This form will allow you to send a secure email to the owner of this page. Your email address is not logged by this system, but will be attached to the message that is forwarded from this page.
Simon Barrett will return to the Internet airwaves today as he continues his ever popular blogtalkradio show. Today’s subject?
Casey Anthony - A Gift That Keeps Giving
1:00 PM EST
Join Simon, myself, and attorney Peter Haven, as we discuss Casey’s recent developments, including a Florida appeals court decision reducing her four misdemeanor convictions to two, plus her recent Chapter 7 bankruptcy filing. Haven represented Ron Goldman’s family during the OJ Simpson civil trial. Goldman, if you recall, was murdered along with Nicole Brown Simpson. Haven is also on the board of directors of the Ron Goldman Foundation for Justice, which helps victims of crimes.
In POINT TWO of the appeal, Casey’s defense wrote that:
II. The Appellant’s constitutional rights were violated when she was convicted of four separate counts of providing false information to a law enforcement officer because each count stemmed from the same single offense where there was no break in the temporal aspect of the crime.
In that sense, if I fire a bullet through the brain of someone (who dies, obviously) and, as it passes through my intended victim, kills the person standing immediately behind him; does that constitute two homicides but one murder charge because it was one bullet? After all, it stemmed from the same single offense. That’s the logic of this Appellant’s argument. The defense also argued Fla. Const. Article 1 §9:
”[…] that individuals are given ‘protection from multiple convictions and punishments for the same offense arising out of a single episode.’”
I completely disagree. First, let’s look at the testimony by law enforcement at Casey’s murder trial acknowledged by her defense:
TRIAL TESTIMONY
Corporal Rendon Fletcher:
“Corporal Fletcher relayed that the Appellant, after questioning, stated that her daughter was missing, in the custody of a nanny, and that the Apppellant was conducting her own search.” LIE #1.
Lieutenant Reginald Hosey (then Sergeant) and Officer Adriana Acevedo:
”[…] Officer Acevedo escorted the Appellant to the last stated location of the ‘nanny.’” LIE #2.
Hosey: “[…] after being escorted to the Sawgrass Apartments, […] the Appellant was led back into her residence…” LIE #3. There was never a Zenaida Fernandez-Gonzalez living at Sawgrass, in Apt. #210 or anywhere else. She led Hosey on a wild goose chase.
Detective Yuri Melich:
“The recorded statement by the Appellant stated that she worked at Universal Studios, Zenaida Fernandez-Gonzales was Caylee Anthony’s babysitter, and that the Appellant informed Jeffery Hopkins and Juliette Lewis of the disappearance of her child.” LIE #4.
You cannot simply lie to every law enforcement officer that comes down the pike and consider it one big lie. It may have been one in Casey’s mind, but each lie to each officer is a separate offense.
On March 12, 2009, I addressed the fraud charges filed against Casey by her onetime friend, Amy Huizenga, on a post titled Double Jeopardy. Casey stole and cashed her checks while she was out of town. Thirteen third-degree felony charges were filed in all. She was convicted of six and Judge Stan Strickland withheld adjudication on seven.
This applies today because the defense tried to do the same thing then; to count the separate charges as one. They failed. On The Wisdom of Solomon, dated January 10, 2010 - three years ago! - I wrote:
Judge Strickland gave the defense an opportunity to challenge the charges. We can discuss the lack of brevity or the levity of the arguments, but let’s cut to the chase - it came down to the judge. First, it should be noted that Casey had no prior convictions and she did make full restitution and Baez did bring up “equal justice” for his client. He asked for one year of probation and credit for time served, rather than the five years of incarceration the State sought. In the end, His Honor sentenced the 23-year-old Casey to (jail) time served - 412 days - plus $5,517.75 in investigative costs and $348 for court. The amount may be discussed and negotiated at a later motion hearing because the defense found the investigative charge too high and not justifiable. He also adjudicated Casey guilty on six of the fraud counts and withheld adjudication on seven, plus he tacked on a year of supervised probation, which could be problematic and complex later on, given that she still faces a huge mountain of charges ahead. He said that he had given this a lot of thought prior to sentencing.
“There was not an even number of offenses, so I withheld in seven, I adjudicated in six. If that seems Solomon-like, it is.
On each and every count, Casey must submit a DNA sample because she is now a convicted felon. There it is, the words everyone has been waiting for…convicted felon. Time to move on to the next chapter, but first, Casey apologized to Amy Huizenga.
“I’m sorry for what I did. I’d like to sincerely apologize to Amy. I wish I would have been a better friend.”
§
That same standard for double jeopardy applies today, as surely as the day I wrote it in the 2009 article based on those fraud charges:
In essence, Casey’s defense team points out that under law, she should be charged for one crime by one count. The defense also claims that charging her with multiple counts for the same act prejudices her, therefore the counts should be dismissed.
According to the motion, “Miss Anthony is guaranteed double jeopardy protection by the Fifth and Eighth Amendments to the United States Constitution and Article 1, Sections 9 and 17 of the Florida Constitution for duplicative charges.” Let’s take a look at what the law says:
I will leave the indentation out for now, but the following paragraphs are from my 2009 article:
Amendment 5 – Trial and Punishment, Compensation for Takings
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment 8
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Florida Constitution – Article 1, Sections 9 and 17
SECTION 9. Due process.
No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.
SECTION 17. Excessive punishments.
Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. The death penalty is an authorized punishment for capital crimes designated by the legislature. The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the legislature, and a change in any method of execution may be applied retroactively. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. This section shall apply retroactively.
The double jeopardy rule of the Fifth Amendment is intended to limit abuse by the government in repeated prosecution for the same offense as a means of harassment or oppression. It is also in agreement with the common law concept ofres judicata which prevents courts from relitigating issues which have already been the subject of a final judgment. There are three essential protections included in the double jeopardy principle, which are:
being retried for the same crime after an acquittal
retrial after a conviction
being punished multiple times for the same offense
Does the defense motion to dismiss those extra charges, something it sees as ancillary in nature, hold any merit? In Solem v. Helm (1983) 463 U.S. 277, a split court found that a life sentence without the possibility of parole for a seventh nonviolent felony was unconstitutional. In Solem, a bare majority of the court held a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including the gravity of the offense and the harshness of the penalty; the sentences imposed on other criminals in the same jurisdiction; and the sentences imposed for commission of the same crime in other jurisdictions.
In Harmelin v. Michigan (1991) 501 U.S. 957, a life sentence without possibility of parole for possessing 672 grams of cocaine was upheld. The case produced five separate opinions. While seven justices supported a proportionality review under the Eighth Amendment, only four favored application of all three factors cited in Solem. As one court has concluded, disproportionality survives; Solem does not. (McGruder v. Puckett (5th Cir.’92) 954 F.2d 313, 316.) In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, determined Solem was wrongly decided and the Eighth Amendment contained no proportionality guarantee. Justice Kennedy, joined by Justices O’Connor and Souter, found the Eighth Amendment encompassed a narrow proportionality principle. In other words, the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Moreover, in Solem v. Helm, the court focused on the nonviolent nature of both the defendant’s current offense of uttering a ‘no account’ check (one of the most passive felonies a person could commit) and his prior offenses. The majority acknowledged a life sentence for fourth-time heroin dealers and other violent criminals would pass constitutional muster.
While we ponder the legality of the double jeopardy clause in the appeal, allow me to look at the April 19, 1995 Oklahoma City bombing which killed 168 people and was the deadliest act of terrorism within the United States prior to the 9/11 attacks. I don’t need to go into any detail of what transpired. This is purely about the charges, the trial, and the conviction.
On August 10, 1995, Timothy McVeigh was indicted on 11 federal counts, including conspiracy to use a weapon of mass destruction, use of a weapon of mass destruction, destruction by explosives and 8 counts of first-degree murder. On June 2, 1997, McVeigh was found guilty on all 11 counts of the federal indictment. He was executed by lethal injection at 7:14 a.m. on June 11, 2001, at the U.S. Federal Penitentiary in Terre Haute, Indiana.
Despite killing 168 people, McVeigh was only charged with 8 murders. Casey was convicted of four misdemeanor counts of lying to law enforcement personnel. The convictions should stand. Double jeopardy, in this case, would mean reducing her convictions from four to one. No dice, I say! Why? If Timothy McVeigh’s attorneys used the same logic and prevailed in a similar motion to dismiss the counts by reducing the eight murder charges to one, that means out of 168 deaths he was responsible for, he would have been tried for one single murder and the entire weight of those deaths would have been reduced from 8 to 1. Would he have been sentenced to death for one murder? If so, would it have been appealed? Yes, and it would have carried much less weight. With Casey, it’s the same thing in my book, although the charges are not similar. I am merely making an analogy.
Ultimately, double jeopardy should not be an appeal issue as far as I’m concerned. Casey was convicted, sentenced, and she did her time on all four counts. That cannot be taken away from her. In the end, it will hinge on whether she was in police custody when she was questioned. Was she free to go and was she Mirandized? Should she have been? By her own admission, she spoke freely. Should she have been Mirandized just because she decided to sing like a bird? Not until she was placed in custody, meaning under arrest or when her freedom was greatly deprived; enough to be equal to an arrest. Custody could be interpreted as being handcuffed and placed in the back of a police car. It could also include her interrogation — an attempt to elicit incriminating statements — but to what extent? Who said she was a suspect at the time?
I believe the appellate judges will rule against her. Those misdemeanor convictions will stand by a vote of 2-1. No matter what the outcome is, she’s still — and shall always remain — a convicted felon. Thank you, Amy Huizenga.
In its SUMMARY OF THE ARGUMENTS from the INITIAL BRIEF OF APPELLANT, Florida Fifth District Court of Appeal, concerning Casey Anthony’s four misdemeanor convictions of lying to law enforcement officers, her defense wrote:
There’s three points on appeal. First, the lower court [9th Circuit] erred in denying the Appellant’s motion to suppress her statements to Detective Melich. The record establishes that the Appellant was placed under arrest, never Mirandized, and subsequently interrogated. Either the statements occurred at the Appellant’s residence or Universal Studios. At both locations, the Appellant was in custody. At her residence, the Appellant was unhandcuffed and questioned to purposely avoid informing her of her Miranda Rights. At Universal Studios, the Appellant was in custody, placed in a small room for questioning by three members of law enforcement, confronted with evidence against her for an extended period of time, and never informed of her rights under Miranda. In either scenario, the Appellant’s statements were involuntary[emphasis mine] and, therefore, the lower court erred in denying the Appellant’s motion to suppress.
This article will focus on one aspect of the three points on appeal; whether Casey was read her Miranda warning and whether it was necessary while being questioned by law enforcement prior to her arrest. This will be a lengthy article, and most of the legal information comes from a post I wrote and published on March 9, 2011, A Sneaking Suspicion. Ultimately, I feel the appellate court will rule 2-1 against Casey. I base my decision on several things; all legal in nature. Please pay particular attention to the final part of this post, where the charges are listed. Remember, Casey was not charged with murder until October. Also, there’s an interesting video to watch. It’s short and, in it, she tells her brother that she WAS Mirandized, although the State did not argue that in court on Tuesday.
§
Keep in mind that this was written almost two years ago:
While sitting in the courtroom, I must say Cheney Mason impressed me. His voice was stronger than it usually is. During one of the detective’s testimony last week, he asked if he was familiar with the term unarrested. The detective responded positively. Yesterday, Mason exclaimed that there is no such thing as being unarrested. He went on to scrutinize the tactics of the deputies and detectives from the first hours they spent with Casey to the final moments they pressed the Anthony family into service to visit her in jail. Agents of the State? Please.
When Casey was driven to Universal, he asserted that the detectives were already aware that she wasn’t employed there. They had set the meeting up with the chief of security, where a small room was awaiting her for questioning. The door was closed, he said, and the intimidating tactics began. Voices were raised. Was she free to go, he wondered. No, of course not. She was at their mercy. No car and no one telling her she had a right to leave. The only way it could have been a voluntary interrogation would have been if she drove herself to meet them there.
He said it would have been impossible for trained law enforcement personnel to not treat her as some sort of suspect once they took a whiff of her car that first night. Where the defense had been weak in citing case law, Mason let loose here with the case of Ross v. State of Florida and the Florida Supreme Court’s ruling upon appeal:
After carefully reviewing the issues raised on appeal, we reverse the convictions and sentences of death because of the police conduct in interrogating Ross on January 9, 2004. Specifically, the police, over a period of several hours of custodial interrogation, deliberately delayed administration of the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), obtained inculpatory admissions, and when the warnings were finally administered midstream, minimized and downplayed the significance of the warnings and continued the prior interrogation—all of which undermined the effectiveness of Miranda.
In Ross’s case, the court wrote that investigators mishandled his interrogation days after his parents were beaten to death with a baseball bat more than seven years ago. On 7 January 2004, Ross, then 21, called 911 to report that someone had murdered his parents. No weapon was ever found. The Supreme Court ruling described a pressure-packed investigation two days later in which a detective questioned Ross for hours without reading him his Miranda rights. The high court ruling states the detective deliberately delayed reading Ross his rights in an effort to obtain a confession, while assuring him that he was not under arrest, amounting to an involuntary confession. Specifically, law enforcement, over a period of several hours of custodial interrogation, deliberately delayed administration of the Miranda warning. According to the ruling, when Miranda warnings were administered “midstream,” detectives…
… minimized and downplayed the significance of the warnings and continued the prior interrogation — all of which undermined the effectiveness of Miranda.
There is another case in Florida that is a real puzzler. In Ramirez v. State, 1999 WL 506949, the Florida Supreme Court reviewed Nathan Ramirez’s conviction and death sentence for his role in the execution-style murder of Mildred Boroski, a 71-year-old widow. He and another man broke into her home, killed her dog, tied her to a bed and raped her. Then, they forced her into a car, dead dog and all, and drove her to a remote field where Ramirez shot her twice in the head.
Investigators with the police department discovered some of the woman’s possessions in Ramirez’s custody and asked him to go to the station for a taped interview. He agreed. The investigators began the interview without a Miranda warning because they thought he was only a witness rather than a murder suspect. Within a few minutes, he began to sing like a canary and one of the investigators stopped the interview to suggest he be Mirandized. The colleague immediately read Ramirez his rights which the (now) suspect acknowledged and waived. He proceeded to detail what transpired that day.
Sadly, the Florida Supreme Court reversed Ramirez’s conviction and sentence despite how careful and diligent the investigators were. Why? Four of the justices claimed that his Miranda warning was given in a manner that unconstitutionally minimized and downplayed the importance of his rights. They exploited his pre-Miranda admission about being in the house.
That’s bad enough, but back to the matter at hand. The most startling revelation made by Mason was his assertion that the first time Casey was Mirandized was not until 14 October 2008, when she was indicted on first-degree murder and other charges. I beg to differ with him. According to Casey’s ICJIS (fraud) Arrest Affidavit, she was read her Miranda warning by OCSO Detective Johan Anderson on 29 August 2008 at 2135 hours, or 9:35 pm:
I responded to 4937 Hopespring Drive and made contact with defendant Anthony. She was placed under arrest and transported to the Orange County Sheriff’s Office. I read defendant Anthony her Miranda Rights and she advised that she did not want to speak to me without her lawyer. I terminated my interview and she was transported to BRC without incident.
Whether she was read her rights prior to this date is not readily available, but the above log refers to the fraud charges only. In any event, technically, she was read her Miranda Rights prior to 14 October. Was she advised of her rights before this exchange occurred on 16 July 2008?¹
“What happened to Caylee,” an investigator asks on the tape.
“I don’t know,” Casey Anthony said.
“Sure you do,” and investigator said.
“I don’t know,” Anthony said.
“Listen, something happened to Caylee,” an investigator said. “We’re not going to discuss where the last time you saw her (was). I’m guessing something bad happened to her some time ago and you haven’t seen her, so that part is true — is you haven’t seen her because she’s somewhere else right now.”
“She’s with someone else right now,” Anthony said.
“She’s either in a Dumpster right now, she’s buried somewhere, she’s out there somewhere and her rotten body is starting to decompose because what you’re telling us…,” an investigator said. “Here’s the problem. The longer this goes, the worse it’s going to be for everyone. Right now, everything you’ve told us — we’ve locked you into a lie. Every single thing that you’ve told us has been a lie.”
If she wasn’t read her rights before being interrogated, this could be a real problem because, clearly, she was the only suspect that law enforcement had as evidenced by their line of questioning. They were already on to her tricks.
On the other hand…
When Linda Drane Burdick approached the podium, she calmly stated that at no time was Casey in custody - there was no custodial interrogation. When at Universal Studios, Cpl. Yuri Melich wrote in his arrest affidavit, interestingly dated July 15:
At this time, we found a small conference room in which to talk to the defendant. This conversation was also recorded. Prior to beginning this interview, we stressed that the door was unlocked and were in the room for privacy only. She understood and agreed to speak with us on tape.
At no point in the arrest affidavit was it written that Casey was read her Miranda Rights. If there was ever a time for a sinking feeling, it may have come in the courtroom on Monday if she was not read her rights. There’s something else. Cpl. Yuri Melich made this notation in his affidavit:
I first met with the defendant inside her residence and spoke with her alone and away from other family members. Before asking for a recorded statement, I reviewed her original four page written sworn statement and asked if this was her version of what happened. She said it was. I told her that the incident was very suspicious and her version suspect.
Later that day, several of Casey’s friends and boyfriends called OCSO to report what they knew. It was a shock to everyone that darling Caylee was missing. Melich continues:
Once at our central operations center, and after I started receiving the above phone calls reference the defendant and her child, the defendant was given one more opportunity to change her story. She did not. She was then placed under arrest for child neglect, and providing false information to us regarding this investigation.
The official charges were:
Neglect of a child 827.03 (3)(C)
False Official Statements 837.06
Obstruct Criminal Investigation 837.055
However…
At no time did Casey express an interest in remaining silent. Initially, as Linda Drane Burdick was quick to assert, Casey was not a suspect in the disappearance of her child when she was briefly cuffed and held in the back seat “cage” of Dep. Acevedo’s patrol car. She was never suppressed inside her house, nor was she ever held without her permission. Of course, common sense tells you when an officer of the law carries on a conversation and/or asks you to do something, you’d better comply, so there are gray areas defense teams are trained to exploit. Rightfully, Burdick contended that law enforcement merely treated Casey as a possible witness to some sort of kidnapping and there was no reason to Mirandize her.
I think before we continue, it’s important to clarify the written statement made by Casey. It came before she was handcuffed and placed in the police car.
Here comes the judge…
While Mason was arguing his case, Judge Perry broke in and asked him if he was familiar with Parks v. State (1994). Mason said no, and the judge advised him to read it. Now, if you want my opinion, when a judge suggests something to read, you’re darned-tootin’ I’m going to read it! The mere fact that a judge mentions case law is ominously significant, so here is where I think the judge will go with his decision regarding Miranda…
In the case of Darryl Parks v. State, in the District Court of Appeal of Florida, Fourth District, the appellant appealed his convictions for first-degree murder and three counts of armed robbery. He asserted four issues on appeal:
whether appellant’s motion to suppress his confession should have been granted;
whether the trial court erroneously allowed an accomplice’s prior consistent statement into evidence;
whether the trial court erred in granting appellee’s peremptory challenge of a minority juror; and
whether prosecutorial statements in closing arguments amounted to a comment on appellant’s exercise of his right to remain silent.
The appeals court affirmed as to all issues. However, their affirmance of issues one and two did warrant discussion. The following is quoted directly from the ruling. I will highlight key points:
On January 16, 1991, an individual wearing a mask entered a business in Broward County, began waiving a gun, and demanded money. The gunman was joined shortly thereafter by a second individual. During the course of the robbery, the owner of the business was fatally shot.
Five days after the shooting, appellant was arrested on an unrelated robbery charge. He was brought to the Broward County Sheriff’s Department homicide office for questioning concerning the murder. He was handcuffed and shackled. However, doubts arose concerning whether there was sufficient probable cause for appellant’s arrest. It was decided that appellant would be released. Appellant was advised he was free to go, the handcuffs and shackles were removed, and he was offered a ride home. Thereafter, but prior to leaving, appellant was asked whether he would remain and talk about the shooting. Appellant said he would talk to the officers about it. After appellant was informed of his Miranda rights, he was questioned by detectives. During this questioning, appellant made incriminating statements concerning his involvement in the murder and robberies. Appellant said he was present and he only intended to rob the place. However, he admitted using a substandard quality gun and “it just went off.”
The evidence shows appellant freely and voluntarily gave his statement to police. Even if the police lacked probable cause for the arrest on the unrelated charge, the fact appellant was released from custody and voluntarily remained to answer questions breaks the causal link between the arrest and his making of the incriminating statements to police. Appellant’s agreement to discuss the crime when he was free to decline and go home was an act of free will sufficient to purge any possible taint from the arrest. We find the trial court properly denied the motion to suppress appellant’s incriminating statements.
Parks asserted that the trial court improperly allowed a prior statement by his accomplice into evidence to help build the case against him. The day after he was arrested for the murder, Terrance Batten was brought to the police station for questioning. After being informed of his Miranda Rights. He then gave a tape recorded statement to police which implicated himself and Parks in the murder. About 22 months later, Batten received a plea deal from the state.
At trial, Batten testified about the shooting and robberies. He said appellant shot the victim. On direct examination, Batten acknowledged he gave a statement to police shortly after the shooting. During cross-examination by defense counsel, Batten was extensively questioned about his plea deal with the state. The details of the deal were spelled out for the jury. Batten was also questioned about the circumstances surrounding his prior statement made to police. Batten acknowledged the detectives told him that they did not want him, but wanted appellant. Batten also acknowledged he was told if he did not cooperate, he would be charged with murder and sentenced to the electric chair. He admitted he was thinking if he gave a statement to the detectives he could go home, but if he did not give them a statement he was going to be held on the murder charge.
Defense counsel also questioned Batten about specific contents of his prior statement. Batten was asked about his comments concerning who he was with prior to the robbery. Defense counsel noted that Batten said in his statement to police he was cooperating because the victim was shot. Also, Batten acknowledged there is no mention of a mask in his prior statement.
During the testimony of one of the detectives who questioned Batten, the tape-recorded statement was admitted into evidence over defense objection. Defense counsel had argued the prior consistent statement itself was made after Batten had an improper motive. Therefore, it was inadmissible.
Here’s the clincher, though:
We agree with appellant that the prior consistent statement should not have been admitted into evidence. Generally, prior consistent statements are not admissible to corroborate a witness’ testimony. Jackson v. State, 498 So.2d 906 (Fla. 1986). An exception to the rule provides that such statements are admissible to rebut charges of improper influence, motive or recent fabrication against the witness. Id. at 910; see also § 90.801(2)(b), Fla. Stat. (1991). However, the prior consistent statement must be made “prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.” Dawson v. State, 585 So.2d 443, 445 (Fla. 4th DCA 1991).
We hold, however, that the erroneous admission of Batten’s tape recorded statement was harmless. The jury was aware of the existence of the prior statement. A reasonable jury could presume the prior statement was consistent with Batten’s in-court testimony. Further, defense counsel delved into some of the specifics of the statement, referring to actual comments made by Batten to police. Thus, portions of the statement were highlighted for the jury, by defense counsel, prior to the admission of the statement in its entirety.
These factors, in combination with appellant’s incriminating statements and testimony linking appellant to an item stolen in the robbery, convince us of the harmless nature of the trial court’s error. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). We therefore affirm appellant’s convictions on all counts.
AFFIRMED.
What does this tell me? Well, when Mason mentioned October 14 - and he did so twice - and the State did not counter, it sent a message. Two times and the prosecution came back with no response. I think the judge is going to allow Casey’s early statements [made in July of 2008] to stand until a clearly defined moment surfaces that distinguishes her standing with the police.
§
Back to the present…
If you’ve ever watched COPS, you’ve seen officers detain and handcuff people not under arrest, and they make their point clear about doing so for everyone’s safety; the detainee’s and the officer’s.
Ultimately, Judge Perry did side with the State on both motions filed by the defense. In his decision, Perry wrote that the test of law primarily focused upon the perceptions of the suspect, not the intent of the police. In this regard, Casey was quite aware of what was going on around her, yet she continued to blab, acknowledging that she didn’t need to do that. George Zimmerman spoke freely, too, and this may work against him if he loses his battle in court and goes for an appeal.
Next, I will explain double jeopardy and I promise it won’t be as long.
On November 6 of this year, Americans who are registered to vote will have the opportunity to elect the next president of the United States. This may or may not include hundreds of thousands of illegal aliens and half the roster of dead people in the city of Chicago, but that has nothing to do with the context of this post.
If President Barack Obama prevails, he will have another four years in the White House. If Mitt Romney wins, he will be sworn in as the 45th president on January 20, 2013 — Inauguration Day. How this election fits in with the topic du jour is quite simple. There will be a smooth transition between the outgoing and incoming members of the executive branch. It’s the same as it’s almost always been since the inception of this great country. Every four or eight years, we witness this peaceful transference of power, and the country never skips a beat.
It’s the same with the George Zimmerman case. In a 2-1 vote, the Fifth District Court of Appeal rendered its decision regarding Judge Kenneth R. Lester, Jr.
PER CURIAM.
George Zimmerman petitions for issuance of a writ of prohibition. This is the proper mechanism for challenging the denial of a motion to disqualify a trial judge. See, e.g., Lusskin v. State, 717 So. 2d 1076, 1077 (Fla. 4th DCA 1998). Reviewing the matter de novo, see R.M.C. v. D.C., 77 So. 3d 234, 236 (Fla. 1st DCA 2012), we grant the petition…[.] Accordingly, we direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.
PETITION GRANTED.
While some may gloat over the decision to remove Lester from this case, I most certainly do not. I feel that the judge scolded Zimmerman and nothing more. I am convinced that he would have soldiered on, putting that reprimand behind him. He would heve continued to rule judiciously and fairly, but that’s old news now; what’s done is done. There’s no point in arguing over the how and why of it. While we had our discussions and disagreements over the motion to recuse and subsequent writ of prohibition, today, it is nothing more than water under the bridge, and it’s time to move on.
I am convinced that, just like our election process, there will be a very smooth transition from Judge Lester to the person Chief Judge Alan A. Dickey names as his successor. Who will it be…?
First of all, let me explain what I know about the inner workings of a courthouse, having some experience in it.
At the very beginning of the Casey Anthony case, Ninth Circuit court Chief Judge Belvin Perry, Jr. asked several judges if they’d be willing to take the case. One by one, they said their dockets were too full. Keep in mind that these were judges working the criminal division, not civil. Judges routinely rotate between criminal and civil every two years or so. No one wanted the case. Perry then turned to someone else. He made a wise choice when he asked Judge Stan Strickland to take the case. You are one of my best judges and, most certainly, extremely qualified to handle it. Strickland agreed, despite having recently moved from criminal to civil. It’s important to note that Strickland continued to hear civil cases, too. Judges, like criminal defense attorneys and prosecutors, are not narrow-minded or restricted. Like servers in a restaurant, they can wait on more than one customer at a time. Trust me, to Judge Lester, the Zimmerman case was just a job and nothing more. What happened to him is part of the process.
When the first judge in the Casey Anthony case was asked to step down, he did so without argument. Why he did it is of no relevance in the Zimmerman case. What matters now is, where do we go from here? When Judge Strickland removed himself from the bench, what happened next was somewhat revealing and it will be similar, if not identical, to the type situation that Judge Dickey is faced with today.
[Since this writing, Judge Debra Nelson has been named to replace Judge Lester.]
During the Anthony mess, media pundits were reporting that, generally, chief judges take on highly problematic cases. Judge Belvin Perry certainly did end up doing just that, but in the interim, it was far from as simplistic as the news actually reported. Behind the scenes, Perry was asking his Orange County circuit court judges to take over the case. I will never reveal how I know that, but it came from more than two sources — all at the top. One-by-one, they turned him down. Do you see the caseload I’m sitting on? I’ve got over 3,000 cases on my docket right now, was the common mantra. Ultimately, Perry was left with no choice. It was, after all, a most problematic case and, reluctantly, he decided to take the helm. The rest, they say, is history.
§
In one of his recorded phone calls from jail, Zimmerman discussed what judge he wanted with his wife, Shellie. This was just as Mark O’Mara signed on to defend him, so it was an early conversation. Zimmerman hoped to get retired judge O.H. Eaton. Eaton has a sterling reputation as a fair judge, levelheaded and extremely knowledgeable in law. What Zimmerman knew about him then is a mystery, but even I was aware of it.
He ain’t gonna end up with Judge Eaton. And I’ll tell you why I think that. Eaton is a retired judge. That’s not to say he’s too old. It has nothing to do with that. Retired judges are not salaried. Retired judges are freelancers. They make a lot more $ per hour than sitting judges. This trial is at least a year away. Would the taxpayers of the 18th District, particularly voters in Seminole County, agree to that kind of arrangement? Granted, you couldn’t end up with a better judge, but would he be willing to take on the task if asked? He doesn’t need it. He’s the kind of retired judge who listens to cases to take the burden off other judges, but they are not major cases like this one. If Dickey runs out of judges in Seminole County, better yet that he would discuss this matter with some of his active judges in Brevard County before handing it over to someone outside of his circuit. Technically, Eaton is no longer active.
One of the names being bandied about is Seminole Circuit Judge Debra S. Nelson. She is every bit as qualified as Judge Lester to sit in judgement of Zimmerman. As a matter of fact, she is most deserving because she is also a no-nonsense judge who was appointed to the 18th Judicial Circuit in 1999 by then-governor Jeb Bush.
In 2007, Judge Nelson presided over a rape case. The accused male, then 41, was eventually convicted of dragging a 10-year-old girl into the woods, choking and raping her. It might be interesting to note that the perpetrator, Antonio Rosales, was in the United States illegally. Also, during the trial, he confessed to murdering a woman in Tucson, Arizona.
While his trial was under way, he went berserk in the courtroom:
His defense attorney, Tim Caudill, moved for a mistrial. He claimed that the outburst tainted the jury. Judge Nelson rejected that, and upon sentencing, she did something unusual. Let me preface this first. Because of the girl’s age, in rape convictions, the charge carries a mandatory life sentence. Judge Nelson decided to take it two steps further. She added two additional life sentences, but she never gave a reason why. To this day, the sentence stands. (See also: Orlando-area jury convicts illegal immigrant of 2003 child rape)
What’s most interesting to me is that Judge Nelson has a reputation for setting harsh sentences. In George Zimmerman’s case, he’s facing a mandatory 25-years to life in prison. That’s because of the 10-20-life law enacted by Governor Jeb Bush in 1998. It’s sometimes referred to as “Use a gun and you’re done” law. According to Florida’s 10-20-life statute, anyone who pulls a gun during a crime receives:
Felon in possession of a gun - mandatory minimum 3 year prison sentence
Brandishing a gun in the commission of a crime - mandatory minimum 10 year sentence
Discharging a gun in the commission of a crime - mandatory minimum 20 year sentence
Injuring or killing another person in the commission of a crime, by discharging a firearm - 25 years to life in state prison
Just ask Marissa Alexander, a young Jacksonville mother who was convicted of three counts of aggravated assault and sentenced to 20-years for firing a warning shot into a wall during an argument with her husband. She lost her Stand Your Ground motion and she had, what appears on the surface, to be more of an excuse for pulling the trigger than Zimmerman will ever be able to conjure up. Incidentally, the prosecutor during that case was none other than Angela Corey. She said that Alexander was angry and reckless the night of the shooting, not fearful of her life. She will bring the same argument into court when Zimmerman files his immunity motion. Was he more angry or afraid? If in fear, was is objective or subjective?
Judge Lester ruled judiciously and so will his successor. Whoever Zimmerman ends up with, that’s it. There will be no more musical benches, and who he gets will not be singing anything in his ears. He may be laughing today, but his silly games are now over.
Just for your information, In 2012, Judge Lester was deemed the best judge in Seminole County (in all categories) by his peers of criminal defense attorneys and prosecutors. So was another judge in Orange County back in the day. Oh well. If Judge Dickey decides to take the case, it’s not going to be any easier than Nelson or anyone else. Judges are not amused by the antics of George Zimmerman. Of course, that’s my opinion, but I am allowed to be judgmental… or let me say, I am allowed to say so. So will the next judge. Zimmerman is plum out of dismissal motions.
In his ORDER SETTING BAIL on July 5, 2012, Judge Kenneth Lester made several stipulations clear about what attorney Mark O’Mara’s client, George Zimmerman, could and could not do. For instance, he would be able to travel anywhere he wants as long as it’s within the boundaries of Seminole County. If he finds it necessary to leave the county, all he has to do is pass it by the court for authorization. It’s a rather plain and simple directive and something a five-year-old should be able to comprehend.
However…
In his MOTION TO MODIFY CONDITIONS OF RELEASE dated August 22, 2012, Mr. Zimmerman, through his attorneys, cited two issues pertaining to matters addressed in the judge’s above order. Call them problematic. The Court, for instance, must realize by now, due to the great amount of national and international publicity, not to mention notoriety and animosity, that Zimmerman “and his entire extended family have had to live in hiding, fearing for their own safety.” Therefore, he should be able to move out of the county, too.
I disagree with Mr. O’Mara’s choice of words. He exaggerates. How? In many ways, but for now, here’s a ‘for instance.’ It’s one thing to complain about the woes that have befallen his client, but his client and only his client was responsible for the big mess he’s in — not his family. Daddy did not hold his hand the night he pulled the trigger. Therefore, why bother bringing up any issue over his family’s fears for their own safety? It’s not that I don’t care, it’s just that there is nothing stopping them from moving out of the area any time they please. There are no restrictions on them whatsoever, and to suggest in that motion, albeit indirectly, that the Court was somehow responsible for this problem is, well, not showing a clear sense of responsibility. There is no way the Court can magically order the public to leave the Zimmerman family alone.
This is George’s unfavorably conducive style; his M.O. These are his edicts, sua sponte, not necessarily those of his attorneys. While his motions are filled with innuendos that tend to absorb what little substance they hold, it’s when he opens his mouth that we see him for what he is.
Full of Zimmermanure.
He not only speaks with a forked tongue, he also twists his tongue when he speaks. A good example of this came during his Hannity interview on FOX News. When asked if he would have done anything any differently, given ample opportunity to think about it now, he said he really hadn’t had the time to think about it, but after thinking about it, he wouldn’t have changed a thing. He regretted nothing and it was God’s plan. He had nothing to feel sorry about. Did that make sense? Wait. It gets worse.
Later in the broadcast, he turned and faced the camera, and in his best “My fellow Americans…” presidential-style address, he apologized to the nation, his wife, and everyone involved in the case, including Trayvon Martin’s parents. In my opinion, it was, at best, sickeningly insincere. Incidentally, a truly biased judge would have called him on the carpet for addressing Trayvon’s parents because, in his order, Judge Lester wrote:
“The Defendant shall not have any contact with the victim’s family, directly or indirectly, except as necessary to conduct pretrial discovery through his attorneys[.]”
Redundancy
My complaint, while being about the Petitioner, also includes his attorney and how he’s handling the case; his motions, in particular. In this very same Motion To Modify Conditions Of Release, O’Mara wrote:
“One of the conditions of release is that Mr. Zimmerman is not to leave Seminole County without prior authorization by this court.”
Right, Mr. Knechel, you already said that. Well, yes I did, but so did the judge and Defense, and just to clarify, this is a two-part motion. The second part addressed traveling outside the county, not moving out. The judge’s order covered it and the defendant acknowledged it, so what was the point of this final statement in Zimmerman’s latest motion?
“The restriction of Mr. Zimmerman not to leave Seminole County has had a deleterious effect on his ability to assist in the preparation of his own defense. Communications have been unnecessarily limited to telephone and occasional visits by counsel. Mr. Zimmerman must be able to travel to meet with his lawyers, and to attend to various other necessary matters to prepare this matter to move forward.”
Hmm… deleterious… injurious to health; pernicious, hurtful, destructive and noxious according to dictionary.com. My, what $5.00 words he uses that won’t impress any sitting judge let alone little old me. While I realize the motion also asked that Zimmerman be allowed to move outside of Seminole County, a request the Court denied, the rest of it is redundant. Here, verbatim, is what the judge wrote in his July 5 order:
“The Defendant shall not leave Seminole County without prior authorization by this Court[.]”
How much clearer can one get? All the defense had to do was ask. Why was it necessary to dedicate the brunt of this motion on something that was already covered a month-and-a-half earlier? And if O’Mara were really fearful of Zimmerman’s safety while residing somewhere in the entire county of Seminole, how much safer should he feel while his client is sitting in his office in downtown Orlando? Talk about deleterious! I’m serious.
Here’s the way I see George Zimmerman. When he doesn’t get what he wants, he whines and cries. He feels boxed in and claustrophobic. He gets restless and can’t sleep at night. His mattress turns lumpy. You see, George is starting to remind me of The Princess and the Pea with one major difference. He cannot get a comfortable night’s sleep until all his demands are met. The pea, in this case, is Kenneth R. Lester, Jr. who must be removed and replaced by a fairy tale friendly judge so Prince George, his friends, his family and his fellow American loyalists will be allowed to live happily ever after.
Fearing Fear Itself
In Nit-Picking Nit-Writ, I addressed the PETITION FOR WRIT OF PROHIBITION filed by the Zimmerman defense. I pointed out how O’Mara had offered evidence about the shooting on the night of February 26 and why it was not only unnecessary, it was useless. A writ of prohibition, in this case, only pertains to why the trial judge should be recused. It’s not for anything else. What O’Mara did was inflate a very weak document with superfluous fluff, like adding TVP to a package of fatty, grisly hamburger meat, and I don’t feel the appeal court is going to buy any of it.
I do believe that Assistant Attorney General Pamela Koller offered up a much meatier argument against the Defense appeal. I will elaborate on that a bit and address the finer points of the State’s RESPONSE TO PETITION FOR WRIT OF PROHIBITION. In particular, I want to look into the two types of fear that the district court will examine — objective and subjective.
In 2005, I wrote a post about how slants change your views of the news. Titled, An unbiased look at news slants, I last updated it in February of 2010. I think it should give you a foundation on objectivity and subjectivity.
Objective information strives to remain unbiased. Dictionaries and other materials of reference, such as encyclopedias, generally provide factual information. Traffic lights are red, green and yellow. Yellow means caution, green means to go and red means to stop.
Subjective information is formed by personal opinion. Editorial sections in newspapers are subjective. While editorials and letters to the editor can be based on fact, opinions are usually based on personal interpretations of facts. Humans are responsible for global warming. Global warming is caused by natural earth cycles, such as the Ice Age. In these cases, separate and valid viewpoints can be substantiated by citing legitimate sources.
We know that George and Shellie Zimmerman lied to the Court about access to money and a second passport they claimed they didn’t have. The judge acknowledged that in his order revoking bond and Team Zimmerman then proceeded to call it biased, including the judge’s reprimand. (It’s interesting to note that the defendant still managed to post bail despite the Court setting it much higher than what was originally granted.) The fact that bail was granted at all after the second request could be considered a testament to the judge’s fairness.
The Judge’s Order Setting Bail infuriated the Defendant and his counsel. How dare the Court look at his lies at all, let alone “judge” his actions and lack of respect for the court. To do so was nothing short of biased, they claimed, so they filed their writ of prohibition with the higher court. The bottom line now is how the Fifth District Court of Appeal will look at this motion — as an objective or subjective complaint — and rule accordingly, based on objectivity. Does Zimmerman have a leg to stand on? Is his distress based on a paranoid fear of persecution in general (subjective) or has this judge exhibited (objective) behavior in the past that truly legitimizes his concerns?
Let’s look at this objectively. In its response to the writ, the State wrote:
Petitioner complains about rulings in the past in his background section, but it is well established that “[t]he fact that the judge has made adverse rulings in the past against the defendant, or that the judge has previously heard the evidence, or ‘allegations that the trial judge had formed a fixed opinion of the defendant’s guilt, even where it is alleged that the judge discussed his opinion with others,’ are generally considered legally insufficient reasons to warrant the judge’s disqualification.” Rivera, 717 So. 2d at 481 (quoting Jackson v. State, 599 So. 2d at 107; see also Areizaga v. Spicer, 841 So. 2d 494, 496 (Fla. 2d DCA 2003) (It is well established that a trial court’s prior adverse rulings are not legally sufficient grounds upon which to base a motion to disqualify).
In other words, this is not merely a complaint about Lester’s language in the bail order, it’s also about his prior rulings in Zimmerman’s pretrial motions. This is something that should be taken up post-conviction, if necessary, not now, and it epitomizes my description of superfluous fluff; not worth the paper it’s printed on. What the defense wants to do is set a silly precedent; that every single defense motion denial is biased. This would then have to include every case that has ever come before a court. Overturn every verdict because motions were denied! All in the name of George! Clearly, this is subjective thinking. “I think,” O’Mara could opine, “every motion that was turned down was done so by judicial bias.”
Of course, it’s every defense attorney’s dream, but most are smart enough to know it’s nothing more than a whimsical flight of fancy. Cheney Mason tried the same thing during the Anthony case and got nowhere.
The State cited Rolle ex rel. Dabrio v. Birken, 984 So. 2d 534, 536 (Fla. 3d DCA 2008):
Likewise, we recently pointed out that a “mere ‘subjective fear’ of bias will not be legally sufficient, rather, the fear must be objectively reasonable.” Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (quoting Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986)). We do not find Mansfield’s allegations of fear to be objectively reasonable. See also Asay v. State, 769 So. 2d 974 (Fla. 2000). Our cases support the trial court’s denial of the motionto disqualify, and we affirm the trial judge’s order.
Notwithstanding, Lester had every right to keep Zimmerman behind bars because the State went on to say that:
The judge again set a bond for Petitioner, and Petitioner is currently out on bond. Thus, the grounds listed by Petitioner in his motion are facially insufficient.
… and that the Petitioner is manipulating the system. From Cf. Brown, 561 So. 2d at 257 n. 7:
(“We hasten to add that our holding should not be construed to mean that a judge is subject to disqualification…simply because of making an earlier ruling in the course of a proceeding which had the effect of rejecting the testimony of the moving party. At the very least…there must be a clear implication that the judge will not believe the complaining party’s testimony in the future.”).
While the assistant attorney general cited many examples of why this particular writ of prohibition is without merit, it is, by its very nature, nearly as subjective as the writ itself. Both sides came to their respective conclusions based on their own interpretations of case law. As the appellate court looks at this issue with complete objectivity, it should see that Judge Lester has not been prejudiced against George Zimmerman — and most assuredly, not personally. In my opinion, based on what the Defense and State both submitted, the original motion to disqualify the trial judge in this case was legally insufficient. Judge Lester made the right choice, and so will the appellate judges, C. Alan Lawson, Jay P. Cohen and Kerry I. Evander.
Poor Prince George is not just afraid of a li’l old pea, he’s also afraid of his shadow. Oh, and don’t even get me started on (d)(1) and (d)(2). That’s a whole “nother” bedtime story.
On August 1, Judge Kenneth R. Lester, Jr. of the 18th Circuit Court issued his ORDER DISMISSING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, citing the defense motion requesting his recusal as legally insufficient. That was no surprise to me, but it was to George Zimmerman. His attorney, Mark O’Mara, quickly told WKMG’s Tony Pipitone that, “We presented the motion. I think the motion was sufficient on its face. He made his decision. We’re going to review it and make a determination about whether or not to appeal it or accept it.”
I’m not surprised by O’Mara’s reaction, either, but what does it entail now? I mean, where can Zimmerman’s defense go from here? They can appeal it. Or should I say may? They may certainly appeal but it’s not all that simple, as O’Mara made clear in his second statement to Pipitone about what could happen next. The case, he said, “stays in limbo, unfortunately, for a while. We will be seeking a stay of all other matters pending until the appellate court decides, if we decide to appeal.”
The key word in the final sentence is seeking, as in “seeking a stay.” What that means is that it’s not attached to an appeal. It’s a separate request. While the appeal goes to the Florida Fifth District Court of Appeal, a stay on all other matters, quite literally, stays with the circuit court.
Here’s the first thing I thought of after learning of the judge’s decision and O’Mara’s reaction. What happens to Zimmerman’s GPS ankle monitor? What about the court order restricting him to Seminole County? I know he’s been complaining about it, and that his defense is prepared to file a motion to lift the restriction. If he files an appeal, doesn’t it put everything on hold? Well, no, but that doesn’t mean he and his team don’t have a lot of other complex things to think about.
There’s the issue of money, for instance. Filing appeals isn’t free. Just consider the time it takes to file paperwork at $400 per hour, not to mention other continuing work on the case. The appeal itself will take a long time to be heard. Where is Zimmerman’s money going to come from after his parents’ Website stops pumping oil? It will not last forever. The whole mess becomes a perplexing quandary. Does he bite the bullet and stick with Judge Lester, or does he go for the appeal with money he doesn’t really have?
WILL ZIMMERMAN DOUBLE DOWN?
The idiomatic verb form of double down means to double or significantly increase a risk, investment, or other commitment. Is Zimmerman willing to risk everything, which includes an impending money problem, in order to have a judge removed from his case? While waiting an indefinite amount of time for any other relief? Remember, filing an appeal does not mean an automatic win. The appellate court might just turn him down. Where would he go from there?
In the meantime, the defense still has the option to file an indigency motion if the well runs dry, but that means getting the JAC involved and O’Mara can kiss his $400 per hour good bye. You see, while the motion to appeal is at the appellate level, the show must go on, and Judge Lester would proceed as usual. So, while things seem like they are beyond reach for the defense, they really aren’t, but there are a number of catches. There’s the part about seeking a stay. Plus, by allowing this judge to decide motions, doesn’t it just confound the whole thing? Why let the same judge rule on anything if you want him off the bench? Right now! If O’Mara files an appeal, he’s pushed himself into a corner where he’s pretty much forced to file a stay. That’s a given, right? So what’s he supposed to do?
“Provisional; interim; temporary; not final; that which intervenes between the beginning and the end of a lawsuit or proceeding to either decide a particular point or matter that is not the final issue of the entire controversy or prevent irreparable harm during the pendency of the lawsuit.”
This could include the issue over the judge, but I doubt it, because, even though these types of actions are taken prior to trial, which fits in this case, and must be answered by an appellate court; there is a reluctance to make interlocutory orders unless the circumstances surrounding a case are serious enough to warrant such action. And they are restricted by courts because they don’t want to be tied up by piecemeal litigation. The clincher is that the lower court usually enters a final judgement, meaning a verdict, before it’s appealed.
If not that, then what?
THE WRIT OF PROHIBITION
According to The Florida Bar Journal, “A writ of prohibition enables an appellate court to prevent a lower tribunal from further exercising jurisdiction in an action. Generally, it cannot be used to remedy an act that has already happened.” Whew! Relief, right? It’s not quite that easy.
While a petition for writ of prohibition “is generally used to challenge the denial of a motion to disqualify the judge of the lower tribunal,” it is also “the appropriate method for forcing a lower tribunal, including an administrative agency, to dismiss a matter for lack of jurisdiction.”
In his order, Judge Lester did leave open the option of argument at the appellate level to establish whether the motion to recuse him was the first or second motion to dismiss the trial judge, but I wouldn’t bet the farm that the higher court would rule Zimmerman’s way. As a matter of fact, that’s not even close to being the crux of the perplexing quandary he’s in. It’s…
FLORIDA SUPREME COURT RULE 9.310.
Let’s just say that, pursuant to Florida Rule of Appellate Procedure 9.310:
(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.
(b) deals with exceptions, such as money judgments and public officials. (c) pertains to bonds, (d) with sureties, and (e) with duration, and none of them apply. But if you move on to (f), and combine it with (a), we hit pay dirt.
(f) Review. Review of orders entered by lower tribunals under this rule shall be by the court on motion.
What’s that mean? It’s quite simple, actually. Remember O’Mara’s words to Pipitone, “seeking a stay of all other matters…”?
That’s right! In order for the defense to seek that stay, they must go through the same court, “which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.” “Review of orders entered by lower tribunals under this rule shall be by the court on motion” actually seals the deal. A stay motion would be filed in Lester’s court and he would have to move to agree to it. Would he? Oh, probably, but in the meantime, like I said, the show must go on. While filing an appeal, the defense can soldier on with their motions and the judge can continue to write orders. Unless. of course, the judge rules on a stay. In which case, poor, poor George will stay in Seminole County for months and months to come, gnawing at the bracelet that will stay on his ankle.
Yes, there’s been lots to ponder since Friday. I wonder what George thinks God’s plan is.
Thursday, January 31, 2013 at 9:10AM 
LEGAL NOTICE
©David B. Knechel. All Rights Reserved. No portion of this site can be reproduced in it's entirety or in part without expressed written permission by the owner/administrator of this site in accordance with the Digital Millennium Copyright Act. Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. §512(c)(3). The charges against defendants are mere accusations and the subjects are presumed innocent until found guilty in a court of law.
