First the observations:  Let’s start with the differences in the approach taken by  the Defense and the Prosecution, which could not have been greater.  The State obviously wants all of the statements made by Casey Anthony to be presented to the jury at trial.  Her statements, which, as we all now know, are replete with lies. Further, Ms. Anthony’s statements and conduct presented a pattern of behavior, together with a state of mind, totally inconsistent with an anxious mother, distressed that her little girl has gone missing for thirty plus days.  The State, however,  is mindful that Ms. Anthony had provided a written statement to law enforcement which contained a majority, if not all of the lies she later verbalized to the police investigators.  Lacking a legal basis to attack her written statement, the Defense has not moved to exclude it.  Therefore, the State will move it into evidence during trial for the jury’s consideration.  And, remember, the State knows with certainty that any statements by Ms. Anthony admitted into evidence over defense objection will become an issue on appeal.  Therefore neither the State nor the judge would run the risk of knowingly creating an appellate issue that might result in a conviction reversal and a complete re-do of the trial

The Prosecution then, attacked the defense motion to suppress with surgical skill, methodically addressing the issues raised by the Defense, painstakingly setting forth all of the facts surrounding each of Ms. Anthony’s statements, and finally, arguing the State’s position with relatively little emotion and no histrionics.  The Prosecution cited cases whose facts were as close as possible to the facts surrounding Ms. Anthony at the time she made the various statements at issue.  In addressing the judge in final remarks, the Prosecution included a solid factual recitation, resisting the temptation to “cherry pick”  only the facts favorable to the State’s position.  That approach was dictated by both the State’s ethical responsibility to do justice, rather than just gain a conviction, and perhaps from a more pragmatic view, to steer away from leading the judge into committing reversible error by playing fast and loose with the facts, or the case law.

The Defense lawyers’ objectives, based upon their motion to suppress, are quite different and basically twofold.  In the first instance, the Defense wants as much evidence excluded from jury consideration as possible.  This will increase the likelihood of a successful argument to the jury for an acquittal based upon reasonable doubt.  Remember,  just prior to its deliberation, the jury will be instructed by the judge,  among other things,  that a reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.  Failing in the first instance, the Defense, as any seasoned trial lawyer, would want to preserve the record on appeal so that an argument can later be made to the appellate court that the trial judge erred in letting the evidence go before the jury, and thus  a new trial ought be ordered.

The Defense took more of a scatter-shot approach in its motion to suppress, and, cherry picked the facts most favorable to its position.  Case law cited was generic, standing for general rather than specific principles of law, and argument employed emotion, some theatrics, with a dash of hyperbole for good measure.  The Defense has the luxury to do this however.  Their ethical responsibility is to their client, the Defendant.  They are charged with representing Ms. Anthony to the fullest extent of their abilities, employing any legitimate tools at their disposal in the process, just as long as they do not intentionally mislead the Court.  In these hearings, the Defense did what they needed to do  and they did it in an ethical way.  And, from my viewpoint, they did a good job, considering the facts they had to work with.

One final observation:  over the months many have asked why Casey Anthony has not dismissed Jose Baez, citing his lack of experience, frequent gaffs both in and out of court and other criticisms which I won’t detail.  Having observed Mr. Baez over the course of this case, and having heard witness testimony during the recent hearing, questioning his earlier decisions at the beginning of his representation of Ms. Anthony,  it is now clear to me.  One may question or criticize Mr. Baez’ experience and his handling of his client’s defense.  However, clearly, one cannot find fault with, nor speak poorly of, his loyalty, commitment, and determination  to his client and her defense.  In fact, Mr. Baez’ resolve at times clearly appears to work to his own detriment.  And, upon reflection, do not these characteristics go toward forming the basis for what one would absolutely want for his or her criminal defense lawyer?  These attributes could not be any more important than to one charged with possibly the most monstrous of acts:  the cold-blooded murder of one’s own little daughter.

As to the predictions:  Judge Perry will not admit any statement into evidence that he believes could serve as a basis for an appeal, and a possible reversal of any conviction.  This judge has handled numerous first degree murder cases of varying difficulty, none  that I am aware of have been reversed on appeal because of one of his rulings.  Additionally, he is well read, clever, and surpassed by none in his legal research abilities.  So, as to statements made to law enforcement: motion denied.  Ms. Anthony was not in custody or the functional equivalent of same, at the time she made her verbal statements.  Possible exception:  the statements made by her at the end of the “Universal Studios tour” at which time a reasonable person might not feel free to leave.

Statements made by George, Cindy and Lee Anthony: motion denied.  None was acting as agents for the police when Casey Anthony made statements to any of them.

Statements made to Robyn Adams in the form of written correspondence: motion denied.  Police involvement did not deny Ms. Anthony either her fifth or sixth amendment rights.

Disclaimer:  for the legal purist, I admit that there is a lot more law involved in reaching these decisions.  My terse explanations of my predictions is to spare the reader from the tedious task of learning how sausage is made, which, isn’t after all the point of this blog.

However, God forbid, should I be wrong, and Judge Perry does suppress any and all of Ms. Anthony’s statements, will that damage the State’s case?  The answer is no.  Refer to our second paragraph addressing Ms. Anthony’s written statement, replete with falsehoods, and, all of the evidence of her guilty knowledge.

WJS

WFTV legal expert Bill Sheaffer

Several items of interest have surfaced in the past few week,  in the Casey Anthony case. Two relating to trial strategy (my favorite topic), I believe, are significant enough to warrant a brief discussion.

Judge Perry entered his order denying the Defense’s request to question Roy  Kronk at trial regarding allegations of past indiscretions.  The Defense’s primary motive in seeking permission for this avenue of questioning was a clear attempt to suggest to the jury that  Kronk, not Casey, is the real killer of baby Caylee.  At the time the Defense filed this motion,  there were  individuals in the legal community that lauded this sordid  attempt as a sound and legitimate  defense strategy.  I, however, did not believe that and said so. First, it is neither a logical, practical, nor legitimate strategy, to engage in wholesale character assassination of anyone.  Certainly not on a national stage, much less, in this case, Roy Kronk, whose persistence led to the discovery of Baby Caylee‘s remains.  This secondary motive was clearly an attempt to gain some advantage in the court of public opinion, prior to Casey‘s trial.  However, there is not one scintilla of evidence to support the outlandish and salacious, and by now, well publicized allegations, the Defense has brought against Mr. Kronk.   Further, Kronk’s past  is totally irrelevant to the issue of Casey’s guilt or innocence. Even if the intent was solely to raise doubt in the minds of the jury by casting suspicion upon someone, anyone else, you don’t tip your hand before trial.   It serves no useful or legitimate purpose other than perhaps, to gain for the lawyer filing the motion, more face-time on television.   And, didn’t this clumsy move give the Prosecution plenty of time and a clear shot to neutralize this “strategy?”

The mistake made herein by the Defense was actually though, a basic one, as implied in Judge Perry’s order.   In his ruling, the judge has left the door open for the Defense to implicate Mr. Kronk through the presentation of  circumstantial evidence at trial, of either the facts surrounding his finding of Caylee’s body, and/or any possible involvement by Mr. Kronk in Caylee’s death.  More simply put, the Defense gave away its strategy by utilizing the Rule Criminal of Procedure that requires not only disclosure of its intent to attack Kronk but, which also mandates disclosure of the specific facts to be relied upon .  It would have been far more stealthy and effective  to attack Kronk at trial, by way of circumstantial evidence and to then bring it home during final arguments, that either he was involved directly in Caylee’s death or had engaged in some impropriety during the discovery of her body, thereby tainting the crime scene, and rendering the evidence found there suspect and unreliable.

Don’t misunderstand me, it is certainly a legitimate  and oft-used  defense trial tactic to attempt to raise a reasonable doubt in jurors’ minds that it was not the defendant, who was the actual killer,  but some other person.  The prevailing wisdom however, is it is better to spread that suspicion among several people, both named and unnamed, as opposed to targeting a lone individual.  The more suspects the Defense can argue to the jury that may be responsible for Caylee’s disappearance and/or death the greater the possibility the jury can find a reasonable doubt, and possibly acquit, or at least, find that they are unable to come to a unanimous verdict. That strategy tends to put the prosecutors on the defensive and  serves as a distraction from the planned presentation of  their case at trial.   It results in  the expenditure of  the prosecutors’ time, energy, resources and focus.  I suspect that had Cheney Mason been involved from the beginning of the case, the issue of Mr. Kronk  may have been handled much differently.   Depending upon the level of his involvement during trial, we may yet see a different approach to the “some other dude did it” defense.  We’ll wait and see.

So many of you have asked me about “that Laura Buchanan woman .”  Laura Buchanan, a defense witness, had signed a sworn statement that in early September of 2008, she had personally searched the area where Caylee’s remains were ultimately found in December of 2008.  Buchanan stated, “It is my opinion that the remains of Caylee Anthony were not there during the time of our search.” Buchanan further asserted that “I personally searched near the privacy fence and worked my way towards and then beyond the spot where the body was found.  I did not notice anything unusual.”  Buchanan, it appeared, was to be a major witness for the Defense.  If she was to be believed, it opened the door for the Defense to argue that Caylee’s remains were placed at the location where they were ultimately discovered in December, after Casey was arrested and incarcerated the Orange County Correctional Facility.   Therefore, someone other than Casey had to have killed Caylee and discarded her body.  We know however, that Buchanan’s statement was refuted by a host of Texas EquuSearch volunteers who had searched the area around that location wherein Caylee’s remains were finally discovered, and had said that  exact location was not, and could not, have been searched, because it was under water.

Despite these contradictory witnesses however, the Defense could still use Buchanan to advance their theory that someone other than Casey had killed and discarded the child’s body  at the discovery location.  But alas, it is not meant to be.   The State Attorneys Office and  law enforcement investigators were relentless in their investigation of Ms. Buchanan’s assertions.   Ultimately, she folded and reversed course. Now, when asked during her deposition by Prosecutor Linda Drane Burdick whether she searched near the area where Caylee’s remains were found, Buchanan said, “I can’t say that to be true because I still to this day don’t [know] where she was found, what area or what she was near.” Later in her deposition, Buchanan stated, “I didn’t know where the remains of the child were, period.  I didn’t know. I was…I was shown something, pointed to it.”

Setting aside all of Ms. Buchanan’s considerable, other baggage (claiming to have seen Baby Caylee on a Disney monorail; retaining Texas EquuSearch documents and later “adding notes“ thereto before handing them over to the Defense; sending Jose Baez e-mails with photos of herself attached, among other things), her deposition statements, under oath, render her utterly worthless to the Defense now.

In reading her depositions you might wonder why Baez had asked Buchanan if she was aware that she “was the target of a criminal investigation.”  Because, surprisingly, he may, even in the face of her latest admissions, still try to use her at trial, arguing that her earlier statements were true and that she only changed her statements at deposition, out of fear of displeasing the State, together with being afraid that she, herself, could be charged with a crime.   Again, I would suspect that  a seasoned lawyer like Mr. Mason would disagree with such a foolish and risky maneuver. But again, we will see.

From my vantage point, like so many of you, I still view the State’s case as strong.  The Defense has still much work to do with little time left to accomplish it.  And, in the meantime, the noose is growing ever tighter around the neck of Miss Anthony.

For all of you who participate in the on-going lively, Casey case discussions on my blog site, even when I am absent, thank you.  I read what you write and enjoy your perspectives, wit and repartee.  I anticipate being free to write more often now, especially as Casey Anthony’s trial date rapidly approaches.

WJS

I am curious as to why Ms. Baden and the book promoting law professor,  Andrea Lyon, did not express their travel and expense reimbursement concerns way back when they each made their splashy entries into the Casey case.  Could it be  because that was prior to the time  the Florida taxpayers were on the hook to pay the costs  for Casey’s defense?  What else has changed from that time until now?

Others have wondered whether the defense  perhaps could have gotten any work at all out of Ms. Baden, had Casey’s lead attorney, Mr Baez, (who held  the purse strings to the small fortune now gone) had geared up to go to work for his client much earlier than he had. All of those national TV appearances certainly did nothing to attack the State’s case against Casey. What took so long?  He at one time possessed the funds to pay Ms. Baden for reasonable expenses attendant to her representation.

Even if we accept Ms. Baden’s announced reason for quitting the case, the apparent mismanagement of hundreds of thousands of dollars taken in ostensibly on Casey’s behalf  by both Mr Baez and Casey’s loving family, is still galling to many (although who couldn’t use a vacation cruise break, or  new custom suits especially during these turbulent times and troubled economy).  Now, the money having mysteriously evaporated, Casey Anthony is at the mercy of the Florida taxpayers’ largess and the good auspices of certain pro bono attorneys working to defend her life.

Those musings aside, I observe that Ms. Baden’s departure from the defense team is the most serious loss of personnel to date. Giving the Devil her due, Ms Baden is, after all, nationally renowned for her expertise in the area of forensic evidence, and as we all know, the Prosecution’s case consists of a significant amount of forensic evidence,  both established and novel.

Ms. Baden’s reputation can best be illustrated by the following, relatively recent events:  record mogul Phil Spector retained Ms Baden to handle the forensic evidence in his California murder trial.  Result for trial number one: a hung jury.  Mr. Spector declined to retain Ms. Baden for the second trial.  Result for trial number two: a guilty verdict. Ms. Baden’s are big shoes to fill.

Which begs the question, is anyone on the present defense team capable? Well, no, not actually.   And although that may not be terribly troubling to the majority at first blush, it is to those who have spent their legal careers  promoting the ends of  justice.  In the end, our criminal justice system usually works, whether by man’s endeavors or by divine intervention.  But it pains one to see a conviction had because of  avarice, self promotion or ineptitude by lawyers entrusted with the obligation and responsibility to vigorously and energetically defend those individuals who,  in our minds,  are the least worthy.   Because in our system of  justice,  justice for all,  is defined by justice afforded to the least deserving of us.

Note:    Judge Perry granted Ms. Baden’s motion to withdraw at the October 29th status hearing.

WJS

In that vein, many of you may remember Mr. Ed, a TV sitcom that ran when I was a child.  The show was about a horse that could talk, but would only speak to his owner, Wilbur.  In any event, the show’s theme song went, in part,  something like this: “People yakkity yak and waste our time of day, but Mr. Ed will never speak unless he has something to say… A horse is a horse, of course of course…” Well, I  generally feel like Mr. Ed in that regard, and do not want to talk or write and waste your time unless I have something to say.

So much of what has been presented  as topical or important during the pendency of the Casey Anthony case has been, what I consider to be, white noise.   That is,  a lot of sound and dissonance with little or no consequence or meaning to either the prosecution of the defense of the criminal case itself.  That is not to say that certain “white noise” events are not in some ways interesting, or should not be of interest to us.  Rather, these things just do not, in my opinion, rise to the level of scholarly discussion or analysis.

Although now old news, but still extremely significant (and, yes, I should have commented earlier), was Judge Perry’s ruling denying the defense motion to exclude the tapes of Cindy Anthony’s 911 calls.  That decision, after all, was one of the most, if not THE most, momentous evidentiary rulings made to date in this case.  I would certainly now expect the State to lead off  by  playing those tapes as their first evidence in the presentation of their case in chief.  The agitation, frustration and emotion contained in Cindy Anthony’s voice,  during her last 911 call, foreshadows the tragedy that unfolds and, ultimately, culminates with the discovery of the body of baby Caylee Anthony.  This call, in particular, also sets the evidentiary stage for the unfolding web of lies spun by Caylee’s mother, Casey Anthony, which, measured against the facts, will ultimately lead to  the inescapable conclusion of Casey’s guilt in the murder of her little girl.

It is critical in this circumstantial evidence case that the State’s launch from the starting gate be strong, impactful and consistent with the evidence provided by the 911 tapes.  And so now, the stage has been set.  What remains is to flesh out the supporting evidence, especially the forensic evidence.

What are we waiting for now?  We are anticipating the Defense motions to exclude the forensic evidence, Judge Perry’s denial of same, and the evidentiary boxcars to line up behind the 911 tape train engine.

Finally, questions and curiosity about the content of the taped telephone calls between defense attorney Jose Baez and Lowell Correctional Inmate Robin Lunceford are rampant now that the judge has issued his order denying the defense motion for a protective order regarding their release.   However, again, whether these tapes contain anything of evidentiary value, or  whether we have instead more white noise, remains to be seen.  If it is the former, I promise to comment (and,  yes, Craig, in a timely fashion).

Until then, or until the next significant event, I have been asked again to answer questions.  I will do so gladly as my caseload permits.  Thank you all for your patience and forbearance.

WJS

At first blush it does appear that the Supreme Court reached the conclusion that Bees did.  But, with apologies in advance to Bees, that was not the Court’s decision after all.  Having had to read and brief more cases than I care to remember, starting waaaaaaay back in law school, I realized I ought to take a closer look at  the Hoffman case.   I believe Bees, as well as Judy, Frankie, Amazed, CatCarr, Kate, et al., would want me to straighten out an area of confusion so that there is no misinterpretation when you all speak to this issue in the future.

The general rule in Florida is, pretty much without exception, when the Defense files its Notice of Intent to Participate in Discovery, pursuant to the Florida Rules of Criminal Procedure, both the State and the Defense are then obligated to timely provide all evidence in the possession of each, to one another, as set forth and defined by Rule 3.220 Fla. R. Crim.P.  This duty to disclose is ongoing, up to commencement of trial.  If either party breaches that duty, the Court has a broad range of sanctions it can impose on the offending partying, including, but not limited to, exclusion at trial of the witness or evidence not properly disclosed. 

This discussion leads us to the Hoffman death penalty case that Bees found.  Hoffman deals with a particular type of evidence which is referred to as exculpatory evidence (evidence which is favorable to the Defense, or evidence which seems to point to the Defendant’s innocence).  The aforementioned evidence is known as BRADY evidence, named from the United States Supreme Court case of  BRADY VS. MARYLAND.  When the State fails to turn over exculpatory evidence to the Defense, lawyers refer to it as a BRADY VIOLATION. 

In the Hoffman appellate case, the Appellant/Defendant Hoffman,  during an evidentiary hearing held by the Trial Court subsequent to his conviction and sentencing, claimed that the State had withheld exculpatory evidence.  And further, had the Defense known of that evidence, the trial result would have been different.   The Trial Court, at this post conviction hearing, rejected this argument.  However, on an appeal to the Florida Supreme Court, the Defense prevailed, as the Supreme Court agreed with the Defense and remanded the case back to the Trial Court for a new trial.

When a Brady violation is alleged, the Defendant must establish a prima facie case that “there is a reasonable probability that, had the evidence been disclosed to the Defense, the results of the trial would have been different.”  To meet this test, the Defendant must prove:  (1) The State had evidence favorable to the Defense, (2) That the evidence was suppressed, or, not given to the Defense,  and,  (3) There is a reasonable probability that, had the evidence been disclosed, the outcome would have been different.

Bees was right in one respect.  That is, that the State can  withhold exculpatory evidence and get away with it, so long as the Courts conclude that even though the State did so, it doesn’t matter, because it would not, within a reasonable probability, have led to a different verdict.  That, however, is a very dangerous game for a prosecutor to play, especially in a capital case, such as the Casey Anthony case. None of us, especially the taxpayers, want to run the risk  of  seeing a verdict and sentence overturned and a new trial granted.  Therefore, from an ethical standpoint as well as a practical one, I do not expect to see either the State or the Defense fail in their duties to timely disclose all evidence to one another as required by the Rules of Criminal Procedure in Florida.

WJS

WFTV legal expert Bill Sheaffer

QUESTION: Would the defense have anticipated the sitting of Judge Perry upon Judge Strickland’s departure or was it an unpleasant surprise? — KMerr

BILL SHEAFFER: No, the defense team could not have anticipated which of the “death penalty qualified” judges would have been assigned the case. There is no line up of judges, per se.  In the event of a recusal or disqualification, the Administrative Judge (Whitehead) typically makes the case assignments in Orange County.  Certainly, the defense team may have had some preferences.  Whether Judge Perry was one, is not known to me.

QUESTION: Now that Mr. Malcaluso has withdrawn from the Casey Anthony case, can he be called as a witness for either the prosecution, or the defense?  He did state that he had proof of Casey’s innocence, or words to that effect at one of the numerous hearings. — Muesli

BILL SHEAFFER: No.  The attorney client privilege comes into play here.  The State cannot call Casey’s former defense team member as a witness.  The Defense most certainly would not want to, and subject him to cross examination by the State, thereby opening the door to information that he possesses, as a result of the attorney client relationship.

QUESTION: What do you think about Baez’s claim that he doesn’t keep track of his billable hours? – Deb S.

BILL SHEAFFER: The majority of criminal defense practitioners, by and large, do not keep billable hours, but, instead, charge a flat fee for representation.  I, myself do not keep hours.  There are of course, those who do.

QUESTION: What might that mean to other clients of his (if he has any)? Do you think now that Judge Perry has taken Strickland’s place it signals the beginning of the end for Baez? – Deb S.

BILL SHEAFFER: I do not expect that Mr. Baez is going to go anywhere.  He will see this case through to the end as lead counsel. I do anticipate that he will be better behaved.

QUESTION: Also, I’d like to ask, with this new defense team do you think they will try to convince Casey to go for a plea? They have never wavered so far in saying she wants her day in court and she’s innocent – Deb S.

BILL SHEAFFER: As to possible plea offers, competent criminal defense lawyers would not close the door to plea negotiations with the State.  However, in this case, I do not believe a resolution by way of a plea is likely.  One reason is that this is a circumstantial evidence case that lacks a “smoking gun” or a confession.

QUESTION: And even though they (the defense) have tried different theories on the blogs and with the public, Casey has never wavered from saying the Nanny took her. In your opinion do you believe they’ll take that story to court? – Deb S.

BILL SHEAFFER: Good question, but it is hard to say.  The defense team may well be married to that theory as there were so many out of court statements, especially prior to Casey’s arrest, asserting that the nanny took her child.

Let’s start by taking a look at the precipitating event which leads us to where we are today, the now infamous invitation by Judge Stan Strickland, subsequent to an October 2009 hearing, to one David Knechel to approach the bench.  At that time, in open court, with television cameras rolling, Judge Strickland offered recognition and a compliment to Mr. Knechel (known to most as Marinade Dave) for some earlier blogs Mr. Knechel had published about the subject case.

For those who do not know this, Mr. Knechel, under the pseudonym of Marinade Dave, regularly writes and publishes a WordPress blog about a range of topics, but primarily about missing and murdered women and children.  So, a trip to the bench for a brief public exchange seems harmless enough, right?

Well, not really.  The problem seems to lie in that several of the blogs to which the Judge referenced his compliment contained remarks by Mr. Knechel critical of the Defendant and the Defense team.

Whether the criticisms had merit is not the point.  The issue is really quite narrow:  could a reasonable person construe the Judge’s remarks to Mr. Knechel as a ratification of his criticisms of the Defendant and her Defense team?  And, if so, would a reasonable person then conclude that such ratification evinced a prejudice or bias either for the State of Florida, or against the Defendant and her lawyers?  Again, if so, then the conclusion could be drawn that the Defendant could be deprived of  her constitutional right to a fair trial.  The upshot is that the beliefs and any conclusions drawn here lie not with anyone  but the Defendant, herself.

That leads us to a discussion as to the  propriety of the Defense attorneys filing a motion to disqualify Judge Strickland.  Upon learning of the above incident, the Defense had no alternative but to disclose it to their client, Casey Anthony, and discuss with her the effect of same on her, and, whether she still held the belief that she could receive a fair trial with Judge Strickland.  If Casey Anthony reasonably feared that she could not, her Defense counsel is left with no other choice but to file a motion to disqualify the trial judge.

Why is there no choice?  Because, in the event that Ms. Anthony is convicted of murder and sentenced to death, and loses her first round of appeals, then subsequent appellate lawyers would attack the competency of her trial lawyers for their failure to raise the issue.  Ultimately, if this attack is successful, it would result in a reversal of her conviction and a new trial for Casey Anthony.

This inexorably leads us to discuss the contents of the subject motion to disqualify trial judge.  Therein lies one’s sense of disappointment  and  a cause to levy criticism and rebuke.  The motion to disqualify trial judge needed only to have addressed the narrow issue which I earlier defined.  The evidence offered in the motion on that issue alone would have been found to have been legally sufficient and should have achieved the desired result.

However, it is the inclusion of all of the rest of what can only be described as vicious, scurrilous, vituperative, condemnatory and patently mean-spirited, together with unsubstantiated and untrue allegations that subjects this pleading to the harshest of criticism.  What is it about this case that causes otherwise good people to act with such toxicity and attack, with utter disregard of the consequences, the character of a man like Judge Strickland?  I don’t have an answer, perhaps some of you do.

At this point, we have to address Judge Strickland’s order.  Usually when a judge grants a motion to recuse or disqualify, it is done without comment or opinion.  This order, granting the defense motion, however, contained an opinion, causing some in the legal community to wonder about, if not view with a critical eye, the prose contained in said opinion.

In ruling on a motion to disqualify, a judge is only to pass on the legal sufficiency of the motion and cannot defend, dispute, or put into context the allegations contained in the motion.  He cannot call a press conference to do this either.  In this instance,  the judge, granted the motion with an opinion, which obviously was in defense of his character.

Certain law school instructors leveled some criticism at Judge Strickland for that.  But perhaps it would serve those to remember that Stan Strickland is not only a circuit court judge, but also a husband and a father, whose children live, go to school and work in our community.  Judge Strickland has given back to and served the citizens of the state of Florida not only through his civic contributions, but also through public service and sacrifice of financial gain, in the furtherance thereof.

I would assert that he should be expected to respond to a wholesale attack and vicious characterization that goes to the very essence of his being.  Perhaps these same law school instructors might want to consider how they would react if they, themselves, were the subject of such a personal attack, and it was instead, their wives, children, parents, friends and colleagues who had to deal with the consequences and the aftermath.

Finally, in looking back, should we castigate Marinade Dave for blogging? Judge Strickland for extending a compliment? The Defense for filing the motion to disqualify (which, again, they were obliged to do)? Or, Judge Strickland, again,  for the content of his order?

No. The prosecution of Casey Anthony will not be impacted by this series of recent events, nor will the ends of justice be subverted and, in the end, the jury will reach a just verdict based upon the evidence presented at trial.  So, in the words of Paul McCartney and the Beatles, “Let it be.”

WJS

JAN wondered whether Jill Kerley, Roy Kronk’s ex-wife, could be cross-examined on the witness stand regarding her prior criminal record, as well as the drug allegations made against her at the time she was employed as a nurse.

ANSWER: In Florida,  any witness that testifies at trial is subject to cross-examination regarding prior felony convictions and misdemeanor convictions that involve crimes of dishonesty.  However, evidence of investigations of allegations NOT resulting in a criminal conviction can not be brought to the jury’s attention.

JAN later asked whether a body language expert (such as Lillian Glass) could testify at trial.

ANSWER: In short, no.  Body language experts can be used by either the defense or the prosecution to aid them in the preparation of their respective cases, but cannot be called to testify as to their opinions at trial.

MUESLI inquired whether witnesses (for example, the Anthony family members) could sit inside the courtroom prior to their testimony to listen to the testimony of others, or would they be required to wait outside until they are called to testify.

ANSWER:  Witnesses who will testify must wait outside the courtroom once the Rule of Sequestration is invoked.  What is that? Among other things, all defense and state witnesses are excluded from the courtroom before and, generally, after their testimony is given (sometimes witnesses are recalled to the witness stand).  Routinely, either the state or the defense will ask the presiding  judge to invoke the Rule.  The judge does not, of his own accord, do this.  There have been the occasional oops, where neither side remembered to ask that the Rule be invoked. However, this lapse  is typically noticed when one side or the other turns around to see witnesses sitting in the courtroom observing proceedings.

AMAZED wants to know whether Casey Anthony can further stall the commencement of her trial by stating she feels her current counsel is ineffective, even though she has repeatedly said she is satisfied with her defense team.

ANSWER:  Although I don’t believe this is likely to happen, Casey has the right to fire her present lawyers at any stage of the proceedings.  And, if she were to so do, depending upon the timing, this could result in a further delay of the start of her trial.

Many of you have expressed your exasperation with defense delays, stalling tactics and excuses to earn further continuances of the trial date.  You wonder why the judge doesn’t “crack the whip,” “say enough is enough already” and “stop wasting the Court’s time.”    This is for JEANSEE, BJ, TISHEL, CASEYISGUILTY, JUSTIN, VICKI and LITTLEBEAR among others.

ANSWER: Firstly, both the current discovery and trial schedules were agreed upon by the state and the defense and then approved by the judge. Secondly, as long as the death penalty is on the table, the judge will,  more than likely, continue to be flexible as to schedules and dates with both sides. However, even Judge Strickland’s  patience has its limits and, should he determine that either side is not proceeding with due diligence and in good faith, we can expect to see him “crack the whip.” Remember, this is a complex, circumstantial evidence case requiring many, many witnesses to establish the circumstantial chain of guilt.  Included among those witnesses are forensics experts seeking to gain admission of  “novel scientific evidence,” requiring a great deal of preparation by both the state and the defense.  In this instance, justice delayed will not equate to justice denied.  Casey is facing the ultimate penalty.

MAGDALENA asked what exactly is a mistrial?  Does it mean the accused walks free, never to be tried again?

ANSWER:  A mistrial can occur when something happens or is said during the trial that is so prejudicial (generally to the defense) that, immediately after the occurrence of that event, and, upon motion for mistrial, the judge finds that there is no remedy, short of dismissing the jury and declaring a mistrial. Secondly, and possibly the most common reason for the judge declaring a mistrial, is the failure of a jury to reach a unanimous verdict. In either event, the defendant is, in fact, retried for the offense before a new jury at a later time. That is unless the case is resolved by a plea or the state decides to dismiss the charges, the latter being a rarity.

That’s all for now.  For those of you whose questions I did not yet answer, be patient.  I will be back to answer more when my schedule permits.

WJS

DO NOT comment on the questions — this area is only for submitting questions, not debating them. Please only submit questions. Thanks!

In this country,  any person accused of  a crime  choosing to exercise his 6th Amendment right to go to trial rather than enter a plea, usually runs the risk of the Court imposing a harsher sentence upon conviction. Casey Anthony’s defense lawyers may argue that as their reasoning in reaching the decision to recommend she plead guilty, rather than try Casey’s check fraud case. However, as local criminal defense lawyers know, and, anyone who takes the time to  review his sentencing record, Judge Strickland does not have a reputation for being more punitive because a person charged elects trial over a plea. And, as we now know, the Defense did not appreciate the State’s plea offer.  Hence the defense decision for an open ended plea to the Judge, with no agreed-upon sentence.

So, that brings us to the question of how Casey Anthony could have “had her cake and eaten it too.”  The “cake” in this instance is the sentence Casey received.  Said sentence, for the sake of argument, is less than she might have received, had she gone to trial and been found guilty.  And, Casey’s lawyers could reasonably believe, given the quality and quantity of the evidence, that she might have suffered a greater number of felony convictions at the very least.

The “and eaten it too”  aspect of this is, once again, the appellate process advantage.  That is, in staying the judgment and sentence of the Court, so that Miss Casey goes forward to her murder trial, conviction free! Many of you probably know that the defense lawyers  filed a motion to dismiss several counts (charges) against their client.  Had the Judge granted the defense motion to dismiss those counts, there would have still remained several counts in the Information (charging document) for the defense to deal with, which ultimately could have resulted in Casey Anthony being maneuvered into entering a plea to the counts, or charges, yet remaining that had not been dismissed by the Court.

So, what’s a girl to do?  Well, in addition to filing the first motion to dismiss  addressing  the counts therein, Casey’s team might have also filed a separate motion to dismiss the remaining counts, alleging some technical defect or defects committed by the State, in its  framing (drafting or writing) of those counts in the Information (charging document).  Lawyers refer to these as “boiler plate” motions which purpose is, essentially, to attack the technical foundation of the charges brought against our clients.  By the way,  such motions are seldom granted.  But, in this instance, that does not matter.   Now, Casey has moved to dismiss each and every count or charge in the Information, even if the Judge denies her motions.

And, here is the good part:  the Defense, having filed motions to dismiss each count, the Judge having denied said motions, the Defense has created ISSUES that can be used to take advantage of the appeals process without first going to trial.   How could that fly?    Instead of entering a guilty plea on Monday, Monday, Miss Casey may have entered a plea of nolo contendere, or no contest (meaning, roughly, that she neither admits nor denies the charges against her but finds it is in her best interest to no longer continue to contest the charges against her).  She would then RESERVE HER RIGHT TO APPEAL the Court’s denial of her motions to dismiss.  Once the Court accepts the plea and imposes sentence, her lawyers would then file a notice of appeal, and, as discussed in the previous post, the Court would stay the judgment and sentence while her appeal makes its way through the time consuming process at the 5th District Court of Appeals in Daytona Beach, Fl.

Now, almost certainly, Miss Anthony will not win the appeal.  So, what happens when the 5th denies her appeal?  The trial court (Judge Strickland) is notified that the original judgment and sentence has been affirmed, or upheld.  The “stay” of the judgment and sentence is dissolved, and the sentence originally imposed by the Judge is executed.  But, again, as you know from the previous post, this process eats up quite a bit of calendar.  In the meantime,  the trial on the murder charge goes forward. And,  Miss Casey’s defense team is free, if they choose, to put her on the stand, conviction free, to tell her story. Same result, but no trial exercise for Casey’s time strapped, beleaguered defense team.

The moral of this two-part post comes from two family members, each a strategy expert in his respective table game:  it is wiser to learn to play checkers before you attempt to play chess.

WJS

A postscript thought or two:  I recently spoke to a group of University of Central Florida students who wondered if I was more critical of the Defense than the State in this case.  A very fair question, actually, but, the answer is ”No”.  The importance of bringing your “A” game to a case this serious cannot be overstated.  The time and work involved in defending, and in bringing, a charge of murder in the first degree with the death penalty, is substantial. Defending against such a charge is arduous and all-consuming.  That is why in Florida, a lawyer must be ”death penalty qualified” before undertaking a case like this.  The State has put forward its best team to represent the People.  However,  in the event the State, in my view, makes a misstep, I will not be shy about bringing that fact to your attention. So far, it hasn’t happened.

Finally, I have gotten a lot of flack from lawyers who do not believe that, as a criminal defense attorney, I should be setting forth, in essence, how  slaw is made.  (See the past two posts as examples). I obviously disagree.  Every lawyer is different in his or her approach.  My practice is to explain to my client, in complete and boring detail, every option, strategy and tool available, every step along the way, as that case progresses.  I don’t believe the practice of law should be mysterious, any more than I believe that the practice of medicine should be.  Having said that, I look forward to your comments and questions as we go forward with this case.

WFTV legal expert Bill Sheaffer

Now that Defendant Anthony has pled guilty and been sentenced in her 13 count fraudulent check case, and now that the cheering on the sidelines has died down a bit, let’s discuss the events.   Monday evening I got a call from my niece, a big shot corporate attorney in Delaware who, like so many others, is following this story.  On a personal note, she and her husband have two little girls (my niecelets).  She wanted the 411 from the check fraud hearing.  I told her.  She was silent for a moment, and then she said, “No, really, what just happened?!”  Keep reading to understand her query.

As we all know, Casey Anthony now stands as a six-time convicted felon.  So what then does this mean in the grand scheme of things, the big show, her upcoming trial on the charge of the murder of her little daughter Caylee? A lot. We had discussed before that should Casey be convicted of any of the aforementioned charges, it will greatly affect her credibility should she elect to testify in her murder trial.

Casey now has a record of six, yes six, felony convictions, which  follow her to the murder trial. And, as we had previously discussed, if  she does take the witness stand,  the prosecutors will indeed relish soliciting Casey’s admission to those six felony convictions.  Her defense team, as one of her lawyers stated after Casey’s Monday sentencing, would,  during  jury selection, seek a jury that is more intelligent than to be swayed by a few convictions for writing a few bad checks.  The defense game plan, we are to believe, would be the “it was really no big deal” deflection manuever.

Perish the thought, folks.  Seasoned criminal defense lawyers know that once a jury learns that your client has a prior felony criminal conviction, not to mention six of them, it’s pretty much game over.  Juries tend to view a defendant/convicted felon on the witness stand as a liar.  Can Casey overcome that hurdle if she testifies in her own defense?  Not very likely.

We have  heard over and over that Casey has a good and reasonable explanation for declining to report the disappearance of her 2 1/2-year-old daughter. Well, guess what?  At trial there is only one person that can sell that story and that is Casey Anthony. So, if Casey does take the stand, the state attorneys will have all the time in the world to review with her so many fun facts: her numerous, inconsistent statements for starters,  possibly the videos of her shopping expeditions and visit to Blockbuster with her boyfriend, and let’s not forget the  rock star party photos.  Good times. The foregoing  topics for cross examination, together with the six felony convictions that she will have to admit, gives a reasonable person cause to believe that Casey  might encounter a serious credibility problem.  A jury will not believe a thing she says beyond her name and date of birth.

Could Casey’s defense team have avoided these felony convictions coming into evidence at her murder trial?  You bet. One option would have been to try the check fraud case.  Go to trial, even  though you know Casey will be convicted.  What purpose would this serve you ask?  Quite a few, actually.   For one, you get to see whether you can get a fair and impartial jury in Orange County, in spite of  the pretrial publicity.  For another, you get to see how the community reacts toward the lawyers on the defense team, as well as how the jury, if you can seat one, responds to your client.  Casey gets essentially a real life dress rehearsal to practice her acting skills before a jury.   Those are just a few of the benefits.

If  she is convicted, so what?   You, her defense lawyers, would file an immediate appeal, and a motion to stay the judgment and sentence of the trial court.  This motion is almost always granted  by the trial court. The entire appellate process  can generally take 12 to 18 months to complete.  Meanwhile, Casey Anthony’s record remains clean and unblemished in the eyes of the law.   This means that, even though Casey has been convicted of the fraud check charges,  the  prosecutors cannot bring these convictions into evidence, or even allude to them,  should Casey testify in her murder trial.   So,  if she were to be  asked if she has any prior convictions, Casey could answer, ‘No!’  Her answer would stand and the prior disposition in the check charges, all of those felony convictions, would never come into evidence.

But, would-have could-have should-have, that’s not what went down, is it? And, as I stated earlier, the above scenario is only one option that was available to Casey Anthony’s defense team to keep her felony convictions from coming out at her murder trial.  In my next missive, I will tell you how Casey could have had her cake and eaten it too.

So, for all of advocates for justice,  yes Virginia, there is a Santa Claus.  And,  he has given us the Casey Anthony Defense team.    Stay tuned.  It’s bound to get more interesting.

WJS

If we are correct in our conclusion, let’s then examine the mechanics of a change of plea in Florida state courts. When a Defendant decides it is in his best interest to forego a trial on his charges, withdraw his plea of not guilty, and enter a plea of either nolo contendere (no contest) or, guilty, this change is generally accomplished in one of two ways. The defense attorney has negotiated a deal with the Assistant State Attorney assigned to the case, in which event both the State and the Defense will know exactly what the terms, conditions and the sentence and will be prior to the plea hearing. Or, should the defense attorney be unable to come to an agreement with the State that is satisfactory to his client, the other option would be to plead to the charges, (either guilty or no contest) directly to the judge and let the judge decide the appropriate sentence.

Obviously Defendant Anthony hopes to argue for a more favorable sentence than what has been offered by the State, assuming that one was even offered. It is more likely than not that a plea agreement was offered to Casey Anthony by the State, as historically, plea offers are made in the vast majority of cases prosecuted. However, if an offer was made by the State and rejected by Defendant Anthony, the defense lawyer must believe he can argue to the Judge for a better sentence than that offered by the State, or, failing to gain a lighter sentence, any sentence imposed by the Judge would not be any harsher than what had been offered by the State.

Several folks have asked me why doesn’t the Defense go directly to the Judge and work out a plea deal before the sentencing hearing? Judges do not engage in plea negotiations with Defendants. To do so would undermine the authority of the State Attorneys Office in its role as the representative of the people of the State of Florida. So, what then, is the most likely reason that the State and Defense could not reach a plea agreement in the instant case? I believe the failure revolves around the issue of adjudication of guilt. I do not believe the State would agree to, or recommend a withholding of adjudication for Casey Anthony. When one enters a negotiated plea of either guilty, or no contest, the Court, with the recommendation or agreement of the State, has the discretion to withhold the imposition of conviction to all, or any of the charges. “Imposition of conviction” in legal terms means to adjudicate (imposition of conviction), or, to withhold adjudication (not impose conviction.) We had discussed the significance of a conviction on the check charges in an earlier blog. (Please see the Nov. 14, 2009 post entitled “Back Again for Effort #2″).

Now, when Defendant Anthony enters her plea to the Judge on Monday, both the State and her defense lawyer will be afforded an opportunity to argue their respective positions regarding her sentence and the issue of adjudication. The State will likely argue for adjudication based upon the fact that although this is her first offense, it is not an isolated incident, but rather a series of criminal acts constituting a crime spree. Further, hers was not a crime of economic necessity (say, milk and baby diapers) but, a crime wherein the proceeds were used to buy frivolous items (i.e. sunglasses and lingerie). The defense will argue that it is her first offense that Miss Anthony has made restitution, and that the sentence should be designed to be rehabilitative not punitive, and that the Court should withhold adjudication of guilt. Both sides will have valid arguments. Normally I would expect the Defense to have a slight edge in its argument. But none of us live in a vacuum and it can go either way. aAs Yogi Berra said, ” it ain’t over till it”s over.” So my friends, stand by for Monday, you can’t trust that day.

O.K. this time, I will answer a couple of questions!

WJS

Things have really gotten out of control on this blog and it risks ruining a really good thing. So, this is a FINAL WARNING.

I have asked for people to post appropriate content and to play fair. That isn’t happening and it’s frustrating both myself and Bill Sheaffer. If you’re a fan of commenting on here, it’s on thin ice.

Here are the rules — if you don’t follow them the comments will get dumped and you’ll get blocked, without warning. If it continues, we’ll shut down commenting.

1) Comments should be about the Casey Anthony case or in response to Bill Sheaffer’s post

2) Comments should NOT attack OTHER PEOPLE — that includes attacks and/or disparaging remarks about other posters or other bloggers — If you disagree with an opinion someone else has ON THIS CASE or ON BILL’S POSTS, that’s okay, but almost all of the comments on here are just childish attacks on one another

3) Comments should be free from profanity — that includes ‘tricky’ spelling to prevent filters from catching it

This is a really awesome blog that Bill is doing, but the way commenting has been going puts it all at risk. He’ll be putting up a new post soon and the comments it receives will determine if commenting goes away or continues in the friendly, smart and appropriate way we’re trying to move this into.

Thank you.

We could address each defense motion on its merits, but for now, I believe that a general discussion of what it all means is more in order.

Once defense lawyers undertake a trial by either judge (bench trial) or by jury, the  lawyers are not only concerned with the actual trial itself, but also any possible appeal which may follow, in the event of a conviction.  Should Casey Anthony be convicted of first degree murder of her little girl, and, should she be sentenced to death, her appeal automatically bypasses the usual appellate route taken by non-death penalty criminal cases.  Instead of  an appeal of her conviction and sentence being filed with the intermediate appeals court, i.e. the Fifth District Court of Appeals, it would go instead, directly to the Florida Supreme Court, the ultimate court of appeals in the State of Florida.  Should she lose the appeal in the Florida Supreme Court, her appellate lawyers would next appeal her conviction and sentence directly to the United States Supreme Court.  For our international readers, that is the highest court in the U.S.  But the United States Supreme Court has the discretionary ability to decide whether to hear Casey’s appeal, or to refuse to do so, without giving a reason.  Should she lose in the United States Supreme Court, Casey’s lawyers would then return to the original trial court in Orlando, Orange County, Florida and file a postconviction  motion for relief (also referred to as collateral relief)  which would include, among other things, an attack upon the competency of her trial attorneys.

Should she lose on that motion, she would return  to the Florida Supreme Court to appeal its denial.  Again, should she lose that appeal, its back to the United State Supreme Court.  So, if you are still with me at this point, if she is rejected by the United States Supreme Court, her  lawyers would start seeking her postconviction remedies in the United States federal court system.  This postconviction process would continue on until either Casey won, or, was executed.  I won’t go into the particulars of the post conviction process in the federal court system.  To do so would be mind numbing, even for you University of South Florida students  following this blog.  Suffice it to say the post conviction process can, and usually does, take years and years.

So, the eye opener for many who do not work in the criminal justice system is the fact that a guilty verdict with a sentence of death is not the end of the case by any means, but in many respects only a beginning.  In discussing this case and the complex appellate process with  “go to” criminal appellate lawyer, Terrance Kehoe who practices in Orlando, Florida, the defense motions under discussion here are the types of motions filed by criminal trial lawyers in most “death cases”.  Although lawyers may disagree as to the merits of the various motions at this time, they are filed in order to preserve the issue (or argument) for the many appeals that follow.  We are mindful that although the current status of the law may not support these motions today, the law is always evolving and changing, meaning what may seem a frivolous argument now, could, in fact, be the status of the law sometime in the future. And, should the law change in favor of the arguments advanced in these various motions, it may well be an argument put forth in one of these motions that saves Casey Anthony from lethal injection.

In view of the foregoing, I’ll leave you with an adage which I think applies to these defense motions:  Throw a thousand rocks in the ocean, and you may just hit a fish.

WJS

In 1963, a  United States Supreme Court case from Florida held that state courts must, under the Sixth Amendment of the Constitution provide lawyers for indigent defendants in criminal cases.  It was this U.S. Supreme Court case then, that led to the establishment of Public Defender offices in Florida, thereby ensuring the right to a fair trial to the poor in this state.  In 1964,  the Florida Legislature,  established  the Ninth Judicial Circuit Public Defender’s Office, making this year the 45th anniversary of our public defender’s office.  This office has had a rich history of public service under the  exemplary 20 year leadership of our former multi-award winning Public Defender turned writer/college professor, Joe DuRocher.

It was under Mr. DuRocher that Bob Wesley first served in that office, as an assistant public defender, leaving after many years of service to establish his own criminal defense practice.  In the year  2000, Mr. Wesley, by then a consummate and successful  Board Certified criminal trial lawyer, sacrificed  a successful and lucrative law practice to run for the office of  The Public Defender of the Ninth Judicial Circuit. In my humble opinion it has been  during Mr. Wesley’s stewardship these past nine years, that our Public Defender’s Office has reached its zenith.   Through his leadership by example, Mr. Wesley has attracted some of the best and the brightest young lawyers to join him in his quest for equal justice for all.  He and they are what is right about our system of  justice.

So, if the measure of the quality of our system of jurisprudence is the justice that is extended to the least of us, then ours, in the Ninth Judicial Circuit, thanks to Mr. Wesley and his assistant public defenders, sets the standard by which all others ought to be measured. To Mr. Wesley and your band of warriors for the indigent, thank you for your sacrifice, dedication and contribution, not only for the furtherance of justice for all, but, for the quiet example of public service you set for the young.

To learn more about Bob Wesley and the Public Defender’s Office and what they are doing in our community, check his website at: http://www.pd.circuit9.org.

WJS

P.S.  It is Christmas time and many folks clear their closets of seldom, or never worn, clothing.  Here is a good charitable use for some of  those items:   Bob Wesley’s Office of the Public Defender gratefully accepts donations of gently used professional clothing at the Orange County Courthouse Public Defender’s Office.  Project Community Clothes Closet provides people with proper attire for their court appearances.   “Our clients often don’t have anything better than jeans and t-shirts…and that’s not acceptable dress for the courtroom.  We want to be sure our clients’ cases aren’t adversely affected by what they are wearing.  It is also important to show the Court respect,” explains Bob Wesley.  A donation of  “courtroom suitable” clothing is a kind and generous but cost-free way to share the spirit of the Christmas season.  Thank you in advance for any clothing donations to The Public Defender’s Clothing Drive.

At this juncture, we will not address her distasteful and offensive remarks pertaining to judges, female prosecutors or jurors, but, instead, limit our discussion to a particular statement made by her that cornerstones the latest defense strategy that can only be described as a scorched earth approach.  Ms. Lyon’s approach, which has been adopted by Baez, Baden and company, disregards any consideration other than win at ANY cost, regardless of the truth, or consequence to  justice, the fair trial process or any innocent party ground under their boots.

Accordingly, let us now examine her statement as follows: “I understand that a lot of times our theory of the case isn’t a real theory.  Okay, it’s a way of us getting to the penalty phase.”  And contained in her words lies the fate of witness Roy Kronk.  He is only the latest victim of this scorched earth approach by the Casey defense team, but I suspect, not the last.

Looking behind the curtain to what this means:  Andrea Lyon has a job.  That  job, as she sees it, is to save her from the death penalty, should Casey Anthony get convicted in the guilt phase of her trial, and, to do whatever is necessary to accomplish this, regardless.  To comprehend this philosophy one must understand that there are lawyers that are so opposed to the death penalty, just as many non-lawyers are, that the ends justify the means.  Period.

I must ask that you not judge all criminal defense lawyers by the conduct of Ms. Lyons.  Most are competent, hardworking and passionate defenders who do not share this view of win at any cost, but still represent their clients with vigor, creativity and compassion, while preserving the integrity of our judicial system and not creating fall guys and ruining the lives of innocent everyday people.

But back to what this all means:  quite simply, the defense would sacrifice Roy Kronk, the meter reader, during the penalty phase when they argue that a compelling reason not to impose the death penalty is the reasonable doubt created by the implication that he is the killer of little girl Caylee.  A horrifying thought for anyone caught up in the criminal justice system as a witness or search volunteer.  And, will it end with a verdict in this trial?  Well, if I were Mr. Baez, I might be asking myself, when his job is done and all appeals have been exhausted, will I be next?

WJS

P.S.  To the many who have asked for the certification dates on the defense’s recently filed motion in limine and memorandum of law in support,  the motion and memorandum were certified to have been furnished by Jose A. Baez, to the Office of the State Attorney by U.S. Mail and/or  facsimile on November 18, 2009. But, both the motion AND the memorandum were signed as submitted by Jose A. Baez and Andrea D. Lyon, again, on November 18, 2009.

WFTV legal expert Bill Sheaffer

Filing and publicizing the  latest  so-called ”Motion in Limine”  by the Anthony defense team, which would now seem to include Brad Conway, lawyer for George and Cindy Anthony, is an all-time low on a grand scale, even for this crew.  This so-called defense tactic, designed to shift the focus of blame away from their client Casey Anthony, is neither new nor unusual in this case.  It seems to have begun with allegations against Zenaida Gonzales, then, Jesse Grund, a former Casey boyfriend, to now a very vicious and public attack on an innocent citizen, former Orange County employee, Roy Kronk, the poor soul who had the misfortune to discover Casey Anthony’s handiwork of her little girl’s body dumped like garbage in the woods.

Casey’s defense lawyers would have us believe that Mr. Kronk killed the child and dumped her body in the woods so that he could later claim to “discover” the body for some financial gain, all the while risking becoming a lead suspect in her death,  subjecting himself to prosecution therefor, and the possibility of the death penalty.  Of all the allegations contained in the subject defense motion, there is not one scintilla of evidence connecting Mr. Kronk to the Anthony family, or little Caylee, prior to her death.  Instead, the motion contains nothing but a series of nasty attacks and allegations from individuals, all of whom have clear and obvious motives to fabricate and spin their recollections, regarding Mr. Kronk’s past.

I find it very telling that not one of these allegations levied against Roy Kronk had been made to either a law enforcement or other governmental agency, prior to the defense investigator’s inquisition.  Before we proceed further however, I think it important to address this so-called “Motion in Limine” for what it is.  A proper motion in limine, as the title suggests, is a request to the court made pretrial to exclude certain matters from being introduced, or even referred to, at trial. What a motion in limine is NOT is a request to INCLUDE certain matters at trial, which is exactly what the defense has done here.  Now, either these lawyers don’t know proper pleading mechanics, the Florida Rules of Evidence, the Florida Rules of Criminal Procedure, do not possess a Black’s Law Dictionary, or they have another agenda in filing this. Well, let’s just call it an inappropriate motion.  I believe it may well be the latter, although, it could well be the former, based upon their earlier filings.

This motion is nothing more than a blatant attempt to deflect and misdirect the court of public opinion from the stack of evidence against Casey Anthony, to the vilification of an otherwise innocent, but perhaps less than perfect, former public employee, by dragging up alleged garbage from his past.  By filing this motion and immediately traveling to New York to hype it  on the national morning show(s) might cause one to wonder just how easily lead they think the rest of us are.

Kronk’s past is totally irrelevant to the issue of who killed Caylee Anthony.  Ironically for the defense team, this attempt has fallen flat.  People are angry that these lawyers would drag this man through the mud and find this tactic appalling in its manner and approach.  One expects a vigorous defense from an attorney, but not at the expense of an innocent witness in the case.  It is yet to be seen what affect this out of court attack upon a State’s witness will have in the future upon the willingness of others to come forward to do the right thing. Hopefully our compassion for, and sense of responsibility to our fellow-man is greater than the effects of the outrageous conduct on the part of the Casey defense team.

Some of you may have read about, or may even remember a time when a United States  jr. senator from Wisconsin (1947-1957),  by the name of Joe McCarthy, was publicly accusing innocent citizens of being Communists.  Through his very public, highly-publicized and nationally-televised attacks, many innocent persons’ lives and careers were damaged or destroyed.  Finally, Joseph Nye Welch, a lawyer of one such victim,  had the guts to stand up at a senate hearing and asked  McCarthy: “You’ve done enough.  Have you no sense of decency, sir? At long last, have you left no sense of decency?”

As officers of the court, Mr. Baez, Ms. Lyons and Mr. Conway, have you no sense of decency?  Stop these tactics. Our system of justice, its participants and the rest of the citizens observing  this case  deserve better.

WJS

We still have a long and winding way to go until trial commences in this case. And, as you saw late yesterday (with the defense motion accusing witness/meter reader Kronk) there seems to be no end to the surprises arising  from either side.  So, again, while I do not foresee perjury or obstruction charges against either of the Anthonys any time soon, anything could  happen, before or even after, Casey’s murder trial.

WJS

When questioning potential jurors during the jury selection process (known as voir dire), the judge, as well as the defense attorney, will spend a considerable amount of time discussing that particular right, making sure that it is well understood by prospective jurors.  Should an individual be chosen to serve as a juror, that juror must promise, under oath, when arriving at his verdict,  not to consider the failure of the accused to testify on his own behalf.  Lastly, at the conclusion of the case, before the jurors are allowed to return to the jury room to deliberate,  they are given by the judge a set of  ”jury instructions”‘(legal rules utilized in reaching a lawful verdict).  Contained within those instructions (if applicable) is one which generally states that the defendant has chosen to exercise his fundamental right not to testify in his own behalf, and that the fact that the defendant has so chosen, cannot and must not, be considered in reaching a verdict.  To do so, would be a violation of  the  jurors’ solemn oath to follow the law and  their verdict, a true miscarriage of justice.

Next time, let’s discuss another topic of  considerable interest to many of you:  why is the State Attorney’s Office not charging the Anthonys with perjury?

WJS

So, on to a question from Brenda aka Rileysmom:  “What would be the grounds that the Defense could use to tear Amy apart in Casey’s check forgery trial?”

ANSWER:  The traditional, or textbook method of cross-examining a victim/witness on the stand,  is to attack her on the basis of any bias, interest or motive she might have in testifying as she will.  Further, although a stretch, the Defense may try to show that Amy somehow participated in Casey’s crime and received some benefit herself.  As I say, a stretch at the least, and an act of desperation at worst.  And remember, the burden of proof  is on the Prosecution to prove the case to the jury through admissible evidence, beyond a reasonable doubt.  So the Defense will likely challenge the legal admissibility of any evidence offered by the Prosecution.  You should know that the Defense will have taken the pretrial depositions (sworn statements under oath) of all witnesses with any knowledge of these charges.  From those depositions, the Defense is able to learn what, if any, actual defense they have, that has a credible chance before a jury.  Under normal circumstances, this kind of case would not be one that a defense lawyer would take to trial.  Instead, most lawyers would try to work out a plea deal.  But, because of the potential negative ramifications a plea disposition of this case would have to the murder case, that may not be considered by the Defense to be a realistic resolution of the fraud/forgery case.

There is an old defense lawyer adage:  when you don’t have the law on your side, argue the facts; when you don’t have the facts on your side, argue the law; when you have neither, attach the Prosecutor; failing that; pray for a miracle.  I would imagine the Defense is doing a lot of praying on this one.

Until next time, I’ll keep looking for your questions and comments.   So thanks for making it easier and more enjoyable for me by cutting back on negativity.

Next time: “If Casey doesn’t take the stand, wouldn’t that make her look guilty of her charges?”

WJS