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Criminal Law

Comments and analysis about criminal law and court rulings.

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.

Casey’s “Public Record” Exception

Oct 3rd, 2010
by Richard Hornsby.
35 comments

In an interesting twist, the Fourth District Court of Appeals issued Bent v. Sun-Sentinel (PDF), which held that an accused inmate’s phone conversations were not “public records” within the meaning of Florida’s public records law, and thus were not subject to being released to the media.

Far Reaching Implications

This ruling obviously has very far reaching implications, as in addition to her jail-house telephone calls and video visitation,  its reasoning applies equally as well to Casey’s written letters, if obtained and copied by corrections. However, I do not think it applies to the jail’s visitor log, but as I explain below, I think they have a legitimate argument that it does.

No More Excuses?

What this obviously means for Casey Anthony is that she no longer has a legitimate excuse not to see or speak with her parents, as the ruling’s holding would apply to both video and audio recordings. Or would she?

What will remain to be seen is whether this ruling would prohibit the State Attorney’s Office, as opposed to the jail, from releasing the recordings in discovery.

The Practical Fall Out

The practical application of this ruling is that the ability of the State Attorney to release the information will depend on whether the recordings were turned over to the State and the State then decided that they might possibly use the recordings as evidence.

I believe that the State’s ability to release the tapes would depend on whether the recordings realistically held any evidentiary value. For example, if it is just Casey chatting with a friend who is uninvolved with the case, the recordings would not be subject to release.

On the other hand, if it was a recording of Casey talking to a witness in the case, say her mother or father, it might be subject to release if the recording held potential evidentiary use at trial. If the recording was of no evidentiary value, the recording would not be subject to release not withstanding that the person whom Casey was speaking to was a witness in the case.

A Big IF

More than likely what will happen is that Judge Perry would have to make a case-by-case decision on whether to release recordings the State obtained from the jail – IF Casey were to resume contact with her parents.

Expect a Renewed Argument

So expect the defense to file a Motion first thing next week to enforce the Bent v. Sun-Sentinel ruling in Casey’s case.

But also expect the defense to grasp on to the below underlined language from the Bent v. Sun-Sentinel case:

The expectation that a deputy or state attorney may listen to a call is very different from an expectation that anyone and everyone could listen to the calls. Sensitive or embarrassing information, or information that would otherwise be confidential, like financial information of the inmate or the person called, could be disclosed to the public. Treating the recordings as public records allows anyone to request the recorded calls. Moreover, an accused child should be able to consult with a parent without the communication becoming a public record.
I suspect that the defense will argue this reasoning applies equally as strong to their contention that her defense team’s visitation log should not be subject to disclosure either, because just like the minor accused defendant in the Bent case, Casey’s attorneys will argue that she should be able to communicate with her attorneys (and order bras) without the occurrences becoming public record.

I also suspect that Judge Perry might be inclined to rule in their favor as it applies to the visitation logs, but what ultimately will need to happen is the defense act like real attorneys, and instead of whining to judge Perry, they instead file a Writ of Certiorari (basically an interlocutory appeal) like the “defense attorneys” in Bent did and ask the Fifth District Court of Appeals to define what is a public record as it applies to the Casey Anthony case.

p.s. Some of you budding legal eagles may have noticed that the Fourth District Court of Appeals issued the Bent opinion and surmised that it is not binding on the Casey Anthony case since the Fifth District Court of Appeals has jurisdiction over her case.

If this is what you believed, you would be wrong. As a District Court opinion on an issue of first impression is binding on all circuit courts unless and until another District Court issues a contrary opinion. See Pardo v. State, 596 So. 2d 665 (Fla. 1992). If a District Court were to issue a contrary ruling, the Florida Supreme Court would then have “conflict” jurisdiction to decide the issue once and for all.

Preparing for the Penalty Phase

Sep 9th, 2010
by Richard Hornsby.
67 comments

RULE 3.202. - EXPERT TESTIMONY OF MENTAL MITIGATION DURING PENALTY PHASE OF CAPITAL TRIAL: NOTICE AND EXAMINATION BY STATE EXPERT

(a) Notice of Intent to Seek Death Penalty. The provisions of this rule apply only in those capital cases in which the state gives written notice of its intent to seek the death penalty within 45 days from the date of arraignment. Failure to give timely written notice under this subdivision does not preclude the state from seeking the death penalty.

(b) Notice of Intent to Present Expert Testimony of Mental Mitigation. When in any capital case, in which the state has given notice of intent to seek the death penalty under  subdivision (a) of this rule, it shall be the intention of the defendant to present, during the penalty phase of the trial, expert testimony of a mental health professional, who has tested, evaluated, or examined the defendant, in order to establish statutory or nonstatutory mental mitigating circumstances, the defendant shall give written notice of intent to present such testimony.

(c) Time for Filing Notice; Contents. The defendant shall give notice of intent to present expert testimony of mental mitigation not less than 20 days before trial. The notice shall contain a statement of particulars listing the statutory and nonstatutory mental mitigating circumstances the defendant expects to establish through expert testimony and the names and addresses of the mental health experts by whom the defendant expects to establish mental mitigation, inso far as is possible.

(d) Appointment of State Expert; Time of Examination. After the filing of such notice and on the motion of the state indicating its desire to seek the death penalty, the court shall order that, within 48 hours after the defendant is convicted of capital murder, the defendant be examined by a mental health expert chosen by the state. Attorneys for the state and defendant may be present at the examination. The examination shall be limited to those mitigating circumstances the defendant expects to establish through expert testimony.

What Does all of this Mean?

Jeff Ashton has already gone on record that the reason the State sought the Death Penalty was because Casey Anthony was the first women who did not have some mental issue that justified not seeking death penalty.

This suggests that the State consulted with a mental health professional before seeking the death penalty to reach such a conclusion.

This also suggests that when the Defense files their Notice of Intent to Present Mental Health mitigation pursuant to Rule 3.202 exactly twenty days before the trial is slated to begin, the defense fully expects that the expert the State selects to examine Casey Anthony will disagree that any mental health mitigator exists.

Preemptive Defense

In anticipation of this, the defense brings Ms. Sims on board specifically to debunk the State expert’s methodology.

And I think the support for this hypothesis of mine can be found in a quote of hers found in an article in NJEsq, Author says methods detect doctors’ lies, which quoted her as saying:

“The thing that disturbs me the most [about psychological tests] are when they are misused in criminal cases or – child custody cases.” Sims said.

Smoke and Mirrors, Smoke and Mirrors.

Many would ask that if Ms. Sims is only being brought on to cross-examine penalty phases witnesses, why file a Notice of Appearance now.

I believe that the timing was done solely to throw the State off. If they think Ms. Sims will be used only to attack Dr. Garavaglia, they likely would not prepare their chosen penalty phase mental health expert thoroughly.

Whereas if Ms. Sims filed a Notice of Appearance contemporaneously with the defense teams filing of their Notice of Mental Health Mitigator, the State would have no problem figuring out her purpose.

Little Medical Evidence

Finally, my belief that this is the case is because there is actually very little medical evidence for Ms. Sims to attack.

Dr. G’s autopsy report clearly states that Caylee died by unknown means, and the reason she ruled it Homicide is because of the duct tape and the peculiar circumstances of her disappearance and ultimate discovery. Quite frankly, there is little to cross-examine.

So that is my story and I am sticking to it.

Is This Call Being Recorded?

Jul 18th, 2010
by Richard Hornsby.
62 comments

Well it looks like somebody got caught with their hand in the cookie jar while I was away, as our good friend Jose Baez filed an eight paragraph Motion for Protective Order Regarding a Telephone Recording of Robin Lunceford.

And since I had nothing better to do after a week long vacation, I thought it would be nice to annotate and analyze the eight paragraph motion for my unfaithful readers to help them understand what really transpired between Jose Baez and Robin Lunceford.

Annotations of the Motion

Paragraph 1:

He received a phone call from an ex-inmate who stated she had a friend who conspired with Maya Derkovic to create a lie to possibly benefit from her knowing Casey Anthony at the Orange County Jail. The unknown caller informed the undersigned that she would be calling later that evening.

Basically, Jose received a phone call saying a current inmate would be calling him (collect most likely) that evening with information about Maya Derkovic. (Jose likely soiled his underwear from sheer excitement.)

Paragraph 2:

Shortly thereafter, the undersigned counsel was advised by his secretary after hours, that Robin Lunceford was attempting to reach him. The case was transferred to the undersigned counsel cell phone, upon which a conversation with the prospective witness occurred.

Considering Jose failed to list his secretary’s name and I don’t know any secretary who works after hours, I suspect what really happened is that when Robin Lunceford called, his after-hours answering service answered (almost every solo lawyer uses one – I use a company called Signius) and forwarded the call to him. (Personally, for Jose, I hope my suspicion is incorrect, because lack of candor with judges and misrepresentation are big no-no’s for lawyers.)

Paragraph 3:

While it became known that Robin Lunceford was calling from a corrections Institution, the undersigned counsel was never made aware that the call was being recorded by either Robin Lunceford or the standard recording that is usually played when receiving a call from a Correctional Institution.

Even though he admits to knowing the phone call was from an incarcerated prisoner, he claims ignorance it could be recorded because he never heard the “standard recording” telling the recipient the call originated from a prison and was subject to being recorded.

Well duh! His answering service – cough, cough – I mean secretary heard the “standard recording” before forwarding it to him (How else could she have answered). And the secretary’s knowledge of the recording would be imputed to him.

It is also possible that a Three-Way call was initiated by Robin Lunceford, but since Jose admits to knowing the call originated from a prisoner, he still lacks a reasonable expectation of privacy.

Paragraph 4:

As the Court may already be aware, all calls are not recorded when coming from a Correction Institution. Many times inmates have access to telephones specifically designed for contact with attorneys and sometimes counselors allow inmates to make non-recorded calls, and on certain occasions inmates obtain contraband cell phones.

Well looky here, there happens to be a Florida regulation that specifically regulates the circumstances by which a State Prisoner (as opposed to a person housed in a county jail) can use the telephone. See Florida Administrative Code 33-602.205 “Inmate Telephone Use” This regulation states that all calls will be monitored. And while there is an exception for calls to attorneys, the exception does not apply to Jose Baez per subsection (3).

With that said, it is true that I too have received phone calls from inmates using the chaplain’s office, only come those call have come from inmates in a county jail – never in a prison

Paragraph 5:

Among other topics discussed the undersigned was made aware that Robin Lunceford along with Maya Derkovic conspired with Robin Adams to possibly benefit by lying to the State about Casey Anthony. Maya Derkovic’s apparent motivation was to receive a transfer to another institution for her information. Subsequent to this conversation Maya Derkovic was transferred to another correctional institution in Broward County.

Again, DUH! Apparently he did not read my blog posts. (See An Open Letter to Web Sleuthers Everywhere… and Of Rats and Women)

Paragraph 6:

The Defense has just been advised by Assistant State Attorney, Linda Drane Burdick that the State intends to release a recording of this telephone conversation in discovery.

Oh what a tangled web we weave, When first we practise to deceive! More contemporarily quoted as Oh Sh!t. (Jose likely soiled his underwear from sheer fear of what he said on the tape.)

Paragraph 7:

The Defense contends that this conversation is not only protected by the work product doctrine it further argues that it would be a third degree felony pursuant to 934.06.

See below: “Analysis: Work Product.”

Paragraph 8:

The undersigned requests that the State not listen to the illegally recorded statements as the use and disclosure of the unlawfully intercepted conversation would be a third degree felony pursuant to F.S. 934.03. Additionally, F.S. 934.06 specifically states “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived there from may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.

See below: Analysis: F.S. 934.06 “Interception and Disclosure of Oral Communications Prohibited.”

Analysis: Work Product

Our good friend Jose Baez first seeks the court’s protection from the disclosure by the State of the recording between him and Robin Lunceford by claiming the conversation was “Work Product.”

The discoverability of Work Product information is addressed in Florida Rule of Criminal Procedure 3.220(g)(1) (Titled Work Product), which states: “Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs.”

Arguably, a taped conversation between Jose Baez and Robin Lunceford could constitute “record or correspondence.” But to understand if the Work Product “privilege” applies to Jose Baez’s conversation with Robin Lunceford, it is important to understand the policy reasons behind protecting Work Product of lawyers.

And interestingly enough, none other than Justice Thomas D. Sawaya, a judge who sits on the Fifth District Court of Appeals (the court that will handle any appeal related to the Casey Anthony case) wrote the leading primer on the Work Product privilege in Florida, titled appropriately enough: “The Work Product Privilege in a Nutshell” The Florida Bar 67-AUG Fla. B.J. 32 (1993).

The article states that ”the primary policy objective of the work-product doctrine is to preserve the effective assistance of attorneys and others employed to help prepare a case for trial. By maintaining the privacy of communications between client, attorney, and others employed in preparing for litigation—especially privacy in the development of legal theories, opinions, and strategies-the doctrine fosters the effectiveness of legal assistance upon which our adversarial system of justice depends.”

However, the article goes on to point out that “voluntary disclosure of privileged matter to a third party generally waives the privilege.”

What this means is that communications between the client, attorney, and others employed in preparing for litigation are privileged as Work Product, however the privilege does not apply to communications with people not employed in preparing for litigation – i.e. Robin Lunceford or maybe even an after-hours answering service?

So it seems clear that the Work Product argument advanced by Jose Baez was simply a shot in the dark with no legal basis.

Analysis: F.S. 934.06 “Interception and Disclosure of Oral Communications Prohibited.”

For those of you unfamiliar with Section 934.06, Florida Statutes, it basically says that any surreptitious recording of a conversation obtained in violation of Section 934.03, Florida Statutes, cannot be used in any legal proceeding.

Section 934.03 then goes on to list a series of circumstances under which the “Oral Communication” of a person can or cannot be surreptitiously recorded. However these circumstances are only looked to once it is determined that the communication is an “Oral Communication” as defined by Section 934.02, Florida Statutes.

Section 934.02(2) defines an Oral Communication as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”

Chapter 934 (Florida Wiretapping Act) codifies Article 1, Section 12 of the Florida Constitution, which states:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated.

…

This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.

Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

And as you can imagine, the Florida Supreme Court has had many opportunities to interpret Article 1, Section 12, Chapter 934, and the Fourth Amendment and have concluded that “under both the Fourth Amendment and the Florida wiretapping act [1] a speaker must have an actual subjective expectation of privacy and [2] our society must recognize that the expectation is reasonable for the oral conversation to be protected.” See Jackson v. State, 18 So. 3d 1016, 1030 (Fla. 2009).

With this as our starting point lets examine Jose Baez’s situation.

Did Jose Have an Actual Subjective Expectation of Privacy?

Even if were true that Jose Baez was never made aware that he was being recorded, the real question is whether he had an actual subjective expectation of privacy.

Considering that Jose Baez is a lawyer and he does not dispute he knew that Robin Lunceford was calling him from prison, it would defy logic for him to reasonably believe that any conversation with a person in a Florida state prison was not being recorded.

Moreover, even if we were to realistically believe she called him from a contraband cellular phone (this is the last thing I would ever assume), he should know that her doing so constitutes a crime on her part. Thus any recording made of her when committing this crime is not protected under Chapter 934.

A more likely scenario though is that she called him three-way and this is why neither his secretary, nor he heard the “standard recording” informing him he was being recorded.

However, because he is a lawyer, he should “subjectively” know that this is the most likely way he was called and should know that there was a third person on the line – thus he had no expectation of privacy between himself and Robin Lunceford.

Finally, even if we were to believe that Jose Baez “personally” never heard any “Standard Recording” the real question is whether the person who answered the phone call originally i.e. his “secretary” heard the recording. If she did, but failed to advise him of this, he cannot be heard to complain because his assertion of the Work Product privilege imputes her knowledge of the circumstances of the call to him. (Ain’t life a bitch.)

And this is why I think he so vaguely drafted his motion as to what he “personally” heard or knew. Because chances are the person who answered the call heard the “Standard Recording” – but just didn’t tell poor old Jose.

Even if there was an Expectation of Privacy, Does Our Society Recognize it as Reasonable?

Even assuming that Jose Baez had a subjective reasonable expectation of privacy, the real question is whether our society is prepared to recognize his expectation as reasonable considering he was talking to a person whom he knew was a convicted felon, in prison, and who was not his client.

Unfortunately for Jose Baez, the Florida Supreme Court has addressed this issue time and time again; and each time they have specifically held that “society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security.” State v. Smith, 641 So. 2d 849 (Fla. 1994);  See Jackson v. State, 18 So. 3d 1016, 1030 (Fla. 2009) (“The interest in institutional security allows jailhouse conversations to be monitored.”). See also McWatters v. State, (Fla. 2010) (An inmate has no reasonable expectation of privacy in a telephone communication from jail where the inmate is warned that all calls are monitored or recorded.) (For those of you paying attention, McWatters is also the case I cited in “911, What’s Your Emergency?” and the case Chief Judge Perry specifically cited in admitting two of the three 911 calls, Déjà vu.)

So no, our society would not be willing to recognize Jose Baez’s claimed “subjective expectation of privacy” as reasonable. As a result he is not entitled to have the court grant his protective order and prevent the State from releasing the taped conversation.

Ironically though, even if Ninth Judicial Circuit Chief Judge Perry were to throw Jose Baez a bone and grant him some relief, Judge Perry does not have jurisdiction over the Lowell County Annex located in Marion County of the Fifth Judicial Circuit.

Thus a public records request there would require the Lowell County Annex to release any phone calls of Robin J. Lunceford from May of 2010. (hint, hint)

911, What’s Your Emergency?

Jun 21st, 2010
by Richard Hornsby.
27 comments

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

Release the Hounds…

Apr 9th, 2010
by Richard Hornsby.
28 comments

The audio of the jailhouse telephone calls of Robyn Adams, Maya Derkovic, and Cecelia Holloway (aka Crystal Benhaida).

Please note I have been uploading all morning and am halfway through Disc 2 of Robyn Adams and Disc 3 will be up afterwards – probably another hour or so.

Please post your feedback at the WebSleuths forum as my server will likely be slow today.

Deadline to Object to Release of Jailhouse Letters is…

Apr 3rd, 2010
by Richard Hornsby.
29 comments

I just saw the Orlando Sentinel TV Guy’s post about the disagreement between WESH and WTFV, I mean WFTV (sorry, Freudian slip)  regarding when the deadline is for Casey Anthony’s defense team to file an objection to  the State releasing Casey Anthony’s  jailhouse letters and thought I would step in and clear this up before everyone gets their suspenders in a knot…

The deadline for filing an objection to Casey Anthony’s jailhouse letters is Monday at 5:00 p.m. – meaning the earliest the State could release them is Tuesday morning.

This is because all legal deadlines in criminal cases are controlled by Florida Rule of Criminal Procedure 3.040. (The rule is the same in civil cases as well, but defined under a separate number in the civil rules.)

Florida Rule of Criminal Procedure 3.040 - Computation of Time

In computing any period of time prescribed or allowed by these rules, by order of court, or by anyapplicable statute, the day of the act or event from which the designated period of time begins to run is not to be included.

The last day of the period so computed shall be counted, unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day that is neither a Saturday, Sunday, nor legal holiday.

Under this rule, the day that Judge Strickland imposed the fifteen day limit (March 18, 2010)  is not counted and the following day (March 19, 2010) is considered Day 1  in the computation.

So if March 19 was day 1, then according to my calendar Friday, April 2, 2010 is Day 15 – meaning he would have until the close of the business day to file an objection to the release.

But egads! the Orange County Clerk of Court was closed to the public for Good Friday! And the following two days, Saturday and Sunday, are the “weekend.”

Well since Friday was a legal holiday (See Ninth Circuit Legal Holidays), by operation of rule 3.040, when such time and space continuum problems arise; the deadline is “magically” extended until the next full business day.

So the answer to that WESH and WTFV “disagreement” is that they (and CF13 News as well) are incorrect (nothing new for WTFV, not a big deal for CF13, and WESH wins the award for being the closest).

Anyway, the answer is that Casey Anthony’s defense team has until the close of business on Monday to file an objection to the release of the jailhouse letters. Meaning the earliest the State is legally allowed to release them is Tuesday morning (or maybe Monday at 5:01 p.m. – I’m not really sure on that).

Peace out my unfaithful and catch me this Sunday at 8.p.m. on “Watts up With This!” on BlogTalkRadio, while we discuss the latest Casey Anthony nonsense.

p.s. I spoke to someone at the State Attorney’s Office who has read the letters and the only thing he would tell me is that they are “drivel.” MY ASS! Chloroform is a big deal as is no more Zenaida..

p.s.s. What makes you think they will file an objection anyway? With the “Game Changer” on board, maybe they have figured out when to “hold ‘em and when to fold ‘em.”

Please Read Florida Statute 27.52(7) Regarding Determination of Indigent Status

Mar 18th, 2010
by Richard Hornsby.
51 comments

(7)  FINANCIAL DISCREPANCIES; FRAUD; FALSE INFORMATION.–

(a)  If the court learns of discrepancies between the application or motion and the actual financial status of the person found to be indigent or indigent for costs, the court shall determine whether the public defender, office of criminal conflict and civil regional counsel, or private attorney shall continue representation or whether the authorization for any other due process services previously authorized shall be revoked. The person may be heard regarding the information learned by the court. If the court, based on the information, determines that the person is not indigent or indigent for costs, the court shall order the public defender, office of criminal conflict and civil regional counsel, or private attorney to discontinue representation and revoke the provision of any other authorized due process services.

(b) If the court has reason to believe that any applicant, through fraud or misrepresentation, was improperly determined to be indigent or indigent for costs, the matter shall be referred to the state attorney. Twenty-five percent of any amount recovered by the state attorney as reasonable value of the services rendered, including fees, charges, and costs paid by the state on the person’s behalf, shall be remitted to the Department of Revenue for deposit into the Grants and Donations Trust Fund within the Justice Administrative Commission. Seventy-five percent of any amount recovered shall be remitted to the Department of Revenue for deposit into the General Revenue Fund.

(c)  A person [even an attorney] who knowingly provides [files] false information to the clerk or the court in seeking a determination of indigent status under this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

A Must Read: In the Trenches

Dec 31st, 2009
by Richard Hornsby.
Comments are off for this post

Simply a must read.

In the Trenches by Norm Pattis, A Connecticut Trial Lawyer

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