Casey Anthony Gets a Reality Check

Hello my unfaithful!

Well, Friday brought some interesting events, oh where to begin? The beginning is always a good place to start…

But before I do, I should point out I have left out discussion on the video arguments because I covered it previously (How the Grinch Stole Casey Anthony’s Christmas) and nothing new came out during Friday’s hearing.

Dominic Casey’s Protective Order

To the lay person, this part of the hearing may have seemed overly confusing – but in actuality is rather simple from a legal perspective. Let me explain.

Basics of Ongoing Investigations

Notwithstanding the ongoing prosecution of Casey Anthony, the State Attorney is free to continue to investigate the case, as is the defense.

So let’s say that a potential witness is brought to either side’s attention. The first thing they might do is see if the person would voluntarily come in and speak with them. If the person agrees (as with Kronk’s ex-wives), no problem – if the person does not agree, well then we have a problem. At this point the person must be compelled to testify.

Devlin v. Rosman, although a civil case, explains this concept in a fairly straightforward manner.

It is the general rule that attorneys for one party in a pending cause are free to interview the other party’s intended witness without the consent or presence of opposing counsel. This presupposes that the person thus sought to be interviewed is willing to submit thereto. If he is not, he may insist that his views or testimony be given only upon deposition or at a trial or other court proceeding in the cause, after having been subpoenaed. Devlin v. Rosman, 205 So. 2d 346, 347 (Fla. 3d DCA 1967)

The State Attorney’s Investigative Subpoena Power

However, let’s say the State comes across a witness that both:

1. Is not listed by the defense, and
2. Does not want to voluntarily cooperate.

Well the State is then entitled to issue what is referred to as an investigative subpoena. See Section 27.04, Florida Statutes – “Summoning and examining witnesses for state.”

Once served with the investigative subpoena, the person is required to appear before the State Attorney and answer any questions they have. The only questions they are not required to answer are ones that go to areas that are constitutionally, statutorily, or procedurally protected (meaning privileged). Nevertheless, the State can offer use immunity and require the protected information be divulged.

So in the instant case, even if Dominic Casey had privileged information that belonged to George and Cindy Anthony, the State could offer use immunity that would allow them to pierce the privilege and ascertain what he knows. If he divulged something that could get him, George, or Cindy into trouble, he (and presumably they, not quite sure) would be immune from prosecution based upon discovery of this information.

Now, let’s say that the State Attorney is provided information regarding the Casey Anthony case by the previously unlisted witness. At this point they are required by Florida Rule of Criminal Procedure to list Mr. Casey as either a category A, B, or C witness. See Florida Rule of Criminal Procedure 3.220(1)(B)(1)(A).

Essentially Category A witnesses are any material witness, Category B witnesses are expert witnesses whose testimony is fully laid out in a written report, and Category C witnesses are people who have no real information to provide (think records custodians).

The Defendant’s Deposition Subpoena Power

Now prior to this point, the defense had no “authority” to compel any witness to speak with them. However, once listed by the State, the defense is then authorized by Florida Rule of Criminal Procedure 3.220(h) to “depose” a person if the person does not want to voluntarily speak with the defense.

And at its core, a deposition (as opposed to an interview) is nothing more than a “compelled sworn interview” in the presence of both parties. Meaning the person was required to appear pursuant to a court order (compelled), to be placed under oath (sworn), and answer questions (interview).

Now a final nuance to this discussion is what happens when the defense team places a person on their witness list. Remember that the defense had no authority to require state witnesses to sit for an interview until the State actually lists them. And if the defense wants to speak with an uncooperative state witness, he can subpoena them for a deposition.

The flip side of this coin is that “[i]f defense counsel wants to protect against the state’s ex parte [compelled] examination of a witness, he can do so by furnishing the witness’s name on his list of defense witnesses.” See Dufour v. State, 495 So. 2d 154, 161 (Fla. 1986).

The reasoning is that if the State could compel a listed defense witness to appear without notice to the defense, the state might “inject certain information to influence or bias the testimony” of the witness. See generally Lee v. State, 324 So. 2d 694, 698 (Fla. 1st DCA 1976).

So really what this boils down to is that until Jose Baez lists Dominic Casey as a witness, he has no right to be present at an investigative interview by the State.

If he does list Dominic Casey as a witness, the State is required to notice the defense of the “interview,” which is now legally defined as a “deposition.”

The Bottom Line

Which leads us to Judge Strickland’s final remarks:

“Call me if there is a problem.”

Essentially he instructed the parties to go forward with the interview/deposition and to call him (literally) if there are any objections based on privilege that must be ruled on during the interview/deposition.

This procedure saves everyone’s time and money, lessens the spectacle, and allows the case to move forward.

Yay for Common Sense!

The Double Jeopardy Motion

Since both the defense and state rested on their pleadings during their argument, I will rest on my previous analysis of the motion found in How the Grinch Stole Casey Anthony’s Christmas.

As for who has the better legal argument, I would point out that the State cited State v. Sholl, 1D08-4826 (Fla. 1st DCA 2009) – the same case I cited days before they filed their motion. On the other hand, the defense did not – you figure out who I think did better.

And like the State, I will not comment (too much) on Mr. Baez’s editorial comments except to say that what he expects of Casey Anthony’s case is precisely what he argues against – special treatment. And as a local practitioner, his continued hypocrisy disgusts me. When I was a public defender, I saw hundreds of cases where seemingly excessive counts were filed, just like Ms. Anthony’s case.

Before I go any further though, a lot of people have asked why Judge Strickland did not rule right away – and here are my thoughts.

It is not unusual for him to reserve ruling on motions and issue an order afterward. And while he has never come out and said so, most practitioners (including myself) believe he does this as a professional courtesy to the lawyers who argued the motion.

Because it allows the attorneys who argued the (likely) losing side to save face during the hearing and break the bad news to their clients in private (Casey, we almost convinced him otherwise he would not have waited to rule – next time). Seriously though, I am glad he does that as it make life for the average practitioner easier.

Moving on though, Judge Strickland did provide some interesting insight that is worthy of discussion.

Reading Between the Lines

At the end of the discussion of the double jeopardy issue, Judge Strickland took the unusual step of giving his thoughts on the motion; and I think it was very shrewd on his part. So let’s examine what he said:

He began by saying that he would get out a:

“Short order on the alleged double jeopardy violation.”

Well, let me tell you something, judges do not issue short orders granting motions to dismiss – they issue very long ones.

He then added that the Check Fraud case is:

Going to get resolved either by trial or plea before the Capital case.

Judges who are going to dismiss cases don’t say that either.

So reading between the lines, it seems clear how he will rule on the motion (and how meritorious he thinks it is) – MOTION DENIED (I bet he even cites State v. Sholl).

The Real Issue is Punishment

Now here is where Judge Strickland took an unusual, but shrewd step.

Not only did he basically deny the motion, but he essentially stated how he would sentence Casey Anthony if she was found guilty.

After stating “the real issue is punishment…” he went onto explain how he would sentence a “first time offender.” And to understand why this is so important, you must understand some basic Florida Sentencing Law.

Generally, a “judge may neither state nor imply alternative sentencing possibilities which hinge on future choices, such as the exercise of the defendant’s right to a trial.” And if the judge does imply a potential sentence, but subsequently imposes a harsher one, the sentence will be presumed to be vindictive and subject to reversal on appeal. See Longley v. State, 902 So. 2d 925 (Fla. 5th DCA 2005) (A case that involved yours truly!).

So with that general principle of law, lets examine what Judge Strickland said, which was:

He would deal with Casey Anthony the same way he would deal with anybody else who sits there with no priors, which would generally be jail time and frequently concurrent sentences.

Now Judge Strickland did not use the words consecutive, incarcerate, probation, or prison -  he said “jail and concurrent sentences.” And under Florida law these terms have distinct meanings.

Specifically, for a felony offense, a person can be sentenced to no more than 1 year in a county jail. See Section 922.051, Florida Statutes. If the cumulative sentence exceeds 1 year, the person must be sentenced to prison. See Section 775.08, Florida Statutes.

Additionally, he said concurrent sentences. This is also codified in Section 921.16, Florida Statutes, states:

A defendant convicted of two or more offenses charged in the same information, or [consolidated indictments] shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.

A final point of law that needs to remembered is that if he sentences her to jail, with no probation, he is required by law to adjudicate her guilty of each count. See Section 948.01(2), Florida Statutes. And this is all that the State really wants out of the Check Fraud case anyway.

So considering Casey Anthony has been in jail for excess of 1 year on the Check Fraud case, Judge Strickland basically told both parties that if convicted he will Adjudicate her Guilty and sentence her to concurrent sentences of 1 year in jail on each count, with credit for time served.

Meaning, a time served sentence – but a sentence that leaves her as a convicted felon on each count.

Now Why Did He Do This?

Well he did it because he is a fair judge, but also because he doesn’t want this Check Fraud case to be dragged out unnecessarily.

As I discussed in Casey Anthony: Insufficient Funds Part Deux, the guilt is overwhelming apparent and the defense only wants to delay the case to avoid the convictions.

However, by showing how he would sentence her (which is the best and most realistic sentence they could hope for) Judge Strickland has basically said, you no longer have any legitimate reason to drag this thing out because I am not going to slam her (remember, she was technically looking at up to 65 years in prison).

Moreover, if you listened carefully at the end of the hearing Judge Strickland said:

“Also by the way, in terms of pretrial we are still on for trial for January 25 at 10. We discussed that briefly in the back and I am going to await word from each of you and I am going to order an appropriate number of jurors next week.”

Well, here is a little local insight: you don’t “order an appropriate number of jurors” unless you first know where the jury is going to be selected from – Judge Strickland does.

So I think Judge Strickland is intending to attempt to pick the Check Fraud jury in Orlando – and only if they are unable to seat a jury will he move it somewhere else (same as was done in John Couey case).

I also surmise he made this intention known to both parties during the discussions that were made off the record in the back.

Additionally, by refusing to change the venue as Jose Baez so desperately wants, he is calling Jose Baez’s bluff – because everybody knows he does not really want to try the Check Fraud case in the first place, much less in Orlando.

So Mr. Baez can either:

1. Spend a month preparing for and conducting a spectacle of a trial that he will almost assuredly lose, or
2. He can take Judge Strickland’s olive branch and let this case go away quietly with a guaranteed sentence (and a guaranteed appeal if it is not imposed).

What would Sun Tzu do?

The Reality Check

The most interesting part of the hearing to the lay person was obviously the remarks given by Jeff Ashton in his rebuttal to Ms. Lyon’s argument to preclude the death penalty.

Not that I think he was reading my blog, but he said much more eloquently and succinctly exactly what I had eluded to in How the Grinch Stole Casey Anthony’s Christmas; which is the death penalty is always a potential penalty in a Capital murder case.

And many people were curious as to why he cited so little law in comparison to Ms. Lyon, well the answer is relatively simple – the law states precisely what he argued:

Section 782.04(1)(b), Florida Statutes. In all cases under [the Murder statute], the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.

Section 921.141, Florida Statutes.  Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.

(1) 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 as authorized by law.

But aside from his legal argument, which he could have rested on – he then went onto give the proverbial bitch slap to the defense and provided a much needed reality check as to how serious the state is about prosecuting Casey Anthony – and how strong they think their case is.

And as someone who has been watching this circus from the outside, I think it is about time.

Advantage: State