Freeze-Fryed in Florida

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Looking at three days of court proceedings, point and counterpoint arguments could be interpolated in terms of physics, introducing similarities and differences between matter and antimatter, in particular, matter/antimatter asymmetry, where matter particles share the same mass as their antimatter counterparts; although the electric charges are opposite, and matter dominates antimatter by the billions, thus, creating a lack of harmonious balance and arrangement.

Did you understand that? I didn’t think so, and I’m not going to go in that direction or off on any sort of tangent. Nope, no circumlocution. Well, I could, but let’s stick to the matter at hand and discuss the law instead of the testimony we heard from State and Defense “expert” witnesses. We could discuss them until our brains are fried, or we might just wait until the Frye hearing continues…

A Frye Hearing

A Frye hearing, also called the Frye standard, is a special type of motion in limine filed prior to or during a trial. Defense or State experts from fields of forensics explain their findings in court and the opposing side issues counterpoints from their own experts, stating that the reasoning behind the testing and rationale is pure junk. In other words, it’s not commonly accepted in the scientific community; therefore, it shouldn’t be admitted into evidence. The testimony should be disallowed because the testing information isn’t really based on true scientific principles. Indeed, it can be controversial at times, but is the junk pure bunk? In this particular case, will any of the State’s testimony be allowed at trial? That’s the problem facing Judge Debra Nelson. Unfortunately, testimony from one of the Defense experts was delayed and the Frye hearing was left in the lurk for the time being. The judge had to freeze proceedings because the expert was stuck on a tarmac somewhere. There was no way to continue.

Is that legal? Of course it is. While jury selection begins Monday morning at 9:00 am, questions the Defense and State plan to ask prospective jurors were turned in weeks ago. The Court has discretion over what line of query will be allowed and she will let both sides know on that morning. The line of questions will have nothing specifically to do with Frye or anything related to the issue. In other words, George Zimmerman’s defense team won’t ask about matters directly concerning what is and what isn’t acceptable scientific testimony, and what should or shouldn’t be admissible during trial. Meanwhile, the Frye hearing will continue at the discretion of the judge; after voir dire has been suspended for the day — or days. Hmm… for some strange reason, I expect to spend long days and lonely nights contemplating this trial.

The Daubert Standard May Be Coming…

We should now understand that a Frye hearing is an attempt to exclude scientific evidence. This is the standard in Florida at the moment. Come July 1, it may change if the governor signs the Daubert bill recently enacted by the state legislature. Ha! Right in the middle of this trial! Wouldn’t you know it!

So what’s the Daubert and how does it differ from Frye? In Frye:

The burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle of the test and procedures used to apply that principle to the facts of the case at hand. The trial judge has the sole discretion to determine this question and general acceptance must be established by a preponderance of the evidence. (See: The Frye hearing in Florida: an attempt to exclude scientific evidence.)

In Daubert, there are relevant factors involved in establishing the validity of scientific testimony. Daubert was amended on April 17, 2000, to include:

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

A 1993 court ruling, Daubert v. Merrell Dow Pharmaceuticals, held that Rule 702 of the Federal Rules of Evidence did not rely on the Frye general acceptance test as a basis for assessing the admissibility of scientific expert testimony. Instead, it incorporated a flexible reliability standard.

Rule 702 was amended again, on Apr. 26, 2011, and took effect that December 1:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(A) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(B) The testimony is based on sufficient facts or data;

(C) The testimony is the product of reliable principles and methods; and

(D) The expert has reliably applied the principles and methods to the facts of the case.

In Daubert, the court held that the subject of any expert’s testimony must establish a standard of evidentiary reliability based on scientific knowledge. There are five criteria articulated by Daubert:

(1) Whether the methods on which the testimony is based have been tested;

(2) The known or potential rate of error associated with the testing;

(3) Whether the method has been subject to peer review;

(4) Whether the method is generally accepted in the scientific community;

(5) Whether standards exist for the use of the method and whether the expert has followed these standards. (See: Daubert Expert)

OK! OK! Enough of the legal jargon, Dave! What’s the bottom line? In essence, Frye has to do with the admissibility of scientific evidence and Daubert deals with the admissibility of an expert witness’s testimony. Under Frye, if either side wants to introduce evidence, it must demonstrate to the court that the scientific community has reached a general acceptance of the basic methods and principles used to come to a conclusion. Except for one little detail…

[The Frye motion] is usually used to preclude or exclude scientific evidence that is not the result of a theory that has “general acceptance” in the scientific community.

[T]he conclusions reached by the expert witnesses need not be generally accepted. Thus, a court’s inquiry into whether a particular scientific process is generally accepted is an effort to ensure that the result of the scientific process, i.e., the proffered evidence, stems from scientific research which has been conducted in a fashion that is generally recognized as being sound, and is not the fanciful creations of a renegade researcher. (See: Frye Motion Law & Legal Definition)

Sound confusing? It is! Whether you like Frye or Daubert, and whether or not Daubert is signed into law by the governor, the judge will have the final say on expert testimony. Period. I have no idea how this court will rule — not at this time — nor will I try to second-guess Judge Nelson from a criminal defense or prosecution perspective. I do expect that she has taken every bit of this into consideration, though, and will rule accordingly.

Until there’s more on the matter, jury selection is coming, and that’s what I’ll focus my efforts on. Believe me, if something comes up, you will be the first to know because I will be reporting from inside the courtroom.

Cross posted at: Daily Kos

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Do I Deserve To Die Too?

When I was 23-years-old, I was arrested and charged with possession of a CDS and for being drunk and disorderly. I was with a good friend, who was also charged. CDS stands for Controlled Dangerous Substance, and in the mid-70s, that included… shake and shudder… marijuana. Holy catnip! The charges were way more than trumped up, and the arresting officer, Jack Demeo, was later fired from the Delaware Township Police Department in New Jersey and banished from ever being a cop again. Anywhere. He was bad news and a disgrace to all fine, upstanding law enforcement officers the world over. His downfall? He flashed his badge at an Atlantic City casino and asked for gambling favors and free drinks. He said he was from the NJ Division of Alcoholic Beverage Control.

The charges against me were dismissed before the trial began, but during a Motion to Suppress Evidence hearing, Demeo testified that he was professionally trained by the military to sniff out marijuana. Really? All that was found was one stubby, little roach — 2/10 of a gram — at the bottom of my friend’s ashtray. Had we known it was there, we probably would have smoked it that night and gone out for M&Ms. Skittles weren’t around in those days. As Demeo and his fellow officer traipsed us into the station, right across from where I lived in the blinking light town of Sergeantsville, I asked him what we were being charged with…

“Being drunk and disorderly,” he screamed back. Of course, we weren’t drunk and disorderly. My friend was dropping me off at home. We were minding our own business — sound familiar? As a matter of fact, the illegal substance — the killer weed — wasn’t found until we were inside the station and Demeo had a chance to run out to retrieve the vehicle’s ashtray, return, and dump it on his desk. “AHA!” he exclaimed as he sifted through the cigarette butts and held up the overwhelming piece of evidence. “I got you now.” 

Today, the whole experience is a joke, and I’ll be the first person to admit I smoked pot back in the day. But so did several of our presidents. Did they decide to start a war because they were high on ganja? Hmm… according to George Zimmerman’s defense logic, that could be the case. Think about it. George W. Bush. Barack Obama. Former pot smokers and warmongers. Bear in mind, there were no wars under Bill Clinton; not technically, and, in Zimmerman’s favor, Clinton never inhaled the stuff. Perfect evidence! Mark O’Mara and Don West may be onto something but, to be fair, impartial and to add a legal disclaimer, there’s no evidence that any president smoked marijuana while in office.

I haven’t smoked pot in 20 years, but 20 years ago, I was 40. I first smoked it when I was 16. By 17, the age Trayvon Martin was when he was shot and killed, I was a seasoned smoker, sometimes toking before, during, and after high school. I never missed a day of work because of it. 24 years later, I knew a lot about the stuff, although my interest had really waned by then. Mostly, I was a recreational user throughout the years. I was never addicted to it and it led to no other drugs. Today, it’s not considered a “Controlled Dangerous Substance” in most states, and some have even legalized its use. In my opinion, it was never dangerous unless you consider driving under the influence, but it’s nothing like booze. When I smoked pot, it was usually done with my friends, we were too lazy to drive anywhere, and we sat around listening to Moody Blues and Pink Floyd albums eating whatever food we had; like Cheez Doodles and 2-day-old pizza. The munchies. We chilled out. Never, ever, ever did we think about fighting among ourselves or with anyone else. All we cared about was was getting high and not allowing anyone to Bogart that joint.

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Now, to the matter at hand. In the DEFENDANT’S REPLY TO STATE’S MOTION FOR PROTECTIVE ORDER/MOTION IN LIMINE REGARDING TOXICOLOGY, Donald West argues:

As part of the autopsy protocol, the Medical Examiner submitted Trayvon Martin’s blood for laboratory analysis. Among the findings includes a positive level for THC and its metabolite. The active THC was measured at 1.5 ng/mL whereas the metabolite was measured at 7.3 ng/mL. This level is sufficient to cause some impairment (although it is considered to be less than that required for a DUI arrest) according to the State’s toxicologist, Dr. Bruce Goldberger. […] Dr. Goldberger opined that Trayvon Martin may have used marijuana within a couple of hours of his death or that it could have been longer than that depending on whether Trayvon was a chronic user or an occasional user.

Was I a chronic or occasional marijuana user? You can only have an opinion — depending on how you think. Are you really qualified? If I smoked it last week, would I be too impaired to write this post? Bullshit. Here’s where the reply from West gets stupid, ludicrous and just plain idiotic. Remember, my disgraced arresting officer said he was trained to sniff out marijuana. In his defense, at least he graduated from the police academy and didn’t draw his weapon on me. Zimmerman, on the other hand, never graduated anything beyond high school. (See: Records show George Zimmerman got D’s in criminal justice classes.) The Defense reply continues:

In George Zimmerman’s non-emergency call to the police, he describes the person, later identified as Trayvon Martin, as appearing as though he was “on drugs.” Additionally, on close inspection of Trayvon Martin’s physical appearance at the 7-Eleven, where he was recorded on video within an hour of his death, he “sways” at the counter as if he’s under the influence of some substance. Taken all together, it is likely that Trayvon Martin was under the influence of marijuana at the time of his death and that his thinking and judgment were impaired at least to some degree. This is relevant evidence for the jury to consider when it evaluates Trayvon Martin’s actions that night, and the jury should be allowed to give it whatever weight it believes it should.

What makes Zimmerman and West authorities on drugs? It’s a complete joke! I’m trying to be fair and impartial, but I find this to be totally disgusting and disrespectful. 

Attempting to turn pot into a viable part of Zimmerman’s defense does make me wonder about something. Have O’Mara and West ever smoked the stuff? I mean, both are around my age. A few years younger, actually, but they most certainly grew up during the Hippie pot smoking era of the 60s and early 70s. They were young once, like me. I went to college. To say pot wasn’t on any college or university campus (including theirs) is a huge lie. Did Mark O’Mara and Don West smoke pot? Did it make them feel violent? I want answers. I want the truth. At the same time, West’s reply to the State’s motion is a paradox. If he never smoked pot, he might be inclined to believe it brings on violence. Smoke that war pipe. Yet, on the flip side — and in my opinion — West could have been as high as a kite when he wrote his reply. You can act pretty silly if you smoke too much weed, you know.

Some of you may argue that O’Mara and West are not on trial here. I have no right to ask a question like that. You’re right. But Trayvon Martin is not on trial, either. Obviously, Zimmerman’s defense disagrees and I understand the tact it is taking. They have every legal right to try it, too. I thoroughly disagree, though, and I think any jury would see right through this ploy if it’s allowed to be introduced at trial.

According to the defense team’s “disjointed” argument, I could, quite possibly, deserve to die, just like Trayvon. Zimmerman and West are self-trained to sniff out evil pot users and both have built in “high” detectors. The reply document says so. Yup, and pot smokers are violent offenders, but only in Trayvon’s case. 

More to come…

Also posted on the Daily Kos. Please feel free to comment there. 

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PRICK UP HIS NOSE

There are three images just below this text. One is a photograph of George Zimmerman’s nose the night he shot Trayvon. Taken by a Sanford police officer, evidence may exist that the picture was altered in Gimp, an open source/free GNU image manipulation program that’s similar (but not equal) to Photoshop. Having spent a good part of my career in the world of graphics — art & design — I am quite familiar with photo editing software. While the information pertaining to the metadata file of this particular photograph is not new, it could be argued in court that the iPhone photograph should not be allowed into evidence. All it shows, in my opinion, is that he got hurt, so is it really worth the fight? Perhaps.

Look at the second image, which is nothing more than a screen capture of the fotoforensics Website that examined the photo. If you go to the link, make sure you click on “Metafile” located on the left side to see the data. (This information was e-mailed to me, so I won’t take any credit for finding it.)

Finally, take a look at the third image in this post. It’s my finger from earlier today. I am an insulin-dependent type 2 diabetic. Each and every day, I take a fresh lancet and PRICK my fingertip to monitor my blood sugar level with test strips that cost over $1.00 each. I do this at least twice, sometimes three, times a day — each and every day, puncturing finger after finger. Sometimes, I hit an area that produces more blood. The lancets I use are a mere 1/8” long.

Hmm… if an itsy-bitsy, teenie-weenie, tiny, little thing like that could produce this much blood, imagine what amount of damage an MMA-trained fist would have REALLY done.

 HAPPY NEW YEAR!

Watch Me on ID Investigation Discovery Tonight

 Tonight at 9:00 PM EST, I will appear on the nationally broadcast program Motives & Murders: Cracking the Case | Not Again on ID - Investigation Discovery.

In 1997, Carla Larson was murdered near Disney property, where she worked as an engineer for a construction company. Her husband became an immediate suspect in the public’s eyes (not to mention law enforcement) because of his lack of emotion when interviewed on local television stations. He was downright indifferent. However, there was much more to the story, so please watch tonight to find out why…

From the ID Website:

When Carla Larson leaves work to grab lunch, she never returns. The all-American wife and mother is discovered naked and strangled to death in a nearby swamp. The investigation stalls…until a random love triangle provides a clue to finding her killer.

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I will be featured on this program because of a two-part series I wrote and published on September 5 & September 8, 2010:

When karma strikes twice

Slowly, the wiles of justice churn

Motives & Murders: Cracking the Case will appear on the Investigation Discovery channel on Saturday night, December 8, at 9:00 PM EST. It will be repeated at midnight, at 4:00 AM, and Sunday afternoon at 5:00 PM. You can find out if your TV Service Provider carries the channel by clicking HERE and typing in your information. 

Newly elected State Attorney Jeff Ashton was also interviewed, along with Carla’s husband, Jim Larson. The interview took place in June of this year.

I don’t know how much I’ll figure into the program, but I do know about cutting room floors. In any event, it should be a very good show because I remember the crime so well. Please take a little time to read my two posts to familiarize yourself with the case.

The Heart of the Matter

I don’t think anyone will ever be able to connect  the racism dots when it comes to George Zimmerman and Trayvon Martin. The really creepy part about the two names is that they will forever be interconnected, like Abraham Lincoln and John Wilkes Booth. While not of the same magnitude as a presidential assassination, a life is still a life is still a life, and none is more valuable than another, whether red, yellow, black, white or any shade in between. We’re not talking red state/blue state; we’re talking about life and death, and it’s not a game.

Let’s take a quick look at the sad case of 45-year-old Michael Dunn. News reports say he “allegedly” fired 8-9 shots into an SUV parked at a convenience store on Friday night. I say there’s nothing alleged about it. He did it. The question is why. He said he didn’t mean to kill anyone. 8 or 9 bullets and he didn’t mean to what? The fact that he fired at all is a tragedy.

From all accounts, Dunn and his girlfriend had just left his son’s wedding reception and stopped at the Gate Food Post convenience store at 8251 Southside Blvd. in Jacksonville on the way back to their hotel room. He pulled up next to the SUV that had music booming LOUDLY. When he got out of his vehicle, he confronted the four occupants and complained. TURN IT DOWN, he screamed. An argument ensued and Dunn pulled out his gun. Some of the shots struck and killed 17-year-old high school student Jordan Davis, who was sitting in the backseat. No one in the SUV was armed, according to initial reports. Lt. Rob Schoonover with the Jacksonville Sheriff’s Office said, “They were listening to a little music. It was loud, they admitted that, but, I mean, that’s not reason for someone to open fire on them.” (See: Many unanswered questions in loud music killing)

I hate to drag Florida through the coals again because shootings happen all over the world. Texas is a great state for shooting from the hip, so we are far from alone. Taken at face value, this seems to be your typical white-on-black shooting, and in some circles, the killer would be considered justified because of two simple “reasons” — the shooter owned his gun legally and the victim was black. Or African-American, if we need to be politically correct. Need more ‘splainin’? Talk to the hand. Yet it seems that the mere fact of being white and owning a gun somehow legitimizes a killing, but only if the victim is of color. God forbid that two white boys with concealed carry permits gun each other down. That would never make the news because there’s no worthy angle, and angles are the nature of news; black/white or white/black. Just like Hispanic/Hispanic doesn’t go far. There’s no racial edge.

We may question the motives of an angry white man leaving his son’s wedding reception where, I’m sure, alcohol flowed freely. We don’t know if Dunn even had a drop to drink, but we do know that a defenseless 17-year-old boy is dead. What sort of threat could any of the young men have been to the gunman? Why, if the shooter was so innocent, did he leave the scene and return to his hotel, only to drive home to Brevard County in the morning, where he was found and arrested? No one EVER shoots up a vehicle and leaves the scene unless they hope there are no witnesses.

Dunn entered a not guilty plea on Monday to charges of second-degree murder and attempted murder. His attorney said he acted responsibly and in self-defense. Shades of stand your ground! I can see it coming! At the precise second Dunn pulled out his gun, he felt threatened.

I feel that people like George Zimmerman and Michael Dunn make a mockery of the stand your ground law, but some dynamics are at work. While its intent may be all well and good, there are idiots who interpret SYG as a license to kill. They take more than the law into their own hands because, in both situations here, the shooter was the instigator, the judge, the jury and the executioner. It seems as if people like them believe they are wearing SYG armor and are impervious to prosecution. It’s called an arrogant sense of entitlement. Go figure.

Mark my words, Dunn’s defense team will subpoena Jordan Davis’s cell phone records. If the boy owned a smart phone, the defense will collect information from it; who he talked to, sent text messages to, and where he visited online. Rest assured, if he listened to Hip Hop music, used Hip Hop text language and visited gangsta sites, like all of today’s youth, he will be painted as a no good degenerate, just like the picture Mark O’Mara will try to portray of Trayvon Martin. It’s called character assassination. This leads me to an obvious segue. Please allow me to ‘splain. Yo, Yo, Yo…

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Word on the street (and in the Orlando Sentinel) is that law enforcement has failed to download all of the data from Trayvon Martin’s cell phone, particularly what’s stored on the chip residing inside the phone. Why? Because the phone is still password protected. Tracy Martin, Trayvon’s father, knows the PIN, but he has yet to turn it over to authorities. There may be a few reasons for withholding that number, too, but what’s important to note first is that the defense does have information regarding the last few calls, according to Mark O’Mara. We’ll get back to that.

The gist of the matter is rather plain and easy to understand, but first the problem about perception. If Tracy Martin is keeping the PIN away from law enforcement, he must be hiding something, right? I mean, what else could the reason be? This would prove the kid was up to no good and deserved to be shot. George’s mission from God that night was to take out a boy who was clearly on a path of evil and destruction. Who knows how many people he would have harmed had he not been stopped right then and there; the night of February 26?

Yeah, right. How delusional.

If the Sanford police came to my door, showed me a photograph of my dead son and said he was killed in self-defense, only to find out later that the circumstances might not have been as law enforcement presented them; that my son was actually the victim instead, would I be inclined to trust them with any evidence at all? Remember, it was the Sanford police that insisted the screams for help came from Zimmerman, and when pumped for an answer to that very question at a most inopportune moment, Tracy said he didn’t think it was Trayvon’s voice. Is it? Is it? Well, is it? The man was in agony and denial at the time. What would anyone expect from a grieving father after recently finding out his son was killed and never coming back?

As time went on, it became apparent to Trayvon’s parents that the police were doing nothing to seek the truth regarding the death of their son. Things had deteriorated to the point that, on March 5, Sgt. Joe Santiago asked Tracy for the PIN, and his response was, at best, less than obligatory. He told the sergeant he’d check with his attorney. Three days later, during a March 8 news conference, Martin told the media he would not help the police because they were of no help to him. “My son left Sanford, Florida, in a body bag while George Zimmerman went to sleep in his own bed.”

What we must remember is that, while the PIN has been elusive, gaining important information from the phone has not. It was eventually sent to the Florida Department of Law Enforcement, where crime lab specialist Stephen Brenton was able to analyze the contents of the SIM and SD cards. Without the PIN, the data on the phone’s internal chip remains a mystery, but the two cards were revealing enough. From the Orlando Sentinel:

The information downloaded by Brenton at the FDLE lab “tells me the last few phone calls, but that’s about it,” [Zimmerman defense attorney] O’Mara said. “It looks like there is other information that I should have.”

This leads me right back to the heart of the matter. What difference does it make to anyone about the phone calls, text messages and Website visits Trayvon made days and weeks leading up to his death? O’Mara has records leading up to the shooting. What more does he need? Well, just like what I expect any criminal defense team to do, O’Mara’s goal will be to assassinate the character of Trayvon Martin. To what other end would it serve? That would mean Trayvon would die twice — once in real life and once in the courtroom — and if I were his parents, I’d do nothing to help the defense team. Absolutely nothing. Because everything will be taken out of context in a world where half-full becomes half-empty, and innocent texts between Trayvon and his mother could readily turn into a new and freakier Casey Anthony sideshow; where simple words become innuendo, perversions, and complete distortions of the truth. That would truly be heartbreaking.

Cross posted on the Daily Kos

Suburban Drive - Four Years After

Suburban Drive is not far from Orlando International Airport, so as I left the Gun Rights Policy Conference early Saturday evening, heading for home, I decided to take a peek at where Caylee Anthony’s remains were found. What does it look like today? It’s been over four years since that steamy night in mid-June of 2008, when her tiny body and personal effects were thrown into those woods like a bag of trash.

What I expected to find was something akin to what it looked like back then, dumped beneath a tree in kudzu infested woods, a mere 19’ 8” from the curb. From all of my trips to the site, I never sensed the spirit of Caylee, but I was aware of all sorts of vermin, like snakes, that call the place home. I never wanted to go near it at night because of what may be lurking about.

What I saw Saturday was pretty much what I expected. Soon after law enforcement, anthropologists and forensic teams moved in on December 11, the day she was found by Orange County water utility meter reader Roy Kronk, the place was rendered as bald as the top of my head, as if an exfoliant like Agent Orange had been sprayed throughout. I knew the place would take a number of years to spring back to life and I didn’t expect it to ever look quite like it did that fateful day, before investigators began their work. Mother Nature has taken back what is hers, and for six short months, Mother Nature was more of a mother than Caylee ever had.

To anyone who questions whether she was purposely killed, I will tell you what I heard from prosecutor Jeff Ashton on more than one occasion — you don’t make an accident look like a murder.

You don’t throw a precious little girl into dark and murky woods, either; dead or alive. 

Caylee Marie Anthony. Born 8/9/05. Found at 8905 Suburban Drive.

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To the right of the cross is a tree wrapped in kudzu (Photo 4.) At its base was where Caylee’s skull and personal effects were found, along with other bones. The rest of her skeletal remains were scattered over a half-mile area.

Click photos to enlarge

The Misconception Of A Stand Your Ground Hearing

Right after Judge Lester was removed from the bench, Mark O’Mara said he would likely schedule a “stand your ground” hearing sometime next year. On August 31, Rene Stutzman of the Orlando Sentinel wrote:

Nelson will now be the judge who must decide whether Zimmerman, who is charged with second-degree murder, is entitled to immunity under Florida’s much-debated “stand your ground” law, which allows anyone with a reasonable fear of imminent death or great bodily injury to use deadly force against an attacker.

Defense attorney Mark O’Mara has said he would likely schedule that hearing next year.

“It will take a tremendous amount of judicial courage at this point to throw the case out following an immunity hearing,” said Winter Park criminal-defense attorney David Faulkner. “My guess is that any judge, Judge Nelson or otherwise, is going to let a jury decide this issue for the benefit of the public.”

Of late, there’s been a lot of discussion and, perhaps, some arguments, over the difference between filing a stand your ground motion and a Motion for Declaration of Immunity and Dismissal. In essence, they are nearly interchangeable; sort of like buying a GM or Chevy vehicle. You can’t have a Chevy without GM, but it doesn’t work the other way around. Without the stand your ground law, there would be no immunity and dismissal motion applicable in this case. In other words, the important thing to remember is that the immunity and dismissal motion is based on Florida’s stand your ground law, F.S. Statute 776.032: Immunity from criminal prosecution and civil action for justifiable use of force, which states:

A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer… As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

Initially, the Sanford Police Department followed the tenets of the stand your ground statute by not placing George Zimmerman under arrest, but that act did not mean he was free from future prosecution. Now arrested and charged, Zimmerman has a right to file the immunity and dismissal motion based on the statute. F.S. 776.012 states:

Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

Right now, we will pay particular attention to 776.012(1) and whether or not Zimmerman was right to believe that firing his gun into Trayvon Martin’s chest was necessary to prevent imminent death. After all, he said he was being pummeled to death by the teen. We will ignore 776.013 because it addresses the unlawful and forceful entering of “a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle…” 776.031 doesn’t apply, either, because it covers the use of force in defense of others.

Before going into F.S. 776.012, it’s important to first mention F.S. 776.041 and the “Use of force by aggressor.”

 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Here is where some of the confusion may originate over stand your ground and immunity. By most witness accounts, and certainly something the State can clearly establish, the fight did not end where Zimmerman described. Trayvon’s body was found 30-40 feet south of the “T” joining the east/west sidewalk with the north/south one. Witnesses will testify that there was a scuffle with people running and yelling. Who was chasing whom is not relevant at this point because, once able to escape, Zimmerman chose not to. After all, he was the man with the gun. The bottom line is, he cannot prove that Trayvon cold-cocked him there at the “T” intersection. Furthermore, he cannot prove that’s where the fight ended with a bang, as he showed in his reenactment the next day. His best bet is to not bring it up at a dismissal hearing and that means the State will not be able to address it. That’s why, in my opinion, the Defense made an “adjustment” in its strategy, and it’s what led to the confusion over stand your ground and the impending dismissal motion.

At some point, the Defense realized it stood a better chance if it heeded F.S. 776.041. Where the Defense would most likely falter during a Motion for Declaration of Immunity and Dismissal hearing lays in (1) and the first part of (2) in 776.041. Why? In (1), will the Defense be able to factually establish that their client was not the aggressor, who forced himself upon the victim, therefore committing a felony? The shooting at the “T” has been debunked by evidence. The gunshot took place far enough away to establish that Zimmerman’s story is false. If the Defense goes in that direction, so will the State, and Bernie de la Rionda will have every right to do so. And, boy, will he ever!

There’s a big word in (2)… unless, and here’s where it will come into play. Let’s move south. For sure, there was a fight, and since no one can really prove who was on top and who was on the bottom, it’s important for the Defense to lay claim that Zimmerman was on the bottom, being beaten to death. I don’t believe (2)(b) will apply because there’s no testimony by the defendant that he attempted to withdraw. He will most likely assert that his mouth was covered and couldn’t speak, but if he does, the State will counter with the lack of evidence; there was no blood, saliva, or any of Zimmerman’s DNA on the victim’s hands. The Defense will not be able to prove it, any more than it will be able to prove that their client was the one yelling for help. If they try, the State will mention that the screaming stopped immediately after the gunshot while Zimmerman stated that he continued yelling for help as he spread the victim’s lifeless hands away from his torso.

Let’s try (2)(a) instead. Bingo! Here’s Zimmerman’s greatest hope. By claiming, which he has all along, that his life was in danger and that he had exhausted all means to escape, he had no choice but to shoot. OK, fine, but how did he gain access to his gun? The only way to explain it is to show the judge exactly how he did it, and the only person who could do that is George. Without taking the stand, he can’t do that because the video reenactment is too sketchy. If not that, then what’s left?

The medical records.

Yes, let’s just say that Zimmerman did have a fractured nose, meaning broken to some extent. The ARNP who diagnosed him was qualified to do so, and that’s what she wrote in her report:

1. Scalp Lacerations: No sutures needed given well-approximated skin margins. Continue to clean with soap and water dally. We discussed the red flag symptoms that would warrant Imaging given the type of assault he sustained. Given the type of trauma, we discussed that it Is imperative he be seen with his Psychologist for evaluation.

2. Broken Nose~ We discussed that it is likely broken, but does not appear to have septal deviation. The swelling and black eyes are typical of this injury. I recommended that he be evaluated by ENT but he refused.

Review of Systems:

Constitutional Symptoms: Denies fevers and/or chills.

Eyes: Denies loss and blurring of vision, diplopia.

Ear, Nose, Mouth, Throat: Admits nose pain. Denies hearing loss, tinnitus.

Cardiovascular: Denies palpitations, chest pain/pressure.

Respiratory: Denies shortness of breath.

Gastrointestinal: Denies abdominal pain, nausea and/or vomiting.

Integumentary: Admits- (Scalp lacerations).

Neurological: Admits head trauma. Denies tingling, numbness, weakness, headache, dizziness, speech difficulty, gait disturbance, loss of consciousness.

Psychiatric: Admits stress. Denies suicidal thoughts or attempts.

Nothing in that document paints a portrait of a person remotely close to death the day before. Even the Sanford Fire Department EMT report from the night of the incident showed nothing life threatening. Patient Conscious. Breathing normal. No external hemorrhaging. Mucous membrane normal. Extremities normal. Abrasions to his forehead and bleeding/tenderness to his nose. Small laceration to the back of his head. All injuries have minor bleeding. If you combine both reports, it doesn’t help the defense because Zimmerman cannot, in any way, shape or form, establish that he was remotely close to death, and if he tries, he opens a can of worms the State is going to take full advantage of.

§

Back to the matter at hand — the legalities. Enough of the medical. If Zimmerman can factually establish that his use of deadly force occurred under the circumstances outlined in the above statutes, he could walk. Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008) showed that F.S. 776.032 established a true immunity and not just a justification for what he did. According to the Jacksonville law firm, Hussein & Webber’s website:

The Court stated that, when immunity under the law is properly raised by a defendant, the trial court (at a hearing) must decide the matter by confronting and weighing only factual disputes.  Petersen held that a defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches. Unlike a motion to dismiss, the trial court may not deny a motion for immunity simply because factual disputes exist.

The main issue in this case will be whether or not Zimmerman will be able to show enough evidence to establish immunity. Once again, I must reiterate what I touched on in The Prince and the Pea: Subjective or Objective Fear in the Petitioner? Was Zimmerman’s fear subjective or objective? Was he correct in fearing for his life or did he just panic? That’s the difference, and there’s a huge distinction between the two and whether or not immunity applies. Of course, there’s one more thing that could only be brought up at trial; did George Zimmerman shoot Trayvon Martin in cold blood? For that reason alone, and for the lack of evidence showing “by a preponderance of the evidence,” Mr. O’Mara had better be preparing his client for trial. I see it no other way.

Cross posted on the Daily Kos

Zimmerman Needs More Than Help

From very early on, something just didn’t seem right about George Zimmerman and his gun. It wasn’t one thing, either. It was a series of things, but one stuck out like a sore thumb. Zimmerman is left-handed, or so he claimed when handed a pen by an investigator with the Sanford police while being questioned in one of the interrogation rooms. Why, being left-handed, did he reenact the shooting using his right hand? Twice! That’s one puzzle I may be able to answer, but at the same time, it opens another one.

There are also questions about his confrontation with Trayvon Martin and how the gun came into play. Why wasn’t Trayvon’s blood on Zimmerman’s clothing? Why was there no gunshot residue on Zimmerman’s firing hand? Who or what inflicted the injury on the upper right side of his nose?

One of the questions I’ll answer is in response to something posed by ecossie possie on the previous post simply titled, The Kel-Tec PF-9. Could it have been a burn from the shell casing? I responded that I seriously doubt it, but that I would check with someone who knows.

I have a very close relative who is a major in the USAF. He did one tour of duty in Djibouti and two in war-torn Iraq. He is an avid gun collector and his personal “arsenal” is second-to-none. No one would ever question his credentials as an authority on weaponry, including pistols. To emphasize that point, he owns a Kel-Tec, but it is a model that’s a few notches up from Zimmerman’s. 

I told him I had never heard of anyone being injured by a shell casing as it ejects out of the chamber. There isn’t enough velocity. He agreed, but before I could ask him if he was aware of anyone being injured, he said he had gotten a nasty burn on his face from one. But it only touches you for a split second, I responded. He said that casings are extremely hot and one only needs to touch you for a split second to burn. So… to ecossie, you are correct, Sir. It can cause a burn, but the odds are very low that it will hit you in the first place.

I asked him if the recoil of the gun or the back movement of the slide when fired could inflict harm, and he said he doubted it. “Only if the gun is very close to the shooter’s face to begin with.” I guess that means it’s possible, but highly improbable. In this case, who knows?

What about blood splatter? Why wasn’t any of Trayvon’s blood on Zimmerman’s clothing? He knew the answer right away. The blood coming out of the wound was quickly absorbed by his clothing. We know that Trayvon was wearing a light grey Nike sweatshirt (ME-8) and a dark grey Fruit of the Loom hooded sweatshirt (ME-12). That’s two barriers that absorbed the blood. 

What about the lack of gunshot residue on the hand that fired the gun? Could this mean that someone else was involved? Of course not. In the case of a revolver, the drum holding the bullets revolves each time the gun is fired. The “silo” that holds each bullet is open on both ends. As the bullet fires, the drum rotates to the next bullet and, like a rocket, emits whatever is left out the back end, causing residue on the hand in the form of spent gunpowder, gunpowder that wasn’t ignited, metal flakes and possible burns. In the case of a 9mm like Zimmerman’s, the slide most likely prevented residue from shooting out the back because there was no escape route. Whatever there was got ejected with the spent shell casing, out and up the right side.

My source is familiar with the type of holster Zimmerman had. If you look at the above photograph, you can see the Velcro. What you cannot see is the Velcro on the other side and the metal clip that holds it to his waistband. The clip slides over the waistband and the holster is worn inside the pants, between the pants and underwear. That’s what keeps it from shifting around and, most of all, conceals the gun from view. The following photograph shows Zimmerman’s holster with the clip attached. It would be way too flimsy to wear on the outside waistband because there’s no strap or any other barrier to hold the gun in place; nothing to keep it from falling out of the holster. I realize he’s left-handed, but there’s a good possibility he’s ambidextrous, meaning, he could shoot the gun with his right hand. With this in mind…

In his on-scene reenactment the following day, Zimmerman demonstrates how he pulled the gun out of his waistband and managed to shoot Trayvon, but his explanation is next to impossible to perform. Study the next picture. It looks plausible, but it’s not. At this point, he has the gun pulled and he’s trying to position it to fire. His left arm represents Trayvon’s. He’s showing the investigators how he pinned Trayvon’s arm under his and was able to contort his arm enough to pull the gun out of its holster. In real life, he would have to have bent his elbow, but in his world, he did not. Somehow, he managed to keep Trayvon’s arm locked tight, pull his gun, move his arm into position and fire directly into his victim’s heart. What incredible aim!

Let’s just assume for a second that Zimmerman played The Amazing Rubber Boy at carnival sideshows around the country and this is the truth. OK, downright impossible, but let’s give him the benefit of the doubt. Wow, maybe he’s a hero after all. Except for one small, but incredibly huge detail. You see, Zimmerman admitted that he wore his holster on his back right hip. The next photo clearly shows where it was as he described it to investigators. It appeared to be above his back right pants pocket.

This is extremely problematic for two reasons.

• He had to partially lift his right backside (that means butt cheek, folks) in order to pull the gun out of its holster. That’s tough to do with someone sitting on you.
• If this is true, as his very own testimony to police demonstrates, there is absolutely no way that Trayvon could have seen that gun if it was holstered, unless he could see through belly fat. This basically proves that Trayvon never spotted the gun to begin with during this ‘so-called’ wrestling match and never went for it, or else it’s the obvious. He did see it because Zimmerman had it drawn all along.

This leads me to one final thought to ponder…

Near the end of his reenactment, Zimmerman tells the investigators that after he shot Trayvon, he continued yelling, “Help me! Help me… I need help,” as he spread the dead boy’s arms out and away from his body. 

By now, we know that Trayvon’s arms were beneath him when authorities arrived. Most importantly, we know from listening to the 911 recordings and from witness’s testimony that once the shot was fired, all screaming ceased immediately. There were no more cries for help. It was Trayvon’s cries we heard. 

Blackfields & McWhites, Part 1

“FBI may charge George Zimmerman with hate crime”

That was the heading of an online story published at the WFTV Website on Monday, May 14, 2012. WFTV-Channel 9 is the ABC network affiliate located in Orlando. The opening paragraph was very revealing in the sense of what it failed to do. It revealed nothing new or, for that matter, particularly newsworthy.

SANFORD, Fla. —  WFTV has learned charges against George Zimmerman could be getting more serious.

State prosecutors said Zimmerman, a neighborhood watchman, profiled and stalked 17-year-old Trayvon Martin before killing him, so the FBI is now looking into charging him with a hate crime.

What’s so strange about this kind of journalism is that it fuels the fire. It’s called baiting. While starting the article with a leading statement, WFTV has learned, it offers nothing new beyond what we didn’t already know. What, exactly, did WFTV learn, and what does the word could mean, as in the charges could be getting more serious? THAT’S NOT NEWS! IT’S GUESSING! The article later adds a revelation:

FBI investigators are actively questioning witnesses in the retreat at the Twin Lakes neighborhood, seeking evidence for a possible federal hate crime charge.

Of course they are! That goes without saying. If the FBI is investigating any crime, agents from the bureau routinely interview everyone in sight of the crime. And everywhere else, for that matter. The remainder of the story is nothing more than superfluous fluff, a term I last used early in the Casey Anthony case — long before the trial and, quite possibly, while critiquing another WFTV piece. You see, soon after I began writing about Caylee and her mother, I was reminded of how biased the news could really be. In college in the 1970s, I wrote an article, An unbiased look at news slants that explained how it’s done every day. I’ve republished it over the years (with improvements) and it’s an easy read. It describes how simple it is to write a news story in a manner that subtly offers an opinion.

While attending most of the Casey Anthony hearings beginning in October, 2009, I got a lot of advice from many of the local journalists covering the case. They were familiar with me and my work. It wasn’t just advice, though. There were rumblings going on in O’do, the unofficial slang word for Orlando. Was WFTV on State Attorney Lawson Lamar’s payroll or something? I mean, it took me no time at all to see how blatant it was that the station got the jump on stories coming out of the State, and nothing at all from the defense. It was apparent that WFTV was pro-prosecution, in my opinion, and I was far from alone in my thinking.

In many of the posts I wrote before covering the trial for Orlando magazine, I made my assertions clear about bias. How I know I was far from alone in this regard was because of the feedback I garnered from other journalists covering the case. What’s up with that station? I was asked. 

Here’s the deal. I’m not about ready to accuse a television news organization of unfair reporting. You are smart enough to figure it out yourself; but doesn’t it seem like the WFTV headline about charging George Zimmerman with a hate crime is a bit premature and racially baiting? The article contains no meat or any legs to stand on and it only serves to provoke the Trayvon Martin camp of supporters.

I don’t know. Perhaps May 15 was a slow news day around Orlando. It’s interesting to note that the story broke at 4:47 pm, just in time for the 5:00 o’clock news hour, and only one station reported it. Huh. Do you think it has anything to do with ratings?

(By the way, other news outlets reporting on the WFTV story don’t count.)

Leafy Things... with a Dash of Dirt

I’m sure you know there’s more than one explanation for the word leaf.  The Dictionary.com website describes it as “one of the expanded, usually green organs borne by the stem of a plant” and “any similar or corresponding lateral outgrowth of a stem.” It’s safe to say that leaves grow on trees. It’s also true that a leaf could be a two-sided page in a book.

Speaking of trees, I really wanted to write about a tree today, but the book on that is closed at the moment. This was no ordinary tree, mind you, because it was older than Moses and quite majestic. Until several issues are resolved, the tree story will have to wait. In the meantime, I will tell you about a leaf or two in a couple of books.

The winner of the autographed copy of Jeff Ashton’s book, Imperfect Justice, has been notified. While keeping this person’s identity as close to the vest as possible, I will tell you it was Charlee, who lives in Texas. Like I promised, I put all entries in a hat, although I really used a big kitchen bowl instead, and my mother picked the e-mail address while it dangled above her head, sight unseen. Interestingly, today is Charlee’s birthday, so it couldn’t have happened on a better day. Congratulations Charlee, and Happy Birthday!

I think most of you are aware by now that I was mentioned in Ashton’s book. Not only did he reference me as Dave Knechel and Marinade Dave, he even managed to spell my last name correctly. Trust me, Knechel is not an easy one. Of course, I personally thanked him for the acknowledgement and for getting it right.

The second one was brought to my attention by someone you know from my blog and elsewhere around the Internet, Karen C. She told me about a book, From Crime Scene to Courtroom, written by famed forensic pathologist/lawyer Cyril H. Wecht, MD, JD, and noted true-crime journalist Dawna Kauffmann. Subtitled Examining The Mysteries Behind Famous Cases, this book examines the mysteries behind Michael Jackson, Casey Anthony, Drew Peterson, Brian Jones, and more, as the cover asserts.

When Karen told me about this book, of course, I had to order one. While it showed me in a positive light, it managed to get my name wrong. Oh, Knechel was right, but I’m not David L. Knechel, as the book states on page 68 and in the index. I’m David B. Knechel and I have no idea where the “L” came from. Okay, it’s a small mistake, but I did call the publisher this morning to request a correction in subsequent printings. I made it a point to say I was not complaining. As I am well aware, all editors hate mistakes.

In the book, I am described as “an Orlando-based writer, graphic artist, and barbecue aficionado, whose website is called MarinadeDave.com.” Granted, a marinade does not a barbecue sauce make, but back when I was manufacturing and selling it, several of my friends purposely asked me, “Hey Dave, how’s your barbecue sauce doing?” knowing full-well it was not a barbecue sauce.

It only took me a few times of quickly correcting them: “It’s a marinade, not a barbecue sauce!!!” that I finally grasped their only intent — to upset me.

I remembered from years ago how one of my closest friends got exceptionally angry when we asked him how his condo was doing.

“It’s not a condo, *&^*#%^&*()*!! It’s a townhouse!!!” Trust me, I got over the barbecue/marinade joke very early on, and when they still tried, I answered them calmly and ignored what they called it.

On page 75 of the book, I am mentioned again. “The press corps was out in full force for the Anthony trial. Attending some, if not all, of the proceedings were national figures like Nancy Grace, Jane Velez-Mitchell, Jean Casarez, Beth Karas, Geraldo Rivera, Greta Van Susteren, Ashleigh Banfield, and Diane Dimond of thedailybeast.com, as well as local print, television, and radio journalists — among them blogger ‘Marinade Dave’ Knechel, who covered the case for Orlando magazine.”

Trust me, I am highly flattered. Yes, of course, I became part of this case, and there’s no denying it. Fortunately, none of the real and true investigators and authors have implicated me in any way, shape or form of scheming to take down Judge Strickland. That was only the fodder of simple-minded people, including a blogger who shall remain nameless for now.

In any event, I did lay out my plans with a book editor today. I was told it was a good concept as long as it also contains facts about the actual case, along with the sordid details. I know if I do, names will be exposed, including two people who claimed to be in the courtroom daily during the trial when they were not there. One “reported” on a blog and the other is mentioned in the above list. Sorry, I guess you’ll just have to wait.

16 Days

The State has been presenting its case for over two weeks now. How are they doing? What about the defense? 

Read what I think. Only at Orlando Magazine.

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I Was There

The courtroom got very graphic as the state entered photographs of Casey’s skull and other evidence found at the scene. Please read my account of the day, including sketches of the skull

Only at Orlando Magazine.

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Classical Vass

Dr. Arpad Vass took the stand yesterday. How did he do? How did Jose Baez fare on cross examination?

Please read what I think - It’s on Orlando Magazine.

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How the Cards Stack

Two weeks have passed and, surprisingly, Jose Baez did well in some areas. Where?

You’ll have to read about it on Orlando Magazine.

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Drowning in a Pool of Lies?

What do I think the defense will argue in it’s opening statement?

Read my article on Orlando Magazine. See if it will take you as long to read as what Jose will say tomorrow.

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Casey's Defense: Scrambled and Fryed

In my new post, I explain the latest Frye rulings - chloroform and plant root growth. Plus, I explain why this case will never see a plea bargain.

Please take a look…

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You want Orders with those Fryes?

My first post is now published on Orlando magazine’s Website. Titled, You want Orders with those Fryes?, it addresses the Frye motions Judge Perry ruled on yesterday. Please stop by and say hello. It will be my new digs for the next two months or so, because I am now an “on assignment” reporter for orlandomagazine.com.

Of course, that doesn’t mean I’ll be neglecting my blog. My home is my home and my friends are my friends and that will never change.

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Short interview with Dr. G: Chief Medical Examiner

Orlando Magazine published a brief interview with Dr. Jan Garavaglia by the editor-in-chief, Mike Boslet. I think it’s definitely worth a read. She will be a crucial expert witness for the State in the upcoming Casey Marie Anthony trial.

The Story of a… Medical Examiner

You can set up an account over there to comment, or you can return to this post and comment here. Your choice!

Interesting day of discovery

More documents were released today concerning the investigation into the death of Caylee Marie Anthony. Some of the discovery is not very revealing, while other documents are. For instance, several TES volunteers described receiving phone calls from private investigators stating they were “calling from the Orange County Courthouse.” While misleading, they were not illegal. Cpl. Yuri Melich wrote in his incident report that an “investigation was conducted in order to determine if a private investigator working for the Casey Anthony defense violated State Statute by falsely impersonating an officer as per Florida State Statute 843.08.” He added that “there is insufficient evidence to prove anyone violated this statute.” Yes, several people complained the callers had misrepresented themselves, but by merely saying they were calling “from” the Orange County Courthouse failed to constitute probable cause that a crime was committed. I have to agree. I’ve made phone calls from the courthouse and by merely telling the other person I am calling from that location reveals nothing. I could be there for a hearing or something else.

What I did find interesting is that, while a lot of people believe Jerry Lyons is working alone, or that Mort Smith is still somehow involved, two new names surfaced. AHA! We can now add Katie Delaney, Gil Colon and Scott McKenna to the list. What would be intriguing would be if the SAO decided to seek the cell phone records from all of the PIs to see if they really did call from the courthouse as they claimed.

(See: http://www.wesh.com/pdf/27161837/detail.html)

Julie Ann Davis

Julie Davis was a TES searcher who was a K-9 handler. Her dog was trained to find human cadavers. She searched the Suburban Drive area on September 7, 2008 along with Tammy Dennis, Karen Gheesling and Luther Peeples. Tammy Dennis was also a dog handler. None of the dogs alerted anyone to a body. She was clear in her memory of where she searched, and more signifiacntly, where she didn’t. She said she looked at the end of Suburban, across from the school, with her dogs. So did Tammy. They found nothing unusual. She also said she looked into the wooded are where the body was eventually found, but not with her dogs, that remained in her car at the time. Those particular woods were overgrown with brush and flooded, she told Cpl. Eric Edwards on February 3 of this year.

“Um, I got out of my vehicle, walked along the edge of the, the tree line there. Looking inside that vegetation ah, it was thick, but I could see through the thickness was a lot of water.”

One of her most significant statements she made was that it may have been very difficult to find a body. Many variables would come into play.

“It depends on the body if it was wrapped in bags whether or not that K-9 would be able to detect that.”

(See: http://www.wesh.com/pdf/27161880/detail.html)

Cpl. Mark David Hawkins

Mark Hawkins was a longtime friend of Casey and her family. She often talked about visiting him in California, where he was stationed as a U.S. Marine. He knew her from their high school days together. After finding (alleged) samples of human decomposition, samples of Caylee’s hair and chloroform in the trunk of Casey’s vehicle, Hawkins came forward and offered to help in the investigation since he had knowledge of the victim and her family. He admitted that his relationship with Casey was only plutonic; that they had never been sexually intimate together. He said that they both agreed that they should just remain strictly friends. He was in the military and constantly being sent to different locations. Casey said she didn’t want a transient life for herself or Caylee.

“In late June/early July 2008, Casey and I were talking regularly, as I was keeping her updated on some medical issues of mine. She was worried about me and stated she wanted to come out to CA to see me, although there were never any solid plans made. A week or so later, Casey called me and was noticeably upset nd frustrated. She said she had something to tell me and couldn’t say it over the phone. She said ‘something happened’ a long time ago, but wouldn’t say what it was. Casey said she told her mother and brother whatever it was and they became angry & frustrated about it. I asked Casey what happened and tried to get her to tell me, she just saind, ‘Hey Mark, it’s just something I want to tell you in person’. I thought maybe there were some issues between her and her father or thought she was possibly upset about something else and she was just sort of dancing around it.”

In my opinion, this could have been the start of her accusation that her brother used to molest her. NCIS, the U.S. Naval Criminal Investigation, sent Supervisory Special Agent Leroy Jethro Gibbs and Probationary Special Agent Ziva David - JUST KIDDING! NCIS sent Hawkins to Orlando where he agreed to be wired up by FBI Special Agent Steve Mackley. He met with Casey at her house on October 9 and 10, where she was under house arrest after Leonard Padilla bonded her out of jail. Casey never did make admissions related to the death of her child, although this was prior to Caylee’s body was found. Casey also told Hawkins her brother, Lee, knew most of the story about what happened to Caylee. She added she would tell him all about it one day. I doubt Lee was in on the murder, though, and he was never a suspect.

(See: http://www.wesh.com/pdf/27161404/detail.html)

Anne Pham

Anne e-mailed Yuri Melich on February 1 of this year to tell him that on the morning Caylee’s remains were discovered the two of them spoke over the phone as the news broke. Laura never said anything about searching that specific area of Suburban Drive. In fact, it wasn’t until weeks or months later that she started claiming she searched there. Pham continued by saying that other searchers had no idea about Buchanan’s claim. Buchanan thought Roy Kronk was somehow involved in the murder of Caylee.

(See: http://www.wesh.com/pdf/27161898/detail.html)

Dr. Barry Logan

Dr. Logan is an expert in toxicology and analytical chemistry for NMS Labs. He has been retained by Casey’s defense.He will argue that there is no standard operating procedure for the use of the equipment utilized by Oak Ridge National Laboratory. He also states that the database was established with a total of four cadavers buried underground. There’s no demonstration that the findings would apply to human bodies that decomposed under different circumstances, such as in the trunk of a car. As an expert witness, he bases his opinions on several factors, one of which is that Oak Ridge is not a forensic laboratory, nor is it ASCLD-LAB qualified.

(See: http://www.wesh.com/pdf/27161862/detail.html)

Dr. Timothy Huntington

Dr. Huntington concluded that the species of fly associated with the garbage bag in Casey’s trunk is unremarkable and of no forensic value. Also found in the trash was a single dermestid beetle larva that’s of no significant value. Of course, he acknowledged that the findings were open to revision and reinterpretation, but we are now seeing what some of the defense witnesses will testify to at trial. He continues by claiming that, given the conditions in the trunk, specifically increasded temperatures due to solar radiation, adult flies found in the trunk on July 16, the eggs should have not been laid before July 2. Of course, the two sides will be arguing over the insect evidence at trial. Big time.

(See: http://www.wesh.com/pdf/27161900/detail.html)

(See: http://www.wesh.com/pdf/27161900/detail.html)

 §

In a minor setback for the defense, DNA tests on a laundry bag and shorts that were found with Caylee’s remains came back negative. It may have helped raise reasonable doubt. 

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Depositions

Several depositions were released yesterday. One that was filed comes from the Orange-Osceola Medical Examiner’s Office, where Dr. Jan Garavaglia works. In her September 28, 2010 deposition, she confirmed that the remains showed no signs of trauma. Nothing led up to the cause or manner of death. When defense attorney Cheney Mason asked her about other possibilities besides murder, such as playing with a plastic bag or drowning, she replied that because nothing was “reported immediately to the hospital or law enforcement to try to rescuscitate this person, or EMS, and this person is still found with duct tape on the face, I would still call that a homicide.”

I know many of us have already heard that revelation, and we may remember what Kiomarie Cruz said, too. Another deposition came from OCSO Deputy Appling Wells from his March 9, 2010 deposition. Kiomarie told him that Casey “didn’t really want the baby” and that she wanted to give it up for adoption. Cindy wouldn’t allow it.

Wells met with Cruz on July 19, 2008. She and Casey were friends from middle school and high school and they used to hang out in the woods across from Hidden Oaks Elementary School. She told wells that they used to go there to do adult things like fornicate and smoke wacky weed. “If Casey was to do something bad,” she told him, “maybe this is where she would put the baby.”

Jose Baez questioned him about Kiomarie’s mental health and Wells said, “I didn’t think that was an issue talking to her.”

Wells said that after Casey was first arrested, she was shocked and most likely “a little pissed off.” 

He discussed meeting with the Anthony’s neighbor, Brian Burner, about the time Casey borrowed his shovel. “She brought it back an hour later,” Wells said. “Nothing stood out as far as being something wrong.”

Later, he had a “police officer to police officer” chat with George looking for evidence that “someone, something had been buried” in the back yard.

Finally, and some in the media may find this a bit unsettling, Wells expressed his annoyance with the media throughout his deposition. He considered them to be obsessed with the story.”They’re just vultures,” he said.

(See: The Orlando Sentinel, March 11, 2011)

From the FRYE pan into the FYRE? Part I

Next month, two motions filed by the defense will be heard by Judge Perry. Because they are very important Frye issues, and of extreme importance to the defense, this post will focus on the motion about chloroform evidence. It will be in two parts.

PART I - The Frye Pan

Casey’s defense recently filed two Frye motions. The date reflects when they were filed with the Clerk of Courts. Both are stamped 12/30/2010.

MOTION TO EXCLUDE UNRELIABLE EVIDENCE PURSUANT TO FRYE, OR IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE (CHLOROFORM)

and

MOTION TO EXCLUDE UNRELIABLE EVIDENCE (Plant or root growth evidence)

The state filed motions to strike, but today, I will just focus on the issue over chloroform. The other motions (defense and state) will come later, because in this particular one, there is much to discern, including a few errors. I will get to them, but first of all, what, exactly, is a Frye motion/hearing? Frye motions are generally held in limine, which means they are made before a trial starts. The judge then decides whether certain evidence may or may not be introduced to the jury. The Frye standard is a test to determine the admissibility of scientific evidence in legal proceedings. This standard comes from the case Frye v. United States (293 F. 1013 (DC Cir 1923) District of Columbia Circuit Court in 1923. Frye v. U.S. was a groundbreaking case that argued the admissibility of polygraph tests as evidence in a trial. Today, it’s designed to prevent both sides from unfairly exploiting expert testimony. Its intent is to assure that expert evidence is reliable.

In its motion, the defense cites Florida Statutes 90.401, 90.402 and 90.403, Amendments 5 and 14 of the U.S. Constitution, and Article 1, Section 9 of the Florida Constitution. Let’s take a look:

• 90.401 Definition of relevant evidence. — Relevant evidence is evidence tending to prove or disprove a material fact.
• 90.402  Admissibility of relevant evidence. — All relevant evidence is admissible, except as provided by law.
• 90.403  Exclusion on grounds of prejudice or confusion. — Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. This section shall not be construed to mean that evidence of the existence of available third-party benefits is inadmissible.
• Amendment V — No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment XIV — All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
• Article 1, Section 9 — Due process.—No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.

The first two Florida Statutes, I would imagine, were cited by the defense for the purpose of propping up the third, which questions the admissibility of evidence that may prejudice or confuse the jury. In the case of this motion, it’s chloroform evidence found in the trunk of Casey’s car the defense is questioning, specifically carpet and air samples.

After the preliminary introduction of the motion, the defense moved on to FACTS about the case:

FACTS

1. Miss Anthony is charged with First Degree Murder. The State of Florida has announced it’s [sic] intent to seek the ultimate penalty of death.
2. The Oak Ridge National Laboratory conducted tests on carpet samples and air samples taken from a vehicle (Pontiac Sunfire) driven by Miss Anthony at or near the time of the disappearance of her daughter Caylee Anthony.
3. Dr. Arvad Vass reported in his preliminary and final reports that there were unusually high levels of chloroform found on the carpet samples taken from the Pontiac Sunfire.
4. Dr. Vass additionally states that the levels of chloroform are much higher than normally found in decompositional events.
5. This information prompted investigators to search the Anthony family computer for searches of chloroform, which yielded positive results for “chloroform” and “how to make chloroform.” The hysteria begins.

Before I delve too deeply into the motion, remember the defense cited the above as FACTS, not assumptions or speculations made by Oak Ridge National Laboratory. Where it completely strayed from the truth is the final statement of fact, “The hysteria begins.” From there, it turned into a giant smoke screen. The defense went into, well, a defense mode, which is what is expected.

FACTS PART II: UNCOVERING THE FRAUD

In FACTS PART II: UNCOVERING THE FRAUD, law enforcement was accused of intentionally leaking information to the local and national media prior to “any official reports through the natural course of discovery.” I will acknowledge learning of the death smell from the news sometime in August of 2008, so there may be some merit to this particular aspect of the complaint. However, this information would have been released anyway, so it was not, by any means, an attempt to “either satisfy their own vanity or poison any potential jury pool” as the defense stated. Today, it’s two-and-a-half years later, and a fair jury will be seated in May come hell or high water.

What puzzles me at this point of the motion is how the defense contradicts itself. In FACTS PART II, they wrote that they traveled to Tennessee and took depositions from Dr. Arpad Vass and Dr. Marcus Wise. Both testified that the tests on the carpet sample were “qualitative” and not “quantitative.” One way to simplify this is to say it’s the motion in the ocean, not the size of the ship; but at the same time, no one is going to sail around the world in a canoe. That’s not to say flat out that the SS Casey is sinking, but it’s definitely listing. The smokesreen in this example comes from the statements that, “It should be noted that the Oak Ridge National Laboratory also took carpet samples from two Pontiac Sunfires… [and] one of the sample cars they tested ALSO had chloroform in the sample,” and “Dr. Vass, who is the author of the ORNL report is NOT a forensic chemist.” In my opinion, one not need be a forensic chemist to analyze chemical breakdowns. Dr. Vass could readily make analytical conclusions from tests of all kinds, and my guess would be that plenty of them have nothing to do with crime. Industrial spies, for example, have been tackling the secret recipe of KFC chicken and McDonald’s Special Sauce for years and years. That’s not forensics, but it takes real life chemists to break into the “Da Vinci Codes” of restaurant chain trade secrets. Who knows, maybe Dr. Vass could find out what’s really in Taco Bell’s beef. Now, that’s something that matters. Of course, it’s a civil matter, not criminal.

In the motion, the defense noted that the FBI Chemistry Unit in Quantico, Virginia, had tested four samples of the carpet and two of the four were “consistent with chloroform.” Dr. Michael Richenbach, Ph.D, told the defense during his deposition that “consistent with” means that the presumptive test results were positive, but the conclusive tests were not. Aside from all of the scientific mumbo jumbo, of which I will spare you the boredom, the point being made by the defense is, in a nutshell, that the results from ORNL and the FBI were different. Therefore, the results should be tossed out. In my opinion, the most consistent point to be made about this case to date has been the consistency of the two presiding judges, and ultimately, Judge Perry will leave it up to both sides to argue and let the jury take it from there. Laws around the country not only protect cross examinations, they encourage them, and this case is no different. The defense will have ample opportunity to shred the state’s evidence to pieces.

Here’s another interesting smokescreen, but I do not think the State, nor the judge, will fall for it. The motion makes it clear that “the other items tested by the FBI for chloroform (baby doll, steering wheel cover, and child car seat) all yielded negative results.” True, but the cab of Casey’s vehicle was separated from the trunk by a back seat. How much seepage should there have been? Police officers have been trained for years to detect the odor of marijuana in a car, and I’m talking about fresh, not smoked. It does have a pungent odor unlike anything else. While standing by the driver’s door, window down, would the officer smell it if it was tucked away in the trunk? No, probably not, but the nervousness of the occupants would be a sure sign that something’s not right. How much chloroform would it take to be overwhelming? I mean, it’s not even close to the smell of decomposition. Talk about pungent odors.

COMPUTER SEARCHES

Law enforcement ascertained that someone inside of the Anthony home searched for chloroform and chloroform recipes three months prior to Caylee’s disappearance. This is why it’s so important for the defense to crush this evidence, along with the air and carpet samples. This is highly incriminating. The defense wrote:

• Any forensic computer examiner including the ones in this case (Sandra Cawn and Kevin Stenger) will testify that you can never determine who ran what searches on a computer, especially when the computer is NOT password protected.

Okay, in and of itself, that may be true, but more about that in a couple of seconds. Incidentally, Cawn and Stenger work for OCSO and I think they know a thing or two about  computer forensics.

• The computer in question was in a “guest bedroom” and all family members not only had access to the computer, but also testified that they used the computer as well as guests who visited their home.
• Law enforcement cannot ascertain whether Miss Anthony was even home at the time the searches [were] run much less on the computer.

Now, had Judge Perry been born in the 19th century, the defense might be able to pull the wool over his eyes, but he wasn’t; nor was he born yesterday. Yes, of course the computer could have been accessed by anyone, but it is inside the Anthony home, and it’s a desktop, not a portable laptop, which could be moved around the house. By utilizing something simple, like a process of elimination, investigators can sift through a myriad of things, including time sheets. March 21, 2008, was a Friday - a work day. What time of day did the searches occur? I’ll bet you OCSO knows. If Cindy, George and Lee were not inside the house, it incriminates Casey, and with no other source, like a friend who has yet to come forward, her ship is really listing.

Here’s something the defense wrote that struck me as peculiar:

• The Oak Ridge National Laboratories (Some reports erroneously called them “body farm” perhaps for more shock appeal) reported unusually high amounts of chloroform in the trunk of Casey Anthony’s car.

What I would like to do is take to task the remark about erroneously calling ORNL a Body Farm for more shock appeal. In my opinion, the defense is trying to directly infer that the term Body Farm was something new and never used before. I assure you, that is not the truth. I can tell you I heard about the Body Farm long before I heard about the Anthony case and, as a matter of fact, thanks to my Gainesville friend, nika1, I am in the possession of a book titled, BEYOND THE BODY FARM, written by Dr. Bill Bass and Jon Jefferson. So what, you say? Yes, so what. The book was published in 2007, a year before Casey’s defense knew who she was. Jefferson & Bass (as Jefferson Bass) have written four novels about the Body Farm. The first one, Carved in Bone, was released in January 2006. In 2003, Bass & Jefferson released their first scientific book about it, Death’s Acre. To go further back in time, crime writer Patricia Cornwell published The Body Farm in 1994. She drew her inspiration from Dr. Bass and his work. As a matter of fact, he is recognized as the father of the Body Farm, long before Jose Baez was practicing law.

Why did I title this post From the Frye pan into the Fyre, you ask? Even the prosecution misspells…

MOTION TO STRIKE DEFENDANT’S MOTION TO EXCLUDE UNRELIABLE EVIDENCE PURSUANT TO FYRE (CHLOROFORM)

In the second part of this article about chloroform evidence admission, I will delve into the scientific and legal aspects:

PART II - The FYRE

This information prompted investigators to search the Anthony family computer [duh?] for searches of chloroform, which yielded positive results for “chloroform” and “how to make chloroform.” The hysteria begins.