After allowing the most theatrical prosecution multi-media presentations and questionable forensics, Judge Perry decides to “strike” some of the testimony given by defense experts:
Today’s proceedings are moving along at a steady pace so far, a stark contrast to Monday’s session. Before calling Welch, Perry allowed the state’s request to strike a witness’ testimony on DNA recovery from decompositional fluids.
Assistant State Attorney Jeff Ashton said the testimony was based on anecdotal experience and not research.
The reason for this is not just that the testimony was damaging to the prosecution’s case; it was damaging to the prosecution’s credibility. They have staked so much on the “death smell” in the car that if the jury came to doubt that they might start asking: what else are they so sure about that just isn’t so?
This is such a dangerous question for the jury to ask, because it undercuts the presumption – the real presumption, not the fake one about the defendant’s innocence – that the government’s contentions are disinterested and reliable.
When defense counsel objected to portions of a jail house video because they might undercut his credibility with the jury, the objection was denied.
How trustworthy is the prosecution here? One interesting fact is that a death sentence for a previous Florida defendant was overturned because of prosecutorial misconduct: the prosecutor had concealed exculpatory evidence from the defense. The defendant’s name was John Huggins.
The prosecutor on the case was Jeff Ashton.
The Judge was Belvin Perry.
Lawyers on Strike 
Actually, no evidence appears to be ‘purged’ for good. Some of it will be reviewed, and the defense witness can eventually testify to it the judge okays it. So far, the only thing that the judge ‘purged’ is some report or something by a prosecution witness, if I am not mistaken. The defense is unscathed.
Defense witnesses seem not to include some important things in their reports. This seems to be designed to help Baez ambush the prosecution. It seems to me that the judge is preventing the attempted ‘trial by ambush’ by the defense without penalizing the defendant.
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Defense witnesses “seem” to do this and that, April, because the prosecution is whining so much and getting their way so much with the judge. Favoring them as he has, the judge only encourages more, which he promptly gets. Reports generally do not include every little detail that might be elicited in testimony; so long as the general idea is there, only a – frankly – asshole who thinks he can make hay to gain an advantage starts quibbling about details. I guarantee the prosecution’s reports didn’t cover every single detail either, but you didn’t see the defense running off at the mouth every two seconds about every little thing.
The whole “Frye-Daubert” line of inquiry, which sets up the judge as the “gatekeeper” of scientific evidence, is just fertile territory for prosecutorial and judicial abuse. There was a time when expert testimony was not allowed for anyone. That would be better. As it is now, favored litigants get favorable treatment of their “experts” and disfavored litigants get their experts either excluded or micro-managed and discredited by the judge, which is exactly what is happening here. I have to say it makes my blood boil a bit, because the judge gets to use the language and veneer of neutrality when in reality he’s engaged in gross favoritism.
In any case, there is no excuse for giving a special instruction to the jury undermining the credibility of a defense witness due to supposed discovery abuse. If the judge believes that the opposing party didn’t have time to properly prepare a cross-examination, then allow more time. For the judge to discredit a witness like that without being compelled to do so by law (which in limited circumstances can happen) is profoundly unfair and prejudicial.
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[Defense witnesses “seem” to do this and that, April, because the prosecution is whining so much and getting their way so much with the judge.]
Defense witnesses have violated judge’s rules about expert testimony. The prosecution’s whining is justified. The defense whined on a couple of occasions too. They got a report for prosecution thrown out for one, and the second complaint was judged to be without merit.
[The whole “Frye-Daubert” line of inquiry, which sets up the judge as the “gatekeeper” of scientific evidence, is just fertile territory for prosecutorial and judicial abuse.]
Baez could have avoided the whole mess by simply following the judge’s orders scrupulously. It looks like he preferred the ‘trial by ambush’ approach, and he is paying for it to some extent.
[In any case, there is no excuse for giving a special instruction to the jury undermining the credibility of a defense witness due to supposed discovery abuse. ]
There is apparently case law to support giving a special instruction. If one of prosecution’s expert witnesses suppresses an important conclusion from his or her report, and if the judge doesn’t give a special instruction to the jury, then you have cause for complaint, I think. Otherwise, the prosecution does need to be protected from defense’s transgressions. Neither side ought to be able to hurt the other side by unfair means.
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