By Martie Hevia | Blue Beach Song™

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Day 24 – June 21, 2011 – Tuesday

The Defense’s List of Witnesses for June 21, 2011

• First Defense Witness: Jennifer Welch – Crime Scene Investigator for the Orange County Sheriff’s Office.
• Second Defense Witness: Dr. Jane Bock – Forensic Botanist.
• Third Defense Witness: Richard Eikelenboom – DNA Scientist from the Netherlands.
• Fourth Defense Witness: Yuri Melich – Detective for the Orange County Sheriff’s Department.
• Fifth Defense Witness: Dr. Marcus Weiss – Research Scientist/Analytical Chemist at Oakridge Laboratory.

The Defense’s Witnesses:
Investigators and Scientists

The day had some excitement, some interesting bits of information, and a great deal of belabored testimony that may have lost the jury, not for its complexity, but from sheer boredom.

The Defense once again faced accusations and admonitions for discovery violations for failing to turn in a discovery report by Mr. Eikelenboom, their DNA scientist. The court had already ordered, before the trial even began, that all experts are to turn in detailed reports that include every opinion and conclusion to which they plan to testify, and all of the data that formed that opinion. The lead defense attorney, Jose Baez, was admonished by the Judge as willfully violating the court’s order, and he was threatened with contempt charges after the trial.

After lunch, the Defense accused the prosecutor of violating the court’s discovery order, for having handed to the Defense, earlier that morning, a compact disk with redacted information from the Anthony’s home computer. The prosecutor, Ms. Burdick, argued that the Defense has had that hard drive for the last three years and were not denied access to the data. The Prosecution argued that their CD includes redacted content from that hard drive from June 16th, 2008, that would disprove the Defense’s version of activities that day and it is for presentation purposes. The Judge sided with the prosecution on this issue, and said to the Defense, “How can it be the fault of the State of Florida that you chose not to look at any particular days, when you had the hard drive?”

The prosecutor offered one bit of interesting information that may or may not come in, apparently April Whalen, a prisoner at the jail for five days in June 2009, was in proximity to Casey Anthony and it was reported by a “citizen” that Ms. Whalen had a son who drowned in the family pool in December 2007. The drown victim’s grandfather pulled him out of the family pool, performed CPR and called 911. [It appears that the story may have travelled to Ms. Anthony, given it’s similarity to her own new version of events.]

A great deal of time was spent on Mr. Eikelenboom, a DNA scientist for the defense. First, because of all the time spent, outside the presence of the jury, discussing the discovery violations, and second, because he spent a great deal of time talking about touch DNA and low-copy DNA in order to say that perhaps there might have been some DNA left somewhere at the recovery site, if it was not completely degraded, that could have been tested.

The next witness, Detective Melich took the stand to say that he did not find anything related to chloroform in the searches conducted of the Anthony home. And the prosecutor pointed out that Casey was home between late August and mid-October, leaving it to the jury to connect the dots that perhaps Casey had the opportunity to get rid of evidence.

The rest of the afternoon was spent on Dr. Weiss, an analytical chemist and colleague of Dr. Vass at the Oakridge Lab. The Defense focused on pointing out every glitch noted in the research scientists’ bench notes as they conducted the tests on the evidence they were, which included air samples, and carpet samples. Dr. Weiss tried to indicated that these are the normal kinds of things that you correct and calibrate and try again. And the Defense once again, as with Dr. Vass, accused Dr. Weiss of slanting his testimony because he stood to make royalties from a related invention that deals with human decomposition, however, the prosecutor was able to point out that the invention’s consumers would be the police and military, and apparently the U.S. government can use their patents free of royalties.

Violations of Discovery Court Orders

The day began with the lawyers arguing over witnesses and discovery violations – mostly by the Defense – but it was during those discussions outside the presence of the jury that the fireworks would go off.

Prosecutor Ashton argued, before the trial day even began, that another discovery violation had occurred, this time with respect to Mr. Eikelenboom and his opinion that DNA can be recovered from decompositional fluid, which Mr. Ashton felt should have been handled in a pre-trial Frye hearing. Mr. Ashton requested that a special jury instruction be read to the jury regarding the Defense’s violation of the discovery order, but Mr. Baez objected to any instructions that would punish the Defense.

Judge Perry granted the State’s request for jury instruction, and he will prohibit Mr. Eikelenboom’s from testifying as to the possibility of testing decompositional fluid for DNA for now, however, if the Defense requests one, the Judge would allow the conducting of a Frye hearing on this matter.

During the recess break at 10:36 a.m., outside the presence of the jury, the Judge had a few questions for Mr. Eikelenboom who took the witness stand. Namely, the court wanted to know if he had ever been told by the Defense that he had to provide a written report detailing all of the opinions and conclusions to which he was going to testify, along with all of the data informing those opinions, and that all of the reports were due by a given deadline. Mr. Eikelenboom informed Judge Perry that he was never told that he needed to provide a written report with all of his opinions. The Judge asked him exactly when he was retained and he replied that it was on July 13, 2010 and the only thing he provided was a half-page affidavit. It was not until Saturday night, June 18, 2011, that he was asked to write a report, and he prepared a PowerPoint presentation.

Mr. Ashton, the prosecutor, asked Mr. Eikelenboom if there was any opinion that he developed Saturday night that he could not have offered four months ago, for example, as a result of newly received evidence. Mr. Eikelenboom replied that he had requested early last week FBI photographs and reports, and it wasn’t until this past Friday that he received those materials to review.

And the Judge was ready to give a ruling.

The Judge found that (1) the Defense willfully violated the court’s discovery order; (2) it is not a trivial violation, but a substantial one, given that DNA cannot be considered trivial; (3) because exclusion of the testimony would be an extreme remedy, the judge will not allow the testimony on testing decompositional fluid for DNA to come in now, but the Defense will have until next Saturday to file for a Frye hearing, and if need be they will hold a Frye hearing at that point.

During the lunch recess, the lawyers battled it out over new discovery the Prosecution handed to the Defense: a compact disk with material from the desktop computer taken from the Anthony home on July 16, 2008.

The Judge inquired of the Prosecution what that was about and Linda Burdick, lead prosecutor, stated the CD contained redacted content, for presentation purposes, that is contained on the Anthony desktop computer, which is data the Defense has had for over two years. Judge Perry asked what was on the CD and Ms. Burdick replied that it was activity on the desktop the morning of June 16th, adding that the computer activity and text messages negate the activities the Defense described in their opening statement.

Mr. Baez argued that just because they had the hard drive that does not mean they knew what to look at on a computer with billions of bits of information. The Judge replied, “It seems to me that June 16th was the last day anyone ever saw Caylee Anthony, and creating a timeline of how Casey, Lee, and George spent that day would be relevant and something that should have been checked, including the 15th and 17th of June… if the hard drive was given to you, then it was up to you to decide what searches you wanted to do on that hard drive and up to you to decide what days you wanted to look at. How can it be the fault of the State of Florida that you chose not to look at any particular days, when you had the hard drive?”

Ms. Burdick indicated that there was one more matter, involving a citizen who called about an inmate, April Whalen, who was in jail [for five days in June 2009] at the same time that Casey Anthony was in jail. This prisoner had a child who drowned in the family pool [in December 2007] and was found by the grandfather, who gave him CPR and called 911. This matter was being investigated and the witness might be used in rebuttal.

Jennifer Welch

The first witness, Jennifer Welch, crime scene investigator for the Orange County Sheriff’s department, has been recalled many times during this trial, but this time she was back for one thing: to help the Defense introduce some photographs of the recovery site after all the leaf litter had been cleared, leaving the ground bare.

The recovery for Caylee’s remains took place from December 11-14, 2008. At the end of the day, on December 14, 2008, Ms. Welch made some final observations of the site. The area had been cleared of leaf litter and vegetation from 0-4 inches and around the tree roots it was cleared 0-10 inches.

Ms. Welch took photographs when she arrived at the scene on December 11, 2008, and she was asked and answered that she did not take any vegetation off from the top of the remains, other than the vines that were tied back. She also took photographs of the scene after the vegetation had been cleared. She was asked if she had referenced a log in her report, and she had referenced it, noting it was near the skull, and that during the process of clearing vegetation, the Medical Examiner’s Investigator Hanson moved the log.

A photo of the remain site, taken after the vegetation was cleared, was admitted into evidence. The defense attorney, Ms. Dorothy Sims, asked one final question about Ms. Welch’s identification process for her photos and she explained that she loads up the photos from her camera into the system and the call ID number is automatically assigned by the system. Ms. Sims asked Jennifer Welch if she had a call ID number for 1848, and after checking her log, she said she did not.

Dr. Jane Bock

The next witness was a forensic botanist, Dr. Jane Bock, with a bachelor’s, master’s and doctorate in botany. She is a retired professor of Botany, has published about 80 peer-reviewed papers, authored three books and edited another. She belongs to numerous professional organizations and has provided research support to many others. Dr. Bock has testified over 50 times and she was accepted as an expert in this trial.

Dr. Bock reviewed the Medical Examiner’s and the CSI team’s photographs; visited the recovery site on February 1, 2009; read the Medical Examiner’s report; read the report by the Prosecution’s forensic botanist, Dr. Hall; and read Jennifer Welch’s report describing the site, and, after all that, Dr. Bock stated that the shortest period of time the remains could have been there were two weeks “based on the pattern of the leaf litter.” [Note that she gave a minimum amount of time, two weeks, not a maximum.]

Dr. Bock was asked if she could tell when the body was deposited there, but she could not. She was then asked if the vegetation found in Ms. Anthony’s car matched that of the recovery site, but Dr. Bock said that after reading Dr. Hall’s report and his description of the leaves in Ms. Anthony’s car, which came from a camphor tree, she could determine that the vegetation in the car did not come from the recovery site, since “there is no camphor tree at the remain site.”

Next, Dr. Bock was asked if she could determine how old roots are by looking at photographs, and she replied that she could not, “because I don’t know what kind of roots those are, and the growth rates vary on the type of plant and the mineral content of the soil, and the amount of water, and other environmental factors.” Dr. Bock explained that you would need to know what plant the root came from, and then you would do a time-rate observation of the growth of the root. You would track its growth with a ruler and by photographing it. [This seemed to be in rebuttal to Prosecution expert witnesses that estimated how long the body had been at the site based on the root growth.]

The Cross-Examination by Jeff Ashton
Prosecutor Jeff Ashton, during his cross-examination, spent some time questioning Dr. Bock about the fact that she was from Colorado and that most of her work as a botanist was probably not in Florida, but she replied that it was not true, Florida was the site of her PhD thesis in 1966, moving up and down the state looking at the distribution of water. She stated that she visited Florida often because her parents live in Florida. Mr. Ashton asked and Dr. Bock conceded that most of her work had been done in studying grasslands here and in South America.

Dr. Bock confirmed that she had visited the recovery site and reviewed the photos. Mr. Ashton asked her if she would agree that the area is a swampy area and the doctor replied that the area is classified as a swamp hardwood. As such, Mr. Ashton inquired, would she agree that the area would frequently be under water, but she pushed back saying she did not know what he meant by frequent. Mr. Ashton then asked if she would agree that the plants and trees in that area require a great deal of water, and the area would occasionally be under water and Dr. Bock was able to agree with that.

Mr. Ashton highlighted that Dr. Bock’s estimate of two weeks is the minimum amount of time the doctor claimed the remains could have been there, but, as she eventually conceded, reluctantly, “they could have been there longer,” however, she repeated again that she felt that they could have been there as little as two weeks.

Incredulously, Ashton asked about the roots, could they have grown into the fabric and hair mat in two weeks and Dr. Bock replied, “Yes.” Mr. Ashton pushed, “Are you saying that the roots could have grown into the bone in two weeks in December?” and Dr. Bock said, “I suspect so, but I am no expert on bones.”

Asking with a little more force, Mr. Ashton insisted, “Have you had the occasion to examine a skeleton where the roots have grown into the skeleton?” and Dr. Bock answered, “Yes.” Mr. Ashton asked the doctor if she recalled the deposition she gave in 2009 and she did. “Do you recall when I asked you if you had inspected a skeleton with roots growing into it, and you said no?” insisted Mr. Ashton. Dr. Bock retorted with, “Well, I meant in teaching. I did go to a crime scene and saw it.” Mr. Ashton added, “Your experience with roots growing into bones is extremely limited, isn’t it?” and the doctor reluctantly said, “Yes.”

Jeff Ashton asked the Dr. Bock if she had seen photos of the skull with leaf litter to the eye sockets and she answered, “Perhaps.” Mr. Ashton showed the witness a photo of Caylee’s skull with leaf litter which has collected around the skull above the jaw, covering the nose, up to the eye socket. The prosecutor showed the jury and the witness another photo taken by the Medical Examiner of the skull with the surrounding leaf litter that clearly shows varying degrees of leaf decomposition. “Some of the leaves are gray, yellow, green, in various levels of decomposition.” The doctor confirms that depiction.

Mr. Ashton asked the forensic botanist on what she based her two-week estimate and she replied that it was based on the photo taken when she was there in February of 2009. On December 15, 2008 the ground had been left bare, void of leaf litter, and six weeks later she went to the site and saw the amount of leaf litter that had accumulated.

ASHTON: The leaf litter built up between six weeks, but there are parts of the ground that are not covered by leaf litter.
BOCK: In certain parts they’re not and in other parts they are.

ASHTON: Largely in this area [pointing to a Defense photo] the tree roots are not covered by leaf litter. Are you saying that this amount of litter is greater than what was around the skull?
BROCK: Same as.

ASTHON: You are saying that the leaf litter up to the skull’s eye sockets is the same as what you see on this photo, where most of the tree roots are not even covered. Here [in the Defense photo] the vines would have been removed and it would be easier for the leaves to blow, and accumulate. Why is there no leaf litter on the right side of the photo versus the left side?
BROCK: Yes at that moment in time it does indeed look like that. Several possible reasons: people trampling around; root action; animals is another; the nature of the trees themselves and the leaf fall rate.

Asking her to point out where the skull was located on her photo, Dr. Brock replied that she was told “that the tree there [pointing at the Defense photo] was the tree where the skull would have been.” Without expecting a response, Mr. Ashton remarked, “So you were told that by someone who was not on the scene when the skull was discovered, where the skull was.”

The Defense’s re-direct included a discussion of the light and spongy decomposing organic layer of soil called humus, and the possibility that items can sink into humus if the area is damp.

The prosecutor, perhaps hoping to offer what might be more compelling evidence to the doctor that Caylee’s remains had been at the site longer than two weeks, asked her whether she knew that one of Caylee’s bones was found 4 inches deep in the muck. She replied that she didn’t know that. Mr. Ashton asked her if that would not indicated that the skeleton had been there longer than two weeks, and she replied, “Well I don’t know, a dog or coyote could have buried it there.” Incredulously, Mr. Ashton repeated, “A dog buried it!?” and Dr. Bock responded, “Or a coyote? I don’t know if you have those here.” and as Mr. Ashton was beginning to gather his papers from the podium to leave, Mr. Ashton looked up as he turned and replied, “Ah, no, we are not blessed with coyotes, we have other things here. Thank you Dr. Bock. No further questions.”

Richard Eikelenbloom

After lunch, Mr. Eikelenboom, a DNA scientist for 20 years, returned to the stand to talk about touch DNA, ways that it is left behind, and ways that you might be able to detect it.

Eikelenboom’s qualifications include work at the National Laboratory in the Netherlands in the Biology department, doing trace recovery of biological evidence for DNA. He studied Biology and received training in analytical chemistry. In 2003, his wife started a company, Independent Forensic Services, which he joined in 2005. Mr. Eikelenboom’s ‘Engineer’s degree’ from Holland is equivalent to a degree between a Bachelor’s and a Master’s degree. He has testified as an expert witness over 70 times.

Mr. Baez asked the witness what his opinion was about the duct tape in this case, and he replied that even though the body and the tape may have degraded outside, perhaps there was some DNA that could have been found and amplified through low-copy DNA.

Through his slide presentation, Mr. Eikelenboom explained the different layers of epithelial [skin] cells, how the surface layer is mostly dead skin cells without a nucleus, and hence not suitable for nuclear DNA testing. He talked about how when greater force is applied to the skin, it increases the possibility that deeper layers of skin cells containing a nucleus might be transferred.

Eikelenboom explained how there are many tests that will show that blood, saliva, and semen are present, but there are no tests that show when skin cells might be present. He has worked on exploring ways that might help investigators find skin cells, such as looking for sweat through alternate light sources. Another way, is to surmise where the force may have been applied on the evidence, a body or a crime scene and test those areas for skin cells.

There was discussion about the three types of contacts that are possible: the wearing of something, like clothing or a watch; a forceful grip, where you grab someone or something forcefully might get rid of the top layer of dead skin cells and expose the living skin cells; and lastly, a slight touch, from which it is much harder to get a DNA profile.

The amount of DNA that might be found at the scene will also be affected by how much a person sheds; the roughness or stickiness of the objects involved, and other variables.

Mr. Baez asked Mr. Eikelenboom if cutting duct tape would require a forceful grip from which you might be able to collect DNA? The DNA scientist agreed.

The Defense also asked him about testing the digestive system of maggots to find DNA of the decomposing body they had fed on. [It seems that even if you could get to the cell material before it is digested, the DNA would belong to Caylee Anthony, since we know that she is the victim.]

The Cross-Examination
Mr. Ashton began his cross-examination by asking Mr. Eikelenboom about his education, pointing out that he does not have a PhD, rather he is currently a student at the University of Colorado trying to earn one. The prosecutor asked the witness about the converted barn he and his wife are using for their lab in the United States.

The prosecutor tried to minimize the work Eikelenboom does, pointing out that he buys kits that simply run more replications of an already established PCR method for amplifying the DNA sample. However, Mr. Ashton pointed out and Eikelenboom agreed that the more replications made, the more likely the case that there will be contamination.

Mr. Ashton asked him what were the most destructive environmental factors for destroying DNA and Eikelenboom replied that hot and wet environments are the two most destructive factors to DNA. [Which are exactly the type of conditions in which Caylee’s body was found.]

The prosecutor summarized the possible results if the duct tape had been able to yield DNA results: (1) nothing was found, the DNA might have been degraded; (2) Caylee’s DNA might have been found; (3) an unknown DNA profile may have come up, but there would be no way to know if that unknown profile had anything to do with the crime.

Detective Yuri Melich

The Defense then called Detective Melich to talk about the search warrants he executed and how they did not find any papers, containers, rags, receipts, chemistry kits, or anything related to chloroform. Under cross-examination, Ms. Burdick pointed out that Ms. Anthony was out of jail between late August and mid-October 2008. [The implication was that Casey Anthony had plenty of time to get rid of anything incriminating.]

Dr. Marcus Weiss

The final witness was Dr. Marcus Weiss, a research scientist and chemist at the Oakridge Laboratory, and a close colleague of Dr. Vass. Mr. Baez tried to highlight the differences between forensic labs and research labs, indicating that research labs do not have the same rigid protocols in place for handling samples and evidence that forensic labs have. Dr. Weiss said that research labs have more flexible methods, but they also have protocols.

They moved on to discuss the items that he was asked to analyze, especially for chloroform, as well as the methods and instruments he used. He was asked by Dr. Vass to perform qualitative tests on the samples, which only answer which chemicals are found, not how much of them are there. The use of the gaschromatogram gives the scientist a comparative look at the chemicals found, and by looking at their peaks in relationship to each other, they can determine that there is more or less of one chemical versus another.

Dr. Weiss was asked if a quantitative test was ever performed on the samples testing for chloroform and he explained that a quantitative test would have been meaningless “because chloroform evaporates very easily and quickly. The concentration is constantly decreasing until you can no longer detect it.” He added that a quantitative test “would only show that small piece of carpet at a particular snapshot in time, and a whole lot less [chloroform] than what was originally there.”

Mr. Baez spent the afternoon laboriously going through Dr. Weiss’s detailed notes of every sample he tested, and pointing out every glitch in the process, even if it was not indicative of anything going wrong.

The afternoon ended with Mr. Baez accusing Dr. Weiss of the same thing he accused Dr. Vass, skewing their testimony to get their Labrador patented prototype to be validated in court because they would stand to make a great deal of money from the royalties.

And then, under re-cross, Mr. Ashton asked Dr. Weiss, “This product, the Labrador, was designed for the police and military and you are not allowed to get royalties from those entities. Isn’t that true?” Dr. Weiss answered, “Correct.” Mr. Baez immediately got up for his re-re-direct and asked, “Are you saying that you would not make any royalties from the Labrador?” and Dr. Weiss explained, “The United States government can use our patents free of royalties and I will not make any money.”

Final Thoughts

The Defense is doing their best to attack what they can of the experts’ reports, to attack the way the evidence was tested, to attack the methods used to collect DNA evidence, to show that there is a lack of evidence. They are floating many shiny objects in front of the jury, but what are they going to do to show them that the Defense’s version of the events is true?

Although the jury might temporarily focus on the shiny objects, in the end, won’t they return to and need to reconcile the big picture and the lies?

What are your thoughts?

Casey Anthony Trial | Day 25 – Daily Updates (Thoughts & Observations) – Coming Soon

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