1. After reading the comments at The JB Mission, it appears that Baez brought up the issue of false or misleading evidence with Judge Perry right before Linda Burdick gave her closing. She basically tells him to pound sand.
2. The State Attorney’s Office issued a press release today saying that since Baez knew about the problem (apparently from his own deduction, not State’s correction) that they did nothing wrong.

It appears the Orange County Sheriff’s Office intentionally suppressed exculpatory evidence that directly contradicted the State Attorney’s theory of premeditated murder in their attempt to have Casey convicted of First Degree Murder.

Please read:

• The Hinky Meter: Caylee Anthony case: 84 Visits or Not?…and why it matters
• CacheBack Creator and State Expert Witness Issues Press Release Revealing Government Misconduct

Law Enforcement’s Duty to Disclose Favorable Evidence

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that suppression of evidence favorable to an accused upon request violates due process. Subsequently, in Giglio v. United States, 405 U.S. 150 (1972) and United States v. Bagley, 473 U.S. 667 (1985), the Court made clear that all impeachment evidence falls within the Brady rule.

Finally, in Kyles v. Whitney, 514 U.S. 419 (1995), the United States Supreme Court not only reaffirmed that both exculpatory and impeachment evidence fall within the Brady rule. The Court also reiterated “… that the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.”

But my question is how do we know the State Attorney’s Office didn’t know that the computer search was flawed. If they did, they not only had a duty to disclose it to the defense, but a duty to disclose it to the court, and more than likely a duty to correct it in front of the jury.

This Ain’t the State’s First Rodeo Either

And let’s not forget, this is not the first case ASA Jeff Ashton was involved in where exculpatory evidence was suppressed. some of you may remember my post in Casey Anthony: Insufficient Funds (Part Uno), where I explained about a trial conducted by the Elected Public Defender Robert Wesley:

—-

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, theChief 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.

An Ironic Twist

The irony of all ironies is that it may be Casey Anthony who has the best law suit to bring after her acquittal.

A law suit against the Orange County Sheriff’s Office and the State Attorney’s Office for violating her civil rights by suppressing favorable evidence so they could rely on flawed evidence to try and convict her of First Degree Murder.

The Check Fraud Case

On January 25, 2010 Casey Anthony pled guilty to 13 counts of check fraud. As a result of her guilty plea, the Honorable Judge Stan Strickland adjudicated her guilty on six of the felonies, withheld adjudication of guilt on the other seven, and sentenced her to 412 days in jail as credit for the time she previously served to be followed by one year of supervised probation.

The 412 days was based upon the amount of time between her arrest and the date of her plea.

Importantly, as will be explained, Ms. Anthony has yet to be released from the Orange County Jail to actually serve her one year of probation, as she was also being held in the Orange County Jail on another, more serious case.

The More Serious Case

On July 5, 2011 Ms. Anthony was acquitted of the most serious crimes she was charged with and was instead, only found guilty of four First Degree Misdemeanor counts of Lying to a Law Enforcement Officer during the Course of an Investigation. Based upon the jury’s verdict, the maximum sentence Ms. Anthony could receive was four years in the Orange County Jail and $4,000 in fines. The Very Honorable Judge Belvin Perry set off sentencing until July 7, 2011.

A Serious Sentence for a Serious Case

On July 7, 2011 The Very Honorable Judge Belvin Perry sentenced Ms. Anthony to consecutive sentences of one year in the county jail with credit for 1,043 days already served in the Orange County Jail awaiting trial. In addition, he imposed a fine of $1,000 on each count. The resulting sentence totaled four years in the Orange County Jail and $4,000 in fines, which on paper, looks to be the maximum possible sentence The Very Honorable Judge Belvin Perry could have handed down.

But Casey, We Were Just Getting to Know You!

About an hour later, Orange County Corrections announced that after taking into account the 1,043 days credit for time served, as well as good time and gain time, Ms. Anthony would be released from the Orange County Jail by Sunday, July 17, 2011.

Later that same day, Orange County Sheriff Jerry Demings released a statement haling the Very Honorable “Judge Belvin Perry, Jr. for giving the maximum sentence allowable under the law.”

And to Think, We Could Have Spent More Time Together…

There is only one problem, it was not the maximum sentence allowable under the law.

Rather, the maximum sentence allowable under the law would have been for The Very Honorable Judge Belvin Perry to have sentenced Ms. Anthony to consecutive sentences of one year in the county jail with credit for 631 days already served in the Orange County Jail awaiting trial.

But how can that be you say! She has been in jail for 1,043 days, not 631?

Under Florida law, a judge is not required to give a defendant credit for time previously served on unrelated sentences while awaiting trial. See Jackson v. State, 23 So. 3d 853 (Fla. 2d DCA 2009) (“Where a defendant is held to answer for numerous charges, he is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition of multiple charges or cases.”); See also Hardenbrook v. State, 953 So. 2d 717 (Fla. 1st DCA 2007).

What this means is that the Very Honorable Judge Belvin Perry had the authority to deny Ms. Anthony credit for 412 of the 1,043 days he credited her with previously serving, as that time had been credited to her already by the Honorable Stan Strickland on the Check Fraud Charges.

If the Very Honorable Judge Belvin Perry had exercised his judicial discretion to do so, Ms. Anthony would likely be spending at least 9 more months in the Orange County Jail after taking into account good time and gain time.

There Are No Do-Overs

And before you ask, I am sorry to say it is too late for the State to request a rehearing. The case law is crystal clear; once a sentence is imposed, it can not be modified to the detriment of the defendant. See Stang v. State, 24 So. 3d 566, 570 (Fla. 2d DCA 2009) (“The Courts have repeatedly held that a trial court may not rescind jail credit that was previously awarded, even if the initial award was improper, because such an action violates double jeopardy.”)

Well, She Still Has One Year of Felony Probation…

Luckily for us, Ms. Anthony does still has one year of felony probation to serve on her Check Fraud convictions…. Hold on, wait a sec, what’s that?

Beth Karas on Prime News with Vinnie Politan is reporting that Cheney Mason claims:

“Ms. Anthony has served her probation (while in jail)  and when she leaves on Wednesday she is a free agent, can go anywhere she wants…”

Now looka, I say looka here son;  maybe that Mason fella just might be on to something. According to a January 29, 2010 article by the Orlando Sentinel, Ms. Anthony’s probation was scheduled to end on January 24, 2011 … Ruh, Ro! That was six months ago…

Please, Say it Ain’t So…

It ain’t so, or at least it shouldn’t be.

This is because Florida law is very clear that Ms. Anthony’s probationary period was tolled while she was incarcerated awaiting trial on that serious case we discussed earlier. See Bradley v. State, 721 So. 2d 775 (Fla. 5th DCA 1998) (Finding the defendant’s “term of state supervision was tolled during period defendant was incarcerated on an unrelated case.”); See also Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000) (Defendant “erroneously contends that he completed his split sentence while incarcerated before he began his probation. He cannot have successfully completed a split sentence if he never served the probationary part, even when the sentence is a “true split” sentence. Additionally, because he was incarcerated on another offense at the time he was released from the custodial portion of his sentence in this case, defendant’s probation was tolled until he was paroled in his other case.”) See also Schurman v. State, 847 So. 2d 569 (Fla. 1st DCA 2003)  (“Although the incarcerative portion of his sentence in Case No. 93-202 may have expired prior to his release from prison in May 1998, the probationary portion of that sentence was tolled while he remained in prison on other sentences, and it did not begin to run until appellant was released in May 1998. Therefore, his probationary sentence in Case No. 93-202 was [still] in effect upon his release.”)

Finally, it is worth pointing out that the fundamental reasoning behind this line of cases is that “the underlying concept of probation is rehabilitation rather than punishment and presupposes the fact that probationer is not in prison confinement.”  Hatton v. State, 689 So. 2d 1195 (Fla. 4th DCA 1997)

The Law is Only the Law

Notably, the Florida Department of Corrections Offender Lookup website no longer lists Casey Anthony as a probationer, which means they agree with Mr. Mason’s interpretation.

So while the law may say Casey Anthony should still be on one year of felony probation when she is released, the law “don’t mean a hill of beans” if neither the State or the defendant follow the law.

A Final Single Finger Salute to J. Cheney Mason

Finally, I wanted to give a single finger salute to J. Cheney Mason. During Mr. Mason’s (very deserved) victory speech, he declared:

I say that dog is lower than a snake full of buckshot

“Bias and prejudice and incompetent ‘talking heads’ saying what would be and how to be — I’m disgusted by some of the lawyers that have done this. I can tell you that my colleagues from coast to coast and border to border have condemned this whole process of lawyers getting on television and talking about cases they don’t know a damn thing about.”

Mr. Mason ended that sissy fit with a proclamation that the “talking heads” would be hearing from him and his team.

The following day I received several phone calls from various sources and reporters who indicated that J. Cheney Mason had, in fact, not been sleeping through most of Ms. Anthony’s trial as we all suspected.

Rather he had actually spent that time compiling a list of “talking head” attorneys that he was going to go after, alleging either defamation or violation of the Florida Rules of Professional Conduct.

I was allegedly confirmed to be one of those “talking head” attorneys.

Well J. Cheney Mason, I have only one response to that.

Call me, I’m waiting…

Cheney, my office number is (407) 540-1551, so instead of cornering reporters and brow beating them for quoting me, feel free to pick up the phone like a man and call me whenever you “want to talk” about what has gotten your boots so tight.

But since I doubt you would ever do that, here are four other suggestions for you to consider:

1. Brush up on the word Hypocrite.
2. Review your own commentary about Jose Baez and Ms. Anthony’s case.
   • “You can pretty well predict there’s going to be a life sentence, either a plea and get it over with or have a circus trial and then be convicted and get life.” – J. Cheney Mason (12/12/2008)
   • “Then all the talking, all the press interviews and the parents going on this show and that show and the lawyer [Jose Baez] going on different shows establishes they have no credibility whatsoever.” - J. Cheney Mason (12/12/2008)
3. Read this little gem on the First Amendment.
4. Sit on this and rotate

Mark Bennett: A Lesson From the Casey Anthony Trial

Brian Tannebaum: No One Would Like My Commentary On The Casey Anthony Case

Below is my opinion that I posted on Websleuth’s regarding what it is likely about, as well as my post on why Jose Baez can  make such scandalous allegations in the first place.

Mark Lippman’s Likely Motion?

FYI: It has been verified that Mr. Lippman is filing a motion on behalf of Lee Anthony for Lee to also be present during the trial.

I think the motion is one the state probably should have filed, which is a motion in limine to prohibit the defense team from insinuating George molested Casey in questioning until such time as someone has actually testified to it (i.e. Casey Anthony).

The state should have probably made the motion immedietly after the opening statements, as it is improper for a lawyer to ask questions of witnesses that imply facts not in evidence or that the lawyer does not have a good faith belief will be established by the eventual evidence.

Ironically, this opening statement issue came up in what many consider “the case” that led to Nancy Grace’s fall from grace (pun intended) as a prosecutor. See Carr v. State, 482 SE 2d at 322 (GA. 1997) (“The transcript of the opening argument shows that the prosecuting attorney (Nancy Grace) repeatedly made references to physical abuse although the trial court had ruled out all evidence of purported abuse. There is no occasion and no excuse for attempting to influence the jury in advance by improper statements as to evidence which counsel knows he cannot prove or will not be permitted to introduce.”)

Anyway, as you can see from the case involving Nancy Grace, if argued correctly, Lippman’s motion would force Baez to proffer to the court how be believes in good faith he will establish George molested Casey to support his defense theory.

If his proffer does not involve him stating on the record that Casey (or someone else) will testify to it, the judge would likely prohibit him from pursuing the line of questioning or insinuating such scandalous allegations through his questioning. (That is, unless the Judge finds the Anthony’s don’t have standing for such a motion – in which case the State should adopt the motion.)

Speaking of Baez’s Scandalous Allegations

The general rule is that a defense attorney [any attorney actually] enjoys “absolute immunity [from law suit] in 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.” Delmonico v. Traynor, 50 So. 3d 4 (Fla. 4th DCA 2010).

In this case, Jose Baez’s scandalous allegations were made in arguing a defense of his client and would therefore be considered rationally related to the proceeding. As such, he is entitled to absolute immunity for the allegations he made against George, no matter how damaging they are.

With that said, if it could be proven that he actually fabricated the allegations, he would likely be disciplined by the Florida Bar.

Additionally, while George could not pursue Baez if Baez was just restating what a witness told him, he could nonetheless sue the person who made the statement to Baez.

In this case, it would likely be Casey Anthony who would be the person making the defamatory statements, so George would most likely not pursue the matter.

So as we countdown to opening statements, I thought I would provide my final predictions about the Casey Anthony case.

Prediction No. 1: An Accidental Death Defense

Some of you may not know this, but my very first post ever about the Casey Anthony case was on September 28, 2009 in response to a blog post by IT’S A MYSTERY 2 ME! titled Can circumstantial evidence convict Casey Anthony? Yes, it can.

Her post was partially in response to a WESH 2 News interview I gave where I stated the State has a weak case for premeditated murder, nevermind the death penalty. In sum, she disagreed with my assessment that the case was weak and was very much of the opinion that an accidental death theory would never fly.

And so I responded to her post and gave her my opinion of  how the defense could spin an accidental death theory (actually three comments).

• Comment 1: September 28, 2009 2:18 am (Guilty, but of what?)
• Comment 2: September 28, 2009 9:02 am (Accidental Theory Developed)
• Comment 3: September 28, 2009 9:17 am (Dealing with Duct Tape)

Interestingly, my response then is almost exactly what  I believe the defense will argue now (although I think George will be the fall guy, instead of Cindy).

Prediction No. 2: Casey will not Testify (in Guilt Phase)

I must admit, I have vacillated on whether Casey Anthony will testify or not, but ultimately have decided she probably will not.

No Ugly Coping, No Testimony

Her only chance of  a complete exoneration (on the felonies at least) would be to testify that there was an accident and then explain why she acted the way she did afterwards.

The problem with this though is she would have needed psychologists to testify that she suffered from post-traumatic stress in order to establish the foundation for a jury to take her post-death actions seriously. This would have basically been the Ugly Coping defense.

But considering that they (1) withdrew their psychologists as to the guilt phase and (2) the information released indicates there were no “serious” post traumatic problems, there is no realistic basis for them to advance this theory or get a jury to buy into it.

They don’t call it Cross for Nothing

The reality is that without a confession from Casey or an eye-witness, the State likely does not have enough to obtain a First Degree Murder conviction, and is even less likely to have enough evidence to obtain a death penalty sentence.

However, if Casey Anthony were to testify, there is only one of two things that would likely happen.

1. The jury will believe her or feel sorry for her and exonerate her of the primary charges; or
2. The jury will disbelieve her and she will provide the missing element the jury would need to not only convict of First Degree Murder, but sentence her to death (remember, 7 people is all the State needs for the latter).

And therein lies (no pun intended) the problem, Casey Anthony would not only have to successfully explain away EVERY lie, her explanation would have to be believed.

Success depends upon previous preparation, and without such preparation there is sure to be failure. - Confucius

And I can tell you from experience that successfully preparing a client to testify, a truthful client mind you, is extremely difficult. You have to anticipate every possible question a good prosecutor would cross examine your client on and prepare your client to:

• Explain every possible hole in your defense.
• Provide precise details about the events leading up to the arrest, even  irrelevant details.
• Explain every lie, big and small.
• Explain every inconsistent statement.
• Explain why you she should be believed, even though it conflicts with other witnesses’ testimony.
• Not to get confused.
• Not to change the story.
• And the list goes on and on.

I can tell you that I have spent days in some cases, weeks on a few occasions, preparing clients (that I believed were truthful mind you) to testify in cases that involved a fraction of the evidence and witnesses as Casey Anthony’s case.

Based on the amount that Jose Baez and Cheney Mason have visited her to date, there is no way that they could have properly prepared her to testify.

The Crucible of Cross-Examination – Supreme Court Justice Antonin Scalia.

And even assuming that they have prepared her to testify, the real question is have they prepared her for what Justice Antonin Scalia has described as “The crucible of cross-examination”?

From what I have seen of her police interviews and jail house visits, she comes across as callous and deceitful, so I highly doubt that they could train her to maintain a stable facade and presentation against hours of cross-examination.

To further compound the problem, it is clear that Casey Anthony has an animosity of, and personal dislike for, Assistant State Attorney Jeff Ashton. So while I highly respect Linda Drane Burdick and Frank George, it just seems obvious that Jeff Ashton would be the best choice to cross-examine Casey Anthony and the one most likely to break her.

Having tried cases with Jeff, the best compliment I can give him is that he cross-examines witnesses like a zealous defense attorney crossing a jail-house snitch. I could easily see Casey Anthony snapping against Jeff Ashton and her completely breaking down on the stand.

Which brings up the biggest risk in having her testify. If she does not pull it off, the only logical conclusion the jury could reach is that her whole story was a charade to cover up the truth: The truth being that she did intentionally murder her child.

In essence, she could testify herself right into the death penalty. That is to risky a proposition for her to take.

Prediction 3: Anything but Death, Defense will Claim Victory

My final prediction is my most frustrating one and highlights what has been wrong with this case from day one.

In my opinion, Casey Anthony has been used by a series of lawyers for her case’s notoriety in order to advance their own narcissistic and inflated egos. (I exclude Ann Finnell and Lisbeth Fryer, as I have not only been impressed with their work but the way they have conducted themselves.)

I have said many times that a defense lawyer’s goal should be to obtain the best resolution that is most realistically likely for your client. In Casey Anthony’s case, this resolution was probably somewhere from 10 to 20 years in prison on an Aggravated Manslaughter charge.

But even assuming that there was in fact no offer ever made by the State; the last thing her defense should be doing is litigating her case in not just an inept way, but in a manner that could be used against her if she is convicted; as it would show a lack of remorse.

• Allowing her to appear on TV with a help find Caylee Button – think about how negative a jury would see this if they find her guilty as charged.
• Blaming George or Lee for sexual abuse.
• Blaming the meter reader (although I thought he makes for good reasonable doubt)
• Admitting on TV your (former) client lied (nice way to maintain client confidences).

However, Jose Baez, Andrea Lyon, Linda Baden, Todd Maculuso, Todd Black, and Cheney Mason have taken it upon themselves to appear over a hundred times on national and local television to float every possible theory, conspiracy, or attack they can.

And what do they have to show for it? Nothing.

Ironically, of all the motions, claims, and arguments they have made, the most significant victory came not from their own doing; but from Judge Perry, who sua sponte advised the State he was not going to allow the jury to smell “canisters of death.”

And so, after all their posturing, puffing, and spurious claims, I predict the defense will claim victory if Casey Anthony is convicted of anything short of First Degree Murder.

And, when proclaiming how great they are, how they “won” in the face of unfair and overwhelming odds, and likely how they expect to win on appeal; they will embark on a media tour that will make O.J.’s defense teams look minor league.

And to make matters worse, the media will play right into it, paying the attorneys “appearance fees (I prefer blood money) trumpeting their exclusive interviews and proclaiming Baez and his crew to be “experts,” or “high profile attorneys,” or preeminent.

In reality, Casey will likely get sentenced to a prison term that is longer than what a good plea bargain could have obtained.

But they will not acknowledge this, nor will the media even mention it, instead they will be heralded as winners; when in fact their client lost.

But what personally bothers me most, is that other young attorneys, incompetent attorneys, and shady attorneys will see that embracing the media to the detriment of your client’s best interests is, nonetheless, Good for Business.

We’re leaving together
But still it’s farewell
And maybe we’ll come back
To earth, who can tell?
I guess there is no one to blame
We’re leaving ground
Will things ever be the same again?

It’s the final countdown.
The final countdown

The Final Countdown by Europe

Like everyone, I found myself mildly relieved. Finally Ms. Anthony had seen the light and realized her life was literally in the hands of someone incompetent to handle her case.

I found myself thinking of how I would respond to the inevitable questions about what would happen next.

Q: Does Judge Perry have to remove him from the case.
A: No, he does not have to remove him.

Q: Will Judge Perry remove Jose Baez.
A: If he is as wise and fair as others have proclaimed him to be, he not only will, but must remove Jose Baez. Because it has been clear from day one that Mr. Baez was pretending to be qualified to handle a case that he has no business handling – to the detriment, literally, of his client’s life.

Q: Who would replace Jose Baez.
A: Possibly nobody, but if Judge Perry were smart he would appoint a veteran local death penalty lawyer such as Trish Cashman, Jeff Dowdy, or Kelly Sims among many others (if they would even agree to do so).

Q: If Judge Perry removed Jose Baez, would it cause the case to be continued.
A: Most likely, because Ann Finnell is the only remaining attorney realistically qualified to handle the case (Cheney Mason has proven himself to be a paper tiger in my opinion, qualified on paper only). And she seems to be uninvolved in the guilt phase, which would require her to bring herself up to speed and Mr. Mason has clearly shown that he does not have a firm grasp on all of the witnesses and evidence in the case.

But ultimately, we can only dream, because Casey Anthony did not file a motion to remove Jose Baez as the ringleader of the Casey Anthony and Bungling Attorneys Circus®.

The Real Question

But this brings me back to the real question that most of us debate, or more astutely know the answer too, which is: Should Jose Baez be Casey Anthony’s attorney?

The obvious answer from everybody’s mouth, but Casey Anthony’s, is no. And the answer is No for all of the right reasons:

• No, because he lacks the qualifications to handle a Capital Case.
• No, because he lacks the ability to deal with the media.
• No, because he went to the lowest rated law school in Florida.
• No, because he lacked the character and fitness to be admitted to the Florida Bar on his first attempt.
• No, because his performance has been below any reasonable expectation of an attorney involved in a case of this magnitude.
• No, for so many other reasons that have been documented, debated, and argued amongst court watchers for the past three years.

So Why Hasn’t the Court Done Something?

This brings us to the next most common question I hear from people who ask about the case. Why hasn’t either Judge Strickland or Judge Perry removed Jose Baez from the case.

Unfortunately the answer is rather simplistic, at least from their standpoint, the Sixth Amendment of the United States Constitution guarantees a person the right to the attorney of their choice.

Personally, I think this answer rings hollow. Yes, a person should be allowed to the attorney of their choice, if there has been a full and frank colloquy – by the court, with the defendant – about the attorney’s qualifications, actions, and conduct.

But ultimately, it is the Court’s responsibility to insure that every person – even Casey Anthony – is represented by competent counsel.

And in the twenty-first century, a person facing the Death Penalty must have competent counsel.

So What Can be Done?

Which leads us to the final question, what can be done? Personally, I don’t know.

There is no rule or case that says Judge Perry cannot have a meaningful colloquy with Ms. Anthony. To date any inquiries directed to Ms. Anthony have been perfunctory and pro forma; with the sole purpose to satisfy a sterile appellate record that Ms. Anthony made knowing and voluntary choices and was represented by “competent counsel with whom she says she was satisfied.” (The quoted part is verbatim what a judge states in Florida cases after accepting a plea or making findings about case decisions by counsel.)

There is also nothing prohibiting Judge Perry from appointing additional co-counsel; and I would argue, that Florida Rule of Criminal Procedure 3.112(e) required Judge Perry to appoint qualified lead counsel and co-counsel prior to Ms. Finnell coming aboard.

Finally, with Ms. Finnell is on board, Judge Perry should require that the intent of Rule 3.112 is complied with and an attorney “qualified to handle a capital case” acts as the lead attorney – not Jose Baez.

This illusion that Cheney Mason, who on paper is qualified as lead counsel, satisfies the lead counsel dictates of Rule 3.112 is simply willful blindness by the court.

If rules are meant to be followed, then Judge Perry should require Casey Anthony’s lawyers to follow Rule 3.112 and demand that Ms. Finnell, or unfortunately, Cheney Mason act as lead attorney.

What Should Be Done?

What should be done, the answer is obvious and does not need to be said. But for those who are wondering what the answer is, might I suggest you read:

• Washington Post: D.C. Superior Court judge declares mistrial over attorney’s competence in murder case

And after you read that, might I suggest you read what other respected lawyers think of such conduct.

• Brian Tannebaum: The Day, The Music, Died. (Reactions from Criminal Defense Lawyers and Marketers)
• Mark Bennett: The Object Lesson of Joseph Rakofsky

Which begs the ultimate question, if Joseph Rakofsky is incompetent to handle a murder case, just how bad of an attorney is considered competent to handle a murder case?

Because if Jose Baez is the acceptable minimum standard of competence, the innocence project will have their work cut out for them for decades to come.

You would think some fancy commission would address such important issues as the competency of  lawyers handling cases they have no business handling.

And to think, Judge Belvin Perry is Chair of the Florida Innocence Commission. The irony is indeed, rich.

Who is Dr. Arpad Vass?

Dr. Arpad Vass is a “research chemist scientist and forensic anthropologist based at the Life Sciences Division of Oak Ridge National Laboratory.”

What is Decompositional odor analysis?

According to Dr. Vass, deceased human beings release volatile chemical compounds during the decompositional process. Dr. Vass claims these compounds are the same “odors” that cadaver dogs detect when searching for human remains.

As a result of this hypothesis, Dr. Vass (in conjunction with the FBI) has compiled a “Decompositional Odor Analysis Database” consisting of over 478 compounds that are released by decomposing bodies.

The development of this database is outlined in several of his research papers:

• Decompositional Odor Analysis Database
• Odor analysis of decomposing buried human remains

It is important to understand that the only person that knows all of the compounds in the database is Dr. Vass (and presumably the FBI), thus making it a proprietary database.

Why is the Defense Objecting to Dr. Vass’ Testimony

The Casey Anthony defense team is objecting to Dr. Vass’ testimony on the basis that it is based on “new or novel scientific techniques.” As a result, the defense has convinced Judge Perry to hold a Frye hearing to require the State to prove that Dr. Vass’ testimony is not based on new or novel scientific techniques.

What is a Frye Hearing?

A Frye hearing gets its name from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which held that before new or novel scientific techniques will be admissible, the court must find that the “scientific principles and methodologies” which the expert relies upon in rendering the opinion are generally accepted within the scientific community.

What is Generally Accepted within the Scientific Community mean?

Essentially, to be generally accepted within the scientific community, the methods and principles you relied upon in reaching your opinion must be generally accepted to be true and by your peers.

It is important to note that your peers do not have to agree with the opinion you reached, just agree that the methods and principles you relied upon in reaching your conclusion are generally accepted.

An excellent example of this occurred when the defense tried to exclude Dr. David Hall’s testimony in the field of botany. Judge Perry astutely pointed out that his testimony was purely opinion that was based upon general principles within the botany community.

How is Dr. Vass’ Testimony Different from Dr. Hall’s?

It may very well be that Judge Perry rules that Dr. Vass’ testimony is purely opinion testimony based on generally accepted “scientific principles and methodologies.”

However, Dr. Vass’ testimony differs from Dr. Hall in one major respect; Dr. Vass’ testimony is based upon a proprietary database that he developed through his own research.

The Heart of the Defense Argument

If you read Dr. Vass’ report in the Casey Athony case, it essentially requires the reader to take his word that the compounds he identified in Casey Anthony’s trunk suggest a “decompositional event” because they match the compounds in his database – a database of 478 compounds that are a mystery to everyone but him.

However, Dr. Vass’ research seems to have been developed for commercial and governmental purposes, as Dr. Vass has obtained a patent for a “Clandestine Grave Detector,” which is based on his research. Additionally, the FBI is part owner of the “Decompositional Odor Analysis Database” because they funded his research.

This commercial motive is important, because Dr. Vass has a vested interest in his research being validated by utilizing his research on behalf of the State at the Casey Anthony trial.

This validation would stand in stark contrast to his 2008 work in the Charles Manson case where he attempted to use his research to identify “clandestine graves” at the infamous Barker Ranch. According to Dr. Vass, his research is so accurate that he can’t differentiate whether the decompositional event was from “an animal, Native American, or a dinosaur.”

Needless to say, they did not find any bodies on the Barker Ranch to validate Dr. Vass’ claims that a decompositional event took place; which begs the question, how do we know his conclusions were correct?

This is the same question that we must ask in the Casey Anthony case. If nobody but Dr. Vass has access to his database, how can anybody in the scientific community determine if the methods and principles he relied upon in compiling the database were generally accepted?

And if we can’t determine if his methods and principles were generally accepted, how can we let him testify to something that only he would know the answer to.

Another Problem of Dr. Vass’ Research

If you read Dr. Vass’ literature, he appears fixated on the issue of Fluorinated water – essentially believing that because we fluorinate our water, this compound is usually present in decompositional events.

However, fluoride was not present in his report in the Casey Anthony case. Instead, he accounts for the absence of fluoride to Caylee’s young age; meaning she did not live long enough to absorb the fluorine into her bones.

But the question must be asked, what basis does he have to dismiss the presence of fluoride? If his work has not been sufficiently peer reviewed, how can we know that the methods and principles he relied upon in reaching that conclusion are scientifically accepted?

From a statistical point of view, he has developed his database on a relatively small number of cadavers (according to his first paper, only four cadavers were used). Any statistician will tell you that you need at least 200 samples before you can make a statistically reliable conclusion. So it is difficult to believe that his reliance on such a small statistical sample would be accepted by peers in the scientific community.

Peer Review, Schmear Review

Essentially Dr. Vass has created a secret database that has not been peer reviewed and cannot be peer reviewed – which is the hallmark of trusted scientific evidence.

(Yes, ValHall at the Hinky Meter did an excellent review of much of the science behind Dr. Vass’ work last year. While ValHal was of the opinion that his research was peer reviewed, I respectfully disagree.)

Because any peer review of Dr. Vass’ research would by definition be incomplete unless the reviewer had complete access to his decompositional odor database. Without access to this database, it is impossible to thoroughly peer review his research.

And peer review is the hallmark for determining whether a principle or methodology is generally accepted within the scientific community.

• A Bad Lawyering Combination: 11-28-3

It should be no surprise that “lobbyists for both the Central Florida Hotel & Lodging Association and Walt Disney World” supported the bill. As every dollar that is spent at a local small business is one less dollar going into their corporate profits (never mind that the small business charges less for a better and local product).

The story outlined a bill sponsored by Rep. Steve Crisafulli, R-Merritt Island which sought to increase the penalties for passing out flyers on hotel properties without permission. His purported reason for sponsoring the bill “arose out of complaints from Central Florida hoteliers that criminals are using bogus menus and coupons to trick tourists into handing over their credit-card numbers, to burglarize their unlocked hotel rooms or to steal peoples’ identities.”

As I am all for capitalism and public safety (both mine and tourists),  I said fair enough and figured I would read House Bill 63 myself to see how it alleviated this reprehensible handbill problem that is endangering the lives of citizens state wide.

Protecting Tourists or Corporate Profits?

The first thing that caught my eye was that the bill was titled the “Tourist Safety Act of 2011.” The only problem was that the bill does not mention the word tourist one more time in the entire text of the bill (or even the words traveler or visitor). Nor does the bill even create any new penalties if the victim was a tourist, or create any new crime for targeting a tourist. Strange I said, how can you have a Tourist Safety Act of 2011 without at least enacting something to make tourists safe.

Rather, the only notable changes to the previously enacted version of the bill is that it increases the fines that “must” be imposed to $1,000 on a first conviction, $2,000 in a second, and $3,000 in a third.

The kicker though is that upon a third conviction, law enforcement can seize ”any” property that is involved in the nefarious handbill distribution racket. Really what it means is that Disney can try to get law enforcement to do their dirty work and seize  some mom-and-pop small business’s vehicle, printers, property to try and force them out of business for even daring to divert a dollar away from the Disney empire.

I could not imagine why any self respecting politician would file a bill titled “Tourist Safety Act” that has nothing to with tourist safety. But then I remembered that I am dealing with a politician whose primary donors are probably Disney and resort properties.

So if you are trying to get others to vote for a bill that does nothing but support corporate business interests, what better way to trick your fellow legislators into voting for a bill without actually reading it than to name it the “Tourist Safety Act of 2011″ – I mean who would vote against Tourist Safety?

Handbills and Handguns?

But even more bizarre, Section 5 of the bill throws in some mumbo jumbo about protecting gun rights. What in the world does illegal handbill distribution have to do with the protection of gun ownership rights.

Section 5 reads. “This act does not affect or impede the provisions of s. 790.251, Florida Statutes, or any other protection or right guaranteed by the Second Amendment to the United States Constitution”

I think we all know that the Second Amendment of the United States Constitution protects the “right of the people to keep and bear arms.”

But many might not be familiar with F.S. 790.251, which is known as the “Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008.” As you can imagine, the statute insures that not only can you keep an AK47 in your home, but also in your car while at work.

The addition of this language is concerning for no other reason that there is no logical purpose for its inclusion in the bill  unless you hope to show your “constituents” that while you believe that teenagers should be fined thousands of dollars for passing out pizza flyers, you also believe those same “criminals” should be able to bring their guns with them while they are doing so.

That does not promote Tourist Safety, it discourages it.

Nothing to do with Tourist Safety

Bottom line is that the “Tourist Safety Act of 2011” (Title of HB 63) has nothing to do with the safety of tourists.

Rather, its sole purpose and only affect will be to protect the most minuscule of corporate profits, punish local small businesses, and somehow insure that accused pizza flyer passer outer types do not lose their right to bear arms.

This bill is plain stupid.

An example of this excess can be found in the fact that the State of Florida alone has managed to criminalize over 7,000 individual activities. And this number does not include municipal violations criminalized by individual municipalities.

Which brings me to the most recent news story that caused me to post my concern. While reading CNN, I came across the story: 16-year-old catcher collapses, dies after pitch hits chest protector.

While a tragic story, the headline pretty much told the story. A 16 year old was catching for a pitcher and was struck in the catcher’s protector plate by a pitch. Unfortunately this resulted in a freak accident which caused the child to die. The first thing that came to my mind was sympathy for the child’s parents, for the loss they suffered, for the sorrow of the child’s teammates.

But what was one of the first thing authorities considered? That a crime had occurred. For some reason, Police Capt. Heriberto Rodriguez felt it necessary to dispel concerns that the freak accident was actually a criminal assault by the pitcher when he said “We don’t see anything remotely illegal on this.”

My question is who thought something illegal occurred? Why did the news even think to inquire if a crime were possible. Why the first quarter of the article, which should have just been about the boy’s life and the strange nature of his passing, dealt with the possibility of a criminal act is beyond me.

And that goes to the root of our problem as a society, we have become a society that looks to prosecute someone regardless of intent or culpability, a society who must have someone to blame, even if there is no one to blame.

That is our society’s mentality, The Criminal Mentality.