Legal Questions for our VERIFIED Lawyers #3

[Brattigirle]

Now that the DT is going with an accident, did I hear they now have a burden of proof?

 

[TiaM]

OK I need some straight up answers here:

1) Is a Defense lawyer allowed to stand, in court, in front of a jury and KNOWINGLY LIE?

a) If yes, I am heartbroken at our legal system.

b) If no - what happens? Nothing? Up to the State to refute his statements? Can he be permanently disbarred for this? Prosecuted? Sued?

Thank you for all your wisdom on these threads.

 

[uklaw]

Why would the SA object to a photo as hearsay? The DT allowed their photos in even although there is no evidence who took the photos. Surely having to call the photographers in for each photo will take ages.

 

[Themis]

Now that the DT is going with an accident, did I hear they now have a burden of proof?

Accident is not an affirmative legal defense like alibi. It can still be a homicide with their accidental drowning theory because ICA was a parent with custody and had actual physical custody (and the responsibility to care for her daughter) at the time of the alleged drowning. If it was an affirmative legal defense they would have had to give notice of the same to the prosecution and then would have had the burden of production but not to prove the defense beyond a reasonable doubt. The burden to prove the elements of the crime always remains with the prosecution and that standard is proof beyond a reasonable doubt.

 

[boogiebear]

Has Baez opened a door for an instant appeal , due to incompetent counsel?

 

[boogiebear]

If you are a lawyer and you know your client is innocent because it is an accident, are you bound to tell the state, trying to have your client released? Or is it ok to leave her in jail for 3 years?(Even if the State does not believe it, do you still attempt to tell them?)

 

[SoCalSleuth]

Has Baez opened a door for an instant appeal , due to incompetent counsel?

Incompetent for what? The DT theory? For all we know that is the story KC told the DT. I don't see anything here that would support an appeal for ineffective assistance of counsel.

If you are a lawyer and you know your client is innocent because it is an accident, are you bound to tell the state, trying to have your client released? Or is it ok to leave her in jail for 3 years?(Even if the State does not believe it, do you still attempt to tell them?)

You are bound to keep your client's secrets. JB could only tell the state if KC authorized him to do so; and for all we know they may have done just that in trying to negotiate a plea deal. However, any such possible deal would remain secret.

 

[grammieto5]

What does "it's the prosecution's case to lose" mean?

 

[uklaw]

Is ICA required to testify now that accidental death has been raised?

My view was that it would be difficult for her not to testify but there would be no requirement for her to do so (and she should refrain from testifying at all costs).

However, either Mark NeJame or O'Mara were quoted in an article saying that she would have to now that the defense of accidental death has been raised since she needs to provide evidence.

Is this correct? I though in theory all she required to provide was a reasonable alternative that would explain the evidence and be inconsistent with guilt. I know in practice it might be slightly more difficult since Florida doesn't have a circumstantial evidence instruction.

 

[ZsaZsa]

A caller to HLN just asked their experts, Mark Eiglash and a Judge -?name.... if there was really an accident why didn't ICA just say that three years ago, she knows she is looking at the DP so why not say so?
Both Eiglarsh and the Judge said that would lead to an immediate Mistrial if the SA raised that question.
Is that so, and why? it seems like the logical question to ask ...

 

[SoCalSleuth]

What does "it's the prosecution's case to lose" mean?

The prosecution has the burden of proof--the defense doesn't even have to put on a defense. Here, I think it may be referring to the fact that the prosecution has a strong case and the defense, well, not so much.

Is ICA required to testify now that accidental death has been raised?

My view was that it would be difficult for her not to testify but there would be no requirement for her to do so (and she should refrain from testifying at all costs).

However, either Mark NeJame or O'Mara were quoted in an article saying that she would have to now that the defense of accidental death has been raised since she needs to provide evidence.

Is this correct? I though in theory all she required to provide was a reasonable alternative that would explain the evidence and be inconsistent with guilt. I know in practice it might be slightly more difficult since Florida doesn't have a circumstantial evidence instruction.

I don't see how KC cannot testify now that GA denied the pool accident and the abuse. JB's allegations in opening statement are not evidence. JB's questions to GA are not evidence. The DT has to be consistent WITH THE EVIDENCE. Since, according to the DT, there were only 2 people present when Caylee allegedly drowned, GA & KC, and since GA denied it happened, that leaves KC as the only person who could testify to it.

A caller to HLN just asked their experts, Mark Eiglash and a Judge -?name.... if there was really an accident why didn't ICA just say that three years ago, she knows she is looking at the DP so why not say so?
Both Eiglarsh and the Judge said that would lead to an immediate Mistrial if the SA raised that question.
Is that so, and why? it seems like the logical question to ask ...

Because KC has the right to remain silent and her silence cannot be commented upon at trial.

 

[Joanner]

Are any of the resident lawyers tempted to watch Baez's opening statement?

 

[scandi]

Hi SoCalSleuth, What about the court letting ICA being allowed to express her reactions to what is being said in court with the nodding of her head back and forth. She is within the vision of the jury and just can not believe the court hasn't told her to stop this. It could have some affect on the jury's decision, right, even if they are told to disregard it. Ta

 

[Sherlock At Home]

Can George Anthony or Roy Kronk sue Jose Baez?

 

[SoCalSleuth]

Are any of the resident lawyers tempted to watch Baez's opening statement?

I did watch it. I believe I may have been the only lawyer here that didn't believe they would go with the theory they went with--it just seemed too implausible to me. But they did. I think it was a terrible mistake. KC will have to testify now. She will be shredded. No one is going to believe that GA would not call 911 if Caylee actually drowned. No one is going to believe that GA told KC she would be charged with child neglect for an admitted "common occurrence" pool drowning. No one is going to believe that RK found the body, held onto it, and then dumped it on Suburban Drive so that he could collect the reward.

Hi SoCalSleuth, What about the court letting ICA being allowed to express her reactions to what is being said in court with the nodding of her head back and forth. She is within the vision of the jury and just can not believe the court hasn't told her to stop this. It could have some affect on the jury's decision, right, even if they are told to disregard it. Ta

When I was a sitting Judge I never allowed such behavior from anyone during a trial. Most trial judges would not permit it. Either JP was busy looking at his laptop during the testimony or otherwise didn't see it because I find it hard to believe he would permit it.

 

[TiaM]

OK I need some straight up answers here:

1) Is a Defense lawyer allowed to stand, in court, in front of a jury and KNOWINGLY LIE?

a) If yes, I am heartbroken at our legal system.

b) If no - what happens? Nothing? Up to the State to refute his statements? Can he be permanently disbarred for this? Prosecuted? Sued?

Thank you for all your wisdom on these threads.

Bumping my own question.

Any attorneys willing to take this on? :waitasec:

 

[AZlawyer]

OK I need some straight up answers here:

1) Is a Defense lawyer allowed to stand, in court, in front of a jury and KNOWINGLY LIE?

a) If yes, I am heartbroken at our legal system.

b) If no - what happens? Nothing? Up to the State to refute his statements? Can he be permanently disbarred for this? Prosecuted? Sued?

Thank you for all your wisdom on these threads.

No. BUT but but but what do you mean by "lie"? Saying, e.g., that George molested Casey is not "knowingly lying" unless Casey told Jose, "Look. My father did not molest me, but I want you to say that he did as part of my defense."

 

[uklaw]

I don't see how KC cannot testify now that GA denied the pool accident and the abuse. JB's allegations in opening statement are not evidence. JB's questions to GA are not evidence. The DT has to be consistent WITH THE EVIDENCE. Since, according to the DT, there were only 2 people present when Caylee allegedly drowned, GA & KC, and since GA denied it happened, that leaves KC as the only person who could testify to it.

OK. Thanks for your answer SoCal. I just have a few follow up questions because I am kind of in disbelieve.

1.) How could her DT (which includes JB and two experienced DP-qualified attorneys one of which, AF, seems very skilled) gone with such a theory if they knew she would have testify. Surely they would know that she would crucify herself on the stand.

2.) Equally, and assuming ICA did not push to be able to testify, does this set up ineffective assistance for counsel as (a) they have clearly not visisted her in jail to prepare her well enough for cross-examination, and (b) it was such a foolish move to have her testify and be subject to cross.

3.) Am I right in thinking there is a split of opinion amongst attorneys on this matter? I realise that RHornsby has blogged this morning that he expects an accidental death theory but does not expect ICA to testify and has said previously that he would just leave it open as a theory for the prosecution to disprove as they carry the burden of prove. That would make more sense if that is what the DT is planning.

From RHornsby's comment (http://itsamysterytome.wordpress.co...nvict-casey-anthony-yes-it-can/#comment-11971)
Also keep in mind all of this is just reasonable argument a lawyer would make based on the state’s evidence. I probably would not have Casey testify and would be for State to disprove my assertions. State cannot comment ina trial about a defendant’s failure to testify.

 

[AZlawyer]

Can George Anthony or Roy Kronk sue Jose Baez?

Not for what is said in court, no.
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I also wanted to add to the answers regarding KC needing to testify--I agree that she is now going to have to testify. Not in the sense that she is required by some rule to do so, but in the sense that the statements made by Jose in opening cannot be supported by anyone but KC. I mean, he said very specific things about the supposed abuse by George--you all know what I mean--and he had to have known that George wasn't going to provide that evidence.

 

[Horace Finklestein]

Bet you folks are on overtime today. My question is...what's up with the head shaking and head nodding - as if ICA is contradicting a person's testimony? Isn't that forbidden? I was not happy seeing her doing that. Isn't that testifying in a backwards sort of way?