Well, its been a while since my last meaningful blog post. I was actually enjoying my retirement from the circus that is Casey Anthony and Foghorn Leghorn. But the volume of inquiries as to whether Zenaida Gonzalez’s case has any merit and whether Judge Munyon should dismiss the case has pushed me to reply.
My position is that the case has no merit and it should be dismissed. The primary reason I believe it has no merit is that Zenaida Gonzalez has failed to show that she is the actual person that Casey Anthony referred to; meaning that she is actually “Zenaida Fernandez Gonzalez.”
The other reason I believe the case should be dismissed is that Casey Anthony, or any witness or defendant in a criminal investigation, is entitled to Absolute Immunity from civil law suits for any statements made during a criminal investigation.
Just Another Keyser Söze
A key element of a defamation claim is that the person suing for defamation, was actually the person being defamed.
So in the defamation case, Zenaida Gonzalez must prove by “clear and convincing” evidence that she was the person Casey Anthony was referring to when Casey claimed “Zenaida Fernandez Gonzalez” kidnapped Caylee.
“Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the question in issue.
In this case, it seems highly unlikely that Zenaida Gonzalez could prove, without hesitation, that Casey Anthony was speaking of her, and not some fictional person, when she told law enforcement that “Zenaida Fernandez Gonzalez” was the person who kidnapped her child. Moreover, when pressed, Casey Anthony never described any person who remotely resembled Zenaida Gonzalez.
Which leaves us with the only piece of connecting information, which is that Casey Anthony apparently visited Sawgrass Apartments, the same apartment complex that Zenaida Gonzalez had visited previously.
But this begs the question, even if Casey Anthony did see Zenaida Gonzalez’s name, she did not use that name and instead used the specific name Zenaida Fernandez Gonzalez. And without any other concrete information to link Casey to Zenaida Gonzalez, it seems clear that Zenaida Fernandez Gonzalez is just another Keyser Söze.
The greatest trick the She-Devil ever pulled was convincing the jury she was Not Guilty.
Absolute Immunity versus Qualified Immunity
But even if Casey Anthony was actually claiming that Zenaida Gonzalez is the one who kidnapped Caylee, it is my belief that she is still entitled to dismissal of the case based upon the doctrine of Absolute Immunity.
This is because Casey Anthony’s statements were made to investigators during an ongoing criminal investigation; not to initiate a new investigation. And statements made to investigators during an ongoing criminal investigation are privileged and a person cannot be sued for their statements to law enforcement officers during an ongoing criminal investigation – no matter how scandalous or false they are.
Doctrine of Absolute Immunity
The doctrine states “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior … so long as the act has some relation to the proceeding.” Moreover, “The falsity or maliciousness of the alleged statements is irrelevant to this analysis.” Delmonico v. Traynor, 50 So. 3d 4 (Fla. 4th DCA 2010)
“Absolute immunity extends to the parties, judges, witnesses, and counsel involved and related to the legal proceedings. Participants in legal proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.” Id.
Doctrine of Qualified Immunity
However, I am not sure Judge Munyon will revisit the issue of whether Casey Anthony is entitled to Absolute Immunity because the prior judge, Judge Rodriguez, ruled that Casey Anthony was only entitled to qualified immunity, which is a question for the jury to decide, not a judge.
The doctrine of qualified immunity holds that “statements made by a private individual to an investigating officer or a prosecutor prior to the filing of a criminal charges are privileged only if it is proven the statements are false and made with actual malice.” Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992).
But there are No Damages?
A final issue that has been brought up is whether Zenaida Gonzalez’s case will be dismissed if she is unable to prove actual monetary damages.
The answer is no; even if a person cannot prove actual money damages due to defamatory statements, they are still entitled to have the jury make a determination of whether they are entitled to nominal damages. See Myers v. Russo, 3 So. 3d 411 (Fla. 2d DCA 2009).
One other thing that might interest some of you, is how Jose Baez’s opening statement can be used against Casey Anthony in her civil trial.
The answer is that since Jose Baez was Casey Anthony’s “agent” and he gave very specific statements that could only have come from Casey Anthony, and not from inferences based on other witnesses statements, the opening statement is admissible against Casey Anthony, as if she has uttered it herself, as an “Admission by a Party Opponent.”
The leading case on this issue is United States v. McKeon, 738 F. 2d 26 (US 2nd Cir. 1984), which held that a criminal defendant’s attorney’s opening in one trial could be introduced against the same defendant in the retrial if the defendant adopted a defense that was incompatible with the original opening. This same rule has been applied to prosecutor’s opening statements. And has been applied to using criminal opening statements in subsequently related civil law suits. (See The Use of an Admission by Party-Opponent to Hoist A Prosecutor By His Own Words.)
The underlying principle behind this rule is that no party ought be able to evade the truth by changing their statements merely because it may suit their theory of the case it stands at that time.