Casey Anthony trial -- Richardson hearing, 6/21/11

8/6/2019 Casey Anthony trial -- Richardson hearing, 6/21/11

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CASEY ANTHONY TRIAL

RICHARDSON HEARING, JUNE 21, 2011

Transcribed by DJW

Version 1.0

Acronyms:

JP: Judge Belvin Perry

JA: Jeff Ashton

JB: Jose Baez

RE: Richard Eikelenbloom

JP: Okay, court will come to order. Mr. Baez, who is the defense's

next witness?

JB: Richard Eikelenbloom.

JP: Okay. I have reviewed the requested instruction that the state

has proposed, and I've reviewed the instruction that the defense has

proposed.

Now, did Doctor Eikelenbloom provide a partial report?

JA: No, Your Honor. He provided an affidavit, and he in deposition

referred to it by that term, as an affidavit. It does not I

provided the court with a copy of it the other day, and...

JP: Well, this is what I'm looking at. It says affidavit, R.

Eikelenbloom, dated January 21st, 2011. Uh... Is this what he

provided?

JA: Yes, Your Honor, that's the item that he provided.

JP: Okay.

JA: (indistinct) defense counsel.

JP: This is the instruction I propose to give:

All expert witnesses were required by order of the court to provide

reports of their findings by providing, one, a complete statement of

their opinions, two, the reasons for those opinions or conclusions,

and three, any data or other information considered by the witness in

forming their opinion or conclusions. These reports were due at a

time prior to the trial of this cause. The report of this witness was

not provided to the state of Florida until Saturday June 18th, 2011.

You may consider this fact in judging the credibility of the


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witness's testimony.

JB: We main--

JP: Mr. Baez?

JB: Yes, sir. We maintain our objections, since I have withdrawn the

areas that were previously at issue. Just for the record, we object.

JP: Okay. Before I do that, I need to have the witness come in, and I

need to make an inquiry of the witness, then I need, before I

formally impose the sanction, I need to make a three pronged finding

for purposes of the record. So let's have the witness come in, I need

to have a few questions I need to ask him.

I will file this first item is defense's proposal for instruction,

if I was gonna give an instruction. The second item is the state's

handwritten instruction.

(Witness Richard Eikelenbloom is sworn in, and takes the stand.)

RE: My name is Richard Eikelenbloom. E-I-K-E-L-E-N-B-L-O-O-M.

Eikelenbloom.

JP: Doctor, I'm Belvin Perry, I'm the presiding judge in this case.

When were you first retained by the defense?

RE: Um, the first investigation was, or the first request, the first

official request for the case was when we had to look over the

evidence.

JP: And when was that, sir?

RE: That was on, uh, 13 July 2010. And of course it was a couple of

days before then.

JP: July 2010.

RE: Yes.

JP: Sir, were you ever informed that you were required to produce areport outlining the opinions that you rendered in this case as a

result of your examination of the evidence?

RE: Except for the affidavit, I was not told that I had to render

opinions or write another report.

JP: Sir, were you ever informed of the following: Where expert

witnesses have not prepared reports of examinations or tests, both


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the state and the defense are required to provide the following

information, which shall be filed with the clerk of the court in the

form of a written plea: one, the expert's curriculum vitae or

qualifications of the expert, two, the expert's field of expertise or

medical specialty, three, a statement of the specific subjects to

which the expert will testify and offer opinions, four, the substance

of the facts which the expert is expected to testify, and five, a

summary of the expert's opinion and grounds for each opinion. Were

you ever informed of that order of the court?

RE: No, I don't recall that order.

JP: I take it, sir, that you do not live in the continental United

States?

RE: Well actually since February we're living in Collifer (sp?), but

before that we were living in the midlands.

JP: Okay. How were you communicating with the defense? Was it by

phone, email, or by what other means?

RE: By phone, email and Skype.

JP: Were you ever requested or asked between December 2010 and May

1st

of 2011 to reduce your opinions and findings in writing in a

report format as I've just outlined?

RE: I'm sorry, reduce? I mean, to write a report?

JP: To write a report in the format that I've just outlined, sir.

RE: No, I don't recall that.

JP: Who was the principal person that you communicated with for the

defense? Who were you getting your instructions from?

RE: Mr. Baez, and we also have communications with Michelle.

JP: Now, from May of 2011 up until today's date, were you ever asked

to reduce your report in the written format that I've just outlined,

which would include all of your opinions that you've asked to

produce?

RE: Um, last Saturday I talked with Mr. Baez, and then after the

deposi-- or after we went to the district attorney's office to do the

deposition, where we were refused, I was requested that I would write

a report. So last Saturday night, we wrote a short report.


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JP: Between December 1st

in the year 2010 up until May 1st

2011, how

many times have you communicated with members of the defense team?

RE: Um, well I'm not completely sure about that. I know we had to do

communication before we had to do inspection of the evidence, and

short after, and for long time I didn't hear anything more, so we

more or less lost contact and lost track of the case.

JP: From December 1st

2010 up until May 1st

2011, were you readily

available to be contacted by the defense team via telephone, email or

Skype?

RE: Yes, defense could reach us if they wanted, yes.

JP: You didn't disappear during that time period, did you, sir?

RE: No.

JP: Okay. Either the state or the defense wanna ask any questions

along those lines that I've just asked?

JB: Yes, sir.

JP: You may proceed.

JB: Mr. Eikelenbloom, is this the first time anyone has ordered you

to write a report on a case?

RE: To write a report on a case?

JB: No, not on a case. On, that had certain parameters like this one.

RE: Um, oh that's of course, yeah you sent, yeah you're sent a

request, that's by investigating, investigative judge, and they order

you to investigate certain evidence or certain reports, and write

everything about these items.

JB: And that would be based on things you've done, correct? Like run

certain samples of DNA, inspected certain pieces of items, evidence?

RE: Can be both, can be on the investigations which we have

performed, it can also be on investigations of other laboratories,

and then they want a second opinion about the message used or

conclusions drawn in those reports.

JB: Okay. And the contact with your company, back in January of 2011,

that was done through your wife and Miss Medina, correct?


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RE: Yes.

JB: It was not directly with you.

RE: No.

JB: Okay. And in fact what occurred, and how this order, the

information got back from you was from Miss Medina to your wife, and

from your wife to you.

RE: That's correct.

JA: Objection. Assumes facts not in evidence, that the (indistinct)

order ever got to the witness. He indicated that it didn't.

JP: I'll permit him to go ahead. Objection overruled.

JB: Okay. Now what you ended up doing is based on what your wife

ended up telling you. Correct?

RE: Yes, it's you're talking about the very short affidavit.

JB: Yes, the affidavit.

RE: Yes.

JB: Okay. And the, what you in turn ended up doing is filling out an

affidavit of all the work that you have done, until this point.

Correct?

RE: Yes, this is more or less about the evidence viewing.

JB: Which was, you wanted to inspect a piece of evidence, for your

own testing, but it was denied.

RE: Yes.

JB: Right? And then also that you had actually gone and done an

inspection of the evidence. Correct? And took photographs.

RE: Correct.

JB: Were you ever told in any way, shape or form to narrow your

report or to exclude things from your report?

RE: No.

JB: Okay. And the report or affidavit that you ended up submitting

was based on what you thought was required of us.


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RE: Yes.

JB: And you never spoke directly with Miss Medina--

RE: No.

JB: --about what the court has actually ordered.

RE: No.

JB: That conversation actually took place with your wife and Miss

Medina, correct?

RE: That's correct.

JB: And then later on took, uh, spoken to you. Correct?

RE: That's correct.

JB: Do you recall exactly what your wife told you was required by the

court? If you can remember.

RE: No, I don't recall.

JB: Do you remember that conversation at all? Only that maybe it

happened?

RE: No, I don't remember the conversation at all, and the affidavit,

I remember something about the affidavit, but we were very busy inthe time, we were transfer in the time, we were transfer from the

Holland to the United States. So I didn't think much about this

affidavit.

JB: And the questions and the opinions that you raised and formulated

on Saturday, they were first broached on Saturday, correct?

RE: Yeah, when we were talking about the, the case on Saturday

afternoon after, um, yeah after the court session, then we, then the

(indistinct) came up to write a report, or to write ideas of, or

topics of what you were talking about.

JB: And these were not opinions that you held before, and had

discussed with us previously, and we determined that you were gonna

testify about these opinions prior to Saturday. And you just didn't,

not include them in your report, correct?

RE: That's correct. On Friday I made a Power Point presentation, and

presentation for explaining contact DNA and--


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JB: And Friday's PowerPoint presentation was just a general

explanation of touch DNA, and nothing more.

RE: Yeah, and how PCR works.

JB: They weren't specific as to any issues raised in this case, only

attempt to explain such DNA.

RE: Yes.

JB: Okay. And upon our conversation on Saturday, you were then

immediately asked if you would consider taking a deposition at the

state attorney's office--

RE: Yes.

JB: To now discuss these new opinions.

RE: Yes, so during the lunch?

JB: Yes.

RE: We discussed the topics, and then, about which I might be allowed

to talk during the court, and then we had an appointment with the

district attorneys, to do deposit, deposit?

JB: Okay. And what happened when you showed up at the state

attorney's office?

RE: We were refused entrance.

JB: By who?

RE: The district attorney.

JB: Who? Is he sitting here?

RE: Yes.

JA: I'll stipulate it was me.

RE: Okay.

JA: If it will help.

JB: And what exactly did he say?

RE: I don't recall exactly what he say, but as I understand it, I was


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at least not going to do a deposition.

JB: Was he polite?

RE: Um... It sound kind of rude.

JB: Okay. And after that occurred were you then instructed by Miss

Medina to immediately do a report?

RE: Yes.

JB: And you did that.

RE: Yes.

JB: And then you sent it to, you emailed that to me Saturday night.

RE: That's correct.

JB: Okay. I have no further questions.

JP: Mr. Ashton, any questions?

JA: May I just do it from here, Your Honor?

JP: You may.

JA: Is there any opinion that you have expressed in your Saturday

afternoon report that you could not have developed four months ago

through the same conversation with Mr. Baez?

RE: Um... It depends on information which was available at that time,

but, like DNA reports, could have been uh, if asked I could have

written a report about it.

JA: Did he give you any new information during, and you spoke at

lunch on Saturday.

RE: Yes.

JA: Did he give you new information during lunch on Saturday that youhad not been provided with before?

RE: Well, for me it was new information, because I didn't follow the

case. So the case, when we left, we got a subpoena a week ago or,

it's almost two weeks ago now. So the case for me was not really

clear and, I know of course about the case, but I really didn't

follow it so. For me, maybe the information was there, but for me the

information was not clear, and it was not clear which direction


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everything was going, so. I needed that guidance during the lunch

part.

JA: I understand you may have gotten new information about what Mr.

Baez was interested in, but did he give you any new reports, any new

factual information that you didn't have already?

RE: I got a, I think that was during Friday and Saturday, we got new

information so, about crime scene pictures and some extra reports,

so.

JA: What new information?

RE: Reports from the FBI, and some extra pictures.

JA: So you hadn't had the FBI reports before Friday?

RE: Not all of them, no.

JA: What new ones were you given? What new FBI reports were you given

on Friday?

RE: Oh I just um, actually I got the whole folder, so.

JA: Well... I, can you give some, any more guidance on what you had

already and what was new?

RE: I've seen a reports before, and that was I think that was during

the investigation of the evidence, so I formed an opinion about the

case and I know something about what was already then. And duringlast week, I requested some more information, digital, and I got all

the reports which were then, that's a lot of reports of course.

JA: (inaudible) and you made that request after you got the subpoena

and realized that there were extra than what you testified.

RE: Yes.

JA: No further questions.

JP: Okay. Pursuant to Richardson vs. State, 2467 2nd 771, a 1971

decision of the Florida Supreme Court, as amplified in McDuffy vs.

State, 9707 2nd

312, a 2007 decision of the Florida Supreme Court,

the court will make the following finding of fact.

One: whether the discovery violation was willful, or whether or not

it was inadvertent. On December 13th

correction, December 10th

2010, the court entered an order. The order was entitled, order


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granting state's motion for clarification slash to compel compliance

with order for additional discovery. On December 1st

2010, the state

filed a motion to clarify. At a subsequent hearing, it was determined

that there was some dispute concerning a prior order that the court

had entered, and the intent of certain language. The exact language

of that court order at the time provided as follows: The defendant

shall also provide the state a list of the defendant's experts thatshall include the subject matter as to what the expert will testify

to, and the area of expertise for each expert. The court goes on to

say that there was some debate about the word subject matter, rather

than substance. The court said, while the order included the term

subject matter rather than substance, the court finds that the list

provided by the defense does not comply with the intent of the order

or the intent of the court as expressed in its November 29th

, 2010

hearing. In order to clarify this issue, the court went on to order

the following: Where experts have not prepared reports of examination

or tests, both the state and the defense are required to provide the

following information, which I have previously outlined. The court atthat time thought that the matter was clear.

In January, the court was again, back again to deal with this issue

again. Going back to the December 10th

order of 2010, the court

specifically provided, with respect to all other experts, this

information is to be provided by 3pm on Thursday December 23rd

2010.

There was some different deadlines with respect to Dr. Fairgrave and

Dr. Bock. That information was to be provided by December 14th

2010.

Again we had the same problem again, and the court again specified

what information and reaffirmed its prior order, and assessedsanctions.

The obligation for the attorneys to see that their witnesses comply

with the orders of the courts. It is the attorneys' job, be it the

assistant state attorneys or defense counsel, to make sure that their

expert witnesses comply with the order of the court. The court will

find that this violation is not inadvertent. That it should have been

clearly communicated to the expert, that the expert should have been

required to comply, and the expert was not. Therefore, the court

finds that the discovery violation was willful and not inadvertent.

The next issue is whether it was trivial or substantial. DNA, even

thought the advent of DNA evidence has been around for a number of

years, certain opinions that will be expressed by this witness as a

result of the deposition which is now filed cannot be viewed as

trivial when we start talking about rendering opinions with the po--

of analysing decomposition fluid in a trunk. So the court finds that

it is not trivial, but substantial.


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The next issue is whether or not it had a prejudicial effect on the

opposing party in the preparation of their particular case. The court

has delayed the testimony of this witness in order to give the state

of Florida an opportunity to take this witness's deposition. If the

witness had offered a report, put his opinions, the basis for his

opinions and the data which he relied upon with those opinions, then

this court would not have given the state an opportunity to take his

deposition. Because they chose not to do it, if those items would

have been in his reports, then the state would not have had the

opportunity.

The question comes in as to whether or not I need to totally exclude

his opinion about the possibility of a DNA analysis which may have

some Frye implications, and this court cannot in this short period of

time make that determination. All of the cases indicate that the

exclusion totally of testimony is an extreme remedy, to be utilized

in rare circumstances. The court has decided to do the following:

At this juncture in time, the court will not permit the witness totestify on this particular issue, dealing with the possibility of a

DNA analysis on the decompositional fluid in the trunk of the car.

The court will give the defense until next week, by uh, Saturday to

file whatever potential motion it wants to lay out for a Frye

hearing, and the court then on Wednesday or Thursday evening, at the

conclusion of the day's testimony, after a one hour break to give the

attorneys the opportunity to get something to eat, then we will come

back and conduct whatever Frye hearing we would need to see if this

testimony does meet Frye, or whether or not there is even a Frye

issue involved in this particular testimony. That should give each

side ample opportunity to do what they need to do, and it is a remedyshort of exclusion, but I will not permit this testimony at this

particular time.

End of transcript.

Documents

Casey Anthony trial -- Richardson hearing, 6/21/11