Jeff Ashton was aggravated, given the circumstances

I don’t imagine it was a very Merry Christmas at Camp Casey last week. Every motion heard at the December 11 hearing was turned down, the most important being the one to preclude the death penalty on the 18th. What this meant was that Judge Strickland sided with existing law and cast the onus of Casey’s fate into the hands of a future jury. I knew it had to be this way when he told Andrea Lyon he wasn’t going to reinvent the wheel. She gave a compelling argument, he said, but so did the state in its succinctly terse retort.

December 18 was a most sad day at the Anthony household, too, and rightly so, no matter what each of you feel individually. Casey may be one of present day’s most hated women around the country and in other parts of the “civilized” world, but her parents and brother are still that - family - and it’s all she’s got left. I wonder, if we had the opportunity to question each and every one of her past friends, including Amy Huizenga and Tony Lazzaro, would they cry out for her execution or ask the court to spare her life when and if she’s convicted? We don’t know at all, and none of us has any authority to speak for them. Everyone has their own opinion about what punishment to dole out, but she has yet to have her day in court and not one of her friends has come out publicly and begged to spare her or put her to death.

In order to really study this crime, the impending trial and possible outcome, we must look at everything with a clear conscience, free of prejudice and malice. This is the way the jury will be selected and what we see in released documents will not be what the jury gets their hands on. This, in no way, reflects that the jury will go into the deliberating phase with less knowledge than us. On the contrary, to be truthful. They will see what matters. We saw a needle inside a Gatorade bottle. Shocking! There was a lot of garbage picked up and processed in those woods. We got to see it all, but does that mean Casey was responsible for every single piece of trash we got to rifle through in paper form on the Internet? Of course not, and as we spent weeks arguing over that needle, the state may say it can’t be positively tied to Casey and it’s, therefore, irrelevant to the case. So many of the things we spent countless hours discussing could end up in the landfill of inadmissible evidence and it happens at every trial. I use the needle in the bottle as an example, by the way. Whether it will be admitted is not my point. That every shred of evidence will not be admitted is exactly what I’m saying.

A lot of questions may focus on Andrea Lyon’s role now that she lost this round. Certainly, it’s not the end of the line and one thing we must keep in mind is that there are more motions to be filed and many more legal maneuverings by the defense. Clearly, we must remember that her day will not be done until she fights to the very end to spare Casey from eventual extinction courtesy of the citizens of the state of Florida. That means one major thing: Andrea Lyon will be on hand to represent Casey during the sentencing phase if she is convicted. She will build a mountain of mitigating evidence in order to convince the jury and judge that sparing her client’s life far outweighs her death. The state, on the other hand, will offer a litany of aggravating circumstances to spell her doom. In order to grasp how justice works in a capital case of this nature in my fair state of Florida, let’s take a look at the aggravators in a death penalty case. Where do they apply in Casey’s case?

Abstractly, to be constitutional, any and all aggravating circumstances supporting an imposition of the death penalty must narrow the class of persons who are eligible and at the same time, they must justify the imposition of a sentence of this enormity on individuals convicted of murder. Identifying aggravating circumstances would seem to provide a principled manner in deciding when a death sentence is appropriate. Implicit in the constitutional principle is a requirement that decision makers must have a shared understanding of what constitutes an aggravating circumstance. In Florida’s case, it is both the jury and the judge that play the role of decision maker.

There are fifteen aggravating circumstances set forth in Florida Statute § 921.141(5) and shall be limited to:

¹(a)  The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.

(b)  The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

(c)  The defendant knowingly created a great risk of death to many persons.

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

(e)  The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

(f)  The capital felony was committed for pecuniary gain.

(g)  The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

(h)  The capital felony was especially heinous, atrocious, or cruel.

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

(j)  The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties.

(k)  The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim’s official capacity.

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

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

(n)  The capital felony was committed by a criminal gang member, as defined in s. 874.03.

(o)  The capital felony was committed by a person designated as a sexual predator pursuant to s.775.21or a person previously designated as a sexual predator who had the sexual predator designation removed.

Let’s begin by backtracking, starting with the aggravating circumstances that do apply in Casey’s case.

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

Certainly, as Caylee’s own flesh and blood mother, Casey stood in a position of familial and custodial authority over her. Who was her protector? Who nourished her and clothed her? Who gave her life?

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

Caylee was not quite 3 when she died. The defense might argue that the date of her death cannot be substantiated, but it doesn’t matter. The child was under 12 years of age. No further discussion.

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

This is the meat and potatoes of the aggravating circumstances as far as I’m concerned. Dr. Jan Garavaglia, the chief medical examiner for Orange and Osceola counties, determined the death was a homicide. The cause is unknown, but evidence convinced her that Caylee was murdered. In my opinion, every murder is committed without any pretense of moral or legal justification. Murder is just that. Courts can argue over mercy killings, aiding a suicide and manslaughter - the unlawful killing of a human being without malice or premeditation, either express or implied - but to kill someone is just plain wrong and most of us understand why. In this particular case, the cold and calculated part stems from the duct tape wrapped over the decedent’s mouth and nasal passages. It includes the fact that the layers of tape were purposely pressed into her hair. This shows the tape was never intended to be removed and it was placed there to either stop the breathing or to keep fluid from escaping post death; another matter for the court to decide. I’m sure the state has much more evidence we are not privy to at this time, but if this alone does not prove to be cold and calculated, I don’t know what will.

Let’s take a look at the definition of premeditation according to the ‘Lectric Law Library:

PREMEDITATION - With planning or deliberation. The amount of time needed for premeditation regarding an act depends on the person and the circumstances. It must be long enough, after forming the intent to act, for the person to have been fully conscious of the intent and to have considered the act.

A design formed to commit a crime or to do some other thing before it is done.

Premeditation differs essentially from will, which constitutes the crime, because it supposes besides an actual will, a deliberation and a continued persistance which indicate more perversity. The preparation of arms or other instruments required for the execution of the crime, are indications of a premeditation, but are not absolute proof of it, as these preparations may have been intended for other purposes, and then suddenly changed to the performance of the criminal act. Murder by poisoning must of necessity be done with premeditation.

Regardless of what anyone thinks about Casey and her search terms that point to premeditation, all the state has to do is show that she was fully conscious of the intent when she applied that tape. This was no spontaneous act done to spite someone on a moment’s notice. As much as some argue over the date of death and are convinced that Casey dragged Caylee out of her bed on the night of the 15th, it is irrelevant. The state has decided to go with the 16th for whatever reasons it has chosen and none of us are in a position to question those authorities. To do so means the state is not doing a good job. According to theSupreme Court of Florida…

There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.

To prove the crime of First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) is dead.

2. The death was caused by the criminal act of (defendant).

3. There was a premeditated killing of (victim).

Definitions.

An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

“Killing with premeditation” is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.

In my opinion, Casey did include acts in a series of related actions, long before any alleged fight with her mother took place. She was setting up an alibi with her fictitious nanny, and search terms on both the laptop and home computers showed circumstantial premeditation. So did text messages between her and her friends. At the precise moment that roll of duct tape was removed from the shelf, it became a tool. According to the law, her decision was “present in the mind at the time of the killing.” If nothing else, with each strand of duct tape, the intent to kill was there and it was “formed before the killing.” Caylee was alive before the first piece of tape was cut, or so the state is contending and as Jeff Ashton so stated at the last hearing. The state is saying it has sufficient evidence to prove premeditation without the 15th as any sort of motive and the icing on the cake is the conduct of the accused after the killing.

(h)  The capital felony was especially heinous, atrocious, or cruel.

There is no doubt that Caylee suffered a horrible death no matter who ultimately was responsible for it. Her final moments, unless she was under the influence ofXanax or chloroform or both, were not happy ones. By the statement alone, and even if the toddler was rendered unconscious prior to death, the act of killing an innocent and defenseless child is especially heinous, atrocious, and cruel under any circumstances. Period.

Finally, we have one that I am going to question. It is forefront in our minds at the moment as Casey’s fraud trial creeps closer and closer to its January 25 date, lest a plea deal be struck beforehand.

¹(a)  The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.

¹Note.—As amended by s. 1, ch. 96-302. This version is published as the last expression of legislative will (see Journal of the Senate 1996, pp. 1077 and 1128). Paragraph (5)(a) was also amended by s. 5, ch. 96-290, and that version reads:

(a)  The capital felony was committed by a person under sentence of imprisonment or placed on community control or on probation.

Here’s the part that intrigues me the most… The capital felony was committed by a person previously convicted of a felony… or The capital felony was committed by a person under sentence of imprisonment… That’s as clear as a bell to me. For all the discussions and arguments over what felony convictions can be brought into the trial, doesn’t that particular statute officially state that Casey would have to have been convicted of a felony before she committed the murder? Does this mean the defense can legally fight to leave the fraud conviction (if she’s convicted) out of the trial or at least the sentencing phase? If so, it means Amy Huizenga’s right to a speedy trial is the only solid reason why the state wants a conviction before the murder trial.

In the end, it shouldn’t really matter, because in order for a defendant to be sentenced to death, the jury must find, beyond a reasonable doubt, the presence of at least one aggravating circumstance that the state has statutorily defined. We can postulate all we want about homicidal characteristics and what constitutes aggravating circumstances, but I found three of them that, in my opinion, apply in Casey’s case. Whether the state can prove any of them remains to be seen, but if Mr. Ashton’s statement at the December 11 hearing is any indication, there’s no doubt Burdick & Co. will sound very confident and convincing come the final days of reckoning.

Trogs, Blollops and Blomit

On Language: A Short Study

We have moved into an age when people interact more and more online and on cell phones, and less and less in person. A friend was telling me how her children text message each other from their bedrooms, right across the hall from each other. What happened to the days of person-to-person meetings? I hear tales of people texting each other while sitting at the same dining room table, if people actually do much of that anymore. Imagine that concept… eating together. Shocking! In this day and age, if you can’t make it home for the holidays, you can spend it online or on your cell phone inside a virtual village, a wireless community; replete with trimmings galore - Apps, they’re called today. The only thing missing is the aroma of a home cooked meal and real, live hugs. Don’t worry, smells can’t be far behind. Hopefully, nothing will ever replace a hug. (((HUGS))) doesn’t quite do it for me, although the meaning is clear and appreciated, especially when we are miles and miles apart.

There are new ways to communicate through language abbreviations because of texting. Is it because we live in a “now” world, where we hurry everything? Must we shorten things abruptly to speed things up? CMIIW, but texting is here to stay. Now, wasn’t that personal? Just remember, today’s toys are tomorrow’s junk.

I consider the 80s to be the beginning era of the downslide of close, personal interaction. We could have been chatting up a storm, face-to-face, when suddenly, a beeper permeated the earwaves. Just like that, our networking, as opposed to interacting, came to a screeching halt. Not just us, but everyone in the vicinity of the annoying noise stopped what they were doing to quickly look down at the little plastic box attached to their waist. “Was that yours or mine?”became the mantra en masse. Within seconds, the person who was alerted (the beepee or BP, in condensed form?) left to go to the nearest pay phone, something else that’s pretty much a relic in this day and age, along with those pesky little beepers. Nowadays, cell phones have usurped them, and alas, there will never be a beeper museum in the near or distant future. Interestingly, we went from those simple, yet impersonal alarms, which had a useful purpose in their day, to cell phones, to even more impersonal text messaging. Casey Anthony was notorious for texting back and forth with her friends. How else would we know about dead squirrels that never were? Had she made a more personal phone call, we’d still be in the dark and far from Government in the Sunshine. One of the strange byproducts of less personal interaction is the nature of the digital beast. Conversely, the less we know about each other, the more we know about total strangers.

Because of the leaps and bounds made as technology advances, I want to briefly explore the concept of new words as they become an accepted part of our culture and lexicon. A good example is podcast. Podcast originated from combining the iPod, a portable media player (of audio and/or video files) produced by Apple, with the word broadcast. It was first used by Ben Hammersley in The Guardian newspaper in February 2004, along with several other names that were vying for the description without even trying or knowing about it. Podcasting it became and the rest is history. What distinguishes such words that work their way into language is the history of how they evolve from single words. Podcast, for example, is a portmanteau word. A portmanteau word is used to describe a linguistic blend, namely “a word formed by blending sounds from two or more distinct words and combining their meanings.¹” Thus, iPod + broadcast = podcast. Had Microsoft marketed the first personal media player, we might be spreading Zunecasts instead. Years ago, I coined velvis, which is a portrait of Elvis Presley painted on velvet… velvet + Elvis = velvis. There are scores and scores of examples and they are not new to the 20th 0r 21st century.

The first known use of a portmanteau, or combination word, was coined by Lewis Carroll in Through the Looking Glass, the 1871 sequel to the 1865 novelAlice’s Adventures in Wonderland, later shortened to Alice in Wonderland. He used slithy to describe lithe and slimy. As a matter of fact, Carroll came up with the word portmanteau when he described the morphing of words. According to the The American Heritage Dictionary of the English Language, the word portmanteau comes from French porter, to carry + manteau, cloak (from Old French mantel, from Latin mantellum). Charles Dickens also used this play on words in the names of some of his characters, the most famous one beingScrooge, which purposely came about from his combination of screw andgouge. We use countless portmanteau words in everyday language without realizing it. This blog is actually a combination of web + log. If you’ve ever had malicious software on your computer, it’s malware. Ask yourself, did the word malware even exist 10 years ago? How about spyware? I often think about words coined by advancing technology and it fascinates me to no end. Th eetymological study of the English language is one of my favoritepastimes… or is that past times? Nope, past time refers to time passed. History. Pastime means to make time pass agreeably. Oh, I could go on or hours, but that would bore you.

Though slithy has slipped through the cracks and is seldom, if ever, used today, it certainly describes some of the lurking trolls lolling about blog sites, especially those pertaining to the Casey Anthony case. Since I don’t like to use old portmanteaus when describing something that’s relatively new, there should be a word besides slithy to describe these lurking trolls. Maybe, we can coin a new word for them. Trogs, for instance, for blog trolls, except that it’s already a word describing something else. Several things, actually, but not trolls. Yes, it would work, but so would blollop, short for a blog trollop. I use the word trollop loosely, and not in the literal sense. I tend to fancy blollop because of the rather nonsensical sound of the word, just as nonsensical as the trolls themselves and the blomit they spew.

Anyway, I’m sorry, I rambled on my blog long enough. Hey, that could be brambling, but bramble is a thorny issue. How about blambling? We could have a lot of fun with this, but in order to reflect the times, I must cut this short. Besides, I got so wrapped up writing, I skipped breakfast. Hmm, maybe I’ll just have brunch. There’s a pretty good Tex-Mex restaurant down the street. Instead of calling to make a reservation or sending an e-mail (electronic + mail), I’ll send them a text message just to prove I’m still in vogue. Would that be Tex mexaging? Never mind. That’s a whole “nother” play on language and I’d better go before I start eating my own words.

L8RG8R!

In denial

UPDATE 5:00 PM

A fourth defense motion was denied by Judge Strickland late this afternoon. Casey will not get any special treatment in jail. Baez & Co. wanted the jail to stop videotaping Casey whenever she was meeting with her lawyers and/or her family. No dice, said the judge. Since the jail videotapes every inmate in the same situation, he saw no reason allow the motion. In his two-page ruling, he said he can’t force the jail to “cease and desist from videotaping Ms. Anthony’s meeting with her attorneys.”

Strickland ordered that he must view any videos of attorney visits behind closed doors before any of them are released to the public. He said he has concerns about their content because he has seen at least one that would impact Casey’s right to a fair trial. It is unclear what video (or videos) he was referring to in his motion.

Surprise! Surprise!

Actually, the decisions the judge rendered yesterday with no explanations were no surprise at all. First, he denied the defense’s request to destroy video of any and all visits from her family. George and Cindy said they haven’t gone to the jail to see their daughter for fear that the recordings will be released to an overzealous public while being unfairly picked apart by media commentators. True, but in my opinion, she has the same rights as other prisoners - no more, no less.

Judge Strickland also denied the defense’s request to dismiss any of the fraud charges against their client. All 13 counts against Casey will stand. She (allegedly) stole checks from her friend Amy Huizenga’s checkbook to pay for clothes and groceries. Jury selection for the fraud trial should begin this week and the trial date is set for January 25, 2010. If Casey pleads or is found guilty, she will be sentenced according to first time offender guidelines. (See: Double Jeopardy)

Finally, the judge ruled that a recorded statement made by Joe Jordan cannot be released. The Texas EquuSearch volunteer illegally recorded a conversation that took place with a defense investigator without the investigator’s consent. Jordan (allegedly) told both the defense and prosecution two different stories about whether he searched the same woods where Caylee’s remains were discovered.

Judge Strickland heard these motions, plus two more, last Friday. He should rule on the remaining two [see update at top of article] at any time. They are whether the state can pursue the death penalty and whether the jail can continue recording meetings between Casey and her attorneys. In my opinion, last week’s hearing - which I attended - will be a complete wash-out for the defense. There are no solid reasons to dismiss the death penalty at this time, and the judge cannot, nor will he, order the jail to stop doing what it does. It is up to the county because that’s the governing body that controls the jail.

Were the motions meaningless and a waste of resources? No, I don’t think so. The defense has to throw whatever it can at the wall of justice, in hopes that something sticks. The argument Andrea Lyon gave in court Friday regarding the death penalty was compelling, but it fell short of convincing me and I am just a bystander. I am positive we will hear more motions to preclude the death penalty for months to come after this one fails. In the meantime, Judge Stan Strickland rules!

A Mother Accused

Andrea D. Lyon’s new book, Angel of Death Row: My life as a Death Penalty Defense Lawyer, is due to hit bookstores next month. An excerpt from her book has been published online at Scribd. Titled A Mother Accused, it chronicles the experience of a young mother accused of the murder of her baby girl and how the attorney, then in her thirties, handled the case. It’s a rather interesting choice, since, at first glance, it could easily be the title of the new chapter in her life - representing a young mother who stands on the edge of death for murdering her two-year-old daughter.

Before I begin deciphering the excerpt, I want to make clear my intention. I do not take kindly to name calling. Andrea Lyon did not get to her position as the Director of the Center for Justice in Capital Cases and Clinical Professor of Law, plus Associate Dean for Clinical Programs at DePaul University based on looks alone. Albert Einstein was no Cary Grant and Stephen Hawking is no George Clooney, but they are the two most brilliant minds to come down the pike in my lifetime. I have no doubt about Andrea Lyon’s credentials and attorneys do what attorneys do. If you denounce her, you must denounce the lot of them who defend murder suspects. I will assess her role in the innocent man’s spending 26 years in prison for the crime he didn’t commit, but first a little more background and a closer look at what she wrote in her book.

Lyon has tried more than 130 homicide cases in and out of the public defender’s office. She has defended more than 30 potential capital cases at the trial level and of those, she took 19 through the penalty phase, winning every one of them. Dubbed the “Angel of Death Row” by the Chicago Tribune, she was the first woman to serve as a lead attorney on a death penalty case. Alan M. Dershowitz once said that she “was born to be an angel of death row, and a devil to those who see execution as a quick fix for the social ills of our age.”

There is no doubt that criminal defense attorneys, and certainly Lyon, are dead set against the death penalty. In her very first case, as she defended the young mother, this excerpt takes a look at how her mind works…

A Mother Accused begins with Andrea Lyon’s initial revulsion upon learning that she would be defending the mother of a dead baby and how much she dreaded when that day would come. Damn. A dead baby case. She begins this odyssey with her work in child advocacy during law school, where she represented children who were subjected to abuse and neglect. She wrote that no matter what, those children still loved their parents and it was very seldom they would want to leave their homes, no matter how miserable they were. She had a problem deciding when the state should step in, so she intended to stay away from work involving abused children. OK, it was not her cup of tea. I can understand that. A decade later, she was a homicide public defender and had to represent this woman charged with first-degree murder. The mother had admitted to hitting the girl so hard in the stomach that the duodenum separating the stomach from the intestines had burst. The toddler’s own body had poisoned her.

When Lyon entered the interview room at the women’s jail, she introduced herself and began to ask questions. The “small, slender African-American woman with delicate features and big eyes” was reluctant to talk. The young mother asked if it was safe to talk to her. She wondered if she would get in any trouble. Lyon told the girl whatever she was told, she was not allowed to disclose any of it without her permission. The only exception to the rule is if the client intends to commit a crime and, by warning, an attorney can prevent it. Attorney-client privilege is a very serious matter, in other words.

The girl opened up. She told Lyon she wanted to go to her baby’s funeral. That’s what she said to the police after they told her what to say so she could go. Confess to the crime, so she did. Police didn’t chain her up, they didn’t starve her, and they didn’t lay a finger on her. Instead, they used what Lyon describes as effective police coercion. They took advantage of the woman’s emotional vulnerability to get her to confess. Meanwhile, a felony review assistant from the Chicago prosecutor’s office questioned her later and she told him what the officers told her to say. She said she had falsely confessed to the murder.

In the end, it was Lyon’s tenacious spirit and hard work that solved the crime. The young mother did not kill her baby. When she realized something was wrong, she went from the neighborhood health clinic to, not one, but two emergency rooms and it wasn’t until a nurse arrived accompanying a relative that she recognized the toddler had gone into cardiac arrest. Immediately, after hours and hours of waiting, she got help. By then, it was too late. The ER staff had administered CPR with full hand instead of fingers or the heel of the hand and that compounded the child’s problems. In the end, she died, but Lyon was able to ascertain that a babysitter was responsible, along with ER doctors. The toddler had accidentally plunged down the stairs of the apartment building. The mother and her boyfriend had saved up to go out for the evening. The stairs had no railings. It was rife with rough, splintered, nail embedded wooden steps. The little girl cried afterward, but seemed OK and the babysitter put her to bed. Had it not been for Lyon, we’d probably never know what would have happened to that young mother. Would she still be in prison or working on another appeal for a crime she did not commit?

OK, let’s get back to the matter at hand. Of course, police can’t legally coerce a confession out of anyone. They can’t really tell a gang member they’ll rat on him if he doesn’t tell them what they want to hear. Most assuredly, when word gets out on the street, that is a death sentence as sure as what the court could do. More so, and I understand how bad cops work. (See: I’d like to thank the prosecutor’s wife)

In her book, Andrea Lyon states that there is constitutional protection against a person being compelled to testify against himself. That doesn’t mean the defendant need not take the stand. What it does mean is that a confession that isn’t voluntary cannot be used. Because judges don’t want to appear soft on crime and the police would, invariably, deny coercion, this woman would spend her life in jail. My point is that we cannot always look at law enforcement as the good guys in white hats. There are bad apples in every bushel. That’s all I am saying and I am not implying it in the Anthony case, where I feel everything has been followed to the letter of the law. However, Casey’s defense may speculate on some of those tactics. Right or wrong, this isn’t about cops gone bad. This is about what a defense should do and it is to protect their client. Right now, is it Lyon’s job to defend Casey regarding her guilt or innocence or is it to keep her from the throes of death?

♦

Andrea Lyon addressed the issue of an innocent man spending 26 years of his life in prison. I understand the legal ramifications and what this is all about. However, it is not my position to take a stand on the right or wrong of her decision. I will merely explain why she did what she did, in her own words, and let you decide and discuss it. I will proffer my opinion on who else could be blamed.

She wrote about two colleagues of hers who were representing a man who truthfully confessed to shooting two police officers. The lawyers were able to avoid the death penalty, but their client would spend the rest of his life in prison. Lyon had helped with the investigation and in writing motions. At one point, the client told his lawyers - not Lyon - that he had committed an additional murder for which another man was on trial. The client could have faced the death penalty and refused to confess. The innocent man was convicted and sentenced to life in prison. Remember attorney-client privilege?  Hoping the guilty man would release his lawyers so they could reveal the truth, the man never did and they were bound by law to remain silent. Their client never relented, but the attorneys, including Lyon, drafted an affidavit early on, which she notarized, and hid in a lockbox. She said her colleagues consulted legal experts, “seeking some exception to privilege.” Each time, the answer was no, there is none. Their obligation rested solely with their client.

We all know the outcome. 26 years later, the guilty man died and his attorneys were free to divulge the truth. The innocent man was soon released, but that was no prize. He would never get those 26 years of his life back. What Lyon wrote was that while the morality of the system may be debatable, the law and legal ethics are not. She was bound by law and professional ethics to keep her mouth shut. This leads me to a question and it’s two-fold. Was it completely Andrea Lyons fault, the guilty man’s attorneys fault, or was it the state’s fault for bringing up charges against this man to begin with? What did prosecutors do to not only implicate an innocent man, but to impress upon a jury that the man was guilty, guilty, guilty? What did law enforcement do? To me, it is evident that they didn’t do a very good job, and if there is blame on Lyon, which is, technically, secondary, what caused the primary players to be so errant? Why is no one condemning the lawyers who represented the guilty man? Does anyone even know their names? Why not the authorities?

On a final note, before you condemn me for defending Andrea Lyon, understand that it is far from the truth. I condemn the death penalty, I have the right to believe in it or not, and I have the right to defend myself against personal attacks. Remember, you are allowed your own system of beliefs, too, and none of us are on trial. If you do condemn Lyon for who she represents, talk to Madison Hobley. He was on death row for a crime he did not commit. According to the book’s introduction, she has made it her life to defend clients who cannot afford a lawyer, just like him, and like Casey Anthony, they are the people many would love to see dead. Personally, I would rather see her spend the rest of her life in prison if found guilty. I will never understand how anyone could be against abortion, but for the death penalty. A life is a life is a life, whether tainted by sin or not. That is my opinion only. Who am I to play God with another person’s life? Who are we, nothing more than armchair sleuths, to decide? When did we cross the line from examining the crime to playing judge and jury?

NOT GUILTY! Bustamante pleads

Alyssa Bustamante sat silently in court yesterday, cold and emotionless, before her attorney entered a not guilty plea to charges in her arraignment for the first-degree murder of 9-year-old Elizabeth Olten by strangulation and stabbing, along with armed criminal action. By doing so, she waived a formal arraignment to the charges handed down to her by Cole County Circuit Court Judge Pat Joyce.

READ THE INDICTMENT COUNTS

In the courtroom sat family and friends of the victim, all wearing pink. A handful of Bustamante’s supporters sat on the other side. Her grandmother, who is her legal guardian, was not there.

During a November 18 hearing, she was certified to stand trial as an adult. A few hours later, she stood in front of Cole County Judge Jon Beetum to be arraigned. Because she had no lawyer present, the judge entered a not guilty plea on her behalf.

Originally, the status hearing was scheduled for December 7 to see if Bustamante had an attorney. That hearing was cancelled on December 3 and the re-arraignment was scheduled for yesterday because she is now being represented by a public defender, Jan King.

“Its routine for the court to only do the arraignment when the lawyer is available with his or her client,” Cole County Prosecutor Mark Richardson said.“So, back on the 18th, what occurred actually was the judge read the charges to her, informed her of the charges, but did not conduct an official arraignment.”

He continued to elaborate why that is. “On an arraignment, the courts want to ensure that the person’s lawyer is there and available because that arraignment triggers certain time limitations to file certain motions.”

Bustamante’s lawyer has already filed one of the motions; a request that she be transferred to the Fulton State Mental Hospital for a few days for evaluation. Judge Joyce did not rule on that request because her attorney did not ask the judge to consider the motion.

Under Missouri law, when a suspect under the age of 16 commits a crime, the death penalty cannot be sought. Despite her being tried as an adult, the most she can get, if found guilty, is life in prison without parole.

While Bustamante’s case was still in juvenile court, Judge Beetum was overseeing the proceedings, Juvenile Court Lawyer Samantha Green was the prosecutor and Kurt Valentine was her lawyer. That all changed when she was charged as an adult. A lot changed in Cole County, too, after Elizabeth Olten’s senseless death - all because a teenage girl wanted to know what it felt like to kill. Today, she will remain behind bars at the Morgan County Jail because there is little room for female inmates at the Cole County Jail. There is no room in our minds for the sad and violent death of Elizabeth Olten, either. One day, justice will come. Until then, we must wait and let the wheels of justice turn slowly, just like Caylee Anthony, gone a year and a half now.

Bustamante has a status hearing scheduled for February 16, a little more than two months away.

A couple of guys you may know

Here is a photo I took outside of the OCSO Central Operations Center last Thursday. On the left is former Sheriff Kevin Beary. He will be profiled in an upcoming article. The gentleman on the right is Sgt. John Allen. I believe most of you are familiar with him. If you wonder how and why I took this picture, I will leave you guessing until a future document dump. Meanwhile, one of the things Sgt. Allen told me was that even when the scent of death was in the trunk of Casey’s car, law enforcement never gave up hope that Caylee was still alive. Over 100 deputies and FBI special agents continued intensive and extensive searches for the missing toddler and they followed up on every lead.

A letter from Mark NeJame

I received the following letter from a very nice person who is quite concerned about this case. She wishes to remain anonymous, but she gets full credit for this - not me. Of course, I thanked her very much. You can, too. Just call her KWM.

In her opening remarks to me, she wrote, “I read all the sites about Caylee, including yours. I enjoy your views. Like you, I try not to let my emotions get in the way of facts. I also put a lot of importance on the original motion by the defense to gain TES search records and I was also concerned about it since many of our [group] took part in the search and as a [group] we contributed financially to TES and provided food and water, etc. I was also intrigued and concerned about Conway having access to the records as was reported in the media. As this news broke in August, TES came under fire by many bloggers as it appeared that TES had given Conway information. I doubted that was the case in its simplistic sense so I wrote to Mark NeJame. He sent me this [response] on August 29.”

THE LETTER:

Thank you for contacting me and expressing your concern and the concern of your fellow members. I appreciate the professional way you approached me and your efforts to get the truth out rather than allow rumors to control the flow of information. We all know how that happens repeatedly and has happened so much in the Caylee Anthony case.

I did not specifically disclose the name of the 32 searchers to Brad Conway. I received the information on all the searchers obtained by Tim Miller and Texas Equusearch. I maintained possession of them so that they would not be compromised or leaked. There were some media reports initially that the Anthony’s and Jose Baez were claiming that the searchers had been at the spot where Caylee was found and that her body was placed there afterwards. I allowed Brad Conway to review the records in my office so that he could ascertain that none of the searchers were at the spot where Caylee was found. He was not allowed to take any notes, copy any documents or leave with any information. He tagged some of the files of those who were in the general area. I permitted Linda Drane Burdick, the prosecutor in the case to do the same thing. She reviewed the documents in my office under the same rules and conditions that I permitted to Mr. Conway . She similarly tabbed some files and reviewed the tagged files left by Mr. Conway. I also had an independent member of Texas Equusearch review each of the files and further tab files of those in the general area where Caylee was found.

Neither Mr. Conway or Ms. Drane Burdick left with any information whatsoever. No names or files were released. Despite some opinions from those who don’t know or are prejudiced because of his clients, Mr. Conway, is an ethical and good person. He wanted to confirm to his clients that nobody tampered with  Caylee’s remains. He was able to inform them that he had reviewed the search documents and that nobody had been to the specific area where Caylee was found. Mr. Conway was satisfied in this regard. I hoped that would eliminate the rumors that were started in this regard. I do believe that neither George or Cindy Anthony or Brad Conway ever made any public statements thereafter that Caylee had been placed there after the spot was searched. Obviously, Mr. Baez and his team are now stating otherwise, but they have never been privy to the documents.

It had come to my attention that the prosecution wanted to call certain members of Texas Equusearch as possible witnesses in the case. They were interested in the searchers who were in the area where Caylee was found. It was not possible to turn them over to the State without disclosing them to the defense as well. Moreover, I was very concerned that a partial release would “open the door” to the defense for all 4,000 searchers. As such, I made a strategic decision to allow the information release of the 32 searchers. I believed that the Court was going to Order this anyway. There was no expectation of privacy to these 32 as they would be deemed to have relevant information, as ground conditions of the area had become relevant. Moreover, the State wanted this information and with Florida ’s liberal discovery rules, the defense would automatically get this. I used the argument that Mr. Conway had reviewed the documents in Court to show that he had similarly determined that these were the only relevant files and searchers. Apparently, the Court agreed with my argument, as the Order entered today limits Mr. Baez and the defense and completely adopted our position. The 32 have yet to be released but they will. Texas Equusearch called most of these 32 prior to the hearing and with the exception of one moderately disgruntled searcher who found this bothersome, everyone who was reached was agreeable to the disclosure and understood why they were material. The way I had it handled prevented anyone from being disclosed or identified until the Court entered its Order. No one, to my knowledge, has heretofore been contacted by the defense, appeared on the internet or been publicly identified. The defense never had the information.

I hope this answers all of your concerns. It is important that the truth be known and I really appreciate the opportunity to fully explain. I have developed great respect and empathy for the searchers of missing people and with the close relationship I have developed with Tim Miller, I am especially sensitive to protecting Texas Equusearch volunteers.

Let me know if you need any additional information or if I can provide any additional assistance. Please share with your fellow members how much their work is appreciated and how much I respect their dedication and efforts.

Warm regards,

Mark NeJame

One year to the date

On December 11, 2008, the bones of Caylee Marie Anthony were discovered in a wooded area on the south side of Suburban Drive, in Orlando. Precisely one year later, her mother will be fighting for her own life in front of Orange County Circuit Court Judge Stan Strickland, when her defense attorneys argue that the state was wrong for seeking the death penalty.

In their motion filed in September, Casey Anthony’s lawyers claimed that state prosecutors do not have a legitimate interest or enough aggravating circumstances to recommend a penalty of death against her. This is an interesting motion because the brunt of evidence is circumstantial. However, it’s hardly precedent setting. There have been many cases where defendants have been convicted and subsequently executed based on nothing more than circumstantial evidence. Think of “Bruno” Richard Hauptmann, executed in 1936 for the kidnapping and death of the son of famed aviator Charles Lindbergh. Hauptmann’s trial took place in Flemington, New Jersey, my hometown. Called “The Crime of the Century,” I have studied the case extensively. Perhaps, it’s the reason why I have such a keen interest in what will probably be dubbed “The Crime of the 21st Century,” transpiring before me in my adopted hometown of Orlando.

Two other motions will be heard that day and they pertain to recording videos made of Casey at the Orange County Jail. Her defense wants the judge to prohibit officials from recording her visits with them. Jail spokesman Allen Moore said that these types of recordings are routine and they follow corrections policies. They are for the protection of the inmates and their attorneys.

“Our recording system in that part of the jail does not have the ability to record audio,” Moore said. “We have followed jail policies and rules very carefully and directly and we intend to continue do so. We will attempt to accommodate Mr. Baez, but never outside of jail policy.”

The visits between attorney Jose Baez and Casey are usually held in a classroom that is always digitally videotaped without audio.

In the other jail related motion, Baez asked the court to “destroy any and all video or audio tapes or reports or other records in its possession memorializing meetings between Miss Anthony and her attorneys.”

Please don’t squeeze the inmate

Sometimes, a corrections officer is stationed outside the classroom or in one of the monitoring rooms where jail personnel can only watch the meetings and this is standard procedure for all inmates. Normally, no reports are ever filed. However, in October, 2008, personnel warned Baez that he was not allowed to touch his clients after officers saw him hugging Casey. Moore said that jail policy forbids any kind of touching between visitors and inmates.

Also, if you recall, a video was shot last year on the day her daughter’s remains were found. Corrections Officer, Lt. Tammy Unger, told OCSO detectives that Casey began to breathe rapidly, her hands became sweaty and red blotches appeared on her neck after hearing the news on TV. She also requested a sedative. Her defense team didn’t want the video to be released to the media. Although it contained no audio, they argued successfully that it could be misleading and it violated her right to medical privacy. Judge Strickland concurred and he sealed the video in June.

I will attempt to go to this hearing. If I do, you will read a first-hand account of my experience.