09/27/2010 Status Hearing @ 1:30 pm http://www.wftv.com/news/25177482/detail.html Baez and Mason http://www.wftv.com/video/25180059/index.html Part 1 JB: Deposition of a Tony Lazzaro that is when we have it currently set for that date. We don’t actually have it set, but that is the date that we are holding for it. I see Mr. Jay is upstairs I plan on speaking to him shortly and to see if that day is mutually acceptable. If not of course we have other dates before then that we can set it at. On my sheet, just another example, the very last 2 pages are the updates that the date filed witnesses after May 24th of this year. In which we had previously discussed with the court that is where the red batch comes from. The prior listing to May 24th is actually already incorporated into my list. These are really just the listing of witnesses listed August 10th , 30th and 31st of this year. As for deposition, As for discovery it is still ongoing in fact last week we had an additional 50 pages discovery. @ 1:14 CJP: Which experts we not be completed by the 30th ? You indicated that you had rescheduled. @ 1:25 JB: I believe that it’s Dr. Neil Haskell which we had to reschedule because of scheduling conflicts and I say that not by Dr. Haskell’s scheduling but by other depose that we had actually scheduled ahead of him. The other experts would be some computer experts that I believe the state just recently filed. CJP: How many computer experts? JB: one and then there are two cell tower experts that they just recently listed or cell phone. Either they are going to, I haven’t taken their depositions so I don’t know exactly what they are going to testify to, but I can presume that their either going to testify to cell tower pings or cell phone records, but either way those are people that we have listed. There is one other interesting witness that was listed and that is an additional, let me find her name, Christina Ballard. This is a Gainesville person, someone from the DNA Pound Human Laboratory from Gainesville. This person is, I presume an expert, the only unfortunate aspect of this is that we just came back from Gainesville taking depositions and we didn’t have any preparation for this witness so we did not take this person’s deposition. I don’t know if this is somebody who just handled something and is playing a minor role, but certainly we’d like to know that and there are a couple of other witnesses who’s names were unfamiliar and their addresses are forth coming. CJP: When you say a couple, How many is a couple? JB: Two. CJP: Ok. JB: Thomas Hoffman and Kena Seegmiller. CJP: So that is a total of 6. JB: No, no, no. I’m sorry I don’t mean to confuse those with they’re not expert witnesses. These are just witnesses, sorry. CJP: Ok, Then help me understand all I want to talk about now are expert witnesses. JB: Yes, sir. I count this right now. JA: I can clarify the one witness that counsel just had about Ms. Ballard. CJP: Yes, Mr. Ashton. JA: She is the individual that created a video super improvision that counselor was shown during the deposition of Dr. Warren in Gainesville. That is her involvement in this case. There is another matter that I want to address but I’ll wait until that time. CJP: Ok. So in terms of expert witnesses there are? JB: Seven plus the one’s that we just discussed right now. CJP: For the record to be abundantly clear lets list the names of those 7 expert witnesses that still remain. JB: Christina Ballard, Kevin Stenger, Michael Rickenbach, William Moore. And may add to Michael Rickenbach in Washington D.C.. He was scheduled this Wednesday and Thursday to take D.C. depositions but he has a conflict and cannot attend. Sandra Cawn, Maureen Bradley, who we’ll be taking, I’m sorry, Thursday so she doesn’t fall in that area, that category. John Dennis Brandley and James Darnell from the secret service, I don’t think that we are going to able to be successful in scheduling deposition. Our understanding is that he is just going to testify to the soft ware that they used and I don’t think we have any challenges for that and the only other expert that remains is Brandon Giroux if I am pronouncing that correctly. He is a firearm’s tool mark expert. We don’t anticipate on him testifying about anything other than a bullet that was found off Suburban Drive which I think I don’t know how it could relate to this case, but we certainly don’t think there is an correlations of the two and unless something miraculously comes up in more recent discovery we don’t have plans on deposing him. CJP: Now, of those individuals that you just listed. When do you believe that you will have those completed? Depositions? JB: I think baring schedules sometime at the end of November. CJP: Mr. Ashton. @ 6:47 JA: The only comment that I wanted to make DR. I think it is Dr. Rickenbach of the FBI. I do understand that he was attempted to be scheduled this time and he is not available. I’m not going to have an objection to him being deposed slightly outside of the courts limitations but not November. The other I really want to mention is Dr. Neil Haskell. Dr. Haskell is the forensic Etomologist who has been listed in this case for the last two years and his report I believe was produced a year and half ago. There has been no attempt, there has been. Dr. Haskell deposition as never been scheduled there were some preliminary discussions, very preliminary discussions about trying to do his deposition in June of this year. I made my schedule available and it was never pursued. So I believe as to Dr. Haskell I would have to ask the defense file a motion showing good cause for deposing him outside the courts schedule, because at this point I can’t see any reason why he shouldn’t have been deposed before. His work has been basically set in stone for at least a year and a half and hasn’t change so the other Dr. Rickenbach is the other one I had involvement with and the other experts Ms. Burdick would know more about. @ 8:15 JB: I can address Dr. Haskell if the court wishes. CJP: You may. JB: We have, we had our evidence inspection I believe a month ago. Where Etomologist came down from Nebraska to inspect the evidence unfortunately the conditions and the equipment were not adequate for him to conduct a thorough examination of the Etomological evidence. I have with me, Mr. Ashton has actually just handed this to me this morning and I think he had e-mailed it prior to that. It is a stipulation for the examination of what he is going to examine. Our expert has to examine what their expert examined and so I can pose proper questions to their experts. That’s the reason Dr. Haskell has not been done yet, until Dr. Huntington can review the bugs and the evidence that Dr. Haskell examined I’ve had to put him off. In addition to that we had him originally set within the time frame and that is of course when we brought it to your honors attention that we would not be able to comply with that and since then that person was rescheduled and the FBI depositions were scheduled over that time period. We’re continuing, we’re scheduled, we’re fully booked for the next couple of months. We’re not sitting around doing nothing all of these depositions take preparation for who we our about to depose which means going through 23,000 documents making sure we have all the proper documents as to questions these witnesses about in their depositions so it can be done thoroughly. CJP: Mr. Ashton it looks like you have something you want to say? JA: Well if this is the good cause hearing I do before the court, but if you ask the defense to file a motion I will save my comments till then. CJP: I’m not going to ask them to file a separate motion. JA: The evidence in question in this case has been present and available for at least a year and a half. The defense chose for whatever reason to delay looking at any of this evidence despite our repeated requests for when they wanted to do it to July 13th and 14th of this year approximately two months ago. It should not be a surprise to anyone what equipment would be available. My point is number one I don’t think the defense in the last two years has been diligent in getting this evidence examined. The defense agreed to the order that the court entered when Judge Strickland did it back in the spring of last year. They agreed to it they knew what the limitations were. @ 11:16 They agreed to the evidence inspection limit being farther than the expert limit. In other wards that is next month. At this point to indefinitely extend this preparation it interferes with my preparation, because if you give them another two months to get their experts done then what happens to the deadline for me which is to get, I want to get their experts deposed. Two months ago at a status hearing Mr. Baez first broached the idea of having the Etomological evidence sent to Dr. Huntington. I indicated at that time to the court and to him. That I have no problem or objection to it as long as I had a list, and as long as I got some safety precautions. Nothing was done about that until about three days ago. Judge you know there isn’t as I can see a good cause for an indefinite delay in the depositions of these very important witnesses. So I would object to it at this time to extending the limit as to Dr. Haskell. I do n’t have any objection to have a brief extension as to Dr. Rickenbach, because I do understand we could have deposed him sometime in the last year and a half, they tried to this week but he is unavailable, so a couple of weeks isn’t going to hurt anybody, but I do object to extending this deadline for two months. Since everyone is known is here for the last nine. I don’t know if Ms. Burdick has anything to the other experts. CJP: Mr. Baez any closing comments? JB: Yes judge. I’m not going to respond, I will respond this sense that our original plan for the inspection of evidence included all of our experts to meet together. So that one could consult with one another and make the use of the important time and the travel that was required for the evidence inspection to take place. @ 13:23 We attempted in good faith to be able to complete all of the examination. With all due respect to Mr. Ashton he is not a forensic etomologist or forensic scientist. They have after attempting to do it expeditiously and in a united front where all experts could meet and consult with one another. Unfortunately some things did not work out and immediately brought that to the courts attention we returned at the following status hearing. As to time I don’t think Mr. Ashton or the State of Florida prejudice in anyway but basically we keep running into issues where we’re being handed discovery as previously mentioned 70 additional witnesses and 8,000. CJP: All I am interested in Mr. Baez is the expert witnesses. That is the subject not any new ones we’ll get to those as we come. JB: Well, that would be my response judge. We made a good faith attempt by bringing them. We didn’t bring Dr. Huntington to Orlando so he could go to Disney World. We brought him down here to do a job. He attempted his best efforts to do what he did and unfortunately it didn’t work out @ 14:48 based on the amount of evidence and the a, and the lack of proper equipment. He did bring two separate microscopes with him when travelled down. He made the best efforts but after a short period of time he advised me this is not going to be able to be done properly what should I do? And I said well, in fact I think we brought it immediately to the state’s attention while they were there and we came to the agreement that’s no problem will send it to them. We have an agreement. I just don’t understand what the issue would be. Mr. Ashton hasn’t stated how he is prejudice in a way just that it delays his preparation. Unfortunately it is not a scripted event. We didn’t try to do, we didn’t try to do anything intentionally to stall it just wasn’t we weren’t able to do it we had in the manner we tried. @ 15:48 CJP: So out of the list of experts that you just listed Mr. Baez how many you anticipate will not be completed by the 30th ? JB: The list I have given you. CJP: Of experts. We know the gentleman from Gainesville won’t be and we know the guy from the FBI. That’s two. How many more? JB: The way I have it set up to answer your honors question. The people who I previously mentioned some of them are already scheduled for deposition. For example: John Dennis Brandley is scheduled for October 7 th , I think, I can go through the list and review the rest. CJP: Who is it that you don’t have scheduled maybe that’s the easier question. JB: If I can have a moment judge? CJP: Yes sir. @ 16:43 JB: I believe there’re all scheduled with the exception of Dr. Sigman. Who I wanted to do today, but the State was unavailable to do today. In addition to that we had some people, the cell phone people sched uled on one day and we had to reschedule them. That is, excuse me the computer people. That is Sandra Cawn scheduled on the 16th unfortunately for some reason I don’t know why they were cancelled. I don’t really consider the dog handlers experts but they might fall under that category. Which is Forgey and Brewer and Stenger. Those our the people that need to be rescheduled. JB: So. JA: I don’t believe Dr. Haskell is scheduled. JB: I have Dr. Haskell scheduled. JA: I received a phone message today and he had not been contacted about being scheduled for a deposition and I know I haven’t. JB: I have him down for October 22nd . JA: That’s, no one has ever talked to me about that or him so the scheduling must be new. I don’t know if counsel has coordinated with my secretary to see when available. I know it is the first I heard about it. CJP: Anything else folks? JB: That’s it your honor. CJP: List of the folks that you’ve just listed will be extended til the 19th of November. (Done talking about expert depositions) CJP: Now, Mr. Baez have you had all of your experts review all of the evidence that you need to have reviewed? As you know the deadline for them to review is the 31 st of October. You got anybody that you still need to have review evidence? JB: We just have the hair evidence and the etomology which is I believe being worked out. This stipulation I will be signing. CJP: Alright, the air evidence what are you working out with that? JB: We did go to Knoxville Tennessee. Took all of their depositions with the exception of one, who was unavailable. I would like to from what I understand and Mr. Ashton can correct me. From what I understand the only person that was left out went to the junk yard and collected control samples. If that is the case, what I would like to do, and I will be contacting Mr. Parker, who is the Oakridge Laboratory counsel, see if we can just do a telephone conference. If he is a minor person we certainly would like to know about it and knock that out relatively quickly. Other than that. (Done talking about evidence review) CJP: Did you all ever talk with the folks from SISCO? I’m told that you all did. JA: We have. JB: I have actually signed up for SISCO to try it out. It is not the one I think you have at the University of Central Florida, but it is one that is their commercial brand. We’re trying that out. I don’t anticipate that being an issue. The only other trial I think we have been actually doing is Skype to date. I don’t know if the state plans on using SISCO? CJP: Now who did you talk to over at SISCO? Is it the contact that I recommended through court administration or did you use someone else? JB: No I actually down, I signed on online and completed the proper form that was there. CJP: I would suggest you go through court administration that I have suggested, because they are willing to accommodate you which is a lot different from the folks that you would get online. Matter of fact they were here last week. We’re getting ready to contract with them to do some work in this court house. Ms. Burdick did you talk to them? LDB: Your honor I spent quite a bit of time talking to them for atleast two hours. The first individual that I talked to is Mr. Allen, I believe he is the local representative to talk about the option to tele? There are limitations with that, because of the locations across the country that can, where we can set up for that. I have been physically setting up an option with the witness we had in New Jersey. The closest location is for tela presence is in Manahttan in Penn station. The timing for that weren’t going to work out either but never less they don’t have the facilities for placement where it can be easily utilized the other issue here about UCF that we had talked about is that they were going to work through this was there having a document camera built during the tele presence. So they hooked me up with another system and this is maybe what Mr. Baez is talking about Webex, which is an online document sharing meeting system which I think will work for at least the deposition that I was intending for New Hersey, because I can load documents on the system as a host. The witness then can have access to the document I can give her permission to anitate the document. We can record the whole thing. @ 24:16 We can print anything that they anitate on those documents …………………………………………………………………………………(Done talking about CISCO) @ 25:41 CJP: The bottom line folks is that Mr. Baez based on which you’ve told me all of your experts should be able to have their review of all the evidence completed by October 31st. JB: Yes sir. But I don’t anticipate that being a problem provided that they receive them within the next week or so. We’ve requested it about the, Mr. Ashton is requesting that I sign a stipulation I can sign it right now but I think he wants my clients signature which is honestly I don’t necessarily think that would be necessary. CJP: Well death is different. So your client needs to sign it so that should be accomplished no later than tomorrow afternoon since your client is local. JB: Yes I can have if Mr. Ashton can get me the other one for the hair I can take them to her today or tomorrow. JA: Yes and if as he discussed a moment ago, if counsel could give me a list of every hair evidence he wants then, because what I am doing is attaching the list to the stipulation so that there is no confusion of record that I will send. I know one item he wants. My question earlier he is going to resolve are there additional standard hairs he wants sent 12 or is it just the one he wants sent. Once that is done I will prepare a stipulation and have it signed and those things will be sent off expediential (Done talking about stipulation) CJP: Mr. Baez next question I have is your to list all of your experts I believe no later than the 30 th November. That is expert witnesses. Do you anticipate adding any beyond what you presently have now? JB: What I like to do is ask the court for a one week extension on that requirement. Mr. Mason and I are flying to New York to meet with Linda Kenney Baden where we plan on having an extensive meeting to discuss who we are listing based on what we have and of course. CJP: Why would I need to extend beyond November 30 th if your doing it next week? JB: Oh I’m sorry. For some reason I thought you said September 30th . CJP: November 30th JB: No I don’t anticipate any delay in that. CJP: Ok. (Done talking about experts being listed on time) http://www.wftv.com/video/25181178/index.html Part 2 CJP: Now have you completed all the depositions law enforcement related witnesses or employees? Other than the computer expert that you just mentioned. Regular law enforcement fact witnesses or law enforcement employees. JB: I think if the court would grant us the same extension I’m quite certain we can get them done for the 16th . CJP: I don’t like to give open ended extensions. I need to know specifically which one and why you have not been able to take them before I can. JB: Well for starters there were several no shows at our. CM: eight. JB: There were eight no shows at our session that we held last month, but we got I think 27. CJP: What date was that? LDB: September 3rd. JB: September 3rd . Excuse me we. CM: We took 27 out of 35 on that day. CJP: And do you know why they didn’t show up? JB: Some were from Orlando Police Department, which I think we had problems with them cooperating. Actually Mr. Mason might be able to address those since his office was in charge of them. CM: There is some who had conflicts with vacations, there was one that was sick, there was one that had someone in the family sick, on just flat forgot, a couple of them said they didn’t get the notice. I did not see the need to show cause or anything else, because they responded cooperatively and were going to reset them and we have several more. We did get 27 done that one day. CJP: So when do you anticipate completing those eight? CM: Well. JB: I. CM : Go ahead Mr. Baez has got the calendar. JB: I have, I am holding December 1st for all the no shows. CJP: Holding what? JB: December 1st. CJP: That won’t work. December the 1st is out of the question. We can fix up a nice Saturday schedule for all of them. JB: That’s fine judge. CJP: December will not work folks. They got to be done within the month of October. CM: Don’t we have about 30 more in that same category Ms. Drane? Ms. Burdick? LDB: Your honor my recollection is they have scheduled for October 7th those individuals who had conflict with the short scheduling of all these depositions. CJP: Ok, is it the eight officers solely? @ 3:07 So were make sure we’re talking apples, not oranges, pears and tangerines. You have a list of the eight officers? CM : Well. LDB: I have a list your honor. There were 35 scheduled. My recollection there were 23 d eposed. CJP: Ok. LDB: The individuals who were not deposed are Morgan Hayes with FDLE, Christina Hopkins who is assigned with MBI or was, Mark Hussey with OCSO who was excused by counsel, Heather Casper who is also with OCSO. I have all these individuals excused or unserved not just failing to appear. Robin Maynard with OCSO, Darrell McKatskill with OCSO, Shelley Meade who I think is with FDLE and no longer with the OCSO, Carolyn Roderick with the OCSO and Bill Yamber with OCSO. Two with OPD, James Stewart and Rudolph Wilson, we did not hear from those individuals at all. I asked whether or not they were served therefore they did not get noticed. Their agency which I understand from Mr. Mason got noticed whether or not they noticed the individuals in question is not known. All of these individuals, I believe, have been rescheduled for October 7 th . I probably have that here somewhere with me in court. @ 4:40 CM : Well that is the first thing. They don’t get served that is not in the rules, but we did excuse the ones that called in advance and were polite and …. And if I recall from the Sheriff’s office called one or two days later and stated he plum forgot and that is fine. I think there is some scheduled. There are though another, there’s another group about the same length isn’t there? CJP: I just want to deal with these eight. You say they’re all scheduled for the 8th ? JB: No. CJP: That’s what Ms. Burdick. CM : The seventh she said. LDB: October 7th . CJP: October 7th . So, Mr. Baez has a trial starting the week of the eleventh. So just incase one or two does not show up I will extend on those witnesses. Ms. Burdick. LDB: Well, CJP: Go ahead. LDB: I’m sorry for interrupting. But to the latest order it has set it that law enforcement to October 31 st. CM: Yes. CJP: Yeah. LDB: Previously. So we haven’t had any real problems those being scheduled. CJP: Yeah, but Mr. Baez said he wanted December and I said no. LDB: Correct. CJP: So. LDB: But I believe that it can be done in October. One of the things that I had offered to the defense was October 16th which is a Saturday. CJP: Bottom line is you need to get them done by October 31 st if they do not show on the 7th notify the court as to the ones that did not show and then we will help get those scheduled. JB: I think we have other witnesses scheduled on the 7th . Unfortunately I don’t have the complete. I don’t have the same list that Ms. Drane Burdick has. CJP: The bottom line is the 31st is the drop dead date. JB: The only other issues I have judge bringing to the courts attention. Last Friday we had one of the lead investigators scheduled for deposition an all day deposition. He, I think the day before, or two days before, we were notified that he is out of town investigation. As a special courtesy we excused him from that deposition, because he would not be able to make it back from his as fast breaking investigation as it is classified as. That person needs to be rescheduled. There aren’t, there aren’t enough days to fit him in, in addition to that Yuri Melich, which is the lead investigator was not completed. We began it, I think we deposed him for about eight hours and we’re about half way through. So we need to find another day for him as well. CJP: Well you have till the end of October. Remember there’s nights and weekends. Now you also mentioned. CM: You got trial, I’ve got trial. (Done talking about law enforcement depositions) CJP: There some there that, what I would call ordinary witnesses @ 8:12 who are not law enforcement, law enforcement related or expert witnesses. How many of those are left that you have not deposed? JB: Would your honor like for me to break them down by prior May 24 th or include them all together? CJP: Just all together. I need to know how many you got left that you have not done. JB: If I could have a moment your honor. CJP: Yes, sir. @ 8:47 JB: I have 12 not counting the ones that were just listed by the state this past month. CJP: Ok lets take the 12 and then will talk about the ones that were just listed by the state. JB: Sure I can go down the list and tell you why and what their unique situation is. First I have Robyn Adams, she is a federal inmate in Tallahassee. That’s one. The next one is Deputy Richard, well former Deputy Richard Cain. He last I heard is in Pennsylvania. Next person after that is Helen Davis, who is in Texas, Maya Dercovich who is a state prisoner who has been transferred to Ft. Laurderdale Florida. Erica Gonazalez who is local, Silvia Hernandez is local, Amy Huizenga who is on a cruise ship and there is some discussion back and forth to whether we are going to have to go to Miami on a Saturday to depose her. CJP: She works on a cruise ship or is she just a perpetual traveler. JB: I believe she is working judge. LDB: She has been, her lawyer called Kirk Kirkonell, he has been keeping us abreast for her schedule. He has indicated that her cruise ship docks in Miami on Saturdays and she is available Saturday morning for a deposition before she has to turn around and go back out. CJP: What roll if any does she play? You have a witness statement from her? JB: She is a friend, a former friend of our client, who will testify to mostly activities between June and July as well as July 15 th . Several activities during July 15th . She is also the complain taint in the check charges. Well I would say she’s. CJP: So have you all talked with Mr. Kirkonell about setting a day for her since she is in port in Miami on Saturday’s? Mr. Mason. CM : Well I going to tell you how I feel about it. We got 300 some odd witness here. We’re not worried about anyone else’s schedule and they’re not worried about mine I’m not going to worry about hers. The bottom line is the boat gets in on Saturdays and she’s available with stuff she got to do. That means we have to travel Friday. Spend Friday night and I think its off. She can make arrangements to take her time off. This is a murder case. She’s involved with it. We have tried to accommodate, but to tell us we can only do it on Saturday. It is unacceptable to me. Now I don’t know what their cruise season is or when she is going to be off for holiday but that is the only way we can take her deposition. CJP: Have you all talked with her attorney to see if she has days off other than Saturdays when the ship does not go out? JB: I would add to that judge that her deposition was previously scheduled, but as a courtesy to Mr. KirkConnell, he had just been retained and asked if it would be rescheduled. So that is where were at. LDB: She had been available around here for the last year and a half. And she had a job that she could make some money. So she had been prior 2 years here available locally to be deposed. She worked down the street. CM: maybe the JAC will buy us tickets LDB: … CJP: Just a second, one at a time. Ms. Burdick. @ 14:22 LDB: She was cancelled I do recall that and then she wasn’t rescheduled. She was the complaining witness in the check charges which were resolved earlier this year. I believe that when that case was resolved earlier this year is when she look for employment. CJP: Was her deposition taken in the check case? LDB: Was not. CJP: Anything thing else from October 31st? JB: Yes, I had stopped on her. I can keep going judge. The next person would be Daniel Ibison, who is local, Joe Jordan, who is local, Anthony Lazzaro, who is in New York City, Tim Miller, who is in Texas, Rick Plesea, who is in South Carolina, Cathleen Ramsey, who is local, Anthony Rusciano, who is in Massachusetts, Keith Williams, who is local and then we have the recently listed people. Which is CJP: Ok then with the recently listed people. How many of them do you wish to depose Mr. Baez? JB: The ones that we want to depose as to the recently listed people or are you asking me specifically about the civilians? CJP: Just the recently listed people. How many are those? JB: There were 70 listed we selected 18 for deposition. CJP: And you don’t want to take the depositions of the rest of them? JB: A lot of them are custodians of records other ones that we looked at are people we can interview as opposed to taking their deposition. And that’s kinda what I’m doing to facilitate this. There is still a great deal of people still listed on the state’s witness list that are not being deposed because we’re sending an investigator out to talk to them find out what they’re going to talk about and there relatively minor roles. If we had some assistance by A B and C witnesses it would have certainly facilitated this a lot better. The problem is and we ran into this issue on September 3 rd . Where we took depostions. There were people who were listed as a category A witness who took some software from FDLE to Orange County and that’s all they did it like a delivery person and this is what we’re running into of course we’re utilizing our investigators to take care of that. There is a possible issue now by looking at they’re witness list. Perhaps the state can help us with this or not. Just recently within the last month there is seven or eight witnesses from the jail. Correctional officers they’re now being listed. My previous experience with the j ail in this case there might be something funky going on at the jail again. If so we like to know about it. Don’t understand why they are being listed now, but if it’s an issue we can talk about today or we just go there an depose them. CJP: Did you ask them why they listed them? JB: Yes, but of course we’re not getting much by way of answers. CJP: State like to address the jail witnesses? LDB: Your honor a Silvia Hernandez was a guard at the Orange County Jail, who was subject to an internal affairs investigation. Ms. Hernandez did not even come to our attention until Spring of this year. Somebody who facilitated contact between Casey Anthony and Robyn Adams. Ms. Hernandez IA investigation was made public record late summer. We procured that ands pulled evidence from the report @ 19:08 or at least the taped statement from witnesses listed those in the advent that there was somebody on there that had some information and the defense may want to know and those were listed in very short order. After I received the public record version of the internal affairs investigation. So that is those people are CJP: Did you give them the internal affairs investigation? LDB: I’m sorry sir. CJP: Did you give them that report or that investigative report? LDB: Yes I did. CJP: And it had those witnesses names contained in it? LDB: It had tapped statements from those individuals who are named and they were also given those audio tapped statements. Yes Sir. JB: Not everyone from this list. There were a couple of people who were on those tapes. I can also say I think to facilitate this and I don’t know if the court would like for me too file a motion in reference to this but I think the best place to depose all these correctional officers is at the jail rather than to take them away from the jail and because of my client not being able to have remember names. I have asked her who are these people and I would like to request of course, I’ll submit the paperwork but I would like the defendant presence while these are being deposed. CJP: Why what? JB: I’m sorry. CJP: You want your client present through these depositions? JB: Yes sir. CJP: What does the rules say about that? JB: I have to file a motion. I realize that. CJP: Generally what does the rule say? JB: Upon good cause. I think judge in this situation for. Generally speaking No the defendant is not allowed to be present. However, in this circumstance I think that possibly the. Asking someone who’s this person is not the same as being able to see who they are and in this situation based on my inquirey that is what I think would benefit us the most. CJP: Anybody else from those late filed, recently filed names? JB: I can go down the list, but I think your honor has a copy of the list. Many of them I think will be relatively quick depositions. I don’t anticipate to many of them taking a very long time. For example, names come up during depositions and once their names CJP: Bottom line is when will you have those done? I know when you are going to say and I can anticipate you won’t be able to get those done by the end of October. JB: Correct. LDB: Your honor if I may. When we had a status conference after the last court status conference, they had brought this possibility up and my recollection is that for those individuals only listed after May 21st, was the date when the court came out with it’s first amended order. In Judge Strickland’s order in March and then you did that in May 25 th or there abouts. You had given them until December 31st only for those late filed witnesses. Which I would believe would also imply for us for all of the defense witnesses not listed until August 30 th of this year. CJP: I am looking at my order trying to see if it is listed in there and I don’t think it is, but I’ll go back an check the transcript. LDB: The court may have not asked for a list of individuals from those late filed witness names and then he would have done them all. CJP: Ok. JB: Now being that is what I am asking for I have no reason to argue with that. And I think that. CJP: All I need is a list that you both agree on. JB: I could report that every CJP: Just give a list that both lead counsels signs off on. Will give you to December to get those done. (Done talking about ordinary witnesses and recently listed witnesses) CJP: Now, there has been some new notices of appearances filed. Have you informed counsel and I think you’ve had somebody on to deal with penalty phase? JB: Yes sir. CJP: Remember that November 30th is the deadline for all the penalty phase witnesses to be listed. So have you apprised your new death penalty expert of that date? JB: Yes judge and she has been actively pursuing mitigation. I anticipate her making an appearance before your honor relatively. CJP: Also I remember you still have a on payroll a mitigation investigator. JB: The two of them have been working hand in hand closely since she came on board and she is fully aware of the deadlines. (Done talking about recently filed new attorneys) CJP: Ok. Ok, anything else Mr. Baez? I covered all I think I want to cover. JB: Yes sir. I think after speaking to Mr. Ashton that we can both address the issues. I recently filed a motion for to test DNA evidence. While Ms. Drane Burdick was speaking I asked Mr. Ashton if he wanted to address that. CJP: When did you file that? JB: This morning. CJP: Oh. Haven’t seen it. JB: Oh Ok. Is there any possibility of us bringing it up now so we don’t have to. CJP: If I can get a copy of it to look at it. Did you give it to the clerk? JB: yes it has been filed with the clerk’s. I don’t know if it’s been scanned though. Is there anyway of checking? http://www.wftv.com/video/25182998/index.html Part 3 JB: Go ahead. CJP: If someone has a copy. JA: You can read mine if you like. CJP: Yeah. Just let me look at it. @ 1:50 CJP: Ok Mr. Ashton here’s your copy of your motion. Mr. Ashton are you do you want to hear it now or do you want to set a hearing for it? JA: We can address it now. CJP: Mr. Baez you may proceed. JB: Your honor I think the motion pretty much lays it out. There, we just have a disagreement, unless I miss characterized Mr. Ashton objections. CJP: I think what Mr. Ashton is objecting to is your lab is not in the continent of United States, but in a foreign country. JB: Yes sir and the, of course being ASCLAD certified. Which I tried to outline. Majority of the DNA labs are not ASCLAD certified. We’ve been able to secure Richard Eiklenbloom to due the trace recovery and DNA testing on it and that’s if the United States is the issue I am also. I have been recently told that they are setting up a lab in Denver Colorado by the, within the next 30 days and it is actually being in the process of being set up and of course it could be tested there if that is the main issue of obstruction I would say and that is relatively it. I don’t know , I don’t understand the state’s objection as to the ASCLAD certification items were sent to the Westhoff laboratories. They’re frequently sent there by this district which is not ASCLAD certified and as I laid out in my motion all 15 in the state of Florida are all law enforcement agencies. ASCLAD of course is American Society of a Crime Laboratory Directors. Crime laboratories are usually affiliated with law enforcement. While there are some private labs throughout the country that are ASCLAD certified. So the expert that we have retained and has actually inspected the evidence in this case and had a, has a significant amount of experience in trace recovery and I would like to point out, as it goes t o DNA testing and I’, certain the court is aware of this, most DNA is collected by law enforcement. The trace recovery is done by DNA experts. Richard Eiklenboom has a unique back ground in both, law enforcement trace recovery and DNA and it’s our position that he’s retained, he’s fully up on the case and it would be in our best interests of course to have our expert do the actual trace recovery and testing of DNA in this case. CJP: Mr. Ashton. Mr. Ashton are you going to represent the state? JA: I am. CJP: You may proceed sir. JA: Thank you. Two matters. The first is this motion requests testing two things. One is the bag, call it the laundry bag, where the remains were found and the second is a pair of shorts found with the body. As to the laundry bag, I tell the court the following, because the court is the holder of the purse strings if you will. That has already been tested by the FBI crime laboratory and found to have no DNA. That is not a legal objection, but as the steward of the purse strings I thought I had to tell you that. As far as the pants go I’m not sure if it was part of the original discussions I leave that as well and leave that at the moment. My request that the items be tested in the continent of the United States has two reasons. The first is outside the continent of the United States we have no jurisdiction to subpoena witnesses who are involved in the case. Anywhere in the United States we have the power @ 6:31 to subpoena witnesses to testify should we need to if it is sent outside the United States we have no power to do that. Basically to individuals who work on this whether they want to cooperate or not. Second obviously is simply a matter of transportation would it take an item as important as in this case as these and transport them there I would like to limit the possibility of damage. I do have concerns about the items and I am not going to go into that at this time. They’re not ASCLAD certified. As far as I know there again don’t know what the RBA accreditation means what they’re accredited to do or different type of analysts. I know that the motions says, that they are quote unquote renowned. The only place I found that was on their website, but I don’t know exactly what they’re renowned is, but it doesn’t appear that there is anything that they can do that is the general exception that any lab cannot do. So, I believe that it is safer for everyone and more secure to have an ASCLAD certified laboratory do the test, because ASCLAD gives us assurances that certain protocols are followed in the collection sampling and handling of evidence and I believe that the court should require that certain. There are about 10 different research on the ASCLAD lab and by the way, ASCLAD is short for the American Society Crime Laboratories and Directors and the lab accreditation for it is the body for that accreditation for laboratories. I was able to find a dozen private laboratories accredited through DNA and haven’t advertised for touch DNA, by the way, isn’t anything new our law enforcement laboratories have been doing touch DNA which is just DNA from skin cells actually for at least 7 or 8 years so it is nothing new. There are other laboratories, the alternate laboratory that the defense suggested in the motion which is National Medical Services of Phillipsboro Pennsylvania is acceptable with the state. I’ve researched they are ASCLAD certified and perform nuclear DNA testing. So if that is the laboratory permitted we have no objection to that again we would want to require a stipulation similar to the one we provide for the other items and we would send those and that’s all I have to say unless the court has a question. CJP: Mr. Baez anything else. JB: Yes sir. CJP: you would like to add. JB: Yes sir. But, the issue to out of the continent United States of course today is protected by spoliation the law and of course the court can make that determination. CJP: Protected by what? JB: Spoliation. If there is an issue they can certainly receive an instruction from court the jury can receive an instruction from the court to hold what evidence to which ever light or actually address that with a stern court instruction I should say. Now the issue as to the ASCLAD I think I have touched bases on that. The issue as to whether it has been already tested. The whole bag was not tested for DNA I think that is a bit misleading. CJP: Don’t worry about that issue. My concern is sending something beyond the jurisdiction of this court. There are many, many DNA laboratories within the continent of United States. So, I will not be authorizing the evidence to be shipped outside of the United States. @ 10:54 JB: Yes I will address that your honor. They are setting up a lab within the next 30 days in the United States and that could be remedied by that form. The other issue that was brought up by counsel of touch DNA, while it is sometimes used synominlously low copy number DNA are two different things. And of course low copy number DNA it is not common among most DNA laboratories. The FBI does not use low copy number DNA. There is a threshold that they use and of course they have different requirements than many other DNA laboratories have in fact the New York state police crime laboratory does use low copy number DNA and this is the area of which Mr. Eiklenboom specializes in. I don’t know if Mr. Ashton was making jokes @ 12:00 about being renowned, but the Eiklenboom’s have been involved in numerous cases both current cases and post conviction cases that have law enforcement agencies across the country calling them and asking them for their services. So, as to the credibility to those specific witnesses if he likes he can save it for cross examination. We disagree. We have every confidence, we have every bit of confidence of the experts. Like I said I don’t know if it was a joke but I would conclude with that. We can have it tested in the United States. We would just simply like our experts to be the one to test it. And that’s it. CJP: Ok. @ 12:53 Anything else from the state? JA: Just that I don’t believe that this laboratory, if in fact it is being set up or what he said it is, is ASCLAD certified. So whether it is in the United States or not. I believe ASCLAD certification is important requirement of any kind of testing and the defense requesting anything other than an excepted technology to do the testing is unacceptable that is not included in the motion, but I wanted to say that about that. CJP: Ok, the court will issue a ruling later on this week, but I’m inclined to grant the motion I just need to look at something. To whether or not what type of certification if any it has to have, but testing will have to be done here in the United States. (Done talking about the DNA motion) CJP: Anything else folks? LDB: Your honor if I may there is just a couple of issues that I wanted to bring the courts attention to. CJP: Yes ma’am. LDB: You had set a deadline of September 20th to address a list of pending motions. I had responded to that and Mr. Baez had needed in his response some minor adjustments. I wasn’t sure if the court had received that or if there was any further action necessary on it? CJP: No, I have some orders that I am going to be entering probably later today or tomorrow on some motions. I know you all have been busy, but there are still a few out there that may or may not be ripe for hearing, but remember the deadlines if they come and go they’ve gone. LDB: Your honor as it relates to the one in particular that has been pending for a period of time. That dealing with Mr. Kronk. I can if the court so wishes, file a written response to that if that will suspense with a hearing. In this case I have had to file a written response and then had to have a two hour hearing on it. Then I would prefer not to do the response if the court so directs. CJP: Mr. Baez do you want to have a hearing on that motion? JB: I think we do judge. I will check with Ms. Drane Burdick to see if there are certain stipulations to be made, also I can look into certain witness issues and then request a date it could be heard. My understanding of how we do it if then the court would advise that state has a response to file and then take it from there. Didn’t think we were going away from that. CJP: Well, if we’re going to have a hearing on it then there is no need to ask them to file a written response. I mean in reading your motion I guess what we do is accept everything in your motion fro purposes of the motion to be true. Then the question comes in with the exception it is that would allow that type of evidence and it is basically a legal argument. LDB: Which I more than happy to put in writing so I don’t have to CJP: I don’t mean to think that your going have to do anything. LDB: CJP: I don’t think your going to need to bring any witnesses to testify you assume for purposes of the motion of what is in it as true. And then you argue to what is the exceptions to Hitchcock which basically states hence for the proposition that a person can not be impeached by prior bad acts and then we go back and forth to what exceptions that will permit that and if there is any legal authority or precedent that allows that type of evidence in. So, I’m taking you at your word that you want a hearing. JB: Yes. CJP: And if we’re going to have a hearing if your going to have a legal argument there’s no reason to do it twice. There’s not any need to do it twice that is by a written response and then an oral response. (Done talking about the Kronk motion) LDB: On September 20th I did receive an Amended Defense Witness list which is after the courts deadline for the listing of witnesses. I do believe that one witness was already on the state’s witness list. The other I believe I have her set for this week for deposition all though I did want the court to know that we are getting witness list after the deadline. My understanding that anything after the deadline should contain a stipulative of good cause why or not why the have not done this before the deadline. But so far we have only had one of those. CJP: The state’s interested in filing a motion to strike or? LDB: Not at this point. CJP: Ok. LDB: I already spoke to the person. I was just bringing to your attention in any event that I begin to get these on a regular basis throughout the next several months. CJP: Ok. (Done talking about the late filed Defense Witness List) LDB: The only other thing that I wanted to bring to your attention is that we have yet to receive statements of people listed by the defense witnesses. The example I can give the court. @ 18:57 is that I spoke with an individual last week by the name of David Lohr as listed by the defense. He told me that when he was approached by said investigator that person asked was it ok to tape his statement. So there is a taped statement out there by Mr. David Lohr that I believe the defense as rules of discovery have obligation to provide to us and that same obligation applies to all of the witnesses they have listed whether they have taped statements and so far they have not complied with that and I prefer not to have to wait @ 19:39 for a short time motions to tell these matters when they in question asked to or are ripe to be by deposition. CJP: Mr. Baez. JB: Sir. I think Ms. Drane Burdick reads all the motions and discovery. In this case that recording given as an attachment to the motion that we filed with the about Mr. Lohr. So, I be more than happy to give her another copy, but she was given a copy in fact it was filed with the court. This is the Equusearch journalist. This is the journalist that went out on Suburban Drive by request of Equusearch and he also discussed a book deal with Mr. Nejame. I am actually a little shocked that Ms. Drane Burdick hasn’t received a copy of it, because it was certainly attached to the motion as an exibit as well as a copy of the transcripts your honor. LDB: I was just using. I was just using him as an example your honor. Based on that there are other witnesses said that there are tapped interviews that their investigator took and they have listed those witnesses and they have not done anything but that. They have not given us any photographs that they may have taken, anything written that they may have produced. I’m not talking about experts, I’m just talking about lay witnesses that they have listed and identified as people that they are going to call at this trial. They have obligations as of the rules of criminal procedure. Based on the discovery so far it appears that they are in possessions of items that they have not turned over to us. And I used Mr. Lohr as an example, because that is a person that I spoke to most recently and he was asked about giving a tapped statement to the said investigator it was not provided in discovery. CJP: Only thing I am going to say about that. You all know what the rules are please abide by them and if somebody feels that somebody is breaking the rules file the necessary grievance and we will deal with it. But I would not want to be caught violating the rules. Anything else folks for the good of order? JB/CM: No. LDB: That’s all. CJP: Ok thank you very much.