Housekeeping…and Keeping on Track for May 10
It was a full courtroom, and relatively upbeat defendants, that greeted Judge Lynn Leibovitz as she gaveled in Friday’s status hearing at 3pm sharp. On the agenda? “Housekeeping and setting dates…” said the Judge.
First up: the government’s objections to defense experts Dr. Smith, Dr. Englert, and top-biller Dr. Henry Lee. However hthis was largely easy to wrap up: while Rachel Carlson Leiber and Pat Martin for the prosecution said they haven’t yet been given access to these three, defense attorneys Thomas Connolly and Bernie Grimm made clear they will make every effort to connect the witnesses to the prosecution – even resorting to Skype if needed.
But a secondary issue turned out to be less clear, and perhaps more than secondary. The prosecution is seeking to bar testimony by Dr. Nijam, a cardiologist who intends to testify that a single knife stab to the heart could be enough to immobilize and kill Robert. Martin says his testimony shouldn’t be allowed because it is too far outside basic scientific consensus.
“How does a cardiac surgeon not get to testify?” asked the Judge. Because he’s wrong, replied Martin; at least in the specifics of this particular crime he claims. Judge Leibovitz, signaling greater comfort with allowing expert testimony on both sides and allowing the jury to “…sort it out”, asked the government for more definitive materials to substantiate its opinion.
Next up, the defense’s objections to having testimony from Robert Spaulding and Doug Deedrick. On Spaulding, objecting not to his qualifications or the science of blood spatter analysis, but his particular findings that the crime scene did not match the crime. And on Deedrick, his recently announced experiments using knives, t-shirts, equine blood and a pork loin. More on this in a moment.
And on xylene? We’ve been hearing this week that the government may be backing off FBI toxicologist Roman Karas’ recent detection of xylene in Robert’s remaining blood samples, largely because there wasn’t enough of it. (We also speculated, but failed to note for reasons of time in our previous post, whether the entire issue may have been a head-fake from the prosecution. Our bad.)
Now we know: the government has stated it does not intend to introduce xylene at trial. This, after being “…thrown off for 10 days on xylene…” said Connolly, who requested a one week continuance and a specific statement from the government, apparently along the lines of ‘we take it back, we didn’t mean it, and we’re sorry.”
Not gonna happen, on either request, was the Judge’s reply.
And to the meat of the hearing: setting a time for final argument and evidentiary hearing to clear up what statements, evidence, experts, and testimony will be allowed.
As to statements, Rachel Leiber told the court the prosecution may introduce all the video-taped statements by the three defendants, but not “…as truth.”
This argument was actually spelled out recently in the Government’s Notice of Intent to Use Statements, mentioned briefly earlier. We declined earlier, and elect to do so again, to get into the weeds of argument on Confrontation clause, statements offered “…not as truth”, and inculpatory evidence. The court seemed likewise hesitant, demurring on what was becoming “…a metaphysical discussion of what’s truth and what’s inculpatory.”
“We’ll avoid metaphysics whenever possible,” replied Leiber.
Suffice it to say the government’s decision to enter the video-tape testimony “not as truth” means they won’t have to redact statements by one defendant that possibly implicate another. Statements to be offered as truth are much fewer; several are spelled out in the Notice, but not enough for Judge Leibovitz, who requested a more specific list.
And then to the next hearing. On May 5, the Judge hopes to first hear arguments on motions to exclude testimony about the burglary, the use of restraints, the defendant’s sexual histories, cleaning of the crime scene, and debate about blood pattern witnesses. “That should take maybe three hours…” she noted. Next will come an evidentiary hearing on motions to exclude evidence related to Deedrick’s pork loin experiment, EMT opinions, and crime scene reconstruction forensics.
One final question from Judge Liebovitz. “Any more motions in limine?” a somewhat weary judge asked? “One or two more motions, your Honor,” Schertler offered.
Regardless, we seem to have our next set of goals. The government next week will provide substantive materials relating to evidence or witnesses it objects to, and a list of statements to be admitted as truth. On May 5, the court wants to make final decisions – or as many as possible – as to what exactly will enter trial.
All of this, in just 42 minutes.
The Scene: Defendants Joe Price and Dylan Ward arrived together, Victor Zaborsky not far behind. They took their seats behind counsel with Ward closest to the Judge, Price in the middle and Zaborsky on the end. They appeared in good spirits, smiling and engaged with both counsel and supporters. The courtroom was full.
The Sights: Victor Zaborsky, Thomas Connolly, David Schertler and entourage departing the Moultrie Courthouse. Connolly fields a question and gives a brief reply.
–posted by the Editors