2011.06.23 TRIAL Day Twenty-six (Afternoon Session)

[wenwe4]

HHBP advising Atty's read

JA - spermicide evident in sheet - recommended more testing ....during cross SA were allowed bring out - DT intended to do so.....believe in this case - question is admissable

Overton by their questions - can be so aggressive on question can place burden upon themselves....DT asked can you reproduce the result ...


DS - I agree with you ...prejudicial and in error - completely different in this case...

clear experiment conducted in this case - no protocols followed....nothing dileniated...if circumstances to reproduce results...not what the SA alleges- court is correct case is very clear....Dr was asked replicatable he said no....it wasn't clear What Dr. Vass & Wise had done

HHBP - anyone else? no sir

Hays vs. State addressed a proposition- burden shifting shifts burden of proof from prosecution to defendant ....court in Hays...4 error occur when prosecutor ask failure of scientific evidence...SA called LE re: clothing stain w/blood....on cross brought out SA never requsted testing....a test of blood could have eliminated Hays a suspect.....Judge overrule ....whether any defense asked to test....similar comments made concern failure of hairs defense did not test evidence @ murder - pg 188 1991 FL supreme decision...found error on defense call particular witness.....SA have to prove beyond reasonable doubt.....accordingly not defense failure ....defendant carried burden of evidence.....may have jury to leave had obligation to test evidence found @ scene to prove it didn't match....prove no such obligation


Overton vs. State 2001 decision Fl Supreme Court - next motion for mistrial...SA had disclosed argument only one type of test....Overton misleading ....mistrial was ....so prejudicial .....based upon evidence introduced defense admitted sample @ trial...attempted to....prosecution only requested one test....confirmatory test was a proper during trial....more testing was needed noting defense only submitted one sample SA wanted more testing .....we do ....SA was a proper comment and not so eviciate the entire trial.....

DT object to rely on question - is sustained - shift burden of proof to defense NOW
earlier before lunch - ask defense read case of Cuban vs. State .....dealing with attack validity of another expert opinion....this witness has not been qualified as an expert in area air sample analysis....during Frye hearing order - when Dr. testified....what I said that Dr was not qualified @ that time train and experience in that area was reading 2 articles from Dr. Strephanopolis and Dr. Vass....he is qualified as toxicologist and some areas in analytical chemistry...tread very lightly.....while you have not opened that door yet...Mr. Ashton is ready to run Mack Truck thru that door...cannot use it as a shield and then turnaround and use it as a club against the state....the proper line...well that is not my job....questioning about the cans...subjecting opening the door.....


DS we would ask for curative instruction to the jury and the manner he lined the cans up...you didn't object...if I do that you are getting replay...if you are asking for instruction .....last question from Mr. A ...say objection is sustained I could do that...DS I have a feeling that would be just fine....remove those items as well? HHBP we can do that..

CM - curative instruction....that sentence from Supreme Court - ask for instruction for burden of proof

JA - as to which question?
HHBP for the last question I will have court reporter find - I will do that....

If you have been sent one of those could you have tested it? @ this point no curative instructions needed - didn't say who ......think curative for abundance of caution....if you want to profer ...

HHBP - qustion DS asked whether could she reproduce the results?
JA - DR. logan can you take these cans and test in tevlar bag....35 degrees centigrade, extract amount, inject into cryotrapping? we don't have cryotrapping instruments we could if we had one....not enough information in Lab notes to replicate -

Dr. Logan would to review his article...at this point not sure - take a moment to do that...aren't the settings of the machine in the lab notes?
JA will withdraw...

HHBP - question by dt - this whole area is just like walking on quicksand....to the DT trying to impeach an expert you cannot impeach an experts ? - have to do that by showing another experts conclusions were different....you don't have an expert to show their exam is different...that is problem with this whole line of questioning! Both sides read 2000 decision...take 10 min recess.

 

[Marina2]

HHJP badly wants JA to be able to pursue some line of questioning about this as the door was opened. He just doesn't want to go as far as creating an appellate issue.

 

[mombomb]

1:29 witness coming back to the stand.

1:30 Jury coming back in

DIRECT EXAMINATION OF DR. LOGAN BY DS - continued

Where were the four fatty acids found in this case? On a paper towel.

No further questions.

CROSS EXAMINATION BY JA:

All three fatty acids found in combination in vegetable material?

OBJECTION - OVERRULED

Yes, they are - in oily vegetables like palm oil. He is not aware of them being present in cabbage, but they are present in decomposition material.

Yes

OBJECTION - OVERRULED - untimely, question was already answered

the same fatty acids are present in adipocere as in dairy products.

Is the carbon chain the same in both? The four compounds are found in adipocere and dairy products.

Other products found in milk cheese and butter than in adipocere? Yes.

When faced with a challenge with no protocol, they should develop a new protocol.

Any kind of forensic samples can have special challanges.

Journal of Forensic Science does not give step by step methodology for general GCMS testing. Some of it is.

A blank is a sample of room air? When a blank shows some unexpected results, it should be investigated as to whether contamination or machine settings. Stop, make a correction, then run again. The same is true when one finds an open valve error. That was what was reflected in the bench notes.

No further questions.

RE-DIRECT EXAMINATION BY DS:

What do you think "Challenges" mean? Something unusual or unexpected in the study.

What do challenges...

OBJECTION - SUSTAINED

Are there published protocols in how to collect air from the trunk of a car? No, there aren't any.

Are there published protocols on how to collect carpet from the trunk of a car? No.

OBJECTION - SUSTAINED

Could you reproduce this test? No, there is a lot of info not in the bench notes. There would be no way for him to know if he did the test the same way.

RE-CROSS EXAMINATION BY JA:

Your lab doesn't do this kind of test does it? We would be capable of doing it.

He was shown Exhibits 114, 133, 322, 323. He has never seen any of them. If you were given them, could you have tested them?

SIDEBAR #9 (1:43-1:50)

Jury excused - 1:50

HHJBP - Mr. Ashton - your argument. You may want to look at Hayes v State.

JA - Overton v State.

HHJBP - On Hayes - read Headnote #8

JA - State's position is that by defense asking if he could reproduce the results and his answer was no - in Overton - that opens the door as to why he couldn't or whether he tried.

HHJBP - what in Overton suggests this?

JA - He sites Overton and Hayes - burden shifting. The defense's question went to that level.

DS - Doesn't think it is even close. Her questions had to do with the testing in this case - that it could not be reproduced. It is not burden shifting. It is clear that this test can not be reproduced. We move to strike the comment and ask for curative instructions. The Court is correct, Hayes is very clear. The doctor was correct in his answer when he said no because it was not clear as to what Dr. Wise or Dr. Vass did.

HHJBP: FSC in Hayes addressed a proposition of law dealing with burden shifting - shifting the burden of proof from the prosecution to the defendant. His honor then read the facts of that case. He then described the Overton findings.

The Defense's objection to line of questioning is SUSTAINED in that it would shift the burden.

HHJBP - Before lunch, he asked the defense to read Cuban v. State dealing with attacking the validity of another expert's opinion. This witness has not been qualified as an expert in the area of air sample analysis. My order during Frye hearing was that this witness was not qualified to render an opinion in that area. He is qualified in analytical chemistry. I would tread very likely in this area, because, while you did not open the door, it looks like you are trying to get it cracked open and Mr. Ashton is looking like he is trying to run a mack truck through the door. You can't use the burden of proof as a shield and then turn around and use it as a club against the state.

DS - she objects to JA going up to the jury with the bags of evidence. She wants a curative instruction to the jury.

HHJBP - Well, you did not object to it. If I do that, the only thing it is going to do is an instant replay on that. If you are asking for instructions to disregard last line of questioning, I can do that.

DS - she feels that would be just fine.

CM - Curative instructions found in first quote His Honor read would be appropriate and he would request that.

JA - As to which question? The question was, if you had been sent one of those, could you have tested it? At this point, he does not feel a curative instruction is necessary.

HHJBP - out of an abundance of caution, I think it is necessary.

HHJBP - to JA you have a right to proffer,

PROFFER BY JA

Could you take a sample from one of these and put it in a Tevlar bag and heat it and then extract an amount of air, inject it into a GCMS with cryo-trapping if they had such a machine. There is not sufficient info in the paper or notes to set the machine properly. He is not sure at this point what additional info is needed.

HHJBP - to the defense, if you are trying to impeach an expert, you cannot impeach the validity of the expert's opinion. You have to do that by showing another expert's opinion is different. That is the problem with this whole line of questioning.

HHJBP - Both sides read Network Publications.

2:23 - 10 minute recess.

 

[GreenTeam]

Not sure why this is so hard to figure out . . . it seems if the defense asked if he could replicate the test, why can't Ashton ask more about that?

 

[TortillaChip]

Poor JBP, what is happening? Why is he having a hard time here?

 

[waylos]

Dramatic? JB yelled straight at the jury the first day during opening statements. !!!

Yep, that's the one time that my mouth hung open... not today! I'm just yawning today.
Again... just my opinion.

 

[Miss Anarchy]

Ok really really dumb question i'm sure, but what is the point of asking the witness questions when the jury is not in the room? Do they go back and read the transcript or something? It really confuses me.

Its called Proffer. Basically the HHJP wants to know the answers to the questions before the witness testifies before the jury.

 

[Bittiness39]

Okay, I have every confidence the door will be opened...just put Baez back up to question the witness....mack truck will roll. :floorlaugh:

ITA! And since, IMO, he is more about covering his BAEZ rather than his client...

He promised all of these media people, in what I totally believe, behind closed doors that there would be fireworks...And basically, what he has show thus far nada.

He is in deep **** with these peeps, jmo. And all he will do on the emotional side (after the forensics) is just kick dirt on people in a failed effort to make Casey look better by comparison. You can't render someone clean by destroying others. (Hello!!!!) By definition you render your own comparison useless. :rocker:

 

[mck16]

JA is willing to withdraw question and HHJP is not so quick to let him walk away from it.

That in my opinion is because JP knows what the defence is trying to do and that JA is right.

 

[tehcloser]

Bill S. saying walking a thin line with a mistrial with this. rut roh..............

 

[shelbar53]

OT: some really cool old trucks...not insinuating anything JA...

YouTube - ‪Mack Truck Memories ----- 5.45 minutes‬‏

off topic
FYI. i'm about 2 miles from where they build mack trucks, im in mack truck country. I just loved that he used that as an example.

 

[MaryAnn]

OMG, this is scary. Came close to a mistrial. I cannot go through this again!

 

[liltexans]

Perry instructs both sides to read a case during a 10 minute recess.
by Jessica Steck/WESH.com at 1:24 PM

Perry tells attorneys to read case law. 10 min recess
by cfnews13casey via twitter at 1:23 PM

 

[nursebeeme]

Oh FGS!!! HHJP giving DT an out.

he is going by the law... not giving them an out imhoo.

he also just told the DT that they are going about impeaching an expert in the wrong way.. ... :twocents:

 

[Jada85]

It always amazes me how quickly the Judge can come up with other case references off the top of his head hehe

 

[BigFatMommyDog]

This stuff is finer than frog hair

 

[HotButteredGrits]

Per WFTV ... this issue is very close to a mistrial so this is why it's being handled so carefully.

 

[CarolinaWoman]

When Casey is sentenced to LWOP, she is going to get her GED or diploma and then study law and help all her fellow jailbirds. :floorlaugh:

 

[tehcloser]

"If not handled correctly we could have a mistrial here"..............WFTV.

 

[ami]

My thoughts exactly! Should he be able to say the tests were not replicable, yet the state can't question his expertise in this area? or ask if he ever even tried to replicate them?!

WTH?!

To me it sounds like JA knows full well that the witness's lab doesn't have the equipment to replicate it, and it also sounds like he knows positively that the settings are listed in the bench notes. He sounded confident of that. I bet he even knows the settings himself.