We have come to the conclusion of another preliminary round, to the now rapidly approaching main event in the case against Casey Anthony. The recently completed evidentiary motion hearings, together with next week’s commencement of the Frye hearings (the battle over the admissibility of forensic evidence) will arguably be the most critical of the pre-trial skirmishes. Having attended the motion hearings and the arguments of counsel, I have a few observations and a prediction or two.
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.
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.
As predicted, yet another of Casey Anthony’s defense lawyers is jumping ship. Linda Kenny Baden recently announced, with considerably less fanfare then when she entered the case, her notice of intent to withdraw from the now, somewhat beleaguered defense team. Although Ms. Baden cited financial hardship as the reason for filing her motion to withdraw, one could certainly question whether it was for perhaps a more ignoble reason, like, say, having exhausted the opportunity for self-promotion and publicity. She and other quitters, who likewise climbed aboard to take complete and utter advantage of the local, state, national, and international media coverage of the Casey case, have abandoned Miss Anthony now that the real case work has finally commenced.
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.
The rumors are not true. I am not dead, nor in the Witness Protection Program, nor have I abandoned or lost interest in our blog. While it is true that the personal injury side of my law practice has kept me beyond busy, the fact is, as well, there has been little to say of late.
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.
While reading some of your comments this Sunday, I ran across one from Bees Knees in which she provided Judy PC, a link to a case that seemed to indicate that the State Attorney’s Office could withhold certain evidence from the Defense until trial, just as long as it is not evidence helpful to the Defendant. Recognizing Bees as one of our blog contributors that is always on the cutting edge of current information, I went to the link she supplied. I found a 2001 revised Florida Supreme Court opinion in the case of Hoffman vs. State of Florida, which discusses the issue of the State’s failure to disclose evidence favorable to the Defense prior to trial in a death penalty case.
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.