylight Savings Time and displaying the correct time and date. The witness testifies that the two reports, apparently, are different.

Well, now we know why Bradley named his program “CacheBack:” if you use it, you’ll want the CacheBack that you paid for it.

Cross by Burdick. She directs the witness to the NetAnalysis report and asks if the witness sees any of the google searches of March 21st, 2008. The witness says yes, there is a google search for “How to Make Chloroform”. (Well, it’s spelled wrong – Chloraform) right above the MySpace login. And the witness testifies that it wouldn’t appear this way if someone had typed in “chlorophyll”. Stenger says that he is confident that the dates and times on both reports are accurate. Burdick has the witness point out that the MySpace login and the search for “How to Make Chloroform” are 20 seconds apart. And remember – Cindy didn’t have a MySpace account.

Re-Direct by Baez – Baez asks the witness if it is true that the NetAnalysis reports shows that the searches for “chloroform” on March 21st, 2008, were the very first time those websites were visited. And they were all visited only once – according to the NetAnalysis report. And the time spent on those searches and on those sites was approximately 3 minutes.

The witness says that the CacheBack software was purchased after the NetAnalysis software, and it doesn’t have as much detail on the deleted history as the NetAnalysis report.

And then Baez makes a funny – “Not going to get your cacheback!” (I thought of that quip, as well.) Burdick objects to the sarcastic comment – and is sustained.

Baez is through.

Burdick asks the witness if it’s true that the “time spent” isn’t really “time spent” – that if someone opened a window, left it open, but opened another window, that first window could still be open and could be still being viewed. The windows opening are all that is tracked – not the closing of the windows. The witness agrees that this is the way the software works. Pages could have even been printed.

Baez then asks if the report gives any indication of this “tabbed stuff” The witness says no. So whether or not a window is left open is pure speculations. And no one ever informed him that they found printed pages having to do with chloroform.

The witness is excused. The defense is done for the day and the judge sends the jury home. There are legal matters to discuss.

The sate says that the defense’s next two witnesses – Savage and Martin – have nothing to do with this case. Everything they know is stuff that has been told to them. They want a proffer.

Mason says that they don’t need a proffer – the defense will present he witnesses and the state can object as they normally do. Ashton says that from what he knows of Eric Martin – she is simply the evidence coordinator at the FBI. She receives evidence and sends it where it needs to go. She doesn’t test evidence or analyze evidence – the state wants a proffer.

Mason says that Savage will testify as to things he did in this case that the prosecution asked him to do. Martin will testify as to things she did.

Ashton is concerned that the defense wants to ask Savage about the paternity test issue. The state still asserts that this is not relevant.

Mason then offers that when an FBI has memorialized in an email that when they are asked about photographs that instructs to create a murder weapon with tape and they respond “We’ll just tell them we didn’t take the pictures” that this questions the integrity of the entire case. (I have absolutely no idea what he’s talking about. What he said doesn’t even make sense.) Mason says he can show the judge the emails.

Savage is brought in for the proffer.
He is Nickolas B. Savage. He was the lead FBI agent in this case. He was assigned to the Tampa Division. He was the Crimes Against Children coordinator.

He attended a meeting in February 2009 with the prosecutors. Mason asks the witness if, in this meeting, there was a discussion of whether or not duct tape could have covered the child’s nose and mouth. The state objects on the basis that this is work product. Mason says “Hmmmmmm….I guess it could be….” Which was really funny. The judge says sustained on the basis of work product. Mason then asks the witness what he did as a result of this meeting. The witness says “what meeting” and Mason says “the meeting we can’t identify now because of the sustained objection”. Mason then asks if, after this meeting the witness went out and tried to find some photographs for the prosecution. He says he did – he went and coordinated with Karen Cowan, who had daily contact with the lab. The witness made a specific request of the medical examiner’s office to obtain photos of the duct tape with scales. (One of the requests he made was to Erin Martin – so now we know what she is here to testify about).

Mason asks if the witness remembers why he made that specific request. The witness says he asked for them because he didn’t believe that they had been taken up to that point and he wanted pictures with scale.

Mason asks if he then got a responding email from Erin P. Martin of the FBI. The witness says no. Mason wants to show him the email, but Ashton points out that this witness was not a recipient named in the email. Mason says he will ask the witness if he’s seen the email, and says that is why he has Erin Martin here.

The witness says he recognizes the email. The defense showed it to him before. HE then reads it and says it’s the first time he has sent his email – it wasn’t the one shown to him before.

Which shuts Mason down. He has no more questions.

Ashton gets up and says “I have no questions right now – I’m not sure what counsel thinks is admissible in that.”

Mason says “Well now I want Erin Martin to come in for a proffer,.”

So they send Savage away and call Erin Martin. She is the request coordinator at the FBI. Mason asks if she remembers sending Karen Lowe an email back in February of 2009. She says not specifically, no. Mason shows her the email. She says she sent it. She then reads it. It has to do with her not feeling comfortable sending measurements to Savage, because the ME’s office didn’t take pictures of the tape on the skull.

The judge asks about Mr. Savage – what does his testimony prove or disprove dealing with a material fact. Masons says that the material fact is the murder weapon. Ashton has tried to create one by saying that the duct tape is the murder weapon. He made a specific request to get photographs to try and create one instead of getting the actual tape itself and trying to see what the evidence proved. He had Savage request photos with scales on them from the FBI lab. The response he gets back is “we’ll just say that we don’t have the pictures”. Mason says that, to him, this is pretty outlandish. And this should have been given to the defense as Brady material. The state was trying to create evidence.

Ashton stands up and says that this is an attack n the prosecution – saying that the prosecution has done something wrong. And even if that were true it still wouldn’t be admissible. Attacks upon counsel are specifically prohibited. Ashton says that he thinks if counsel would read the email more carefully, that he would see that this is an email form an attorney (and Ashton is flattered Mason thinks that he thought of this scheme – he didn’t, but he thanks counsel for thinking he thought of it.) And this attorney is simply trying to see what evidence was available. But Ashton says this is clearly not relevant to this case and should be excluded.

Mason says he isn’t attacking a prosecutor – he’s attacking the whole system. (haha).

The judge says that the testimony of Savage doesn’t go to disprove any material fact. If this testimony went to prove fabrication of evidence, then this would be the subject of a motion to dismiss based on prosecutorial misconduct, but there is no evidence of that. This particular evidence does not go to any material issue or fact.

The state makes the same argument with regards to Erin Martin. Her testimony is strictly hearsay.

Mason says the defense made a motion for mistrial with regards to the animation image that the state entered into evidence. And that’s the very issue this evidence goes to – they didn’t have the tape measurements on the skull and they tried to fabricate them.

Ashton says it’s no surprise to anyone in this courtroom that the state didn’t have the measurements of the three pieces of tape together. The defense has known that for three years. Ashton is not quite sure what counsels objection is to that.

The judge says Martin’s testimony isn’t relevant, either.

And the court stands by its ruling. It’s not relevant based on the proffer.

Baez says “Have a nice evening”.


6 Responses to “Falling on the Sword”

  1. Magret said

    I am sorry to say that Cindy’s recollections as to previously giving her chloroform testimony to the prosecution were correct, and are written up in the transcript (second part of transcript, page 152:5, :11, :18; page 154:19, :21, etc. there’s an index of words that includes chloroform so you can search for it.

  2. Kay Dacy said

    Something you said in “Falling on the Sword” is an absolute classic! That is: “This family puts the “fun” in “dysfunctional”. Great job Kim.

  3. Kim Rock said

    And I’m sorry that Cindy is still telling lies for her daughter. On another note…although I’m not a Canadian, I was hoping to see a picture of the swing set. I hope Candace is enjoying it immensely! You and Paul are the bomb, Kim!

  4. caroline said

    Kim, I am astonished at your legal acumen AND sense of humour! I have been an avid reader of your trail blogs for years now and I am continuously amazed at your ability to hone in on the most minute of details. I also thought Cindy’s testimony concerning the searches was bogus. i also don’t believe Lee’s crocodile tears (which I must say I am gleefully awaitng your recap).

    I have to ask, your legal knowledge is so vast you must have worked in that field at some time, Lawyer? Paralegal? Inquiring minds want to know!

    I also enjoyed the pictures….Please don’t ever desert your loyal blog readers again!

  5. Sean said

    Yeah, corporate email is pretty much there forever. Even if you delete it, they keep it forever. And IT does indeed have your password. Also, many businesses use the computer to clock in etc., so if her supervisor did her timesheet, they must have had her password.

    When you are talking about organic compounds, it may be important to know what the chains are. Chains are how the carbon atoms are linked together. Chloroform has only one carbon atom, and a nurse would know that, the root of the name “form” refers to a one carbon atom compound, like Formic acid, Formaldehyde and oh, I don’t know, maybe Chloroform.

  6. Kathy said

    Who is the “kid”? Did you adopt?

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