Since the judge had to release the jurors, he's switching gears to hear more argument on the air compound evidence.
Baez arguing that it's a 3.220 (discovery) violation rather than an issue with FOIA or other issues. If it's going to be used to prove guilt of defendant, state needs to release all the info pertaining to it. He suspects studies were done over a period of many years. Believes study will show compounds weren't identified until they became irrelevant.
For Vass to testify chemicals are part of early decomposition and our having no evidence to verify it from his proprietary studies, puts us at a disadvantage, he argues. Says unless Vass has breakdown of chemicals found within first 9 days (amount of time Caylee alleged to have been dead in car trunk), then it's not relevant to this case.
Ashton says defense hasn't cited which section of Rule 3.220 applies. For some reason, he says, this seems to have all come down to who calls the FBI. Paula Wolf at the FBI has been very helpful to defense, but it's perceived that Ashton is the only one who could call and ask for the info. Says they've gone above and beyond to get them this info. Direct communication between Baez and FBI would be more productive than going to the judge, the judge directing Ashton, then Ashton contacting FBI.
Ashton argues there's no basis for court to compel state to get from another independent agency any further info, especially when defense has not made any effort to get it themselves. Ashton says that nowhere in Vass depo did Baez ask Vass about timing of the release of certain chemicals in the decomp process.
Baez accuses prosecution of "trying to hide the ball." Baez says calling the FBI is not the issue, that he believes FBI has specific policy that info can be turned over only to a prosecutor. He says that's beside the point, though, since, if state is going to use this evidence, they're obligated to turn over all related peripheral information to the defense, including all the info from studies.
Judge: Florida Rules of Criminal Procedure provide mechanisms for both sides to obtain info for trial. Discovery rules are meant to limit the concept of "trial by ambush," but aren't meant to eliminate the obligation for either side to investigate.
Of the 478 compounds in the database of Dr. Vass, 30 were found to be critical to decomp. The Court does not find that defense asked Vass in his depo about the chemicals and that Vass refused to answer or asserted privilege. "It is what it is" when it comes to what questions counsel has asked, Perry says.
Perry points out that the court can't be responsible if one doesn't ask the questions they should ask. The state has complied or will be complying with production of the list. The only remedy is for defense to ask for leave of the court to have some additional questioning of Dr. Vass as to those chemicals. Based upon what is presented at this time, the Motion to Compel is denied.
Baez: "I didn't want to cut you off in midstream, judge..."
Judge: "I wouldn't advise that, sir."
Baez says defense can't impeach Vass with another depo if they don't have his proprietary study info with which to do so. Judge says to take his depo and points out that of the four lawyers on board, Sims was brought in for her expertise in forensic scientist; not like they're shorthanded.
Baez argues the same point again. Judge tells him he is "quite comfortable" with his ruling. Says defense can take the depo of Dr. Vass in those particular areas.
Ten minute break.
Motion for Rehearing to Exclude Unreliable Evidence:
Judge says typo in motion re postmortem hair-banding since Vass didn't testify about that. Perry says his order dealt solely with Vass testifying as to his own opinion, did not conclude that it all concurred with Frye.
Defense says that judge mentioned common sense in order, but that it's their understanding Vass based his findings on science. Judge responds that, regardless his scientific studies, Vass can open the can smell the decomp same as anyone else.
Defense says Frye elements are lacking. They claim Dr. Vass has a monetary interest in his scientific research, as well as bias/allegiance to his institution. They also claim that Dr. Vass evidence is not scientifically reliable pursuant to Frye requirements.
Ashton replies that the only new thing in this re-hearing was the voice giving defense argument (female attorney arguing today), that there was nothing new brought up.
Defense claims they are re-asserting the argument because the elements they mentioned are lacking.
Judge: The order doesn't say the Vass testing alone meets the elements of Frye. Went to great lengths to say he was basing his testimony on his opinion and experience. His opinion is based on methodology which is accepted -- gas chromatography and the laser science. Even he says he can't conclude it's human decomp to the exclusion of all else. I spent a great deal of time re-reading that testimony and cases late at night, into the early morning, for a week or more.
Judge denies the Motion for Rehearing. Says his order speaks for itself.
Back to the jury issue, Judge says he hopes to have jurors in the courtroom by 9:00 in the morning. Apparently a potential witness in this case was summoned for jury duty...that person communicated to other jurors that she had worked with TES and wondered if they were gonna be called up on this case. Ack. No wonder he let that entire panel go.
Judge says he'll have jurors brought back in Thurs, Fri and Sat, and possibly Monday morning if need be. Ashton suggests they do all the questioning of each juror at one time rather than asking them all about hardship, then later about death penalty, etc. Baez agrees and Judge is fine with it.
The Hair & The FBI:
Baez now has another issue to bring up, about the hair and the FBI, and the court's ruling. Baez claims that FBI, after defense questioned their methods, decided to do a study on hair and that defense found some exculpatory info within the study. Judge asks if that's not a matter for cross-exam. Baez says no, hands it off to Sims.
Judge wants to know when they discovered this. Ms. Sims argues for the defense. She says FBI did study on antemortem hairs after defense's depos of their people. Defense deposed Wolf/Shaw again on May 3rd. Says they withheld a number of photographs later discovered to exist as well as other information.
They want this info for a renewed Frye motion, contend that it includes exculpatory evidence. Sims says she hasn't had time to get all this done and needs time to get copies and speak with experts/each other for cross-exam/Frye motion. Apparently, two scientists thought antemortem hair exposed to well-water believed it to be postmortem banding.
Judge asks in her many years, how often had she seen experts look at the same info and come up with different opinions on it? Frequently, she says. Judge says about 90% of the time, very common occurrence.
Sims says when she examines a witness, she has their file in front of her to ask them questions. She says Shaw brought only 200+ photos to depo and didn't offer up there were 700+. Says she needs all the info available to examine a witness. Says FBI didn't tell her before depo that she couldn't be sent the documents. Only last week did she have chance to look at the hard copies and didn't have time to make notes on all of them.
Ashton says that, once again, info not in possession of the state. He says he continues to defend the FBI because they've gone above and beyond to accommodate the defense. This info has to do with ongoing research to determine whether hairs, when exposed to certain elements, can show signs similar to postmortem banding. Thus far, they have not seen what an expert trained in the area would identify as postmortem banding.
Despite that, FBI offered to send to their field office for defense to view. Have gone out of their way to help defense, volunteered themselves that info and photos existed. Ashton says more than 600 of the photos are of hairs before anything was even done to them. FBI owns the info, and they've done all they can do other than provide all their research notes to the defense (and they won't do that because once info is published elsewhere, can't be submitted for peer review and published by FBI).
No discovery rule applies to this. Can't compel state to provide something they don't have.
Judge asks Sims if she agrees that this is ongoing research by FBI. Sims says she understands that the research be completed for the month of May. She says info is potentially exculpatory, regardless whether FBI is done with it. Judge asks her to answer whether it's ongoing research. Sims answers yes, that it is.
If the research is ongoing, then defense burden is to show how it's exculpatory. Research goes on daily everywhere. Science is an ever-changing field. If you're serious about this, file a motion and you can have telephonic testimony from Dr. Shaw. Up to you to prove it's exculpatory and not a fishing expedition.
Judge's previous ruling stands, he says. Shaw can appear by telephone and defense can examine him to establish a basis for claim that there is exculpatory evidence; again, mentions he's not allowing a fishing expedition. Judge will allow him to testify @ 8:00 Friday morning.
Court is adjourned for the day. Proceedings will continue at 9:00 tomorrow morning.
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