Criminal Procedure

Comments and analysis about criminal procedure in Florida.

The Great Probation Debate

Aug 2nd, 2011

The Check Fraud Case

On Monday, January 25, 2010 Casey Anthony pleaded guilty Monday to 13 counts of check fraud. At the time of her plea, she was also being held in jail without bond on charges of murder, manslaughter, and lying to police.

Judge Strickland or Judge Solomon

In what can only be described as recognition of the chess game the State was playing with Ms. Anthony’s life by demanding the check fraud case go to trial first, Judge Strickland did not formally convict her on all 13 check fraud counts and instead threw her a lifeline by withholding the adjudication of guilt on 7 of the counts. (As I had predicted he would prior to the sentencing.)

By withholding guilt on 7 of the counts, Casey Anthony was only considered a six-time convicted felony; as opposed to a 13 time convicted felon. At the time, the felony convictions were extremely valuable to the State Attorney for impeachment purposes should Casey Anthony testify or her self-serving statements somehow be admitted (which Jose Baez almost opened the door too).

The “Catch”

But by withholding adjudication there was a legal catch. Under Florida Statute 948.01, a judge cannot withhold adjudication of guilt on a felony UNLESS they also place the person on probation.

And that is exactly what Judge Strickland did, even though everyone knew she was being held in jail on No Bond for the murder case, Judge Strickland ORALLY pronounced that she was sentenced to the 412 days she already spent in jail on the check fraud charges, but for each count he Withheld Adjudication of Guilt on, he also placed her on One Year of Supervised Probation to be served “once released.”

An Indefinite Sentence?

Almost immediately after Judge Strickland explained his sentence, Assistant State Attorney Frank George raised his concerns that such a sentence would be considered an “indefinite” sentence under Florida law (which is illegal) because Ms. Anthony would obviously be held in jail and therefore could not begin her probation for the foreseeable future.

Judge Strickland stuck with his original pronouncement and stated that if the State could think of a better idea, they should file a motion seeking the better idea. They never did.

The Confusion

While Judge Strickland’s intentions were clear, there seems to have been some confusion because the sentencing minutes that were generated after the hearing, and which Judge Strickland signed, simply stated credit for 412 days jail followed by one year of supervised probation. Notably, the sentencing minutes never contained the magical words “upon release” at the end of the sentence – not that they needed to.

And because the sentencing minutes lacked the magical words “upon release,” the Florida Department of Corrections unilaterally decided that her probation began running while she was in jail and her probation ended on January 24, 2011.

Presumably, the reason they interpreted it this way is that she was in jail awaiting trial, as opposed to serving a sentence. (Never mind she was ultimately sentenced to all the time spent awaiting trial and then some.) Thus by giving her credit for the time she spent in jail towards her probation she was allowed to double dip and essentially get a two for one.

And since nobody brought the Department of Corrections oversight to the court, no clarification was ever provided from Judge Strickland’s office.

Which brings us to the heart of the matter, was there a discrepancy between Judge Strickland’s oral sentence and the sentencing minutes in the first place. If so, did it even need to be clarified?

The Legality of Judge Strickland’s Sentence

To begin, the Florida Supreme Court has held time and time again that “a court’s oral pronouncement of sentence controls over the written document.” State v. Jones, 753 So. 2d 1276 (Fla. 2000) This principal was recently reaffirmed by the Florida Supreme Court in State v. Akins, 36 Fla. L. Weekly S215a (Fla. May 26, 2011) (“when there is a discrepancy between the written sentence and ‘the oral pronouncement, the oral pronouncement prevails.’)

As a result, even if there was a discrepancy between Judge Strickland’s oral pronouncement of sentence, where he said the probation was to begin “once released” and the written minutes that omitted these “magical words,” the oral sentence still controls – irrespective of how the defense or the Department of Corrections wants to interpret it.

Did Written Order Actually Conflict with Oral Sentence?

Nonetheless, even if the written sentencing minutes did not contain the magical words “upon release,” Judge Strickland did not legally have to even include them in his oral pronouncement for Casey Anthony’s probation to have begun “once released.”

This is because the general rule is that when a person is sentenced to incarceration followed by probation and the person completes the custodial portion of the sentence, but nonetheless remains incarcerated on another offense, the probationary portion is tolled (meaning does not begin) until the person is released from incarceration in the other case being held on. See Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000). This means that absent specific language stating that Casey Anthony’s probation was to run while she remained in jail, her probation was tolled by operation of law – Judge Strickland was not required to include any magical language stating “upon release.”

Does the Defense have a Legitimate Double Jeopardy Argument?

Actually, the defense has TWO legitimate Double Jeopardy arguments.

Argument 1: Being Supervised Twice

The first argument is that requiring Casey Anthony to report to probation now amounts to double jeopardy since the Department of Corrections already “supervised” her for one year while she was in jail.

The problem with this argument is that Casey Anthony never actually did anything; a probation officer visited her at least one time and then verified her continued incarceration for the next twelve months (thus accounting for the “contacts” DOC references – read look her up online). My gut feeling is that a Court of appeals would not be to sympathetic to Ms. Anthony, because she was not actually reporting to probation and there was no impediment placed on her liberty.

I think an appellate court would say that one that the Department of Corrections actions did not amount to supervision and two, they could not supervise someone without lawful authority. And as explained earlier, a person cannot serve probation while in jail (unless the jail is made a specific condition of probation).

Argument 2: “Clarification Order” is Void

The second argument is that Judge Strickland’s Clarification Order amounts to double jeopardy because Casey Anthony had already served her sentence and the Judge’s jurisdiction to clarify the sentence had long since expired. Therefore, once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. Ashley v. State, 850 So. 2d 1265 (Fla. 2003)

Scrivener’s Error

On its face, this argument is correct. As a Judge only has 60 days from the date of a sentence to correct a scrivener’s error, which refers to a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not those errors that are the result of a judicial determination or error. Rule 3.800 Fla.R.Crim.Pro.

In Ms. Anthony’s case, the judge’s 60 days of jurisdiction expired on March 26, 2010. As a result, the “Clarification Order” entered by Judge Strickland is void, illegal, and unenforceable. Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009); rev. denied. State v. Stang, 41 So. 3d 206 (Fla. 2010).

Warren Stang and Casey Anthony Sitting in a Tree, Dou-ble Jeop-ar-dy

Stang is an important case because on its face it is very similar to Ms. Anthony’s case. In Stang’s case, he was sentenced to consecutive sentences on multiple counts in a violation of probation case and given a total of 27 years in prison. Notably, the oral sentencing pronouncement intended for him to get credit for 1,915 days towards the 27 years; meaning he would have about 23 more years to do.

However, his sentencing minutes appeared to give him 1,915 days credit towards each count. The net result was that he only had 2 more months on his sentence, not 23 years. The Department of Corrections noticed this and asked the judge to clarify his sentence. So 67 days after the sentence was imposed, the court entered a “Clarification Order” (sound familiar) saying that the credit was towards the total years, not each count.

The appellate court upheld the two month interpretation, finding that the Court lacked jurisdiction to clarify the order because more than 60 days passed and finding that based on double jeopardy, once credit has been awarded, it cannot be rescinded – even if granted in complete error.

What is notable about this case is that the State Attorney’s Office never challenged the defendant’s post-conviction motions on the merits. Because if they had, the transcripts of the oral pronouncement shows that the credit was only given towards the years, not each count.

And this is notable, because the case went all the way to the Florida Supreme Court; and the Florida Supreme Court denied review of the case specifically because the State Attorney did not provide the transcripts until after the case had been affirmed by the District Court of Appeal (meaning the State simply argued the case based on the sentencing minutes and did not get the hearing transcribed). See State v. Stang, 41 So. 3d 206 (Fla. 2010).

What the clear indication of this procedural defense means is that had the transcript originally been provided to the lower courts; the Florida Supreme Court would likely have agreed that the oral sentence controls and Mr. Stang had 24 more years in prison to complete.

The Current Situation

This brings us to the current situation in Ms. Anthony’s case. It is understood that the defense will first file a Motion to Disqualify or recuse Judge Strickland. I have no doubt that Judge Strickland will grant his request and the case will then be turned over to a new judge.

Can the Successor Judge Vacate Judge Strickland’s Clarification Order

The Defense will have 20 days to file a Motion for Reconsideration asking the successor judge to vacate the Clarification Order entered by Judge Strickland. See Rule 2.330, Fla.R.Jud.Admin.

It is my opinion that the new judge will likely agree to vacate Judge Strickland’s Clarification Order, as it is clearly Void and unenforceable under Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009)

Coming Full Circle

However, just because Judge Strickland’s Clarification Order is void and unenforceable; it does not mean his original sentence is unenforceable.

To the contrary, Judge Strickland’s original sentence still controls and the Department of Corrections – as a member of the executive branch – has a duty to enforce it. This is because, by operation of law, Ms. Anthony’s probation was tolled while she was in jail awaiting trial on the murder case.

If the defense wants to then argue that she was supervised in jail and thus double jeopardy prevents her from being supervised again; by all means, they should argue it – I know I would.

But that has been my point from the very beginning, it is not for the State Attorney or the Department of Corrections to decide whether requiring Ms. Anthony to report to probation as Judge Strickland intended amounts to Double Jeopardy – it is up to a court to decide.

Have Some Balls Lawson Lamar; Defend Strickland’s Sentence

I know next year is an election year and you want to distance yourself from Ms. Anthony and the boondogle of a prosecution you put on lest a formidable opponent emerge to run against you.

But seriously, the Very Honorable Lawson Lamar needs to grow a sack and defend Judge Strickland’s sentence and provide this community with some sense that you aren’t afraid of big bad lawyers like Mike Snure, Donald Lykkebak, and “gulp,” Cheney Mason, who make mince-meat our of your high profile cases.

If you thought she was such a danger to society that you were committed enough to have her executed, I think you should be committed enough to at least try and have the Department of Corrections execute a simple probation sentence on her for one year.

If you don’t, the irony is indeed rich that Jose Baez and Cheney Mason ultimately made you their Bitch.

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.

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:

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.
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.
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.

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).
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).

Directory of Jail Audio

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.”

Casey Anthony Gets a Reality Check

by Richard Hornsby.

138 comments

Hello my unfaithful!

Well, Friday brought some interesting events, oh where to begin? The beginning is always a good place to start…

But before I do, I should point out I have left out discussion on the video arguments because I covered it previously (How the Grinch Stole Casey Anthony’s Christmas) and nothing new came out during Friday’s hearing.

Dominic Casey’s Protective Order

To the lay person, this part of the hearing may have seemed overly confusing – but in actuality is rather simple from a legal perspective. Let me explain.

Basics of Ongoing Investigations

Notwithstanding the ongoing prosecution of Casey Anthony, the State Attorney is free to continue to investigate the case, as is the defense.

So let’s say that a potential witness is brought to either side’s attention. The first thing they might do is see if the person would voluntarily come in and speak with them. If the person agrees (as with Kronk’s ex-wives), no problem – if the person does not agree, well then we have a problem. At this point the person must be compelled to testify.

Devlin v. Rosman, although a civil case, explains this concept in a fairly straightforward manner.

It is the general rule that attorneys for one party in a pending cause are free to interview the other party’s intended witness without the consent or presence of opposing counsel. This presupposes that the person thus sought to be interviewed is willing to submit thereto. If he is not, he may insist that his views or testimony be given only upon deposition or at a trial or other court proceeding in the cause, after having been subpoenaed. Devlin v. Rosman, 205 So. 2d 346, 347 (Fla. 3d DCA 1967)

The State Attorney’s Investigative Subpoena Power

However, let’s say the State comes across a witness that both:

Is not listed by the defense, and
Does not want to voluntarily cooperate.

Well the State is then entitled to issue what is referred to as an investigative subpoena. See Section 27.04, Florida Statutes – “Summoning and examining witnesses for state.”

Once served with the investigative subpoena, the person is required to appear before the State Attorney and answer any questions they have. The only questions they are not required to answer are ones that go to areas that are constitutionally, statutorily, or procedurally protected (meaning privileged). Nevertheless, the State can offer use immunity and require the protected information be divulged.

So in the instant case, even if Dominic Casey had privileged information that belonged to George and Cindy Anthony, the State could offer use immunity that would allow them to pierce the privilege and ascertain what he knows. If he divulged something that could get him, George, or Cindy into trouble, he (and presumably they, not quite sure) would be immune from prosecution based upon discovery of this information.

Now, let’s say that the State Attorney is provided information regarding the Casey Anthony case by the previously unlisted witness. At this point they are required by Florida Rule of Criminal Procedure to list Mr. Casey as either a category A, B, or C witness. See Florida Rule of Criminal Procedure 3.220(1)(B)(1)(A).

Essentially Category A witnesses are any material witness, Category B witnesses are expert witnesses whose testimony is fully laid out in a written report, and Category C witnesses are people who have no real information to provide (think records custodians).

The Defendant’s Deposition Subpoena Power

Now prior to this point, the defense had no “authority” to compel any witness to speak with them. However, once listed by the State, the defense is then authorized by Florida Rule of Criminal Procedure 3.220(h) to “depose” a person if the person does not want to voluntarily speak with the defense.

And at its core, a deposition (as opposed to an interview) is nothing more than a “compelled sworn interview” in the presence of both parties. Meaning the person was required to appear pursuant to a court order (compelled), to be placed under oath (sworn), and answer questions (interview).

Now a final nuance to this discussion is what happens when the defense team places a person on their witness list. Remember that the defense had no authority to require state witnesses to sit for an interview until the State actually lists them. And if the defense wants to speak with an uncooperative state witness, he can subpoena them for a deposition.

The flip side of this coin is that “[i]f defense counsel wants to protect against the state’s ex parte [compelled] examination of a witness, he can do so by furnishing the witness’s name on his list of defense witnesses.” See Dufour v. State, 495 So. 2d 154, 161 (Fla. 1986).

The reasoning is that if the State could compel a listed defense witness to appear without notice to the defense, the state might “inject certain information to influence or bias the testimony” of the witness. See generally Lee v. State, 324 So. 2d 694, 698 (Fla. 1st DCA 1976).

So really what this boils down to is that until Jose Baez lists Dominic Casey as a witness, he has no right to be present at an investigative interview by the State.

If he does list Dominic Casey as a witness, the State is required to notice the defense of the “interview,” which is now legally defined as a “deposition.”

The Bottom Line

Which leads us to Judge Strickland’s final remarks:

“Call me if there is a problem.”

Essentially he instructed the parties to go forward with the interview/deposition and to call him (literally) if there are any objections based on privilege that must be ruled on during the interview/deposition.

This procedure saves everyone’s time and money, lessens the spectacle, and allows the case to move forward.

Yay for Common Sense!

The Double Jeopardy Motion

Since both the defense and state rested on their pleadings during their argument, I will rest on my previous analysis of the motion found in How the Grinch Stole Casey Anthony’s Christmas.

As for who has the better legal argument, I would point out that the State cited State v. Sholl, 1D08-4826 (Fla. 1st DCA 2009) – the same case I cited days before they filed their motion. On the other hand, the defense did not – you figure out who I think did better.

And like the State, I will not comment (too much) on Mr. Baez’s editorial comments except to say that what he expects of Casey Anthony’s case is precisely what he argues against – special treatment. And as a local practitioner, his continued hypocrisy disgusts me. When I was a public defender, I saw hundreds of cases where seemingly excessive counts were filed, just like Ms. Anthony’s case.

Before I go any further though, a lot of people have asked why Judge Strickland did not rule right away – and here are my thoughts.

It is not unusual for him to reserve ruling on motions and issue an order afterward. And while he has never come out and said so, most practitioners (including myself) believe he does this as a professional courtesy to the lawyers who argued the motion.

Because it allows the attorneys who argued the (likely) losing side to save face during the hearing and break the bad news to their clients in private (Casey, we almost convinced him otherwise he would not have waited to rule – next time). Seriously though, I am glad he does that as it make life for the average practitioner easier.

Moving on though, Judge Strickland did provide some interesting insight that is worthy of discussion.

Reading Between the Lines

At the end of the discussion of the double jeopardy issue, Judge Strickland took the unusual step of giving his thoughts on the motion; and I think it was very shrewd on his part. So let’s examine what he said:

He began by saying that he would get out a:

“Short order on the alleged double jeopardy violation.”

Well, let me tell you something, judges do not issue short orders granting motions to dismiss – they issue very long ones.

He then added that the Check Fraud case is:

Going to get resolved either by trial or plea before the Capital case.

Judges who are going to dismiss cases don’t say that either.

So reading between the lines, it seems clear how he will rule on the motion (and how meritorious he thinks it is) – MOTION DENIED (I bet he even cites State v. Sholl).

The Real Issue is Punishment

Now here is where Judge Strickland took an unusual, but shrewd step.

Not only did he basically deny the motion, but he essentially stated how he would sentence Casey Anthony if she was found guilty.

After stating “the real issue is punishment…” he went onto explain how he would sentence a “first time offender.” And to understand why this is so important, you must understand some basic Florida Sentencing Law.

Generally, a “judge may neither state nor imply alternative sentencing possibilities which hinge on future choices, such as the exercise of the defendant’s right to a trial.” And if the judge does imply a potential sentence, but subsequently imposes a harsher one, the sentence will be presumed to be vindictive and subject to reversal on appeal. See Longley v. State, 902 So. 2d 925 (Fla. 5th DCA 2005) (A case that involved yours truly!).

So with that general principle of law, lets examine what Judge Strickland said, which was:

He would deal with Casey Anthony the same way he would deal with anybody else who sits there with no priors, which would generally be jail time and frequently concurrent sentences.

Now Judge Strickland did not use the words consecutive, incarcerate, probation, or prison - he said “jail and concurrent sentences.” And under Florida law these terms have distinct meanings.

Specifically, for a felony offense, a person can be sentenced to no more than 1 year in a county jail. See Section 922.051, Florida Statutes. If the cumulative sentence exceeds 1 year, the person must be sentenced to prison. See Section 775.08, Florida Statutes.

Additionally, he said concurrent sentences. This is also codified in Section 921.16, Florida Statutes, states:

A defendant convicted of two or more offenses charged in the same information, or [consolidated indictments] shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.

A final point of law that needs to remembered is that if he sentences her to jail, with no probation, he is required by law to adjudicate her guilty of each count. See Section 948.01(2), Florida Statutes. And this is all that the State really wants out of the Check Fraud case anyway.

So considering Casey Anthony has been in jail for excess of 1 year on the Check Fraud case, Judge Strickland basically told both parties that if convicted he will Adjudicate her Guilty and sentence her to concurrent sentences of 1 year in jail on each count, with credit for time served.

Meaning, a time served sentence – but a sentence that leaves her as a convicted felon on each count.

Now Why Did He Do This?

Well he did it because he is a fair judge, but also because he doesn’t want this Check Fraud case to be dragged out unnecessarily.

As I discussed in Casey Anthony: Insufficient Funds Part Deux, the guilt is overwhelming apparent and the defense only wants to delay the case to avoid the convictions.

However, by showing how he would sentence her (which is the best and most realistic sentence they could hope for) Judge Strickland has basically said, you no longer have any legitimate reason to drag this thing out because I am not going to slam her (remember, she was technically looking at up to 65 years in prison).

Moreover, if you listened carefully at the end of the hearing Judge Strickland said:

“Also by the way, in terms of pretrial we are still on for trial for January 25 at 10. We discussed that briefly in the back and I am going to await word from each of you and I am going to order an appropriate number of jurors next week.”

Well, here is a little local insight: you don’t “order an appropriate number of jurors” unless you first know where the jury is going to be selected from – Judge Strickland does.

So I think Judge Strickland is intending to attempt to pick the Check Fraud jury in Orlando – and only if they are unable to seat a jury will he move it somewhere else (same as was done in John Couey case).

I also surmise he made this intention known to both parties during the discussions that were made off the record in the back.

Additionally, by refusing to change the venue as Jose Baez so desperately wants, he is calling Jose Baez’s bluff – because everybody knows he does not really want to try the Check Fraud case in the first place, much less in Orlando.

So Mr. Baez can either:

Spend a month preparing for and conducting a spectacle of a trial that he will almost assuredly lose, or
He can take Judge Strickland’s olive branch and let this case go away quietly with a guaranteed sentence (and a guaranteed appeal if it is not imposed).

What would Sun Tzu do?

The Reality Check

The most interesting part of the hearing to the lay person was obviously the remarks given by Jeff Ashton in his rebuttal to Ms. Lyon’s argument to preclude the death penalty.

Not that I think he was reading my blog, but he said much more eloquently and succinctly exactly what I had eluded to in How the Grinch Stole Casey Anthony’s Christmas; which is the death penalty is always a potential penalty in a Capital murder case.

And many people were curious as to why he cited so little law in comparison to Ms. Lyon, well the answer is relatively simple – the law states precisely what he argued:

Section 782.04(1)(b), Florida Statutes. In all cases under [the Murder statute], the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.

Section 921.141, Florida Statutes. Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.

(1) Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by law.

But aside from his legal argument, which he could have rested on – he then went onto give the proverbial bitch slap to the defense and provided a much needed reality check as to how serious the state is about prosecuting Casey Anthony – and how strong they think their case is.

And as someone who has been watching this circus from the outside, I think it is about time.

Advantage: State

Casey Anthony: Insufficient Funds Part Deux

Dec 10th, 2009

by Richard Hornsby.

60 comments

Hello again my unfaithful readers!

In part one of this two-part expose on Casey Anthony’s Check Fraud case, we discussed why the State wants to try the Check Fraud case before the First Degree Murder case.

In part deux, we will discuss why the Defense will likely try to postpone the Check Fraud case in some manner.

But before we discuss the how and why the defense will try to delay the Check Fraud case, I think it is best that we discuss what I would be doing.

Because there is nothing more enjoyable than second guessing another person’s strategy by playing Monday Morning Quarterback.

What Would Hornsby Do?

Now we know that the real prize to the State is the thirteen felony fraud convictions for use as impeachment in the Murder case. Thus we know that the defense wants to avoid trying the Check Fraud case before the Murder case at all costs.

However, with Judge Strickland having granted the State’s Motion to Set a Trial Date in the Check Fraud case, it seems likely that the Check Fraud case would be tried first.

And when the ship is sinking, Richard Hornsby asks, why go down with the ship?

A Lifeline…

Florida Rules of Criminal Procedure 3.151 allows a defendant to consolidate “related” cases and charges.

Rule 3.151. Consolidation of Related Offenses
(a) Related Offenses. For purposes of these rules, 2 or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on 2 or more connected acts or transactions.

(b) Consolidation of Indictments or Informations. Two or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. Failure to timely move for consolidation constitutes a waiver of the right to consolidation.

A casual reading shows that in order to consolidate offenses, there must be two or more offenses (meaning charged with at least two crimes – duh!) and they must be based upon “two or more connected acts or transactions.”

And this relationship has been further defined by the Florida Supreme Court in Spencer v. State, 645 So. 2d 377 (Fla. 1994), which held that for consolidation purposes, the two incidents need only be “causally related,” meaning they “stem from the same underlying dispute and involve the same parties.”

So coming full circle, we know that Amy Huizenga will be required to testify in both cases. We also know the underlying conduct that makes up the Check Fraud case will be relied upon by the State to convict Casey in the murder case.

So the real question is – what is the defense thinking?

Wishful Thinking

There is only one possible explanation for the defense team’s failure to move for consolidation (Okay, other than they didn’t know they could – but really?)

They believe they will be able to exclude the Check Fraud conduct from admitted into evidence in the Murder case – arguing it is nothing more than character evidence used solely to show propensity to commit crimes (which we all remember is an inadmissible purpose).

Nevertheless unfaithful ones, if this is the defense team’s thinking, it is nothing more than wishful thinking… Why?

There are two types of evidence of uncharged crimes that is admissible against a defendant: “similar fact evidence” and “dissimilar fact evidence.”

We have previously discussed “similar fact evidence” and how it can be introduced to show show modus operandi or absence of mistake. (See In Defense of the Casey Anthony Defense.) This type of evidence is governed by Section 90.404, Florida Statutes.

On the other hand, “dissimilar fact evidence” is governed by the general rule of relevancy set forth in Section 90.402, Florida Statutes. And under Florida law, dissimilar fact evidence of uncharged misconduct is admissible to establish the relevant context in which the criminal acts occurred so that the State can paint an accurate picture of the events surrounding them.

As a result, evidence of misconduct not charged in the Murder Indictment (i.e. the Check Fraud charges) is relevant and admissible when it is necessary to adequately describe the events leading up to the commission of the offenses charged in the Murder case. See Victorino v. State SC06-2090 (Fla. November 23, 2009).

Moreover, such evidence is “admissible as relevant evidence even though it might otherwise be objectionable as prior bad act evidence because it is ‘inextricably intertwined‘ with the underlying crime.” See Shively v. State, 752 So. 2d 84 (Fla. 5th DCA 2000). This is especially true if the evidence of other crimes, wrongs, and acts is probative on a material issue and not being offered just to show the bad character or propensity of an individual. See Hunter v. State, 660 So. 2d 244 (Fla. 1995).

And looking at Ms. Anthony’s case in context, it seems undeniable that the State would be entitled to present evidence of her fraudulent activity to establish a time-line, show her absence of mistake, show her false statements to police, show her lack of remorse, show she purchased nothing for Caylee with the stolen funds, show …

But again, what would Hornsby do, or better yet – what would Sun-Tzu do?

The Art of War

In chapter two of the Art of War, Sun-Tzu says:

One who cannot be victorious assumes a defensive posture; one who can be victorious attacks.

In these circumstances by assuming a defensive posture, strength will be more than adequate, whereas in offensive actions it would be inadequate.

What this stanza means is that you should only fight when victory can be secured; otherwise you should assume a defensive posture. This allows you to both minimize your losses when attacked, and live to fight another day.

And considering that Casey Anthony’s guilt is evident in the Check Fraud case, it would seem obvious they cannot obtain an acquittal – so why try the case first and provide the State with additional ammunition in the Murder case?

Rather, they should wisely choose a defensive posture and move to consolidate the cases, which is the safest option and minimizes negative exposure to the jury in the Murder case.

And importantly, from a defense perspective, if the motion to consolidate was denied, it would create one additional appellate issue that could be raised in either case.

However, her defense team seems to be pursuing a more precarious option – delay the inevitable.

Delay is the Deadliest Form of Denial

By choosing to delay the Check Fraud case, Casey Anthony’s defense team only has three options available:

Motion to Continue,
Plea to the Bench, or
Conduct a Trial.

So let’s discuss each of these options.

Some Other Day Please: Motion to Continue

While Judge Strickland granted the State’s Motion for Determination of New Trial Date, it must be realized that his order only instructed the Clerk to docket the Check Fraud case for “pretrial and trial” – a standard couplet of court dates that are scheduled in all criminal cases. And as any practitioner will tell you, most Motions to Continue are made at the pretrial.

Additionally, many people have equated Judge Strickland’s consideration of Amy Huizenga’s affidavit with her having exercised her speedy trial rights afforded to victims in Florida.

Unfortunately though, Ms. Huizenga’s speedy trial rights have yet to mature. Because under Florida law, a victim’s Demand for a Speedy Trial cannot be made until the court has granted at least three continuances upon the request of the defendant and over the objection of the state attorney. (See Section 960.0015, Florida Statutes.)

And not only does Judge Strickland’s Order specifically state that the Check Fraud case has only “technically” been continued one time, it must be remembered that that continuance was not opposed by the State. Thus the defense could still be able to continue the case three times before the state could file a Demand for Speedy Trial on behalf of Ms. Huizenga.

Consequently, it is still possible that the defense could move to continue the case at the upcoming pretrial if they can show good cause for the continuance as required by Florida Rule of Criminal Procedure 3.190(g).

When moving to continue, defense attorneys usually state one of two reasons: (1) they are trying to locate additional witnesses or (2) they need additional time to prepare. In Ms. Anthony’s case, it would seem additional time to prepare is the only good faith reason they could raise.

And when alleging additional time needed to prepare, a judge must consider the following factors to determine if the continuance should be granted. See Trocola v. State, 867 So.2d 1229 (Fla. 5th DCA 2004).

The time actually available for preparation;
The likelihood of prejudice to the defendant from the denial;
The defendant’s role in shortening the preparation time;
The complexity of the case;
The availability of discovery;
The adequacy of counsel actually provided; and
The skill and experience of the attorneys considering their pre-retention experience with the defendant or the alleged crime.

A cursory review of these factors mitigates against Judge Strickland being required to grant the defense another continuance. But in addition to the factors outlined in Trocola, Rule 3.190(g)(5) is also working against the defense:

The party applying for a continuance may file affidavits in support of the motion, and the adverse party may file counter-affidavits in opposition to the motion.

Considering the defense has not filed any supporting affidavits and the State has filed Ms. Huizenga’s, it seems obvious that Judge Strickland is entitled to deny any Motion to Continue made by the defense. But this is especially so considering how much weight Judge Strickland gave to Ms. Huizenga’s affidavit and the very pointed language he used to describe how simple the case would be to try – thus preempting any future attempt to request additional time to prepare.

To Plea or not to Plea, for that is the Question: Plea to the Bench

Of the three options available, I believe this is the most likely to occur – with one caveat.

While I think the defense will plea to the bench to avoid a trial, I nonetheless think they will wait until the last minute to do so – meaning until the jury is literally waiting outside the courtroom to be picked.

So the question then turns to why would they plea to the bench, rather than roll the dice at trial.

Two Words: Strategery!

The truth is that no matter how much “duh” the Casey Anthony team puts into the term defense, even they have to know they would lose the Check Fraud trial given the overwhelming direct evidence.

But more importantly, the State Attorney’s Office would get a free test run against Mr. Baez, Ms. Lyon, and Ms. Kenney-Baden.

This would allow the State to prepare for each attorney’s particular style, to obtain a psychological insight on how the attorney thinks, and allow the State to prepare limiting motions to prevent the defense from engaging in certain conduct or argument during the Murder trial that they attempted in the Check Fraud trial.

Additionally, considering the State Attorney is not offering the defense any plea bargains in the Check Fraud case – the defense would have to know that their only hope in any type of leniency would be to appeal to Judge Strickland.

However, it is highly unlikely Judge Strickland would show them much sympathy if they wasted the court’s time and resources. And, as I will discuss at the end of this post, the ultimate sentence will be up to Judge Strickland if she pleads guilty or is found guilty. And as the saying goes, don’t bite the hand that feeds you. (This of course assumes Casey Anthony is not acquitted of the Check Fraud charges,)

A Final Wrinkle

Even if Casey Anthony pleads to the bench, it is interesting to note that a judge is not required to accept any plea other than a Guilty plea – meaning that Judge Strickland could refuse to accept a Nolo Contendere (No Contest) plea.

The reasoning is that a person who admits their guilt has less issues available to appeal; whereas a person who pleads Nolo Contendere can not only claim actual innocence on appeal, but can appeal such trivial claims like the denial of a motion to continue.

And while there are many judges that will only accept a Guilty plea, Judge Strickland is not one of them. My experience is that he routinely accepts Nolo Contendere pleas. So, for me, it will be interesting to see whether he would in this case.

My personal suspicion is that if push came to shove, he would allow a nolo contendere plea if it would avoid the necessity of a trial.

And from the State’s perspective, so long as she pleads and is “convicted,” they could still use the convictions as impeachment evidence even if she is appealing the underlying convictions while the Murder case is ongoing.

The pendency of an appeal … relating to such crime does not render evidence of the conviction from which the appeal was taken … inadmissible. Evidence of the pendency of the appeal is admissible. – Section 90.610(2), Florida Statutes.

A Slow Plea: Conduct a Trial

As any defense attorney worth his salt will tell you, there are certain clients who are oblivious to the evidence against them and want their day in court because they have rights! And sure enough, they do:

Sixth Amendment – Rights of Accused in Criminal Prosecutions

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

And while many defendants call this their constitutional right to a trial, evidence be dammed – we defense attorneys call this a slow plea.

Because after all of the evidence is presented, the jury decides whether the crime occurred – nobody else. And if the evidence is as overwhelming as it appears, the jury should have little trouble returning a guilty verdict as charged.

So even though we went through all of that constitutionally mandated “hassle,” we still end up back where we started – at the mercy of the court. Thus the term “slow plea.”

May the Court Have Mercy on Casey’s Soul

And whether by an open plea to the bench or by a long drawn out trial, Casey Anthony will most likely find herself at the mercy of Judge Strickland. And here is where things get interesting…

You see Casey Anthony is a First Time Offender, and Judge Strickland is prohibited by rule from immediately sentencing her to jail or prison if she is convicted. Rather, he is required to order that a Presentence Investigation be conducted before imposing sentence.

Ruled 3.710(a) – Presentence Report

In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the Department of Corrections for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.

Important for the defense, this Presentence Report can take up to three months to complete – and as you might guess, that could be just long enough to allow the Murder case to be started without Casey being formally convicted of the crimes.

But there is a catch, this rule does not apply if Judge Strickland sentences Casey to probation. See Cloutier v. State, 930 So. 2d 841 (Fla. 3d DCA 2006) (Rule 3.710(a) clearly mandates that the trial court first order a PSI before sentencing a first felony offender to more than probation… Thus, the trial court erred when it sentenced the appellant without first ordering a PSI.)

At this point many of you are likely cursing my name for saying such blasphemy as probation – and this is because you not only assume Judge Strickland will sentence Casey to prison but you believe he is required to sentence her to prison.

If only you knew (and you will).

Florida’s Criminal Punishment Code

In Florida all persons charged with felony offense are sentenced pursuant to a scoring system known as the Criminal Punishment Code (CPC). See Section 921.002, Florida Statutes.

In layman’s terms, the CPC assigns a numeric value to each criminal offense that a person has been convicted of and the resulting sum of those convictions dictates the judge’s sentencing options: (See Florida CPC Manual)

If the total points equal or exceed 44 points, the judge is required to sentence the person to prison.
If the total points are less than 44 points, the judge is not required to sentence a person to prison, but may still do so.

Now the 44 points also carries another magical consequence, any person sentenced to prison must be adjudicated guilty. On the other hand, a person sentenced to probation can, at the court’s discretion, receive a withhold of adjudication of guilt. And we all know why that is important – don’t we?

Nevertheless, at this point you are probably asking: “well what does Casey Anthony score already?” and it just so happens that I took the time to complete a sample CPC scoresheet (Download PDF) and she scores ….

43.6 points

Can you believe it? She scores 0.4 points less than the magical number of 44. And they say god doesn’t have a sense of humor!

So it appears that all is not lost for Casey Anthony, because Judge Strickland is not required to sentence her to prison – he is allowed, by law, to sentence her to probation…

(Note: A reader brought up the possibility of a juvenile record, which is something I had not considered. But to be accurate, a juvenile record is taken into consideration for scoring purposes. It would only take one felony or two misdemeanor juvenile delinquency convictions to cause her to score over 44 points.)

And the Plot Thickens

Now here is where things get dicey for me – because, as Blaise on WebSleuths would say, I am not Judge Strickland and he is not me, for I am the Walrus. Meaning that Judge Strickland has options at this point and only he knows what he will do.

On one hand, Judge Strickland is known as one of the fairest judges around and he might see the unfairness (from Casey Anthony’s perspective) of a first time offender being burdened with 13 felony convictions that are inextricably intertwined with the same murder case the State wants the convictions for in the first place. In which case he could throw Casey Anthony a lifeline by placing her on probation and withholding the adjudication of guilt.

On the other hand, this is, after all, the same judge who said:

The truth and Ms. Anthony are strangers.

Casey Anthony: Insufficient Funds (Part Uno)

Dec 2nd, 2009

by Richard Hornsby.

37 comments

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:

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

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

Criminal Procedure

The Check Fraud Case

Judge Strickland or Judge Solomon

The “Catch”

An Indefinite Sentence?

The Confusion

The Legality of Judge Strickland’s Sentence

Did Written Order Actually Conflict with Oral Sentence?

Does the Defense have a Legitimate Double Jeopardy Argument?

Argument 1: Being Supervised Twice

Argument 2: “Clarification Order” is Void

Scrivener’s Error

Warren Stang and Casey Anthony Sitting in a Tree, Dou-ble Jeop-ar-dy

The Current Situation

Can the Successor Judge Vacate Judge Strickland’s Clarification Order

Coming Full Circle

Have Some Balls Lawson Lamar; Defend Strickland’s Sentence

Far Reaching Implications

No More Excuses?

The Practical Fall Out

A Big IF

Expect a Renewed Argument

What Does all of this Mean?

Preemptive Defense

Smoke and Mirrors, Smoke and Mirrors.

Little Medical Evidence

Annotations of the Motion

Paragraph 1:

Paragraph 2:

Paragraph 3:

Paragraph 4:

Paragraph 5:

Paragraph 6:

Paragraph 7:

Paragraph 8:

Analysis: Work Product

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

Did Jose Have an Actual Subjective Expectation of Privacy?

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

Hearsay, Schmearsay

But Cindy Anthony is Testifying!

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

And then there is Not-Hearsay

Applying the Hearsay law to the 911 Calls

Dominic Casey’s Protective Order

Basics of Ongoing Investigations

The State Attorney’s Investigative Subpoena Power

The Defendant’s Deposition Subpoena Power

The Bottom Line

The Double Jeopardy Motion

Reading Between the Lines

The Real Issue is Punishment

Now Why Did He Do This?

The Reality Check

What Would Hornsby Do?

A Lifeline…

Wishful Thinking

The Art of War

Delay is the Deadliest Form of Denial

Some Other Day Please: Motion to Continue

To Plea or not to Plea, for that is the Question: Plea to the Bench

Two Words: Strategery!

A Final Wrinkle

A Slow Plea: Conduct a Trial

May the Court Have Mercy on Casey’s Soul

Florida’s Criminal Punishment Code

And the Plot Thickens

It’s the Convictions Stupid

A Conviction by any Other Name is not a Conviction

The Right to Remain Silent

Once Upon a Time there was Huggins I

And Then There was Huggins II

What Does All of This Mean?

Epilogue

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