You want Orders with those Fryes?

     One of the most obvious things criminal defense attorneys do is throw as many motions at the courtroom walls as they can in hopes that something sticks before the trial begins. In the case of Casey Anthony, her defense team tossed an inordinate number during the course of nearly three years. Some were questionable, but for the most part, they’ve been rather credible. Recently, hearings held in Chief Judge Belvin Perry’s court (See: Order in His Court) addressed issues related to Frye. Called Frye motions, the name comes from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a case that argued the admissibility of polygraph tests as evidence. The primary goal of these types of motions is to determine whether scientific evidence should be admissible at trial. The judge decides whether to exclude unqualified evidence and new types of methodology that may not yet be accepted in the relevant scientific community. In other words, evidence should be peer reviewed and recognized as being sound before it’s allowed into a courtroom.
     So much for the basic lesson in law. Let’s get to the meat of several Frye motions Casey’s defense filed and explain how Judge Perry ruled on three of them. Late yesterday (April 26) afternoon, his orders were filed with the Clerk of Courts’ office. It’s not a stretch to say it was another bad day for Casey and her team. Very bad.

Order 1

     Down came the hammer on the defense Motion to Preclude Phantom "Heart Sticker" Evidence. The defense had alleged that an FBI fingerprint examiner, Elizabeth Fontaine, tested duct tape taken from Caylee’s skull and claimed to notice "glue residue" that "looked like it was in the shape of a heart" prior to testing. When she re-examined it later, the image was gone. Poof! No photographs were taken, so no evidence of the residue exists. The defense argued that when evidence is destroyed, either inadvertently or in bad faith, it can’t be used against a defendant. They cited two case law examples, but the judge begged to differ. He said the defense hadn’t presented anything proving that the state either intentionally or negligently lost or disposed of the evidence or that it was "unavoidably consumed."
     The way Judge Perry wrote his order explains why he is held in such high regard among his peers.
     "For example, a witness in a robbery trial would be allowed to describe a weapon he believed the perpetrator was carrying, even if the weapon was not in evidence, or to testify that the perpetrator’s car was red, even if no photograph of the car was in evidence."

Order 2

     You’d better take a very deep breath before blurting out this one, the Order Denying Motion to Exclude Unreliable Evidence (Post Mortem Banding) and Amended Motion in Limine for Hearing on the Unreliability of Scientific Testimony by Karen Lowe on Post-Mortem Hair Banding.
     Why this order was so long is because the original motion was filed December 30, 2010, and an amended version was filed March 29. Jose Baez argued that evidence of hair decomposition, otherwise known as post-mortem root banding, has never been admitted in a Florida court. He also noted that the results were not conclusive enough for the examiner who tested the hair. Karen Lowe wrote in her report: "I can’t say absolutely that the hair came from a dead body but is consistent" with post-mortem root banding. She requested additional hair samples to make the case stronger "rather than some other possibility of why one hair would look like that." Alas, Q12 was the only one that had the death band. 
     Judge Perry acknowledged that novel scientific evidence is not admissible unless it meets the test established in Frye. He wrote that before an expert is allowed to testify at trial on the applicability of a new scientific principle, a trial judge must determine if the expert will help the jury understand the evidence. The jury must then decide whether the expert’s testimony is based on a scientific principle that has gained general acceptance in the field where it belongs. In other words, peer reviewed. The jury must also determine if the expert is qualified to present the testimony on the subject. 
     As a matter of case law, the judge cited People v. Kogut, 806 N.Y.S. 2d 373, 374 (N.Y. Sup. 2005), where expert witnesses testified that post-mortem banding occurs when the hair begins to decompose inside the hair follicle, while still on the head of the deceased. They also testified that the technique for identifying death bands was "generally accepted in the relevant scientific community of criminologists who are involved in trace evidence analysis, a group that includes FBI, medical examiners, and police laboratories."
     The court in Kogut also cited Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which stated: "The methodology for identifying post-mortem hair banding was published in the Journal of Forensic Sciences in 1988 and has been subject to peer review, albeit within a small community."
     According to the judge, Karen Lowe’s testimony "will assist the jury in understanding the hair found in the trunk of the Defendant’s car," and that it is "based on a scientific principle that has gained acceptance in the particular field to which it belongs, and Ms. Lowe is a qualified expert."

Order 3

     This one is titled the Order Denying Motion in Limine to Exclude All Evidence Relating to Canine Searches and Alerts. Law enforcement utilized two dogs trained in detecting human death. Of course, the defense alleged that testimony regarding the dogs’ alerts "suggests nothing that in the end is admissible," and argued that it doesn’t support any inference that the victim was dead at a specific location. The judge disagreed. He cited many examples of case law that supported his decision. For instance, the dogs, Gerus and Bones, were trained extensively, as were their respective trainers. While Judge Perry acknowledged there are no reported cases in Florida addressing the admissibility of evidence pertaining to cadaver dog alerts, of utmost importance was the fact that the dogs worked independently of each other, off lead, and both alerted to the same location. While denying the defense’s motion, the judge ruled that evidence and testimony will be admissible at trial "as long as the state establishes the proper foundation based upon factors set forth in Harris," which references Harris v. State, 2011 WL 1496470 (Fla. April 21, 2011). The Florida Supreme Court ruled that the trial court must be presented with the evidence necessary to make an adequate determination as to the dog’s reliability, especially since training and certification in Florida are not standardized. The experts will have to present the training and certification records, along with an explanation of those records.
     There are still outstanding motions the judge must rule on. They include plant root growth where Caylee’s remains were found, plus chloroform levels and air samples from the trunk of Casey’s car. State witness Dr. Arpad Vass is a research scientist and forensic anthropologist at Oak Ridge (Tenn.) National Laboratory who is well known in the field of decomposition odor analysis. He ran gas chromatograph/mass spectrometer tests on air and carpet samples from Casey’s trunk and found evidence of human decomposition and a high level of chloroform. The defense claims the chloroform was from Caylee’s bathing suit. If Judge Perry allows this evidence at trial, he will be the first judge in the U.S. to do so.
     While we wait for his latest orders, I think it’s safe to say that yesterday (April 26) must have been a real whopper of a day for the defense team. Something tells me they woke up this morning with a super-sized headache.


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