HHJBP: Does the state intend to present rebuttal?
LDB: We do and the estimated time for that is less than a day.
There is an issue that the Defense has raised dealing with some discovery. Mr. Baez, would you present your concerns about this issue?
Your Honor, Mr. Mason will be handling the argument for that.
Mr. Mason -
Your Honor, yesterday afternoon counsel advised us that they were expecting some records and documents coming in from somewhere regarding the employment/work records of CA for the obvious purpose of attempting to impeach her testimony as to whether she was at work or not at work for the time that she had made the computer search for chloroform. This morning they presented us with a few hundred pages of records of some kind from various people and we are objecting to this as a clear discovery violation. CA's testimony was not new or a surprise in fact she had testified in deposition regarding this issue on 7/28/09 - almost 2 years ago. They knew since then, that CA had disclosed that it was she who had made those computer searches, and yet, having that info, they waited until after we called to testify that which was consistent and then subpoenaed documents. That is a discovery violation and has prejudiced the defendant. Counsel cross examined CA on this issue and then goes and gets witnesses from this company to now impeach that testimony. We now move the court to impose the appropriate sanction which is to prohibit that testimony.
For the court's info, the documents we intend to present, there is a 1 page document that is entitled "report for CMAnthon - a log in and log out system maintained by Gentiva for the week in March. In addition, there is a series of deleted emails for the week of 3/17 to 3/21 They have only asked for documents for 3/17 and 3/21. It's a spreadsheet document showing activity on CA's work computer. It is correct to say CA talked about doing chlorofill searches in her depo in 7/09. At that time she did not extensively dispute the accuracy of her work records and did talk extensively about that in her testimony last week. The sanction of exclusion is the ultimate sanction. The info was first requested from Gentiva on 7/24 by the OCSO. They had to have an investigative subpoena. The records came in pieces starting 6/27, 6/28 and 6/29. She informed counsel yesterday morning that they were coming and she presented them this morning. Mr. Camperlango is the chief compliance officer from Gentiva. He came from Atlanta and is prepared to testify. DS began an inquiry of him over the lunch hour and indicates that she needs some additional time to speak with him. That should cure any prejudice if any for the late....
CM: You have admonished all counsel that this is not to be a trial by ambush. CA gave this testimony 2 years ago. The state, will all it's resources has had plenty of time to investigate. At no time was there ever an issue raised about these work records. CA clearly testified about the issue of chloroform search. The state should not be able to sit back and allow CA to testify on such an important issue and then spring on them witnesses that claim she testified falsely. You must not reward the prosecution and support the prejudice in a capital murder case such as this. We urge you to realize this is in fact a material violation. I urge you to accept my motion to prohibit those witnesses from testifying.
HHJBP: Both sides? When CA's depo was given, did she give an indication or contest the validity of her employment records?
CM: I defer to JB.
LDB: She recalls that they spent the majority of the inquiry talking about the computer searches and whether or not she searched chloroform. She indicated that she made searches for chlorophyl because her dogs were chewing on bamboo leaves.
JB: I believe that that might be a complete response. I believe she did mention chloroform and the ingredients of such. Her response to searches of chloroform was "I may have".
HHJBP: The current records, when did they come into the State's possession?
LDB: Yesterday afternoon. The OCSO was gathering them Monday, Tuesday and Wednesday.
HHJBP: When did you notify the Defense?
LDB: I notified them yesterday I was expecting them. She may have notified them earlier in the week that they were planning on having someone from Gentiva testify.
HHJBP: Is this a new issue?
LDB: I can say I knew she would testify to chlorophyl searches. I did not know she would testify of her work records so extensively.
JB: She did say that she may have searched chloroform. "And possibly chloroform because my dogs were eating bamboo leaves... She also says she remembers looking up chlorophyl in March and not sure if I looked up chloroform as well.
HHJBP: Was there any awareness on the part of the defense that CA would testify that, even though her work records showed that she was at work, that she would come in and say that her work records were not accurate?
JB: I think what we had hear is that we had the witness testifying to the searches in the March time frame. So, to answer your question, she did say she was a salaried employee - salaried employees come and go.
HHJBP: I'm not talking about the searches. Was the defense aware that despite the time records showing she was at work the records were not accurate and in fact meaningless.
JB: I think we both expected that.
HHJBP: Did she ever say that in any sworn statement.
JB: How far she went into it, I don't know. The answer is a kinda yes.
HHJBP: Other than the possibility of her testimony being impeached, what prejudice would the defense suffer if those records were to come in to contradict her testimony?
JB: I think we would be severely punished by appearing to present untrue evidence. I don't think there is a remedy other than exclusion. Even if we called her on sur-rebuttal what is to stop her from pleading the 5th.
HHJBP: Well we will deal with that. That could cause all of her testimony to be stricken.
JB: There is another problem, I think this is way too late. We've rested and they have now given us this evidence. We could have attacked this evidence in another manner and we do not want the stigma of presenting false testimony.
HHJBP: Unfortunately, unless a witness tells you they are going to lie - and you put them on - that's when counsel gets into trouble. Counsel can't guarantee or warranty that a witness will go south or shade their testimony.
JB: I would agree, but I would bring to light what this court has often said - did the offering part know or should have known that this is going to be an issue.
LDB: I believe the inquiry is whether or not it is intentional or willful. I believe CA was trying to defend her position quite vigorously and started talking about emails and passwords and log ins, so we followed up on it. I was never argue that JB was trying to dupe the jury and at this juncture they have not established that this was willful. At this point we would urge the Court to find no discovery violation at all and the prejudice, if any, could be cured by speaking with Mr. Camperlengo.
JB: That is not all we can do. These are computer print outs and sometimes can be a bit misleading. We would need our expert to see how these records are compiled. This is no simple issue.
HHJBP: Let me ask this last question. Before CA took the stand, did you know she was going to say what she said that she was at home and not at work as her employment records state?
JB: Yes. The work records are in evidence and not something we disputed. But to go ahead and bring in new stuff...
HHJBP: Let me rephrase. Were you aware when CA took the stand she was going to testify that despite the records showed that she was at work, that those work records were meaningless?
JB: Yes sir.
HHJBP: But you knew she was going to testify to that? Now the work records introduced, were they computer generated?
LDB: They appear to be. It's a time card history report.
HHJBP: Was it generated by the use of a computer or manually done?
LDB: No computer generated.
HHJBP: Did anyone have an expert to look at those records to see if anyone had tampered with the computer records to question the accuracy of those records?
LDB: No sir. We engaged in a stipulation regarding the accuracy.
JB: She was salaried and did not punch a clock. We believed there was an explanation of how she could do the computer searches. If she could explain it - perfect - and that is what she did on the stand.
HHJBP: Anything else? Pursuant to Richardson - The Court will find that this was not a discovery violation. As soon as the records became pertinent, the State sought them and provided them to the defense. The Defense raises the issue of prejudice. Trials are supposed to be about a search for the truth. Juries are supposed to be given sufficient evidence so that they can apply the law to the facts and speak a verdict that renders the truth. The court will instruct the jury about credibility or believability of witnesses - all or any part of witnesses testimony can be used. The remaining question is how much time does the Defense need to adequately review the records to cross examine the witness who will be presenting the testimony. The Defense has indicated they need their "computer expert" to look at and authenticate these records; but from what both sides have done in this trial, they have stipulated to the records and there is no evidence that the prior records or these records are a result of a fabrication. Both sides know the penalty for fabrication of records, if it is proven would be subject to having what ever happens in this case thrown out - provided there is a guilty verdict. In fairness to the defense, I am giving them the balance of the day to talk to him. Ms. Sims, how much time do you need? I understand this man needs to be back for a doctor's appointment. I will make him miss it if necessary. Everyone knew this was coming based on CA's testimony. I don't think it was a surprise. As an officer of the court, based on the oath you made when you became a bar member, how much time do you need?
DCS: Maybe an hour or so -it's confusing because this is a backup tape and the times are different.
LDB: The Chief Compliance Officer had someone else compile this information. Because of the age of the documents, they are stored somewhere else and had to be retrieved. The only time difference is that the server is in Kansas City and that is central time.
DCS: There is a time difference due to the conversation. I am willing to go out now and start working on it.
HHJBP: Witness's medical issues?
JA: I'll go find out.
HHJBP: If the appointment is at 7:00 in the morning, there are several flights, could he not come back in the afternoon?
