Hi Kimster - this is a verbatim transcription (I hope) of the argument by JB and JA this morning and HHJBP's response. I thought it might be useful to some to be able to read it as a lot was said. If, not - please delete.

Warning - it's pretty long.

Jury not in Courtroom

HHJBP: Okay, let the record reflect that the Defendant is present along with counsel for the Defendant, assistant state attorney. Both sides ready to proceed?

CM: inaudible (his mike was not on)

HHJBP: About what?

CM: inaudible (his mike was not on)

HHJBP: Well - Okay, we’ll do it this time, but please remember I have indicated that we need to make… bring these matters up to notify the court deputy at 8:20 and then we will take up those matters at 8:30.

CM: inaudible (his mike was not on)

HHJBP: Okay, all right. Then you can approach the bench.


HHJBP: Okay who will be the Defense’s first witness for the day?

JB: Dr. William Rodriguez.

HHJBP: And Mr. Ashton, you 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 have read through it once. I would like to read through it again in preparation for cross-examination. So, number 1, 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. Specifically, 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, he, after some considerable questioning, he finally came down to say 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 obviously I need to have time to prepare for cross-examination from this lengthy deposition that we took and have a hearing on that one issue, which, 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 at had at least half a day or at least some kind of break to digest the deposition and prepare for cross-examination because of the discovery violation.

The other issue as you mentioned at counsel table is as, I’m sorry, sidebar, is as to a witness, Mr. Eikelenboom. Just so the court has this and I don’t necessarily want to argue sanctions right now, but I just want the Court to know it’s coming. We received a one page, half page report from Dr. Eikelenboom pursuant to the Court’s order that essentially contained no opinions or conclusions of any kind. Mr. Eikelenboom showed up Friday outside, prompting us to question counsel about what he was here for since his report indicated nothing, essentially. Yesterday –
I was - and Mr. Eikelenboom 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. I am providing the Court with both. I am willing to depose Mr. Eikelenboom Tuesday evening and to do as much as I can. I will be preparing a sanctions package for the Court because, again, this is I believe another violation of the Court’s order. May I approach?

HHJBP: You may. What is Dr. Eikelenboom’s field of expertise?

JA: He has phrased it as trace, DNA and trace evidence or crime scene evidence – something general in that sense. It’s in the report. He is 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 am 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 request at this point is that Dr. R not be permitted to testify until I have had time to review and prepare for cross examination because of the last minute nature and that Mr. Eikelenboom be ordered to appear. I will be presenting the court with additional sanctions to alleviate the prejudice. But at this point those are my initial requests.

JB: Under rule 3.220 the prosecutor is afforded to take depositions in a. This is a capital case for which he is prosecuting and seeking the ultimate penalty. The witnesses 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 quckly as possible despite having the proper amount of time to ensure that every single opinion that they have 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 paragraph 4 states: “opinions not expressed in written report OR at deposition taken during 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 a sufficient time period for Mr. Ashton to coordinate these witnesses for depositions, set them and conduct them. This package that he claims to put together or want to put together can easily be done for him as the state has violated this order itself on two occasions. One with Dr. Richenbach at side bar, the objection was sustained because he wanted to illicit testimony outside of his reports or deposition and it was quickly moved on. No threats of any sanctions and no threats of being held in contempt of court. Furthermore, when the FBI with the 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 I think that this is nothing but a clear exercise of gamesmanship that was 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 depositions. I would venture a guess to say that he has never had a trial where he has just completely ignored expert depositions, especially those such as important as these. But 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 not fail to 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 and 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 of where a piece of duct tape is when it is on a surface deposit site because there are too many things that can alter the location of this duct tape. This is, aside from being common sense this is being testified by someone who has the experience to do so.

As to Mr. Eikelenboom attempted to, because of the failure of taking his deposition and what he might be able to testify to. Originally, One of the original issues we wished for him to testify is to the aspects of DNA, low copy number of DNA, degradation of DNA all of which was given notice to the State, not only in my response in the pleadings to the court but this is a common issue that the State is on notice of. Their claims that, and their potential argument that the reason there is no DNA on these items is because of the elements, knowing full well that that could degrade certain DNA, but there still should be DNA on these items and one can 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 because not too many arguments were laid forth as it relates to Mr. Eikelenboom I will keep my comments to a minimum. Mr. Eikelenboom, as I expressed in open Court yesterday – Saturday – that 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. Eikelenboom to show up to the State’s Attorney’s office on Saturday afternoon, of 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. Eikelenboom to prepare a report 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 aides of which he may find useful in explaining his testimony. That was also disclosed and turned over to him immediately. All of this is stuff, all of this is information that just merely explains DNA and its processes – most of which I am certain that Mr. Ashton with his experience would certainly be aware of and need very little preparation in light of. I think, as to Mr. Ashton’s argument about wanting extra time to now review depositions. That is not a very good argument considering the fact that for several months, approximately seven or eight 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 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 to prevent himself from taking these depositions and I brought it up at a status hearing 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 are going to disobey it. Just the mere thought of that disturbs me greatly and disturbs me that anyone would either (a) make the accusation or (b) 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 by. I see that even though the rules of discovery and the law does not compel us to ask experts to issue reports, this court ordered that. However, I think it is a severe due process violation to try and limit our testimony, limit our presentation of case because a prosecutor decides on his own without assistance or acknowledge from the court to omit his professional responsibility and to omit his duty to carry out and utilize those tools which are afforded to him under the rules of discovery and then attempt to use them as some sort of sanction. 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. 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 responsibility. He intentionally omitted it and neglected it and he should not be allowed to come forth – not even at the llth hour, at the strike of 12 and decide now I want to utilize something and do it in a manner - I don’t want to use the word disingenuous, and do it in a manner where its unreasonable. It’s unreasonable that he should think that Dr. Rodriguez would 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. Thank you sir – unless the court has any questions, I have no further argument.

HHJBP – Nope. I want to 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 sir

JB: 9:26

HHJBP: 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 this morning?

Sergeant: They’ve been there for an hour sir

HHJBP: Okay. Hence forth and forever more all the attorneys are required to be here at exactly 8:30. So if you have any matters you need to take up you will notify the Court deputy and the deputy will notify me at that time. At 9:00 we will start. 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 lay out what is discoverable. But, it does not take away from the power of the court to order additional discovery, restrict discovery, or set whatever time lines this court feels is necessary. I will call your intention to an order entitled “Order Granting State’s Motion for Clarification or to Compel Compliance with order for Additional Discovery which is dated December 10, 2010. I’m not going to go into the history of why this particular order was issued, but this is the pertinent portions of the particular order. “When experts have not prepared reports of examination of tests, both the state and defense are required to provide the following information which shall be filed with the clerk of the court in forms of written pleas – the experts curriculum vita or qualifications of expert, the expert’s field of expertise or medial certainty, a statement of 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 opinion and grounds for each opinion. That was done because Dr. – there were a couple of reports that basically contained nothing. The Court thought that that order cleared up the situation. Here we go again – on January 6, 2011 - the Court entered another order, Order Granting State’s Motion for Sanction and Motion to Compel. Again there was some lack of understanding of what the court may have meant. 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 opinions and the grounds for each opinion. The Court gave out an example of what was submitted on behalf of Dr. Henry Lee. The Court goes on in its order and says that the defense shall provide written reports to the state from all expert witnesses which shall include the following information – a complete statement of the 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 two orders required both the state and the defense to have expert witnesses list all the 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 once someone gives a main opinion that they may want to discuss. It has never been the intent to, by depositions, to alleviate the responsibility, and that was not the intent of this court’s order to rely – say that you could either take their 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 exhibit.

The Court on Saturday indicated that it was put into 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 Dumas, Wright, Lott, Odum and U.S. vs Hobbs, it frowns upon that because you punish the Defendant. But 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 would say this is the case, despite the due process implications, where the ultimate sanction of exclusion would be proper. Yes, there has 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 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 will announce to both the state and defense that we are going to have a short day on Wednesday and that is 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 the reports or depositions. As I explained to both sides – sub-opinions as long as it’s under that general area – on minor things, those are going to come up – you can’t anticipate everything. 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 will have to do it all over again, because of repeated violations, exclusion may be the proper remedy if it continues. So, who will the defense’s first witness?

JB: Judge our second witness that we had intended on call was Richard Eikelenboom, but in light of that, we have to wait. We are in the process of picking up the third witness. It would take approximately 30 minutes to have her here.

HHJBP: Okay, inform the jury, and take them out since they have been locked up in that room for quite some time, that we will proceed at 10:25 – okay?

The only thing I want to say is this, folks, I am getting very very close to starting this proceeding every morning at 8:30. I know that that would bring some problems, but at the same time I have tried to be accommodating with the work schedule for everyone, but I have a sequestered jury who live under severe restrictions and if ya’ll don’t want to act professionally, I will work you real full days and that will include your lunch hours. I try to give you an hour and a half because I realize you want to eat, relax and look over your notes. But all of this, folks, is going to stop or you will be working some fierce days so be prepared Saturday to go the whole day.

Okay, we are in recess to 10:25.