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
.jpg)
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
.jpg)
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.
I’m hoping to unleash the lawyers, to weigh in on this breaking news regarding Tot Mom’s parents and their attorney being subpoenaed for the hearing on Dec. 11th!! In your expert opinion, which side has subpoenaed them and in regards to which motion? Okay, I’ve watched too much Nancy Grace but I am serious about my question.
I’ve racked my brain and guess that maybe it relates to the hardship they’re suffering from not being able to visit their daughter without video being immediately released in the media. But then why include Brad Conway in the subpoena?
I don’t see a motion that relates to Dominic Casey on the docket, but thought maybe it relates to who he is legitimately working for and when he was retained. It’s my understanding that a PI does not have any privilege other then attorney client work product, so he would have to be working for an attorney not just George and Cindy to be covered. Was he retained by Brad Conway prior to Dec. 11th which I thought was the day Conway was retained by the Anthonys. I really don’t think so. Care to share your thoughts?
Well, the clerk’s docket does not show courtesy copies of the subpoenas having been filed, so I question whether they were actually subpoenaed to testify.
The reason being is that a subpoena is not a prerequisite to being allowed to testify; rather, a subpoena is only required to compel a reluctant or uncooperative witness to testify.
This means that Jose Baez could verbally request their agreement to testify – and they say yes.
So, the reports of George, Cindy, and Brad being subpoenaed could actually just be reporters inferring they must have been subpoenaed because Baez said they would be testifying.
I suspect Baez wants them to testify about how humiliating/traumatic their interviews being shown is on them, etc.
Interesting! No sign of subpoenas, hmmm, I wonder if the state recollects all the set up questions the parents were using those same videos to help their kidnap/threats/fearful Casey who would lie, steal, do anything to get her child back, scenario along. Thanks for checking for us!!
Great question Nosy! Can’t wait to hear Mr. Hornsby’s take on these subpoenas.
Subpoenaed by State of Defense?
Richard~~I read your bio, very impressive. Actually I was being nosey and wanted to find out your age and your marital status. I figured, if you have a bethrothed, she is dragging you around the malls Christmas shopping and you will be too busy to come in here and answer our very pertinent questions. Now do you believe that is the real reason I was being a snoopysleuth?
We do have some hungry grizzly bears up here in the north. Well they are in hiberation now but in the spring, I would love to see you wrestle one of those.
Dec 11th is going to be a busy day for Stan Strickland. I can already see his arms flailing like he would like to fly out of there. I hope you can pop in and give us your take on why George, Cindy and Conway has to testify to whatever. Maybe you can shed some light on the ‘whatever.’ TIA
Richard I hope you are right.
On another subject I would have more respect and you would have more credibility with many if you would offer Bill Sheaffer an honest sincere public apology. It seems as though you have no respect for your elders and at the very least it makes you look desperate and tacky. I think it would earn you a lot of Boy Scout points if you would do so.
Like almost everyone I am glad to have heard the real Andrea Lyon. I had heard about her before but it’s not the same as hearing it for yourself. What a shame. I weep for America.
Do you think that Judge Strickland is aware that “the Florida Supreme Court just issued Jackson v. State, No. SC07-2008 (Fla. 2009)?” I ask this because he has made a few decisions that many thought he would not make and I’m starting to wonder if he stays current on the laws. He needs to grab this case by the balls and establish at least the semblance of a respected judiciary proceedings. I mean, good grief! Act like the judge and reign this thing in. Please? Doesn’t he realize we, the taxpayers of Florida have heard and seen enough?
And then to see Georgette prancing in with a beach t-shirt on and sunglasses with Cindy chomping on her gum, some psychotic blogger asking to meet the Judge after court? What next? Maybe they’ll set up a cappachino bar near the back of the room and schedule in some coffee breaks and a nice meet & greet? Everyone loves Judge Strickland but that’s not the point. The point is the defense has turned this into a horse & pony show and the Judge needs to find a way to stop it.
I would be more than happy to offer Bill Sheaffer a sincere and honest apology when he admits he lied and deceived to obtain the seminar audio, when he admits he has misstated the law on more than one occasion (or he can just admit he doesn’t know the law), and when he admits he lied in his “response” to the sentinel TV guy about how he is a professional and has been truthful to his viewers….
I mean, I am not asking for a lot in exchange for a sincere and honest apology – just the truth.
Richard,
I hope that you, and Andrea Lyon, Baez and other defense attys. are enjoying your moments of “sweet revenge.” As you know, Mr. Shaeffer is not responding to his blog at this time, nor is he in the media. Actually, you and Ms. Lyons are very similar in many ways, IMO.
Personally, I think the Casey Anthony trial is dragging on far too long. The FACTS are all in place, as far as I know. I think this case should get moving, despite Lyon’s desire for self promotion, and the fact that she wants to sell her “sef-serving” book.
Frankly, I think we will be hearing more from Mr. Shaeffer fairly soon. I also think that he is not above apologizing…just not on demand.
Andrea Lyons GREATLY underestimates the people of Orlando! I have NEVER heard of a reasonable person brag on themselves like she does. (I mean quoating her IQ, and being a “Pioneer” etc…) I find her very distasteful, and feel that she is going to fall on her a$$ when this case goes to trial. JMO She strikes me as the type of atty. that would try to get pedophiles, and serial killers paroled. Her type scares the hell out of me!
You should attend some continuing legal education seminars more often, basically all they are is a bunch of lawyers talking about how good they are, how much smarter they are than their opponent, and how right they are.
As for Sheaffer, he dug his own hole. It’s not my fault I called him out AND was right.
Iseeyou the fact that you felt the need to call George Anthony Georgette would also be considered tacky to many. You aren’t the first and you won’t be the last to resort to name calling to get your point across. I’ve done it myself as I’ve followed tis case. It does however, undermine your credibility, especially when you’re chastising someone else for showing a lack of respect to others.
That being said, I’m interested in your opinions on the Jackson vs State case and in what ways it relates to the Casey Anthony case. I did google it but wasn’t sure exactly what you’re referring to. Would you care to elaborate for those of us who are interested, but have limited criminal law knowledge?
NoseyParker, you’re right. I am a real jerk. Not only was I rude, I lied about the psychotic blogger. I know for a fact by listening to the raw footage of the hearing that it was clear the judge asked to see him, not the other way around. Now, I want to take that greased gavel home with me. All alone. Me & the gavel. Oh boy.
Sorry, I was the jerk.
Mr. Hornsby, with all due respect, tearing down one person to make yourself appear better is not very becoming. IMO It gives out the impression that the one doing the tearing down, either has a self esteem problem or a narcissistic problem. Again JMO.
I am hard pressed to understand how a good and busy attorney has the time to post on the internet all day long and into the late night. But alas again, JMO.
My personal opinion on the Anthony case is to let it play out in court not on internet blogs. The defense will throw out tons of motions, to delay and try to confuse everyone. It is basically standard procedure, especially when they are dealing with a guilty client.
The defense, despite all their lip service will never get around the waiting 31 days before admitting to Casey’s mother that Caylee was missing. They will never get around the death smell in the car that both George and Cindy both admitted to people on numerous occasions at the onset, before they devised the rotting pizza story, which quickly became a laughable theory.
One thing is for certain, despite all the sleuthing and blogging from many sources, ie “so called experts”, nothing can truly be 100 per cent predicted until the case actually begins. It really doesn’t matter what anyone second guesses before the fact, what will matter in the end run is what the 12 jurors think and how they perceive the evidence presented during trial .
The entire Anthony family are very unlikeable people and no one person will be able to change that, ie the old saying “You can’t make a silk purse out of a sows ear” and clearly the entire Anthony family give the appearance of being the sows ear.
Just one unimportant persons opinion. (mine) Thank you for letting me vent.
Can’t find any direct reference to the subpoena’s for the Anthony’s and for Brad Conway. Second hand sources, except for some news sites, anyone have a source? Docstoc does not have anything uploaded for this yet.
Has the family done right by their daughter Casey, by taking solid and seemingly unmoveable position that ‘she is innocent’? After reading what appears to be a post by Cindy Anthony on wdbo board, they will fight this if it means ‘bankrupting the State of Florida’. They will sue the likes of Nancy Grace, for her contribution to a poisoned jury pool (for every penny they have).
It will never change, it seems, even if Casey pleads to the child’s demise, because it will only be a plea to save her from being strapped down and poisoned by the state. No one will ever take responsibility, never Casey– will this young girl be Cindy’s girl martyr, the 21st Century’s Joan of Arc? That’s the impression that ‘whiteknight’ (whomever that Casey supporter is) gives.
Innocent or nothing, even if a plea, she will do it to save her parents from her death. (or better yet, be the new age Joan– just that her pole is a stripper pole)
KI:
IMO the Anthonys have made a huge mistake by continueing to “insist that Casey is innocent.” Since they first smelled the decomp in the car I think they have known the truth, and that’s when they first started protecting her. They did the best they could to clean out the car, washed the slacks that Casey left in the back seat, gave LE the wrong brush, and pretended to believe the Zanny story even to the point of saying “they had her phone number.” The lies are going to come back and slap them in te face. Had they stayed away from the media, and just kept quiet, they would have saved themselves alot of unneccessary pain and suffering. I think that’s why Casey got away with so many things that she did, the lying and stealing, going to wild parties etc…they chose to “look the other way.” I feel that they loved little Caylee; but they loved Casey more. They knew they ccouldn’t bring Caylee back so they chose to protect and try to save Casey. No matter what they say or do, or who they try to shift the blame to (Kronk, Jesse Grund etc…) it not going to work. They, and the great Lyons, Bozo, and the dream team, have all UNDERESTIMATED the people of Florida! Justice for little Caylee WILL BE SERVED!
Doesn’t it seem as if the defense already assumes Casey as tried and convicted, with so much public emphasis on the DP, this might work against them. (of course they need to prepare for mitigation, but this much emphasis almost works against mitigation– it’s all talk as if she’s already convicted, so who is really making the jury pool think she actually may be guilty, it could be Casey’s own defense, and own ‘whiteknight’ making so much of the anti-DP argument, that one might think this is the best they can do– get the whole state to reverse it’s laws. That will come a bit late for the ‘innocent Ms. Casey’.
KI: Remember Dec.11 the Defense is going to try and have the DP taken off the table for “lack of evidence.” That’s why they are throwing Roy Kronk, and anyone else they can ome up with, under the bus. They are desperately trying to plant that “seed of doubt” in the juror’s mind, no matter who it hurts! IMO Kronk’s ex-wives are shameful. Guess it’s true, “MONEY TALKS.” The Anthonys are a prime example. Little Caylee has become nothing more than a meal ticket for them. This tiny little child was brutally slaughtered and duct taped while looking into the eyes of her vicious murderer! How quickly the Anthonys appear to have forgotten! How can they say they “loved Caylee” when their actions clearly say otherwise??
Mr Hornsby, I’m going to guess, if it’s true the anthony’s are going to testify on the 11th, that Baez is the one asking for the testimony.
I’m almost certain he will claim, along with conway, that it is a hardship, embarassing, and an invasion of their privacy to have calls, and visits monitored and released to the public.
I can’t think of anything else they can testify to at this point.
What do you think?
Thanks
I agree with your assessment.
ps were is part 2 of the fraud blog?
The state wants them there. D. Casey and his lawyer as well. I think that state will want to lay the foundation for their depo on the 16th with all the players in the room and putting theAnthony’s under oath! Baez has nothing to do with it!
I Don’t think the state asked them to testify. I think Baez did. No one reported that subpoenas were ever really issued.
I doubt the state needs their testimony at this point.
I hope Mr. Hornsby will clarify.