Legal Questions for Our VERIFIED Lawyers #2

[strach304]

HHBP indicated that the DT must have a very good reason for adding these new witnesses so late.

Any idea what they could say, as they are to testify as to ICA's "state of mind"?
Her "state of mind" was way back in 2008.

Wouldn't the defense have to approach it in general terms as an explanation for Casey's behavior since these Drs. did not know Casey when the crime happened? Ex: it is possible that a person can, will, etc. vs. Casey did/didn't etc.?

 

[AZlawyer]

Wouldn't the defense have to approach it in general terms as an explanation for Casey's behavior since these Drs. did not know Casey when the crime happened? Ex: it is possible that a person can, will, etc. vs. Casey did/didn't etc.?

Believe me, these Drs. will have no problem extrapolating from their recent evaluations of Casey to her state of mind in 2008.

 

[wenwe4]

1) The JAC would have had to pay for them no matter which phase of the trial they were testifying in, so I can't imagine that will be an issue.

2) I can't watch the video right now, but I'm sure she must have said mitigation??

I listened to that specific part (related to #2) @ 12:40
Here is what I got . . .
HHBP: Is it going to necessitate an examination by the State of Florida?
AF: I don't think so -
JA: I can't imagine - Unless it doesn't involve an interview with the defendant - then if it does then the State of Florida is going to want to have an expert examiner.
AF: They don't have any vehicle, that I am aware of, that would authorize the State of Florida to examine under these circumstances. But this obviously may invoke some kind of litigation. Like I say, it's Not a Mental Health defense, So it doesn't trigger any requirements under 3.316 or under the
HHBP: The only thing that I am curious I guess we will find out when we talk about it, is when you talk about somebody's state of mind - and the first thought goes to some type of Diminshed Capacity
AF: It is clearly not dimished capacity Your Honor, obviously we perhaps may need to provide the court with some case law.
JA: First thing we need to get is the report, um then we will deal with the issues . . . . .

 

[AZlawyer]

A resource for those of you discussing a hypothetical future motion to disqualify HHJP (which would, of course, be the second such motion for the defense):

RULE 2.330. DISQUALIFICATION OF TRIAL JUDGES

(a) Application. This rule applies only to county and circuit judges in all matters in all divisions of court.

(b) Parties. Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.

(c) Motion. A motion to disqualify shall: (1) be in writing; (2) allege specifically the facts and reasons upon which the movant relies as the grounds for disqualifica-tion; (3) be sworn to by the party by signing the motion under oath or by a separate affidavit; and (4) include the dates of all previously granted motions to disqualify filed under this rule in the case and the dates of the orders granting those motions.
The attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith. In addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.

(d) Grounds. A motion to disqualify shall show: (1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or (2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

(e) Time. A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an imme-diate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c) and promptly filed. A motion made during hearing or trial shall be ruled on immediately.

(f) Determination — Initial Motion. The judge against whom an initial motion to disqualify under subdivi-sion (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disquali-fication and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

(g) Determination — Successive Motions. If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (d)(1), a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion.

(h) Prior Rulings. Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.

(i) Judge’s Initiative. Nothing in this rule limits the judge’s authority to enter an order of disqualification on the judge’s own initiative.

(j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

 

[AZlawyer]

I listened to that specific part (related to #2) @ 12:40
Here is what I got . . .
HHBP: Is it going to necessitate an examination by the State of Florida?
AF: I don't think so -
JA: I can't imagine - Unless it doesn't involve an interview with the defendant - then if it does then the State of Florida is going to want to have an expert examiner.
AF: They don't have any vehicle, that I am aware of, that would authorize the State of Florida to examine under these circumstances. But this obviously may invoke some kind of litigation. Like I say, it's Not a Mental Health defense, So it doesn't trigger any requirements under 3.316 or under the
HHBP: The only thing that I am curious I guess we will find out when we talk about it, is when you talk about somebody's state of mind - and the first thought goes to some type of Diminshed Capacity
AF: It is clearly not dimished capacity Your Honor, obviously we perhaps may need to provide the court with some case law.
JA: First thing we need to get is the report, um then we will deal with the issues . . . . .

Thanks!!!

I think by "litigation" she just meant that once the State sees what the issue is, if they still think they get to do an examination as well, then they will file a motion, the defense will respond, etc. They will "litigate" the issue. Not that some separate litigation (action) will be filed.

 

[BD1]

Very abbreviated court reporting lol...

Atty F: Dr D and Dr W are listed as guilt phase witnesses. I have moved to add Dr W to penalty phase list. I had previously listed Dr D and Dr (fry?) as you know. Reason being to add Dr W just found out an opinion. Also reached some understanding of guilt phase with Dr D and Dr W on that issue. HHJP: What is that issue? Atty F: State of mind of Ms Anthony. State: Uh, yes, we might want to exam Casey. Atty F: This is not a mental health defense. Doesn't know of an vehicle to authorize a mental health exam by state under these circumstances but obviously may invoke some litigation. Not a mental health defense. HHJP: Diminished capacity? Atty F: CLEARLY NOT DIMINISHED CAPACITY.


oops somebody beat me lol!

 

[wenwe4]

Thanks!!!

I think by "litigation" she just meant that once the State sees what the issue is, if they still think they get to do an examination as well, then they will file a motion, the defense will respond, etc. They will "litigate" the issue. Not that some separate litigation (action) will be filed.

AZ, So glad this was helpful in getting our questions answered.
So from what I understand is this was just AF saying - 'I don't think the State is even going to have a reason to have an expert examination but if that is the case later on - just follow whatever procedures you think you need to'. (Is that the gist of the whole thing?) She wasn't threatening litigation or saying that this will be novel litiagation, etc.

 

[wenwe4]

BD1 - Thanks! It helps to have 2 people do that so we get it right.

 

[AZlawyer]

AZ, So glad this was helpful in getting our questions answered.
So from what I understand is this was just AF saying - 'I don't think the State is even going to have a reason to have an expert examination but if that is the case later on - just follow whatever procedures you think you need to'. (Is that the gist of the whole thing?) She wasn't threatening litigation or saying that this will be novel litiagation, etc.

Yeah, I think she was saying "let's cross that bridge when we come to it--maybe the SA will see what I mean when they get the report."

 

[frrlk]

I know--I was saying I'm sure she said "mitigation" rather than "litigation"--unless by "litigation" she just meant that there would be motions and argument. I was answering someone's question about why she said "litigation."

To answer what I think your question is, my understanding is that this is mental health evidence that would NOT establish a "defense" and also would NOT establish "diminished capacity" but WOULD be relevant to the guilt phase as well as the penalty phase--so I think it relates to some mental health explanation for Casey's behavior after Caylee was supposedly kidnapped/died in an accident.

ETA: I didn't think your caps were shouting, and BTW since I use caps all the time I hope you guys know I'm not shouting at you either.

AZ,

You are absolutely correct. She said MITIGATION and she also said NOT for defense, NOT for diminished capacity. Used for GUILT phase.

 

[faefrost]

A resource for those of you discussing a hypothetical future motion to disqualify HHJP (which would, of course, be the second such motion for the defense):

RULE 2.330. DISQUALIFICATION OF TRIAL JUDGES

(a) Application. This rule applies only to county and circuit judges in all matters in all divisions of court.

(b) Parties. Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.

(c) Motion. A motion to disqualify shall: (1) be in writing; (2) allege specifically the facts and reasons upon which the movant relies as the grounds for disqualifica-tion; (3) be sworn to by the party by signing the motion under oath or by a separate affidavit; and (4) include the dates of all previously granted motions to disqualify filed under this rule in the case and the dates of the orders granting those motions.
The attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith. In addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.

(d) Grounds. A motion to disqualify shall show: (1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or (2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

(e) Time. A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an imme-diate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c) and promptly filed. A motion made during hearing or trial shall be ruled on immediately.

(f) Determination — Initial Motion. The judge against whom an initial motion to disqualify under subdivi-sion (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disquali-fication and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

(g) Determination — Successive Motions. If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (d)(1), a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion.

(h) Prior Rulings. Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.

(i) Judge’s Initiative. Nothing in this rule limits the judge’s authority to enter an order of disqualification on the judge’s own initiative.

(j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

Thanks AZ! That really clears things up and sets a lot of mids at ease.

Re: The two new Dr. witnesses. I could swear I distinctly heard AF say that at least one was already on the mitigation witness list, but that she wanted both for the "GUILT" phase? The impression that I got was that she was in some way wanting them to testify towards "state of mind" (and I am not sure where I got that phrase from exactly). So probably she is seeking to use them to explain her behavior between June 16 and July 15 2008?

Does this sound right?

 

[pip]

Two questions:

1.) A bit petty, but given this new state-of-mind "discovery" - In that Danziger and Weitz were contracted and paid by JAC under mitigation, is there any unethical or contractual issue with them presenting this information during guilt phase proceedings (couldn't everyone who couldn't afford a private pysch eval pull one in under mitigation and then say BUT WAIT!...)

2.) Bad form, but I am copying my post from the psych thread here as it seems to be growing legs elsewhere:

as I re-watched that clip (below - at about 13-14 min) I was struck by AF saying something to the effect that this new state of mind evidence may involve some litigation...huh? Who would be the subject of litigation? What possible scenario would result in some "state of mind" issue that would result in litigation (which I would assume to be civil as opposed to criminal prosecution)?



http://www.youtube.com/watch?v=XdDIwRK94Wo

many thanks - hope this makes sense

I listened to this several times. At exactly 13:08, she says Litigation. I put my earphones in to listen.

 

[AZlawyer]

Thanks AZ! That really clears things up and sets a lot of mids at ease.

Re: The two new Dr. witnesses. I could swear I distinctly heard AF say that at least one was already on the mitigation witness list, but that she wanted both for the "GUILT" phase? The impression that I got was that she was in some way wanting them to testify towards "state of mind" (and I am not sure where I got that phrase from exactly). So probably she is seeking to use them to explain her behavior between June 16 and July 15 2008?

Does this sound right?

Yes, that's what I thought she said too. And yes, I think they will attempt to explain Casey's behavior so the jury won't add up (1) the evidence that Casey was in possession of the body and (2) the evidence that Casey was acting perfectly happy despite knowing her child was dead and end up concluding (3) Casey killed Caylee. They want the jury to take (1) Casey in possession of body and (2) Casey acting perfectly fine and instead conclude (3) Caylee died and Casey mentally dissociated from that fact.

TY...I just get the feeling that somehow (even though I personally respect AF) this is just another way of running an end run around the prosecution (think baseball)...

It bothers me. It is like saying, "ICA is not insane (I personally believe with ever fiber of my being that Casey has no intention of pleading guilty nor ever admitting she is responsible for Caylee's demise---) but we would like to present evidence to the jury that shows she is odd/off/just flat out bizarre that her actions before and after Caylee's demise and perhaps the actual events that caused Caylee's demise...can be excused because our client likes to tell lies and live in a dream world and has no empathy nor real personality of her own. We aren't changing her plea but since we are having to deal with all of the lies...lies...lies...she told...we'll just call her kinda crazy..."

No, from what AF said this evidence is not being offered as an EXCUSE for committing the crime, but rather to explain why Casey would behave the way she did CONSIDERING THAT SHE WAS IN FACT INNOCENT of the crime (according to the defense).

 

[lauriej]

http://www.youtube.com/watch?v=XdDIwRK94Wo

(..i see some of the questions have been answered--but i thought it couldn't hurt to include this bit of transcribing either...)

..begins at approx. 9:30 of the clip.

JP-who are they, what are they going to testify to, and why are they late?


JB-can we approach? It’s a sensitive issue.


JP-this is a public court, is it Work product or what?
I need to know the subject matter of their testimony.
Is it for the Penalty Phase ? Is it for the Case in Chief, Ms.Finnel, can you--?

AF-I can your Honour. To Dr. Danziger and Dr.Weitz, they are listed on our Guilt Phase Witness List. I have moved to have Dr. Weitz added to the Penalty Phase Witness List , I previously listed Dr.Danziger and Dr. Krop, as you know. The reason being for me, Dr.Weitz in the Penalty Phase I just found out an opinion of his last Saturday. And likewise on the Guilt Phase, with Dr. Danziger and Dr.Weitz, on that issue-

JP-What is the general subject matter?

AF-State of mind your Honour

JP-State of whose mind?

AF-Ms.Anthony’s.

JA-The issue that we have , although counsel has just got the report recently, when did counsel start the process of getting it?
If the lateness is not excusable, then the late Discovery is not excusable—there’s been no notice of a mental health defense--

AF-This isn’t a mental health defense #1 #2, these 2 witnesses, their conclusions, it’s been an on-going process that we’ve just gotten a final on. So that’s hence the listing of them now.

JA-One thing that will help is when we get their reports ...
AF-Hopefully tomorrow...

JA-That hopefully will tell us when they started working on it and give the Court a little more information on whether there’s Good cause for the late Discovery.

JP-The only question I have since I don’t know what they will testify to, is it going to necessitate an examination by the State of Florida?

AF-I don’t think so.

JA-I can’t imagine----unless it doesn’t involve an interview with the Defendant, but if it does, then the State of Florida is going to want an expert to examine her.

AF-I don’t know of any vehicle that I’m aware of that would authorize the State of Florida to examine under these circumstances, but this obviously , this may invoke some kind of litigation. Like I say, it’s not a Mental health defense.
So it doesn’t trigger any of the requirements under 3.316.

JP-The only thing I find that’s curious and I guess we’ll find out when we talk about it. When you talk about someone’s State of Mind, the 1st thought goes to some type of diminished capacity, and we don’t recognize diminished capacity.

AF-It’s clearly not diminished capacity your Honour, and obviously we perhaps need to provide the Court and the State with some case law.

 

[LolaMoon08]

I just need some clarification on something.

Dominic Casey was hired by Jose Baez (the defense)... so anything that was talked about during the time he worked for the defense until the time he terminated his services with the defense would be attorney/client privilege, correct?

That brings us to the time when Dominic Casey terminated his services with the defense. The way I have understood it was that there is no such thing as Private Investigator/Client privilege. DC never terminated his contract with Casey Anthony (according to him) and he says that he had no conversations with Casey Anthony directly since September 2008. Because he had a contract with Casey... does that mean that he had any privilege to her... or is it only privilege and work product when he was working for the defense.

Also, it is true that there was never any kind if privilege between Dominic Casey and Cindy and George Anthony?

If it is true that there is no such thing as Private Investigator/Client privilege... anything that was said between October 2008 (I believe this is when DC terminated his services with the defense) until now... would have to be answered by DC without the shield of any privilege?

 

[NoNameLeft]

Thanks AZ! That really clears things up and sets a lot of mids at ease.

Re: The two new Dr. witnesses. I could swear I distinctly heard AF say that at least one was already on the mitigation witness list, but that she wanted both for the "GUILT" phase? The impression that I got was that she was in some way wanting them to testify towards "state of mind" (and I am not sure where I got that phrase from exactly). So probably she is seeking to use them to explain her behavior between June 16 and July 15 2008?

Does this sound right?

You got it from Ms. Finell This is what she said:

Judge Perry: What is the general subject matter?
Ms. Finell: State of mind, Your Honor.
Judge Perry: Who's mind? :floorlaugh:
Ms. Finell: Miss Anthony's.

And AZ... thank you for all the time you take to answer our questions. You have been busy these last few days and it's much appreciated!

 

[AZlawyer]

I just need some clarification on something.

Dominic Casey was hired by Jose Baez (the defense)... so anything that was talked about during the time he worked for the defense until the time he terminated his services with the defense would be attorney/client privilege, correct?

That brings us to the time when Dominic Casey terminated his services with the defense. The way I have understood it was that there is no such thing as Private Investigator/Client privilege. DC never terminated his contract with Casey Anthony (according to him) and he says that he had no conversations with Casey Anthony directly since September 2008. Because he had a contract with Casey... does that mean that he had any privilege to her... or is it only privilege and work product when he was working for the defense.

Also, it is true that there was never any kind if privilege between Dominic Casey and Cindy and George Anthony?

If it is true that there is no such thing as Private Investigator/Client privilege... anything that was said between October 2008 (I believe this is when DC terminated his services with the defense) until now... would have to be answered by DC without the shield of any privilege?

You are correct on every point.

 

[faefrost]

You are correct on every point.

A follow up to that. If DC did in fact have or can produce a direct employment agreement between himself and the defendant, does that not take him outside of the loop of Attorney/Client privilege extended to the lawyers direct employees? I thought that defendants direct employees are never covered by privilege unless they are themselves lawyers? (or Priests?) And that a lawyer could not in turn hire those connected directly to the defendant for the purpose of shielding them by privilege? (ie JB could not hire GA as an investigator to limit his ability to testify)

 

[Joanner]

During questioning the K9 officer yesterday, people stated that they saw Cindy Anthony trying to get Baez's attention and tried to pass a note to him. If this were during the actual trial, would that be allowed/tolerated?

 

[SoCalSleuth]

Just as I thought, Dr. Weitz is an expert in treating Post-Traumatic Stress Disorder. Although I don't know how any Dr. could render an opinion on that without a psych exam. Would you agree AZ that this is the way they are going?