December, 2009:

Hello again my unfaithful readers!

In part one of this two-part expose on Casey Anthony’s Check Fraud case, we discussed why the State wants to try the Check Fraud case before the First Degree Murder case.

In part deux, we will discuss why the Defense will likely try to postpone the Check Fraud case in some manner.

But before we discuss the how and why the defense will try to delay the Check Fraud case, I think it is best that we discuss what I would be doing.

Because there is nothing more enjoyable than second guessing another person’s strategy by playing Monday Morning Quarterback.

What Would Hornsby Do?

Now we know that the real prize to the State is the thirteen felony fraud convictions for use as impeachment in the Murder case. Thus we know that the defense wants to avoid trying the Check Fraud case before the Murder case at all costs.

However, with Judge Strickland having granted the State’s Motion to Set a Trial Date in the Check Fraud case, it seems likely that the Check Fraud case would be tried first.

And when the ship is sinking, Richard Hornsby asks, why go down with the ship?

A Lifeline…

Florida Rules of Criminal Procedure 3.151 allows a defendant to consolidate “related” cases and charges.

Rule 3.151. Consolidation of Related Offenses
(a) Related Offenses. For purposes of these rules, 2 or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on 2 or more connected acts or transactions.

(b) Consolidation of Indictments or Informations. Two or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. Failure to timely move for consolidation constitutes a waiver of the right to consolidation.

A casual reading shows that in order to consolidate offenses, there must be two or more offenses (meaning charged with at least two crimes – duh!) and they must be based upon “two or more connected acts or transactions.”

And this relationship has been further defined by the Florida Supreme Court in Spencer v. State, 645 So. 2d 377 (Fla. 1994), which held that for consolidation purposes, the two incidents need only be “causally related,” meaning they “stem from the same underlying dispute and involve the same parties.”

So coming full circle, we know that Amy Huizenga will be required to testify in both cases. We also know the underlying conduct that makes up the Check Fraud case will be relied upon by the State to convict Casey in the murder case.

So the real question is – what is the defense thinking?

Wishful Thinking

There is only one possible explanation for the defense team’s failure to move for consolidation (Okay, other than they didn’t know they could – but really?)

They believe they will be able to exclude the Check Fraud conduct from admitted into evidence in the Murder case – arguing it is nothing more than character evidence used solely to show propensity to commit crimes (which we all remember is an inadmissible purpose).

Nevertheless unfaithful ones, if this is the defense team’s thinking, it is nothing more than wishful thinking… Why?

There are two types of evidence of uncharged crimes that is admissible against a defendant: “similar fact evidence” and “dissimilar fact evidence.”

We have previously discussed “similar fact evidence” and how it can be introduced to show show modus operandi or absence of mistake. (See In Defense of the Casey Anthony Defense.) This type of evidence is governed by Section 90.404, Florida Statutes.

On the other hand, “dissimilar fact evidence”  is governed by the general rule of relevancy set forth in Section 90.402, Florida Statutes. And under Florida law, dissimilar fact evidence of uncharged misconduct is admissible to establish the relevant context in which the criminal acts occurred so that the State can paint an accurate picture of the events surrounding them.

As a result, evidence of misconduct not charged in the Murder Indictment (i.e. the Check Fraud charges) is relevant and admissible when it is necessary to adequately describe the events leading up to the commission of the offenses charged in the Murder case. See Victorino v. State SC06-2090 (Fla. November 23, 2009).

Moreover, such evidence is “admissible as relevant evidence even though it might otherwise be objectionable as prior bad act evidence because it is ‘inextricably intertwined‘ with the underlying crime.” See Shively v. State, 752 So. 2d 84 (Fla. 5th DCA 2000). This is especially true if the evidence of other crimes, wrongs, and acts is probative on a material issue  and not being offered just to show the bad character or propensity of an individual. See Hunter v. State, 660 So. 2d 244 (Fla. 1995).

And looking at Ms. Anthony’s case in context, it seems undeniable that the State would be entitled to present evidence of her fraudulent activity to establish a time-line, show her absence of mistake, show her false statements to police, show her lack of remorse, show she purchased nothing for Caylee with the stolen funds, show …

But again, what would Hornsby do, or better yet – what would Sun-Tzu do?

The Art of War

In chapter two of the Art of War, Sun-Tzu says:

One who cannot be victorious assumes a defensive posture; one who can be victorious attacks.

In these circumstances by assuming a defensive posture, strength will be more than adequate, whereas in offensive actions it would be inadequate.

What this stanza means is that you should only fight when victory can be secured; otherwise you should assume a defensive posture. This allows you to both minimize your losses when attacked, and live to fight another day.

And considering that Casey Anthony’s guilt is evident in the Check Fraud case, it would seem obvious they cannot obtain an acquittal – so why try the case first and provide the State with additional ammunition in the Murder case?

Rather, they should wisely choose a defensive posture and move to consolidate the cases, which is the safest option and minimizes negative exposure to the jury in the Murder case.

And importantly, from a defense perspective, if the motion to consolidate was denied, it would create one additional appellate issue that could be raised in either case.

However, her defense team seems to be pursuing a more precarious option – delay the inevitable.

Delay is the Deadliest Form of Denial

By choosing to delay the Check Fraud case, Casey Anthony’s defense team only has three options available:

1. Motion to Continue,
2. Plea to the Bench, or
3. Conduct a Trial.

So let’s discuss each of these options.

Some Other Day Please: Motion to Continue

While Judge Strickland granted the State’s Motion for Determination of New Trial Date, it must be realized that his order only instructed the Clerk to docket the Check Fraud case for “pretrial and trial” – a standard couplet of court dates that are scheduled in all criminal cases. And as any practitioner will tell you, most Motions to Continue are made at the pretrial.

Additionally, many people have equated Judge Strickland’s consideration of Amy Huizenga’s affidavit with her having exercised her speedy trial rights afforded to victims in Florida.

Unfortunately though, Ms. Huizenga’s speedy trial rights have yet to mature. Because under Florida law, a victim’s Demand for a Speedy Trial cannot be made until the court has granted at least three continuances upon the request of the defendant and over the objection of the state attorney. (See Section 960.0015, Florida Statutes.)

And not only does Judge Strickland’s Order specifically state that the Check Fraud case has only “technically” been continued one time, it must be remembered that that continuance was not opposed by the State. Thus the defense could still be able to continue the case three times before the state could file a Demand for Speedy Trial on behalf of Ms. Huizenga.

Consequently, it is still possible that the defense could move to continue the case at the upcoming pretrial if they can show good cause for the continuance as required by Florida Rule of Criminal Procedure 3.190(g).

When moving to continue, defense attorneys usually state one of two reasons: (1) they are trying to locate additional witnesses or (2) they need additional time to prepare. In Ms. Anthony’s case, it would seem additional time to prepare is the only good faith reason they could raise.

And when alleging additional time needed to prepare, a judge must consider the following factors to determine if the continuance should be granted. See Trocola v. State, 867 So.2d 1229 (Fla. 5th DCA 2004).

1. The time actually available for preparation;
2. The likelihood of prejudice to the defendant from the denial;
3. The defendant’s role in shortening the preparation time;
4. The complexity of the case;
5. The availability of discovery;
6. The adequacy of counsel actually provided; and
7. The skill and experience of the attorneys considering their pre-retention experience with the defendant or the alleged crime.

A cursory review of these factors mitigates against Judge Strickland being required to grant the defense another continuance. But in addition to the factors outlined in Trocola, Rule 3.190(g)(5) is also working against the defense:

The party applying for a continuance may file affidavits in support of the motion, and the adverse party may file counter-affidavits in opposition to the motion.

Considering the defense has not filed any supporting affidavits and the State has filed Ms. Huizenga’s, it seems obvious that Judge Strickland is entitled to deny any Motion to Continue made by the defense. But this is especially so considering how much weight Judge Strickland gave to Ms. Huizenga’s affidavit and the very pointed language he used to describe how simple the case would be to try – thus preempting any future attempt to request additional time to prepare.

To Plea or not to Plea, for that is the Question: Plea to the Bench

Of the three options available, I believe this is the most likely to occur – with one caveat.

While I think the defense will plea to the bench to avoid a trial, I nonetheless think they will wait until the last minute to do so – meaning until the jury is literally waiting outside the courtroom to be picked.

So the question then turns to why would they plea to the bench, rather than roll the dice at trial.

Two Words: Strategery!

The truth is that no matter how much “duh” the Casey Anthony team puts into the term defense, even they have to know they would lose the Check Fraud trial given the overwhelming direct evidence.

But more importantly, the State Attorney’s Office would get a free test run against Mr. Baez, Ms. Lyon, and Ms. Kenney-Baden.

This would allow the State to prepare for each attorney’s particular style, to obtain a psychological insight on how the attorney thinks, and allow the State to prepare limiting motions to prevent the defense from engaging in certain conduct or argument during the Murder trial that they attempted in the Check Fraud trial.

Additionally, considering the State Attorney is not offering the defense any plea bargains in the Check Fraud case – the defense would have to know that their only hope in any type of leniency would be to appeal to Judge Strickland.

However, it is highly unlikely Judge Strickland would show them much sympathy if they wasted the court’s time and resources. And, as I will discuss at the end of this post, the ultimate sentence will be up to Judge Strickland if she pleads guilty or is found guilty. And as the saying goes, don’t bite the hand that feeds you. (This of course assumes Casey Anthony is not acquitted of the Check Fraud charges,)

A Final Wrinkle

Even if Casey Anthony pleads to the bench, it is interesting to note that a judge is not required to accept any plea other than a Guilty plea – meaning that Judge Strickland could refuse to accept a Nolo Contendere (No Contest) plea.

The reasoning is that a person who admits their guilt has less issues available to appeal; whereas a person who pleads Nolo Contendere can not only claim actual innocence on appeal, but can appeal such trivial claims like the denial of a motion to continue.

And while there are many judges that will only accept a Guilty plea, Judge Strickland is not one of them. My experience is that he routinely accepts Nolo Contendere pleas. So, for me, it will be interesting to see whether he would in this case.

My personal suspicion is that if push came to shove, he would allow a nolo contendere plea if it would avoid the necessity of a trial.

And from the State’s perspective, so long as she pleads and is “convicted,” they could still use the convictions as impeachment evidence even if she is appealing the underlying convictions while the Murder case is ongoing.

The pendency of an appeal … relating to such crime does not render evidence of the conviction from which the appeal was taken … inadmissible. Evidence of the pendency of the appeal is admissible.  – Section 90.610(2), Florida Statutes.

A Slow Plea: Conduct a Trial

As any defense attorney worth his salt will tell you, there are certain clients who are oblivious to the evidence against them and want their day in court because they have rights! And sure enough, they do:

Sixth Amendment – Rights of Accused in Criminal Prosecutions

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

And while many defendants call this their constitutional right to a trial, evidence be dammed – we defense attorneys call this a slow plea.

Because after all of the evidence is presented, the jury decides whether the crime occurred – nobody else. And if the evidence is as overwhelming as it appears, the jury should have little trouble returning a guilty verdict as charged.

So even though we went through all of that constitutionally mandated “hassle,” we still end up back where we started – at the mercy of the court. Thus the term “slow plea.”

May the Court Have Mercy on Casey’s Soul

And whether by an open plea to the bench or by a long drawn out trial, Casey Anthony will most likely find herself at the mercy of Judge Strickland. And here is where things get interesting…

You see Casey Anthony is a First Time Offender, and Judge Strickland is prohibited by rule from immediately sentencing her to jail or prison if she is convicted. Rather, he is required to order that a Presentence Investigation be conducted before imposing sentence.

Ruled 3.710(a) – Presentence Report

In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the Department of Corrections for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.

Important for the defense, this Presentence Report can take up to three months to complete – and as you might guess, that could be just long enough to allow the Murder case to be started without Casey being formally convicted of the crimes.

But there is a catch, this rule does not apply if Judge Strickland sentences Casey to probation. See Cloutier v. State, 930 So. 2d 841 (Fla. 3d DCA 2006) (Rule 3.710(a) clearly mandates that the trial court first order a PSI before sentencing a first felony offender to more than probation… Thus, the trial court erred when it sentenced the appellant without first ordering a PSI.)

At this point many of you are likely cursing my name for saying such blasphemy as probation – and this is because you not only assume Judge Strickland will sentence Casey to prison but you believe he is required to sentence her to prison.

If only you knew (and you will).

Florida’s Criminal Punishment Code

In Florida all persons charged with felony offense are sentenced pursuant to a scoring system known as the Criminal Punishment Code (CPC). See Section 921.002, Florida Statutes.

In layman’s terms, the CPC assigns a numeric value to each criminal offense that a person has been convicted of and the resulting sum of those convictions dictates the judge’s sentencing options: (See Florida CPC Manual)

• If the total points equal or exceed 44 points, the judge is required to sentence the person to prison.
• If the total points are less than 44 points, the judge is not required to sentence a person to prison, but may still do so.

Now the 44 points also carries another magical consequence, any person sentenced to prison must be adjudicated guilty. On the other hand, a person sentenced to probation can, at the court’s discretion, receive a withhold of adjudication of guilt. And we all know why that is important – don’t we?

Nevertheless, at this point you are probably asking: “well what does Casey Anthony score already?” and it just so happens that I took the time to complete a sample CPC scoresheet (Download PDF) and she scores ….

43.6 points

Can you believe it? She scores 0.4 points less than the magical number of 44. And they say god doesn’t have a sense of humor!

So it appears that all is not lost for Casey Anthony, because Judge Strickland is not required to sentence her to prison – he is allowed, by law, to sentence her to probation…

(Note: A reader brought up the possibility of a juvenile record, which is something I had not considered. But to be accurate, a juvenile record is taken into consideration for scoring purposes. It would only take one felony or two misdemeanor juvenile delinquency convictions to cause her to score over 44 points.)

And the Plot Thickens

Now here is where things get dicey for me – because, as Blaise on WebSleuths would say, I am not Judge Strickland and he is not me, for I am the Walrus. Meaning that Judge Strickland has options at this point and only he knows what he will do.

On one hand, Judge Strickland is known as one of the fairest judges around and he might see the unfairness (from Casey Anthony’s perspective) of a first time offender being burdened with 13 felony convictions that are inextricably intertwined with the same murder case the State wants the convictions for in the first place. In which case he could throw Casey Anthony a lifeline by placing her on probation and withholding the adjudication of guilt.

On the other hand, this is, after all, the same judge who said:

The truth and Ms. Anthony are strangers.