During a hearing on February 4, 2011, defense attorney Jose Baez made a series of comments concerning a court order defining allowed expert testimony at trial. The comments of Mr. Baez may be heard at the following link.
http://www.wftv.com/video/26751020/index.html
Jose Baez: “I do have a… a point of clarification that I’d like on… as to the court’s order. Uhhh… your honor had previously laid out that for the defense experts if they do not include it in their report or if it’s included in deposition, that uhhh… they would be precluded from testifying about that at trial.”
“I do have a… a point of clarification that I’d like on” – Mr. Baez speaks in the present tense about “a point of clarification” he wishes the judge to clarify.
“as to the court’s order” – Mr. Baez references “the court’s order”, but does not specify which order.
“your honor had previously laid out that for the defense experts” – Mr. Baez defines “the court’s order” as applying to “the defense experts”.
“if they do not include it in their report” – Mr. Baez uses the vague pronoun “it”, which we and Judge Perry must assume references expert opinion testimony.
“or if it’s included in deposition” – This statement is an error by Mr. Baez as he should have said “if it’s” NOT “included in deposition”. The way Mr. Baez has stated this phrase would cause any testimony from “the defense experts” which the prosecutors discovered during deposition to be precluded from trial. Surely, Mr. Baez does not wish for such to occur.
“that uhhh…” – Mr. Baez distances himself from the next phrase, the preclusion of defense expert testimony from trial. Mr. Baez is not comfortable with defense expert testimony not being allowed at trial.
“they would be precluded from testifying about that at trial.” – “They” references “the defense experts”. The use of “that” is odd because Mr. Baez distances himself from his own experts’ testimony not included in reports or depositions.
Judge Perry: “Correct.”
Jose Baez: “Does that also apply to the state’s experts?”
Mr. Baez refers to the preclusion of previously undisclosed expert testimony as “that”, distancing himself from the order and displaying sensitivity to the requirements of the court placed upon the defense.
Judge Perry: “If you read the order, it said for both.”
The order to which Mr. Baez seems to be referring may be found at the following link.
“the court set forth a list of specific information to be provided with regard to both state and defense experts”
“4. Opinions that are not expressed in a written report or at depositions taken during discover will not be allowed at trial.”
Jose Baez: “Okay. I wasn’t sure, I certainly wasn’t clear on that. Now, there was another point I wanted to make. What if the state decides to forgo their deposition?”
“I wasn’t sure” – By itself, this is a strong statement using the specific pronoun “I” and with no signs of limitation, sensitivity, or distancing.
“I certainly wasn’t clear on that” – Mr. Baez destroys the credibility of his previous phrase by adding these words which demonstrate sensitivity and distancing. The extra word “certainly” defines “wasn’t clear” as sensitive and calls into question the certainty of Mr. Baez in regards to the order as without the word, the listener would not have questioned certainty. “That”, a word now repeated six times in a few sentences, distances Mr. Baez from his understanding of the court’s order.
“Now, there was another point I wanted to make.” – Mr. Baez switches from the present tense to the past tense. This was “another point” Mr. Baez “wanted to make”, but not one which he still wishes to make, even though he goes on to make it. “The point” “was”, but no longer “is”. The word “now” causes more confusion as to the meaning of Mr. Baez as it is a reference to the present, but his statement is in the past.
“What if the state decides to forgo their deposition” – Apparently, Mr. Baez feels the state forgoing a deposition of a defense expert will affect the defense’s ability to present defense expert opinion testimony at trial. Why would this be so? It seems Mr. Baez is telling the court the reports he is submitting do not contain all of the defense expert opinion testimony which he wishes to present at trial. In other words, the written reports submitted by the defense are incomplete.
Judge Perry: “Forgo the deposition of what?”
Jose Baez: “Of any of the experts. Does that still apply?”
Mr. Baez again employs his old friend “that” to distance himself yet again from “the court’s order”. Mr. Baez wishes to present defense expert testimony at trial not included in their reports.
Judge Perry: “The order applies.”
We have learned if Mr. Baez did read the court order, his reading comprehension skills may be as poor as his use of the spoken and written English language.
We have learned the expert reports submitted by the defense likely do not contain all of the testimony Mr. Baez wishes to have available for trial. We cannot be sure if this is due to laziness or oversight in preparing the reports or if it is part of a larger defense strategy to keep expert testimony secret as long as possible.
We have learned what is “certainly” not clear to Mr. Baez is crystal clear to Judge Perry.
Bull Stopper Stops Bull 