Criminal Justice

Foghorn Leghorn sure is getting his beard in a tizzy about the State’s Motion to Admit Cindy Anthony’s 911 Calls.

• Defense Reply to State Motion to Admit 911 Calls

And while I don’t fault the defense for trying to exclude the 911 tapes, their lack of foresight just highlights the Casey Anthony defense team’s continuing weakness – too much energy focused on losing battles (but then again, with five pro-bono attorneys, a legal clinic, and endless time on their hands, what’s a little wasted energy.)

But more importantly, they just don’t seem to understand the true evidentiary value the 911 calls provide to the State or the legal basis by which the State  is seeking the 911 calls’ admission.

Instead the defense rests their entire evidentiary objection to the admission of the 911 calls on “hearsay.” An unimaginative and shallow objection under the procedural nature and facts of this case.

Hearsay, Schmearsay

In laymen’s terms, hearsay is a statement made by a third-party and offered as substantive evidence in a judicial proceeding. (Think of person X testifying that he “heard” person Y “say” something.)

In lawmen’s terms, Hearsay is defined as an out of court statement “offered in evidence to prove the truth of the matter asserted.”

An example of hearsay testimony would be Tom testifying that Susan said defendant X admitted to the murder.

In this example, Tom obviously has no firsthand knowledge of what defendant X said. And even though Tom testified at trial, it is almost impossible to establish the reliability of Susan’s statement or to cross-examine her.

Thus the inherent unreliability of Susan’s statements makes what she told Tom inadmissible.

So allowing into evidence the statement’s of a non-testifying third party has obvious concerns – namely inability to confront the person who made the unfavorable statement about defendant X.

And because Hearsay was traditionally unreliable, the courts formulated the Hearsay Rule – which states “hearsay evidence is inadmissible.”

But Cindy Anthony is Testifying!

Yes, yes Cindy Anthony is testifying. But the 911 statements are still Hearsay – confused? Please bear with me.

When someone introduces a statement of a third-party, whether it is a written statement, a recorded statement, or a verbal recount of what the third-person said – the statement is still hearsay. Because the medium (writing, recording, orally) is being used to introduce the third-party’s statement.

And in America, a criminal trial by affidavit is unconstitutional. If a person has first-hand testimony to offer, they need to come into court and be subjected to cross-examination.

So if the 911 recordings are introduced to prove what Cindy Anthony said, they are hearsay. As the only admissible evidence to prove what Cindy said would be for Cindy Anthony to come into court and simply testify to what she saw, heard, or did.

And assuming Cindy Anthony is first called to testify by the State, she is free – and expected – to testify to the same statements that she made on the 911 calls. And under this ideal scenario the introduction of the 911 calls would be repetitive and cumulative to her “in court testimony.”

This is because the 911 calls are literally out-of-court statements being offered by the State for the sole purpose of proving the truth of what Cindy Anthony would “truthfully” assert in trial; and such statements are inadmissible hearsay – Right?

Wrong? What if there were another legal reason the State wanted to introduce the 911 recordings…

For every rule, there is an exception (or 24)

Conveniently, Florida has adopted 24 exceptions to the hearsay rule (actually, they don’t even call them exceptions – us lawyerly types simply refer to them as non-hearsay; go figure).

The theory behind these exceptions is that they have some type of inherent reliability, meaning they were made under specific circumstances where a person would have little opportunity to fabricate or exaggerate the statements (think death-bed confession).

Of these 24 exceptions, the State has implied they will possibly rely on three specific exceptions to get the statements in:

1. Spontaneous Statement: A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
2. Excited Utterance: a statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
3. Then Existing Mental, Emotional, or Physical Condition: A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to: (1) Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action. or (2) Prove or explain acts of subsequent conduct of the declarant.

And then there is Not-Hearsay

We have talked about hearsay and we have talked about non-hearsay, now it is time to talk about not-hearsay?

Not-Hearsay? Isn’t that the same as non-hearsay?

Nope.

You see, non-hearsay is a circumstance where hearsay is not treated as hearsay based upon a legislatively justified circumstance of reliability.

On the other hand, not-hearsay is literally not hearsay – it is a statement that does not meet the hearsay definition.

And under the hearsay rule, a statement that is not hearsay is admissible unless excluded for some other evidentiary reason (relevance, cumulative, overly-prejudicial).

For example, let’s say there was a trial about the chicken crossing the road. The chicken testified that she crossed the road because Foghorn Leghorn told her there was chicken feed on the other side. But once on the other side, there was in fact no chicken feed!

Under this scenario, the Chicken was testifying to what Foghorn Leghorn told her – isn’t this hearsay? Well the statements of Foghorn Leghorn are not hearsay for two reasons.

1. The statement attributed to Foghorn Leghorn was not being introduced to prove the “truth of the matter asserted” (i.e. that there was chicken feed on the other side), instead the statement was being introduced to explain why the poor chicken crossed the road (i.e. she “thought” there was chicken feed on the other side).
2. The statement attributed to Foghorn Leghorn was simply not true - meaning the statement was not being used to prove there was chicken feed on the other side, rather the statement was being offered to show that Foghorn Leghorn lied about the chicken feed.

Applying the Hearsay law to the 911 Calls

Much of the State and Defense arguments have focused on whether Cindy Anthony’s 911 calls fall under one of the non-hearsay exceptions; such as Excited Utterance, Spontaneous Statement, etc.

However, the reason the State has indicated they wish to introduce the 911 calls is to show the context in which Casey Anthony made up her Zenaida Gonzalez kidnapping story; not to prove that anything that Cindy Anthony said to 911 was true.

And the State has gone so far as to specifically indicate they are only looking to introduce two of Cindy Anthony’s three 911 calls – the two 911 calls that Cindy Anthony made in Casey Anthony’s presence.

So the State is not offering the statements to prove that Casey’s car actually smelled like a dead body (but if denied, Cindy could still be impeached with the 911 call on this issue alone), or that Caylee was actually missing for 31 days, or that Casey actually stole the car – rather the primary reason for introducing the 911 calls is to show the circumstances in which Casey Anthony made up the kidnapping story to the 911 operator – to provide context to her lies.

And unfortunately for the defense, a similar circumstance was allowed by the Florida Supreme Court as recently as this year in McWatters v. State. In that case, the court upheld the introduction of a taped interview of  the defendant which included statements attributed to third party witnesses which implicated the defendant – those third party witnesses did not testify.

The court said that the statements of the third party witnesses were not being offered to prove that they could actually implicate the defendant, rather the statements were being offered to provide context to the defendant’s subsequent incriminating statements when confronted with the third party claims. Thus the way in which they were being offered was not hearsay at all.

And it appears to me that this is precisely why the State wishes the jury to hear the 911 calls – so that the jury has a full appreciation of  the circumstances under which Casey Anthony made up the ridiculous Zenaida Gonzalez story.

And because this is such an important issue, Judge Perry is likely to allow the 911 calls to be introduced because they are not hearsay – regardless of whether they are non-hearsay!

Understand? Good because I will not even bother discussing the fact that if they were considered non-hearsay, the introduction of them would be considered harmless error since Cindy Anthony is testifying at trial and the defense would have a full opportunity to cross-examine her on any “lies” she made to 911.

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:

1. Exculpatory statements (meaning statements made by Casey that were meant to clear Casey of guilt), and
2. 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:

1. Was the crime punishable by death?
2. Was the crime punishable by more than 1 year imprisonment?
3. Was the crime one that involved dishonesty?
4. 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…

Epilogue

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…