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)
Mary Jo~~thanks for the link. So Cheney Mason says he can put anyone he wants on the witness list.
Here we go Mr Mason, haul all of your tricks out of the bag. David Evans is going to Judge Perry unless the defense takes him off the witness list. He is not going to bow out like Brad Conway. I think Conway wanted an excuse to get away from Cindy.
If Evan's name is not taken off the witness list, he could be disqualified from being Kronk's lawyer.
What would David Evans, Roy Kronk's attorney, have to help the defense that would not be considered attorney/client privilege?
Mr Mason must be taking a refresher course in law from Baez. I guess desperate people will try any ploy to enhance their ego.
Snoopy, I can't figure out why they would want to call David Evans as a witness either unless it is so he can't represent Roy Kronk anymore. I wouldn't put it past the defense to do it for that reason. I hope Judge Perry will tell them they can't do it.
Mary Jo~~it seems to me that Cheney Mason is trying to push his weight around. Evans seemed to indicate that he will put up a fight to be taken off that list. If it does go to Judge Perry, Mason is going to have to tell Perry what it is that Evans may have in way of evidence. I can't imagine what that would be.
I would think that anything after Kronk engaged Evans as his counsel, would be considered work product and attorney/client privilege. I just can't figure this one out. Maybe when Dave has a free moment, he can enlighten both of us.
Mary Jo, Cheney can't put David Evans on a witness list just so he can have him disqualified. Things just don't work that way. LOL
This is one intriguing case and must be like a gold mine for law students.
It will be interesting to see how this one plays out. I think it would be considered work product and client/attorney privilege too.
Hello fellow Marinaders! Great post as usual Dave, I wasn't able to see all of the hearing so I really appreciate your summary, but I did see enough to notice you were wearing my favorite shirt *wink* All lot of great comments to read too. I started taking notes so I wouldn't forget to say anything or repeat things already said.
My first thoughts are concerning Casey's phone call with Erica. With tongue in cheek :^) I'll say that Casey said she had a call from Caylee around noon on July 15...remember just long enough for Caylee to read to her...perhaps she picked Erica up on a conference call. LOL Of course not....but seriously I do have a theory about why she would want to establish Caylee was with her on the 15th....I don't think her original plan was to claim the 31 days story, she likely made that up under pressure because the cops were coming. I'm sorry I don't remember the fellow's name in CA, I'm pretty sure Snoopy will know...was it Mark Hawkins? I think Casey was planning to head to CA, she told her friend out there she had a lot to tell him when she saw him. She could say her parents had Caylee to him and to everyone in FL Caylee would be with her in CA. She was just firming up her lies for later. I don't think she knew that her car was impounded until later in the day, if at all....somewhere her plans got "beyond tangled". Does that sound familiar? ok so much for that theory, just tossing the idea out there.
My next thoughts were about the conversation regarding the penalty if Casey is convicted of 1st degree murder. I tend to think she will get LWOP unless they get more concrete evidence....I know Scott Peterson got the DP on less circumstancial evidence than they have in this case....but I wouldn't be surprised if the the young pretty white girl got a break. LWOP is ok by me. Concerning the discussion about lesser charges the third count of the grand jury indictment is aggravated manslaughter. If the jury hung on the 1st degree murder charge, they can move to the lesser charge. If she is convicted of 1degree murder the agg. manslaughter goes away. I don't think it can be both. Just as a refresher here are the 7 counts in the indictment:
First- degree murder
Aggravated Child Abuse
Aggravated manslaughter
4 Counts of Providing False Information To A LE Officer
As far as I know all of those counts remain. I think the Agg. Manslaughter is why Casey wouldn't go for a plea if one was offered, but that's ok, I would be shocked if anything lower that LWOP would be offered.
Darn! I just wrote a post that took me a half hour but I forgot to sign in :( Well hello everyone anyway! It will be let out of moderation eventually :)
katfish~ ~ what a sin! I will look forward to reading it tomorrow. I expect that Dave is sawing wood by now.
Ha nope it posted above this...it wasn't there when I logged in LOL
I'll try to check back later or tomorrow if I get sidetracked. :)
katfish~~ great comments. Yes, his name is Mark Hawkins and he is in the military in CA. Thanks for explaining the penalties. If she is convicted of first degree murder the sentence would be the DP or LWOP. I was saying that if the DP was taken off the table before the trial, then it would be LWOP or manslaughter ( aggrevated). Is this correct? I cannot see Casey getting the DP with the evidence we have been privy to, thus far. I think the defense will make quite a presentation of mitigating circumstances in the penalty phase. This is when Cindy will wish that she could hide somewhere.
The outer edge of Hurricane/Tropical storm Earl has just arrived. It is just after 2 am and we have seven hrs to go before it is due to make landfall. The winds are still hurricane force at 100-120 km/hr. Fingers crossed that it will slow down more before it makes landfall.
Hi everyone!
This is a great discussion you all have going on here... I think the Defense is still going to go for the "innocent" option. Just Casey's behaviors right from the start shows she does not bow down or bend to anyone including authority. I don't think that she would have any problem looking straight into the jurors' eyes and say "I'm most definitely innocent". It's just her nature. She has the sly/shy smile and uses her eyes to w/o information. She will never let you see her sweat. The only time she shows emotion (for herself) is when she is not getting her own way...for example the jail house phone call where she wanted Tony's number but no one wanted to give it to her...and the jail house visit with her mom/dad where her mom was trying to get info out of her. That kind of emotion she shows at those particular times is the type that says "STOP, leave me alone, this is what I want, not what you want". She is used to using those emotional outbursts to get her own way. Another example would be when Mr. Ashton was giving his version of what possibly happened to Caylee in court...Casey turned her face into AL and said "make him stop". She didn't have control over what he was saying. You will likely see more of these behaviors when the prosecution presents it's theory in trial.
As for the Death Penalty...I'm still tied up with issues about it...those that willingly take the lives of others that are not acting in self defense do not deserve to be handed everything either. The old chain gang thing is still appropriate for these people in my opinion. They should be sentenced to LWOP with hard labor. They should have to work their debts off to society with 8 hours of hard labor daily, not sit in a jail cell watching tv or playing cards, etc. There is really not a big deterent available to make people really think before they commit some acts. Some of us believe that the deterrent is sitting in a cell, (those of us who are used to working and socializing "normally"). But what about those who have never had to "give of themselves"?
I know a lot of people think that this case will rely heavily on the forensic evidence. However, I also believe the jury will want to hear her rebuttal more than anything. It is one thing to sit there and listen to a bunch of experts list off the available evidence...It is another, especially when the victim is a child, to hear what the defendant (in this case the mother) has to say. I realize that putting Casey on the stand is not an easy decision...but in this particular case, I think it would be in her best interest and here is why.... Yes, if she takes the stand, the Prosecution is going to go all out on her...but the jury is going to hear most of the evidence anyway... Whether she takes the stand or not, the forensic evidence is going to do most of the talking...circumstantial or not. If she takes the stand, it A) shows the jury that she is willing to fight for her life and B) tells the jury that she believes in herself not to hide behind the lawyer(s). This is not true for all cases but we are talking about a child who was murdered in cold blood and dumped in garbage bags in the woods. Even if she is loses it on the stand, it shows some type of emotion or remorse. Jurors have a lot of things to take into consideration when making their decision...IMO, if she just sits there and says nothing like she's done all along, that says a lot. And...where has that gotten her so far? Caylee will be speaking through the Prosecution and the forensic evidence throughout the entire trial.
~Snoopy & those lying in wait of Hurricane Earl~ I wish you well and hope that H.Earl will take a last minute turn away from your homes. Stay safe and know that we are praying for the best possible outcome. Hugz!
Button down the Hatches Snoopy!
While I think the most entertaining thing in the world would be Casey on the stand I can't see it happening. She can't answer questions without them sounding bizarre or not making sense. I think if the prosecution were to cross examine her she would come across as a huge idiot to the jury and they would hang her. The only way she could do it and sound ok would be if she had scripted answers programmed into her.
I was sleeping, katfish, but woke up briefly, saw your comments, and let them out of moderation. Then, I went right back to sleep.
Good morning, Patti O - The defense will not put Casey on the stand. This is shoring up to be a trial where they will make the state prove she did it, not be for them to prove she didn't. Their strategy will be to negate as much circumstantial evidence as they can, and keep Casey's mouth shut.
Hey there Ice, I hope you are having a great holiday w/e. I do not have any real objections to the Death Penalty but it is cheaper to keep them in prison for the rest of their lives than on Death row. The lawyers fees, the appeals, anything else they can charge for is very expensive and will go on for decades before the convicted criminal gets to walk down the hall of death. They also get to stay in a cell 23 hours all alone. But, if they are in prison for LWPP they will be with the general population. They can be in their cells with criminals just like them. So, I guess it is a toss up. Will the jury want to put Casey on Death Row or in general population? Florida and Texas have more inmates on Death Row than any other state that has the Death Penalty.
I do not think Casey will ever go on the stand, the Defense would be stupid to put her up there. Hopefully the jury will be able to listen to the tapes of LE talking to her.Those tapes make her look pretty bad.
Snoopy and anyone else, I hope you are safe and that the hurricane is starting to slow down. Have a good w/e everyone.
Hi there katfish...re: Mark Hawkins I'm in on that theory too...I think she was gonna talk him into sending her a one way ticket to join him...That would get her out of Dodge, so to speak...I don't think she would tell anyone about going out West, so no one would know where the H she was...Who knows what she would say when she was found...after all Cindy had kicked her and Caylee out of the house and Caylee probably disappeared after she had left town...So many senarios we could could come up with, but thank God she didn't get to carry out her plans...I'm convinced that she will get LWOP, which is OK in my book...then she will be put in with the General Population and perhaps become a contributing member of the incarcerated society...No doubt she will study Law and help her fellow inmates...Maybe she'll even throw in a few good(?) words and clients Bozo's way...Wouldn't that be a hoot???
This hurrican my name is Earl is only going after people with bad karma
Hi, ecossie possie... I don't know about that. The hurricane passed right through Snoopy's back yard, and she doesn't have any bad karma.
ecossie possie,
Love it. That's funny.
Dave,
Snoopy will be OK cause she has no bad Karma.
Really interesting views amongst the comments ! I am stuck thinking about the Geraldo Rivera show ! Peggy, thanks for letting us know about the show. I don't watch GR yet am curious as to what he has to say. He makes a correlation between the Andrea Yates case and the Anthony case???? I don't see it.
Geraldo mentions "infantcide". Now I am wondering if the defense might use infancide in defending Casey.
Casey Anthony doesn't even come close to Andrea Yates. Andrea Yates was mentally ill and I don't see that in Casey at all. I personally think Casey was just getting back at Cindy the only way she knew how. She killed Caylee because Cindy loved her more than Casey. I think the defense will have a hard time swaying the jury towards Casey being mentally ill. Geraldo is a friend of Jose's and will try to sway his viewers towards the defense, whatever they may try and come up with. I love how Jose is always complaining that Casey can't get a fair trial because of all the media, but his good friend Geraldo decides to do a show about this case.
I'm of your thinking Mary Jo. Since I haven't recently heard the big drum beat by the defense that Casey is innocent, I'm puzzling as to what they intend on using to "save her life." To save her life" is Baez's rescent words. I'm wondering if Rivero is helping Baez to plant the seed of infantcide which can be associated with postpartum depession.
I just don't see anything the defense can come up with that will result in anything other than lwop or dp but you never know. Personally, I think Casey hit twenty-one and found the party life. She didn't want Caylee from the beginning and things absolutely snowballed from that point on. Caylee was merely a tool that she used against her parents.
Hey, does this new site have a spell check?
Newbie, I am not sure if it has spell check or not, but I do know that you have so many minutes to edit your comment if it needs it. I don't know if they could even get post partum depression to fly for Casey. I don't see anything that any of her friends or her family have said that suggests that. I think she thought at first having Caylee around would get her lots of attention and then as she got older she realized what she was missing in her party life. She was also angry at Cindy because she thought Cindy loved Caylee more than Casey and Casey wasn't getting by with the things she did before because Cindy was on her so much about Caylee.
I agree on the postpartum. As far as I know it does not last for three years !!!!! Yet, wasn't it after Caylee was born that things really turned bad? I guess that is why I was thinking postpartum relating to the infantcide...they could try to use it in a defense but that would be quite a leap from innocent....lol.
I believe I am over-thinking G R's comment !!!!! But Andrea Yates---Casey Anthony?????
Ecossie possie~~dang you! I kinda thought that holy terror in my yard was an Earl. It wasn't a Duke.
Dave hi ,i thought the room looked familiar! I really love your perspective... ,and all the inside scoop,thanks.I did not appreciate Baezs not so funny joke when he turned and said something about having the best jury behind him,did you hear it !
Hi, Newbie - Sorry I missed your comments yesterday, but I do want to say hello.
Hi, sweet tooth - Sorry your comment was in moderation so long. I've been busy writing. With regard to what Baez said, yes, I heard and saw that. It was tongue-in-cheek, that's for sure. I know he wouldn't want anyone from the media sitting on the jury. That's who he turned to when he said it.
:`( I just spent a half hour on a comment and right at the end my finger slipped and "woosh" the whole comment was gone. i hate that!!! Ok enough whining :)
Dave thanks for letting me out of moderation before you turned over the other night. I had planned on returning Sunday(yesterday) to continue the conversation and for the third time in a month I had to take Mr. Katfish back to the hospital. I just got home a little while ago. I'm going to break my comment up in case my hand slips again. LOL
Katfish ponderings to be continued......
Hello estee-
Thanks for acknowledging you think Casey may have had in mind to head West too. There are so many scenerios that she could have come up with but that one would have made it more difficult for her to get caught in her lies. I think the only reason she stayed around was because she became obsessed with Tony Lazarro and had started a new unexpected chapter in her fractured fairytale.....a tale that hadn't taken into consideration her Mom might involve the cops.....and Casey was well aware she could handle her family with her bull that wasn't just a theory. I firmly believe if she would have up front told Cindy what she had done to Caylee, based on the Anthony's actions since the first day she was arrested, the police would, most likely, not have been called....at least not that night. Thankfully that didn't happen, I think Cindy would have done a much better job of organizing a cover up, where Casey seems to just shoot from the hip.
Newbie, I don't think you are over-thinking the leaps that the defense will go to in order to win this case, just saving her life will be considered a win. I don't doubt they would try to use
postpartum depression as a mitigation if they could get an expert willing to testify to their theory.
I don't know if you followed the Phil Spector case, but in his murder trial Linda Kinney Baden's husband, Dr. Michael Baden, actually used the analogy of the way a chicken will run after their head is cut off to explain blood spatter on Spector. Prosecutor Alan Jackson actually had to bring a copy of Grey's Anatomy into court when cross examining Dr. Werner Spitz as to his explanation for Lana Clarkson spitting blood on Spector after her spinal cord was severed by a bullet....he wasn't even using a stupid analogy, Spitz was actually misstating the human anatomy in his testimony. Of course that is a different case with a different defense and a wealthy defendant, but Dr. Spitz is on Casey's team as well as LKB. I put nothing past them.