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Criminal Law

Comments and analysis about criminal law and court rulings.

What are the Odds?

Apr 12th, 2011
by Richard Hornsby.
110 comments

So let me get this straight.

On March 18, 2010 Casey Anthony was declared indigent by Judge Strickland after Jose Baez revealed he had blown over $250,000 received on Casey Anthony’s behalf – $200K of which was paid by the “American Broadcasting Company” as “licensing fees” for Casey Anthony’s “pictures.” Of importance, was the fact Jose Baez said he had “no more money.”

On May 6, 2010 a budgeting hearing was held by Judge Perry; notably, he denied Jose Baez’s request to have JAC provide funding for a “Jury Consultant.”

On July 30, 2010 Jose Baez, Dorothy Clay Sims, Michelle Madina, and Jeanene Barrett meet with Casey Anthony in jail; notably, they are accompanied by a man named Richard Gabriel.

On April 9, 2011 CBS (the Columbia Broadcasting System if you’re reading Jose) released a teaser for “48 Hours Mystery,” which shows an assembled focus group (read, “mock jury”), moderated by an unknown person, who asks: “If the only charge was First Degree Murder, who here would vote to acquit [Casey Anthony]? Please stand up.”

And just who is that unknown person moderating the assembled focus group; many astute followers of the Casey Anthony trial have opined that if you remove the beard, it looks remarkably similar to Richard Gabriel, whose website biography describes him as a “leader in the field of jury research, jury selection, and litigation communication.” The biography goes on to inform us that he “ is currently working with attorneys in the Casey Anthony matter.”

So what are the odds that the unknown moderator is both jury consultant Richard Gabriel and the Richard Gabriel that met with Casey Anthony on July 30, 2010.

If it is, there are two very interesting questions that are raised.

1. Was there a Privilege Waiver?

As most of you know by now, there are two primary mechanisms that protect a defendant’s Fifth Amendment right not to incriminate themselves and their Sixth Amendment right to the assistance of counsel. These two mechanisms are the Attorney-Client Privilege and the Work  Product Doctrine.

However both privileges can be waived if the defendant or her counsel communicate privileged information to third parties.

Normally communications by a defendant or her attorney with personnel like paralegals, investigators, interns, over-the-hill attorneys, and jury consultants – yes, jury consultants – carry the same protection as communications directly between the attorney and the defendant so long as they work for the attorney; as the privilege is imputed directly to them.

But if the defendant, attorney, or the personnel divulge this information to a third-party with no expectation of privacy, the privilege is waived.

So if the Richard Gabriel that visited Casey in jail, and  jury consultant Richard Gabriel, and the unknown moderator of CBS 48 hours Mystery are all the same person; it makes you wonder if Richard Gabriel disclosed “privileged” information to 48 Hours – did the defense waive any privilege that they might have enjoyed as to either their defense strategy or statements made by Casey.

2. How was Richard Gabriel Paid?

Which brings me to my final question.

If Jose Baez wanted a jury consultant, but Judge Perry denied him funds for a jury consultant, and yet Jose Baez subsequently shows up to the jail with a Jury Consultant; how did Jose Baez pay for the jury consultant.

Could it be that rather than pay Jose Baez “licensing fees,” CBS simply footed Mr. Gabriel’s fee and the focus group’s services (yes, they would need to be paid to listen all that evidence and testimony) in exchange for the Casey Anthony defense team providing CBS with exclusive rights to film the focus group’s reaction and have insight into the defense team’s planned defense?

Which raises a very academic, yet timely question: Do in-kind services have to be reported to JAC?

Sounds like some more Jose Baez chicanery to me.

Former Sheriff’s Detective

Apr 8th, 2011
by Richard Hornsby.
4 comments

I just thought I would point out how ironic it is that if you type in www.OrlandoDUI.com you are taken to the website of Former Sheriff’s Detective Dan Newlin.

Yes, the same former Sheriff’s Detective Dan Newlin who has all those billboards with an oversized head.

Yes, the same former Sheriff’s Detective Dan Newlin who blamed an “overzealous” cop for his DUI arrest last night.

I recommend that he hire a good attorney, one that doesn’t advertise on television.

We Can Only Dream

Apr 5th, 2011
by Richard Hornsby.
69 comments

Casey Anthony filed a motion to remove Jose Baez, or so we thought.

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:

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:

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

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.

Can I have some Fryes with that Clandestine Grave Detector?

Mar 22nd, 2011
by Richard Hornsby.
89 comments

Over the next three days, the Casey Anthony case will take a scientific detour, the primary purpose of which is for Judge Perry to decide whether to admit testimony from Dr. Arpad Vass regarding his decompositional odor analysis of Casey Anthony’s trunk, an analysis that supposedly revealed the presence of Chloroform – a compound alleged by Dr. Vass to be unique to decomposing bodies.

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:

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

Mar 10th, 2011
by Richard Hornsby.
4 comments

Just to show you that there are other Jose Baez and Cheney Masons out there parading around:

Nancy Grace Parody in Casey Anthony Case

Mar 9th, 2011
by Richard Hornsby.
20 comments

 

 

The Theory of the Defense

Mar 7th, 2011
by Richard Hornsby.
38 comments

Back in 2007 I attended a criminal defense seminar in Key West, Florida called “Sailing Your Way to Victory.”

One of the sessions I attended during that seminar was titled “The Theory of the Defense.” That session was taught by none other than a Mr. J. Cheney Mason, Esq.

The session was an instruction on developing what are known as “theory of defense” jury instructions. The esteemed Mr. Mason went on to advise in his seminar materials (which I still have) that the “theory of the defense” should be “determined at the earliest possible time” and will frequently be “the difference between conviction and acquittal.”

Theory, Schmeary

Theory, Schmeary… so what does Mr. Mason’s seminar discussion on “Theory of Defense” have to do with the Casey Anthony case?

Well, many of you may recall that last Friday, in response to the State’s Motion in Limine to preclude the defense from calling state witnesses liars without an evidentiary basis, Mr. Mason told Judge Perry (and I quote) “I am going to ask you to give a jury instruction that part of the theory of defense is that a certain witness is a liar and I believe you will give that based on the case of United States v. Alfonso-Perez, 535 F. 2d 1362 (U.S. 2d Cir. 1976).” (See YouTube Video of Friday Hearing | 11 minutes 26 seconds).

Where Have I Heard that Before?

The minute Mr. Mason mentioned United State v. Alfonso-Perez, I knew exactly where he was going, because it just so happens that United State v. Alfonso-Perez was one of the primary cases he cited in the 2007 seminar materials AND I had already researched the case myself, why you ask?

Well after the seminar, I obviously thought it would be a swell if I could get a judge to instruct the jury on my specific defense theory. That way, not only could I argue the theory to them, I could also get the judge to instruct them on it.

The obvious implication is that a judge adds judicial credibility to your theory by reading it to a jury and a jury would then be more apt to give your argument credence – rather than dismissing it as implausible.

There was only one problem with Mr. Mason’s position, by the time he presented at the seminar, the cases he cited were over thirty years old. And unfortunately for me, they no longer applied.

Rather, while Mr. Mason’s general premise was correct, his specific premise was superseded by intervening law; as a lot has changed since 1976.

Specifically, beginning in 1981, the Florida Supreme Court began adopting and publishing Standard Jury Instructions that were to be used in all all criminal cases.

As a result, the law now holds that a person is only entitled to a special jury instruction (such as what Mr. Mason asks) IF there is no Standard Jury Instruction in Florida that covers the particular issue. See Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001) (“The standard jury instructions are presumed correct and are preferred over special instructions.”)

And under current case law, a special jury instruction (like the one Mr. Mason wants) should only be given if:

  1. The special instruction was supported by the evidence;
  2. The standard instruction did not adequately cover the theory of defense; and
  3. The special instruction was a correct statement of the law and not misleading or confusing.

Unfortunately for Mr. Mason’s expected request to Judge Perry, Florida Standard Criminal Jury Instruction 3.9 specifically and adequately covers issues of witness credibility, witness incentive, or witness inducement that a jury should consider when deciding what evidence is reliable.

But what about United States v. Alfonso-Perez?

Interestingly, the language of the special jury instruction that was the requested – and ultimately ordered to be given – in United States v. Alfonso-Perez was as follows:

You are instructed that the defendant’s position is that he was not involved in the narcotics conspiracy. It is his position that the government witnesses must have falsely testified against him for reasons of their own, such as to obtain their own freedom from imprisonment by providing a target for prosecution other than themselves.

Now is it just me, or would it seem easy to replace “the narcotics conspiracy” with “the death of Caylee Marie Anthony” and have an almost identical instruction that parallels claims made by the Casey Anthony defense?

You are instructed that the defendant’s position is that she was not involved in the death of Caylee Martie Anthony. It is her position that the government witnesses must have falsely testified against her for reasons of their own, such as to obtain their own freedom from imprisonment by providing a target for prosecution other than themselves.

If so, I think Mr. J. Cheney Mason, Esq. may have given away what “Theory of Defense” he will pursue at trial.

And One Last Thing…

There was one last thing Mr. Mason made a point to emphasize in his seminar materials, which was:

Do not reveal the theory of defense in advance [as] cops will change their testimony and prosecutors will conform or revise their case.

All I can say is, way to take your own advice Mr. Mason, way to take your own advice.

The Rule of Sequestration

Feb 15th, 2011
by Richard Hornsby.
48 comments

The Rule of Sequestration is a common law rule that could be invoked by parties to a legal proceeding to exclude non-party witnesses from listening in on what other witnesses testified to.

This common law rule has been codified as Florida Statute 90.616 (“Exclusion of witnesses”) and states in relevant part that “At the request of a party the court shall order [...] witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses.”

If requested by a party, the exclusion of witnesses from a proceeding is mandatory, as the rule uses the word shall.

Reporter’s Privilege?

Yes, Florida does have a Journalist’s privilege that can be invoked. See Florida Statute 90.5015. And I believe that a journalist would likely be able to avoid being forced to testify based upon this privilege; especially as it relates to the Casey Anthony case.

More importantly, to overcome the privilege, Baez and Co. would have to show:

  1. The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
  2. The information cannot be obtained from alternative sources; and
  3. A compelling interest exists for requiring disclosure of the information.

Given this high legal hurdle, it is unlikely that any reporter has information that would satisfy all three prongs.

What if?

But let’s assume for a minute that the privilege does not exist, could Baez really get a reporter excluded from sitting in on the trial by listing them on the witness list?

A black letter reading of the rule would appear to say yes, as exclusion is a mandatory requirement.

However, Gore Newspapers Company v. Reasbeck, 363 So. 2d 609 (Fla. 4th DCA 1978), an old opinion out of the Fourth District Court of Appeals (which predates the codification of F.S. 90.616), indicates that if the invocation of the rule is challenged by the witness or the opposing party, the judge must determine that the “rule” is being properly invoked.

In that case, the defense attorney declared that any person who walked in the room was a potential witness and asked the court to swear them in so that the rule of sequestration applied.

On appeal, the appellate court pointed out early on in the opinion that “the entire charade was simply a ruse by counsel for the defendant to exclude the press from that proceeding.” The court found that “the granting of the rule of sequestration was improper and that the trial judge erred in failing to exercise his discretion by denying the requested invocation of the rule.”

Exercise in Futility

So at the end of the day, it appears that the Defense team’s hijinks are just another exercise in futility. Even assuming Judge Perry does not strike their latest witness list, they are unlikely to overcome the reporter’s privilege and are even more unlikely to successfully invoke the Rule of Sequestration.

Moreover, it is abundantly clear that they are listing the reporter solely as a ruse to harass the reporter – not to mention make an end run around the First Amendment.

A Historical Note

(A little legal history, the Fifth District Court of Appeals was created by legislative act in 1979 and was carved out of the Fourth District Court of Appeals. So all Fourth District Court of Appeals decisions made prior to 1979 are binding on the Fifth District Court of Appeals.)

Handbills, Handguns, and Mickey Mouse

Jan 27th, 2011
by Richard Hornsby.
4 comments

Recently an Orlando Sentinel article titled “Cracking down on pizza menus, other handbills distributed illegally at hotels” caught my eye. I found the story interesting because I have represented these supposedly rouge individuals who pass out flyers on private hotel properties. They are inevitably teenagers paid minimum wage to pass out flyers for some small, mom-and-pop pizza joint that is just trying to get a piece of the Disney pie.

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.

Two Wrongs Don’t Make a Right

Jan 14th, 2011
by Richard Hornsby.
84 comments

$583.73 – in the legal profession it is not a whole lot of money to be charged for “legal work.” In relationship to the Casey Anthony case, it is less than 1/4 of 1 percent of the $250,000 Jose Baez received from ABC and other sources.

But it is the requirement to pay the attorney’s fees (really a fine) of the State Attorney’s Office that highlights my biggest “beef” with the Casey Anthony defense team – both the “inexperienced” members and the “over the hill” members.

Specifically, they have repeatedly elected to create judicial theater to the detriment of their client; and while such antics may make for great news at 6 – they also make for very bad legal precedent for the rest of us practicing attorneys.

If you think the fine is improper or not warranted – stop whining, stop writing letters throwing your co-counsel under the bus, and stop making bad legal arguments. Instead either suck it up or appeal. In this case, the order to pay attorney’s fees, while warranted, appears to be illegally assessed – so appeal. If you don’t, it creates bad precedent for the rest of us.

Philosophical versus Professional Opinion

This brings me to the reasoning of fining Jose Baez $583.73 versus the legality of fining Jose Baez $583.73. While it might have been right, it was wrong.

From a philosophical stand point, I understand where Judge Perry is coming from. He is dealing with a defense team that has had one constant – Jose Baez.

And with Jose Baez at the helm for the past two years, the defense team has spent over a quarter of a million dollars – with absolutely nothing to show. It has inundated the Court with a multitude of motions – the majority of which have little to do with the actual substantive issues in their client’s case. It has now spent nearly $50,000 of the State of Florida’s money with little actual progress to show. And probably most important to Judge Perry, it has wasted, in the middle of a State budget crisis, the time of a large number of public employees.

And so, if this was the reason that Judge Perry finally dropped the hammer and fined Jose Baez – I completely understand.

Unfortunately though, Jose Baez is not the first attorney to cause needless delays, file meaningless motions, and in general show himself to be ineffective. This is a trait that has been shared by numerous prosecutors and defense attorneys over the years – and the issue of fining such ineffective attorneys has been litigated before.

This brings me to my professional opinion – from a professional standpoint Judge Perry’s order to pay the State’s attorney fees is clearly prohibited by existing case law. Specifically, absent statutory authority, a trial court has no legal authority to require either a prosecutor or a defense attorney to pay “attorney fees” or “court costs” to the other side or to the court. See State v. Nelson, 27 So. 3d 758 (Fla. 3d DCA 2010) (“The trial court does not have inherent authority to assess costs against the State Attorney’s Office in criminal cases.”); Williams v. State, 596 So. 2d 758 (Fla. 5th DCA 1992) (“It is well established that a court lacks the power to impose costs in a criminal case unless specifically authorized by statute;” dealing with circuit wide practice of fining defendants for wasting judicial resources by waiting until day of trial to plea.).

If Judge Perry wanted to legally fine Jose Baez, he would have had to hold him in contempt and hold a contempt hearing. See State v. Shelton, 584 So. 2d 1118 (Fla. 5th DCA 1991) (“Only through the use of criminal contempt procedures, direct or indirect, can a trial court assess fines or costs against an attorney in a criminal case.”). However Judge Perry specifically stated that he was not finding Jose Baez in contempt – for now. Thus his order requiring Jose Baez to pay the State Attorney’s office $583.73 was illegal.

Regardless, even if Judge Perry would have held a contempt proceeding, the proceeding carries many more protections and is much more involved than the hearing Judge Perry held.

Which brings me to a convergence of both my Philosophical and Professional opinions regarding the reasoning behind Judge Perry’s original order requiring the Defense to not only list their experts and their area of expertise; but also requiring them to state exactly what the experts would say. He premised this requirement on the general theory of litigation in Florida criminal cases that we do not engage in “trial by ambush.”

This is true and this is also the reason that Florida allows for depositions in criminal cases – so that both the Defense and State can “discover” what the other side’s witnesses will say. A Party can either take advantage of the opportunity to depose someone and thus avoid the “surprise” of what the witness has to say; or they can decline to depose the witness and risk being surprised by what the witness will say.

In Jose Baez’s case, I suspect that Judge Perry originally did not intend for his order to be so far sweeping as Jeff Ashton believed. However I have little doubt that the immature, if not childish, manner in which Jose Baez responded to the order is what pushed Judge Perry over the edge (in context of the entire case especially) and caused him to require such specific disclosures in ADVANCE of the deposition where in reality; our discovery system is set up so that Jeff Ashton can find out what the experts know at the deposition.

And so maybe Jose Baez was wrong in the way he responded to Judge Perry’s expert discovery order. But Judge Perry was wrong for requiring Jose Baez to pay the State Attorney’s Office attorneys fees of $583.73. Either Jose Baez’s conduct was contemptuous or it was not; but if Jose Baez’s response was wrong, but not contemptuous – it does not justify requiring him to pay the State’s “attorney’s fees” in violation of clearly established case law.

But more problematic for attorneys like me, Judge Perry’s fine sets a precedent for other Judges in the circuit.  And if it is believed it is okay to fine Jose Baez without finding him in contempt, what is to stop them from fining me any other attorney whose response to a Discovery Order is not believed to be in “substantial compliance.”

And that, ultimately, is what is wrong with this case and the fine: Two Wrongs Don’t Make a Right – just bad precedent for the rest of us.

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