The Dominic Effect

About Dominic Casey’s recent disclosure regarding Jose Baez and Casey Anthony, this is a post I wrote on September 1, 2009. The ending is a bit snarky and, if you were following the flow of my articles at the time, you probably would have understood that there was no disrespect intended toward Brad Conway. People were targeting him, too, along with everyone else. Eventually, that included me. By the way, I did have several phone conversations with Baez and a couple of in-person discussions with Dominic Casey. I am researching other articles I wrote for more information. To my best recollection, and it’s in this article, the PI was not working for Baez at the time of the search. More like Cindy.

BAEZ BEATS BAR

Judge Perry: Little Black Boy

The following is a true story from 1989.

I worked as an artist/designer for Stonebrook Advertising in Orlando. We created print ads and radio commercials for the Belk Lindsey department store chain. Mostly, it was newspaper ads, but, yes, I did a few voice overs. My boss was Glenn Stone, but you couldn’t call him Glenn. He was always Mr. Stone and he liked to wear dark, expensive suits, slick and kind of glossy looking; and just to give you an idea of how formal he was, I happened to be in his neighborhood late one Saturday morning. He was outside, cutting the grass while wearing a starched white shirt and tie. I kid you not. I think his wife even called him Mr. Stone.

One workday afternoon, he called me into his office. “Dave, come on in here and sit down. This here is Judge Byrd. He’s running for re-election and he needs some artwork done.”

I recognized the gentleman and offered a handshake. “Good afternoon, Your Honor.”

I knew right away that he and Mr. Stone were old friends. It was quite obvious they both were from the same “good ol’ boy” mold that still permeates in communities everywhere, especially in pockets of the deep south. Mr. Stone explained that Judge Byrd needed campaign designs including ads for newspapers, bumper stickers and bulk mailer pieces. Mr. Stone decided that I would do the work for the judge. Oh, great. Tag, you’re it.

Originally hailing from New Jersey, I had a few inherently stereotypical prejudice issues with southern judges and politicians from what I had heard in the news over the years — hanging trees and all. Nothing major at the time because I had already been in Florida for eight years; it was just a slight amount of apprehension. Being white, I wasn’t too concerned about myself, as long as I could muster up a good southern drawl if pulled over by the law. Not really, but I think you get my drift.

We sat there and discussed what kind of strategy would help in his bid to retain his seat. We went over design ideas. Judge Byrd was running against someone I had never heard of until a few weeks earlier, when some upstart named Belvin Perry announced his candidacy to unseat Judge Byrd in the Osceola County Circuit Judge race. I don’t recall that party affiliation had anything to do with it, but I was immediately rooting for Belvin. I couldn’t say exactly why at the time, but I just didn’t particularly care all that much for Judge Byrd. Although I couldn’t pinpoint the reason, it probably had to do with the southern thing and that persnickety air of white male privilege that wasn’t as inherent in the New York/Philadelphia corridor, from whence I came.

After going over the plan of attack and some incidentals about his opponent, Judge Byrd was ready to leave, confident in the knowledge that we would deliver exactly what he needed to garner a victory. As he walked out of Mr. Stone’s office, he proudly exclaimed something that I found quite shocking and highly offensive…

“I’m gonna kick that little black boy’s ass.”

Mr. Stone was all excited. I was flabbergasted. I couldn’t believe what I had just heard. I said nothing in return. As a matter of fact, I didn’t respond at all. My face went blank. How could a sitting judge display blatant racism like that? Suddenly, I had a real problem. Personally, I wanted to do everything I could to help Judge Byrd lose the election. Professionally, I had to do everything in my repertoire of artistic talents to get him re-elected or face losing my job. I was very confused, to say the least. It was a lose/win, win/lose proposition. I didn’t want him to be re-elected, but I had to do my professional best to design winning ads, bumper stickers and flyers. Why me, dear Lord, why me?

I called an attorney friend of mine and told him I needed to talk about something VERY important. We met after work and I explained my moral and professional dilemma.

“My personality is split in half on this, Bill. I don’t want to do it, but I don’t want to lose my job. Since I’m obligated to do it, I’ve got to give it my all as a professional. I have to help the guy get re-elected and it goes against my moral fiber.”

He was quite familiar with the judge, too, and pretty much felt the same way. “Boy, Dave, I’ve been an attorney a long time now and that’s a new one on me. It’s a mess and I don’t envy you at all. If you want my professional advice, you have to do it unless you have another job lined up somewhere and I’m sure you don’t.” 

He was right, I didn’t.

I went to work on a strategy I felt would benefit Judge Byrd. I set up a slate of ads that had to run at certain times throughout the campaign. They had to be laid out in different sizes, too, since, in those days, newspapers weren’t alike. I worked on demographics so I could recommend where I felt mailing the flyers would benefit him the most. And the bumper stickers. Oh, yes, those things. They looked nice, but I cringed when I got behind his supporters, and I saw quite a few. I wanted to say, “Hey! That’s my design. Oh, never mind.”

I was proud of my work. I was sick of my work. And I waited for election day with bated breath.

Judge Byrd lost his bid for re-election. It was a bittersweet victory for me. I wondered if there was something I did wrong. But I was glad he didn’t win and I knew in the end that it didn’t hurt me professionally. There was no blame; no guilt. Judge Byrd took his loss well. All politicians know one day they will lose.

Bill asked me how I felt. Very relieved, I said. Was there something subconscious inside that held me back from really giving it my all? Oh well, it was over and my secret personal nightmare was, too.

Judge Belvin Perry went on to become Chief Judge of the Ninth Judicial Circuit and, of note, he presided over the Casey Anthony trial. And Judge Byrd? I saw him years later at a Belk Lindsey store. He remembered me and we had a very nice chat. He went back into private practice.

My friend Bill became a workmen’s compensation judge for the state of Florida, appointed by then governor Jeb Bush. I always told him what a fine, fine judge he’d make one day and he did. He’s still as humble as the day we first met.

In the end, it was the will of the people that unseated Judge Byrd, not my designs. Thank God I was never asked to do anything like that again. Torn apart, I wouldn’t wish it on anyone.

Cheney Mason Jars the Truth, By George!

It’s hard to believe that Casey Anthony was found not guilty of first-degree murder three years ago, but she was. My coverage of the case began in November of 2008 and continued in earnest until the verdict. That’s when it ended. Many people wanted me to resume writing about her — the lawsuits and bankruptcy — but my job was finished. Those news stories were of little relevancy to me, so I never wrote about her again. Until now. Something (or someone) has piqued my interest. Most assuredly, it must be of major importance to stir me from my restful, peaceful, crime-free, post-Zimmerman Rip Van Winklish sleep, right? Yes, and it’s Cheney Mason. Just as the Casey Anthony saga began with a flurry of horrible lies, the nest of iniquity continues.

Certainly, I have reasons to seek vengeance on those who took down the presiding judge at my expense, but I’m not a begrudging type, and the years have softened my stance to some extent. Jose Baez apologized years ago. It was nothing personal against me, he said, but he didn’t feel Casey could get a fair trial, especially in light of the check fraud pleas. That’s a different story and I understand more about the incident after years of study and reflection; however, I firmly believe the idea was the brainchild of a vindictive Cheney Mason. Mason had it in for Judge Stan Strickland and you are just going to have to trust me on it with no further explanation at this time. Asking the judge to recuse himself from this case is not the reason why I decided to pick up my pen. It’s to set the record straight over what I consider to be a persistent and perpetuating lie perpetrated by Mason — that poor, little Casey is innocent of any and all wrongdoing, and that the media and prosecution are guilty of everything. 

In his book, Presumed Guilty | Casey Anthony: The Inside Story, Baez wrote:

Casey and I had discussed her sexual abuse, and I felt it was only a matter of time before she would tell me the truth about what happened to Caylee.

This was immediately followed by:

The day I had a major breakthrough with Casey came in the early months of 2009 […]

He continues to explain what Casey told him about the drowning and her father’s involvement:

“Don’t worry. I won’t tell anyone. I’m taking care of it. Don’t say a word of this to anyone, especially your mother,” and he walked away.

Believe what you want. My point is that for over two years, until the onset of the trial in downtown Orlando, her defense team maintained an oblivious facade about the cause of Caylee’s death, and the public and many facets of the media were eschewing whatever Baez, et al, spit out. If she was so innocent, why not come forward much sooner than the trial? To be Nancy Grace-like, it would have been a BOMBSHELL and it would have sent the prosecution reeling into a downward, spiraling tizzy… momentarily, at least, until it had a chance to regroup. Instead, the young woman sat in jail from October 14, 2008 to July 17, 2011.

(I think it’s important to remind you, before I go on, that Baez was not death penalty qualified, so Mason was hired, pro-bono, in March of 2010, a year before Casey opened her mouth about the death of her daughter, as cited above. Mason had collaborated with Baez prior to officially joining the defense, too, so he was aware of his new client’s alibi and the accusation of sexual abuse. Unfortunately for George Anthony, he was going to be the defense scapegoat and he didn’t have a clue. If I was a minor target, George was huge.)

§

Presently, I know precisely what Mason is spewing. It’s called marketing propaganda and he’s doing it to promote his new book, Justice in America: How the Media and Prosecutors Stack the Deck Against the Accused due out soon. I think it’s important and fair to first note that Mason does come with credentials. He’s a highly regarded veteran of criminal defense trials, as CNN’s Jean Casarez just pointed out in her interview with him, What life is like for Casey Anthony, updated July 4:

A former president of the Florida Association of Criminal Lawyers, Mason, who just that year had been selected by Florida Monthly magazine as one of Florida’s top lawyers, was disgusted with the local media coverage about the relatively inexperienced Baez.

That’s great. What a hero. Definitely, Baez was treated with contempt by the public and press, but it came with the territory of representing the most reviled woman in America and Baez knew that. What he needed was help forming a strong and capable defense, not a pompous ass press secretary/superhero. For now, though, let’s continue with the version Casarez wrote and elicited from Mason:

Shortly before jury selection was to begin, Mason got word that Anthony’s handwritten letters describing sexual abuse at the hands of her father were going to be made public under Florida’s open records law.

He believed it was only right that Anthony’s parents, George and Cindy, were warned. He called them to his office late on a Friday afternoon.

“We had them one at a time come into my personal office and made the announcement: ‘Monday’s going to be a bad day for you George. I felt man to man I would tell you in advance.”“

Mason said George Anthony’s reaction was “basically none.” “He looked at me … I turned sideways a little bit, he clapped his hands down on his thighs — let out a big sigh but didn’t say anything,” Mason said.

“He never admitted doing anything,” Mason said. “All we had were the letters and (separately) the statements Casey had made to the psychiatrist.”

According to Mason, he then called Cindy in to inform her.

Next it was Cindy Anthony’s turn. “We called Mom in, Cindy, and told her and she immediately welled up with emotion, cried, was very upset,” Mason said.

This is not what I recall from my experience with the case. Please note that Mason said George and Cindy Anthony went to his personal office after he got word, yet in his book, Baez wrote something contrary to Mason’s revelation.

Two psychiatrists evaluated Casey for the defense, Drs. Jeffrey Danziger and William Weitz. Danziger was initially appointed by the court in 2008 following her arrest. For the defense, he met with her four times in November and December of 2010. Weitz conducted two interviews in February and March of 2011. According to Baez:

After the prosecution took the depositions of the two psychiatrists, both sides agreed they should be sealed because they contained medical information as it related to Casey’s mental health, and there were issues of sexual abuse by George and Lee, which was protected under state law. Perry immediately sealed them, saying that he wanted to review them before deciding whether they should remain sealed.

Baez continued:

A couple of days later, Cindy called me to say she and George had an appointment the next day at the state attorney general’s office to discuss the depositions of the shrinks.

I lost it. I smelled the skullduggery of Ashton and immediately contacted Perry, telling him that the state was planning to meet with the Anthonys to discuss the information that he had sealed. 

Perry had a clear response: “Sealed means sealed.” Despite this clear message from the judge, the prosecution went ahead and had its meeting anyway. That was the arrogance of Ashton, whose attitude was, “I can do anything I want because I can get away with it.”

And get away with it he did.

In fact, according to Baez, the prosecution didn’t show the Anthonys the depositions, it showed them the notes they took during the depositions:

[…] The benefit to the prosecution by making sure the Anthonys found out what was in the shrinks’ depositions, of course, was that when the Anthonys found out that Casey was revealing George’s sexual abuse, they would turn on Casey, no longer support her, and became [sic] state-friendly witnesses.

I thought Cheney was going to have a heart attack. […]

This is proof that Mason did not individually call George and Cindy into his office to “warn” them. Instead, Baez warned Mason about what the Anthonys learned from prosecutors. But wait! There’s more…

Before Presumed Guilty was released, then assistant state attorney Jeff Ashton published his book, Imperfect Justice | Prosecuting Casey Anthony. He had something to say about this matter, too, and it offers a third view, far removed from Cheney Mason’s.  Beginning on page 215:

Even though the witnesses had been withdrawn [Danziger and Weitz], Linda [Drane Burdick], Frank [George] and I wondered how much of this George and Cindy knew. Just because the defense had dropped the witnesses didn’t mean they were abandoning the argument completely. There was still a chance that George could be dragged into this.

One evening around the time that all this was happening, Mark Lippman, the attorney who by then was representing George and Cindy, filed a strange press release. It said something to the effect that George Anthony had nothing to do with the disappearance of Caylee.

Ashton contacted Lippman, assuming that Baez had spilled the beans:

Mark told me that a few days earlier, Baez had asked for a meeting with just Cindy. When she arrived at his office, Baez, Dorothy Sims, and Ann Finnell via the phone were waiting for her with important news. Baez proceeded to tell Cindy that Casey had authorized him to say that Caylee had died at the house and that her death had been an accident. Baez also told Cindy that the state was investigating George’s involvement with Caylee’s death. Baez claimed that the authorities had information from a witness who said that George’s phone records held valuable clues.

I was speechless. Poor Mark only knew the tip of the iceberg. It was the cruelest thing I have ever seen an attorney do. […] To tell this grieving woman…

To say that Ashton was outraged would be an understatement. This is what pushed him to tell the Anthonys the whole story — to warn them.

I told Mark we weren’t investigating George, although sadly, there was more bad news. But I had to get back to him about it. Linda and I discussed the best way to handle the therapists’ reports and we decided to invite Mark, Cindy, and George to our office. I gave Mark a call.

“Are they saying that George disposed of the body?” He responded by telling Lippman it was worse than that. 

When Baez found out that Cindy was coming to our office to see what the doctors had said, he immediately shot off an e-mail to Judge Perry, essentially accusing us of violating Perry’s order.

Linda said that Judge Perry’s order indicated only that the transcripts would not be made public documents; it never restricted our ability to investigate the story, and there was no way we were going to let Jose’s lies go unchallenged. Baez would later attack us on this point, but the judge agreed with us.

The prosecutors decided to discuss their notes and recollections with the Anthonys since the depositions were, in fact, sealed. Caylee’s grandparents needed to know the truth about what was actually going on, despite the inherent risk of possible witness tampering accusations.

George and Cindy were visibly upset when they arrived at the state attorneys office, Ashton pointed out.

Before the meeting, we’d told Mark that we would speak to him privately and share what we knew with him. Then it would be up to him to decide what to tell the Anthonys. We put George and Cindy in the conference room and took Mark into the office with us.

Lippman heard the entire story…

Mark left and went to the conference room to talk to the Anthonys for what seemed like twenty to thirty minutes. Linda and I were in a nearby conference room when Mark came to find us. Cindy and George had questions, and we accompanied him back to the conference room. Cindy was sitting at the table just looking down. George was next to her, his face bright red. Cindy looked angry. George looked like he had been crying, like someone had just killed Caylee all over again. He was just devastated.

“I just want you to know that none of this is true,” George said to us.

Cindy patted him on the hand and said, “It’s okay, George. Nobody believes this.”

His words would catch in his throat as he assured us one more time, “I just want you to know that everything I told you is the truth and I am not changing any of it.”

I remember Cindy saying something like, “I don’t know what’s wrong with her,” referring to Casey. At least she was finally willing to admit that there was something not right about Casey. How it would affect her testimony at trial, though, was anyone’s guess.

There you have it. The rest is history. But is Cheney Mason rewriting the history books to glorify himself? To give himself most of the credit for saving poor, innocent, child-like Casey? Sometimes, certainly in this case, when someone keeps telling himself the same thing over and over and over again, he begins to believe it. Mason is, after all, one of Florida’s BEST attorneys, as I’m sure he would quickly remind us and his mirror. And if Washington chopped down the cherry tree, he chopped down the giant Ashton tree. And didn’t tell a lie. Yes, man-to-man, he gently pulled George into his office to softly break the news. What a kind and compassionate father figure. Only, I wouldn’t buy a used lemon from the man.

The amazon.com Website promo intro of Mason’s book says, “He shares never before revealed media bias, and enough case secrets to make readers re-examine their conscience and the quick path to judgment and personal conviction of Anthony.”

I am deeply concerned about the honesty of those “case secrets,” especially coming from a man with so much documented bias against the media. Until he needs to use us.

§ 

I think it’s important to mention something more enlightening about the defense psychiatrists, Drs. Danziger and Weitz. They were most likely removed as witnesses out of fear that the judge would have granted the state their own psychiatrist, who would have interviewed their client. That would have been problematic for Casey and the entire defense. It’s also necessary to say that Danziger was highly uncomfortable with being a mouthpiece for these “very, very serious allegations against someone in a situation where there is no other evidence he actually did anything.” (Imperfect Justice, Page 210.)

Casey Anthony: Not Very Appealing, Part 3

DOUBLE JEOPARDY

In POINT TWO of the appeal, Casey’s defense wrote that:

II. The Appellant’s constitutional rights were violated when she was convicted of four separate counts of providing false information to a law enforcement officer because each count stemmed from the same single offense where there was no break in the temporal aspect of the crime.

In that sense, if I fire a bullet through the brain of someone (who dies, obviously) and, as it passes through my intended victim, kills the person standing immediately behind him; does that constitute two homicides but one murder charge because it was one bullet? After all, it stemmed from the same single offense. That’s the logic of this Appellant’s argument. The defense also argued Fla. Const. Article 1 §9:

”[…] that individuals are given ‘protection from multiple convictions and punishments for the same offense arising out of a single episode.’”

I completely disagree. First, let’s look at the testimony by law enforcement at Casey’s murder trial acknowledged by her defense:

TRIAL TESTIMONY

Corporal Rendon Fletcher:

“Corporal Fletcher relayed that the Appellant, after questioning, stated that her daughter was missing, in the custody of a nanny, and that the Apppellant was conducting her own search.” LIE #1.

Lieutenant Reginald Hosey (then Sergeant) and Officer Adriana Acevedo:

”[…] Officer Acevedo escorted the Appellant to the last stated location of the ‘nanny.’” LIE #2.

Hosey: “[…] after being escorted to the Sawgrass Apartments, […] the Appellant was led back into her residence…” LIE #3. There was never a Zenaida Fernandez-Gonzalez living at Sawgrass, in Apt. #210 or anywhere else. She led Hosey on a wild goose chase.

Detective Yuri Melich:

“The recorded statement by the Appellant stated that she worked at Universal Studios, Zenaida Fernandez-Gonzales was Caylee Anthony’s babysitter, and that the Appellant informed Jeffery Hopkins and Juliette Lewis of the disappearance of her child.” LIE #4.

You cannot simply lie to every law enforcement officer that comes down the pike and consider it one big lie. It may have been one in Casey’s mind, but each lie to each officer is a separate offense.

On March 12, 2009, I addressed the fraud charges filed against Casey by her onetime friend, Amy Huizenga, on a post titled Double Jeopardy. Casey stole and cashed her checks while she was out of town. Thirteen third-degree felony charges were filed in all. She was convicted of six and Judge Stan Strickland withheld adjudication on seven.

This applies today because the defense tried to do the same thing then; to count the separate charges as one. They failed. On The Wisdom of Solomon, dated January 10, 2010 - three years ago! - I wrote:

Judge Strickland gave the defense an opportunity to challenge the charges. We can discuss the lack of brevity or the levity of the arguments, but let’s cut to the chase - it came down to the judge. First, it should be noted that Casey had no prior convictions and she did make full restitution and  Baez did bring up “equal justice” for his client. He asked for one year of probation and credit for time served, rather than the five years of incarceration the State sought. In the end, His Honor sentenced the 23-year-old Casey to (jail) time served - 412 days - plus $5,517.75 in investigative costs and $348 for court. The amount may be discussed and negotiated at a later motion hearing because the defense found the investigative charge too high and not justifiable. He also adjudicated Casey guilty on six of the fraud counts and withheld adjudication on seven, plus he tacked on a year of supervised probation, which could be problematic and complex later on, given that she still faces a huge mountain of charges ahead. He said that he had given this a lot of thought prior to sentencing.

“There was not an even number of offenses, so I withheld in seven, I adjudicated in six. If that seems Solomon-like, it is.

On each and every count, Casey must submit a DNA sample because she is now a convicted felon. There it is, the words everyone has been waiting for…convicted felon. Time to move on to the next chapter, but first, Casey apologized to Amy Huizenga.

“I’m sorry for what I did. I’d like to sincerely apologize to Amy. I wish I would have been a better friend.”

§

That same standard for double jeopardy applies today, as surely as the day I wrote it in the 2009 article based on those fraud charges:

In essence, Casey’s defense team points out that under law, she should be charged for one crime by one count. The defense also claims that charging her with multiple counts for the same act prejudices her, therefore the counts should be dismissed.

According to the motion, “Miss Anthony is guaranteed double jeopardy protection by the Fifth and Eighth Amendments to the United States Constitution and Article 1, Sections 9 and 17 of the Florida Constitution for duplicative charges.” Let’s take a look at what the law says:

I will leave the indentation out for now, but the following paragraphs are from my 2009 article:

Amendment 5 – Trial and Punishment, Compensation for Takings

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment 8

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Florida Constitution – Article 1, Sections 9 and 17

SECTION 9.  Due process.

No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.

SECTION 17.  Excessive punishments.

Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. The death penalty is an authorized punishment for capital crimes designated by the legislature. The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the legislature, and a change in any method of execution may be applied retroactively. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. This section shall apply retroactively.

The double jeopardy rule of the Fifth Amendment is intended to limit abuse by the government in repeated prosecution for the same offense as a means of harassment or oppression. It is also in agreement with the common law concept ofres judicata which prevents courts from relitigating issues which have already been the subject of a final judgment. There are three essential protections included in the double jeopardy principle, which are:

1. being retried for the same crime after an acquittal
2. retrial after a conviction
3. being punished multiple times for the same offense

Does the defense motion to dismiss those extra charges, something it sees as ancillary in nature, hold any merit? In Solem v. Helm (1983) 463 U.S. 277, a split court found that a life sentence without the possibility of parole for a seventh nonviolent felony was unconstitutional. In Solem, a bare majority of the court held a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including the gravity of the offense and the harshness of the penalty; the sentences imposed on other criminals in the same jurisdiction; and the sentences imposed for commission of the same crime in other jurisdictions.

In Harmelin v. Michigan (1991) 501 U.S. 957, a life sentence without possibility of parole for possessing 672 grams of cocaine was upheld. The case produced five separate opinions. While seven justices supported a proportionality review under the Eighth Amendment, only four favored application of all three factors cited in Solem. As one court has concluded, disproportionality survives; Solem does not. (McGruder v. Puckett (5th Cir.’92) 954 F.2d 313, 316.) In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, determined Solem was wrongly decided and the Eighth Amendment contained no proportionality guarantee. Justice Kennedy, joined by Justices O’Connor and Souter, found the Eighth Amendment encompassed a narrow proportionality principle. In other words, the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Moreover, in Solem v. Helm, the court focused on the nonviolent nature of both the defendant’s current offense of uttering a ‘no account’ check (one of the most passive felonies a person could commit) and his prior offenses. The majority acknowledged a life sentence for fourth-time heroin dealers and other violent criminals would pass constitutional muster.

While we ponder the legality of the double jeopardy clause in the appeal, allow me to look at the April 19, 1995 Oklahoma City bombing which killed 168 people and was the deadliest act of terrorism within the United States prior to the 9/11 attacks. I don’t need to go into any detail of what transpired. This is purely about the charges, the trial, and the conviction.

On August 10, 1995, Timothy McVeigh was indicted on 11 federal counts, including conspiracy to use a weapon of mass destruction, use of a weapon of mass destruction, destruction by explosives and 8 counts of first-degree murder. On June 2, 1997, McVeigh was found guilty on all 11 counts of the federal indictment. He was executed by lethal injection at 7:14 a.m. on June 11, 2001, at the U.S. Federal Penitentiary in Terre Haute, Indiana.

Despite killing 168 people, McVeigh was only charged with 8 murders. Casey was convicted of four misdemeanor counts of lying to law enforcement personnel. The convictions should stand. Double jeopardy, in this case, would mean reducing her convictions from four to one. No dice, I say! Why? If Timothy McVeigh’s attorneys used the same logic and prevailed in a similar motion to dismiss the counts by reducing the eight murder charges to one, that means out of 168 deaths he was responsible for, he would have been tried for one single murder and the entire weight of those deaths would have been reduced from 8 to 1. Would he have been sentenced to death for one murder? If so, would it have been appealed? Yes, and it would have carried much less weight. With Casey, it’s the same thing in my book, although the charges are not similar. I am merely making an analogy.

Ultimately, double jeopardy should not be an appeal issue as far as I’m concerned. Casey was convicted, sentenced, and she did her time on all four counts. That cannot be taken away from her. In the end, it will hinge on whether she was in police custody when she was questioned.  Was she free to go and was she Mirandized? Should she have been? By her own admission, she spoke freely. Should she have been Mirandized just because she decided to sing like a bird? Not until she was placed in custody, meaning under arrest or when her freedom was greatly deprived; enough to be equal to an arrest. Custody could be interpreted as being handcuffed and placed in the back of a police car. It could also include her interrogation — an attempt to elicit incriminating statements — but to what extent? Who said she was a suspect at the time?

I believe the appellate judges will rule against her. Those misdemeanor convictions will stand by a vote of 2-1. No matter what the outcome is, she’s still — and shall always remain — a convicted felon. Thank you, Amy Huizenga.

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Casey Anthony: Not Very Appealing, Part 2

In its SUMMARY OF THE ARGUMENTS from the INITIAL BRIEF OF APPELLANT, Florida Fifth District Court of Appeal, concerning Casey Anthony’s four misdemeanor convictions of lying to law enforcement officers, her defense wrote:

There’s three points on appeal. First, the lower court [9th Circuit] erred in denying the Appellant’s motion to suppress her statements to Detective Melich. The record establishes that the Appellant was placed under arrest, never Mirandized, and subsequently interrogated. Either the statements occurred at the Appellant’s residence or Universal Studios. At both locations, the Appellant was in custody. At her residence, the Appellant was unhandcuffed and questioned to purposely avoid informing her of her Miranda Rights. At Universal Studios, the Appellant was in custody, placed in a small room for questioning by three members of law enforcement, confronted with evidence against her for an extended period of time, and never informed of her rights under Miranda. In either scenario, the Appellant’s statements were involuntary [emphasis mine] and, therefore, the lower court erred in denying the Appellant’s motion to suppress.

This article will focus on one aspect of the three points on appeal; whether Casey was read her Miranda warning and whether it was necessary while being questioned by law enforcement prior to her arrest. This will be a lengthy article, and most of the legal information comes from a post I wrote and published on March 9, 2011, A Sneaking Suspicion. Ultimately, I feel the appellate court will rule 2-1 against Casey. I base my decision on several things; all legal in nature. Please pay particular attention to the final part of this post, where the charges are listed. Remember, Casey was not charged with murder until October. Also, there’s an interesting video to watch. It’s short and, in it, she tells her brother that she WAS Mirandized, although the State did not argue that in court on Tuesday.

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Keep in mind that this was written almost two years ago:

While sitting in the courtroom, I must say Cheney Mason impressed me. His voice was stronger than it usually is. During one of the detective’s testimony last week, he asked if he was familiar with the term unarrested. The detective responded positively. Yesterday, Mason exclaimed that there is no such thing as being unarrested. He went on to scrutinize the tactics of the deputies and detectives from the first hours they spent with Casey to the final moments they pressed the Anthony family into service to visit her in jail. Agents of the State? Please.

When Casey was driven to Universal, he asserted that the detectives were already aware that she wasn’t employed there. They had set the meeting up with the chief of security, where a small room was awaiting her for questioning. The door was closed, he said, and the intimidating tactics began. Voices were raised. Was she free to go, he wondered. No, of course not. She was at their mercy. No car and no one telling her she had a right to leave. The only way it could have been a voluntary interrogation would have been if she drove herself to meet them there.

He said it would have been impossible for trained law enforcement personnel to not treat her as some sort of suspect once they took a whiff of her car that first night. Where the defense had been weak in citing case law, Mason let loose here with the case of Ross v. State of Florida and the Florida Supreme Court’s ruling upon appeal:

After carefully reviewing the issues raised on appeal, we reverse the convictions and sentences of death because of the police conduct in interrogating Ross on January 9, 2004. Specifically, the police, over a period of several hours of custodial interrogation, deliberately delayed administration of the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), obtained inculpatory admissions, and when the warnings were finally administered midstream, minimized and downplayed the significance of the warnings and continued the prior interrogation—all of which undermined the effectiveness of Miranda.

In Ross’s case, the court wrote that investigators mishandled his interrogation days after his parents were beaten to death with a baseball bat more than seven years ago. On 7 January 2004, Ross, then 21, called 911 to report that someone had murdered his parents. No weapon was ever found. The Supreme Court ruling described a pressure-packed investigation two days later in which a detective questioned Ross for hours without reading him his Miranda rights. The high court ruling states the detective deliberately delayed reading Ross his rights in an effort to obtain a confession, while assuring him that he was not under arrest, amounting to an involuntary confession. Specifically, law enforcement, over a period of several hours of custodial interrogation, deliberately delayed administration of the Miranda warning. According to the ruling, when Miranda warnings were administered “midstream,” detectives…

… minimized and downplayed the significance of the warnings and continued the prior interrogation — all of which undermined the effectiveness of Miranda.

There is another case in Florida that is a real puzzler. In Ramirez v. State, 1999 WL 506949, the Florida Supreme Court reviewed Nathan Ramirez’s conviction and death sentence for his role in the execution-style murder of Mildred Boroski, a 71-year-old widow. He and another man broke into her home, killed her dog, tied her to a bed and raped her. Then, they forced her into a car, dead dog and all, and drove her to a remote field where Ramirez shot her twice in the head.

Investigators with the police department discovered some of the woman’s possessions in Ramirez’s custody and asked him to go to the station for a taped interview. He agreed. The investigators began the interview without a Miranda warning because they thought he was only a witness rather than a murder suspect. Within a few minutes, he began to sing like a canary and one of the investigators stopped the interview to suggest he be Mirandized. The colleague immediately read Ramirez his rights which the (now) suspect acknowledged and waived. He proceeded to detail what transpired that day.

Sadly, the Florida Supreme Court reversed Ramirez’s conviction and sentence despite how careful and diligent the investigators were. Why? Four of the justices claimed that his Miranda warning was given in a manner that unconstitutionally minimized and downplayed the importance of his rights. They exploited his pre-Miranda admission about being in the house.

That’s bad enough, but back to the matter at hand. The most startling revelation made by Mason was his assertion that the first time Casey was Mirandized was not until 14 October 2008, when she was indicted on first-degree murder and other charges. I beg to differ with him. According to Casey’s ICJIS (fraud) Arrest Affidavit, she was read her Miranda warning by OCSO Detective Johan Anderson on 29 August 2008 at 2135 hours, or 9:35 pm:

I responded to 4937 Hopespring Drive and made contact with defendant Anthony. She was placed under arrest and transported to the Orange County Sheriff’s Office. I read defendant Anthony her Miranda Rights and she advised that she did not want to speak to me without her lawyer. I terminated my interview and she was transported to BRC without incident.

Whether she was read her rights prior to this date is not readily available, but the above log refers to the fraud charges only. In any event, technically, she was read her Miranda Rights prior to 14 October. Was she advised of her rights before this exchange occurred on 16 July 2008?¹

“What happened to Caylee,” an investigator asks on the tape.

“I don’t know,” Casey Anthony said.

“Sure you do,” and investigator said.

“I don’t know,” Anthony said.

“Listen, something happened to Caylee,” an investigator said. “We’re not going to discuss where the last time you saw her (was). I’m guessing something bad happened to her some time ago and you haven’t seen her, so that part is true — is you haven’t seen her because she’s somewhere else right now.”

“She’s with someone else right now,” Anthony said.

“She’s either in a Dumpster right now, she’s buried somewhere, she’s out there somewhere and her rotten body is starting to decompose because what you’re telling us…,” an investigator said. “Here’s the problem. The longer this goes, the worse it’s going to be for everyone. Right now, everything you’ve told us — we’ve locked you into a lie. Every single thing that you’ve told us has been a lie.”

If she wasn’t read her rights before being interrogated, this could be a real problem because, clearly, she was the only suspect that law enforcement had as evidenced by their line of questioning. They were already on to her tricks.

On the other hand…

When Linda Drane Burdick approached the podium, she calmly stated that at no time was Casey in custody - there was no custodial interrogation. When at Universal Studios, Cpl. Yuri Melich wrote in his arrest affidavit, interestingly dated July 15:

At this time, we found a small conference room in which to talk to the defendant. This conversation was also recorded. Prior to beginning this interview, we stressed that the door was unlocked and were in the room for privacy only. She understood and agreed to speak with us on tape.

At no point in the arrest affidavit was it written that Casey was read her Miranda Rights. If there was ever a time for a sinking feeling, it may have come in the courtroom on Monday if she was not read her rights. There’s something else. Cpl. Yuri Melich made this notation in his affidavit:

I first met with the defendant inside her residence and spoke with her alone and away from other family members. Before asking for a recorded statement, I reviewed her original four page written sworn statement and asked if this was her version of what happened. She said it was. I told her that the incident was very suspicious and her version suspect.

Later that day, several of Casey’s friends and boyfriends called OCSO to report what they knew. It was a shock to everyone that darling Caylee was missing. Melich continues:

Once at our central operations center, and after I started receiving the above phone calls reference the defendant and her child, the defendant was given one more opportunity to change her story. She did not. She was then placed under arrest for child neglect, and providing false information to us regarding this investigation.

The official charges were:

• Neglect of a child 827.03 (3)(C)
• False Official Statements 837.06
• Obstruct Criminal Investigation 837.055

However…

At no time did Casey express an interest in remaining silent. Initially, as Linda Drane Burdick was quick to assert, Casey was not a suspect in the disappearance of her child when she was briefly cuffed and held in the back seat “cage” of Dep. Acevedo’s patrol car. She was never suppressed inside her house, nor was she ever held without her permission. Of course, common sense tells you when an officer of the law carries on a conversation and/or asks you to do something, you’d better comply, so there are gray areas defense teams are trained to exploit. Rightfully, Burdick contended that law enforcement merely treated Casey as a possible witness to some sort of kidnapping and there was no reason to Mirandize her.

I think before we continue, it’s important to clarify the written statement made by Casey. It came before she was handcuffed and placed in the police car.

Here comes the judge…

While Mason was arguing his case, Judge Perry broke in and asked him if he was familiar with Parks v. State (1994). Mason said no, and the judge advised him to read it. Now, if you want my opinion, when a judge suggests something to read, you’re darned-tootin’ I’m going to read it! The mere fact that a judge mentions case law is ominously significant, so here is where I think the judge will go with his decision regarding Miranda…

In the case of Darryl Parks v. State, in the District Court of Appeal of Florida, Fourth District, the appellant appealed his convictions for first-degree murder and three counts of armed robbery. He asserted four issues on appeal:

1. whether appellant’s motion to suppress his confession should have been granted;
2. whether the trial court erroneously allowed an accomplice’s prior consistent statement into evidence;
3. whether the trial court erred in granting appellee’s peremptory challenge of a minority juror; and
4. whether prosecutorial statements in closing arguments amounted to a comment on appellant’s exercise of his right to remain silent.

The appeals court affirmed as to all issues. However, their affirmance of issues one and two did warrant discussion. The following is quoted directly from the ruling. I will highlight key points:

On January 16, 1991, an individual wearing a mask entered a business in Broward County, began waiving a gun, and demanded money. The gunman was joined shortly thereafter by a second individual. During the course of the robbery, the owner of the business was fatally shot.

Five days after the shooting, appellant was arrested on an unrelated robbery charge. He was brought to the Broward County Sheriff’s Department homicide office for questioning concerning the murder. He was handcuffed and shackled. However, doubts arose concerning whether there was sufficient probable cause for appellant’s arrest. It was decided that appellant would be released. Appellant was advised he was free to go, the handcuffs and shackles were removed, and he was offered a ride home. Thereafter, but prior to leaving, appellant was asked whether he would remain and talk about the shooting. Appellant said he would talk to the officers about it. After appellant was informed of his Miranda rights, he was questioned by detectives. During this questioning, appellant made incriminating statements concerning his involvement in the murder and robberies. Appellant said he was present and he only intended to rob the place. However, he admitted using a substandard quality gun and “it just went off.”

The evidence shows appellant freely and voluntarily gave his statement to police. Even if the police lacked probable cause for the arrest on the unrelated charge, the fact appellant was released from custody and voluntarily remained to answer questions breaks the causal link between the arrest and his making of the incriminating statements to police. Appellant’s agreement to discuss the crime when he was free to decline and go home was an act of free will sufficient to purge any possible taint from the arrest. We find the trial court properly denied the motion to suppress appellant’s incriminating statements.

Parks asserted that the trial court improperly allowed a prior statement by his accomplice into evidence to help build the case against him. The day after he was arrested for the murder, Terrance Batten was brought to the police station for questioning. After being informed of his Miranda Rights. He then gave a tape recorded statement to police which implicated himself and Parks in the murder. About 22 months later, Batten received a plea deal from the state.

At trial, Batten testified about the shooting and robberies. He said appellant shot the victim. On direct examination, Batten acknowledged he gave a statement to police shortly after the shooting. During cross-examination by defense counsel, Batten was extensively questioned about his plea deal with the state. The details of the deal were spelled out for the jury. Batten was also questioned about the circumstances surrounding his prior statement made to police. Batten acknowledged the detectives told him that they did not want him, but wanted appellant. Batten also acknowledged he was told if he did not cooperate, he would be charged with murder and sentenced to the electric chair. He admitted he was thinking if he gave a statement to the detectives he could go home, but if he did not give them a statement he was going to be held on the murder charge.

Defense counsel also questioned Batten about specific contents of his prior statement. Batten was asked about his comments concerning who he was with prior to the robbery. Defense counsel noted that Batten said in his statement to police he was cooperating because the victim was shot. Also, Batten acknowledged there is no mention of a mask in his prior statement.

During the testimony of one of the detectives who questioned Batten, the tape-recorded statement was admitted into evidence over defense objection. Defense counsel had argued the prior consistent statement itself was made after Batten had an improper motive. Therefore, it was inadmissible.

Here’s the clincher, though:

We agree with appellant that the prior consistent statement should not have been admitted into evidence. Generally, prior consistent statements are not admissible to corroborate a witness’ testimony. Jackson v. State, 498 So.2d 906 (Fla. 1986). An exception to the rule provides that such statements are admissible to rebut charges of improper influence, motive or recent fabrication against the witness. Id. at 910; see also § 90.801(2)(b), Fla. Stat. (1991). However, the prior consistent statement must be made “prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.” Dawson v. State, 585 So.2d 443, 445 (Fla. 4th DCA 1991).

We hold, however, that the erroneous admission of Batten’s tape recorded statement was harmless. The jury was aware of the existence of the prior statement. A reasonable jury could presume the prior statement was consistent with Batten’s in-court testimony. Further, defense counsel delved into some of the specifics of the statement, referring to actual comments made by Batten to police. Thus, portions of the statement were highlighted for the jury, by defense counsel, prior to the admission of the statement in its entirety.

These factors, in combination with appellant’s incriminating statements and testimony linking appellant to an item stolen in the robbery, convince us of the harmless nature of the trial court’s error. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). We therefore affirm appellant’s convictions on all counts.

AFFIRMED.

What does this tell me? Well, when Mason mentioned October 14 - and he did so twice - and the State did not counter, it sent a message. Two times and the prosecution came back with no response. I think the judge is going to allow Casey’s early statements [made in July of 2008] to stand until a clearly defined moment surfaces that distinguishes her standing with the police.

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Back to the present…

If you’ve ever watched COPS, you’ve seen officers detain and handcuff people not under arrest, and they make their point clear about doing so for everyone’s safety; the detainee’s and the officer’s.

Ultimately, Judge Perry did side with the State on both motions filed by the defense. In his decision, Perry wrote that the test of law primarily focused upon the perceptions of the suspect, not the intent of the police. In this regard, Casey was quite aware of what was going on around her, yet she continued to blab, acknowledging that she didn’t need to do that. George Zimmerman spoke freely, too, and this may work against him if he loses his battle in court and goes for an appeal.

Next, I will explain double jeopardy and I promise it won’t be as long. 

Watch Me on ID Investigation Discovery Tonight

 Tonight at 9:00 PM EST, I will appear on the nationally broadcast program Motives & Murders: Cracking the Case | Not Again on ID - Investigation Discovery.

In 1997, Carla Larson was murdered near Disney property, where she worked as an engineer for a construction company. Her husband became an immediate suspect in the public’s eyes (not to mention law enforcement) because of his lack of emotion when interviewed on local television stations. He was downright indifferent. However, there was much more to the story, so please watch tonight to find out why…

From the ID Website:

When Carla Larson leaves work to grab lunch, she never returns. The all-American wife and mother is discovered naked and strangled to death in a nearby swamp. The investigation stalls…until a random love triangle provides a clue to finding her killer.

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I will be featured on this program because of a two-part series I wrote and published on September 5 & September 8, 2010:

When karma strikes twice

Slowly, the wiles of justice churn

Motives & Murders: Cracking the Case will appear on the Investigation Discovery channel on Saturday night, December 8, at 9:00 PM EST. It will be repeated at midnight, at 4:00 AM, and Sunday afternoon at 5:00 PM. You can find out if your TV Service Provider carries the channel by clicking HERE and typing in your information. 

Newly elected State Attorney Jeff Ashton was also interviewed, along with Carla’s husband, Jim Larson. The interview took place in June of this year.

I don’t know how much I’ll figure into the program, but I do know about cutting room floors. In any event, it should be a very good show because I remember the crime so well. Please take a little time to read my two posts to familiarize yourself with the case.

Anatomy of a Filicide

Tony Pipitone from WKMG just reported that a search for “foolproof suffication” was performed on the Anthony family computer on June 16, 2008, the day Caylee Anthony died. Jose Baez claims that George did it, but Pipitone says that, according to the timeline, it couldn’t have been him. He was already at work. At the time, Casey’s cell phone was pinging in the immediate area of the house. 

Baez wrote about this in his book. He waited for the information to be admitted during the trial, but the procecution never produced it. While it’s true the defense was part of the dicovery process, this was evidence each side had the opportunity to examine. It was not something Baez had to share since the State could have readily concluded the same thing. Unfortunately, OCSO missed it. Had it been introduced, the prosecution would have argued that the death could not have been an accidental drowning and it may have impacted the jury. Sadly, there’s nothing that can be done. Double jeopardy, you know. To most of us, this just adds to what we’ve believed for a long time — that Casey Anthony murdered her daughter and she’s still the most hated woman in America, if not the entire world.

This is a story I wrote and published on March 27, 2009, over three years before the trial. Take from it what you will. Originally, I put a disclaimer at the bottom, calling it a work of fiction. Today, I’m not so sure…

CAUTION! CONTAINS LANGUAGE NOT SUITABLE FOR ALL AGES

It’s a perfect day for a murder

Dear Diary,

Last night I had a terrible fight with my mother. I hate her guts. It’s the worst fight we’ve ever had. Sometimes, I can’t decide who I hate the most, her or Dad, but I am so pissed off, I wish she was dead. Him too. Why, oh why, does she think I am a bad person when it is her? She sucks. I want her out of my life. I need to get away from this house and these people forever.

If Tony would only take me away. He must. He’s got to help me. Why do I feel my life is such a mess? If only I didn’t have the brat. She is nothing more than a pain in my ass. Today, I will start my life all over again. With Tony. Or Ricardo. Or… OK, Jesse. If not Jesse… and SHE will never be with us, whoever I’m with. Jesse? If only you didn’t love her so much, we might still be together. Maybe not.

Mom? You think you can take her away from me, but I will never let you. She would make you so happy because she could be the daughter you’ve always wanted. It was never me. You never loved me. What do you think I should do with her? It’s too late. You can’t have her and I don’t want her. I’ve made my mind up and today is it. That little shit will never, ever ruin my life again. She is dead. Screw you all and you will never find out about her. You think I’m crazy, do you? I’ll show you what crazy is all about. You got it. I’ll get even with you. You won’t ever be able to spoil her again.

Dad? Eff you, you weak son of a bitch. You are such a pussy. You let Mom run all over you. I’ve had enough of you and you think you were such a hotshot cop. Oh yeah? You are nothing and you will never figure out what I did with her because I am way smarter than you. You can rot in Hell. Besides, you always loved Lee more than me. You both did.

Lee? Just go on living in your simple little world. God, if you only knew how much I’ve used you over the years, you’d realize just how stupid you are. So’s your girlfriend. Too bad you’re not here to say good bye.

Brat? Today is the day. You will never see me again. Better yet, I will never see you again. Even better still, your grandmother is going to really, really suffer and in the end, I will laugh at you all. Sleep late. I don’t want you seeing Ci Ci before she goes to work. That’s why our door is shut. OK, here, take Mommy’s nanny Zani pill.

I’ve been planning this day for a long time. It didn’t have to be today, but after last night, this is it. It had to come sometime, because I was going nuts. Today, I feel liberated. My mind is made up. What? You wonder why Mommy is in such a good mood? Quick, go see Grandpa Jo Jo before we go. I need to get ready.

OK, Baby, let’s get going. I’ll see you later, Dad. I’ve got some errands to run. C’mon, let’s go. Say good bye to Jo Jo. Tell him you love him. Yes, we’ll see you later. Wave to him as we drive away. Go ahead, Sweetheart.

12:40 pm

She didn’t really need to go anywhere early that afternoon. She just wanted to get out of that house, away from the pain of the night before, so she drove around, chatting endlessly on her cell phone with her boyfriend, Tony, her ex-boyfriend Jesse, and her then-best friend, Amy, never paying any attention to her daughter. She headed down Chickasaw Trail to Lee Vista Boulevard, where she killed some time, about a half hour, at the shopping plaza; then she took off up Narcoossee to Goldenrod. From there, she headed north to Curry Ford and turned into the Winn Dixie shopping center just to kill more time until her father left and the coast was clear. OK, let’s go home for a minute. Mommy forgot something. It was easy to tell her toddler that they needed to go back home. Besides, the little girl always felt safe and secure in that house. Maybe, she messed her pants and Mom forgot the pull-up diapers and the pack of Nice’n Toddler wipes and that angered her. Oh, Come on. You’re too old for this. Whatever, this was the day she had been planning for a long time. She was starting to feel happy again, something she hadn’t been since before the day her daughter was born. She started the car and drove east on Curry Ford until she turned south on Chickasaw to return to the neighborhood where she grew up.

3:00 pm

When they got back to the house, they went into the bathroom where she cleaned the little girl and dried her off . Then, she led her into the bedroom. Mommy will be right back.  She went out to the garage to get the duct tape and a couple of trash bags. Then, she walked back in, took the bags into the bedroom and began peeling a swath of tape off the roll. Here, Mommy wants to play a little game. Come on, you little brat. She started to stick the tape around her head, from the left side of her face and far into her hair.

Mommy, what are you doing? the little girl wondered, unable to really speak like an adult and too tired too fight. Mommy, Mommy, Murfurlbalbl… The tape was now wrapped around the toddlers head and Mommy tore it off the roll, making sure it was stuck firmly to her mouth. She picked the small child up, who was lightly kicking and breathing through her nostrils, wimpering like crazy, as if begging for her life, but the pill had begun to take its toll.

Stop kicking, you little shit! Tears of fear were rolling off the little girl’s face as she struggled to free herself, but she was no match for her mother, as slight of build as she was. Finally, the Xanax she had given her earlier kicked in and the precious bundle of joy gave up. She set her daughter down and hurried into the bathroom to grab a bottle from under the sink. She poured the homemade chloroform onto a wad of folded up toilet paper, returned and held it against her daughter’s nose, just to make sure. All of the faith and trust this girl had in her mother was as weak as her now shallow breaths. What was so different this time as her mother picked her up, was how much heavier she seemed. I guess she never knew much about dead weight. Well, she was never as bright as she thought she was.

She carried her out into the back yard and walked up to the above ground swimming pool. The body made a light splash as it was dropped in. She held her under water until the bubbles stopped. It didn’t take long. The child-like breaths that once smelled like a field of fresh flowers on a breezy Spring day were forever silenced. The life she brought into this world was now dead by her own hands. To her, it was the most exhilarating, the most liberating feeling in a long, long time - until she tried to lift the child out of the water. Wow! This kid is heavy. She hadn’t thought about how much the water would log her down. She propped her little body against the edge of the pool, pulling her arms out and over the side. That gave her a chance to go get the pool ladder that would act as leverage as she struggled to pull the girl out of the water.

One of the things she’s known for is that she doesn’t like to follow directions. She’s never been good at finishing jobs, either. If her mother hadn’t been around to lecture and complain, her bedroom would have been a mess. When she pressed the ladder against the swimming pool, she never attached it firmly. That’s why the ladder was left next to the pool and it explains why she never closed the gate behind her. She never followed up on anything unless someone like her mother was behind her every step of the way and that angered her so.

3:30 pm

Fortunately for her, the pet dogs were napping when she re-entered the house. Casey always demanded that her parents stay out of her room. They always granted her wish for privacy. She was, after all, an adult woman and she needed her space. She walked into the bedroom, dropped her daughter onto the floor and put her soiled clothes into one of the bags. She dried the body and opened the other bag to put her little girl inside. Then, she pushed her under the bed, grabbed the bag of clothes and walked out of the room, shutting the door firmly behind her. She had to be very careful about making sure the door was properly closed. For one night, her bedroom was to be Caylee’s mausoleum. When she walked out the front door with bag in hand, she took one more brief look inside the house before locking the door. Good bye, she thought. Eff this house. No more fights. No more nagging. I am free, but she knew she had to come back tomorrow. This was enough work for one day.

Odds & Ends and Odd Endings

JOSE BAEZ

By now, most of you are already aware that Jose Baez is no longer affiliated with the client who turned his name into household fame. Cheney Mason made that clear a month or so ago when he stated that Baez severed all ties with her right after sentencing. It’s now official:

By clicking on the above image, you can inspect it at a much larger scale. Very revealing are the lines drawn through his name, his affiliation with the client and his work number, that signify his departure. Scan all the way down to the bottom left and you’ll also find that a Notice of Withdrawal [of] Attorney of Record was filed on 2/21/2012. 

There hasn’t been much said about it until now, but it’s most likely what I assumed since it was first reported. First of all, Casey Anthony is an ingrate. She only thinks of herself, which is something most of us will agree on. I can’t say for sure, but my guess is that it was one of those “I quit!” moments, followed by a typical response from an ingrate, “You can’t quit! You’re fired!”

While I am not offering any sympathy or line of defense for Baez, I do look at it from a rational point of view. After the trial, logic dictated that he didn’t need her any longer. He won the case and garnered one heck of a lot of publicity. He’s set because of it, no matter what anyone may think of him. He’s not the first criminal defense attorney to clasp a client from the clutches of the executioner’s claws, nor will he be the last. Think of Johnnie Cochran and OJ, but the world didn’t go wild when he was found not guilty of two counts of first-degree slaughter, and Cochran’s legal practice and notoriety gained significantly in the wake of that trial.

Here’s one little detail I’ll bet you’re not familiar with. Baez was the lead attorney on another murder case while the Anthony story was taking center stage. Contrary to what some may think, attorneys do work on multiple cases at a time. Speaking of time, please take time to watch the video below. It will open a number of eyes because, clearly, this client was not guilty, contrary to what the prosecution thought.

Back to the famous fall out. What Bob Kealing reported on Tuesday, in a nutshell, was that Casey was quite upset that her attorney didn’t land her a big dollar TV interview; something her parents were able to do for their charity, and trust me, I use that term loosely. In any event, so what? The man spent the last three years of his life eating, breathing, and… well, never mind, all things Casey. He was attacked from the left and from the right; from the front and from the back, but lest you think I’m being too kind, I am not. He knew what a strain it would be, but he also knew what the end reward could be and, in the end, he gambled correctly. The best possible thing for him to do was to stop affiliating with her. In a thunderous flash, she became toxic. Now, I’d venture a guess that he’d disagree with me publicly on what I just wrote, but that’s the way I see it. Like it or not, because of the outcome of the Anthony trial, he’ll have speaking gigs and new clients for years to come. That is, as long as he keeps his license to practice law, and I expect him to do just that, whatever the outcome of the Bar complaints filed against him. In other words, I don’t think they are significant enough to disbar him if he loses.

JEFF ASHTON

There’s a little bit of a situation unfurling with former prosecutor, now candidate Jeff Ashton, over his decision to represent his son in a Seminole County DUI trial. Clearly, there are two brains of thought. It’s understandable that any attorney would come to their child’s defense. I’ll give him that and add that no matter what, we can look at his worth as a caring parent and not argue the point. At the same time, he is running for the office of Ninth District (Orange/Osceola) State Attorney. If elected, he would be responsible for prosecuting people in the same boat, so was it a wise thing to do? In a later press conference, he said he had a problem with voters who couldn’t understand what he did as a father. Like I said, he’s loyal, but I read a lot of comments on Hal Boedeker’s Orlando Sentinel television blog and many of them were firmly against his decision. Some of them added that he’s just another typical lawyer and no hero after all. Do I agree with that assessment? No, but I will say that, in my opinion, he could have saved himself a lot of votes had he cashed in some of his courthouse chips and asked another attorney to handle his son’s affairs. Now, word comes that he’s defending his daughter, according to Seminole County court records. She was charged with driving without a license and for failing to show proof of insurance. 

While I refuse to blame Ashton for the Casey Anthony loss, at least not to a large extent because it was a team effort, he failed to win his son’s case. If he loses his daughter’s, too, his odds of winning the Democratic primary for state attorney will begin to deteriorate, but not enough to harm him beyond hope. However, it’s a tough road ahead any way he looks at it. Lawson Lamar has a huge political machine in Tallahassee and throughout the state, and lots of powerful friends, not to mention a much larger campaign chest. There’s also the old idiom, if it ain’t broke, don’t fix it. Obviously, he doesn’t see it that way. 

That leads me to Linda Drane Burdick, but first, a little more information. When asked if she would support Jeff in the election, she said that she couldn’t do that in a Democratic primary because she a registered Republican. However, a month or so later, she donated $100 to Lamar’s reelection campaign. Incidentally, two other candidates are in the race. Ryan Williams, also a Democrat and former assistant state attorney, entered the race in September of 2011. And recently joining the fray is Orlando criminal defense attorney Joerg Jaeger, a Republican hellbent on defeating Ashton. He told Orlando Sentinel Senior Reporter Anthony Colarossi that, “I don’t think Jeff is fit to be state attorney.” And he’s made that point exceedingly clear.

JUDGE LINDA DRANE BURDICK?

Back to Miss Linda. In case you haven’t heard, the lead prosecutor in the Anthony trial threw her hat in the ring, along with 22 other applicants, to fill the bench left void when 9th Circuit Judge James Turner was removed for violating several judicial principles, including hugging and kissing a court clerk. This was also reported by Anthony Colarossi in the Feb. 13 issue of the Orlando Sentinel. If I could vote for her, I would! 

LAST WORDS

There have been many changes since the end of the Anthony fiasco. Judge Strickland retired at in December of last year and I don’t blame him. He had an outstanding career on the bench and it goes without saying that we wish him all the best. He is right where he wants to be at this stage in life and all is well in the world.

I also want to wish Jeff Ashton continued success in his career, including the upcoming election, but like Drane Burdick, I won’t be voting for him, either, but not for the same reason. You see, I live in the 18th District, and that’s Seminole County. If you want to learn more about him or contribute to his campaign, read HERE.

Thank you, and hopefully, I won’t have more to say about ‘you know who’ until the date of her civil trial filed by Zenaida Gonzalez - the real one, with no Fernandez in her name.

Leafy Things... with a Dash of Dirt

I’m sure you know there’s more than one explanation for the word leaf.  The Dictionary.com website describes it as “one of the expanded, usually green organs borne by the stem of a plant” and “any similar or corresponding lateral outgrowth of a stem.” It’s safe to say that leaves grow on trees. It’s also true that a leaf could be a two-sided page in a book.

Speaking of trees, I really wanted to write about a tree today, but the book on that is closed at the moment. This was no ordinary tree, mind you, because it was older than Moses and quite majestic. Until several issues are resolved, the tree story will have to wait. In the meantime, I will tell you about a leaf or two in a couple of books.

The winner of the autographed copy of Jeff Ashton’s book, Imperfect Justice, has been notified. While keeping this person’s identity as close to the vest as possible, I will tell you it was Charlee, who lives in Texas. Like I promised, I put all entries in a hat, although I really used a big kitchen bowl instead, and my mother picked the e-mail address while it dangled above her head, sight unseen. Interestingly, today is Charlee’s birthday, so it couldn’t have happened on a better day. Congratulations Charlee, and Happy Birthday!

I think most of you are aware by now that I was mentioned in Ashton’s book. Not only did he reference me as Dave Knechel and Marinade Dave, he even managed to spell my last name correctly. Trust me, Knechel is not an easy one. Of course, I personally thanked him for the acknowledgement and for getting it right.

The second one was brought to my attention by someone you know from my blog and elsewhere around the Internet, Karen C. She told me about a book, From Crime Scene to Courtroom, written by famed forensic pathologist/lawyer Cyril H. Wecht, MD, JD, and noted true-crime journalist Dawna Kauffmann. Subtitled Examining The Mysteries Behind Famous Cases, this book examines the mysteries behind Michael Jackson, Casey Anthony, Drew Peterson, Brian Jones, and more, as the cover asserts.

When Karen told me about this book, of course, I had to order one. While it showed me in a positive light, it managed to get my name wrong. Oh, Knechel was right, but I’m not David L. Knechel, as the book states on page 68 and in the index. I’m David B. Knechel and I have no idea where the “L” came from. Okay, it’s a small mistake, but I did call the publisher this morning to request a correction in subsequent printings. I made it a point to say I was not complaining. As I am well aware, all editors hate mistakes.

In the book, I am described as “an Orlando-based writer, graphic artist, and barbecue aficionado, whose website is called MarinadeDave.com.” Granted, a marinade does not a barbecue sauce make, but back when I was manufacturing and selling it, several of my friends purposely asked me, “Hey Dave, how’s your barbecue sauce doing?” knowing full-well it was not a barbecue sauce.

It only took me a few times of quickly correcting them: “It’s a marinade, not a barbecue sauce!!!” that I finally grasped their only intent — to upset me.

I remembered from years ago how one of my closest friends got exceptionally angry when we asked him how his condo was doing.

“It’s not a condo, *&^*#%^&*()*!! It’s a townhouse!!!” Trust me, I got over the barbecue/marinade joke very early on, and when they still tried, I answered them calmly and ignored what they called it.

On page 75 of the book, I am mentioned again. “The press corps was out in full force for the Anthony trial. Attending some, if not all, of the proceedings were national figures like Nancy Grace, Jane Velez-Mitchell, Jean Casarez, Beth Karas, Geraldo Rivera, Greta Van Susteren, Ashleigh Banfield, and Diane Dimond of thedailybeast.com, as well as local print, television, and radio journalists — among them blogger ‘Marinade Dave’ Knechel, who covered the case for Orlando magazine.”

Trust me, I am highly flattered. Yes, of course, I became part of this case, and there’s no denying it. Fortunately, none of the real and true investigators and authors have implicated me in any way, shape or form of scheming to take down Judge Strickland. That was only the fodder of simple-minded people, including a blogger who shall remain nameless for now.

In any event, I did lay out my plans with a book editor today. I was told it was a good concept as long as it also contains facts about the actual case, along with the sordid details. I know if I do, names will be exposed, including two people who claimed to be in the courtroom daily during the trial when they were not there. One “reported” on a blog and the other is mentioned in the above list. Sorry, I guess you’ll just have to wait.

Quiet Observations, FOR CRYING OUT LOUD!

“There is no reason for a 2-year-old child to decompose in a field in a plastic bag with duct tape over its face.”

“I don’t understand people who think Elvis is still alive. I don’t understand people who think we never landed on the moon. I don’t get those people. So I don’t get these people [the jury] either.”

— Dr. Jan Garavaglia, on Sunday night’s program on TLC, The Learning Channel

Yes, I watched it, and yes, it was exceptionally well done, but did I learn anything new? Not much, really. It served to reiterate and fortify the state of Florida’s substantive and well grounded claims made against the mother of Caylee Marie Anthony, charged with her murder and found not guilty by a jury of her peers. I think, mostly, it allowed Dr. G to get some things off her chest. In the end, Caylee’s death was a homicide, regardless of the end result, and it tore at the very fabric of the Orange-Osceola chief medical examiner. This is a case that will forever haunt everyone involved, especially law enforcement, investigators on all levels, and prosecutors, who spent countless hours going to bat for Caylee. Yes, us, too.

God knows we’ve had countless what ifs to ponder; things that never made it into the courtroom and ones that did that didn’t pan out, like the phone call between Erica Gonzalez and the defendant on July 15, 2008, when Casey (I broke my own rule) was on her way to pick up Amy Huizenga at the airport. Gonzalez claimed she heard Caylee being scolded by her mother during that call, but that was impossible because, in his opening statement, Jose Baez said that Caylee was dead on June 16, 2008, a full month earlier.

CLICK IMAGE TO ENLARGE

Why wasn’t that phone call used to it’s fullest advantage at trial? Yes, Gonzalez was questioned on the stand by Assistant State Attorney Frank George, but she couldn’t remember the details at the time. OK, fine, but at that point, she should have been shown the document above to help remind her of what she told law enforcement. She wasn’t. Anyway, that was a key piece of evidence in my opinion, that went nowhere. As a matter of fact, it worked to the defense’s advantage. Why? Surely, a “grieving” mother would have no reason to make up a silly lie about scolding her dead child, right? What would be the point? Why talk to an imaginary person, something she did very well? The state should have expanded on it. (Watch Erica Gonzalez’s testimony here)

Sadly, there are no more points to make because it’s way too late for that. Case closed. I just needed to get that off my chest.

Of course, it’s never too late to remind everyone that, although the case may be closed, the memories are permanently etched in the minds of all of us who lived through it, and history will look as kindly on Casey Anthony as it has on Lizzie Borden, scorned to this day, yet dating all the way back to the 1890s. You know, the nursery rhyme about the 40 whacks she gave her mother that’s still recited. And like the one for Lizzie, I wrote one for you know who over a year ago - 6 months before the trial began, when no one knew the outcome would be similar to Lizzie’s…

THE BALLAD OF CASEY

For the rest of her life

Her name will be mud

For taking the life

Of her own flesh and blood.

For what lies ahead

Is a brewing storm.

Her Caylee long dead

Was fed chloroform.

I did change a few words from my original, but I hope it lasts a hundred years or more. Oh no, not because of me. I don’t care if anyone remembers who wrote it, I just want people to remember Caylee. Whether her mother murdered her or not, she was solely responsible for her death.

Moving on, we come to one of the prosecutors from the Anthony trial, Jeff Ashton, now retired. Today, he’s a best selling author and there are some misconceptions about him making the rounds on the Internet. I’m going to do my best to give you the truth. For sure, Ashton must have been working on his book during the trial, right? Perhaps, before it began, you think? I mean, how else could anyone explain how it was written and published in what seemed like record time? It was roughly 5 months after the trial ended that Imperfect Justice was on bookshelves across America. What gives? According to Suzanne Fox of VeroNews.com, the book wasn’t crafted until after the trial ended, and according to Ashton, not before he took his wife and children on a much needed vacation.

“When we started, I had no frame of reference,” Ashton said. “I figured the timeframe was short, but I didn’t really understand how short until the lawyer who vetted the book for HarperCollins told me that we’d done in three months what usually takes eighteen.”

“I couldn’t have taken on the book project if I was still working,” he added. “Even if the State Attorney would have authorized me to do it, there wouldn’t have been time.”

Of course, having Lisa Pulitzer, a seasoned professional crime writer on hand, helped tremendously. So did a very serious-minded editor, something I learned about while writing for Mike Boslet, Editor-in-Chief of Orlando magazine, during the trial. Get the job done.

That leads me to Ashton’s latest announcement that he’s going to challenge his former boss, Lawson Lamar, for the office of Orange-Osceola State Attorney. Alas, I would strongly consider voting for him except for one thing. I live in Seminole County, home of the 18th District Court. He’s in the 9th, and I can’t vote there. However, I can still offer my thoughts regarding his background and qualifications.

The Super Bowl comes once a year. Half of us don’t remember who won last year when the new one comes around. But after the big event, we look at the losing team as a bunch of, well, losers, not taking into account that they came in second in a field of 32 teams. Out of those teams, Number 2 stands out like a sore thumb. Why? In real life, Number 2 is not a pathetic loser. Yes, the Super Bowl is all about hype leading up to the main event and the media sucks it up like a sponge. Yes, it’s like any great battle, but so was the Anthony case, in a sense, and that one lasted nearly 3 years. Wow! What a build up and what a let down. The only thing is, we can’t obscure facts by skewing history and the truth.

Jeff Ashton was but one of three assistant state attorneys that took on the mammoth and monumental task of prosecuting Casey Anthony. That’s one third, folks, not one person. He was merely a co-prosecutor. Sure, the State should have won, but it didn’t, and we now have a retired prosecutor with a rather sterling 30 year career who is running for political office. I’m hearing some reverberations from several detractors around the Web. I do find it amazing that some people look upon him as a loser because of one case, but that’s the way we live today - for the here and the now, and everyone has personality conflicts. One thing we need to remember is that, during his 30 year career, he tried “some 70 homicide cases” and won all 12 of his “capital murder trials.” (See: Orlando magazine, Dec., 2011., The Prosecution Can’t Rest)

Ashton was the first prosecutor in the nation to gain the conviction of a rapist as a result of DNA evidence. In 1987, Tommy Lee Andrews was found guilty and sentenced to 22 years in prison. That was just over 24 years ago, when he was a young man around 30-years-old. A Florida appeals court upheld the conviction and the state became the first in the nation to affirm DNA evidence. That’s quite a statement, folks. And he’s not one to back away from anything.

Here’s my opinion — take it or leave it. Jeff Ashton is a fierce competitor. Here is a man who did his best for Caylee Anthony. What do you think he would do in the wake of that loss? Quit? Just write books? Do speaking tours? Sure, he could do that, and he should, but he now chooses to stick around and fight for future Caylees and everyone else in Orange and Osceola counties seeking justice. That shows you he’s dedicated and determined and not a quitter. I dare say he doesn’t know how to quit — not the driven man that I have learned to know and respect. Tomorrow morning at 11:00 am, I will be standing on the courthouse steps when he officially announces his candidacy and I will urge him on. 

(Also see Orlando Sentinel)

Jeff Ashton to run for State Attorney?

The Orlando Sentinel and WESH are reporting that Jeff Ashton is poised to announce his run for state attorney. He will make his announcement on the steps of the Orange County Courthouse on Tuesday morning at 11:00 AM. WESH quoted Ashton and the Sentinel speculated.

Lawson Lamar is the present state attorney for the Ninth Circuit Court. He has enjoyed running unopposed in the past, so this should be interesting. Personally, I think Ashton would be a great choice. At present, he is taking care of his best-selling book responsibilities (Imperfect Justice) and, since the trial ended, working as a consultant for the Maitland, FL law firm of Troum & Wallsh.

Just after 6:00 pm today, this statement was made on his official Facebook page: “Please stay tuned we will be releasing more information on what next and how everyone can help, in the next few days. Till then have a happy new year.

Incidentally, Judge Stan Strickland left the bench today. We all wish him the very best in his future endeavors.

Drowning in a Pool of Lies?

What do I think the defense will argue in it’s opening statement?

Read my article on Orlando Magazine. See if it will take you as long to read as what Jose will say tomorrow.

Click the image

Feel free to add your thoughts.

THANK YOU!

Fool's Mate

In his court game of chess, Cheney Mason was the first to yell…

CHECK

That was nearly a year ago. Certainly, the recusal of the Honorable Stan Strickland is not so far in the distant past that we would forget what Casey Anthony’s defense team is forever up to. Would they have the audacity to do it again? For the past two-and-a-half years, we have watched them throw everything in their arsenal at the wall of justice in hopes that something sticks. Why not? They have a right to do that, but is Mason now trying to force Chief Judge Belvin Perry, Jr. against the same wall? Are they backing him into a corner with only one way out?

Judge Perry is a smooth operator, so smooth, in fact, that he always comes prepared to hearings with his own powerful set of weapons - case law. He’s well educated in the courthouse games lawyers play and he seems to have some sort of mental telepathy, as if he knows beforehand what tack the defense will take on any given day. It’s almost mystical, because we are left to wonder how he did it. How could he possibly know all that? The man is shrewd. He easily wipes the excess dirt off the wall without missing a beat, and the defense is oftentimes left with mud on their faces. Does this mean he’s biased, as Mason recently charged?

Much to the dismay of common folks like you and me, the court has had to put up with a wide range of oddball motions filed by this defense, so nothing is surprising. One such absurdity was a motion to disqualify the state attorney’s office. Huh? How could an assistant state attorney possibly represent the state if the entire office is disqualified? Case dismissed for lack of state attorneys! Of course, there are more like this one, but that’s not important.

On April 16, 2010, Cheney Mason filed his shot heard ‘round the judicial world demanding that the trial judge step down. In DEFENDANT, CASEY MARIE ANTHONY’S MOTION TO DISQUALIFY TRIAL JUDGE, he wrote, “The Defendant, Casey Marie Anthony, reasonably fears that she will not receive a fair trial because of the conduct and apparent prejudice and bias of the judge…” The motion cited several reasons. Most were centered around me, my blog, and three articles I wrote a full year before. The exchange between the judge and myself was precisely six months later.

In his ORDER ON DEFENDANT’S MOTION TO DISQUALIFY TRIAL JUDGE, Judge Strickland made several points, two of which were:

• [The defense] seems to have only recently lost confidence in the Court’s ability to be fair and impartial; and
• [The defense] has now been accused of bias and wrongdoing, potentially each denial of a defense motion will generate renewed allegations of bias.

We all know the outcome of Mason’s first chess game at the Orange County Courthouse soon after joining Casey’s team. In any event, my point is not to rehash the past. It’s to look into recent defense moves and what the future may hold.

COMES NOW, Cheney Mason, criminal defense attorney, recently filed a motion for a rehearing, aptly titled, MOTION FOR A REHEARING ON ORDERS DENYING MOTIONS TO SUPPRESS.  Judge Perry had earlier ruled on the defense MOTION TO SUPPRESS STATEMENTS MADE TO LAW ENFORCEMENT OFFICERS. The defense argued that Casey should have been read her Miranda rights when law enforcement personnel were initially summoned to the Anthony home due to 911 calls made by Cindy Anthony. The judge decided Casey was not a suspect at the time and was, therefore, a witness to a possible kidnapping. You don’t Mirandize witnesses. The new motion also included the MOTION TO SUPPRESS STATEMENTS MADE TO GEORGE, CINDY, LEE ANTHONY, MAYA DERKOVIC, ROBYN ADAMS, AND SYLVIA HERNANDEZ, defining Casey’s 6th Amendment right to counsel and the improper use of agents of the state. In this case, the judge ruled that George, Cindy and Lee, by their own admission, were desperately seeking Caylee and wanted every bit of help they could muster, especially from law enforcement. Obviously, Casey was doing a lousy job of running her own investigation into the disappearance.

Although I feel that the crux of this defense motion for a rehearing lays in possible ramifications later on, such as an impetus to file an appeal if the defendant is found guilty, it extends into other areas as well, and that’s where we come right back to the succinct possibility that the defense will file yet another motion to disqualify the trial judge. What? Deja vu all over again? Admit it. It’s a nervous feeling running down your back.

In order to request that the judge step down, a couple of factors are problematic for the defense. In Judge Strickland’s case, he most certainly did not have to go, but he understood that the prevailing issue would remain if he denied the defense their request, as he so stated in his order. Every subsequent motion the defense lost could be grounds for an appeal. What caught us off guard now is the fear that Mason may be up to his old tricks. While certainly an option, it’s not easy. Here’s the statement Mason made in his motion that rattled nerves:

c. The Court Did Not Look at the Evidence from the Hearing Objectively and Instead Displays a Clear Bias [emphasis mine] In Explaining Law Enforcement Conduct Rather than Evaluating Whether a Reasonable Person Would Have Felt Free to Leave.

Shades of dismissal! Well, no, not really. Under FLORIDA RULES OF JUDICIAL ADMINISTRATION, Rule 2.330, DISQUALIFICATION OF TRIAL JUDGES, “Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.” OK fine, but what it means is that the procedure for filing disqualification motions for civil and criminal cases is set out in Rule 2.160 of the Fla. R. Jud. Admin., amended by the Florida Supreme Court in 2004.

If this is the route Mason is considering taking, he should be mindful of the fact that a statute related to judicial disqualification exists. He should surely remember F.S. §38.10 from last year:

Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the prescribing judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. However, when any party to any action has suggested the disqualification of a trial judge and an order has been made admitting the disqualification of such judge and another judge has assigned and transferred to act in lieu of the judge so held to be disqualified, the judge so assigned and transferred is not disqualified on account of alleged prejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge admits and holds that it is then a fact that he or she does not stand fair and impartial between the parties. If such judge holds, rules, and adjudges that he or she does stand fair and impartial as between the parties and their respective interests, he or she shall cause such ruling to be entered on the minutes of the court and shall proceed to preside as judge in the pending cause. The ruling of such judge may be assigned as error and may be reviewed as are other rulings of the trial court.

In a nutshell, it explains something about a judge if he/she is prejudiced. Does Judge Perry fit the mold? Is he in favor of the adverse party as Mason claims in so many words? Well, it doesn’t really matter. After Judge Strickland willfully stepped down, and he could have easily remained on the bench, Judge Perry cannot be disqualified because of alleged prejudice solely based on what Mason claims. The only way it would work is if Perry admits he is biased in favor of the prosecution. Even then, his admission is just recorded in the court minutes and the trial proceeds on schedule. Of course, this would be reviewed after a conviction and it would, no doubt, lead to a retrial, but let me assure you, this judge will not fail. He will never admit to bias, and because he’s the second judge, the rules are different now.

One of the misconceptions of trial court judges is that rulings are the basis for disqualifications. They are not, as Mason is claiming in his rebuttal motion. A judge may not be disqualified for judicial bias. He/she can be disqualified, however, for personal bias against a party. (See Barwick, 660 So. 2d at 692, and cases cited therein)

What effectively worked in the Strickland recusal was his personal relationship with me. Although the defense clearly distorted the facts, it did proffer a basis for the motion. In Perry’s situation, it’s purely judicial in nature. And laughable.

§

Lest you think I will leave you dangling with merely one slice of cake from the book of rules, allow me to add a thick, sweet, slab of icing to the entire cake. Rule 2.160 has something else to offer to save Mason from a mea culpa moment if he chooses to stay on top of his game. Section (g) deals with the filing of successive disqualification motions. This is to prevent the possibility of abuse, otherwise referred to as judge-shopping. Yes, you read it right… JUDGE-SHOPPING!

When Judge Strickland disqualified himself due to alleged bias, and I use that term loosely, his successor, Judge Perry, cannot be disqualified on a successive motion by Casey’s defense “unless the successor judge rules that he or she is in fact not fair or impartial in the case.” And that ain’t gonna happen, folks. Judge Perry is allowed to toss out any new dismissal motion. By golly, he was even brazen enough to tell the defense that, “No other motions for rehearing shall be considered,”¹ after the defense filed its MOTION FOR A REHEARING ON ORDERS DENYING MOTIONS TO SUPPRESS.

What nerve.  It looks like the Teflon judge has Mason backed into a corner. King takes pawn.

CHECK

See also: The Florida Bar Journal, Judicial Disqualification: What Every Practioner (and Judge) Should Know, Douglas J. Glaid, October, 2000 Volume LXXIV, No. 9

The Teflon Judge

During the closing remarks of the final presidential debate between then candidate Ronald Reagan and President Jimmy Carter, the GOP hopeful asked the nation a simple question, “Are you better off now than you were four years ago?” As simple as it was, the query was powerful and poignant enough to resonate deeply within the minds of the American people, who went on to elect Reagan as our 40th president. The rest, they say, is history.

Today, just over 30 years later, I’d like to ask Casey Anthony’s defense team, particularly Jose Baez and Cheney Mason, a very similar question. Are you better off now than you were one year ago? Actually, by the time Casey goes to trial, by that I mean sitting in the courtroom facing a jury, precisely 2 years and 11 months will have passed since Caylee was last seen alive. For the first month, Casey was living la bella vita, although it was probably more la vida loco, until she was stopped dead in her tracks by her own flesh and blood; her mother. From there, it quickly plummeted from a lofty peak to the depth of the deepest ocean. I’m only interested in the past year, though. A lot of serious changes have taken place. One year ago today, Judge Stan Strickland sat firmly on the bench. Did the defense do the right thing by filing the motion for his recusal?

On January 25 of last year, Casey pleaded guilty to 13 third-degree felony fraud charges. She threw herself at the mercy of the court and came out a convicted felon, but ultimately, she was given no more time behind bars. Judge Strickland sentenced her to time served. In my opinion, that showed how fair, just and lenient - yes, lenient - he was. He could have slapped her silly, and the defense might have taken that punishment as a good sign; what to look forward to from this judge down the road. Instead, they threw caution to the wind. As a matter of fact, two days later, I wrote on my The Wisdom of Solomon post:

Judge Strickland gave the defense an opportunity to challenge the charges. We can discuss the lack of brevity or the levity of the arguments, but let’s cut to the chase – it came down to the judge. First, it should be noted that Casey had no prior convictions and she did make full restitution and Baez did bring up “equal justice” for his client. He asked for one year of probation and credit for time served, rather than the five years of incarceration the State sought. In the end, His Honor sentenced the 23-year-old Casey to (jail) time served – 412 days – plus $5,517.75 in investigative costs and $348 for court. The amount may be discussed and negotiated at a later motion hearing because the defense found the investigative charge too high and not justifiable. He also adjudicated Casey guilty on six of the fraud counts and withheld adjudication on seven, plus he tacked on a year of supervised probation, which could be problematic and complex later on, given that she still faces a huge mountain of charges ahead.

I finished the article with:

This was a sign of things to come, and what I saw was a very compassionate man behind the bench.

In his ruling, the judge wrote:

“I’ve done what I thought is fair based on what I know.”

One year ago, on February 12, I wrote on Why Casey Pleaded Guilty to Fraud:

Personally, I think the defense risked it all and I think it was the right call. Aside from any appeals, which she would lose had she gone a different route, she took her chances with a well-respected judge; one with a very fair track record. The Honorable Stan Strickland is not a hanging judge and odds were, he was going to mete out some fair medicine, certainly after she swallowed all 13 bitter pills.

What went wrong after that? Clearly, everyone knew that Judge Strickland was fair. Some argued too fair. Meanwhile, the defense filed motion after motion and in most cases, the judge denied them, but he based his decisions on case law, something somewhat alien to the defense as we have seen time after time.

It’s a fact no one can deny; that Judge Strickland heard the most motions this defense has filed to date. In the more than 20 months he held court, he judged wisely, and it is because of his focus and direction that this trial has stayed the course. Last January 25, the State submitted its NOTICE OF FILING that included a PROPOSED ORDER SETTING DISCOVERY, MOTION and HEARING DEADLINES and TRIAL DATE. On March 5, the judge responded with his AMENDED PROPOSED ORDER SETTING DISCOVERY, MOTION and HEARING DEADLINES and TRIAL DATE. I strongly recommend that you read Judge Strickland’s order. There, you will see all of the deadlines and a trial date of May 9, 2011. The State originally wanted May 2, but the judge accommodated Andrea Lyon, whose daughter was to graduate college that week. It is of importance to note that Judge Perry is following the schedule set by his predecessor. As a matter of fact, he has allowed deadlines to come and go, and in some instances, has reset them, primarily for the defense. In any event, this trial has been on schedule since the date was first set by Judge Strickland and it’s important to remember that. Today, Andrea Lyon is long gone and Judge Perry could have readily reset the date back to May 2. He didn’t.

Judge Strickland scheduled an indigency hearing for March 18, 2010. It was at that hearing that J. Cheney Mason made his debut. I remember it well because it was almost comical as he made his grand entrance outside the courtroom doors. While awaiting to enter, we all stood there. As he approached with Baez and Lyon, one journalist asked him if he was joining the defense team, to which he responded, “I will be in about five minutes or so once the judge arrives.” The comical part was that I had never seen so many thumbs tap away on cell phones. Tap, tap, tap. Text, text, text. It was the big news of the day up to that point. Of course, we remember the discourse between the judge and Mason:

If you watch the video, you’ll see I said to “Stay Tuned for Round 2!” Of course, the second round was a knockout blow to the judge, but did the defense really win anything? Well, yes. Sort of. The judge did grant Ms. Anthony indigent status, but everything went downhill from there. After a series of motions¹ denied by the judge, this defense showed how disgruntled it was with Strickland by filing the ridiculous motion on April 16 for him to step down. The DEFENDANT, CASEY MARIE ANTHONY’S AMENDED MOTION TO DISQUALIFY TRIAL JUDGE (amended version refiled Monday to correct expired notary) was filed at 4:48 pm on a Friday afternoon and it left the judge and myself incredibly shocked in what turned out to be a very bad, and I mean a VERY BAD, weekend to agonize. Of course, the people who matter in this (what I would call) legal fissure were quick to assure me it wasn’t my fault; that it was purely a defense strategy. In any case, the point of this article is not to argue the merits of the defense strategy as it relates to me, it’s all about whether or not this was a move in the right direction for the defendant. I must say that to a person, I was told, “Be careful what you wish for” in reference to the defense, and those words came from professionals in every field that had an element of interest in the case - journalists and attorneys, civil and criminal. It was a bad move.

What came down was simple and I’ve mentioned it before - Cheney Mason decided to throw his weight around the courthouse. By that, I mean he thought he had some big brass chips to trade in to get the judge of his choice; one who would be more inclined to remove the death penalty and be more amenable to his motions. I also know that the entire courthouse was stunned when the defense filed the motion to recuse. Strickland was (and remains to this day) one of the most respected judges on the circuit court. As a matter of fact, he’s highly regarded throughout the state. What Mason did was blow a circuit breaker. In the end, and there are things I’d love to discuss but won’t until the trial is over, Chief Judge Belvin Perry, Jr. had no choice but to take on the case. No other judge wanted it and his docket was not as thick. It’s called a backfire.

Today, after the defense changed horses in midstream, is their defendant better off? Let’s see… many of Judge Strickland’s orders were left with the door ajar. In other words, they were ordered without prejudice, which means they could change some of the language and refile the same motions, which is exactly what they did after Perry took over². Did the judge overturn any of Strickland’s decisions? Not a one. Nothing. Zip. Zil. Nada. Do I feel subsequent motions ruled by Perry would have the same outcome today had the defense stayed the course? Yes, absolutely. Strickland did not become a reputable circuit court judge by making many mistakes. As I’ve also stated many times, the defense went from Strickland to stricter.

COMES NOW, the recent defense motions denied by the presiding judge:

• The motion to exclude testimony that Casey had a history of lying and stealing. The judge wrote the State successfully argued that getting caught lying and stealing by her relatives may have provided a motive to rid herself of the financial and social burden of raising a young child. Also, the lies are inextricably intertwined with the evidence of the defendant’s activities between June 16, 2008 to July 15, 2008. “Evidence of a defendant’s collateral acts is not admissible to show bad character or a propensity to commit the crime charged,” wrote the judge in his ruling. “However, the state may be able to introduce evidence of collateral acts – such as lying or stealing – which are inextricably intertwined with the crime charged if necessary to adequately describe the deed, provide an intelligent account of the crime charged, establish the entire context out of which the charged crime arose or adequately describe the events leading up to the charged crime.”
• The motion to prohibit the use of references attributed to her Myspace Diary of Days. The defense argued that her posts weren’t relevant and that they were unfair to use at trial. The State countered by saying the posts were inconsistent with a mother actively looking for her kidnapped daughter. The judge wrote, “It is relevant to show the defendant’s state of mind during the time when Caylee Marie Anthony was missing and ultimately, when it was determined that she had died. The weight of this evidence is a matter for the jury.”
• The motion to exclude testimony from the neighbor, Brian Burner, who Casey borrowed a shovel from him. The judge decided, “There is nothing inherently prejudicial about borrowing a shovel, nor is a shovel ‘gruesome’ evidence that would tend to inflame the passions of the jury.”
• The motion to disallow jurors from learning about the La Bella Vita tattoo Casey got on July 2, 2008, roughly 2 weeks after Caylee’s disappearance. The judge wrote, “There is nothing inherently prejudicial about tattoos, which are increasingly prevalent among the population, nor is this particular tattoo likely to inflame the passions of the jury. Thus, the potentially prejudicial effect of this evidence does not outweigh its potentially probative value. It is relevant to show the defendant’s state of mind during the time when Caylee Marie Anthony was missing and ultimately, when it was determined that she had died.”

I don’t think I need to mention the impatience of Judge Perry with this defense. We have all seen it live, up close and personal. Come hell or high water, there will be no delays. More motions will be filed. The court must address some outstanding ones, too, like the one to exclude any references of the decomposition odor coming from Casey’s car. The motion also makes note of statements made by an Oak Ridge National Laboratory official who described chloroform levels recovered from a piece of  carpet removed from the trunk liner.  There’s also the matter of the stain in the trunk and whether it was organic in nature. The FBI could not make a determination, but Oak Ridge wrote that it showed the presence of “volatile fatty acids consistent with the byproducts of decomposition.” Once again, I’m afraid the judge will rightly allow the jury to hear arguments from both sides.

As I’ve said a hundred times, a good defense will throw everything in its arsenal at the wall in hopes that something sticks. I must say I can’t blame them, but in a sense, Baez & Company remind me of the Democratic party under Ronald Reagan’s reign, at least during his first term. He was given the nickname the Teflon President by the media because nothing seemed to stick. In his administration, it dealt with scandals, but in Judge Perry’s court, it’s all about defense motions. No matter what they file, there isn’t much that sticks. If I were Casey, I’d be nervous right now. Her defense seems to be moving from the frying pan into the fire, and that’s no recipe for success.

State calls defense motions "in limine" lemons

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

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

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

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

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

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

“Overruled.”

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

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

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

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

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

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

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

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

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

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

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

ARGUMENT REGARDING DEFENSE MOTION TO EXCLUDE IRRELEVANT EVIDENCE OF TATTOO

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

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

and

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

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

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

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

Hark the Judge Reserves a Ruling

Yesterday, a hearing was held in courtroom 19D, four flights down from the main attraction on the 23rd floor. That courtroom is undergoing renovations at the moment. 19D is familiar because that’s where Judge Strickland held many of the hearings while bench pressing Casey Anthony and her many motions, too many to repeat here. What’s interesting to note is that he did the bulk of the work, meaning that he heard and ruled on the majority of motions filed in this case so far, # 2008-CF-015606-A-O.

I generally leave about an hour-and-a-half before the hearings are slated to start. That affords me plenty of time to arrive and relax or mingle with others for awhile, where we can discuss what we expect to hear in the courtroom. I’m certainly glad I left early yesterday because I usually drive down 17-92, Orlando Avenue, and hang a right onto Orange in Winter Park that takes me right in front of the courthouse. As bad as the economy is right now, you never would have known it by the heavy amount of traffic I had to deal with. Either people are wasting $3.00 gallons of gas driving around, or they are doing some serious Christmas shopping, which tells me it’s not as bad out there as we are led to believe. My less than half-hour trek took forty-five minutes, but I did arrive early enough to talk to a couple of deputies and to go to the 23rd floor to take a look around and sneak a picture in. Please don’t tell the court I did that.

Click to HERE enlarge

I ran into Attorney Ann Finnell before going down the elevator, and let me tell you, she is one fine lady. We had a nice chat about traffic and her drive from Jacksonville, which was very similar to my story. Lots of cars everywhere. That leads me to a wonderful person who traveled from the frigid north to spend Christmas on the west coast of Florida. I’m reminded of the old saying that caught me off guard when I first moved here in ‘81 - SOLD COAST-TO-COAST, only it really meant from Cocoa Beach to Tampa, or something like that. Growing up in New Jersey, coast-to-coast meant NY to LA. I was very pleasantly surprised when she walked up to me. I’d tell you who she was, but there are nasty, nasty trolls out there. Needless to say, it was a wonderful experience and I’m extremely happy to have met her.

On the 19th floor, a gentleman called me over to introduce himself. I’d like to share his name, too, but he doesn’t need the riff raff, either. Although he doesn’t always agree with me, he said I’m an excellent writer and to keep it up. He said that he’s more of a Hinky-Blinky guy and I said that’s great. Everyone is entitled to an opinion and who they like to read. The mere fact that he enjoys my writing is plenty enough for me. He then called his wife over and introduced me. It was a nice encounter.

We entered the courtroom and Chief Judge Belvin Perry made an entrance right around 1:30. Before the hearing started, my friend, who drove to the courthouse from the west coast, mentioned that the judge was late at the last hearing. I told her it was because Casey was late. A judge never starts without the defendant. After Judge Perry took his seat on the bench, he asked to hear the first motion dealing with sealing the penalty phase witnesses. As Ann Finnell walked up to the podium, I took a quick head count. Absent from the courtroom were Cheney Mason, Linda Drane Burdick, and Frank George. She opened by asking the court to temporarily stay access to the list of penalty phase witnesses. “Judge? We are simply asking, in this case, that penalty phase discovery… that the public be temporarily denied access until the issue of the penalty phase becomes a right, which would be after a jury has determined Miss Anthony’s guilt… or not guilty of first-degree murder.”

She said that there’s no constitutional right to pretrial publicity, especially if it would deny the defendant’s right to an impartial jury. She noted that the court had already agreed to a jury coming from a different county due to the immense publicity. To back up her motion, she emphasized that only the witnesses expected at trial were mentioned in public, and to “out” potential penalty phase witnesses would prejudice the jury. It is the trial judge’s duty to minimize publicity. The bottom line is, she asked the court to deny penalty phase discovery until after the jury decides whether Casey is guilty or not. Plain and simple.

I understand the request because it could be legally argued that it’s like putting the cart before the horse. In the 1966 case that overturned Dr. Samuel H. Sheppard’s 1954 murder conviction, the U.S. Supreme Court noted that his trial generated so much publicity, it was a veritable media circus. Set in Cleveland, the jurors were exposed to intense coverage until they began deliberations. Found guilty, he spent ten years in prison before the court ruled that the publicity deprived him of his right to a fair trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). He was acquitted at his second trial.

Ms. Finnell brought up a 1988 ruling. Finally, a case study! In that case, Florida Freedom Newspapers, Inc. v. McCrary, was ruled in favor of the defense by the Florida Supreme Court. The separation of powers within the legislature and the judiciary’s responsibility of providing a fair trial allow the court to, on occasion, step around the laws of the legislature in order to ensure a defendant’s constitutional rights and freedoms. Florida Statute 119.07(4) grants the court the right to close a part of a court file. She told the judge that this case was a fly speck compared to the national exposure the Anthony case has garnered.

Nine minutes into the hearing, she was finished and the judge asked if there was a response from the state. Assistant State Attorney Jeff Ashton said no, so Rachel Fugate arose and walked to the podium. Ms. Fugate, who represents the Orlando Sentinel and, by default, all of media, acknowledged that there could be prejudice, but the defense must demonstrate it to the court first. She cited the McCrary case as the standard which gives the court the right to temporarily seal the penalty phase witnesses, but she emphasized that a prejudice must be shown to the court.

While explaining her side, defense attorney Jose Baez stood and apologized to counsel (Fugate) for breaking in. “I would ask that the court instruct the photographer in the room to not photograph my client as she’s passing notes…”

The judge was right there and on the spot. “Mr. Baez, one counsel has the floor… She needs to object and not you…”

Ann Finnell then stood and objected.

“Well,” the judge added, “unfortunately, the objection will be noted and overruled.” Rachel Fugate continued. She felt that the release of the names of the penalty phase witnesses would not jeopardize Casey’s fair trial rights or taint jurors coming in from another county. It would not frighten potential witnesses from testifying because of all the public exposure.

Ann was allowed to counter, and she said when the media chases after counsel, down the sidewalk, for 3 minutes worth of sound bites, imagine what they will do to potential witnesses. She said the press doesn’t have the same interests as the SAO. She made a valid point.

Ultimately, the judge decided that he was going to take his time before making a decision. “The court will reserve a ruling on the motion.”

At the tail end of the hearing, Jose, Ann and Jeff approached the bench for a sidebar at the judge’s request. A gentleman sitting behind me tried to take a picture with his cell phone. That’s a no no and a deputy told him so. As the attorneys went back to their seats, the judge said he was changing the next status hearing from January 10th to the 14th since he has an out-of-town Innocence Commission meeting.  He asked Jose if he had abandoned addressing the situation with Roy Kronk and the admission of prior bad acts. Jose said he had until December 31 and the judge reminded him that he will not be near the courthouse next week. It could be heard on the 23rd. He also said he will be presiding over a murder trial the week of the third, so any issues would have to be worked out after 5:00 PM.

Jeff Ashton brought up issues over depositions of defense experts in January, particularly Dr. Henry Lee.

“Maybe Dr. Lee is not planning on testifying. There was some suggestion in his email that he might not, depending on the resolution of this issue,” Ashton said.

Apparently, costs of travel are what’s holding up Dr. Lee. The prosecutor said that he might not be testifying depending on the resolution of this issue. The defense attorney said that he would settle it by the end of the day.

“Mr. Baez, if you get me that, and whatever you need to do to get that cleared up, let’s get it to me. OK, we’ll be in recess.”

I left the courthouse with my newfound friend; new only because we had never met. We said our good byes and as I walked away, I ran into the gentleman with the cell phone. I told him that other than the video cameras, only Red Huber from the Sentinel has exclusive rights to still photography in the courtroom. Me? I can take pictures and I took some as I walked out. Plus the one inside.

§

Before the hearing began, I was discussing how the judge might rule with Mike DeForest from WKMG. He felt the judge would probably compromise and I agreed with his assessment. To me, one of the underlying factors in the case, and it reaches its claws all over the United States and in other parts of the world, is the insurmountable prejudice that does already exist. For example, I talked to Jim Lichtenstein after the hearing. On the elevator up to the 19th floor, someone (who shall remain nameless) asked him if he intended to continue making money off a dead child. This is what we face out there in the real world. Jim is a consummate gentleman and I know for a fact that he befriended George and Cindy from Day 1. He’s been there ever since. Regardless of what anyone thinks of George and Cindy, should outsiders make decisions for him over who he can associate with or not? His interest is not about money, but there’s no denying the media must be able to cover this case or you, the public, would have no access to any information whatsoever. You can’t have it both ways. He works in the media industry. The media people pay for information from the court, including TV rights in the courtroom. They, in turn, make tons of money off advertising revenues. ALL OF THE MEDIA, I might add, including the ones who ask the tough questions. That’s the nature of the business - ALL BUSINESSES. So what if one reporter is more aggressive than another? The bottom line is ratings because that’s what pays the bills.

He also mentioned something about where he sits. The person who accosted him in the elevator addressed the issue over where he sits in the courtroom. I went through the same thing. You sit where you want and it has no bearing whatsoever over which side we agree with. I told him I sit on the side of the cameras because it ticks off the password stealing trolls who broke into my e-mail accounts and a password protected page on my old WordPress blog, where up until then, it was a secure place to comment . Since they continue to try to make my life a living hell, they are going to have to put up with my face in the courtroom. I will try to be as up close and personal as I possibly can; absolutely more so from now on and its got nothing to do with fame. It’s all about the trolls who broke the law. Fa law law law law law law law law.

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.

More from "My bus runneth over"

ENTERING THROUGH THE BACK DOOR

Casey's tragic bus took another wrong turn when it recently handed her former and final boyfriend, Anthony Lazzaro, a copy of a subpoena duces tecum without deposition for phone records from January 2009 to present.

What's this all about? Casey has been locked up for how long? What would her legal team want to do with poor Tony's cell phone records for the past year-and-a-half plus? William Jay, his attorney, thinks that whatever it is, it's no good. He countered by filing a MOTION TO QUASH SUBPOENA DUCES TECUM. Should Baez & Mason be surprised?

What exactly is a subpoena duces tecum without deposition?  A subpoena duces tecum is a summons ordering a party to appear before the court and produce documents, in this case, cell phone records, that could be used at a hearing or at Casey's trial. The literal translation from Latin is to "bring with you under penalty of punishment." The without deposition part means that Lazzaro would not be compelled to appear in person to offer those documents. Whew, what a lucky break.

Here's the problem that the defense doesn't get. After a hearing last August, Judge Stan Strickland - yes, the fine, upstanding and highly revered judge the defense had removed from the case this past April - ordered that, "the time frame allowed to be subject to a subpoena duces tecum was from June 1, 2008 to December 18, 2008."

If you recall, the defense wanted Roy Kronk's cell phone records, too, for a similar period of time. They were denied that request. Poor Roy Kronk was one of the first ones the defense pointed incriminating fingers at while tossing him under a few speeding Van Hool tires.

What would Casey's attorneys do with Anthony Lazzaro's cell phone records from the past twenty months or so? Imagine looking into each and every person he ever made and received calls to and from. Why, if only half of them could be investigated for the next three years, give or take, two things may happen. One, the trial would surely be postponed, and two, there may be a Zenaida or two in that there briar patch. That's a thought, but Baez can't afford another three years pro bono and Mason will be retired by then. No, it's not that. What actually strikes me as funny is that this team recklessly pursues everyone law enforcement has cleared. This includes the Grunds, her former friends, Kronk, of course, and a number of others.

Do I think the defense is trying to pin the crime on Lazzaro? No, I do not. Once again, this is a feeble attempt to discredit the state's prime witnesses, and if he ever made a prank call to Pizza Hut and it's in those records, all of his credibility will fly out the window. "Your honor, this proves the state's witness is unreliable."

I expect this sort of treatment. It is the defense's job to tarnish everyone the state plans to call up to the stand, excluding experts who will go head-to-head with their own slate, but in this particular case, as in many others; just what does the defense really need 26+ months of phone records for? As soon as Lazzaro realized who and what he was possibly dating, he high-tailed it. Casey bit the dust and is, most likely, nothing more than a morbid thought in his mind today. Meanwhile, all this team seems to be going after is the stand-up crowd, with no Zenaida in the patch. Anthony Lazzaro's phone records aren't worth a rabbit's foot. He moved on with his life. Should his girlfriend of today be slapped around, too?

In his wisdom, Judge Strickland made the right and proper call. With Judge Belvin Perry now at the helm, did the defense realize it would lose another Motion for Reconsideration of Prior Rulings if it chose to go that route instead, so, let's choose another path? Enter through the back door. Hand little guy Tony an official order and hope he doesn't take it to his lawyer. Well, he did, and William Jay knew exactly what to do with it. So will Judge Perry.