6/25/11

WFTV Raw Video Day 39, Trial Parts 1 and 2

http://www.wftv.com/video/28355927/index.html

HHJBP: Be seated. Yes, Mr. Ashton.

JA: Your Honor, at 8:40 this morning I was handed by counsel documents under the indication that these were to be used by witness Dr. Kenneth Furton in his testimony. In them, in my quick review of them in the 10 minutes until I told the Court I needed time, Iíve discovered that apparently Dr. Furton has done additional research since his report and my deposition which is a surprise to me - on specific issues such as identification of sources of chloroform which he was specifically asked - page 87 of his deposition - indicated he couldnít particularly account for Ė gave some general speculations. Apparently now he is proposing to present a specific slide identifying that. I apologize if I canít give you exact quotes. But, Also, in his deposition he was asked about the possible sources of the odor signature and basically indicated he wasnít really aware, it could be various things and didnít identify anything particularly and Iíve just been handed slides where apparently he is now planning to point out specific items and claim, I assume theyíre the source of the odor. So, Iím afraid, once again we are in the position of experts having supplemented their opinions without notice to the State. Again, I only had 10 minutes to look at this, but it does appear that. I wanted to bring it to the Courtís attention. So, before Dr. Furton testifies I would request we have a full Richardson hearing on the matter.

HHJBP: Well, we wonít be having one today. So Ė weíll have one at the close of testimony, but he will not testify to anything that is not in his report. He can come back next week to finish up; but, Mr. Baez you have anything you need to say?

JB: Yes, it appears that the state is incorrect. Heís been asked about these issues. These are issues that are the center of the case.

HHJBP: All I need to know Mr. Baez Ė have his opinions changed since he was asked in his deposition. If they have, has he submitted a supplemental report that complies with this Courtís order that all experts, not only disclose their opinions, but the underlying facts or data that support their opinions. Thatís the only two questions I need to know answers to.

JB: I do not see any new opinion that are being rendered here that werenít testified at either his Frye hearing testimony, deposition or his report. This is a demonstrative power point that he wanted to use, I made a copy Ė I asked him for a copy of it. He arrived this morning. I immediately gave it to Mr. Ashton. And, you knowÖ I guess the more times you make this argument, I guess it becomes real at some point, even though itís not true. So, Mr. Ashton can continue to make these allegations and make the allegations and maybe all of a sudden they come to fruition in his world, but I donít believe them to be true.

JA: All I would ask is an opportunity to present an argument before the Court before Dr. Furton testifies once Iíve had a chance to thoroughly examine the deposition and demonstrate those areas where his testimony has been supplemented, or may have been supplemented, again I donít know what he is going to say, but I would just make that request.

JB: He is asking for more time to review his deposition. He doesnít even know if it is new or not. So let me go ahead and make the accusation even though I donít have the proof is what heís saying. If he knows a specific part that, if heís reviewed that deposition and knows that this is not in and reviewed the Frye testimony and knows that itís not in then he has an argument, but unless heís done that I donít think he should be before your honor making allegations he has no support for.

JA: Page 87, Line 12 through I believe the middle of the next page which is the discussion about where the chloroform came from and he gives no information other than thatís speculation and is very vague in terms of cleaning products, etc. The power point has specific chloroform amounts for specific items from the trunk. Thatís just the one I found quickly sir.

JB: He got those amounts from the testimony of Dr. Rickenbach which counsel got from Dr. Rickenbach, which wasnít in his report. If you recall, Dr. Rickenbach, he went through a chart Ė I may even have the paper here Ė where he asked him to go into percentages of how much chloroform was there, and Dr. Rickenbach went down the line .01%, .05% and so on and so forth, all of which was not in his report. Heís stating it right here Ė detected in FBI chemistry unit and he sights Dr Rickenbach. So, for Mr. Ashton to say that he doesnít know about any of thisÖ.

HHJBP: Well somebody provide me with his report since I donít think you filed it. I have a copy of his deposition and then we will see. This demonstrative aid, is it of the same type of thing that the Defense asked to be excluded, and which was excluded because it was not provided to the defense?

JA: I donít have an extra copy, maybe counsel could provide the Court with a copy but he also appears to site studies that are not included in the report; more recent studies that were not included, not available and not discussed.

HHJBP: Somebody get me a copy of the gentlemenís report, I have his deposition and I will deal with it.

JB: Your Honor, weíre not going to go through this. We will have him tailor his testimony to items that the State is fully aware of. Thereís nothing secretive going on here. If heís objecting to the Power Point, weíll take out whatever slides he has issues with if theyíre legitimate issues and weíll take it from there. This really has gone on long --enough and weíre not willing to go into that. So, if I have to tailor his testimony and narrow it, I am more than willing to do so, because I think he has plenty to say and all of these issues may be unnecessary, totally and completely unnecessary.

HHJBP: Gentlemen, I donít know. The only thing I can do is read his report and read his deposition and see whether or not he has changed any of his opinions and whether or not he has not complied with this Courtís order and then once Iíve made that determination then we will move from there. You would think this would have grown old by now, but I guess some things never change.

CM: Entirely different subject Iíd like to ask of youÖ.

HHJBP: Yes, sir Ė Madam court reporter?

SIDEBAR

ICA and DT to the back, SA stayed in courtroom

ICA and DT back in courtroom

(Start at about 25:00 minute mark)
CM, JB, LDB, JA and FG all standing near sidebar without HHJBP. CM is doing a lot of talking. Then JA points to door and they all agree and he motions to the court reporter and she gets up and goes with them. They leave and ICA is wiping her nose and her face is all red. Then ICA goes back too.

PART 2

CA happily chatting with the guy sitting next to her. GA not looking as happy Ė blowing his nose. Now heís pointing up and they are both staring at the ceiling. CA asks GA something. He bends down and picks up a piece of paper and gives it to CA and she leaves the courtroom with the paper. She comes back a minute later. Still actively chatting with the guy next to her.

ICA back Ė watching the computer along with DS. Then DS closes the computer and they start chatting. Some activity going on behind her, but canít tell. Camera back on CA and GA.

SA back, HHJBP back.

HHJBP: You may be seated. Okay, let the record reflect the Defendant is present, along with counsel for the defendant and assistant state attorney. All right Does both sides concur that a legal issue has arisen unrelated to the legal issue that we talked about first thing this morning dealing with Dr. Furton that would necessitate us recessing for today. Mrs. Burdick?

LDB:

JB: The defense would agree as well.

HHJBP: All right. Court will be in recess until 8:30 Monday. Madam court reporter, weíve got something weíve got to do.