Quiet Observations, FOR CRYING OUT LOUD!

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

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

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

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

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

CLICK IMAGE TO ENLARGE

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

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

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

THE BALLAD OF CASEY

For the rest of her life

Her name will be mud

For taking the life

Of her own flesh and blood.

For what lies ahead

Is a brewing storm.

Her Caylee long dead

Was fed chloroform.

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

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

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

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

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

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

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

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

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

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

(Also see Orlando Sentinel)

It's Not Just Nuts and Dolts

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Trial By Ambush

PART I

I hate being late to anything, but on Monday, so many people were present at the courthouse waiting to go through security, it was a full 9 minutes before I entered courtroom 19D, meaning that I was 9 minutes late since Chief Judge Belvin Perry, Jr. is a stickler for being prompt. When a hearing is set to start at 1:30, it starts at precisely that time. Courtroom 19D holds some bittersweet memories for me, too. It's Judge Strickland's courtroom, and the one where I was called up to meet him on that fateful October day last year. Alas, life goes on, but it's a date I will never forget.

What ensued on Monday was a heavy dose of the reality of Judge Perry's courtroom and a taste of things to come. One of the strongest statements he made and one that's clearly set in stone is that he will not budge when it comes to the timeline. On May 9, 2011, jury selection will start and exactly one week later, on the 16th, the trial will begin.

The reason for these status hearings is to keep both sides on schedule and to ensure that they share information with each other and get everything synchronized or suffer the consequences. “I would not want me setting your depositions,” he said. “I’ve been known to do some weird things like working on Saturday.”

One of the issues Jose Baez addressed was the timing of the state's release of discovery. He cited one example. Erica Gonzalez worked as a shot girl at Fusian Ultralounge. She told OCSO Cpl. Yuri Melich that she spoke to Casey on the phone on July 15, 2008, and heard her talking to Caylee.

Jose said he didn't receive this information until July 22 of this year, over two years later. Linda Drane Burdick responded that there are plenty of times witnesses take too long to respond. For example, PI Dominic Casey took forever to turn in documents and it took a week to scan all of the papers for release.

The defense turned over an amended witness list containing 63 Category A witnesses. The judge reminded both sides of their deadlines. Linda Drane Burdick mentioned that 300-500 more pages of discovery are coming, but they would be mostly bank records of no significance to the defense. She still needs to copy Yuri Melich's hard drive, she added.

The prosecution wondered how 35 people could possibly be deposed in one day, as stated by the defense. Cheney Mason piped in that he would get it done on September 15 as scheduled. Some might be a mere 5 minutes long. What I noticed during this exchange was a friendly banter between Mason and the judge. Quite clearly, the two men had experience with each other and were, no doubt, comfortable and aware of each other's unique personalities, strengths and weaknesses. I will elaborate on this at a later date.

When the defense filed its NOTICE OF STANDING OBJECTION OF ABUSE OF FLORIDA STATUTE 119.01, the judge interpreted it as meaning it was not requesting a hearing, but instead, stating on record that it objected to the media and public's right to know. Jose Baez concurred. The Orlando Sentinel filed a MOTION TO INTERVENE FOR THE LIMITED PURPOSE OF OPPOSING DEFENDANT'S STANDING OBJECTIONS OF FLORIDA STATUTES CHAPTER 119.01. If this sounds complicated, it's not really. It's more of a formality on the defense's part and opens the door for a gag order later on, which Judge Perry will, most likely, write as the trial nears. This will be in order to keep potential jurors from reading about the case so close to jury selection. Mason brought up Murph the Surf, which addressed media coverage. Jack Roland Murphy was a famous surfing champion, musician, author and artist before his convictions; one being his involvement in the biggest jewel heist in American history at the American Museum of Natural History, and the other being the first-degree murder of Terry Rae Frank, 24, a California secretary. From lectlaw.com, Heidi Howard:

The Court examined the totality of the circumstances, and found that if the jurors were actually, provably prejudiced by pretrial publicity, or if the "general atmosphere in the community or courtroom is sufficiently inflammatory," the community sentiment can be so poisoned against the defendant "as to impeach the indifference of jurors who displayed no animus of their own."¹

In other words, the media may be restrained from reporting, at least prior to the impaneling of a jury in a criminal trial, when pretrial publicity is so pervasive that it, more than likely, would have an effect on jurors.

A final edict made by Judge Perry was that all future motions will be heard within 15 days of filing. This is the nature of this judge. Move, move, move! I wouldn't be a bit surprised if he keeps a fully charged cattle prod at his side behind the bench, waiting to use it.

PART II

One of the most compelling statements made by the judge was that the state of Florida has discovery rules that include trial by ambush. Trial by ambush? What's this all about?

In Florida, the standard  trial order entered by most judges  is that 45 days prior to the trial getting underway, both sides must submit to opposing counsel a written list of the names and addresses of all witnesses, impeachment, rebuttal or otherwise intended to be called at trial. It means this is the complete list of people who will be permitted to testify. It's intended to keep either side from suddenly finding a witness and surprising the other side. In this case, an act of this nature amounts to trial by ambush. Most judges will not allow it. Any witness not previously disclosed won't get near the courtroom unless certain circumstances warrant it. An example would be if the party diligently tried to find a witness and failed due to not being available until trial.

Another aspect of trial by ambush includes other discovery, as well. Discovery enables both parties to know before the trial begins what evidence may be presented. This way, one side doesn't learn of the other side's evidence when there's no time to obtain anything to respond.

In 1981, the Florida Supreme Court set the standard for the requirements of pretrial disclosure (See: Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). It gave trial courts ammunition to deal with faulty pretrial disclosure. In Marine Enterprises v. Bailey, 632 So. 2d 649 (Fla. 4th DCA 1994), the Fourth District Court approved the trial court's striking four witnesses for violations of the pretrial order.

“In exercising its discretion to strike witnesses not properly disclosed upon pretrial order, the trial court may consider such factors as: whether use of the undisclosed witness will prejudice the objecting party; the objecting party’s ability to cure the prejudice or its independent knowledge of the witnesses’ existence; the calling party’s possible intentional noncompliance with the pretrial order; and the possible disruption of the orderly and efficient trial of the case.

Compliance with pretrial orders directing proper disclosure of witnesses eliminates surprise and prevents trial by ‘ambush.’ Binger, 401 So. 2d at 1314. Counsel who disobey a trial court order entered months earlier should not be rewarded for their conduct. Pipkin v. Hamer, 501 So. 2d 1365, 1370 (Fla. 4th DCA 1987).”

As a matter of fact, trial by ambush has been discouraged since the state of Florida adopted its rules of procedure in 1954. Judge Perry is well-versed in procedural law, and the fact that he brought it up at Monday's hearing means he plans on abiding by the rules. Remember: 45 days.

On a final note, one thing I understood from attending the hearing was the judge's determination to impress his rules on both sides of the aisle, not just the defense, as many people believe. I saw no discrimination or favoritism. He treated the two sides equally and he had words to say to everyone involved. He doesn't want to hear petty arguing or sniping, either. Such is the manner of any good judge. In this case, there's no doubt in my mind that what we have here is a great judge who will play Solomon if and when it's necessary. Of course, I never expected any less from Judge Strickland, so in that regard, nothing has changed. As the hearing progressed, I got a sense that the light at the end of the tunnel is coming into view. It's no-nonsense from here on out. When Linda Drane Burdick asked the court if closing arguments could be split between all of the attorneys, state and defense, that little tunnel lit up, and I liked what I saw. Justice was shining at that other end.