Legal Questions for our VERIFIED Lawyers #3

[AZlawyer]

quote from a comment from the lawyer of the day thread from someone purporting to be a lawyer
http://abovethelaw.com/2011/06/lawyer-of-the-day-jose-baez/#disqus_thread
.


Question: what's the difference between the strickkand test in do and non do cases? I must admit I don't understand the quote. I take it the defendant if indigent is entitled to rep for post conviction/collateral relief?

I don't really understand the quote either. IAC can be argued whether or not the death penalty is imposed.

Florida has a law that prohibits autopsy photos from being published. It is against the law, no ifs, ands or buts. The photos of Caylee skeleton laid out and the ones of her hand bones, shown with a ruler and coin to show how small they were, were obviously done at the ME's office, and were not crime scene photos. While Dr. Utz and Dr. Garavaglia did not do an actual autopsy, there is no doubt these pictures were taken during that examination and, by default, would be considered autopsy photos. the skull in the photo that showed her entire skeleton was not pixelated.

Do you think HHJP will bring this up Monday? Is it possible that WESH (the local Orlando station that aired these photos) can be brought up on charges? Can George and Cindy sue as next of kin over this?

HHJP only ordered that the skull pictures be pixelated. However, Judge Strickland had already ordered that no photos of the remains be published, pursuant to the law you mentioned. The media went so far as to black out photos of the "death band hair" in compliance with Judge Strickland's order. Now they seem to think it no longer applies.

I think HHJP will bring it up if and only if someone brings it to his attention.

I don't think there are any criminal charges or civil suits available as a result of violation of the law. I think the law just makes the photos exempt from release as public records. The photos right now are not even being released as public records, so the law may not directly apply. But IMO Strickland's order still applies.

I should have tried to be a little clear. I didn't mean RK per-say, he was just an example. If the State knows JB will call a certain witness, and that witness isn't a critical witness but instead of calling that witness, the state waits and lets DT call the person.

If the State needs the witness to prove any part of its case, the State must call the witness in its case in chief. It cannot prove its case through cross-examination of defense witnesses.

If the State does not need the witness to prove any part of its case, then it is not engaging in any "strategy" by waiting for JB to call the witness. There is simply no point in calling a witness who can't help you prove the case.

I'm sorry if this has already been asked. I tried to look and have been reading here every day, but 40 pages...

Anyway, I have a question about ineffective assistance of counsel. Some believe that this is a possibility in this case because Baez is...well, Baez. I know that anything is possible, but with all of the help that she gets, is it really something that we should be concerned with? It is my understanding that ineffective assistance of counsel is NOT an easy thing to win. We all see that Baez has been pretty ineffective overall, but it is also my understanding that "ineffective" as far as appeals are concerned does not mean the same thing that I mean when I say he is ineffective. To boil down: She is not guaranteed the right to a "good" lawyer, especially with it not being court appointed, but instead one that she choose herself. And as long as her lawyer (no matter how little intelligence he shows, or how many times he falls on his face) is actively trying to win the case for his client, it would not be considered ineffective? And just because he is bad won't mean a thing, just being a bad attorney is her problem and not one for the people or the state?

IAC is really, really, really hard to prove, and definitely means something much more than you (or I) mean when we say Baez is ineffective. He does not have to be a "good" lawyer, or a smart lawyer, and the appellate court will not second-guess his "strategic" decisions, which I am putting in quotation marks for a good reason.

My question is this: If Casey takes the stand in her defense, upon cross-examination, can the SA only question her about the stuff JB (or CM) asks her about? Or can they ask her about any subject?

They can only question her about her testimony--but that will include impeaching her testimony, which, believe me, will allow the SA to go pretty much wherever they want to go.

The state has been generous in supplying the A's their depositions any time it appeared needed to refresh their memory of their previous words. As I understand it, if their testimony is impeached, then the entire testimony can be thrown out.

If this is correct, why wouldn't/didn't the state offer the A's immunity? Is it only because it could have been proven they lied/covered for ICA and their current testimony might not be believed?

I ask this because I feel we aren't getting the full story now due to their depositions. Wouldn't immunity allow CA to be questioned about the possible fight or LA to be questioned about possible tampering? Wouldn't it help the jury to connect the evidence if they were given more thorough information?

Impeachment just means trying to show the jury that the witness's testimony can't be trusted. No testimony gets "thrown out" except in the minds of the jurors.

Even if the As were given immunity (for allegedly committing perjury in prior statements I guess you mean?), those prior statements could still be used to impeach them.

If CA is questioned about the fight, with or without immunity, I am 100% sure she would deny it. [IMO the big fight, if there was one, was June 8, which is why Casey took off to RM's apartment after that, why Cindy originally remembered June 9 as the last day she saw Caylee, and why Cindy gets so smug when she (truthfully) denies any fight occurred on June 15.] If LA is questioned about tampering (with what??) I am 100% sure he would also deny it regardless of whether he is granted immunity.

I don't see how it would help the State's case to show that Lee tampered with anything--quite to the contrary. As for the fight, I think the State attorneys know they have absolutely zero evidence to support that it happened, unless Cindy admits it, which she won't. Casey certainly isn't going to admit it either, even if she testifies.

What are the specific qualifications that an attorney must have in order to defend a DP case in the state of Florida?

I looked at the rule, and really I think it only applies to appointed counsel, not retained counsel. http://www.joffelaw.com/state-rules/3-112.html It also uses the word "should" (Rule 3.112(e)), suggesting that the standards are not absolute requirements.

Here are the important bits of Rule 3.112:

(f) Lead Counsel. Lead trial counsel assignments should be given to attorneys who:

(1) are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and

(2) are experienced and active trial practitioners with at least five years of litigation experience in the field of criminal law; and

(3) have prior experience as lead counsel in no fewer than nine state or federal jury trials of serious and complex cases which were tried to completion, as well as prior experience as lead defense counsel or cocounsel in at least two state or federal cases tried to completion in which the death penalty was sought. In addition, of the nine jury trials which were tried to completion, the attorney should have been lead counsel in at least three cases in which the charge was murder; or alternatively, of the nine jury trials, at least one was a murder trial and an additional five were felony jury trials; and

(4) are familiar with the practice and procedure of the criminal courts of the jurisdiction; and

(5) are familiar with and experienced in the utilization of expert witnesses and evidence, including but not limited to psychiatric and forensic evidence; and

(6) have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases, including but not limited to the investigation and presentation of evidence in mitigation of the death penalty; and

(7) have attended within the last two years a continuing legal education program of at least twelve hours’ duration devoted specifically to the defense of capital cases.

(g) Co-counsel. Trial co-counsel assignments should be given to attorneys who:

(1) are members of the bar admitted to practice in the jurisdiction or admitted to practice pro hac vice; and

(2) qualify as lead counsel under paragraph (f) of these standards or meet the following requirements:

(A) are experienced and active trial practitioners with at least three years of litigation experience in the field of criminal law; and

(B) have prior experience as lead counsel or cocounsel in no fewer than three state or federal jury trials of serious and complex cases which were tried to completion, at least two of which were trials in which the charge was murder; or alternatively, of the three jury trials, at least one was a murder trial and one was a felony jury trial; and

(C) are familiar with the practice and procedure of the criminal courts of the jurisdiction; and

(D) have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases, and

(E) have attended within the last two years a continuing legal education program of at least twelve hours’ duration devoted specifically to the defense of capital cases.

 

[Katprint]

HHJP only ordered that the skull pictures be pixelated. However, Judge Strickland had already ordered that no photos of the remains be published, pursuant to the law you mentioned. The media went so far as to black out photos of the "death band hair" in compliance with Judge Strickland's order. Now they seem to think it no longer applies.

I think HHJP will bring it up if and only if someone brings it to his attention.

IMO the distinction may be that the jury has been selected and sequestered, thus there is no longer any danger of improperly prejudicing the jury venire if inflammatory or potentially inadmissible photos of the remains are published by the press.

I pulled up Florida Statutes 406.135 which governs "Autopsies; confidentiality of photographs and video and audio recordings; exemption." http://www.lawserver.com/law/state/florida/statutes/florida_statutes_406-135 Although subsection (2) provides that photographs, videos and audio recordings of autopsies are confidential, subsection (7) exempts criminal and administrative proceedings. Subsection (7) does not prohibit "a court in a criminal or administrative proceeding upon good cause shown from restricting or otherwise controlling the disclosure of an autopsy, crime scene, or similar photograph or video or audio recordings in the manner prescribed herein."

This brings up the question, what is good cause to restrict/control disclosure? The public has a strong interest in fair trials, including being able to make sure that defendants are not railroaded with "secret" or non-existent evidence. The victims (including the families of murder victims) have an interest in protecting their privacy. Culturally, human remains are treated with dignity and respect not accorded to other inanimate objects such as turkey carcasses after Thanksgiving dinner.

The prosecution has said in open court that the duct tape was probably the murder weapon. Attorneys from the defense team have repeatedly gone on TV talk shows and given media interviews denying the existence of the duct tape on the remains. The duct tape is a pivotal issue in the case. The "good cause" to restrict/control photos depicting Caylee's duct taped skull would need to be very good indeed, to outweigh the media's First Amendment interests as well as the public's interest in due process and public trials.

Katprint
Always only my own opinions

 

[allycat1208]

Originally posted by allycat1208:

I believe I read that Amy Huizinga, Tony Lazzaro and Jesse Grund all hired attorneys and I can't imagine they wanted to have to pay for an attorney. I thought I read another post that said the depositions of experts witnesses are paid for by the defense or prosecution depending on who wanted the deposition. So, only expert witnesses depositions are paid for, not other witnesses who just happened to come in contact with KC during the time period of the missing child. Did Amy, Tony and Jesse need attorneys because of their depositions or something else?

Originally posted by AZlawyer:
They didn't technically "need" attorneys, but if one is being deposed and is being named as a potential murderer or associate/conspirator with a murderer by the grandmother of the victim, one ought to get an attorney.

Allycat's new question:

I heard the Anthony's named Amy and Jesse but Tony Lazzaro was not being named as a potential murderer or associate as well, was he? Anyway, nobody was charging them formally, the Anthony's were just throwing their names around as to who could be the alleged nanny who were friends or contacts of KC. Did Amy, Tony or Jesse have reason to believe they were going to be charged with anything or they took lawyers as a precaution?

 

[Leomoon80]

Are the Anthonys (the family) being called as Prosecution's "Hostile witnesses?" and if not, why not?

I'm shocked that the father did not at least take the 5th Amendment, unless there is a legal reason why he could not to answer the charge on the stand about abusing Casey.

 

[AZlawyer]

Allycat's new question:

I heard the Anthony's named Amy and Jesse but Tony Lazzaro was not being named as a potential murderer or associate as well, was he? Anyway, nobody was charging them formally, the Anthony's were just throwing their names around as to who could be the alleged nanny who were friends or contacts of KC. Did Amy, Tony or Jesse have reason to believe they were going to be charged with anything or they took lawyers as a precaution?

The As just kept saying dark things about how George better not see Tony or he might punch him, and how Cindy suspected that he'd been friends with Amy much longer than Amy admitted. Blah blah blah.

I'm sure none of them thought they were going to be charged. But when you get a subpoena to be deposed in a murder case and the family of the victim is darkly suggesting that you might be involved somehow, I am 100% sure you will be PM'ing the lawyers here asking for referrals.

Are the Anthonys (the family) being called as Prosecution's "Hostile witnesses?" and if not, why not?

I'm shocked that the father did not at least take the 5th Amendment, unless there is a legal reason why he could not to answer the charge on the stand about abusing Casey.

You don't normally get to call a witness as a hostile witness right off the bat. You have to put them on the stand and see if they are cooperative first. Which they have been.

Why would George take the 5th? You only take the 5th if your answer would tend to incriminate you. His answer ("NO") did not tend to incriminate him.

 

[beach]

Friendly reminder -

This is a "No Discussion" thread. Questions and Answers only. Once an attorney answers your question, please don't debate or post any "follow-ups" to inspire discussion within this thread.


:tyou:

 

[citigirl]

Maybe one of our verified lawyers can explain what trouble George might be putting himself in by pleading the fifth to save his lying daughter from the death penalty.

 

[Macushla]

IMO the distinction may be that the jury has been selected and sequestered, thus there is no longer any danger of improperly prejudicing the jury venire if inflammatory or potentially inadmissible photos of the remains are published by the press.

I pulled up Florida Statutes 406.135 which governs "Autopsies; confidentiality of photographs and video and audio recordings; exemption." http://www.lawserver.com/law/state/florida/statutes/florida_statutes_406-135 Although subsection (2) provides that photographs, videos and audio recordings of autopsies are confidential, subsection (7) exempts criminal and administrative proceedings. Subsection (7) does not prohibit "a court in a criminal or administrative proceeding upon good cause shown from restricting or otherwise controlling the disclosure of an autopsy, crime scene, or similar photograph or video or audio recordings in the manner prescribed herein."

BBM

Kat: thank you for your answer. having read the statute you referenced, it talks about criminal and adminstrative proceedings. I understand completely that autopsy photos are going to be used in court. My understanding of the Earnhardt law was that it prohibits media from publishing the photos without express permission of the next of kin. Am I reading this wrong? I find trying to decipher statutes, etc difficult so I am not 100% sure of what I originally stated. When Dale Earnhardt died, the media request for his autopsy photos led to this law being passed, and I remember the arguments for and against the law being enacted. Am I misreading something?

 

[LEFT-COASTER]

ok.. I have a question..
In JB's OS he said something about kronk's son saying his dad called him and told him he had hit the lottery in finding caylee's remains.. before the 911 call when the remains were actually found.. ..(or something to that effect)

If the DT calls Kronk's son to the stand.. They wouldnt be able to ask him that could they.. as wouldnt that be hearsay??

I mean would they be able to ask his son.. what his dad said to him???

 

[cleo612]

AZLawyer, I was listening to the blogtalkradio thingie tonight.

You stated that you think that ICA will be found guilty of aggravated manslaughter.

I am curious why you think that she would be found guilty of this charge and not felony murder or first degree murder. My understanding from other posters is that felony murder in Florida is a possibility since Caylee was under the age of 12 at the time of her death.

Thank you for all of your great answers here and on blogtalkradio.

 

[AZlawyer]

Maybe one of our verified lawyers can explain what trouble George might be putting himself in by pleading the fifth to save his lying daughter from the death penalty.

He would not be in any trouble at all, but he is not pleading the 5th. He answered the question on the stand already.

BBM

Kat: thank you for your answer. having read the statute you referenced, it talks about criminal and adminstrative proceedings. I understand completely that autopsy photos are going to be used in court. My understanding of the Earnhardt law was that it prohibits media from publishing the photos without express permission of the next of kin. Am I reading this wrong? I find trying to decipher statutes, etc difficult so I am not 100% sure of what I originally stated. When Dale Earnhardt died, the media request for his autopsy photos led to this law being passed, and I remember the arguments for and against the law being enacted. Am I misreading something?

I'm sure Kat will chime in as well, but I didn't want your question to get lost in the thread. It looks like criminal proceedings are completely exempt from this statute--but Judge Strickland entered an order that no photos of the remains could be released, and AFAIK his order is still in effect.

ok.. I have a question..
In JB's OS he said something about kronk's son saying his dad called him and told him he had hit the lottery in finding caylee's remains.. before the 911 call when the remains were actually found.. ..(or something to that effect)

If the DT calls Kronk's son to the stand.. They wouldnt be able to ask him that could they.. as wouldnt that be hearsay??

I mean would they be able to ask his son.. what his dad said to him???

Yes, it should come in under the exclusion for impeaching a witness who is testifying at trial (assuming RK testifies).

AZLawyer, I was listening to the blogtalkradio thingie tonight.

You stated that you think that ICA will be found guilty of aggravated manslaughter.

I am curious why you think that she would be found guilty of this charge and not felony murder or first degree murder. My understanding from other posters is that felony murder in Florida is a possibility since Caylee was under the age of 12 at the time of her death.

Thank you for all of your great answers here and on blogtalkradio.

I think the evidence of premeditation is the weakest evidence in the case. Technically, even the duct tape is consistent with an accidental death followed by a quick (and slightly insane) cover-up. The chloroform might be enough to get a murder conviction, though.

If the jury thought the death was caused by aggravated child ABUSE (like chloroforming your baby), even if the death was not on purpose she will likely be convicted of felony murder.

Aggravated MANSLAUGHTER of a child is different from aggravated child ABUSE. Aggravated manslaughter of a child is what the jury will pick if they decide that Caylee's death was Casey's fault somehow, but not because of abuse. This crime does not trigger the felony murder option.

 

[Katprint]

I'm sure Kat will chime in as well, but I didn't want your question to get lost in the thread. It looks like criminal proceedings are completely exempt from this statute--but Judge Strickland entered an order that no photos of the remains could be released, and AFAIK his order is still in effect.

Yep, I'm chiming in here.

When Judge Perry ordered that photos of the remains should be pixilated, that order might be considered a sua sponte "modification" of Judge Strickland's prior order concerning photos of the remains. That is what I would argue if I were representing some reporter or media outlet in a contempt hearing arising out of publishing the photos to the public.

Katprint
Always only my own opinions

 

[DesSands]

This has probably been asked over and over but I've been reading this thread and haven't seen it. Forgive me if I'm repeating, but it's driving me nuts.
Two questions, if there's a conviction and it's overturned on appeal, will ICA walk automatically or be retried?
Second question since the DT has brought GA into this and we have to take JB's statement as an admission that Caylee died on June 16th, this is actually a confession as I see it.
But my question is can GA or ICA be held financially responsible for monies collected ie: donated. And lastly if this holds, wouldn't GA be brought up on criminal or civil charges that he lied to police the same as ICA and tied up valuable police resources and cost OC alot of money? :waitasec:
TIA

 

[thumbtack]

Is it unusual to have a defendant chair hop in court?

 

[beachbumming]

Is it unusual to have a defendant chair hop in court?

Its not common, but I don't think its a big deal.

 

[beachbumming]

This has probably been asked over and over but I've been reading this thread and haven't seen it. Forgive me if I'm repeating, but it's driving me nuts.
Two questions, if there's a conviction and it's overturned on appeal, will ICA walk automatically or be retried?
Second question since the DT has brought GA into this and we have to take JB's statement as an admission that Caylee died on June 16th, this is actually a confession as I see it.
But my question is can GA or ICA be held financially responsible for monies collected ie: donated. And lastly if this holds, wouldn't GA be brought up on criminal or civil charges that he lied to police the same as ICA and tied up valuable police resources and cost OC alot of money? :waitasec:
TIA

If ICA is convicted and that conviction is overturned on appeal she will remain in jail until the second trial unless a bond is set and she makes that bond. I don't see that happening. JB's opening statement is not evidence so anything he said about GA's involvement or Caylee drowning on the 16th means nothing unless it is proven. There is no evidence that GA lied to police so he is not criminally liable. Can ICA be sued for fraud? I'll let the civil lawyers answer that one.

 

[mombomb]

Could you please explain what"rebuttal" is and when it occurs? The State finishes their Case in Chief, then the Defense gives their Case in Chief, then the State can call witnesses that did not testify in their Case in Chief at this point if they rebut something in the Defense's case? Also, does the Defense then get to do rebuttal? When does it end?

Thanks so much for all you experts do to help us little people to understand.

 

[Amil]

Why did CM call for a sidebar while HHJP was estimating the date of deliberations?

 

[RammerJammer]

Someone very close to me wanted me to ask this question: (I am almost embarrassed to even ask)

If the DT feels that the SA has not proven its case beyond a reasonable doubt, can the DT simply rest? I fully expect the DT to ask for a dismissal when the SA rests, but this question was posed in a ...well, let's just call it a debate, not an argument! LOL and TIA!

 

[nursebeeme]

question: Bill Shaefer said that the State will run a rebuttal case knowing what the defense is about to throw at the wall (why they pared down their CIC)..

1) do you concur with Bill S?
2) do you think it is smart?
3) do you think it will be successful?
4) can expert witnesses be called as rebuttal witnesses? (for example can they not call their ping expert in their CIC but call them as a rebuttal witness if the defense tries to say Casey, for example, was in a certain area when her pings show she was not, etc. Same for the plant expert (use in rebuttal)

thanks in advance for any insight