May 2011 Update: After reading this two year old post, please note Judge Perry’s concern about whether the hearsay statements Mr. Baez elicited were:
- Exculpatory statements (meaning statements made by Casey that were meant to clear Casey of guilt), and
- Whether the hearsay statements of Casey pertained to collateral matters, meaning statements not directly related to the murder.
As Judge Perry pointed out, under Huggins, only truly exculpatory hearsay statements can be impeached with prior convictions. Considering most of the hearsay statements elicited were before she had been arrested, it would be hard for them to have been exculpatory.
Also, most of the hearsay statements were to collateral matters. As Judge Perry pointed out, if the statements dealt primarily with collateral matters, they still could not be impeached as the prejudice to Casey Anthony (which Judge Perry described as “devastating”) outweighed the probative value to the State in impeaching collateral matters.
My gut feeling is that Jose Baez did not go far enough over the line and because the issue is to close to call, Judge Perry err on the side of caution and will not let the convictions in because of his fear they would result in an automatic reversal on appeal.
Original December 2009 Post Follows:
As a break from my recent juvenile rants about other lawyers’ cluelessness, I am going to address a more serious legal issue; the significance of Casey Anthony’s check fraud case in relation to her First Degree Murder case.
This will be the first of a two part series and this first post will discuss why the State would want to try the Check Fraud case before the First Degree Murder case. The second post will discuss how the defense will likely try to avoid trying the Check Fraud case first.
As a refresher, in her Check Fraud case, Casey Anthony is charged with thirteen separate felonies that also happen to be crimes of dishonesty. Now in relation to the Murder case, the Check Fraud case would seem insignificant.
However, it is the 13 separate convictions that the Check Fraud case provides which is the true strategic prize for use in the Murder case. But why?
It’s the Convictions Stupid
As you probably guessed, under Florida law, a person can be impeached with proof of a prior conviction for a felony or a crime of “dishonesty or false statement.” This rule is codified in Section 90.610, Florida Statutes, which states:.
90.610 Conviction of certain crimes as impeachment.–
(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment…
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. (See Section 775.08, Florida Statutes.)
As a matter of fact, in some jurisdictions, a misdemeanor can be punishable by up to 3 years imprisonment (I use imprisonment generically). So rather than look at the label of the crime (felony or misdemeanor), Florida looks at the seriousness of the crime to determine whether it is worthy of attacking a person’s credibility and they only ask four questions about the crime:
- Was the crime punishable by death?
- Was the crime punishable by more than 1 year imprisonment?
- Was the crime one that involved dishonesty?
- Was the crime one that involved a false statement?
If the answer to any of those four questions is yes, then the crime might be admissible as impeachment evidence against a person at trial. That is right, it might be admissible – because before a person can be impeached with a prior conviction, the person must have both been convicted (there is that darn word again) of the crime and the person must “testify.”
A Conviction by any Other Name is not a Conviction
At this point you have probably caught on to my highlighting of the word conviction and convicted. Well that is for good reason; because in Florida, a person is not convicted just because the plead guilty or are found guilty by a jury. Rather, when a person admits their guilt or is found guilty, a judge “may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt” pending completion of a probationary period. (See Section 948.01(2), Florida Statutes.)
When the judge does the latter (usually for first time offenders), we call that Withholding Adjudication or giving a Withhold. And a Withhold is important for many reasons, such as (1) being a condition precedent to having your charge sealed and expunged, (2) allowing you to maintain eligibility for certain state programs and licenses, but most importantly to our discussion, (3) it does not act as a conviction for impeachment purposes. See State v. McFadden, 772 So. 2d 1209 (Fla. 2000) Rather, to act as a conviction for impeachment purposes, the court must specifically “adjudge the person guilty.”
And if you are paying attention, that means that even if Casey Anthony pleads guilty or is found guilty of the 13 separate felony crimes, Judge Strickland could still “stay and withhold the adjudication of guilt,” because in the eyes of the law, she would technically be a first time offender.
Do I think he will do that, no I do not and I will discuss that in part two of this blog series. So for now, we will assume that if she is found guilty, she will be adjudicated guilty and thus convicted for impeachment purposes.
However, I bring that up to highlight what the real prize in this fight is and why the State wants the benefit of being able to impeach Casey Anthony with 13 felony convictions if she “testifies”.
The Right to Remain Silent
Now trials require evidence, and the jury can only consider the evidence that is presented to them. So even if Casey Anthony was convicted of the 13 felony offenses – Baez could prevent the jury from ever knowing Casey Anthony was a convicted felon 13 times over by allowing her to exercise her Fifth Amendment Right to Remain Silent – by not having her testify. If only the State could get around this pesky constitutional right she is invoking – if only…
Once Upon a Time there was Huggins I
Once upon a time there was a prosecutor named Jeff Ashton (wow, what a coinkydink!) who prosecuted a man by the name of John Huggins near a Magical Kingdom in La Florida for the first-degree murder, carjacking, kidnapping, and robbery of a woman by the name of Carla Larson. Although the case was based entirely on circumstantial evidence, Huggins was found guilty as charged on all counts.
But wait, Huggins was represented by none other than the Honorable Robert Wesley (See Bill Sheaffer: Saying Thanks to a Local Hero) and Mr. Wesley realized not long after the guilt phase of the trial that the dastardly prosecutor Jeff Ashton “suppressed favorable evidence.” See State v. Huggins, 788 So. 2d 238 (Fla. 2001). And because of this dastardly act, the Chief Judge of the Ninth Judicial Circuit, Belvin Perry, granted Mr. Huggins request for a new trial, noting:
[I]t is not the Court’s intent or wish to punish society or the family of Carla Larson. This Court has a sworn obligation to follow the law. The principles of Brady v. Maryland are well known to all lawyers who practice criminal law and remedies for its violation are well known. While a defendant’s right to a fair trial is of the utmost importance in our system of justice, particularly when the ultimate punishment may be imposed, the Court is mindful of the heavy burden it places on Carla Larson’s family as well as society. But in the end, society wins not only when the guilty are convicted but when criminal trials are fair.
And Then There was Huggins II
And so Huggins went on trial again, prosecuted by none other than Jeff Ashton and defended by the Honorable Robert Wesley. But the second time around Mr. Ashton had an Ace up his sleeve.
You see, Mr. Ashton had originally obtained a court order to collect a pubic hair sample from Huggins to see if the hair sample matched hair found at the crime scene. However when the Crime Scene Investigator went to collect the sample, Huggins’ entire pubic region had been shaved – thus thwarting the ability to collect a sample.
So during their case in chief, the State presented evidence suggesting Huggins’ shaved his public region because he had a guilty conscious and knew the hair sample would match – thus directly connecting him to the crime.
The defense attempted to rebut this claim by calling a corrections officer who testified “that outbreaks of crab lice would occur, and that one method of addressing the problem would be for an inmate to shave.”
Unfortunately for Huggins, his defense attorney went one question too far and asked the corrections officer whether Huggins had ever complained of lice – thus implying that Huggins had an innocent motive for shaving his public region. Mr. Ashton objected on hearsay grounds and the court sustained his objection (agreed with him).
However, the defense pressed further and the corrections officer was finally allowed to testify that he knew Huggins had shaved his pubic region and by implication, asserted it was because of the lice outbreak.
At this point, you are probably wondering what in the world does this story have to do with Casey Anthony’s Check Fraud Case – and I tell you it has everything to do with her case!
Because even though Huggins never testified, Mr. Ashton was able to introduce Huggins’ NINE FELONY CONVICTIONS pursuant to Section 90.806, Florida Statutes, which permits;
“The introduction of a defendant’s felony convictions when the defendant elicits his or her own exculpatory, hearsay statement through another witness at trial.” See Huggins v. State, 889 So. 2d 743, 756 (Fla. 2004).
The Florida Supreme Court reasoned that “a defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions” and Mr. Ashton did just that.
So the court, at Mr. Ashton’s request, took judicial notice of Huggins’ nine felony convictions, entered each of the nine felony conviction dispositions into evidence, and instructed the jury that “the evidence of John Huggins’ nine felony convictions should be considered by you … in weighing the credibility of the statements attributed to John Huggins.” See Florida Standard Jury Instruction 2.5.
Needless to say, John Huggins was found guilty as charged and is currently on death row, sentenced to die.
What Does All of This Mean?
It means that even if Casey does not testify, she can still be impeached with the 13 felony convictions obtained from the Check Fraud case if Baez attempts to offer her “testimony.”
So, if any witness (but especially Cindy, George, or Lee Anthony) is called to testify by either party and the defense attempts to elicit exculpatory statements attributable to Casey Anthony, the State can impeach the exculpatory statements attributed to Casey Anthony by introducing her 13 felony convictions and asking Judge Strickland to read Florida Standard Jury Instruction 2.5 to the jury at the same time:
“The evidence of Casey Anthony’s thirteen felony convictions should be considered by you … in weighing the credibility of the statements attributed to Casey Anthony.”
So even if Casey Anthony does not testify – she may still “testify,” in which case I suspect a suspiciously named prosecutor will be waiting with 13 crisp copies of felony convictions…
I realize I glossed over the fact that Casey Anthony’s thirteen Check Fraud charges also happen to be crimes of dishonesty or false statement; so you are wondering if the State could have the judge refer to them as both felonies and crimes of dishonesty of false statement. Well, fortunately for Ms. Anthony, “when a witness has been convicted of a felony, the other party may not inquire further into whether the felony involved dishonesty or false statement because doing so ‘would have the impermissible and unintended effect of elevating certain felonies over others.'” See Atis v. State 2D07-5924 (Fla. 2d DCA 2009).
So stay tuned for part two of this blog series, where I will discuss the seemingly infinite ways in which the defense will try to delay the Check Fraud case until after the Murder case…