During a court hearing on December 10, 2010, Mr. Baez discussed his understanding of why Mr. Ashton filed a motion to clarify the court’s original order for Mr. Baez to submit a list of experts and the subject matter of their testimony in the murder trial of his client, Casey Anthony.
Mr. Baez spoke at length during his opening remarks. Mr. Baez spoke at such length, we will focus on only his first few sentences in this article and will look at the rest in future installments.
Mr. Baez’s opening statement may heard at the following video link.
http://www.wftv.com/video/26093706/index.html
Jose Baez: “I, quite frankly, don’t know why we’re here. I had upon submitting my… the subject matter of what each witness was going to testify to. I saw the response from Mr. Ashton that he was not content with.. with… uhhh… my answers. So, I then filled in a little bit more of the blanks. I gave him more descriptive version of what they may testify to on the specific issues that they were involved in. Mr. Ashton is intimately involved with every forensic aspect of this case and knows exactly what these witnesses will testify to. OK. At the end of my, and you can see the final e-mail between the two of us, I said the goal here is to work together, please check below and if you have any questions, let me know. Well, Mr. Ashton didn’t let me know. Instead he decided to take up our time here this afternoon and file this motion. A phone call would have done it, a response e-mail or something to that effect. If he wants to know more about these witnesses, we’re not here to hide anything. In fact, I think the court threw him a major bone by… by actually giving them the subject matter… requiring us to give them the subject matter of what they are going to testifying to. Which is far more than they ever gave us with our 350 plus witnesses that we’ve had to take well over 120 depositions of just to find out what some people were going to testify to. We’ve come across all kinds of surprises and and and been dumbfounded with numerous witness including expert witnesses as to what they’re going to testify to. I… I… I think this is a huge waste of time. Could have been resolved by a simple phone call from Mr. Ashton or or an e-mail of of sorts. You know, we’re here at… short of a script of what they’re going to testify to, I’d be more than happy to tell Mr. Ashton whatever he needs to know. But, I… I don’t understand why were here based on this. I think it’s nothing but nonsense. All of these resources are being exhausted because Mr. Ashton can’t pick up the phone and call.”
“I, quite frankly, don’t know why we’re here” – “Quite frankly” indicates Mr. Baez if lying about this statement as he feels the need to reassure the court he is telling the truth. If he were telling the truth, why does he need to add verbal support of his veracity? Mr. Baez does know “why we’re here”. He has a copy of the same motion which is publicly available. Judge Perry knows “why we’re here, Mr. Ashton knows “why we’re here”, the bloggers following the case know “why we’re here”, only Mr. Baez is still in the dark. Perhaps he should have read the motion prior to the hearing.
“I had upon submitting my… the subject matter” – Mr. Baez verbally stumbles by interjecting “my”, then backs up and changes to “the”, begging the question, “my” what? “My” list which does not meet the court order? Mr. Baez claims here to have complied with the court order with the use of “the subject matter”. This is deceptive as if he had submitted “the subject matter”, Mr. Baez would not be in court to give this speech.
“of what each witness was going to testify to” – “Was going”, not “is going”. Mr. Baez submitted a list of what each expert would have testified to if not for some reason which has changed their testimony. Is this what the court ordered? A list of testimony which will significantly change prior to trial? Mr. Baez is admitting he submitted a false list, one designed to fool the prosecutors.
“I saw the response from Mr. Ashton” – Mr. Baez did not receive or read the response as he limits himself to seeing. He “saw” the response, he did not accept it.
“that he was not content with.. with… uhhh… my answers” – “That” distances Mr. Baez from the discontent of Mr. Ashton and from his understatement of Mr. Ashton’s feelings. Mr. Baez verbally stumbles as he searches for a way to describe the his original submittal to Mr. Ashton, finally deciding on “my answers”. What were the questions? Mr. Baez skillfully avoids speaking to his compliance or non-compliance with the court order by focusing on the discontent of Mr. Ashton. Apparently, Mr. Baez would have the court believe he chose to reply to Mr. Ashton with a second e-mail even though he felt he had already complied with the court order with his original submittal.
“so, I then filled in a little bit more of the blanks” – Mr. Baez admits he did not include all of the required information with his first submittal by using the words “filled in a little bit more of the blanks”. He left things “blank” and those blanks he did fill in, he did not complete as there was “a little bit more” to fill in. He did this “then”, after Mr. Ashton expressed dissatisfaction with the first submittal which Mr. Baez feels fulfilled with the court’s order.
“I gave him more descriptive version of what they may testify to on the specific issues that they were involved in” – Mr. Baez did not submit new information, just a “more descriptive version” or the same information in a wordier format. Mr. Baez describes the information he submitted as “what they may testify to”, not what they will testify to. Is this in compliance with the court’s order? As we know from reading the e-mail response, “specific issues” were not listed, only vague generalizations.
“Mr. Ashton is intimately involved with every forensic aspect of this case and knows exactly what these witnesses will testify to” – Mr. Baez attempts to deflect attention from his non-compliance with the court’s order by shifting focus to the knowledge of Mr. Ashton. This statement is a lie as Mr. Ashton does not know “exactly what these witnesses will testify to”, he guesses at their possible testimony at best. Unless Mr. Baez is admitting all of the defense expert findings are the same as those of the prosecution experts, in which case, Mr. Ashton does know “exactly what these witnesses will testify to”. However, the reason they are in court on this day, despite Mr. Baez’s lack of understanding, is because the court wants this information submitted in writing whether Mr. Ashton knows it or not.
We have learned Mr. Baez either lied to the judge about his lack of knowledge as to their purpose in court or he failed to properly prepare for the hearing by reading Mr. Ashton’s motion.
We have learned Mr. Baez did not comply with the court’s original order as he submitted “blanks” instead of the information required.
We have learned Mr. Baez believes Mr. Ashton already knows the secrets of his experts despite the extensive privacy precautions Mr. Baez and Mr. Mason required and the court ordered for the examination of evidence in the summer of 2010 and the complete lack of written defense expert reports.
We have learned Mr. Baez knows he did not comply with the court’s order as demonstrated by his replying to Mr. Ashton’s discontent with additional information, an action acknowledging he held information back.
Bull Stopper Stops Bull 
“of what each witness was going to testify to”
As an attorney, I have a slightly different take on this. I don’t see it as reflecting that the expert witnesses changed their testimony; I think it reflects Baez’ knowledge about the expert witnesses’ testimony changed. I think he initially planned for each expert witness to give favorable, exculpatory opinions about forensic pathology, botony, entymology, taphonomy, etc. However, after being reviewing the available evidence, perhaps the experts did not give Baez the type of opinions he was hoping for which would also explain why he didn’t have them write any reports. Baez didn’t want to say, “None of the experts I hired had any useful opinions so I won’t be calling any of them to testify at trial” so instead of discussing what each witness “is” going to testify to, he discusses what each witness “was” going to testify to. (As Bill Clinton explained, it depends on what the meaning of “is” is.) I think the purpose of Baez’ shenanigans is to conceal the fact that he’s got nothing.
Sidenote: As a strategic matter, the best way not to have your client convicted of something is to persuade the DA not to prosecute your client for it. I have never handled a death penalty case although I have represented clients who were investigated for crimes which might have qualified for the death penalty. If I have evidence casting some doubt on my client’s guilt – an alibi by my client’s mother/wife/girlfriend, conflicting witness statements, whatever – then IMO my best course is usually to share that evidence with the DA in hopes of persuading them to drop/reduce the charges. This was what Terence Lenamon did in his pleasant, persuasive letter to the DA which resulted in the DA initially taking the death penalty off the table.
Excellent comment. Your explanation fits perfectly with Jose’s use of “was”, as well as my initial conclusion something changed their testimony. In your explanation, their testimony has changed to no testimony.
I think we have the same take, but you have a much more detailed and viable level of reasoning than I, which is where your professional legal viewpoint and experiences far outweigh mine. I think my statement Jose is attempting to deceive with his list is still valid if he is submitting a list of what his experts will testify to if there is no plan for them to testify. I also think your reasoning fits with Ashton’s statements about Jose not listing experts by the deadline.
Thanks for the insight.
I may be oversensitive to experts who change their opinions, because that happens too. Ideally it happens when I give the other side’s experts additional facts/evidence/information which they were not aware of so they change their opinion in my favor. LOL!
I do agree with you that Baez’ primary motive is deception to conceal his lack of favorable expert opinions by pretending that he has some that he COULD have disclosed if he wanted to. IMO if Baez had been able to obtain any favorable expert opinions, not only would he have voluntarily disclosed them in reciprocal discovery, he would be holding press conferences, going on talk shows and otherwise shouting it from the rooftops.
Baez uses a flurry of words to last-minute cover for the facial and hand motions he had previously practiced up until the time of the hearing of which Mason thought it best he not use.
That is, Baez was going to stick our his tongue and place his thumbs in his ears while wiggling his fingers, alternating direction between Ashton and Perry.
The gestures would have worked great except Baez kept getting the thumbs in his nose instead of his ears and whenever he would wiggle his fingers, his tail would wag. Mason tried, used the special learning collar and everything, but…
Bull,
Can you believe he’s actually back in court tomorrow asking for more $$$$??? Man…what is the deal with this idiot???
I am interested to see exactly what he is asking for as he is on video in July stating he won’t ask for travel for the Holland pair.
Bull,
So do you think the defense received any reports at all, or were the experts engaged for their cursory opinion without written summary? If reports do exist, exculpatory or otherwise, can the state ask to see them even if the defense would rather keep them under wraps? Would it take a subpeona to produce it, or is it something they would be asked for while being deposed?
Good questions I really can’t answer as I am not a legal professional.
However, it is my understanding a common defense practice is to have their experts write only those reports which will help them. Normally, since the ones who don’t write reports won’t actually testify as doing so would not help the defense, they probably aren’t on the defense witness list.
Jose seems to be playing some type of subterfuge game by listing the experts, but not having them write reports. He may think this gives mixed and, therefore, confusing signals to the prosecution, but I don’t think they are fooled.
Anything the experts will say in court will come out in a skillfully executed deposition.
The issue here is really the time the prosecutors will have to put into the depositions. They either walk in prepared with an idea of the general testimony and use their time wisely or they invest a lot of time.
Baez wants to be childish and force them to use extra time out of spite.
When an attorney retains an expert, the expert’s opinion is initially considered “attorney work product” which is privileged from being disclosed in ordinary discovery. The public policy behind this privilege is to encourage attorneys to fully investigate their cases, including potentially unfavorable aspects, consulting with experts if necessary. However, when the attorney makes the strategic decision to call a particular expert to testify at trial, the attorney work product privilege is waived as to that expert, communications between the expert and the attorney, the expert’s file including notes and calculations, the expert’s report, expert fees paid and to be paid, etc.
This is basically a parallel to the attorney-client confidential communication privilege which is waived when the client asserts an “advice of counsel” defense or when the client sues their attorney for malpractice.
So, in theory an attorney could consult with 100 experts in order to find the 1 expert willing to testify that the earth is flat (or whatever.) The attorney would not have to disclose anything about the 99 round-earth experts, only the 1 flat-earth expert would have to be disclosed along with all communications, file documents, fees, etc.
But in this case, the experts in question are listed as witnesses, I believe.
Which makes me wonder about the strategy behind such a decision if they do not have any defense useful positions.
If they have pro-defense opinions, why not have them write reports?
If they do not, why not remove them from the witness list to protect your work product?
(Replying to Bullstopper’s December 14, 2010 at 12:26 pm comment)
Yes, the experts are listed as witnesses thus the attorney work product privilege is waived and Baez’ continued assertion of it is as meritless as the rest of his smoke and mirrors.
Hearing Baez and Mason talk freely while they did not realize the microphone was on (then they turned it “off” for the hearing LOL!) I have come to the conclusion that Baez simply does not know pretrial procedure. Baez would say, “Blah blah blah, right?” and Mason would respond, “Oh yeah, bluster bluster bluster huff and puff.”
My gut feeling is that Baez plans to spring some outlandish surprise at trial. He is worried that the prosecution will be able to disprove his defense if they find out in advance. For example, if Casey had clammed up instead of spinning wild stories and the first time Zanny the loving kidnapping murdering Nanny was mentioned was when the defense put on its case, the prosecution would not have so much evidence disproving her existence. So, we may see Casey or Caylee having an identical twin, or Caylee’s father raised from the dead to kidnap and murder his child then vanish, or George and Cindy blamed, or some other bizarre twist.
Thanks for the insight. I agree Jose is hiding what he believes to be his ultimate card, specifically the story which will make us all believe which he has promised many times.
In your experience, how often is the defense able to spring such a surprise on the prosecution?
My understanding of the legal process is it is designed to prevent exactly such surprises to both the defense and the prosecution.
Are you aware of any cases in which Mason has been able to do this?
Do you think Jose is trying to manufacture an appeal based on an unfair trial if the judge decides not to allow him to enter certain discovery and/or witnesses, specifically experts and Kronk-related witnesses, because he missed the deadlines? Would it be possible to secure an appeal on these grounds? If he misses enough deadlines, will KC be able to appeal on a basis of ineffectual counsel? Do you see any possibility JP would remove Baez for intentionally sabotaging the defense?
It’s hard for me to guess Jose’s endgame because I don’t understand all the possible professional and legal outcomes from his actions.
By the time prosecutors have enough experience under their belt to be trying death penalty cases, they are pretty good at landing on their feet when someone pulls the rug out from under them. If Baez tries to spring some surprise at trial then I anticipate one of two things happening:
1) The surprise evidence will be excluded by Judge Perry due to its late disclosure – which previously happened to Baez in another murder case currently on appeal for ineffective assistance of counsel IIRC.
or
2) Judge Perry will let the surprise evidence in, perhaps with a special jury instruction letting the jury know that it was not timely disclosed and the jury should take that into consideration because the prosecution was not given ample time to respond, because of the accused’s right under the US Constitution to present witnesses and evidence in their favor, to due process, etc. The prosecution will roll with the punches and come up swinging right back. I don’t see Baez being such a genius defense attorney that he is going to overwhelm these seasoned DAs. These DAs have had lots of practice thinking on their feet.
IMO if Baez had something really great, we would have already heard about it. He’s a guy who really likes to hear the sound of his own voice. I picture him going home at night to watch the various news programs and see whether he’s been on TV that day.
As far as appeals go, planning for the appeal rather than planning for trial is an admission that you are going to LOSE at trial. It is a poor strategy for a number of reasons. Appeals are rarely successful. The trial judge has wide discretion and his ruling won’t be second-guessed by the appellate court unless they are so irrational that they constitute an “abuse of discretion.” Even then, the appellant has to show that the erroneous ruling(s) probably made a difference in the final result and was not “harmless error.”
In the unlikely event the verdict is overturned, the appellant merely gets another trial, often in front of the same trial judge who has been instructed to rule differently next time. Reversals where the defendant is set free are extremely rare and require some truly egregious conduct like waterboarding a confession or the DA intimidating the jurors or some other outrageous conduct by the government that “shocks the conscience” – a criminal defendant has a better chance of being struck by lightning.
Additionally, appeals take years or even decades during which time Casey would remain in prison, then remain in jail pending the retrial and the next verdict. This is sometimes called “serving life on the installment plan.”
“used the special learning collar and everything” Ha ha ha ha ha . . .
Thanks Bull. I am not that familiar with legal or trial processes, so I appreciate learning about the common defense practice of defense attorneys only having written reports of what will help their case.
“…skillfully executed deposition.” Makes me shudder to think what the mass LE depos by the defense team were like.
What does Baez not know?
His inner Jiminy Cricket
Shame
How to make a mortgage payment
How to make a child support payment
Basic personal finance
Integrity
Common sense
The location of his buttcheeks
The Nutrisystem phone number
How to NOT get distracted by Lara Croft’s heaving bosom while playing Tomb Raider
Stardom
Florida Sunshine Law
A sentence without umms and uhhhs
How to breathe with his mouth closed
A meal without bacon
How to run a bikini company in Florida
LOL!!!!!!!!!!!
Hey Eggie: the shorter and easier list would be of those things he DOES know.
I knew you would love this title!
Hey Bullstopper: you’ve got to capture your audience!
I love it!!
learning collar ! hahahahhahhaahhaah too funny!
I read on another blog that he withheld discovery past a deadline in another case & it was NOT allowed in.
he likes to play games & is pushing JP to the edge of his already rocking chair!
I believe that the majority defense experts have come to the conclusion that:
1.) Jose rivals a box of rocks in the brains department
2.) Andrea Lyon and Linda Kenney-Baden were wise to bring and utilize their escape parachutes; and
3). Jose may have a third chin just in time for Spring.
The majority of defense experts and Americans with brains!