The Case Against Casey Anthony - March 2011

Motions: Witnesses Unreliable In Casey Case

Posted: 6:27 pm EDT March 29, 2011
Updated: 6:37 pm EDT March 29, 2011

ORLANDO, Fla. -- In between hearings, Casey Anthony's defense team is continuing its attack on state experts who examined evidence in the case.

MOTIONS: Dr. Hall
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Karen Lowe
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DOCUMENT: Motion For Additional Witness
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Lawyers filed two motions on Tuesday, claiming the FBI expert who examined a hair found in Casey's trunk and the doctor who examined plant growth at the scene where Caylee's remains were found are unreliable witnesses.

The defense wants the FBI expert struck from the witness list and a new hearing on the other expert.
Meanwhile, a hearing about new defense witnesses is scheduled for Thursday.

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The defense team has filed an Amended Motion in Limine for Hearing on the Unreliability of the Scientific Testimony by Karen Lowe on Post-Mortem Hair Banding. This motion is two part and kind of works both ends against the middle. In the first part of the motion the defense team states the State did not meet the requirements of a Frye hearing. Their argument for making this claim is that the State only produced Ms. Lowe herself to support her work. They cite several cases that point out that an expert witness cannot vet their own work in order to meet the requirements of a Frye hearing. The second part of the motion then says that Ms. Lowe’s testimony will be pure opinion, so it really doesn’t qualify for a Frye hearing, but since Ms. Lowe stated in the hearing she was not an expert in the field of post-mortem hair banding, her “pure opinion” would be a layperson’s opinion on a scientific matter and therefore should not be allowed in. This article will look at both parts of this motion, and why they are both very, very wrong.


First let’s get to the matter of the defense’s claim that the State only produced Ms. Lowe to qualify the generally accepted nature of her work in this case. That is not true. The very first thing that Jeff Ashton did in his direct examination of Ms. Lowe was to go through a series of peer-reviewed scientific papers on post-mortem banding. Those publications were supplied in the total submission to the court for the State’s argument that Ms. Lowe’s work is a generally accepted practice in the forensic scientific community. In order to analyze how this meets the requirements for a Frye hearing, we must first look at what is required to be met in a Frye hearing.

In going over the requirements that must be met in a Frye hearing I will rely heavily on a paper entitled Quantitative EEG and the Frye and Daubert Standards of Admissibility. I have chosen to reference this paper because it breaks down the legal requirements of a Frye (or Daubert) hearing nicely, but also speaks from a scientific standpoint on what those requirements mean.

To be clear, while it appears these “qualifying hearings” are traditionally referred to as “Frye hearings”, the original 1923 Frye standard was replaced in 1993 with what is referred to as the Daubert criteria for the scientific method which was a Supreme Court ruling. In the Daubert standard the following four factors or criteria are required to be met in order to define the scientific procedure as following the “Scientific Method”. Those four criteria are:

1.Is there hypothesis testing?
2.Is there an estimation of error rates?
3.Are there peer reviewed publications?
4.Is it generally accepted in the scientific community?
It is of utmost importance to understand that in the Supreme Court’s decision it was stated,

the subject of an expert’s testimony must be scientific… knowledge, because it is the requirement that an expert’s testimony pertain to scientific knowledge that establishes a standard of evidentiary reliability. But, in order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method…

(It is interesting to note that the above quote originally comes from Mahle, S. Daubert and the Law and Science of Expert Testimony in Business Litigation “Business Litigation in Florida,” 4th ed. (2001). HA!)

This is a very important statement to get clearly understood, because what it is saying is that if a methodology has been developed based on the scientific method, and then that methodology becomes generally accepted and then the methodology is passed on (via training, education, etc.) to be used in developing an opinion or assertion, the four criteria of the Daubert standard must be fulfilled in the original science upon which the practice and opinion are based. In other words, Ms. Lowe, as a hair analyst,when following the accepted protocols for classifying a dark band on a hair as “post mortem hair banding” does not have to:

1.Form a hypothesis,
2.Estimate an error rate,
3.Be published in a peer-reviewed publication,
4.or be loved by the scientific community.
The methodology followed must have been developed via the scientific method that meets the above 4 criteria….not the work-level activities in following that methodology. The defense team, specifically Ms. Sims, seems sorely confused over this point.

So, is the work that Ms. Lowe performed in formulating her opinion that she identified a dark band that is consistent with post mortem hair banding a method established by the scientific method and meets the above 4 criteria? THAT is the question.

And the answer is, YES, it is. So let’s prove that now.

Was there a hypothesis formulated during the original scientific work upon which her methodology is based?

Yes. The hypothesis was: An anagen hair can develop a distinct dark band with specific characteristics that appears to be unique to anagen hairs from decomposing bodies.

Was there error rates established?

Yes. This is indicated in the peer-reviewed publications of the basic scientific work by reference to: 1) hairs taken from decomposing bodies that do not exhibit post mortem banding, 2) hairs taken from the same person where some hairs do exhibit post mortem banding, but others do not, 3) results of studies on hairs from living individuals indicating that no instance of post mortem hair banding has been seen from a living person, 4) that they don’t see post mortem banding in telogen phase hairs, and 5) data taken from studies in which the null hypothesis is tested by studying hairs in various environmental conditions to see if post mortem hair banding could be produced by a process other than decomposition of a human body. It is important to note, that to date, the null hypothesis has not been violated. In other words, they can’t find a hair, either in a living person studied, or hairs studied in various environmental conditions, that exhibit post mortem banding!

Now, first, Jeff Ashton was very correct in bringing out that the “error rate” applies more typically to measurement error rates. But more specifically the “error rate” question applies more appropriately to the basic foundational studies conducted (which have been peer reviewed and published for decades) not to Ms. Lowe’s work.

As our reference paper points out there are two types of error rates in testing hypotheses. They are Type I and Type II. Type I tracks the test’s propensity to return a false positive. A false positive we all understand and is a bad thing when talking about any test result that is inculpatory in nature. The studies we have seen discussed in the publications and the FBI studies are toward trying to “bust the hypothesis” or “fail the null hypothesis”…they are looking for other causes that could cause false positives. To date, they have not found any.

The second type of error rate is a Type II which tracks the test’s propensity to return a false negative. This phrase is not as well known. But it means just what it says. In this particular situation, it is the tracking of the error rate of saying “this hair is not consistent with coming from a decomposing human body because it does not exhibit post mortem banding”. Please note that in this case, a false negative is exculpatory because it would state there is no evidence from this hair that there was a dead body. The error rate for a false negative is extremely high in this type of testing because the publications note that there are a lot of hairs that come from decomposing bodies that do not have post mortem banding. They may not have any type of characteristic that would indicate they could have come from a decomposing body, or they may have a different characteristic other than post mortem banding. But the question on the table is…does it have post mortem banding? Based on that alone the error band falls toward claiming it has not based solely on the absence of this characteristic.

In fact, to date, the data shows that there is no identified source of causing a “false positive”, there are NUMEROUS instances of getting a “false negative”. So what does this mean for the “hair evidence” that was in the trunk? It means that if EVERY SINGLE HAIR found in a trunk, that also contained other signs of a decomposition event, had shown no sign of decomposition (be it post mortem banding, putrid ends, bushy ends, etc.) you could not with reasonable certainty state there was NOT a dead body in the trunk! Your probability of error on that call would be VERY high.

Are there peer reviewed publications?

About 15 minutes of going over just a handful of them at the beginning of this hearing establishes that YES, there are. All peer-reviewed…all in highly respected Forensic journals.

Is it generally accepted in the scientific community?

From our reference paper:

Scientific methods begin the process of becoming generally accepted in the scientific community by bringing appropriate hypothesis testing techniques to bear on questions (or hypotheses) of interest to the scientific community in a fashion that results in the peer approval required for publication. They move toward general acceptance by then withstanding the scrutiny of the broader scientific community to which publication exposes the methods.

We saw in the hearing, publications on post mortem root banding, and detailing the characteristics of those bands when analyzing hairs, that date back over at least 2 decades. It should be noted that the defense did not question Ms. Lowe about ANY publication that refutes the scientific principles and methodology discussed in the numerous publications the State provided in support of the general acceptance of post mortem banding identification. So contrary to the defense’s claim that the State did not meet the requirements of a Frye hearing, the defense did not meet their burden to refute the State’s presentation. They did not even present an opposing expert witness on the subject.

Now, to the second argument in the defense’s motion that states that Ms. Lowe does not qualify as an expert in this area and therefore the whole first part of the motion where they argue against the ruling on the Frye hearing was apparently just a typing test, or something…because Ms. Lowe is going to offer pure opinion. Since, says the defense team, she is not qualified as an expert in this area her “pure opinion” would be that of a layperson and therefore will have more potential prejudicial impact on the jury than bringing probative value because she basically has “no merit”…since she isn’t qualified as an expert.

Okay, let’s break this down. First, the defense’s contention that Ms. Lowe is not qualified as an expert. Straight from the defense’s motion it states the following:

During the March 23rd hearing, Ms. Lowe stated “correct” to Ms. Sim’s assertion that she was not an expert in the field of post-mortem hair banding.

Let me change colors to drive this home…THAT IS A BOLD-FACED, OUTRIGHT LIE TO THE COURT. I do not know how these “officers of the court” can continue to put outright lies in their motions to the court and get away with it. Here is what was asked and answered during Ms. Sim’s cross of Ms. Lowe:

Ms. Sims: You are not an expert in hair, are you?

Ms. Lowe: I’m an expert in the examination and comparison of hairs, of the microscopic characteristics present.

Ms. Sims: But you are not an expert at what causes abnormalities in hair from a medical standpoint, correct?

Ms. Lowe: That’s correct.

The defense team never asked the question “are you an expert in the field of post-mortem hair banding”. And what they DID ask her, she responded to by clearly identifying herself as an expert in microscopic analysis of hair and identifying characteristics present on those hairs.

Now, to the argument of “pure opinion”. Is Ms. Lowe’s testimony “pure opinion”? Well, at this point it doesn’t really matter much considering the defense is screwed whether it is or isn’t, now aren’t they? Because she has not stated she is not an expert, so she is qualified to render an expert opinion…which would then not even fall under the requirements of a Frye hearing!

BUT, I argue she does qualify as an expert. Back to our reference paper…concerning Kumho v. Carmichael in which the Supreme Court revisited the Daubert standard and “tweaked” it just a little. In Kumho the Supreme Court broadened the strict requirements of determining what “scientific knowledge” is, as previously defined in Daubert. The Supreme Court ruled that,

Daubert’s general holding…applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.

Ms. Lowe repeatedly stated that what she does, and what anybody else who does similar work as she does, is based on experience and training. Ms. Lowe’s work takes extensive training and is extremely specialized. She exhibited a deep knowledge of the specialty within which she works. Ms. Lowe is an expert at what she does. She identifies microscopic characteristics of hair.

In closing I will quote one last time from our reference paper. This is Judge Blackmun’s words from the Supreme Court’s majority opinion in the Daubert case:

scientists do not assert that they know what is immutably ‘true’ — they are committed to searching for new, temporary theories to explain, as best they can, phenomena…[science] represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.

[A judge makes a] preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

In other words, as our reference paper so succinctly states…“Jurors determine the credibility of what survives.” The defense team needs to stop attempting to try this case in pre-trial hearings and just DO THEIR JOBS.
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The above article I posted from Valhal at the hinkymeter goes to show you how a lay person with some background can easily make mincemeat of Baez and Masons motions. The defense is really screwed.
I dont believe they can make the "George theory"
stick and the scientific evidence is going to come in to trial along with the other motions that were denied,
again Im at a loss as to what the defense is going to get up there in their opening statement and say!

Quote from attorney Richard Hornsby:
R Hornsby said: "The depth of the defense team’s ignorance has made commenting on this case completely un-enjoyable. Because they are so inept, you can almost guarranty the State will win on every major issue."

Jane Velez Mitchell posting on her facebook page that the Anthonys will issue a statement on her show tonight through their new attorney! After months of keeping silent and for the Anthonys this is a tough thing to do, I believe this speculation about throwing George under the bus has caused them to speak out

Watching this guy Lippman babbling away on JVM
and saying absolutely nothing. I have to say Jane put the question to him very well, but he is unable to give much of an answer without blaming Casey. Guest attorney Deborah Opri says that she thinks that the defense IS going to try to throw suspicion onto George
because there is nothing left for the defense to use.
Jose Baez made a statement that the defense has not changed its "strategy" regarding her defense - as if we
believe he would actually tell the truth about his plans.

Deposition Shows War Of Words In Casey Case

Transcript From September Deposition Shows Tense Moments
ORLANDO, Fla. -- New depositions filed Wednesday in the case against Casey Anthony show the war of words at its worst between lawyers on both sides.
The depositions are of scientists from the Oak Ridge National Laboratory involved in air tests from Anthony's car.
Defense attorney Jose Baez accused prosecutor Jeff Ashton of making bar association complaints against him, the transcript shows.
After Baez interrupted him, the frustrated prosecutor told Baez to "shut up."
"Are you going to scream again, Jeffrey?" asked Baez.
"Are you going to let me talk, Jose?" Ashton replied.

Read more at:
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Casey Anthony case cooking up business for restaurants?
By Adam Longo, Reporter
Last Updated: Wednesday, March 30, 2011 4:41 PM
ORLANDO --
Lunchtime at the Orange County Courthouse means hundreds of people flooding out the doors.

When the Casey Anthony trial starts, there will be a couple hundred more people right across the street. And everyone will be looking for a place to eat.

Expect a lot more dough and a lot more cheese come mid-May.

When Casey Anthony's in court, more pizzas are sliding into the oven at Fratelli’s Restaurant.

“Our restaurant is full without the Casey Anthony [case], especially in that time 12 to 1,” said Julian Serjani.

Serjani and his family run Fratelli's restaurant, which sits literally in the shadow of the Orange County Courthouse.

“We're definitely busy now, but we will be double busy during that two-month trial,” Serjani said.

“We're preparing to extend our hours,” said Richard Grdo of Champs Café.

Champs Café, which is right on the courthouse property, is already thinking about the seats that will fill up.

“It’s gonna be a lot of business, a lot of people, and we're really excited for it,” Grdo said.

Grdo is already talking about extending his hours, and possibly opening on weekends.

He's also already planning on adding staff.

“We'll need more than two or three people here. Absolutely,” he said.

“To hire just for two months, that is the hardest part,” Serjani said.

Serjani is ready to hire for temporary work as well.

He said they’ll be out delivering to press.

They’ve worked out discounted rates with the court to feed the Casey Anthony jury. They'll have box lunches ready to fly out the door.

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Im glad some one is going to benefit in an honorable way from this travesty!

Does there come a point in time when JAC says, "Enough!"?

I believe it is more than apparent that Casey has been given the opportunity beyond the norm to defend herself, and all it has accomplished is of time and taxpayers' money.

This trial has certainly coined some phrases, hasn't it?

Casey's Favorite Chili will be the new one, Lilone. On all the menus in town.

Charming, your pup/bunny is adorable!

I'd be afraid to eat Casey's Favorite Chili, for fear that I would become a narcissistic sociopath. Two of my grandchildren are in Orlando right now, visiting Disney World. I hope they don't eat the chili while they are there!

Greetings all!

I did not put a lot of credence to the speculation that the the defense would lay this on George, based on what I gathered yesterday (maybe I missed something).

Today I saw an HLN clip that seemed to present this as fact...Why is the defense seeking to blah blah blah (hold George resposible)...my question is, was there ever a confirmation that this was their plan? If so, I stand corrected, but as I see it, with what I know, it blows my mind is that speculation can create this kind of discussion, that present it as an absolute. What a trip

I do not know why the witnesses being called (that created the speculation) are being called, but I think trying to pin it on George was not a possibility. I may have nutted up on those people too, if I was living that nightmare. And I am a pacifist :-)

So...my point was really how bizarre it is that the news turns a speculation into something that appears to be a fact? It was not presented as anything but a definite path the defense was on. Do we have any proof that is true, that I missed?

On another point, will there be a plea? Wow, I have no idea. If someone put a gun to my head and said decide--I would say no. But the trigger could be pulled. How on earth can they defend this case?

xoxo
Heike

Bill Sheaffer a respected Orlando defense attorney and legal anylst for WFTV recently caused some controversy when he speculated on a possible defense strategy for accused child killer Casey Anthony. Sheaffer theorized that: “The defense may try to show that [Casey's father] George was abusive — abusive to Casey and that she is suffering from post-traumatic stress disorder..." and “This could mean that they’re going to attempt to pin the murder on George.”

Sheaffer bases that speculation on the fact that the defense team has put a woman on their witness list, that was protesting outside the home of George Anthony, she was allegedly pushed by George Anthony. There is also an expert on post traumatic stress disorder on the defense witness list.

It has also been theorized that Casey's defense might not accuse her father of murder, but they might try to allege that George was abusive towards Casey and that caused Casey not to show any emotion when she partied after Caylee went "missing".

This is not the first time, that Casey Anthony has pointed the finger at George Anthony. She has previously accused her father, along with her brother of molesting her, when she was a teenager.

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This has caused Mark Lipman, the attorney for George Anthony to issue a statement in defense of his client:

"George Anthony had nothing to do with the death of Caylee Marie Anthony. He has been investigated, deposed, examined and cross examined by both the prosecution and the defense, and neither the defense team nor the state of Florida have maintained that he is at fault in any way."

"This incident had nothing to do with Caylee Anthony or the case in chief against Casey Anthony," Lippman said in the statement. "Unfortunately, because of the nature of this case, speculation has been publicly reported as to George Anthony's involvement with the death of Caylee Marie Anthony. This is simply speculation or an attempt at interpreting the actions of the defense and certainly nothing that has been reported about this speculation is a news fact nor should it ever be construed as a news fact."

"While we continue to be sensitive to the important role of the news media in informing the public, and we do not wish to dissuade or prevent news media representatives from fulfilling their responsibilities, this line of speculation has necessitated an immediate response," Lippman said. "We assert that we will not engage in idle speculation regarding either the defense strategy or the state strategy but make no mistake that any factual fallacy stated contrary to my client's well-being will be vigorously defended to every extent allowed by the law."

"If there's a reasonable scenario that could cater to how the circumstances then turned out later, certainly you present it, it's absolutely necessary if you're going to represent your client zealously," Lippman said.

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This family is absolutely crazy. Casey alleges sexual abuse, now the defense team may try to use the abuse as a defense or even point the finger at George Anthony... This is all after George Anthony says he will do anything to defend his daughter, and Cindy Anthony states in open court that she thinks Caylee is still alive, despite the fact that bones found have been ID'd as Caylee.

Nothing from this family shocks me anymore... Before this trial is over, all members of the Anthony family will start throwing each other under the bus. Lee Anthony better watch out, I have a feeling he may be next....

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I completely agree. They can't blame Kronk or "Zanny the Nanny",so "Tube socks" better be on guard. Next will be Jessie and/or Richard Grund.

Boy this really pisses me off, for all the people who REALLY DO suffer from PTSD and REALLY ARE victims of abuse of any kind. Casey is not even "woman" enough to take her punishment, she has to throw the family that stood behind her (however erroneously) when she was arrested. What a POS brat she is!!! I am sure duh-fense has some such crap up their sleeve like accusing George. Holy Cow!!!!!!

What [You must be registered and logged in to see this image.] Casey is, a pathetic excuse for a daughter and mother, and a sad waste of oxygen. She makes me sick.

I have a question, though. What, if anything, did I miss from this mornings hearings? I've been away and missed it all.

TIA!

HippieChick

Posted: 10:04 am EDT March 31, 2011
Updated: 6:16 pm EDT March 31, 2011

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ORLANDO, Fla. -- Casey Anthony's most well-known attorney did all he could Thursday to avoid WFTV reporter Kathi Belich (images | video).
CHENEY vs. KATHI: See Images | Watch Raw Video
HEARING ON 03/31/11: Full Raw Video Of Hearing
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CASEY WALKS IN: See Images | Watch Raw Video
INSIDE COURTROOM: Images Of Attorneys, Casey
MOTION: Claims Perry's Ruling Was Bias
VIDEO REPORT: Attorney Avoids Questioning

Right after Thursday's hearing about recently listed defense witnesses, WFTV wanted to ask defense attorney Cheney Mason about his recent accusations that Chief Judge Belvin Perry is biased against Casey. Instead of answering, he hid behind his umbrella and told Belich she was stupid.

"Do you still believe the judge is biased? Are you afraid to show your face? Do you believe the judge is biased?" WFTV reporter Kathi Belich asked Mason.

"You are probably the stupidest reporter on the face of the earth," Mason replied, trying to shield himself from Belich using his umbrella.

"I'm sorry, isn't that what you said in your court filing?" Belich asked.

Mason got feisty with WFTV. But it was a different story minutes earlier in court with Chief Judge Belvin Perry, just six days after accusing the judge of being biased (read it); Mason was subdued.

Thursday, Mason did not address his accusations during or after court. Other than cutting off Judge Perry at the beginning of the hearing, Mason did not address in any way his accusations that Judge Perry was "disingenuous" and flat-out wrong to allow jurors to hear Casey Anthony lie to investigators and to her family during phone calls and visits with them when she was in jail.

CHENEY vs. KATHI: See Images | Raw Video

The judge previously rejected defense arguments that Casey was actually in custody and that her parents and brother were acting as agents of investigators, so she should have been told she had a right to remain silent.

Rare for a Casey Anthony hearing, Thursday morning's hearing was over in around 20 minutes.

"The good news is, for the most part, I'm advised the state doesn't have objections," defense attorney J. Cheney Mason told Judge Belvin Perry.

Cheney informed the judge that they have voluntarily removed Sharon Cadieux from the list, saying neither side has been able to get cooperation from her; Cadieux went to the Anthony's home in 2008 to protest and George Anthony, Casey's father, pushed her during an altercation.

"All of the rest of the witnesses have been deposed," Cheney said. "With the exception of doctors Danziger and Weitz, who are scheduled for [state] deposition next week."

State prosecutors then had an opportunity to speak, concurring with what Cheney said about witnesses. Prosecutor Jeff Ashton suggested to Judge Perry that any matters involving the aforementioned doctors, who plan to testify about Casey's state of mind, be reset for discussion after they have completed their depositions.
WFTV legal analyst Bill Sheaffer said he's not surprised by Mason's demeanor in court Thursday.

"What people don't realize is that you file these motions, you make your arguments. Once you get a ruling, you move on. It's not personal, it's business," Sheaffer said.
Prosecutors plan to use 236 photographs at trial, including photos of Caylee's remains, which will be sealed. Casey is charged with murdering her daughter Caylee and dumping the body near their house.

"Get out of my way," Mason told Belich after the hearing.

"I'm not in your way. I'm beside you," she told him.

Both sides are to be back in court at 9:00am Friday morning to go over several remaining motions. WFTV.com will be providing a live video of the hearing and will be live-blogging at our Casey Anthony section.

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I absolutely LOVE Kathy Belich - now thats what I call a reporter in the likes of Lois Lane! Get the story Kathy!

Lilone wrote:

Does there come a point in time when JAC says, "Enough!"?

I may be wrong, but I don't think it's up to JAC. JAC has a lawyer that responds to the motion, but if Judge Perry grants the motion, they have to pay up.

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Good for you, Kathi!!!!!! Be a burr in their britches, a bee in their bonnet, a fly in their ointment, a thorn in their side, a pain in their a$$!!!!

HippieChick

:good/evil: :lol:

Wow...I am so impressed by the info and detail that you all are providing, ! I have precious little time to engage, but a world of desire, so it helps a lot. Gratitude well desevered to our prolific posters. xoxo Thank you truly. I go crazy when I cannot be there and there is never enough time to catch up, so it really helps!

Go Kathy! OMG, that video is priceless...and he defintitely made himself look like an A**...no self control, a major character flaw, and he is the big gun? Oh my!

Casey is not going to be eatin' Mama's chili...this is so over!

xoxo
Heike

Wrapitup wrote:"Get out of my way," Mason told Belich after the hearing.

"I'm not in your way. I'm beside you," she told him.

If anyone is interested, Nancy Grace is covering the Caylee murder right now on her show.

I am so pizzed, there is a hearing at 9am this morning? I didn't know about it. Dang!!!!!!!

HippieChick