Bill Sheaffer Answers Your Questions

 

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 Malcaluso has withdrawn from the Casey Anthony case, can he be called as a witness for either the prosecution, or the defense?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.

INTERROGATORIES, QUERIES & BURNING QUESTIONS

Well, I’m back.  And  you all certainly have a lot of questions, so let’s get started.

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

Submit Questions For Bill To Answer

Bill Sheaffer is going to answer questions from users in an upcoming post and would love to get submissions from his blog fans. Please submit your questions, regarding the case against Casey Anthony, as a comment on this post only and we’ll take the cream of the crop to answer in a post next week.

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

No Cake For Casey

In my last post, I gave you one option not taken by Casey Anthony’s defense team.  As you know, Miss Anthony pled guilty to all 13 counts in her check fraud case and came away with 6 felony convictions.  In this, the second part to that post, I promised another scenario that was available  to the Defense, wherein Casey could have had her cake and eaten it too.

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.

MONDAY, MONDAY…

Judge Strickland had made it very clear on numerous occasions: the criminal check charges pending against Casey Anthony will be resolved via a trial or a plea, on or by Monday, January 25, 2010. A trial was widely anticipated by most observers. However, based upon reliable information and observation of the conduct of both the State and Defense, all indications now point to a change of plea as opposed to a trial.

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