State calls defense motions "in limine" lemons

“… most convictions result from the cumulation of bits of proof which, when taken singly, would not be enough in the mind of a fair minded person. All that is necessary, and all that is possible, is that each bit may have enough rational connection with the issue to be considered a factor contributing to an answer.”

- Judge Learned Hand in United States v. Pugliese, 153 F.2d 497, 500 (2d Cir. 1945)

The state of Florida just filed its  response to several motions in limine filed by Casey Anthony’s defense. Remember, in limine is just a fancy Latin way of saying “on the threshold.” They are motions filed asking the court to prohibit or limit certain testimony or evidence at trial. In this case, the prosecution struck back at seven of them, as if that’s a lucky number. I guess it depends on how Judge Perry interprets the law, which means that luck will have no bearing at all. They are:

1. Motion in Limine to Preclude Testimony or Alleged Statements of Witness Anthony Lazaro Connected to Inquiries, Conversations, or Interrogation by Corporal William Edwards Related to Sexual Relations with the Defendant
2. Motion in Limine to Preclude Testimony Connected to Questions and Responses of Witness Anthony Rosciano in the Interview by Corporal Yuri Melich and Sergeant John Allen Related to Sexual Relations with the Defendant
3. Motion in Limine Regarding any Testimony that the Defendant has a History of Lying and/or Stealing
4. Motion in Limine Regarding Testimony of Neighbor Brian Burner in Reference to the Shovel
5. Defense Motion to Exclude Irrelevant Evidence of Tattoo
6. Motion in Limine to Prohibit the Use, in any fashion of Internet MySpace References Attributable to the Defendant as “Diary of Days”
7. Motion in Limine to Prohibit the Use, in any fashion, of a Posting on the Internet MySpace References Attributable to Cindy Anthony, the Mother of the Defendant

Before I go any further, I must address a couple of things. I realize the prosecution and defense are not competing against each other in a spelling bee, but wouldn’t you think they would know how to spell Lazzaro and Rusciano by now? After all, both men will be crucial to the case, especially Lazzaro. Oh, and what’s with all those capital letters, if I may add my 2 cents worth? With all of the other letters capitalized, at least the $3.00 and $5.00 words, what happened to fashion, and since when was Myspace written with a capital S ? If you believe it’s MySpace or My Space, don’t think I didn’t do my homework. Am I nitpicking? Well, I guess it’s not all that important, except for the slight chance the defense will try to have the case thrown out on a technicality, which would be preposterous…

“Your Honor, my client dated Lazaro and Rosciano, not the other two guys.”

“Overruled.”

The defense was careful to point out the significance of following stringent due process standards established by the Supreme Court since this is a capital case and death is different. However, and in my opinion, each and every case argued in a court of law is important, regardless of its magnitude. I am certainly not alone in this view, and one thing any prosecution should never strive for is the conviction of an innocent person. This particular prosecution seems to be on the up and up and not overzealous. They are also much more organized than Casey’s defense, at least at this juncture, and they argue well. For example, the response was quick to point out that “in order for any evidence to be excluded, the evidence would have to have the effect of inflaming the jury, or improperly appealing to the juror’s emotions.” This is a recurring theme in the state’s rebuttals.

In some cases, it’s just plain common sense that should dictate the judge’s decision on the in limine motions filed by the defense. I understand fully the reasons why a good defense files a lot of motions, one of which I have explained before; that you throw everything at the wall and hope something sticks, and if all else fails, throw the kitchen sink and pray it pokes a giant hole in the wall the prosecution has built. “Relevant evidence is relevant evidence, hearsay is hearsay, and improper character evidence is improper character evidence despite the crime or the penalty.” Rules of evidence “should never be abrogated or applied any differently” because of the punishment the defendant is facing. In other words, it is what it is, or what you see is what you get. Florida Statute 90.401 states that relevant evidence is evidence tending to prove or disprove a material fact. The prosecution cited this statute and a quote from McCormick on Evidence §185 that says relevant evidence “has a tendency to establish a fact in controversy or to render a proposition in issue more or less probable. To be probable, evidence must be viewed in light of logic, experience and accepted assumptions concerning human behavior.” One way to look at this is simple. In and of itself, to borrow a neighbor’s shovel is meaningless, but coupled with other bits of circumstantial evidence, a clearer picture may arise about why the shovel was borrowed and for what purpose. As the state wrote, “Each item of evidence is a link in the chain of proof.” Also, as Judge Learned Hand wrote, “[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in culmination prove it,” because the “sum of an evidentiary presentation may well be greater than its constituent parts.”

The state’s response also looked into prejudicial v. probative analysis under F.S. 90.403, regarding exclusion on grounds of prejudice or confusion: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” What happens here is anyone’s guess, because the state acknowledges that the “trial court has broad discretion in determining the admissibility of evidence and in weighing its probative value against any prejudicial effect.” It is at this point the state argues its case against the motions in limine filed by the defense.

ARGUMENT REGARDING MOTION IN LIMINE TO PRECLUDE TESTIMONY OR ALLEGED STATEMENTS OF WITNESS ANTHONY LAZARO [sic] CONNECTED TO INQUIRIES, CONVERSATIONS OR INTERROGATION BY CORPORAL WILLIAMS [sic] EDWARDS RELATED TO SEXUAL RELATIONS WITH THE DEFENDANT and MOTION IN LIMINE TO PRECLUDE TESTIMONY CONNECTED TO QUESTIONS AND RESPONSES OF WITNESS ANTHONY ROSCIANO [sic] IN THE INTERVIEW BY CORPORAL YURI MELICH AND SERGEANT JOHN ALLEN RELATED TO SEXUAL RELATIONS WITH THE DEFENDANT

As I argued in an earlier post about the rather sticky subject of sex, the state was careful in wording its response. The relationship with Rusciano predated the disappearance of Caylee, so what transpired in the bedroom is of little to no value. Lazzaro’s, however, is a different story. Casey slept with him every night after Caylee was last seen. This continued until he left for New York, but of importance is what Casey was like. Common sense tells us that a mother, ANY MOTHER, would be so incredibly desperate to find her missing child, sexual intimacy would be totally out of the question.

The state adds that “the existence of an intimate relationship between the two during the time frame when Caylee Anthony was last seen and when she was reported missing by her grandmother is highly relevant.” I certainly agree. According to Lazzaro, Casey never mentioned her missing daughter to him other than to tell him she was with her grandmother, Cindy, or the nanny. This is extremely important in painting a picture of Casey’s demeanor on June 16, when the state says Caylee was last seen, through July 15, when the party door slammed shut. When Lazzaro learned of the “kidnapping”, one of his first text messages to Casey expressed incredulity that she never told him anything about it the whole time she was with him. How odd.

ARGUMENT REGARDING MOTION IN LIMINE REGARDING ANY TESTIMONY THAT THE DEFENDANT HAS A HISTORY OF LYING AND/OR STEALING

As Cindy once said, a liar does not a murderer make. That’s true, but when it’s part of the time frame between June 16 and July 15, should it matter? The state acknowledges the difficulty of bringing it up if Casey never takes the stand and cannot be cross examined. There is also the issue over how long Casey had been doing it. Most of her life? While Cindy pursued the truth about her granddaughter and Casey continued to lie, I don’t see any evidence that this was the first time Casey lied about anything. She was (and remains) a born liar. To be honest, I don’t know any murderer who desires to tell the truth about what they did, so this defense motion in limine, in my opinion, could go either way with the judge. The state says her lies are “relevant to the conciousness of guilt which may be inferred from such circumstances.” To me, inferred is too flimsy of a word.

ARGUMENT REGARDING MOTION IN LIMINE REGARDING TESTIMONY OF NEIGHBOR BRIAN BURNER IN REFERENCE TO THE SHOVEL

If you ask me, this one’s a no brainer and I shouldn’t have to cite anything from the state’s official response. Common sense dictates the answer. The child was missing long before anyone knew it, the car smelled like there was a dead body in it, a shovel was borrowed, but not used, and the body was eventually found tossed in the woods around the corner from the house. I say, if the judge decides the shovel is of no relevance because it “could” have been used to dig up some nonexistent bamboo roots, then the remains must be tossed, too, because there’s no solid proof Casey “could” have thrown them in the woods. Or did. Does that make sense? Good. By the way, I have bamboo in the front yard and I’ve never seen a root, let alone tripped over one. It grows in clusters and most of it was grown here for a reason. Usually, you find it facing north because if buffers the cold wind that comes down from the north. It was used to help protect citrus from freezing air.

As for the shovel, it will go hand in hand with what Brian Burner indicated he saw. On three separate days, the defendant backed a vehicle into the garage. That’s something he had never see her do before. We can draw our own conclusions, but the state left this question for the court: “Does the evidence of borrowing a shovel from the neighbor within two days of the child missing have a tendency to render a proposition in issue - that it was borrowed with the intent to conceal remains - - more or less probable?” You can decide for yourself.

ARGUMENT REGARDING DEFENSE MOTION TO EXCLUDE IRRELEVANT EVIDENCE OF TATTOO

Once again, this is an easy one to figure out, and the state said it best in its final sentence about this motion. “The tattoo is relevant to show the Defendant’s state of mind during this time period, and the inscription obtained can certainly be read either as an epitaph for her daughter, or signaling a new beginning for herself.” Does this seem like a person waging their own investigation into the disappearance of their child?

ARGUMENT REGARDING MOTION IN LIMINE TO PROHIBIT THE USE, IN ANY FASHION, OF INTERNET MYSPACE REFERENCES ATTRIBUTABLE TO THE DEFENDANT AS “DIARY OF DAYS”

and

ARGUMENT REGARDING MOTION IN LIMINE TO PROHIBIT THE USE, IN ANY FASHION, OF A POSTING ON THE INTERNET MYSPACE REFERENCES ATTRIBUTABLE TO CINDY ANTHONY, THE MOTHER OF THE DEFENDANT

I lumped these two motions together because they are similar, in my opinion. Casey wrote a passage in her Myspace page on July 7 that the defense attributes to a song written by Hayden Christianson. To be quite frank, I am of a completely different generation than Casey. As much disco/punk/goth/mosh/hip hop/etc., etc. styles that have passed by me through the years, and my own changes in music appreciation and lack thereof, I can’t make a call on it. Is it from a song? Is it from a poem? Did Casey make it up? Does it mean anything? I don’t know, and that’s where the wisdom of a judge takes control. Allow it and let the two sides battle it out if it’s all that important. The same thing is true with Cindy’s entry in her Myspace account. After not seeing her granddaughter for several weeks, she asked Lee to help her post an important message to Casey. As to the meaning of the posting, the state will not attempt to argue that Cindy knew her grandchild was dead. Cindy was desperately seeking Caylee and her daughter kept them apart. Casey ignored her mother’s pleas and this will show the relationship that existed between the two. There wasn’t much of one.

Well, there you have it. My thoughts on some of the motions that will determine the make-up of the impending trial. In order for the defense to mount a strong case, it will have to overcome the almost insurmountable evidence, albeit circumstantial, against their client. As of today, this is a case the state can readily win. Do I blame the defense for filing any of these motions? Of course not, but even if it wins 3 or 4 of them, it’s still quite an uphill battle. No matter what, how Casey acted during the month her daughter was missing will be her biggest hurdle to overcome.

One final thought regarding the $583 sanction against Jose Baez - I talked to an attorney about it and he said that it’s not necessarily a bad thing. I know Judge Perry refused to consider another look at it today, but sometimes a lawyer will find that the fine is worth it when it comes down to how much time the defense can buy to keep important information out of the state’s hands. Was this the case here? I can’t say, but in the long run, will it really hurt Baez? After the trial is over, life goes on and he continues to represent clients. Vita perseverat.

This won't be a Friday Happy Hour

I spoke to a rather powerful attorney earlier today. This person told me that when a judge schedules a hearing for 4:00, 4:30. 5:00 or 6:00 on a Friday afternoon, of all dates and times, it means the judge is not particularly happy with something that’s going on. It’s written in stone and you can bank on it. I asked if this meant Casey’s defense, and I was told, no, this goes for both sides. The two sides should have been able to work things out without getting the court involved. Since the court must intervene, I would expect to hear some sort of reprimanding that will include both sides of the aisle. 

Friday afternoon at 5:00 pm should be a hideous wake up call. The judge is losing his patience. He’s already told everyone that if he needs to step in, they won’t appreciate the hours he sets. I mean, who wants to be in court after hours on a Friday afternoon? Right… No one, including the judge.

I will write about the experience. It should be interesting.

Pie in the sky?

The term “pie in the sky” originally meant to be a promise of heaven while continuing to suffer through living in the material world. It was coined by Joe Hill in a song written by him in 1911. Joe was a Swedish-born itinerant laborer who migrated to the United States in 1902. The Web site The Phrase Finder described his songs as radical as he fought for labor organizations. “The phrase appeared first in Hill’s ‘The Preacher and the Slave’, which parodied the Salvation Army hymn ‘In the Sweet Bye and Bye’. The song, which criticized the Army’s theology and philosophy, specifically their concentration on the salvation of souls rather than the feeding of the hungry, was popular when first recorded and remained so for some years.”

You will eat, bye and bye,
In that glorious land above the sky;
Work and pray, live on hay,
You’ll get pie in the sky when you die.

Today, pie in the sky can allude to many things, such as asking for more than you end up with or expect, for that matter. You may ask for the sky and end up with pie, which is better than nothing. It reminds me of an experience I had while selling advertising for a newspaper many years ago. Ed Mack, now gone, was the editor. He was also a member of the Rotary, the Chamber of Commerce and very active in the Hunterdon County YMCA, volunteering many hours of his personal time.

Ed and I got along great. A wall about 7 feet high is all that separated the editorial department from advertising and my desk sat closest to the line of demarcation. The ceiling was high, so we could hear each other as one side got stories and the other sold ads.

One afternoon, Ed came over to my side with an idea. Bear in mind, in the world of newspapers, in particular, a common argument prevailed and it probably still does to this very day. The Advertising Department pays the salaries, we’d cry, while the Editorial Department would adamantly point out that its news that sells a newspaper and without news, there would be no newspaper. In the end, those key points were muted by the mere fact that, either way, we had jobs, and that’s what mattered most. Today, it’s not so easy.

Ed knew that I was a member of the now defunct Flemington Area Jaycees. On this particular afternoon, he wanted to know if I could get a band of fellow Jaycees together to man phones at the telephone company, which had already given its permission to do so. It was a simple request. The intent was to ask for donations from members of the Y and the general population in order to build the first installment of a large complex that was in the works, an Olympic-sized swimming pool to the tune of $150,000. He knew I was an officer of the club and, with mild coaxing, that I could easily table the idea at our next meeting. Sure thing, I said, and to fast forward, about 8 or 9 of us showed up to sit in open booths at the phone company the following month. Ed was the man in charge and he gave us stacks of 3” x 5” filing cards with the names, addresses and phone numbers of potential donors. My close friend, Frank Foran, was and still is a top-notch sales rep, and he was in fitting form for the occasion.

Of course, we all focused on the cards we had. Initially, I called people and introduced myself as a member of the Flemington Jaycees and that we were proudly supporting the YMCA in their effort to bring our area a large and highly professional educational and recreational sports facility. We all know the Y. All of Hunterdon County would shine because of it. Perhaps you saw it written up in the newspaper? Oh, yes, of course you did. Well, the first leg is the swimming pool and we need to raise $150,000. Could you please help out by donating $50 toward our goal? No? How about $25? No? Yes, I understand times are tough. [Gee, that was back in the late 70s.] OK, well, thank you, and if you can ever help, please call me at the newspaper and I will make sure you are contacted by the right people. That meant Ed, whose office was a mere stone’s throw away from my desk.

After about a half-dozen disappointing phone calls begging for money, I got zero results and I thought about it. I had to change my tune or I would end up a major flop to the man who was directly under the publisher, my employer. This wouldn’t sit well with Bengt Gaterud, the sales manager, either. I rewrote some of the lyrics. I had my eye in the sky for pie in the sky.

Hi, I said, as I gave the same opening spiel with the hundred-and-fifty grand price tag. There was no need to change that, but when they asked me how much I was expecting them to give, it wasn’t $25 or $50 I requested. Instead, I asked for $2,000. Yes, $2,000 would be great. Of course, they exploded with raw emotion.

“Two thousand dollars?!!! You gotta be nuts! I can’t afford anything like that!”

“OK, how about a thousand?”

“You gotta be kidding me?”

“No, I’m serious. How about fifty?

“Fifty, you got it.”

And with that change in tactics - the rapid-fire subtle suggestions, I ended up making the second-most money of the night and it was a huge success. Of course, Frank made the most, and no one expected less from him. He’s that good.

The next morning, Ed and I purposely crossed paths. He thanked me and the fellow Jaycees. I asked him how well we did. He said it was huge, a lot more than he figured. He told me one other thing.

“I don’t know what you did, Dave, but I gave you a list of deadbeats. I didn’t expect you to make any money at all, but you came in second. I gave you that list because you are a salesperson for this newspaper. I wanted to see what you had in you. You really surprised me.”

OK, now you may think I’m strutting my stuff, but I’m not. As long as I’ve known Frank, he’s encouraged me to go into sales. When he’s 95-years-old and I’m 90, I can hear him in his decrepid, soft and gravelly voice, “Dave, you need to go into sales.”

I never will. I’ve found my niche; it’s writing, and there’s a point to my story - the case against Casey. I constantly hear from people who think she deserves the death penalty, but won’t get it. Some people think she should get life without parole so she can live out her days in prison, wallowing in the memories of her precious daughter and what she, herself, could have become in life. Some people don’t think she’s guilty of murder, but none of that is my point. To use the old cliché and cut to the chase, the state has requested the death penalty. Does the state seriously intend to execute her? You bet, or it wouldn’t have been placed on the table to begin with. This ain’t no dress rehearsal, as my old friend Tom Corkhill always said. This is the real deal, only there is a ‘what if’ formula here, just in case. Because of the death penalty, the jury must be made up of people willing to sentence a person to death. It doesn’t automatically mean they will, but means they might be more prone to finding her guilty. The odds increase exponentially with a death qualified jury and the state knows it. There’s the sky, but will the aim be too high?

In the end, the defense is going to put on a much better show than originally anticipated by us, the general public. Perhaps, in all their seasoned wisdom, the state knew that as time went on in the sweet by and by, things would get tougher. Today, with the recent addition of several more well-seasoned defense attorneys, please allow me one more cliché. I think that, from now on, this is not going to be a piece of cake for the state.

Trial By Ambush

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.

Closer to the edge

"This gender bias has something to do with the decision to seek death in this case. I would only ask, your honor, that you think about this, and I know you will carefully.

“People don’t say, you know, ‘She’s a... it’s an impolite word... but, you know, she’s a whore, so she should die. Right? They don’t say that out loud. Oh well, they do in the blogs, your honor, but they don’t say that here in court ... but underneath, that is what’s going on.”

- defense attorney Andrea Lyon, in court today

"She doesn't like the fact that our law permits jurors to assess the character of individuals in deciding the death penalty. That's the way the law is whether it's a man or a woman."

- prosecutor Jeff Ashton, in response to Andrea Lyon today

[For the record, Judge Perry entered the courtroom at precisely 9:02 AM. Two minutes late. Cindy came in a little late, flanked by two family friends, but no George. Read into it what you will. Also absent was Brad Conway.]

Did Casey's defense team take a big risk when it demanded that Judge Stan Strickland step aside? Did it expect the top judge, Chief Judge Belvin Perry, Jr., to take hold of the reins, or was it expecting a judge more favorable to its cause, one less inclined to keep the death penalty on the table? For certain, it took that gamble and the outcome is real. The court wanted none of that. Today, the defense did its best to remove the onus of death that's been hanging over Casey like a heavy cloud waiting to pour down its reign of punishment with each stinging drop in motions lost. Today, Casey began visualizing the prospect of dying at the hands of the state as a harsh reality. There is no stopping it now. This is no game; no dress rehearsal. No one in their right mind would ever act or play games with life and death. This was all too real today. Whether her tears were or not is a matter open for discussion, but cry she did.

I must admit, I was almost certain why Cheney Mason asked the judge at the tail end of the hearing last Thursday if Casey had to attend all hearings. I am convinced it was to spare her from the torturous tirade that would ensue during the motions heard today regarding death as a possible punishment. I am certain the judge made sure she would hear every word of it. DEATH. DEATH. DEATH. That's why she must attend her hearings. She needs to face reality; something she's never had to do all her life. Welcome to the world, Casey. Welcome to Belvin Perry's court.

Today, the hearing dealt "strictly" with death penalty motions. It wasn't a complete bloodbath for the defense, but they do have a few wounds to lick. First of all, let me say that I had the opportunity to ask three separate attorneys about the motion filed to recuse Judge Strickland. All three remain puzzled, even after I mentioned the motion to reconsider earlier rulings by Strickland filed by the defense. Could that have been the motive behind asking for the recusal? To, perhaps, get some decisions overturned? All I can say is that they still couldn't understand the reason. It was a very stupid move by the defense. That brings my total to 15 attorneys I've asked, with every response the same. Also, I had a chance to talk to two of the deputies sitting in the back row of the gallery. They are the jailers who bring Casey to court and take her back to 33rd Street. They deal only with high-profile and/or dangerous inmates. Since they are there, why not watch the proceedings? By the way, they were quite nice; professional and approachable.

THE MOTIONS

Gender Bias

Casey's defense team, "manned" by Andrea Lyon, argued that the death penalty is sexist. Ms. Lyon brought along an expert on gender and its relationship to capital punishment. Elizabeth Rapaport is a University of New Mexico law professor. Jeff Ashton objected to her presence by arguing that the defense witness was not listed and the prosecution had no time to prepare. Judge Perry overruled and allowed her testimony. She said she has found that white middle-class mothers accused of filicide get a lot more media coverage than other cases. She asserted that issues such as whether the defendant has a tattoo, how she dresses or if she goes to see male strippers have nothing to do with a criminal case. They are irrelevant. A woman can still be a good mother. She said that mothers who are considered deviant are harder to defend. When Andrea Lyon began talking about Caylee being healthy and happy, Casey began to cry.

Initially, Judge Perry offered the prosecution the chance to reserve the right to cross-examine within 30 days if they needed time to prepare to question Rapaport. Jeff Ashton decided not to opt on that, but he stressed that she had no background in psychology. Ultimately, the judge ruled against the defense.

Automatic appeal of death sentence

All defendants who are sentenced to death get an automatic appeal to the Florida Supreme Court. Lyon argued that the state's supreme court can't legitimately review the case without a report written by a capital jury, which isn't a requirement in the state. Lyon tried to stress that the appellate review is inadequate because the jury doesn't have to explain what aggravators it had found beyond a reasonable doubt that triggered the death penalty. Judge Perry denied the motion.

Why the state is seeking death

The defense requested statutory aggravators - legal reasons - that clearly define why the State is seeking the death penalty. Florida law requires a jury to weigh aggravators, such as whether the murder was premeditated and if the victim was 12-years-old or under. In order for the defense to prepare its side, they need to know what aggravating circumstances the State will try to prove if the case reaches the penalty phase.

"We should be told what changed and what we are facing and what exactly the aggravating factors are and how they will prove it," Lyon told the judge. "The indictment itself… doesn't even tell us their theory or evidence on how this homicide happened."

She said there are 14,000 pages of investigative documents to sort through. "We don't know what the theory of the case is from the prosecution's point of view."

Ashton said the State is not obligated to provide legal theories on this case. Of the fifteen aggravators, only six apply. He said the fact that the defense can't figure out what is what and which ones apply is absurd and incredible.

Lyon struck back by saying the burden of proof is on the State. Ultimately, Judge Perry agreed with her. He told the State it has 10 days to provide the aggravating factors to the defense. At the same time, he said, "the Court at this time will deny the request at this time of the State of Florida a list without prejudice... Whether we like it or not, death is different, therefore, the motion will be granted."

Here is a direction I feel the defense could have taken today. At least, it was worth a look, in my opinion. Sprinkled throughout the motions was a reference to Ring v. Arizona. Ring v. Arizona is, according to Wikipedia, a case in which the United States Supreme Court applied the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), to capital sentencing schemes, holding that the Sixth Amendment requires a jury to find the aggravating factors necessary for imposing the death penalty.

Former Florida Supreme Court Justice Leander J. Shaw, Jr. wrote an opinionthat, in certain circumstances, would vote to grant a capital habeas petitioner relief on the basis of Ring v. Arizona. A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner's release.

Justice Shaw expressed his view that the Florida death penalty statute violated the principle enunciated in Ring v. Arizona:

Nowhere in Florida law is there a requirement that the finding of an aggravating circumstance must be unanimous. Ring, however, by treating a “deathqualifying” aggravation as an element of the offense,imposes upon the aggravation the rigors of proof as other elements, including Florida’s requirement of a unanimous jury finding. Ring, therefore, has a direct impact onFlorida’s capital sentencing statute.

At another point in his opinion, Justice Shaw concluded that Florida’s statute was flawed:

I read Ring v. Arizona, 122 S.C. 2428 (2002), as holding that “an aggravating circumstance necessary for imposition of a death sentence” operates as “the functional equivalent of an element of a greater offense than the one covered by the jury’s verdict” and must be subjected to the same rigors of proof as every other element of the offense. Because Florida’s capital sentencing statute requires a finding of at least one aggravating circumstance as a predicate to a recommendation of death, that “death qualifying” aggravator operates as the functional equivalent of an element of the offense and is subject to the same rigors of proof as the other elements. When the dictates of Ring are applied to Florida’s capital sentencing statute, I believe our statute is rendered flawed because it lacks a unanimity requirement for the “death qualifying” aggravator.

I am a bit surprised the defense didn't capitalize on Justice Shaw's statement regarding this lack of unanimity for the death qualifying aggravator. Later, perhaps.

Information related to the potential penalty phase

During the penalty phase of a trial, the defense tells the jury why its client does not deserve a particular sentence. In this case, it may come down to life or death if Casey is found guilty. Her attorneys want the judge to issue an order protecting her from having to "reveal any information relating to any potential penalty phase proceeding to the State prior to the time she is actually convicted of first-degree murder."

Andrea Lyon feels there are witnesses who may be afraid that media will focus on them. So far, every witness has faced scrutiny by the press, she said. Jeff Ashton argued that since the defense agreed to take part in the discovery process, everything of that nature - witnesses, documents and other material - becomes a matter of public record.

Judge Perry denied the defense motion, but did tell the attorneys that if a witness faces any harassment, the court can withhold some personal information from the public record, such as a person's address.

State's motive in seeking death

Initially, the State announced it wasn't going to seek the death penalty. Four months after Caylee's remains were found, prosecutors changed their minds. Casey's defense wanted to know why. It accused the State of wanting to financially break the defense. Lyon said that the timing was suspicious. She questioned the State's motives.

Ashton argued that for the defense to suggest their interest in seeking the death penalty was borne of a plan to bankrupt the defense is untrue. "There's nothing in this record that would tend to suggest that the State sought the death penalty for any improper motive. It's the third one we've had alleged. The record does not support and the court should deny the motion."

Lyon requested a sidebar with the judge to discuss whether she can keep some of the arguments under seal. They returned and nothing was offered.

"Defense failed to meet their burden of proof," Judge Perry stated in his final ruling of the day.

With all of the motions heard, the judge wanted to take a look ahead at some of the other pending death penalty motions. "Now, there are eight to twelve death penalty motions left. I will give the defense five days to list, to be sure which ones have not been ruled on, and then I'll give the State ten days."

When the defense balked at five days and asked for seven, the judge relented."OK, seven days to respond."

End of hearing!

We took a ten minute break earlier. At some point during the hearing, Jeff Ashton said he had been prosecuting for 30 years. I ran into him in the hall and said something about those years. "You must have started quite young."

"Yes, when I was 23."

"So, you're 53..."

"No, not yet. Not until October."

Something tells me we'll all be around come October. Who wants to be in charge of sending him a card?

Baez doesn’t know JAC

“Dr. Henry Lee once told me at a national association conference that he’s been known to work for a crate of oranges.”

- J. Cheney Mason at Casey’s indigence hearing

Dear Mr. Mason, as a Florida native, you are keenly aware that this state is loaded with oranges; some of the best tasting ones in the world, I might add.

Request to seal all documents from the Justice Administrative Commission

Today, I chose to watch the hearing on TRU TV and the Internet instead of making the tedious trek down to the courthouse. I’m glad I did. Money handling is not one of my stronger points. Being on time is, and so is it with one particular judge; 9:00 AM sharp!

The first thing Chief Judge Belvin Perry, Jr. wanted to discuss was Casey’s request to seal all records related to the public funding of her defense. Jose Baez opened by saying that he wasn’t asking the court to reinvent the wheel, something Judge Stan Strickland referenced at a previous hearing. Baez mentioned that limited circumstances do exist to lock up public records and it’s addressed  in the policies and procedures manual. He cited 3.216(a) as his guide. Immediately, I went to my Florida Rules of Court (State) manual and looked up 3.216(a).

In the section on pretrial motions and defenses, Rule 3.216 is about insanity at the time of the offense. Oops, wrong book, although some may beg to differ with that. Regardless, Baez argued that not granting the motion would bring a clear and present danger to Miss Anthony’s right to a fair trial and closure is essential to ensure that. He brought to light the Orlando Sentinel publishing her purchases of spicy nachos from jail and other items. He also mentioned pseudo-news media, which probably refers to bloggers and forums. I would strongly question how snack items would prejudice a jury, though.

Chapter 119 of Florida Statutes covers the area of public records. The law is quite vast and specific in granting us the right to know what’s going on, particularly when it comes to paying taxpayers’ money. An attorney for theOrlando Sentinel, Rachel Fugate, stepped up to the podium after filing a motion to intervene. She argued that the defense’s exemption motion was too broad. Agreeing, the judge decided the defense had not met its burden because the motion to seal was too vague. It would have covered a multitude of legal issues at one time. Individually, he said, the defense could readdress some of the elements. The defense can request to seal specific records on an expert-by-expert basis. He understood that some are ones the defense doesn’t want to reveal.

One of the reasons, in my opinion and that of others, including attorneys, why Cheney Mason filed the motion to dismiss Judge Strickland was due to his response to Mason’s request at the indigence hearing. He had just stepped up to the plate and expected to hit a home run out of the ball park. How, you may ask? By having the judge grant his request to keep money spent on Casey’s defense behind closed doors. Judge Strickland denied that request and made him look bad. Unfortunately for him, his temper tantrum garnered a tougher, more strict judge, one that’s not going to let one penny of the State’s money go unguarded without knowing where it’s going. Perry’s still not satisfied with where all of the ABC money, and then some, went. This is no different from how Judge Strickland would have ruled. Mason’s net gain? Zero.

Show us the money!

That led directly to the matter at hand – why the hearing was called in the first place. Just who and what does the defense want the state to pay money to? Judge Perry opened by announcing that the State doesn’t pay “full monte” for travel expenses. The JAC objected to out-of-state providers if common experts exist in the state of Florida. That sounds reasonable and with that, the door was opened for the defense to begin providing a litany of experts they expected the state to pay. A lot of the judge’s decisions were conducive to how much work out-of-state experts had spent on their studies up to this point. In other words, would it be cheaper to let someone like Dr. Henry Lee finish his work to date and continue or cheaper to hire someone in-state who would have to start from scratch? In the end, Dr. Lee will stay. He is well-known for his work in forensic science. GRANTED.

Jeanene Barrett is the Mitigation Specialist for the Center for Justice in Capital Cases. Baez said that she has spent 384 hours working on the case. That includes many hours investigating Casey’s family and old friends in Ohio, Florida and elsewhere. He stressed that Barrett has a close and personal relationship with Casey and it’s crucial to the case that this bond is kept. The judge agreed it would be less expensive and unfair to hire someone new, but the JAC attorney was quick to point out that the rate for investigators and specialists will drop from $50 to $40 per hour on July 1 of this year. GRANTED.

At that point, the wisdom of good Judge Perry shone through. He quoted formerChief Judge Susan Shaeffer of the Sixth Judicial Circuit:

“Death is different.”

Baez emphasized that the defense team will “certainly make sure we are as frugal as can be, especially with investigators.”

Moving right along, as is the case in Judge Stricter’s court, the topic turned to depositions. The judge set the cap for out-of-state depositions at 100 hours. Baez stated that he expected to do at least 400 hours in-state. No you won’t, Judge “Stricter” said, and promptly set the amount at 300 hours.

At this time, 10:30, the good judge decided to take a 15 minute recess. It resumed at 10:45 sharp.

Next up on Jose Baez’s wish list was forensic entomologist, Dr. Timothy Huntington, from Nebraska. Dr. Huntington is the Assistant Professor of Biology at Concordia University in Nebraska, where he teaches Principles of Biology, Elements of Anatomy and Physiology, Entomology, Gross Anatomy I & II, Zoology, and Community Ecology. Because he is deeply involved in his work on the case, permission GRANTED.

A request for a forensic anthropologist was GRANTED.

The defense asked to keep their forensic botanist from Colorado. GRANTED.

Baez wanted two forensic pathologists. Judge Perry granted one, and reiterated that any and all specialists will work under strict JAC guidelines. GRANTED.

Can we keep Dr. Werner Spitz? Please, please, oh pretty please??? He performed the defense autopsy on Caylee back on December 24, 2008, so most of his work is through. GRANTED.

How about a digital forensic expert from North Carolina while we’re at it? As long as over 50% of the work has already been performed and there’s a saving, sure, the judge responded. GRANTED.

At this point, Judge Perry reminded the defense that Skype can always be used to save money in lieu of travel costs. He also said that video conferencing is available through the courthouse as an electronic alternative.

What about noted DNA expert, Dr. Lawrence Kobilinsky? He is well-known as a blood, mitochondrial and nuclear DNA specialist. JAC pointed out that there are several doctors who do the same work in the state of Florida. Because his work is over 60% done, retaining him was GRANTED.

Baez then moved into lesser known avenues of specialists and experts. He requested a trace evidence expert, one who explores such things as hair and textile fibers. Judge Perry asked why Dr. Henry Lee can’t do that work.DENIED WITHOUT PREJUDICE.

Just so you know, “without prejudice in a judgment of dismissal ordinarily indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action, as though the dismissed action had not been started. Therefore, a dismissal without prejudice makes it unnecessary for the court in which the subsequent action is brought to determine whether that action is based on the same cause as the original action, or whether the identical parties are involved in the two actions.”¹

Next up, Baez talked about hiring a forensic chemist. This is almost an exclusive club with Dr. Arpad Vass manning the helm at the Oak Ridge National Laboratory. He is well versed in chemistry, physics and anthropology. Baez mentioned a doctor in Belgium, but he did say he would consult with Vass for other alternatives.

This delved deeply into the area of human decomposition. Was this the body farm, Judge Perry queried? Baez said this covered human and canine odor observations. Judge Perry said that much of the evidence was circumstantial and another expert was necessary. GRANTED.

The conversation then, naturally, turned to the issue of forensic evidence and the study of human decomposition. What about the timing and placement of the body? Here is where Barrister Jose Baez uttered the biggest $10 word of his illustrious career: taphonomy. There. He said it. Taphonomy is the study of decaying organisms over time and how they become fossilized, if they do. Paleontologists work in this field. Paleontologists study dinosaurs, which Assistant State Attorney Jeff Ashton was quick to point out they do not. The State does not recognize it, either, and a 2-prong curriculum vitae may be necessary, the judge said. In other words, he wants to see some resumés from both sides.

Baez asked for a cell phone expert. This perplexed the judge. He said the State could tell when Casey was sleeping and awake by her cell phone pings and there would be no way to determine the time of death or place by those pings. Judge Perry didn’t buy into that one and the motion was DENIED WITHOUT PREJUDICE.

Jose Baez came ready. Talk about 2-prongs, there’s the old adage about asking for everything and settling for less, but more. There’s also the one about being careful what you ask for. He expected the state to buy two Pontiac Sunbirds to determine if the same results could be achieved. No, the judge said, DENIED WITHOUT PREJUDICE.

He asked for jury consultants. Jury consultants? Linda Drane Burdick pointed out that Jeff Ashton and Frank George are jury consultants. Judge Perry said so is Cheney Mason. DENIED WITH PREJUDICE. In other words, don’t bring it up again, silly.

The defense requested a K-9 expert. This is where some barking took place. How reliable are dogs? All dogs are handled differently. What about dog logs and methods of training? How do those procedures vary from one trainer to the next? There’s already substantive conclusionary evidence. The work has been done. This is a contentious issue! Look, said Mr. JAC Attorney, since the bulk of the work has been done, put a limit on the time. OK, 20 hours max. GRANTED.

Baez spoke of the amount of money spent on public records requests from various government agencies. While the JAC wasn’t aware of any specific requests, it still decided to waive all fees. Baez said the defense had spent thousands of dollars on records. In the end, the judge set a limit at $3,500.

Some motions and requests for funds and specialists will be held in camera in the future. Perry warned the defense that he would go over the specialist’s expenses with “a fine-tooth comb.”

Cheney Mason speaks!

Some issues could be resolved without hearings, he said. Burdick responded that when the State has responded, it was an ad nauseum giant waste of time. Judge Perry said it was like blowing “smoke over the papers.” Ashton said Lyon has declined those procedures without a hearing, so it all comes back to square one. As much as the new judge is there to rule, plenty of squabbles still exist and nothing will take all of them away. These are two sides that are so far apart from each other, there’s no way everything will be settled until the jury says so.

The issue of schedules came up again. The prosecution and defense must provide deposition schedules by May 17. At the end of today’s hearing, there were a few odds and ends to be cleared up. The judge reiterated that he is bound by the rules of the JAC. Because Mason is a jury expert, as witnessed by his cases argued in front of him, and since he is working pro bono, there will be no money for travel expenses. Mason whined that his Serrano case took three weeks to find a jury. Judge Perry said we will have time to work on that. There will be 12 jurors and 6 alternates. This judge is not a fan of jury questionnaires, either.

Mason made one bold request. Actually, it wasn’t a request, it was more like a mild demand. Miss Anthony does not wish to attend the hearings any longer. She’s had enough and they are irritating her. The media hordes are making a mockery of everything she does, everything she wears. Assistant State Attorney Frank Gorge spoke up. No way, Jose, although it was Cheney. In the end, Chief Judge Belvin Perry had one more thing to say. An amended trial order will be sent out and she will not have to attend status hearings, but for all future motion hearings, the defendant needs to be present, particularly because this is a death penalty case. DENIED!

In some key areas, the defense made some headway. But would it have been different under the other judge? I would venture a strong guess the answer is no. Both are recognized for being fair. One is more formal than the other. One is more by the book. Will Casey receive a fairer trial because of it? I seriously doubt it. One thing is certain, the hearings are about to get really hot and heavy. After Monday, Tuesday and a smattering of motions, including ones that the defense is arguing over how Judge Strickland ruled, expect to see some motions to suppress evidence. They haven’t even scraped the surface yet.

One last thought on today’s hearing, and as the title suggests, Jose Baez didn’t know JAC today, but the judge most certainly did.