Next month, two motions filed by the defense will be heard by Judge Perry. Because they are very important Frye issues, and of extreme importance to the defense, this post will focus on the motion about chloroform evidence. It will be in two parts.

PART I - The Frye Pan

Casey’s defense recently filed two Frye motions. The date reflects when they were filed with the Clerk of Courts. Both are stamped 12/30/2010.

MOTION TO EXCLUDE UNRELIABLE EVIDENCE PURSUANT TO FRYE, OR IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE (CHLOROFORM)

and

MOTION TO EXCLUDE UNRELIABLE EVIDENCE (Plant or root growth evidence)

The state filed motions to strike, but today, I will just focus on the issue over chloroform. The other motions (defense and state) will come later, because in this particular one, there is much to discern, including a few errors. I will get to them, but first of all, what, exactly, is a Frye motion/hearing? Frye motions are generally held in limine, which means they are made before a trial starts. The judge then decides whether certain evidence may or may not be introduced to the jury. The Frye standard is a test to determine the admissibility of scientific evidence in legal proceedings. This standard comes from the case Frye v. United States (293 F. 1013 (DC Cir 1923) District of Columbia Circuit Court in 1923. Frye v. U.S. was a groundbreaking case that argued the admissibility of polygraph tests as evidence in a trial. Today, it’s designed to prevent both sides from unfairly exploiting expert testimony. Its intent is to assure that expert evidence is reliable.

In its motion, the defense cites Florida Statutes 90.401, 90.402 and 90.403, Amendments 5 and 14 of the U.S. Constitution, and Article 1, Section 9 of the Florida Constitution. Let’s take a look:

The first two Florida Statutes, I would imagine, were cited by the defense for the purpose of propping up the third, which questions the admissibility of evidence that may prejudice or confuse the jury. In the case of this motion, it’s chloroform evidence found in the trunk of Casey’s car the defense is questioning, specifically carpet and air samples.

After the preliminary introduction of the motion, the defense moved on to FACTS about the case:

FACTS

1. Miss Anthony is charged with First Degree Murder. The State of Florida has announced it’s [sic] intent to seek the ultimate penalty of death.
2. The Oak Ridge National Laboratory conducted tests on carpet samples and air samples taken from a vehicle (Pontiac Sunfire) driven by Miss Anthony at or near the time of the disappearance of her daughter Caylee Anthony.
3. Dr. Arvad Vass reported in his preliminary and final reports that there were unusually high levels of chloroform found on the carpet samples taken from the Pontiac Sunfire.
4. Dr. Vass additionally states that the levels of chloroform are much higher than normally found in decompositional events.
5. This information prompted investigators to search the Anthony family computer for searches of chloroform, which yielded positive results for “chloroform” and “how to make chloroform.” The hysteria begins.

Before I delve too deeply into the motion, remember the defense cited the above as FACTS, not assumptions or speculations made by Oak Ridge National Laboratory. Where it completely strayed from the truth is the final statement of fact, “The hysteria begins.” From there, it turned into a giant smoke screen. The defense went into, well, a defense mode, which is what is expected.

FACTS PART II: UNCOVERING THE FRAUD

In FACTS PART II: UNCOVERING THE FRAUD, law enforcement was accused of intentionally leaking information to the local and national media prior to “any official reports through the natural course of discovery.” I will acknowledge learning of the death smell from the news sometime in August of 2008, so there may be some merit to this particular aspect of the complaint. However, this information would have been released anyway, so it was not, by any means, an attempt to “either satisfy their own vanity or poison any potential jury pool” as the defense stated. Today, it’s two-and-a-half years later, and a fair jury will be seated in May come hell or high water.

What puzzles me at this point of the motion is how the defense contradicts itself. In FACTS PART II, they wrote that they traveled to Tennessee and took depositions from Dr. Arpad Vass and Dr. Marcus Wise. Both testified that the tests on the carpet sample were “qualitative” and not “quantitative.” One way to simplify this is to say it’s the motion in the ocean, not the size of the ship; but at the same time, no one is going to sail around the world in a canoe. That’s not to say flat out that the SS Casey is sinking, but it’s definitely listing. The smokesreen in this example comes from the statements that, “It should be noted that the Oak Ridge National Laboratory also took carpet samples from two Pontiac Sunfires… [and] one of the sample cars they tested ALSO had chloroform in the sample,” and “Dr. Vass, who is the author of the ORNL report is NOT a forensic chemist.” In my opinion, one not need be a forensic chemist to analyze chemical breakdowns. Dr. Vass could readily make analytical conclusions from tests of all kinds, and my guess would be that plenty of them have nothing to do with crime. Industrial spies, for example, have been tackling the secret recipe of KFC chicken and McDonald’s Special Sauce for years and years. That’s not forensics, but it takes real life chemists to break into the “Da Vinci Codes” of restaurant chain trade secrets. Who knows, maybe Dr. Vass could find out what’s really in Taco Bell’s beef. Now, that’s something that matters. Of course, it’s a civil matter, not criminal.

In the motion, the defense noted that the FBI Chemistry Unit in Quantico, Virginia, had tested four samples of the carpet and two of the four were “consistent with chloroform.” Dr. Michael Richenbach, Ph.D, told the defense during his deposition that “consistent with” means that the presumptive test results were positive, but the conclusive tests were not. Aside from all of the scientific mumbo jumbo, of which I will spare you the boredom, the point being made by the defense is, in a nutshell, that the results from ORNL and the FBI were different. Therefore, the results should be tossed out. In my opinion, the most consistent point to be made about this case to date has been the consistency of the two presiding judges, and ultimately, Judge Perry will leave it up to both sides to argue and let the jury take it from there. Laws around the country not only protect cross examinations, they encourage them, and this case is no different. The defense will have ample opportunity to shred the state’s evidence to pieces.

Here’s another interesting smokescreen, but I do not think the State, nor the judge, will fall for it. The motion makes it clear that “the other items tested by the FBI for chloroform (baby doll, steering wheel cover, and child car seat) all yielded negative results.” True, but the cab of Casey’s vehicle was separated from the trunk by a back seat. How much seepage should there have been? Police officers have been trained for years to detect the odor of marijuana in a car, and I’m talking about fresh, not smoked. It does have a pungent odor unlike anything else. While standing by the driver’s door, window down, would the officer smell it if it was tucked away in the trunk? No, probably not, but the nervousness of the occupants would be a sure sign that something’s not right. How much chloroform would it take to be overwhelming? I mean, it’s not even close to the smell of decomposition. Talk about pungent odors.

COMPUTER SEARCHES

Law enforcement ascertained that someone inside of the Anthony home searched for chloroform and chloroform recipes three months prior to Caylee’s disappearance. This is why it’s so important for the defense to crush this evidence, along with the air and carpet samples. This is highly incriminating. The defense wrote:

• Any forensic computer examiner including the ones in this case (Sandra Cawn and Kevin Stenger) will testify that you can never determine who ran what searches on a computer, especially when the computer is NOT password protected.

Okay, in and of itself, that may be true, but more about that in a couple of seconds. Incidentally, Cawn and Stenger work for OCSO and I think they know a thing or two about  computer forensics.

• The computer in question was in a “guest bedroom” and all family members not only had access to the computer, but also testified that they used the computer as well as guests who visited their home.
• Law enforcement cannot ascertain whether Miss Anthony was even home at the time the searches [were] run much less on the computer.

Now, had Judge Perry been born in the 19th century, the defense might be able to pull the wool over his eyes, but he wasn’t; nor was he born yesterday. Yes, of course the computer could have been accessed by anyone, but it is inside the Anthony home, and it’s a desktop, not a portable laptop, which could be moved around the house. By utilizing something simple, like a process of elimination, investigators can sift through a myriad of things, including time sheets. March 21, 2008, was a Friday - a work day. What time of day did the searches occur? I’ll bet you OCSO knows. If Cindy, George and Lee were not inside the house, it incriminates Casey, and with no other source, like a friend who has yet to come forward, her ship is really listing.

Here’s something the defense wrote that struck me as peculiar:

• The Oak Ridge National Laboratories (Some reports erroneously called them “body farm” perhaps for more shock appeal) reported unusually high amounts of chloroform in the trunk of Casey Anthony’s car.

What I would like to do is take to task the remark about erroneously calling ORNL a Body Farm for more shock appeal. In my opinion, the defense is trying to directly infer that the term Body Farm was something new and never used before. I assure you, that is not the truth. I can tell you I heard about the Body Farm long before I heard about the Anthony case and, as a matter of fact, thanks to my Gainesville friend, nika1, I am in the possession of a book titled, BEYOND THE BODY FARM, written by Dr. Bill Bass and Jon Jefferson. So what, you say? Yes, so what. The book was published in 2007, a year before Casey’s defense knew who she was. Jefferson & Bass (as Jefferson Bass) have written four novels about the Body Farm. The first one, Carved in Bone, was released in January 2006. In 2003, Bass & Jefferson released their first scientific book about it, Death’s Acre. To go further back in time, crime writer Patricia Cornwell published The Body Farm in 1994. She drew her inspiration from Dr. Bass and his work. As a matter of fact, he is recognized as the father of the Body Farm, long before Jose Baez was practicing law.

Why did I title this post From the Frye pan into the Fyre, you ask? Even the prosecution misspells…

MOTION TO STRIKE DEFENDANT’S MOTION TO EXCLUDE UNRELIABLE EVIDENCE PURSUANT TO FYRE (CHLOROFORM)

In the second part of this article about chloroform evidence admission, I will delve into the scientific and legal aspects:

PART II - The FYRE