Legal Questions for our Verified Lawyers #4

[oreo]

JB objected to a lot of evidence today, I believe, in part, to establish grounds for appeal. Since CA did perjure herself as shown by today's testimony, doesn't the successful perjury justify the state bringing the evidence in? Also, what are the consequences if it is determined that a lawyer knowingly allowed a client to lie on the stand? Thanks again.

 

[strawberry]

The order regarding closing arguments: Is this just a standing order he would issue for any closing arguments or is it specific to these parties and this case?

 

[AZlawyer]

JB stipulated that CA's work records are accurate yet he put her on the stand knowing she would say that she "possibly" could have been home despite her work records. HHJP had to ask JB a couple times to get a straight answer. JB tried to mumble-f..k HHJP, but finally admitted he knew what CA was going to say and then alleged that the SA's knew it too. This wasn't true because LDB was obviously surprised and irritated by CA's testimony.

Is JB in trouble for this? Is what he did legal and ethical, legal and unethical or illegal? I am wondering if HHJP as ever witnessed the level of incompetence (lack of procedural and case law knowledge) and contempt as that exhibited by JB in this case?

The stipulation was that they really were her timesheets, not that Cindy filled them out accurately. And the defense does not have to disclose what they believe witnesses will say about the evidence. IMO JB will not be in trouble for this particular issue. But because the State didn't know about it, they were allowed to bring in some new evidence on rebuttal.

How many rebuttals will happen. The state is rebutting now, then I am sure the defense will rebut the rebuttal, will the state then rebut them...geeesh this trial could last another two weeks with the rebuts

Should be just the one rebuttal (state). Actually, from the tweets I was just reading, it sounds like we're done now, right?

I know we've touched briefly on surrebuttals in this thread, but I'd like to get opinions please.

I understand that surrebuttals are rare, but what are the chances of THIS defense wanting one? 25%, 90%, 100%? Are they automatically entitled to one, or must they ask HHJP for permission? At what point in the proceedings must they make the Court aware that they want to/will do a surrebuttal? What are the chances that Baez knows, or will be held to, the fact that the surrebuttal should only cover the testimony brought up in the rebuttal?

My thinking is: due to the way this defense LOVES to grandstand, have the last word, and delay, delay, delay - they will definately want a surrebuttal. If they do one, I also predict that we will be right back to square one with Baez trying, yet again, to ambush the State with a witness or testimony outside the scope of rebuttal, or with new opinions that have not been previously submitted in a report - as the Court has ordered him to do.

As I mentioned above, I think (based on 15 minutes of trying to catch up) that the trial is now over except for closing arguments.

I am sure this have been covered however I would like to ask if a Jury in capital muder case is different than lets say a case of lesser charge.

Does each and every juror have to vote guilty or not guilty on the charges.. what is 8 vote guilty on charge 2 and the others vote quilty on charge 1.. how do they come to a middle ground.. does it have to be all or nothing.

How hard it is to convince that one lone juror if they think innocence. Would that be a mistrial or does hung jury mean she walks free..

what are the possible senario's of deciding innocence or quilt in this case.

The jurors must make a unanimous decision on each charge. If they cannot do so (after being encouraged by HHJP to try try again), there will be a hung jury as to any charges not unanimously decided. Those charges can be retried.

Do any of the lawyers on this site know if the FL bar would be watching this case on tv? Would they sanction a lawyer on their own or would a lawyer have to be turned in by a judge, another lawyer or whomever? Do you think they may have heard that the judge might contact them about JB? Thanks for all your insight!

The Bar can sanction a lawyer on its own. I don't know if the Florida Bar does that much. The AZ Bar almost never does.

I'm sure someone at the Fla Bar offices has heard by now that HHJP said the Bar could deal with all this down the road.

Could GA gesture of washing his hands of ICA when he left the stand yesterday be construed as breaking the rules that are posted on the courtroom door, as this was done in front of the jury could it come up as a reason for mistrial?

I haven't seen it. Apparently it wasn't obvious enough and/or didn't have a clear enough meaning for the defense to object, so I wouldn't worry about it.

What exactly do The Anthony's lawyer, Lippman do for them? I have read this thread here a bit and its been said that charges of perjury are never usually charged so I figure they are not worried about that. Before reading your posts regarding perjury I thought that Lippman was helping them as to what they can testify to because I thought the Anthony's were possibly worried about perjury. I've saw some posts that suggest that Lippman is helping them with immunity also. Immunity from what though? Are the Anthony's worried about being charged with obstruction of justice?

Also, in regard to some of the witnesses such as Kronk and Dominic Casey, why did they need lawyers? I understand Kronk is probably concerned because Baez is accusing him of moving Caylee's remains to get the reward, but he's not really being charged with anything. I think there was another witness from Texas Equusearch too who had an attorney. Why did he need one?

IMO Lippman is or should be talking to them about perjury, obstruction, child sexual abuse, etc., but he is also there to help them understand and navigate the legal process. He seems, for example, to have explained to them that it is not OK for a witness to object to lawyers' questions while on the stand, and that it makes a witness look bad to be openly argumentative.

I completely understand the need for all the witnesses you mentioned to have lawyers. They were all accused of wrongdoing in one way or another (waiting to be charged before getting a lawyer is not such a good idea), and all of them needed general legal advice about testifying, 5th amendment, etc.

Bringing this question over from bonjoviblonde on today's Sidebar:

I just read the Order of Closing Arguements and there is no way Jose is going to stick to that. What happens if he doesn't? Does the State stand up and object in the middle of his closing? Does the Judge call him out? What happens after? I can just anticipate this being a huge mess because he never wants to play by the rules.

The SA will object if it is important enough, and HHJP can interrupt even without objection if his rules are being violated.

Hypothetical: Regarding the smell in the can, is there a possibility that several cans were sealed, but maybe one or two cans set aside and not submitted as evidence? That way, the SA could open a can on their own and see if it smells and then fight to get the one in evidence opened since they would know definitely that it would still smell? <----is that legal? Also, I am not sure they jury knows about the fight over admitting the can smell. What would happen if they ask to have the can opened and/or to see/smell the trunk of the car?

Apparently there are multiple cans. The SA had Michael Vincent open one up just recently to confirm the smell was still there. Nothing illegal about that at all.

HHJP has ruled that the jury will not be permitted to have the can or to open it. The trunk, with no liner, probably doesn't smell anymore, and apparently the liner doesn't smell anymore either, as the defense was not worried about it.

Is it my understanding that the Judge can rule the DP even if the jury comes back with LWOP? How does that work exactly?

Yes, he can. The jury only gives a recommendation. But to comply with constitutional requirements, the jury would have to find the existence of at least one aggravating circumstance, so there would have to be a special verdict form allowing the jury to find aggravating circumstances but still recommend LWOP.

during closing, can the state or defense object, i.e. interrupt the closing? will sidebars be allowed? thanks!

Yes and yes.

JB objected to a lot of evidence today, I believe, in part, to establish grounds for appeal. Since CA did perjure herself as shown by today's testimony, doesn't the successful perjury justify the state bringing the evidence in? Also, what are the consequences if it is determined that a lawyer knowingly allowed a client to lie on the stand? Thanks again.

The perjury doesn't justify the new evidence--the fact that CA said new and unexpected things justifies the new evidence.

The consequences could be serious for a lawyer suborning perjury--he could even lose his license--but we have no reason to think Mr. Lippman did anything of the sort!

The order regarding closing arguments: Is this just a standing order he would issue for any closing arguments or is it specific to these parties and this case?

I believe he said a few days ago that it would be the standard order.

 

[NancyA]

Where will ICA be while the jury deliberates? Assuming it takes several days (and I don't think it will or at least sincerely hope not) does she have to remain at the jail and they'll bring her to the court as soon as it's announced they've reached a verdict or does she spend each day in the courthouse cells?

 

[oreo]

quoting AZlawyer, "The perjury doesn't justify the new evidence--the fact that CA said new and unexpected things justifies the new evidence.

The consequences could be serious for a lawyer suborning perjury--he could even lose his license--but we have no reason to think Mr. Lippman did anything of the sort!"



Thanks AZlawyer for your reply. I am sorry I wasn't clear that I was referring to JB possibly knowing CA would be planning to change her testimony (or add to it in a creative way). I forgot that her attorney is Mr. Lippman. I do not believe he had any reason to believe she would perjure herself or that he would condone it in any way.

 

[Papacharlie]

I apologize if this has been asked before and I just can't find it.. Do I understand correctly a defense attorney can say present any theory in opening statement and never back it up ? Seriously ?? Can they present their own theory or does it have to come from the defendant ?? If CA isn't prosecuted for perjury..what kind of message does this send to tell the truth and respect our justice system ??

 

[thedeviledadvocate]

Just wanted to say thank you to AZ and all the other lawyers who have been so very, very helpful is helping the rest of us to understand some of the legalities of this case. Your willingness to share your knowledge and time in answering the thousands of questions we have asked you these past 3 years has been greatly appreciated. Thank you very much!!!!

 

[AZlawyer]

Where will ICA be while the jury deliberates? Assuming it takes several days (and I don't think it will or at least sincerely hope not) does she have to remain at the jail and they'll bring her to the court as soon as it's announced they've reached a verdict or does she spend each day in the courthouse cells?

She will be at the jail, most likely, unless there are legal arguments, etc. going on regarding other issues during deliberations.

quoting AZlawyer,

"The perjury doesn't justify the new evidence--the fact that CA said new and unexpected things justifies the new evidence.

The consequences could be serious for a lawyer suborning perjury--he could even lose his license--but we have no reason to think Mr. Lippman did anything of the sort!"

Thanks AZlawyer for your reply. I am sorry I wasn't clear that I was referring to JB possibly knowing CA would be planning to change her testimony (or add to it in a creative way). I forgot that her attorney is Mr. Lippman. I do not believe he had any reason to believe she would perjure herself or that he would condone it in any way.

Knowing someone plans to change/add to their testimony is not the same thing as knowing someone plans to lie.

I apologize if this has been asked before and I just can't find it.. Do I understand correctly a defense attorney can say present any theory in opening statement and never back it up ? Seriously ?? Can they present their own theory or does it have to come from the defendant ?? If CA isn't prosecuted for perjury..what kind of message does this send to tell the truth and respect our justice system ??

The opening statement is not evidence, so yes, you can present a theory and then fail to back it up. The jury usually gets a little irritated with that approach, though. They can present any theory they believe in good faith will be consistent with the evidence--it does not have to be something the defendant thought of.

If CA is not prosecuted for perjury, it will be just the same as when people lie every day in every courtroom across the nation and are not prosecuted for perjury. No one has the time or resources to prosecute every case of perjury.

 

[Nova24]

If there is a hung jury I will hang myself lol but would the judge put lawyers, GA, etc. on some kind of gag order or as it's all public info now he would let them comment?

 

[allycat1208]

Originally posted by AZlawyer:

The opening statement is not evidence, so yes, you can present a theory and then fail to back it up. The jury usually gets a little irritated with that approach, though. They can present any theory they believe in good faith will be consistent with the evidence--it does not have to be something the defendant thought of.

My response:

I thought I read another post here where one of the attorneys stated that a lawyer cannot make up a story, the defense theory has to come from the defendant. Isn't presenting a theory that they think will be consistent with the evidence in a way making up a story, just speculation, which is what it looks like they did with Roy Kronk.

Also, If KC admitted in the beginning to JB that she did in fact murder Caylee but she wanted to plead "not guilty" what would he have had to do?

 

[tragco]

During the penalty phase (assuming we get there), is it just the DT bringing up people to tell the mitigating stuff or does the SA also come in to argue for aggravating factors? If they have people testifying for mitigating factors, does the SA do a cross? TIA.

 

[mfcmom]

Can someone please explain to me why the jurors were allowed to smell the trash but not the can? Thank you in advance.

 

[Searchfortruth]

If Casey is found guilty, do the jurors have to remain sequestered until they reach a sentence ?

 

[reeseeva]

Would like to know what our illustrious legal minds think of Judge Perry's Order of 16 points, for Closing Arguments. Mark Nejame mentioned on HLN, last evening, that he had never seen restrictions like this before.

I think this will certainly curtail what either side might have been planning, which is why I feel they were given a day off to prepare.

http://www.wesh.com/pdf/28422064/detail.html

 

[MissJames]

During the penalty phase (assuming we get there), is it just the DT bringing up people to tell the mitigating stuff or does the SA also come in to argue for aggravating factors? If they have people testifying for mitigating factors, does the SA do a cross? TIA.

Jumping off this post can / will the SA's bring in any new evidence for the penalty phase ,like her 6 felony convictions?
What is the State most likely to bring to the penalty phase?

 

[Queenofwands]

Does the State of Florida or the defense get to present closing arguments first? If its the State, then after the defense gives there's, can the State get up again and have the last word??? TIA

 

[Manny]

I am just curious if there is some legal reason that Baez couldn't challenge the State as to the making of chloroform. I don't think there is any evidence that Casey ever purchased any chemicals that would make the chloroform nor would she be able to buy it. She sure isn't a chemist. Really left me puzzled. Nor did he bring up that some chloroform was found in other trunks in other cars of the same make. Instead it almost seemed that he opened doors that never should have been opened. Looking up chloroform is not making it, people look up all sorts of things. Sometimes I think people give computers too much weight. They are operated by people, so that reduces the weight immediately. (these are my closing remarks,LOL ) Probably the only human left with this opinion.

 

[Leah0107]

I keeping hearing people say that aggravated manslaughter is a 30-year sentence. I read:

(3)&#8195;A person who causes the death of any person under the age of 18 by culpable negligence under s. 827.03(3) commits aggravated manslaughter of a child, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

What have I missed?

 

[2goldfish]

if there is a penalty phase, is the inmate allowed to speak to the jury then?

 

[AZlawyer]

If there is a hung jury I will hang myself lol but would the judge put lawyers, GA, etc. on some kind of gag order or as it's all public info now he would let them comment?

I don't see how he could ever enforce a gag order until a retrial is done.

Originally posted by AZlawyer:

The opening statement is not evidence, so yes, you can present a theory and then fail to back it up. The jury usually gets a little irritated with that approach, though. They can present any theory they believe in good faith will be consistent with the evidence--it does not have to be something the defendant thought of.

My response:

I thought I read another post here where one of the attorneys stated that a lawyer cannot make up a story, the defense theory has to come from the defendant. Isn't presenting a theory that they think will be consistent with the evidence in a way making up a story, just speculation, which is what it looks like they did with Roy Kronk.

Also, If KC admitted in the beginning to JB that she did in fact murder Caylee but she wanted to plead "not guilty" what would he have had to do?

IMO the theory does not have to come from the defendant. The lawyer can present a theory consistent with the evidence, and sometimes that can be pretty indistinguishable from making up a story.

If Casey admitted guilt to him, IMO JB would have had to focus on reasonable doubt rather than presenting a positive theory of innocence.

During the penalty phase (assuming we get there), is it just the DT bringing up people to tell the mitigating stuff or does the SA also come in to argue for aggravating factors? If they have people testifying for mitigating factors, does the SA do a cross? TIA.

Yes, the SA will present aggravating factors and will have a chance to cross-examine mitigation witnesses.

Can someone please explain to me why the jurors were allowed to smell the trash but not the can? Thank you in advance.

I sure can't. I see nothing wrong with jurors smelling the evidence any more than looking at or hearing the evidence. And I certainly don't see any reason to distinguish between certain ITEMS of evidence when deciding what's OK to smell. But obviously lots of attorneys and judges, including HHJP, disagree.

If Casey is found guilty, do the jurors have to remain sequestered until they reach a sentence ?

That's up to HHJP. He made a reference yesterday to them going home to their families, so I'm thinking they will be released for at least a couple of days before the penalty phase begins.

Would like to know what our illustrious legal minds think of Judge Perry's Order of 16 points, for Closing Arguments. Mark Nejame mentioned on HLN, last evening, that he had never seen restrictions like this before.

I think this will certainly curtail what either side might have been planning, which is why I feel they were given a day off to prepare.

http://www.wesh.com/pdf/28422064/detail.html

Well, all these restrictions are things both sides should already have known. They are required by law, not by HHJP. Doesn't Nejame normally practice civil litigation? Maybe that's why he hasn't seen them before.

Jumping off this post can / will the SA's bring in any new evidence for the penalty phase ,like her 6 felony convictions?
What is the State most likely to bring to the penalty phase?

The state can only discuss the aggravated circumstances listed in the statute. Here, the state has announced its intention to present evidence (new evidence is allowed) that:

--the murder was heinous, atrocious or cruel (they might skip this one--the use of chloroform prior to the application of duct tape, which was the state's theory, would likely make the murder not "cruel" in the sense meant by the statute);

--the murder was committed in a cold, calculated and premeditated manner with no pretense of justification;

--Caylee was under 12; and

--Casey was in a position of authority over Caylee.

This is all assuming that there is a conviction of first-degree or felony murder, of course.

Does the State of Florida or the defense get to present closing arguments first? If its the State, then after the defense gives there's, can the State get up again and have the last word??? TIA

The State goes first, then the defense, then the State gets to rebut.

I am just curious if there is some legal reason that Baez couldn't challenge the State as to the making of chloroform. I don't think there is any evidence that Casey ever purchased any chemicals that would make the chloroform nor would she be able to buy it. She sure isn't a chemist. Really left me puzzled. Nor did he bring up that some chloroform was found in other trunks in other cars of the same make. Instead it almost seemed that he opened doors that never should have been opened. Looking up chloroform is not making it, people look up all sorts of things. Sometimes I think people give computers too much weight. They are operated by people, so that reduces the weight immediately. (these are my closing remarks,LOL ) Probably the only human left with this opinion.

I am certain that Baez will point out the lack of evidence of purchase/manufacture of chloroform in closing. That's not something you can bring out by putting a witness on the stand--you have to discuss it in closing.

He did, IIRC, point out with Vass (?) that the car he tested of the same make had chloroform in the trunk, but Vass responded that the amount in the other car was teensy tiny.

I keeping hearing people say that aggravated manslaughter is a 30-year sentence. I read:

(3)&#8195;A person who causes the death of any person under the age of 18 by culpable negligence under s. 827.03(3) commits aggravated manslaughter of a child, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

What have I missed?

775.082 says the sentence for a first-degree felony is up to 30 years.

if there is a penalty phase, is the inmate allowed to speak to the jury then?

Yes.