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0 Acronyms: JP: Judge Belvin Perry LDB: Linda Drane-Burdick JA: Jeff Ashton JB: Jose Baez CM: Cheney Mason JP: Okay, let the record reflect that the defendant is present along with counsel for the defendant, assistant state attorneys. Both sides ready to proceed? CM: (inaudible) JP: Uh, about what? CM: It appears (inaudible) JP: Okay, we'll do it this time, but please remember I have indicated if you need to bring matters up, to notify the court deputy at 8:20, and then we will take up those matters at 8:30. So. CM: (inaudible) JP: Okay. All right, then you can approach the bench. (Sidebar.) JP: Okay, who will be the defense's first witness for the day? JB: Dr. Rodriguez. JP: And Mr. Ashton, you have indicated that there may be an issue with Dr. Rodriguez? JA: Yes. The first issue is, the court had left the issue of a sanctions package as to this witness for later consideration. We did take his deposition from 1:45 to approximately 3:45 on Saturday. I just received a transcript of the deposition yesterday. I've read through it once, I would like to read through it again, in preparation for cross examination. So number one, I would ask that
this witness not be called immediately, because obviously I need time to consider what he said. There is one particular area that he proposes to give an opinion that the court would need to review the transcript, that I don't believe he is qualified to give. Just to summarize it quickly, he proposes to give an opinion that other people can't distinguish human decomposition from other odors. And to very briefly state it, after some considerable questioning, he finally came down to it and said essentially that it was just based on his personal experience, rather than any studies or scientific literature. But I would like for this witness not to be called first, because I need time to prepare for cross examination, for this lengthy deposition that we took, and to have a hearing on that one issue, because of the violation of the discovery order, obviously I was not able to do. One opinion I just mentioned, is an opinion that was not contained in his original report. So it is new. There are other new opinions as well that I may be able to deal with on the fly, but I would just request that counsel not be permitted to call this witness until I've had, you know, half a day, or at least some kind of break to digest the deposition and prepare for cross examination, because of discovery violation. The other issue that I mentioned at counsel table is that – I'm sorry, sidebar – is as to a witness, Mr. Eikenbloom. Just so the court has this, and I don't necessarily want to argue sanctions on this right now, but I just want the court to know what's coming. We received a one page, a half a page report from Dr. Eikenbloom pursuant to the court's order that essentially contained no opinions or conclusions of any kind. Mr. Eikenbloom showed up Friday outside, prompting us to question counsel what he was here for, since his report indicated nothing, essentially. Yesterday, I received – oh, and Mr. Eikenbloom showed up at my office yesterday afternoon for a potential deposition, but I sent him away because without a report, I have no way of deposing him. I received a report which is 2 pages in length, and a 45 slide Power Point presentation yesterday from counsel. I'm providing the court with both. I am willing to depose Mr. Eikenbloom Tuesday evening, to do as much as I can. I will be preparing a sanctions package for the court, because again this is, I believe, another deliberate violation of the court's order. I'm gonna – may I approach? JP: You may. What is Dr. Eikenbloom's field of expertise? JA: I think he has phrase it as, DNA and trace evidence, or crime scene evidence, something general in that sense. It's in the report. He's proposing to give a number of opinions on, I guess I should say the interpretation of negative DNA evidence. But it's reflected in
his report. Again, I'm not prepared to argue the issue now, because obviously I haven't deposed him yet. I need to do that, and I will do that on Tuesday at 5:30, should the defense produce him. So those are my requests at this point, is that Dr. Rodriguez not be permitted to testify until I've had time to review and prepare for cross examination, because of the last minute nature, and that Mr. Eikenbloom be ordered to appear. I will be presenting the court with additional request for sanctions to alleviate the prejudice. But at this point, those are my initial requests. JB: Under rule 3.220, the prosecutor is afforded the right to take depositions in a case. This is a capital case which he is prosecuting, and seeking the ultimate penalty. The witnesses in question were listed timely, and were ordered by this court to issue a report under time constraints. I immediately instructed each witness to put together something as quickly as possible, despite having the proper amount of time to ensure that every single opinion that they had, that may come up in the course of trial, which is clearly an unscripted event, would allow them to put something together to completely comply with the court's order. The court's order, under section 4 – excuse me – yes, section 4, paragraph 4, states opinions not expressed in written report or, emphasis added, at deposition taken at discovery will not be permitted at trial. The prosecutor in this case has attempted to narrow the scope of the testimony of these expert witnesses by intentionally refusing to take their depositions. I say this is an intentional act because it is clear that there was sufficient time for Mr. Ashton to coordinate these witnesses for depositions, set them and conduct them. This package that he claims to put together, or wanna put together, can easily be done for him, as the state has violated this order itself on two occasions. One with Dr. Rickenbach, which was taken at sidebar; the objection was sustained, because he wanted to elicit testimony outside his deposition, and it was quickly moved on. No threats of any sanctions, and no threats of being held in contempt of court. Furthermore, with the FBI late disclosure of photographs on the morning of trial, that too was addressed and moved on. I think that the court has made it clear that this is not a game, and that gamesmanship has been exercised by both sides, and that this is nothing more than a clear exercise of gamesmanship that is carried on from Mr. Ashton from the very beginning. He is a skilled and experienced prosecutor, that knows that with expert witnesses, you should take their deposition. I would venture to, I would venture a guess that he has never had a trial where he has just completely ignored expert depositions, especially those such as important as these. And yet, he was armed with a court order which he thought he could play games with, and use as a sword and both as a shield, by completely and intentionally ignoring his responsibilities as a
prosecutor to go forward and take a deposition. As it pertains to Dr. Rodriguez, the remedy under the law is to give the prosecutor time to take his deposition. These things occur on many occasions. These are really minor issues. The duct tape opinion that Dr. Rodriguez is simply going to express is that there is no scientific basis to render an opinion as to where a piece of duct tape is when it is on a surface, a surface deposit site, because too many things that can alter the location of this duct tape. This is, aside from being common sense, this is, this is being testified from someone who has the experience to do so. As it pertains to Mr. Eikenbloom, we have attempted to, because of the failure of taking his deposition and what he might be able to testify to, he originally, one of the issues that we originally wished for him to testify about is the aspects of DNA. Low copy number DNA. Degradation of DNA. All which was given notice to the state, not only through my response in the pleadings to the court, but these are, this is a common issue that the state is on notice of. Their claims that, and their potential arguments that the reason there is no DNA on the items is because of the elements. Knowing full well that that could degrade certain DNA, but there's still should be DNA on these items, and one can obviously, one could obviously and potentially testify to that. Some of the opinions that, some of the issues that came up with this case have come up recently, and I, because not too many arguments were laid forth as regard to Mr. Eikenbloom, I'll keep my, my comments to a minimum. Mr. Eikenbloom, as I expressed to the open court yesterday – (sigh) yesterday – Saturday, that we will be taking deposi-- we will be wishing to exercise all of our depositions, for any potential experts where the state has failed to do so. I asked and instructed Mr. Eikenbloom to show up to the state attorney's office on Saturday afternoon, which he did, and he was turned away. Specifically by Mr. Ashton. Not by an associate, not by a secretary, Mr. Ashton told him to go away. Upon doing that, I instructed Mr. Eikenbloom to prepare a report and to insure, and to do it immediately, of which he did. It was sent to me, and I forwarded it on to Mr. Ashton on Saturday evening, as well as any potential demonstrative aids for which he may find useful in explaining his testimony. That was also disclosed and turned over to him immediately. All of this is stuff, and, all of this is information that just merely explains DNA and its processes and that, most of which I'm certain that Mr. Ashton with his experience would certainly be aware of, and would need very little preparation in light of. Now I, I think as to Mr. Ashton's argument as to wanting extra time to now review depositions, well that's not a very good argument considering that, for several months, approximately 7 or 8 months, he sat and decided not to take a deposition, and not to prepare for this
trial as needed. So because of his intentional omission, he now wants to delay this process, he wants to delay our time, the court's time, the jury's time, for something for which is his professional responsibility to carry out. The order, while – the order is fairly clear. And I read this order to include two aspects of the discovery process. One which is written reports, and the other which is deposition. The goal of this court was to prevent any gotchas. I specifically noticed that Mr. Ashton was intentionally omitting, or may omit I should say, to prevent himself from taking these depositions, and I brought it up at a status hearing, and I, and I warned the court that this may be an issue later on, because the state is attempting to use this both as a sword and a shield. We did not intentionally look at this order and say, we're going to disobey it. I – just the mere thought of that, disturbs me greatly, and it disturbs me that anyone would, A, make the accusation, or B, even assume it to be true. And I say that because I have labored on this cause daily, nightly, and it was made clear by the court to me that this court intended on issuing orders and enforcing them if need be. I, I see that even though the rules of discovery and the law does not compel us to ask experts to issue reports, this court has, this court ordered that. However, I think it is a severe and due process violation to try and limit our testimony, limit our presentation of case, because a prosecutor decides, on his own, without assistance or judgment from the court, to omit his professional responsibility and to omit his duty to carry out those, and utilize those tools which are afforded to him under the rules of discovery, and then attempt to use that as some form of sanction, okay. It's not bad enough that it's not bad enough that he wants to omit these responsibilities in the efforts of taking a human life, he wants to go after her lawyer too. And I think it is repulsive, and I think it is also not under the law, and shouldn't be dignified in any way, shape or form by this court. He had a responisiblity, he intentionally omitted it and neglected it, and he should not be allowed to come forth, not even at the eleventh hour, at the strike of 12, and decide, okay, now I want to utilize something, and to do it in a manner which is – I don't want to use the word disingenuous, but to do it in a matter where it's unreasonable. It's unreasonable to think that Dr. Rodriguez should have opinions such as these. These are obvious opinions. These are obvious things that, these are obvious troubles with their case. And they know it. JA: Unless the court has any questions, I have no further argument. JP: Nope. I wanna ask both sides to turn around and look at that clock back there, and tell me what time it is. Mr. Ashton? JA: 9:25.
JP: And Mr. Baez? JB: 9:26, it's usually (indistinct). (laughs) JP: Thank you. That shows that the two of you will never agree on anything, and will never interpret anything the same way. That jury has been sitting back there for more than 25 minutes. Sergeant, what time did the jury arrive here this morning? COURT OFFICER: They've been there for an hour, sir. JP: Okay. Henceforth and forevermore, all attorneys are required to be here exactly at 8:30. So if you have any matters you need to take up, you will notify the court deputy, the court deputy will call me, and we will take these up at that time. At 9:00, we will start. And no more will we have this. This coming Saturday, we will work a full day. So be prepared to have witnesses here to work a full day this coming Saturday. The rules of criminal procedure lays out what is discoverable. But it does not take away from the power of the court to order additional discover, restrict discovery, or set whatever timelines this court feels is necessary. I will call your attention to an order titled, order granting state's motion for clarification or to compel compliance, with order for additional discovery. which is dated december 10th, 2010. I'm not gonna go into the history of why this particular order was issued, but this is the pertinent portions of that particular order: When experts have prepared, have not prepared reports for examination of tests, both the state and the defense are required to provide the following information, which shall be filed with the clerk of the court in forms of written pleadings: the expert's curriculum vitae, or qualifications of the expert, the expert's field of expertise or medical certainty, a statement of the specific subjects upon which the expert will testify and offer opinions, the substance of the facts to which the expert is expected to testify, and a summary of the expert's opinion and grounds for each opinions. That was done because Doctor, there were a couple reports that basically contained nothing. The court thought that that order cleared up the situation. Here we go again. On January 6th, 2011, the court entered another order, order granting state's motion for sanctions and motion to compel. Again there was some lack of understanding of what the court may have meant. A statement of the specific subjects on which the expert will testify and offer opinions, the substance of the facts to which the expert is expected to testify, and a summary of the
expert's opinions and the grounds for each opinions. The court gave out an example of what was submitted, and on behalf of Dr. Henry Lee. Court goes on in its order and says that the defense shall provide written reports to the state for all expert witnesses which shall include the following information: a complete statement of opinions the witness will express, and the reason for those opinions, and any data or any information considered by the witness in forming their opinions or conclusions. The court in those 2 orders required both the state and the defense have their expert witnesses list all opinions that they would give. The purpose of depositions are to expound upon those opinions and as all lawyers know, there is an opportunity for sub-opinions when someone gives a main opinion that they may want to discuss. It has never been their intent to, by depositions, alleviate the responsibility, and that was not the intent of this court's order, to rely, say, well you could either take the depositions or the report. The orders are quite clear to me. This court does not make threats. This court simply applies the rules. When the state of Florida had an exhibit that they wanted to introduce, i.e. a demonstrative exhibit that was not given to the defense, that exhibit was excluded and the state was not allowed to utilize that exhixbit. The court on Saturday indicated that it was put in a proverbial corner, not being able to exclude these opinions by the defense. If you read all of the cases dealing with the exclusion of evidence, particularly Dumus, Wright, Lott, Odum, and US vs. Hobbes, it frowns upon that, because you punish the defendant. But what the Florida Supreme Court did not close the door on, if someone continues to repeatedly violate orders of the court, it leaves the door open, regardless of those severe due process considerations, that as the final ultimate sanction. There has never been a case where that final ultimate sanction has been imposed and upheld by a court, that I know of. But one would surmise that if someone continuously violates a court order, with impunity, whether or not the court would be left powerless, or whether or not the Supreme Court will say this is the case, despite the due process implications, where the ultimate sanction of exclusion would be proper. Yes, there have been gamesmanship in this particular case, and it is quite evident that there is a, friction between attorneys. That is something that I guess the Florida Bar will deal with, and at the conclusion of this trial this court will deal with violations which may or may not have occurred, but it is not proper for the court to deal with it now, during the pendency (sp?) of this very serious litigation. As to the request of the state to defer the testimony of Dr. Rodriguez, I will grant that request.
Now, I've announced to both the state and the defense that we're gonna have a short day on Wednesday, and that's because of me. And I've explained to the lawyers the reason behind it. Let me say this to both sides. If I was the state or the defense, I would make sure when we recess this afternoon that I would go through the reports of all my experts, and make sure that their opinions were contained in their reports or depositions. As I explained to both sides, subopinions, as long as it's under that general area, on minor things, those are gonna come up either on recross or direct, you can't anticipate everything. But-(recording switches here) Both sides need to be forewarned that exclusion, even at the price of having to do it all over again – which I don't think I would have to do it all over again, because of repeated violations – exclusion may be the proper remedy if it continues. So, who will be the defense's first witness? JB: Judge, our second witness that we had intended on calling was going to be Richard Eikenbloom, but in light of that, we have to wait. We're in the process of picking up the third witness. She'll be here in approximately 30 minutes to have her here. JP: Okay. Inform the jury that – and take 'em out since they've been locked up in that room for quite some time – that (pause) we will proceed at 10:25. Okay? The only thing I'm gonna say is this, folks: I'm getting very, very close to starting this proceeding every morning at 8:30. And I know that would bring some problems, but at the same time, I've been trying to be accommodating with the work schedule for everyone, but I have a sequestered jury who live under severe restrictions, and if you all don't wanna act professional then I will work you real full days. And that will include reducing your lunch hours, and I try to give you an hour and a half because I realize you wanna eat, relax, and sorta look over your notes. But all of this, folks, is gonna stop or you will be working some very fierce days. And, so be prepared Saturday to go the whole day. Okay, we're in recess until 10:25. (Recess.) JP: Okay, you may be seated. Okay, let the record reflect that the defendant is present along with counsel for the defendant, assistant
state attorney. Upon joint stipulation between the state and the defense, we will be in recess until 9am tomorrow morning. Is that agreeable with the state? LDB: Yes, Your Honor. JP: And is that agreeable with the defense? Okay, we're in recess.
End of transcript.
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