2011.06.13 TRIAL Day Seventeen (Morning Session)

[scotslass]

JB getting a win on the PP but the study is allowed.

Is that correct?

 

[Soulmagent]

JB sleeping again and he could have gotten the whole study testimony out of court.

I guess he is getting a little better.:waitasec:

 

[kathyn2]

I have to say I agree with the judge. As much as I want Casey to hang what the prosecution did was WRONG today. Such a shame they did not provide this in a timely manner to the defense.

 

[mck16]

No Powerpoint but allowed to testify

CYA for later appeal. jmo

 

[Hamsterdance]

"State of Florida's obligation, not the FBI...sustained"

 

[jmfstl]

JB getting a win on the PP but the study is allowed.

Is that correct?

PP is not to be used but he can testify to it I believe.

 

[Eileen730]

How can KC just sit there so Stoic as JBP says Death by Lethal Injection. Ib be a freaking basket case.

 

[sorrell skye]

HHJP made the right decision, IMO.

 

[JSR]

that sucks the DT won something. Now they can argue the environment caused the death band.

 

[ami]

If the State had to lose out on some of their evidence being let in, I'm not too sad this was the evidence that had to be kept out.

I also like that HHJP specifically mentioned the DP was on the table.

 

[Horace Finklestein]

So now deadlines ARE deadlines when the SA misses one...

 

[ExpectingUnicorns]

I thought the pp presentation was repetitive and boring anyway. I don't think this is much of a loss.

 

[Wholehearted]

"You cannot use a shield, and turn it into a sword," JP. Very eloquent.

 

[downport]

The defense was correct. HUGE mistake by the state. I'm am very disapointed. The state should be ABOVE reproach in a death penalty case.

 

[jmfstl]

HHJP if the DT opens the door and starts talking about the photographs then it will probably be allowed in. I see this happening.

 

[2goldfish]

"you can NOT use a shield and then turn it into a sword."

 

[mombomb]

Jury out.

JB requests the power point presentation be done in the form of a proffer. JA did not want to do that as he was questioned about it in his deposition. JB saying he has no knowledge of the power point. JA agreed JB has not been given the actual power point, but he did get the photos that are included in it. JB said he just got them this morning - previously received photo copies in black and white.

PROFFER BY JB:

Slide #1 - hairs stored inside on window sill for 233 days - before on left, after on right.

Slide #2 - hairs stored on vehicle dash for 202 days - before on left, after on right. The after photo showed the medula, the central portion of the hair and was not apparent decomp. The darkening was natural.

Slide #3 - hairs stored in the trunk of the vehicle - before and after.

Slide #4 - hairs stored in the wooded area before and after. Darkening in the root area on the right side are characteristics of apparent decomp without a band.

Slide #5 - Hair stored in the vehicle before and after. Darkening in the root area on the right side are characteristics of apparent decomp without a band.

Slide #6 - Hair stored in a grassy area. Darkening in the root area on the right side are characteristics of apparent decomp without a band.

Slide #7 - Additional hairs stored in an outdoors grassy area. Darkening in the root area on the right side are characteristics of apparent decomp without a band.

The band has to be above the root and opaque and defined thickness and length to be signs of apparent decomp. The last one was not clearly defined.

Slide #8 - Hairs stored in an outdoor wooded area. Darkening in the root area on the right side are characteristics of apparent decomp without a band.

Slide #9 - Hairs submerged in water. Darkening in the root area on the right side are characteristics of apparent decomp without a band.

Slide #10 - Hairs submerged in water. Darkening in the root area on the right side are characteristics of apparent decomp without a band.

Submerged hairs - he does not know why the apparent decomp looks different in the anti-mortem hairs.

Slide #11 - Hairs submerged in water for 100 days. Before on top left, after in top right and lower center. Darkening in the root area on the right side are characteristics of apparent decomp without a band.

Slide #12 - Hairs submerged in water for 100 days. Before on left, after on right.

Slide #13 - Additional hairs submerged in water for 100 days. Before on left, after on right. Apparent decomp is shown.

Slide #14 - Additional hairs buried in potting soil. Before on left, after on right.

Apparent decomp includes post-mortem banding.

Slide #15 - Additional hairs buried in potting soil. Before and after.

Slide #16 - Buried in potting soil before and after.

Slide #17 - Buried in potting soil for 100 days before and after.

Slide #18 - Hair stored in water for 17 days exhibiting characteristics of apparent decomp - not necessarily seen in post-mortem. This is one he identified as banding.

Slide #19 - Photo of hair that examiner 2 identified as banded.

The examiners were trained hair and fiber examiners like him and Ms. Lowe.

Slide #20 - a post-mortem hair included in the test showing a post-mortem band from a cadaver stored outside on the ground surface. The body was placed outside for over a month - didn't believe it was completely skeletonized. Tennessee in January.

Slide #21 - another hair from a cadaver stored outside on the ground surface from the same person as above. They both showed post-mortem banding. One appeared to be closer to the root than the other.

Slide #22 - another post-mortem hair from a cadaver stored inside the house in Tennessee. He did not know the atmospheric conditions.

Slide #23 - hair removed from a cadaver stored inside a house in Tennessee from Feb to March.

Slide #24 - hair from another cadaver stored inside a house in Tennessee.

Slide #25 - Post-mortem hair from a cadaver stored outside on the ground.

Slide #26 - Post-mortem hair from cadaver stored outside on the ground.

Slide #27 - another hair from cadaver stored outside on the ground.

Slide #28 - another hair from cadaver stored outside on the ground.

Slide #29 - another hair exhibiting post-mortem banding from a cadaver stored outside.

Slide #30 - hair removed from cadaver stored in a vehicle.

Slide #31 - hair from cadaver stored inside a house.

Climate can affect the rate of decomp. This is not his area of expertise. They have studied effects of climate - 20,000 hair study - cadavers in warmer clients will produce root banding sooner than hairs in cold climates.

(JB conferring with DS)

By JB:

All these hairs are from adults, he believes. They can't determine if a hair is from a child or adult. He does not observe different characteristics of hair in children or adults. A younger child's hair may be thinner. The study included 15 individuals, 600 hairs, 2 children. Children's hairs were subjected to the same conditions. One child's hair were used in the first 4 locations. None of the 15 subjects were exposed to trash or garbage.

JB OBJECTS, Cumulative, unfair prejudice (403 and 6th amendment) (because they received this late - no opportunity for independent study), improper bolstering, different conditions.

HHJBP asks witness when the study was done - In March 2011 they told the state and defense that they had conducted a study. Ms. Lowe informed them. The study was provided to the State in a written format with the photos in color. There was a depo in early May in which the photos were discussed and provided to the State and Defense. The written portion was done later. Photos were emailed to Orlando and they were in color.

JA - In March 2011 the state and defense were informed about the existence of the study in a telephone conference. Mr. Shaw's depo was scheduled for 5/3 and the study was discussed. It is JA's understanding that the photos were sent to the local FBI field office and that counsel was permitted to go to that office to view the photos. This is the first he has heard that the defense did not receive color photos. The written portion was provided to the defense the early part of last week.

HHJBP to DS - she received something on the 9th - black and white photos and not all of the power point.

JA - 4 additional photos were provided last night. He was not informed that the copies were not acceptable until just now.

DS - had previously requested that all photos and data be brought to the depo. She did not advised that all the photos were not there. She went to the FBI to look at the color photos that she was not permitted to copy. She went back a second time and was still not permitted to make copies.

OBJECTION BY DS BASED ON FRYE.

JA - FBI could not release because it is an ongoing study. However, they went to great lengths to get these photos to the defense.

HHJBP - improper bolstering issue? - This testimony is to address whether the post-mortem banding can be caused by any other means. He does not feel this is bolstering.

JB - Study not peer reviewed and done specifically for this case - and actually began after this case.

JA - Material was available for the defense's expert and they did not do that. Study was started before this case and not done specifically for this case.

HHJBP - 3.220 - State has specific obligation to provide certain things, not the FBI. 6th and then 14th amendment - right to confront witness. No objection lodged at depo. The Court is troubled that the State at the 9th hour provides a power point with color photos that was not provided to the Defense. THE COURT WILL NOT PERMIT THE USE OF THE POWER POINT SINCE IT WAS NOT PROVIDED TO THE DEFENSE. Since there was no objection to the study, the record will stay as it is. It is the State's obligation, not the FBI, to decide when they want to let something go - particularly with the death penalty issue.

OBJECTION SUSTAINED - No power point.

HHJBP - If the defense starts asking about pictures that might change things. YOU CANNOT USE A SHIELD AND TURN IT INTO A SWORD.

 

[TortillaChip]

It's not in, but that's okay, JP will be just as hard about evidence being presented in the DT case. AND, the jury is going to think they didn't get to see something important because of the DT objection. And that it has something to do with the hair and decomposition. And it can be reopened, hah.

 

[Donjeta]

JB: it's an unfair prejudice. We don't have an ability of conducting an independent study, it's apparent results of a study. It was specifically designed that it's for this case

Judge: so your argument is not 405, it's (gives another number that I forgot)

JB: I would classify it under 405 as well

to do a complete study with two powerpoint presentations with thirty photographs, I see numerous issues with this witness

Judge: when was this study presented?

March 2011

What information was presented to the defense concerning this study and when?

Miss lowe informed that we had done this study?

Was this study ever provided to State of Florida?

It was provided in hard copy and photographs in color.

Judg: trying to ascertain when that written study was provided to the State.

We had a deposition in early May where the photographs were discussed and provided to both the state and defense.

Judge: Were the photographs in color or black and white?

I emailed them in color, I don't know how they were printed out.

Prosecution: There was a telephone conference, deposition was taken May 3rd

Photographs were sent to local FBI office and counsel was allowed to view the photographs there.

At some point FBI agreed to provide copies and they were forwarded to Sims.

As far as I know they were in color, this is the first time I've heard they didn't get theirs in color.

Sims: we got some photographs that are not very clear

Prosecution: I am not aware that the copies were not acceptable until a moment ago.

Sims: I went to FBI to view photographs and a report I was not permitted to copy and I was not able to speak with Shaw

this is an experiment and it has not been established that the methods are

Prosecutor: FBI said that they can't release unpublished data since this is an ongoing study. Ms. Sims has seen all the photographs

This is further scientific research to answer the questions raised in Ms. Lowe's testimony about whether postmortem banding can be produced by something else.

This expert is talking about his own research so it's not hearsay.

JB: we brought this to court attention in March. We're in a trial and expert takes a stand and we can't have had an independent evaluation about it. We have done everything we can, goign to FBI office on Saturday and they've been very cooperative but it doesn't take it away, we've dealt with open statements, but they're talking about showing photographs, and that's where we are... We've been dealing with the FBI and the court can't come to us and say you had the opportunity to deal with this and you didn't, we have, I wasn't able to be there but Ms. Sims was, and here we are at the last stages of State's case ....

Pros:
Defense did not take them up on the offer to let their expert study this material. Obviously the deposition hurried them on doing this research but it began from an article saying extra research needed to be done so it's false to say it was done just for this case.

Judge: Lists CA's charges.
It's not the FBI sole responsibility to provide certain items. Every defendant has the right to confront witnesses against himself or herself. There was no objections of Mr Shaw but the court will not allow the Powerpoint since it was not provided to the defense but since there is no objection to his testimony the record will stay like it is.

It's the FBI's study and they have the right to disseminate when they want to but they can't use it in the court of law whenever they want to, it's the State of Florida's responsibility to follow the law. The court will sustain the objections against using the Powerpoint but since there was no objection to the testimony you can continue. Recess for 5 minutes.

The flipside of this is, if the defense opens the door it may open the issue. You can't use a shield and turn it into a sword.

 

[Hamsterdance]

JB getting a win on the PP but the study is allowed.

Is that correct?

Sounds like the testimony will be allowed because JB didn't object at that time, but the photos won't be.

Bill Shaeffer explaining next on wftv.