Another One Bites The Dust

"With regret, I am forced to resign as George and Cindy Anthony's attorney. The defense motion filed on Aug. 9, 2010, contains allegations that are not, in fact, true. As an officer of the court, I cannot stand idly by knowing allegations involving me have been misstated. I am now a witness to an inaccurate legal pleading filed in our court system. As such, I cannot continue in good conscience as a legal representative. George and Cindy Anthony have done nothing improper, it is the failure of the defense to verify the facts alleged in their motion that forces my withdrawal. I will continue to support the Anthonys, will continue to attend hearings and the eventual trial, and most importantly, I will continue to search for the full truth regarding the killing of Caylee Marie Anthony."

- Brad Conway wrote in his  letter of resignation

George and Cindy Anthony's attorney, Brad Conway, will no longer represent them. The move is a result of a motion filed by Jose Baez & Company in the never ending dispute with Texas EquuSearch.

First reported on the WESH-TV Web site, Conway appeared on the NBC Today Show to make his announcement. Regrettably, he said, he had to withdraw as the attorney for Casey's parents. On the network program, he claimed that the defense made false claims and he denied that he was granted full access to TES files. There were several misrepresentations, he added. He said he was given the same treatment as Baez and Cheney Mason regarding the roughly 4,000 pages of documents from TES volunteer searchers. Now, he feels he may be called as a witness for the defense. 

Brad Conway has been a good friend and trusted counsel to George and Cindy. I've had several talks with him and he's an all-around good guy. I understand the defense fighting for their client, but this is one more glitch in the case. This team of attorneys has taken out one of the best judges in the Ninth Circuit Court, and now, Brad Conway. Believe me, I know precisely how they sting.

There is much bad blood between the defense and Mark Nejame. To try to put things in some sort of perspective, New York City is big enough to handle lots of high-powered attorneys. Orlando is not. While Jose Baez is way out of their league, Cheney Mason and Mark NeJame are, next to John Morgan, two of the most powerful attorneys in this citified town we call Orlando. I am beginning to think there isn't enough room for both of them, and neither one is going to budge. Shades of Tombstone, this one may turn out to be a verbal gunfight in the courtroom. Call it the O'Casey Corral. Unfortunately, Brad Conway just got caught in the crossfire, and the bullets haven't even begun to fly yet. Who's next?

Where did Kyron go?



Kyron Horman has been missing over two weeks now. His stepmother said she last saw him walking to his classroom at 8:45 AM on June 4 after looking at exhibits at Skyline Elementary School's science fair, where he is a student.

This became a criminal investigation on June 14. Authorities have put out flyers in hopes of generating positive leads.

Three Page Flyer

As of now, the focus of the investigation seems to have shifted to his stepmother, Terri Moulton Horman, after her story about what she did on the day of his disappearance didn't match her cell phone records, which placed her at or near Sauvie Island, north of the school. Because of this discrepancy, authorities have been combing bodies of water around the area where he was reported missing.

Remember that Kyron's stepmother has not been named a suspect or a person of interest, so she's not implicated in his disappearance.

The following image is a map from Kyron's house to the school, and from the school to Sauvie Island.

The next image will give you a better idea of the Sauvie Island location.

Sauvie Island

See: FBI

See: FBI

X

Caylee Marie Anthony

There are no public memorials scheduled for today that I am aware of, so in honor of Caylee, here is what I wrote last June 16.

"As much as you love Caylee, please... just don't forget the others."

- Richard Grund

Caylee loved butterflies, so it was no surprise that at the end of the memorial held on June 16 at Jay Blanchard Park, a basket holding butterflies was released to the skies along with balloons - with each balloon honoring a missing or murdered person. One of the butterflies flew right to the floral arrangement at the front of the pavilion.

In the beginning, Richard Grund said he was asked to hold the memorial on Suburban Drive but he said no, that was where something happened to Caylee and it's not how he wants to remember her. He wants to remember her running around and swinging, just like in that park. Then, he spoke of Caylee. He mentioned those who could not attend and he read a message from Marc Klaas, father of Polly Klaas and now a child advocate who established the KlaasKids Foundation. He spoke of his son, Jesse, who loved Caylee like his own daughter, even when he found out he wasn't her father. Most of all, he spoke of all children and how we must do everything we can to stop the innocent murders and crimes against our youth, here and around the world.

Children are born as babes in the woods. They are free from sin. How can anyone harm a child? This was his message to the few who came to listen; some who were a part of Caylee throughout her short life. They were friends, neighbors and strangers, but on this day, we were all together to remember the little angel named Caylee Marie Anthony and her presence was felt by all of us.

I'd guess there were about 40 people; not a big crowd, but a very comfortable one. Everyone was nice. One of the things I noticed was that these were ordinary people, the types you'd sit next to in church or at a casual restaurant, the ones you'd feel very comfortable with and easy to strike up a conversation with as you mill about. I had a chance to thank Richard for his dedication to Caylee and her memory. I spoke with Lois Peter and told her we had met the day Leonard Padilla was with the dive team. "As a matter of fact," I said, "you were at the top of my first blog post about this case. You were wearing your Caylee t-shirt."

"Back then," she responded, "I was coming to the park every day."

I spoke to a friend of hers who told me that her son was messed up on drugs and she had the chance to adopt his child, now four years old. She said she lives near the Anthonys and that place where she still cannot bring herself to drive by to this day. I thought about how her child will never get to meet Caylee now. She said another son went to school with Casey and no one would have believed this.

When the basket of butterflies was opened, only one flew out, the one that went to the flowers and stayed even when everyone was invited to take a rose. In the end, I took a carnation I will keep in a book with a note explaining where it came from. Dakota Skii wondered why the other butterflies were staying still. Were they dead? she wondered? No, I responded. They were a little shocked and dormant. That's their way of defending themselves and it was calming to her, reassured that the frail and beautiful creatures were safe from harm.

In the end, I was reassured, too, because everyone there was no different from anyone else. These were people who were moved by Caylee and it was a love fest of sorts. Everyone gathered to pay homage to her and to greet each other with open arms. It was not the largest crowd, but every heart was huge and I could feel it.

The memorial was organized by In Memory of Caylee Marie Anthony.

The following photographs were taken by me. I shot 72 pictures and selected many to show you. I hope each one tells a little story about what it was like and how comforting each person in attendance was. If you have any questions, please ask me. Each picture can be enlarged by clicking on it. It will open in a new page. Click it again. Thank you for taking the time to read this and take a look.

The images are in descending order - the way I took them.

The originals can be found HERE.

  

  

  

  

  

  

  

  

  

  

  

Photos © David B. Knechel 2009 – All rights reserved

You be the judge

A hearing is scheduled for June 1 to discuss the defense team’s request to keep Casey’s jail visits private instead of publishing them like everyone else sitting in a government sponsored cell. There is also the matter of earlier rulings made by Judge Stan Strickland before he recused himself over a month ago.

This post is meant to clear up some issues that sprang to life when the defense filed the motion¹ 3 days before the judge stepped down. It was bad enough that the dismissal request was filed at 4:48 PM on a Friday afternoon, 12 minutes before the Clerk of the Court closed for the weekend. That was plenty rude and tacky, but after the judge removed himself, the defense fired back with its OBJECTION TO COURT’S “ORDER ON DEFENDANT’S MOTION TO DISQUALIFY TRIAL JUDGE”.

I want to explore that and the subsequent DEFENDANT’S MOTION FOR RECONSIDERATION OF CERTAIN PRIOR RULINGS BY DISQUALIFIED JUDGE. Therein may lie one of the motives for seeking the judge’s dismissal.

In his ORDER ON DEFENDANT’S MOTION TO DISQUALIFY TRIAL JUDGE, Judge Strickland made it clear that his decision was not based on any prejudice or errors in judgement, real or perceived, by Casey Anthony’s defense. It was all about future rulings under his command.

“If past is prologue, some defense motions may be denied. Since the undersigned has now been accused of bias and wrongdoing, potentially each denial of a defense motion will generate renewed allegations of bias. The cumulative effect will be to elevate an otherwise meaningless situation into a genuine appellate issue.”

He further added that the crux of the defense motion centered around his comments to a local blogger/journalist many months earlier. He explained that his words to the blogger/journalist were delivered in open court, with open microphones, in front of rolling cameras and not in secret. They were, in fact, a compliment for being fair and civilized. These are the words of Judge Strickland, not me, and at the time, neither one of us knew where the cameras were focused, nor did we know whether microphones were on or off. Honestly, there was nothing to hide, despite the fact that a portion of the raw video was surreptitiously snipped out.

Judge Strickland went on to chastise the defense for accusing him of being a self-aggrandizing media hound. Well, if that’s not the pot calling the kettle black, I don’t know what is. Perhaps, this is exactly what Cheney Mason meant when he blurted out at a post-hearing press conference that “this case is going to be fun!”

The fun is over. Where Judge Strickland confessed to a general affability that, at times, seemed to belie the importance of the case, he was every bit a professional. So is Chief Judge Belvin Perry, Jr., who is not as affable.

Of course, leave it to Mason to insist on having the last word.

In his objection, Mason cited the Florida Rules of Judicial Administration 2,330(f), Riechmann v. State, 966 So.2d 298 (Fla. 2007) and Florida Rules of Judicial Administration 2.330(j). He continued his wrath by saying the court“may not argue or dispute facts yielding any response, other than ‘granting’, or ‘denying’, the motion. To do so, automatically laces the Court in an adversarial position, contrary to the defense, and, by that act alone, is required to be disqualified.”

Excuse me, but didn’t the judge dismiss himself in his order? He didn’t do it later. My friend, a former Florida judge, told me in no uncertain terms that since the judge ordered his own recusal, he was well within his right to voice an opinion.

Florida Rules of Judicial Administration 2,330(f) states that:

(f) The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

Florida Rules of Judicial Administration 2,330(d)(1) addressed Casey’s fear that she would “not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Once Casey affixed her signature to the document, the deal was done and Judge Strickland had no choice but to step down. At the same time, the rule (f) is clear and at no time in his order did he admit to any wrongdoing. He could have denied the motion, but his concern over a possible appeal down the road usurped his right to remain on this case.

Here’s the comical part, the one that makes the objection a laughing stock:

(j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

Excuse me, but this is the same person who filed the dismissal motion 12 minutes before the Clerk of Court retired for the weekend. The judge, on the other hand, promptly responded the following Monday, and did so because, DUH, the office is CLOSED for the weekend. That’s like giving someone poor directions and scolding him when he’s late to arrive at the designated destination. This was nothing more than a self-aggrandizing act by an overly egotistical and pompous lawyer who had to get the last word in. He fully knew the judge would not respond.

Here’s an interesting document. Could it have prejudiced the judge?

Letter to Judge Strickland

This letter, addressed to the Honorable Judge Stan Strickland, voiced a very prejudicial opinion regarding Casey’s innocence, replete with scientific analogies and evidence showing that she could not have been the murderer. Where was the State at this time? Clearly, Linda Drane Burdick could have demanded the judge’s head for accepting the letter to begin with, whether he read it or not. Of course, since it was not damaging to the defense, Casey’s attorneys never gave it a passing thought.

This is where I lead into the possible motive behind that fateful dismissal motion. Sure, I’ve heard a lot of opinions from local attorneys. One said that, with an ego like Mason’s, he couldn’t stand losing his argument during the indigence hearing  regarding where Casey’s defense money came from. Here, he came out in all his glory, telling the world that he is a lawyer to be reckoned with; one with an impeccable record, and one who knows how to hoodwink the court. Only, it didn’t work and he blew his top, speaking of which, he just had to top Judge Strickland by filing the dismissal. That’s all well and fine, but I think the underlying factor is the motion later filed that set-up the one demanding the judge’s head on a platter - the one concerning earlier rulings. Four key elements were introduced:

(A) Defendant’s Motion to Compel Production of Tape Recorded Statement of Joe Jordan and the Court’s Order on same dated April 7, 2010

(B) Motion for Production of Grand Jury Testimony of George Anthony filed by the state of Florida on September 16, 2009 and joined in by the defense, and the Order of the Court dated October 6, 2009.

(C) Defendant’s Motion to Compel Tips Gathered by Law Enforcement, dated November 4, 2008.

(D) The Order on Defendant’s Motion to Modify the Court’s Order on Defendant’s Application for Subpoena Duces Tecum for Documents in the Possession of Texas Equusearch.

In (A), the court turned down the defense request for the taped interview. Instead, it was sealed. The rationale is plain and simple; it is against the law to secretly record anyone, which is exactly what Jordan did when defense investigator, Mort Smith, interviewed him. He said that when he searched the area where Caylee was found, the remains weren’t there and the ground was dry. Other volunteers said the area was too wet to search. Read the judge’s order HERE. Joe Jordan was interviewed by the defense on Oct. 27, 2009 and was later interviewed by law enforcement in the presence of a prosecutor on Nov. 5, 2009. The court recognized that the two separate interviews conflicted with each other and decided the sworn statement by Mort Smith regarding what Jordan said was sufficient and no further action was necessary. It cited Florida Statute 943.o6:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceedings in or before any Court, Grand Jury, department, officer, agency, regulatory body, legislative committee, or other authority of the State, or a political subdivision thereof, if the disclosure of that information would be a violation of this Chapter.

The statute is very clear, and either the defense didn’t understand the law or it’s maintaining a stance Jose Baez told Judge Perry at one of the recent hearings,“My grandmother told me you’ll never get something unless you ask.” In that vein, his dear grandmother may have been right, but the judge - any judge - must not change the law in a ruling. The judge also wrote that since Mort Smith gave a sworn statement attesting to what Jordan said, “direct testimony regarding what Mr. Jordan stated is still available via the testimony of Investigator Smith.” It’s all quite simple. In my opinion, this will be denied.

(B) is rather interesting. The state requested the transcript of George’s grand jury testimony. The judge granted it.

THIS CAUSE coming on to be heard upon the State’s Motion for Transcription of Grand Jury Testimony, and the Court having been duly advised in the premises, it is hereby,

ORDERED AND ADJUDGED that the State’s Motion for Transcription of Grand Jury of George Anthony taken/heard before the Grand Jury on October 14 2008 is hereby GRANTED, the original of said transcript shall be delivered to the State Attorney and all of the requirements of grand jury secrecy pursuant to Florida Statute 905.27 shall remain in effect pending the further order of this court.

Notice, I said the state asked for the transcript, and only the state, yet in this latest motion to be heard on June 1, the defense wrote, “and joined in by the defense…” Nowhere in his order did the judge include the defense and the reason why is that the state filed the motion all by its lonesome. I did not see Baez and Jeff Ashton dancing arm-in-arm to the Clerk of Court’s office to file together, but I’ll guarantee it was filed in a timely manner because it came from the state. What this tells me is that the judge ruled in chambers and the defense feels left out. Why? It wasn’t the judge’s job to hand the testimony over to the defense and if the defense wants it, it should have filed a motion requesting it. What, exactly, is there to reconsider in this new motion? It is, after all, a motion to reconsider earlier rulings. Therefore, this is an attempt to make Judge Strickland look bad. If the judge grants it, it will be because of case law. Other than that, it’s a used car salesman’s attempt to sell Judge Perry a lemon.

(C) is a motion filed by the defense over a year-and-a-half ago. In it, Baez acknowledges it submitted an Attorney’s Demand for Discovery on October 15, 2008. I think we are all aware of discovery in the state of Florida, but perhaps, the defense is not, at least, not as much as we would like to think. After the prosecutor receives the demand, he/she is obligated to respond. The defense now has over 11,000 pages of discovery documents in its hands. At the time the motion was filed, the defense wanted access to the nearly 5,000 tips that had come in. Today, the number is astronomical and it’s on full display in the periodic document dumps. Also, the motion cited a Motion for Favorable Evidence in Case Number 48-2008-CF-10925-O that was filed on October 3 and included,

a. “Any police investigation reports or any other similar documentation in possession by any law enforcement agency which involves the investigation of tips, leads, and follow-ups conducted by said agency or agencies, based on the sightings of Caylee Marie Anthony.”

The October 3 motion was granted by Judge Strickland on October 10, but on October 21, the state filed a nolle prosequi on the case making the judge’s ruling inconsequential. A nolle prosequi is an entry made on the record in which the prosecutor declares that he will proceed no further. The effect of a nolle prosequi does not act as an acquittal. It allows the prosecution to re-indict the defendant on the same charges and more, if necessary, at a later date. The defense also asked for sanctions for the delay in the state’s production of discovery and for the undue burden it has caused and the costs associated with the filing of the motion. Tsk, tsk. If you recall, the state filed first-degree murder charges against Casey on October 14.

In March of 2009, The defense took a bruising from Judge Strickland. Linda Kenney Baden wanted Strickland to order prosecutors to hand over the FBI’s bench notes from DNA testing on evidence. The judge wouldn’t do that because prosecutors didn’t have them and he had no jurisdiction over the FBI other than in the state of Florida. He informed the defense that if they wanted the notes, they would have to ask the FBI. As for the sanctions for allegedly keeping evidence from them, the judge said, “The motion for sanctions is denied.”

Finally, (D) is a rehash, deja vu, all over again moment, as if it will remain suspended in time until the defense gets to interview every single inhabitant of the ISS, just in case Caylee was whisked away on a shuttle flight. There are roughly 4,000 people who voluntarily searched for her all over Central Florida. Why do they need to see the records of every one of them?

In the original ruling from August 27 of last year, Judge Strickland wrote that the records of 32 Texas EquuSearch searchers mentioned at a hearing held on July 21 would be made available to both the state and the defense. They were recognized as being in the vicinity of Suburban Drive. The remaining paperwork filed by nearly 4,000 others could be reviewed in Mark NeJame’s office. Any searchers found to have been within 200 yards of the site where Caylee was found could be flagged for future consideration.

On April 5, Casey was back in court. So was Mark NeJame. Fireworks went off in the form of angry arguments and explosive accusations. What the defense expected was to be able to go through all of the TES documents in search of someone who may have gone into those woods before Caylee was discovered. The volunteers who did search there have maintained that the ground was flooded and impossible to walk through. Tim Miller told the volunteers to stay out of areas covered with too much water for fear it may damage evidence, so with standing water, there came a standing order to stand down.

The defense was given ample opportunity to go to Mark NeJame’s office to look through all of the TES records. The main problem with a court order is it opens up all of the personal information to the public. In the end, Judge Strickland agreed with NeJame. Later that day, he denied the defense request, but reiterated that they could still go and look through the documents and if they end up finding something, it could be flagged, just like he said before. Then, they could go back to the judge and try to get that released. There was not going to be a blanket release of all the documents. In my opinion, there is no reason why Judge Perry should alter that ruling, so overall, I’m afraid this motion to be heard on June 1 is not going to be thrilling for the defense team. Oh well, there’s still the issue of keeping public records about Casey’s visitors at the jail private, but Judge Strickland already said it’s all about jail rules, not the court’s.

In one last tip of my hat to Judge Strickland, I must say he did justice in this case all along, and in the end, he continues. Cheney Mason made this a problem case when he asked the esteemed judge to step down. He should have known that Belvin Perry always takes over problem cases. Ultimately, I just don’t see a chief judge overruling one of his own judges, especially one who has an incredible penchant for the law; someone with a sterling record of fairness. But just as Jose said, it doesn’t hurt to ask. Well, not always. Be careful what you ask for.

Posted on May 23, 2010 by Dave Knechel| 216 Comments(D) The Order on Defendant’s Motion to Modify the Court’s Order on Defendant’s Application for Subpoena Duces Tecum for Documents in the Possession of Texas Equusearch.

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?

Casey trial will stay in Orange

“The jury will be sequestered. They will be brought back to Orange County. They will be kept at an undisclosed location. I will be entering a gag order [for the attorneys]. I will be doing that at a sufficient time.”

- Chief Judge Belvin Perry, Jr.

I’ll tell you, the courthouse was tough to get into this morning. I gave myself plenty of time, but people were almost backed out the door to get through security. After waiting for what seemed like a half hour, I finally got up to the courtroom. I hate being late for anything, and I missed the first 10 minutes. How do I know I missed 10 minutes? Because Chief Judge Belvin Perry is never late, either, and when he sets a starting time of 9:00 AM, that’s the moment he walks in and sits down at the bench. Fortunately, I was able to open the door quietly so no one heard me walk in.

Change of Venue

The judge had decided this was the day he would hear motions that had been lingering for months, starting with the Change of Venue. Casey’s defense team has argued that their client cannot get a fair trial in Central Florida. In September of last year, Baez wrote in a motion that, “The Orlando community’s involvement in this case and its hostility towards Miss Anthony create an environment in which it would be difficult for a juror to render a verdict based solely on the evidence presented at trial.”

Soon after I walked in and Baez was stating his position, Judge Perry told him to get to the point, at which time he presented a short video of mostly protesters outside of the Anthony home, which were shot nearly two years ago now, as Assistant State Attorney Linda Drane Burdick was quick to point out in her rebuttal. She also asserted that jurors should come from any county that has similar demographics as Orange County.

“The defendant’s motion for change of venue will be granted at the appropriate time. I will enter an order prior to us proceeding to somewhere in the state of Florida to select a jury. I will review and take into consideration the comments by the defense and the state in selecting a site,” Judge Perry said. The future jury will be sequestered. He and all of the attorneys will travel to another Florida county to pick 12 jurors plus 6 alternates. He warned the media that he knows all 20 court administrators in other districts and they will be instructed not to discuss his inquiries with reporters.

Jail Visitation Logs

Visitation logs are a matter of public record, yet the defense wants the judge to keep the list of names private. Only the judge can seal them. The main defense claim is that the media is constantly aware of any visits she has, and the identities of some experts will produce unfounded speculation. According to him, it will hamper the defense’s preparation for trial. Cheney Mason asked the judge if it could be argued at a later date because he didn’t rule one way or the other.

Wild Party Pics

The defense recently filed a motion to exclude irrelevant evidence of party pictures. Today, it argued that the photos do absolutely nothing to prove whether Casey was a good mother or not. “To assume that a person is a bad person because they go to a nightclub, or they drink a beer,” Baez argued, “is completely unconscionable.”

The defense fears that if the images are shown to a jury it would only inflame them against their client. Burdick claimed that the only photos it wants to use are ones taken after June 15 that address where and how Casey was looking for her child. If Casey went to bars looking for Caylee, then wild photos of Casey participating in a hot body contest four days after her disappearance should be relevant evidence. If the defense is going to argue what a wonderful mother she was, the State should be able to use photographs to dispute that issue. She also said that the State has constructed a very careful timeline.

Judge Perry said that if the defense shows evidence of what a good mother she was, then the photos should not be about what she was wearing at the time, it should be more about what she was doing in them. In other words – in my words – women wear bikinis on the beach. Wearing a bikini in that setting proves nothing about who and what that women is doing or thinking. He acknowledged that most of the photos were taken prior to Caylee’s disappearance and only the ones taken from June 16 on should matter. Meanwhile, he deferred ruling on it until the end of next March. That gives both sides plenty of time to work out what photos will be used.

Hearsay

As part of the case, investigators have questioned dozens of people who knew Casey Anthony. They offered their opinions of her character, motives and undisclosed intentions and honesty. Casey wants to keep those statements about her made by family and friends out of the courtroom. Her defense contends they’re all hearsay; gossip and innuendo. They don’t want prosecutors to be able question any of her friends on the stand about whether she was an honest person and what compelled her. What were her motives? He also brought up the 911 calls made by Cindy. Judge Perry said he would not rule on such a vast subject. Narrow it down by citing individual instances where they could be argued as hearsay. He did say he will reserve a ruling on those 911 calls.

Motion to Dismiss Indictment

Denied. ‘Nuff said.

Motion to Compel Bench Notes

Judge Perry brought up this motion to compel filed by the defense. It seeks to obtain documents they feel haven’t been turned over to them. Once again, the judge asked Baez to be more specific. “This has been an ongoing issue,” Baez said after prosecutor Jeff Ashton told the court it was giving them everything it should.

Judge Perry asked for names. Baez gave him five. Both sides went back and forth. “We will table this one here and, uh, if there’s an expert witness for bench notes, list that expert saying you haven’t gotten it and I’ll have the state file a written response,” he said.

In the end, the defense will get 10 days to submit a list and the State will get 10 days after that to respond. He then asked both sides if there were any other discovery issues that need to be worked on down the road. No one had anything to say and with that, the hearing was over. It lasted an hour-and-a-half. “OK, we’ll be in recess on this matter until 9 o’clock tomorrow morning.”

Big Story of the Day!

As deputies walked Casey out of the courtroom, she turned to her mother, smiled, and whispered “Happy Mother’s Day. I love you.”

That is the first time I saw her show any affection for either of her parents, but especially, her mother.

My Observations

One thing is certain. This judge is instructing the State and defense to take the bull by the horn and settle as many matters as possible outside of court. Take control and move on it. What I am seeing is the defense’s failure to be specific about anything. Baez uses broad generalizations in his arguments and Judge Perry is persnickety and detail oriented. I noted his obvious disdain for whiners. In order to get your point across, be clear and precise, focused and reserved, and very knowledgeable of the law. That’s not to say Judge Strickland was not a thorough jurist. On the contrary, but there is a different demeanor in this court than in his, but I can’t quite put my finger on it. You wouldn’t think that personality traits could make all that much of a difference when applying law, but it does. Judge Strickland has the patience of Job. Judge Perry wants to git ‘er done.

I rode down the elevator with the prosecutors. Linda Drain Burdick was discussing an online legal publication. As we exited the elevator, I asked her what it was and if I could also receive it. She gave me the details. As we walked to the exit doors, I asked her about her last name. I notice the judge calls her Miss Drane. Do you prefer Drane or Burdick? Either one, she said. It’s not hyphenated and it was added after she got married. Either name will do and she has no preference.

As she walked away, the defense team approached the awaiting cameras and reporters. I stood near Cheney Mason. Because we were close, I decided to discuss something. “Skin cancer?”

Yes, he responded. I knew that’s what it was. I have too many friends here in Florida. “You’ve got to remember that I grew up when there was no SPF, and I’m 66-years-old.”

That’s many years in the Florida sun. He said that anyone living here and spending time outside will get it. It’s only a matter of time. I told him about my friends and what they go through. He also said he had a 14 hour operation several years ago on the other eye. Obviously, his surgeon did a great job because I didn’t notice a thing.

I think it was quite apparent that Cheney Mason had no problem talking to me, and vice versa. What he did with Judge Strickland was a professional decision and he took advantage of an opening. In the real world, that’s what happens. In the online world, people make up their own laws and hold silly grudges. I’m bald and he’s got skin cancer. Big deal. What’s it got to do with Casey?

What’s my point, you may ask? Remember that when you come to Florida. Wear sunscreen. And a hat. Oh, and I will talk to whoever I damn well please.

A civil play, s’il vous plaît?

Today was my first foray into Orange County Circuit Court Judge Jose R. Rodriguez’s courtroom. I decided that this would be a perfect day before the firestorm begins in the criminal case, where motions are set for Thursday, next Monday, and the day after. This one came at a leisurely time, too; an easy 1:30 PM. That meant no rush hour traffic and no skipping lunch or dinner – not that that’s ever been a problem in Judge Stan Strickland’s court.

One of the things I noticed upon entering the courtroom was the relaxed nature of everyone, including the lone bailiff who sat at a desk in front of me. To my left was Red Huber, the award winning photographer from the Orlando Sentinel. We are both left-handed and our birthdays are only days apart. I’m not telling you who is older, but the deputy’s is one month after ours, in September and two out of three will be the same age. I asked the man with the badge why there were no other deputies in the room, like in Casey’s other courtrooms I’ve been in. He said, “This is civil court. We don’t get too many criminals in here.”

To be truthful, a second deputy did come in and sit across the room from him as court got under way, but this bailiff sure was a nice guy. Smart, too, because he doesn’t pay any attention to what goes on over at the criminal side. Casey who?

The judge was very amicable today, too. He was already at his bench when we were allowed in, so there was none of the ALL RISE business and we actually left before court was adjourned. The courtroom was sparse, but there were a few other cases to hear. Judge Rodriguez heard one, which only took a few minutes. It was all very relaxed. He then said he would hear the case about Zenaida Gonzalez and Casey, because that would clear the courtroom of most of the people who were there – all media – except for attorneys. That left only a couple of cases to address, but he knew this one would go by fairly quickly. It did.

Casey’s attorney, Jonathan Kasen, wasn’t there, but Keith Mitnik was. He represents Zenaida Gonzalez from the Morgan & Morgan law firm. The judge called today’s hearing a pre-trial conference and told him his docket is backed up. He told Mitnik to remove this case from the docket and refile it for trial in January, February or March of “oh-eleven” – the only time when there are openings. But he would set nothing in stone. Mitnik asked if it could possibly be sandwiched in between cases. Judge Rodriguez would not relent. Nope, he wasn’t going to bump-up. Older cases take priority, he responded.

That was pretty much the order for the day, but it doesn’t mean it ended there. Keith Mitnik was very happy to talk to the media when we exited the courtroom. It seems he saved the best for last, and it made my trip very much worth it. Outside of the courtroom is a large area for people to wait before the courtroom opens up. There’s a sprinkling of chairs here and there, but not nearly enough for everyone to sit. Like I said, it was only media people lining up to talk to him.

“I’m not surprised,” Mitnik said about the trial delay, which he had hoped would be held in August. “The courts are very busy. It’s not an old case.”

There is the possibility of new evidence surfacing from the criminal investigation, and the postponement actually gives Zenaida Gonzalez’s attorneys time to review the letters Casey wrote, along with statements made by the two jail house snitches, Robyn Adams and Maya Derkovic. Did Casey say or write that the nanny never existed? “They could be bombshells for our case.”

When he was asked if Zenaida is now working, he wouldn’t answer. He expects a jury to find that this Zenaida had nothing to do with Caylee’s murder. When pressed about money, he said this was more a matter of right and wrong, not money, although he did address punitive damages. He said he would ask for a significant amount of money.

He was puzzled by the fact that nothing has been done about Dominic Casey. Why hasn’t he been deposed yet? That’s a very good question, he responded, but he did add that Casey’s attorney, Diana Tennis, had filed a couple of motions that are pending, so there is some activity.

He said he had absolutely no contact with Casey Anthony. He is aware that she has her Fifth Amendment right to not answer and fully expects her to use it. Last September, her attorney, Jonathan Kasen, asked Judge Rodriguez to delay or throw out the civil trial. He said that Casey should not be asked whether or not she murdered her child while under oath. The judge denied that request. Something tells me there will be a lot of pleading the Fifth.

There are two other items of interest…

After most of the media people finished their questions, I had a chance to talk to Keith. I offered my condolences. He lost his 85-year-old mother a few months back. He’s a very good natured guy and told me he got that trait from her. He seems like a softie at heart. Standing alongside me was Bob Kealing from WESH. We did press him for information on the Cheney Mason/Judge Stan Strickland debacle. He was willing to proffer his thoughts, but he did ask that it be off the record. The only thing I will tell you is that he did not think it was my fault at all. Like I said, there isn’t an attorney in town who doesn’t know Mason.

Finally, I got a phone call this afternoon from my old friend Bill. Bill is the attorney who gave me excellent advice when I had to design ads, bumper stickers and more for a judge’s re-election against his opponent, a newcomer by the name of Belvin Perry, Jr. Bill went on to become a judge in Jacksonville, but is now retired except for consulting work. He asked me if I knew where Belvin came from. I said, you mean the prosecutor’s office? He said, yes… but it’s more than that. He and Ray Sharpe handled all of the capital cases. That means he knows all about prosecuting murderers. Before you let your imagination run away with this, please remember he is now the chief judge and no longer a prosecutor. Still, it’s something to mull over. Meanwhile, Bill agreed to be my “legal advisor” so he’s willing to answer difficult legal questions. Bill and I go back at least 25 years and I used to tell him he should be a judge. Well, he was, and I am proud to know him.

Judge Perry’s lightning speed steals Mason’s thunder

“Be patient and you will finally win, for a soft tongue can break hard bones.”

- Proverbs 28:13

The last time I was inside the courtroom on the 23rd floor, Casey Anthony pleaded guilty to all fraud charges. That was four months ago on January 25. In June of 2009, I wrote a post titled, Guilty as CHARGED? that clearly spelled out why I thought she had no solid defense against those charges. The word CHARGED was my way of saying she charged her purchases on a checkbook she stole from her friend, Amy Huizenga. Why this defense chose to take it completely out of context in its motion to dismiss Judge Strickland is far beyond me, but so it was written, so it was done. God save the judge.

This time, on Friday, the courtroom took on a completely different atmosphere, as a new judge sat on the bench. Known as a no-nonsense jurist, Chief Judge Belvin Perry, Jr. lived up to his reputation. The mood was clearly stoic and reserved. As much as Judge Strickland deserved the same dignity and respect that Cheney Mason did not afford him, quite clearly, this time he sat quietly in the courtroom like a timid church mouse. Was he expecting this sort of outcome after Judge Strickland dismissed himself? Only time will tell, but if there is true justice in the world, Cheney Mason will not stand between it and the mockery he made of the court by filing the motion to dismiss and the later objection he filed in response to the court’s order.

When I got to the courtroom, it was a matter of minutes before Judge Perry entered. I noticed that Casey was wearing a light pink shirt and her hair was tied snugly back in a ponytail. She seemed to be in good spirits until Judge Perry entered the room. From that point on, gone were the smiles and hand-rubbing. As serious as the judge was, so was she. The more relaxed attitude of Judge Strickland’s court was washed completely away. This was business as usual, but a tougher version of it mixed in with a heavy dose of reality. Judge Perry had no qualms about discussing the dreaded death penalty.

He first addressed the monumental list of State witnesses, over 250, and the small number, 36, that had already been deposed. This is something he wants done. Let’s get a crack on it. MOVE, MOVE, MOVE!  He told the defense to file a proposed deposition schedule. He will not allow for any excuses. In light of this, he gave prosecutors and the defense strict orders to get their evidence and witnesses in order. Prosecutors said that some out-of-state witnesses were reluctant.

“I’m quite sure that Sheriff Jerry Demings will aid us in going to make those witnesses available for deposition,” Judge Perry said. In other words, depose them or the court will. There will be room for one courtesy call ONLY.

On record, Jose Baez listed himself as lead counsel for the day. Will that change by the time the trial gets underway? That’s anyone’s guess, but I did notice he addressed the judge as “Judge” on several occasions, instead of “Your Honor.” Some habits die hard.

Moving on, His Honor was irked that the defense still hadn’t talked to the JAC (Justice Administration Commission) about how much money the case will cost Florida taxpayers.

“I got time next week and the following week. That needs to be done like yesterday,” Judge Perry said. A hearing on the matter has been scheduled for this Thursday. He ordered attorneys to block out several days the following week (next week) to argue over unresolved motions, including all non-death penalty motions, whether the state’s death penalty is unconstitutional, whether jurors will be allowed to view pictures of Casey partying, and allegations of Roy Kronk’s domestic violence. This will most likely be held on the 10th or 11th.

Judge Perry really got down to the nitty gritty of changing the venue. Stating that it would be too cost prohibitive to move the entire trial to another county, he proposed moving a jury here if one could not be seated within the confines of Orange County. He said, “I have done a number of change of venue cases. Once I grant it, the location will not be disclosed. It will be disclosed at the last possible moment.”

He does not want the media to know until the last minute. That way, all publicity surrounding the location and jury selection will be kept under wraps. It seems apparent this judge wants the trial to take place right here in Orange County due to the massive costs of uprooting everyone, including over 250 witnesses, mostly from the Orlando area. He has no problem moving a jury here instead, if necessary. Most assuredly, this is something I was positive Judge Strickland would have decided. Many of us felt the same way, so it’s nothing new, but what may be is sequestering. If the judge decides to sequester jurors, which cuts them off from all outside influences, it could make jury service much more tiresome.

When asked, Jose Baez said, “This is really not just about the publicity. This community is intimately involved in this case by way of searches, by way of protesters.” He noted that the types of people the defense would want to hear the case may not be able to handle the stress of two months away from home and family.

“It is no secret that this case has received widespread publicity,” Perry said. He went on to say that the only way to make sure they are not infected or polluted during this proceeding is to sequester them.

Judge Perry asked the prosecution how long it expected to take to argue their case. Linda Drane Burdick responded that it would take about 3-4 weeks. The judge asked the defense the same question. Baez answered, about 3 weeks. The judge then set a working schedule of five-and-a-half days per week, meaning a half-day on Saturdays. He said that he would submit a list of movies for the jury to watch and each side could strike any from that list, no questions asked. Remember, there will be no TV for a sequestered jury.

Finally, he brought up the DEATH PENALTY phase. This was something Casey could not order her attorneys to “make him stop.” I almost swear I saw the hairs stand up on the back of her neck. Her parents were in front of me and I watched Cindy cringe.

How long will it take the state to argue? Jeff Ashton stood and said it would be done in a day. Baez then stood and said it would take the defense anywhere from 3-5 days.

Judge Perry reminded the court that we live in an adversarial system of justice, which is “the two-sided structure under which criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.”¹

He wanted to move the trial date up a week, to May 2, but Andrea Lyon reminded the court over a speaker phone (in absentia) her daughter graduates college that week. The judge accommodated her and allowed the date Judge Strickland set to stand at May 9, 2011. Meanwhile, he expects to hold status hearings every 45 day. With that, the hearing came to an abrupt – no, not yet… Baez corrected the judge, who called Andrea Lyon “Miss Lyons.”

“There’s no ‘s’ at the end of her name, Judge, and it’s Professor Lyon.”

The Honorable Judge Belvin Perry, Jr. stood corrected and walked away from the bench. So it was written, so it was done.

Order Regarding Deposition Schedule

Order Setting Motion Hearings 5-03-2010

Here's to Aristarchy

I got a phone call from a TRUE friend earlier today. She wanted to know how I handle the few blogs that are so overtly tormented by my existence that they have forgotten what this is all about. Easy, I said. The more preoccupied they are with me, the less time they spend thinking about and discussing the victim, Caylee, and the defendant, Casey, not to mention George and Cindy. The fact that they stopped writing about the case months ago means Casey can get a fair trial after all. Hallelujah and thank you! I would only encourage them to continue with their freaky obsession. This will surely help bring justice they no longer care about. Meanwhile, the State Attorney's Office still cares very much and would like to take this opportunity to give thanks for shifting the attention to someone else. Soon, the defense will have no legitimate claim of bias against their client and the new judge will not have to put up with any more silly motions like that.

BREAKING STORY!!!

If you watch the video until the end, you'll see the violent, threatening and criminal brouhaha brought on by a totally angry blogger outside of the courthouse exactly as Jane Velez-Mitchell adeptly reported last night. SHOCKING! I guess I should be in jail now that all of my severe critics are supporting Baez. My, my, how the world churns...