Hark the Judge Reserves a Ruling

Yesterday, a hearing was held in courtroom 19D, four flights down from the main attraction on the 23rd floor. That courtroom is undergoing renovations at the moment. 19D is familiar because that’s where Judge Strickland held many of the hearings while bench pressing Casey Anthony and her many motions, too many to repeat here. What’s interesting to note is that he did the bulk of the work, meaning that he heard and ruled on the majority of motions filed in this case so far, # 2008-CF-015606-A-O.

I generally leave about an hour-and-a-half before the hearings are slated to start. That affords me plenty of time to arrive and relax or mingle with others for awhile, where we can discuss what we expect to hear in the courtroom. I’m certainly glad I left early yesterday because I usually drive down 17-92, Orlando Avenue, and hang a right onto Orange in Winter Park that takes me right in front of the courthouse. As bad as the economy is right now, you never would have known it by the heavy amount of traffic I had to deal with. Either people are wasting $3.00 gallons of gas driving around, or they are doing some serious Christmas shopping, which tells me it’s not as bad out there as we are led to believe. My less than half-hour trek took forty-five minutes, but I did arrive early enough to talk to a couple of deputies and to go to the 23rd floor to take a look around and sneak a picture in. Please don’t tell the court I did that.

Click to HERE enlarge

I ran into Attorney Ann Finnell before going down the elevator, and let me tell you, she is one fine lady. We had a nice chat about traffic and her drive from Jacksonville, which was very similar to my story. Lots of cars everywhere. That leads me to a wonderful person who traveled from the frigid north to spend Christmas on the west coast of Florida. I’m reminded of the old saying that caught me off guard when I first moved here in ‘81 - SOLD COAST-TO-COAST, only it really meant from Cocoa Beach to Tampa, or something like that. Growing up in New Jersey, coast-to-coast meant NY to LA. I was very pleasantly surprised when she walked up to me. I’d tell you who she was, but there are nasty, nasty trolls out there. Needless to say, it was a wonderful experience and I’m extremely happy to have met her.

On the 19th floor, a gentleman called me over to introduce himself. I’d like to share his name, too, but he doesn’t need the riff raff, either. Although he doesn’t always agree with me, he said I’m an excellent writer and to keep it up. He said that he’s more of a Hinky-Blinky guy and I said that’s great. Everyone is entitled to an opinion and who they like to read. The mere fact that he enjoys my writing is plenty enough for me. He then called his wife over and introduced me. It was a nice encounter.

We entered the courtroom and Chief Judge Belvin Perry made an entrance right around 1:30. Before the hearing started, my friend, who drove to the courthouse from the west coast, mentioned that the judge was late at the last hearing. I told her it was because Casey was late. A judge never starts without the defendant. After Judge Perry took his seat on the bench, he asked to hear the first motion dealing with sealing the penalty phase witnesses. As Ann Finnell walked up to the podium, I took a quick head count. Absent from the courtroom were Cheney Mason, Linda Drane Burdick, and Frank George. She opened by asking the court to temporarily stay access to the list of penalty phase witnesses. “Judge? We are simply asking, in this case, that penalty phase discovery… that the public be temporarily denied access until the issue of the penalty phase becomes a right, which would be after a jury has determined Miss Anthony’s guilt… or not guilty of first-degree murder.”

She said that there’s no constitutional right to pretrial publicity, especially if it would deny the defendant’s right to an impartial jury. She noted that the court had already agreed to a jury coming from a different county due to the immense publicity. To back up her motion, she emphasized that only the witnesses expected at trial were mentioned in public, and to “out” potential penalty phase witnesses would prejudice the jury. It is the trial judge’s duty to minimize publicity. The bottom line is, she asked the court to deny penalty phase discovery until after the jury decides whether Casey is guilty or not. Plain and simple.

I understand the request because it could be legally argued that it’s like putting the cart before the horse. In the 1966 case that overturned Dr. Samuel H. Sheppard’s 1954 murder conviction, the U.S. Supreme Court noted that his trial generated so much publicity, it was a veritable media circus. Set in Cleveland, the jurors were exposed to intense coverage until they began deliberations. Found guilty, he spent ten years in prison before the court ruled that the publicity deprived him of his right to a fair trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). He was acquitted at his second trial.

Ms. Finnell brought up a 1988 ruling. Finally, a case study! In that case, Florida Freedom Newspapers, Inc. v. McCrary, was ruled in favor of the defense by the Florida Supreme Court. The separation of powers within the legislature and the judiciary’s responsibility of providing a fair trial allow the court to, on occasion, step around the laws of the legislature in order to ensure a defendant’s constitutional rights and freedoms. Florida Statute 119.07(4) grants the court the right to close a part of a court file. She told the judge that this case was a fly speck compared to the national exposure the Anthony case has garnered.

Nine minutes into the hearing, she was finished and the judge asked if there was a response from the state. Assistant State Attorney Jeff Ashton said no, so Rachel Fugate arose and walked to the podium. Ms. Fugate, who represents the Orlando Sentinel and, by default, all of media, acknowledged that there could be prejudice, but the defense must demonstrate it to the court first. She cited the McCrary case as the standard which gives the court the right to temporarily seal the penalty phase witnesses, but she emphasized that a prejudice must be shown to the court.

While explaining her side, defense attorney Jose Baez stood and apologized to counsel (Fugate) for breaking in. “I would ask that the court instruct the photographer in the room to not photograph my client as she’s passing notes…”

The judge was right there and on the spot. “Mr. Baez, one counsel has the floor… She needs to object and not you…”

Ann Finnell then stood and objected.

“Well,” the judge added, “unfortunately, the objection will be noted and overruled.” Rachel Fugate continued. She felt that the release of the names of the penalty phase witnesses would not jeopardize Casey’s fair trial rights or taint jurors coming in from another county. It would not frighten potential witnesses from testifying because of all the public exposure.

Ann was allowed to counter, and she said when the media chases after counsel, down the sidewalk, for 3 minutes worth of sound bites, imagine what they will do to potential witnesses. She said the press doesn’t have the same interests as the SAO. She made a valid point.

Ultimately, the judge decided that he was going to take his time before making a decision. “The court will reserve a ruling on the motion.”

At the tail end of the hearing, Jose, Ann and Jeff approached the bench for a sidebar at the judge’s request. A gentleman sitting behind me tried to take a picture with his cell phone. That’s a no no and a deputy told him so. As the attorneys went back to their seats, the judge said he was changing the next status hearing from January 10th to the 14th since he has an out-of-town Innocence Commission meeting.  He asked Jose if he had abandoned addressing the situation with Roy Kronk and the admission of prior bad acts. Jose said he had until December 31 and the judge reminded him that he will not be near the courthouse next week. It could be heard on the 23rd. He also said he will be presiding over a murder trial the week of the third, so any issues would have to be worked out after 5:00 PM.

Jeff Ashton brought up issues over depositions of defense experts in January, particularly Dr. Henry Lee.

“Maybe Dr. Lee is not planning on testifying. There was some suggestion in his email that he might not, depending on the resolution of this issue,” Ashton said.

Apparently, costs of travel are what’s holding up Dr. Lee. The prosecutor said that he might not be testifying depending on the resolution of this issue. The defense attorney said that he would settle it by the end of the day.

“Mr. Baez, if you get me that, and whatever you need to do to get that cleared up, let’s get it to me. OK, we’ll be in recess.”

I left the courthouse with my newfound friend; new only because we had never met. We said our good byes and as I walked away, I ran into the gentleman with the cell phone. I told him that other than the video cameras, only Red Huber from the Sentinel has exclusive rights to still photography in the courtroom. Me? I can take pictures and I took some as I walked out. Plus the one inside.

§

Before the hearing began, I was discussing how the judge might rule with Mike DeForest from WKMG. He felt the judge would probably compromise and I agreed with his assessment. To me, one of the underlying factors in the case, and it reaches its claws all over the United States and in other parts of the world, is the insurmountable prejudice that does already exist. For example, I talked to Jim Lichtenstein after the hearing. On the elevator up to the 19th floor, someone (who shall remain nameless) asked him if he intended to continue making money off a dead child. This is what we face out there in the real world. Jim is a consummate gentleman and I know for a fact that he befriended George and Cindy from Day 1. He’s been there ever since. Regardless of what anyone thinks of George and Cindy, should outsiders make decisions for him over who he can associate with or not? His interest is not about money, but there’s no denying the media must be able to cover this case or you, the public, would have no access to any information whatsoever. You can’t have it both ways. He works in the media industry. The media people pay for information from the court, including TV rights in the courtroom. They, in turn, make tons of money off advertising revenues. ALL OF THE MEDIA, I might add, including the ones who ask the tough questions. That’s the nature of the business - ALL BUSINESSES. So what if one reporter is more aggressive than another? The bottom line is ratings because that’s what pays the bills.

He also mentioned something about where he sits. The person who accosted him in the elevator addressed the issue over where he sits in the courtroom. I went through the same thing. You sit where you want and it has no bearing whatsoever over which side we agree with. I told him I sit on the side of the cameras because it ticks off the password stealing trolls who broke into my e-mail accounts and a password protected page on my old WordPress blog, where up until then, it was a secure place to comment . Since they continue to try to make my life a living hell, they are going to have to put up with my face in the courtroom. I will try to be as up close and personal as I possibly can; absolutely more so from now on and its got nothing to do with fame. It’s all about the trolls who broke the law. Fa law law law law law law law law.

Nunc pro tunc no slam dunk

In Latin, nunc pro tunc literally translates into “now for then.” In other words, retroactive. Chief Judge Belvin Perry, Jr. listened to several matters brought up at the hearing held on October 29, including issues over funding that dated back to May, hence, nunc pro tunc. Four days later, on November 2, the judge delivered his ORDER ADDRESSING RETAINMENT AND PAYMENT OF EXPERTS, INVESTIGATORS, MITIGATION SPECIALIST, AND OTHER COSTS. Written in chambers, without bravado and with his usual brevity, it addresses three separate motions filed earlier by Casey Anthony’s defense.

MOTION ONE

On September 30, Ann Finnell filed the Motion to Determine Reasonable Budget for Due Process Costs in a Capital Case and Motion to Incur Certain Specified Costs. A long-winded title, indeed, that came with a short reply from the judge on each specific element. Casey had requested authorization for anticipated costs for the penalty phase, if this case ever truly reaches that stage, plus mitigation costs addressed previously in an order dated May 12, 2010 nunc pro tunc to May 6, 2010.

Private Investigator

The defense asked for the authorization of a $5,000 cap on the use of a private investigator “to provide services for the penalty phase such as locating and interviewing mitigation witnesses, documents, and other relevant evidence.” Judge Perry reserved judgment and told the defense to submit an itemized list, by November 5, of the investigative services needed to support the request. It sounds reasonable enough. After all, one of the key points the judge made at the hearing was that he was not going to write an open check.

Psychiatrist or Psychologist

Here, Casey’s defense asked for the authorization of a $7,500 cap “for services by a licensed psychiatrist or psychologist to examine and conduct forensic testing on Defendant, to render an opinion regarding cross-examination of any State expert, and if needed, to testify at the penalty phase.” The court granted this part of the motion, but set the cap at $2,500 for pre-trial services at JAC rates. Please note that this is pre-trial work and not money going to a possible penalty phase. That money will be addressed at a later date the judge left unclear. I also get the feeling the defense may be able to ask for more if needed, although there was no mention in his order.

Copying Costs

The defense asked for a $1,000 cap to cover copying costs during the penalty phase. Think Xerox. The judge gave them $500 at the approved JAC rate. When the judge asked Ms. Finnell whether that amount would work, she said it most likely would. She didn’t sigh, in other words, or beg for more.

Mitigation Specialist

Casey wanted the court to authorize an additional 100 hours for services of the mitigation specialist, Jeanene Barrett. The court granted her request in full - 100 hours to be provided by Ms. Barrett or another in-state investigator at the JAC rate of $40 per hour. That gives her $4,000 to work with at the full rate. Can she request more? Probably, but the judge wants everything to be itemized and explained.

Attorney Travel Expenses

Ann Finnell wanted a $4,000 cap for expenses she expects to incur as she travels back and forth between her office in Jacksonville and Orlando. The amount covered anticipated trips to and from Ft. Myers. George has family there. Despite public arguments over whether Jeanene Barrett has already been there, done that, it’s moot and nothing more. The judge denied the request because of JAC policies and procedures, and the earlier court ruling entered May 12, 2010 nunc pro dunc to May 6, 2010. This means the order is retroactive to May 6. No money, honey.

Travel Expenses for Investigator or Mitigation Specialist

Casey requested the authorization of a $1,500 cap on travel expenses for one investigator or one mitigation specialist to journey to Ohio to obtain records and interview potential witnesses. At the hearing, Judge Perry said to use the telephone wherever possible, and/or to try to hire someone within the state of Ohio who will work at JAC rates. That would save Florida a lot of money on round-trip airline tickets. Here, he reserved any ruling until the defense can offer reasons in support of their initial request. Explore the options first. Whatever the defense can figure out, the judge will meet with them in camera in order to shield the strategy from the prosecution.

Attorney Travel Expenses for Trial

The defendant asked the court to authorize payment of Ann Finnell’s anticipated travel expenses to attend the trial commencing in May of 2011. The judge had no choice but to deny the request because of JAC guidelines and the earlier order entered May 12, 2010 nunc pro tunc to May 6, 2010.

MOTION TWO

Motion for Additional Hours of Investigation (guilt phase)

On October 25, Jose Baez filed a motion on behalf of his client. He asked the court to authorize an additional 300 hours for in-state investigative services in order to “continue investigating the evidence alleged in the State’s on-going discovery.” Of course, this request was above and beyond the hourly cap addressed during the May 12 nunc pro tunc to May 6 approval. What he ended up with this time is not what he asked for, though. The judge granted an additional 60 hours to the tune of JAC’s $40 per hour rate. Instead of $12,000, he ended up with $2,400. For now. Although not stated in the order, the judge did leave the door open for additional funds later on, if the need arises and the defense can account for every single dime.

MOTION THREE

Motion for Clarification of the May 12th Order regarding both Travel Time and Reimbursement for Travel Expenses and Mileage of Out-of-State Experts, Mitigation Specialist, Investigators, and State Experts

This is in response to a motion filed by Jose Baez on October 25 “because the order entered on May 12, 2010 nunc pro dunc to May 6, 2010 did not specifically address the travel time and expenses incurred or anticipated for these persons. Accordingly, clarification is needed as to the authorization for payment of such costs” according to the order. The court granted this motion, nunc pro tunc to May 6, 2010, and authorized “the payment for travel time and reimbursement for travel expenses and mileage of out-of-state experts, the mitigation specialist, investigators, and state experts at the JAC approved rates and in compliance with JAC’s policies and procedures in this motion and its attachments.” In the May 12 order, ORDERS ADDRESSING MOTION TO SEAL RECORDS RELATED TO THE JUSTICE ADMINISTRATIVE COMMISSION/RETAINMENT AND PAYMENT OF EXPERTS, INVESTIGATORS, MITIGATION SPECIALIST, AND OTHER COSTS/RECONSIDERATION OF DEFENDANT’S REQUEST TO WAIVE APPEARANCE AT CERTAIN HEARINGS/PROCEDURES FOR FUTURE MOTIONS… hold on, I need to catch my breath after that one… the judge addressed many areas of the defense’s earlier motion. I’m not going to go over every aspect of it. This is merely to sort out the reason Judge Perry had to take another look at his order and why he decided to respond now. In essence, the earlier order listed the approval and caps for each individual he cited, but omitted travel expenses:

• Dr. Henry Lee - Criminologist Expert: A cap of 8 hours for in-court services and a cap of 25 hours for out services.
• Jeanene Barrett - Mitigation Specialist: 384 hours for services.
• One investigator (in-state): 300 hours for in-state services.
• One Investigator (out-of-state): 100 hours for out-of-state services.
• One K-9 Expert (out-of-state): 20 hours for services.
• One postmortem hair banding expert: 20 hours

For the following experts, caps as to the number of hours to be incurred has not been determined. Therefore, the judge ruled that they shall be approved by subsequent order:

• One forensic entomologist (out-of-state)
• One forensic anthropologist
• One forensic botanist (out-of-state)
• One forensic pathologist (out-of-state)
• One digital computer forensic expert (out-of-state)
• One DNA expert (out-of-state)
• One forensic chemist (in-state)
• One forensic chemist (out-of-state)

Also in that order, he found that the following experts were not relevant and necessary to provide Casey with adequate representation:

• Jury consultant (denied with prejudice)

I recall the judge saying at the motion hearing that Cheney Mason is a qualified jury consultant and that was enough. This was also before Ann Finnell came along.

• One additional DNA expert (denied with prejudice)
• One additional forensic botanist for consulting only (denied with prejudice)
• One additional forensic Biologist for consulting only.
• One trace evidence expert (denied without prejudice)

With prejudice is another way of saying forget about it. It’s a done deal. Without prejudice means a motion can be re-addressed later by taking on a different tack, or by rewriting an incorrect motion, or because - as is the case here - the defense needs an opportunity to decide whether Dr. Lee can provide the trace evidence services. If not, counsel could then request approval from the court for someone else.

• One taphonomy expert (denied without prejudice) to allow defense counsel to request a Rogers hearing.

In my unqualified opinion, a Rogers hearing (in this instance) may be requested if the defense’s expert opinion testimony is incomplete. Taphonomy, from the Greek taphos (death), is concerned with the processes responsible for any organism becoming part of the fossil record and how these processes influence information in the fossil record. Many taphonomic processes must be considered when trying to understand fossilization. See: Taphonomy

• One cell phone expert (denied without prejudice - to determine whether this expert is needed after the state’s expert is deposed.)

In his May 12 order, the judge granted a cap of $3,500 for the costs of public records requests and denied all travel costs incurred by defense counsel, meaning attorneys only, but it didn’t address travel costs for experts. What the judge needed to clarify to both the defense and the JAC is what JAC will be held responsible for paying. In its own response to the defense motion, JAC did not make that clear. At the same time, the official JAC Expert Billing manual states that:

“Experts may not bill for time spent traveling on a case unless an hourly rate has been established by law or a court order for the travel time. Generally, travel time is not reimburseable.”

In this case, the judge did not establish an hourly rate, but the JAC manual does address a mileage rate for reimbursement of $.0445 per mile when out-of-county experts travel more than 50 miles. Will the judge set an hourly rate for the experts’ travel time? The order did cite attachments, which were not released to the public as far as I know. The answer may be in those documents.

Personally, I can’t imagine a better judge when it comes to knowing law. And I wouldn’t hold my breath if I were the defense, expecting him to flub somewhere down the pike. As much respect as I have for Judge Strickland, Judge Perry has a clear docket, and that translates into one important thing: He’s got more time on his hands to make sure this case is handled by the book. That means less things to consider upon appeal. Of course, that’s only if Casey is convicted. Meanwhile, stare decisis et non quieta movere.  The defense must maintain what has been decided. In other words, it cannot alter the legal principle under which judges are obligated to follow the precedents established in prior decisions. That’s why the judge denied the defense counsel’s Motion for Reconsideration that dealt with the previously rendered denial of its motion to seal jail logs, including commissary records and telephone and visitation logs. Oh, I could go on, but that one’s for another day.

What dreams may come

Today is the day that Casey Anthony's Team of Dreamers rolls into town to inspect evidence the defense hand selected. Judge Belvin Perry had set a deadline date of last Thursday to give the prosecution and the Orange County Sheriff's Office their wish list of evidence it wants to see. Interestingly, B&M (Jose Baez and Cheney Mason) bypassed the Orange County Clerk of Courts and turned this list of receipts over to Judge Perry's office. The judge was on vacation last week and the defense must have been aware of that fact. What it expected to gain by the maneuver is somewhat of a mystery, but the odds on bet is on keeping the receipts away from public inspection. Both the prosecution and defense have until 4:00 PM today to file motions if they are opposed to the release. The chances the prosecution would file a motion like this are out of the park, and if the defense does, bet the farm league that this will be one more motion it loses. The list will become another part of the public record.

Let's take a look at the Team of Dreamers as they find their way to Orlando and the Orange County Sheriff's Office on west Colonial Drive. In honor of tonight's MLB All-Star Game, let's call them the Field of Dreamers who are coming to bat for Casey. Judge Perry will be the umpire.

Play Ball!

The SAOs have home field advantage. Part of the visiting team, the B&Ms, has arrived, and on first base, we have Dr. Henry Lee, the famed criminologist/pathologist who covered the bag during the OJ Simpson trial. According to his Web site profile, he is "Chief Emeritus of the Connecticut State Police, Founder and Professor of the Forensic Science Program at the University of New Haven, Editor of Seven Academic Journals, author/ co-author of 30 books and over 300 articles."

His biography states that, "Dr. Lee’s testimony figured prominently in the O. J. Simpson trial, and in convictions of the “Woodchipper” murderer as well as hundreds of other murder cases. Dr. Lee has assisted local and state police in their investigations of other famous crimes, such as the murder of Jon Benet Ramsey in Boulder, Colorado, the 1993 suicide of White House Counsel Vincent Foster, and the reinvestigation of the Kennedy assassination."¹

Playing second is Nicholas Petraco, an associate professor of chemistry and forensic science at John Jay College of Criminal Justice in New York City. Coincidentally, that's the same school where Dr. Lee earned his Bachelor of Science degree in Forensic Science way back in 1972. According to a fellow John Jay professor, Thomas Kubic, a co-author with Petraco on crime scene investigation books, the forensic expert has spent a lot of time in the NYPD's crime lab peering through microscopes and spectrophotometers to find fibers and trace evidence the human eye cannot detect. The former police detective is now "teaching physical chemistry I (classical equilibrium thermodynamics), physical chemistry II (quantum mechanics and theoretical spectroscopy), computational quantum chemistry and general introductory chemistry. Conducting research into the application of statistical pattern recognition to physical evidence in forensic science. Also conducting research on the application of quantum chemistry to forensically important molecules."² In other words, this man is no second-string ballplayer.

At third, we have Dr. Tim Huntington, an assistant professor at Concordia University, Nebraska, and a board-certified entomologist. I guess you could say that he should be playing in the outfield since his expertise is in going after fly balls, but as a forensic expert in the world series of bugs, he studies insects and other arthropod biology as they apply in criminal matters. Usually associated with death investigations, he may be able to establish Caylee's time of death - from a defense standpoint - and whether any drugs or poisons were present. He may add evidence regarding whether any post-mortem movement occurred. This is very important.

According to his Concordia Bio, "Professor Huntington is one of 15 board certified forensic entomologists, and is a forensic entomology consultant for several law enforcement agencies. He has consulted on more than fifty death investigations spanning seven states and four countries, and is a member of the American Board of Forensic Entomology, American Academy of Forensic Sciences, Entomological Society of America, North American Forensic Entomology Association, and Nebraska Chapter of the International Association for Identification. In 2007 he was awarded the Young Alumnus of the Year Award by Concordia."³

Playing shortstop is a tag team of Dutch forensic scientists,Richard and Selma Eikelenboom, who are well-known for pioneering the field of Touch DNA. Touch DNA was so named because it analyzes microscopic skin cells left when an assailant touches a victim, a weapon, or something else found at a crime scene. It's been around for about seven years and it was the technology that cleared JonBenet Ramsey's family of her murder. Boulder police had wrongly suspected her parents. The Eikelenbooms identified full DNA profiles from parts of her clothing where the perpetrator grabbed hold of her. In another crime, with Richard and Selma's help, Touch DNA was crucial in having the murder conviction of Tim Masters thrown out. Masters became the first convict in Colorado to be exonerated due to DNA evidence, but it was actually the absence of his DNA on the victim's body that cleared him. (See also:48 Hours: Drawn to Murder)

Well, there you have it. Here's part of the line-up for the thrilling game that will be underway next season. In the field of forensics, these four came with one intent - to strike the state out. On the mound is team captain, Jose Baez. Catching is the guy with bad knees, Mr. Cheney Mason, himself. The rest of the field will follow. Until then, is this really a Dream Team, or are they playing out in left field somewhere?

♦

In Memory Of New York Yankees Owner

George Steinbrenner

July 4, 1930 – July 13, 2010

GO YANKEES!

Baez doesn’t know JAC

“Dr. Henry Lee once told me at a national association conference that he’s been known to work for a crate of oranges.”

- J. Cheney Mason at Casey’s indigence hearing

Dear Mr. Mason, as a Florida native, you are keenly aware that this state is loaded with oranges; some of the best tasting ones in the world, I might add.

Request to seal all documents from the Justice Administrative Commission

Today, I chose to watch the hearing on TRU TV and the Internet instead of making the tedious trek down to the courthouse. I’m glad I did. Money handling is not one of my stronger points. Being on time is, and so is it with one particular judge; 9:00 AM sharp!

The first thing Chief Judge Belvin Perry, Jr. wanted to discuss was Casey’s request to seal all records related to the public funding of her defense. Jose Baez opened by saying that he wasn’t asking the court to reinvent the wheel, something Judge Stan Strickland referenced at a previous hearing. Baez mentioned that limited circumstances do exist to lock up public records and it’s addressed  in the policies and procedures manual. He cited 3.216(a) as his guide. Immediately, I went to my Florida Rules of Court (State) manual and looked up 3.216(a).

In the section on pretrial motions and defenses, Rule 3.216 is about insanity at the time of the offense. Oops, wrong book, although some may beg to differ with that. Regardless, Baez argued that not granting the motion would bring a clear and present danger to Miss Anthony’s right to a fair trial and closure is essential to ensure that. He brought to light the Orlando Sentinel publishing her purchases of spicy nachos from jail and other items. He also mentioned pseudo-news media, which probably refers to bloggers and forums. I would strongly question how snack items would prejudice a jury, though.

Chapter 119 of Florida Statutes covers the area of public records. The law is quite vast and specific in granting us the right to know what’s going on, particularly when it comes to paying taxpayers’ money. An attorney for theOrlando Sentinel, Rachel Fugate, stepped up to the podium after filing a motion to intervene. She argued that the defense’s exemption motion was too broad. Agreeing, the judge decided the defense had not met its burden because the motion to seal was too vague. It would have covered a multitude of legal issues at one time. Individually, he said, the defense could readdress some of the elements. The defense can request to seal specific records on an expert-by-expert basis. He understood that some are ones the defense doesn’t want to reveal.

One of the reasons, in my opinion and that of others, including attorneys, why Cheney Mason filed the motion to dismiss Judge Strickland was due to his response to Mason’s request at the indigence hearing. He had just stepped up to the plate and expected to hit a home run out of the ball park. How, you may ask? By having the judge grant his request to keep money spent on Casey’s defense behind closed doors. Judge Strickland denied that request and made him look bad. Unfortunately for him, his temper tantrum garnered a tougher, more strict judge, one that’s not going to let one penny of the State’s money go unguarded without knowing where it’s going. Perry’s still not satisfied with where all of the ABC money, and then some, went. This is no different from how Judge Strickland would have ruled. Mason’s net gain? Zero.

Show us the money!

That led directly to the matter at hand – why the hearing was called in the first place. Just who and what does the defense want the state to pay money to? Judge Perry opened by announcing that the State doesn’t pay “full monte” for travel expenses. The JAC objected to out-of-state providers if common experts exist in the state of Florida. That sounds reasonable and with that, the door was opened for the defense to begin providing a litany of experts they expected the state to pay. A lot of the judge’s decisions were conducive to how much work out-of-state experts had spent on their studies up to this point. In other words, would it be cheaper to let someone like Dr. Henry Lee finish his work to date and continue or cheaper to hire someone in-state who would have to start from scratch? In the end, Dr. Lee will stay. He is well-known for his work in forensic science. GRANTED.

Jeanene Barrett is the Mitigation Specialist for the Center for Justice in Capital Cases. Baez said that she has spent 384 hours working on the case. That includes many hours investigating Casey’s family and old friends in Ohio, Florida and elsewhere. He stressed that Barrett has a close and personal relationship with Casey and it’s crucial to the case that this bond is kept. The judge agreed it would be less expensive and unfair to hire someone new, but the JAC attorney was quick to point out that the rate for investigators and specialists will drop from $50 to $40 per hour on July 1 of this year. GRANTED.

At that point, the wisdom of good Judge Perry shone through. He quoted formerChief Judge Susan Shaeffer of the Sixth Judicial Circuit:

“Death is different.”

Baez emphasized that the defense team will “certainly make sure we are as frugal as can be, especially with investigators.”

Moving right along, as is the case in Judge Stricter’s court, the topic turned to depositions. The judge set the cap for out-of-state depositions at 100 hours. Baez stated that he expected to do at least 400 hours in-state. No you won’t, Judge “Stricter” said, and promptly set the amount at 300 hours.

At this time, 10:30, the good judge decided to take a 15 minute recess. It resumed at 10:45 sharp.

Next up on Jose Baez’s wish list was forensic entomologist, Dr. Timothy Huntington, from Nebraska. Dr. Huntington is the Assistant Professor of Biology at Concordia University in Nebraska, where he teaches Principles of Biology, Elements of Anatomy and Physiology, Entomology, Gross Anatomy I & II, Zoology, and Community Ecology. Because he is deeply involved in his work on the case, permission GRANTED.

A request for a forensic anthropologist was GRANTED.

The defense asked to keep their forensic botanist from Colorado. GRANTED.

Baez wanted two forensic pathologists. Judge Perry granted one, and reiterated that any and all specialists will work under strict JAC guidelines. GRANTED.

Can we keep Dr. Werner Spitz? Please, please, oh pretty please??? He performed the defense autopsy on Caylee back on December 24, 2008, so most of his work is through. GRANTED.

How about a digital forensic expert from North Carolina while we’re at it? As long as over 50% of the work has already been performed and there’s a saving, sure, the judge responded. GRANTED.

At this point, Judge Perry reminded the defense that Skype can always be used to save money in lieu of travel costs. He also said that video conferencing is available through the courthouse as an electronic alternative.

What about noted DNA expert, Dr. Lawrence Kobilinsky? He is well-known as a blood, mitochondrial and nuclear DNA specialist. JAC pointed out that there are several doctors who do the same work in the state of Florida. Because his work is over 60% done, retaining him was GRANTED.

Baez then moved into lesser known avenues of specialists and experts. He requested a trace evidence expert, one who explores such things as hair and textile fibers. Judge Perry asked why Dr. Henry Lee can’t do that work.DENIED WITHOUT PREJUDICE.

Just so you know, “without prejudice in a judgment of dismissal ordinarily indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action, as though the dismissed action had not been started. Therefore, a dismissal without prejudice makes it unnecessary for the court in which the subsequent action is brought to determine whether that action is based on the same cause as the original action, or whether the identical parties are involved in the two actions.”¹

Next up, Baez talked about hiring a forensic chemist. This is almost an exclusive club with Dr. Arpad Vass manning the helm at the Oak Ridge National Laboratory. He is well versed in chemistry, physics and anthropology. Baez mentioned a doctor in Belgium, but he did say he would consult with Vass for other alternatives.

This delved deeply into the area of human decomposition. Was this the body farm, Judge Perry queried? Baez said this covered human and canine odor observations. Judge Perry said that much of the evidence was circumstantial and another expert was necessary. GRANTED.

The conversation then, naturally, turned to the issue of forensic evidence and the study of human decomposition. What about the timing and placement of the body? Here is where Barrister Jose Baez uttered the biggest $10 word of his illustrious career: taphonomy. There. He said it. Taphonomy is the study of decaying organisms over time and how they become fossilized, if they do. Paleontologists work in this field. Paleontologists study dinosaurs, which Assistant State Attorney Jeff Ashton was quick to point out they do not. The State does not recognize it, either, and a 2-prong curriculum vitae may be necessary, the judge said. In other words, he wants to see some resumés from both sides.

Baez asked for a cell phone expert. This perplexed the judge. He said the State could tell when Casey was sleeping and awake by her cell phone pings and there would be no way to determine the time of death or place by those pings. Judge Perry didn’t buy into that one and the motion was DENIED WITHOUT PREJUDICE.

Jose Baez came ready. Talk about 2-prongs, there’s the old adage about asking for everything and settling for less, but more. There’s also the one about being careful what you ask for. He expected the state to buy two Pontiac Sunbirds to determine if the same results could be achieved. No, the judge said, DENIED WITHOUT PREJUDICE.

He asked for jury consultants. Jury consultants? Linda Drane Burdick pointed out that Jeff Ashton and Frank George are jury consultants. Judge Perry said so is Cheney Mason. DENIED WITH PREJUDICE. In other words, don’t bring it up again, silly.

The defense requested a K-9 expert. This is where some barking took place. How reliable are dogs? All dogs are handled differently. What about dog logs and methods of training? How do those procedures vary from one trainer to the next? There’s already substantive conclusionary evidence. The work has been done. This is a contentious issue! Look, said Mr. JAC Attorney, since the bulk of the work has been done, put a limit on the time. OK, 20 hours max. GRANTED.

Baez spoke of the amount of money spent on public records requests from various government agencies. While the JAC wasn’t aware of any specific requests, it still decided to waive all fees. Baez said the defense had spent thousands of dollars on records. In the end, the judge set a limit at $3,500.

Some motions and requests for funds and specialists will be held in camera in the future. Perry warned the defense that he would go over the specialist’s expenses with “a fine-tooth comb.”

Cheney Mason speaks!

Some issues could be resolved without hearings, he said. Burdick responded that when the State has responded, it was an ad nauseum giant waste of time. Judge Perry said it was like blowing “smoke over the papers.” Ashton said Lyon has declined those procedures without a hearing, so it all comes back to square one. As much as the new judge is there to rule, plenty of squabbles still exist and nothing will take all of them away. These are two sides that are so far apart from each other, there’s no way everything will be settled until the jury says so.

The issue of schedules came up again. The prosecution and defense must provide deposition schedules by May 17. At the end of today’s hearing, there were a few odds and ends to be cleared up. The judge reiterated that he is bound by the rules of the JAC. Because Mason is a jury expert, as witnessed by his cases argued in front of him, and since he is working pro bono, there will be no money for travel expenses. Mason whined that his Serrano case took three weeks to find a jury. Judge Perry said we will have time to work on that. There will be 12 jurors and 6 alternates. This judge is not a fan of jury questionnaires, either.

Mason made one bold request. Actually, it wasn’t a request, it was more like a mild demand. Miss Anthony does not wish to attend the hearings any longer. She’s had enough and they are irritating her. The media hordes are making a mockery of everything she does, everything she wears. Assistant State Attorney Frank Gorge spoke up. No way, Jose, although it was Cheney. In the end, Chief Judge Belvin Perry had one more thing to say. An amended trial order will be sent out and she will not have to attend status hearings, but for all future motion hearings, the defendant needs to be present, particularly because this is a death penalty case. DENIED!

In some key areas, the defense made some headway. But would it have been different under the other judge? I would venture a strong guess the answer is no. Both are recognized for being fair. One is more formal than the other. One is more by the book. Will Casey receive a fairer trial because of it? I seriously doubt it. One thing is certain, the hearings are about to get really hot and heavy. After Monday, Tuesday and a smattering of motions, including ones that the defense is arguing over how Judge Strickland ruled, expect to see some motions to suppress evidence. They haven’t even scraped the surface yet.

One last thought on today’s hearing, and as the title suggests, Jose Baez didn’t know JAC today, but the judge most certainly did.