It was recently announced that Judge Strickland will address four of the Casey Anthony Defense Team’s motions at a hearing on December 11, 2009. They are:
- Motion to Preclude the Death Penalty Procedures
- Motion for a Protective Order Directing Orange County Jail to Destroy Videos of Family Visits
- Motion for a Protective Order Prohibiting Orange County Jail from Videotaping Attorney Visits
- Motion to Dismiss for Violation of Double Jeopardy Clause
The scheduling of the hearing on these motions provides not only a timely interlude in the progression of her Murder case, but also a timely and brief interlude from my two part series on her Check Fraud case (Casey Anthony: Insufficient Funds).
Unfortunately though, I think that this interlude will not provide Ms. Anthony with any early Christmas cheer, as it appears that Santa will not be giving her anything on her Christmas wish list – she must have been a naughty girl this year, tsk tsk…
Oh Casey, just what have your attorneys done?
Motion to Preclude the Death Penalty Procedures
This motion (while well intentioned) is your classic example of putting the cart before the horse.
Under Florida’s death penalty scheme, if a person is found guilty of a capital crime and a jury subsequently recommends a sentence of death, the court must first find that “sufficient aggravating circumstances exist” before it can actually impose the death penalty.
Section Section 921.141, Florida Statutes, states in pertinent part:
921.141 Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.–
(1) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.–Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment
So as you can see, a condition precedent to seeking the death penalty is that the State first obtain a conviction for a Capital Offense. If they do not obtain a conviction for a capital offense, but rather a lesser included offense such as manslaughter, there will be no death penalty sentencing phase under Section 921.141.
Nevertheless, the defense is seeking to proactively prohibit the State from prosecuting this case as a death penalty case at all – and thus seeking the death penalty – because they believe the State would be unable to prove sufficient aggravating factors required to impose the death penalty.
As you might have guessed by now, we have not actually had a trial yet – thus we do not know if Casey Anthony will even be convicted of a Capital Felony. And even if the State does obtain conviction for a Capital Felony, we do not know what aggravating factors the State is able to prove – thus we have no way of knowing whether a death penalty would imposed be by the judge.
So until such time as the trial is held and the death penalty imposed, this motion is moot.
Prediction – Motion Denied.
Motion for a Protective Order Directing Jail to Destroy Videos of Family Visits
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I can only scratch my head in disbelief at this motion – because Jose Baez is trying to argue with a straight face that videotaping Casey Anthony’s jailhouse visits with her friends and family somehow infringes on her constitutional rights.
The primary problem with this belief is that it is contrary to ALL established legal precedent.
And wouldn’t you know, the Florida Supreme Court just issued Jackson v. State, No. SC07-2008 (Fla. 2009), a case that dealt with an inmate who complained of the jail recording his “personal” calls.
Well the Florida Supreme Court was not very sympathetic, and held:
The Fourth Amendment right to privacy is measured by a two-part test:
- The person must have a subjective expectation of privacy; and
- That expectation must be one that society recognizes as reasonable.
A prisoner’s right of privacy fails both prongs because a prisoner’s privacy interest is severely limited by the status of being a prisoner and by being in an area of confinement that “shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room.”
The court went on to state “society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security.”
Thus, “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.”
So in a nutshell, the Florida Supreme Court said “too bad, so sad” to any privacy objections an inmate may have about a correctional facility recording their jail visits.
Prediction – Motion Denied.
Motion for a Protective Order Prohibiting Jail from Videotaping Attorney Visits
Now this motion is one that I think has some merit, but little traction – and here is why.
To begin, unlike her family visitations, Casey Anthony does have a subjective expectation of privacy in her meetings with Jose Baez based upon the Sixth Amendment right to the assistance of Counsel. And this is an expectation that society recognizes as reasonable. So the previously cited case law is not analogous.
Moreover, as a practicing criminal defense lawyer I can understand Mr. Baez’s concerns that his interaction with Casey Anthony is being videotaped IF the interaction involves her explaining or recreating certain aspects of the case – say explaining location, movements, distances, etc. Because viewing her actions is a violation of the attorney-client privilege.
And I understand his concerns based on first hand experience. As I too have had to make physical contact with a client in the preparation of a trial so that I could understand the clients physical point-of-view, prepare myself to cross-examine witnesses, and determine how to explain the client’s physical standpoint to a jury.
With that said, I have also been reprimanded by jail officials for that very same conduct – so I do not think they are singling out Mr. Baez, rather I think they are uniformly enforcing jail policy.
But from a legal perspective – I only think I would be entitled to object to the video taping if that video was being made available to the opposing prosecutor. At that point I think I would have an extremely strong argument that the jail’s act of allowing the prosecutor to view the video violates the attorney-client privilege.
And, as a matter of fact, a strikingly similar scenario recently played out in Broward County, where a prosecutor obtained and listened to jailhouse telephone conversation of an inmate and his defense attorney. (See Sun-Sentinel: Murder suspect seeks freedom after prosecutors snooped on calls to lawyer.)
Once made aware of this intrusion, the defense attorney moved to disqualify the entire State Attorney’s office because they had violated the attorney-client privilege and the trial court granted this request. The State appealed and the trial court’s order finding the State Attorney has violated the attorney-client privilege was upheld. See State v. Martinez, 4 So. 3d 712 (Fla. 4th DCA 2009).
However, I think Mr. Baez’s complaints are entirely different.
He has no proof – nor do I even believe he has alleged – that the State Attorney’s Office has reviewed the silent videotapes the jail maintains for security purposes. Rather, his complaint is that he is being videotaped in general.
But more importantly, he became aware of the jailhouse security videos not because they were released to the media, but because he was reprimanded after they saw him on the security video touching Casey Anthony – in violation of jail policy.
Thus he is complaining because he got caught with his hand in the cookie jar – naughty, naughty.
So, here is where I stand with this motion. I understand his concern, but absent any proof the State Attorney’s office is viewing the videotape, I do not believe he is legally entitled to any relief.
Prediction – Motion Denied.
Motion to Dismiss for Violation of Double Jeopardy Clause
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The final motion to be heard involves the Check Fraud case, which you may remember charges Casey Anthony with 13 counts of either Uttering a Forged Document (Forging Checks), Grand Theft, or Fraudulent use of Personal Identification Information (Identity Theft).
Their primary argument is that Casey Anthony is being charged with three separate crimes for each singular act – thus a violation of the United States and Florida constitutions prohibition on being twice placed in jeopardy for the same offense. And under their theory, for each check of Amy Huizenga’s she forged and cashed, she should only be charged with one crime.
Unfortunately for Casey Anthony, nearly twenty years of established case law says her double jeopardy motion is untimely – and without legal merit. Let’s Discuss.
Untimeliness of Motion
Under Florida law, the appropriate time to raise a Double Jeopardy claim is after you have been found guilty – not before. The reason for this was best discussed in State v. Sholl, 1D08-4826 (Fla. 1st DCA 2009), which held”
The trial court should not have considered the double jeopardy claim until sentencing. When an information contains two or more charges which amount to the same offense, “[d]ouble jeopardy concerns require only that the trial judge filter out multiple punishments at the end of the trial, not at the beginning.”
To this end, double jeopardy protections may not be extended to an earlier stage of the proceeding, such as the filing of the information or jury selection. Otherwise, the trial court would be “usurping the State’s discretion to make strategic decisions about charging alleged criminal activity.” Consequently, Sholl’s double jeopardy argument was premature and an improper basis for dismissal.
So without even getting into whether the double jeopardy motion is meritorious, it is clearly premature.
Legal Merit of the Motion
Even assuming the double jeopardy motion was timely, it seems clear the motion is contrary to established legal precedent.
Remember, their primary double jeopardy argument is that Casey is being charged with three crimes for every one act. Unfortunately for Casey though, the courts have a different take on her alleged conduct – meaning they see her as having committed three individual crimes each time she cashed a check of Amy Huizenga.
For example, in Sibley v. State, 955 So. 2d 1222 (Fla. 5th DCA 2007) the court ruled that convictions for organized fraud, fraudulent use of personal identification information and uttering forged instruments do not violate double jeopardy. Interestingly, the court did find that organized fraud and grand theft violated the double jeopardy clause.
And that is important to Casey Anthony’s case, because while she is not charged with Organized Fraud, she is charged with Grand Theft. Thus under Sibley, convictions for grand theft (since it is the same as organized fraud), fraudulent use of personal identification information and uttering forged instruments do not violate double jeopardy either.
Another case with a similar holding is found in Henderson v. State, 572 So. 2d 972 (Fla. 3d DCA 1990) where the defendant was convicted of 14 counts of uttering forged instruments and 1 count of grand theft, which was based on the money she obtained by means of the same forged instruments (sound familiar). Henderson v. State is also cited with agreement by Sinclair v. State, 645 So. 2d 105 (Fla. 5th DCA 1994)
The court rejected the defendant’s double jeopardy claims and held that separate acts were committed by uttering the forged instruments and by obtaining the funds because each had different elements.
Know Your Judge
Now before we go on any further, it is worth noting an important fact about both Sipley v. State and Sinclair v. State – and what is the fact you ask? Well they were both decided by the Fifth District Court of Appeals in Florida.
And, as you might have guessed, the Fifth District Court of Appeals is the appellate court that Casey Anthony would have to appeal to if she were ever convicted on the Check Fraud case. Gee, I wonder how they might rule?
Prediction – Motion Doubly Denied
Final Prediction: An Un-Merry Christmas
So something tells me the that Casey Anthony is going to have a very un-merry experience on December 11 and will head into 2010 with a lump of coal in her cell and a lot of soul searching to do.
As a break from my recent juvenile rants about 
Now I understand that the statute does not actually say a witness’ credibility can be attacked by a felony conviction, rather it says by a crime which “was punishable by death or imprisonment in excess of 1 year.” And this is for good reason, because not every jurisdiction categorizes and defines criminal offenses with tidy labels – felony and misdemeanor – like Florida does. (
When the judge does the latter (usually for