Of Rats and Women

Well my Unfaithful, as they say – the plot thickens…

How apropos a statement, considering we have learned that not one, but three women have come forward claiming to have overheard incriminating statements made by Casey Anthony – while they too were in jail (Is there is no honor among thieves!).

Let us refer to these women as Rats and the evidence they would provide as Droppings.

Interestingly, little discussion has really been given to the legal and practical impact the Rat Droppings provide. But on closer examination, I think you will find that these Rats are a double edged sword for the prosecution.

The Facts

While incarcerated in jail, three Rats claim to have overheard or obtained incriminating statements made by Casey Anthony. These Rats are:

• Robyn Adams (Rat 1)
• Maya Derkovic (Rat 2)
• Cecelia Benhaida (Rat 3)

But most interestingly, the letters and statements were facilitated by an Orange County Corrections Officer – Shannon Hernandez (the Rat Herder).

The Law

As some of you may know, the Sixth Amendment prohibits law enforcement officers from interrogating a defendant after his or her indictment without counsel being present. See Massiah v. United States, 377 U.S. 201 (1964). Consequently, statements “deliberately elicited” from a defendant after an Indictment has been handed down are rendered inadmissible and cannot be used against the defendant at trial.

But what many of you might not have known is that this rule is applied in much less obvious situations – and may be satisfied by less direct types of questioning.

One of these situations is the use of the jailhouse snitch – more commonly known as a “Rat.” See Rolling v. State, 695 So. 2d 278, 290 (Fla. 1997) (Police can’t use paid informants to elicit incriminating statements, police can’t place radio transmitter on co-defendant.).

The Passive versus Active Analysis

Nonetheless, this rule does have its limits and focuses not on whether the statements were simply made to an inmate who had something to gain by obtaining them (i.e. a Rat), but on whether Law Enforcements actively encouraged the Rat to obtain the statements or actively assisted the Rat in obtaining the statements. See Maine v. Moulton, 474 U.S. 159 (1985) (A violation of a defendant’s right to counsel turns on whether the confession was obtained through the active efforts of law enforcement or whether it came to them passively.)

The Real Legal Question: Is the Rat Herder a Duck?

This brings us to the real legal question in this case: Will the Rat Herder, Orange County Correctional Officer Shannon Hernandez, be considered a state-agent for purposes of determining Active involvement on the part of law enforcement.

As a defense attorney, the answer to me is obvious – if it quacks like a duck, walks like a duck, and looks like a duck – it is a duck.

But the State will obviously argue that although a duck, she is not part of the State’s flock of ducks. Rather the State will argue that Correction Officer Hernandez was a rogue duck acting without state sanction or authority solely for personal purposes.

On this particular issue there does not seem to be any case directly on point, but if recent United States Supreme Court jurisprudence is any indicator, Judge Strickland would focus his analysis on whether suppressing the rat droppings would prevent future abuse or similar “rogue” actions by law enforcement officers in other cases. See Hudson v. Michigan, 547 U.S. 586 (2006) (U.S. Supreme Court opinion stating that when the exclusionary rule is to be applied, it should be applied as a sanction against law enforcement officers to prevent a future abuse by law enforcement officers.)

Quack, Quack, Quack…

Ultimately, I believe that if Judge Strickland is of the opinion that suppressing the evidence will prevent corrections officers from violating jail policies and engaging in questionable behavior in future high-profile cases (something Orange County has had a lot of lately), then I believe he will find this Duck is a State Duck.

Also, it is worth noting that we do not know the true relationship of Robyn Adams and Maya Derkovic (ironically, both of whom were arrested because they too were setup by other rats). And if anyone believes for a second that Maya Derkovic did not interpret Detective Brian Cross statement of “I bet you can get the truth out of her” as an implied directive, then you might want to read United States v. Henry, 447 U.S. 264 (1980) (Police conduct met the “deliberately elicited” standard where law enforcement officers contacted a paid informant in jail with the defendant and advised the informant to be alert to any statements made by federal prisoners, but not to initiate any conversations or question the defendant regarding his offense.)

A Brief Interlude…

I have taken a lot of flak lately for my criticism of Yuri Melich, the lead investigator in this case. (I mean , what detective doesn’t actively BLOG about an ongoing murder investigation – See WFTV: Detective Told To Stop Blogging About Case.)

Most recently I faulted him for reporting that Robyn Adams claimed Casey Anthony admitted to using Chloroform. This is in contrast to FDLE’s interview where Robyn Adams denied that Casey Anthony admitted using chloroform – rather they report Casey Anthony admitted to “knocking out” Caylee so she could put her to sleep.

So what I suspect happened is Detective Melich engaged in a little leading questioning, something like this.

• Q: Did Casey Anthony ever mention something that would be consistent with using Chloroform to sedate Caylee.
• A: Yes.
• Q: Can you explain?
• A: Casey said she used to “knock out” Caylee, whatever that means.
• Q: Aha!

As you can see from this example, the questioning implies the answer – the very definition of a leading question.

So even though Robyn Adams never specifically stated that Casey Anthony used Chloroform, the implication that Melich lets linger is that Adams did say that.

Dangerous examples of this type of editorializing can just as easily be found in the media covering this case.

Take WFTV for example, they were in such a hurry to “break” the jailhouse letter story that they posted a false headline on their website (likely because of Melich’s misleading report), but then miraculously the headline changes once they ACTUALLY read the letters and saw there was no mention.

• WFTV – Jail Letters: Casey Says She Used Chloroform On Caylee
• WFTV – Inmate: Chloroform Was Used To Put Caylee To Sleep

Think of how prejudicial this is to a person getting a fair trial, when a news agency reports false headlines about a person facing the death penalty?

Had Melich actually clarified this issue with Robyn Adams, it might never have been thrown into the media firestorm that Casey admitted to chloroform – thus allowing WFTV to further taint the potential jury pool.

A Final Note About Melich.

You may remember back when he stuck Casey Anthony in the medical ward with the specific intent that her reactions to news reports that a body was found in the woods near her home be videotaped – this is likely just as inadmissible as the Rat droppings that he is currently excited about.

You see, the Sixth Amendment (and the Fifth Amendment) protect you from being compelled to give testimonial evidence, not just statements. And Casey Anthony’s reaction to news reports (if even relevant to showing a consciousness of guilt, as opposed to a distraught mother) is considered a testimonial act under the law. And just like testimonial statements, testimonial acts are inadmissible when obtained by law enforcement in violation of the Fifth or Sixth Amendments. See US v. Green, 272 F. 3d 748 (U.S. 5th Cir. 2001).

The Ultimate Irony of Ironies

I would like to leave my unfaithful with this little tidbit to chew on, the Rat Droppings could be the best thing to happen to Casey Anthony since Andrea Lyons. Why you ask, good question.

You see, up until this point, Casey Anthony was the only person who could establish an “Accidental Theory” that Caylee was sedated. so Casey could go out and party. but when she returned Caylee had died in her sleep. Upon discovering this, Casey Anthony. not knowing what to do, freaks out, does her best to cover it up (Ugly Coping), and ultimately concocts the Zanny the Nanny story.

The reason – up to this point – was that only Casey Anthony could establish the Accidental Theory, as there was nobody else who would testify to knowing that Casey would sedate Caylee in any way (Xanax or Chloroform).

But now, if the State were to try and introduce the Rat Droppings as incriminating evidence, the defense would be able to use the Rat Droppings as evidence supporting the Accidental Theory WITHOUT Casey Anthony having to testify to the predicate facts.

From there, it would not take to much of a wordsmith to weave a compelling closing argument that the State’s theory is more compatible with a young mother who may have acted negligently in sedating her child so she could go out, but that she never intended to kill her daughter. And her post death actions are consistent with Ugly Coping – not a consciousness of guilty.

Finally, before all the haters jump up and down – I am not saying this approach is airtight, only that under the right circumstances it could work.

Correction and Deletion Note: It was brought to my attention that the State had in fact charged Aggravated Manslaughter of a Child, which I had either forgotten or overlooked. As a result I have removed two paragraphs discussing the effect of not charging a criminally negligent based crime – which the state in fact did. Thank you to the reader who pointed this out to me.

I may blog about this in more detail in the future – but I make no promises.