Will it be that Appealing?

On August 1, Judge Kenneth R. Lester, Jr. of the 18th Circuit Court issued his ORDER DISMISSING DEFENDANT’S VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE, citing the defense motion requesting his recusal as legally insufficient. That was no surprise to me, but it was to George Zimmerman. His attorney, Mark O’Mara, quickly told WKMG’s Tony Pipitone that, “We presented the motion. I think the motion was sufficient on its face. He made his decision. We’re going to review it and make a determination about whether or not to appeal it or accept it.”

I’m not surprised by O’Mara’s reaction, either, but what does it entail now? I mean, where can Zimmerman’s defense go from here? They can appeal it. Or should I say may? They may certainly appeal but it’s not all that simple, as O’Mara made clear in his second statement to Pipitone about what could happen next. The case, he said, “stays in limbo, unfortunately, for a while. We will be seeking a stay of all other matters pending until the appellate court decides, if we decide to appeal.”

The key word in the final sentence is seeking, as in “seeking a stay.” What that means is that it’s not attached to an appeal. It’s a separate request. While the appeal goes to the Florida Fifth District Court of Appeal, a stay on all other matters, quite literally, stays with the circuit court.

Here’s the first thing I thought of after learning of the judge’s decision and O’Mara’s reaction. What happens to Zimmerman’s GPS ankle monitor? What about the court order restricting him to Seminole County? I know he’s been complaining about it, and that his defense is prepared to file a motion to lift the restriction. If he files an appeal, doesn’t it put everything on hold? Well, no, but that doesn’t mean he and his team don’t have a lot of other complex things to think about.

There’s the issue of money, for instance. Filing appeals isn’t free. Just consider the time it takes to file paperwork at $400 per hour, not to mention other continuing work on the case. The appeal itself will take a long time to be heard. Where is Zimmerman’s money going to come from after his parents’ Website stops pumping oil? It will not last forever. The whole mess becomes a perplexing quandary. Does he bite the bullet and stick with Judge Lester, or does he go for the appeal with money he doesn’t really have?

WILL ZIMMERMAN DOUBLE DOWN?

The idiomatic verb form of double down means to double or significantly increase a risk, investment, or other commitment. Is Zimmerman willing to risk everything, which includes an impending money problem, in order to have a judge removed from his case? While waiting an indefinite amount of time for any other relief? Remember, filing an appeal does not mean an automatic win. The appellate court might just turn him down. Where would he go from there?

In the meantime, the defense still has the option to file an indigency motion if the well runs dry, but that means getting the JAC involved and O’Mara can kiss his $400 per hour good bye. You see, while the motion to appeal is at the appellate level, the show must go on, and Judge Lester would proceed as usual. So, while things seem like they are beyond reach for the defense, they really aren’t, but there are a number of catches. There’s the part about seeking a stay. Plus, by allowing this judge to decide motions, doesn’t it just confound the whole thing? Why let the same judge rule on anything if you want him off the bench? Right now! If O’Mara files an appeal, he’s pushed himself into a corner where he’s pretty much forced to file a stay. That’s a given, right? So what’s he supposed to do?

THE GOOD OLD INTERLOCUTORY ORDER

The Free Dictionary defines an interlocutory order as:

“Provisional; interim; temporary; not final; that which intervenes between the beginning and the end of a lawsuit or proceeding to either decide a particular point or matter that is not the final issue of the entire controversy or prevent irreparable harm during the pendency of the lawsuit.”

This could include the issue over the judge, but I doubt it, because, even though these types of actions are taken prior to trial, which fits in this case, and must be answered by an appellate court; there is a reluctance to make interlocutory orders unless the circumstances surrounding a case are serious enough to warrant such action. And they are restricted by courts because they don’t want to be tied up by piecemeal litigation. The clincher is that the lower court usually enters a final judgement, meaning a verdict, before it’s appealed.

If not that, then what?

THE WRIT OF PROHIBITION

According to The Florida Bar Journal, “A writ of prohibition enables an appellate court to prevent a lower tribunal from further exercising jurisdiction in an action. Generally, it cannot be used to remedy an act that has already happened.” Whew! Relief, right? It’s not quite that easy.

While a petition for writ of prohibition “is generally used to challenge the denial of a motion to disqualify the judge of the lower tribunal,” it is also “the appropriate method for forcing a lower tribunal, including an administrative agency, to dismiss a matter for lack of jurisdiction.”

In his order, Judge Lester did leave open the option of argument at the appellate level to establish whether the motion to recuse him was the first or second motion to dismiss the trial judge, but I wouldn’t bet the farm that the higher court would rule Zimmerman’s way. As a matter of fact, that’s not even close to being the crux of the perplexing quandary he’s in. It’s…

FLORIDA SUPREME COURT RULE 9.310.

Let’s just say that, pursuant to Florida Rule of Appellate Procedure 9.310:

RULE 9.310. STAY PENDING REVIEW

(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.

(b) deals with exceptions, such as money judgments and public officials. (c) pertains to bonds, (d) with sureties, and (e) with duration, and none of them apply. But if you move on to (f), and combine it with (a), we hit pay dirt.

(f) Review. Review of orders entered by lower tribunals under this rule shall be by the court on motion.

What’s that mean? It’s quite simple, actually. Remember O’Mara’s words to Pipitone, “seeking a stay of all other matters…”?

That’s right! In order for the defense to seek that stay, they must go through the same court, “which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.” “Review of orders entered by lower tribunals under this rule shall be by the court on motion” actually seals the deal. A stay motion would be filed in Lester’s court and he would have to move to agree to it. Would he? Oh, probably, but in the meantime, like I said, the show must go on. While filing an appeal, the defense can soldier on with their motions and the judge can continue to write orders. Unless. of course, the judge rules on a stay. In which case, poor, poor George will stay in Seminole County for months and months to come, gnawing at the bracelet that will stay on his ankle.

Yes, there’s been lots to ponder since Friday. I wonder what George thinks God’s plan is.

'twill be a very good year

Monday Monday

The defense filed a NOTICE OF HEARING on Thursday of last year. The judge’s hearing (the man in charge) is set to begin on Monday at 1:30 PM and it is going to be a long one. Twenty-Two motions are on the wish list in Courtroom 23A. How many will actually be heard is anyone’s guess:

1. Motion to Restrict Telephoto Courtroom Photography and Audio Eavesdropping of Defense
2. Motion to Compel Judicial Administrative Commission to Pay for Transcripts of Oak Ridge National Laboratory Depositions
3. Request Court Determine Bad Prior Acts of Mr. Kronk based on Motion Papers filed
4. Motion in Limine - Sexual Interrogation of Lazzaro
5. Motion in Limine - Sexual Interrogation of Rusciano
6. Motion in Limine - Speculation of Defendant Knowledge by Texas EquuSearch
7. Motion in Limine - Neighbor and Shovel
8. Motion in Limine - Table Knife
9. Motion in Limine - Character of Stealing and Lying
10. Motion in Limine - Tattoo
11. Motion to Suppress - Jail Interview of Defendant by “Agents”
12. Motion in Limine - Jail Video of Announcement
13. Motion in Limine - Jib Jab Cartoon
14. Motion in Limine - Defendant Myspace “Diary of Days”
15. Motion in Limine - Cindy Anthony Myspace
16. Motion in Limine - Decomposition Chemical (Frye)
17. Motion in Limine - Chloroform (Frye)
18. Motion to Exclude - Root Growth (Frye)
19. Motion for Subpoena Duces Tecum RE: Joe Jordan
20. Motion to Exclude - Post Mortem Banding
21. Motion to Exclude - Stain in Trunk of Car
22. Motion in Limine to Exclude K-9 Alerts

In the MOTION FOR APPLICATION FOR SUBPOENA DUCES TECUM, the defense has targeted Joseph S. Jordan. A subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or a trial.¹ It is true, as the motion states, that “the defense is charged with the responsibility of investigating their case in an effort to search for the truth.” Snicker if you must, but in every trial, civil and criminal, both sides will insist they are telling the truth and, invariably, it is up to the court to decide.

Early last month, the defense deposed Joe. He testified that he was an active blogger on the Internet, and that he frequented the Websleuths and Scared Monkey forums that discuss various issues of the Casey/Caylee Anthony case The defense alleges that Jordan published photographs on both sites and on his now defunct personal Web site, josephsjordan.com. The motion further states that, “Some of the photographs illustrated areas searched that were near or on Suburban Drive.” The defense states that the “photographs are material to the preparation of the defense in this cause.”

Joe Jordan is listed as a Category A witness for the state. Both sides consider him to be crucial to the case. The problem the defense has at the moment is simple; Jordan published his images on Internet forums. The images have since been removed. Since they were made public by Jordan and not the state, they are not subject to discovery under Florida Rules of Criminal Procedure, 3.220 [See page 98/197]. The defense wants those pictures. Why? Do they show dry land?

Alleged photos by Joseph S. Jordan

CELL PHONE IN BAG?

HAPPY NEW YEAR, EVERYONE!

It should prove to be a great one.

I Swear

I have done my best to head to the courthouse early so I don’t have to rush once I arrive. Sometimes, going through security can be very time-consuming. Fortunately, Monday wasn’t all that bad. I never have to park in the parking garage, either, and that generally saves me $6-10 per hearing; not much, but in this tight economy, every bit helps. Because of where I park, I walk by the television trucks with their high microwave towers extending from the roofs. It’s interesting because they are filled with very expensive electronic equipment. On most days, that’s where the reporters put their well choreographed on air segments together. That in itself is a real talent. The trucks are all parked in an area designed for them, in front of the courthouse, in a nook off Orange Avenue.

I ran into Mike DeForest from WKMG, the CBS affiliate. I hadn’t seen much of him since the judge debacle, so it was nice to chat for a few minutes before I decided it was time to head up to the 23rd floor. He’s a good guy. Off to the side was Jacqueline Fell, from Central Florida News 13. She’s a very nice person and very approachable. She was the first one to interview me months ago. As I briefly chatted with her, I noticed Ann Finnell walking by herself. She had an almost lost look on her face, so I walked up to her. I promised I would say hello from her cousin, who comments occasionally on my blog. Last time, I didn’t remember her name. This time, I did. She was looking for the rest of her team and I couldn’t help her there, but she did ask what floor the hearing was on. I said it’s always on the top floor. I asked her if she wanted me to show her, but she said she’d wait and see if they showed up. We parted.

It was one of those days where the line that winds through the lobby to get to security wasn’t as jam-packed as usual, but it was moving rather slowly. About five minutes into it, Ann walked in and stood at the back of the line, where I was already halfway through. I beckoned her to join me. After all, she had important work to attend to. I lifted the rope attached to the stanchions and let her through. No one complained to me about letting her skip through the line, but I would have handled it. She went through security before me. I have to remove my belt every time I go through, so while I had to put it back on, she politely waited for me to finish. Besides, she wasn’t quite sure where to go since she was in the courthouse only once before, at least for this particular case. I thanked her and we walked toward the elevators. I was mostly making small talk about my trip to Jacksonville and the proton accelerator at Shands Hospital, where my best friend, Stewart, recently underwent treatment for prostate cancer. All in all, it was a delightful encounter and I must say she is a very nice and refined lady; every bit of what I thought she would be. When we got to the courtroom doors, they were locked. I peeked through the crack between the doors and saw that Jose Baez was already in there. We knocked on one of the doors and she was let in. As she entered, she thanked me for my help.

“You’re very welcome. See you in there.” Only lawyers were let in at that time.

I always feel comfortable around the media people, and in particular, Bob Kealing. He has been one of my strongest supporters as a blogger and he’s a very personable guy. Bob has authored three books and won three Emmys for his work. I’ve always admired him for his professional appearance and reporting and, no doubt, he did a great job on the Neal Haskell piece he put together during his trip to Indiana. After we took our seats, Casey entered and we could hear the now familiar clink-clank of ankle chains. Within a minute or two, Cheney Mason nodded and called Bob up for a brief, very hushed, chat. When he returned to his seat, I quietly asked him if he had a good story. Yup. The courtroom hushed as the judge entered at precisely 12:58. Dang, known for being prompt and on time, I was disappointed he was early. This is two times in a row. His track record was slipping, I thought.

The first order of the day was the motion the state filed to compel discovery. The judge made it clear that he had to leave by 1:40 because of a trial he was presiding over in Courtroom 19-Delta. That’s a familiar courtroom - the one Judge Strickland used and the one that changed my blogging life forever.

The motion addressed six key points:

1. Any contracts or agreements, in any manner or form, setting for the scope of work or expected compensation.
2. Any communications between expert and any member of the defense team, either past or present, or any member of their staff, or any one working on behalf of the Defendant.
   
3. All records of bills submitted by or payments made to the expert.
   
4. All records pertaining to payments for travel, meals or entertainment paid to or for the benefit of the expert or anyone traveling with the expert, by any member of the defense team, either past or present, or any member of their staff, or any one working on behalf of the Defendant.
   
5. Any notes taken by the expert or for the expert during, or referencing their examination of any evidence in this case.
   
6. Any photograph or video taken by the expert in connection with this case.
   

These were rather interesting demands because it encompassed a lot more than mere work product, which is privileged information, it also covered the entire time prior to Judge Strickland’s ruling on Casey’s indigence status. Personally, I thought the state was asking for more than the judge was willing to give, and as Jeff Ashton finished addressing his points, the judge made asked for a response from Mr. Baez.

“There is nothing that entitles the state to this.” He said there was no wining and dining going on, so there’s nothing like that to turn over. Besides, he said, he had no reports from his experts, which I found unusual. He said it was burdensome and it doubled the work for experts. Also, a lot of the work was done pro bono.

As Jose Baez, Judge Perry and discussed all six points, the judge asked Ashton a specific question that signaled, at least to me, that he did not fully agree with the motion.

“What in that rule or in what case authority does it signal the proposition for your request on 1, 2, 3 and 4?” It was then I realized the state was only going to get 5 and 6. The way he explained it to the prosecution was pure Perry style. If you want the information, you can get it through depositions and/or subpoenas, not through this motion. As much as the judge is perceived as a prosecutor’s judge, he is very fair to both sides of the courtroom aisle. 1, 2, 3, and 4 were denied without prejudice. The defense would have to turn over notes taken by the experts, and all videos and photographs. Incidentally, yesterday was the deadline for the defense to give the state their list of experts, but the judge did give them a two-week extension.

Time was drawing nigh for the judge to set sail for another courtroom, but he soldiered on. He asked about the defense’s outstanding motion on Roy Kronk. Baez said he may withdraw it until a later date; closer to trial. The judge reminded him, in no uncertain terms, that once the deadline for motions comes and goes, he will not hear them. He asked Baez if all the state’s witnesses had been deposed. Baez said yes. He told the state that all depositions of defense experts must be done by February 28. On that same date, all motions related to forensic evidence must be in. Any non-forensic related motions must be filed by December 31.

Ann Finnell finally had a chance to speak. It didn’t last long. Some may think Judge Perry cut her short as a, sort of, way of snapping at her, but I didn’t interpret it that way. I may be wrong, but the judge had no more time to hang around, and he told her he wasn’t going to be available the week leading up to Christmas, although a tentative date to hear her motion was discussed and the 20th and 21st were tossed about. December 20 was the agreed on date, at 1:30 PM. The week of Christmas. He also reminded her that attorneys for the media would object to her motion

Cheney Mason quickly stood up and told the court that the JAC is having issues over payment and he has a motion ready to file. Judge Perry said if it’s not resolved, he will gladly take care of it.

While we thought the hearing was over, it wasn’t. Jose asked for a sidebar. The judge complied and both camps stepped up to the bench. Whatever transpired, we weren’t privy to, of course, but it was very interesting to everyone when the judge raised his right hand and began to give some sort of oath to a young gentleman who was in the mix. It was also during this time that a legal assistant had Casey laughing. To be honest, I didn’t see it. Casey was directly in front of me, so I have no idea what it was all about.

Diana Tennis, Dominic Casey’s attorney, sat in the row in front of Bob, Jim Lichtenstein, Mike DeForest and myself, directly to the right of Cindy Anthony and her friend.  She surmised that it was the swearing-in of a new attorney. Some balked at that suggestion, but she was right. While no one knew who he was, I approached him after the hearing ended. William Slabaugh told me it was awfully nice of the attorneys to permit  Judge Belvin Perry, Jr. to swear him in as Orlando’s newest lawyer. It was an honor and a privilege. I congratulated him and wished him all the best. This is something he will forever remember, because a simple notary public could have done the same thing. I’m sure the judge enjoyed the moment tremendously, but back to the matter at hand…

The final thing the judge brought up was the reminder that the defense must give the state the list of new TES witnesses by January 31, so they can be deposed by March 30. With that, the hearing ended and I had my agenda in mind to find out who that new gentleman was. At the same time, I had something I wanted to say to Jose. Meanwhile, Cheney and Bob picked up their discussion where they left off. What Jose and I discussed was between us, but what appeared to be an embrace to some was far from that. Attorneys are used to talking up close and personal to keep inquisitive ears from eavesdropping.

When Jeff Ashton was walking out of the courtroom, I asked him if Judge Perry had addressed the John Huggins¹² case. Had he rendered a decision? If so, it passed me on by. No, he said and we walked to the elevators. Riding down to the first floor, he was asked about the decision on parts 1, 2, 3, and 4 of the motion. Would he refile? He said the judge did rule “without prejudice” on those key points and that leaves the door open.

As we left the courthouse, I thought to myself, the hearing didn’t get over until almost one o’clock. Oh me, oh my, Judge Perry was going to be late to his trial. Perhaps that’s why he asked for a deputy to approach the bench; to alert the deputies in 19-Delta.

...To Judge Perry's Court We Go

Dance of the Sugar Plum Fairy by Aiobhan

In the United States, this past week was one of giving thanks to God, ourselves, others, and/or all of the above, for our many bountiful blessings - no matter how bleak the economy has been and might be in the future. As Thanksgiving fades and sugar plum fairies begin their month-long magical dance, the week ahead may very well be a time for the state and defense to give thanks for what they are about to receive in the courtroom. Or not.

Three motions were filed between November 18 and the end of this past week; one by the state and two by the defense. In the final motion, Casey’s attorneys have seemingly abandoned their two-step strategy that Texas EquuSearch volunteers Laura Buchanan and Joe Jordan searched the precise spot where Caylee’s remains were discovered. It seems they tiptoed to a different tune in the company of detectives and prosecutors bearing gifts recently, most likely time away from home, if you get my drift. After being deposed by the state, Buchanan’s attorney, Bernard Cassidy said, “I believe she signed an affidavit that she searched the area where the body was found. Somebody may have suggested where the body was found, but she has never been to that area to see precisely where the body was.” Cough, cough. Ahem.

Brandon Sparks seems to have changed his story, too, about Roy Kronk, his one time stepfather’s alleged “prior bad acts.” In lieu of any familiar faces to turn to for help, the defense is asking the court for state money to hire an expert who specializes in bones and fossilized remains. If something new could be determined by another reputable forensic anthropologist/osteologist, it might help debunk the state’s expert. Do I think it will do any good? I don’t know, but this defense needs all the help it can get. Will Judge Perry grant this motion? I don’t see why not, but he will, more than likely, wait until he hears what the JAC has to say about it.

§

The first motion filed on the 18th was from the state. Signed by Jeff Ashton, it’s a State Motion to Compel Evidence and it’s based on the Florida Rules of Criminal Procedure, 3.220 (d) and (f).

In a nutshell, the state wants to know where the taxpayers’ money went. It wants to review every contract and agreement the defense has made to date. This includes communications between the defense, its entire staff and all of its experts; any notes taken by or for the experts referencing their examination of evidence, and all photos and videos. The state is also asking for all records pertaining to meals, travel expenses, lodging and entertainment. It’s demanding a reckoning of every penny the defense has spent and, gasp, that’s a tough one.

As much as the state is asking, the motion made it clear that it doesn’t expect the judge to give away the farm. Privileged information is going to be involved, so it requests that the court examine many of the documents in camera - privately, in other words - with the defense, and to redact whatever it sees fit. Redaction means to go over everything with a fine-toothed comb in order to find things not suitable for the other side or the public. Of course, the state would love to know the defense’s strategy in order to launch a strong counterattack, but that’s not fair, nor is it proper, and both parties are aware of it. The state definitely has the upper hand on this one because it has flooded the defense with so much evidence, some important, some not, but because there’s so much of it, it’s overwhelming. Consequently, the defense has had to sort through a slew of documents in order to discern what the state will use at trial. This is a common strategy, and by filing this motion, the state has caught the defense relatively flat-footed. It will most likely have to fork over all sorts of information and that takes time and money away from defending a client. It’s a distraction, but a very legal ploy. WFTV reported that it had read 322 pages of financial documents on Thanksgiving day, so some of it is already public knowledge.

One of the key points of 3.220 (d) is that, “any tangible papers or objects that the defendant intends to use in the hearing or trial” needs to be turned over. What’s interesting is that the state does not have to turn over any internal notes; those made by investigators in the course of their work. I would assume the same would hold true for the defense, and any attorney worth their weight in salt would know how to distinguish between what is and what isn’t privileged, and would know how to hide documents accordingly. All legal; all fair.

From my discussions with judges throughout the years, not that I am in constant contact with any today, I have learned that they look at both sides fairly and without prejudice. However, being human, they can readily sense when someone is or is not capable of representing their respective clients. By this, I mean the defense as well as the state. I have yet to meet a judge who seldom complains about one side while picking apart the other. Everyone who faces a judge has his/her own personality, and being human and all, the judge will look at all motions and have personal thoughts on how they were filed and whether they make sense. What I am trying to say, in other words, is that no judge looks forward to a motion like this; not if the court has to sift through thousands of documents in order to discern what is to be passed over to the state and what is to be kept behind closed doors. Fortunately, circuit court judges generally have a battery of scholarly assistants at their disposal, but my guess is that it’s not something anyone looks forward to. Since Channel 9 had access to some of the documents, I would say the defense has turned over discovery prior to this motion. I think the most important part of the motion pertains to where the money is going, past and present; and the state of Florida has every right to know, down to the very last penny.

§

The defense filed a very interesting motion on Tuesday, November 23. The Defendant’s Motion to Seal Penalty Phase Discovery Response also cites F.R.C.P. 3.220, but in this case, it’s (l) (1) it’s referring to - Protective Orders:

Motion to Restrict Disclosure of Matters. On a showing of good cause, the court shall at any time order that specified disclosures be restricted, deferred, or exempted from discovery, that certain matters not be inquired into, that the scope of the deposition be limited to certain matters, that a deposition be sealed and after being sealed be opened only by order of the court, or make such other order as is appropriate to protect a witness from harassment, unnecessary inconvenience, or invasion of privacy, including prohibiting the taking of a deposition. All material and information to which a party is entitled, however, must be disclosed in time to permit the party to make beneficial use of it.

What this motion requests is for every bit of penalty phase information it finds from here on out be sealed or exempted from future discovery, pursuant to Florida’s Rules of Criminal Procedure. Furthermore, it states that this case “has received an extreme degree of media attention not just in Orlando, Florida, but nationally.” Everyone reading this article is well aware of that fact, and if ever there was a truth to what the defense has said, this is indisputable. The motion specifically cites Florida Statute 90.202 (l), which states: Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.

The motion goes on to state that intense media scrutiny has resulted in the media and public conducting their own investigations aside from what law enforcement has done. I will be the first one to admit that this case has grown multiple arms, many that far outstretch the reach of sanity and truth. Specifically, Internet sites, including blogs and YouTube are fingered, but not one in particular. This is also the truth. Anyone who writes a blog has been guilty to some degree; some a lot more than others.

How many blogs have been guilty of mocking the people involved in this case? The defendant? The entire defense team? All of the defense witnesses? How many times have we read that anyone who works for the defense is a liar? The attorneys must be disbarred? There is a long list of public demands, most of which are quite illogical in the practical sense. Sure, I’m not one who should talk, but I’ve tried to be fair, and in this case, I can empathize with the defense.

“To date, witnesses in this case, especially defense witnesses, have already been subjected to intense media pressure and harassment by the media and the public at large. This has resulted in a chilling effect with some witnesses becoming reluctant to come forward with information for fear of harassment and stalking.”

Boy, oh boy, can I relate to that one. I’m not a witness for the defense, but I have been harassed and stalked since Judge Strickland stepped down. Relentlessly. And if the defense ever needed a witness who could testify to that fact, it would be me.

It’s interesting that the order requiring penalty phase witnesses to be listed is due on November 30, the day after the hearing, so this motion could be two-fold; the other being that the list is not forthcoming. After all, how much time has Ann Finnell, the author of the motion, had to gather up all penalty phase witnesses?

The motion asks that the disclosure of these witnesses from the media and the public be restricted until a penalty phase has been established. This, the defense argues, insures that Casey will receive a fair penalty phase if it becomes necessary. In any event, if the judge refuses to grant the defense’s request, the motion asks for an evidentiary hearing on the matter, and that’s one I doubt the judge will say no to.

Overall, it has been my observation that there are a bunch of weirdos out there in the public who have grown some of the most mutated arms I have ever witnessed in my entire life. One such arm that has absolutely no merit is the one boasted by several inane commenters at an otherwise respected site; the one that states “as fact” that Jose Baez, Cindy Anthony, Melissa Earnest and myself conspired to remove The Honorable Stan Strickland from the bench. That one is disgusting, it has absolutely no legs to stand on, and it’s based purely on hatred for me and the others named. Only the stupidest of idiots would believe such a thing. It’s precisely what the defense is talking about, and it’s why the motion stated that the “intense media scrutiny of this case has resulted in the media and the public conducting their own independent investigations in the facts of this case…” I can’t say it enough times. No, this has nothing to do with my fact seeking field trips to Walmart, a la James Thompson, or a video I shot of a person who has yet to be called by the state. In both respects, I was well within my rights and all I was seeking was the truth. If Casey cannot get a fair trial, it is because of trolls. We all know who they are and so does the defense. It’s the trolls who insist they are the only ones who know “the truth” and they say so at the expense of federal and state law enforcement officials, not to mention prosecutors, bunglers all, and certainly not professional enough to see the light.

God forbid that my name would ever be placed on the defense witness list, but believe me, I sure do relish the thought of being able to tell a judge the truth about all of the horrible lies pertaining to this case. If Casey’s defense team has ever filed a good motion, this one is it. Let’s see what the judge thinks.

Judge nods in approval

A teleconference hearing was held today in Judge Perry’s chambers over a motion the defense filed to conduct DNA tests on two items,  a pair of Caylee Anthony’s shorts and a bag. Both items were found at the scene where Roy Kronk discovered her remains in December of 2008.

The judge granted the defense team’s monetary request for $2,084 over objections from the Judicial Administration Commission. The JAC argued that an in-state laboratory could check DNA on the items in question, while the defense wanted an out-of-state lab. 

During a recent hearing I attended, the judge made it clear the lab needed to be certified by the American Society of Crime Lab Directors (ASCLAD). The defense originally wanted the evidence sent to a lab in Holland, but Judge Perry, in all his wisdom, made it quite clear that nothing would leave the country, where the court has no jurisdiction. Brad Bischoff, the JAC attorney, could not confirm that any of the labs listed as vendors in Florida were confirmed by ASCLAD. Jose Baez, on the other hand, argued that none of the state labs were certified. He cited a lab in Pennsylvania and the judge agreed that’s where the items will go.

It is a small battle won for Jose Baez & Co., but I would surmise that ultimately, it’s only a win if the lab finds something that will incriminate someone else, or it could somehow benefit Casey if nothing is found that points directly to her. Otherwise, I don’t see it helping her one bit, and in the overall scheme of things, if it does, it’s just one tiny piece from the vast army of incriminating evidence the state has accumulated to wage this war against her. In the end, the good guys will win. Choose sides wisely.

In another matter, Bob Kealing’s report on dead bugs must have the defense worming around right now. Watch his exclusive video HERE. He deserves an award for this one.

Nunc pro tunc no slam dunk

In Latin, nunc pro tunc literally translates into “now for then.” In other words, retroactive. Chief Judge Belvin Perry, Jr. listened to several matters brought up at the hearing held on October 29, including issues over funding that dated back to May, hence, nunc pro tunc. Four days later, on November 2, the judge delivered his ORDER ADDRESSING RETAINMENT AND PAYMENT OF EXPERTS, INVESTIGATORS, MITIGATION SPECIALIST, AND OTHER COSTS. Written in chambers, without bravado and with his usual brevity, it addresses three separate motions filed earlier by Casey Anthony’s defense.

MOTION ONE

On September 30, Ann Finnell filed the Motion to Determine Reasonable Budget for Due Process Costs in a Capital Case and Motion to Incur Certain Specified Costs. A long-winded title, indeed, that came with a short reply from the judge on each specific element. Casey had requested authorization for anticipated costs for the penalty phase, if this case ever truly reaches that stage, plus mitigation costs addressed previously in an order dated May 12, 2010 nunc pro tunc to May 6, 2010.

Private Investigator

The defense asked for the authorization of a $5,000 cap on the use of a private investigator “to provide services for the penalty phase such as locating and interviewing mitigation witnesses, documents, and other relevant evidence.” Judge Perry reserved judgment and told the defense to submit an itemized list, by November 5, of the investigative services needed to support the request. It sounds reasonable enough. After all, one of the key points the judge made at the hearing was that he was not going to write an open check.

Psychiatrist or Psychologist

Here, Casey’s defense asked for the authorization of a $7,500 cap “for services by a licensed psychiatrist or psychologist to examine and conduct forensic testing on Defendant, to render an opinion regarding cross-examination of any State expert, and if needed, to testify at the penalty phase.” The court granted this part of the motion, but set the cap at $2,500 for pre-trial services at JAC rates. Please note that this is pre-trial work and not money going to a possible penalty phase. That money will be addressed at a later date the judge left unclear. I also get the feeling the defense may be able to ask for more if needed, although there was no mention in his order.

Copying Costs

The defense asked for a $1,000 cap to cover copying costs during the penalty phase. Think Xerox. The judge gave them $500 at the approved JAC rate. When the judge asked Ms. Finnell whether that amount would work, she said it most likely would. She didn’t sigh, in other words, or beg for more.

Mitigation Specialist

Casey wanted the court to authorize an additional 100 hours for services of the mitigation specialist, Jeanene Barrett. The court granted her request in full - 100 hours to be provided by Ms. Barrett or another in-state investigator at the JAC rate of $40 per hour. That gives her $4,000 to work with at the full rate. Can she request more? Probably, but the judge wants everything to be itemized and explained.

Attorney Travel Expenses

Ann Finnell wanted a $4,000 cap for expenses she expects to incur as she travels back and forth between her office in Jacksonville and Orlando. The amount covered anticipated trips to and from Ft. Myers. George has family there. Despite public arguments over whether Jeanene Barrett has already been there, done that, it’s moot and nothing more. The judge denied the request because of JAC policies and procedures, and the earlier court ruling entered May 12, 2010 nunc pro dunc to May 6, 2010. This means the order is retroactive to May 6. No money, honey.

Travel Expenses for Investigator or Mitigation Specialist

Casey requested the authorization of a $1,500 cap on travel expenses for one investigator or one mitigation specialist to journey to Ohio to obtain records and interview potential witnesses. At the hearing, Judge Perry said to use the telephone wherever possible, and/or to try to hire someone within the state of Ohio who will work at JAC rates. That would save Florida a lot of money on round-trip airline tickets. Here, he reserved any ruling until the defense can offer reasons in support of their initial request. Explore the options first. Whatever the defense can figure out, the judge will meet with them in camera in order to shield the strategy from the prosecution.

Attorney Travel Expenses for Trial

The defendant asked the court to authorize payment of Ann Finnell’s anticipated travel expenses to attend the trial commencing in May of 2011. The judge had no choice but to deny the request because of JAC guidelines and the earlier order entered May 12, 2010 nunc pro tunc to May 6, 2010.

MOTION TWO

Motion for Additional Hours of Investigation (guilt phase)

On October 25, Jose Baez filed a motion on behalf of his client. He asked the court to authorize an additional 300 hours for in-state investigative services in order to “continue investigating the evidence alleged in the State’s on-going discovery.” Of course, this request was above and beyond the hourly cap addressed during the May 12 nunc pro tunc to May 6 approval. What he ended up with this time is not what he asked for, though. The judge granted an additional 60 hours to the tune of JAC’s $40 per hour rate. Instead of $12,000, he ended up with $2,400. For now. Although not stated in the order, the judge did leave the door open for additional funds later on, if the need arises and the defense can account for every single dime.

MOTION THREE

Motion for Clarification of the May 12th Order regarding both Travel Time and Reimbursement for Travel Expenses and Mileage of Out-of-State Experts, Mitigation Specialist, Investigators, and State Experts

This is in response to a motion filed by Jose Baez on October 25 “because the order entered on May 12, 2010 nunc pro dunc to May 6, 2010 did not specifically address the travel time and expenses incurred or anticipated for these persons. Accordingly, clarification is needed as to the authorization for payment of such costs” according to the order. The court granted this motion, nunc pro tunc to May 6, 2010, and authorized “the payment for travel time and reimbursement for travel expenses and mileage of out-of-state experts, the mitigation specialist, investigators, and state experts at the JAC approved rates and in compliance with JAC’s policies and procedures in this motion and its attachments.” In the May 12 order, ORDERS ADDRESSING MOTION TO SEAL RECORDS RELATED TO THE JUSTICE ADMINISTRATIVE COMMISSION/RETAINMENT AND PAYMENT OF EXPERTS, INVESTIGATORS, MITIGATION SPECIALIST, AND OTHER COSTS/RECONSIDERATION OF DEFENDANT’S REQUEST TO WAIVE APPEARANCE AT CERTAIN HEARINGS/PROCEDURES FOR FUTURE MOTIONS… hold on, I need to catch my breath after that one… the judge addressed many areas of the defense’s earlier motion. I’m not going to go over every aspect of it. This is merely to sort out the reason Judge Perry had to take another look at his order and why he decided to respond now. In essence, the earlier order listed the approval and caps for each individual he cited, but omitted travel expenses:

• Dr. Henry Lee - Criminologist Expert: A cap of 8 hours for in-court services and a cap of 25 hours for out services.
• Jeanene Barrett - Mitigation Specialist: 384 hours for services.
• One investigator (in-state): 300 hours for in-state services.
• One Investigator (out-of-state): 100 hours for out-of-state services.
• One K-9 Expert (out-of-state): 20 hours for services.
• One postmortem hair banding expert: 20 hours

For the following experts, caps as to the number of hours to be incurred has not been determined. Therefore, the judge ruled that they shall be approved by subsequent order:

• One forensic entomologist (out-of-state)
• One forensic anthropologist
• One forensic botanist (out-of-state)
• One forensic pathologist (out-of-state)
• One digital computer forensic expert (out-of-state)
• One DNA expert (out-of-state)
• One forensic chemist (in-state)
• One forensic chemist (out-of-state)

Also in that order, he found that the following experts were not relevant and necessary to provide Casey with adequate representation:

• Jury consultant (denied with prejudice)

I recall the judge saying at the motion hearing that Cheney Mason is a qualified jury consultant and that was enough. This was also before Ann Finnell came along.

• One additional DNA expert (denied with prejudice)
• One additional forensic botanist for consulting only (denied with prejudice)
• One additional forensic Biologist for consulting only.
• One trace evidence expert (denied without prejudice)

With prejudice is another way of saying forget about it. It’s a done deal. Without prejudice means a motion can be re-addressed later by taking on a different tack, or by rewriting an incorrect motion, or because - as is the case here - the defense needs an opportunity to decide whether Dr. Lee can provide the trace evidence services. If not, counsel could then request approval from the court for someone else.

• One taphonomy expert (denied without prejudice) to allow defense counsel to request a Rogers hearing.

In my unqualified opinion, a Rogers hearing (in this instance) may be requested if the defense’s expert opinion testimony is incomplete. Taphonomy, from the Greek taphos (death), is concerned with the processes responsible for any organism becoming part of the fossil record and how these processes influence information in the fossil record. Many taphonomic processes must be considered when trying to understand fossilization. See: Taphonomy

• One cell phone expert (denied without prejudice - to determine whether this expert is needed after the state’s expert is deposed.)

In his May 12 order, the judge granted a cap of $3,500 for the costs of public records requests and denied all travel costs incurred by defense counsel, meaning attorneys only, but it didn’t address travel costs for experts. What the judge needed to clarify to both the defense and the JAC is what JAC will be held responsible for paying. In its own response to the defense motion, JAC did not make that clear. At the same time, the official JAC Expert Billing manual states that:

“Experts may not bill for time spent traveling on a case unless an hourly rate has been established by law or a court order for the travel time. Generally, travel time is not reimburseable.”

In this case, the judge did not establish an hourly rate, but the JAC manual does address a mileage rate for reimbursement of $.0445 per mile when out-of-county experts travel more than 50 miles. Will the judge set an hourly rate for the experts’ travel time? The order did cite attachments, which were not released to the public as far as I know. The answer may be in those documents.

Personally, I can’t imagine a better judge when it comes to knowing law. And I wouldn’t hold my breath if I were the defense, expecting him to flub somewhere down the pike. As much respect as I have for Judge Strickland, Judge Perry has a clear docket, and that translates into one important thing: He’s got more time on his hands to make sure this case is handled by the book. That means less things to consider upon appeal. Of course, that’s only if Casey is convicted. Meanwhile, stare decisis et non quieta movere.  The defense must maintain what has been decided. In other words, it cannot alter the legal principle under which judges are obligated to follow the precedents established in prior decisions. That’s why the judge denied the defense counsel’s Motion for Reconsideration that dealt with the previously rendered denial of its motion to seal jail logs, including commissary records and telephone and visitation logs. Oh, I could go on, but that one’s for another day.

A lot of lawyering, a lot of frustration

I arrived at the courthouse about a half hour early, early enough to breeze through security and go up to the 23rd floor. That afforded me ample time to have a good conversation with one of the senior reporters covering this story before others arrived. We talked about several issues related to the case, and one of the topics dealt with journalists and bloggers. There are a lot of crazy nuts out there, this person said, and because of where he and other media people work, be it a newspaper, network or local TV, cable or radio, there is a shield that protects them from harassment and stalking. Not so with bloggers. Bloggers are out in the open and ripe for attack, especially if they identify themselves like I have. In this, there’s no envy; instead, it’s more like a bit of empathy and compassion. Earlier this week, a letter was received by the court via U.S. Mail that attacked this blogger and the media folks were aware of it; some, but not all. It’s safe to say it went absolutely nowhere except the file that holds all correspondence related to this case, such as the letter from Joy Wray sent to Judge Stan Strickland before the nut jobs came out en masse. Fortunately, media people recognize when something is newsworthy, when it’s junk, and when to never give psychos their day in the sun. That letter came straight from a psycho; too cowardly to sign a name, let alone a real one, as if it would have mattered in the least. This is the type of correspondence that never makes its way to a judge. Instead, it collects dust in perpetuity.

Red Huber walked in and sat down in a chair. There are sofas and chairs outside the courtroom, more so on the 23rd floor, for people to relax before or after court proceedings. Sometimes, attorneys are interviewed there. I asked Red about cameras in the courtroom. He said he was the official photographer in the media pool, meaning that he is the only person who has a hand-held still camera. It’s quite a fancy one, I might add, but he is an incredible professional. I asked him about cell phones. He told me he caught an unnamed TV journalist holding up an iPhone (or something similar) while a hearing was in progress. He called on a deputy and the deputy warned the person that if something like that ever happened again, they would be barred from the courthouse. Red Huber is very proud of his work, and rightfully so. Imagine a low-res cell phone image plastered on a station’s Web site. That would have gotten the network affiliate in a bit of hot water because it’s not something Red would ever take credit for.

The media folks were called to file into the courtroom and as we did, the reporter said blogs are becoming more interesting and pertinent, and he makes it a point to read them, including mine. It’s part of the job now. That was encouraging.

We entered the courtroom before any of the attorneys, so when they meandered in, all at once, we said our hellos to both the prosecution and defense. I had a good feeling that Ann Finnell would make her debut and she did. I think it’s important to remember that the opposing sides seem to only be that way in the courtroom, not that they do an awful lot of socializing together outside, but I sensed a more relaxed attitude and an almost warmth that dissolved once the sides took to their stations and donned their battle gear, which was nothing more than notebooks and pens. Oh yes, this is the 21st century and I know Jose has an iPad. One of the first things I noticed was that video monitors all around the courtroom were turned on for a change. That was great because it afforded us a good view of the proceedings. In some of the video footage you got to view, you probably saw some of us looking up. That’s why. They were hung above us. We could actually see the faces for a change.

When Casey walked in, flanked by officers of the court, she was noticeably thinner. Her hair was pulled back tightly in a bun and she seemed to have a sad, blank stare, from what I could see before she sat down and faced forward. Within a minute, George and Cindy shuffled in and took their seats in the second row. Their attorney, Mark Lippman, sat directly in front of me. Cindy wore a burgundy colored blouse that complemented George’s lavender colored shirt.

Chief Judge Belvin Perry, Jr. arrived on schedule, although I was a bit disappointed he was 4 minutes early. Oh well, my late Grandfather Landis was always punctual, and like him, sometimes early. God knows, I’d rather be early than late.

The judge wasted no time getting the hearing under way. The first order of business was the MOTION FOR RECONSIDERATION. Jose stood and walked to the podium. This is a motion Casey’s defense has fought for more than once, and it’s been shot down each time. Today was no exception, but I sensed a little more desperation in Jose’s voice. It was either that or a combination of frustration and exasperation. Personally, I don’t care what Casey eats from the commissary. I don’t fret over her personal mail and phone records, but inquisitive minds want to know, and because it’s the law, there’s no bending it - or in this case, Bent, as in Bent v. Sun Sentinel. Jail records are under the control of the legislative branch, not judicial. This time, Jose spent the brunt of his argument on mail from family, friends and strangers. He cited the case of the city of Clearwater (City of Clearwater, 863 So. 2d at 154) where it was deemed that private e-mails stored on a government computer are not automatically public record. In other words, private documents are not necessarily public record by virtue of their placement on an agency-owned computer.

OK, fine, but there’s more to it. When the attorney for Orange County Corrections got up to speak, she stated that she was merely there looking for clarification; that the county had no real dog in the fight, but she saw a problem. Here is where I have seen the defense go in the past, and it’s one of the reasons why some of the motions are lost, in my opinion. The county objected to the mail issue because the motion didn’t request it.

The Orlando Sentinel attorney then took center stage. One of the questions I posed to Red Huber before the hearing began was about this motion. I asked him if this was pooled, too, so all media outlets would share in the costs of any and all proceedings. He said, no, this is solely the Sentinel’s job. The attorney reminded the Honorable Judge of his ORDER DENYING MOTION TO SEAL JAIL VISITATION LOG RECORDS, back on June 7. There, the judge wrote:

The Court agrees with the County that a criminal defendant’s desire to “maintain the confidentiality of visitors” in a high profile case does not qualify as a lawful exemption. As mentioned supra, the Defendant’s Motion does not provide any statutory exemption or legal authority for the Court to “seal” documents that constitute public records.

Instead, the counsel for the defense entreats the Court to judicially create an exemption in this case. The Court is unable to acquiesce. Any exemption from the Florida Public Records Act must originate in the legislature and not by judicial decision.

Friday, Judge Perry took the Bent decision into consideration, but he only denied the Motion for Reconsideration at this time, and those were his precise words, which leads me to think the door is not completely closed. There is no doubt the Bent issue will be argued for years to come, but he did settle the matter of audio recordings. He said he will treat Bent as if it is final. In other words, audio recordings will remain under wraps. All other jail correspondence will be accessible to the public. So it shall be written, so it shall be done.

§

The judge brought up the JAC motion and Ann Finnell stood up and walked over to the podium. She is a rather stately woman, but not statuesque by any means. In my opinion, she appeared to be a quintessential professional, and she was. She had a certain elegance and a homey warmth about her, if that makes any sense. She looked like she would be a wonderful mother, aunt and grandmother, although I know nothing about her personal life. Well, hardly anything.

It was during this back and forth the judge became most animated, although he didn’t direct it at Finnell, in particular. It was the entire defense, but that’s because the course of the conversation really opened up into other areas, such as TES, which had nothing to do with her. Jose and Cheney piped in and it seemed to frustrate her a little. She made it clear she was not involved at all in TES documents at one point, but prior to the confusion, Judge Perry asked her about the 384 hours the court approved for Jeanene Barrett. She said that at least a half to a third of those hours had been exhausted. She said she needed at least another 100 hours. The judge said he wants to first see how the hours had been utilized before giving her more.

He asked her about the 300 hours given for private investigators. This is when Jose responded. He said he needed an additional 300 hours. The judge said he realized some of those hours will remain under seal, but where did they go? Jose said that many TES searchers didn’t want to get involved. The judge was pretty clear about all those searchers. The defense is not to go on some sort of fishing expedition. “You’re not to go drilling for oil when there’s no sign of oil anywhere.”

The majority of searchers were nowhere near the remains. He said he had provided them a special master. They were given the right to read the records and take notes. Jose said the defense had made over 1,000 phone calls and talked to 150 who were in the area. The “area” was confusing because there was no clear definition of what constituted the Suburban Drive vicinity. Cheney Mason said a lot of searchers looked on their own; that they had uncovered people from leads and some people who did not report everything to TES. Even so, some TES records were not clear. He questioned whether Texas EquuSearch kept bad records or whether they hid info on purpose? Here is where the judge made his succinct statement du jour:

“I am not going to write an open check. I am just not.”

Ann may have been rightly frustrated because it was at this point she said her motion was not about TES. It was about mitigation, such as medical history and school records. The judge interjected. “Miss Finnell, I’ve done a few capital cases.”

He turned to Cheney and asked him if he was planning on sticking around for the penalty phase, if Casey’s convicted. Cheney nodded and said yes.

Throughout this exchange, I looked up at the monitor to see the looks on the attorneys faces and that of Casey. Quite clearly, she was shaken. This was, shall I say, a bit more vibrant and enlightening and here she was in the thick of it. Sticking around for the penalty phase. Oh my. She seemed distressed to a certain degree. We’re coming to the end of the year and May is on its way. Time is running out.

When the dust settled, the new attorney continued. She made more requests, and in the end, Judge Perry approved some things and denied others. Her travel expenses from Jacksonville will not be covered. If she wants to send an investigator to Ohio, try phone calls first. There are investigators in that state that will work at JAC rates and not have to fly from Orlando or anywhere else. For each request, he wants to know the reason why he needs to spend taxpayers’ money. He said he’d be happy to take ex parte material into consideration and under seal. (Ex parte is generally a judge meeting with one party and not the adversary.)

The JAC attorney got up and rebutted. He said that the penalty phase funds may be premature at this time, but the judge disagreed. In the matter of capital cases, the cart comes before the horse, he said. With regard to psychiatric evaluation, he awarded $2,500 at this time. He said the standard exam may not be enough at the JAC rate. He approved $500 for copies and an additional 60 hours, or$2,400, for a private investigator. Most of all, he said he remains open for more expenditures, but he needs to know where all the money is going now and where it’s been going.

In several instances, I noticed that the defense does not come prepared. The judge asked how much money was spent on public records, for instance, and Jose didn’t know. At some point, he said something that caused a stir in the gallery. Sitting on the other side, someone roared in laughter. Jose turned to look, but the person was quickly silent and lost in the crowd. In my opinion, this was very rude. This is a murder case and not a joke, no matter what that narcissistic person thought of him. No one should ever laugh in a courtroom unless the judge prompts it. The murder of a child is a very serious matter. To be honest, I felt a little for Baez. The day wasn’t going his way and he told the court of the endless, almost thankless, hours the entire defense has been working. It was their life, and he was emotional about it. It did lighten up, though, however brief.

Judge Perry granted Linda Kenney Baden’s request to withdraw from the case, but not before he asked if there were any objections.

“I liked working with her,” Jeff Ashton exclaimed.

“Pardon?” Judge Perry asked.

“I liked working with her,” Ashton repeated. That brought out a few light chuckles, but here it was a lighthearted statement and the laughter was not made out of ridicule.

“Mr. Baez, it sounds like Mr. Ashton has objected,” the judge retorted.

“Yes, it does,” Baez joked.

§

Linda Drane Burdick asked for and received a 30-day extension on depositions. Some of the witnesses are difficult to track down. The defense is having the same problem. One of the things I’ve noticed about Judge Perry is his flexibility. As stern as he is, he’s very giving and in some cases, willing to bend.

The judge then reminded Ann Finnell that the deadline for listing all penalty phase witnesses is November 30, a mere month away. All of the state’s experts have not been deposed yet and that deadline is November 19. A Frye hearing was brought up. Jeff Ashton said he wants to sit down with the defense and go over what is new and what is old science. A Frye hearing is used to determine if novel scientific evidence is reliable enough to be permitted in court. It can also apply to testimony from psychologists and psychiatrists, not just forensic experts.

There was a brief exchange between Cheney Mason and Linda Drane Burdick that became somewhat heated. It was over some of the TES records still being held by law enforcement. Burdick explained that the defense had ample opportunity to look it over when their experts were in town back in July. Of course, the defense said they had never received property forms or receipts and Burdick begged to differ. Oh, the frustration of it all! The judge gave the defense two weeks to settle the matter. He then asked the state if all evidence had been disclosed. If not, everything must be disclosed by January. This means that there will be no surprises weeks before the trial is underway. The defense should have everything in its hands by the first month of 2011.

Before the judge gave the attorneys a rather stark speech, I must say that this was the first hearing I’ve attended where Linda Drane Burdick came across loud and clear. It was my observation that she seemed more agitated and direct, and certainly, more animated than I had ever seen her before. With that, the judge stated that if the depositions are not done on time, the court will set dates and he will make sure they are not convenient for either side. He said he will start running the case at his pace, so everything had better be ready come January.

“All the posturing has been nice, but come January, it will be according to my schedule.” And that means the schedule could be at midnight. If there are people unwilling to be deposed, by golly, the court will make them comply. Judge Perry means business.

§

A somewhat odd thing occurred near the end. The gentleman next to me started to breathe deeply. When I glanced his way, he was sound asleep. To me, this had been an exciting day, one filled with many highs and lows. Just like in church, the judge gave a great sermon, but I guess there’s always a chance that someone will be napping in the crowd. The hearing lasted two hours, as I expected, but I’m used to them by now. He wasn’t, obviously.

As we got up to leave, an attorney was loudly castigating one of Orlando’s best known journalists about dumb questions. It wasn’t pretty. I gravitated toward Ann Finnell. I had a message for her from her niece or cousin, but darn if I didn’t write it down. Instead, I had a senior moment and I asked her if she would be attending the next hearing. She said she would, and I said I would remember next time. She asked me how I knew it was really a relative and I said because I know her real name and she told me you would recognize it. She was more than friendly and open. She’s every bit a class act and you could tell that she’s a very caring person. Who better to handle a penalty phase? If Casey is found guilty, she’s in good hands. Anyway, it’s her cousin, and I’m sorry. I’ll make sure I get it right next time, and that will be on November 29, at 1:30 PM. I’ll be there. I need to set the record straight.

Get Bent

Dura lex sed lex. That’s Latin for “the law is hard, but it is the law.” Such will be a lesson learned by the defense in the courtroom today, I’m afraid.

What was scheduled to be a status hearing has turned into one of greater magnitude, and one that Casey must attend. She hasn’t appeared in court since the July, when her mother and brother took the stand over the admission of Cindy’s 911 calls.

While the status of the case will still be discussed, two defense motions will also be heard, and that will include counter motions filed by the JAC and the Orlando Sentinel. Defense attorney Ann Finnell recently filed a motion that asked Judge Perry to set a cautionary budget for costs she expects to incur to properly represent Casey prior to a sentencing phase; to be prepared if she is convicted of capital murder. The next motion will once again ask the judge to reconsider prior rulings over the public’s right to see Casey’s jail records, including phone calls, visitor logs and commissary purchases.

I don’t want to venture a guess about the money issue. The defense is requesting an additional $12,000 for investigative work on top of the money their mitigation specialist is asking for. This is too tough to guess, so I’ll focus on the issue over the disclosure of certain records.

First off, let’s make it clear that the defense is once again asking for more than the judge needs to give. In the MOTION FOR RECONSIDERATION, the defense cited a recent ruling by the Fourth District Court of Appeal, Bent v. Sun Sentinel, which ruled that jail “audio recordings of the defendants’ phone calls are not public records subject to release.” What this did, in effect, is put a temporary end to releasing phone calls, which are recorded surreptitiously for security reasons. On the other hand, the ruling did not address any jail logs whatsoever. This means who called, when and how long they spoke, are not subject to the ruling.

Right now, Casey has “three Standing Objections of Abuse of Florida Statute Chapter 119.01 complaining of the release of public records,” according to the Orlando Sentinel’s motion. The Sentinel went on to suggest that this defense “essentially asks the Court to shut down the media and the public’s statutory and constitutional right to public information.”

The Sentinel continues to argue that neither the public nor the media “are required to show a legitimate interest or purpose in order to obtain public or judicial records.” Here, I have one slight qualm with the Sentinel’s mention of judicial records. The jail does not fall under the judicial branch, and for that reason alone, the judge cannot rule in favor of the defense. He has made it abundantly clear he holds no power over the legislative branch, which governs this sort of disclosure. Timoney v. Miami Civilian Investigative Panel, 917 So. 2d 885, 886 n.3 (Fla. 3d DCA 2005) stated that “generally, a person’s motive in seeking access to public records is irrelevant.”

Judge Perry has, on more than one occasion, stated that he was not going to reinvent the wheel, meaning he will not rewrite Florida’s Public Records Act, which we recognize as Florida’s Open Government in the Sunshine law. Today, he will rule the same way he has in the past. There is no doubt that jails and prisons in Florida will comply with the Bent v. Sun Sentinel ruling and keep recordings locked up for the time being, but I am certain it will work its way up to the Florida Supreme Court and beyond.

The defense believes that the disclosure of jail records will deny her the right to a fair trial. I disagree and so does the Sentinel. Although I don’t care about Casey and her orders of nachos, I find it hard to believe her phone log, visitor log and commissary purchases would prejudice a jury. Instead, perhaps the defense should halt all post-hearing press conferences and ask the court to place a gag order on this case. The judge might be willing to comply.

§

Veritas vos liberabit! See you in court.

Casey McDingles

HERE’S WHAT REAL WITNESS TAMPERING IS ALL ABOUT

There is a no-brainer running around like a chicken without its head who insists she knows what witness tampering is all about. She doesn’t, and this will serve to quash any and all rumors she keeps firing into wasted Internet bandwidth. At the same time, it will explain exactly what it is. Merely interviewing someone is not. Suggesting they change the truth most assuredly is.

In reality, two Texas EquuSearch volunteers told WFTV that a private investigator working for the defense tried to manipulate them into changing their stories about what transpired down along Suburban Drive in September of 2008.

Brett Churchill and Brett Reilly have accused PI Jeremiah Lyons of slinging words their way that would cause them to alter their testimony about searching the area where Caylee’s remains were found three months later by Roy Kronk, another defense target.

According to the WFTV report, Lyons was recently in court examining EquuSearch records. The station reports that he’s keeping low key while talking to volunteers who are not very happy about it.

In this case, both volunteers are prosecution witnesses. Churchill has been deposed by the defense and Reilly has talked on record to investigators. Both have stated that the exact area where the toddler was discovered was under water and unsearchable at the time. According to Churchill, Lyons went to his house and lied about Reilly’s story. “He basically was asking me if what I said in my deposition was the exact story because he had others who fared differently, one of them being Brett Reilly.”

Reilly had earlier warned Lyons not to twist his words after witnessing what Casey’s defense had done to others involved in the case. Lyons promised him he wouldn’t.

Let me tell you, from first-hand experience, I know all about what a professional manipulator Jerry Lyons is. They don’t get any slicker, but in my case, the defense ended up with the short end of the stick. What he succeeded in doing was to somewhat change the tenor of this court. It abruptly went from Strickland to stricter. Strickland to stricter… trust me, they will be words that linger.

The report also states that Reilly complained to Cheney Mason and that both volunteers contacted the sheriff’s office.

A DATE WITH CASEY

Great news is coming right up for those who want to see what Casey’s new tooth looks like. She is slated to appear at next week’s hearing, which will be at 1:30 pm on the 29th. It had been scheduled to be a status hearing, but with her attendance announced, it signaled that there would be more to the hearing than just an update from the attorneys. She has not been in court since her mother and brother took the stand back in July. Of course, plain old status hearings don’t require her presence.

What this should mean is that Judge Perry will hear several arguments, two of which should be the simultaneously filed MOTION TO DETERMINE REASONABLE BUDGET FOR DUE PROCESS COSTS IN A CAPITAL CASE AND MOTION TO INCUR CERTAIN SPECIFIED COSTS filed recently by new attorney Ann Finnell, and quite possibly the prior rulings over the public’s access to Casey’s jail records. This would include phone calls, visitor logs and commissary purchases. In my opinion only, I don’t care if she pigs out on nachos or not. I do not need to know how many hair barrettes, hair pins, hair claws, banana hair clips or how many other products she buys, including female doodads. With the latest ruling in south Florida, this information may have to be rerouted through the state and released through document dumps instead of coming directly from the jail. Hopefully, I will know more about that soon.

With regard to the budget request made by Finnell, the funding agency, the JAC (Justice Administration Commission) doesn’t like her cost estimates. The commission filed a response last week that questions some of the estimates as being too high and others that shouldn’t be billed to taxpayers. In a post I published two weeks ago, I wrote:

The distance between Jacksonville and Orlando, from her office to the jail, is 145 miles each way. The distance from her office to Fort Myers is roughly 300 miles. She anticipates at least one trip per month to Orlando and back, and at least two trips to Fort Myers. Overnight lodging is expected for the trips to Fort Myers and some of the trips to Orlando, all of which is feasible. She’s asking for $4,000.00. Let’s see… a round trip from Jax to O’do runs about $134.00. Jax to Ft. Myers would be double that - $268.00. We are 7-8 months away from showtime, so 7-8 Orlando trips would run… let’s give her the benefit of the doubt and say 8 months. 8 trips would cost almost $1,100.00.  To Fort Myers and back twice would add up to around $540, bringing our total to $1,640.00, not including hotel stays, and I think it’s safe to assume she’s not going to spend the night at the No Tell Motel, but still, that’s over $2,400 in lodgings. Nope, that one should be questioned by the judge. If the court chooses to approve, it brings our tally much higher…

The JAC is requesting it shouldn’t have to foot the bill for attorneys’ travel expenses; that the costs should come out of the money the Baez Law Firm was paid by Ms. Anthony or be absorbed by the individual attorney.

Any way we look at it, the mere fact that Casey will be in the courtroom almost demands that some semblance of verbal chicken poop will be flying into the fan come next Friday afternoon. I’m looking forward to it, so I must admit, I will not quit. I will attend, as I intend.

A formidable presence

As quiet as a church mouse, Ann E. Finnell entered into the Ninth Circuit Court, a Notice of Appearance last Thursday, September 30.

ANN E. FINNELL, the undersigned attorney, hereby enters her appearance on behalf of DEFENDANT, CASEY ANTHONY, joining attorneys Jose Baez, Esq., and Cheney Mason, Esq., inter alia as an attorney for Defendant.

Inter alia, for those not familiar, is Latin for “among other things,” meaning she is joining the crowd. The more, the merrier, so to speak.

What you may not have noticed, though, are two motions rolled into one that came attached with it; something she filed on behalf of her new client, Ms. Anthony. The nerve. Judge Perry wasn’t even given a chance to acknowledge her notification yet.

MOTION TO DETERMINE REASONABLE BUDGET FOR DUE PROCESS COSTS IN A CAPITAL CASE AND MOTION TO INCUR CERTAIN SPECIFIED COSTS

In this two-for-one motion, Ms. Finnell asks the Honorable Court to “set a hearing to detemine a reasonable budget for the penalty phase of a capital proceeding.” This is not in anticipation of a guilty verdict. No, this is more of a “just in case” scenario. Juries can go either way and it’s better to be prepared, and to be specific, this is a motion requesting money for services rendered BEFORE the trial, not after.

On March 19 of this year, Judge Stan Strickland officially declared Casey Anthony indigent and her defense stated that they would continue to work on her case pro bono. Regardless of how Florida taxpayers felt at the time, the state was ordered, through the JAC (Judicial Administrative Commission) to pay for her experts, investigators and other costs incurred. At the indigence hearing, her then-new attorney, Cheney Mason, said the total amount could be about $200,000. Unfortunately, I am of the opinion that it will exceed that price tag.

Ms. Finnell, in her motion, assumes that “since Defendant has been adjudged indigent for costs it would seem appropriate that undersigned counsel attempt to establish a reasonable budget for a capital case.”

I’m afraid, in this case, I have to agree with her, but it has nothing to do with siding with the defense. It is because Casey has a right, like any other who stands accused, to have a solid defense, particularly because of the nature of the beast. This is a capital case, and as Judge Perry has stated more than once, death is different. However, just because I agree does not mean he will write a check in the amount she is requesting. He has several options.

1. He can agree 100% and grant her wish.
2. He can agree and ask her to submit individual bills to JAC as they come in.
3. He can disagree and tell her to work with what she’s already got; Jerry Lyons and Jeanene Barrett. Is Mort Smith still in the equation?

Ms. Finnell is very good at what she does. She is a seasoned veteran at this sort of thing. I noticed elsewhere in comments that the defense doesn’t need this attorney since Cheney Mason is already death penalty qualified. Her joining the team has nothing to do with that. It is all about taking care of the penalty phase if Casey is convicted of first-degree murder. That is her specialty and in order to be fair and just, any defendant in a capital case needs someone precisely like her. Indigent or not, they usually get one, and Casey is no exception.

Just what is the Jacksonville attorney requesting? Let’s take a look.

She believes the utilization of a private investigator will be required to provide services in the realm of “locating and interviewing mitigation witnesses,” and“locating and securing documents and other evidence relevant to the penalty phase,” among others I will get to. One of the things that I get a kick out of are those pesky little “other evidence” phrases that one never quite understands. Exactly what it really means is anyone’s guess. It’s almost the same as saying, “well, that’s what they say” to back up a claim, only no one knows for sure who “they” are. Oh, you know, them, those, that evidence.

On with the show… Performing background checks is a reasonable request. So is “researching any other factual issue relevant to the penalty phase such as the credibility and character of the witnesses.” She adds that she does not anticipate the costs for investigative services to exceed $5,000.00 and specifically requests the court to “enter an Order authorizing such costs not to exceed $5,000.00 without further Order of the Court.” That’s rather interesting, because she places this fiscal limit on each of her court requests and it’s the first time I have seen any defense attorney related to this case take responsibility for any money at all, except for what the JAC is willing to pay, and there have been issues already. Judge Perry stated that any bill JAC refuses to pay falls back into the hands of the Baez Law Firm. This woman has, what seems apparent, experience in this department. On this particular issue, she says that the private investigator would be one with whom JAC has a contract and would provide services at JAC rates. So far, so good.

$5,000.00

The next matter at hand concerns the services of a licensed psychiatrist or psychologist at a “reasonable hourly rate” - whatever that may be. Of course, the JAC has a menu that lists recommended rates:

JAC is also rather particular about what it offers. “Prior to retaining an expert, defense counsel must file a written motion seeking authorization to incur the expert services. The motion needs to establish the basis for the expert services by setting forth the reason why the expert’s services are necessary for the defense of the case. The defense has the burden to show the particularized need for the expert’s services.”

Since this leads the court to assure the JAC that what it hands out will have to be meticulously explained by the defense, Casey and her team will get no free rides. In the case of “seeking a comprehensive forensic psychological examination of the defendant, the attorney should ask the expert the number of hours the expert anticipates will be necessary to complete the evaluation,” which translates into: the defense should obtain a good faith estimate from the expert first. I believe Ms. Finnell has done that.

Whoever the expert is would examine and conduct forensic testing on Casey and “render an opinion regarding relevant mitigation” and be available to consult with the defense regarding state experts’ cross-examinations. If necessary, it would include testifying at the penalty phase. The price tag? Her guestimate runs at $7,500.00.

Now, we’re up to $12,500.00

Next up in her list is $1,000 for copies, medical records, school records, photographs and “any other record relevant to any statutory or non-statutory mitigating circumstance or to rebut any aggravating circumstance, and the preparation of trial exhibits of said records.”

$13,500.00

The next item up for the defense is the mitigation specialist and here’s where the instructions are clear. Ms. Finnell does not seem to be asking for anyone new. Instead, she seeks money for who’s already there, in which case, I would have to point the finger at Jeanene Barrett, left over from the Andrea Lyon days. Here, Ms. Finnell “anticipates needing additional hours for the mitigation specialist who has already been approved by the court.” Bingo! She’s not looking for anyone else. She expects this expert to work for an additional 100 hours at a rate the court had already established, and if I can find that out, I will let you know, but if we assume it’s $75.00 per hour, we’re talking an additional $7,500.00, which pushes the bill over the $20,000.00 amount initially reported in the media.

$21,000.00

The esteemed attorney expects to travel “to and from Orlando, Florida and Jacksonville, Florida and Ft. Myers, Florida, to visit with Defendant and Defendant’s family, friends and associates. Multiple trips will be required prior to the start of the trial in this cause.” She intends to use her own vehicle, which is not a 1987 Yugo, incidentally. Let’s see, the JAC states that, “When travel is more than 50 miles or out‐of‐county, an expert may bill for mileage pursuant to section 112.061, F.S. The state rate for mileage reimbursement is $.0445 per mile.”

The distance between Jacksonville and Orlando, from her office to the jail, is 145 miles each way. The distance from her office to Fort Myers is roughly 300 miles. She anticipates at least one trip per month to Orlando and back, and at least two trips to Fort Myers. Overnight lodging is expected for the trips to Fort Myers and some of the trips to Orlando, all of which is feasible. She’s asking for $4,000.00. Let’s see… a round trip from Jax to O’do runs about $134.00. Jax to Ft. Myers would be double that - $268.00. We are 7-8 months away from showtime, so 7-8 Orlando trips would run… let’s give her the benefit of the doubt and say 8 months. 8 trips would cost almost $1,100.00.  To Fort Myers and back twice would add up to around $540, bringing our total to $1,640.00, not including hotel stays, and I think it’s safe to assume she’s not going to spend the night at the No Tell Motel, but still, that’s over $2,400 in lodgings. Nope, that one should be questioned by the judge. If the court chooses to approve, it brings our tally much higher…

$25,000.00

Ms. Finnell further anticipates “travel expenses for either one investigator or one mitigation specialist to travel to Ohio, to obtain records and interview potential witnesses.” Of course, this travel would have to require roundtrip airfare, lodging, and per diem expenses, which she expects to be approved at JAC rates. Air fare shouldn’t exceed $600.00 and total travel should not be any more than $1,500.00. That adds another $1,500.00 to our bill.

$26,500.00 grand total prior to trial

The final request is a very important one as far as I’m concerned, because it makes it clear when she expects this money. It makes absolutely no sense that the court would hold this amount until a verdict is rendered and the penalty phase begins, if Casey is found guilty. No, there’s not nearly enough time to collect all of this information. At the same time, something may come to light that is important to the outcome of the trial. This is money the state must hand out very soon in one form or another. Clearly, Ms. Finnell anticipates this because she says that “if this case goes to trial, travel to the site of the trial and lodging associated with the days required to attend the trial will need to be incurred at JAC approved rates. Counsel cannot at this time estimate the number of days required to select a jury, try the case, and conduct a penalty phase if necessary.” You see? This is money she intends to spend leading up to the trial, if it reaches that stage, which it will. The trial and possible penalty phase are not included.

We may not be happy with this price tag, but taking everything into consideration, and I mean everything, Ann Finnell has laid out an expense package that is within reason. Like I said, as much as some of us will disagree, it’s the first thing that’s come out of this defense that makes concrete sense. Finally, an efficient planner has emerged - one who’s not afraid to open her hand and show a couple of cards. No “I’ll have to get back to you on that,” or “I need to look into that.” Here it is, take it or leave it. Personally, I think Judge Perry is going to like her style. She’s no nonsense.