Hot off the grill...

It's been almost two years since my friend Rick died. He drank himself to death. No matter how much I tried to rescue him from the bottle, he wanted no help, and in the end, it was alcohol that pushed him to an early grave. Years earlier, Rick ran an NCAA Basketball Tournament betting sheet where you pick 32 of the 64 team field, eliminating each bracket until only 2 teams remain to play the championship game. In this particular bet, there were two winners to split the pot. I was one of them. When it came time to collect, Rick made every excuse in the book. He forgot to bring the money. He forgot where he put it. After several weeks of this, I hit him with the truth, "You don't have the money. You spent it on booze."

Yup, he wasted money that didn't belong to him. Such is the life of an alcoholic. Of course, we now know where Todd Macaluso stands in the legal community after stepping down from Casey's defense team for writing worthless checks from a client’s trust account. It reminded me so much of Rick. I'm glad Todd entered the Alternative Discipline Program, which addresses the substance abuse and mental health problems of attorneys when disciplinary action is taken in the California State Bar Court.

304 days ago, Todd Macaluso stood before the Ninth Circuit Court of Florida, in front of Judge Stan Strickland, and made this blanket statement:

“There is substantial evidence that we’ve found … that the body or remains of Caylee Anthony were placed there after Casey Anthony was locked up. It proves that somebody else placed the remains in the area.”

For ten months, we were led to believe this would be the tack the defense would take at trial, based on statements made by TES searchers, off-record, who said the land where Caylee was found three months later was not flooded in September when they searched. What made this so senseless was the undisputed fact regarding summer weather in Central Florida. Roy Kronk said under oath that the woods were too flooded to enter in mid-August of 2008. Soon after he reported his sighting, T.S. Fay rolled into town, adding over 12" of rain to an already flooded and low-lying location. Come September, no one could go in there to search, and TES leader Tim Miller instructed his teams to keep away from areas under water; that it may destroy evidence.

I believe Cheney Mason was smart enough to recognize that, because yesterday, he did an abrupt about-face. Huh? What's this all about? In a post-hearing press conference, Mason said:

"They did not search the exact areas where the body was found. So everything they said before that is not relevant."

Did Brother Cheney speak out of school? Is he spanking the numero uno defense attorney, Jose Baez, by taking the lead, or is it part of an orchestrated effort because of one simple truth - the area was too flooded to search and the State has the proof to back it up? I think the answer is yes. The area WAS flooded and the statement of Macaluso past must be erased from the memory bank of future defense maneuvers. Of course, we won't discuss plant and insect forensic evidence at the moment. That comes later.

On July 16 of 2009, Jose Baez and Andrea D. Lyon filed two motions. One was to certify Tim Miller as a material witness and/or to subpoena him for documents in the possession of TES. The motion makes several claims:

1. "This area [8750 block of Suburban Drive] was searched by several individuals, including Orange County law enforcement and TES volunteers, between July and December 2008."
2. "Several searchers have made statements to Orange County law enforcement and to the media stating either that they searched the 8750 block of Suburban Drive with TES, or they encountered TES searchers in that area."
3. "... that Orange County law enforcement provided TES with documents identifying the area in question as an area of interest; that witnesses have made various statements (including in a sworn interview) to the effect that they searched the area in question on behalf of TES or saw TES searchers in that area..."

In another defense motion filed November 23 of 2009, the defense had this to say:

"The Defense, through its own independent investigation, has interviewed several TES searchers who not only searched the area where the remains were found, but who were not among the thirty-two (32) identified by TES."

This was the now famous motion containing the statements of Joseph Jordanand Laura Buchanan, in which the bold claim was made that:

"The signed statements from Joe Jordan and Laura Buchanan, included with this Memorandum of Law, indicate that there were several people who searched the Suburban Drive neighborhood but were not among the thirty-two (32) names disclosed by TES.

Why did the defense decide to run diametrically opposed to previous statements and motions? Clearly, this is something Cheney Mason conjured up because Jose Baez and Andrea Lyon filed motions that are contrary to this new revelation. They are also motions this defense did not win, and there lies the crux. Since this didn't work, let's try something else. Gone with the old, in with the new, and most certainly, Mason is not naive to the ins and outs of criminal defense strategies. Here's the brand new slant:

“What do you have that shows she was not there in June?” WFTV reporter Kathi Belich asked him.

“That's when Caylee was missing. We don't know when she disappeared,” he replied.

AHA! The linguistic switch! No one knows when Caylee disappeared. As President Clinton once responded, "It all depends on what your definition of isis," there are discrepancies in the meanings of missing and disappearing. I guess we could establish the fact that my keys may be missing if I lost them, but they certainly didn't disappear because they would have to be where I left them, unless, of course, they were taken by someone else. Then, they would have disappeared and they are missing. Got that? You see, it's all in the semantics. Instead of admitting it can't win the flooding argument, the defense concedes by manipulating the verbiage. What it will attempt to prove in court is that Casey lost Caylee, but she didn't disappear. It was precisely like losing a set of keys, only she wasn't where Casey last left her. Let's see... was that at Sawgrass, or was it at Jay Blanchard Park? Oh. She lost her at Sawgrass, but she disappeared from Blanchard. Today, Casey misses her more than anything else. Gotcha!

No matter what twist the defense tries, the prosecution is going to present evidence that shows Casey never lost her. She never went missing or disappeared in her mind because she knew exactly where she left her all along; in the woods on the southern side of Suburban Drive, 8750 block. What interests me now is one simple question about why the defense still needs those TES documents. If Cheney Mason has concluded that no one searched in those woods, what difference should it make? Has someone else, another TES member or an independent searcher, stepped forward; someone who looked inside at an earlier or later date when the ground was dry enough? Or is there a slim possibility that a searcher joined the TES team in order to conveniently dispose of a body? If that's the defense plan, then I could almost justify wanting to go through those records, especially now that Roy Kronk is no longer under a defense microscope as a suspect, as Cheney said. That's whole different story, too.

Whatever it is, it's a pickle. When Judge Belvin Perry denied the defense access to the illegal tape recording made by Joe Jordan, Mason knew it would have to shift gears. Jordan's defense statement was unreliable and would hold no credibility in court. Would Laura Buchanan's words be enough? I doubt it, but hopefully, we'll know more answers after the July 15 hearing, when the issue of TES records is heard, or by August 31, when the defense must present its list of witnesses. Most likely, what Mason uttered yesterday is just a new way to create an element of doubt; another soft-shoe shuffle. Personally, I think it's nothing more than hot air, something Mason and the summer months of Florida are famous for. And, they're all wet.

Two Years Later

Yesterday afternoon, I took a ride down to Suburban Drive to shoot a video of the site where Caylee Marie Anthony was found. It's been two years since she was tossed into those dark and lonely woods like a bag of trash and I wanted to give you another glimpse at how it might have looked back then. I knew before going there that the area where her bones were discovered had been cleared out and that it would never look the same as then. The last time I was there, on April 24, most of the foliage was still dead from winter and what I would guess to be some kind of defoliant. As you will see, it doesn't look like that any more.

Needless to say, I was out of the house and off the computer most of the day. No time to play silly games. When I returned, I had to edit the numerous scenes I shot to make it transition well and make sense.

I know I'm a day late, but better late than never...

HAPPY BIRTHDAY, DIANA!

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

A Bad Day

Soon after I entered the courtroom, I knew something was amiss. No Casey. She was always present prior to everyone else entering. Then came the whispers and the calls for Cindy and Brad Conway to follow Jose Baez out the door. Soon after, they returned and Judge Perry entered. Cheney Mason waived the presence of his client. It wasn’t until the post-hearing press conference with the defense that we’ve all grown accustomed to that we found out why she wasn’t there. I guess some felt a little sorry about her fall, while others shouted out with joy. Me? I came to watch, listen and learn.

When the hearing came to order, the first business of the day dealt with Casey’s privacy at the jail, particularly when it comes to expert witnesses. The defense premise is understandable enough. They don’t want to show the state their hand by exposing names of professionals who come calling on Miss Casey. Only, there’s a problem with it. There’s no real case study available where this sort of order has taken place, in other words, no mention of exemption in law; and according to Cheney Mason, Florida Statute 119.011 only deals with state witnesses. He wanted the court to seal her witness log so the state and public can’t view her experts after they visit. An Orange County corrections attorney was on hand to make clear that the jail is subject to state public records laws. Meanwhile, a case Mason did cite caused the judge to take the motion under advisement and he will rule on it next week.

What I feel it will come down to is the same decision rendered by Judge Strickland at an earlier hearing; that there is a clear-cut separation of power issue. In other words, the judicial branch cannot rule over the executive branch, which runs the jail. Mason stated that due process trumps all, but the county lawyer pointed out that there are no exemptions to the rules. We’ll see.

Next, the judge led the defense to the motions to reconsider earlier rulings made by Judge Strickland. On the plate, Joe Jordan was the first topic du jour. Were Caylee’s remains at the Suburban site when the state says they were? Cheney Mason said that Jordan contradicted that in his interview with defense PI Mort Smith. On the other hand, he surreptitiously recorded the meeting and provided it to the state. The main problem with this is that it is so against the law in Florida to record someone without their knowledge. Only during trial can elements of the interview be brought up, in which case, it will be up to the jury to decide whether to believe Mort Smith or Joe Jordan if they contradict each other, which they will. In the end, the judge denied the motion and asked the defense,“Are you alleging that there was some taint on Strickland’s prior rulings or are you trying to get a second bite of the apple?”

The defense wanted George Anthony’s grand jury testimony. Since Assistant State Prosecutor Jeff Ashton asked for it and received it, why couldn’t the defense? In response, Ashton maintained that grand jury testimony must remain intact and it can’t be used by either side at trial. Despite Judge Perry’s denial of the motion, he left open the door to refile a more proper motion.

In the motion to strike aggravating circumstances, Casey’s team argued that it wants more of an explanation from the prosecution over why the state is seeking the death penalty. The prosecution had filed a notice listing five legal reasons why the harsh penalty applies in her case:

The murder was committed during aggravated child abuse, for which Casey is also charged
The murder was especially atrocious
The murder was committed in a cold, calculated and premeditated manner
The victim was younger than 12 years old
The victim was particularly vulnerable because her killer was her mother

The defense asked for more of an explanation. The judge said the state had complied with his order and the motion was denied. At the same time, he said that the list may be expounded on during the penalty phase, which of course, would mean after Casey’s conviction. Until then, the state can explain itself during the trial.

Get it done!

In an earlier motion, Judge Strickland ordered law enforcement to turn over evidence. This is about the multitude of tips the defense demanded after submitted an Attorney’s Demand for Discovery. Linda Drane Burdick said the information has been waiting at the sheriff’s office for the defense to pick up, which then nullified the motion. Baez lamented that the defense is indigent and Perry said to go pick it up and invoice the state. Baez said it was somewhere around $1,500.00 and the judge authorized $2,000.00 just in case the amount is higher. Because of issues like this languishing, Judge Perry reminded both sides that work on this case has been going on for nearly 2 years. He said, “Let’s get it done!”

This is something that seems to irk the judge. He said that the case should have been able to go to trial by January had things been done in a timely manner.

The defense then asked for bench (lab) notes and forensic evidence , specifically results and findings from Oak Ridge National Laboratory. They want e-mails between Yuri Melich and Arvad Vass. Oak Ridge, of course, came up with the machine that can smell death, meaning the chemical decomposition found in Casey’s trunk. This is a new science and untested. The judge brought up an interesting correlation with a DUI case in Florida where the defense attorney asked for the source codes of a breathalyzer machine. The judge in the case ordered the manufacturer to comply. The company said the information is a secret, like the recipe for KFC. The bottom line here is that, while Judge Perry did not order Oak Ridge to comply, it may be an issue later on. At the moment, it’s not relevant. That’s because the defense hasn’t deposed Arvad Vass. The judge said that was tantamount to placing the cart before the horse. Jeff Ashton reminded the court that the issue is with the lab and not the state. The motion to force the state to comply had no relevancy. In the end, the judge did deny the motion without prejudice, meaning a more concise motion on the matter could be filed after depositions are taken.

Finally, the defense told the judge that the state had added 45 more witnesses to its list and it felt there wouldn’t be enough time to interview them all. Judge Perry will take it under advisement and he told the attorneys that there are still motions pending. Let’s try to work out some dates.

I don’t know why I’m reminded of this. OK, maybe I do know, and I think it’s something to note. Call it one of life’s quirks. A prisoner awaiting a walk  down  the Green Mile is offered one last meal, within reason, of course. The prisoner requests a giant plate filled with a wide assortment of raw sushi. The guard tells him eating all that uncooked fish isn’t healthy for him. Huh? It’s his final meal. How ironic that today, Casey took a horrible spill and all the court employees in attendance felt an urge to come to her rescue; to comfort her and to ease the pain. All the while, the state is trying to put her to death. I’m not asking for a judgement call. It’s just an observation about another one of life’s quirks.

"I can make them disappear..."

I began writing this article in June, 2009. Today, I bring it up to date.

In February of 2009, Chris George’s car was found abandoned near a wooded area in Apopka, Florida. Also known as George Onda, family members and friends didn’t think much of it because he often took off to go on drug-induced binges. Three weeks later, the family called Apopka police and a search ensued. One of the volunteers was a guy by the name of James Hataway. He was one of only two people who last saw George alive. When the case went cold, police closed it out, but last May, something happened, prompting detectives to reopen the case. Today, the Ocoee Police Department has linked a total of 6 victims to James Virgil Hataway.

Tracy Ocasio was last seen a year ago leaving the Tap Room bar on Raleigh Street in Orlando’s MetroWest neighborhood, at 1:30 AM on May 27. Her car was found abandoned about 15 miles from the bar, not far from Hataway’s home. Yesterday, Ocoee detectives named him as the only suspect in her disappearance. Until then, he was only a person of interest.

Last June, I went to pick up a few prescriptions from the pharmacy almost across the street from where I live. As she was ringing up my purchase, I asked the always friendly woman behind the counter if she knew anything about Tracy and the guy police have in custody who might also be tied into Jennifer Kesse, missing since January 24, 2006. It’s pretty big news around Orlando and both women are a sad reprieve from the Casey Anthony saga. At first, she didn’t quite know, so I mentioned the bar up the street by Dan’s Restaurant, called McGuinnty’s Irish Pub. I told her he used to go there.

“Oh, yeah, I remember seeing him on the news. I thought he looked familiar,” she said. I told her McGuinnty’s was one of his hangouts because he lived nearby. “I think I used to see him in here.”

As a single mother, I just don’t picture my clerk as much of a drinker and, needless to say, neither am I any longer, but I was more of one back then and I knew who this guy was the first time I saw his picture on the local news. McGuinnty’s has been closed for about 3 years years now, but I can remember some of those times like it was yesterday, and I can easily remember the people who oftentimes frequented the place.

I never befriended James Virgil Hataway at that bar and there were some very good reasons why. The people he hung around with were skinhead types. Hoodlums, plain and simple, and most of the time the regular crowd stayed on one side while they planted themselves on the other. They were young - mid 20s to early 30s - the way I saw it. Today, Hataway is 29. They shaved their heads and had goatees. They all had piercings and tattoos. They were a tough group hanging with rough, but good-looking women. There were a few I knew by name, but not much else. Dallas was a good guy. Today, I don’t remember most of the names but I do remember the faces. To give you an idea, the tall guy in the middle of the picture at this link, Matt, taken at McGuinnty’s, had at one time been a nice young man until he got mixed up with that bunch. His change was overnight. Shaved head, tattoos all over, nasty, punk, degenerate attitude. He went from saying hello to wanting to beat the living crap out of everyone in his way and for no good reason at all. Of course, I never said a word to him again after he snarled one night. These were the guys who had no respect for anyone but their own small clique of friends. They had the ultimate chip on their shoulders. They had no respect for anyone but their own and it’s becoming clearer and clearer that Hataway had no respect for human life from what is emerging.

He was always the quiet one in the crowd, but it doesn’t surprise me the least that he, or any of the other ones for that matter, is the only suspect in the disappearance of Tracy Ocasio. A surveillance video from the Tap Room showed Hataway and Ocasio leaving together. She had offered to give him a ride home to Ocoee, a couple of miles northwest of the bar. Although not charged with her disappearance, he is in the Seminole County Jail, awaiting trial for an unrelated attempted-murder case from August of 2008, where a woman accused him of choking her, trying to snap her neck and slamming her head repeatedly in the pavement. There were witnesses, too. Real ones, and still alive.

This is a guy who fancied himself “the worst criminal in the universe” by using the alias Vader McGirth on his now closed MySpace page, named after the Darth Vader character in Star Wars. He’s no stranger to police because he has an extensive criminal record dating back to 1993 which includes kidnapping causing bodily harm, many traffic offenses and drug possession. See Inmate History Report

One of the former bartenders at McGuinnty’s told me he used to ask her for a ride home once in a while. I asked her if she had ever given him one. “No,” she said, “I always told him I live in the opposite direction.”

When I asked her if she was glad she didn’t, she responded, “YES,” but she never would have thought that he could do such a thing, other than because of the type of crowd he was always hanging with. I asked her where they all came from. Why did they congregate at McGuinnty’s? She said most of them lived in the trailer park behind the bar. She also told me that most of them have since outgrown that skinhead phase, and some are married. For the record, the trailer park is now a housing development, but I’m sure none of them live there.

“He wouldn’t care who it was, he would make them disappear, just like he told me. The way he would talk about people … what he would want to do,” said a former roommate who did not wish to be identified, because he said he had received threats from some of Hataway’s friends.

Before his arrest last year on drug charges, Hataway lived with his father in Ocoee. He also worked with his father dredging ponds.
 

“This Jimmy has a preponderance to do violence, he snaps, he gets angry, it’s always a woman, ride home, end up alone,” said Sgt. Mike Bryant of the Ocoee Police Department, in June 2009. “He’s very familiar with going out into open land at night and not getting caught dumping land debris and waste, that’s a concern…”

“We believe he did it. He’s always been a suspect,” the detective said yesterday, almost a year after Tracy disappeared. “He is suspected of killing her.”

Too bad for Tracy because this stunning beauty was a true blue Orlando Magic fan. That’s why she went to the Tap Room bar that fateful Tuesday night on May 26, to watch her team win, and win they did, against LeBron James and the Cleveland Cavaliers. Too bad another James, James Virgil Hataway, was there to watch her lose her life in the wee hours of Wednesday morning. No one ever saw her again. Just like magic, he made her disappear.

A Day of Discovery, yada, yada

586 pages of evidence were released today in the murder case against Casey Anthony, including inventory lists of DNA evidence and materials collected at the site where Caylee was found, in woods off Suburban Drive. There is some speculation that the dump contains lab results from tests run on the Pontiac Sunbird.

Read the document HERE

In a “shades of OJ” moment, there may have been a breakdown in the chain of command the defense team will surely capitalize on by compromising some of the integrity of evidence. Photographs of some of the evidence show a breach of the seals on packaging. Because of this, the defense may try to get that evidence thrown out, arguing that the evidence could have been contaminated. There is also the issue of evidence collected from the trunk of Casey’s car. One set of communications shows that investigators sent evidence to the Florida Department of Law Enforcement lab, and then onto Wuestoff Reference Laboratories, which specializes in forensic science and DNA testing. The FBIwanted to have all testing of physical evidence sent to their lab. If the private lab had begun testing, the FBI work could not be performed.

If you wondered what happened to Casey’s alleged jail house letters, wonder no more. Every one of them, including envelopes, were sent to the FBI to be analyzed. They are being compared to known samples of her writing, including a letter she sent to former sheriff, Kevin Beary. That was written just months after her arrest.

Meanwhile, it’s been a busy week for her defense team. Last week, prosecutors filed a one page NOTICE OF AGGRAVATING CIRCUMSTANCES listing what it “may” argue, but it came with no explanation of why. Those legal reasons were short and sweet:

1. Florida Statute 921.141(5) (d)

The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb.

2. Florida statute 921.141(5) (h)

The capital felony was especially heinous, atrocious, or cruel.

3. Florida Statute 921.141(5) (I)

The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

4. Florida Statute 921.141(5) (l)

The victim of the capital felony was a person less than 12 years of age.

5. Florida Statute 921.141(5) (m)

The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim.

All five apply in this case, and yesterday, Jose Baez filed a MOTION TO STRIKE STATE’S NOTICE OF AGGRAVATING CIRCUMSTANCES. In the motion, he argues that “imposed a duty on the state to disclose to the defense… a bill of particulars. The state failed to comply with this order in several respects.”

Among several respects, Baez claimed that “the state failed to provide any indication of the evidence it intends to rely on to prove the existence of these aggravating factors.”

On Tuesday, Casey’s defense team, led by Linda Kenney Baden filed aSUPPLEMENTAL MOTION TO COMPEL FORENSIC DISCOVERYcompelling the prosecution to provide Casey with “certain forensic discovery” from Oak Ridge National Laboratory, the University of Tennessee. Baden cited documents and e-mails between her and Jeff Ashton. Oak Ridge ran “sniff tests” on Casey’s car that concluded the air had signs of decomposition. The defense is calling it experimental research.

Closer to the edge

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

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

- defense attorney Andrea Lyon, in court today

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

- prosecutor Jeff Ashton, in response to Andrea Lyon today

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

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

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

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

THE MOTIONS

Gender Bias

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

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

Automatic appeal of death sentence

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

Why the state is seeking death

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

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

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

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

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

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

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

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

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

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

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

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

Information related to the potential penalty phase

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

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

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

State's motive in seeking death

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

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

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

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

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

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

End of hearing!

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

"Yes, when I was 23."

"So, you're 53..."

"No, not yet. Not until October."

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

Baez doesn’t know JAC

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

- J. Cheney Mason at Casey’s indigence hearing

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

Request to seal all documents from the Justice Administrative Commission

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

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

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

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

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

Show us the money!

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

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

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

“Death is different.”

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

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

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

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

A request for a forensic anthropologist was GRANTED.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cheney Mason speaks!

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

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

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

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

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