Popular Culture

Week one of the Casey Anthony trial is behind us and, as could be expected, it was not without incident as several notable issues arose.

Jury Selection

After five full days of jury selection, the parties ended Saturday with 12  potential jurors. Some in the media believe this to be a sign that we may actually swear in a jury panel by Monday afternoon; my experience tells me otherwise. As this is the point where the strategy of jury selection really begins.

This is because in Florida, a party can exercise a peremptory strike up until the last second before the jury is sworn in.  See Gilliam v. State, 514 So. 2d at 1099 (Fla. 1987) (“Reversible error to deny a defendant his right to challenge a juror any time before the jury is sworn.”). As a result, it has been my experience that lawyers utilize very few peremptory strikes initially and instead wait until the initial petit jury panel is formed before actively using peremptory strikes to strike jurors they initially accepted. This is known as “backstriking”.

Because of the right to backstrike, each side has been biding their time waiting to see what jurors the other side unsuccessfully challenged for cause (suggesting the party will ultimately backstrike them), determine what jurors took a personal liking to one side or the other (meaning the juror would favor the other side), and watching to see whether the other side seemed very interested – or disinterested – in a particular juror (the strategy being  to avoid using a backstrike on a juror the other side is likely to strike, thus  you save yours).

And the way backstriking usually works is the judge will advise the parties that they have their primary panel and will be moving onto the selection of alternates. Before he does so, he will then entertain any backstrikes.

He will  then ask the prosecution if they would like to exercise one, if they say yes, they announce the juror and the juror is stricken (except in rare circumstances where a race, gender objection is sustained). The judge will then turn to the defense, who will probably do  the same. The process then rotates back and forth until all backstrikes have been utilized or the parties decline to exercise any remaining strikes.

However this case throws an interesting wrinkle into the usual scenario, as all the jurors have not been interviewed yet (whereas they usually have been), so you are unsure of whether the remaining potential jurors will be better or worse than what you have.

The bottom line is that there are (to my knowledge) 9 peremptory strikes left between both sides, suggesting that the none of the 12 tentatively selected now will ultimately survive (although I think about 1/3 will).

That Smell

Ooh, ooh that smell
Can’t you smell that smell?
Ooh, ooh that smell
The smell of death surrounds you.

- Chorus to “That Smell” by Lynyrd Skynyrd

Ah yes, that smell. By far one of the most talked about and debated issues in the case. Was it garbage or was it the smell of a decomposing body.

Shockingly, the fact that three sealed canisters of the carpet sample had been saved – and thus the odor itself – seems to have been overlooked by every person who has followed the case – whether you were a reporter, blogger, or former attorney to any of the Anthonys.

Well almost everyone, as the State made it clear that part of their game plan was to “publish” the sealed containers to the jury and let the jury make their own determination of whether the smell was rotting pizza or a rotting body.

But then the most surprising thing happened, the defense team won their most significant evidentiary victory in the past three years without even lifting a finger.

Because as fast as “greased lightning” Judge Perry made it clear that he would not allow the canisters to be published, astutely pointing out that doing so turned the jurors into witnesses – but how?

I must confess, I did not even realize the State had the canisters or intended to use them as proposed. But once I realized they did, it never crossed my mind that the State would not be allowed to publish them to the jury. After all, they were pieces of evidence that had been collected.

So I immediately hit the law books in search of cases that addressed the issue of allowing jurors to smell, not just evidence of decomposition, but any evidence for that matter.

To my surprise there were no published cases (that I could find) on the specific issue (smelling decomposition) and only a few cases on the issue in general (smelling evidence). And wouldn’t you know it, one case was premised on the exact reasoning expressed by Judge Perry.

It’s Five O’Clock Somewhere

In Kaldis v. Texas, 926 S.W. 2d 771 (Tex. 1st DCA 1996) the defendant was being prosecuted for illegal possession of liquor and wanted the jury to smell a batch of the “liquor” in question to show that although it smelled like rum, it was not.

In denying the defendant’s request, the court stated that the practice (by prosecutors) of having jurors smell liquors “‘called upon them to become witnesses on a disputed issue,’ and when, during deliberations, a juror stated that the smelled or tasted liquid was whiskey, his statement constituted ‘new evidence received in retirement.’”

It’s 4:20 Somewhere

Another case I came across, U.S. v. Michelena-Orovio, 702 F. 2d 496 (5th Cir. 1983), also rejected the practice of allowing a jury to “smell” evidence, although on different – yet applicable – grounds.

This case was a federal prosecution for conspiracy to traffic in Marijuana. It involved a crew member of a boat that was intercepted with 363 bales of marijuana. The defendant denied knowing the marijuana was on board and wanted to introduce a bale of marijuana so that he jury could determine the likelihood he could have smelled the marijuana – thus be on notice of its presence.

The court rejected this argument, finding “the conditions of the proposed experiment [to allow the jury to smell one bale of marijuana] differed substantially from the circumstances under which the jury would receive it. (As the experiment involved one bale, not 363, and was to take place in a courtroom, not a boat at sea.)

The obvious parallels in the Anthony case are that the canisters are three years old now, do not the other items present in the vehicle, and would be opened in a building; thus not approximating the conditions of the carpet when it was in the car, outside.

For your “Smelling Pleasure”

Arizona v. Morris, 160 P. 3d at 217 (Az. 2007) is the final case I came across and seems most factually similar in that it involved evidence that smelled like decomposition, but, unfortunately, only indirectly addressed the appropriateness of allowing the jury to smell the item.

involved a murder case where the prosecution introduced a jacket found near the victim’s decomposing body. When the jacket was introduced, the jury was never asked to smell the jacket and did not smell the jacket. Instead the jacket was immediately placed in a plastic bag and was presumably introduced for some identification purpose.

However, during closing arguments the prosecutor stated he had offered the jacket for the jury’s “smelling pleasure.” Notably the defense did not object at trial and only raised the issue on appeal.

Because the defense did not object, the Arizona supreme court found the issue harmless mostly because the jacket was actually introduced for the purpose of identifying the victim, not for its smell. Nevertheless, the court did agree that the prosecutors comment was inappropriate (implying that asking the jury to smell the jacket was improper, since this was not the purpose for which it was introduced during trial).

What Else Could the Jury See, Hear?

The issue of the containers got me thinking, if the State wanted to jury to smell them, what else did they want the jury to experience first hand that has not been addressed challenged by the defense?

The two most obvious suspects would be the Pontiac itself and the woods near suburban drive where the body was found. But to date the State has not filed a motion requesting a Jury View of either as required by Florida Statute 918.05.

While there is no requirement that the motion be made pretrial, it will nonetheless be interesting to see if the State makes this motion, what objection – if any – the defense will make, and what Judge Perry’s view will be.

However, it is worth noting that jury views are exceedingly rare in Florida and case law holds that if they are conducted, they should be conducted under conditions almost identical to the conditions as they originally existed. See Darley v. Marquee Enterprises, Inc., 565 So.  2d 715 (Fla. 4th DCA 1990) (Jury view must be conducted “under the conditions that prevailed at the time of the [incident]“.)

What is interesting though is that if a jury view is conducted, the jury view statute mandates that Casey Anthony be present while the jury views the evidence or scene (although she can waive her presence). Her reaction to being in the presence of the Pontiac or the woods could become some of the most riveting events in the trial.

George and Cindy Anthony v. Brad Conway

And finally we have the public spat that has erupted between George and Cindy Anthony and Brad Conway, with the Anthonys’ attorney, Mark Lippman, threatening to sue Brad Conway and also file a bar grievance because Mr. Conway has taken it upon himself to speak to every media outlet following the Casey Anthony case.

While I have not heard Mr. Conway speak poorly of either George or Cindy Anthony, he has made statements that have created quite a commotion in the middle of their daughter’s jury selection by claiming Casey Anthony will likely testify. Thus the question seems to be, is he conducting himself in the best interests of his former clients.

But before I go there, I would like to discuss Mr. Conway’s reason for withdrawing as counsel to the Anthonys’ in the first place.

He claimed that he was forced to resign because the Casey Anthony defense team filed a pleading that contained inaccuracies about him, thus making him “a witness to an inaccurate legal pleading filed in our court system.” To me this is a cop out, as lawyers file pleadings all the time about litigation disputes that the other side claims are inaccurate.

If the pleading filed by the defense team – mind you, not his clients – was truly inaccurate, the ethical thing to do would report the false statement to the Florida Bar. See Florida Rule of Professional Conduct 4-8.3(a) (“A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.”).

So while we are on the issue of the appropriate course of action, the question must be asked, was Mr. Conway’s concern of being a witness to an inaccurate legal pleading a legitimate reason to abandon the Anthonys. My opinion is that it was not a legitimate reason.

This is because Florida Rule of Professional Conduct 4-3.7(a) only prevents an attorney from acting as an “advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.”

The case law interprets this rule strictly and only prevents an attorney who might be a witness from representing his client “at trial,” but can represent the client in all pretrial (before the start of the trial) and posttrial (after the judgment is rendered) proceedings. See Cerillo v. Highley, 797 So.  2d 1288 (Fla. 4th DCA 2001).

Regardless, Mr. Conway would have never been a witness in Casey Anthony’s trial (never mind his clients are not on trial), at most he would have been a minor witness in a single evidentiary hearing over an evidence dispute. And any lawyer who has ever been involved in a civil case will tell you that lawyers frequently file affidavits or testify regarding evidence disputes if needed to resolve an issue.

With this behind us, the question still remains, did Mr. Conway do anything since quitting on the Anthonys that warrants a civil suit or a grievance. The answer is found in the commentary of Florida Rule of Professional Conduct 4-1.9 which states “Information that has been widely disseminated by the media to the public, or that typically would be obtained by any reasonably prudent lawyer who had never represented the former client, should be considered generally known and ordinarily will not be disqualifying.”

What this means is that Mr. Conway is free to provide his analysis about the Casey Anthony case so long as he is not using or revealing specific information he obtained while representing Cindy or George Anthony. Do I think this is right or fair – no.

Extra Credit

I recently came across The Florida Bar v. Niles, 644 So. 2d 504 (Fla. 1994) which involved an attorney who sold media access to his client for $5,000. (Anything sound familiar.) The Florida Bar sought disbarment and the referee sought a one year suspension.

While the Florida Supreme Court upheld the suspension instead of disbarring the attorney as the Florida Bar sought, the court did go on to warn future lawyers with the following:

We specifically reiterate that we find respondent’s conduct detrimental to the public, his profession, and the administration of justice in the courts.

We expect members of The Florida Bar not to engage in conduct in any case, including cases which attract substantial media attention, which violates the Rules Regulating The Florida Bar in the ways found by the referee in this case.

Our approval of the referee’s recommended one-year suspension in this instance, in which the referee followed The Florida Bar’s counsel’s recommendation, is not to be read as an indication that similar conduct will receive any discipline less than disbarment for respondent or any other member of The Florida Bar in any future proceedings.

Assuming that either the State or the Defense invoke the Rule of Sequestration once the trial begins, the question has been raised:

Should George and Cindy Anthony, as next of kin to Caylee Anthony, be allowed to stay in the courtroom during the  trial or should they be required to sequester themselves outside of the courtroom during the trial until excused from their subpoenas.

There are two competing sources of law that are implicated when answering this question: constitutional law and statutory law.

Art. I, § 16(b), Fla. Const. Rights of accused and of victims.

On one hand, the Florida Constitution provides that the “victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.”

Importantly, this right does not endow the State Attorney, as the prosecuting authority for the State of Florida, with any rights to object to the presence of the victim or the next of kin to homicide victims.

George and Cindy Anthony: Kinfolk or Next of Kin?

As soon as I posted this piece, I was informed that FogHorn LegHorn had filed a motion objecting to George and Cindy Anthony’s presence and I received numerous posts from readers wondering why or how George and Cindy could even be considered Next of Kin, when Casey is obviously her next of kin.

Well, Florida Statute 732.103 defines how a person’s next of kin is determined. The short version is that Casey Anthony is technically Caylee’s next of kin. But since since Caylee has no other siblings and her father is dead, George and Cindy Anthony would be the next “kin” in line after Casey.

Under normal circumstances, victim advocates would argue that Judge Perry should apply a liberal interpretation to the term “next of kin” and consider any relative who could potentially be next of kin under the statute to be next of kin for purposes of Art. I, s. 16. But since this is not a normal case, many of the so called victim advocates would not want that definition to apply because it would allow George and Cindy to sit in on the trial.

Nevertheless, even if Judge Perry were to apply a strict interpretation to the definition of next of kin, George and Cindy’s attorney can and should argue that they become the next of kin under Florida’s “Slayer Statute.” This statute holds that if Casey Anthony is convicted of Caylee’s death, she is excluded from being considered next of kin under Florida Statute 732.802.  (Killer not entitled to receive property or other benefits by reason of victim’s death.) As a result, by operation of law George and Cindy become next of kin under Florida Statute 732.103.

Fla. Stat. 90.616 Exclusion of witnesses.

On the other hand, Florida Statute 90.616 states: “At the request of a party, the court shall order witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except, [] in a criminal case, the victim of the crime, the victim’s next of kin, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.”

This statute is more commonly referred to as The Rule of Sequestration and a literal reading of the statute mandates that once invoked, a witness to a proceeding – other than the “victim, the victim’s next of kin, or a lawful representative of such person”  - must remain outside of the courtroom so they cannot hear testimony of other witnesses.

Importantly, once the rule of sequestration is invoked it only applies to witnesses not related to the victim. This means that even if the rule is invoked, the victim or next of kin are still entitled to stay and watch the proceedings.

If you read the statute closely, in order to exclude the victim or next of kin, the person invoking the Rule of Sequestration must also make a second motion to exclude the victim or next of kin and allege that their continued presence would be prejudicial.

What this means is that even if the State or Defense invokes the Rule of Sequestration, Cindy and George Anthony would be not by default be required to leave. Rather, either the State or Defense would have to make a specific motion asking that they be required to leave and have the court determine that their presence would be prejudicial (to whom though, the State or the Defense).

Constitution trumps Statutes

Well have no fear, I am pleased to advise you that George and Cindy Anthony should be allowed to remain in the courtroom for the entire trial.

In Beasley v. State, 774 So. 2d 649, 668 (Fla. 2000) the Florida Supreme Court was presented with an almost identical question, but with greater constitutional importance. This is because the defendant, who is the only party constitutionally authorized to object to the victim or next of kin’s presence,  invoked the rule of sequestration specifically as to the victim’s daughter and son, both of whom were key witnesses in the case. The trial court denied the defense request and ruled that the daughter and son could both remain in the courtroom.

In upholding the trial court’s ruling, the Court went on to explain that there ”are only two bases upon which a defendant may object to the trial court’s decision not to apply the rule of sequestration to a witness who is the victim’s next of kin.”

1. First, that the witness has [or will] change key testimony to conform to the evidence presented.
2. The prejudice potentially caused by emotional reactions of the victim’s family members.

The Court found that the first basis did not apply because “the witnesses’ testimony had been memorialized in prior depositions.” Meaning, that if there was any change in testimony, the witness could be impeached with the prior deposition. Thus any potential prejudice would be outweighed by the benefit of impeaching the witness.

In the Anthony case, both George and Cindy Anthony have testified multiple times and are subject to being impeached with any of those transcripts. Moreover, they have been present for almost every evidentiary hearing to date. Thus the likelihood of the defendant being prejudiced is unlikely.

And while there are numerous arguments that could be made that the State might be prejudiced by George and Cindy Anthony’s presence during the trial; the simple answer is that the State does not have standing to object under Article 1, Section 16 of the Florida Constitution – only the defendant does.

As to the second basis, the Court found that the trial judge maintained vigilance so that the “defendant” was not prejudiced by emotional outbursts of the victims next of kin and that the court even admonished them twice during the proceedings. So while some of you will annoyingly complain about Cindy Anthony’s sneers and looks, this is not the type of behavior that the Court is concerned with or would even consider prejudicial.

They Should Stay…

So ultimately, it is my opinion that George and Cindy Anthony should be allowed to stay in the courtroom and the only party who even has grounds to object to their presence would be Casey Anthony.

But, with the way Judge Perry is ruling against the defense, I wouldn’t be surprised if he found a way to rule against them remaining in the courtroom if the State did object. I wouldn’t be surprised if he overruled their objection filed today and agreed to allow George and Cindy to remain in the courtroom during the trial.

So let me get this straight.

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

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

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

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

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

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

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

1. Was there a Privilege Waiver?

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

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

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

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

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

2. How was Richard Gabriel Paid?

Which brings me to my final question.

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

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

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

Sounds like some more Jose Baez chicanery to me.