Casey's Defense: Scrambled and Fryed
"The jury will be entitled to determine the credibility and reliability of his opinion, which it may accept or reject."
- Chief Judge Belvin Perry, Jr. (in reference to the prosecution's forensic botanist, Dr. David Hall.)
This seems to be the tenor of Judge Perry's court, at least as far as the Casey Anthony case is concerned. His philosophy is one of common sense and pragmatism. Let the jury hear the testimony of expert witnesses from both the prosecution and defense. Let the cards fall where they may. The jury of able bodied men and women will surely know how to pick them up and deal with the matter at hand. Of course, one of his responsibilities will be to address the panel concerning issues of scientific evidence and expert testimony.
Recently, the judge ruled on two more Frye motions. The Frye standard is a general acceptance test, where expert scientific testimony must be based on methods that are sufficiently established in the relevant scientific community.
"Chloroforming" an Opinion
In his Order Denying Motion to Exclude Unreliable Evidence Pursuant to Frye in the Alternative Motion in Limine to Exclude (Chloroform), Judge Perry wrote that Casey's defense team didn't challenge using the gas chromatography and mass spectrometry method for testing. Instead, they claimed Dr. Arpad Vass failed to apply the method reliably because he didn't examine this chloroform test against comparison samples. Vass claimed that the amount of chloroform in the trunk of Casey's car was 10,000 times greater than any amount that had shown up in the past, an amount he had never come across before, and therefore, there were no comparison samples available. The judge ruled that Vass's decision not to use comparison samples does not constitute a basis for excluding any testimony because the defense will have the opportunity to cross-examine. In State v. Sercey, 825 So. 2d 959 (Fla. 1st DCA 2002), the court noted "the scientific principles underlying solvent extraction, gas chromatography and mass spectrometry were discovered and developed in the early 1900s, and the particular combined method of analysis referred to as GC/MS has been in use over forty years in a wide variety of applications," including in the courtroom. It's not considered junk science. Besides, the defense has their own expert, Dr. Ken Furton, to counter Vass. He is a chemistry and biochemistry professor at Florida International University. He is certainly qualified to offer up his own version of the reliability of testing. Where he won't be able to help is when the jury sees very damaging evidence that someone in the Anthony home searched for "how to make chloroform" and the massive amounts that showed up in the trunk of Casey's car. I'm sure time records will prove that George and Cindy were working at the time, and certainly, the jury will be smart enough to add two plus two and come up with an appropriate answer.
Tit for Tat
The defense filed a Motion to Exclude Unreliable Evidence (Plant or Root Growth Evidence) on December 30, 2010. The state responded with its Motion to Strike on February 15, and the defense countered with a Memorandum in Opposition to the Motion to Strike on March 7. On March 18, Judge Perry granted the state's motion, citing that Dr. David Hall's "opinions are based on his personal experiences as a botanist and constitute pure opinion testimony," to which Frye doesn't apply. Hall is a qualified expert witness in forensic botany. The defense countered with a Motion to Vacate or in the Alternative, Motion for Clarification on March 21. It was denied on March 25.
The defense asked for another hearing "on the unreliability of the expert opinion testimony of Dr. Hall concerning the length of time required for various plant growth or plant root growth." You see, Dr. Hall examined plant growth and, particularly, root growth by merely examining photographs supplied by law enforcement from the area where Caylee's body was recovered. He did not use scientific methodology to make his calculations. Judge Perry was unswayed. Dr. Jane Brock, a forensic botanist retained by the defense, was unaware of "any article, book or journal that has been published which sets forth the ability to estimate how fast an unknown plant is growing if you only measure the diameter - - of the root." Dr. Hall acknowledged that he was unable to identify any published articles or books that could determine the speed by which a root grows based on only photographs, but the judge was not swayed. He stood by his prior rulings because what Hall will present at trial will be pure opinion, and it doesn't meet the Frye standard. In this case, the jury will decide the credibility of his opinion, which it may accept or reject, and besides, Brock will do the same thing for the defense.
A Plea Bargain in the Works?
There's no doubt that the trial will be an uphill battle for Casey Anthony, but all is not lost. Because of the Frye rulings, it may seem downright impossible, but there's no such thing in a courtroom. The state has to prove "beyond a doubt" and the defense can still mount a formidable attack.
I realize there's been a lot of speculation in the minds of the public regarding the sinking of Casey's defense - that the evidence against her is insurmountable now, especially since Judge Perry's Frye rulings. I totally disagree. This defense will never give up or plead to the bench because, for one thing, Judge Perry won't permit them to do such a thing. Not this late in the game. There are several reasons why. The state and defense (with help from the JAC) have spent tons of taxpayer money and thousands of hours for it to come down to a bench plea. If Casey were to try, the judge would tell her to go home, regroup, and be ready for trial come next month. Forget it was ever brought up. Think about it - for something like this to happen, her defense would have to convince her to admit she murdered her daughter, although by pleading, there's no guarantee the judge would not sentence her to death. No, I'm afraid Casey would never give in, just as I'm convinced Judge Perry would want no part of a plea deal, and since he would insist that Jose & Co. continue defending her, there's no way he'd want any of this leaking to the prosecution. They would be showing their hand. Besides, the state attorneys would squawk like crazy. No, we haven't come this far for something like this to be anything the state or court would contemplate.
Yes, the defense is scrambling, but what this will come down to will be a battle of expert testimony, and it will be hazy at times. This is where a judge like Perry truly shines because he understands areas of scientific data. He will shed light on the difference between subjective and objective evidence, which is quite simple. If we both look at a thermometer, we will observe the same temperature. That's objective evidence because there are no other answers. If we go outside and I say it's warm, and you say it's cold, that's subjective. It means your standard is different than mine, and it's nothing more than opinion; your word against mine. This should prove to be a fascinating study in the courtroom, and I, for one, can't wait.
As of this writing, no order has been rendered regarding air tests taken from Casey's trunk. This is the test that's never been use in a criminal trial. In my opinion, the judge will deny this one, too. Why? I don't know. I guess I can just just smell it coming.