Trial By Ambush
Wednesday, September 1, 2010 at 12:02PM PART I
I hate being late to anything, but on Monday, so many people were present at the courthouse waiting to go through security, it was a full 9 minutes before I entered courtroom 19D, meaning that I was 9 minutes late since Chief Judge Belvin Perry, Jr. is a stickler for being prompt. When a hearing is set to start at 1:30, it starts at precisely that time. Courtroom 19D holds some bittersweet memories for me, too. It's Judge Strickland's courtroom, and the one where I was called up to meet him on that fateful October day last year. Alas, life goes on, but it's a date I will never forget.
What ensued on Monday was a heavy dose of the reality of Judge Perry's courtroom and a taste of things to come. One of the strongest statements he made and one that's clearly set in stone is that he will not budge when it comes to the timeline. On May 9, 2011, jury selection will start and exactly one week later, on the 16th, the trial will begin.
The reason for these status hearings is to keep both sides on schedule and to ensure that they share information with each other and get everything synchronized or suffer the consequences. “I would not want me setting your depositions,” he said. “I’ve been known to do some weird things like working on Saturday.”
One of the issues Jose Baez addressed was the timing of the state's release of discovery. He cited one example. Erica Gonzalez worked as a shot girl at Fusian Ultralounge. She told OCSO Cpl. Yuri Melich that she spoke to Casey on the phone on July 15, 2008, and heard her talking to Caylee.
Jose said he didn't receive this information until July 22 of this year, over two years later. Linda Drane Burdick responded that there are plenty of times witnesses take too long to respond. For example, PI Dominic Casey took forever to turn in documents and it took a week to scan all of the papers for release.
The defense turned over an amended witness list containing 63 Category A witnesses. The judge reminded both sides of their deadlines. Linda Drane Burdick mentioned that 300-500 more pages of discovery are coming, but they would be mostly bank records of no significance to the defense. She still needs to copy Yuri Melich's hard drive, she added.
The prosecution wondered how 35 people could possibly be deposed in one day, as stated by the defense. Cheney Mason piped in that he would get it done on September 15 as scheduled. Some might be a mere 5 minutes long. What I noticed during this exchange was a friendly banter between Mason and the judge. Quite clearly, the two men had experience with each other and were, no doubt, comfortable and aware of each other's unique personalities, strengths and weaknesses. I will elaborate on this at a later date.
When the defense filed its NOTICE OF STANDING OBJECTION OF ABUSE OF FLORIDA STATUTE 119.01, the judge interpreted it as meaning it was not requesting a hearing, but instead, stating on record that it objected to the media and public's right to know. Jose Baez concurred. The Orlando Sentinel filed a MOTION TO INTERVENE FOR THE LIMITED PURPOSE OF OPPOSING DEFENDANT'S STANDING OBJECTIONS OF FLORIDA STATUTES CHAPTER 119.01. If this sounds complicated, it's not really. It's more of a formality on the defense's part and opens the door for a gag order later on, which Judge Perry will, most likely, write as the trial nears. This will be in order to keep potential jurors from reading about the case so close to jury selection. Mason brought up Murph the Surf, which addressed media coverage. Jack Roland Murphy was a famous surfing champion, musician, author and artist before his convictions; one being his involvement in the biggest jewel heist in American history at the American Museum of Natural History, and the other being the first-degree murder of Terry Rae Frank, 24, a California secretary. From lectlaw.com, Heidi Howard:
The Court examined the totality of the circumstances, and found that if the jurors were actually, provably prejudiced by pretrial publicity, or if the "general atmosphere in the community or courtroom is sufficiently inflammatory," the community sentiment can be so poisoned against the defendant "as to impeach the indifference of jurors who displayed no animus of their own."¹
In other words, the media may be restrained from reporting, at least prior to the impaneling of a jury in a criminal trial, when pretrial publicity is so pervasive that it, more than likely, would have an effect on jurors.
A final edict made by Judge Perry was that all future motions will be heard within 15 days of filing. This is the nature of this judge. Move, move, move! I wouldn't be a bit surprised if he keeps a fully charged cattle prod at his side behind the bench, waiting to use it.
PART II
One of the most compelling statements made by the judge was that the state of Florida has discovery rules that include trial by ambush. Trial by ambush? What's this all about?
In Florida, the standard trial order entered by most judges is that 45 days prior to the trial getting underway, both sides must submit to opposing counsel a written list of the names and addresses of all witnesses, impeachment, rebuttal or otherwise intended to be called at trial. It means this is the complete list of people who will be permitted to testify. It's intended to keep either side from suddenly finding a witness and surprising the other side. In this case, an act of this nature amounts to trial by ambush. Most judges will not allow it. Any witness not previously disclosed won't get near the courtroom unless certain circumstances warrant it. An example would be if the party diligently tried to find a witness and failed due to not being available until trial.
Another aspect of trial by ambush includes other discovery, as well. Discovery enables both parties to know before the trial begins what evidence may be presented. This way, one side doesn't learn of the other side's evidence when there's no time to obtain anything to respond.
In 1981, the Florida Supreme Court set the standard for the requirements of pretrial disclosure (See: Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). It gave trial courts ammunition to deal with faulty pretrial disclosure. In Marine Enterprises v. Bailey, 632 So. 2d 649 (Fla. 4th DCA 1994), the Fourth District Court approved the trial court's striking four witnesses for violations of the pretrial order.
“In exercising its discretion to strike witnesses not properly disclosed upon pretrial order, the trial court may consider such factors as: whether use of the undisclosed witness will prejudice the objecting party; the objecting party’s ability to cure the prejudice or its independent knowledge of the witnesses’ existence; the calling party’s possible intentional noncompliance with the pretrial order; and the possible disruption of the orderly and efficient trial of the case.
Compliance with pretrial orders directing proper disclosure of witnesses eliminates surprise and prevents trial by ‘ambush.’ Binger, 401 So. 2d at 1314. Counsel who disobey a trial court order entered months earlier should not be rewarded for their conduct. Pipkin v. Hamer, 501 So. 2d 1365, 1370 (Fla. 4th DCA 1987).”
As a matter of fact, trial by ambush has been discouraged since the state of Florida adopted its rules of procedure in 1954. Judge Perry is well-versed in procedural law, and the fact that he brought it up at Monday's hearing means he plans on abiding by the rules. Remember: 45 days.
On a final note, one thing I understood from attending the hearing was the judge's determination to impress his rules on both sides of the aisle, not just the defense, as many people believe. I saw no discrimination or favoritism. He treated the two sides equally and he had words to say to everyone involved. He doesn't want to hear petty arguing or sniping, either. Such is the manner of any good judge. In this case, there's no doubt in my mind that what we have here is a great judge who will play Solomon if and when it's necessary. Of course, I never expected any less from Judge Strickland, so in that regard, nothing has changed. As the hearing progressed, I got a sense that the light at the end of the tunnel is coming into view. It's no-nonsense from here on out. When Linda Drane Burdick asked the court if closing arguments could be split between all of the attorneys, state and defense, that little tunnel lit up, and I liked what I saw. Justice was shining at that other end.
Dave Knechel | tagged Binger v. King Pest Control, Erica Gonzalez, Fusian Ultralounge, Marine Enterprises v. Bailey, Murph the Surf, Pipkin v. Hamer, Trial by Ambush | in Capital Punishment, Casey Anthony, Caylee Anthony, Cheney Mason, Chief Judge Belvin Perry, Dave Knechel, Death Penalty, Florida’s Government in the Sunshine, Frank George, Jeff Ashton, Jose Baez, Judge Stan Strickland, Linda Drane Burdick, Marinade Dave, Marinade Dave’s Caylee Anthony Posts, Ninth Judicial Circuit, Orange County Sheriff’s Office, Yuri Melich | Share Article 
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Reader Comments (135)
Hi, Katherine - Yes, it is easier to understand him in the courtroom, but he does tend to mumble a little, and he's not always facing a microphone when he speaks.
Thank you for enjoying the blog. I really get into going to the hearings so I can come back and write about them.
Well I guess that Caylee could not have been dropped off at Sawgrass with the nanny. She just appeared out of the blue and ended up in the car with Casey on July 15/08? What was it that Erica heard Casey say to Caylee? Was it sit down? So then Casey didn't have Caylee strapped in her car seat where she would have been sitting down ? I expect to hear that Wanda Wier was at the airport with her puppies and Caylee just trotted off with her. I am doing my best to sound sarcastic.
Erica appears to be just another young lady who lacked attention and wanted to insert herself in this case. What a crock!!
Thanks, dadgum. I don't mind doing the work at all.
Snoopy? You? Sarcastic? NOOOOOO!
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Hi Dave,
This was an interesting and informative post as usual. I also really liked your last post, "the loud bark of low heeled derelicts." I look forward to reading your posts and the readers' comments and regret having had too busy a week to read them as promptly as I would have liked..
I trust your reporting more than the reporting I see on the computer for the various TV Channels and newspapers. I like the fact that you give the Anthony family a fair shake. We are all definitely opposed to and horrified by what we think that Casey did, but that does not justify going into blind rants about the Anthony family and some of the vile unreasoned name calling even about Casey. I don't bother to read comments on other web sites because I found them too offensive earlier. I think you have attracted a more civilized group to your website or blog.
Sorry ladies, he was waving at me. I was afraid you were not coming. There didn't seem to be a lot of people.Do judges discuss cases, if so I;ll bet judge Strickland has a deep sense of relief every day . Thank you dave for another great session. You and your other bloggers make this a wonderful site .Thank you every one.
dadgum, When you asked if it creeped anyone else out about Caylees name being part Casey and part lee, Caylee, I never even noticed that before. And you think your'e paying attention to every little detail. So I feel stupid, but yes it is strange, like everything else in this case!
Hi, Amber! I like to be interesting and informative... and entertaining when I can, so that's nice to hear. It's too bad I had to write the post about the trolls, but they are a scourge and that charity didn't deserve that sort of harassment.
I'm flattered that you trust my reporting over mainstream media. Thank you for that. I think it might be because I can put more emotion into what I write. As for the type of people I attract, yes, I agree with you. Very early on, I refused to allow trolls to use foul language and call people disgusting names. Those are the people who attacked the charity, and I'm certainly glad I saw through them right from the start.
Hello, Margaret - From what I've noticed in the past, those status hearings don't attract a lot of people, but I sure am glad I went. Do judges discuss cases? I don't see why not, but it's probably nothing the public would ever know about. In my opinion, Judge Strickland is relieved. A death penalty case is not something any judge would wish for, and civil court is a lot different than criminal. Thanks for enjoying my blog and all of the people who contribute here. It's a very nice group, and that includes you!
Yes, I was waving at you.
Hello Dave,
After reading all of the comments on this post I have reviewed my comment about the "if" and "when" of conviction. I appreciate the fact that you strive to be fair and report the facts alone. I am going to try to take a page from your book and try to concentrate on the facts more and less on my personal feelings. I am aware that a conviction is not a slam dunk in this case, just as it was not in the O.J. Simpson case.
I will try to hold my feet to the flames a liltle more,
Hi Dave
I think your reporting is definitely better than most of the main stream media but I don't think it is because you put more emotion into it than they do. I do believe that you care more about Caylee and other vicitms than they do but it doesn't show up in an emotional way. You are not one to say intemperate things about Casey or the Anthony's because you are overwhelmed with outrage over what happened to Caylee. You seem to report on the facts and explain things in a clear balnced manner. You don't let outrage take conrol of your terminology. It takes a lot of emotional balance, intelligence, and integrity to write the way that you do. The emotional and vituperative sensationalism that is found in some other places is a lot easier to produce than the balanced evaluations and explanations that you give.
Overall the whole Erica Gonzales thing doesn't help the Defense any, does it? People (Jurors) are just as likely to think- Ah, that's where she got part of the Nanny name, Huh? So I guess Jose wasn't looking none too closely at Casey's phone bills, then, was he?
One thing is certain, Amber, I can't be filled with hate. I don't hate the Anthonys or anyone else. Where a lot of people spend hours each day bashing them, I don't see the logic in it. I remember when my father used to scream at the TV when politicians came on he disagreed with. I told him that if he dies from a heart attack while screaming at the TV, the people on the other end aren't ever going to know, nor will they ever care. It's just a big waste of time and not good for his health. Eventually, he came around to that understanding As for Casey, YES, I want justice for her daughter's senseless murder, but not at the expense of my health. The court system is responsible for that and my job is to report it as fairly as possible. There are some very ugly people out there, but plenty of them are the trolls on the Internet. They are just as bad as the people they blame. I've got to remain levelheaded, and I do care tremendously about Caylee. Thanks for understanding.
It's a mystery, Karen. I don't see any role Erica could play to bring about a positive outcome for the defense.
Well done, yet again - this type of reporting is exactly what I have come to expect from you, concise, factual, insightful and personal. You are hands-on with first touch experience there in the Orlando courtroom.
I too can see a hint of the light at the end of this long dark tunnel which we all began tumbling down that evening in July 2008 when Headline News proclaimed ''Florida Toddler Missing".
How will this end?
This also goes against what Casey told LE on July 15th. She said she spoke to her daughter on the phone for about a minute early in the day. There was nothing about Caylee being in her car that day. Once again Casey is lying. This girl could go down in the Guiness Book of World Records for her renowned lying. I wonder how Jose (or any attorney) could defend a client who lies so outrageously.
Great reporting Dave! Have you had a Honey Crisp apple. They are popular up here in MI although it's not quite the season yet to harvest the apple. The Honey Crisp is the best apple I've ever eaten. Super sweet, juicy, and very crisp! If you can't get them in FL I'll send you some when the fall harvest is in. I'm blessed to live l mile from a cider mill where they grow apples and other produce.
Dave, I just now had a chance to reads your newest post. Thank you for explaining just what was going on in the court room. I for one really appreciate how you write your articles. You include the intricate parts of what the Judge, Defense and the State say and what they mean. Anyone can go into that court room and say what they think went on, but since you actually know the law, you make it a much nicer read.
The one thing that Jose always says at every hearing is: "this is an on going problem". Doesn'T he get tired of saying that? I am sure the State gets tired of hearing it. I wonder. What about all the "on going problems" Mr. Biaz seems to have? It is like he is tattling on the State for things they have not done. He really should have his own house in order before he starts on someone else.
I can see how Casey would pretend that Caylee was in the room or car when she was talking to someone. But when she said "I have not seen Caylee in 31 days", she just made one huge problem for herself, among many.
Thank you Dave for your amazing journalistic abilities, we are so lucky to have you here.
Honest to God, Peggy, if she says she has black shoes on today she's most likely barefoot! Seldom does such a bald-faced liar come sashaying along, with her air of being slightly put out that she has to deal with investigators...
Karen, I think what gets me the most, is Casey was doing this for years. She did not wake up on June 15/16 and say," I think I am going to have to learn how to lie really good to get away with this". Why would anyone want to be friends with someone like Casey, much less have sex with her? I guess there are just some people out there that do not care who they are friends with. Granted she could have gotten away with a lot with her friends but they had to know at some point that she was probably the looniest person they ever met. Cindy and George knew she was stealing, knew she was lying, wondered if she had a job and yet they did nothing to stop her and now they are literally trying to help her get away with murder.
It is going to be very interesting when this trial starts, just trying to figure out what the Defense is going to try and defend Casey.
Dave, have you read The TV Guy today. Geraldo Rivera is having a segment on his show this week-end about Casey. He is praising his old friend Baez and saying Casey is being overprosecuted.
Hi, Sara Jane - I had to run errands today and that's why I'm so late getting back to you. I'm glad I am reporting up to your expectations. That's good news. I try to be fair in my posts, too, but I'm only human. At the same time, I enjoy being able to attend the hearings and report on them, so your words really do encourage me. Thank you for that.
I guess when LDB brought up closing arguments, that's when the light hit me. From here on out, it will only get brighter.
That's at least three versions, Patti O. 1. Missing for a month, 2. Had her in the car on thee some. way to the airport, and 3. Talked to her that day. The real truth? None of the above.
No, I've never had a Honey Crisp apple that I am aware of, but I sure would like to try some when they're in season. Let me know when they're ready to be picked! And thank you for offering to send me some. That's very sweet of you.
Thank you, Peggy, and you know how much I enjoy being able to attend the hearings and write about them. I'm sure I miss a few things here and there, but I do my best to pay attention and to pick up on little nuances. As for my amazing journalistic abilities, that's very nice, but I am very humble.
Margaret - No, I haven't read about that yet, but I'll go over there now. Thanks.
Margaret, I think Geraldo is on something LOL. Why would he think that the State is making a big mistake by going for the DP? The jury does not vote/discuss on the DP until after they give their verdict, Guilty or Not Guilty, does Geraldo not know that? I also did not get why he thought all Casey should get is 10-15 years and with time served. Why not just let her out now, forgo the trial Geraldo, save Florida some money. I am curious if he has actually read everything we have and actually knows how much evidence is out there? Somehow I do think he missed a few things in this case for his irrational thinking.
Judge Perry Issues Deadlines In Anthony Case
Another great post! Tks Dave!
Mary Jo, the link does not appear to be working,
Geraldo Rivera: ‘Dimwit’ Casey Anthony ‘did it’
I am going to sound like a broken record here. Casey will never get the DP. The only reason the DP is on the table is so they can panel a death penalty jury and almost guarantee a sentence of LWOP. If the defense is successful in getting the DP off the table, Casey could end up charged with manslaughter which I believe carries a max of around 10-15 and she could walk in about 6 yrs.
Well, there you are, Toasty1. Great to see you, and thank you very much.
Ain't no way this case will ever be dropped down to manslaughter. She'll either be convicted of 1st-degree murder and sentenced, or she'll walk.
Phooey!!
I agree Dave, she will not walk but she sure will not get 15 years.
I have said it before too Snoopy, you put enough older women on that jury and they may go with the DP. When a young woman murders her baby and then does not report her "missing" but parties for 31 days, then that is not going to go over very well with the female juror. I myself am just sickened by this case and have been since day one.
I don't think the charge can be reduced to manslaughter in a capital murder case. I'll have verify that.
Knechel~~after you verify things, will you let me know that I was right? If the DP comes off the table, LWOP and Manslaughter are the next two options.
Peggy, here is that link again. Let's hope this one works. Sorry about the other one.
Judge Perry Issues Deadlines In Anthony Casey
Snoopy dear Snoopy, the DP is not coming off the table, not now, not ever.
Ah Mary Jo, you do not have to apologize. The linked worked, thanks.
When I put one of those link thingy's in I always click on "Preview Post" to make sure it goes through.
Peggy~ ~ keep in mind that we have Cheney Mason as the qualified death penalty attorney on board now. I do not have a crystal ball but I try to keep an open mind that this case can do a 180 before May.
Oh Snoopy, do not even think that much less say it. Just the thought of this case going any direction but putting Casey in prison for life, is not something I will ever think of.
Mr. Mason may have something, but I do not think it is going to be enough to keep Casey from going to prison for life. He may be able to spare her from the DP but I do not think he can get her a Not Guilty verdict. When they put George on the stand and he says that the car smelled like a dead body was in it, how will Mr. Mason take care of that?
Nicely written post Dave. I for one am happy to know that we will not have a defense "Perry Mason" moment during the trial.
I was thinking about Amber's recollection that Casey was talking to Caylee on July 15th. Two things came to mind. #1 - Casey was living in some seaprate reality and some how thought Caylee's spirit was hanging out in her car (which I doubt). Or as has been mentioned, Casey was deliberately using her friend as a "witness" to Casey talking to a live Caylee, which is most likely the case.
I don't see the prosecution offering a plea deal in this case. They will allow this case to move forward and let the jury determine Casey's fate. That does not mean that Casey won't "plea to the bench" in hopes that Judge Perry will spare her life. But, I don't see that happening either. She will take her chances with a jury.
Peggy ~ ~it just takes one little tecnicality to cause a mistrial. Mr Mason has his spy glass at the ready. Cheney is not in this for the money and all the time he is on the defense team, my guard will be up.
Good post, Dave. Yes, be as humble as you want but you are quite talented !!!!
I always have believed the old saying: "What Peter says about Paul says more about Peter than Paul." My point is that not allowing a total bashing of the Anthonys or Baez, etc. says a lot about your character. Judge Strickland had it right (of course).
I must add I waited with anticipation to watch Judge Perry !!!! The attorneys best be getting their stuff together...lol.
Thank you, Sempre Invictus. In my mind, Casey was formulating a cover-up plan, but she never put one together that was consistent. Therefore, her own words are what tripped her up. It wasn't cohesive. I don't see this case as anything but murder, and it will be up to the state to prove it, not that she didn't.
Hello, Newbie! You know, if you look at all those trolls that came to my blog early on in the case and where they are today, it proves beyond a boubt I made the right choice with them. They have no character. Thank you for your positive thoughts. All that bashing is unhealthy.
Really great article dave and like others said very informative in the way you explain what is going on in courtroom. I don't believe Casey will "walk away " from her trial, I believe she will be convicted, but I do not believe in the DP but would hope she would get LWOP. I think the only way Casey could get less than LWOP is if they prove she is insane. The defense never leaned in that direction at all I would think they would have by now if they were going with that defense. I don't think Casey would allow it, I think she belives she will be freed. Could the defense make a complete turn around as trail gets closer and go with an insanity defense? Jurors would find that quite hard to belive since all along they have not said that. Wouldn't the original psychiatrists who first spoke with Casey would have told the defense that? I can't imagine they could just come up with that when the defense felt like going in that direction. In Susan's Smith case her husband said he knew something was wrong with Susan, and he thought perhaps he should have not left her alone. She also had a history of being unstable. Casey can't pick this out of her hat can she?
Hi, Barbara - Casey will be not be deemed incompetent to stand trial. Perhaps on appeal, but it will take years, and only if she's convicted and sentenced. She will fight this to the end. I'm reminded of a murder case in Orlando that occurred in 1997. I may write about it because it has two people in it who are directly tied into this case. It might give you an idea of how this might play out, but absolutely not! She can't pick this out of her hat.
Hey! Thanks for enjoying the article.
Kronk's Lawyer Wants His Name Off Of Witness List
It looks like Misty's BFF is getting 15 years, wonder what Misty will get.