Was Casey read her rights?

In open court two weeks ago, Cheney Mason bluntly said that Casey Anthony was not read her Miranda warning until October 14, when she was indicted on a first-degree murder charge by an Orange County grand jury. He said it on two separate occasions that day. Interestingly, no one from the State Attorney’s Office questioned his statements. No one objected. As a matter of fact, none of the law enforcement officials, including Cpl. Yuri Melich, Sgt. John Allen, and Cpl. Eric Edwards, testified that Mason was wrong. Why?

Today, I present Casey’s version. I realize her words cannot be trusted and nothing should be taken seriously, but why would she say something about being read her rights if it did not take place?

In a court of law, what is testified to is what stands. No one said a word negating October 14.

Many thanks to nan11 for the remarkable find, and to SnoopySleuth for bringing it to my attention. To watch and listen to the entire 10 minute video with her brother Lee, please CLICK HERE. It’s right around 5 minutes, 30 seconds in.

Casey To Lee: I Was Read My Rights - Casey Anthony Extended Coverage News Story - WESH Orlando

Either Way

While attending court on Wednesday, I noticed a big difference in how Casey’s defense presented itself as opposed to past hearings. It was a dramatic improvement. It was also the first time I saw Dorothy Clay Sims, the Ocala attorney who specializes in aggressive cross-examinations of medical experts. She joined Casey’s team in September of last year. We will be hearing much more from her as we approach the trial, I’m sure.

On Thursday, Judge Perry opened the hearing by admonishing the gallery. He reminded everyone he does not want to see any smirking or hear any snickering. This includes moans, sighs and any sort of reaction that deviates from quietly sitting still and behaving ourselves. One thing I admire about him is the manner in which he handles issues on the surface. He seems to be rather uncomfortable with singling any person or group out. I would imagine if and when it ever reaches that point, the person(s) on the receiving end won’t be happy.

Thus began the day filled with testimony from detectives, deputies, jailers and the two Anthony men. When I arrived on the 19th floor, I expected to see a good number of OCSO’s finest, and I did. The first one I noticed was Sgt. John Allen, the lead investigator of this case. We had warm greetings and a firm handshake as we crossed paths. If you recall, Sgt. Allen interviewed me in December 2009 and I’ve spoken with him several times by phone since then; the last call was made in November 2010 concerning an idiotic conspiracy being promulgated on another blog.

I have an awful lot of respect for Sgt. Allen for several reasons. He made me feel very comfortable during our initial meeting. He was professional and courteous. He knew how to ask the right questions and he allowed time to talk about other things of interest, some personal, but mostly about the case. For instance, when Casey was initially arrested and all leads pointed to finding a victim, he and over 100 law enforcement personnel continued to search around the country for a living Caylee. You could clearly sense his dedication, focus and concern. No one ever gave up hope until after her remains were found. What I walked away with that December day was a good understanding of the man and the challenges he faces every day. I recall how OCSO and other personnel were castigated by family members for not doing more to find Caylee, but I knew they were. All they wanted was the truth.

I also had an opportunity to speak briefly to Cmdr. Matt Irwin and Cpl. Yuri Melich. During a more lengthy break, I had a good conversation with another detective, Cpl. Eric Edwards. Great guys, all. Of course, nothing about the case was discussed. Actually, the police had to wait outside the courtroom for two days waiting to be called. It’s my understanding that during the entire time, they were in limbo. In other words, no working on any present investigations. Everything was on hold. It seems like so much wasted time, but such is the case when charges are filed and trials ensue. It comes with the territory.

Agents of the State?

Just like I wrote in my previous post, I do not intend to relate a play-by-play account of what transpired in the courtroom. I will proffer my thoughts on the overall scheme of events and what the defense was after. The day before, it was the Miranda warning. On Thursday, it was Agents of the State.

First off, I think the M.O. of a cop is pretty simple. Cops do what cops do. They investigate. They uphold the law. They do a lot more than that, but let’s just stick with investigating and upholding the law for now, especially when the defense questioned both job descriptions. I understand what Jose & Co. were engaging in and while Wednesday may offer them hope, I’m not all that sure about Thursday. Taking a look at one of the angles Jose pressed was how he took it personally when the detectives allegedly told George his daughter could have found a much better attorney. OK, fine. So what? As soon as Casey lawyered up, she wasn’t going to open up to authorities any longer. That’s a given. Who she hired meant nothing because any attorney worth his/her weight in salt would have severed direct communications with law enforcement personnel, so who it was and how good or bad the person was wouldn’t have mattered. Cops and criminal defense attorneys are like oil and vinegar. Anything the law wants to find out from that point on just ain’t gonna transpire.

Because police act the way they do, they usually try any trick in the book to find answers. That’s what private investigators do, too. Short of anything illegal, that’s the name of the game. If you ever watch COPS, you’ll know that any and all people involved in suspicious activity are questioned separately. More information is collected that way. In this case, detectives knew that George was once in law enforcement and, naturally, he would be a better fit when it came to collecting additional information. He understood the lingo. As for Lee… well, Lee is a different breed of animal, but I feel that law enforcement sensed his desire to pursue the field of investigative work. Whether he’s a cop wannabe or not, he created his own agenda. He sure played into their hands. Remember, Dominic Casey told him to work on becoming a PI. There were two willing family members with George and Lee. Where it gets tricky is when the OCSO detectives offered to pick up George and drive him to the county jail to see his daughter, knowing that Baez was out-of-town. That in itself is not a big deal, but it is sneaky. Still, it’s nothing illegal. Where it becomes an issue, in my opinion, is when the detectives told Jose under oath that driving George to the jail was not an official trip. It was only to help him find the truth.

Hold on for a second… Uh… Hmm. Not an official trip. It most certainly was an official trip for four reasons:

1. It was a county vehicle filled with gas paid for by the county.
2. It was tape recorded without George’s knowledge.
3. George was accompanied by two detectives and one FBI agent.
4. Everything law enforcement does related to an investigation is most certainly part of the investigation.

Astutely, Jose asked why they would tape record the trip if it was not part of an investigation. He asked if any of them had ever done the same thing for any other person. Was it done out of the goodness of their hearts? He also put one of his former attorneys on the stand. Gabriel Adam may have had a problem with attorney/client privilege, but he was quick to point out the strange goings-on at the jail that day. Why was he not allowed to see Casey until much later? Because the detectives were in the building, setting up an appointment with dear old dad.¹ In the end, she did not see her father that day, she listened to her attorney’s advice, but I still find something to be a little bit problematic. Why say it wasn’t part of any investigation when, in fact, it was? That’s what cops do, after all. Is it enough to win the motion for the defense? No, not in my opinion and I’ll tell you why. While little lies may come into play during the trial, at issue now is whether the Anthony family was surreptitiously swallowed up by law enforcement to, unwittingly, do dirty deeds at their behest. Did they become Agents of the State?

No.

As desperate as law enforcement was to find the answers, so were the Anthonys. On the stand, all members of the family said they would have done anything to bring Caylee home. This was long before she was found. As a matter of fact, here is a direct quote from George:

“I would have sold my soul to the devil to get my grandchild back.”

They were in complete agony, yes, but as far as I’m concerned, if the Anthonys were Agents of the State, those detectives were just as much Agents for the Anthonys. Yuri Melich and John Allen were the only security blankets the family had at the time, if not all of them, then certainly George. What those detectives did was what they do every day. Sgt. Allen summed it up nicely:

“We were doing this at their request but certainly anything that if we had got of evidentiary value we would have used it and turned it over to the prosecutors.”

Another potential issue is the letter Casey wrote to then Sheriff Kevin Beary. Did the detectives coerce George into convincing her to do it without Jose Baez’s knowledge? Even so, should it matter? No one twisted her arm, and the police had no direct contact. That’s why this “agent” thing is such a big deal to the defense. If they can link the police directly to Casey, it could, potentially, mess with attorney/client privilege. Sgt. Allen told Lee on numerous occasions that “she has an attorney, we can’t talk to her but you can.”

Will the defense win this one? I’m inclined to think not. Everything up to that point was done voluntarily, all players were adults, and they shared one common goal - to bring Caylee home. The Anthonys were willing to do whatever it took and, in the end, the bottom line is simple. The police work for us. Right?

§

One of the nice things about being able to sit in the courtroom is that there is so much more to see than what’s viewed on television. The added depth and dimension are huge advantages. Jose posed a hypothetical question to George. He wanted to know, if he was subpoenaed to testify in court next week, knowing that if he chooses not to attend, it would save his daughter’s life, what would he do? Linda Drane Burdick vehemently objected. The judge overruled and wanted to know George’s answer. He told the prosecutor it could be discussed in a sidebar after he answered the question. Jose asked him again. George replied that he would stay away from court and risk it all, including any form of punishment, if it meant it would save Casey’s life. He broke down on the stand and cried all the way out the door after he was excused.

Ultimately, the judge overruled the prosecutor again after the sidebar, but what you couldn’t see or sense on TV was the emotional state of the gallery at that precise moment in time. The cameras couldn’t show you the welling tears of some of the spectators. It was then that we really felt the agony inside of that man. It was real. For whatever you think of him, this is something we can never deny.

If the defense succeeds in acquitting Casey, one thing is certain. It will never be the same. As cruel and distant as she has become toward her family, who she ignores, she will most assuredly never, ever go back to Hopespring Drive and what she left behind. No, George, she may win, but you will never be able to go back. Either way, for you, Cindy and Lee, it will be a lose/lose situation. Caylee already lost.

I want to say hello and thank you to my courtroom friends on Wednesday and Thursday. I had planned on attending Friday, too, but I had other obligations that almost slipped my mind. Hello to Diana in Asheville! I wish we would have had more time to talk. To Gloria and Jim, I enjoyed our “lunch” together and I look forward to hearing from you soon. And to Melinda and Pam, I really, really enjoyed your company.

¹When Gabriel Adam was through testifying, including the cross-examination, Judge Perry took the unprecedented step of continuing to probe him about his visit with his client. This may not bode well for the State. Something got his attention.

Arresting Development?

 

There are two basic Miranda warnings. One is quite minimal and the other is more verbose:

• You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

• You have the right to remain silent and refuse to answer questions. Do you understand? Anything you do say may be used against you in a court of law. Do you understand? You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand? If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand? If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand? Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

The general rule is that the first one is just an announcement of your rights, whether under arrest or not, and the second one is primarily to cover the bases a detainee might encounter while in police custody.

We have rights under the Constitution and the Bill of Rights, but do we know each one of them by heart? Way back in 1963, Ernesto Miranda was accused of kidnapping and raping an 18-year-old woman. When brought in for questioning, he confessed. He was never told that he had rights at all. He was never told he didn’t have to speak to the police or that he could have had an attorney present. At trial, his counsel attempted to get the confession thrown out, but the motion was denied. In 1966, the case went before the U.S. Supreme Court, which ultimately ruled that Miranda’s statements to law enforcement could not be used as evidence since he had not been advised of his rights.

Since then, before any pertinent questioning of a suspect is done, officers of the law have been required to recite the Miranda warning. The above statements have the same key elements: the right to remain silent and the right to an attorney. When you have been read your rights, you have been Mirandized.

Of great importance is the difference between being arrested and being questioned. When law enforcement asks you anything - anything at all, you have the right to remain silent. Period. Of course, this doesn’t include answering basic questions such as your name, address and other relevant information regarding your identity. Also, bear in mind that if you are not a suspect, the police do not need to Mirandize you.

At issue with Casey, and of great importance to her defense, is the precise moment when she shifted from being a person of interest (which could mean just about anything) to becoming a full-blown suspect involved in a crime. To be certain, prior to her being questioned, she was already suspected of stealing. That quickly changed when law enforcement learned of Caylee’s disappearance and possible kidnapping. What is so relevant at this point is the time investigators turned around and looked at her as a suspect. There are no clear-cut definitions; it is a gray area, but no doubt, police are trained to be suspicious of their own mothers, so after Casey told her first lie, the gloves came off and she became a prime target of investigation. What her defense did today was to paint her as a sitting duck, and there may be some weight to it. Were Orange County’s finest required to read Casey her rights before firing away, if just as a precaution? That’s what we are about to find out.

When Deputy Ryan Eberlin told defense attorneys on the stand today that he initially handcuffed Casey on July 15, 2008 and put her in the back of a patrol car - the “cage”, should he have read her her rights, right then and there? Remember, that would not have signified that she was under arrest. At that moment, the crux of the investigation was over a missing toddler, right? Yes, but Cindy had just showed him receipts that virtually indicted Casey of fraudulent use of her credit cards. She said she wanted to press charges against her daughter. It was at this moment the cuffs went on. Time to be Mirandized. She was a suspect in a crime.

This could be big. I have tried to maintain a decent semblance of neutrality throughout this trying case, although I will admit I falter at times, but I have got to admit that this could be problematic for the State. To be blunt, Jose Baez and Cheney Mason were very good in the courtroom today and I have to call it like I saw it. Give them their day in the sun, but don’t get in an uproar over my revelation, not quite yet, anyway. We don’t know how the judge will rule. There’s still much more testimony to come, but if he rules in favor of the defense, it means initial questions will be tossed. However, keep one important factor in the back of your mind…

Ernesto Miranda. Oh yes, his conviction was thrown out, alright, but he didn’t walk away a free man. Law enforcement still had tons of other evidence that was completely independent of the confession. When he was tried the second time, he was convicted again, and after his release, he was killed in a barroom fight.

Just remember, the State of Florida is still sitting on lots of other evidence against Casey.

§

There is much more I could address, but it was a long day. One little morsel of interest, I’m sure… Diana Tennis is no longer representing Dominic Casey. He is out of the woods, so to speak, and Ms. Tennis is free to say and write whatever she wants about the case.

Also, the State submitted two photographs into evidence. The defense objected, but Judge Perry overruled. The first one shows a happy Casey taken at OCSO Operations Center. The second one is walking out into the lobby to exit the building. Could the first one infer that she’s a mother not too worried about her toddler?

 

I’m going to bed. It’s going to be a long day tomorrow, I’m sure.

The Tale of Laura and the Barbarian Princess

If any of you are familiar with Florence Virginia King, you are aware that she is an American novelist, essayist and columnist from Mississippi. Born in 1936, alas, she put down her pen in 2002. Almost all of her works written under her real name have been non-fiction. You may recall 1975’s Southern Ladies and Gentlemen. You may also recognize her from the historical romance novel, Barbarian Princess, written under the pseudonym Laura Buchanan. Ironically, she’s not the only writer of fiction with that name. Another Laura Buchanan entered the fray more recently; one who seemingly attempted to parlay her name into the bright lights of stardom, tossing good judgment to the wind. She failed miserably and turned out to be the Clifford Irving of the Casey Anthony saga. Irving, in case you don’t know or remember, became famous  - infamous is more like it - for using forged handwritten letters from reclusive billionaire Howard Hughes in order to convince his publisher into accepting a counterfeit “autobiography” in the early 1970s. Hughes came out of the woodwork to prove it was nothing more than an elaborate hoax. Irving spent several years in prison, but later managed to publish some best sellers, including two aptly titled books, Final Argument and Daddy’s Girl.

On October 24, 2009, Laura Buchanan declared, under penalty of perjury, that, “On September 3, 2008, I was a volunteer for Texas Equus Search.” On that fateful September day, she began her odyssey into the treacherous path of this unyielding monster that’s chewed up and swallowed its victims at will. As innocent as Casey’s first victim was, Buchanan’s not one of them, and whether her initial intent was righteous or not, her ship sunk. Today, she’s just another part of the ever-growing, Titanic-sized, Casey abyss.

“On September 3, 2008,” she continued, ”the team in which I was assigned went to Suburban Street in Orlando and searched the area near where the remains of Caylee Anthony were found… I personally searched near the privacy fence and worked my way towards and then beyond where the body was found… It is my opinion that the remains of Caylee Anthony were not there during the time of our search.”

How quickly memories change when facing someone as intimidating as an Assistant State Attorney; intimidating in the sense that they represent the will of the people, and no one is more fastidious than Linda Drane Burdick when it comes to truth and justice. From her first statement under oath to her last, Buchanan’s story wavered dramatically, especially under the skillful questioning of the seasoned prosecutor. Just how did this begin and where are we today?

First of all, by her own admission, she is a “virtual” emergency/law enforcement groupie. She gets high at the sight of flashing lights and blaring sirens. Riding around with the law had been a favorite pastime and after taking a class at the citizen police academy, getting involved became a hobby of sorts. There’s nothing inherently wrong with that, but at the same time, a lot hinges on where it takes you and how far you want to go. At the end of August, 2008, her husband was scheduled to come to Florida for job related training. She wanted to go far, so she tagged along. Of course, by that date, many people across the country and elsewhere were enamored by the “Tot Mom” story made famous by Nancy Grace and, mostly, by the shocking audacity and hollow gaze of this young and single mother in the news who would ever lose her child, let alone for a month. Caylee was special, too. No child could have looked more angelic. Her wide-eyed innocence and eager smile were plenty enough to melt the coldest heart. There is no doubt in my mind that Laura Buchanan, herself a young mother of three, was one of those who became overtly fascinated and now was her chance. In her mind, I’m sure she felt the same way as all the others, but something took over. Something or someone made her change.

It took around 13-hours to drive from Kentucky to Portofina Bay, the resort inside Universal Studios just south of Orlando. Texas EquuSearch was in high gear and thousands of volunteers had already joined in the search for little Caylee, but they still needed more help. She went to the TES command post the following morning. After her search, she and her husband went to Disney. While waiting for the monorail, she spotted a toddler who she thought was Caylee and reported it to Kid Finders (or OCSO) the following day. That led to her initial contact with Cindy when she called Laura about the sighting. Laura was quick to tell her she and several other searchers had a lot of compassion for the Anthony family. This is where the ball started rolling. It began the back and forth e-mails and phone calls between her, Cindy, George and Mark NeJame, who represented the Anthonys at the time. In one of her initial e-mails to NeJame, she wrote, “I’ve heard so many disturbing things, like George was molesting Casey when she was younger and started to molest Caylee..? That Caylee Could possibly belong to George and or brother Lee???” She also hoped that NeJame had given Cindy and George her e-mails. This message was sent on September 15. In my opinion, it, quite possibly, could have been where Casey got the rather bizarre notion to accuse her father of molesting her, or at least, to plant the seed. I would surely guess the Anthonys discussed the allegations making the rounds while she was home on bond that final month.

Correspondence went back and forth between Buchanan and NeJame beyond the point when the attorney and the Anthonys parted ways near the end of 2008. Meanwhile, she had begun communicating with Jose Baez soon after her supposed sighting. On October 9, Laura sent an e-mail to Jose at the Baez Law Firm. She mentioned being in Florida a month or so earlier and of spotting a girl who looked remarkably like Caylee while waiting to enter either the Magic Kingdom or EPCOT. She lamented that deputies never followed up on her tip because they were no longer looking for Caylee. [This is not factual. While being interviewed by Sgt. John Allen in December, 2009, the lead investigator told me point blank that over 100 law enforcement personnel continued to search for Caylee all over the country up to the date her remains were found.] On Monday, January 12, 2009, she sent Jose this e-mail:

“I spoke with a person that I hadn’t spoke with in a while and she has told me some very strange information and I think we need to talk again ASAP… Oh my god this is horrible… [REDACTED]

By now, she was thoroughly ensconced in the mechanisms of Casey’s defense. So much so, that she sent him pictures of herself and one with her 5-year-old daughter. Life was good and she was getting more cozy with each passing day.

I can’t say for sure who started fishing first, but by all signs, it seemed that they both swallowed each other hook, line, and sinker. She had something for him and he coaxed her for more. She had become an integral part of Casey’s defense, only she had no idea about the massive freight train that was going to hit her; the Burdick Express. Maybe, just maybe, GULP, she didn’t look exactly where Caylee was discovered. No, not precisely.

There were several passages in Buchanan’s August 2010 interview with the prosecutor that immediately sent red flags up as far as I’m concerned, and it showed Burdick’s adeptness and professional flair. The first one dealt with Buchanan’s statement that she searched behind the Anthony home. That’s impossible because the Anthonys have a privacy fence that keeps their backyard, well, private. Totally so. There’s no gate that opens up to the beyond. The beyond, by the way, is nothing more than a private backyard in the adjacent development, also filled with homes.

The second one was a real laugher. She told the Assistant State Attorney that, while she was following the end of the privacy fence on Suburban Drive, she stepped on an alligator. Obviously, this woman has a wild imagination, wilder than any of the inhabitants of the Suburban Drive woods. I addressed the issue of gators early on, soon after I began writing about the case. Alligators generally live in or very close to bodies of water. By that, I mean lakes, ponds, rivers and swamps. Although the end of the woods where Caylee was found had been under water at the time of the searches, it is not in that state all year round, and that’s not very inviting to a gator. They like to remain dead still for hours with just the slightest movement of their eyes so their target isn’t aware they’re even there. Then they pounce. What Buchanan described was that the reptile was resting in the brush. That’s just not true. They want to see what’s going on all around them, so they lurk in the open or with just their eyes above water level. They take their quarry to the bottom of the water to rot before eating. Generally, anyway. I’ve been in the Orlando area for almost 30 years, and let me tell you, I have never stepped on one. Not only that, I WOULD NOT stand there waiting for the creature to run away like she said it did. I’d be gone in a flash - as far away as I could get. Also, there’s a school nearby. Snakes are hard to control, but gators? No way, not as much as they love to sun themselves in the open.

So, two of her stories have been debunked, and now, we come to the matter at hand. That would be the twisted TES report that somehow became a lie. Who instigated it, Baez or Buchanan? That’s the subject of another post, but a search volunteer by the name of Lori Fusco told investigators that she asked Buchanan if she was working for Baez. “She wouldn’t give me a straight answer. She wanted to know everything that I knew, which I didn’t know much. She kept asking me if I was in that area and if I was on a team with her which she should have known.”

How true, and in a recorded phone call with searcher and friend Ann Pham, Buchanan was questioned about her inconsistencies.

Ann Pham: The first one they showed me is legitimate. Right?

Laura Buchanan: Both of them are legit. Somebody else had that form before I had it because they (expletive) spelled my name wrong.

Ann Pham: Your name is signed at the top, Laura. That’s what I don’t understand. It’s got your actual signature and it matches the signature from the first form.

Laura Buchanan: I don’t know that I can’t explain.

Shades of forgery! Ultimately, several of her friends were convinced she wanted to be in the media spotlight, and at Caylee’s memorial service, she seemed more concerned about being on TV than she did about Caylee. Jose Baez was just hit with a new ethics complaint, according to the Florida Bar; quite possibly stemming from the comedy of errors regarding former Anthony attorney Brad Conway and those persnickety TES search documents. What a mess. Did Casey’s lead attorney allegedly misrepresent facts to the court? Time will tell, but it’s common knowledge that he has skated very close to the edge on several occasions, and so far, he’s managed to keep clear of falling through the ice. What about this time? It’s been harshest of winters, but Punxsutawney Phil did not see his shadow yesterday. An omen? No, and no karma moment, either, but will the ingratiating Laura Buchanan come to his rescue as spring rolls in? Not a chance. Today, she, too, could be facing charges, and she tells her friends she wishes she never got herself involved in this mess.

Good old Florence King. She said it best. “People are so busy dreaming the American Dream, fantasizing about what they could be or have a right to be, that they’re all asleep at the switch. Consequently, we are living in the Age of Human Error.” It sounds just like Casey’s defense. Back to square one. Where, oh where, will it turn?

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.