0 Acronyms: JP: JA: JB: BR: Judge Belvin Perry Jeff Ashton Jose Baez Dr. Bill Rodriguez

JP: All right Mr. Ashton, would you state your objection and, so that we can go through it by the numbers. JA: Yes, sir. The objection is that the opinion that is being offered by the witness is not contained in his report of February 21st of 2011, which provided pursuant to the court order which specified that any opinion that the witness was going to give must be included in the – just a moment, I wanna try and quote it. It had to be included in the report as well as the factual basis for that opinion. There is no opinion in this report that references to duct tape. It is mentioned as a fact of the case, but there is no opinion that references any interpretation of the duct tape or any background information as the witness has just discussed about duct tape in other cases. JP: Mr. Baez? JB: Our position is, and our clear understanding of what the court's order was, is that if it was not submitted in the report or included in the witness's deposition, it would be precluded from trial. JP: Mr. Baez, pull out the court's order and read that portion that you are talking about. (long pause) JP: And while you're trying to find that, let me ask the doctor some questions. Dr. Rodriguez, what opinion you were about to express dealing with the duct tape? BR: In reference to this particular case, Your Honor? JP: Yes, sir.

BR: That the positioning of the duct tape as it was found you can see in the photos there in the scene and the medical examiner's office that the duct tape is in two different positions, and a completely skeletonized remains, unless it is in a buried context, once cannot make a absolute finding as to the exact positioning of the duct tape as has lost its effectiveness, and stickiness, one cannot make a determination as to the restriction of that duct tape, and certainly decomposed remains which they have skeletalized that soft tissue to which that duct tape was attached, and the movement of those remains by animals basically precludes anyone from making any scientific conclusion as to the actual position of that duct tape, whether it was around the areas of the eyes, did it cover the areas of the nose and the mouth, did it just cover the area of the mouth... I in cases that I've had have only been able to conclude the actual positioning of that duct tape in a case of a burial in which basically it is held in context by the soil, or in a mummified body in which the soft tissues have basically dried out and the duct tape is still adhering. JP: Okay. Doctor, when did you formulate that opinion that you've just shared with us? BR: Early on when I saw the pictures. JP: Okay. Specifically what do you mean by early on? BR: When I received the first pictures by Mr. Baez. JP: I don't know the date, Doctor, so I-BR: The photographs were given to me earlier this year, right prior to my report, which was dated February 21st. JP: Was there any particular reason why you did not include that portion that you've just told us about in your report, sir? BR: I didn't mention it because I just, it wasn't, a non-issue. Because in looking in these types of cases, you just, there's no scenario where you can make a definitive answer, so basically it wasn't asked at that time anything about the duct tape It was just something that I noted in my examination. JP: You noted it in your examination, but you didn't include it in your report. BR: That's correct, sir. JP: Okay. Did you share that opinion with anyone on the defense team? BR: I did.

JP: Who? BR: Mr. Baez. JP: When? BR: It was at one of the telephone conversations that we had, after my report. JP: Was it in January or February of 2011? BR: I believe it was February of 2007. ((note: BR most likely meant to say 2011 instead of 2007.)) JP: Okay. Were you ever informed by the defense team, or Mr. Baez in particular, of this court's order requiring all opinions that experts are to give in this case to be placed into their reports? BR: I was not aware of that, sir? JP: Okay. Were you ever shown a copy of this court's order, or informed of this court's order, the one that I've just mentioned about experts being required to put all opinions that they would testify to within a written report, or face the possibility of having that opinion not be given in court? BR: No sir, I was not made aware of that. JP: Okay. So Mr. Baez never informed you of this court's order. BR: That's correct. JP: Okay. Thank you, Dr. Rodriguez. JB: Judge, (inaudible) JP: Go ahead. JB: Dr. Rodriguez, do you recall getting some emails from me just before you were, asking you to submit a report? BR: That's correct. JB: And if you can recall, or can you tell the court if I had informed you that the court had issued an order requiring all experts to give their, to issue reports expressing all their opinions?

BR: Yes. JB: Okay. And the communication that you and I had on this topic was via those emails, correct? BR: That's correct. JB: Okay. And when we actually, we met two nights ago, did we not? BR: We did. JB: Okay. And was that time, was that determination made that that was something that we wanted to have you testify about? Or was it prior to that? BR: It was at that time. JB: Okay. And was that as a result, to rebut what Dr. Warren had – well let me rephrase that. Was that – do you know if this was in an attempt to rebut what we thought was testimony that was not true? BR: I was informed at that meeting about the superimposition, that was the first that I heard about the superimposition done by Dr. Warren. JB: And do you have an opinion as to what that super-- If that, if a forensic anthropologist should do a superimposition? BR: That's correct. JB: Okay, what is that opinion? BR: In doing a superimposition, superimposition is typically used to provide some type of tentative ID, basically identifying a victim by superimposing a skull over a photograph of the victim. Utilizing it to show a positioning of duct tape and skeletalized remains is unheard of as far as I am concerned, because there is no way, scientifically, that you can show where that duct tape was. Basically you can take that duct tape, and you can reposition it anywhere on the body, because you have skeletalized remains, it has been moved by animals, therefore in an eye, as a practicing forensic anthropologist, all I can say is, there's duct tape in association that was most likely somewhere around the head. I cannot tell the position of it, I would be stepping off of scientific foundation if I were to do so. JB: Your Honor, the issue of all of this, when the court issued its order, I informed all of our experts via email, clearly expressing that we needed reports from them, because originally we had not asked

them to do so. And that all opinions that they were going to testify to should be included in the reports. Furthermore, I informed them that they had a deadline. And that if that deadline was not met, that I would suffer dire consequences. You can, you may recall that not only was I sanctioned, we were dead set on making all of the deadlines, and which we did. From the time that I asked Dr. Rodriguez to write his report, until the time he actually wrote it, it was a matter of days. I believe the court gave us 20 days or something like that, maybe a little bit more, I'm not exactly certain. This was a very difficult task to do, considering that all of our experts are extremely busy, they have multiple case loads, and of course the time constraints that were placed upon us. Furthermore, when we were never given this video superimposition during the photo CDs that the state had-JP: I'm not concerned about the superimposition. JB: Well that's what I'm trying to get to, judge. JP: Well... JB: The, what happened was, we did not anticipate this testimony from Dr. Warren. It occurred. When I met with my witness, I expressed and asked him for opinions on those, and that's what he's rendering. I-JP: So the doctor is mistaken or misinformed when he says he told you this in January or February of 2011. That's what you're saying? JB: I'm not saying that. But I can tell you this: we discussed numerous aspects of this case, and there are numerous aspects that are not included in his report, nor will he testify to them. So I mean, to sit there and ask him, everything you've told me, make sure you put it in your report. I don't think that's reasonable. What's not reasonable as well, Judge, is that a, an important witness on a case like this should have been deposed. They chose not to, and your order says, and I will read as instructed, opinions that are not expressed in a written report or depositions taken during the discovery will not be allowed at trial. I asked at a status hearing, what if they choose to, to not take someone's deposition, that's gonna limit these people's testimony, that's gonna create due process issues, and the sixth – you know, every bit of testimony's important. As is this. And I don't have Mr. Ashton's exact quote, but he claimed that they were going to take their depositions, but that this wasn't gonna be some kind of a trick that we were gonna play with the reports. My response to that would be, my response to that was, no one's playing games here, just that if they're – (sighs) And it's hard for me to make representations without the exact recollection,

Judge. But my understanding, and the purpose I brought this up was, if they were gonna try and pull a fast one, by saying well it's not in the report, that's it. I'm not, why should I take their deposition and allow them to testify about more things? Do we have to, in a unique situation where the court has ordered something, now start taking depositions of our own witnesses? I've sat in hundreds of depositions in this case. Not because I wanted to, but because it was my responsibility to do so. and I have also taken depositions while this trial was pending. If this was an issue so concerned by the state, as to make sure that they know everything that this witness may or may not testify to, they should exercise what they have, what tools are given to them, and take the depositions and do the work. JP: Well Mr. Baez, I wanna ask you the same question I asked you earlier at the sidebar. What you're basically saying, sir, is that you can basically pick which court orders you comply with and which court orders you don't comply with. And that's not gonna happen here. JB: I couldn't disagree with you more, Your Honor. JP: Well, Mr. Baez, to be quite frank, both sides have engaged in what I call game playing. Okay? And this is not a game. And the reason the order was entered in the first place is because both sides were engaged in some form of it at some time. and the reason the order was entered is, because I did not want to be at the position I am currently in now. Is that we have experts with no opinions, that – I mean major opinions – that are not contained in their reports, and the easy thing is if a report comes about, or if an opinion comes about, not hard to do, Mr. Baez. It is quite easy to do. Even if it happens at the last minute. So here am I faced with, what is the remedy? It's quite ironic that we were scheduled to be here at 8:30 this morning to discuss a possible violation of the rule of sequestration. So, you go back and you review the cases. And, all of the cases seem to say that exclusion of the witness from testifying is a very extreme and harsh rule, that is not to be done except in the most aggravated situations. And, but they list a couple other things that you can do. It appears to me that this was quite intentional. This was not some inadvertent slip. This was not some sub-issue of a major issue. It was not inadvertent. The question is whether or not Ms. Anthony should be punished as a result of this. The case law seems to indicate the following: contempt, an instruction to the jury concerning the violation that has occurred, and let them use it in

judging the credibility or believability. So what other opinions is this witness going to give that has not been disclosed in his report? JB: I will also-JP: Well this is what I'm gonna do. What other witnesses do you have available for the day? JB: We have Dr. Spitz as well. JP: This is what we're gonna do. We're gonna stop today at 1:00. This witness is gonna step down, you can take his deposition this afternoon. And then he will testify one day next week, Monday. I will entertain a possible instruction, if the state wants to draft one, about this violation, and I will decide whether or not I will do it. I will reserve the decision as to whether or not I should proceed to contempt proceedings at the conclusion of this trial. JB: I would request that the court also look at the answer filed by the defense, where we have, where I clearly laid out that Dr. Rodriguez would be called also to rebut any issues raised by the prosecution in trial. This does fall under that category, and-JP: Mr. Baez, this is not my first rodeo. And let me say this, sir: I've tried one or two cases as a lawyer. And there was a case that I tried called the state of Florida versus Judy Boynahano (sp?). At the conclusion of the defense's opening statement, and after the first ten questions that the defense asked in cross examination, I found myself in a boat without a paddle. Because they raised the issue that you could not tell they were raising up until the time that they had asked certain questions. And at that noon recess, I asked my investigator to find certain things out. By 4:00 that afternoon, my investigator had located about 4 or 5 additional expert witnesses. I talked to them that night. The next morning in court, I filed a supplemental discovery of those witnesses, and I set them all up for depositions the following evening, so the defense would have an opportunity to take those witnesses' depositions, to determine what they would testify to. So the defendant would not be surprised. All my order simply tried to do was to give both sides an opportunity to know what each expert would testify to, so they could prepare, so we would not have no gotcha moments, where someone would be caught unprepared. So what we will do is, we will take a ten minute recess, and Dr. Rodriguez, be prepared to give a deposition this afternoon at 1:00, and then we can ferret out all of this. But let me say this. Lightning does not strike twice in the same place. Even though the case law says you cannot be punished by exclusion the first time, if

there are other opinions that you know that he's going to give, they need to be laid out. Because I am not making any promises or warranties about what I will do if it happens a second time with this witness. JB: We would like to place the state on notice that we're going to take our own expert's depositions at the conclusion of the day. If they wish to be present, they can be present, and-JP: Okay, you don't have to take your own expert's deposition, I'm making them available to the state for deposition. It would be totally unfair to Ms. Anthony to have his testimony excluded on this critical issue. But we will deal with the after-effects afterwards, and that's the remedy that I have chosen to give. We'll be in recess until five minutes to the hour. END OF TRANSCRIPT

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