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Apr 29, 201111:40 PM

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.

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Comments, page 1 of 16 1 2 3 4  ··· 16 Next »
Apr 29, 2011 04:04 pm
 Posted by  SageMom

Another great read Dave!! Right from the Frye-ing pan into the fire I guess!! It seems like forever since this began and yet somehow it seems only yesterday we heard that phone call to 911. "I found my daughter's car today..and it smells like there has been a dead body in the DAMN car!" It is hard to think anything good can come from this but just think of all we have learned, all we have been through and all the new history making events that will happen.
As for the air tests???? "I smell a smelly, smell!"

Apr 29, 2011 04:36 pm
 Posted by  Beast

No way will they accept a plea Casey had that chance and past it up. They still think they can get by with the games and double talk. It will all come down to the jury, and Caylee will get Justice.

Apr 29, 2011 04:51 pm
 Posted by  Anonymous

Dsve,

Do you mean in the last para that the Defense's motion to exclude the air test will be denied?

I think it's going to be admitted. Again, you are doing superb work.

Enjoy your articles. Your article is quite thorough. It won't be long now before the trial starts.

What do you think about the recent motion filed by the media regarding not knowing the jury selection site until the night before and the mandatory confidentiality agreement?

I think the media should be given much more time. It is in the public interest and I don't think they should be subjected to a gag order.

Apr 29, 2011 05:03 pm
 Posted by  Amber

Hi Dave,

Another great post!!! Have there been any indications that the defense has ever considered seeking a plea deal? Even with all of the Frye motions that have been denied and the possibility that the Judge will rule against the defense on the air tests too, is there any unquestionable proof that Casey set out to murder Cayley as opposed to just committing child abuse by confining her with duct tape to keep her quiet instead of or in addition to pills or chloroform and the child died accidentally as a result of the misguided attempt to confine her? Casey may have been too stuborn and determined to shut the child up so she could go party and may not have considered the risks of the tape or chloroform to Caylee's health and well being. If she used chemicals to quiet Caylee before, and there were some indications that Caylee slept through a lot of noise at prior parties, Casey may have expected that the chemicals would work that last time also. Casey could have looked up neck breaking thinking of battles with her mother rather than with her child. Casey would probably not get anyone's nomination for a good parenting award, but if she wanted to kill Caylee, she could have thought of a lot more practical methods than neck breaking without help from her computer. Killing Cindy would be another matter.

Is there any legal difference, penalty wise, between criminally neglegent homicide and first degree murder?

Apr 29, 2011 05:07 pm
 Posted by  Dave Knechel

Thank you, SageMom. I like your humor! I'm going to have to comment back periodically until the problem with responding inside your comments is fixed, so I am going to keep my responses short, so...

Hi, Beast! And to Anon...

By admitting the air sample test into evidence, the judge will have to deny the defense's motion. That's what I believe will happen.

Apr 29, 2011 05:18 pm
 Posted by  Mary Jo

Great article, Dave! I love the titles that you come up with for your articles. I don't think that Casey will ever seek a plea deal. It isn't in her to ever admit to doing anything wrong. I don't think the prosecution would go for one either. I like that JP is so willing to let things come into the trial and leave it up to the jury on how they want to interpret certain things. I think right about now her defense team is scrambling to see what they can possibly use for a defense. I can always tell by your writing that you put lots of time in researching and making sure it is easy for all of us to understand. Thank you again for another great article. It truly is appreciated!

Apr 29, 2011 05:30 pm
 Posted by  Dave Knechel

Thank you, Amber - There have been no indications as far as I know, and Jose makes it quite clear his client is not guilty. There are two big issues that Casey can't explain away. Why was the tape in Caylee's hair? And, if it was an accident, why did you show absolutely no remorse? Clearly, had Cindy not cornered Casey on July 15, who knows how long it would have been before anything was found out? Eventually, her friends would have had problems with the scenario, and I believe they would have gone to the police. Eventually. Then, there's the phony nanny.

Sure, there's a difference between criminally neglegent homicide and first degree murder. In Florida, there are two common types of negligent homicide:

Reckless homicide: Reckless homicide is the killing of another person by a negligent act. Driver negligence is typically the cause of reckless homicide. For example, excessive speeding or drag racing can result in death. While the driver did not intend for anyone to be killed, he or she may still be held responsible.

Voluntary manslaughter: Voluntary manslaughter is the killing of another person in which the offender had no prior intent to kill. Physical altercations can result in voluntary manslaughter. Even if someone claims self-defense, when a death occurs as the result of someone physically harming another person, the defendant could be charged with voluntary manslaughter.

(Source:Michael L. Edwards, Attorney at Law - Jacksonville.

First-degree capital murder is a whole different animal, as we all know by now.

Apr 29, 2011 05:38 pm
 Posted by  Dave Knechel

Thank you, Mary Jo. At least I have a little time to respond right now. I do try to come up with catchy titles. Sometimes they work, and other times they're corny.

As far as the judge letting things in, I noticed very early on that he leaned that way. Clearly, the defense had to file them, but I'm not the least bit surprised by his orders.

Thank you for enjoying the post. Yes, I generally do my homework first.

Apr 29, 2011 05:40 pm
 Posted by  Waterfall

The state has to prove "beyond a doubt". Is it not "beyond a reasonable doubt" which is easier?
If the judge denies every motion put forth by the defense it "appears" that Judge Perry is bias long before the trial starts. Even if, it will only bring out a few criticisms because most public opinion is that Casey is guilty and love "what appears to be" supportive of the prosecution. I don't believe he is, just looking at the way it is leaning toward. Dave, I see you reference to subjective and objective evidence. Does this incorporate circumstantial evidence or is it entirely different. I can not rationalize proof "beyond a doubt" with circumstantial evidence. I know we are not privy to all that will be presented or at least "how" all will be presented in arguments. Can the state take circumstantial and make it positive. beyond or without a doubt? Another thought is that the defense may want to look like the underdog, as not having a chance thinking the jurors will have more sensitivity to their seemingly weaknesses and really think hard and deep about giving Casey the dp. Personally I do not think they will be unanimously for death. Your posts make us think, I wonder if any of the potential jurors have or do follow your analysis regarding this case.

Apr 29, 2011 05:56 pm
 Posted by  guardianangel

I recall reading a report from the body farm that the chlorform levels were that high, a small child would had to have ingested chloroform over a period of time to reach those levels. It is normal to find low levels of chloroform present when a body decomposes. Do the high levels indicate that Caylee was given a high dose of chloroform, just prior to or in the commission of the murder? BTW, chloroform administered by injection can render the victim paralyzed and all vitals will shut down in a matter of minutes.

When Caylee's remains were found on Dec 11/08, LE went to the Anthony home with a search warrant and removed a pesticide canister along with several other items to test for evidence. Chloroform is present in pesticides. I wonder if Geo and/or Cindy sprayed the trunk of the Pontiac to get rid of any maggots that were present.

I am of the opinion that the duct tape was the murder weapon and the high levels of chloroform came from other sources, ie, the pesticides or some cleaning agent. The searches of chloroform on the internet may have been just coincidential. Your thoughts?

Great post!

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About This Blog

'Marinade Dave' Knechel

Dave Knechel has been blogging about the Casey Anthony case since late 2008, drawing readers from all over the world. Best known as “Marinade Dave,” a nickname he got when he made marinades and also blogged about marinade recipes, Knechel is on assignment to blog about the case exclusively for orlandomagazine.com as Anthony goes to trial for first-degree murder. His posts will appear regularly on this site.

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