Casey Anthony defense tries to put Florida prosecutors on trial

Defense attorneys for Casey Anthony are seeking to put the prosecution on trial, alleging an at times incompetent investigation into Caylee's death. The tactic could be working with some jurors.

Red Huber/AP
Casey Anthony team goes on the offense: Defense attorney Jose Baez (l.) talks with assistant state attorney Jeff Ashton during the murder trial of Casey Anthony at the Orange County Courthouse in Orlando, Fla., Wednesday. The defense is accusing the prosecution of incompetence as they try to reframe the trial.

The defense in the Casey Anthony murder trial is seeking to turn the tables on the prosecution, attempting to put the state itself on trial for conducting what defense lawyers suggest was a lackluster and, at times, incompetent investigation into the death of Ms. Anthony’s two-year-old daughter, Caylee.

Although Chief Judge Belvin Perry is trying to head off the tactic by sustaining frequent prosecution objections at the trial, defense attorney Jose Baez is managing to raise substantial questions that could trouble at least some members of the jury.

The jurors have heard testimony that a “shoddy” autopsy was performed by the county medical examiner, that an FBI lab technician’s own DNA contaminated a piece of duct tape that the state alleges is the murder weapon, and that a crime scene investigator placed a bag of wet trash with live maggots from Ms. Anthony’s car into a drier to preserve the contents for long-term storage.

They have heard about heart-shaped residue that mysteriously disappeared from the surface of the duct tape/alleged murder weapon before it could be photographed. They also heard that investigators waited 3-1/2 months after tests showed the possible presence of chloroform in Anthony’s car before obtaining a warrant to search the Anthony home for evidence of chemicals, mixing instructions, chemistry equipment, or store receipts related to chloroform. Nothing was found.

In addition, the defense is suggesting that the state missed opportunities to conduct DNA testing on the maggots found in the trash bag in Anthony’s car. Two entomologists and a DNA expert have testified that such testing would have been possible. It was apparently not done.

The defense has also suggested that after the FBI discovered a second partial but inconclusive DNA profile on the duct tape/alleged murder weapon, the state could have had the item retested using more sophisticated technology. It did not.

Defense gambit not unique

Mr. Baez’s gambit is not unique. The defense tactic of attacking detectives and prosecutors as sloppy or worse is a standard feature of many trials. But this is no ordinary case. The state has charged Anthony with first-degree murder and is seeking the death penalty.

In addition, the saga of Anthony and her daughter, Caylee, has attracted a national following of self-appointed detectives, moral arbiters, and others who are parsing every utterance in Judge Perry’s Orlando, Fla., courtroom. Interest in the trial is so high that fistfights have broken out among those waiting in long lines outside the courthouse for a chance to witness the unfolding drama inside.

Although the state’s case moved forward quickly and efficiently for nearly three weeks, the defense side of the trial during the past five days has been slowed by a high number of prosecution objections and resulting sidebar conferences outside earshot of the jury. The in-court tension arises against a backdrop of an increasingly bitter struggle between the two camps behind the scenes.

At several points Perry has condemned what he termed “gamesmanship” and rivalry among the lawyers during the trial.

When a potential witness from a DNA laboratory in the Netherlands, Richard Eikelenboom, presented himself at the state attorney’s office last weekend for a possible deposition in advance of his expected testimony this week, Assistant State Attorney Jeffrey Ashton refused to see him. He told him to go away.

Mr. Ashton has sought to block portions of Mr. Eikelenboom’s testimony because he says the defense did not comply with a court order in December to fully disclose all opinions that each expert witness would offer at the trial.

Baez says he sought to comply with the order but that a trial is a dynamic process and he is trying to respond to unexpected issues. The judge said his order was clear and that Baez had willfully violated it.

The judge's unusual punishment

As punishment, immediately before Eikelenboom began his testimony on Tuesday, Perry gave a special instruction to the jury that certain reports outlining the witness’s testimony had not been delivered prior to a court-imposed deadline and that as a result the jury “may consider this in considering the credibility of the witness.”

Such an instruction is highly unusual, particularly in a death-penalty case. A witness’s credibility usually speaks for itself without any pretestimony demerits assigned by a trial judge seeking to punish a defense attorney.

The punishment did not stop there. The judge also barred Baez from questioning Eikelenboom about the possibility of obtaining DNA profiles from a stain in the trunk of Anthony’s car. Prosecutors have suggested that the stain is from fluid that leaked from Caylee’s decomposing body onto the carpet lining the trunk. FBI tests found no DNA. And the state did not seek to perform more sophisticated tests.

Eikelenboom was expected to say that using the more advanced techniques in his lab, such testing might be possible. That testimony could be important to the defense because it would suggest the state has been less than diligent in using available science to help prove its case. At the same time it would highlight the circumstantial and speculative nature of some of the state’s evidence against Anthony.

Despite that pending issue, Eikelenboom was permitted to testify in general about DNA testing. He told the jury that even though the duct tape found with Caylee’s remains was severely weathered, with his techniques “you could expect to still find DNA.”

Pioneer of 'touch DNA'

Eikelenboom is best known in the DNA community as a pioneer in the detection of “touch DNA” – skin cells left behind by an assailant or criminal as a result of rough-handling during criminal activity.

In 2006, Mr. Eikelenboom helped free an innocent man serving a life sentence in Colorado for a murder he didn’t commit. After re-creating precisely how the victim was dragged into a field by her killer, Eikelenboom and his laboratory were able to identify “touch DNA” on the victim’s shirt 20 years after the crime.

The innocent man, Timothy Masters, was a 15-year-old sophomore in high school at the time of the killing. He told police that he had seen the dead body in the field on his way to school but did not report it to police because he wasn’t sure it was real, according to a report in the Denver Post.

Police considered him a murder suspect in part because he did not call 911 and he seemed emotionless, according to the Post report. He was convicted in a circumstantial case with no physical evidence.

Eikelenboom identified three full DNA profiles from the victim’s shirt. It eliminated Mr. Masters and pointed, instead, to someone else on the detectives’ list of suspects.

In 2008, prosecutors moved to vacate Master’s conviction and he was released after serving nearly 10 years of his life sentence.

Work in JonBenet Ramsey case

Eikelenboom was also asked by police in Colorado to investigate the unsolved murder of JonBenet Ramsey. Again, he identified DNA profiles by examining the precise points where the assailant grabbed the little girl’s clothing. The resulting DNA profile eliminated JonBenet’s parents as suspects in the killing.

During cross-examination, Ashton belittled Eikelenboom and his Dutch-based laboratory. He compared the company to a “mom and pop operation," and suggested he was working in a “barn.”

Eikelenboom said he and his wife converted a farm into a high-tech crime laboratory.

Ashton insisted that any DNA that might have been on the duct tape with Caylee’s remains would have long since degraded and been unusable in the hot, wet Florida weather.

“We only need a small amount of cells to get a DNA profile,” Eikelenboom said.

At the conclusion of his cross-examination Ashton asked Eikelenboom whether the defense team had asked him to retest the duct tape containing the as-yet unidentified DNA remnant.

"We mentioned that we could investigate this piece of tape,” Eikelenboom said.

Ashton shot back: “Are you aware if items at the defense’s request were sent for additional DNA testing?”

“No,” Eikelenboom answered.

The exchange was important because it potentially suggested to the jury that the defense did not want to retest the duct tape even though Baez was arguing that it should have been retested by the state.

“You were willing and able to test items from this case and you were willing and able to do it pro bono,” Baez asked during his redirect examination.

“Correct,” Eikelenboom said.

“The only reason you didn’t do it in this case is because the prosecution objected to you taking it,” Baez said.

The comment drew an immediate objection from Ashton before Eikelenboom could answer. The judge sustained the objection.

What the jury does not yet know is that a defense request to submit “items” to the Dutch laboratory was rejected by Perry. Instead, the defense team was directed to use a lab in Pennsylvania.

Baez apparently submitted for testing a pair of shorts and a laundry bag recovered with Caylee’s remains. But, according to Ashton, the defense never asked that the duct tape/murder weapon or carpet samples from the trunk of the car be retested for possible DNA.

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