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0 Acronyms: JP: Judge Belvin Perry JA: Jeff Ashton JB: Jose Baez RE: Richard Eikelenbloom JP: Okay, court will come to order. Mr. Baez, who is the defense's next witness? JB: Richard Eikelenbloom. JP: Okay. I have reviewed the requested instruction that the state has proposed, and I've reviewed the instruction that the defense has proposed. Now, did Doctor Eikelenbloom provide a partial report? JA: No, Your Honor. He provided an affidavit, and he in deposition referred to it by that term, as an affidavit. It does not – I provided the court with a copy of it the other day, and... JP: Well, this is what I'm looking at. It says affidavit, R. Eikelenbloom, dated January 21st, 2011. Uh... Is this what he provided? JA: Yes, Your Honor, that's the item that he provided. JP: Okay. JA: (indistinct) defense counsel. JP: This is the instruction I propose to give: All expert witnesses were required by order of the court to provide reports of their findings by providing, one, a complete statement of their opinions, two, the reasons for those opinions or conclusions, and three, any data or other information considered by the witness in forming their opinion or conclusions. These reports were due at a time prior to the trial of this cause. The report of this witness was not provided to the state of Florida until Saturday June 18th, 2011. You may consider this fact in judging the credibility of the
witness's testimony. JB: We main-JP: Mr. Baez? JB: Yes, sir. We maintain our objections, since I have withdrawn the areas that were previously at issue. Just for the record, we object. JP: Okay. Before I do that, I need to have the witness come in, and I need to make an inquiry of the witness, then I need, before I formally impose the sanction, I need to make a three pronged finding for purposes of the record. So let's have the witness come in, I need to have a few questions I need to ask him. I will file – this first item is defense's proposal for instruction, if I was gonna give an instruction. The second item is the state's handwritten instruction. (Witness Richard Eikelenbloom is sworn in, and takes the stand.) RE: My name is Richard Eikelenbloom. E-I-K-E-L-E-N-B-L-O-O-M. Eikelenbloom. JP: Doctor, I'm Belvin Perry, I'm the presiding judge in this case. When were you first retained by the defense? RE: Um, the first investigation was, or the first request, the first official request for the case was when we had to look over the evidence. JP: And when was that, sir? RE: That was on, uh, 13 July 2010. And of course it was a couple of days before then. JP: July 2010. RE: Yes. JP: Sir, were you ever informed that you were required to produce a report outlining the opinions that you rendered in this case as a result of your examination of the evidence? RE: Except for the affidavit, I was not told that I had to render opinions or write another report. JP: Sir, were you ever informed of the following: Where expert witnesses have not prepared reports of examinations or 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 the form of a written plea: one, the expert's curriculum vitae or qualifications of the expert, two, the expert's field of expertise or medical specialty, three, a statement of the specific subjects to which the expert will testify and offer opinions, four, the substance of the facts which the expert is expected to testify, and five, a summary of the expert's opinion and grounds for each opinion. Were you ever informed of that order of the court? RE: No, I don't recall that order. JP: I take it, sir, that you do not live in the continental United States? RE: Well actually since February we're living in Collifer (sp?), but before that we were living in the midlands. JP: Okay. How were you communicating with the defense? Was it by phone, email, or by what other means? RE: By phone, email and Skype. JP: Were you ever requested or asked between December 2010 and May 1st of 2011 to reduce your opinions and findings in writing in a report format as I've just outlined? RE: I'm sorry, reduce? I mean, to write a report? JP: To write a report in the format that I've just outlined, sir. RE: No, I don't recall that. JP: Who was the principal person that you communicated with for the defense? Who were you getting your instructions from? RE: Mr. Baez, and we also have communications with Michelle. JP: Now, from May of 2011 up until today's date, were you ever asked to reduce your report in the written format that I've just outlined, which would include all of your opinions that you've asked to produce? RE: Um, last Saturday I talked with Mr. Baez, and then after the deposi-- or after we went to the district attorney's office to do the deposition, where we were refused, I was requested that I would write a report. So last Saturday night, we wrote a short report.
JP: Between December 1st in the year 2010 up until May 1st 2011, how many times have you communicated with members of the defense team? RE: Um, well I'm not completely sure about that. I know we had to do communication before we had to do inspection of the evidence, and short after, and for long time I didn't hear anything more, so we more or less lost contact and lost track of the case. JP: From December 1st 2010 up until May 1st 2011, were you readily available to be contacted by the defense team via telephone, email or Skype? RE: Yes, defense could reach us if they wanted, yes. JP: You didn't disappear during that time period, did you, sir? RE: No. JP: Okay. Either the state or the defense wanna ask any questions along those lines that I've just asked? JB: Yes, sir. JP: You may proceed. JB: Mr. Eikelenbloom, is this the first time anyone has ordered you to write a report on a case? RE: To write a report on a case? JB: No, not on a case. On, that had certain parameters like this one. RE: Um, oh that's of course, yeah you sent, yeah you're sent a request, that's by investigating, investigative judge, and they order you to investigate certain evidence or certain reports, and write everything about these items. JB: And that would be based on things you've done, correct? Like run certain samples of DNA, inspected certain pieces of items, evidence? RE: Can be both, can be on the investigations which we have performed, it can also be on investigations of other laboratories, and then they want a second opinion about the message used or conclusions drawn in those reports. JB: Okay. And the contact with your company, back in January of 2011, that was done through your wife and Miss Medina, correct?
RE: Yes. JB: It was not directly with you. RE: No. JB: Okay. And in fact what occurred, and how this order, the information got back from you was from Miss Medina to your wife, and from your wife to you. RE: That's correct. JA: Objection. Assumes facts not in evidence, that the (indistinct) order ever got to the witness. He indicated that it didn't. JP: I'll permit him to go ahead. Objection overruled. JB: Okay. Now what you ended up doing is based on what your wife ended up telling you. Correct? RE: Yes, it's – you're talking about the very short affidavit. JB: Yes, the affidavit. RE: Yes. JB: Okay. And the, what you in turn ended up doing is filling out an affidavit of all the work that you have done, until this point. Correct? RE: Yes, this is more or less about the evidence viewing. JB: Which was, you wanted to inspect a piece of evidence, for your own testing, but it was denied. RE: Yes. JB: Right? And then also that you had actually gone and done an inspection of the evidence. Correct? And took photographs. RE: Correct. JB: Were you ever told in any way, shape or form to narrow your report or to exclude things from your report? RE: No. JB: Okay. And the report or affidavit that you ended up submitting was based on what you thought was required of us.
RE: Yes. JB: And you never spoke directly with Miss Medina-RE: No. JB: --about what the court has actually ordered. RE: No. JB: That conversation actually took place with your wife and Miss Medina, correct? RE: That's correct. JB: And then later on took, uh, spoken to you. Correct? RE: That's correct. JB: Do you recall exactly what your wife told you was required by the court? If you can remember. RE: No, I don't recall. JB: Do you remember that conversation at all? Only that maybe it happened? RE: No, I don't remember the conversation at all, and the affidavit, I remember something about the affidavit, but we were very busy in the time, we were transfer in the time, we were transfer from the Holland to the United States. So I didn't think much about this affidavit. JB: And the questions and the opinions that you raised and formulated on Saturday, they were first broached on Saturday, correct? RE: Yeah, when we were talking about the, the case on Saturday afternoon after, um, yeah after the court session, then we, then the (indistinct) came up to write a report, or to write ideas of, or topics of what you were talking about. JB: And these were not opinions that you held before, and had discussed with us previously, and we determined that you were gonna testify about these opinions prior to Saturday. And you just didn't, not include them in your report, correct? RE: That's correct. On Friday I made a Power Point presentation, and presentation for explaining contact DNA and--
JB: And Friday's PowerPoint presentation was just a general explanation of touch DNA, and nothing more. RE: Yeah, and how PCR works. JB: They weren't specific as to any issues raised in this case, only attempt to explain such DNA. RE: Yes. JB: Okay. And upon our conversation on Saturday, you were then immediately asked if you would consider taking a deposition at the state attorney's office-RE: Yes. JB: To now discuss these new opinions. RE: Yes, so during the lunch? JB: Yes. RE: We discussed the topics, and then, about which I might be allowed to talk during the court, and then we had an appointment with the district attorneys, to do deposit, deposit? JB: Okay. And what happened when you showed up at the state attorney's office? RE: We were refused entrance. JB: By who? RE: The district attorney. JB: Who? Is he sitting here? RE: Yes. JA: I'll stipulate it was me. RE: Okay. JA: If it will help. JB: And what exactly did he say? RE: I don't recall exactly what he say, but as I understand it, I was
at least not going to do a deposition. JB: Was he polite? RE: Um... It sound kind of rude. JB: Okay. And after that occurred were you then instructed by Miss Medina to immediately do a report? RE: Yes. JB: And you did that. RE: Yes. JB: And then you sent it to, you emailed that to me Saturday night. RE: That's correct. JB: Okay. I have no further questions. JP: Mr. Ashton, any questions? JA: May I just do it from here, Your Honor? JP: You may. JA: Is there any opinion that you have expressed in your Saturday afternoon report that you could not have developed four months ago through the same conversation with Mr. Baez? RE: Um... It depends on information which was available at that time, but, like DNA reports, could have been uh, if asked I could have written a report about it. JA: Did he give you any new information during, and you spoke at lunch on Saturday. RE: Yes. JA: Did he give you new information during lunch on Saturday that you had not been provided with before? RE: Well, for me it was new information, because I didn't follow the case. So the case, when we left, we got a subpoena a week ago or, it's almost two weeks ago now. So the case for me was not really clear and, I know of course about the case, but I really didn't follow it so. For me, maybe the information was there, but for me the information was not clear, and it was not clear which direction
everything was going, so. I needed that guidance during the lunch part. JA: I understand you may have gotten new information about what Mr. Baez was interested in, but did he give you any new reports, any new factual information that you didn't have already? RE: I got a, I think that was during Friday and Saturday, we got new information so, about crime scene pictures and some extra reports, so. JA: What new information? RE: Reports from the FBI, and some extra pictures. JA: So you hadn't had the FBI reports before Friday? RE: Not all of them, no. JA: What new ones were you given? What new FBI reports were you given on Friday? RE: Oh I just um, actually I got the whole folder, so. JA: Well... I, can you give some, any more guidance on what you had already and what was new? RE: I've seen a reports before, and that was I think that was during the investigation of the evidence, so I formed an opinion about the case and I know something about what was already then. And during last week, I requested some more information, digital, and I got all the reports which were then, that's a lot of reports of course. JA: (inaudible) and you made that request after you got the subpoena and realized that there were extra than what you testified. RE: Yes. JA: No further questions. JP: Okay. Pursuant to Richardson vs. State, 2467 2nd 771, a 1971 decision of the Florida Supreme Court, as amplified in McDuffy vs. State, 9707 2nd 312, a 2007 decision of the Florida Supreme Court, the court will make the following finding of fact. One: whether the discovery violation was willful, or whether or not it was inadvertent. On December 13th – correction, December 10th 2010, the court entered an order. The order was entitled, order
granting state's motion for clarification slash to compel compliance with order for additional discovery. On December 1st 2010, the state filed a motion to clarify. At a subsequent hearing, it was determined that there was some dispute concerning a prior order that the court had entered, and the intent of certain language. The exact language of that court order at the time provided as follows: The defendant shall also provide the state a list of the defendant's experts that shall include the subject matter as to what the expert will testify to, and the area of expertise for each expert. The court goes on to say that there was some debate about the word subject matter, rather than substance. The court said, while the order included the term subject matter rather than substance, the court finds that the list provided by the defense does not comply with the intent of the order or the intent of the court as expressed in its November 29th, 2010 hearing. In order to clarify this issue, the court went on to order the following: Where experts have not prepared reports of examination or tests, both the state and the defense are required to provide the following information, which I have previously outlined. The court at that time thought that the matter was clear. In January, the court was again, back again to deal with this issue again. Going back to the December 10th order of 2010, the court specifically provided, with respect to all other experts, this information is to be provided by 3pm on Thursday December 23rd 2010. There was some different deadlines with respect to Dr. Fairgrave and Dr. Bock. That information was to be provided by December 14th 2010. Again we had the same problem again, and the court again specified what information and reaffirmed its prior order, and assessed sanctions. The obligation for the attorneys to see that their witnesses comply with the orders of the courts. It is the attorneys' job, be it the assistant state attorneys or defense counsel, to make sure that their expert witnesses comply with the order of the court. The court will find that this violation is not inadvertent. That it should have been clearly communicated to the expert, that the expert should have been required to comply, and the expert was not. Therefore, the court finds that the discovery violation was willful and not inadvertent. The next issue is whether it was trivial or substantial. DNA, even thought the advent of DNA evidence has been around for a number of years, certain opinions that will be expressed by this witness as a result of the deposition which is now filed cannot be viewed as trivial when we start talking about rendering opinions with the po-of analysing decomposition fluid in a trunk. So the court finds that it is not trivial, but substantial.
The next issue is whether or not it had a prejudicial effect on the opposing party in the preparation of their particular case. The court has delayed the testimony of this witness in order to give the state of Florida an opportunity to take this witness's deposition. If the witness had offered a report, put his opinions, the basis for his opinions and the data which he relied upon with those opinions, then this court would not have given the state an opportunity to take his deposition. Because they chose not to do it, if those items would have been in his reports, then the state would not have had the opportunity. The question comes in as to whether or not I need to totally exclude his opinion about the possibility of a DNA analysis which may have some Frye implications, and this court cannot in this short period of time make that determination. All of the cases indicate that the exclusion totally of testimony is an extreme remedy, to be utilized in rare circumstances. The court has decided to do the following: At this juncture in time, the court will not permit the witness to testify on this particular issue, dealing with the possibility of a DNA analysis on the decompositional fluid in the trunk of the car. The court will give the defense until next week, by uh, Saturday to file whatever potential motion it wants to lay out for a Frye hearing, and the court then on Wednesday or Thursday evening, at the conclusion of the day's testimony, after a one hour break to give the attorneys the opportunity to get something to eat, then we will come back and conduct whatever Frye hearing we would need to see if this testimony does meet Frye, or whether or not there is even a Frye issue involved in this particular testimony. That should give each side ample opportunity to do what they need to do, and it is a remedy short of exclusion, but I will not permit this testimony at this particular time. End of transcript.
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